upholding admission of late-disclosed witness based on trial court’s offer “to consider a postponement so that appellant could prepare for the testimony, an offer upon which the appellant failed to act,” as well as appellant’s “fail[ure] to adequately explain” how the untimely disclosure showed bad faith or prejudice
How later courts described this case
- upholding admission of late-disclosed witness based on trial court’s offer “to consider a postponement so that appellant could prepare for the testimony, an offer upon which the appellant failed to act,” as well as appellant’s “fail[ure] to adequately explain” how the untimely disclosure showed bad faith or prejudice
- noting that both under Texas law and Davis v. Alaska, "the accused is given great latitude in showing any fact which would tend to establish ill feeling, bias, or motive for fabrication on the part of any witness testifying against the accused.”
- stating that evidence offered by a defendant that is not inconsistent with or preclusive of his guilt is not probative and may be excluded
- common law attorney-client privilege did not apply to communications between inmate-defendant and his inmate “legal advisor”
Written by the judges who cited it.
The opinion
CLINTON, Judge,
dissenting.
The treatment given to appellant’s ground of error eleven is erroneous in two respects, in my view. First, the majority is wrong to dismiss appellant’s complaint against the sua sponte nature of the trial court’s action on the basis that such complaint does not comport with his trial objection. The majority would require appellant to articulate what was obvious to all present, indeed is obvious from the cold record, viz: that he was objecting to the trial court’s exclusion of the venireman on the basis of Article 35.16(a)(10), V.A.C.C.P., when the full predicate for such exclusion had not been laid by either the trial court or the State. To hold that error was not preserved in this context is just pedantic, Moore v. State, 542 S.W.2d 664, 668 (Tex.Cr.App.1976) notwithstanding. See Hernandez v. State, 643 S.W.2d 397 (Tex.Cr.App.1983) (Teague, J., dissenting).
More disturbing, however, is the analysis by which the majority distinguishes Grijalva v. State, 614 S.W.2d 420 (Tex.Cr.App.1981). After observing that it was in response to a challenge for cause from the State that the venireman in Grijalva had been erroneously excused, the majority concludes:
“The State in no way prompted the erroneous excusal nor did it have an opportunity to timely exercise a peremptory challenge against him. [footnote omitted.] In short, this venire member was never passed first to the State and then to the *86 appellant for challenges according to the requirements of Art. 35.13, V.A.C.C.P. Thus, the ‘corruption of the peremptory strike practice’ that gave the state ‘an unfair advantage,’ so condemned in Gri-jalva, is absent from this case.”
At p. 71, quoting Bell v. State, 724 S.W. 2d 780, at 796 (Tex.Cr.App.1986). With deference, this facile distinction does not withstand scrutiny.
In Grijalva , no less than in the instant case, opportunity for the orderly conduct of peremptory challenges by both sides was preempted by erroneous excusal of the venireman by the trial court. That here that excusal was sua sponte does not invalidate the rationale of Grijalva . Whether the venireman was excused in response to a State’s challenge for cause or sua sponte, to call the erroneous excusal harmless on the basis that the State had remaining per-emptories is effectively to afford the State an out of time peremptory challenge (or, as the majority labels it, “constructive use” of a remaining peremptory) to retroactively correct the error. Circumvention of the statutorily mandated order for the exercise of peremptory challenges in a capital case is just as manifest here as it was in Grijalva . *
Finding no meaningful distinction between this case and Grijalva , I respectfully dissent.
TEAGUE and DUNCAN, JJ., join this opinion.
In Bell v. State, supra, at 796, the Court elaborated upon its present rationale in similarly distinguishing Grijalva , thus:
"... Grijalva is founded on the notion that the State caused the improper excusal by issuing a challenge for cause, and is therefore penalized because of the advantages it would otherwise receive by holding a peremptory strike back. Where the trial judge, not the State, is solely responsible for the improper excusal, the justification for penalizing the State under Grijalva disappears.”
I had not understood Grijalva to be "founded on the notion that the State caused the improper excusal,” and should therefore be "penalized.” I should think that, inasmuch as it is said to thwart the dictates of Article 35.13, supra, by giving the State "the benefit of making its judgments with a perspective of the entire panel, a perspective which is not given the defendant[,]" 614 S.W.2d at 424 , to allow retroactive application of remaining State peremptories to cure the otherwise reversible error of excusing a qualified venireman over objection would be equally disruptive whether the State "caused” the trial court to excuse the venireman or the court acted of its own volition. The point is not to penalize the State, but to avoid penalizing the defendant.