# Skillern v. State

> Court of Criminal Appeals of Texas · December 21, 1977 · 559 S.W.2d 828

URL: https://www.frixlaw.com/law-library/cases/9666562

## Case

- **Full name:** Doyle Edward SKILLERN, Appellant, v. the STATE of Texas, Appellee; Charles Victor SANNE, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** December 21, 1977
- **Citations:** 559 S.W.2d 828; 1977 Tex. Crim. App. LEXIS 1344
- **Precedential status:** Published
- **Opinion:** Concurrence by Onion
- **Judges:** Phillips, Onion, Douglas, Yollers
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9666562

## Opinion text

ONION, Presiding Judge,
concurring.
I reluctantly agree that these death penalty convictions must be reversed because of the improper separation of the' jurors and the failure of the State to rebut the presumption of harm that arises. I feel that a better explanation is necessary so that the action of the court will be better understood by the bench and bar, the news media, the public and all concerned. I think it should be made plain that the reversal is predicated upon the violation of a mandatory statute, Article 35.23, Vernon’s Ann.C. C.P., a statute not even mentioned in the majority opinion.
Courts have for a long time had an interest in protecting jurors from outside influences. The common law rule was “that the jury be kept together without meat or drink until a verdict was reached. 3 Blackstone; 375”; People v. Wilson, 400 Ill. 461, 477 , 81 N.E.2d 211, 219 (1948); 23A C.J.S. Criminal Law § 1356a. The common law rule was codified in some jurisdictions and modified in others. The concern about removing the jury from contact with interested parties dr merely curious third parties was eventually embodied in the various Codes of Criminal Procedure of this state. These statutes prohibiting the separation of the jury were designed to preserve the purity of the jury and to insure a fair and impartial trial. In English v. State, 28 Tex.App. 500 , 13 S.W. 775, 776 (Court of Appeals 1890), the court in discussing Article 687 of the Code of Criminal Procedure then in effect discussed such safeguards:
“. . . In a felony case, to secure the efficiency and purity of the trial, it has been deemed necessary that the jury shall not .be allowed to separate, and, if allowed by consent of parties, they must, during separation, each individual, be in charge of a trusted officer of the court, who will see to it that their purity and efficiency are preserved.”
Article 623, Vernon’s Ann.C.C.P., 1925 (as amended Acts 1955, 54th Leg., p. 795, ch. 288, § 3), prohibiting the separation of jurors in capital cases after they have been sworn 1 and Article 668, Vernon’s Ann.C. *831 C.P., applying the same rule in non-capital felony cases, 2 were typical of the statutes enacted prior to the present Code of Criminal Procedure enacted in 1965.
These statutes and their forerunners when construed in connection with Article 1, § 10 of the State Constitution, were held to be imperative and mandatory, and a separation of the jury, except under the conditions imposed, was fundamental error. McCampbell v. State, 37 Tex.Cr.R. 607 , 40 S.W. 496 (1897); Brown v. State, 38 Tex. 482 (1873); English v. State, supra; Pearson v. State, 145 Tex.Cr.R. 87 , 165 S.W .2d 725 (1942). Under these prior enactments, when there was a separation of the jurors at any time after they were sworn and impaneled, without the consent of the parties, it became incumbent on the State to show that such jurors did not mingle or converse with anyone not a member of the jury. Green v. State, 156 Tex.Cr.R. 22 , 238 S.W.2d 775 (1951); Newton v. State, 114 Tex.Cr.R. 537 , 26 S.W.2d 233 (1930). This was so because when such separation occurred injury was presumed unless the State rebutted such presumption. Norwood v. State, 120 Tex.Cr.R. 510 , 48 S.W.2d 276 (1932). “Without a complete showing of noninterference with the jury by anyone outside its number, we cannot say that a separation — as the same is denounced by statute — did not occur. See Arts. 623 and 668, C.C.P.” Green v. State, supra. See also Cockrell v. State, 85 Tex.Cr.R. 326 , 211 S.W. 939 (1919).
Permitting jurors to separate or go to their homes unaccompanied by an officer has often resulted in reversals. See, e. g., Poston v. State, 121 Tex.Cr.R. 583 , 51 S.W.2d 362 (1932); Osborne v. State, 136 Tex.Cr.R. 125 , 124 S.W.2d 366 (1939); Gant v. State, 55 Tex.Cr.R. 284 , 116 S.W. 801 (1909); Garner v. State, 89 Tex.Cr.R. 486 , 231 S.W. 389 (1921); Wells v. State, 155 Tex.Cr.R. 592 , 238 S.W.2d 208 (1951). 3
With the enactment of the 1965 Code of Criminal Procedure Article 35.23, Vernon’s Ann.C.C.P., replaced former Articles 623 and 668 eliminating any distinction between capital and noncapital felony cases regarding the separation of the jurors. Smith v. State, 437 S.W.2d 835 (Tex.Cr.App.1968); Comment, “The Texas Code of Criminal Procedure,” 44 Tex.L.Rev. 983, 1007.
Said Article 35.23, supra, reads as follows:
“The court may adjourn veniremen to any day of the term. When jurors have been sworn in a felony case, the court may, at its discretion, permit the jurors to separate until the court has given its charge to the jury, after which the jury shall be kept together, and not permitted to separate except to the extent of housing female jurors separate and apart from male jurors, until a verdict has been rendered or the jury finally discharged, unless by permission of the court with the consent of each party. Any person who makes known to the jury which party did not consent to separation shall be punished for contempt of court. If such jurors are kept overnight, facilities shall be provided for female jurors separate and apart from the facilities provided for male jurors. In misdemeanor cases the court may, at its discretion, permit the jurors to separate at any time before the verdict. In any case in which the jury is *832 permitted to separate, the court shall first give the jurors proper instructions with regard to their conduct as jurors when so separated.”
It can be readily seen that some of the rigidity of the former statutes was eliminated. Instead of forbidding separation at any time after the jurors are sown and impaneled, Article 35.23, supra, permits the jurors in felony cases to separate at the court's discretion until the charge to the jury is given. The retention of the provision forbidding separation after the charge is given is best expressed in 72 A.L.R.3d 248 , 253:
“. . . courts appear to continue to take a more serious view with regard to separations after submission of the cause to the jurors for deliberation than to pri- or separations, because the chances of outside influence are more pronounced when the evidence is all in, any extralegal information then tending to have a greater effect on the verdict, and moreover, because, when the trial is nearing its end, the danger of tampering with the jury is considerably greater.”
Article 35.23, supra, must, of course, be read in light of our bifurcated trial system established by Articles 37.07 and 37.071, Vernon’s Ann.C.C.P. Where the jury is required or is chosen to assess punishment, there may well be two charges given, one at the guilt-innocence stage of the trial and another at the penalty stage of the trial. In such cases there are two periods of the trial when the separation of the jury is forbidden except under the conditions imposed under the statute. As explained in Sierra v. State, 476 S.W.2d 285 (Tex.Cr.App.1971), sequestration is required only after a charge is given and before the jury renders a verdict on that charge. Once the jury reaches a guilty verdict during the guilt or innocence phase of the trial, it is again within the discretion of the trial court to permit the jury to separate until the charge on punishment is given. If separation is permitted after the return of a guilty verdict at the court’s discretion but prior to the charge at the penalty stage of the trial-being given, there is no presumption of harm. Johnson v. State, 469 S.W.2d 581 (Tex.Cr.App.1971). In such situation the burden is no longer on the State to show that nothing prejudicial occurred during the jury’s separation, but the burden is on the defendant to show that he was injured by the court’s action. Johnson v. State, supra.
However, where the separation occurs after the charge is given at the guilt stage of the trial, the presumption of harm still prevails, placing the burden on the prosecution to show that no injury resulted or could not reasonably have resulted from such separation. Goodall v. State, 501 S.W.2d 342 (Tex.Cr.App.1973); Green v. State, 510 S.W.2d 919 (Tex.Cr.App.1974).
The presumption of harm when there is a separation of the jury in violation of an applicable statute and under circumstances which might expose the jurors to improper influences, thus casting upon the State the burden of dispelling such presumption, is not peculiar to Texas. See, e. g., Pratt v. State, 48 Ala.App. 341 , 264 So.2d 571 (1972); Ford v. State, 330 P.2d 214 (Okl.Cr.App.1958); Gibson v. State, 512 P.2d 1399 (Okl.Cr.App.1973); Green v. State, 319 P.2d 321 (Okl.Cr.App.1957); People v. McDonald, 38 Mich.App. 639 , 196 N.W.2d 834 (1972); In re Winchester, 53 Cal.2d 528 , 2 Cal.Rptr. 296 , 348 P.2d 904 (1960), cert. den., 363 U.S. 852 , 80 S.Ct. 1631 , 4 L.Ed.2d 1734 .
In Wharton's Criminal Procedure, 12th Ed., Torcia, Vol. 4, § 552, p. 52, it is written:
“If ... a separation is apparently unauthorized, prejudice to the defendant will be presumed. In such case, the burden is on the prosecutor to prove that the defendant was not in fact prejudiced. The prosecutor may meet this burden by showing, for example, that the separated jurors were in the charge of an officer or that they were not subjected to any improper outside influence.”
With this background, the facts of the instant case should be examined. After the charge was read to the jury at the guilt stage of the trial and after the State’s opening argument, the trial court permitted the jury to separate, over the objection and *833 protest of appellants’ counsel, 4 who pointed out that the charge had been read and that the courthouse was full of peace officers “from all over this area” 5 and' “full of spectators” to which the court replied, “Well, I know.” Appellants then asserted the jury was mingling with the spectators. The court overruled the motion for mistrial, but instructed the bailiff to get the jury back in the jury room. Later the appellants were permitted to perfect their informal bill of exception. Marvin Foster, attorney for the appellant Sanne, testified as to the separation and the objection thereto, and related that thereafter he went directly to the open jury room door and saw five or six jurors there. He then went to the ground floor and he saw the juror Cuevas coming in the west door of the courthouse from the direction of the courthouse annex. Foster later went around the north end of the said annex to go to the grocery store across the street and observed the juror Stainthorpe coming out of the street onto the courthouse square “and he had obviously been at least across the street.” The court then stated it had ascertained that “two of them left the area.” Chris Ybanez, the bailiff, testified the jurors separated and that “one of them went to the annex building to the restroom, one of them went downstairs, and the rest of them went to the restroom on the inside here.” He related some of the women jurors went into a public restroom marked “Jurors Only” and there may have been some women spectators who entered the restroom. He stated, . . I will testify I saw one lady juror go in and then I saw some women spectators.” The deputy saw juror Cuevas coming up the stairs and told him to report to the jury room. He stated juror Stain-thorpe “was in the restroom at the annex building near the door on the outside, and I told him to get back right away.” This was all that was developed on the bill of exception, the time span of the separation not being established. The appellant again moved for a mistrial, and the district attorney opposed the same stating the appellant had failed to show harm. The motion was overruled with the court stating there had been no contact “as far as I know.”
Since the charge had been given to the jury, the district attorney was in error as to whose burden it was to show harm. There was a presumption of harm. It may have been relatively easy to rebut the presumption of harm, see and cf. Barnett v. State, 50 Tex.Cr.R. 538 , 99 S.W. 556 (1907); McIlveen v. State, 559 S.W.2d 815 (Tex.Cr.App.1977), but no effort was made by the State to call the jurors or other witnesses to rebut that presumption at the time of the perfection of the bill of exception or later on a hearing on a motion for new trial.
This then is the record before this court on which we must pass upon appellant’s contention. Since the presumption of harm was not rebutted, there is no choice but to reverse the convictions.
I concur in the result reached.
. Said Article 623 reads:
“The Court may adjourn veniremen to any day of the term. In felony cases when jurors have been sworn in a case, those so sworn shall be kept together and not permitted to separate until a verdict has been rendered or *831 the jury finally discharged; provided, however, that when such jurors are kept overnight, facilities shall be provided for female jurors separate and apart from the facilities provided for male jurors, and such juries shall be permitted to separate to the extent of housing female jurors separate and apart from male jurors.”
. Said Article 668 reads:
“After the jury has been sworn and impaneled to try any felony case, they shall not be permitted to separate until they have returned a verdict, unless by permission of the court, with the consent of the attorney representing the State and the defendant, and in charge of an officer.”
. Where the separation was momentary and no opportunity existed for anyone to communicate with the jury, the separation was not prejudicial. Sheffield v. State, 151 Tex.Cr.R. 334 , 206 S.W.2d 1016 (1948); Austin v. State, 375 S.W.2d 308 (Tex.Cr.App.1964).
. We are not here confronted with a question of whether the appellant consented to the separation of the jury or whether the record reflects such consent. See and cf. Romero v. State, 458 S.W.2d 464 (Tex.Cr.App.1970); Rhynes v. State, 479 S.W.2d 70 (Tex.Cr.App.1972); Green v. State, supra.
. The deceased was shown to be a peace officer.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9666562. Public record. Not legal advice.