holding that homicide victim’s body must be found and identified
How later courts described this case
- holding that homicide victim’s body must be found and identified
- "[Appellant] contends that the trial court erred by permitting evidence of an inadmissible extraneous offense to be placed before the jury."
- “If a State’s witness has no complicity in the offense for which an accused is on trial, his or her testimony is not that of an accomplice witness whatever may have been his complicity with the accused in the commission of other offenses.”
- noting “[none of the judge’s] statements were refuted”
Written by the judges who cited it.
The opinion
MILLER, Judge,
dissenting.
I dissent to the majority’s conclusion that based upon the facts of this case, the jury separation requires reversal.
Certainly under Art. 35.23, V.A.C.C.P., reversal of the case is required if, after the charge is given, the jury is allowed to separate without the defendant’s consent. See McDonald v. State, 597 S.W.2d 365 (Tex.Cr.App.1980), and cases cited in majority at p. 212. Also, the defendant has the burden to make sure that the record reflects that he did not consent to the separation. McDonald, supra, at 367 , citing Green v. State, 510 S.W.2d 919 (Tex.Cr.App.1974). If the defendant does sustain his burden, then the State must show that the separation did not result in harm to the defendant. Sk illern v. State, 559 S.W.2d 828 (Tex.Cr.App.1977).
I cannot, however, accept the majority’s conclusion that the State failed to rebut the presumption of harm in this case, therefore mandating a reversal. As proper rebuttal evidence, the record contains statements by the trial court showing, as I read them, the following:
1. The trial judge accompanied the jurors as a group from the courthouse to the parking lot.
2. The trial court accompanied the jurors to each of their cars.
3. The trial court saw the jurors move their cars en masse from where they were parked to the courthouse.
4. The trial court was “positive that none of the jurors had access to any information or contact with other persons during this process.” Maj. at p. 211.
These facts show that the jurors did not make any outside contacts while moving their cars in the presence and view of the trial court.
The majority opinion, at p. 213, states that the record shows that the trial court “was not with all the jurors at all times during the separation and certainly not with juror Vittrup, who went to ‘his Dad’s.” With all due respect, the record does not support this holding. On the contrary, the trial court states that he “accompanied all of them” (jurors) to each of their cars. No exception was made to this statement regarding juror Vittrup, who’s car was parked “about a block from here [the court room]”. The record is devoid of the proximity of Vittrup’s “Dad’s” to the county parking lot. In the face of the trial judge’s statements, however, absent any refutation, we must assume that the trial court also accompanied him to his car. In sum, there is simply nothing in the record showing that the trial judge was not with any juror during the time the cars were moved.
With the record viewed as it actually appears, there is no evidence that the jurors had any contact with other persons, nor that appellant was harmed in any way by the separation. Thus, the State, through the trial judge’s gratuitous statements, has met its burden of rebutting the presumption of harm.
One brief pause must be made to separate the facts of this case from those presented in Skillem, supra, which at first glance may appear similar. In that case, the bailiff and another witness testified that they had not seen the jurors speak to anyone, but clearly stated they had not had the jurors in sight at all times during the separation. This Court held that the testimony of a person under these conditions merely to the effect that he did not see a juror speak to anyone in a situation where he did not see the juror at all times, standing alone, constituted no evidence that such speaking did not occur. Absent sufficient evidence, the State had failed to sufficiently rebut the presumption of harm.
*222 In the instant ease, the trial court did not state that he did not see anyone speak to the jurors. Rather, he testified that he was “positive” that none of the jurors had access to adverse information. Also, the trial court did not testify that he did not see some or one of the jurors at any time during the separation. Rather, he testified that he accompanied all of them during the entire separation. None of these statements were refuted. With these distinctions, Skillem, supra, is not strictly applicable to this case.
Because the majority fails to correctly characterize the facts, I dissent to its treatment of this case.
W.C. DAVIS, J., joins.