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
ONION, Presiding Judge,
concurring on State’s Motion for Rehearing.
The opinion on original submission should be withdrawn. After further study and reflection, I agree that no reversible error is presented by the jury separation question. I reach this conclusion, however, *227 on a different basis than the majority on rehearing.
Article 35.23, V.A.C.C.P., gives the trial court the discretion to permit the jurors to separate in a felony case until the court has given its charge to the jury. After receiving the charge, the jury “shall be kept together” until a verdict is rendered or until the jury is finally discharged. Once the charge is given, Article 35.23, supra, allows the jury to separate only by permission of the court and with the consent of the parties. 1
The provisions of Article 35.23, supra, are mandatory. Green v. State, 510 S.W.2d 919 (Tex.Cr.App.1974); Goodall v. State, 501 S.W.2d 342, 343 (Tex.Cr.App.1973); Wells v. State, 634 S.W.2d 868, 870 (Tex.App.—Houston [1st Dist.] 1982) pet. ref’d.
The statute requires reversal if the jury is allowed to separate after the court’s charge has been given unless the defendant consents. McDonald v. State, 597 S.W.2d 365, 367 (Tex.Cr.App.1980), cert. den. 449 U.S. 1010 , 101 S.Ct. 564 , 66 L.Ed.2d 467 (1980); Skillern v. State, 559 S.W.2d 828 (Tex.Cr.App.1977). See also Rhynes v. State, 479 S.W.2d 70 (Tex.Cr.App.1972).
It is the defendant’s burden to insure that the record shows that he or she did not consent to the separation. McDonald v. State, supra, at 367; Green v. State, supra; Burgett v. State, 646 S.W.2d 615, 619 (Tex.App.-Fort Worth 1983); Taylor v. State, 636 S.W.2d 600 (Tex.App.—El Paso 1982). “Where the defendant has established in the record that a separation occurred without his consent, the mandatory language of Article 35.23 raises a presumption of harm which the State must then seek to rebut." Taylor v. State, 636 S.W.2d, supra, at 602. See also Reed v. State, 595 S.W.2d 856, 857 (Tex.Cr.App.1980); Goodall v. State, 501 S.W.2d 342, 343 (Tex.Cr.App.1973); Decker v. State, 570 S.W.2d 948, 950, n. 7 (Tex.Cr.App.1978); Trevino v. State, 565 S.W.2d 938, 940 (Tex.Cr.App.1978); Skillern v. State, supra.
In order to afford the State an opportunity to rebut this presumption of harm, the issue of improper jury separation must be raised during trial or in a motion for new trial. Green v. State, supra, at 922; McDonald v. State, supra, at 367; McIlveen v. State, 559 S.W.2d 815, 818-819, n. 1 (Tex.Cr.App.1977); Taylor v. State, supra, at 602.
After the charge was given to the jury in the instant case and the opening arguments of the State and defense at the guilt stage of the trial had been completed, the court declared a recess telling the jury to go to the jury room. It appears that during this recess the claimed separation took place. Immediately after the recess the record reflects:
“THE COURT: Are y’all ready?
“MR. PRICE (Defense Counsel): At this time, Curtis Paul Harris, the defendant in Cause Number 16,430 moves for a mistrial for reason that the jurors have separated in violation of 3523, The Code of Criminal Procedure; there having been no waiver of separation provision.
“THE COURT: Emphatically denied. The Court was in attendance with the jurors just for convenience for the ladies who are members of this jury. So when they leave tonight, the Courthouse to *228 journey to the motel, they didn’t have to walk to a dark parking lot and pick up their vehicles. So, the Court instructed them to go there, proceeded with them to the lot, and brought the cars back here. So, your motion is overruled.
“MR. PRICE: Further, your Honor, for the record, please, may the record reflect that the Court is not the officer in charge of the jurors.
“THE COURT: Whatever, your motion is emphatically denied.” 2
Appellant made the jury separation one of the grounds set forth in his motion for new trial, alleging his lack of consent.
Appellant testified that he had not consented to the jury separation nor had he been given an opportunity to consent or not to consent to the separation. The State did not cross-examine. Appellant’s counsel, Michael McDougal, testified:
“As far — I’ll just reiterate what I just said and make that my testimony that I was never given the opportunity to consent or not consent to their being allowed to separate and leave the courtroom, for any purpose, whether it was to move their cars late at night or not. And, we did not consent to that. And I think Mr. Price (defense counsel) has already made his statement back when it happened.” The record then reflects:
“THE COURT: And the Court made itself perfectly clear at that time, and went on the record at that time, and will go on the record for purpose of the Motion for a New Trial, at this time, in saying that I accompanied the jurors to— from the Courthouse to the County parking lot, especially the Court being concerned, at that time, with lady-jurors, who did — would have to walk during the night to their cars after we finished that night. And the court being concerned for the welfare of the lady-jurors, as well as the jurors in general, accompanied the jurors to the County parking lot, saw them to their cars, and the return of the cars to parking under the Courthouse and return here as a group. And the Court is positive that none of the jurors had access to any information or contact with other persons during this process.
“MR. McDOUGAL: Did the Court ride in the cars with each of them?
“THE COURT: That’s a mathematical impossibility, as counsel well knows.
“MR. McDOUGAL: Is the Court aware of whether or not any of the jurors listened to their radios on their way back to the Courthouse?
“THE COURT: No, the Court’s not aware of that.
“MR. McDOUGAL: Is the Court aware of where the gentlemen, men-jurors, were when the ladies were moving their cars?
“THE COURT: Yes, they were moving their cars, too.
“MR. McDOUGAL: You didn’t — the Court did not go with the men to move their cars? They accompanied—
“THE COURT: The Court accompanied all of them down there.
“MR. McDOUGAL: To each of then-cars?
“THE COURT: Yes.
“MR. McDOUGAL: They were all parked in the same place?
“THE COURT: Yes, in the County parking lot.
“MR. McDOUGAL: All twelve jurors?
“THE COURT: Were parked in the County parking lot, except, I think, Thomas Vittrup, his was not there. He parked over in his Dad’s — about a block from here, but they all individually drove their cars back over here. Anyway, ground thirty-two is denied ground thirty-three is denied, ground thirty-four is denied, ground thirty-five is denied_ All right. Be denied and thirty-six is denied.
“MR. BRYAN (Prosecutor): Your Honor, could we have ... as to the separation of ... that was late in the evening? ...
*229 “MR. BRYAN: It was late in the evening?
“THE COURT: Yes, it was late in the evening.
“MR. BRYAN: After working hours?
“THE COURT: After normal working hours, it certainly was. We agreed to stay late that night.
“Ground thirty-seven is denied. Okay, Curtis, would you stand?”
No other effort was made by the appellant or the State to show the circumstances under which the claimed separation took place. The jurors were not called, although juror Vittrup was an earlier witness at the hearing on the motion for new trial on a different ground.
As earlier noted, it was clearly the burden of the appellant to establish (1) that a separation as contemplated by Article 35.-23, supra, took place, and (2) that he did not consent to such separation. From the record it appears that appellant clearly established that he and his counsel had not consented to any separation but, outside the later statements of the trial judge, it was not established by appellant that a separation did in fact take place. Thus the burden did not shift to the State to rebut any presumption of harm.
Immediately after the appellant had offered evidence as to his lack of consent the trial judge, sua sponte, began narrating facts into the record concerning the jury “separation,” the moving of the vehicles and his role as jury shepherd. Thereafter there was a colloquy including questions and answers and other volunteered statements by the judge. It is to be observed that the trial judge was never called as a witness by either the State or the appellant nor does the record show that the judge was sworn.
Article 38.13, V.A.C.C.P., in effect at the time of appellant’s trial, reads:
“The trial judge is a competent witness for either the State or the accused, and may be sworn by the clerk of his court and examined, but he is not required to testify if he declares that there is no fact within his knowledge important in the case.”
The remarks and statements of the trial judge are not evidence. Benson v. State, 44 S.W. 168 (Tex.Cr.App.1898); Plumlee v. State, 293 S.W. 1108, 1109 (Tex.Cr.App.1927). A judge presiding may testify as a witness in the case, but to be eligible to do so he must be sworn as any other witness. Wilcox v. State, 146 Tex.Cr.R. 443 , 176 S.W.2d 186,187 (1943); Valentine v. State, 6 Tex.App. 439 (1879).
In Great Liberty Life Insurance Company v. Flint, 336 S.W.2d 434 (Tex.Civ.App.—Ft. Worth 1960), a civil case, the record shows that trial the judge, who was hearing the motion for new trial, said: “Let the record show that the court did not talk to anybody on that date about the case.” The Court of Appeals wrote:
“We think appellant’s motion for new trial should have been granted. If we could consider Judge Young’s statement as testimony in the case a different situation would be presented. But we do not think his statement can be so considered. It is well settled that the Judge presiding at a trial may become a witness in the case. 44 Tex.Jur. p. 991, Sec. 45. ‘However, in assuming the role of a witness he must do so in accordance with the same rules of procedure that apply to any other witness; namely, to be sworn in the manner and form as required by law, unless such oath be waived by the parties, and be examined and re-examined by the parties to the suit touching his knowledge of the matters in reference to which he may testify.’ Conyer v. Burckhalter, Tex.Civ.App., 275 S.W. 606, 613 , reversed on other grounds, Burckhalter v. Conyer, Tex.Com.App., 9 S.W.2d 1029 .”
In Duvall v. Sadler, 711 S.W.2d 369, 375 (Tex.App.-Texarkana 1986) (no writ hist.), it was held that the testimony of the judge presiding at the trial may not be considered by the reviewing court as probative evidence going to the merits of the case in light of Rule 605 of the Texas Rules of Evidence, adopted by the Supreme Court of Texas effective September 1, 1983. Said rule provides that the judge presiding at the trial may not testify in that trial as a *230 witness and that no objection need be made in order to preserve the point. Duvall made clear that Rule 605 was taken from Federal Rules of Evidence, Rule 605, which was identical in wording, and which had been described as a broad rule of incompetency. 3
Texas Rules of Criminal Evidence, Rule 605 (Competency of Judge as Witness) (effective Sept. 1, 1986), also provides:
“The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.”
Conceding that the above rule adopted by this Court was not in effect at the time of the hearing on the motion for new trial, and conceding the rule in a civil case was not necessarily applicable, the statements and remarks of the trial judge were not evidence in this criminal case. Plumlee v. State, supra; Benson v. State, supra. Reliance therefore by the appellant upon such statements to show a jury separation is misplaced. Without such evidence the burden never shifted to the State to rebut the presumption of harm, and the court did not err in overruling the motion for new trial on this ground.
Even if it can be argued that although the judge was an unsworn witness, called neither by the State nor the appellant, the failure to object waived any statutory requirements, see and cf. Beck v. State, 719 S.W.2d 205 (Tex.Cr.App.1986), and that the statements were evidence, then it appears that the evidence was not sufficient to show a jury separation as contemplated by the statute and amounting to reversible error. See Tex.Jur.3rd, Vol. 23, Criminal Law, § 2739, pp. 394-396.
The majority finds that “the State, through the statements of the trial judge, met its burden of refuting the presumption of harm.” Since the presumption of harm was never raised, I do not agree with the majority for the reasons set forth above. I do, however, concur in the result reached. 4
. Article 35.23, V.A.C.C.P. (Jurors May Separate), reads:
“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 parly. 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 permitted to separate, the court shall first give the jurors proper instructions with regard to their conduct as jurors when so separated.”
. It does not appear that the parties were notified of the moving of the vehicles by the jurors nor was their consent sought.
. In Duvall the court noted that the notes of the Federal Advisory Committee on Proposed Rules stated in part as to Fed.R.Evid. 605:
“The solution here presented is a broad rule of incompetency only as to material matters, leaving the matter to the discretion of the judge, or recognizing no incompetency. The choice is the result of inability to evolve satisfactory answers to questions which arise when the judge abandons the bench for the witness stand. Who rules on objections? Who compels him to answer? Can he rule impartially on the weight and admissibility of his own testimony? Can he be impeached or cross-examined effectively? Can he, in a jury trial, avoid conferring his seal of approval on one side in the eyes of the jury? Can he, in a bench trial, avoid an involvement destructive of impartiality?”
. Any trial judge is ill-advised to assume the role of jury shepherd, even for noble purposes. A judge is prohibited from commenting upon the weight of the evidence or from making any remark or conducting himself in any way calculated to convey to the jury his opinion of the cases. McClory v. State, 510 S.W.2d 932 (Tex. Cr.App.1974); Hay v. State, 472 S.W.2d 157 (Tex.Cr.App. 1971). See Article 38.05, V.A.C.C.P.
Article 36.24, V.A.C.C.P., provides:
“The sheriff of the county shall furnish the court with a bailiff during the trial of any case to attend the wants of the jury and to act under the direction of the court. If the person furnished by the sheriff is to be called as a witness in the case he may not serve as bailiff.”
The record in the instant case is silent as to why a bailiff was not available to act as jury shepherd.
Trial judges can avoid error if consent from the parties is first obtained before the jurors are permitted any action which might constitute a separation. See Jones v. State, 47 Tex.Cr.R. 161 , 83 S.W. 198 (1904).