Harris v. State

TEAGUE, Judge,

dissenting.

On original submission, in a 6-3 decision by this Court, in what might be described as an opinion that was unpopular with the masses, this Court, speaking through its Presiding Judge, reversed the trial court’s judgment and sentence because “the trial court erred in allowing the jurors in this death penalty case to separate after the charge was given at the guilt stage of the trial, and before a verdict was reached,” and because the State did not rebut the presumption of harm the conviction had to be reversed. Today, however, a majority of this Court, on State’s motion for rehearing, speaking through Judge Miller, does a complete flip-flop, and holds that the State, “through the trial judge’s ‘testimony,’ has *231 met its burden of rebutting the presumption of harm.” (Page 211 of majority opinion.) Without a doubt, this opinion will probably become popular with the masses, notwithstanding the fact that it causes this Court to lose some of its judicial independence. Cf., however, Woodward v. State, 668 S.W.2d 337 (Tex.Cr.App.1982).

I observe that Presiding Judge Onion, the author of the original majority opinion, has filed a concurring opinion in which he asserts that without the trial judge’s statements appellant did not establish that the jurors had separated. Judge Onion asserts that appellant may not rely upon the trial judge’s unsworn statements that he made in open court because “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.” Judge Onion lastly concludes that because the trial judge in this cause had not been sworn prior to making his statements into the record “the burden did not shift to the State to rebut any presumption of harm.” (Page 6 of Presiding Judge Onion’s concurring slip opinion.) In response to Presiding Judge Onion’s conclusion that what the trial judge stated into the record is no evidence because he was not then sworn as a witness, I must point out that just recently, in Canada v. State, 660 S.W.2d 528, 530 (Tex.Cr.App.1983), this Court held that unsworn statements of a prosecuting attorney were sufficient to place the event in the record. Also see Hicks v. State, 525 S.W.2d 177 (Tex.Cr.App.1975), in which this Court held that unsworn statements by one of the defendant’s attorneys were sufficient to place the event in the record. I find that to hold that in such a situation as occurred here that before a trial judge’s words can be treated “as placing the event in the record” he must be sworn is an affront to the judiciary of this State. I, therefore, totally and wholly disassociate myself with what Presiding Judge Onion has stated. Furthermore, I urge the reader to read Presiding Judge Onion’s opinion for the Court in Beck v. State, 719 S.W.2d 205 (Tex.Cr.App.1986), in which it was held that if a defendant failed to timely object to unsworn testimony of a fingerprint expert he waived any claim that such testimony was not properly admitted. A good rule of law still works both ways, doesn’t it? Given the record before us, it is obvious to me that everyone, including the trial judge, treated his testimony as the equivalent of sworn testimony, and to say otherwise blinks reality in the eye.

The record reflects that after one of appellant’s counsel had concluded his closing argument at the guilt stage of the trial, but before his co-counsel argued, the trial judge stated the following into the record: “Let’s take a break. [Obviously referring to the jurors:] Go to the jury room first, okay?” 1 Thereafter, one of appellant’s counsel moved for a mistrial “for the reason that the jurors have separated in violation of 3523 [sic], the Code of Criminal Procedure; there having been no waiver of separation provision.” In response to the motion, the trial judge stated the following: “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 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.” Counsel for appellant then stated: “[M]ay the record reflect that the Court is not the officer in charge of the jurors.” The trial judge responded: “Whatever, your motion is emphatically denied.” Counsel: “Thank you, your Honor.” The Court: “Are you ready to proceed?” Counsel: “Yes, your Honor.” Thereafter, co-counsel made his final closing argument on behalf of appellant. (Vol. 95, pages 1426-1428).

During the hearing on appellant’s motion for new trial, counsel for appellant who had moved for the mistrial stated to the trial judge: “Your Honor, I need to call [appellant], with respect [to his contention regarding the jurors separating without his consent]. THE COURT: Okay. [Counsel]:

*232 And myself. THE COURT: Okay. Just stay right there if you want to — the clerk will swear both of you in.” The record then reflects the following: “(Defendant and Defendant’s counsel sworn in.)” Appellant himself thereafter testified that he did not consent to the jurors separating when they did. When appellant was asked whether he had been given the opportunity to consent or not consent to the jurors separating, the trial judge interrupted and stated the following: “Don’t you [obviously referring to counsel] 2 recall, it was late in the evening; we had jurors that had their cars down on the County parking lot; that the Court went with these jurors to their cars; accompanied them together?” Counsel responded: “Could I just ask my questions and have him testify — THE COURT: Well, the Court’s just requesting that you state it correctly, not where it’s self-serving, counsel. COUNSEL: Well, the whole thing is, we didn’t consent to their being separated, or being excused for any purpose, whether it was late in the evening or not, whether they had to move their cars or not. That’s the whole point of the Motion. If the Court feels that that is correct, then I don’t object to the Court’s putting that in the record; but as far as my testimony and the defendant’s testimony goes, I would like the record to affirmatively show that we did not consent to their being allowed to do that, nor were we given the opportunity to either consent or not consent to their being allowed to do that. 3 THE COURT: Go right ahead. It’s all self-serving on your part, anyway.” Appellant himself then testified that he did not consent to the jurors separating when they did, and also testified that he was never asked whether he would consent to the separation. The prosecuting attorney did not ask appellant any questions. At this time, counsel for appellant stated: “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 [co-counsel] has already made his statement back when it happened. 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 4 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. [Counsel for appellant]: Did the Court ride in the cars with each of them? THE COURT: That’s a mathematical impossibility, as counsel well knows. [Counsel]: 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. [Counsel]: 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. [Counsel]: 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. [Counsel]: To each of their cars? THE COURT: Yes. [Counsel]: They were all parked in the same place? THE COURT: Yes, in the County parking lot. [Counsel]: All twelve jurors? THE COURT: Were parked in the County parking lot, except, I think, Thomas Vittrup, his *233 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. [Counsel]: I reurge that the testimony of the juror, Thomas Vittrup, (fall in) thirty-five, your Honor. THE COURT: All right. Be denied and thirty-six is denied. [Counsel]: Thirty-seven? MR. BRYAN (The prosecuting attorney): Your Honor, could we have — as to the separation of— that was late in the evening. THE COURT: And thirty — THE COURT: Yes. [Counsel for appellant]: What? 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.” (Volume 97, pages 18-29, inclusive).

Prior to the enactment of Art. 35.23, V.A.C.C.P., once jurors were sworn, they had to be kept together and not permitted to separate until a verdict had been rendered or the jury finally discharged, unless by permission of the court, with the consent of each party and in charge of an officer. See Art. 623, 1925 Code of Criminal Procedure. Now, however, it is only when the charge to the jury has been given that it is mandatory that the jury must be kept together and not permitted to separate except to the extent of housing female jurors separate and apart from male jurors. With this exception, the jurors cannot separate from each other until a verdict has been rendered or the jury finally discharged, unless the separation occurs with the consent and permission of the trial judge and each party. See Art. 35.-23, V.A.C.C.

The majority opinion correctly holds that appellant clearly established a violation of the statute because he did not personally consent to the separation of the jurors. “[T]he burden [then] shifted to the State to rebut the presumption of harm.” (Page 2 of majority slip opinion.)

It is at this point that I must part company with Judge Miller, the author of the majority opinion.

It is obviously clear from this record that what happened is that the trial judge, believing that the area around the Montgomery County Courthouse had become a “high crime” area, was concerned about the safety of the jurors. And there is nothing wrong with this type concern; in fact, it is highly commendable and should be applauded. It speaks well for an outstanding member of our trial judiciary. The problem though is that in his concern about the safety and welfare of the jurors the trial judge apparently, but probably inadvertently, forgot about the provisions of Art. 35.-23, supra. When it was brought to his attention that the provisions had not been complied with, the record makes it obviously clear that he then became irked at counsel for appellant invoking what to him was probably a mere and true “technicality” in our law. Whether one wishes to characterize unlawful jury separation as a “technicality” or not makes no difference; it is nevertheless the law and will remain the law until changed by the Legislature.

Did the State overcome the presumption of harm that occurred through the unlawful separation of the jurors? The majority opinion says it did through the “testimony” of the trial judge. I disagree.

It is clear that in this instance the trial judge, acting as the unofficial jury shepherd accompanied the jurors as a group from the courtroom to the County parking lot, where he stationed himself thereon and watched the jurors go in the direction where their respective vehicles were parked. Prom this record, it is obvious to me that from this point until all of the jurors reassembled in the courtroom, we are not apprised as to what took place with each juror during the interim. Although it would have been an easy thing to do, the State did not seek to have each of the jurors testify. When it is not shown that an individual has another individual in sight at all times, it is difficult, if not impossible, for me to understand how the first individual can unequivocally state that *234 the other individual had no communication whatsoever with another individual. In this instance, the trial judge never accounted for the activities of the jurors from the moment he saw the jurors head in the direction of their vehicles until they reassembled either at or in the courthouse. To say and hold to the contrary is simply to blink reality in the eye and to give meaning to something that does not exist. Again, the only way that the State could have rebutted the presumption of harm in this instance would have been to have had each of the jurors testify at the hearing on appellant’s motion for new trial. For reasons not reflected in this record, the prosecuting attorney chose not to call any of the jurors to testify on this issue, notwithstanding that one of the jurors actually testified on another issue. “It may have been relatively easy to rebut the presumption of harm ..., but no effort was made by the State to call the jurors ... to rebut that presumption [at] the hearing on [the] motion for new trial.” Skillern v. State, 559 S.W.2d 828, 833 (Tex.Cr.App.1977) (Onion, Presiding Judge, concurring opinion.)

The facts before us and the facts that were before this Court in Skillem, supra, are indistinguishable. Again, even relying upon the trial judge’s testimony, there is nothing in this record to reflect or indicate that from the moment the jurors left the courtroom until they returned either to the courthouse or the courtroom the trial judge could unequivocally state that no juror during the interim was not subject to any outside influences. In Skillem, supra, one witness testified that he did not see any of the jurors speak to anyone. The bailiff also testified that he did not see any of the jurors speak to anyone. Nevertheless, and understandably, because they were not present at all times with the jurors during their absence, the witnesses could not state that the jurors did not have any contacts with outside persons. This Court in Skil-lem, supra, before reversing those death penalty convictions, stated: “Testimony by a person not proven to have had a juror within his sight at all times during a separation merely to the effect that he did not see a juror speak to anyone is analogous to testimony by a juror that he did not hear certain misconduct in the jury room. Such ‘did not hear’ testimony of a juror as to misconduct, standing alone, has been held by this Court to constitute ‘no evidence’ that such did not occur. (Citations omitted.)” (830).

Given what is before us in the record of appeal, to attempt to distinguish what occurred in Skillem, supra, with the following statements is ludicrous: “In the instant case, 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 lost sight of 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 ...” The main flaw that I find in Judge Miller relying upon these statements in order to hold that the presumption of harm was rebutted lies in this question that cannot be answered: If it is true that the trial judge accompanied all of the jurors to the County parking lot and thereafter, while standing on terra firma, observed each of them get into his or her respective vehicle and then observed each of them, including the one who parked his vehicle at another location, get inside of their vehicles and drive their vehicles “under the courthouse,” how is it humanly possible for the trial judge to have seen what occurred after the jurors drove their respective vehicles “under the courthouse”? (See Vol. 97, at page 24-25, where the trial judge stated that he saw “the return of the cars to parking under the courthouse and return here [obviously referring to the courtroom] as a group.”)

Without more than what is in this record, it is impossible to unequivocally state that at all times there was noninterference with all of the members of the jury by someone outside their number. The State has simply failed to rebut the presumption of harm.

It should be easily recognizable by all that the majority opinion’s holding will un *235 doubtedly be popular with the prosecuting attorney, the trial judge, the jurors, and probably a majority of the citizens of Montgomery and Brazos Counties who happen to be familiar with this case. Our decisions, however, should never rest on what might be popular with the masses: “[W]e do not decide cases on the basis of what decision we might make would be the most popular one, for if we did we would shortly cease to exist as an independent judiciary, which we are, and also cease to exist as an equal to the executive and legislative branches of our state government, which we are.” Pierson v. State, 614 S.W.2d 102, 109 (Tex.Cr.App.1981) (Teague, J., concurring opinion.) Because I, for one, am not ready to strip this Court of being an independent body politic of our State Government and thus put this Court on the road to being simply a Court that hands down popular decisions that might be acceptable to the masses, I respectfully dissent to the majority opinion’s holding that the State overcame the presumption of harm that was established by appellant. It is only by a distorted reading of this record that it can be said that it did, which I decline to do.

. The record does not reflect how long "the break” lasted.

.I make this statement based upon the fact that because appellant had previously been assessed the death penalty, he surely did not accompany the trial judge to the parking lot.

. Please note that when counsel made these statements, he had previously been sworn.

. Emphasis added.