Tong v. State

JOHNSON, Judge,

dissenting, in which MANSFIELD and WOMACK join.

I respectfully dissent as to the majority’s disposition of point of error number one. Appellant asserts that he was assured by the trial judge that he would be given unlimited peremptory challenges, and the record confirms this. See ante, at 709 n.2. However, near the conclusion of voir dire, the judge changed his mind and refused to grant any further peremptory challenges unless defense counsel first attempted to get those jurors excused for cause. He subsequently granted the defense only one additional peremptory challenge.

The majority dismisses this point of error because it is “inadequately briefed.” Although acknowledging that appellant is not prohibited from making “a novel argument for which there is no authority directly on point,” the majority goes on to state that “appellant must ground his contention in analogous case law or provide the Court with the relevant jurisprudential framework for evaluating his claim.” Ante, at 710.

In the instant case, it appears to be less that appellant’s argument is novel than that the specific fact pattern is novel. While the appellant has cited no analogous case law on this issue and the briefing on this point is marginal, I believe that appellant has provided us with a “relevant jurisprudential framework” for evaluating his claim.

Appellant argues in relevant part:

Defense counsel ... had freely used their (supposedly) unlimited strikes on panelists they would have challenged for cause had they been operating under the usual restrictions, so that, to their complete surprise, they found themselves with no strikes left to embark upon the suddenly old-fashioned jury selection.

*716 Being denied the strikes to which they were statutorily entitled, Appellant’s attorneys were forced to accept Mrs. Sullivan as the eleventh juror when she was unacceptable; even if she were not vulnerable to a challenge for cause (which counsel conceded) striking her would have been the classic example of the intelligent use of a peremptory challenge.

Had counsel proceeded from the first with the traditional limitations he could not complain if he had run out of strikes by the time he reached Mrs. Sullivan; those strikes would have been expended with full awareness of the risks. The trial court’s abrupt return to the traditional voir dire procedure would not have harmed Appellant if the court had restored the wasted strikes. The refusal to do so was unnecessary and was clearly an abuse of discretion because it denied his Appellant the right to his counsel’s intelligent (fully informed) use of peremptory challenges, tainting his jury panel with the unacceptable juror and denying Appellant his due process right to a fair jury selection procedure.

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The “procedure followed” was not the trial court’s usual “unlimited defense strikes” or the “old-fashioned way.” It was, instead, the change from one procedure to the other without putting defense counsel on the proper footing to exercise peremptory challenges intelligently. What was an intelligent use of strikes under the first procedure turned out to be the total eradication of any possibility for the intelligent use of strikes after the trial court changed the rules.

Appellant asks for relief from this abuse of discretion which denied him his federal and state constitutional rights to the effective assistance of counsel, as well as due process and due course of law. Sixth Amendment United States Constitution; Art. I Sec. 10, Texas Constitution. He has shown the necessary harm and is entitled to a new trial.

The alleged harm is not from the nature of the individual procedures but from the sudden and unexpected change in procedure. In sum, appellant argues that he relied, to his detriment, on the trial judge’s assurance that he would have unlimited peremptory strikes. Although such a claim of detrimental reliance does not appear often in criminal jurisprudence, 1 we have dealt with it occasionally. See, e.g.., Taylor v. State, 10 S.W.3d 673, 677, 681-85 (Tex.Crim.App.2000) (generally discussing how extent of reliance on old rule should factor into analysis in determining whether new rule of state law should be given retroactive effect,); Cf. Ex parte Moody, 991 S.W.2d 856 (Tex.Crim.App.1999); Broddus v. State, 693 S.W.2d 459 (Tex.Crim.App.1985). 2

On this basis, I believe that appellant has adequately briefed this point of error and that we should address it on the merits. Alternatively, given the trial judge’s *717 actions at trial and the fact that this is a capital case, I would order re-briefing on this point. See Tex.R.App. P. 38.9(b). I dissent.

. The concept of detrimental reliance comes up frequently in contract disputes, where it is usually phrased in terms of equitable estop-pel. See 34 Tex. Jur.3d Estoppel §§ 10 & 18 (1984).

. Moody and Broddus both dealt with a defendant’s plea that was entered with the defendant’s understanding, based on erroneous assurances made by the trial judge, prosecutor and/or defense counsel, that a particular condition would be fulfilled. Moody, 991 S.W.2d at 857 ; Broddus, 693 S.W.2d at 460 . We granted relief in both cases on the basis that, because the condition could not be fulfilled, the defendant’s plea was not entered voluntarily or knowingly. Moody, 991 S.W.2d at 858-59 ; Broddus, 693 S.W.2d at 461 . Although not explicitly stated, the underlying rationale for these cases appears to be that the defendant's plea was made in reliance on the erroneous assurances made to him, to his detriment.