# Garza v. State

> Court of Appeals of Texas · April 1, 1999 · 988 S.W.2d 352

URL: https://www.frixlaw.com/law-library/cases/9770174

## Case

- **Full name:** Dionicio Vega GARZA, Appellant, v. the STATE of Texas, State
- **Court:** Court of Appeals of Texas
- **Decided:** April 1, 1999
- **Citations:** 988 S.W.2d 352; 1999 WL 95685
- **Precedential status:** Published
- **Opinion:** Dissent by Dauphinot
- **Judges:** Livingston, Dauphinot, Holman
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed by Garza v. State, 1999 Tex. Crim. App. LEXIS 141 (1999).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9770174

## Opinion text

LEE ANN DAUPHINOT, Justice,
dissenting.
I respectfully dissent to the majority’s conclusion that voir dire begins when the lawyers read the jury questionnaires, and that a request for a jury shuffle after reading the questionnaires comes after voir dire has begun and therefore is untimely.
SUMMARY
(1) Article 35.11 provides an absolute right to timely shuffle the jury panel.
(2) This right inures to either the State or the defendant.
(3) A demand to shuffle is timely if made before voir dire begins.
(4) In a non-death penalty case, voir dire begins when the prosecutor is called on and begins to speak.
(5) There is no authority for the position that non-death penalty voir dire begins when either side views the answers to juror questionnaires.
(6) The trial court properly granted the State’s demand for a shuffle.
WHEN DOES VOIR DIRE IN A NON-CAPITAL CASE BEGIN?
The sole issue before us is when voir dire begins in a non-capital case for the purpose of cutting off the right to demand a jury shuffle. 1 As both the code of criminal procedure and case law make clear, the rules differ depending on whether the ease is a capital case or a non-capital case.
The majority relies on Davis v. State. 2 Davis is distinguishable from the case now before us because Davis involves the appeal of a death-penalty case. The case now before us does not. The court of criminal appeals even made this distinction in Davis. As Presiding Judge McCormick pointed out, when voir dire begins in a capital case is set out in article 35.17 of the code of criminal procedure, which reads:
1. When the court in its discretion so directs, except as provided in Section 2, the state and defendant shall conduct the voir dire examination of prospective jurors in the presence of the entire panel.
2. In a capital felony case in which the State seeks the death penalty, the court shall propound to the entire panel of prospective jurors questions concerning the principles, as applicable to the case on trial, of reasonable doubt, burden of proof, return of indictment by grand jury, presumption of innocence, and opinion. Then, on demand of the State or defendant, either is entitled to examine each juror on voir dire individually and apart from the entire panel, and may further question the juror on the principles propounded by the court. 3
Thus, article 35.17 contemplates that: the judge in a capital case (unlike the judge in a non-capital case) is authorized to propound questions concerning “principles as applicable to the case on trial.” In a capital case, where the venire has been seated in the order they mil be examined and the defendant has been afforded an opportunity to request a shuffle, the voir dire commences when the trial judge begins his examination of the panel.
In the case before us, appellant presented his motion to shuffle the names of the venire not only after the trial court had conducted the initial examination per Article 35.17(2), but also after some of the members had been dismissed from service due to pretrial publicity and the remaining venire had been excused from the courtroom with specific instructions of when *359 each member was to return for individual examination. Appellant’s motion was therefore untimely and the trial court properly overruled it.... 4
Voir dire in a non-capital case, however, does not commence when the judge begins his remarks. The question before us is, “When does voir dire begin in a non-capital case?” Fortunately, the court of criminal appeals has directly addressed this issue. In his concurring opinion in Yanez v. State, Judge Clinton stated that, “I would hold that voir dire examination commences when counsel for the State is recognized by the judge of the trial court for the purpose of addressing a panel of prospective jurors whose qualifications have been tested satisfactorily in accordance” with the provisions of the code of criminal procedure. 5
The court of criminal appeals later unanimously adopted Judge Clinton's concurring opinion, stating:
As earlier noted, Article 35.11, supra, is silent as to when the demand or motion to shuffle must be presented. Judicial decisions have made clear that the demand should be urged before voir dire examination begins. Today we adopt and add to Judge Clinton’s concurring opinion in Ya-nez. After the jurors have been qualified, and after the trial court has made its introductory or preliminary remarks, etc., to the jury panel for the case, we hold that the voir dire examination for the purpose of Article S5.ll, supra, begins when the State is recognized by the court to commence the voir dire examination and actually starts that examination.
If it was held otherwise, then any judge, by interspersing voir dire type questions among introductory remarks to the jury panel for the cause, could sua sponte deny a defendant his absolute right to a jury shuffle upon timely motion and render a mandatory statute meaningless.... 6
The law is clear, then, that (1) voir dire examination for the purpose of article 35.11 begins in a capital case when the judge begins voir dire of the panel, seated in the order they will be examined, and after affording the opportunity to demand a shuffle; and (2) voir dire examination for the purpose of article 35.11 begins in a non-capital case only when the State is recognized by the court to start its voir dire examination and actually starts the examination.
DOES THE TRIAL JUDGE’S DECISION TO ALLOW VIEWING OF
JUROR QUESTIONNAIRES AFFECT WHEN VOIR DIRE
BEGINS FOR THE PURPOSE OF ARTICLE 35.11?
The majority appears to hold that because there is no absolute right to view juror questionnaires before deciding whether to demand a shuffle, viewing the questionnaires cuts off the right to demand a shuffle. The majority concludes that Davis establishes the “unmistakable principle” that a trial court is not permitted “to let the parties evaluate the information gleaned from juror information cards or biographical questionnaires before deciding whether to request a venire shuffle.” 7 I respectfully suggest that this rule can hardly be unmistakable when the majority declares that a great number of trial judges, the entire 1982 Dallas Court of Appeals, and I are mistaken in our interpretation of article 35.11. 8
The majority relies on Davis to support its position that a party must demand a shuffle not only before voir dire begins but also before viewing juror questionnaires. The majority believes that the Davis court changed existing law when it stated:
Following Alexander, we hold that because it was not the intent of the Legislature to have the names of the venire shuffled *360 based upon information obtained during voir dire, so too it was not the intent of the Legislature to base the shuffle on information gleaned from juror information cards and/or biographical questionnaires. 9
The majority concludes, “Plainly, this holding is the antithesis of the court of appeals holding in Holman, seven years earlier.” 10 I cannot agree.
The court of criminal appeals in Davis dealt only with the issue of whether the trial judge was required, to allow the defendant to review the juror information cards and his questionnaires before deciding whether to demand a shuffle. The court held that the trial court was not required to allow the defendant to view the juror information prior to requesting a shuffle. Having addressed the issue of the defendant’s entitlement to the juror information, the court then addressed the separate issue of whether his request for a shuffle was timely based on whether his request was made prior to the commencement of voir dire. If the viewing of juror questionnaires makes a request for a shuffle untimely, then the Davis' court’s entire discussion of when voir dire begins is unnecessary. Obviously the issue of a defendant’s entitlement to juror information and the issue of whether a request to shuffle is timely are two separate and distinct-issues.
There is nothing to suggest that the court of criminal appeals in Davis intended to change well-established law. If the court of criminal appeals had intended to change existing law in Davis, then the court presumably would have mentioned the change in some case in the ten years since Davis. I find no such case. Instead I find cases reiterating the generally accepted rule regarding jury shuffles. For example, in 1992, three years after Davis, the court of criminal appeals stated, “We have held many times that a defendant has the absolute right to a shuffle of the jury panel, pursuant to Article 35.11.” 11 And in 1993 the court again stated, “A request is timely if made prior to commencement of voir dire.” 12 The court did not say that a request is timely if made prior to commencement of voir dire and prior to viewing the juror questionnaires.
Additionally, article 34.04 of the code of criminal procedure requires that a defendant in a capital case in which the State seeks the death penalty be provided a copy of the names of the persons summoned as members of the venire. 13 The court of criminal appeals has recognized that this provision allows the defendant to investigate the prospective jurors:
While we may agree with appellant that the two day period for examination of juror lists enunciated in Article 34.04, supra, provides little opportunity in urban counties for investigation of prospective jurors, we must find that the trial court did comply with the letter of the article. This Court is not the legislature. Our duty is to read and apply the law, not write it. Until the legislature deems it necessary to amend Article 34.04, supra, and provide some meaningful review of jury lists for defendants in urban counties, two days notice, as was given in the instant case must suffice. 14
This language from a 1991 case directly contradicts the position adopted by the majority in this case.
In felony cases in many large counties, juror questionnaires are filled out in a central jury room or even sent to prospective jurors, who are instructed to bring the completed questionnaire to the central jury room at the juror’s first appearance. The questionnaires are copied and distributed to the lawyers before the panel ever arrives at the *361 courtroom. A trial judge may even order the lawyers to examine the questionnaires before the panel is seated in the courtroom. In a non-capital case, panels usually consist of forty-two to sixty prospective jurors. Unless questionnaires are totally meaningless, lawyers must review the questionnaires before they begin their own voir dire.
As a practical matter in these days of crowded criminal dockets and limited budgets, prospective jurors are often sent home from the central jury room after they have completed their questionnaires and instructed that the trial will not begin until the following day. Those persons not chosen for a panel during that first day are dismissed from jury service. This is the one-day, one-trial system adopted by some counties, including Tarrant County. Because a panel may not be chosen until late in the day and because there are usually questionnaire forms to be completed and copied, it is often impractical to attempt to begin voir dire on the day the panel is chosen.
While the trial judge could order the panel from the central jury room to the courtroom for the sole purpose of allowing the lawyers to view the panel seated in order (or even for the purposes of allowing viewing of the panel and also having the panel fill out the questionnaires), to do so means that other court healings must be suspended, that the defendant must be dressed in street clothes, and that the lawyers must be present to view the panel. If last-minute, pre-trial motions are being heard, there is danger that prospective jurors will inadvertently communicate with a witness or a family member of the defendant or of the complainant. There is also a danger that a prospective juror will wander into the courtroom before the hearing is finished. Because bailiffs must transport prisoners, guard them, and perform a multitude of other duties, a trial judge is often unable to station a bailiff outside the courtroom to guard the forty-two to sixty prospective jurors. Additionally, forty-two to sixty questionnaires cannot be thoroughly reviewed in only a few minutes.
Consequently, prospective jurors often do not come to the courtroom until the day after they have submitted their completed questionnaires. To prohibit a trial judge’s ordering the lawyers to examine the juror questionnaires before the panel is seated is an unwarranted intrusion on the discretion of a trial judge to conduct a trial as efficiently as possible while still protecting the rights of all concerned. To force a lawyer to choose between waiving the right to a shuffle and disobeying the trial court’s order is fundamentally unfair.
The record before us does not reveal that the trial judge ordered the lawyers to view the questionnaires. But the decision of the majority effectively restricts the trial judge’s ability to run his or her own court. If the majority opinion becomes the law of this state, a trial judge who chooses to avoid disrupting his or her docket or tainting the jury panel by requiring the panel to complete the questionnaires in the central jury room has only three choices:
(1) Require the lawyers to review the questionnaires before the panel is seated and thereby avoid wasting the time of the court and the panel, but violate the requirement that the lawyers see the panel seated in proper order before having to decide whether to demand a shuffle; 15
(2) Call the entire panel into the courtroom for the sole purpose of being stared at by the lawyers or, as in the case before us, for the additional purpose of completing questionnaires, and then have them return hours later for voir dire but withhold the questionnaires from the lawyers until the State actually begins voir dire; or
(3) Call the entire panel into the courtroom, qualify the panel, make his remarks, and then send the panel off for a few hours so the lawyers can review the questionnaires.
If the trial judge chooses the first option, he can conduct voir dire in the morning and hear witnesses in the afternoon. But, ac *362 cording to the majority, he cuts off the right to shuffle the panel. If he chooses the second or third option, he basically adds half a day to the trial. Aside from the added expense, both the second and third options are a waste of both the jurors’ and the trial court’s time. The majority denigrates the concept of expediency. Expediency does not per se trample the litigants’ rights. It may be wholly consistent with protection of the right to a fair trial.
In the case before us, the trial judge chose to bring the panel to the courtroom to fill out the questionnaires. The trial judge then dismissed the panel until after lunch. Both prosecution and defense counsel received copies of the filled-in questionnaires at 11:00 a.m. When defense counsel returned to court at 12:20 p.m., he learned that the State was requesting a shuffle and that the bailiffs were performing the shuffle outside the presence of Appellant. 16 He objected only that because the State had examined the questionnaires, a shuffle was untimely under Davis. The trial judge pointed out that Davis applies only to capital cases. There is no question that Appellant was provided the questionnaires at the same time as the State.
The questions posed on jury questionnaires traditionally are attributed to the trial court. 17 The purpose of jury questionnaires is to elicit basic information, possible biases, and other problems that would otherwise be brought out during voir dire. Counsel may rely on these questionnaires to determine which questions to ask during voir dire and which jurors to strike, thus minimizing the length of voir dire. 18 The court of criminal appeals has noted that defense counsel is entitled to rely on the questions asked by the court and the prosecutor during voir dire. 19 Furthermore, the trial court and the attorneys can rely on information that is available only from the juror questionnaires or information cards. 20 It is well-settled law that counsel may strike prospective jurors based solely on their responses to the jury questionnaires. 21
Our sister court of appeals in Dallas also addressed the issue of whether viewing juror questionnaires constitutes the beginning of voir dire in a non-capital case, holding that “the examination of the juror information cards was not tantamount to the commencement of voir dire. Consequently, the trial court erred in failing to grant appellant’s timely motion to shuffle the jury panel.” 22 It is fundamental that both the State and the defense have the right to look at the jury panel seated in order in the courtroom and that they have the right to listen to the venire’s responses to questions posed by the trial judge before exercising the right to a shuffle.
Most existing case law deals with the defendant’s right to a jury shuffle. The State’s right under article 35.11, however, is no less compelling, nor is the trial judge’s authority to conduct the affairs of the court expeditiously. I respectfully submit that the majority’s reliance on Davis, which I reiterate deals only with the jury shuffle rule for capital cases under article 35.17, is misplaced. We are not dealing with the rules governing capital murder voir dire in the case now before us. Additionally, Davis does not address the question of whether a trial judge may allow the lawyers to review the juror questionnaires before requesting a shuffle. Davis addresses the question of whether a trial judge must allow the lawyers to review the juror questionnaires before requesting a shuffle.
*363 Moreover, the decision in Davis does not turn on the authority of the trial judge to permit examination of the questionnaires but, rather, on when voir dire in a capital case actually begins for the purpose of article 35.11. The court of criminal appeals did not hold, as does the majority in the ease now before us, that voir dire had begun because the lawyers had reviewed the juror questionnaires. The court of criminal appeals held that the demand for a shuffle was untimely because the demand came after the trial judge had conducted the initial examination under article 35.17(2), which began voir dire. 23 The court of criminal appeals held that there is no absolute right to examine the juror information before the trial judge begins his remarks in a capital case.
I therefore would hold that the State’s request for a jury shuffle was timely, because voir dire had not yet begun when the lawyers read the juror questionnaires. I would not intrude on the authority of the trial judge to determine how voir dire will be conducted and when the lawyers may examine the juror questionnaires. Because I believe the majority has misinterpreted the meaning of Davis, I respectfully dissent to its holding that the trial court erred by granting the State’s motion to shuffle the venire. I would affirm the judgment of the trial court.
. See TexCode Crim. Proc. Ann. art. 35.11 (Vernon Supp.1999).
. 782 S.W.2d 211 (Tex.Crim.App.1989), cert. denied, 495 U.S. 940 , 110 S.Ct. 2193 , 109 L.Ed.2d 520 (1990).
. TexCode Crim. Proc. Ann. art. 35.17 (Vernon 1989 & Supp.1999); see also Davis, 782 S.W.2d at 215 .
. Davis, 782 S.W.2d at 215 (emphasis added).
. Yanez v. State, 677 S.W.2d 62, 71 (Tex.Crim.App.1984) (Clinton, J., concurring).
. Williams v. State, 719 S.W.2d 573, 577 (Tex.Crim.App.1986) (emphasis added).
. Majority op. at 356.
. If I were the only one mistaken, then I would not quarrel with the majority’s statement.
. Davis, 782 S.W.2d at 214 .
. Majority op. at 355.
. Jones v. State, 833 S.W.2d 146, 147-48 (Tex.Crim.App.1992) (citing Williams v. State, 719 S.W.2d 573, 575 (Tex.Crim.App.1986), Yanez v. State, 677 S.W.2d 62 (Tex.Crim.App.1984), and Sewell v. State, 696 S.W.2d 559, 560 (Tex.Crim.App.1983)).
. Ex parte Daigle, 848 S.W.2d 691, 692 (Tex.Crim.App.1993).
. TexCode Crim. Proc. Ann. art. 34.04 (Vernon Supp.1999).
. Ramirez v. State, 815 S.W.2d 636, 654 (Tex.Crim.App.1991) (quoting Smith v. State, 744 S.W.2d 86, 96 (Tex.Crim.App.1987)).
. See Scott v. State, 805 S.W.2d 612, 614 (Tex.App.—Austin 1991, no pet.) (holding that a defendant has the right to see the jury panel seated in the proper sequence before deciding whether to demand a shuffle. "In fact, the defendant cannot intelligently exercise his right to a shuffle without seeing the panelists seated in the order in which they will be called.").
. Appellant does not complain of an improper shuffle in contravention of article 35.11.
. See Cuellar v. State, 943 S.W.2d 487, 495 (Tex.App.—Corpus Christi 1996, pet. ref’d) (Yanez, J., concurring).
. See id. at 495-96 (Yanez, J., concurring).
. See Armstrong v. State, 897 S.W.2d 361 , 364 n. 1 (Tex.Crim.App.1995).
. See Doby v. State, 910 S.W.2d 79, 81 (Tex. App.—Corpus Christi 1995, pet. ref'd).
. See Cuestas v. State, 933 S.W.2d 731, 733 (Tex.App.—Fort Worth 1996, no pet.) (holding that counsel’s peremptory strike because venire-person was liberal was supported by record solely because venireperson admitted on his jury questionnaire that he was liberal).
. Holman v. State, 636 S.W.2d 18, 18-19 (Tex.App.—Dallas 1982, pet. ref'd).
. See Davis, 782 S.W.2d at 215 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9770174. Public record. Not legal advice.