# Morrison v. State

> Court of Criminal Appeals of Texas · December 16, 1992 · 845 S.W.2d 882

URL: https://www.frixlaw.com/law-library/cases/9771265

## Case

- **Full name:** Steven MORRISON, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** December 16, 1992
- **Citations:** 845 S.W.2d 882; 1992 Tex. Crim. App. LEXIS 243; 1992 WL 367513
- **Precedential status:** Published
- **Opinion:** Concurrence by Clinton
- **Judges:** Maloney, Clinton, Campbell, Benavides, Miller, McCormick
- **Cited by:** 97 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9771265

## How later opinions describe it (automated extraction)

- holding that jurors are not permitted to question witnesses in criminal cases
- holding that juror questioning is improper in a criminal case
- reversing case where juror question was not asked, but question provoked the prosecution to recall a witness to address the juror’s concern

## Opinion text

CLINTON, Judge,
concurring.
At least twenty years ago, an accused representing himself stood mute when the late Judge E.E. Jordan allowed one or more jurors to question witnesses about “the fact that he was unable to make an identification of the [accused] as the man he saw [leaving the scene of the crime].” The Court “fail[ed] to perceive how these questions permitted by the court without objection were improper or harmful to the [accused].” Carr v. State, 475 S.W.2d 755, at 757 (Tex.Cr.App.1972), appeal dismissed and cert. denied, 409 U.S. 1099 , 93 S.Ct. 919 , 34 L.Ed.2d 682 (1973). 1
Although Judge Jordan apparently continued to indulge inquisitive jurors wherever he sat, see Pless v. State, 576 S.W.2d 83 (Tex.Cr.App.1978), and some other trial judge was permitting jurors to pose questions to witnesses as a matter of local practice on the strength of Carr , the fact is that the few instances where Carr is cited in any subsequent appellate opinion relate to some other point. See Shepard’s Texas Citations. In short, there is no appellate evidence that juror questioning ever became a localized common practice anywhere in this jurisdiction — until recently.
We know that lately the judge of the 272nd Judicial District Court of Brazos County instituted a structured form of the same practice. See Buchanan v. State, 807 S.W.2d 644, 645-646 (Tex.App.—Houston [14th] 1991) PDR granted; Allen v. State, 807 S.W.2d 639 (Tex.App.—Houston [14th] 1991) PDR granted; Nichols v. State, 815 S.W.2d 306, 307-308 (Tex.App.—Houston [1st] 1991) PDR granted; Morrison v. State, 815 S.W.2d 766, 767-769 (Tex.App.—Waco 1991), PDR granted; Wilson v. State, 823 S.W.2d 777, 781-782 (Tex.App.—Waco 1992), PDR granted; Fazzino v. Guido, 836 S.W.2d 271, 275-276 (Tex.App.—Houston [1st] 1992) (civil action). 2 So did the judge of the 347th Judicial District Court of Nueces County in Velasquez *890 v. State, 815 S.W.2d 842, 845-846 (Tex.App.—Corpus Christi 1991) no PDR history. We are permitted to infer that one or both judges took guidance from United States v. Callahan, 588 F.2d 1078, 1086 (CA5 1979), and cases cited therein, rather than the dormant Carr case, in that the former spells out a similar procedure utilized in the United States District Court for Middle District of Georgia, id., at 1086, whereas the latter hardly purports to teach any clear lesson on the subject. 3
In any event, suddenly we have a rash of cases concerning a procedure initiated sua sponte below, presenting a question of first impression in this jurisdiction. See C. Randall Michel, Should Jurors Be Allowed to Pose Written Questions to Witnesses During a Trial?, 55 Texas Bar Journal (November 1992) 1020. The dissent correctly characterizes those initiatives as “experimenting with such methods [allowing jurors to ask questions];” yet it recognizes and acknowledges that “[r]ecent studies ... have not supported [the] hypothesis [proponents advance to justify them].” At 904, and n. 9.
The threshold question to me, then, is basic and fundamental: Since the Legislature has never spoken to sanction it, what public purpose does this Court serve by granting its imprimatur to continued judicial “experimentation” with methods risking revival of a former medieval practice, when results even now are demonstrably so fraught with potential impropriety and ambiguous benefit as to render further experimentation without worth or merit?
The dissent suggests that “it is not inappropriate that legal systems sometimes be allowed to evolve in response to preferred methods of judges or practitioners.” At 903. The truth of history, however, is that a long evolutionary process, first abroad and then here, transformed the jury from an active “instrument of royal inquiry” to a “neutral and passive fact finder.” 4 In this *891 jurisdiction the very fact that there is no indication anywhere that our Texas jurisprudence ever positively tolerated questioning by jurors should suffice to show that thus far we have demanded and required the jury to remain neutral and passive. 5 And the further fact is that in this cause, *892 as well as the others, by objecting at trial and protesting on appeal practitioners have demonstrated the "method” at issue is not “preferred.”
That this Court would now sanction local introduction of an experimental procedure not authorized in this jurisdiction by any source in the order of hierarchical governance, thereby creating acknowledged risks of the jury as an institution asserting or assuming a retrogressive role, cannot be justified by seeking an abstract accommodation of perceived tensions between “an adversarial system” and “the truth-finding process.” Dissenting opinion, at 908, 904, 905, and 906. The issue is real; the experiments affect rights.
It is simply not realistic to suggest that the spectacle of jurors questioning witnesses is one of those “nonadversarial methods long accepted in practice and by now an established part of our authoritative deci-sional law,” dissenting opinion at 904, when the evidence collected in scholarly studies fails to bear out “the supposition of its proponents that an organized approach ... will facilitate resolution of factual disputes by clarifying the testimony, identifying issues requiring further development, and increasing juror attention to the evidence,” id., at 904, n. 10. Nor is it realistic to suppose that “such participation [will be] conscientiously subjected to the kind of judicial control which effectively prevents advocacy or premature committment [sic] by the jurors,” at 904, in the face of recurring cases replete with episodic loss of judicial self-control in the premises, such that a consensus of judges, practitioners and scholars composing the State Bar Liaison Committee on Rules of Evidence rejected a rule specifically allowing judges to participate in interrogating witnesses, and neither the Supreme Court nor this Court were all that sanguine about the practice. See note 5, ante.
Nonetheless, with the aid of assorted law review comments and notes, the dissent perceives submission of questions from the jury as a “truth-finding” measure or method — whenever “scrupulously subjected to normal adversarial examination and ... conducted in such a way that jurors do not become advocates for either side.” Slip opinion, at 6. But because during voir dire or just before the indictment is read the judge instructs venirepersons or jurors as to their gratuitous privilege to submit questions, e.g., Allen, at 640; Morrison, at 767; Velasquez, at 845; Fazzino, at 275, there is no assurance that, thus anticipating the opportunity, a juror who takes advantage of it during the course of trial has not already become an advocate for one side or the other. 6 One may speculate but hardly be sure about the intended meaning of a question and whether it indicates an attitude of a juror. 7 Moreover, four of the seven recent cases reflect a consensus view that whatever information inquiring fact- *893 finders received was not revealed “truth” of consequence; in two, however, a dissenter stoutly disagreed. 8
Furthermore, apparently the trial judges (and the dissent here) did not contemplate ramifications of the situation where the witness is the defendant. The record in Nichols does not reveal content of the question presented by a juror but makes evident the consternation that can result. 9
Finally, it is clear enough to any litigator that the whole process from initial instruc *894 tions to the jury through abating proceedings after each witness has testified in order to ascertain whether jurors desire to submit questions and, if so, reducing them to writing, passing them to the judge through the bailiff, retiring the jury while the judge and counsel discuss their admissibility, bringing the jury back in and finally putting approved questions to the witness — once, twice, thrice and so on — devotes consumption of a considerable amount of trial time our rules regard as valuable to a gratuitously imposed exercise that, all things considered, has not yet been shown to be meritorious and worthy. 10
In all seven causes the trial judge committed the court to receive such questions as jurors proffered in writing under terms and conditions prescribed at length, the pertinent essence of which in this cause is set out in the margin. 11 Compare Buchanan, at 645, Allen at 639-640 , Nichols, at 307, Morrison, at 767 and Velasquez, at 845; Wilson, at 781; Fazzino, at 275. In this cause once the judge began to implement the “ritual,” appellant initially objected “to the whole ‘process’ on the ground that it was not authorized by law, but his objection was overruled.” Morrison, at 767. 12
*895 The salient facts surrounding the offense are summarized in the opinion below, at 766-767. The first three witnesses called by the State, two children of the victim and a passerby, recounted particular parts of the episode each respectively observed. Not until the fourth witness had testified did a juror present a question. A detective who investigated the crime scene testified that he found “several drops of blood” in a hallway of the victim's home, and a photograph of the blood was admitted in evidence. The juror asked, “Was any of the blood in the hall Steve Morrison’s?” Because the trial sustained appellant’s hearsay objection, the question was never asked. However, the State was permitted immediately to recall the detective and have him testify that he did not observe any “wounds, scratches or injuries” on appellant the night of the murder. See Morrison, supra, at 767 ; see also excerpt from I S.F. 127-132, attached as Appendix 2.
The dissent characterizes the juror’s question as “neutral” and “not itself a partisan inquiry,” to conclude that “any disadvantage actually suffered by appellant was not the result of any institutional unfairness [;] [accordingly, the trial judge did not err to receive it and make it known to the parties.” At 906. But, of course, that cannot be the end of this matter. That any correlative advantage actually gained by the prosecution was the direct result of the question raised by the juror cannot reasonably be disputed — especially since the State had no known evidence that would directly answer the question. See Appendix 2, I S.F. 128-129. 13 And of that appellant complained on appeal, and the court of appeals decided that was the harm engendered by the practice in this cause. Morrison, at 767, 769.
In this cause, as well as others like it, a trial judge cannot effectively determine the subjective purposeful intent of any juror given carte blanche “to ask any question you think is reasonable to ask,” and is “important ... to get the answer.” See note 11, ante. From circumstances then extant the judge may surmise as much, but relevancy rather than undisclosed motive in putting a question to a witness determines admissibility of the prospective answer, unless otherwise exceptional or excludable on special grounds. Tex.R.Crim.Evid.Rules 401-404. So here, whether the question is characterized as “neutral” or “nonpartisan,” at 906, the inescapable conclusion is that after the trial judge ruled it out as inadmissible hearsay, the prosecution was able to capitalize on the unanswered ques *896 tion by recalling the detective to provide what the prosecution intended to be satisfactory answer for the juror — and no doubt those other jurors who discussed with the questioner during their deliberations.
Whatever the definition of “institutional unfairness” may encompass, it surely includes any unauthorized practice that invites a juror to initiate any inquiry about any point believed “reasonable” and “important” which the trial judge is committed to receive regardless of whether she deems it “neutral,” “partisan” or just plain silly, and although it turns out to be inadmissible, the prosecutor is thus motivated and permitted to introduce testimony that is responsive to the juror’s question but is patently unfavorable to defendant. To institutionalize that kind of practice is, in my judgment, unfair.
Ultimately though, my conclusion is that the whole exercise is obviously intended to exalt lay jurors in performing their civic duty by leading them to feel they can be more active participants in the judicial part of the criminal justice system — a sort of leveling charade, a bit of pseudo-egalitarianism. To put the matter more bluntly, juror questioning at best is judicial pandering at worst.
Appellant complained at trial that the unilaterally imposed ritual is “not authorized by law” in this jurisdiction, and he is absolutely correct.
It will not do to say “that which is not forbidden is generally allowed,” dissenting opinion at 906. “The common law is followed in criminal ... matters where it has not been changed by the Code [of Criminal Procedure].” State v. Anderson, 119 Tex. 110 , 26 S.W.2d 174, at 175 (1930); cf. Bloss v. State, 127 Tex.Cr.R. 216 , 75 S.W.2d 694, at 696 (1934) (common law prevails when code fails to provide rule of procedure); Rudder v. State, 29 Tex.App. 262 , 15 S.W. 717, at 718 (1890) (common law precludes discharge of jury in absence of defendant since no express statutory rule provides otherwise); Article 1.27, V.A.C.C.P. (rules of common law govern any particular state of case not provided for in code of criminal procedure). Courts do not advance the common law by resurrecting that which the common law has already put to rest.
Because the Court rejects an incipient fad that bodes ill for a neutral and passive jury, but well for reincarnation of an active inquisitorial jury, for those additional reasons I join the opinion and judgment of the Court.
APPENDIX I
AFTERNOON PROCEEDINGS— 4:05 P.M.
MONDAY, MARCH 26, 1990
THE COURT: Counsel, is there anything to bring up before I seat the jury?
MR. LOCKE: Not that I am aware of, Judge.
MS. HANNA: No, sir.
THE COURT: Let’s bring them in.
(Jury enters the courtroom.)
THE COURT: Just go ahead and be seated, members of the jury. All right, seats, everyone else. All right, counsel. I will call for formal announcements of ready in number 18,913-272, entitled State of Texas versus Steven Morrison. What says the State?
MR. LOCKE: State’s ready, Your Honor.
THE COURT: Defense?
MS. HANNA: We’re ready, Judge.
THE COURT: Very well. Members of the jury, you have noticed that when you entered the courtroom, everyone was standing, and that is a courtesy that is extended to juries. I want you to feel free however to come straight in and have your seat, because you are the honored guests.
Now there are several instructions that I promised to you that I will get into now. I want to explain to you the order of trial that you are going to witness. The first item of business is these instructions. Following these instructions, from there. In order to get over that hurdle, we have to ask you to step into the jury room. We try to keep that to a minimum, but it happens in most cases, so don’t be surprised if it *897 does in this case. Please be assured that no statement or ruling or remark that you might see me make during the course of this trial is intended as an expression of my opinion about how the case should be decided. That is your function and not mine.
Now a word about note taking. As I have told you, you are going to be permitted to take notes, and you are going to be permitted to take them to the jury room with you to use during deliberations. We will take them up at end of the day just for safekeeping and return them to you the next morning. Please remember not to discuss the notes that you take during the progress of the trial with anybody, including other jurors. You have been told not to discuss the case with anybody until it is submitted to you for decision. That includes your brother and sister jurors. You can only talk about the case among yourselves after it is submitted to you for decision. That includes quizzing each other about what you wrote down in the notes. Now the subject of note taking is a small controversy, you might say, in American law, and Texas is not immune from that. And, in order to make it legally proper, I believe it is important to give you the following particular instructions about it. Please do not feel that you must take notes or that the court necessarily encourages you to take notes. Please be assured that it is your individual option. Nobody has to. You can start or stop as you see fit. For those of you who do take notes, please consider these words of caution. Remember that your role here is to decide the credibility of the witnesses. So it is important for you to pay attention to not only what is said but sometimes how it is said. Therefore, I don’t want you to try to be a verbatim stenographer of what is going on in the evidence. We have an audio taping apparatus that is rolling as I speak here, that will be going all during the trial, so if there is ever any question about what was said, we can get that played back for you. Just by way of a suggestion that may or may not apply in this case and is certainly not intended to be the exclusive use of your notes, you might want to write down things that you think you may need help in remembering, such as names of witnesses, proper names of other persons that come up in the trial, dates, times, sequences, things like that. Please do not discard the notes that you do take, but keep them and, if possible, go ahead and keep them attached to that little pad. And if you would keep your name on the front of the pad, that will help us in distributing them to you after we take them up. At the end of the case, we are going to preserve all of the notes that you might have taken, so that anybody who is reviewing the record of this trial can decide whether the note taking was permissible or impermissible. I remind you that you are certainly welcome to use your notes during your deliberations, but it is very important for you to not try to overly influence some other juror who happened not to take notes with your recollection of the testimony reflected in your notes. In other words, just because you are a note taker does not mean that your recollection of the evidence, as reflected in your notes, is entitled to any greater weight than that of another juror who didn’t take notes but just happens to remember it another way. Once again, if you disagree about what was shown in the evidence, then we can consult the tape to try to answer the question for you.
And now, finally, on this business of asking questions, here is the way that will work. After each witness that appears in the case has been questioned by the attorneys, I will turn to the jury and ask if any of you have questions. If you do, just signify to me by hand that you have one and I will give you a brief amount of time to finish writing out your question or questions on a slip of paper. You can write one question or you can write ten questions. I don’t care. But they all have to be written, and as many of you as want to ask questions are welcome to do so, and I am not necessarily suggesting that any of you should. I am making the opportunity available to you. And those will be collected from you and you will be asked to go in the jury room for a short stay while I review those questions. And your questions are going to have to pass the same legal test of *898 admissibility that the attorneys’ questions do. Nothing that they couldn’t get into evidence will you be allowed to get into evidence by asking the question. And the responsibility for whether your question gets asked or not will be mine and mine alone. If your question does not get asked, you should not surmise that it is because one of the attorneys tried to keep it out. After I have had a chance to review your questions, I will bring you back in the courtroom and I will read your question to the witness on the stand and, after the witness responds, the attorneys will — can we keep the whispering at counsel table down for just a minute. It is getting to be a distraction. I will read the question to the witness. The witness will answer, and then the attorneys will be given a chance to ask follow-up questions on the same subject, but they can’t go back and reopen some other subject. Both attorneys will be given a chance to ask those follow-up questions. And in order to bring some finality to it, I won’t be able to allow you to ask your own follow-up questions of that witness. And you will have this opportunity to ask questions as each witness comes to the stand, by the way. Now, let me caution you on two points. I want you to feel free to ask any question you think is reasonable to ask, and don’t worry about whether it is admissible or not. I will make that decision for you. If you think it is important in your mind to get the answer to that question, that’s enough. But, do try to keep in mind that the attorneys, who have prepared this case and have thought about it and studied on it and know what the legal issues are, are going to presumably do a pretty decent job of asking all the questions that reasonably need to be asked of the witnesses. Having said that, let me back up again though and tell you that the reason you have got this chance to ask questions is because they may not have done as thorough a job as they think they have done, or you may simply be confused and want something clarified. So be it. Second, keep in mind that I cannot inject myself into the questions they ask by reshaping their questions, and I can’t do it for you either. So, don’t send up a question to me that says — ask the fellow about why couldn’t he get his car fixed. Instead, if you want to know about that, you write out — Why couldn’t you get your car fixed? — question mark. And I will read it that way verbatim. You understand me? What you write on your piece of paper is what’s going to get read. And if it doesn’t make any sense, too bad. I am not going to fix it for you.
All right. That concludes the instructions I had for you. I call on the State’s attorney to read the indictment. I will ask the defendant to please stand.
APPENDIX II
AFTERNOON PROCEEDINGS— 1:43 P.M.
TUESDAY, MARCH 27, 1990
THE COURT: Are we ready for the jury back? Defense?
MS. HANNA: Yes, sir.
THE COURT: State
MR. LOCKE: Yes, Your Honor.
THE COURT: All right. Be seated, everyone. Does either side have any further questions of this witness?
MS. HANNA: No, Judge.
MR. LOCKE: No, Your Honor.
THE COURT: All right, members of the jury. State and Defense have finished their questions to this witness. Do any of you have any questions of him? There is a question. We will wait for the juror to finish it.
MR. LOCKE: If I may, I will offer State’s Exhibit 14, which is this diagram.
MS. HANNA: We have no objections, Your Honor.
THE COURT: Fourteen is admitted.
(Brief pause.)
THE COURT: All right, members of the jury. Do I have all of the questions that any of you wish to submit? ' Would the jury please step in the jury room, please.
(Jury exits the courtroom.)
*899 THE COURT: All right, Detective Fick-ey, would you kindly step out in the hallway in just a minute — for just a minute. Counsel, approach.
(Bench conference outside presence of jury.)
THE COURT: The question from one of the jurors reads as follows: “Was any of the blood in the hall Steve Morrison’s?”
MR. BRYAN: We would object to that question on the grounds that he has no personal knowledge of — and is not a lab technician — doesn’t have the qualifications to testify as to whose blood belongs to who, and calls for hearsay.
THE COURT: What says the State?
MR. LOCKE: He has already been allowed to testify from lab reports at Defense’s request that he do so. You know, as a sponsoring witness for a lab report. If he has similar knowledge from similar source, I would think that would be opened by the line of defense questioning.
MR. BRYAN: Judge, the Defense merely asked about her blood. We didn’t go into his blood.
THE COURT: What does the lab report that is in evidence cover?
MR. LOCKE: I think the—
THE COURT: Shirt only? Or her blood?
MR. LOCKE: Her blood only. The content of her blood only.
MR. BRYAN: There was no testing done on his blood. There was no blood taken from him, is that right?
MR. LOCKE: That’s right.
MR. BRYAN: There is no way he can know. No way anyone could know.
MR. LOCKE: They would know it was consistent with hers, but that’s all they would know. That it matches her blood type.
MR. BRYAN: Whatever sample they took matched. They didn’t take every bit of blood on the floor.
MR. LOCKE: I guess that’s possible. They may not have tested every spot.
MS. HANNA: I don’t think they tested his blood at all.
MR. BRYAN: We further object on the same grounds the Court has given us a running objection to — Any question that a juror asks is not authorized by law.
MR. LOCKE: I might as well bring this up outside the presence. If he is still here for all purposes, if I may ask him a question, I intended and did not — forgot—to ask him his observations of Steve’s physical well-being on the night he was arrested, when he saw him last. I don’t think there is anything objectionable about that, but rather than letting them in and have you object and have them go back out, I thought I would bring it up.
THE COURT: Well, your position on the admissibility of this question is that the defense has somehow opened the door and waived any complaint that this question asked for a response based on hearsay or something other than personal knowledge.
MR. LOCKE: That’s the area under which that I responded, yes.
THE COURT: I sustain the Defense’s objection. If you are asking whether you can recall the witness to ask him another question, I am prepared to rule on that now before we bring the jury back in.
MR. LOCKE: Well, then I would ask to do so.
THE COURT: What says the Defense on that?
MR. BRYAN: Well, he’s already been passed and closed and, in view of the procedure here, we allowed a juror to ask a question, that has obviously now stimulated another area that he needs to cover. That is one of the problems I see with getting into juror’s questions. It’s — there is no end to it. We would object on the grounds that he has already been passed. Under this unusual procedure of letting the jurors ask, I don’t think the Court ought to allow either side to follow up with more questions after a juror asks a question, because it is going to be a tip off, possibly, as to which side objected, why the question wasn’t asked, and it may be a comment on the weight of the evidence to allow one side *900 or the other to come in and follow a juror’s question with another question.
THE COURT: All right. I’ll permit you to recall the witness. Seat the jury. Your objection is overruled, Defense.
(End of bench conference. Jury enters courtroom.)
THE COURT: Seats, everyone. Members of the jury, the question that was propounded by the juror, I have excluded and will not be able to submit it to the witness. Go ahead, counsel, if there are other questions.
RESUME FURTHER REDIRECT EXAMINATION
BY MR. LOCKE:
Q Detective Fickey, did you see Steven Morrison later on the same night, maybe the date after the fourth, past midnight, but the same night, prior to daylight?
A Yes, I did.
Q Did you observe any wounds, scratches or injuries to him of any sort? Just your personal observation?
A No, I did not.
THE COURT: Excuse me just a minute. Let’s take just a couple of minutes here. You can go ahead and step into the jury room for your own privacy. We have a juror with an upset stomach, and she is going to take a little medication.
(Brief pause.)
THE COURT: All right. The jury is intact now. We will resume.
MR. LOCKE: That’s all I have, Your Honor.
. The opinion indicates there were weightier issues in the case, particularly concerning the matter of selfrepresentation. Id., at 758 . While persistent in his efforts for vindication, Carr fared no better — without or with counsel. See Carr v. Estelle, 489 F.2d 1402 (CA5 § 974) (pro se); Ex parte Carr, 511 S.W.2d 523 (Tex.Cr.App.1974) (abuse of writ). Ironically, he exhausted his remedies the year before Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975).
All emphasis above and throughout this opinion is mine unless otherwise noted. All references to "dissent" and "dissenting opinion” are to the dissenting opinion by Judge Benavides.
. As well as allowing juror questioning, the judge has also introduced a formalized procedure for juror notetaking. His explanations of both are reproduced from the Morrison record, I S.F. 1, at 6-10, and appear in Appendix 1, attached hereto.
. Our own appellate courts have made such varied interpretations of the Carr treatment that there is no settled view of it.
The Buchanan court observed that "when presented with the question ... [the Court] did not denounce the idea when given the opportunity.” Id., at 645 . Noting appellate procedural defaults, failure to object at trial and comments in Carr, nevertheless the Buchanan court remained impressed with inaction, viz:
"... The court could have condemned the entire procedure regarding jurors questioning witnesses. It chose not to do so. We find this telling."
Ibid.
Allen was handed down the same day by another panel of the Houston [14th] Court; it took a decidedly different approach, viz;
“This is a case of first impression in Texas. See Buchanan v. State, 807 S.W.2d 644 (Tex.App.—Houston-[14th] 1991) (same issue). Although there is no case law in Texas which directly supports or condemns the practice of jurors asking questions to witnesses, foreign authorities which have addressed this issue are virtually unanimous in permitting it.”
Id., at 640. It proceeded to review those authorities, returning to Carr to notice that even though the Court "disposed of the issue by holding that the appellant's question presented a multifarious ground for review, the court stated that allowing jurors to ask witnesses questions did not appear improper or harmful where there was no objection.” Id., at 642. In Allen , however, there was objection.
The Nichols court also noted that Carr found defendant waived any error, “but the court nevertheless held the particular questions harmless;” from that reading and on the strength of Buchanan and Allen , both supra, the Houston [1st] Court concluded there was no harm in the single question and answer. Id., at 307.
In the instant Morrison cause, the Waco Court simply ignored Carr.
The Corpus Christi Court strictly read Carr, viz:
“Until recently, this practice had been virtually unknown in Texas and its legitimacy is uncertain. Cf. Carr v. State, 475 S.W.2d 755, 757 (Tex.Crim.App.1972) (legitimacy of juror questions was raised but not addressed because the point of error was multifarious and presented nothing for review).”
Velasquez, supra, at 846 .
Neither Wilson nor Fazzino mentions Carr.
. In England, through centuries of experience, the initial investigative or inquisitorial role of the jury evolved to a neutral and passive fact-finding role within the adversary system. S. Landman, The Adversary System, A Description and Defense (American Enterprise Institute for Public Policy Research 1984) 7, 10-19. Our own forebearers in this country insisted on the right to trial by jury, and then over the years developed their own notions of judicial neutrality and passivity, firming them up by, inter alia, expanding rules of evidence "designed to safeguard the neutrality and passivity of the fact finder." S. Landman, supra, at 19-22. Careful and strict appellate review served to “establish *891 the adversarial principle that trial activity would have to conform to the rules vesting the litigants with control of the process and securing the neutrality and passivity of the fact finder." Id., at 22-23.
. The dissent skips over significance in the fact that unlike all other jurisdictions except Oregon, "Texas, in stark contrast, has rejected [Fed. R.Evid.j Rule 614 altogether," to take comfort in its reading of our cases prior to the Rules of Criminal Evidence to the effect that “this Court has often approved the practice of trial judges propounding questions to witnesses called by the parties[.]” at 903. Well, not exactly.
Those who accept that trial judges háve authority to question witnesses are so sensitive to recognized recurrent misuse as to immediately add caveats against abuse of that authority. See, e.g., Notes of Advisory Committee on 1972 Proposed Rules pertaining to Fed.R.Evid. 614, subdivision (b) (because manner in which interrogation should be conducted and proper extent of its exercise are not susceptible of formulation in a rule, such omission “in no sense precludes courts of review from continuing to reverse for abuse”).
The history of abuse in exercising that authority informed the State Bar Liaison Committee on Rules of Evidence in reaching its “consensus” that “well-entrenched policies encouraging the trial judge to maintain an impartial posture in the trial should not be eroded by a rule specifically allowing the court to participate in calling and interrogating witnesses.” Black, Article VI: Witnesses, 20 Houston L.Rev. 409, at 443 (1983 Tex.R.Evid. Handbook). On the criminal side, fears from experience that exercise of that authority was being abused contributed to the "consensus.” Most especially noteworthy is that neither the Supreme Court nor this Court overruled the committee.
Under the aegis of Article 38.05, V.A.C.C.P. and its predecessors dating back to 1879, the Court rather consistently adhered to the position that "it [is not] any part of the duty of a judge to take in hand the examination or cross-examination of witnesses." Harrell v. State, 39 Tex.Cr.R. 204 , 45 S.W. 581, 586 (1898). Judge Henderson explained the rationale for the Court, viz:
"... These functions belong to the respective counsel on either side, and it is presumed they know how to discharge their duties properly. If they do not comply with the rules in regard to the examination and cross-examination of witnesses, it is the duty of the court to see that they do comply. It may be the province of the court sometimes to inquire of a witness as to some statement made by him for a clearer understanding on the part of the court, but it can never pertain to him to interfere in the case, and take the examination of a witness out of the hands of counsel whose business it is to conduct the examination. As to a matter of this character, the court should studiously abstain from interfering. He should avoid even the appearance of partiality. It would be almost impossible for the court to take part in the examination of witnesses without impressing the jury with the belief that the court believed or disbelieved the testimony of the witnesses, whether the court intended to make such an impression or not. Our Code of Criminal Procedure of 1895 is very particular in this regard. [Quoting Article 767]. Now, in the examination of a witness, however fair-minded the judge may be, it would be almost impossible for him to so conduct it as not to suggest in some measure that he is on one side or the other.... By carefully attending to his own duties and conserving his own functions, he will best be able to hold the scales of justice impartially as between counsel who are managing the case for and against the state; and, wherever he does interfere, it is generally at the expense of his own authority and dignity, which should be rigidly guarded,' in order that he may administer the law with fairness and impartiality, and with that authority and power which pertains to the office. We cannot commend the action of the judge in his attempt to interfere with the province of counsel for the state in the examination of witnesses, and, if it appeared to us that such interference on his part was calculated to prejudice the rights of the appellant, we would not hesitate to reverse this case. Such interference on the part of a judge can never be called for, and especially in this case, where both the state and the defendant were represented by able counsel, it was absolutely unwarranted.”
Id., 45 S.W. at 586-587 . Accord: Hopperwood v. State, 39 Tex.Cr.R. 15 , 44 S.W. 841, at 842 (1898); Drake v. State, 65 Tex.Cr.R. 282 , 143 S.W. 1157, at 1160 (1912) (cautioning trial judges about engaging in this practice and developing evidence which had not theretofore been elicited in the case, so as to prevent reversals of future cases); Rodrigues v. State, 110 Tex.Cr.R. 267 , 8 S.W.2d 149, at 150 (1928) (court should refrain from active participation in examination of witnesses lest reversal result when injury is shown); Poole v. State, 113 Tex.Cr.R. 343 , 21 S.W.2d 529, at 531 (1929) (iterating its "disapproval of the examination of witnesses by the trial court” as likely to violate statute).
It is true, as the dissent points out at 903-04, n. 6, the Court has said no error is committed *892 when a trial judge is "seeking information only.” Ash v. State, 420 S.W.2d 703, 705 (Tex.Cr.App.1967). But there is complementary rationale for disapproving questioning of witnesses by a trial judge even seeking "information,” viz: the right of an accused to a free, fair and full presentation of evidence through witnesses "should not be unduly constrained or curtailed[.]’’ Jackson v. State, 167 Tex.Crim. 34 , 318 S.W.2d 98, 102 (1958) (on motion for new trial).
. The dissenting opinion in Buchanan sets out several questions presented seemingly by more than one juror for two witnesses for the State and one witness for defendant, and then evaluated their answers, finding at least some favored the State. Id., at 647-648 . At this distance we cannot identify every character in the cast, except the undercover officer running the "sting operation," and to assay related questions and answers is not for me. It does appear, however, from the manner of framing some questions that the interrogator was relying on personal knowledge in putting the question, and in that sense became a "third party” advocate.
A juror asked State’s witness Lyles: "Did he take the boat and trailer home to make the trailer street legal?" A juror wanted to know from Officer Jones, “What was the serial number of the motorcycle purchased at the shop?” and “What is the serial number of the motorcycle that was reported missing?” A juror asked defendant’s witness Green: "Kon Tiki Lounge is on the other side of Texas Avenue than what Chris Green is saying. He would have to cross Texas Avenue to go to the west side of town. Am I mistaken?”
Whether such questions came from a "neutral and passive factfinder” I leave to the Court to determine in due course.
. For example, in Nichols before the question quoted at 307, proposed to a witness for the State, was read to the jury, there was the following colloquy:
*893 “THE COURT: I want you to look at the question. Does the State have any objection to the question being asked this witness?
* * * * * *
[STATE]: No.
THE COURT: Does the defense?
[DEFENSE]: I don't understand their question.
THE COURT: I’m not sure I understand it either, but that’s all right.
[STATE]: J do.
******
THE COURT: You don’t have any objection?
[DEFENSE]: I don’t have any objection to the question. * * * * Other than my general objection to the fact that the witness — that the jurors are being able to ask questions. * * * * Without waiving that, I have no objections.
THE COURT: Very well, That objection is overruled.”
II S.F. 197-199.
. In Buchanan, supra, the majority of the Houston [14th] Court found: "The questions asked in this case were not especially dangerous or helpful to either side." Id., at 646. The dissenter specifically identified the questions and paraphrased certain answers under the procedure which in his view "allowed the jurors to clear up any doubt they may have had,” thereby lessening the State’s burden to prove its case beyond a reasonable doubt and permitting jurors "to become advocates rather than impartial fact-finders.” Id., at 647-648 .
The Allen majority did not characterize questions submitted to only one witness for the State. Id., passim. The same dissenter in Buchanan, supra, noted that of several proposed questions to this witness, a police officer who observed the alleged offense, the court submitted the two that were ruled admissible. Id., at 643. Without identifying questions and answers the dissenter condemned the procedure generally for substantially the same reasons developed in his Buchanan dissent. Id., at 644 .
There was only one question and answer in Nichols, supra; while some might regard the question as hostile to, or at least challenging the judgment of, the witness, the Houston [1st] Court believed the answer did not appear to be harmful. Id., at 307 .
In Morrison the scenario changed in that the question proffered by a juror was ruled out when the court sustained a hearsay objection by defendant. Id., at 767 ; see post. The twist here is, thereafter, the prosecutor was allowed to recall the witness, over objection, and to ask him a question germane to the subject matter of the juror’s question. Id., at 767 . For reasons delineated, the Waco Court found "the record demonstrates that the prosecution obtained an unfair advantage from the juror’s question," the trial court abused its discretion and the error per se was harmful. Id., at 769 .
In Velasquez, supra, where the procedure apparently produced questions for several witnesses, the Corpus Christi Court summarized the questions to and answers from a specific witness about which defendant complained. Id., at 845 . Whether pertaining to all questions asked of all witnesses or only to the one complained about is not clear, but the Corpus Christi Court found the error, if any, was harmless, viz:
"... The questions actually asked and complained about in the present case were not otherwise objected to as improper, and the answers were not prejudicial, inflammatory or particularly relevant to the material issues involved. In short, we find nothing in the question and answers to suggest that a rational trier of fact might have reached a different result if they had not been asked.”
Id., at 846 .
The Wilson court pointed out that appellant even acknowledged one question was "inconsequential" and did not complain of the others that the prosecution "might have gained an unfair advantage.” Id., at 781-782 .
In Fazzino "neither side was injured by any of the questions from the jurors.” Id., at 276 .
This review is certainly not to pass on the merits of the issue in those causes, but simply to demonstrate that in none is there any "truth-finding” benefit accruing to the jury on account of an answer to a question from a juror. Whatever advantage the prosecution may gain from a juror’s question — whether answered or not — is another question. See Nichols, supra, at 308 .
. After the jury left the courtroom, the visiting judge presented the question to counsel and apparently asked for objections, the following occurred:
“[DEFENSE]: I don’t have—
[STATE]: I object — I object — I object to that, Your Honor
THE COURT: You object to it on what basis?
[STATE]: I don't have a basis, Sir. On the basis that I didn’t ask that same question and I didn't want to ask her that.
[DEFENSE]: I think it can be cleared up. I don’t have any objection.
THE COURT: What?
*894 [DEFENSE]: I think it can be cleared up. I have no objection other than my general objection from the start about — to make sure I don’t waive any objections.
THE COURT: Does the State have an objection?
[STATE]: I don’t — I don’t have a good legal objection, Sir. Not—
THE COURT: What illegal objection do you have?
******
[STATE]: Strategically that was a question I did not ask.
THE COURT: Un-huh, Does Defense have any objection?
[DEFENSE]: I’ve got no other objection other than my general objection about the witness — I mean, the jurors asking question generally, and I do not want to waive that objection.
THE COURT: Well, my concern — you know, I don’t know that I have a concern about questions being asked of other witnesses, but this is the defendant, and I feel a little iffy about that. If you have an objection to the jury asking the defendant a question, I may simply pass on reading that. Do you have that objection, do you?
[DEFENSE]: I’ll state that objection also, Your Honor. That I do have an objection to them asking the defendant.
THE COURT: I'll sustain that objection.”
II S.F. 304-306.
.In Velasquez the trial judge announced to the jury panel during voir dire that the court would accept written questions from them to be asked of witnesses, id., at 845 ; in the other causes the judge instructed the empaneled jury just before the indictment was read, see, e.g., Morrison, at 767. Quaere: Will trial judges now be required' to permit litigants to voir dire prospective jurors on matters related to questioning witnesses and, depending on their responses, to level challenges for cause and to exercise peremptory challenges in all cases, including capital murder?
. "And now, finally on this business of asking questions here is the way it will work. * * * * You can write out one question or you can write ten questions. I don't care ..., and as many of you as want to ask questions are welcome to do so, and I am not necessarily suggesting that any of you do. I am making the opportunity available to you. * * * * Let me caution you on two points. I want you to feel free to ask any question you think is reasonable to ask, and don’t worry about whether it is admissible or not. I will make that decision for you. If you think it is important in your mind to get the answer to that question, that’s enough. But, do try to keep in mind that the attorneys, who have prepared this case ... are going to presumably do a pretty decent job of asking all the questions that reasonably need to be asked of the witnesses. [But] the reason you have got this chance to ask questions is because they may not have done as thorough a job as they think they have done, or you may simply be confused and want something clarified. So be it. Second, keep in mind that I cannot inject myself into the questions they ask by reshaping their questions, and I can’t do that for you either, [suggesting form of question]. What you write on your piece .of paper is what’s going to be read. And if it doesn’t make any sense, too bad. I am not going to fix it for you.”
I S.F. 8-10; see Appendix 1.
. More specifically, after the first witness the jury had no questions, but counsel anticipated the trial judge would continue to solicit questions, so the following occurred:
“[DEFENSE]: Judge, for the record, we would like to object to the process of the Court allowing the jury to ask questions of each witness. On what grounds, I’m a little bit foggy, but all I know is, it is not authorized by law, and it — well, I’ll just leave it at that.
THE COURT: Does State have anything it wants to add?
[STATE]: No, sir.
THE COURT: Objection is overruled.
*895 [DEFENSE]: Could I have a running objection to that whole process for the rest of the trial, Judge?
THE COURT: Absolutely."
I S.F. 37.
. The dissenting opinion at 905, n. 16, alludes to the only other question, one asking a psychiatrist to define "limited impulse control.” Interestingly, the term was put to him during cross examination by counsel for appellant as one of two symptoms exhibited by a person with a schizotypal personality disorder, which was a diagnosis previously made of appellant. I S.F. 158-160, 165. (The other is being paranoid and suspicious.) Naturally, counsel made only "the objection we have got as a running objection." Id., at 175. See note 12, ante.
The single answer that question consumes practically two pages in the statement of facts. Id., at 175-176. My understanding of the thrust of his response differs from that of the dissent, however.
The good doctor laid down a hypothetical setting that “in terms of someone speaks to me rudely in AppleTree or whatever, I might have an impulse to choke them or something.” But, he explains, “most people would be able to say well, no, that’s inappropriate ... due to a lot of different factors ... that allow us that ability.” For example, he says, “Very often with children or whatever, you will see- the lack of impulse control or whatever, in terms of whatever impulse comes into their mind, they pretty much will do it.” Parents "attempt to establish some internal controls ... so that they will react appropriately, socially appropriately, in certain situations.” On the other hand, "[t]here are a number of psychiatric disorders that can even impair even more so on a person’s ability to control their impulses.” But, "the personality disorder diagnoses were actually developed to say that the person — yeah, they are suspicious or impukive or whatever, but they did have the basic abilities to control their behavior if they chose to." "Most of us normally and also personality dkorders are considered in the same light, that they would have the ability to control their impulses, despite a stressful situation. You know, it is stressful, but given the situation, most of us would not choke the person in Apple-Tree.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9771265. Public record. Not legal advice.