Barrett v. State

ONION, Presiding Judge

(dissenting).

In his grounds of error appellant complains that the trial judge erred in denying his counsel the right to examine each member of the jury panel on voir dire and such action deprived him of a fair and impartial trial by jury, of the right to counsel, as well as the effective assistance of counsel in violation of the federal and state Constitutions.

The indictment charged the felony offense of assault with intent to murder with malice aforethought for which the maximum penalty was twenty-five (25) years.

The issues submitted as being raised by the evidence included assault with intent to murder with malice, assault with intent to murder without malice, aggravated assault and the issue of self-defense.

At the commencement of the voir dire examination of the jury panel the court, over objection by appellant, limited both sides to thirty (30) minutes apiece to interrogate the jury panel.

*183 The trial judge, in this non-capital felony case, then introduced the attorneys, informed the jury of the nature of the case and instructed them on the presumption of innocence, burden of proof, that an indictment is no evidence of guilt, mentioned the possibility that a lesser included offense might be involved, described the functions of a jury and the procedure used in selecting a juror. There was no interrogation by the judge of the jury panel.

The assistant district attorney introduced and asked in general if the prospective jurors knew certain State witnesses or if they knew the appellant or his counsel. He then briefly explained certain principles of law and then rapidly examined thirty-two (32) members of the jury panel, asking only a few questions, such as whether the prospective juror can be fair and impartial if chosen and if such person had any questions about anything he had stated.

Appellant’s counsel addressed some general remarks to the jury about the presumption of innocence, burden of proof, that an indictment was no evidence of guilt, assault to murder with and without malice, specific intent to kill, aggravated assault, self-defense. He then directed questions to the panel as a whole as to whether any member had been accused of a crime or been a complainant in a criminal case or was related to a law enforcement agent, receiving several replies. He mentioned the relationship of the State’s witnesses as being sister, mother and nephew of the appellant and inquired whether such relationship between accused and witnesses would affect the fairness of any juror. He then began to examine the jurors individually and asked only brief questions of five prospective jurors before the trial judge called time and terminated the voir dire examination, over appellant’s objection that he had not had an opportunity to examine individually the other twenty-seven (27) members of the panel examined by the State and his request that he be permitted to do so. Appellant then requested the court to permit him to ask questions of the individual prospective jurors that were contained in his Exhibit #B which were not repetitious and, if not, to be able then to ask such questions for the purpose of a bill of exception. The request was denied. 1 The appellant then modified his request and asked that he be allowed to interrogate the remaining membérs of the jury panel individually to determine if in any way, form or fashion they might be prejudiced as to the possible law in this case. The request was denied.

Appellant contends that the question here presented is whether De La Rosa v. State, 414 S.W.2d 668 (Tex.Cr.App.1967), is still the law. I agree. There, this court held that while the trial court has the duty to confine examination of prospective jurors within a reasonable time, nevertheless, the duty does not carry with it authority to refuse defense counsel the privilege of examining each juror individually within reasonable limits.

The majority seeks to distinguish De La Rosa on the ground that the questions there sought to be directed individually to the remaining members of the panel when the time limit set by the court expired dealt with individual juror’s address, marital status, place of employment, religious and educational background, while in the instant case the parties had been furnished jury information cards containing such information. De La Rosa did not turn on the absence of the jury information cards, nor were the questions sought to be propounded in De La Rosa limited to such matters, but also pertained as the opinion reveals to “attitude toward ‘second offender cases’ and certain principles of law.” While counsel was not entitled to ask all the questions included in Exhibit #B, his subsequent request to ask the balance of the panel individually questions concerning their prejudice as to any law applicable to *184 the facts was clearly proper and should have been allowed. How else could he have intelligently exercised his peremptory challenges or challenges for cause ?

Only recently this court in Smith v. State, 513 S.W.2d 823 (Tex.Cr.App.1974), held that where the trial court fully qualified the individual jurors on the range of punishment in a murder case (which was a capital case at the time), the refusal to permit defense counsel to ask, during individual voir dire examination of prospective jurors, duplicitous questions regarding range of punishment was not an abuse of discretion under the circumstances. What the court wrote in the course of its opinion is here pertinent. There, the court wrote:

“. . . Appellant does not urge that the court failed to properly qualify veniremen as to the range of punishment but contends that the right of being heard by counsel carries with it the right of counsel to personally interrogate the members of the jury panel.

“At the outset we reject the State’s argument that these contentions should be denied because the appellant is unable to prove ‘harm’ by showing his peremptory challenges were exhausted or that he had to accept an objectionable juror. Since a question attempting to elicit grounds for a challenge for cause is necessarily also eliciting ‘grounds’ for peremptory challenges (which may be exercised arbitrarily, Art. 35.14, Vernon’s Ann.C.C.P.), the harm in preventing answers to any proper question is the inability to intelligently make use of the peremptory challenges. Meador v. State, 94 Tex.Cr.R. 608 , 253 S.W. 297 (Tex.Cr.App.1923); Ortega v. State, 462 S.W.2d 296 (Tex.Cr.App.1970). Appellant is entitled to knowledge of the answers, regardless of content, to ensure knowing challenges. Mathis v. State, 167 Tex.Cr.R. 627 , 322 S.W.2d 629 (Tex.Cr.App.1959). If the question is proper, an answer denied prevents intelligent use of the peremptory challenges and harm is shown.

“The necessity to question freely and broadly on voir dire in order to decide intelligently when to use one’s peremptory challenges has been firmly established as a concomitant to the constitutional right to counsel. DeLaRosa v. State, 414 S.W.2d 668 (Tex.Cr.App.1967); Plair v. State, 102 Tex.Cr.R. 628 , 279 S.W. 267 (1926); Reich v. State, 94 Tex.Cr.R. 449 , 251 S.W. 1072 (1923); Meador v. State, supra.

“ ‘As a general rule great latitude should be allowed a party interrogating a venire in order to enable his counsel to determine the desirability of exercising on the members thereof his right of peremptory challenge, and this court does not look with favor on any unreasonable limitation of this right.’ Kincaid v. State, 103 Tex.Cr.R. 485 , 281 S.W. 855, 856 (1926)

“The permissible areas of interrogation to determine the use of peremptory challenges are broad and not to be unnecessarily limited. Asking about bias against parts of the range of punishment is certainly permissible. Indeed, bias against any of the law upon which the defendant is to rely is ground for a challenge for cause and a proper matter for query. Art. 35.16(c)(2), V.A.C.C.P.; Reeves v. State, 491 S.W.2d 157 (Tex.Cr.App.1973).

“However, the decision as to the propriety of any question is left to the discretion of the trial court and the only review will be for abuse of that discretion. Reich v. State, supra; Livingston v. State, 152 Tex.Cr.R. 302 , 214 S.W.2d 119 (Tex.Cr.App.1948); Grizzell v. State, 164 Tex.Cr.R. 362 , 298 S.W.2d 816 (Tex.Cr.App.1957); Johnson v. State, 467 S.W.2d 247 (Tex.Cr.App.1971). The discretion is abused when a proper question about a proper area of inquiry is prohibited.”

In view of the issues here involved and the law applicable thereto, the court abused its discretion in arbitrarily fixing a thirty *185 (30) minute limitation upon appellant’s voir dire examination.

I dissent. See De La Rosa v. State, supra, and cases there cited.

ROBERTS, J., joins in this dissent.

. While some of the questions contained in Exhibit #B were not proper voir dire questions, many were.