it was "reasonable” for appellant, who was apparently Mexican-American, to request jury shuffle in the hope of increasing the probability that Mexican-Americans would be selected to sit on his jury
How later courts described this case
- it was "reasonable” for appellant, who was apparently Mexican-American, to request jury shuffle in the hope of increasing the probability that Mexican-Americans would be selected to sit on his jury
- right to shuffle may be waived by a failure to make timely request therefor
- "A shuffle of the names of the persons who will make up the jury panel cannot take place until it is first determined just which persons will make up the jury panel for the case, and they are seated in the courtroom."
- right to have names of members of jury panel shuffled is not of constitutional dimension and may be waived by failure to make timely request for shuffle
Written by the judges who cited it.
The opinion
CLINTON, Judge,
concurring.
What is implicit in the opinion of the Court ought to be made explicit: We reject the holding in Brown v. State, 639 S.W.2d 505 (Tex.App.—Fort Worth 1982), that “questioning as to the qualifications of the veniremen constitutes voir dire by the trial court” for purposes of determining when voir dire begins in relation to a demand by an accused or the prosecution for a “shuffle” under Article 35.11, Y.A.C.C.P. An explanation is in order.
The provisions of Article 35.11, supra, were taken from former article 626, C.C.P. 1925. They originated in what was known as the “Interchangeable Jury Law,” made applicable only in counties having three or more district courts. Acts 1917, 35th Leg., ch. 78, § 7, amended by Acts 1919, 36th Leg., ch. 6, § 1. See Bell v. State, 92 *70 Tex.Cr.R. 342 , 243 S.W. 1095 (1922). In pertinent part the statute read:
“Provided, however, that the trial judge, upon the demand of any party to any case reached for trial by jury... shall cause the names of all the members of the general jury panel available for service as jurors in such case, to be placed in a hat or other receptacle and well shaken and said trial judge shall draw therefrom the names of a sufficient number of jurors from which a jury may be selected to try such case, and such names shall be transcribed on the jury list from which the jury is to be selected to try such case.” 1
Read literally that proviso means something other than how it came to be applied in actual practice. Indeed, the Court soon construed the language underscored above to exclude “those members of the general panel who had already been [tested,] detailed for service, and sent to other courts equally entitled” in that they “would not, and in the very nature of the case, could not, be ‘available for service in this case,’ ” Wright v. State, 117 Tex.Cr.R. 93 , 36 S.W.2d 511, 512 (1931). “The reason for the rule of the statute in question is to prevent any unfavorable order in the listing of the jurors and to give to the accused an equal chance to have jurors deemed favorable to him, at the head of the list.” Thus, when the trial judge offered to “shuffle” the names of prospective jurors who remained in the court in which Wright was to be tried, he tendered that which the proviso intended: “the right to have drawn those jurors available for service in his case,” ibid. The reason for the rule was thereby satisfied. Accord: Hoebrecht v. State, 126 Tex.Cr.R. 648 , 72 S.W.2d 1100 (1934) and Moore v. State, 132 Tex.Cr.R. 403 , 105 S.W.2d 250 (1937); see also De Joyas v. State, 141 Tex.Cr.R. 520 , 150 S.W.2d 254 (1941).
When the code of criminal procedure was revised in 1965 article 626 and related arti-cies were melded into Article 35.11, supra, in recognition of “a commonly used practice” and to provide “uniformity of procedure in this regard throughout the State,” Special Commentary to Article 35.11. Though not always citing earlier cases the Court adhered to their teachings in, e.g., Gonzales v. State, 468 S.W.2d 85, 86, 87 (Tex.Cr.App.1971); Dynes v. State, 479 S.W.2d 676 (Tex.Cr.App.1972). It held that “(t)he right to have the jury panel assigned to a case redrawn is clearly provided for in Art. 35.11,” and that harm need not be shown when that right is denied. Woerner v. State, 523 S.W.2d 717, 718 (Tex.Cr.App.1975).
Contemporaneously with Woerner v. State, supra, the Court noticed that Article 35.11 “is silent as to what point in time in the trial of a case the trial court must honor the request... to shuffle,” Alexander v. State, 523 S.W.2d 720, 721 (Tex.Cr. App.1975). Upon analyzing relatively recent decisions it came to the conclusion that a demand must be made prior to voir dire examination, partly because otherwise “it would permit such an election to be based upon information already elicited on voir dire,” id., at 721 . When thus timely made it is error to deny a motion to shuffle. Davis v. State, 573 S.W.2d 780 , 781' (Tex.Cr.App.1978).
The majority resorts to dictionary definitions of voir dire and immediately finds that there are two “phases of the voir dire process:” first, a testing of qualification pursuant to Article 35.12, V.A.C.C.P., and, second, such examination as may be made by the trial judge relating to grounds for a challenge for cause. However, by its enactment of Article 35.17, V.A.C.C.P., the Legislature perceived voir dire as that examination conducted by the prosecution and defense. Thus, in its original terms, not substantially altered by amendments made in 1973, the trial court may direct counsel to “conduct the voir dire examination of prospective jurors in the presence of the entire panel” in an ordinary case; in a *71 capital felony case, upon demand either party “is entitled to examine each juror on voir dire individually and apart from the entire panel...” That perception is consistent with a general proposition expressed in 35 Tex.Jur.2d § 97, at 147: “Under our practice the right to interrogate veniremen on their voir dire is not open to question.” Reich v. State, 94 Tex.Cr.R. 449 , 251 S.W. 1072, 1073 (1923) confirms that proposition. 2 Under Article 35.17, supra, only in a capital felony case is a trial judge authorized to propound questions concerning principles of reasonable doubt, burden of proof, return of indictment, presumption of innocence and opinion.
Accordingly, 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 Article 35.12, Y.A.G.G.P. A demand made pursuant to Article 35.11 pri- or to that event is timely.
Therefore, I concur in the judgment of the Court.
. All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.
. In earlier times the phrase commonly used by experienced judges with reference to questioning prospective jurors was "examination on their voir dire.” See, e.g., Crow v. State, 89 Tex.Cr.R. 149 , 230 S.W. 148 , 152 and 153 (1921); see also Pendergrass v. State, 121 Tex.Cr.R. 213 , 48 S.W.2d 997, 998 (1932).