Appendix — Cervantes v. Texas

RAMON CERVANTES, Appellant

No. 59,838 v. Appeal from DALLAS County

THE STATE OF TEXAS, Appellee

OPINION

This is an appeal from a conviction for criminal

solicitation of capital murder. See Soc. 15.03, V.T.C.A.

victim’s name, John Ralston, Sr., and phone number and

the names and phone numbers of the people who lived on

either side of the intended victim, from a criss-cross

directory. The appellant was one of Ralston’s neighbors.

Moore then called John Ralston to warn him. Moore next

Lieutenant Roy Westphal to inform him of the

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On October 7, 1976, Moore received a second phone call

ief. Appeliant

killed “C.O.D.”, or he’d do it himself, because he was tired

of losing his money.

On Saturday, October 16, 1976, Southall came to

On October 21, mtg pee yee ay

man badly beaten and his legs broken. Moore

that he and appellant meet face to face to discuss their

At 1:30 p.m. that day, appellant again called Moore to

make arrangements to meet. Appellant again requested

Moore to put a second man in the hospital, in addition to

the intended killing. Moore and appellant agreed to meet

in the parking lot of a Denny's Restaurant at 2:30 that

afternoon.

Officer Southall equipped Moore with a body mike in

order to tape the conversation at the meeting. The officers

also brought a surveillance vehicle to the parking lot in

order to videotape the meeting. Southall searched Moore

to verify that he had no money with him when he went to

the meeting.

The recording of the conversatien during the meeting

revealed the following: the appellant told Moore that he

used to tape single-edged razor blades between his fingers

and slap people across the face. He also liked to take a

blade and cut people across the forehead and when blood

ran into their eyes he would then “kick the hell out of

them.”

The appellant also indicated that he wanted John Allen

Ralston, the son of the intended victim, to be put into the

hospital by Moore, for the same amount of money being

paid to kill John C. Ralston.

Regarding the murder for hire, the appellant discussed

how Moore might kill the intended victim. Appellant said

he had aimed a gun at Ralston before but because of his

poor eyesight, Ralston had not seen him. The appellant

suggested that Moore stab or shoot Ralston or use any

method Moore preferred; however, the appella&t prefered

that Ralston be put in a concrete jacket and thrown in the

river. The appellant told Moore to go ahead and kill

Ralston that night because he had arranged to be out of

town. The appellant gave Moore two hundred dollars

during this meeting.

The appellant was arrested the following evening at his

APPENDIX

17

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38.29, V.A.C.C.P.; Bilbrey v. State, 594 S.W.2d 754

(Tex.Cr.App. 1980); Carrillo v. State, supra. Evidence of

pending charges against a witness, however, is

admissible under certain circumstances because the

witness’ vulnerable status affords a basis for an inference

of undue pressure, thus showing the possibility of interest

and motive of the witness for testifying as he did. See

Randle v. State, 565 S.W.2d 927 (Tex.Cr.App. 1978);

Castro v. State, 562 S.W.2d 252 (Tex.Cr.App. 1978); and

Evans v. State, 519 S.W.2d 252 868 (Tex.Cr.App. 1975).'

‘Appellant also cites Davis v. Alaska, 415 U.S. 308, S.Ct. 1105, 39

L.Ed.2d 347 (1974). In Davis, the United States Supreme Court held the

defendant should have been allowed to present evidence of the wit-

ness’ status as a juvenile probationer at the time of his testimony. In

the instant case, Moore admitted on cross-cxamination before the jury

that he was on probation at the time he was cooperating with the police

on the instant case.

APPENDIX

19

speculation as to the pressure the witnesses might have

felt to testify favorably for the state.

This Court’s reasoning in Carrillo v. State, supra, is

In the instant case, the appellant was allowed to fully

explore Moore’s prior arrest record and the dismissal of

charges in a bill of exception. The appellant also was

any officers regarding the discharge of Moore from

probation. In the absence of any evidence linking the

dismissal of charges against Moore to his cooperation in

the investigation of appellant, the trial court did not

abuse its discretion in excluding the profferred

impeachment testimony. See Carrillo v. State, supra. As’

S.W.2d 718 (Tex.Cr.App. 1979). In Simmons v. State,

supra, the court held the defendant should have been

permitted to explore the dismissed charges because they

could have been refiled, while in the instant case the

statute of limitations on the arrest for impersonating a

police officer had run and the charges could not be

refiled.?

?Moore had been arrested in 1973 for ‘mpersonating an police of-

ficer four years prior to the trial. See Art. 12.01 (4), Vernon’s Ann.C.C.P.

APPENDIX

21

Ground of error five contends the court erred in failing

to suppress evidence of extraneous offenses which were

admitted on the tape recordings of appellant's

conversations with Moore on October 23, 1976 during the

meeting at Denny’s Restaurant. Appellant had boasted

that he used to slap people on the forehead with razor

blades and cut them on the forehead with knives so blood

would run into their eyes. He also told how he had aimed

guns at the intended victim without being seen.

Generally, evidence of extraneous offenses committed

by the accused are inadmissible; however, refutation of a

defensive theory is a recognized exception to that general

rule. Thrush v. State, 515 S.W.2d 122 (Tex.Cr.App. 1974);

Powers v. State, 508 S.W.2d 377 (Tex.Cr.App. 1974);

Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App. 1972). In the

instant case the appellant's testimony raised the defense

of duress and entrapment. Although evidence of other

criminal acts is no longer admissible to rebut the claim of

entrapment, Bush v. State, 611 S.W.2d 428 (Tex.Cr.App.

1981); Langford v. State, 571 S.W.2d 326 (Tex.Cr.App.

1978), such evidence is admissible to rebut the defense of

duress. This Court must, however, determine what

extraneous offenses were admissible to refute the defense

- of duress. In Albrecht v. State, 486 S.W.2d 97

(Tex.Cr.App. 1972), this Court stated the relevant

question is whether the extraneous offense tends to

disprove the appellant’s explanation of the primary

offense. ng sana aPabeiinee of ehiaileditn Gata net

completely determine the admissibility of the extraneous

offense. The extraneous offense, if relevant in tending to

disprove the defensive theory, should be admissible. See

Halliburton v. State, 528 8.W.2d 216 (Tex.Cr.App. 1975),

(opinion on rehearing). The essence of the conversation

in question indicated that the appellant was discussing

and suggesting the manner in which the killing might be

accomplished. the best place to commit.the

murder, the appellant commented on the poor eye sight of

the victim and told how he had aimed guns at him

without being seen. He indicated to Moore that if Moore

APPENDIX

22

could get Ralston’s glasses off, Ralston would not be able

to see, thus making him easier to kill. Pointing the gun at

the victim was not unrelated to the offense on trial and,

therefore, the conversation relating to it was admissible.

Thrush v. State, supra.

Regarding the conversations referring to the razor

blade incidents, this Court has held that extraneous

offenses could be admitted:

(1) To show the context in which the criminal

act occurred—what has been termed the

‘res gestae’—under the reasoning that

events do not occur in a vacuum and that

the jury has a right to hear what occurred

immediately prior to and subsequent to the

commission of that act so that they may

realistically evaluate the evidence .. .”

Albrecht, supra at 100.

In Saunders v. State, 572 S.W.2d 944 (Tex.Cr.App. 1978),

this Court held the extraneous offenses included in the

tapes were inadmissible because they revealed both the

tenor and setting in which the conversations between the

defendants and the officers took place. In the instant

case, the challenged conversations showed the context in

which the criminal activity occurred. The appellant

referring to the razor blade incidents, explained to Moore

that he was no longer a pro at this sort of thing, therefore,

he needed someone else to do his work for him because he

had not kept up on new techniques. Thus, the extraneous

offenses involving razor blades and cuttings were

admissible under the exception contained in Albrecht, set

out above. Saunders, supra; Calverly v. State, 511S.W.2d

60 (Tex.Cr.App. 1974).

Ground of error six contends the trail court erred in

unreasonably limiting the voir dire examination of the

prospective jurors. Specifically, the appellant asserts he

should have been allowed to question the members of the

voir dire individually regarding ti.eir ethnic prejudices.

APPENDIX

23

Under Art. 35.17, V.A.C.C.P. it ig within the court's

discretion to direct the State and defendant to conduct the

voir dire examination of prospective jurors in the

presence of the entire panel. Only in a capital felony case

must the trial court, on demand by the State or defendant,

allow examination of each juror on voir dire individually

and apart from the entire panel. See Brantley v. State,

522 S.W.2d 519 (Tex.Cr.App. 1975); Wechsier v. State, 361

S.W.2d 379 (Tex.Cr.App. 1962).

In the instant case, the trial court did not restrict any

specific questions presenting the matter of prejudice to

the jury. On the contrary, the appellant was allowed to

ask the following:

“Is there anyone who because of any reason

has any type of prejudice or ill feelings

toward a Mexican-American because of his

ethnic background? Yes, sir, and what is

your name, please, sir?

MR. MOORE: Dean Moore.

MR. SCOGGINS: Dean Moore?

MR. MOORE: Uh-huh.

MR. SCOGGINS: Mr. Moore, I'll then, as I stated,

ask you the second question, if this feeling that you

have, can you set this aside and if you sit in judgment

on this Mexican-American, could you do this fairly

and impartially without regard to whatever your

other ideas may be? Or is it the type of matter in

which you feel like that you probably shouldn’t sit in

judgment of your fellow man?”

. .. Now let me ask the first question again:

Is there anyone who does have a prejudice

against a Mexican-American because of the

group that they happen to fall into? Is there

anyone else? Or let me rephrase the

question in a different manner: Is there

anyone here who has a particular bias or

APPENDIX

24

prejudice in favor of a Mexican-American

that would give him a greater benefit of the

doubt than he might be entitled to after

hearing the evidence? Is there anyone who

is of that opinion? I take it by your silence

then that the group that I'm talking to, no

one here would be influenced because the

man whose case is called to trial is a

Mexican-American, and I appreciate that

fact and I’m sure the Prosecution does as

well.”

Prior cases reversed by this Court for the limitation of

voir dire examination in a non-vapital felony, were done

so because the trial court refused to allow the asking of a

particular question. Emanus v. State, 562 S.W.2d 806

(Tex.Cr.App. 1975). There was no such limitation of

questioning in the instant case,’ therefore, the trial court

did not abuse its discretion in directing that the voir dire

examination be conducted in the presence of the entire

panel. Johnson v. State, 447 S.W.2d 927 (Tex.Cr.App.

1969). This ground of error is overruled.

Ground of error seven contends the trial court erred in

not finding entrapment as a matter of law. -

In the instant case, the issue of entrapment was raised

by the appellant's testimony that he had given up the idea |

of killing Ralston and that had it not been for Moore’s

repeated phone calls and requests for money, he never

would have met with Moore nor given him any money.

When determining whether there was entrapment as a

matter of law, the trial court must first determine whether

there was an inducment. If the court determines there

was an inducement, the court then need only consider the

nature of the police activity involved without reference to

the predisposition of the particular defendant. In the

*The U.S. Supreme Court stated in Restairo v. Ross, 424 U.S. 589,

96 S.Ct. 1017, 47 L.Ed.2d 258 (1976), that voir dire questioning directed

to racial prejudice is not constitutionally required absent circum-

stances comparable in significance to those existing in Ham v. South

Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973).

APPENDIX

25

case, the State contradicts the appellant's

leeets anaicemas Once the appellant contacted

Moore to initite the scheme, the fact that Moore provided

an opportunity for the appellant to continue was not

entrapment as a matter of law.

Evidence on the issue of entrapment was in conflict so it

was properly submitted to the jury. Poe v. State, 513

S.W.2d 545 (Tex.Cr.App. 1974); McKelva v. State, 453

- §.W.2d 298 (Tex.Cr.App. 1970).

Ground of error eight contends the trial court erred in

admitting evidence of tape-recorded conversations

between the appellant and Moore. Appellant first

contends the challenged evidence violated his

constitutional and statutory rights to be free from

unreasonable searches and seizures, arguing that Art. I,

Sec. 9 of the Texas Constitution or Art. 38.23, V.A.C.C.P.

affords greater protection than the United States

Constitution.

In Schwartz v. State, 426 S.W.2d 174 (Tex.Cr.App.

1951), aff'd 344 U.S. 199, 73 S.Ct. 232,97 L.Ed. 231

(1952), this Court, considering a predecessor to Art. 38.23,

held recordings of conversations obtained with the

permission of one party to the conversation was not

obtained in violation of the State or Federal Constitution

or the Statutes of Texas and were therefore admissible.

Saunders v. State, 572 S.W.2d 944 (Tex.Cr.App 1978);

Thrush v. State, supra. The admission of the recordings

did not violate the Texas Constitution or statutes.

The appellant also urges the admission of the tapes

violated his right to due process, citing United States v.

Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973)

in support of his argument. The Supreme Court in

Russell, referring to entrapment, stated only that some

day that Court may be presented with a situation in

which the conduct of law enforcement agents is so

outrageous that due process principles would bar even the

ini*‘ation of prosecution. In the instant case, we did not

find entrapment as a matter of law. Furthermore, as in

Russell, the police conduct in the instant case in

APPENDIX

26

obtaining the tape recordings “stops short of violating

that ‘fundamental fairness, shocking to the universal

sence of justice,’ mandated by the Due Process Clause of

the Fifth Amendment.” United States v. Russell, supra at

432; 93 S.Ct. at 1643, 36 L.Ed. at 373. This ground of error

is overruled.

Ground of error nine asserts the trial court erred in

refusing to instruct the jury to disregard the prosecutor's

question referring to defense experts, because such

question was an attempt to bolster the credibility of

unimpeached tapes. During the cross-examination of the

appellant, the prosecutor asked the following:

Q. Now, you’ve heard these tapes before the

trial, is that correct? You’ve heard—

A. Part of them.

Q. Part of them. Well, you know that the

Judge has ordered me to turn the tapes

over before the trial and I’ve turned them

over to your attorney, copies of them; he

made copies of them, is that correct?

A. ef attorney’s been handling that portion

of it.

Q. And you hired an expert to examine these

tapes.

A. My attorney—

Appellant's objection was sustained, however, the trial

court failed, as requested by the appellant, to instruct the

jury to disregard the question.

This Court has held the mere asking of a question will

not call for reversal unless the same results in obvious

harm tothe defendant. Rodriguez v. State, 577 S.W.2d 491

(Tex.Cr.App. 1979); Ashley v. State, 527 S.W.2d 302

(Tex.Cr.App. 1975); Fuller v. State, 501 S.W.2d 112

(Tex.Cr.App. 1973). In the instant case, the appellant's

objection was sustained and the matter was not pursued

by the prosecutor. Although the trial court did not

APPENDIX

27

instruct the jury to disregard the question, we do not find

court committed error in failing to define

“capital felony” in its charge to the jury. The trial court

did define capital murder, in its charge. Because the

record reflects that no objection was made to the charge at

trial, our review is limited to fundamental error. In

Jackson v. State, 591 S.W.2d 820 (Tex.Cr. App. 1979), this

Court stated:

“A jury charge is fundamentally defective when it:

(1) authorizes conviction without

proof of an allegation in the

indictment which is required to be

proved;

(2) authorizes conviction on a

different theory than alleged in the

indictment and on additional

unalleged theories;

(3) authorizes conviction on the theory

alleged in the indictment and on

additional unalleged theories;

(4) authorizes conviction for conduct

which is not an offense.”

Failing to define a term did not authorize a conviction in

one of the four fundamentally defective manners as set

out above. See Jackson v. State, supra; Cumbie v. State,

penne or 4 ed 1979). This ground of erroris

In his final ground of error appellant contends the trial

court committed fundamental error in its charge by

omitting a culpable mental state, thereby authorizing

conviction on less than all the facts alleged in the

indictment. The indictment, in pertinent parts, reads as

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The indictment included the culpable mental state three

times. The court charged the jury in the terms of the

indictment, however, omitted the first “intentional.”

Although the culpable mental state, intentionally, was

omitted once in the charge, it is included two other times.

In Daniel v. State, 486 S.W .2d 944 (Tex.Cr.App. 1972), this

Court stated:

Considered in its entirety, the charge does not present

fundamental error. See Williams v. State, 535 S.W.2d 352

(Tex.Cr.App. 1976). Compare West v. State, 567 S.W.2d

515 (Tex.Cr. App. 1978) where the charge was

fundamentally defective because nowhere in the charge

was a culpable mental state included. We overrule this

ground of error.

The judgment is affirmed.

PER CURIAM

Delivered April 14, 1982

By: Panel 2; 1st Quarter, 1981

Carl E. F. Dally, Judge

W. C. Davis, Judge

Sam Houston Clinton, Judge

ORDER DENYING MOTION FOR REHEARING

AND

GRANTING STAY OF MANDATE FOR 30 DAYS

COURT OF CRIMINAL APPEALS OF TEXAS

CLERK’S OFFICE

May 26, 1982

Austin, Texas, ....: od

Dear Sir:

I have been instructed to advise that the Court has

this day denied “Leave to File” the .Appellant’s ... Motion

for Rehearing in Cause No. No. 59,838 RAMON CERVANTES

vs.

THE STATE OF TEXAS Appellee.

Sincerely yours,

THOMAS LOWE, Clerk

GROUND OF ERROR NO. 6

THE COURT ERRED IN UNREASONABLY

LIMITING THE VOIR DIRE EXAMINA-

TION OF THE PROSPECTIVE JURORS

IN VIOLATION OF APPELLANT'S

RIGHTS UNDER ARTICLE 1, SECS. 10,

15, AND 19 OF THE TEXAS CONSTITU-

TION AND THE FIFTH AND FOUR-

TEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION.

Although both sides were allowed to address the panel

of prospective jurors as a group, the trial judge forbade

the directing of questions to panel members individually

(S.F. 4), to which Appellant excepted (S.F. 4). Prior to

“The test for ascertaining harm in (cases of

restricted examination) is whether the trial

judge’s limitation of the voir dire

examination amounted to an abuse of

Id. at 808. If the proferred questions in this case were

proper for individual voir dire, the harm arose in

preventing the Appellant from intelligently exercising

strikes. See Smith v. State,513 S.W.2d 823

oolee Burkett v. State, 516 S.W.2d 147 (1974).

Recent guidance on the propriety of Appellant's.

proposed questions can be found in the cases of Florio v.

State, 568 S.W.2d 132 (No. 54,084; July 12, 1978);

Hernandez v. State, 563 S.W.2d 947 (No. 52,802; April 12,

1978); and Trevino v. State, __ 8.W.2d ___(No. 54, 148;

favor of law enforcement officers, this group

' jaterrogatory was ineffective and inadequate. The record

reper dhe: yom ecg tna Amel gp rte =

bias against Mexican-Americans (S.F. 42-44). The

inherently inhibiting and intimidating nature of peer

pressure, such as that operating on a large panel of

prospective jurors, made it unlikely that individual

veniremen would candidly respond to sensitive questions

addressed to the panel as a whole. Fear of exposure,

embarrassment and informal censure possibly deriving

from a public admission of prejudice or bais rendered the

en masse probing ineffectual. While the trial court has

discretion to control the voir dire examination, the

discretion is abused when the defendant's privilege of

examining the veniremen individually is denied.

In De La Rosa v. State, 414 S.W.2d 668 (1967), the Court

held that a 30 minute limitation on individual voir dire

examination was reversible error. In De La Rosa, as in

the instant case, Appellant's counsel “requested the

Court to allow him to propound approximately fifteen

questions which he set out in his motion.” De La Rosa at

670; (S.F. 35-37). In De La Rosa as well as the intant case,

there was no attempt to prolong the voir dire with

irrelevant, immaterial or unnecessarily repetitious

questions. De La Rosa at 671; (S.F. 38-80). The Court

recognized in De La Rosa that effective voir dire

examination ia an essential element of the right to jury

trial, stating that:

{the voir dire process is designed to

insure—to the fullest extent possible—that

an intelligent, alert and impartial jury will

perform the duty assigned to it by our

judicial system.

Id. at 671. Moreoever, the Court noted that “(i)t is well-

established by numerous decisions of this Court that (the)

constitutional guarantee of the right to be represented by

counsel carries with it the right of counsel to interrogate

the members of the jury panel” (emphasis supplied), so

that peremptory challenges might be effectively

exercised. See also Mathis v. State, 322 S.W.2d 629, 639

APPENDIX

34

challenge

condemned.” Pointer v. United States, 151 U.S. 396, 408

(1894). Thus, Appellant's constitutional rights to counsel,

trial by jury, and due process of law were infringed by the

trial court’s actions in this case.

The court in De La Rosa explicitly rejected the

distinctiocn between a trial court’s prohibition of proper

substantive questioning and a trial court's limitation of

the method of questioning, by observing that

[t}he unrealistic time limitation here

imposed had the same effect, however, of

depriving the appellant of asking the

prospective jurors individually proper and

pertinent questions. (Emphasis supplied)

Id. at 672. The duty of the trial court to confine the voir

dire examination to reasonable limits, the Court noted,

does not carry with it, however, the

authority to refuse appellant’s counsel the

privilege of examining each juror

individually within reasonable limits.

(Emphasis supplied)

Id. at 672.

The case of Plair v. State, 102 Tex.Cr.R. 628, 279 S.W.

267 (1926) in on all-fours with the instant case. There, the

defendant was similarly alleging that the trial court erred

in refusing to permit him to examine individually each of

the prospective jurors in order that he might intelligently

exercise his peremptory challenges. The defendant

especially complained that the trial court refused to

permit him to ask each of the jurors sey --ately whether

they had any ..cial prejudice. Holding that ‘he trial

_ court’s action in refusing the individual examination and

substituting in its place collective interrogatory was.

APPENDIX

35

reversible error, the Court acknowledged the type of peer

pressure inherent in large panels of prospective jurors:

We think no case can be found in the state

where it has been held permissible for the

trial court to refuse to allow counsel to

examine the jurors individually as to their

qualification. We think the distinction is

clear between an examination of this

character and the mere asking of jurors the

same questions in a group. There is a

certain degree of timidity and diffidence

about some jurors that would be calculated

to cause them to remain silent unless

personally called upon to answer any

question. Again we think it clear that the

right to appear by counsel carries with it the

right of counsel to interrogate each juror

individually, to the end that he may form

contact with the juror as to whether, in the

counsel's judgment he would be acceptable

to him, or whether on the other hand he

should exercise a peremptory challenge to

keep him off the jury. (Emphasis supplied)

Id. at 269. The fact that the trial judge in the instant case

was willing to allow Appellant to pursue responses

individually if such a response resulted from the group

voir dire does not distinguish the instant case from Plair.

The trial judge in Plair propounded questions to the jurors

collectively, “with an admonition that the questions were

directed to each individually, and for any one to speak up

and answer, which was done.” id. at 268 (Emphasis

supplied). This procedure was nonetheless held to be

reversible error. In accord, Naugle v. State 40 S.W.2d 92,

94 (1931); Carlis v. State, 51 S.W.2d 729, 730 (1932).

De La Rosa has been consistently and frequently cited

by this Court and was affirmed in Hernandez v. State, 508

S.W.2d 853, 854 (1974); Barrett v. State, 516 S.W.2d 181,

183 (1974XOnion, P.J., dissenting). And Plair was

APPENDIX

36

reaffirmed as recently as April 5, 1978 in Trevino v. State,

572 S.W.2d 336 (No. 54,148).

For the reasons stated, the cause should be reversed

and remanded.

STATE’S COUNTERPOINT NO. 6

(In Reply to Appellant’s Ground of Error No. 6)

NO ERROR WAS COMMITTED DURING THE

VOIR DIRE OF THE PROSPECTIVE JURORS.

The Appellant next states that the trial judge

specifically, he contends that “. . . the trial judge forbade

the directing of questions to panel members

individually . . .” (Brief p. 23).

Prior to the voir dire examination, the trial judge ruled,

as follows:

You may ask these questions collectively of

the jurors as a group and if there is an

individual response in the affirmative or

negative from any individual juror, then

you may proceed with a follow-up question

of that particular juror.’ (S/F 37-38).

Thus, the defense was not, in fact, prohibited from asking

the individual jurors any specific questions. Moreover,

the record reflects that some veniremen were also

questioned outside the hearing of the others. (S/7 42, 53,

54, 55, 62, 64). The record also shows that the defense was

permitted to individually question the veniremen when

they responded to the general questions. (S/F 65 et. seq.).

As stated in Abron v. State, 523 S.W.2d 405

(Tex.Cr.App. 1975): “This Court has consistently held

that the trial court has wide discretion over the course of

the voir dire of the jury panel.” The procedure followed in

the present case did not constitute an abuse of discretion

by the trial court. See United States v. Arlt, 567 F.2d 1295

(5th Cir. 1978); see also the cases collated at 25 Texas

Digest, Jury, Section e31(13).

APPENDIX D - EXCERPT FROM STATE’S ORIGINAL

BRIEF

GROUND OF ERROR NO. 6

In this ground, appellant complained of the court's

refusal to permit questioning of individual veniremen as

to questions such as ethnic prejudice during his voir dire

examination of the entire venire panel as a group. The

trial court had ruled that such examination would not be

allowed unless indicated by specific responses to the

examination of the venire panel as a whole. Appellant

cited cases reversed for refusal to permit the asking of

certain questions, e.g., Emanus v. State, 526 S.W.2d 806

(1975), Florio v. State, 568 S.W.2d 132 (1978), as well as

cases reversed for imposition of other limitations on the

voir dire examination, e.g., De La Rosa, 414 S.W.2d 668

(196730 minute time limitation), Plair v. State, 279 S.W.

267 (1926)(veniremen could not be questioned

individually unless they made a particular response to

group interrogatories).

THE PANEL OPINION MISSED THE BOAT

Incredibly, the panel either deliberately ignored or

misunderstood 1) what actually happened in the trial

court, 2) the totality of appellant’s argument on appeal,

and 3) all of the cases in the second category cited above.

The undersigned writer reaches this conclusion, in part,

by noting the court’s reliance on Johnson v. State, 447

S.W.2d 927 (1970), Brantley v. State, 522 S.W.2d 519(1975)

and Wechsler v. State, 361 S.W.2d 379 (1962) which held

that voir dire examination of individual veniremen

separate and apart from the rest of the panel is only

appropriate in capital murder cases. This is indeed the

law but this is NOT appellant's complaint on this appeal.

The cases cited by the panel have nothing whatsoever to

do with this case.

The panel's failure to address the issue actually raised

in the appeal is all the more surprising since appellant

informed the panel at oral argument on January 14, 1981,

that Ground of Error 6 was his strongest ground. At that

time, the panel propounded numerous questions to’

APPENDIX E

39

counsel for both parties on this issue. Both parties filed

post-argument briefs specifically addressing the difficult

question presented in Ground of Error No. 6. The panel

opinion is silent on both the facts and the law which both

parties heretofore understood were presented by this

ground of error.

APPELLANT'S GROUND RESTATED

As the panel opinion noted, appellant was permitted to

ask his question about ethnic prejudice (of the venire as a

whole). The panel therefore held that appellant's voir dire

examination was not unduly limited, citing Emanus v.

State, supra. But the panel did not consider whether

appellant could direct his proper question to each member

of the panel individually, during the group voir dire, or

whether the court could require appellant to direct it to the

venire as a whole, addressing only those specific

veniremen who responded to the general interrogatory.

This was the question presented both in this case and in

Plair v. State, 279 S.W. 267 (1926). It would serve no

purpose to recite pages of the trial record and appellate

briefs to identify this question again; it is unmistakably

preserved in the trial court and assigned as error in the

briefs already on file with this Court.

MERITS OF APPELLANT'S ARGUMENT

GENERAL AUTHORITY

Voir Dire examination in non-capital cases in Texas

has always included the right of counsel to propound

proper questions to each individual member of the jury

panel. Plair v. State, 279 S.W. 267 (1926)(on Rehearing).

The right to appear by counsel is

guaranteed by the (Texas) Bill of Rights,

and carries with it the right of counsel,

within reasonable limits to examine each

juror individually in order that he may

prepare himself for the exercise of the

peremptory challenges allowed that

appellant by statute. Article 1, § 10,

APPENDIX

40

Constitution of Texas, article 3, C.C.P.

1925; (citations omitted).

Carlis v. State, 51 S.W. 2d 729, 730 (1932Xemphasis

supplied).

It has been long the holding of this court

that the constitutional guarantee of the

right to be represented by counsel (Bill of

Rights, Art. 1, Sec. 10, Vernon’s

Ann.St.Const.) carries with it the right of

counsel to interrogate the members of the

jury panel to the end that he may form his

judgment he would be acceptable to him or

whether, on the other hand, he should

exercise a peremptory challenge to keep

him off the jury. (citations omitted).

Mathis v. State, 322 S.W.2d 629, 631 (1959\emphasis

supplied) quoted by Judge Odom in Abron v. State, 523

S.W.2d 405, 408 (1975).

[Thhe right to appear by counsel carries

with it the right of counsel to interrogate

each juror individually, to the end that he

may form his own conclusions after this

personal contact with the juror as to

whether, in the counsel’s judgment, he

would be acceptable to him, or whether on

the other hand he should exercise a

peremptory challenge to keep him off the

jury.

Plair v. State, supra (emphasis supplied), quoted by Judge

Dally in Mathis v. State, 576 S.W.2d 835 (1979). The right

to individual questioning applies even if the questioning

is repetitious.

So long as the method of jury selection long

used in this state prevails—as opposed to

practice in federal court—defense counsel

may not be precluded from the traditional

voir dire examination because the

APPENDIX

41

questions asked are repetitious of those

asked by the Court and prosecutor.

Mathis v. State, 576 S.W.2d 835, 839 (1979). If the Court

within its discretion sets time limits on the voir dire

examination, nevertheless,

. . within such limits the defendant may

examine each prospective juror

individually and pose questions about any

proper area of inquiry.

Florio v. State, 568 S.W.2d 132 (i974\per Odom,

J.Xemphasis supplied).

MERITS OF APPELLANT'S ARGUMENT

WHITE HORSE CASE

Plair v. State, supra, is on all-fours with the instant

case. There, the defendant was similarly alleging that

the trial court erred in refusing to permit him to examine

individually each of the prospective jurors in order that

he might intelligently exercise his peremptory

challenges. The defendant especially complained that

the trial court refused to permit him to ask each of the

jurors separately (but during the group voir dire) whether

they had any racial prejudice. Holding that the trial

court’s action in refusing the individual examination and

substituting in its place collective interrogatory was

reversible error, the Court acknowledged the type of peer

pressure inherent in large panels of prospective jurors:

We think no case can be found in the state

where it has been held permissible for the

trial court to refuse to allow counsel to

examine the jurors individually as to their

qualification. We think the distinction is

clear between an examination of this

character and the mere asking of jurors the

same questions in a group. There is a

certain degree of timidity and diffidence

about some jurors that would be calculated

to cause them to remain silent unless

personally called upon to answer any

question. Again we think it clear that the

APPENDIX

42

right to appear by counsel carries with it the

right of counsel to interrogate each juror

individually, to the end that he may form

his own conclusion after this personal

contact with the juror as to whether in the

counsel’s judgment he would be acceptable

to him, or whether on the other hand he

should exercise a peremptory challenge to

keep him off the jury (emphasis supplied).

Id. at 269. The fact that the trial judge in the instant case

was willing to allow appellant to pursue responses

individually if such a response resulted from the group

voir dire does not distinguish the instant case from Plair.

The trial judge in Plair propounded questions to the jurors

collectively, “with an admonition that the questions were

directed to each individually, and for any one to speak up

and answer,” which was done.” id. at 268 (emphasis

supplied). This procedure was nonetheless held to be

reversible error.

This Court in De La Rosa v. State, 414 S.W.2d 668 (1967)

reversed a conviction because the 30 minute time

limitation for voir dire imposed by the trial court wag@not

sufficient to accord the defendant his state constitutional

right to counsel. The duty of the trial court to confine the

voir dire examination to reasonable limits, the Court

noted,

does not carry with it, however, the

authority to refvs< appellant's cuunse: ine

privilege of examining each juror

individually within reasonable limits.

(emphasis supplied)

Id. at 672. En masse questioning of the entire pane! is

simply inadequate to ascertain factors such as

in , quickness, temperament, and subtle

prejudices that individual questioning can pick up. Texas

lawyers look for these qualities in picking a fair and

impartial jury.

SUMMARY

The Court of Criminal Appeals, en banc, should

consider the question raised by this appeal and should

either distinguish or overrule Plair and De La Rosa. If the

procedure actually employed by the trial court in this case

really did receive express sanction by this Court, it would

not be long before individual questioning of prospective

jurors during group voir dire of the whole venire panel

would be a thing of the past in Texas. Besides the major

implications for voir dire practices in Texas contained in

this appeal, there are also the rights of one individual

criminal defendant to consider. The issues should not be

avoided and buried in a per curiam opinion.

APPENDIX