Rousseau v. State

BAIRD, Judge,

dissenting.

For the following reasons I dissent to the disposition of appellant’s fourth point of error.1

I.

During his introductory remarks to the complained of panel, the trial judge stated:

Now, then, Issue 1 and 2, as well as Issue 3, if it is submitted to you, if you answer all of those Special Issues yes then the law mandates the Judge to assess the punishment at death for the
Defendant. If, however, you answer either one of those questions no, then the law mandates the Judge to assess the Defendant’s punishment at life imprisonment. So, that is the way we arrive at the punishment. So, you do not assess it but that’s the way its arrived at. Does everyone understand that?

At the conclusion of this statement there was a conference at the bench, after which, the trial judge stated:

The lawyers are telling me you’re not supposed to know. I appreciate that. But, the verdict must be unanimous and they all must be in the affirmative.

At the conclusion of the trial judge’s introductory remarks, the panel was excused from the courtroom, and the following exchange occurred:

THE STATE: Your Honor, for the record, the State would move to strike the whole panel under [Tex.Code Crim. Proc.Ann. art.] 37071G wherein the Court inadvertently informed the juror [sic] to a question [sic] in favor of one juror to agree to an issue [sic] would result in a life sentence. We feel that that’s an accounting, poor, [sic] even in an instruction [sic] disregard [sic] in the language of the statute and in spirit of fundamental fairness we would ask the panel be struck.2
THE COURT: All right.
APPELLANT: We would object to the panel being quashed, Your Honor.
THE COURT: All right. Okay. The court’s going to grant the State’s motion to quash the panel.

II.

Appellant contends the trial judge erred in excusing the panel in the mistaken belief that he had violated art. 37.071(g). At the time of appellant’s trial, art. 37.071(g) provided:

*689The court, the attorney for the state, or the attorney for the defendant may not inform a juror or a prospective juror of the effect of failure of the jury to agree on an issue submitted under this article.

The trial judge did not violate art. 37.-071(g). The trial judge did not inform the panel of the effect of the failure to agree on the punishment issues, only that the punishment depended on how the issues were answered.

In order to place its judicial stamp of approval on the trial judge’s excusal of ten veniremembers from a jury list promulgated in accordance with the restrictions and protections provided by the Legislature, see, infra, the majority holds:

... Under these circumstances, prior to individual voir dire and impanelment, we hold the trial court did not abuse its discretion in dismissing the group and therefore no error is presented.

Rousseau, 855 S.W.2d at 676.

The majority does not cite any statutory or decisional authority in support of this holding. Indeed, there is none.

III.

Such a broad grant of discretionary authority improperly permits the trial judge to override our legislative provisions concerning the selection of a jury. The Legislature has prescribed strict procedures for the selection of juries in our State. Potential jurors are summoned from either the registered voters of the county or persons, living in the county, who hold a valid drivers license or personal identification card issued by the Department of Public Safety. Tex.Gov’t Code Ann. § 62.001. From these sources, jury lists are either manually, mechanically or electronically drawn. Tex. Gov’t Code Ann. § 62.004 and § 62.011. If manually drawn, a party may be present and observe the drawing of the jury list for the time period in which the party’s case is set for trial. Tex.Gov’t Code Ann. § 62.-005. The trial judge informs the clerk of the date prospective jurors are to be summoned to appear. The clerk takes the jury list, in the consecutive manner in which it was prepared, makes a notation on the list concerning the date such prospective jurors are to appear, and delivers the list to the county sheriff. Tex.Gov’t Code Ann. § 62.-012. The sheriff summons each prospective juror to appear at the time and place ordered by the trial judge. Tex.Gov’t Code Ann. § 62.013. A prospective juror who fails to appear is subject to contempt. Tex. Gov’t Code Ann. § 62.0141 and, Tex.Code Crim.Proc.Ann. art. 35.01.3

A jury panel, or venire, is selected from the prospective jurors who appear for service. Tex.Gov’t Code Ann. § 62.015. See also, Tex.Code Crim.Proc.Ann. art. 35.11.4 Members of the venire are disqualified unless they meet the qualifications of Tex. Gov’t Code Ann. § 62.102, § 62.105; and Tex.Code Crim.Proc.Ann. arts. 35.03, 35.04, 35.05, and 35.12.

In a capital proceeding, such as the instant case, the legislature has provided for the summoning of a “special venire.” Tex. Code Crim.Proc.Ann. art. 34.01. A copy of the names of veniremembers summoned must be served upon the defendant two *690days prior to trial. Tex.Code Crim.Proe. Ann. art. 34.04. When the venire has been assembled, voir dire may be commenced. Tex.Code Crim.Proc.Ann. art. 35.17. A veniremember may be challenged for cause if the veniremember fails to meet the qualifications discussed supra, or for reasons specified in Tex.Code Crim.Proc.Ann. arts. 35.16, and 35.21.

Either party may peremptorily challenge a veniremember for any reason.5 Tex.Code Crim.Proc.Ann. art. 35.14. In a capital case, each party holds fifteen peremptory challenges. Tex.Code Crim.Proc.Ann. art. 35.15. During voir dire, a veniremember is passed first to the State for acceptance or challenge and then to the defendant. Tex. Code Crim.Proc.Ann. art. 35.13. The first twelve veniremembers not challenged, either for cause or peremptorily, constitute the jury. Tex.Code Crim.Proc.Ann. art. 35.26. If the jury answers the punishment issues submitted pursuant to Tex.Code Crim.Proc.Ann. art. 37.071(b) in the affirmative, the trial judge must sentence the defendant to death. There is no legislative authority to support the majority’s holding.

IV.

Just as it ignores our legislative provisions, the majority finds itself no longer burdened with our decisional authority. The majority cites no precedent for their holding and makes no attempt to support their holding by discussion of analogous case law. The importance of preserving the jury list has long been recognized. In 1881, the Court of Appeals held:

We are informed by bill of exceptions that eight jurors were accepted and sworn to try the case, and that one ... being informed that there was sickness in his family, the court, upon its own motion, and without first having the consent of the defendant or his counsel (the defendant however not objecting), discharged [the veniremember] from serving as a juror in the case.
‡ ‡ $
That the defendant had not exhausted his peremptory challenges cannot in the least degree affect the question. He had a right to that juror — a right given to him by the law of the land. He may have had fifty peremptory challenges remaining, but we are at a loss to understand in what manner he could have exercised these challenges so as to restore to the eight the excused juror. Challenges are for the purpose of ridding the jury of obnoxious jurors, but can never replace one who has been wrongfully or rightfully excused. Though a juror may be without bias or opinion in the case, indeed honest and perfectly competent in every respect, he may possess qualities which would render him very acceptable to the State or defendant. This fact is looked to with great care in the formation of the jury in almost every case. Again, if the judge can, without necessity, excuse from the list of veniremen a juror, though not accepted and sworn, the law requiring a special veni-re and service of copy of the same would be to a great extent thwarted.

Hill v. State, 10 Tex.App. 618, 622-623 (Tex.App.1881). See also, Ellison v. State, 12 Tex.App. 557 (1882); and, Sterling v. State, 15 Tex.App. 249 (1883).

We have reviewed related issues. In Houston v. State, 162 Tex.Crim. 551, 287 S.W.2d 643 (Tex.Cr.App.1956), we held a defendant may waive error under Hill by affirmatively consenting to the excusal of a juror.6 The Court held:

*691In the case at bar, it is shown that the careful trial court gave the accused his option at every stage in the process of jury selection, and the appellant, we have concluded, should not now be allowed to complain that he exercised such option unwisely.

Houston, 287 S.W.2d at 646.

In Draughon v. State, 831 S.W.2d 331 (Tex.Cr.App.1992), the defendant complained “the trial judge erroneously allowed a State’s challenge for cause against a veniremember who had already been accepted for jury service, sworn and empan-elled (sic).” Draughon, 831 S.W.2d at 334. However, we held the trial judge may reconsider the qualifications of a venire-member at any time. The Court stated:

... At least where, as here, the entire jury has not yet been selected and no evidence received in trial of the cause, the judge is permitted general discretion to allow further examination and to entertain additional challenges when it comes to his attention that a previously selected juror may be objectionable for cause, excusable, or otherwise disqualified from jury service.

Draughon, 831 S.W.2d at 335.7

Although we have modified our holding in Hill, we have consistently required proof of the defendant’s consent or of some juror disqualification before excusing a veniremember. See, Houston and Draughon, supra. By its actions today, the majority brings to reality the fear recognized by the Court in Hill and permits the trial judge to “thwart” our laws concerning the formation of a jury. Hill, 10 Tex.App. at 623. Under the majority opinion, there no longer is a need to summon venire-members in the order in which they were drawn to be tried as to their qualifications. Tex.Code Crim.Proc.Ann. art. 35.20. No need to deliver consecutive lists of jurors to the sheriff. Tex.Gov’t Code Ann. § 62.012. There may not even be a need to summon all the jurors on the list. Tex.Gov’t Code Ann. § 62.013. Failure to comply with our jury selection statutes is now subject to the discretion of the trial judge. Rousseau, 855 S.W.2d at 676. Certainly, our opinions in Hill, Houston, and, Draughon, supra, are worthy of discussion by the majority. These holdings have not been overruled.

V.

My research reveals no instance wherein the trial judge has been given carte blanche authority to dismiss a veniremember for no reason. In the instant case the trial judge dismissed ten veniremembers with no legal basis. Although the State argued a violation of art. 37.071(g), the record clearly demonstrates there was no such violation. Based upon my research, I would find the trial judge erred in excusing the venire-members without a legal basis.

With these comments, I respectfully dissent.

. Appellant’s fourth point of error states:

THE TRIAL COURT ERRED IN GRANTING, OVER DEFENSE COUNSEL'S OBJECTION, THE STATE'S MOTION TO QUASH THE JURY PANEL AFTER THE TRIAL COURT MISTAKENLY BELIEVED IT HAD VIOLATED THE PROHIBITION SET FORTH IN ARTICLE 37.071(G), V.A.C.C.P., DURING ITS INTRODUCTORY REMARKS TO THE PANEL.

. Unless otherwise indicated, all emphasis herein is supplied by the author.

. Tex.Code Crim.Proc.Ann. art. 35.01 provides:

When a case is called for trial and the parties have announced ready for trial, the names of those summoned as jurors in the case shall be called. Those not present may be fined not exceeding fifty dollars. An attachment may issue on request of either party for any absent summoned juror, to have him brought forthwith before the court. A person who is summoned but not present, may upon an appearance, before the jury is qualified, be tried as to his qualifications and impaneled as • a juror unless challenged, but no cause shall be unreasonably delayed on account of his absence.

. Tex.Code Crim.Proc.Ann. art. 35.11 provides:

The trial judge, on the demand of the defendant or his attorney, or of the State’s counsel, shall cause a sufficient number of jurors from which a jury may be selected to try the case to be randomly selected from the members of the general panel drawn or assigned as jurors in the case. The clerk shall randomly select the jurors by a computer or other process of random selection and shall write or print the names, in the order selected, on the jury list from which the jury is to be selected to try the case. The clerk shall deliver a copy of the list to the State's counsel and to the defendant or his attorney.

. A peremptory challenge may not be exercised for the purpose of excluding persons from the jury on the basis of their race. Tex.Code Crim. Proc.Ann. art. 35.261.

. In Houston the following occurred:

... After several of the venire had been selected, sworn and sent to the jury room, the juror ... was selected and joined the others. While waiting for the jury to be completed, [the juror] fell backward in his chair and sustained certain injuries. This fact was made known to the court, who, after securing the approval of the appellant personally and his counsel, sent a doctor, accompanied by an officer, to the jury room. The doctor reported to the court that [the juror] required immediate hospitalization and would be unable to sit on the trial. At this juncture, the court explained to appellant personally and to his counsel that [the juror] might *691be excused from the panel if all agreed, and if they did not agree the veniremen who had been selected would be discharged and the trial would be held at a later date. After consultation with his attorneys, the appellant agreed to discharge [the juror] and continue with the selection of the panel. After the panel was completed without the appellant having exercised all of his challenges, the court again called the appellant and his counsel to the bench and offered to discharge the completed panel and start all over again if the jurors then in the box were not satisfactory to all concerned. The appellant again stated that the jury which they had just completed selecting was satisfactory to him.

Houston, 287 S.W.2d at 645.

. In a footnote, the Court held Hill did not control situations such as those in Houston and Draughon wherein the defendant either expressly consented to the discharge of the juror or the juror was disqualified under our statutes. Draughon, 831 S.W.2d at 335, n. 4.