Armstrong v. State

being ju- such information provided in capital proceedings.

ries I also do not Legislature’s

believe that the in not silence 37.071,

amending pro- Article V.A.C.C.P. to parole capital

vide for law instructions in

proceedings necessarily should be construed Legislature affirmatively mean that

meant that such instructions should not be

given capital unwilling cases. I am absolutely

conclude that such silence indi- legislative body

cates that the of Texas re-

viewed our decisions in caselaw somehow

affirmatively opin- decided that this Court’s represented

ions on the issue its intentions. agree

Because I that information about the parole necessarily

effect of is not within the Penry evidence, mitigating agree

ambit of majority’s disposition

with the point

error number three. I therefore concur

in the results reached. ARMSTRONG,

William Brooks

Appellant, Texas, Appellee.

The STATE of

No. 540-93. Appeals Texas,

Court of Criminal

En Banc.

March Appel- imprisonment. him to life

sentenced was affirmed the Sixth lant’s conviction Armstrong v. Appeals. Court of 1992), va- (Tex.App. —Texarkana (Tex. grounds, other cated on 845 S.W.2d 909 (Tex. Cr.App.), on remand 1993). appeal appel- App. On —Texarkana court argued lant the trial erred denying his motion for new based both a misconduct appeals court during tor voir dire. The misconduct and held that there was no its the trial court did not abuse discretion appellant’s for new trial. We denying motion discretionary granted appellant’s petition for holding. Tex.R.App. to examine this review 200(c)(3). Pro., Rule I. appellant appeal, claimed there was

On during misconduct voir dire because Thornburrow, Marilyn who panel member jury foreperson, subsequently became the relationship to coun- her not disclose Wells, ty attorney, Tom who one prosecutors appellant’s Appellant trial. because, had he that he was harmed claimed relationship, he would have known challenge per- for cause either a or used against emptory strike Thornburrow. dire, During voir asked following questions: “Now, any of who have are there say acquainted well any well, I will are so — know most of with Mr. Wells—I him, hopes he that all of know know office, or him —or with Mr. Ashmore Superville, that’s assis- another Mr. Chuck Jackson, White, Dallas, Frank Judith L. tant, They are Mr. Scott McDowell? or appellant. for any of prosecution Are there staff. Wells, Ashmore, County Atty., Kerye Tom so connected with them who are well Huttash, Atty., Paris, County Asst. Robert or with them acquainted associated Austin, Atty., for the State. State’s I take it it affect verdict? are none.

there you who have Are there ON APPELLANT’S PETITION OPINION Attor- special connection with FOR DISCRETIONARY REVIEW office, ney’s perhaps a close friend office, secretary, investigator or like?” PER CURIAM. Thornburrow, panel all the murder, along with other pur- A convicted members, Code, 19.02, questions. to these § did not suant Penal to V.T.C.A. county Later, auxiliary help in at- mean the prosecuting asked the office, anyone in torneys and I do not know following question: attorney’s county office.” fail to ask a “Sometimes we (sic) respond to that she did not your qualifications. She testified touches on question prosecutor’s because: My question you to at this time is is there already you “I that I had answered the anything that can think of that felt already I question.... I felt like just your qualifications not in touches on responded fairness and I did not about the specific you that case but case come forward.” pointed think to be out to me and needs attorney] and the [the Mr. Jackson defense that she was ex- Thornburrow also testified so, your pecting If to ask whether or not she court at this time? raise hand someone No one did: knew Wells. you may approach and want to the bench presence you say in “Q. and tell it to the court out the But [of] [defense counsel] jurors.” your waiting that were to be affidavit of the other question the about asked ques- did Thornburrow to this Tommy to and no one ever did. Wells part, tion. For his defense counsel did not Correct? any questions concerning possible ask rela- assinning IA. was would ask a tionships panelists and between the question jury panel.” all the prosecutors. State, appeals, citing The court of Jones v. hearing appellant’s At the on motion for 134,137 (Tex.Cr.App. Op.] [Panel undisputed new there was evidence that 1980), held that there was no miscon- approxi- Thornburrow had known for Wells duct. No material information was “with- mately years him 26 or and described as a panel- held” because no one ever asked the friend; Thornburrow’s husband and Wells they acquainted ists if or were with the knew had been the “best man” in each other’s prosecutors one ever asked Thornbur- —no weddings; Thornburrow’s husband was serv- acquainted row she knew or was ing campaign during as Wells’ treasurer judge questions and Wells. capacity time of trial and had served in that subjective If prosecutor were in nature. campaign. in the 1988 acquain- Thornburrow concluded her hearing testified at Thornburrow on prosecutor with the would not affect tance the motion for new trial that she had an- juror, appro- ability her to a fair then the be questions all the at the voir dire swered priate questions response to those was no honestly. in response. Accordingly, appeals She testified that her silence court of not abuse its discre- response question by judge to the first held the trial court did by denying appellant’s tion motion for new appropriate response was the because her trial. relationship with Wells would not affect her ability juror: to be fair as a II. question fairly. ques- “I answered His process designed The voir dire anyone enough tion was did we know well insure, possible, fullest extent that an fair, keep being my from and re- us alert, disinterested, impartial, intelligent, and sponse that I indicated knew no one well duty assigned jury perform truthful will myself being enough keep fair.” 137; Jones, supra, at De La Rosa v. to it. response testified that her silence in She (Tex.Cr.App.1967). question by judge was the

the second information When a withholds material appropriate response because she understood process, parties are de the voir dire auxiliary question asking about be chal opportunity to exercise their nied county attorney’s staff in the office: hampering their of a lenges, thus selection question “That the second jury. impartial and Salazar disinterested already He had asked the asked. (Tex.Cr.App. prosecutors 1978). I question However, about the re- Op.] defense counsel [Panel

sponded obligation questions could be fair. When calculated has an ask might asked, bring question I took that to out that information which second juror’s holding in inability to be im- information.1 our said to indicate desired Given Jones, say appeals Jones, we cannot the court of partial supra, and truthful. at 137. to find that there was no miscon- erred questions, defense such Unless counsel asks duct.2 juror fails the material information which a really Id.

to disclose is not “withheld.” III. instance, argued In this defense counsel Appellant appeal also questions denying to elicit trial court erred his motion for ask needed Appellant argues something is enti- heard the radio. The that defense counsel about it on rely on the tled to asked court have is whether or not what However, prosecutor. nei- correct. regard This is heard or read would as evidence prosecutor the court nor ther asked your in the and whether it affect verdict necessary anyone panel question know the anyone affected case. Is there who would be —did by Appellant questions Wells. the the claims that by any publicity has received?” that the case obviously judge prosecutor trial and the were panel prose- responded. the No one in the Later attempting to elicit which venire- the information anyone cutor asked if read about the case in had However, person Thornburrow withheld. a re- radio, newspaper, or the heard it on the about supports view of the entire the court voir dire of any ju- had conversations about it. Numerous appeals’ analysis. responded prosecutor affirmatively rors First, panel questioned regard- before the was questioned individually then them as to whether ing prosecutors, judge questioned the the them ability would affect their to be fair. Thorn- this concerning the defendant and the victim. The jurors. was one of burrow these judge general first made some observations: “Now, things there are that we certain basic failing dissent faults to find Von 2. The us for in, going need to know and one of them is State, (Tex.Cr.App. January v. 576 S.W.2d 43 you acquain- might whether or not be so well 1978), controlling. Slip op. at In Von alleged ted or even related to either the victim January jury panel the defense asked the preclude you or the defendant it would anyone family. knew the if victim or the victim’s basing your entirely from on the evi- verdict Dunn he knew Veniremember did not reveal that Now, county dence. of in a like this we course family. jury panel the victim and his The here people may know a lot of and there be some of simply they was not asked if knew Tom Wells you alleged that know the the defendant or County they any prosecutors knew of the in the you may deceased. The mere fact that know Attorney's panel they Office. asked if was you. automatically disqualify them would not might them so that it their knew well affect of acquain- question It’s a of or not the whether January distinguishable it in- verdict. Von as tance and the that it would is such question unambiguous volved a direct and —do keep you honing in on the evidence and ques- you know the victim?—whereas here the basing your entirely verdict on the evidence. required tion the veniremembers to determine might prejudice you, It words.” in other any knowledge they had would affect whether judge anyone Then the asked if knew the defen- making anyone so their decision know point and if At this dant so raise their hands. —do might your well that it verdict? In Von affect judge questioned panel the members indi- those January Court was not the excused, this stated that it vidually. Some some were not. were finished, juror's function to whether his relation- anyone decide judge After that was the asked if ship subject question to the the made him knew the victim and if so raise their hands. Here, however, unacceptable. essentially judge proceeded panel then these that is However, individually. judge jurors being the were decide. members when what the asked to questioned panel regarding the the members that, argues regardless the The dissent also (and prosecutors subsequently, the defense about used, questions was words the of the intent attorneys) questioning procedure used questions were “clear- "clear.” The court's 366, noticeably judge p. was See ante. different. panel ly” meant to whether of the determine Second, procedure judge used Attorney’s had friends in Office. questioning panel pretrial publicity was on assumption by if this is accurate Even the dissent strikingly ques- procedure similar used First, holding it would not alter in this case. tioning panel prosecutors. regarding Ini- juiy panel answer the role of the members is to tially judge the trial asked whether asked, questions they which not to at- are anything panel members read or heard tempt questioner. divine the Von intent of the might ability impartial: affect their to be fair Second, January, what is “Now, 576 S.W.2d at 45. may my it [sic] be some eveiy- to the dissent obvious to “clear" is not so received about this have some information questions else. The did not have this "clear” one in the case which affect verdict Thornburrow, County case, meaning venireperson something. perhaps have read Wells, (who newspaper. Attorney denied the up recall that it was written or, trial), course, appeals, new read about motion for now, the court of Of mere fact that Third, majority disqualify you, the dis- paper case in the this Court. wouldn’t in- Wells, duty to volunteer has an affirmative county attorney, tor new because relationship with Thorn- could have disclose his that defense counsel did not formation this Although appellant included burrow. by questioning panel. easily obtained point regarding allegation in his of error appeals therefore concluded The court of misconduct, appeared to be not abuse its discretion trial court did independent prosecutorial claim of making an trial. appellant’s motion for new denying Appellant claimed misconduct. duty to dis- prosecutor had an affirmative previously held that This Court has and that close this to the defense furnish defense obligation no has State duty Disciplinary Rules arose under the ju prospective information counsel with 3.09, Conduct, and un- of Professional Rule readily avail information was rors where the 2.01, The court of der Article V.A.C.C.P.3 Linebarger on voir dire. able to the defense prosecu- appeals not convinced that the State, (Tex.Cr.App. contrary in this tor’s conduct case 1971); Enriquez v. Further- disciplinary rule or to Article 2.01.4 Martin v. (Tex.Cr.App.1968); more, find no appeals the court of could (Tex.Cr.App.1979); Redd v. authority proposition for the that a except prosecutor, to the when mation known sent's contention that the intent of the responsibility responses prosecutor is relieved of this consti- was such that Thomburrow's tribunal; and withholding contrary by protective order of the tute information is to this a Jones, (e)exercise prevent persons holding supra. reasonable care to Court’s Jones prosecutor juiy panel anyone employed in a defense asked the or controlled extrajudicial engaged making an had close friends in law enforcement. criminal case prosecutor prohib- Venireperson would be Martinez did not reveal that she statement that the previously employed jail guard. making a under Rule 3.07.” had been as ited from 3.09, Scope venireperson Source and of This Court held that the did not Comment Rule reads, "Clearly” Obligations, part: de- in relevant withhold material information. determining prosecutor responsibility has the to see fense counsel was interested in "1. A done, anyone panel simply justice and not to be an whether on the was biased in favor that is enforcement; responsibility carries with it a of law however he did not ask advocate. This bring obligations_ prose- necessary specific [A] which were out this number of obliged is information. is to see that the defendant cutor procedural justice, defen- that the accorded Appellant predicated argument 3. on the for- guilt upon decided the basis of suffi- dant’s is Responsibility, mer Code of Professional Ethical evidence, any imposed cient and that sentence appeals Consideration 7.13. As the court of not- unprivileged information known is based on all ed, 1, 1990, January year than a effective more (d).” prosecutor. paragraph to the See case, prior § to the trial in this article 10 9 of the Ann., G, Code Title Subt. Vernon’s Tex.Gov't Disciplinary Rules of Professional Conduct was A, (1994). § App. Art. 10 adopted and the former Code of Professional 2.01, V.A.C.C.P.,reads, in rele- Article Current Responsibility repealed. was part: vant 3.09, Special Responsibilities a Current Rule of primary duty prosecuting of all "It shall be the Prosecutor, reads: including special prosecutors, attorneys, convict, not to prosecutor in a criminal case shall: "The justice is but to see that done.” (a) threatening prosecuting refrain from or prosecute charge prosecutor that the knows testified, hearing prosecutor on the at the The cause; supported by probable is not trial, that Thom- for new that he believed motion (b) conducting assisting or in a refrain from accurately truly all had and answered burrow interrogation unless custodial of an accused questions posed and that she would be fair to her prosecutor has efforts to made reasonable impartial. he had con- He further testified and advised be assured that the accused has been striking because she sidered Thomburrow to, any right procedure and the for obtain- Thomburrow testified that liberal Democrat. ing, given and has been reasonable counsel previously in a criminal served as she counsel; opportunity to obtain prosecutor and that which Wells was the trial in (c) encourage not initiate or efforts to obtain acquit that the defendant in she had voted to unrepresented accused a waiver of from an case. rights; important pre-trial post-trial or argue, (d) the evidence timely Appellant does not and the defense of all make disclosure to support argument, that Thombur- would not evidence or information known to against appellant Wells and that negate guilt the accused row was biased tor that tends to offense, and, kept so that Thombur- mitigates their a secret in connection or help get jury sentencing, on the in order to the defense and to row could disclose mitigating unprivileged infor- State. the tribunal all 129,131 Later, (Tex.Cr.App.1979). conclusion of the State’s voir at the dire, Attorney asked appeals of the court of the follow- conclusion ing question: certainly holdings. with these consistent We say appeals cannot the court of to find erred we fail to ask Sometimes prosecutorial no there was misconduct.5 your qualifications. My touches ques- on anything tion to at this time is there appeals The court of used correct anal- think can touches ysis reviewing court’s denial of just qualifications case appellant’s motion for new trial. Arcila See specific but this case think 361 (Tex.Cr.App. pointed needs out to me Mr. to be 1992). Accordingly, judgment affirm we Jackson and the court at this time? ... If appeals. of the court of so, your hand at time would raise and let’s talk it? about BAIRD, Judge, dissenting. Although a number of re- veniremembers majority opinion sponded question, Because the sanctions to this venirewoman Relying on prosecutorial both Thornburrow did not. the candor misconduct judge with the trial condoning secreting of veniremembers information neces- County Attorney, appellant sary right to to a defendant’s a fair again ask whether veniremembers had dissent.

relationships with the his office. members of Thornburrow I. ultimately jury seated on the and served as found forewoman. The pertinent During facts are as follows. murder, guilty of Tex.Penal Code Ann. dire, voir propounded 19.02(a)(1), § punishment and assessed at life following question to the venire: imprisonment. Tex.Penal Code Ann. Now, you are there have who § 12.32. any well, say so acquainted will are well — Appellant timely a motion filed for new County Attorney] [The with Mr. Wells —I trial alleging prosecutorial and miscon- you him, hopes know that most of know he County Attorney’s duct as a result of the and you that all of know with Mr. him —or divulge during voir Thornburrow’s failure office, Super- in his or Mr. Ashmore Chuck County Attorney long- was dire assistant, vine, that’s another or Mr. Scott and her time friend of Thornburrow husband. They prosecution are the McDowell? Appellant showing submitted evidence you any of staff. Are there who are so County Attorney as “best in had served man” acquainted weU with them or connected wedding Thornburrow’s Thornbur- them that it affect associated with row’s had served as “best man” in husband your I take it verdict? there are none. wedding. County Attorney’s In an responded, When no con- trial, one appellant amended motion for new sub- you tinued: there have showing “Are who mitted Thornbur- further evidence special prosecutor’s County connection with of- Attor- row’s husband had been fice, office, perhaps ney’s currently friend in campaign close and was treasurer serving secretary, investigator Again, County or the as Attor- like?” treasurer ney’s responded. campaign. no venire one on the re-election event, 38.23, V.A.C.C.P.). disciplinary 5. evidence A vio- violations of rules are under Article prosecutor, disciplinary lation of a rule means of the be dealt with administrative itself, and of mandate a would not reversal forth within See mechanisms set those rules. appellant’s State, conviction. Gentry and cf. (Tex.Cr.App.1988); county attorney Henrich If that the believes (Tex.Cr.App.1985); Disciplinary Pannellv. violated Rules of Professional (violation (a (Tex.Cr.App.1984) express of a which we no Conduct matter about grounds opinion), disciplinary free to contact State Bar. rule is not for exclusion of he is Attorney, County but pertain to the hearing appellant’s motion for new not In a Although auxiliary her hus- she acknowl- Thornburrow testified she and to the staff. County County At- relationship had been friends with the At- edged band with the her twenty-five years. The torney information, for more than she did torney important was County Attorney had served as “best man” appel- relationship because not disclose that as wedding and her husband had served her wheth- attorney did not ask the venire lant’s County Attorney’s man” in the wed- “best County At- anyone specifically knew the er ding. stated that her husband She further County Attor- torney. regard to the With County Attorney’s campaign served as the ney’s explained that question, Thornburrow campaign first election treasurer his felt she had respond because she she did currently serving capacity in that by declining already question answered the campaign. ac- Thornburrow re-election questions. judge’s to the County Attorney knowledged that the had Attorney he County testified that relationship” with her husband. When “close relationship with Thornburrow knew his why responded questioned about she had not type considered in decid- of information judge’s question explained she to the trial challenge.1 peremptory ing to exercise relationship that she felt her with the ap- to inform declined Attorney ability would not affect her relationship Thornburrow pellant of his explained impartial. She further that she relationship judge’s question second did because he did not believe believed During appellant's you Q: defense trial hear- Did ever make it known to the motion for new ing, following exchange occurred: cam- that Robert Thornburrow was Defense Counsel: While the voir dire paign chairman? on, going you you recog- was nized did or did No, A: sir. Marilyn person Thornburrow as a who campaign Q: treasurer? Or you knew? No, A: sir. County Attorney: I did. you Q: defense ever make it known to the Did you during Q: knew dire exami- And the voir you had served in the foreman of the nation the entire time the jury’s wedding man? as the best husband, to Mrs. Thomburrow's No, A: sir. you not? Q: it that her hus- Did ever make known A: I did. your wed- had served as best man in band Q: And the had to Mrs. ding? Thornburrow, that, you? knew didn’t No, A: sir. A: I knew that. you Q: Q: Did ever at time of that the court make You didn't feel as an officer of attorney? information known to the defense responsibility give your that in- that was No, A: sir. formation? fact, Q: As a matter when the case was over No, A: sir. after the defense had filed a motion for new fact, Okay. Q: a matter of You did not? As presence of some men out here trial in [during you voir dire] felt the entire time you stated that the I was mad is reason something, just had missed is the defense [appellant] paid me a bunch of mon- because that correct? question? ey and I had missed the ten dollar A: That’s correct. honor, going object. Your we are The State: your advantage, you Q: did And felt it was to you Defense Counsel: Did make that state- you not? ment? thought Marilyn would Thornburrow A: I nothing State: That has to do with this The juror questions and I had some in be a fair hearing. my whether or not I would take mind as to objection. Court: Sustain the The Well, honor, just weighed striking may— jury. her your her on the I Counsel: if I Defense may you ruled. Court: You not. The court has you The I didn't that I owed like did and feel argument. No any duty anything more than what to do Wells, knew, Mr. did Defense Counsel: did. not, the entire voir dire examination But, Wells, you privy Q: were to informa- Mr. not, knew, the information Marilyn Thorn- assessment of tion in your relationship to Mrs. Thornburrow about not, weren’t burrow that the defense known the court or had never been made you? that, you? You knew didn’t the defense? opportunity as I did A: You had the same County Attorney: I knew that all the panel. jury review far as I was con- that had been asked as correctly. cerned had been answered 368 jeop challenges, hence peremptory in- cise his

would influence her deliberations trial an ardizing right to a fair before stant case. Salazar, at 482. jury. 562 S.W.2d impartial appellant’s motion denied and, 865; also, Petteway, at See for new trial. 565, (Tex. State, 683 571 Fielder v. S.W.2d 1985). informa App. Material Worth —Fort II. juror’s regarding a includes information tion guarantees a trial Amendment Sixth any party in a criminal relationship with Const., impartial jury.” before “an U.S. State, January v. 576 proceeding, Von right A to a trial amend VI. defendant’s 43, including (Tex.Cr.App.1978), 45 S.W.2d jury ingrained is within impartial before an State, Bolt v. enforcement authorities. law precepts justice. Irvin v. our fundamental (1929). 267, 235 112 Tex.Crim. 1639, 1642, Dowd, 717, 721, 81 S.Ct. 366 U.S. Bolt, juror a bootlegging prosecution, In (1961). also, re Mur- 751 See 6 L.Ed.2d he had during voir dire whether was asked 623, 625, chison, 133, 136, 75 S.Ct. 349 U.S. prose- in a been involved manner ever (1955) (“A fair trial in a fair 99 L.Ed. 942 liquor laws. for a of the state cution violation requirement pro- is a basic of due tribunal Id., Although the 16 at 235. S.W.2d cess.”). process designed is The voir dire after negatively, it was discovered answered right fair trial a defendant’s to a effectuate previously assisted possible, that by insuring to the fullest extent raiding parties who had been police “in some jury intelligent impartial. will be violating liquor laws. One of engaged State, 480, See, 562 482 Salazar v. S.W.2d placed parties arrested had been and, (Tex.Cr.App.1978); De La Rosa v. custody juror, where he remained of this State, 668, (Tex.Cr.App.1967). 414 671 S.W.2d Id. reversed the until he made bond.” We impartial jury An favors neither the State conviction, juror’s to dis- holding the failure defendant; disinterested, equita- it is nor the assisted upon questioning that he had close principles of the ble and able to follow the police liquor raids was a material State, 15, 162 Tex.Crim. 280 law. Shaver deprived the defendant of omission and Further, 740, (App.1955). be- 742 S.W.2d peremptory chal- right an effective make unit, cause the deliberates as lenge. Id. of its members is suffi- biases of even one Salazar, destroy impartiality. cient to its Diligence Due B. State, 482; 280 562 at Shaver v. S.W.2d 742; and, Norwood v. S.W.2d showing information In addition to (App. Tex.Crim. S.W.2d material, defendant must withheld 1933). also, Petteway See diligence to solicit the he exercised due show (Tex.App. [14th Jones, —Houston 596 S.W.2d at 137. information. 1988). Accordingly, parties may Dist.] partial, prejudiced biased or ‘When possi- during voir dire for the venire diligence fault or lack of selected without See, art. Tex.Code Crim.Proc.Ann. ble bias. counsel, in who has acted part of defense the 35.16(a)(9). given to him on good upon faith the answers inaccurate, they are dire unaware voir A. Material Omission ground for a new incomplete] good exists [or January, 576 at 45. See be- trial.” Von S.W.2d A is entitled to a reversal defendant also, Norwood, Although at 101. 58 S.W.2d juror withheld information two cause a has (1) obligation ques- to ask has the omission is material a defendant criteria are met: the (2) designed bring to out biases and, due tions the defendant has exercised Jones, 137, majori- See, venire, the 596 at eliciting S.W.2d diligence in that information. (Tex.Cr. is State, 134, that a defendant ty nevertheless concedes 137 Jones v. 596 S.W.2d circumstances, rely upon re- to a veniremember’s a re- entitled App.1980). Under these judge and questions by the trial withholding sponse to materi- versal is merited because Majority op. at 364. op- prosecution. 897 S.W.2d al information denies the defendant 497, also, State, 665 S.W.2d Herrera knowingly intelligently and exer- See portunity to

369 refd); art. 1983, Tex.Code parties. PDR Crim.Proc.Ann. (Tex.App. 502 —Amarillo Jones, (Tex. explained: 535, we and, 35.02. Ruiz v. S.W.2d refd). 1988, A PDR de- App. Antonio —San an exer- dire examination is not The voir in actions were must demonstrate Ms fendant ability counsel cise to test the of defense that a faith and that he was unaware good juror an at- prospective a in joust with juror’s responses were inaccurate or incom- quantum tempt to see what ofinformation and, 45; January, 576 at plete. Von may withholding.2 may he or Petteway, Consequently, 758 S.W.2d at 865. Id., at 137. 596 S.W.2d and information is material when withheld lack does not result a defendant’s rely a is Because defendant entitled information, a diligence eliciting that due of a re- upon the candor veniremember’s judge grant a new trial. failing trial errs by questions judge trial sponse to require a it

prosecution, is reasonable into where a venire- C. The Case to delve areas Instant defendant nei- given response has a wMch is member majority dispute the informa- The does not questionable. nor To be cer- suspicious ther concerning her tion Thornburrow withheld tain, diligence lack of for an is not due “[i]t County Attorney relationsMp with juror prospective what a accused to believe material, is and so contention wheth- require an to assume states. To accused diligence exercised elicit- er due juror is and irritate prospective untruthful ing information. accusing questions, would with juror.” certainly prejudiced result in most by Appellant’s upon responses reliance Ruiz, Consequently, a at 747 S.W.2d 537. questions by propounded the venire to the presum- not be faulted for defendant should judge the trial See, part ing candor on the of the venire. light questions. “The reasonable Jones, at 137. purpose of the voir dire examination is expose any prospective bias or interest of majority appel nevertheless maintains might prevent jurors wMch full consideration by rely upon questions lant could not presented term of the evidence at trial. The Attorney because literally speak ‘to ‘voir dire’ means prosecutor “... the court nor the neither ” truth.’ Price jury panel necessary ques asked 1981) (Tex.App. Corpus (quoting Majority Christi anyone know tion —did Wells.”3 — Ed.1979). However, Dictionary Law Black’s 5th n. 1. op., 897 S.W.2d by truthfully respond judge’s question plainly is bound oath to is import venire judge and questions by asked evident: experience spousal supplied emphasis indi- veniremember’s 2. All is unless otherwise about and, trial); cated. warranted Unit and child abuse new 1988) Scott, (5th Cir. ed States v. F.2d 697 by Although majority, not noted the federal (where about failed appeals have courts of held that information his brother was relation in law enforcement that by he fails not "withheld" honestly respond unless department which investi an officer in sheriff's to a on the direct offense, warranted). gated a new trial was See, by matter counsel the trial court. Nevertheless, Collins, significant that the it is to note n. 11 Andrews v. F.3d 619-620 1994) (written (5th ju questions provided to Cir. review for courts utilize standard of federal require de that his ror did not him to disclose determining jury withheld in misconduct from employed law ceased son-in-law been significantly own. different from our formation Sullivan, agency); 821 F.2d enforcement Baca v. See, McDonough Equipment, Green Power Inc. v. 1480, (10th Cir.1987) (juror, whose brother 1483 548, 845, wood, 104 78 L.Ed.2d 464 U.S. S.Ct. duty police past, to been officer in had no had respond standard, (1984). only Under the federal 663 questions during voir dire to counsel's honestly party show that a failed to must a any jurors family friends who whether had question, also show a material but must answer enforcement); presently v. in law Burton were response rendered correct would have that the Johnson, (10th Cir. 948 F.2d 1158-1159 Id., juror subject challenge to a cause. for 1991) (spousal abuse to disclose victim’s failure response questions during 104 voir dire U.S. at S.Ct. at 850. 464 abuse Now, any are there who have customer at a restaurant owned the de- of say any well, acquain- family, I will are so well frequently ceased’s and would associ- — that, ted with Mr. Wells—I know most grandfa- ate with the deceased’s father and of him, hopes know he that all patronized ther when he the establishment. know Mr. Id., him —or with Ashmore hearing In at 44. on the defendant’s office, Superville, or Mr. Chuck that’s an- juror explained motion for new assistant, other or Mr. McDowell? Scott although recognized ... he knew and They prosecution are the staff. Are there family] he [deceased’s answer de- any you who are so well connected with question fense counsel’s because he did not acquainted them or or associated with any personal dealings have close with the might them that it verdict? I affect family. only He believed that it was it take there are none. personal type relationship that counsel any any Are there who have propounded was interested in when he special prosecutor’s connection with the question. office, perhaps office, a close in the friend Id., Nonetheless, reject- explicitly at 45. we secretary, investigator or the like? juror’s subjective interpretation ed the of the Clearly, judge’s question the trial was meant meaning question: of counsel’s any determine of the veniremembers juror’s] It not [the was function to second- personally anyone knew in the Attor- guess defense counsel. It was office, ney’s including County Attorney. for defense counsel, prospective juror, and not the County Attorney subsequently The asked a jurors relationship decide whether the up question inviting follow to reveal [complainant] unacceptable made him pointed information which needed “to be subject peremptory challenge. to a out.” Thornburrow failed to questions. of these Id., at 45. apparent It is from Thornburrow’s testi- Although clearly January Von controls the mony during hearing the motion for new trial review, present ground majority for at- relationship that she understood her with the tempts distinguish ground that case on the County Attorney important to be but did not January the defense in Von disclose the because no one question asked the venire a direct while the specifically asked her whether she knew the judge case instant asked more County Attorney. general Majority op., one. S.W.2d Appeals judge’s The Court of held the trial us, In 364 n. 2. the case before open subjective interpreta- to a judge County Attorney pro- each and, therefore, tion Thornburrow did not pounded questions clearly designed to discov-

withhold material information because she er whether veniremembers had friend- did not believe her with the ships County Attorney’s with members of the ability would affect her Although majority office. contends the impartial. Armstrong judge asked the venire whether 1993). (Tex.App. S.W.2d —Texarkana they prosecutors knew so well majority analysis. The finds no fault with this ibid, verdict, it affect their the record See, Majority op., 897 at 364-65. S.W.2d patently clear that the trial asked a conclusion, however, may question regarding anyone that a Court second whether question during “any special review a voir dire from the connection with the ” subjective viewpoint veniremember’s runs di- tor’s office.... Thornburrow was a friend rectly opinion County Attorney. possess to this counter Court’s Von of the She did not January subjectively Von the discretion determine January, following questions posed it was learned trial that a whether the to the venire long-stand- “rang required withheld information of his the bell” and her to disclose “Rather, ing relationship family friendship. juror [Thornbur- with the deceased’s despite questions concerning consciously row] to the venire censored the information relationships. regular place, such ... ... believed that it was [and] [her]

371 material to a defen- information which is place the of the court or defense not See, 841 counsel, Thomas v. relations dant’s trial. [her] to detemune whether 399, (Tex.Cr.App.1992). to in this were a bar service case.” 404 S.W.2d (5th Scott, 697, v. 854 F.2d 699 United States Cir.1988). majority passively Insofar as the Fairness A. as Substantive Disclosure

accepts Appeals’ the Court of conclusion discretion, majori- had such the Thornburrow withholding information which The State’s See, ty seriously January, errs. Von 576 the the violates Due is favorable to defendant 45. S.W.2d at Amend of the Fourteenth Process Clause it conceals information which is ment because foregoing, majority’s the light of the effectively necessary to mount a defense appellant exercise due conclusion brought against against charges him. diligence detecting in rela- Thornburrow’s 83, 87, See, Brady Maryland, 373 83 v. U.S. tionship with is errone- 1194,1196-1197,10 (1963); 215 Despite questioning ous. from L.Ed.2d both S.Ct. and, 97, County Attorney, Agurs, and the Thornbur- 427 U.S. States United 2399, 103, 2392, 2397, relationship. 106-107, row withheld information of the 96 49 S.Ct. rely (1976). also, to on Because was entitled parte Cas 342 See Ex L.Ed.2d silence, he reason to 476, Thornburrow’s had no tellano, (Tex.Cr.App. 481 pursue ground inquiry. Consequent- of and, 1993); Thomas, 404; at Ex S.W.2d ly, majority holding errs in his reliance (Tex.Cr. Adams, 281, parte a Thornburrow’s silence constitutes lack in App.1989). principle This is rooted diligence. of “Society concept of fairness: wins guilty crim

when the are convicted but when fair; III. system the admin inal trials are our of justice istration of suffers when accused majority prosecuting holds further a unfairly.” Brady, at is 373 U.S. treated duty has no affirmative to disclose Accordingly, at 1197. the State is 83 S.Ct. a veniremember with be- methods, prohibited relying upon from unfair cause neither Rule 3.09 of the Texas Disci- suppression informa such of material Conduct, as plinary of Rules Professional nor See, tion, Id., to a conviction. 2.01, order obtain explicitly art. Tex.Code Crim.Proc.Ann. 1197, and, 87-88, 83 S.Ct. at op., U.S. obligation.4 Majority lists such an Further, Thomas, Nevertheless, 841 S.W.2d at 404. S.W.2d at 365. I believe the required prosecutor is to disclose information majority’s Disciplin- narrow obeisance to the to ary entirely knowledge, but unknown within his Rules misses one Constitutional defendant, request pro- independent principle from which those rules were namely, mulgated, obligation Bagley, 473 U.S. to disclose do so. United States Procedure, offense, and, Disciplinary mitigates connection or Texas Rules Rule [Special Responsibilities 3.09 sentencing, Prosecutor] of a defense and to disclose provides: mitigating unprivileged all infor- tribunal prosecutor in a criminal case shall: except prosecutor, known when mation (a) prosecuting threatening to refrain from or responsibility prosecutor is relieved prosecute charge prosecutor that the knows tribunal; by protective order of cause; supported probable is not (e)exercise persons prevent care reasonable (b) conducting assisting in a refrain from or employed prosecutor or controlled interrogation of an accused unless custodial making extrajudicial an criminal case from prosecutor made has reasonable efforts prohib- prosecutor would be statement be assured that the accused has been advised making Ride ited from under 3.07. to, any right procedure for obtain- A, Ann., G, App. Code tit. subtit. Art. Tex.Gov’t ing, given counsel and has been reasonable 10, § 9. counsel; opportunity to obtain Further, art. Crim.Proc.Ann. 2.01 Tex.Code (c) encourage not initiate or efforts obtain provides pertinent part: unrepresented a waiver of from an accused prosecut- primary duty of all ... It shall rights; pre-trial, post-trial important or including any prosecu- attorneys, special ing (d) timely defense all make disclosure convict, tors, justice not to but see known to the evidence information guilt negate tends to of the accused done. tor that 372 3875, 3383, 105 by plaintiffs attorney, ju- S.Ct. 87 L.Ed.2d 481 sented neither the

(1985); and, Thomas, 841 plaintiffs attorney S.W.2d at 407. ror nor disclosed re- Id., lationship during voir at dire. So.2d Duty

B. Affirmative to Disclose Mississippi Supreme 154. The Court re- Relationship judgment, stating: versed the being The record in this cause silent as appellate At least three recog- courts have why appellee’s attorney valid reason attorney nized that an has an affirmative represented failed to disclose that he had duty himself, relationship reveal a between juror approximately two weeks before staff, or a prospective member of his and a inescapable leads to the conclu- juror. See, Implement Dealers Mutual Ins. prejudiced. sion that the defendant was (Tex. Castleberry, Co. v. 368 S.W.2d 249 1963); App. Durbin, attorney, Marshall as an —Beaumont Plaintiff’s officer of court, Tew, (Miss.1980), and, duty Inc. v. was under a So.2d 152 disclose his relationship juror, (Del.Supr.1977). Jackson v. 374 A.2d 1 with the and his failure so, juror In Castleberry, presented, to do repre- who had been under the facts causes by plaintiffs attorney sented us to reverse this did not case. to the defendant’s whether Id., 381 So.2d 155. represent- veniremembers had ever been Jackson, Finally, juror 374 A.2d Id., plaintiffs attorney. ed during failed to disclose voir dire that his Upon dire, S.W.2d at completion of voir nephew deputy prosecutor pros- was a parties jurors, as the reviewed their lists of Id., Although ecutor’s office. 374 A.2d at 2. plaintiffs attorney discovered he had case, nephew prosecute jury did not previously represented juror. Id. He prosecutors’ information cards used defendant, relationship disclosed this to the relationship. Recogniz- office noted the Id. already who had submitted his list of chal- ing relationship the. nondisclosure of a be- lenges clerk, to the district and offered to tween a and an hinders a disqualify juror. Defendant refused the intelligent perempto- defendant’s exercise of offer, mistrial, but asked the trial for ry dire, challenges during voir the Delaware which appeal, was refused. On defendant conviction, Supreme Court reversed the stat- grant- contended a mistrial should have been ing: juror’s ed because the maintained, Impartiality must be plaintiffs attorney subject rendered her only in the interest of fairness to the ac- challenge. The Appeals Beaumont Court of given case, cused but also to assure held defendant was not entitled to a mistrial integrity judicial process of the itself. plaintiffs disqual- because he refused offer to Jury bias, prejudice and either actual or ify juror. explained: The Court apparent, may derogate not be allowed to ... important It is to determine whether society’s judicial sys- from confidence its attorney-client relationship or not the has Indeed, tem. nearly as was well stated attorneys ju- existed between the ago: seven decades rors. ... In the instant case counsel for protecting rights from “Aside was entitled to know the defendant parties, impartial in the fair and admin- ... represented by [plaintiffs had been justice, respect istration of for the courts However, in counsel]. this case the infor- calls for their condemnation of im- attorney, mation came rather conduct, proper slight, on the however juror, than the many os it does in instanc- part juror, party, aof of a or of es, and counsel knew the for defendant person other calculated to influence the jury the selection before jury returning a verdict. delicate So completed, had been for justice weighing are the balances of case sworn. what seem trivial under some cir-

Id. cumstances would turn the scales to its Durbin, evil, perversion. Marshall So.2d al- Not in such cases, evil, though recently repre- appearances had been been but the primary duty of all It shall the (Emphasis ... be avoided” possible, should convict, added.) ... not attorneys prosecuting done. justice is but to see that Pierson, Ala. F. v. George Craig & Co. (1910). 548, 53 So. 803 in majority the errs Consequently, Art. 2.01. attorney’s obligation to holding prosecuting a also, Jackson, 374 at 2-3. See United A.2d himself in a fair manner is cotermi- conduct (5th Nadaline, 471 F.2d States See, Rules. Ma- Disciplinary the nous with record, Cir.1973) (although no harm shown op., at 364-65.5 jority he counsel should have disclosed defense acquaintances). were and Instant Case C. The clear, at- foregoing cases make an

theAs duty of court torney’s as an officer the noted, Attorney County the previously As relationship with a is not his disclose appellant of relation- to inform his declined obligations prescribed to those ethical limited because he did ship with Thomburrow professional in state codes of conduct. her relationship influence the would believe the professional represent conduct codes of the instant case. While the deliberations maximum, minimum, play fair not the of Attorney may good County have believed civil and bar. from the criminal demanded impar- an that Thomburrow would be faith See, Disciplinary Rules of Con- Professional juror, yet point to the in this we are not tial (“The Preamble, duct, and Com- rules may prosecution substitute where State moral and ments do ... exhaust concerning chal- judgment peremptory its guide a considerations that should ethical that of defense. The extent lenges for lawyer_”). prosecuting In the case of Thomburrow between which attorneys, obligation of fairness assumes influence would and heightened importance, both because of a was a decision Thornburrow’s deliberations immediate effect that unfair conduct bears By withholding in- to appellant. left better trial, and unfair upon a defendant at because relationship, formation about that society’s conduct reduces confidence opportu- Attorney deprived appellant of the justice a integrity system as the criminal judgment regarding nity to make his own See, Brady, 373 U.S. at 83 S.Ct. whole. thereby depriv- impartiality, Thornburrow’s (cit- and, 1197; Jackson, 2-3 374 A.2d at fair trial. ing appellant Pierson, George Craig F. ing, & Co. (1910)). Ala. 53 So. 803 IV. Conclusion imposes The Code Criminal Procedure ju- majority opinion sanctions Because duty parties partici- all general of fairness on misconduct, namely the prosecutorial and ror in a trial: pating criminal in- secreting necessary to the of information court, the duty It is the of the trial challenges, there- telligent peremptory use accused, attorney representing [and] denying appellant a fair I dissent. attorney representing ... the State fair as to insure a so conduct themselves OVERSTREET, Judge, dissents with defen- trial for both the state and the following note: ... dant. 2.03(b). suppose play one on words as art. I could Crim.Proc.Ann. Tex.Code in- approves of addition, however, Legislature specifical- majority apparently trial; right fair fringement of an accused prosecuting clear that ly sought make The facts of the obligation to do so. attorneys special have as officers however refuse in dispute are not proceeding dire voir of the court: case, course, namely secreting noting of infor- majority is in the instant correct in 5. Of appropriate which Bar forum in intel- necessary the State to undertake is the make an mation for addressing proceedings disciplinary thereby challenges, ligent peremptory use of However, County Attorney’s misconduct. denying him fair trial. disciplinary does the error action not cure such majority opinion well chronicled in the

dissenting opinion.

The central issue in this case is whether presiding and the elected

tor had a all candor

should have been disclosed to the defense.

If requirement there is a to be candid and board, yes.

above answer is If trial lawyers

ambush is allowed and out of town hoodwinked, sadly

can be then the answer is

no.

Without lawyer the conduct of the

representing the accused would have been

different if the had been re-

vealed. The record reflects that challenged

would have been for cause and

failing there, success peremptorily struck. juror’s explanation why as to she did best, reveal the is weak at prosecutor’s, because as an officer greater

court has a responsibility, should be

condemned.

With these comments I dissent to the ma-

jority join dissenting opin- otherwise

ion.

MALONEY, J., joins Parts and II of

Judge dissenting opinion. BAIRD’s JOSEPH, Appellant,

John Texas, Appellee.

The STATE of

No. 011-94. Texas, Appeals

Court of Criminal

En Banc.

April

Case Details

Case Name: Armstrong v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Mar 29, 1995

Citation: 897 S.W.2d 361

Docket Number: 540-93

Court Abbreviation: Tex. Crim. App.