*1 903 disposition repossessed of collateral attorney’s fees it dently granted because commercially Tex. must be reasonable. judgment. the trial court’s disagreed with (Vernon Supp. 9.504 Bus. & Com.Code § appeals may not re The court of 1986). provision implied cove- an in the judgment court’s ab verse a trial 9. governed by all contracts Article nant in properly assigned error. Central sence of (Vernon & Com.Code 9.102 Tex.Bus. § 7, Burke, 8 Agency v. 711 S.W.2d Educ. of the bank’s breach Supp.1986). (Tex.1986); Prudential Ins. Co. v. J.R. gave covenant rise to a cause implied (Tex. Franclen, Inc., 568, 710 569 S.W.2d Tex. which sounds contract. of action 1986); Murphy, Consol. Int’l Inc. v. Gulf (Vernon Supp. 9.507 Bus. & Com.Code § 565, (Tex.1983). Here, the S.W.2d 566 658 Guex, see, 1986); e.g., City Bank v. First grant attorney’s trial court’s refusal 25, (Tex.1983); Sheppard 30 677 S.W.2d assigned by either fees was not as error Palmer, F.2d Union v. 408 Federal Credit Accordingly, appeal’s the court of party. Cir.1969). (5th 1369 judgment modification of the trial court’s a find The Karneses did not obtain with our decisions in conflicts Central damages in ing they suffered actual Co., and Ins. Agency, Educ. Prudential as are not to be understood tort. While we Int’l Inc. Consol. Gulf National expressing approval of Texas appeals of also modified The court case, practices in this Bank’s business damage judgment. punitive trial court’s puni appeals’ of affirmance of some court the award of “some” The court concluded damages opinions our tive conflicts with damages on its punitive justified based Homes, Inc., Un Jim Walters Bellefonte finding sep- committed seven bank Co., and Amoco Prod. Co. derwriters Ins. independent torts. The court arate and grant application Consequently, we $50,000 was excessive and or- held that and, Tex.R. pursuant of for writ $30,000 dered a remittitur. argu- 133(b), hearing oral App.P. damages Punitive are not recover ment, part of the and vacate that reverse of contract. able for breach Jim Walter judgment which awarded appeals’ court of Homes, Reed, 617, 711 618 Inc. v. S.W.2d damages. The punitive attorney’s fees (Tex.1986); Ins. Underwriters Bellefonte appeals’ judg- of the court of remainder (Tex. Brown, 742, 704 S.W.2d 745 Co. v. ment is affirmed. 1986); Alexander, Amoco Prod. v. Co. 563, (Tex.1981). party S.W.2d
seeking punitive damages must obtain at finding independent
least one of an tort accompanying damages. actual with Jim Homes, 618; Walter S.W.2d at Belle Co., 704 Underwriters Ins. S.W.2d fonte DECKER, Appellant, Michael appeals The court of exceeds its au 745. v. implies finding it of actual thority when appeals damages in tort because a court of Texas, Appellee. The STATE fact, original findings make cannot No. 67567. Id.; only City can “unfind” facts. Texas, 829, Appeals of Graham, Court of Criminal Beaumont En Banc. (Tex.1969). 832-33 damages award- actual were April 1983. one issue—the ed in connection Rehearing 1986. Sept. dispose of the collateral bank’s failure If this commercially reasonable manner. contract, dam- punitive no issue sounds
ages should have been awarded.
OPINION
DALLY, Commissioner. appeal This is an from a for conviction habitation; burglary the offense of of a punishment imprisonment years for ten day. and one asserts the trial court in refusing perempto- erred to him allow rily strike the L.J. Rich so that he might replaced by juror, another even though impaneled. Rich had been Ordi- narily right challenge there is no peremptorily has been Carrasco v. case; try sworn (Tex.Cr.App. Tex.Cr.R. S.W. 155 Crow v. 1925); 89 Tex.Cr.R. (Tex.Cr.App.1921); S.W. 148 but the cir- ordinarily cumstances not here are such as occur.
During jury
voir
counsel
dire
any
panel
if
asked
members knew
complainant
John Oliver. One of
panel
did.
members stated that he
Several
questions
exchanged
and answers were
be-
Mitchell,
tween the
counsel and
panel
colloquy
was be-
member.
panel,
fore the
no other
member
but
complainant.
stated that he knew the
continued,
jury selection
the State and de-
peremptory challenges,
fense made their
sworn,
excused for lunch.
and
the trial on the
After lunch but before
commenced,
hearing
merits
there was
Rich,
L.J.
who had been
sworn,
selected,
impaneled, and
testified.
he had been selected and sworn
After
“recognized”
member of the
clear,
(The
complainant.
record is not
but
recognized the
apparently Rich saw and
period.) Rich
complainant
the lunch
they
and testified
knew
had
the same
been
were welders on
Henderson,
appellant.
Bailey,
Blake
for
he knew
months. He testified
several
acquaint-
nothing about
the case and
Huttash,
Atty.,
Robert
State’s
not
complainant would
Austin,
anceship
Walker,
Atty.,
Alfred
Asst. State’s
juror.
his duties as a
affect
for the State.
testified,
1982).
appellant’s counsel
After Rich
after a
was select
sworn,
not
that Rich could be
being
stated he did
believe
ed but before
one
be
cause,
if he had had the
challenged for
came ill and was excused for cause. The
Rich now revealed about
court allowed the State and defendant to
and work with the com-
acquaintanceship
prospective jurors
gave
voir dire five
he would have used one of his
plainant
each
peremptory challenges
replace
two
peremptorily challenge
strikes to
Rich and
*3
excused.
“So, object
jury-
I
to the use of this
said:
In the instant case defense counsel used
man and move
we have a mistrial at
diligence to determine facts so that he
picked.”
this time and a new
intelligently
peremptory
could
exercise his
added)
(Emphasis
summarily
The court
challenges,
he was
important
denied
pro-
overruled the motion and objection and
Rich,
by
prospective juror
information
ceeded
with
trial.
although
apparently
Rich
did not intend to
counsel,
appellant’s
The
dutifully
de- deceive.
client, severely
fense of his
cross-examined
appellant
urged
has also
that if the
stages
and also at
both
unlawfully
evidence he asserts was
ob
testimony
the trial offered
which tended to
excluded,
tained is
the evidence is insuffi
image
complain-
cast an unfavorable
of the
support
says
cient to
his conviction. He
ant. The
Rich was elected foreman
by
the confession offered
the State and
jury,
signed
the verdict.
by
admitted
the court
was obtained
Apparently
intentionally
Rich was
de-
not
by
his unlawful arrest and it was tainted
ceptive
failing
relationship
to disclose his
giving
of an earlier confession taken
nevertheless,
complainant;
this re-
v. Arizo
Miranda
compliance
lationship
ap-
was not made known
na, 384 U.S.
1602,
86 S.Ct.
16 L.Ed.2d
pellant’s
specific
counsel when he asked a
(1966).
question to elicit such information. Coun-
The affidavit and warrant under which
sel did not have this information when he
appellant was arrested are not
in the
peremptory challenges.
exercised his
Sim-
record;
cannot,
therefore,
we
determine
State,
January
Von
v.
ilar cases are
appellant’s arrest was unlawful.
whether
and Salazar
(Tex.Cr.App.1978)
S.W.2d 43
confession,
Strangely enough the earlier
State,
(Tex.Cr.App.1978),
rehearing holding. to reconsider that than, know, Nothing you “A. other fel- low worker is all. that, during voir
The record shows his “Q. anything Is there that rela- about examination, if dire defense counsel asked you tionship you that feel would cause any panel members knew the com- any degree to lean in toward John Oli- plainant, Only one John Oliver. side? ver’s Mitchell, member, prospective juror an- No, “A. sir. affirmatively. questioning swered continued, defense made the State and “Q. going You I’m to have to know challenges peremptory their and the you Mr. Do feel cross examine Oliver. in and then excused for lunch. was sworn totally you that can be unbiased and began, After lunch but before the trial though he’s impartial even the trial court held an in record shows going diametrically opposed to take a hearing during camera L.J. story? my view to side of the response questioning by in Rich testified any make “A. I don’t think it would defense counsel that he had been difference to me. after and sworn in as a selected member Well, “Q. say you don’t think you when recognized complainant. he would, you don’t think it would? it pertinent portion testimony is set out of his “A. That’s correct. below: “Q. Rich, me and you Mr. have come to words, “THE In other what COURT: Judge selection to the Rich, is that the you saying, are Mr. you know indicated now and have you realize since fact now Mr. John Oliver? in case is an complaining witness Yes, “A. sir. it acquaintance yours that wouldn’t he came “Q. recognized him when You way? either you any difference make in? No, sir, I don’t think it “THE WITNESS: Yes, “A. sir. me. of difference to make a bit would “Q. Mr. Oliver? you How do know fair And could be a “THE COURT: I do. same “A. He works for the impartial juror to both sides time? “Q. long you two worked How have Yes, “THE sir.” WITNESS: job?
the same
case, Wooley
its
told
argued
the State had rested
appellant
submission
given false informa-
judge
committed when
that he had
that reversible error was
mistrial
re-
during
trial court failed to declare a
tion
the voir dire examination
that Rich was
garding
previous
when was discovered
involvement in a crim-
complaining
years
fellow worker of the
witness.
judge
that five
inal case. He told
Court,
January v.
relying on
Von
earlier he had witnessed the sexual assault
(Tex.Cr.App.1978),
576 S.W.2d
daughter by a Mexican-American
of his
(Tex.
against
Salazar
male and had testified
the man
Cr.App.1978),held that the trial court erred
Wooley
judge
previ-
that his
trial.
told
refusing
perempto
to allow
ous involvement would not influence
might
he
re
rily strike Rich so that
he
decision in Salazar’s case and
juror.
placed by another
judge
strictly
the case
from the evidence
adduced at trial. This Court held that
previous re
now find that our
granting appellant’s
trial court erred in not
January
liance on Salazar
Von
motion for mistrial.
are distin
misplaced and that those cases
material
in
“Where
withholds
guishable
present
from the facts of the
process,
formation in the voir dire
objectionable jurors
case
parties
opportunity
denied the
to ex
are
intentionally gave
those cases
false materi
challenges,
hampering
ercise their
thus
attorneys during
voir
al information
im
their selection of a disinterested and
dire.
the instant
the record shows
That a
state that
partial jury.
will
intentionally give false
that Rich did not
information will
the fact that withheld
the voir dire examina
*5
dispositive
not
his verdict is not
affect
Rather,
tion.
the record shows that Rich
the information is mate
the issue where
complain
did not realize that he knew the
likely to affect
the
rial and therefore
ing
complaining
until he
the
witness
saw
juror’s verdict.5
into the courtroom immedi
witness walk
commence,
ately
the trial was to
before
appellant is entitled
“Wedo not hold that an
jury
after voir dire and
selection had been
any
a reversal of his conviction in
case
to
which
completed. Upon recognizing
com
the
he discovers that a
withheld infor-
witness,
plaining
immediately
he
informed
voir dire. Where the
mation
information
and the
can state that it
is not material
Further,
the
the trial court.
we find that
verdict,
or
an
will not
his deliberation
affect
material,
information was not
in that the
"
appellant may
harm. Sala-
be unable to show
acquaintance
record shows that Rich’s
with
(Emphasis add-
562 S.W.2dat 482.
zar
ed).
complaining
the
witness was
that —an
acquaintance through employment. There
Dunn
asked
January,
In
Juror
was
Von
evidence that the
men had never
was
two
if
along,
other
members
he
together
any type of
socialized
or had
Although
family.
or his
knew the deceased
friendship. They merely
the
worked
well, Dunn did
family quite
he knew the
there
job
same
site.
we find
hearing on
attorneys. At a
not inform the
relationship had
showing that such
was no
trial,
new
appellant’s amended motion for
on the
any potential
prejudice
or bias
family
that he knew the
admitted
Dunn
part of Rich.
might
wrong in
he
have been
and that
ques-
counsel’s
Salazar,
indecency failing to answer defense
prosecution for
the
letting him
that he knew
child,
know
Wooley noted on
tion
with a
Juror
January’s
family.
reversed Von
never
This Court
sheet that he had
juror finding that Dunn’s failure
after
in a criminal
conviction
or witness
been
question pro-
truthfully answer
the
by
to
During voir dire
case.
prevented defense counsel
pounded to him
he had never before
again indicated that
as to
making the determination
in a criminal
from
in or involved
been a witness
relationship
deceased’s
accepted Wooley whether his
proceeding.
parties
Both
unacceptable.
trial,
family
him
made
jury. During Salazar’s
on the
showing
is
illiciting
find that there
no
“The State’s counsel in
sup-
Because we
impartial
port
appellant
deprived
jury
fight
against
of an
to
war
any way
properly
fair trial in
crime rather than
analyze
or denied a
action,
specific
result of the trial court’s
we find
facts of this
case was blatant
error;
not err.
prejudicial
that the trial court did
and the Court obvious-
ly approved
argument
refusing
submission,
original
appellant
disregard
instruct the
which com-
grounds
concerning
raised three
error
pounded
already
to re-
what
amounted
arrest,
probable cause to
the admission into
versible error.”
him,
by
evidence of two confessions made
“Argument
Under the section entitled
along
money
allegedly
stolen in Authorities,” appellant merely cites us to
burglary
which was retrieved from his
“Pennington v. State
Tex.Cr.R.
[171
130]
residence,
finally,
sufficiency
Although
“The affidavit and warrant appellant appellant objecting in which we believe to: was arrested are not record; cannot, therefore, we deter- gentlemen, Bailey “Ladies and Mr. [the mine whether arrest was un- attorney] today defense said that Strangely enough lawful. the earlier body politic representing were the confession, giving appel- of which the people. I submit that is true. To- says lant tainted the confession offered day you are the voice of Franklin Coun- by was offered evidence ty. you. do the can’t jury by appellant and ad- before fighting crime. We’re a war on mitted the court as defense Exhibit BAILEY; Honor, object Your “MR. Therefore, Number One. that. is not the burden that this That objection to the admission of waived fight They has war crime. sup- the confessions. The record would *6 to Mike trying are to resolve facts as port finding money a that the obtained object Decker and I to that and resent from the residence was ob- they some that insinuation that have by being the tained his consent. This of duty other than to resolve the facts record, ap- rather bizarre state of the this case. appellant’s complaints con- pears that the “THE Overruled. COURT: cerning the admission in evidence of the fighting “MR. We’re a war HUGHES: concerning and evidence the confession doing point I’m at this on crime. What are money taken from his residence with- making appeal is no more than for law support the out merit and evidence argu- proper a enforcement. That is (See page 905) the verdict.” ment, apply To to enforce the laws. pertaining record We have reviewed the in the laws.” brackets added] [material grounds opinion find that the to these State, by ap- Pennington v. supra, cited totally correct original on was submission point. in In that case revers- pellant, is not adopt holdings thereby the in its and we prosecu- error was committed when the ible first, Appellant’s language out above. set following statement: tor made the second, are grounds of error and fourth County expect people “The of Nueces overruled. away.” put to this man Pennington, argument ground appel of Unlike In his final improper attempt not an as fol instant case was argument reads summary lant’s convict because to induce the lows:
909 n expected decision to community desired or a convic- sustain the State’s motion for rehearing point. on this tion.
Rather, holding find this What will we that Court’s be sufficient mandate the mistrial, granting of a motion for or the 170 Holloway v. trial, granting iof a new because a applicable (Tex.Cr.App.1975), to be respond questioning by failed to the trial Holloway, prosecutor instant In case. judge or during counsel the voir dire exami- argued: nation, necessity must of be decided on an done “What should be with him this ad hoc basis. certainly you case? And can consider instance, crime,’ juror’s In this many people call ‘a war because rela- what on essence, war, tionship complaining and, with the witness was except it is a casual, shown also only to be because battlefields are different.” complaining witness testified be- Court, citing Cunningham v. fore to the fact that residence (Tex.Cr.App.1972), S.W.2d burglarized person, by was an unknown found argument proper plea to be a for majority correctly holds opinion that agree. law enforcement. We have As we by during failure to disclose occasions, many plea noted on for law voir dire that he knew the proper argu- is a area enforcement granting insufficient to mandate the of a ment. Alejandro v. S.W.2d new trial. (Tex.Cr.App.1973). find no error in the part company majority opin- prosecutor’s argument. Appellant’s fifth ion, part join and thus cannot ground is of error overruled. opinion, implicitlyholds because it that fail- rehearing State’s motion prospective juror divulge ure granted judgment and the of the trial court employment relationship mere casual is affirmed. complaining witness never will consti- Again, tute reversible error. such a com- CLINTON, J., dissents. plaint judged must on the facts particular case. J., MILLER, disposition dissents to instance, majority because the ground only. third of error opinion complaining not state that the does TEAGUE, Judge, concurring and dissent- physically witness was asked to be identi- ing. process, fied the voir dire I must physically singled assume he was not rehearing the State asserts that a prospective jurors out to the time. erred majority of Court quite likely though it is that even appel- submission it sustained when complainant might name of the have been *7 error, ground lant’s third of “The to-wit: jurors during prospective mentioned the declaring court erred in not a mistrial when voir name of process, dire the com- jurors it learned that one of the had not “ring any plainant did nót bells” for the counsel Appellant’s informed of his rela- challenged juror. [, tionship Complaining a to the Witness worker, during fellow the voir dire exami- In I find the issue here is principle, that the lack of that informa- because Pigg controlled decision nation] this Court’s of Appellant’s tion counsel to State, 521, did not allow 287 S.W.2d v. 162 Tex.Cr.R. properly adequately (1956), strike his held that this Court revers- light majority list.” In of what the ible error did not occur when opinion opinion rehearing, on I judge states did the trial or the cause not advise agree erred on attorneys parties that this Court sub- voir for appellant’s “casually” mission when it of he had sustained dire the fact ground years. injured party do so different for several for known known after the Therefore, I in the The made this fact reasons. concur injured party had testified. The testi- The majority opinion approv- thus errs fied that the omission resulted because of ing argument the above proper plea poor eyesight. rejecting the defend- for law enforcement. argument Given the contention, ant’s this stated fol- Court of the prosecuting attorney, majority lowing: “We have concluded that the fact opinion’s holding that it proper plea was a ‘only that the knew the witness when for law enforcement many, conflicts with he saw him’ would not affect his verdict many of past this Court’s decisions. See grounds and was not for a mistrial ...” supra. Therefore, respectfully I must dis- (287 674). S.W.2d at sent overruling conten- argument tion that the improper. was us,
Given state of the record before I agree with majority opinion judge
trial did not in failing grant err motion for mistrial because divulge did not the fact that he had a casual relationship complain- only join
ant.
part
opinion.
however,
The majority opinion,
errone
CLARK,
Herman Robert Charles
ously
argument
holds that the
prose
Jr., Appellant,
cuting attorney,
“Today you
to-wit:
[the
v.
jurors] are the voice
County.
of Franklin
Texas, Appellee.
The STATE of
people
County
Franklin
and law
[the
you.
can’t do the
enforcement]
No. 69009.
fighting
crime,”
We’re
a war on
constitutes
Texas,
Appeals
Court of Criminal
proper plea
for law enforcement.
In so
En Banc.
holding,
majority opinion
upon
relies
Holloway
(Tex.Cr.
proper plea for law enforcement. As anyone,
should be obvious to such reliance totally misplaced because of the obvious differences arguments. between the
I find that
argument merely repre
“nothing
put
sents
more than an effort to
garb
emperor.”
new
on an old
Cortez v.
(Tex.Cr.App.
1984).
plea
This was not a
enforce
law
ment;
plea
instead
“to
community
lend an ear to the
rather than a
voice.” Prado v.
ney’s argument represents or amounts plea expectations to a or demands of community long has been condemned by this Court. See the authorities cited in (Tex.
Dorsey J., Cr.App.1986) (Teague, dissenting opin ion).