*1 LаPorte (Tex.Cr.App.1992), precisely we addressed There wrote:
the same issue.
Therefore, hold that defendant
prosecuted single in “a criminal action” allegations
whenever and evidence arising out of the
more than one offense episode, term is
same criminal as that Chapter presented
defined are
single plea proceeding, trial or whether
pursuant charging to one instrument or
several, provisions and the of Section apply.
3.03 then expressly at 599-600. We overruled
Caughom. Id. at 598-599.
Accordingly, judgments Cause
Numbers CR-107-88-E and CR-113-88-E Hidalgo
from the 275th District Court of
County are reformed to delete the cumula- Further,
tion orders. reformed
Cause Number CR-101-88-E is
to delete reference the two causes for-
merly judgments cumulated with it. reformed, Appeals,
affirmed. DELRIO, Appellant,
Heriberto Texas, Appellee. STATE No. 1406-91. Leitner, Houston, James M. Court of Criminal lant. En Banc. Jr., Holmes, Atty., B. Andrea John Dist. Serres, Lopes, Greg Attys., F. Asst. Dist. Nov. Houston, Huttash, Atty., Robert Austin, for the State. STATE’S FOR
OPINION ON PETITION DISCRETIONARY REVIEW PER CURIAM.
Appellant
aggravat-
was convicted of the
possession
ed offense of
of cocaine with
*2
light
in
of this
Health and the court of
conten-
intent
to deliver. V.T.C.A.
200(c)(3).
Code, 481.112(d)(3).
Tex.R.App.Pro., Rule
Safety
as
tion.
punishment,
his
enhanced with a
sessed
I.
conviction,
in
prior drug
prison
life
and a
at
After counsel for
and the State
$500,000
Safety
fine.
Health
V.T.C.A.
and
general
concluded their
voir dire of the
Code, 481.107(d). The Fourteenth Court
Johnny
panel, venireman
Martinez was
conviction,
reversed
for a conference.
up
called
the bench
holding
that trial counsel was ineffective
“yes”
his juror
Martinez had checked
failing
for
interpose
form, as
had
information
to whether hе
plainly
a venireman who
and unam
accused,
complainant witness
been “an
he
fair
biguously declared
could not be a
case,"
every opportu-
and at
impartial juror,
eventually
and
sat
and who
during
nity
preliminary
and voir dire
appellant’s jury.
Delrio v.
attempted
he
proceedings
per-
to reveal his
(Tex.App.
[14th]
— Houston
Thereafter,
fol-
sonal circumstances.1
1991).
opined:
of appeals
The court
lowing colloquy oсcurred at the bench:
“We can conceive of no reasonable de-
Martinez, you
“THE COURT: Mr.
indi-
justify
fense
allow-
you
cated earlier that
knew
defen-
ing
such an individual to sit on a
you might
problem.
dant
have a
determine the
fate of one's client
Yes, sir, I wanted to make
[Martinez]:
Permitting
a criminal trial.
such an oc-
the statement to the Court that I’m an
currence undermines
advance
City of
ex-narcotics officer for the
Hous-
jury’s purpose
ceived essence of a
say
I
ton and that
didn’t want to
In-
render a fair and
verdict.
monkey
front of the
to throw
deed,
purpose
if
presumptive
wrench in the voir dire.
participants
process
in the
is to
“official”
you
THE COURT: You feel like
know
trial,
have
secure a fair
it would
been
by
employ-
this defendant
virtue of that
mandated,
prudent, although
legally
ment?
prosecu-
or even the
judge,
Yes, sir.
[Martinez]:
tor,
this indi-
sought
to have
removal of
Therefore, you
you
feеl
THE COURT:
in this case."
participation
vidual
fair
probably would not be able to be a
Id.,
petition
discretionary
at
In
32.
impartial juror?
ap-
State contends the court
review the
Exactly.
[Martinez]:
ability
peals has
trial counsel’s
encumbered
you
Do
chal-
THE COURT:
strategic
make reasoned
choices in the
lenge?
jury,
holding is
selection of a
and that its
All that we are
therefore inconsistent with Strickland
[Defense Counsel]:
point is
or not
asking you
at this
whethеr
Washington, 466 U.S.
S.Ct.
proper
of circumstances
granted the
under the
set
L.Ed.2d 674
impartial juror
you
opinion
examine the
can be
fair
petition to
identify
panel,
quired
judge
in-
to wear their uniforms
welcomed the
1. After the trial
officers,”
parties
any venireper-
if
police
and asked
he
troduced the
when
came
themselves
person responded,
party,
asked,
Martinez,
son knew
one
"May
approach
the latter
said,
will
"1
let
"The defendant."
they
prosecutor suggested
"do
bench?”
lawyers
for the
for each side
be matter
Id.,
at
end.”
at
52.
you.”
they
question when
talk to
V.S.F. 13.
turn,
questioning
in the course of
followed,
During general
when
voir dire
venirepersons about
mat-
individual
ters,
asked,
prosecutor
reached Martinez he
name,
by
appellant asked
“Mr.
counsel for
you know the defendant?” Martinez
“How do
anything
you
where
could not
there
“frequents”
answered
substance:
in this case?”
business,”
"place
as a
identified
answered,
Id.,
"Yes, I
there is."
Martinez
think
and laundromat.” Id. at
Later
"car wash
inquiring
prosecutor was
of each veni-
while the
reperson
through-
supplied
emphasis
All
above and
anyone
believed
row
row whether
opinion
of this
unless other-
out
the writer
police
officers to work undercover
it "unfair
wise indicated.
cases,
they
maybe
should be re-
and make
jury. 820 S.W.2d
feelings,
lant’s
put
your
whatever
aside
“prudent,” the court
are,
experiences and listen
prior
even
based
prose
court or
opined, for the trial
ren-
case and
strictly to the facts
Martinez, in
sought
strike
according
cutor to have
the law.
der a verdict
*3
impartial trial.
a fair and
the interest of
I’m
impartial,
I couldn’t be
[Martinez]:
only
responds that not
The State
saying.
it
“prudent,” would
would it not have been
challenge?
There
no
THE COURT:
is
court to
error for the trial
in fact have been
Have a seat.”
Martinez, there
sponte
sua
struck
a
appellant nor the State exercised
Neither
holding
having
no
him abso
basis for
Martinez,
against
peremptory challenge
disqualified.
Neel v.
lutely
The State cites
appellant’s jury.
on
and he served
(Tex.App.
— Dallas
ref’d).
1983, pet.
II.
appellant may not have
trial court excused a venire-
Counsel
Neel
role
he could
had some active
on its
motion who stated
noticed that Martinez
man
juror.
impartiаl
case. But after Mar
in an
criminal
a fair and
earlier
not be
venireperson
appeals
to tell the
held
because this was
tinez
that
was
court
disqualification un-
that
knew “the
judge at the outset
he
not a basis for absolute
35.16, V.A.C.C.P.,
defendant,”
then,
it is
or
Articles 35.19 &
sua
inconceivable
der
error. See authorities
frequent
sponte
revealed
con
excusal was
when Martinez later
dis-
justice
One
at
tive
might aрpear
circumstances under which
place
jury.
him
advantageous to
Thus,
we have
believe that
Indeed,
only person
Martinez
impartial jury
subject
to an
is not
A
Hispanic
jury.
surname to serve
ordinary
principles, to
in-
adversarial
directly negotiated
informant
testifying
voked,
not, according to
the vicissitudes
question
arranged the transaction
Although
certainly
ex-
of trial.4
brother;
mainly
active
rare,
say,
pect the occasion to be
wе cannot
*4
delivery,
includ-
participants
the actual
did,
that under
(but
ing
excluding a DPS
the informant
justifi-
circumstances could defense counsel
agent “controlling”
informant
the “wired”
a
for
ably
challenge
fail to exercise
visually
aurally and
who monitored them
peremptory
against a venireman
or
strike
distance)
Appellant
a
Hispanic.
are
serving
incapable
deemed himself
who
punish-
jury
had elected to have the
assess
jury
in fair and
mannеr.
on
a
sentence,
ment. He faced a
enhanced
may
here
have believed
Counsel
offenses, of
previous controlled substance
actually
impartiality
favored his
Martinez’
imprisonment
twenty years to life
unlikely on the
client. While this seems
$500,000.
may
fine of
Counsel
have be-
record,
express
cold
there is no
evocation
officer, although
that an ex-narcotics
lieved
verdict,
of the direction of Martinez’ bias. We
guilty
likely disposed
to render
may
privy
any
appellant
not
information
perceptive
more
relative
would be
about
with counsel as
his relation
culpability
parties
shared
in such a
involved
ship
transaction,
cannot
might
thus we
inclined to
be less
his
possibility that out of
end of the
impose
exclude the
sentence on the sterner
na-
given
himself
to the
appellant
spectrum
naivete
inured
If the
case
some reason to believe Martinez’
ture of the offense.
counsel
dire to be
appellant.'5
par
appears
vantage
favor
A
from the
voir
partiality.
one,
un-
strong
strategy,
tiality
the accused does
that favors
15,
State,
(1938);
emptory challenges
v.
162 Tex.Cr.R.
before a full
was select
465
Shaver
ed,
State,
accept
(1955);
and was forced to
another
who
740
La Rosa v.
414
280 S.W.2d
De
State,
State,
E.g.,
objectionable
v.
(Tex.Cr.App.1967);
to him.
Counts
was
v.
S.W.2d 668
Salazar
410,
(1916); Burge v.
Finally,
Tex.Cr.R.
448 464, 29, (Tex. Steagald Tex.App. 820 32 S.W. Delrio v. 1991). App. Dist.] [14th —Houston Allowing sit in judgment Martinez to I, The Art. Sixth Amendment and § poorly on de- reflects today. demand no less constitutional judge as fense counsel but the trial well.1 guarantee of an cor- By holding my that a defendant waive system justice. nerstone our impartial jury, very fair and we violate possibility juror in appel- that even one preserve, protect, oath we took tо and de- prejudiced lant’s case was biased or of- fend the and laws of the Constitution Unit- justice fends our sense and we have so ed States and of this State. Tex.Const. art. held. 1(a).2 perfect should ... reflection haste, In its further one, imperfect not distorted one or one. concerning judicial policy the re-evalua mirror, ripple upon One crack in the one underlying tion of facts after a review pool, the surface of the sufficient appeals, policy the facts the court of destroy the trueness the reflection. adopted just last term in Arcila improper juror destroys integri- One (Tex.Cr.App. 360-61 ty of the verdict. 1992). In Arcila we held: Sorrell v. Tex.Crim. Court, ap- ... Like this the courts of S.W. uphold the peals duty-bound con- In its rush to re-evaluate and reverse stitution and laws of this and of State appeals, judgement of the court of the ma- long appears the United as it States. So tramplеs jority the Sixth Amendment as discharged con- well as Art. of the Texas Constitu- *6 scientiously impartial application of tion. There no doubt that veniremember legal pertinent doctrine and fair consider- Martinez could not be a fair and evidence, duty the it is our ation of juror. Appeals correctly As the of Court respect judgments. their Our turn to noted: role as a of last resort is principal law, the of the of not arbi- ... We can conceive nо reasonable caretaker Texas applications. al- ter of individual When dif- justify defense that would law, including un- lowing such an individual to sit on a ferent versions of the legal signifi- to applications to the fate of one’s client settled of the law determine situations, compete for Permitting cantly an fact criminal trial. such novel issue, job finally the of occurrence advance the control of an it is undermines identify elaborate pеrceived jury’s purpose of a to this to essence But, ex- thereafter. render a fair and verdict.. which is to control 1. Last term we considered whether or We continued: sua trial (Tex.Cr.App.1992). We held: fied satisfy retain the empanelment the When den realization that an circumstances sponte. rectify problems judge fairly order to new and discretion, upon venireperson conducting would render the [******] has the considering to ability court, Butler v. рrovide system possible, as, e.g., to excuse an otherwise to render an excuse authority voir from unforeseen created venirepersons incapable the most efficient a reason dire, excuse venireperson’s facts before them. the to service. the excuse a trial applies such developments sufficient to judge changed not quali- order must sud- her the 2. Tex.Const. art. issue Id., elected this duties Oath or Affirmation: Members ability рreserve, affirm), stitution duties of State of To hold otherwise fair and string duties, at "I,_, judge 130-131 of their trial officers, and laws never have arisen. that I impartial jury. herein the office so judges in (emphasis help me God.” offices, protect, and will to the "exercise[d]” before will Legislature, of the United hinder of_of 1(a) provides: shall do faithfully the and defend solemnly unnecessarily ham- original). the take the exercise enter selection States and execute best of duties, swear following upon all other the Con- of their Had this my the the (or Arcila, circumstances, In- legal tinent doctrine. cept compelling ul- deed, correctly responsibility Appeals cited timate the resolution of the Court disputes Washington lies as the control- factual elsewhere. Strickland Thus, that the [*] Dallas Court [*] basis [*] [*] complaint Appeals [*] some- here [*] ling authority and cussion of case. See, Delrio, its application in appellant’s provided an in-depth at 32. dis- managed opinion get wrong. majority spends Even if less than how discussing “pertinent dif- paragraphs our own decisions have been two doctrine,” presented, devoting pages ferent on the we can- question accept proposition facts and rank underlying discussion of ought subject strategy.3 late court’s to be speculation of counsel’s trial basis, least when provide to reversal However, majority fails to support the evidence is sufficient tо it. hold- compelling depart our Today, my ing in worst fears have Arcila. (Tex.Cr. Arcila, 834 S.W.2d 360-61 realized; clearly majority plans been App.1992). nothing than use a tool Arcila long I dissented in Arcila because it has meaningful appellate re- deny parties’ my feeling that this Court is constitu day, only for This is indeed a sad view. tionally than mandated be more and the Texas Constitu- the United States If have the “caretaker Texas law.” tions, of Criminal but also the Court uphold laws duty tо the Constitution and heritage. proud nation, encompass this State and reversing es decision of courts of the consti- violates Because appeals when find either a factual mis a fair and guarantees tutional of le representation misinterpretation provided under the Sixth Amendment However, gal I precedent. also adhere to further and Art. See, the doctrine of stare decisis. Ex precedent, I dissent. Porter, (Tex.Cr. Parte (Baird, J., App.1992) dissenting).
During more than one hundred Court, every of its this like
years tenure *7 court, appellate has en-
conscientious the ancient doctrine deavored follow Jr., WILLIAMS, Appellant, Kaufman quieta et of ‘stare decisis non mov- precedents, ’—to adhere to eré things unsettle established— Texas, Appellee. The STATE divergent to reconcile and harmonize No. 12-90-00143-CR. applications principle that inevi- tably are made from time to time. Appeals Court
Sattiewhite Tyler. (Histori- (op. Reh’g.) (Tex.Cr.App.1980) Feb. 1991. omitted). cal footnote Rehearing April Denied respect Decisis demands that we Stare Discretionary Refused However, Review previous decision Arcila. Sept. majority completely Arcila and Ap- judgment of the Court reverses Rehearing Denied Nov. simply disagrees with the peals Appeals. There can be doubt discharged the Court of “impartial application duties Delrio, strategy.” by declaring, other admits much
3. The know wheth- we do not and cannot course S.W.2d at 447. "[o]f this or in fact utilized er