Garza v. State

LIVINGSTON, non-capital Before DAUPHINOT of both HOLMAN, cases, Appeals JJ. of Criminal fense shuffle the that a motion to

has stressed granted not be unless venire will OPINION case) (a capital Compare id. offense made. HOLMAN, DIXON W. Justice. . with Alexander (a non-capital (Tex.Crim.App.1975) was 721-22 Appellant Vega Dionicio Garza ease). case, type of felony In either non-capital felony offense. offense charged with a untimely and will be trial, brought to shuffle is day a motion On the set a venire until delays the motion if the movant courtroom and seated so each venire- denied Davis, 782 dire starts. See questions after the voir member could write answers to Alexander, 214; at at questionnaire. asked in a written Both case, dire In a the voir attorney were prosecutor and the defense untimely if it is made after examining the shuffle motion is begins when the State starts read and evaluated venire. See Williams v. S.W.2d the movant has information, fur- (Tex.Crim.App.1986). personal veniremembers’ writing the voir dire starts when at the court’s by them nished examining prescribed begins the venire addressing when a request. In addition to of the Texas Code of Criminal starts, article 35.17 emphasizes, making Davis voir dire Davis, 782 S.W.2d at 215. Procedure. See non-capital capital and no distinction between cases, contemplating party that a Here, Appellant argues that the under article ask for a shuffle of the venire motion to shuffle should have been State’s only its members 35.11 is entitled to see dire denied it was made after voir because Davis, making the motion. before non-capital felony in his case. had started at 214. reflects that when the motion was The record made, the examination of venire- State’s shuffle, purposes of a motion to For the on voir dire had not started. members a trial court to require article 35.11 does not made its motion after the venire had State personal information provide any access to presence seated in the of counsel been (“We See id. about the veniremembers. State, Appellant the after the venire- re- interpreted [article 35.11] have never their answers to the members had written the quiring the trial court to afford defen- parties’ lawyers questionnaires, and after the anything being than able to view dant more during written information had reviewed that mem- appearance of the venire the outward the lunch recess. bers.”). ap- their outward Based precedent arguing, as the There is of pearance, party may have one set a does, trigger events that none of those State set discarded and another veniremembers non-capital voir dire in a case. the start of summoned, of article using the mechanism 1975, Appeals es In the Court Criminal ability gives parties an 35.11. The article seating of a venire a tablished that for an- proverbial “pig-in-a-poke” trade one voir dire. non-capital case does not start the neither of the trial when stage other at a Alexander, In 523 S.W.2d at 721-22. knowing any advantage party has 1982, that the a court of determined jurors than their potential more about begin not non-capital case does voir dire Alexander, by appearance. decided outward attorneys informa when the review 1975, Appeals in noted of Criminal Court State, Holman v. 636 S.W.2d tion cards. See intend for article Legislature did not ref'd). 1982, 18, pet. (Tex.App. 18-19 — Dallas a shuf- parties enable to elect venire 35.11 to 1986, Appeals In of Criminal held the Court during upon elicited fle information based ease, non-capital voir dire does not that Alexander, dire. 523 S.W.2d voir recognized by the begin until “the either that allow “[t]o The court also stated the voir dire examination court commence of the request a shuffle of the names party to actually starts that examination.” begins would be jury panel after voir dire Williams, 719 S.W.2d at 577. Id. unduly prolong the trial.” disruptive and Appeals determined Court of Criminal later, But, adhering to the years while eleven begin the voir dire does to shuffle requirement that a motion prosecutor tells the just because the ease dire made before the voir venire must be record, court, ready that he is to start on the starts, Appeals also the Court of Criminal State, v. voir dire. See DeLeon by jury trial “[t]he observed (Tex.Crim.App.1987). Then expediency higher plane than stands orí Appeals of Criminal came the 1989 Court jury panel for the case [and a] holding in Davis. time if a minimal amount of actually takes Williams, at properly handled.” the determination Because of added). (emphasis 577 n. 5 Appellant’s in connection with “timeliness” Appeals again scorned inqui- of Criminal than the basic issue involves more first evaluating the as a measure “expediency” the voir dire started. ry of whether or when the venire. motion to shuffle propriety of a Appellant’s issue whether The crux if will denied venire and therefore v. Chappell (“The verbally obtained upon information Crim.App.1993) of trial based dire, will be during the motion to shuffle higher plane expediency; than stands on a if identical information by jury granted based and fair trial means a selected the venire- gleaned voir dire from regulating their selec according to the law writings. proposition That members’ own empanelment.”) (quoting Fontenot tion and implied in Davis. In- nor (Tex.Crim.App. neither stated stead, 1964)). party to make a shuffle who decides ver- because of veniremembers’ motion either the venire shuffle issue Davis When during voir dire or because bal answers Appeals, came the Court of Criminal they have reviewing personal way: the court characterized it this themselves, the shuf- has taken written about Appellant ... asserts that he was enti- past premise procedure fle well juror tled to review the information cards upon the merely based shuffle must be questionnaires [biographical infor- and his See appearance. veniremembers’ outward option he his to mation] before exercised id. disagree. have the names shuffled. We rationale, of Focusing on that the Court Davis, 782 at 213. Davis states Appeals held: Criminal parties desiring plainly simply why a Alexander, non-capital Following of- [a venire shuffle must ask for it based we hold that because it was not case] fense appearance the outward the venire- Legislature to have the the intent of the members: upon based names of the venire shuffled Legislature was not the intent of the [I]t dire, during so information obtained voir article to have the names of the [in 35.11] Legislature too it was not the intent of the upon venire shuffled based information ob- to the shuffle on article base [in 35.11] during tained voir dire.... juror informa- gleaned information from See id at 214. question- biographical tion cards and/or too, parties Davis denies the use of So naires. juror gleaned information from information added). Plainly, holding is (emphasis this Id. biographical questionnaires cards or as a ba- appeals holding of the court of the antithesis Significantly, to sis a motion shuffle. Id. Holman, years Hol- earlier. See seven addressing the use of that source for man, at 19. information, Davis makes no distinction be- prosecutor con- Appellant’s And, non-capital tween cases. Id. gleaned ceded that he relied on juror respect with to the use of cards and deciding to ask for from the shuffle, questionnaires as the basis for a recess, during which a The lunch shuffle. depen- Davis makes a denial of the motion prosecutor reviewed the information information, upon dent the source of the written, lasted more than an hour. had just questionnaires, dependent cards significantly addresses a similar Davis even upon the voir dire has started. Id. whether rejects time length that circumstance timing of a motion to Consequently, incompatible with article 35.11: as success, critical to the motion’s shuffle is still requested an ... counsel hour Moreover determining the but for a trial court that is biographical infor- the veniremen’s review motion, pinpoint- viability of the Davis makes opted their mation he to shuffle ing dire starts a consideration when cannot be read to 35.11] names. [Article separate principle that for- that is from the allow such.... per- written using the veniremembers’ bids for a motion to sonal information as basis Id.

shuffle. party that when Davis establishes request a Otherwise, contemplating whether for an un- Davis would stand shuffle, required to furnish a trial court is not proposition: although a venire tenable veniremembers any information about premised only must a view of yond letting party jury’s King look at their outward verdict.” v. appearance. Davis (Tex.Crim.App.1997) Id. also establishes (citing principle States, 750, 776, in a criminal unmistakable Kotteakos v. United 328 U.S. trial, capi- (1946)); regardless court for a whether 66 S.Ct. 90 L.Ed. 1557 offense, tal non-capital Coggeshall offense or for a see ref'd). permitted is not (Tex.App. pet. trial court article 35.11 Worth — Fort let parties the information Applying King evaluate court’s definition from gleaned 44.2(b), information cards or bio- the context Rule the review stan graphical questionnaires deciding error, any for “other other dard errors” is: defect, request Id. irregularity, venire shuffle. or variance does not injurious have a substantial and effect or Accordingly, timely, to be to shuf- a motion determining jury’s influence verdict begins, fle made must be before the voir dire Tex.R.App. disregarded. must be P. made before re- and also the movant has 44.2(b); King, 953 S.W.2d at 271. viewed the information cards or bio- Ford, prin- graphical questionnaires. King’s This See id. we relied on definition of ciple applies right” conducting as trials “substantial “revers- well that the analysis cases. We conclude harm a trial ible-error” court’s by granting trial court erred the State’s mo- denial of shuffle. Ford, tion to shuffle the venire. held S.W.2d at 827. We right”

term “substantial included certain Analysis Harm by statutory rights mandatory made Legislature, jury such right as a shuffle error, analyze Having found will its we pursuant to article Id. 35.11. We concluded judg- effect to determine whether the court’s impossible that it is to determine whether an ment is reversible: jury error that occurs is even (a) appel- If the Constitutional Error. empaneled jury’s affects verdict and con- late record criminal ease reveals we whether “because cannot measure [the subject stitutional error that to harmless is jury injuri- error or shuffle] had a substantial review, appeals must error court of verdict, jury’s on the we ous effect cannot judgment pun- or reverse conviction disregard the error Id. at as harmless.” unless the ishment court determines effectively would make article To do so 35.11 yond a reasonable the error did doubt that only at a discretion. usable trial court’s punish- or not contribute conviction Appeals recently The Court of Criminal ment. application analy addressed the of the harm (b) error, de- Any Other Errors. other jury regarding sis to errors shuffles. See fect, irregularity, or not variance that does Roberts v. rights disre- affect substantial must be Roberts, Crim.App.1998). In court garded. erroneously granted the State’s for a Tex.R.App. P. 44.2. jury after ended. shuffle the voir dire Id. recently court that the This concluded opinion, appeals unpublished the court of an jury governing rules have no consti shuffles had reversed conviction without Roberts’ origin purely tutional and are a creation of conducting analysis. a harm Id. The Court legislature. See Ford v. Appeals jury of Criminal held (Tex.App. Worth — Fort exempt analysis, are not a harm errors filed). 1998, pet. the erroneous Because explaining: granting jury of a of a shuffle is not a denial Except constitutional certain federal right, must determine constitutional we by labeled States Su- errors United right. whether it affects a substantial ‘structural,’ no ... preme Court as error Appeals re a harmless categorically The Court of Criminal immune to error course, “af the error in- cently right” analysis. that a “substantial Of where said analysis by the error a substantial and volved defies harmless error ha[s] fected when injurious determining effect or standards or the data is insufficient influence presumption cannot be rebutted. anal- cause the meaningful conduct a harmless error 44.2(b) However, any proven does not create ysis, then the error will not be Rule 44.2(b) merely beyond presumption. a reasonable doubt under Rule harmless sort of 81(b)(2) appellate ignore court to non- requires 44.2]. Rule [now Rule [former] that does not affect error constitutional State, 947 (quoting Id. Cain must A determination right. substantial The Court (Tex.Crim.App.1997)). er- a non-constitutional made as to whether the court of Appeals noted that Criminal affect a substantial ror does or does August appeals down its decision on handed 44.2(b) Therefore, error where a Rule right. 29, 1997, days the new rules of two a harm type to this does not lend itself appellate procedure took effect and before i.e., a substan- analysis, determining whether handed opinion the Court’s Cain was affected, right logic neither nor Cain tial down, and remanded the case back to the simply disregard the error. requires us to determine, light court of 44.2(b), whether Cain and Rule A defendant’s to a selected analy- to a harm shuffle error was amenable according procedural empaneled sis, so, any if harm occurred. promulgated by the safeguards rules Id. right. Chap Legislature a substantial Cain, trial court failed to admonish (“The right of trial at 513 pell, 850 S.W.2d deportation conse- the defendant expedien higher plane than jury stands on a Cain, quences guilty plea. by jury means a cy; and trial fair Appeals ap- at Criminal according regulating their to the law selected provided in plied analysis the harm former empanelmentl’)\ see also selection and 81(b)(2), which mandated reversal of all Rule And, Williams, at n. 5. where criminal cases which the record revealed the error violates substantial appellate an error “unless court deter- .the jury, the the formation of the occurs before beyond a reasonable doubt mine[d] the error is immeasurable. See effect of to the conviction error made no contribution Ford, (“Determining at 827 Tex.R.App. punishment.” or to the P. inju and an error had a substantial (Vernon 1997). 81(b)(2) ap- revised normally a diffi on a verdict is rious effect 81(b)(2), plying former Rule the court ex- court, when, reviewing but as cult task for a plained required that reversal is unless here, the formation of the the error concerns beyond a rea- error can be shown harmless itself, occurring in jury opposed to error as where the error sonable doubt and impos presence jury, it is next subject analysis, it to a harm can never be from the fact of to measure the harm sible proven beyond a reasonable harmless doubt. record.”). jury disregard a To may concluded that “it be true 44.2(b) simply an under Rule because error kinds of errors ... will never be some the error appellant is unable to show 81(b)(2) under the Rule test.” See harmless verdict, jury’s would leave to a affected the Cain, governing a the rule trial court’s discretion legisla ignore the appellate proce jury shuffle. That would The new rales of 1,1997, procedural prerogative promulgate dure, September ture’s which took effect on jury. empaneling See analyses for er rales for fairness separate harm created two Tex.R.App. 653, 657 P. Carranza v. rors criminal cases. See 44.2(a), Crim.App.1998). To allow an erroneous Rule constitutional er 44.2. Under obtained can shuffle based ror must be reversed unless the error beyond juror information sheets determined to be harmless from the voir dire’s shown or right” fair and ran “affects a substantial to a a reasonable doubt. That rule creates harmful, Accordingly, we con presumption dom selection. that the error reversible, Appel harmful to presumption clude that the error was thus unless the judgment court’s logic is that if the lant and that rebutted. The of Cain Tex.R.App. P. analysis, be reversed. subject to a harm should error is not 44.2(b). prevails error presumption of harmful appeal

Conclusion before us because Davis involves the death-penalty of a case. The case now be- judgment We reverse the and remand the fore us not. The court of criminal does to the trial court for a new trial. case appeals even made this distinction Davis. out, Presiding Judge pointed As McCormick DAUPHINOT, dissenting filed a J. begins capital when voir dire in a is set case opinion. out in of the code of criminal article 35.17 procedure, which reads: DAUPHINOT, Justice, LEE ANN the court its discretion so When dissenting. directs, except provided as in Section respectfully majority’s con- dissent the state and defendant shall conduct the begins clusion that voir dire when the law- prospective jurors voir dire examination of yers jury questionnaires, read the and that a presence panel. in the of the entire reading for a shuffle after capital felony In a case in which the questionnaires comes after voir dire has be- penalty, seeks the death the court gun untimely. and therefore is propound pro- shall the entire spective questions concerning the SUMMARY principles, applicable as to the case on (1) provides Article 35.11 an absolute trial, doubt, proof, of reasonable burden of timely jury panel. shuffle the by grand jury, pre- return of indictment innocence, Then, sumption opinion. (2) either or This inures to the State defendant, on demand of the State or ei- the defendant. juror ther is entitled to examine each (3) A demand to shuffle is if made individually apart voir dire from the begins. before voir dire panel, question may entire further (4) case, penalty a non-death voir dire principles propounded on the begins prosecutor when the is called on and court.3 begins speak. Thus, contemplates article 35.17 that: (5) authority position There is no for the (unlike case penalty begins that non-death voir dire when case) is authorized to either ques- side views the answers to propound questions concerning “principles tionnaires. applicable to the case on trial.” In a where the venire has been (6) properly granted The trial court they seated the mil be examined order State’s demand for a shuffle. and the has been an defendant afforded shuffle, opportunity a the voir DIRE IN A WHEN DOES VOIR NON- judge dire commences when the trial CAPITAL CASE BEGIN? gins panel. his examination the of The sole issue before us is when voir dire us, appellant present- In the case before non-capital purpose begins a case for the the names of the ed his motion to shuffle cutting of off the to demand only after the trial court had venire not proce- As the code of criminal shuffle.1 both per conducted the initial examination Arti- clear, the dure and case law make rules 35.17(2), cle but also after some of the depending differ on whether the ease is a members had been dismissed from service non-capital case or a case. pretrial due to publicity remaining and the majority The relies on Davis v. State.2 venire had been excused from the court- distinguishable Davis is from specific the case now room with of when instructions (Vernon (Vernon 1. See Proc. Ann. art. Proc. Ann. art. 35.17 TexCode Crim. 3. TexCode Crim. 35.11 Supp.1999). Supp.1999); 1989 & see also (Tex.Crim.App.1989), cert. de 2. 782 S.W.2d 211 nied, U.S. 110 S.Ct. 109 L.Ed.2d (1990). (1) clear, then, that voir dire The is individual law was to return for each member 35.11 purpose for the of article examination Appellant’s motion examination. judge be- in a case when the untimely begins trial court and the therefore panel, seated gins voir dire of the it.... properly overruled examined, after af- they and order will however, case, non-capital in a Voir dire shuffle; fording opportunity to demand begins does not commence when (2) purpose examination for voir dire is, question us his remarks. The non-capital case begins of article 35.11 begin voir dire “When does by the recognized is only when the State Fortunately, court of criminal case?” dire examination court to start its voir directly addressed this issue. appeals has examination. actually starts the concurring opinion in Yanez v. his that, “I would hold that Judge Clinton stated THE TRIAL DECISION JUDGE’S DOES when coun- voir dire examination commences OF TO ALLOW VIEWING recognized for the sel State purpose addressing court for the QUESTIONNAIRES AFFECT JUROR jurors prospective qualifica- whose DIRE VOIR WHEN satisfactorily in have accor- tions been tested provisions the code of dance” with the THE BEGINS FOR PURPOSE procedure.5 criminal ARTICLE 35.11? OF criminal later unani- The court of majority appears to hold that because The concurring mously adopted Judge Clinton's juror ques- right to view there is no absolute opinion, stating: deciding whether to de- tionnaires before shuffle, viewing the mand a noted, 35.11, supra, As earlier Article The off the to demand shuffle. cuts or motion to silent as to when demand Davis majority concludes that establishes presented. must be deci- Judicial that a trial court is principle” “unmistakable clear that the demand sions have made parties evaluate the permitted “to let the urged voir dire examina- should be juror information gleaned Today adopt begins. tion we and add to biographical questionnaires before cards or Judge concurring opinion in Ya- Clinton’s request a venire shuf- deciding whether to qualified, have been nez. After respectfully suggest that this rule fle.” the trial court has made its after majori- hardly can be unmistakable when remarks, etc., introductory preliminary or ty great number of trial declares that jury panel we hold that Ap- judges, the entire 1982 Dallas Court purpose the voir dire examination interpreta- peals, I are mistaken our S5.ll, begins supra, Article when tion of article 35.11.8 recognized by the court to com- ac- mence the voir dire examination and support Davis to majority relies on its tually starts that examination. demand a shuffle position party that a must begins but also only before voir dire not otherwise, any judge, If it held then was juror The viewing questionnaires. type questions by interspersing voir dire Davis court majority believes the introductory jury to the among remarks existing it stated: changed law when cause, sponte deny could sua for the Alexander, we hold that because jury Following his to a a defendant absolute Legislature to not the intent of the upon timely and render a it was shuffle motion the shuffled meaningless.... have the names of venire mandatory statute Davis, added). Majority op. (emphasis 7. at 356. 4. 782 S.W.2d at 215 (Tex.Crim. 5. Yanez mistaken, only then I would 8. If I were the one J., (Clinton, App.1984) concurring). quarrel majority’s with the statement. not (Tex. 6. Williams v. added). Crim.App.1986) (emphasis right to a shuf- during information obtained a defendant has the absolute based dire, jury pursuant to Article panel, it the intent of the fle of the voir so too was not stated, again 35.11.”11 And in 1993 the court Legislature to base the shuffle on informa- juror request timely prior “A is if made to com- gleaned tion from information cards The court did biographical questionnaires.9 mencement of dire.”12 and/or prior say request timely not that a if made concludes, majority “Plainly, holding The this prior of voir dire and to to commencement appeals is the antithesis of the court of hold- viewing juror questionnaires. the Holman, I ing years in seven earlier.”10 Additionally, article of the code of agree. 34.04 cannot procedure requires criminal that a defendant appeals in Davis The court of criminal the case in which the State seeks dealt with the issue of whether copy penalty provided death required, to the defendant to allow persons names of the summoned as members juror information cards and his review ap- criminal of the venire.13 The court of questionnaires deciding to peals recognized provision al- has that this demand a shuffle. The court held that the pro- investigate to lows the defendant required trial court was not to allow the jurors: spective juror prior to defendant view appellant that may agree we with While Having requesting to a shuffle. addressed period juror day the two for examination of entitlement to the issue of the defendant’s 34.04, supra, in lists enunciated Article information, juror the court then ad- opportunity in coun- provides little urban separate of whether his dressed issue prospective jurors, investigation ties for timely based on request for shuffle was find that the trial court did com- we must prior request whether his was made to the This ply with the letter of the article. viewing If commencement of voir dire. duty legislature. Our is to request questionnaires makes a for a law, apply not write it. Until read untimely, then the Davis' court’s en- necessary it legislature deems begins dire tire discussion of when voir 34.04, supra, provide amend Article unnecessary. Obviously the issue of a defen- jury meaningful review of lists some juror information and dant’s entitlement counties, days in urban two defendants the issue of whether a to shuffle is notice, in given as was the instant case separate are two and distinct-issues. must suffice.14 nothing suggest There is that the court language directly a 1991 con- This case appeals of criminal in Davis intended adopted by majority position tradicts the If change law. the court of well-established in this case. change ex- criminal had intended counties, Davis, felony many large in isting presum- then the court cases law cen- are filled out change ably would have mentioned prospective tral room or even sent to years since Davis. some case the ten bring jurors, instructed to the com- I find cases reit- who are find no such case. Instead pleted questionnaire to the central room accepted regarding rule erating generally juror’s appearance. ques- at the first example, For three shuffles. Davis, copied ap- are and distributed years the court of criminal tionnaires after stated, panel ever arrives at the many lawyers before the peals have held times that “We Daigle, parte 12. Ex 782 S.W.2d at 214. Crim.App.1993). Majority op. (Vernon 13. TexCode Crim. Proc. Ann. art. 34.04 146, (Tex. State, S.W.2d 147-48 11. Jones v. 833 Supp.1999). State, Crim.App.1992) (citing 719 Williams v. 573, (Tex.Crim.App.1986), v. S.W.2d 575 Yanez State, (Tex. State, S.W.2d 654 v. 815 (Tex.Crim.App.1984), and S.W.2d 62 Ramirez 677 State, (Tex.Crim. (quoting Crim.App.1991) Smith v. v. Sewell (Tex.Crim.App.1987)). App.1983)). prospective jurors often do Consequently, the judge may A trial even order courtroom. day after questionnaires before courtroom until the lawyers to examine the not come to the in the In a panel completed ques- the is seated courtroom. they submitted their have case, panels usually of consist judge’s order- prohibit To a trial tionnaires. jurors. forty-two sixty prospective to Unless lawyers ques- the ing the to examine totally meaningless, law- questionnaires are panel is an tionnaires before the is seated yers questionnaires must review the intrusion on the discretion of unwarranted they begin their own voir dire. efficiently as a trial as judge trial to conduct all protecting rights the of possible while still days matter in these of practical As a lawyer to choose be- concerned. To force criminal dockets and limited bud- crowded and waiving right the to tween jurors prospective are often sent home gets, disobeying trial court’s order is funda- the they room after have from the central mentally unfair. questionnaires and instruct- completed their begin until the ed that the trial will not us does not reveal that The record before following day. persons not chosen for Those lawyers to view judge the trial ordered the panel during day that first are dismissed But of the questionnaires. the the decision one-day, the one- service. This is effectively judge’s trial majority restricts the counties, system adopted by in- trial some court. If the ability to run his or her own County. panel cluding Tarrant Because a opinion law of this majority becomes the day in may not chosen until late the and be state, judge to avoid a trial who chooses usually questionnaire because there are tainting or the disrupting his or her docket copied, completed forms to be and it is often by panel complete jury panel requiring the impractical attempt begin voir dire on jury room the in the central day panel the the chosen. only has three choices: judge panel could order the While from the central room to the courtroom (1) lawyers the Require the to review purpose allowing lawyers for the sole the panel questionnaires before the is seated (or panel to view the seated in order even for thereby wasting the time of the court avoid panel purposes allowing viewing the requirement panel, and the but violate the panel ques- having and also fill out the panel lawyers seated see tionnaires), to do means that other court so having wheth- proper order before to decide healings suspended, be that the defen- must shuffle;15 er to demand a clothes, dant be dressed in street must (2) panel into the court- Call the entire lawyers present must to view the being at purpose the sole stared room for last-minute, panel. pre-trial If motions are us, or, lawyers the case before heard, being danger prospective there is purpose completing additional inadvertently will communicate with a questionnaires, and then have them return family witness or a member of defendant dire but withhold the hours later for voir complainant. or There a dan- is also lawyers until questionnaires from the ger prospective juror into will wander dire; actually begins voir or hearing the courtroom before the is finished. transport prisoners, Because bailiffs must (3) panel the court- the entire into Call them, guard perform a multitude oth- remarks, room, panel, qualify the make his duties, er a trial is often unable to few hours and then send the off station a bailiff outside the courtroom to questionnaires. lawyers can review the so forty-two sixty ju- guard prospective option, the first sixty ques- If the trial chooses Additionally, forty-two rors. morning voir dire he can conduct thoroughly tionnaires cannot be reviewed But, ac- in the afternoon. hear witnesses a few minutes. fact, a shuffle. "In the defendant to demand See Scott intelligently (holding exercise his to a shuffle App. pet.) that a de cannot no — Austin seeing panelists in the order jury panel seated seated without fendant has the to see called."). they proper sequence deciding which will be in the majority, right neys rely can on information that is available cording to the he cuts off the panel. only juror questionnaires to shuffle the If he chooses the sec- or infor- from the option, basically ond or third he adds half a law that mation cards.20 It is well-settled day trial. from the added ex- to the Aside may prospective counsel strike based pense, options third are both the second and responses jury ques- solely on their to the jurors’ and the trial a waste of both the tionnaires.21 majority denigrates the court’s time. The in Dallas also Our sister court concept expediency. Expediency does not viewing juror the issue of whether addressed per trample litigants’ rights. may It se beginning questionnaires constitutes the wholly protection consistent with be holding that voir dire in a right to a fair trial. “the examination of the us, judge trial chose In the case before not tantamount to the commence- cards was panel courtroom to fill out bring to Consequently, the trial ment of voir dire. questionnaires. judge The trial then dis- failing grant appellant’s court erred to Both panel missed the until after lunch. panel.”22 jury motion to shuffle prosecution and defense counsel received that both the State and the It is fundamental copies questionnaires of the filled-in at 11:00 jury right have the to look at the defense counsel to court a.m. When defense returned in order the courtroom seated p.m., at 12:20 he learned that the State was they right listen to the have requesting a shuffle and that the bailiffs posed by the responses questions venire’s pres- performing the shuffle outside the were judge exercising to a trial before objected only that Appellant.16 ence of He shuffle. ques- had examined the because tionnaires, untimely under a shuffle was with the de- existing Most case law deals pointed judge Davis. The trial out shuffle. The State’s fendant’s There is applies only Davis cases. 35.11, however, article is no less right under Appellant provided was question no judge’s authority compelling, nor is time as the questionnaires at the same State. expedi- the affairs of the court to conduct that the ma- tiously. respectfully submit posed jury question- questions The I reiterate jority’s reliance on which traditionally are attributed to the trial naires rule deals with purpose jury questionnaires court.17 35.17, misplaced. under article cases biases, information, possible is to elicit basic dealing governing with the rules We are not problems other that would otherwise capital murder dire in the case now voir may brought during voir dire. Counsel out Additionally, ad- us. Davis does not rely questionnaires to determine on these a trial question dress the of whether during voir dire and questions which to ask may lawyers to review the allow the strike, minimizing the jurors to thus which requesting shuffle. The court of criminal length of voir dire.18 question of whether Davis addresses counsel is appeals has noted that defense lawyers to review trial must allow by the rely questions on the asked entitled requesting a juror questionnaires before dire.19 the prosecutor during court and Furthermore, the attor- the trial court and shuffle. 79, State, (Tex. Doby improper 910 S.W.2d complain 20. See v. Appellant of an does not 1995, 'd). pet. App. Corpus Christi ref of article 35.11. shuffle in contravention — 731, State, 933 S.W.2d 21. See Cuestas v. State, 487, 17. See Cuellar v. pet.) (holding (Tex.App. no Worth — Fort ref’d) (Ya pet. (Tex.App. Corpus Christi — peremptory because venire- that counsel’s strike nez, J., concurring). supported record sole person liberal was ly venireperson on his admitted because (Yanez, J., concurring).

18. See id. at 495-96 liberal). questionnaire that he was 18-19 n. v. Armstrong 22. Holman 19. See ref'd). pet. App. (Tex.Crim.App.1995). — Dallas Moreover, not the decision Davis does authority judge the trial

turn on the but,

permit examination of the

rather, dire in a case on when voir article

actually begins purpose for the criminal did not

35.11. The court of

hold, majority in now as does the the ease us, begun because that voir dire had juror question- lawyers had reviewed the appeals held

naires. The court of criminal untimely

that the demand for a shuffle was demand came after the trial

because the

judge the initial examination had conducted 35.17(2), began

under article which appeals held

dire.23 The court of criminal no absolute to examine the

that there is

gins his remarks in a case.

I therefore would hold that the State’s timely, because

request for a shuffle was yet begun lawyers when the

voir dire had juror questionnaires.

read the I would not authority

intrude on the of the trial conducted

determine how voir dire will be lawyers may examine the when

questionnaires. major- I Because believe the misinterpreted

ity meaning has respectfully holding dissent to its by granting

trial court erred the State’s mo-

tion the venire. I would affirm the to shuffle

judgment of the trial court. WHEELER, Appellant,

Dennis D. Texas, Appellee.

The STATE of

No. 09-96-382 CR. Texas, Appeals of Beaumont.

Court of Oct. 1998.

Submitted March 1999.

Decided

Rehearing April Overruled Davis, 782 S.W.2d at

23. See

Case Details

Case Name: Garza v. State

Court Name: Court of Appeals of Texas

Date Published: Apr 1, 1999

Citation: 988 S.W.2d 352

Docket Number: 2-97-573-CR

Court Abbreviation: Tex. App.