Maddux v. State
825 S.W.2d 511
Tex. App.
1992
Check Treatment

*3 fact, assuming and that situation MIRABAL, Before DUGGAN and same, alone, everything else was the fact O’CONNOR, JJ. that a only that’s different is fact died, you still many how would child years five to consider as little as be able OPINION probation? MIRABAL, Justice. being im- object I [By Prosecutor]: to com- asking jury jury appellant, Clayton proper question, A found Allen in a case. Maddux, specific facts guilty jury of murder. The as- mit themselves Abron, or moral beliefs. 523 S.W.2d at The Court: Sustained. [By Defense I’d like for the Counsel]: I

record to reflect would like ask discretion, To show abuse question every juror. each and ques defendant must demonstrate that the ruling It’s—the stands. Court: sought proper. tion he to ask was If the question and the defendant was Appellant challenged for cause most it, asking prevented from then harm is venirepersons had indicated an who presumed because the defendant could not unwillingness to consider in a intelligently peremptory exercise his chal venirepersons murder case. The were lenges gained without the information from questioned judge further an answer. Smith bench, they and those who maintained *4 641, (Tex.Crim.App.1985); 643 Bonilla v. five-years probation in could not consider State, 583, (Tex.App.— 740 S.W.2d 584 any murder conviction case dismissed were 1987, ref’d). pet. Houston [1st Dist.] they would for cause. Those who said probation consider listen to facts and proper question A is defined as facts, juror’s based on the were not dismissed for one that seeks to discover a views venirepersons applicable Nunfio, cause. None of the were to the case. on an issue 484; Smith, they allowed to answer whether could con- at 703 S.W.2d at 808 S.W.2d against range punishment probation sider if the murder was a 643. Bias of victim jurors, punishment philosophy of child. and the inquiry of for voir dire. are areas Questions potential ju asked of Smith, 45; Mathis, 703 at 576 S.W.2d 644 — intelligent rors are to enable the exercise improper to S.W.2d at 836-37. It is not peremptory challenges of and to establish a question potential jurors about their atti challenge basis for a for cause. Abron v. probation, probation if is within the tude on State, 405, (Tex.Crim.App. 523 S.W.2d 408 scope punishment of that will be considered 1975). right pose questions such is of conviction. by jury the event I, part right of the to counsel under article 839; Mathis, Rodriguez v. 576 S.W.2d section 10 of the Texas Constitution. State, 22, (Tex.Crim.App. 26 513 S.W.2d 835, State, (Tex. 576 836 Mathis v. S.W.2d 1974). State, Crim.App.1979); v. 568 Florio case, the State present In the 132, (Tex.Crim.App.1978). 133 S.W.2d although appellant was entitled argues that question it is that a When contended about their question venirepersons permitted that have not would enabled in mur willingness to consider intelligent peremptory of chal exercise not entitled to ask appellant was der lenges, requirements of the due both the on that was based hypothetical question process clause of the United States Consti case on trial. The peculiar facts to the right guaranteed to counsel tution and the State, 629 S.W.2d v. State relies White by the Texas Constitution must be satis denied, 456 (Tex.Crim.App.1981),cert. 701 Abron, fied. 523 S.W.2d at 1995, 938, 457 72 L.Ed.2d 102 S.Ct. U.S. (1982). There, court sustained the trial properly It is within a trial court’s the defense counsel objection when impose discretion to reasonable restrictions State’s if he be unable venireperson would dire examination. asked a on the exercise voir proved 667, if it was State, (Tex. a life sentence 669 to consider Clark v. store, at went into may proper that the defendant Crim.App.1980). A trial court it, or robbed aimed (1) tempted to rob it ly place time limits on the reasonable range head at short examination, (2) pro pistol at a woman’s prevent the voir dire if her, instantly, and killing her ques repetitious or and shot pounding of vexatious that. testified to husband tions, (3) questions asked in an the woman’s disallow the case. form, (4) the facts of inquiry into These were improper and restrict there was Appeals held of Criminal personal venirepersons, as Court habits the defense refusing to let no error opposed inquiry personal prejudices into been accused of mur- aware had hypothetical question that counsel ask a by striking case on her peculiar dering Krysti Lynette on facts Irle was based White, see also 706; object by shaking trial. 629 S.W.2d her. against head 331, 345 n. 13 Cuevas age. victim’s made No mention was denied, cert. (Tex.Crim.App.1987), U.S. argues “clearly, a child’s Appellant 99 L.Ed.2d 716 S.Ct. just as venirepersons,” can inflame murder because, improper is question Such of a sexual status as the victim a nun’s juror being required to specificity, a is such prejudice. can result bias or assault it, answering in advance commit himself Abron, Nunfio, and Hernandez We note the evidence. Hernandez hearing distinguishable are to the extent forbid- prevent- inquiry den each of those cases 1974). determining jury ed counsel from defense argues present case dis- Appellant categories persons who bias in favor defense White tinguishable from because witnesses: e.g., lay- versus nun would be hypothetical nature emphasized counsel person Nunfio, police or- officer versus provide questions did not details of the Hernandez, dinary citizen in white woman offense, age such the victim’s versus black man Abron. If the relationship appellant. her years or two *5 aggravated an sexual case had involved argues properly his counsel Appellant that child, in assault on a or some other offense upon sought prejudice to establish based prospec- complainant child was a which the child, just as the victim’s status as a de- witness, then defense counsel would tive counsel, in fense the recent case of question have to the venire been entitled State, v. questions regarding hypo- a asked concerning against the bias for or members a thetical victim’s status as nun. present- is not case child witness. Such the Nunfio, granted In the trial court ed here. limine, ruling that State’s motion venire, ask defense counsel could not general set out Applying rule involving aggravated case a sexual as- Cuevas, appellant’s we White and hold nun, whether, in a hypothetical sault a case question regarding hypothetical “a case, the victim’s status as a nun would a where there was a murder conviction and ability impartial. affect their to be fair and question child died” improper was an Appeals The Court of Criminal held: peculiar facts to case on trial. based on Here, question posed by appellant's question the permitted had been to Counsel sought potential determine counsel extensively regarding their venirepersons prejudice in favor of the victim bias probation prop- a willingness to consider inquiries her virtue of vocation. Similar inquiry additional er case. Counsel’s See, e.g., proper. held have been to be sought consid- to commit veniremembers State, (Tex. Abron v. 523 S.W.2d 405 specific case eration of (reversed Crim.App.1975) rape conviction involv- unfold before them —one would because trial court disallowed defen ing a child. We hold the trial murdered question dant’s to venire whether it it its when court did not abuse discretion would make a difference that the black asking from prevented appellant’s counsel raping was accused of white defendant question. State, 508 S.W.2d victim); v. Hernandez point of error six. We overrule (reversed (Tex.Crim.App.1974) 853 con of trial court’s refusal viction because error, In his seventh they if allow defendant to ask venire refusing contends the trial court erred police might officer lie could believe for failure of the the indictment dismiss oath). question under The in this case speedy trial. provide him with a State to and, thus, shown. was error Nunfio, S.W.2d at 484-85. 808 “speedy analyzing test for balancing the process trial” is a had claim

In the the venire been Wingo, 407 out in Barker v. indictment, factors set read the and therefore 516 514, 2182,

U.S. 92 S.Ct. relief, L.Ed.2d 101 Act. The trial court denied the inter- (1) length The factors are: appellate of mediate court reversed the trial (2) delay; (3) delay; court, the reason for the Appeals and the Court of Criminal rights; the defendant’s assertion of his appellate reversed the intermediate court. (4) prejudice to resulting the defendant appeal process completed was not until 530, delay. from the Id. at 21, S.Ct. September 1988. The State could not 2192; State, 133, Turner v. 545 S.W.2d 136 proceed Tracy’s to trial murder case (Tex.Crim.App.1976). during that time. According State, Tracy because could not be convicted or Appellant 13, was arrested on June acquitted during period, the State 1985, 6, 1989, and tried on years June four reasonably could not expect Tracy Maddux length later. The delay, of the for these to be appellant’s available as a witness in purposes, is measured from the institution trial. prosecution, when a defendant is formal ly State, Phillips accused or arrested. v. considering In the reason for 396, (Tex.Crim.App.1983); 650 S.W.2d delay, weight different should be as Turner, 545 S.W.2d at 137. signed to Generally, different reasons. cir missing cumstances such as witnesses will precise length There is no justify delay. Wingo, Barker v. delay that constitutes a violation of the 531, 2192; Easley U.S. 92 S.Ct. at right cases, speedy to a trial in all but the State, 744; 564 S.W.2d at Crowder v. Appeals Court of Criminal held in one case 63, (Tex.Ap p years that five was not a violation —Hous ref’d). pet. ton Although [14th Dist.] right speedy defendant’s to a trial. Easley Tracy was not technically missing wit (Tex.Crim.App.), 744-45 ness, as practical matter she was un denied, rt. 439 U.S. 99 S.Ct. ce 456, *6 testify, available to as she would have length L.Ed.2d 425 The been if she missing. delay the is to some triggering extent a mechanism. is delay Until there some that The third balancing factor the test is presumptively prejudicial, is there is no ne the rights. assertion of the defendant’s cessity inquiring into the other factors Appellant right speedy asserted his to a go Turner, into the balance. 21, 1986, trial in motions filed on March four-year at 136. The delay S.W.2d in this 12, 1986, May requests and oral from his not, se, per deprivation case is appel attorney prosecutor, and a motion right trial, speedy lant’s to a but it is a fact 19, April on Appellant’s filed 1989. mo- requiring appel further consideration of tions to dismiss claimed the State had lant’s claim. provide speedy failed to him awith trial as guaranteed by him the sixth and four- The second balancing factor the teenth amendments of the U.S. Constitu- delay. test is the reason for The burden is tion, 1, and article section 10 of the Texas good on the State to it has show excuse points The Constitution. State out that the causing delay bringing the the defen May motions of March and were dant to trial. Id. at 137. court, by rulings ruled on the trial and the In the the reason for the However, upheld appeal.1 were the as- delay “unavailability” was the of the right sertion of the is the factor to be important State’s most witness. The considered, not the trial court’s actions. primary Tracy State’s witness was Mad- weighs appellant’s This factor favor. dux, Tracy the victim’s mother. Maddux Tracy balancing was also indicted for the murder. The final factor pretrial corpus prejudice resulting had filed a writ of habeas test is to the defendant application, seeking delay; to dismiss the indict- from the accused must make against Speedy showing prejudice. Phipps ment her under the Trial of that some Appellant corpus Appeals, filed Court of writs habeas chal- claims. The Fourteenth lenging rulings speedy opinions, unpublished relief. the adverse on his trial denied State, 630 remaining points of The discussion of the 1982). determining prejudice In to the de publica- not the criteria for error does meet Tex.R.App.P. 90, fendant, tion, are: the interests to be considered thus ordered judgment. incar affirm the 1) oppressive pretrial published. We prevention of not ceration; 2) minimizing anxiety and con O’CONNOR, Justice, dissenting. and, accused; 3) limiting cern of error, im be In his sixth possibility that the defense will I dissent. Barker, prevented 92 S.Ct. the trial court paired. appellant U.S. contends 2194; Turner, questioning the venire members 545 S.W.2d at 138. him from appel young had been apply first does not to on whether fact child consideration lant, influence their consideration he released dur killed would because was on bond probation. was a two-and-a- proceeding. Ap of The victim ing pendency girl. year-old by half pellant’s prejudiced claim is that he was him delay ability his because to defend dire, During prohibit- voir the trial court impaired. self was hypothetical ques- appellant’s counsel’s ed con- the venire could tions about whether hearing, appel At pretrial in murder case sider where that, attorney according lant’s testified to re- The standard of victim was child. investigation, his a witness the name of claims in a case defendant view where Palmer or Paumer had moved either restricted on voir dire is improperly he was event, or died stroke. In Ohio of a either court abused its discre- whether trial jurisdiction outside the the witness was 482, 484 tion. Nunfio He the court. also testified he was unable (trial (Tex.Crim.App.1991) court should Lynott. locate a witness named Michael permitted regarding panel’s dire have voire nothing pre There is in the record of the nun was the victim of prejudice when a hearing trial to indicate what either of the If the on voir dire was rape). restriction witnesses would have testified about. engage in the harm improper, we do not Lynott There is an indication Michael analysis. required In such a case we are spoken had seen and earlier reverse. day 4, 1985; Krysti on June died later majority distinguishes be- However, day. that same there is no indi prevented the prohibited inquiry cause the *7 testimony cation what his would be con determining jury counsel from bias defense cerning preju the offense itself. To show persons “wit- categories in of of favor dice, only need the defendant show that Slip e.g., layperson.” : nun versus nesses prospective was to the witness material Nothing supports op. in case, not that the witness would have testi holding that the nun’s role majority’s the favorably Phillips fied v. defense. (rather her as a than role as a witness State, 402 S.W.2d victim) majori- the Under the was issue. 1983); 67; Crowder v. may question the ty’s analysis, defendant Owens, (Tex. State or potential bias for venire about its ref’d). App. pet. [1st Dist.] — Houston witness, person but against a who will be However, the has against for bias not about venire’s his not met burden to show that either who was the victim. person missing the two witnesses were material majority attempts the same distinc- The Therefore, weighs case. this factor Abron, versus black tion of “white woman appellant. against op. Again, Maj. at 515. man Abron.” ” factors, Balancing hold the “Barker we opinion supports nothing the Abron justify there is sufficient evidence to it white majority’s inference that was the court’s to dismiss trial denial motion (rather her than woman’s role as a witness speedy the case lack of a trial. victim) at issue. as a that was role defen- the race appellant’s point overrule seventh issue Abron was We of the victim. One dant versus race error. questions pre- the defense counsel was asking if vented from it would make a panel

difference if the victim had black, Nothing

been instead white. opinion suggests complaining it was the

witness’ role as a witness that was the

issue; it was her role as the victim.

Only Hernandez v. (Tex.Crim.App.1974),supports the ma- Hernandez,

jority. In the issue was police

whether the officer was more believ- ordinary

able than an citizen. There was

nothing sug- opinion in the Hernandez

gest police role as the that the officer’s

complaining played any part in the witness

voire dire. majority’s position trial may questions regarding

court not limit prejudice against type

venire’s a certain witness,

person may ques- as a limit but regarding prejudice

tions the venire’s

against type person a certain as a victim. distinction; logic

I see no neither any support

can I find for it the cases majority cites. six,

We should sustain of error judgment,

reverse and remand the

cause for a new trial. TAYLOR, Appellant

Alonzo Texas, Appellee.

The STATE of

No. 01-91-00242-CR. Texas, Appeals of

Court of (1st Dist.).

Houston

Feb. 1992.

Discretionary Review Refused

6,May