Morrison v. State

him,9 (2) CLINTON, J., against dicial in the result. effect concurs dispel judge prejudicial effect failed WHITE, J., dissents. opportunity. with the presented when pretrial hearing, appellant At tried to judge underly-

inform the trial of the facts by tendering the arson conviction copy probable

judge a certified of the cause prosecution. The

affidavit from arson pretrial hearing

record reflects dispute

appellant, after a domestic with his

girlfriend, can had taken a beer filled with

gasoline, poured gasoline through her slot, postal postal and then fire to the MORRISON, set Appellant, Steven appel- slot. record reflects that also pay lant not ordered restitution was ruling

in that case. that the arson con- Texas, Appellee. The STATE of admissible, trial judge viction was said No. 970-91. go “I there don’t think will be need into all the details of that case other than Texas, Appeals of Criminal the fact that there has been conviction.” En Banc. appellant to If the trial had allowed present underlying the facts his con- arson 16, 1992. Dec. viction and had considered those facts him- Rehearing Denied Jan. determining admissibility self conviction, prejudicial effect of admit-

ting greatly the conviction would have been judge prohibited Since

lessened.

appellant reducing prejudicial ef- conviction, prior

fect of the facts arson compel

of this to conclude that the case us ruling discretion in abused his

the conviction admissible.

Having the trial court concluded discretion, must

abused its we reverse

judgment appeals of the court of and re- for a

mand this case that court determi-

nation of whether the error was harmless

beyond Tex.R.App. a reasonable doubt. 81(b)(2); Haynie

Proc. (Tex.Cr.App.1988). appeals judgment the court cause REMANDED

REVERSED

to that court. J.,

BENAVIDES, joined by McCOR-

MICK, P.J., concur it seems clear because appel- us the trial court limited the facts would ameliorate

lant’s use of conviction, impact prior

or lessen join only we the result

and therefore majority.

reached buildings burning conjures up images appellant potential agree 9. We great potentially fraud. prejudice "arson” insurance because fifty years Department for in the Texas appeal, appellant Criminal Justice. On complained practice of the trial court’s allowing jurors question witnesses submitting questions means of written Appellant argued the court.1 this encourages practice jurors to become advo- Appellant further contended that he cates. juror’s question, was harmed because inadmissible, although “tipped ruled off” prompting prosecutor, the State to of- Hanna, Station, College Annette K. fer on a material additional evidence issue.2 appellant. Appeals The Tenth Court of declined to ban Turner, Atty., Bill Dist. and James W. practice juror questioning of wit- Locke, Atty., Bryan, Dist. Robert Asst. nesses, juror’s question but held that Huttash, Austin, Atty., State’s for State. this case led to reversible error.3 granted the We State’s Petition for Discretionary Review to determine whether OPINION ON STATE’S PETITION FOR holding appeals “the court of erred DISCRETIONARY REVIEW the trial court its discretion in al abused MALONEY, Judge. lowing the State to recall a witness produce topic on a raised Appellant was convicted of murder and evidence punishment juror’s question.”4 The was assessed confinement State claims that injuries” night appellant The instructed the that follow- or der, of the mur- Fickey responded that he had not. each witness could submit to which be asked to the court to of that witness. The appeals 3. The court of determined that the trial court would rule on outside of the permitting juror questions court’s presence jury. question of the If a ruled was essentially amounted to communication be admissible, would recall the trial, during tween and counsel under parties read the to the witness. The mining integrity judicial process. follow-up questions were allowed to ask witness, State, (Tex. Morrison v. 815 S.W.2d subject limited matter of the 1991). Concluding App. that the trial — Waco juror's question. Appellant objected pro- to "the by allowing its discretion court had abused grounds cess” on the that it is authorized "not strengthen upon the com State to its case based overruled, Appellant’s objection law.” was juror, appeals munication from the the court of appellant running objection obtained harmful, per was se as "an held that error here process." “the whole beyond appellate court cannot determine rea advantage an unfair sonable doubt that briefly 2. We will summarize the facts relevant gained juror’s question did not the state from a juror’s question. brought ap- victim The punishment.” contribute to either conviction or pellant drug to her house to facilitate a transac- Id. at 769. began Appellant fighting tion. and the victim hallway Corpus and Houston courts of 4. Christi bedroom inside the victim’s grappling appeal the issue Appellant eventually have also been house. chased the victim State, trial, juror questioning. Velasquez v. from the house with a butcher knife. At (Tex.App. Corpus Christi 845-46 Fickey, investigated S.W.2d Detective who the crime — State, 1991) (procedure permitted); scene, Nichols v. drops testified that he had found several (Tex.App. [1st 307-08 hallway of blood in a in the victim’s house. — Houston State, 1991, pet. granted); Buchanan Dist.] Following testimony, his submitted (Tex.App. following question: "Was of the blood in — Houston 1991, pet. granted); Allen v. [14th Dist.] [appellant’s]?” Appellant's objection the hall (Tex.App. Dist.] [14th 807 S.W.2d 639 hearsay response called for a — Houston 1991, pet granted). Accordingly, issue is and the was never was sustained 200(c)(2). ripe for our review. TEX.R.APP.PRO. However, asked. the trial court allowed juror questions objection, ques- Fickey, We note that the issue of State to recall over being” previously appellant’s “physical in Carr well before this Court tion him about appeal (Tex.Cr.App.1972), dismissed night the murder. The State Fick- S.W.2d 755 the ey asked "wounds, denied, 93 S.Ct. 409 U.S. he had observed scratches and cert. whether procedure allowing ju- presented court’s Resolution of the issue in this upon questioning understanding “embodied vir- case turns our

ror witnesses adversary system.5 tually safeguards” numer- suggested currently popular reflects permitted ous courts that downplay long-standing movement to ad- argued procedural practice and that where in principles versarial favor of an to, intensi- safeguards neither side are adhered truth-finding.6 focus on fied While we rec- advantage. The State fur- gains an unfair ognize the search for truth is an inte- practice the does not lead ther asserts that gral part adversary process, advocates, in to become but aids equally prominent features characterize Appellant fully developing the evidence. system. Addressing multiple our the na- practice essentially argues the of al- adversary system ture of our Justice Black lowing jury’s the juror questioning distorts wrote: role, leading jurors to factfinding neutral part is A criminal a search for Appellant the role of assume advocates. system designed truth. But is also a juror questions amount to a claims by protect insuring “freedom” that no form communication between criminally punished one unless the calls into the parties State has first succeeded in the admitted- integrity adversary system. We ly convincing difficult a jury task agree appellant. To allow our adver- guilty. the defendant travel, sary prior without autho- system Florida, Williams v. rule, rization, by 78, 113-14, unregulated statute or 399 U.S. 1912, by 1893, (1970) encouraged direction 90 L.Ed.2d S.Ct. 26 446 part dissenting practice (concurring part). court’s inconsistent with the Further, rights principles underlying system. process Due and those individual practice dangers quality inherent in such a to our of life that are fundamental with, override, adequately by cannot be circumvented co-exist times imposition procedural safeguards. truth-finding These values function.7 be- L.Ed,2d (1973). truth-finding Although 682 we stated that we renders other intensified focus on adversary principles perceive importance. permit failed "to how these diminished objection improp ted without were may effectively adversary 7.Certain values im- harmful", point er or error was multifari pede by operating discovery of truth presented nothing ous and for review. evidentiary For barriers to conviction. in- points The state courts 5. State numerous stance, against privilege the fifth amendment practice juror ques- permitted the which have a critical source of self-incrimination eliminates tioning of witnesses in various forms. Review light on the “truth". information that shed that, opinions arriving at of these reflects Freedman, Judge Monroe H. Frankel's Search decisions, enter- most these state courts Truth, 1060, 123-2 U.Pa.L.Rev. 1063-64 for virtually tained no discussion of adversarial (1975). operate keep Rules of evidence also presented principles problems or of the jury. Legal commenta- information from juror ques- jury’s by the neutral role implemented suggest we have tors 1, See, State, tioning. e.g., Nelson v. 257 Ark. ap- evidentiary we are more because barriers McAlister, 496, (1974); People v. 513 S.W.2d 498 person palled of an innocent conviction 271, 633, Cal.Rptr. Cal.App.3d 213 276-78 167 See, acquittal guilty individual. than Greene, 980, (1985); Yeager v. 502 A.2d 985-86 Frankel, Truth: e.g., E. The Search Marvin State, 797, (D.C.1985); 101 Ferrara v. So.2d 800-01 1031, View, Umpireal 123-2 U.Pa.L.Rev. 1037 An ( 490, State, 1958); Story Ga.App. v. 157 Fla. Uviller, Advocate, (1975); H. Richard 97, (1981); 98 v. 278 S.E.2d Carter 250 Truth, Judge A Judicial Hackles: Reaction 13, 650, (1968); Rudolph Ind. 234 N.E.2d 651-52 1067, (1975); Idea, 1078 U.Pa.L. Frankel’s 123-2 Center, Inc., v. Methodist Medical 293 Iowa Damaska, Evidentiary Mirjan Barriers to Convic- 550, (Iowa 1980); People v. N.W.2d 555-56 Procedure: tion and Models Criminal Two 182, 73, Heard, Mich. N.W.2d 75-76 388 200 506, Study, 508 Comparative 121—1 U.Pa.L.Rev. 661, Daniels, (1972); Sparks v. (1973). the chance of barriers decrease Such Rodriguez, (Mo.App.1961); v. 107 N.M. State person, also in- conviction of an innocent 611, 898, (state (Ct.App.1988) 762 P.2d guilty person will es- the chance that a crease cape practice); Byrge v. statute authorizes the Damaska, Evidentiary Barri- conviction. 292, (Tenn.Crim.App.1978). ers, 121-1 U.Pa.L.Rev. at adversary process comparing with in- Judge will- Benavides’ dissent also indicates a legal join quisitorial systems, dis- ingness commentator the current ranks of those whose advocate, participants, judge, adversary process to the due intrinsic came general governmen function, largely to a distrust leads fair- single each to a to the See, e.g., Oregon, Apodaca power. tal and most efficient resolution of the est 1632, 406 U.S. S.Ct. The Adver- Landsman, dispute. Stephan Louisiana, (1972); Duncan L.Ed.2d Description sary System, a and Defense U.S. 88 S.Ct. (1984). Party responsibility produc- (1968). Evidentiary barriers to L.Ed.2d 491 the jury, tion of evidence insulates exist, equalize part, conviction greatest possible, extent the contest. defense between state contest Id. offsetting resources the abundant juror questioning of wit- power the state.8 disturbing in potential nesses is its most jury of as a neutral Establishment the undermining mainstays these of the adversary in the passive fact-finder and adversary process. eloquently As stated to process paralleled the movement safe- Judge Lay, by 8th Circuit Chief “[t]he fun- rights governmen- against individual guard problem juror questions damental with Duncan, 156, at oppression.9 391 U.S. tal gross lies in the distortion adver- the of jury at 1451. The for the to 88 S.Ct. desire misconception sary system the the and governmen- body independent of of stand as the jury role as a neutral in among influence led to defined roles of tal factfinder adversary process.” the United States in the participants system. adversary Johnson, 707, (8th Cir.1989) prevailed 892 F.2d 713 theory past as it has for the added).10 years (concurring (emphasis of opinion) maintains that the devotion the case, differently systems investigate cussed how the two the State its own its "resolve to find witnesses, pursuit facts, prove the conflict between efficient of own the own its and con- protection such as jury though truth and of values human vince the its own resources. privacy 112, dignity preservation Williams, and and the of a at 90 S.Ct. at 1911-12 399 U.S. general atmosphere of Id. at 579. It (concurring dissenting freedom”. part part). and in system placing high is his contention that the dignity privacy Adversary philosophy gen- value on human and will remain method as it expense to those even at the erally today developed England pri- committed values known system is of truth. A more truth-oriented less marily during De- the 17th and 18th centuries. willing evidentiary establish barriers that are velopment system propelled was of the independent ther, truth-finding influences, of the function. Fur- including variety largely of social system more the committed a to truth as English of the reform movements the 1760’s purpose, paramount the less tolerant it will legal system 1770’s which used the to address acquitting guilty prevent of the order to injustices day, scholarly of the numerous social of the at conviction innocent. Id. 579-80. trials, writings on the adversarial nature of reconceptualization of the rules of scholastic evidence, words of 8.In the Justice Black: dynamic of individualism “the rise The Framers were [of Constitution] well growth economy”. Step- of a market [and] investigative prose- aware of the awesome Landsman, The Rise the Contentious han of powers government cutorial of and it was in Eighteenth Adversary Spirit: Procedure in Centu- they spelled powers limit order to those [that] England, ry L.Rev. 75 Cornell 572-603 procedure in the out in detail Constitution the (1987). to be followed dant, criminal trials. A defen- said, Juries have viewed as intrinsic to life in been they is entitled to notice of the society: him, a “free” right charges against by jury, the by jury defense, is more than an ... instrument right his counsel for confront witnesses, justice wheel and more than one of the consti- right cross-examine to call behalf, lamp that shows that freedom right tution: is the in his and the witnesses own against lives. a witness himself. All of these to be rights Duncan, at designed n. S.Ct. U.S. 155-56 to shield the defendant are Devlin, by Jury designed (quoting Trial power. n. 23 P. against state None (1956)). systems, together In where a con- taken continental convictions easier and make system dignity preservation they clearly indicate that in our cern human prominent, jury activity rights proving criminal individual is less entire burden defendant, notably under on the State. The our absent. rests Constitution, anything at need do all to himself, Although practice courts allow the certainly federal he cannot be defend witnesses, permitting help required to himself. Rather he convict absolute, dangers. recognize right compel its inherent unqualified nevertheless has an witnesses, Judge Benavides his dissent never- Lewin, See, e.g., juror questioning United States v. 900 F.2d theless asserts should be (the (8th Cir.1990) recognized judicial "considerable questioning because allowed witness- appellant's argument juror question However, merit" in ing es cases has been tolerated. cited disruptive, speculation and “dis invited by Judge support proposi- Benavides in pro jury torted role of the in the adversarial represent unques- tion do not wholesale and Nivica, cess"); United States v. 887 F.2d approval judicial questioning tioned nor do denied, (1st Cir.1989), 110 S.Ct. cert. 494 U.S. justify jurors. extension of the (risks (1990) juror ques 108 L.Ed.2d 477 Judge Benavides cites ten cases in his dissent tioning "compounded ain of witnesses are crimi in which this court under limited circumstances case"); Goodyear Tire & nal DeBenedetto v. Rub judges. questioning allowed witnesses Co., (4th Cir.1985). F.2d ber primary allowing partic- concern active length pitfalls Fourth Circuit has discussed danger ipation by is the stating: practice, convey opinion case will his somehow Notwithstanding juror ques- our belief that ultimately influence their decision. tioning within the trial court’s is a matter In of the ten See Article 38.05 V.A.C.C.P.. most discretion, ju- we believe cited, during questioning cases did not occur dangers fraught ror jury. presence the course of a trial danger orderly progress of undermine the can Therefore, any apparent bias judicial system is verdict. Our found- trial to ed present. would influence the was not upon presence body of a constituted as cited, questions propounded two of the cases to discern the truth from neutral factfinder probation judge were so at revoca- done parties. positions presented the adverse hearings not entitled tion where defendants are purpose of evidence has the The law provision objection jury a had been made and where no by only of a of rules which set State, questioning. to the Brewer v. 572 S.W.2d put evidence is before relevant admissible State, (Tex.Cr.App.1978); 719 v. 485 Munoz that neutral factfinder. Individuals not (Tex.Cr.App.1972). In two other S.W.2d 782 expected be trained in the law cannot know cited, was the trial cases the defendant before relevant, legally understand what is State, plea guilty. v. court on a of Cleveland legally perhaps importantly, more ad- what (Tex.Cr.App.1979); 588 State, 942 Navarro v. S.W.2d generally jurors missible. Since (Tex.Cr.App.1972). An- 477 291 law, potential in the the risk that a trained a Mar- other of the cases cited was bench trial. juror question improper prejudicial or will State, shall 164 S.W.2d 135 v. Tex.Crim. 297 simply greater than a trial court should (1957) (holding since the trial was before take, compelling absent such circumstances as questions jury, did not the without a the court justify judicial the exercise of that discre- will appellant). Two of the result in harm the as set out above. tion questions clearly which the cases involved DeBenedetto, 754 F.2d at 516-17. judge in order to make a would need answers justified federal have tolerance Some courts State, ruling. v. 152 Tex.Crim. 214 Milo grounds judicial juror questioning of on the (1948) (although recognizing that S.W.2d 618 generally permit- interrogation of witnesses is asking normally refrain from the court should per- Rule of 614 ted. While Federal Evidence questions, aid permissible here to witnesses, judicial interrogation of mits federal admissibility court of of in its determination appellate courts cautioned district courts State, evidence); Rodrigues Tex.Crim. v. 110 See, dangers practice. on the inherent (1928) (although recognizing 149 8 S.W.2d e.g., Beaty, 722 F.2d United States v. asking ques- judge should refrain Cir.1983) (3rd "extremely (judge must be care- witnesses, per- questions were tions of the questioning); States v. ful" to minimize Barbour, United of court in determination missible here to aid (D.C.Cir.1969). F.2d As cited, issue). of the cases In another venue Circuit, judges should the D.C. stated judge because trial asked the witness questions to a minimum constrained hold just stated. witness had he did not hear what the “[ijnterrogation of witnesses tends to because State, (Tex.Cr.App.1967). Ash 420 S.W.2d v. advocate's, the court's role with the assimilate cited, objections In another of cases prov- separating may tread over the line explanations to veni were directed at the court’s Barbour, judge jury.” 420 F.2d at of inces during being asked them remen of omitted). Citing (citations opinions of oth- State, Enriquez 429 S.W.2d voir dire. v. circuits, asserted that er "[tjhere further Only cases (Tex.Cr.App.1968). the ten may is the risk that of judicial question majority involved cited ing against tilting of bear 'the seeds the balance to an to elicit unrelated in an eyes place in the some accused’ and ‘the facts effort jury trial. course issue law normal prosecution’”. the side of the Id. on State, (Tex.Cr.App. v. S.W.2d 560 Stewart (citations omitted). 1969). recognizing “second to that Texas is While appeals cases In of the seven court of five disapproval of the nonadversarial none” in its Benavides, judicial Judge comments cited judges’ examination of witness- of trial presence made virtually rejecting were either outside Texas is alone es and that adoption were jury during jury comments 614 which of Federal Rule Evidence during trial. Burks interrogate of a bench made the course to call and authorizes structions, passive detachment increases juror participation To allow active Johnson, presentation encourages jurors of evidence probability. 892 F.2d at 713. depart passive from their role as listen- importance maintaining ju- Given the ers and assume active adversarial impartiality as fundamental to adver- ror inquisitorial participation stance. in- Such integrity,12 any redefining ju- sarial evitably inquirer leads conclu- to draw process ror’s role in the must be undertak- given legal theory sions or settle on a be- only exceedingly en when the benefits are parties pre- completed fore the allowing jurors clear.13 The benefits sentations, has in- and before the court participate soliciting evidence are far jury structed case.11 the law of the insignificance from clear and fade to Although impossible guarantee it is presented light perils to adversarial open-minded will remain until presentation principles.14 in- of the evidence and V.A.C.C.P., anyone prohibits 38.04 from con- State, deliberations, (Tex.App. 1985); versing jury during 693 S.W.2d 747 Silva with the Arti- — State, V.A.C.C.P., (Tex.App. Corpus 635 S.W.2d 775 cle describes what 36.22 — 1982); State, room, may Christi Bautista v. 632 S.W.2d 846 them into the Articles take with 1982); (Tex.App. 36.18, V.A.C.C.P., provides Richard [14th Dist.] 36.25 method — Houston State, (Tex.App.

son v. 632 S.W.2d 700 juries communicate with the court — Fort 1982); case, Worth Voelkel v. 629 S.W.2d 243 after receive the Article 36.27 1982). (Tex.App. V.A.C.C.P., Worth In another of the jurors during and allows delibera- — Fort cited, objection seven cases no had been made testimony tions to have trial read from the notes questioning. to the Ross v. reporter the court or a witness re-examined if 1990). (Tex.App. [14th Dist.] reading possible, is not Article 36.28 — Houston cited, another of the seven cases Significant given V.A.C.C.P. attention is witnesses, did not ask jury. seq. formation of the Article et. 35.01 merely made comments to counsel in an effort Many provisions appli- V.A.C.C.P. Code’s preserve orderly proceedings. to State, Betancourt v. juries clearly designed cable to are to foster (Tex.App. Corpus 657 S.W.2d 451 Christi impartiality. — 1983). practice permitting jurors 14.Studies on the of jurors likely give greater are Fellow who question al- to leged witnesses have shown that the weight questions by jury asked another mem- practice marginal of the are at benefits by lawyers responsible present- ber than the for best, and the detrimental effects are elusive of ing may the evidence also be inclined to draw Note, Breaking DeBenedetto, measurement. the Silence: premature conclusions. 754 F.2d Question Should Jurors be Allowed to Witnesses at 516-17. Trial?, 117, During 44 Vand.L.Rev. 140-42 12. In addition the real distortion of adversari- (1991). In one of the most extensive studies principles resulting al from the of al- matter, conducted on the the theoretical advan- lowing jurors participate presentation tages permitting juror questions of were stated evidence, jurors’ assumption of the of role following: as the impartial other than that of an and indifferent (1) it that the had all the would ensure integrity the listener calls into system the verdict; just relevant information to reach a giving by appearance the that the (2) may by it uncover evidence left out may maintaining impartiality. not be Al- (3) attorneys; juror participation; it increases though judge juror operate each within dis- (4) attorneys alert to areas which roles, clearly defined tinct and share the developed need to be or clarified. striving goal impartiali- common to maintain Honor, Sylvester, Jeffery Reynolds May Your ty preserve integrity sys- in order to of the Dangers Question? Ask a The Inherent Allow- tem. As stated Justice Frankfurter in refer- Witnesses, ing Cooley Question Jurors to 7 against ring judge appeared to a who biased 213, (1990) (discussing study L.Rev. 223 con- trial, parties during a are subtle “[t]hese of the matters, Larry Dispute ducted Huer of the Resolution ingredients concern University Center at Northwestern and Steven Therefore, justice. justice what constitutes must University of Wisconsin-Madi- Penrod justice.” satisfy appearance Offutt son). disadvantages were set The theoretical 11, 13, 14, 11, States, U.S. S.Ct. 99 United 348 75 following: forth as the (1954) added). (emphasis L.Ed. 11 (1) jurors objectivity could lose their and be- overinvolved; (2) might may jurors change come 13. A of this nature best be facilitat- legislatively. improper questions. The Code of Criminal Proce- ed procedure study in which rules of Id. The was based on real trials dure sets forth numerous questions juries jurors applicable detail. were to submit written with considerable allowed Note, instance, provides juries questions. who screened the For the Code that 36.13, fact, Silence, Breaking at Articles 44 Vand.L.Rev. 140-41. to be the exclusive finders 888 imposition jurors declare mistrial? Should be al- emphasizes

The State presum- lowed a defendant chooses safeguards, apparently who procedural Especially to take stand? troublesome effectively ing judicial control will possibility juror may partiality danger presented to adver- eliminate of a single question arise the result pit- Although sary values.15 some may juror arise in one as a result of anoth- pursu- may falls of the be avoided questions, however impartial er’s those safeguards, numer- procedural ant strict questions appear.17 impli- procedural and theoretical ous For in- cations remain unanswered.16 questionable prac benefits of such a stance, scope permissible what outweigh far-reaching do haz tice questions? be told of juror Should presented ards to other values intrinsic in Barrett, submitted Accord State v. exclusion of a the reasons 297 system. denied, cert. recalled if a question? (1982), Should witness be 460 S.E.2d 796 after wit- L.Ed.2d 800 thinks of U.S. S.Ct. (1983). thorough juror’s legislative If a man ness has been dismissed? Absent a area, experim date in courts should questions indicate that becom- involving system in our partial change ent.18 ing prematurely should presented Although study already the evidence found believed issues raised information, issues; (3) questions may questions new the ask- elicited additional raise jurors’ prejudicial results did inappropriate, indicated or irrelevant previously evidence and legal not elicit undisclosed juror’s train- lack of due to the Jeffery only moderately helpful. Reyn- were (4) already ing; slowing further Honor, Sylvester, Ques- Note, May Ask a olds Your l See, process. sluggish cumbersome trial 223; tion?, Cooley at abo L.Rev. see 516; Zima, DeBenedetto, e.g., F.2d State Silence, Breaking Vand.L.Rev. (1991); N.W.2d see 237 Neb. (Huer, study that the "belief Penrod revealed Berkowitz, Note, Breaking Jeffery abo S. jury questions pertinent help- uncover Question Jurors be Allowed to Silence: Should exaggerated. ful has been Benefits information Trial?, During 44 Vand.L.Rev. Witnesses best”). Significant- in this areas were modest at Wulser, Comment, (1991); J. 120-21 Michael subjective ly, study nature found that the Ques- to Witnesses Jurors be Allowed Ask Should disadvantages impossi- potential rendered Triab?, L.Rev. tions in 58 UMKC Criminal propositions Jeffery at all. ble to measure those (1990). employed procedures Honor, Reynolds May Sylvester, Your I Ask a the attor- in this case eliminated Question?, Cooley L.Rev. at 223-24. deciding ney’s or not to of whether dilemma dissent, Benavides, Judge also con- 15. his presence object question in of the to subject juror questioning is to cludes that when jury. control, judicial “the fundamental conscientious adversary system compro- are not values of our juror Judge Lay, practice of by 17. As noted by jurors premature mised” and commitment questioning of a "subtle and to unfairness leads Judge belief that can be avoided. Benavides' identify to psychological that is difficult nature premature impartiality be circum- can somehow Johnson, F.2d at 711 n. particularity.” with by screening manner the number or of vented 1. impar- questions that such submitted assumes clearly tiality re- be so obvious as to be will loyalty to adver- We staunch note that Texas’ We think asked. flected in the in its principles has been demonstrated sarial generally likely juror impartiality is more prac- disapproval of the nonadversarial stated or elusive detection measurement of judges’ examination of witnesses tice of trial may impart any practice im- this which reason rejection Rule of Evidence in its of Federal partiality not be should condoned. judges interro- call and which to authorizes Judge recognized by Bena- gate witnesses. As addressing legal this is- scholars Courts every dissenting opinion, state vides in his arising agree procedural difficulties sue that the state version of federal has enacted (1) juror questioning of include: witnesses adopted version of has some rules of evidence position attorneys placement in the awkward of Oregon exception of Rule 614 with object inappropri- deciding to to an of whether a rule to enact has Texas chosen Texas. Neither offending risk of or alienat- ate ing at the interrogation authorizing witnesses arousing suspicion, or to This absence indicates members. object or dam- admission of irrelevant and risk to en- evidence, making did not intend rule authorities foregoing preservation aging questioning of witnesses error; (2) or scope dorse authorize determination of jurors. or questions be limited juror's question to —should jurors “the component into the func witnesses about intrusion of one unable to an identifi fact that he was make may only established tion of another the man he saw cation making authority rule through the limited [accused] [leaving the scene of the court, by the subject disapproval crime].” this perceive ques how these legislature in accor legislature “fail[ed] permitted by objec tions court without process. of no with due We know dance improper or harmful to the tion were establishing authorizing jurors [ac authority State, 475 S.W.2d Carr crimi cused].” of witnesses in the (Tex.Cr.App.1972), appeal dismissed jurisprudence of this and there nal state denied, and cert. U.S. 93 S.Ct. fore find the same be error. (1973).1 L.Ed.2d 682 practice The State contends that the Judge Jordan Although apparently con- in the instant case was indulge inquisitive jurors tinued to wherev- error, if negligible “of value” therefore sat, State, er he see Pless 576 S.W.2d harmless. Where the role of the any, was (Tex.Cr.App.1978), and some other trial signif fact-finding body jury as neutral ques- permitting pose modified, underpinnings of our icantly as a of local tions to witnesses matter system, designed to ensure trial a fair practice strength Carr, on the the fact is compro impartial likewise instances is cited that the few where Carr in this mised. determination of harm subsequent appellate opinion relate virtually impossible. According context point. Shepard’s Texas some other See ly, practice permitting hold that the we short, there appellate Citations. is no participants to become active juror questioning evidence that ever be- by questioning solicitation of evidence wit any- practice a localized common came subject analysis. nesses is a harm jurisdiction recently. where this —until judgment We affirm the of the court of lately know that We appeals. District Court of Brazos 272nd Judicial MILLER, J., joins opin- the judgment and County a structured form of the instituted majority following ion note: State, practice. same See Buchanan v. analysis complete- harm is not (Tex.App 645-646 . —Hous mind, ly my but the issue con- settled 1991) granted; ton PDR Allen v. [14th] cerning allowing juror ques- State, (Tex.App. 807 S.W.2d — Houston resolution, ma- join tions needs thus 1991) granted; PDR Nichols v. [14th] jority opinion. legislature, If the who (Tex.App.— 815 S.W.2d 307-308 responsibility enacting pro- criminal 1991) granted; PDR Morri Houston [1st] state, cedure for wishes to allow the (Tex. son v. juror questioning, they are cer- 1991), granted; PDR App. Wilson — Waco tainly free to do so. (Tex. State, 777, v. S.W.2d 781-782 823 1992), granted; PDR Fazzino App. — Waco CLINTON, Judge, concurring. (Tex. Guido, 271, v. 836 S.W.2d 275-276 action).2 1992) (civil years twenty ago, App. an accused At least [1st] — Houston Dis himself of the 347th Judicial representing stood mute when So did the County Velasquez Judge E.E. Jordan one or more trict of Nueces late allowed Court throughout opin- weightier emphasis and this opinion 1. indicates All above The there were case, particularly concerning All refer- is mine unless otherwise noted. in the ion issues Id., "dissenting opinion” selfrepresentation. are While to "dissent" and matter of at 758. ences vindication, opinion Judge dissenting Carr Benavides. persistent in his efforts See better —without or with counsel. fared no allowing juror Estelle, questioning, (CA5 974) 2. (pro As well F.2d § v. Carr proce- Carr, a se); introduced formalized (Tex.Cr.App. has also parte Ex S.W.2d 523 notetaking. explanations 1974) (abuse writ). Ironically, His exhausted dure for he record, reproduced year from the Morrison v. both are his remedies nia, Faretta before Califor 1, 6-10, 1, appear Appendix 422 U.S. 95 S.Ct. 45 L.Ed.2d 562 S.F. (1975). hereto. attached State, (Tex. supported hypothesis v. ... have not [the] 1991) no PDR histo App. Corpus [proponents justify Christi At advance them].” — ry. to infer that one or permitted We are n. 9. from United guidance judges took both then, me, question The threshold Callahan, v. States F.2d Legisla- and fundamental: Since the basic 1979), therein, (CA5 rather and cases cited it, spoken sanction what ture has never case, Carr in that the dormant than public purpose does this Court serve spells procedure uti former out similar judi- granting its to continued imprimatur States District Court for lized United risk- “experimentation” cial methods with id., Georgia, District of Middle practice, revival of a former medieval hardly purports to teach whereas latter demonstrably results even when now subject.3 on the any clear lesson fraught potential impropriety with so event, a rash of suddenly we have In ex- ambiguous benefit as render further initiated sua procedure concerning a cases or merit? perimentation worth without sponte below, presenting inap- “it suggests The dissent impression jurisdiction. See C. first this propriate legal systems sometimes be Be Allowed Should Jurors Michel, Randall response preferred Questions allowed to evolve to Pose Written to Witnesses At practitioners.” Trial?, methods During a Texas Bar Journal however, is that history, 903. The truth (November 1992) The dissent cor- 1020. evolutionary process, first abroad long initiatives as “ex- rectly characterizes those here, from and then transformed [allowing perimenting methods with such royal inquiry” an active “instrument of yet recognizes questions];” to ask In passive fact finder.”4 this acknowledges studies “neutral “[r]ecent also that Carr found appellate The Nichols court noted own courts have made such Our error, “but court ne- interpretations Carr defendant waived treatment varied particular harm- held the vertheless is no view of it. there settled less;” reading strength and on pre- court that "when The Buchanan observed Allen, supra, the Houston Buchanan and both did [the Court] sented ... was no harm in the Court concluded there [1st] opportunity.” given the the idea when denounce Id., single at 307. answer. Id., procedural Noting appellate de- at 645. cause, the Waco Court Morrison In the instant faults, object and comments in failure to at trial ignored simply Carr. Carr, remained the Buchanan court nevertheless Carr, strictly Corpus read Christi inaction, impressed with viz: viz: could have condemned the "... recently, virtu- “Until this had been regarding jurors questioning procedure entire legitimacy ally in Texas and unknown do so. We It chose not to witnesses. find uncertain. Carr Cf. telling." (legitimacy (Tex.Crim.App.1972) Ibid. be- not addressed raised but was day an- down the same Allen handed point multifarious and cause the of error was Court; panel it took the Houston [14th] review).” nothing presented viz; decidedly approach, different Velasquez, supra, at 846. impression in Texas. “This is a case of first mentions Carr. Neither nor Wilson Fazzino (Tex. 807 S.W.2d 644 See Buchanan 1991) (same issue). Al App. through experience, England, Houston-[14th] centuries — though no law in Texas which there is case inquisitorial investigative role of initial directly supports passive or condemns the fact- to a neutral evolved witnesses, foreign asking questions adversary system. S. finding Landman, role within Description this issue Adversary System, which have addressed authorities permitting virtually Enterprise it.” (American unanimous for Institute and Defense 7, Id., 1984) proceeded author- Policy to review those 10-19. Our at It Public Research ities, country returning that even on the to Carr to notice insisted in this own forebearers years "disposed by though the right by jury, of the issue hold- then over the Court and judicial question presented neutrali- ing appellant's developed of that the their own notions alia, review, up by, firming inter ground ty passivity, for the court stated them multifarious and "designed to safe- allowing jurors expanding of evidence ask witnesses rules that neutrality passivity the fact guard of appear improper there and or harmful where the did not Landman, Allen, Id., Careful supra, at 19-22. objection.” howev- finder." S. at 642. was no “establish appellate served to er, review objection. and strict there was required the that there no thus far we have demanded and jurisdiction very fact is juris- Texas anywhere that our indication passive.5 the remain neutral and question- positively tolerated prudence ever cause, the fact is that And further this ing by to show should suffice that understanding activity part the principle a clearer on the of adversarial the court, pertain vesting can never it him have to conform to the rules the case, and take litigants process interfere in the the examina- with control the and secur- of a of the neutrality passivity tion witness out hands of counsel and of the fact find- the Id., whose it is to conduct examina- business 22-23. er." at character, tion. As a matter of this studiously abstain interfer- court should skips significance in dissent over the fact 5. The ing. appearance He avoid even the should jurisdictions except Oregon, all other that unlike "Texas, partiality. impossible be almost It would contrast, rejected in stark has [Fed. part the court in the examination of to take R.Evid.j altogether," Rule 614 to take comfort in impressing witnesses with without reading prior our to the its cases Rules of disbe- the belief that believed or witnesses, that “this Criminal Evidence to the effect Court testimony lieved the of the whether approved judges often of trial impres- the court to make intended such propounding called to witnesses sion or not. Code of Criminal Procedure Our Well, exactly. parties[.]” at very particular regard. of 1895 is this accept judges Those who that trial háve au- Now, [Quoting in the examina- 767]. Article thority witnesses are so sensitive to witness, tion of however fair-minded the immediately recognized recurrent misuse as to be, judge may impossible it would almost against authority. add caveats abuse of that suggest for him conduct it as not to to so See, e.g., Advisory Notes of Committee on 1972 is on some measure that he one side or 614, Proposed pertaining Rules to Fed.R.Evid. carefully By attending other.... to his own (b) (because subdivision manner in which inter- functions, conserving duties and his own he rogation proper should be conducted and extent justice will best hold the be able to scales of susceptible its exercise are not formulation impartially counsel are man- as between who rule, precludes sense in a such omission “in no and, state; against aging the case for continuing courts of review from to reverse for interfere, generally wherever does he abuse”). expense authority dignity, his own history exercising abuse in that author- rigidly guarded,' in order that should be ity informed the State Bar Liaison Committee may he the law fairness and administer with reaching on Rules of Evidence in its “consen- authority pow- impartiality, and with policies encouraging sus” that “well-entrenched pertains er which to the We cannot office. judge posture impartial to maintain an judge at- commend the action in his trial should not be eroded rule tempt province of coun- interfere with allowing specifically participate the court to sel for the state in the examination of witness- es, and, Black, calling interrogating witnesses.” Ar- appeared if to us that interfer- Witnesses, 409, ticle VI: 20 Houston L.Rev. part prejudice ence on was calculated to his (1983 Handbook). Tex.R.Evid. On crim- rights appellant, we would not side, experience fears from inal exercise of this case. Such interfer- hesitate to reverse authority being abused contributed to part ence on can never especially noteworthy case, the "consensus.” Most for, especially in where called Supreme neither the nor this Court repre- both the and the defendant were state the committee. counsel, overruled absolutely it was un- sented able 38.05, aegis Under the of Article V.A.C.C.P. warranted.” 1879, predecessors dating back to and its Id., Hopperwood Accord: 45 S.W. at 586-587. consistently posi- 15, adhered to the 841, Court rather State, 44 S.W. at 842 39 Tex.Cr.R. duty any part that "it of a State, [is not] tion (1898); 65 Tex.Cr.R. Drake v. or State, to take hand the examination cross- (1912) (cautioning trial S.W. at 1160 examination witnesses." Harrell engaging in this and devel about (1898). Judge 45 S.W. Tex.Cr.R. oping had not been evidence which theretofore explained case, the rationale prevent Henderson Court, as to reversals of elicited in the so cases); Rodrigues v. viz: future 267, 110 Tex.Cr.R. belong respective (1928) (court These functions "... should at 150 side, presumed either it is participation counsel on in examination refrain from active they discharge prop- injury how to their duties know result when of witnesses lest reversal shown); erly. comply If do not rules in Poole v. Tex.Cr.R. (1929) (iterating "disap regard to the examination cross-examina- S.W.2d proval at 531 witnesses, duty of the court to examination of witnesses tion of it is statute). prov- likely comply. do be the to violate It trial court” as see 903-04, true, points inquire dissent out at of a It is as the ince of the sometimes 6, by no error is committed n. the Court has said as to some statement made him for witness others, 904, jurors,” by objecting by at trial at in the face as well as the of recur- protesting appeal practitioners ring replete episodic ju- cases with and on loss of premises, at is not demonstrated the "method” issue dicial self-control “preferred.” practitioners judges, that a consensus composing the State Bar Liai- scholars sanction local That Court would now reject- son Committee on Rules Evidence experimental procedure introduction of an allowing judges rule specifically ed a jurisdiction authorized in this witnesses, interrogating participate in gover- of hierarchical source order nor Supreme neither the this Court nance, acknowledged thereby creating sanguine the practice. all that about were asserting an risks of as institution 5, note See ante. role, assuming retrogressive or cannot be by seeking an accommo- justified abstract Nonetheless, the aid of assorted law perceived “an dation of tensions between notes, comments and the dissent review truth-finding system” and “the adversarial perceives from the questions submission 904, 908, process.” Dissenting opinion, at “truth-finding” measure or meth- jury as real; 905, experi- and 906. The issue is “scrupulously subjected to od—whenever rights. affect ments examination and ... normal adversarial way jurors do not conducted in such simply suggest that It is not realistic to Slip for side.” become advocates either spectacle witness- during opinion, at But because voir dire es methods is one of those “nonadversarial just the indictment read or before long accepted now an venirepersons instructs part of our deci- established authoritative gratuitous to submit privilege law,” dissenting opinion sional at when Allen, 640; Morrison, at e.g., at questions, scholarly studies the evidence collected 845; Fazzino, 767; Velasquez, at supposition “the of its fails to bear out that, anticipat- thus there is no assurance organized approach proponents that an ... who takes ad- opportunity, juror disputes factual will facilitate resolution of vantage during course testimony, identifying is- clarifying the already an advocate for one become development, further requiring sues speculate evidence,” One increasing juror side or other.6 attention meaning intended hardly be sure about the id., n. 10. Nor is it realistic to it indicates of a and whether participation that “such suppose [will be] Moreover, four of juror.7 subjected ju- to the kind of attitude conscientiously consensus view prevents reflect a effectively seven recent cases control which dicial inquiring fact- advocacy premature information committment whatever [sic] relying interrogator "seeking questions was judge is a trial information when State, (Tex. putting question, and knowledge personal only.” Ash v. S.W.2d party” advocate. complementary a "third Cr.App.1967). there ra became But sense disapproving questioning of witness tionale Lyles: "Did he juror State’s witness A asked "information,” seeking judge even es a trial to make home and trailer take boat free, right accused to a fair and of an viz: legal?" juror wanted to know trailer street through presentation of evidence witnesses Jones, full num- the serial “What was from Officer unduly or cur not be constrained "should shop?” motorcycle purchased at the ber 167 Tex.Crim. Jackson motorcy- tailed[.]’’ and “What is the serial number (1958) (on motion for new missing?” A asked reported cle that was trial). Lounge is "Kon Tiki Green: defendant’s witness what Avenue than side of Texas on the other dissenting opinion in Buchanan sets out 6. The saying. to cross would have He Chris Green seemingly by questions presented more several go to west side of town. Texas Avenue two for the State witnesses than Am I mistaken?” defendant, evalu- witness for then and one from a "neutral came Whether such answers, finding fa- at least some ated their passive to the Court I leave factfinder” Id., at At this dis- the State. 647-648. vored determine in due course. identify every character in the we cannot tance cast, running example, before the except in Nichols officer 7. For the undercover proposed a witness for assay quoted at "sting operation," related jury, follow- appear, there It was read to not for me. does and answers is however, framing ing colloquy: the manner of some is the The record in “truth” witness finders was not revealed received defendant. reveal content of the a dissen- Nichols two, however, does not consequence; a makes question presented but stoutly disagreed.8 ter can result.9 evident the consternation Furthermore, apparently enough any litigator here) Finally, it is clear to (and contemplate the did not dissent initial instruc- the process from ramifications of the situation where that the whole 8. ful judgment finders.” "to II S.F. 197-199. phrased certain answers under the yond specifically up any ton which in his view "allowed the tions submitted to State. ening observed ted the ly chanan, Nichols, recall 643. Without the dissenter condemned harmful. question as when is, defendant. In jurors jections. tion. question. to the tion? objection overruled.” the either, * * * * In Morrison There was his Buchanan become thereafter, [14th] Court THE COURT: THE THE “THE THE COURT: [STATE]: [STATE]: [DEFENSE]: [DEFENSE]: case Buchanan, supra, a question. believed the answer did Allen substantially either Id., passim. The same dissenter in Bu- doubt reasonable two supra, noted that question being supra; while some were not but that’s COURT: COURT: proffered to this Id., at 647-648. ^[******] COURT: * Without Id., at 307. State’s of, witness, advocates to the fact that the witness—that hostile Id., identified the majority Does the State have side." only alleged identifying questions and answers J do. No. the scenario being sustained a found: "The * * * * * were ruled admissible. I don't understand their witness, I don’t dissent. burden 767; especially dangerous to, I’m Does Very doubt witness, waiving You prosecutor all the same reasons over I want Id., only offense, did rather than or at least able to * not sure understand right. see well, asked this witness? at don’t have the Other objection, have majority one witness for questions post. Id., hearsay 646. The changed in that the you that, the Houston [1st] police defense? procedure general- prove questions had,” * characterize might regard the court permitting That several any than was allowed at 644. I challenging was ruled out to look at impartial I have no ob- any appear thereby objection objection by * officer who objection is and to ask my any objec- procedure answer questions. developed the Hous- twist objection proposed dissenter asked in case to clear submit- general Id., at * ques- para- ques- to be help- fact- less- here the the be- to per juror’s question judge presented Id., at 846. him a questions demonstrates that fair parently produced questions for several witness- occurred: merits of ever the delineated, finding” found about is demonstrate that ness unfair quential" and apparently even another of an answer 845. es, After This review is The Wilson court In result otherwise "... The plained about in the question al answers were not basis? basis that didn’t involved. that, Your Honor don’t I didn't want to all witnesses or the juror’s question. se was harmful. THE COURT: “[DEFENSE]: THE COURT: You [STATE]: [STATE]: [DEFENSE]: trier of fact advantage.” advantage about which defendant particularly Fazzino court abused its discretion Velasquez, supra, acknowledged Whether question the advantage Corpus prosecution if benefit not question. to and answers from error, and answers to asked the questions clear, objected "neither In issue from I don't have did pertaining I germane —whether Waco accruing had left the short, Christi might from the relevant if object I think Id., certainly objection. in none in those the I but the prosecution may not What? only ask her that. See any, was one ask that same pointed don’t "might not been asked.” side was prejudicial, inflammatory question to counsel and to as Id., Id., actually objections, Court where the prosecution —I we find have reached complain jurors.” Court Nichols, courtroom, to the present question was to 781-782. object to it on what to at at juror’s question," have— suggest answered Corpus causes, can be the one not object complained. have improper, the material issues found basis, out that 769. 767. harmless, there injured subject summarized asked and com- questions nothing in case a supra, at —I and the Id., gained procedure ap- of the others cleared juror. Christi Court question and pass specific For Sir. On the obtained an gain "the record complained on account a or not—is at 276. following object were matter of appellant simply "inconse- different a and the reasons visiting viz: on the from a ration- "truth- any What- Id., asked up. error wit- un- not the the at In through abating proceed- judge all seven causes the trial jury to the com- tions questions has mitted the court to ings after each witness testified receive jurors proffered writing to as under to ascertain whether desire terms order and, so, prescribed length, if them and at questions reducing conditions submit the writing, judge pertinent to essence of which in this cause passing them to Buchan- bailiff, margin.11 through retiring jury Compare set out in the while an, 639-640, Nichols, Allen at judge counsel discuss their admissi- at at and 307, Morrison, Velasquez, finally at 767 bility, jury bringing the back at 845; Wilson, 781; Fazzino, approved questions wit- at at 275. putting to the once, twice, judge began imple- once the to thrice and so on—de- cause ness — “ritual,” appellant initially object- consumption considerable ment votes ‘process’ ground rules as ed whole on the regard time our “to the amount trial law, imposed that to a exercise it was not authorized but his gratuitously valuable Morrison, considered, that, objection things yet not been was overruled.” at 767.12 worthy.10 to be meritorious shown

10.In jury panel during accept the indictment was lenges II S.F. 304-306. challenges der? depending jection any other than witness—I have? generally, did tion? have objection, objection. don’t waive es, know, them Your Honor. That may simply pass iffy about witnesses, permit litigants matters THE THE THE [DEFENSE]: THE COURT: THE COURT: I'll [STATE]: [STATE]: [DEFENSE]: [DEFENSE]: but this is the Quaere: Velasquez instructed the jury asking about objection? written no asking questions being COURT: I don’t know that COURT: COURT: from the start about—to make sure ask. ^[******] objection related in all on their cause Sir. objection, that. id., mean, Strategically my general I don’t—I Will trial questions from them to be asked any objections. the defendant. at I do not want to waive I think voir dire cases, including Not— to voir I’ll I’ve and to exercise What Does the State have an Un-huh, If 845; defendant, read, see, empaneled jury just on other Well, responses, you I do have an state that got defendant a do sustain judge illegal don’t have a asked of reading it can be dire have an you? than that objection the other no Does Defense have my prospective jurors announced e.g., now objection was a have a concern asking question other my general objection that. Do witnesses to level chal- concern — cleared capital mur- Morrison, I feel objection objection peremptory question, objection.” causes the good legal about the objection required' witness- do before a little objec- up. and, also, you you you ob- I I I 11. the tions, you so, answer to that ask prepared try do not. two I S.F. don’t es. thing that I cannot to fix it for think it is paper can’t do that for doesn’t able to question you You can write out question]. questions ten bit each witness. would like wants More you you "And thorough job and I am not to questions questions. THE COURT: “[DEFENSE]: THE [STATE]: [But] as want to ask reasonably points. pretty had no law, foggy, ask clarified. I will make keep worry about so 8-10; do. make you. allowing now, finally to add? specifically, this case ... are COURT: what’s the reason by reshaping here in mind decent important but all I know it is simply I am What you.” questions, I want see following is because No, think * * * * inject myself it— question, is the I don't would continue to So be need to be asked of the you necessarily Appendix 1. going sense, On object making job that as you well, sir. Objection is overruled. Does Judge, for the questions whether either, you you what way after the on this business of it. confused care decision write on Let too bad. reasonable occurred: I’ll to be read. they asking that’s State have to your Second, it think is, going to grounds, I’m a just me caution ..., attorneys, counsel feel will work. [suggesting suggesting it is admissible or may into the are welcome to opportunity got this chance questions, enough. first witness the mind to all the and want leave and as they process of free I am not your piece not have you keep you. If solicit to presumably record, anything anticipated have authorized to ask it at And if who questions can ask, many that in mind witness- form of * * * * But, you get asking and I some- going done, avail- ques- write done little have that. you any any we .of do on do surrounding facts cannot be the end of this matter. That salient offense below, advantage actually gained correlative opinion are summarized prosecution first called the direct result of 766-767. The three witnesses question juror the reason- by the two children the victim and raised cannot parts ably be the passerby, particular disputed especially a recounted since State — directly observed. had no known evidence that would episode respectively the each 2, I Appendix See question. fourth had testified answer the Not until the witness juror question. appellant And of that com- present did a a A detective S.F. 128-129.13 investigated plained appeal, appeals the on and the who crime scene testified engendered by the harm drops that he found “several of blood” a decided that was Morrison, home, photo- cause. at the victim's and a the in this hallway of graph 769. of the blood was admitted evi- asked, any juror dence. The “Was cause, it, as like as well others blood in the hall Morrison’s?” Be- Steve judge effectively cannot determine appellant’s cause hear- the trial sustained subjective purposeful any juror intent of question say objection, was never given question “to any carte blanche However, permitted asked. State was ask,” think and is you is reasonable to

immediately to recall detective “important get the See ... answer.” testify have that did not him he observe From then note ante. circumstances “wounds, any injuries” ap- on scratches or much, but judge extant surmise as pellant night of the murder. See Mor- relevancy than undisclosed motive rather rison, 767; supra, excerpt at see also putting a to a determines witness 127-132, Appendix I S.F. attached as answer, admissibility prospective un- juror’s exceptional The dissent characterizes the less otherwise or excludable par- special grounds. “neutral” itself a as and “not Tex.R.Crim.Evid.Rules “any here, question is inquiry,” tisan that 401-404. whether the conclude disad- So “nonparti- actually by appellant “neutral” or vantage suffered was characterized as san,” inescapable not the result of conclusion institutional unfair- [;] [accordingly, that after ruled it out ness did hearsay, prosecution was not err to receive it make it inadmissible known to course, But, ques- parties.” capitalize At 906. on the unanswered that able But, something.” running objec- impulse Could them or I have a to choke [DEFENSE]: say process explains, people whole the rest of would be able to tion to that trial, he “most well, no, Judge? inappropriate lot of due to a that’s ... Absolutely." ability.” THE COURT: us that different ... allow factors “Very says, I example, S.F. 37. with children For he often whatever, impulse you will see- lack of or dissenting opinion n. whatever, 13. The alludes im- whatever or terms of control only question, asking psychia- mind, other they pretty much pulse into their comes impulse trist define "limited control.” Inter- "attempt establish some do it.” Parents will put during estingly, the term to him cross they so will react ... internal controls appellant as examination counsel for one of socially appropriately, certain appropriately, person symptoms two exhibited with a hand, other are "[t]here situations.” On the disorder, schizotypal personality which was a even psychiatric that can number of disorders diagnosis previously appellant. made of S.F. ability person’s impair so on a even more 158-160, (The being paranoid and other is But, personality impulses.” "the control their Naturally, only suspicious.) made "the counsel developed actually diagnoses disorder were objection." objection got running we have as a they suspicious or say person yeah, — Id., at 175. See note ante. whatever, they have the impukive but did control their behavior basic abilities to single answer consumes if per- normally also of us chose to." "Most pages practically of facts. two in the statement the same Id., sonality are considered in dkorders My understanding of the thrust at 175-176. ability dissent, light, to control response differs from that of his despite impulses, situation. stressful however. situation, stressful, know, given hypothetical You good doctor laid down a Apple- person in not choke the speaks most of would setting terms to me us that “in of someone whatever, might rudely AppleTree Tree.” by recalling provide procedure). the detective to Courts do not advance the tion resurrecting that prosecution intended to be satis- commonlaw what already put to rest. factory answer for the no doubt common law has —and who discussed with the those incipient rejects an Because the Court during their questioner deliberations. passive ill for a neutral and fad bodes jury, reincarnation of an active but well for the definition of “institutional Whatever rea- inquisitorial jury, for those additional surely may encompass, it in- unfairness” opinion judgment of the join sons I practice that in- cludes unauthorized Court. any inquiry to initiate about vites a and “im- any point believed “reasonable” which the trial is committed

portant” APPENDIX I deems regardless receive of whether she to AFTERNOON PROCEEDINGS— “neutral,” just plain silly, or “partisan” 4:05 P.M. although it turns out to be inadmissi- ble, prosecutor is thus motivated MONDAY, MARCH testimony is permitted to introduce that Counsel, anything THE is there COURT: is responsive juror’s but jury? I bring up to seat before To in- patently unfavorable to defendant. of, is, I am aware my in Not that that kind of MR. LOCKE: stitutionalize Judge. judgment, unfair. No, HANNA: sir. MS. though, my is that

Ultimately conclusion obviously to exercise is intended whole bring in. Let’s them THE COURT: performing their civic lay exalt courtroom.) (Jury enters the by leading them to feel can be duty go ahead and be THE Just COURT: judicial part in the participants more active seated, jury. right, All members justice system sort of the criminal —a I seats, right, All counsel. everyone else. charade, pseudo-egalitar- leveling bit formal announcements will call for bluntly, put To the matter more ianism. 18,913-272, entitled State ready in number judicial pander- juror questioning best What Morrison. of Texas versus Steven ing at worst. says the State? trial that complained at Appellant Honor. ready, Your MR. State’s LOCKE: is “not autho- unilaterally imposed ritual THE Defense? COURT: he is jurisdiction, in this rized law” ready, Judge. HANNA: We’re MS. absolutely correct. Very Members THE well. COURT: say “that which is not not do to It will you when noticed that jury, you allowed,” dissenting generally forbidden courtroom, everyone was entered “The common law is fol- opinion at 906. courtesy that standing, that is a it has ... matters where lowed criminal feel free you I to juries. extended to want by the Criminal changed Code not been [of your straight in and have however to come Anderson, 119 Tex. State Procedure].” guests. seat, are the honored you because (1930); cf. Bloss at 175 26 S.W.2d I instructions that are several Now there 127 Tex.Cr.R. I get into now. promised you to that will (1934) (common prevails when law of trial you the order explain to to procedure); want provide to rule code fails The first you going that are witness. Tex.App. 15 S.W. Rudder v. Fol- instructions. is these (1890) (common precludes item of business law at 718 instructions, from there. lowing these of defendant discharge jury absence hurdle, we have get over that provides order to statutory rule express since no tryWe room. (rules you step into 1.27, otherwise); V.A.C.C.P. Article minimum, happens but keep that to any particular state govern of common law surprised if it cases, don’t be in most so of criminal code provided case not you help things you think need that witnesses, remembering, names of in this case. Please assured does be persons come proper names of other ruling you or no statement remark dates, times, trial, up sequences, might during see me make the course things Please like that. do discard my expression trial is intended as an and, take, keep them you notes that do should decid- opinion about how case go keep at- possible, if ahead and them your mine. ed. That is function and not you if pad. tached to that little And As I taking. Now word about note keep your pad, name on front you you, going permit- are have told help distributing you us that will them to notes, you going ted to take are to be up. after we take them At end of permitted to take them the room case, preserve going all of we you during We to use deliberations. taken, you might you certainly are you remind that welcome progress anybody, of the trial with includ- your during your to use delibera- notes jurors. You been told not have tions, very important you it is for to it is anybody to discuss case with until try overly not to influence some other you in- submitted to for decision. That your to notes happened who not take your jurors. cludes You brother sister testimony recollection of the reflected in only among your- can talk about the case words, your just In other notes. because you it is selves after submitted to for deci- you a note taker not mean that are does quizzing sion. That includes each other evidence, your recollection of the as re- you about what wrote down the notes. notes, your any flected in is entitled to subject taking Now the of note is a small greater weight than that of another controversy, you might say, American to just happens didn’t take notes but who law, Texas not that. immune from way. again, it another Once if remember And, legally make I proper, order to you disagree what in the about was shown important give you it is to fol- believe evidence, tape can to then we consult the lowing particular instructions it. about question you. try to answer the for you Both will be some other jury ready THE Are we COURT: follow-up ques- given a chance to ask those Defense? back? bring finality some And order to tions. Yes, sir. HANNA: MS. it, you to ask I won’t be able to allow to THE State COURT: wit- follow-up questions of that your own opportunity you And have this ness. will Yes, Honor. MR. Your LOCKE: comes to questions as each witness to ask seated, right. Be ev- THE All COURT: Now, stand, cau- way. let me any further side have eryone. Does either points. you I want to feel you tion on two witness? questions of this think is rea- any question you free ask to No, Judge. MS. HANNA: ask, worry don’t about sonable or not. I will it is admissible whether No, Honor. Your MR. LOCKE: you. you If think it that decision for make members of the right, All THE COURT: get mind to the answer important your is have finished and Defense jury. State But, enough. do question, that that’s anyDo this witness. questions attorneys, who keep in mind that the try to is a him? There you any questions of have thought prepared this case and have have for the question. will wait We on it and know what it and studied about finish it. are, going presum- are legal issues may, I will offer If I MR. LOCKE: job asking all the ably pretty do a decent diagram. is this Exhibit State’s reasonably asked that need questions that, me Having said let the witnesses. objections, have no MS. HANNA: We though you and tell up again back Your Honor. to ask got this chance you

reason have is admitted. THE Fourteen COURT: they may not have is because questions (Brief pause.) they think thorough joba as done as right, All members THE COURT: done, may simply be confused you all of the jury. Do I have it. something clarified. So be and want ' Would to submit? you wish Second, inject I cannot keep in mind that room, please. please step they ask re- myself into courtroom.) (Jury I do it exits questions, and can’t shaping their I HANNA: don’t think tested

MS. at all. his blood right, All Detective Fick- THE COURT: object We further on MR. BRYAN: kindly step in the hall- ey, you would out given has us a grounds same the Court a minute. way just just a minute —for objection Any question that running to— Counsel, approach. by law. juror asks is not authorized (Bench presence outside conference might bring I as well this MR. LOCKE: jury.) here up presence. If he still outside the one of THE COURT: ques- I purposes, if ask him a reads “Was as follows: tion, forgot—to did I intended and not— the blood in the hall Steve Morrison’s?” physical him his observations of Steve’s object to that MR. BRYAN: We arrested, night well-being on the he was no grounds that he has question on the there saw him last. I don’t think when he knowledge of—and is not a lab personal that, but anything objectionable about qualifications have the technician—doesn’t letting you in and than them rather belongs to testify as to whose blood out, I go them back object and have who, hearsay. calls for bring up. thought would says the State? THE COURT: What Well, position on the your THE COURT: admissibility of this already MR. He has been al- LOCKE: opened door testify reports at De- defense somehow from lab lowed know, any complaint waived request he do You fense’s so. hearsay response asked for a based sponsoring report. for a lab witness knowledge. something personal other than knowledge he from similar If has similar source, opened I would think that would be under LOCKE: That’s the area MR. questioning. the line of defense responded, yes. which that I Judge, MR. mere- BRYAN: Defense the Defense’s THE COURT: sustain

ly go her didn’t asked about blood. We you asking whether objection. you If into his blood. ask him another can recall the witness to now question, prepared I to rule on that am report THE does the COURT: What lab bring in. we back before that is in evidence cover? Well, I then would ask MR. LOCKE: MR. LOCKE: I think the— do so. only? THE her COURT: Shirt Or blood? on says the Defense THE What COURT: only. MR. Her blood con- LOCKE: that? only. tent of her blood Well, already he’s been MR. BRYAN: testing MR. BRYAN: There was no done and, proce- in view the passed and closed his There was no taken on blood. blood here, juror ask a allowed a dure we him, right? is that obviously now question, has stimulat- right. MR. That’s LOCKE: needs cover. that he ed another area problems I see with is one of That way he can MR. BRYAN: There no questions. It’s—there getting juror’s into way anyone could know. know. No object We on end to it. would no They MR. would know was LOCKE: already passed. has been grounds that he hers, with but that’s consistent procedure letting unusual Under this her blood know. That it matches ask, ought think the Court don’t type. up more to follow with either side allow sample MR. BRYAN: Whatever question, asks a questions after every They didn’t take bit took matched. off, tip possibly, going it is be because on the floor. blood why question objected, as which side asked, may a comment wasn’t guess possible. MR. that’s LOCKE: side evidence to allow weight of the every spot. They tested sary system. argument neither Because foundation, adequate an I respectfully has juror’s or the other to come in and follow a dissent. question. another with question presented The threshold right. permit you THE All I’ll COURT: state trial courts have whether our jury. to recall the witness. Seat the Your juror questioning in power to allow overruled, objection is Defense. majority course of a criminal trial. The (End Jury enters of bench conference. negative, answers this ex- courtroom.) plaining authority of no it “know[s] Seats, everyone. THE Mem- COURT: establishing authorizing jurors to view, that was jury, my bers witnesses.” juror, I excluded propounded majority misperceived the nature of the judicial power granted by able to submit it to the our state and will consti- ahead, counsel, if there are Go tution. witness. questions. explicitly The Texas Constitution vests power of the state in the judicial courts. REDIRECT

RESUME FURTHER Const, 1. The core of Tex. art. § EXAMINATION grant power, as we have constitutional recognized, power includes the previously BY MR. LOCKE: (1) evidence; (2) to decide the to receive Q Fickey, you Detective did see Steven (3) pleadings; issues of fact raised night, later on the same Morrison law; (4) questions of the relevant to decide fourth, past maybe the date after facts and judgment final on the to enter a midnight, night, prior to but the same law; (5) judg- the final to execute daylight? Bail ment and sentence. Armadillo Yes, A I did. (Tex. 237, 239 Bonds v. 802 S.W.2d wounds, Q scratches you Did observe State, 676 S.W.2d Cr.App.1990); Kelley v. him injuries sort? Just Furthermore, (Tex.Cr.App.1984). personal your observation? the constitution necessarily included within No, I did not. powers grant judicial power are all al necessary for the reasonably proper and just THE Excuse me a minute. COURT: pow- judicial effective exercise of the core of minutes here. just couple Let’s take Johnson, ers. State v. step into the go You can ahead and Eichelberger v. (Tex.Cr.App.1991); your privacy. have a room for own We 395, 398-399 Eichelberger, 582 S.W.2d stomach, she is upset Therefore, (Tex.1979). court rea- if a trial going to take a little medication. questioning is juror sonably concludes that (Brief pause.) receipt proper of evi- necessary for the right. The THE All COURT: truth, discovery it has dence and the will resume. intact now. We questioning, such power to allow have, all I Your MR. LOCKE: That’s statute or of a valid least in the absence Honor. contrary. rule to court-made CAMPBELL, Judge, dissenting. aside, majority power The issue on the questioning juror also condemns opinion, it con- majority As I read the ground support arguments distinct tains two their depart from encourages jurors in questioning state juror

conclusion assume (1) passive listeners and trial role as always unlawful: criminal trials is inquisitorial stance. adversarial or ques- such active power no to allow courts have in- leads the event, inevitably question- participation (2) any such Such tioning, in on a or settle quirer to draw conclusions its “bene- allowed because ing must not be parties given legal theory before light insignificance fits ... fade to completed presentations, their to our traditional adver- perils presented” 901 develop ment. Trials exist to truth. It the court has instructed before law of the case. sometimes that counsel so case fail to see familiar with a opines “the dan- majority further problems naturally that would bother a cannot be gers inherent juror presented who is with the facts the imposition adequately circumvented first time. procedural safeguards.” With all due respect, nothing pseudo-psycho- Moreover, important it is 588 F.2d unsupported by logical speculation reason questions can pertinent juror to realize that Indeed, empirical or evidence. recent helpful the State be as to the defense study by the American Judica- conducted in a criminal trial. support Society ture found “no evidence to view, my trial courts should have the harmful conse- existence juror questioning provid- discretion allow juror provided quences” questioning, safeguards protect ed these follow safeguards simple procedural few adversary process: Michel, C. implemented. were See Should First, judge notify coun- trial should Ques- Pose Jurors Be Allowed to Written sel before trial she intends to allow During tions 55 to Witnesses Trial? warnings juror questions. pre-trial Such 1020, (1992). 1024 Tex.B.J. modify counsel their trial would enable juris the dozens of state and federal Of be, strategies, if need to accommodate the so dictions that have considered the issue innovation. far, apparently only (Georgia) prohibits questioning juror kind. See Com Second, should inform the ment, Questions: Survey Theo Juror that, although pri- their before Use, ry and 55 Mo.L.Rev. duty decide the facts from the mary is to (1990). Every jurisdiction recog counsel, presented they will evidence leaving nized that valid reasons exist for questions. right a limited to the sound discretion of explain overall should also See, e.g., the trial court. United States v. procedure involved. Witt, (2d denied, Cir.), F.2d 580 cert. Third, allow the court should 348 U.S. S.Ct. 99 L.Ed. 697 coun- interrogation immediately after both (1954); Polowichak, v. United States witness, sel have while the examined (4th Cir.1986); F.2d 410 United States v. jurors’ questions are still fresh Callahan, Cir.), (5th 588 F.2d 1078 cert. is still minds and the witness available. denied, 444 U.S. 100 S.Ct. Fourth, juror questions should (1979); L.Ed.2d v. United States Gon zales, other- (9th Cir.1970); kept relatively few number but 424 F.2d 1055 Nelson (1974); only the Texas Rules 257 Ark. wise limited Ind. 361 N.E.2d Evidence. Cheeks Criminal (1977). As the United States Court of Fifth, should be submitted Appeals explained the Fifth Circuit writing judge, should to the trial who Callahan: clearly improper ques- prohibit, sponte, sua nothing improper There is about the tions. allowing occasional Sixth, object counsel should be able to If be asked witnesses. objec- get ruling on any question, and a point a is unclear as a tion, hearing jury.1 of the outside the good proof, it makes common sense Seventh, rejects juror’s judge when If questions allow to be asked about it. carefully question, briefly but else, she should alert nothing should jury. an rejection to the Such particular explain is- trial counsel that a factual help prevent speculation develop- explanation sue need more extensive will allowed, prejudice to an [by jury] jury and re- avoid 1. "If are sence objecting (ed.), party.” Strong 1 J. McCormick quirement be submitted to (1992). writing n. § facilitate consideration the ab- on Evidence will both as to the reasons for the evidence which favors each is strongest rejection party and the forbidden answer. with the himself. This precisely party because each is necessarily partial to Eighth, if the accepts question, position. his own If left in charge alone she should ask it of the witness herself. finding upon evidence dispute which the Ninth, after the interrogation, coun- might resolved, be he reasonably could be sel should the opportunity to re-exam- expected present to discover and all of the procedure ine the witness via the usual for supporting evidence position his own and direct and cross-examination. re-ex- none of supporting position of his scope amination should be restricted to the opponent. Consequently, party each when subject jurors’ ques- matter of the litigation permitted equal latitude tions. regard, anticipate it is reasonable to I am satisfied that with safe- these thorough more catalog of the relevant guards, pos- there would no substantial evidence than would be assembled sibility harm to our strictly impartial traditional ad- investigator. A core as- versary If, system. extremely is, as seems surance of our adversary system there- unlikely, fore, control, it was later every party determined that concur- truly rent with threatening every our that of party, ad- other over versary system, prohibited discovery evidence, it could tender of application optional rule. affecting rules admissibility, argument and the sig- of its specific, Until there is a legislative valid nificance to the factfinder. prohibition against juror constitutional Likewise, it is questioning, essential that the decision- appellate it would seem that adversary system makers in an gen- remain judges ill-equipped policy to decide erally passive throughout neutral and regarding this matter that im- phases litigation produc- devoted to the pact upon the fair and efficient administra- tion of evidence. Just as it would be anti- justice tion of in our trial courts. To the systemic deprive a party loyally bi- majority’s usurp decision to this trial court ased advocacy position, for his own so also function, I dissent.

would it contradict the principles basic jurisprudence our partisan to allow advoca- P.J., McCORMICK, WHITE, J„ join. cy by judges time before BENAVIDES, Judge, dissenting. given ultimate issue has been over to system.1 Ours is an adversarial Al- reason, disposition. them for For this though it has serious drawbacks in some especially should be sensitive about do, respects, systems as all it nevertheless impartiality ju- own and that of the truth-finding process assists the ways no Decisionmakers, rors. both to law and system really example, fact, can.2 For nonpartisan are to remain and uncom- contention, parties when two or more are in presentation mitted until the of evidence impetus investigating present- argument jurispru- is concluded. Our heavily upon upon 1. For useful information on the historical devel- relies this distinction and opment underlying theory adversary pro- preference truth-finding modern as the main Anglo-American jurisprudence, cedure in see Steffen, purpose litigation. E.g., Thomas L. Landsman, Stephan Adversary System, Reevaluating Truth as Second Fiddle: the Place (1984). Description Stephan Also Ensemble, Defense Truth in the Adversarial Trial of Utah L.Rev. Landsman, Spirit: The Rise the Contentious Frankel, (1988); Marvin Parti- Adversary Eighteenth Eng- Century Procedure in (1980). san Justice I am disinclined to enter land, (1990); Gary Cornell L.Rev. Good- context, however, present this debate in the both paster, Theory Adversary On the American by history, prece- because this Court is bound Trial, Criminology Criminal 78 J.Crim.L. & dent, legislation accept system as it is (1987). adversary pro- and because I believe cess, feature, whatever its most salient is indeed widely accepted primary goal 2. It is that the of adversary process discovery specific disputes committed to the of truth in a is a fair resolution of litigants, discovery objective unique way. between not the of and system historical fact. Much criticism of the

903 contrast, rejected has Rule 614 alto- responsibility for stark dence thus divides the litiga- in way gether, both in civil and criminal deciding in such a investigating do tion. judge judges do not that advocates system in not The courts such advocate. Nevertheless, ap- this Court has often liberty, legisla- are not at at least absent judges pro- proved practice of trial

tion, production limit the of to control or by called pounding to witnesses way in as to undermine evidence such parties, might fairly it be at least when these fundamental values. questioning purpose said that the of such clarify or is- Certainly elicit information fiercely is adversarial. was to Texas sues, posi- a partisan not to advocate participation judges of trial regards witnesses, else, indi- nothing approval tion.4 If such in our state the examination judges trial disapproval willingness non- cates our to afford is second to none every example, For a measure of discretion which adversarial methods. by specifically afforded them has enacted the Federal not been other state which Indeed, inappro- it not except Oregon has rule or statute.5 Rules of Evidence systems al- adopted priate legal authoriz- sometimes some version of Rule 614 be response preferred judges to call and examine lowed to both evolve Texas, in judges practitioners.6 or It volition.3 methods witnesses own Joseph Stephen Saltzburg, wrong suggest Gregory that I favor 3. See P. & A. 5. The Court is judicial questioning questioning Evidence in America—The Federal Rules in the "because 886, (1987). At 10. §§ States 48.1—48.4 of witnesses has been tolerated." n. Indeed, suspicious am of both inclined to provides, entirety: Federal Rule 614 "(a) in its abundantly practices for reasons must Calling by may, court. The on its any impartial opinion. reader this clear to suggestion party, at the of a call own motion or witnesses, judicial questioning But is itself an antiadversar- parties and all are entitled cross- widespread acceptance practice, ial and its examine witnesses thus called. "(b) may argument everything Interrogation by court. The court therefore refutes witnesses, interrogate by con- antiadversarial must for that reason be whether called itself Certainly, party. con- demned. the cases I cite "(c) Objections. Objections calling "represent do and un- nection not wholesale interrogation by questioned approval judicial questioning.” witnesses the court or fairly support be made at time or the next available But neither can it be said that opportunity present.” ju- unquestioned approval when the wholesale and My only questioning. point is both ror State, 719, (Tex. v. Brewer 572 S.W.2d 721 adversary judges required by State, Crim.App.1978); v. 485 S.W.2d Munoz uncommitted, system impartial to remain 782, State, 1972); (Tex.Crim.App. 784 Navarro v. judge either of witnesses 291, (Tex.Crim.App.1972); 477 292 S.W.2d Stew impartiality, such threatens that 560, State, (Tex.Crim. art v. 438 S.W.2d 561-562 only permitted questioning should therefore be State, 703, App.1969); v. Ash 420 S.W.2d 705 and nonadversarial manner. limited State, (Tex.Crim.App.1967); Marshall v. 164 167, (1957); 297 Milo v. Tex.Crim.R. S.W.2d 135 tolerating general rule limited 6. What is now a 405, 618, State, 619 152 Tex.Crim.R. 214 S.W.2d participation by examination 267, (1948); State, Rodrigues 149, 8 v. 110 Tex.Crim. appears ver- in earlier cases as a witnesses State, (1928). S.W.2d Cleveland v. 150 Cf. ubiquitous harmless error doctrine. sion of 942, (Tex.Crim.App.1979); Enri 588 S.W.2d 204, Thus, State, v. in Harrell 39 Tex.Crim.R. 141, (Tex.Crim. State, quez v. 429 S.W.2d 581, (1898), this Court condemned S.W. 586-587 App.1968). concluding great length, appeals courts of have done much Several following observations: State, thing. Ross v. 800 S.W.2d same 1990) (Tex.App. PDR We cannot commend the action [14th Dist.] — Houston State, province (Tex. ref’d; attempt in his to interfere with Burks v. 693 S.W.2d State, 1985) ref'd; App. in the examination PDR Silva v. counsel for state Dist.] [14th witnesses, and, us (Tex.App. Corpus appeared Christi if 635 S.W.2d — State, 1982) ref’d; part was calculated 632 S.W.2d interference on his PDR Bautista appellant, prejudice rights we (Tex.App. Dist.] [14th 850-851 — Houston State, 1982) case. Such ref’d; reverse this hesitate to PDR Richardson part can never (Tex.App. Worth interference on S.W.2d 702-703 — Fort case, for, especially 1982); in this be called Voelkel v. 629 S.W.2d 1982), were and the defendant (Tex.App. aff'd, the state Worth where both — Fort counsel, absolutely it was represented able Betancourt v. Cf. 1983). (Tex.App. Corpus unwarranted. Christi — 904

simply longer upon no realistic to I acknowledge insist that the prac- remarkable permitting participation tice of rigorously discipline by jurors adversarial in the face production of evidence at trial impugns long accepted methods nonadversarial adversary procedure because it diminishes practice by part now an established juror passivity and interferes with the usu- our authoritative decisional law. assignment al responsibility nonpro- Many condoned, of our sister states have evidence, duction of two of the essential trepidation, often with question- some distinguishing system features our ing by jurors.7 of witnesses All federal inquisitorial models. But when partic- circuits to have considered the matter have ipation conscientiously subjected to the it, although also tolerated it has been com- judicial kind of control which effectively mended none Fifth.8 but the Others prevents advocacy premature commit- usually practice disturbing find the but dis- jurors, ment I do not believe that cretionary judge.9 with the trial Clearly, the fundamental values of our adversary allowing jurors methods to ask system significantly compromised. are Ac- gaining cordingly, momentum the trial categorically courts.10 cannot vote prohibit system The trial courts of evolution of the experi- Texas are now this way. menting with such methods to the extent that it now commands our attention. am adversary process, institu- opinions aware of four from intermediate process, tional has some undesirable side appellate addressing courts in Texas may effects. relish a However we contest

issue.11 Consistent with the treatment of between talented advocates because we question by jurisdictions, one of depend think the outcome of trial to more practice, these finds no error in the two respective on their skills than on the rela- dissent, approve urgent it over and one positions, tive merits of their we do not accepts only pretend with serious goal reservations. the official of such a But, descent, (4th Witt, Cir.1985); lineal these comments were 517 v. United States 215 580, (2nd compressed following Cir.1954). somehow into the rule: F.2d 584 participates question- the Court [W]hen seeking only, of witnesses information no 10. It has been the supposition proponents of its error committed. organized interrogation approach State, 703, (1967). Ash v. 420 S.W.2d 705 of witnesses will facilitate resolution disputes by clarifying testimony, of factual 532, Co., E.g., Spitzer 7. v. Harris & 217 Conn. identifying develop- requiring issues further 105, (1991); Johnson, 587 A.2d 111-114 State v. ment, increasing attention to evi- 1135, (Utah 1989); P.2d 784 1145 State v. Rodri however, studies, sup- dence. Recent have not 611, 898, (Ct. guez, 107 N.M. 762 P.2d 901-902 Neither, ported hypothesis. on the other McAlister, App.1988); People Cal.App.3d v. 167 hand, opponents out fears of its borne 633, 644-646, 271, (1985); Cal.Rptr. 213 276-278 who will lead LeMaster, 159, 592, State v. 137 Ariz. 669 P.2d neutrality prema- witnesses to abandon Barrett, (Ct.App.1983); State v. 596-598 278 S.C. Taking turely. Juries: More Active Toward 794, (1982); Story 297 S.E.2d v. (American Asking Questions Judica- Notes and State, (1981). Ga.App. 157 S.E.2d 97 Penrod, 1991); Increasing Society ture Heur and Zima, Contra State v. 237 Neb. 468 N.W.2d Experi- Participation Jurors’ in Trials: Field (1991). Purver, generally See Jonathan M. Asking, Jury Notetaking Question ment Propriety Asking Open Questions Jurors (1988). 12 & See also L. Human Behavior 231 Anno., Trial, During Course 31 A.L.R.3d Allowing Questions to Witness- Jurors to Submit 872. es, (Nov.1984). Future studies 73 Ill.B.J. 155 advantages and disad- reveal the relative Larner, 8. See generally Ques- vantages clearly. Robin C. Jurors Sar- of this more Anno., Court, tioning geant, Witnesses in Federal During Questions The Ver- Juror Trial? Callahan, In, A.L.R.Fed. United States v. (Sept.1989). 892. dict Isn’t 25 Trial 14 (5th Cir.1979). F.2d 766; State, Morrison, Velasquez Johnson, 1991); E.g., (Tex.App. Corpus United States v. 914 F.2d 136 815 S.W.2d 842 Christi — Nivica, (8th Cir.1990); (Tex.App.— United States v. 887 F.2d Buchanan v. Land, 1991), (1st Cir.1989); granted; United States v. PDR Allen Houston [14th Dist.] (8th Cir.1989); (Tex.App. 877 F.2d DeBenedetto v. 807 S.W.2d 639 — Houston Co., 1991), granted. Goodyear Tire & Rubber 754 F.2d 515— PDR [14th Dist.]

905 by jurors to should really propounded law- witnesses identify contest is to better And, accept objection we the occasional to all yer. subject while first made from be incompetence attorneys of or inadvertence Per- parties jury’s presence. outside the might produce sometimes avoidable which importance, jurors should haps greatest of litigants, public private, losses for both question length permitted be to at such not working do system we not think that prema- to in manner as indicate a such Rather, spite in happens.12 well when this goes ture case. And commitment pro- shortcomings, including many of course, practice saying, of without itself, adversary we by process duced con- jury questioning should never be of to adjudication still believe our methods of way to ducted in such a as violate mainly, not exclusive- although intended be positive law. discovery of For this ly, for the truth.13 cause, jurors instant one of the reason, to judges should allowed to be asked whether wanted a witness implement truth-finding for- measures not had Appellant’s of blood been discovered long as do there- by law so not bidden the scene.16 Because the of by compromise fundamental standards hearsay, objec- Appellant’s called adversary system. But tion it was sustained. the State to ques- that of believe submission was later recalled the same witness and a permissible tions from the truth- objection further to elicit permitted over a finding scrupulously method it is whenever Appellant appear not from him that did subjected to normal examina- adversarial arrest, shortly injured at of his the time way tion and is conducted such a reading From my after the incident. of jurors not become for either do advocates record, testimony was appears means, course, jurors side.14 This relevant, all, only Appellant’s un- if at permitted out- investigate should not be or to the perfected claim of self-defense participate side the courtroom or in a court- arising passion issue sudden investigation kindred room which excludes either cause, actually adequate which was party representative, except his from lawful provided by Questions in the as otherwise law.15 raised other evidence ease.17 Gerber, Adversary Victory practice at issue here to be 12. See Truth: The consider Ethics, System jurors Its parte Ariz. State L.J. ex conversations between like Landsman, (1987); Stephan courtroom, The Decline lawyers which is outside System Changing Adversary Role specific impropriety to which such admonish- System, Diego L.Rev. Advocate 18 San interpret mainly addressed. Rather I ment is Frankel, (1981); supra. present the lower court’s characterization recognition way that our adver- issue in this as evidence, Plainly developed 13. the law of first generally disapproves sary system of advocates by codification, courts later formal decisions the replete receiving from decisionmakers assistance privilege rules partisan positions. Con- presentation of their effectively subjugate truth and exclusion which fining to a formal courtroom play public policy. of fair ideals appearance of environment tends avoid Comment, Honor, Sylvester, May See Your actively helping the advocates. Dangers Question? Ask a The Inherent Allow- Witnesses, Cooley Question Jurors only asked 16. The Wulser, (1990); Comment, L.Rev. 213 Should psychiatric expert define the court's Questions Be Allowed to Ask Jurors Witnesses impulse phrase answer “limited control.” His Trials?, (1990); L.Rev. Criminal 58 UMKC suffering suggest Appellant was tended to Note, McLaughlin, Questions to Witnesses might personality contrib- disorder which Understanding Notetaking by Jury as Aids in losing uted control in circumstances to his Eng.L.Rev. Complex Litigation, 18 New was commit- under which murder those Harms, Comment, Questioning (1982); party nor the Court of ted case. Neither in this (1977). Jurors, Witnesses Am.U.L.Rev. Appeals and answer in discussed this presented treating here. the issue Appeals case 15. The Court in this likened by jurors interrogation of witness request issue of self-de- Appellant’s that an attorneys, jurors and communication between consideration fense be submitted ordinarily permitted something which is did, judge. howev- The court denied er, system and are admonished our course, con- Appellant’s for murder conviction I do make Of not to do advance trial.

Appellant ju- petence. insists that the Just as we have allowed the neu- rors only thinly witnesses is tral intervention of in witness disguised means of communication between interrogation even when incidentally it af- jurors lawyers prohib- which should be contest, fects adversary I per- am now ited becoming both to deter from indulgence suaded that a similar for jury prevent lawyers advocates and to from questioning is also indicated. Because the gaining potentially advantageous tactical question in this parti- case was not itself a juror thought information processes. about inquiry, any disadvantage actually san suf- hand, argues on the other by Appellant fered not the was result of an did not commit an of abuse Accordingly, institutional unfairness. I discretion in supervi- this case because his that the trial did hold not err juror questioning sion of observed all of to receive it par- it or make known to the safeguards thought necessary by ties. jurisdictions, practice because the cause, Appellant the instant com- not inherently party, unfair to either plained only that the at his trial an impartial request because otherwise principles adversary litiga- violated basic of impugn juror information does not neutrali- jury impartiality. tion and He nowhere ty just inspires it because one of the advo- suggested procedure that the ran afoul of produce cates to further evidence. law, rule, any specific practice. or settled case, applied As to the instant I believe is, course, something logistical of a This of argu- the State has the of this better Court, problem forcing it to for the hold ment. receipt do not believe that that the amounts to er- reversible jury question, of might a neutral which ror, it, not because the law forbids produce advantageous an answer to either authority establishing because there “is no side, here, propounded such as the one authorizing jurors of impugns legitimate aims of the adver- jurisprudence witnesses in the criminal sary process compromises impartiali- But, in system our at 889. state[.]” Nor, ty jurors. in my judgment, does it jurisprudence, that which is not forbid- produce significant danger generally Although den is allowed. prematurely will be committed to a certain appropriate Court here advances concerns in way view of case which orthodox desirability juror questioning, about adversary procedure designed to avoid. respect identify it omits to in what the law I am not unmindful that burden Specifical- procedure. was offended proof always operates disadvantage ly, statutory it identifies no or constitution- that, party who bears it and because an violation, case only al and makes a weak passion arising issue of sudden from ade- incompatibility fundamental with the adver- quate cause actually submitted for Instead, system sary as a whole. seems case, jury consideration in this it was the in- merely reject policy grounds disprove beyond State’s burden to rea- litigation creasingly well-received tool Certainly sonable doubt. categorically forbidden which been we are here concerned was meant to country. only jurisdiction in the one other supply pertinent evidence to that issue. all, Had it not been asked at the State course, not, suggest that I do mean to might thus have suffered the incremental evidentiary procedural myriad disadvantage assigned by the burden of pro- adversary rules so characteristic of the proof whenever there is an absence or defi- in the compromised cess at all ciency relevant evidence on an ultimate truth-finding. I differ from the interest of issue. only I would hold that inasmuch as those proof procedure But none of the burden device which violates institutionalizing oversight unless it af- or incom- rules should not be forbidden V.T.C.A., upon jury’s finding Cobarrubio v. ditional that he did not Penal Code 19.04. See § (Tex.Crim.App.1983). act "under the immediate influence of sudden passion arising 675 S.W.2d 749 adequate from an cause.” PETITION ON APPELLANT’S firmatively undermines values OPINION core REVIEW adversary system. I am satisfied FOR DISCRETIONARY Because employed in this cause procedure MILLER, Judge. not, respectfully dissent. did by a Appellant was convicted McCORMICK, P.J., joins. substance, to-wit, of a controlled possession Safety cocaine. Ann. Tex.Health & Code appel also sentenced 481.115. § years confinement lant to twelve Justice— Department of Criminal Texas appeal, direct Division. On Institutional point raised one of error contend appellant permitting ing the trial court erred over jury to frame for a witness ALLEN, Jr., Appellant, Herman objection. appeals over his court point and affirmed the conviction ruled this opinion. published Allen v. in a Texas, Appellee. STATE (Tex.App. [14th — Houston No. 540-91. peti 1991). granted appellant’s We Dist.] ap court of determine whether the tion to Texas, Appeals Court Criminal did not holding peals erred En Banc. ques allowing such his discretion in abuse Jan. tioning. opinion, we granting appellant’s Since herein. presented have decided In Morrison v. a situation similar reviewed case concluded

present “[a] involving intru system change our [trial] component function of of one into the sion through may only be established another of this making authority limited rule legisla court, by the subject disapproval legislature in accordance ture or (Tex.Crim. process.” At 888-89 due Allowing App.1992). is, there setting in the criminal

witnesses into fore, any excursion impermissible, to a harm subject is error not this area analysis. Id. judgment

Accordingly, the cause is is reversed and appeals actions not to the trial court remanded opinion. with this inconsistent Jr., Barron, appel- Bryan, for M. John lant. Turner, Nancy L. Atty., Dist.

Bill

Hildebrand, Atty., Bryan, Dist. Rob- Asst. Austin, Huttash, Atty., State’s

ert

State. notes so day up just will take them at end of the reviewing the anybody who is record safekeeping you return them tak- this trial can decide whether note morning. next Please remember not to permissible impermissible. you during discuss the notes that take

Notes

Please do not feel that must notes take now, finally, And on this business of necessarily encourages or that the court way asking here is the that will questions, you to take notes. that Please be assured appears work. After each witness that your option. it is individual has to. Nobody questioned by the attor- the case been stop You can or as see For you start fit. any neys, if I will turn to ask notes, you please those of do who take do, you questions. you just If consider these words of caution. Remem- signify you me hand have one to your ber that role here is to decide give you I amount of time and will brief impor- credibility of the witnesses. So is writing your question ques- to finish out or only to you pay tant for to attention not slip can one paper. tions on a You write said. what is said but sometimes how it is questions. you can write ten I Therefore, you try I don’t want to be written, all they don’t But have to be care. stenographer going verbatim what many ques- as you and as want ask taping in the evidence. We have an audio so, do I tions welcome to am here, are rolling speak I apparatus that is you necessarily suggesting trial, if going during the so that will be making opportunity I avail- should. am any question there about is ever what those will be collected said, you. able to And get you. played we can back for you you go will be asked way suggestion may Just review stay while I certainly for a short and is room apply this case your questions And your questions. those use of not intended be exclusive legal notes, test going pass have to same you might want to write down So, up ques- you either. don’t send says me that the fellow about tion to —ask attorneys’ questions admissibility that the Instead, why get couldn’t he his car fixed. get couldn’t Nothing into do. that, you you write if want to know about get you allowed to into evidence will get your car Why you couldn’t out— question. asking the And the evidence question mark. And I will read it fixed?— that your question whether responsibility for way You understand me? verbatim. not will be mine and mine gets asked or your piece paper you write on What asked, get does not your alone. If going get And if it doesn’t what’s read. not surmise that it is because you should sense, going I am not make too bad. attorneys keep tried to it out. you. to fix it for your I had a chance to review After bring you back in the questions, I will the instruc- right. All That concludes your question I read courtroom and will you. I call on State’s tions had for and, after the witness on the stand ask indictment. will attorney to read the attorneys responds, the will—can witness please stand. the defendant to keep whispering at counsel table we getting to just a minute. It is down II APPENDIX a distraction. I will read answer, and the witness. The witness will PROCEEDINGS— AFTERNOON given a chance to attorneys then the will be P.M. 1:43 follow-up on the same sub- go reopen ject, but can’t back TUESDAY, MARCH subject. attorneys

Case Details

Case Name: Morrison v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Dec 16, 1992

Citation: 845 S.W.2d 882

Docket Number: 970-91

Court Abbreviation: Tex. Crim. App.