Ex Parte Raul PARRA, Applicant.
No. AP-76,871.
Court of Criminal Appeals of Texas.
Sept. 18, 2013.
821
In this case, (1) the State misspoke about the law of provocation and then told the jury to pay careful attention to the erroneous instruction, and (2) the evidence concerning self-defense was hotly contested and appellant’s version of events was, at a minimum, plausible, and, if believed, exonerating.
After considering all four of the Almanza factors, we conclude that appellant suffered some harm when the jury was instructed on the provocation doctrine absent any evidentiary support. We therefore affirm the judgment of the court of appeals.
Parra was convicted of aggravated sexual assault of a child and was sentenced to lifetime confinement and a one-dollar fine. The El Paso Court of Appeals affirmed Parra’s conviction, finding that Parra did not preserve any error stemming from the judge’s jury admonishment and no juror misconduct occurred.2 We denied his petition for discretionary review. We filed and set Parra’s application for a writ of habeas corpus and requested the parties to brief the following issues:
- Whether Applicant was denied effective assistance of trial counsel when trial counsel: (a) did not object to the trial court’s response to a jury note as violating the mandates of
Article 36.27 of the Code of Criminal Procedure ; and (b) did not object to the contents of the trial court’s response as threatening to the jury and resulting in the deprivation of a fair and impartial jury. - Whether the actions of Applicant’s trial counsel denied him a fair and impartial jury when trial counsel, allegedly, did not adequately question the venire panel during voir dire to reveal that one of the venire members who later served on the jury had been a victim of crimes in the past even though the juror had indicated on a questionnaire that the juror had not been such a victim.
Matthew Mateo Dekoatz, Attorney at Law, El Paso, TX, for Appellant.
Lily Stroud, Assistant District Attorney, El Paso, TX, Lisa C. McMinn, State’s Attorney, Austin, TX, for the State.
OPINION
KEASLER, J., delivered the opinion of the Court, in which KELLER, P.J., WOMACK, JOHNSON, HERVEY, COCHRAN, and ALCALA, JJ., joined.
Raul Parra seeks habeas relief on the grounds that his trial counsel was ineffective for failing to object to the trial judge’s response to a jury note and for failing to adequately question the venire to reveal one juror’s alleged experience as the victim of both domestic violence and sexual
I. Failure to Object to Judge’s Admonishment
During its punishment-phase deliberations, the jury sent out a note stating that
The trial judge responded by bringing the jurors into the courtroom and addressing them as follows:
The record should reflect the attorneys for the State, the attorney for the defendant, the defendant are present in the courtroom. The Court has received a message from the jury that needs my response.
Ladies and gentleman of the jury, shortly I’m going to send you back into the jury room to see if you want to break for the day. You will be sequestered. It appears that there is a need for court reflection and maybe a break. The only break I can give you is breaking for the rest of the day. Like we did yesterday. So shortly I will send you into the jury room so that you can indicate to me whether that is your wishes at this time or whether you wish to continue to deliberate.
In response to the question that was asked, here’s my response. We have provided for you as nice an accommodation as I possibly can. If you don’t want those, I will put you in the county jail and bring you tomorrow so that you can continue to deliberate with your fellow jurors.
I have never had to do this. And I don’t want to. But, understand one thing, you are the judges, the exclusive judges, of the facts and the credibility of the witnesses. And I will continue to respect you as co-judge and not interfere with your job. I am the judge of the law. And in the way this court is conducted.
I do not want to put any of you in the county jail. But do not test me. Because I will not hesitate to put you in the county jail and bring you over to deliberate with your fellow jurors if I get that threat again.
Go back into the jury room and let me know whether you wish to continue your deliberations.
The record does not reflect that Parra requested to see the jury’s note or objected to the content of the judge’s statement. In the motion-for-new-trial hearing, Parra’s counsel claimed that the judge just told him to appear in the courtroom and was unaware that the jury sent out a note. After receiving this admonishment, the jury informed the judge that they wished to continue deliberating. Thirty minutes later, the jury returned its punishment verdict.
Parra’s first allegation is that trial counsel was ineffective for failing to object to the trial judge’s response to the jury note on the grounds that it was coercive and given in violation of
A. Coercive Instruction and the Deprivation of a Fair Trial
Parra alleges that the judge’s response to the jury’s note was coercive and deprived him his right to a fair and impartial jury. Parra contends “the trial court threatened to place the entire jury in jail unless they continued to deliberate to reach a verdict.” We disagree with Parra’s reading of the judge’s admonishment. The jury’s note indicated that two named jurors were threatening to leave the deliberations and wanted to talk to the judge about the consequences of doing so. From the note’s language, it was reasonable to interpret that these two jurors were threatening to abandon their obligations as jurors and jeopardized the judicial process.
Provided subject-matter jurisdiction is properly invoked, a trial judge’s inherent power includes broad discretion over the conduct of its proceedings.5 A necessary component of this broad discretion is the ability to find those in contempt whose “conduct tends to bring the authority and administration of the law into disrespect or disregard, interferes with or prejudices parties or their witnesses during a litigation, or otherwise tends to impede, embarrass, or obstruct the court in discharge of its duties.”6 The judge’s response answered, albeit assertively, the question the two jurors threatening to leave had—what are the consequences of leaving?—by telling the two jurors that he would, in essence, hold them in contempt, confine them, and bring them to court the following day to deliberate further with their peers. Contrary to Parra’s claim, the judge’s response was tailored to the two jurors, not the entire jury. The judge’s indication that the offending jurors would rejoin their peers the following day after their stay in the county jail indicates that the remaining jurors were not being threatened with similar treatment.
Additionally, the trial judge’s response was unrelated to the jurors’ ability to reach a verdict, despite Parra’s allegations to the contrary. The judge made no mention of a verdict at all, nor suggested what the verdict should be. The judge reasonably interpreted the note to mean that the problem the jurors had encountered was related to threats by two jurors to walk out, not an inability to reach a verdict due to holdouts. The judge’s admonishment simply informed the jury of his unwillingness to tolerate jurors threatening to impede the judicial process.
Further, the timing of the jury’s verdict alone is an insufficient basis to find the admonishment coercive.7 In his brief, Parra’s claims that the jury returned a verdict thirty minutes after the admonishment. All the record indicates is that thirty minutes elapsed from the jury’s note informing the judge that they wished to deliberate after the admonishment and the note stating that the jury reached a verdict. This reveals very little about whether the admonishment affected the jury’s deliberations, and, if so, the manner of its effect.
B. Article 36.27 Violation
Parra also claims counsel was ineffective by failing to object to the judge’s response on the grounds that it was given in violation of
Even if we were to assume that the judge violated
II. Failing to Properly Voir Dire Juror M.M.
Parra’s second basis of his ineffective assistance claim alleges that trial counsel was ineffective for failing to adequately voir dire the venire panel, specifically juror M.M., so as to discover that she was a victim of both domestic abuse and sexual assault of a child. Had this information been elicited from venire member M.M., Parra asserts, counsel could have challenged M.M. for cause or struck M.M. with a peremptory challenge. M.M. was seated as a juror. Parra alleges that counsel’s deficient performance in voir dire resulted in the seating of a potentially biased juror
The 1996 application for a protective order filed in an El Paso district court alleged that an individual with the same name as juror M.M. was repeatedly assaulted by her former husband. Juror M.M. did not testify in the motion-for-new-trial hearing. As the habeas judge concluded, the evidence admitted in the hearing does not affirmatively establish that the M.M. who applied for the protective order is the same M.M. who served on the jury. And the habeas judge so concluded. A review of the application and jury questionnaire strongly suggests that they are the same person. Assuming, without deciding, that juror M.M. applied for a protective order twelve years before Parra’s trial, the protective-order application alone does not prove the truth of the abuse allegations or that she was an abuse victim.
Even if juror M.M. was in fact a crime victim, it does not follow that she was biased as a matter of law against Parra and that seating M.M. on the jury denied Parra a right to a fair trial. The record suggests otherwise. During the State’s voir dire, the judge intervened and asked the jury the following question:
The issue is this. How many of you, because of any personal happenings to you, family members or loved ones or close ones, could not be fair in this type of case, not having heard one bit of evidence so far; and who would already go into the jury box, and say, “Regardless of what the evidence is, based on what’s happened in my life or the people that I know and love, I am not going to be fair to either the State of Texas or the person, in this case, that’s been accused of this, regardless of what the evidence is, regardless if the evidence shows that he is not guilty beyond a reasonable doubt, regardless if the evidence shows he is guilty beyond a reasonable doubt[?]”
Those are the people, under that situation, for those of you who would not be fair because of this type of case, I need you to stand up now.
The record reflects that, following this directive, M.M. was not among the individuals who stood to indicate their inability to be fair in this case. Similarly, the defense counsel asked the following: “So ... Let’s go back to what they asked you. Your heart-to-heart answer. Can you really sit, fairly and impartially, unbiased, on an aggravated sexual assault case involving a child?” Counsel then proceeded row by row, asking anyone who could not be fair and impartial to stand. Once again, the record reflects that M.M. remained seated.
Regardless of whether M.M. truly was a crime victim, viewed from the perspective that counsel should have discovered in voir dire that M.M. filed a protective-order application and the failure to do so denied Parra the opportunity to lodge a for-cause and peremptory challenge against M.M., Parra’s argument fails to establish prejudice. Strickland requires the applicant to establish, by a preponderance of the evidence, that the harm resulting from trial counsel’s deficiency undermines the confidence in the trial’s outcome.13 In his writ application and its attached memorandum in support and brief to this Court, Parra does nothing more than state that “Applicant demonstrates that he has suffered prejudice.” Parra’s conclusory assertion does not demonstrate that he was prejudiced by counsel’s allegedly deficient performance in voir dire.
Finding no ineffective assistance of counsel, we deny relief.
MEYERS, J., filed a dissenting opinion.
PRICE, J., concurred.
MEYERS, J., filed a dissenting opinion.
The judge’s actions in threatening to put jurors in jail and in failing to inform counsel that this would be his response to the jury’s questions were error and there is no reasonable strategy to explain counsel’s failure to object to these errors. The deficiencies in counsel’s performance deprived Applicant of a fair and impartial jury and likely affected the judgment against him. I would hold that Applicant received ineffective assistance of counsel and would grant relief.