*1 Lee THOMPSON James DURAND, Appellant, Raymond
v. v. STATE. Texas, Appellee. of The STATE PERRY Robert Clarence No. 1245-94.
v. Appeals of Texas. of Criminal Court STATE. 5, 1996. June 1227-95, Nos. 1228-95. Appeals of Texas.
Court of Criminal
April 1996. discretionary appellant’s petition for
On discretionary petition for review review: judgment ground only; of Granted on vacated; remanded Appeals of cause Court discretionary appellee’s petition for re- On Appeals. to Court of judgment Ap- granted: Court view af- peals judgment reversed: of trial court
firmed. QUINN, Appellant,
Michael Dennis McCLURE, Appellant, David Michael v.
v. of Texas. STATE Texas, Appellee. The STATE of No. 1691-96.
No. 0886-94. Texas, Appeals of Court of Criminal of Texas. Court Criminal En Banc.
June 1996. Dec. 1997. discretionary appellant’s petition for
On discretionary review petition
review:
Granted; judgment Va-
cated; Appeals. cause remanded to Court *2 Udashen, Dallas,
Gary A. appellant. for Paul, Austin, Atty., Matthew State’s for State.
OPINION ON STATE’S PETITION FOR
DISCRETIONARY REVIEW KELLER, Judge, opinion delivered the McCORMICK, the Court in which Presiding BAIRD, MANSFIELD, PRICE, Judge, and WOMACK, Judges, joined. HOLLAND and Appellant aggravated convicted sex- ual assault indecency of a eliild and with a contended, appeal among child. On he (1) things, granted he have been should rejects boys from them that were his case some of trial because a discussed new (2) Oilers. trial and the Houston with a outside of the granted have been a new because should Yea. [Co-worker]: was biased. The Court pass the time guess I I will (1) origi- claim on reversed the conviction on drops over or being till that mess is kind peti- After the filed nal submission. State something. down *3 review, discretionary the Court tion for 2-95-275-CR, slip Quinn v. No. See opinion, justi- Appeals issued a second which Worth, July (Tex.App.—Fort op. at (2). of the conviction on claim fied reversal Appellant a mo 1996)(unpublished).1 filed judgment of the Court We will reverse among other alleged, and tion for new trial Appeals. improp was an things, that this conversation with an outside er communication 1. Facts the case and that the communication rested, but before the After State rendering Thomas unfit as a bias showed during guilt- put on evidence defense denying appellant a fair trial.2 juror and trial, stage of the a co-worker innocence for new trial At a on the motion if the paged Thomas to determine concerning this con- testified Juror Thomas During phone any work overtime. could repeatedly versation. He denied call, following exchange place: took any effect on his delibera- conversation had get can’t You there. [Co-worker]: tions, he maintained that he waited until uh, uh, (no), early got I off [Thomas]: forming opin- before heard all the evidence [today], night p.m. last we went to 7:00 punishment, and he de- guilt ions as to and kidding. You are co- repeating [Co-worker]: his conversation with the nied jurors. This any of the other worker No, nasty it is a mess. [Thomas]: following: testimony included the it? What kind deal is [Co-worker]: Thomas, And Mr. did counsel]: [Defense just (Caught Hold on a second. [Thomas]: know, Wilder, say you because you to Mr. line). another them, you give can you can’t kill the most OK, old, year rape Its a of a 5 [Thomas]: way years? is life or 20 Is that the them is that fun or what? you you felt when had this conversation envy you. I [Co-worker]: don’t May 17th? with Mr. Wilder evidence, No, because all the [Thomas]: Jury stay ... Hell we in the [Thomas]: at that hadn’t even heard the Defense time, all of the I Room never did point. again. before and don’t care to do that only That is case that ... If in fact the your testimony that It’s counsel]: [Defense you guy guilty, then can send a bastard any you formulated decision on hadn’t pen play drop soap like that to the in; is that case until all the evidence Butt with the Brothers? correct? Yea. [Co-worker]: That’s correct. [Thomas]: you You can’t kill know because [Thomas]: you give them and the most can them is you objective in this Were [Prosecutor]: years they life or 99 and that means are case? in 10. out Yes, ma'am. [Thomas]: they get if Yea or sooner too [Co-worker]: you open-minded Were [Prosecutor]: crowded. this case? Yea, but, say, like I he needs to [Thomas]: Brothers, drop soap Yes ma'am.
play [Thomas]: with the Butt supplement to made in a tape-recorded 2. The latter claim was 1. The conversation was department the fire at which Thomas branch of for new trial. the motion worked. you Did you [Prosecutor]: listen to all of the any [Prosecutor]: Did ever make com- that, evidence then well, decide the jury my verdicts ment room Mend phase each of the trial? they ought go thinks also to the penitentiary? that, Repeat please. I’m sorry. [Thomas]: words, In
[Prosecutor]: [Thomas]: other No. before your reaching phase verdict in each you any Did make [Prosecutor]: comment trial, you you wait until heard all of the that, well, in the my room Mend evidence and the you Court read me, agrees any Mend or charge you argu- had listened to our person, agrees they ought me that you ments before reached decision? go penitentiary play to the the butt [Thomas]: That’s correct. game soap game? or kick the you probation Did [Prosecutor]: foreclose No. in this case? *4 any [Prosecutor]: And was there state- mean, I everything [Thomas]: No. not till part ment on of [the co-worker] was in. your regarding influenced De- beliefs this you Not till [Prosecutor]: had heard all of fendant? the evidence— No. [Thomas]: Right. [Thomas]: any [Prosecutor]: Was there statement [Prosecutor]:—by both the State and the decision, that he your made that affected Defense— guilt-innocence either in punishment, or Correct. [Thomas]: regarding this Defendant? punishment phase? [Prosecutor]:—in No. [Thomas]: facts, And you then based on the didn’t appropriate punishment. feel that was an .ájid Thomas, you Mr. [Prosecutor]: did Okay, [Thomas]: No. but [Prosecutor]: bring any outside comments or evi- you begin discussing did not until it after jury you, into dence room with jury Court had admonished the you? charged given argu- them and we had both [Thomas]: No. you jury room;
ments and returned to the is that correct? your Aid decision was based [Prosecutor]: only you on the evidence that heard in this Monday. [Thomas]: Correct. On courtroom; is that correct? That’s correct. [Thomas]: you And as sit [Prosecutor]: here under oath, having made the statements about phases In both trial? [Prosecutor]: prison what child molesters do and what That’s [Thomas]: correct. prison, you occurs to them in can tell this you Court under oath that did not fore- you [Defense When use the counsel]: probation? close words, sir, to,” not that “he needs does [Thomas]: That’s correct. you opinion? indicate that formulated an you still [Prosecutor]: So could consider That’s I for- [Thomas]: correct. had not range full throughout opinion. an mulated you the trial until all heard of the evi- [Defense counsel]: You had not had? dence? not. [Thomas]: Had [Thomas]: That’s correct. word, The “he needs
[Defense counsel]: to,” not, says your opinion? he had You you any Did ever [Prosecutor]: make com- opinion? hadn’t formed ment to other members of the you anyone had talked about this case with I I [Thomas]: believe when made that else. statement, prefaced I it “if with guilty.” No. [Thomas]: May the 17th co-worker] little tion with [the That was made a
[Defense counsel]: p.m.? earlier, “Yeah, they get 6:42 or sooner if about sir. crowded,” you respond
too what we’ve no decision on the I had made [Thomas]: ‘Yeah, say, I asked: but like he needs at that time. case play drop soap with the Butt brothers. boys rejects from Some of them have been anything the con- Is there [Court]: the Houston Oilers”? you co-worker] [the versation All that was based on fact [Thomas]: any influ- May 17th of 1995 which had opinion, I my that in had not received your slight, on impact, ence or however if the information from the to decide in this case? deliberations as guilty or not. Defendant was No, sir. None.
[Thomas]: Defendant, (Bracketed original; you substituted for Did afford material [Court]: inserted). Quinn, presumption ellipses Michael Mr.
innocence? testimony, the State called After Thomas’ Oh, yes, sir. jurors. Every denied the other eleven fairly you fully Did listen [Court]: to a hearing Thomas make reference presented in jury. all his his defense with a outside mind? about various parties asked *5 in Thomas’ conversation with his terms found Yes, sir. [Thomas]: co-worker, soap,” “Butt including “drop the you Did listen to all the other [Court]: Brothers,” references. and “Houston Oilers” presented by information and evidence term, every Every juror was not asked about other wit- counsel for the Defense and exceptions, ques- but with two whenever Quinn’s open nesses on Mr. behalf with an terms, jurors the testified tioned about such mind? they ques- the terms in that had not heard Yes, sir. [Thomas]: “drop jurors the term the tion. Two recalled you I take it listened to the [Court]: soap.” juror could not be sure One open information with an mind? State’s term; the anyone jury on the had used that Listened to all information. [Thomas]: juror, juror, presiding other who was the you Did make a decision on what [Court]: being in the term mentioned remembered in prior going the verdict should be back recall jury room. Neither could the jury you the room when were sent back although the Thomas that term whether used by Judge jurors there the with the other might that Thomas have. presiding said charge the instruction Court’s with he “drop presiding juror that the the The stated Presiding to reach a verdict and select a no on his decision soap” comment had effect you in Juror? Did make a decision jury in deliberations. played no role and you case before were sent back there with that Thomas said The other stated verdict, those instructions? juror’s nothing influenced the solely juror based his decision and that the No. [Thomas]: upon evidence. prior indicated that to as- [Court]: You of the sessing punishment, the rest appellant’s motion court denied The trial testimony, you open proba- had an mind following relevant made the for new trial and tion; is that correct? law: findings fact and conclusions of Yes, sir. 17,1995, Philip May Thomas 1. On Juror co- by telephone [a
communicated conversation, worker], during this Ju- your and It’s counsel]: [Defense information about then, Thomas, Thomas disclosed what ror Mr. after age of the concerning the you the case on trial you, that Court’s asked victim, matters allegations, up alleged your not have mind made mind and did dire; matter, during your observed voir on this even after conversa- 17, 1995, May suggested by juror, especially 2. The conversation of in- when volving Philip coupled in Juror Thomas was viola- with the co-worker’s comments prior concerning prison early tion of the Court’s instructions to the release because of jury; conditions, prison crowded could have had persuading in- the effect of [Thomas] 3. The conversation and information dis- likely crease the he was May during cussed said conversation of assess. by Philip not related Juror jurors Thomas to other in the case. (on Quinn, slip op. original at 3 submis- 4. The unauthorized conversation of Ju- sion)(bracketed orig- material substituted for 17,1995 Philip May ror Thomas inal). did not The further found Court enter into nor affect the deliberations of evidence,” progression “some guilVinnocence on the issues of or conversation, influ- the conversation punishment; thoughts: enced Thomas’ by started out the conversation pre- Although 6. harm and should be ...,” guilty stating guy “If in fact the sumed in the event of com- conversation, unauthorized yet by the end of the he has munications, ju- testimony from all twelve equivocation his removed the from state- clearly May rors that the ments—“Yea, demonstrated say, but like I he needs to ” telephone Phil- Juror play drop soap.... ip by jurors Thomas was not discussed (Ellipses emphasis original). Id. at 3-4 individually collectively played no Moreover, ac- while jury’s finding role fact or deliberat- knowledged that Thomas testified that he did ing processes. repeat any outside information to the by 7. The Defendant was not harmed jurors, the court held “some evi- communication, unauthorized received dence casts this assertion into doubt.” Id. at impartial jury, fair trial and received tes- 6. This “some evidence” consisted during jury effective assistance of counsel “drop timony by two who recalled the *6 selection. soap” expression. at 6-7. the Id. (Bracketed original; material substituted for Appeals acknowledged in the The Court of inserted). ellipses juror abstract that an issue of misconduct opinions Appeals’ using
2. Court of of should be reviewed abuse discre- Nevertheless, the court held tion standard. submission, original In the opinion its required because Thom- that a new Appeals Court of held that the conversation misconduct, con- as initiated the because he may Thomas have between and his co-worker impermissible be- tinued the conversation readily influenced Thomas to more convict slip, yond point the of an inadvertent punishment: and assess a harsher that Thomas because there was evidence case, In this we are with two concerned “may have contaminated other Quinn presumptive injuries may that have offending conduct.” Id. at 7. The Court The co-worker’s statement that suffered. allowing Appeals of then concluded juror, envy not as well as his did only juror mis- other result “would condone agreement juror’s proposals to with the encourage serve to it conduct and torture, Quinn prison send to for sexual future.” Id. at 7-Si. may place pressure to extra have worked aclmowledged pre- Quinn Although it on the to convict so as not to sumption injury of from misconduct once he returned to work. face ridicule rebuttable, 4, Appeals Id. at the Court of did statements could also have worked These testimony Thomas’ that the con- weight gave to that the to not address bolster the State, him regarding not influence presented by the as well as versation did evidence kept an mind about working against yet evidence to be case and that he Moreover, guilt punishment until after all of produced by Quinn. the co- respective was elicited for those approval of the harsh evidence worker’s
401
hence,
law,
Moreover,
no
Ap-
bias as a matter of
while the Court of
showed
issues.
4. Ac-
possible.
Id. at
on Thom-
“rehabilitation” was
peals held that evidence cast doubt
Appeals,
effect of
testimony
cording
not communicate
the Court of
as’
that he did
jurors,
only
conversation to the other
was that the State
the outside
Thomas’ bias
twelve,
explain why
jurors,
Thomas’ testi-
instead of
persuade
the court did not
eleven
mony must
The court also
guilt.
be disbelieved.
the defendant’s
testimony
jurors’
the other
discuss
respond
petition
its
The State amended
conveyed
that Thomas
no
conversa-
outside
opinion, and
Appeals’
to the Court of
second
tions,
Appeals
and the Court of
did not ad-
granted
now address the
review. We
findings
dress the trial court’s
of fact and
presented.
issues
conclusions of law.
3. Unauthorized
petition
discretionary
The State filed
petition,
review with this Court.
In that
When a
converses with
contended, among
things,
State
case, “injury
unauthorized
about the
Appeals improperly usurped
presumed”
to the accused is
and a new trial
determining
trial court’s function of
the cred-
State,
may
v.
851
be warranted. Robinson
ibility
response
of the witnesses.
In
to the
216,
(Tex.Crim.App.1991),
230
cert.
S.W.2d
petition,
Appeals
the Court of
issued
State’s
denied,
1246,
2765,
512
114
129
U.S.
S.Ct.
opinion,
which
second
refused withdraw
(1994).
Tex.Code
L.Ed.2d 879
See also
Quinn
State,
opinion.
the first
v.
No. 2-95-
Proe.,
36.22;
Tex.R.App.
Art.
Crim.
former
275-CR,
Worth,
slip op.
(Tex.App.—Fort
at 5
30(b)(7)(1996)(now
21.3(f)).
Tex.R.App.
P.
P.
7, 1996)(opinion
November
on reconsidera- However,
presump
the State
rebut this
Discretionary
tion
State’s Petition for
Re-
Robinson,
230;
tion of harm.
at
S.W.2d
view)(unpublished).
opinion,
In its second
State,
Thomas v.
853-854
S.W.2d
the Court of
stated
its first
Moody
(Tex.Crim.App.1985). See also
v.
opinion did not conduct a de novo determina-
(Tex.Crim.App.1992),
875, 899-900
827 S.W.2d
credibility
tion of the
of the witnesses.
Id. at
denied,
t.
506 U.S.
cer
“Although
1. The court further stated that:
(1992).
S.Ct.
ous cases
misconduct.
most favorable to
899; Thomas,
Moody,
supports
at
699
827 S.W.2d
the evidence
the trial court’s
giving
854. In
“almost total defer
S.W.2d at
deny appellant’s
motion for new
decision
to the trial court’s resolution of issues
ence”
improper juror com-
ground
trial on the
upon
credibility
turning
an evaluation of
and munications.
demeanor,
in
in
essence view the evidence
light
favorable to the trial courts
most
4. Bias
(or
pertinent
findings
ruling, if there are no
expressly
“bias” is not
listed as
Juror
State,
findings). See Cantu v.
930 S.W.2d
granting
reason for
a motion for new trial.
594,
(Tex.Crim.App.1996).
596
See also Vil
have, however,
can
We
indicated that bias
larreal,
935
S.W.2d
150
constitute “such misconduct
the accused
(Tex.Crim.App.1996)(Keller,
concurring).
J.
impartial
has not
a fair and
trial.”
received
case,
present
In
See Norman v.
S.W.2d
give
proper
deference
failed to
denied,
(Tex.Crim.App.1979), cert.
446 U.S.
to the trial court’s resolution of the historical
1836,
jury’s deliberations. The record contained
may
helpful
analyzing
expressed
biases
be
supporting
findings.
plenty of evidence
those
But such caselaw is not
other contexts.
not in
Juror Thomas testified that he was
necessarily controlling, because
biases
any way
influenced
the conversation with
expressed
voir
context
outside the
dire
convey any
his
that he did not
co-worker and
implicate different concerns.
to the other members of
testi
jury.
The other eleven
also
prospective juror
questioned
aWhen
convey
such a con
dire,
fied that Thomas did
impresses
trial court
during voir
trial court was free to believe
versation. The
truthfully
upon
importance
him the
an-
cases,
testimony.
prior
In
we have held
posed. See Tex.Code
swering
questions
from the
involved
Proc.,
But the same is not
Crim.
Art. 35.02.
enough
impermissible conversation is
evi
necessarily
the courtroom.
true outside of
support
ruling that
dence to
a trial court’s
context,
person may
In a non-courtroom
presump
sufficiently rebutted the
the State
embellish,
joke,
even lie out-
feel free to
Robinson,
injury.
tion of
403 State, applies only voir dire ly, provision to trajudicial” Kemp v. 846 source. 289, dif- (Tex.Crim.App.1992), proceedings. 305-306 Given the above-discussed S.W.2d denied, 918, 113 2361, 124 cert. 508 U.S. S.Ct. voir dire and out-of-court ferences between (1993). That “bias” environments, L.Ed.2d 268 is because the differ- and is considered an inclination toward one side opinions before and ences between formed a the leads to natural inference evidence, hearing we find extension after impartial. Anderson v. decision-maker is not 35.16(a)(10) present to the cir- standards State, 851, (Tex.Crim.App. 633 S.W.2d 853 inappropriate. to Given cumstances be 1982). But, opinions upon based evidence reliability surrounding the and uncertainties judicial proceedings received do not ordi statements, precision of out-of-court such narily questions impartiality: raise by juror hearing statements made a after “Impartiality gullibility. is not Disinterest automatically evidence should never establish edness does not mean child-like innocence. Instead, appropriate to inquiry an bias. judge judgments If the did not form juror’s making intent when determine in those court-house dramas called actors Hence, present- the statement. the evidence trials, Li he could never render decisions.” for trial ed at the motion new States, 540, 551, teky 114 v. United 510 U.S. properly the trial court for consider- before (1994). 1147, 1155, 127 474, S.Ct. L.Ed.2d ation. course, keep open a must an mind as Of (i.e. question guilt ultimate him to the before earlier, As at the motion for discussed punishment) or until all of the evidence has hearing, Thomas that he new trial testified But, received. it common been defies sense mind, decision, as kept open an and made no require human to and nature guilt until all of the and impressions opinions have no until the respective evidence was received on those judge sends the to deliberations. Ju kept issues. He further that he testified necessarily engage rors must in at least some concerning potential assess mind credibility assessment of evaluation of and probation ment of until he received all of the proceedings the evidence as the occur. Viewing light evidence. the evidence finding to the trial court’s most favorable mind, With these considerations in appellant a fair trial received upon turn to Relying the issue at hand. impartial jury, we find that the evidence was Anderson and Green v. 840 S.W.2d deny appellant’s sufficient to motion for new 394, (Tex.Crim.App.1992), 404-405 cert. de ground trial on the of bias. nied, 507 U.S. 113 S.Ct. (1993) analogizing L.Ed.2d 449 chal judgment We reverse the of the Court of cause,
lenges the Court of held Appeals and remand this cause for consider- that, given expression alleged of his bias appellant’s remaining points of error. ation of conversation, during telephone Thomas BAIRD, J., joins opinion but dissents could not be “rehabilitated” at motion for opin- publish believing to the decision But, hearing. new trial Anderson and Green nothing jurisprudence ion adds to the prospec did not foreclose rehabilitation of a State. making appearing tive after statements merely to show bias. Those eases held that a J.,
challenge granted against OVERSTREET, for cause must be concurs in the result. prospective but who admits bias J., 1, 2, MEYERS, joins parts aside; states that the bias can be set part concurs in 4. court still retains discretion to determine prospective juror whether the was biased Anderson, place.
the first
See also at 404-405. S.W.2d *9 statutory granting a
There is a basis for
challenge permitting cause reha without
bilitation in certain See Tex.Code situations. 35.16(a)(10). Proc., But,
Crim. Art. obvious-