*1 the trial court not I would hold that did testimony. Coons’s admitting
err Dr. judgment. concur in the Court’s
therefore URANGA, III, Appellant,
John
The STATE Texas.
No. PD-0385-08.
Court of Criminal Texas.
Nov. (Keller, P.J., (Tex.Crim.App.2003) considering concur- cake and eats it too: the exis- ring). Judge But even if one adhered to Keas- tence literature off-the-record to find appellate view that an ler's court is free that Dr. Coons has failed to offer sufficient materials, proof legitimate, methodology consider such see id. at 43-52 J., (Keasler, dissenting), considering the Court fails to of these materi- contents they comprehensively light approve consider issue in als to determine whether of his methodology. materials it So the its cites. Court has *2 and the incident Abilene, maining jury regarding appellant. for Copeland, Erika existed as that have any potential bias D.A., Brasher, Asst. Crim. W. John of the incident. a result Horn, Falls, L. State’s Jeffrey Van Wichita Austin, for State. Attorney, you Yesterday ... when COURT: video, punish- the during watched the WOMACK, J., the of delivered up it went of the car and phase, ment KELLER, P.J., Court, and in which the then came somebody’s yard and into HERVEY, KEASLER, JOHNSON, and out, understanding you is that my back COCHRAN, JJ., joined. your yard? that was discovered case, punish- evidence at the In Right, yes. JUROR: revealed that the of the trial stage ment And, course, way you of had no COURT: juror’s property damaged had defendant that suppose, that knowing, I don’t (1) are The issues in a extraneous offense. case or part be a of this going was ap- bias” “implied whether the doctrine involved this Defendant? that it mistrial, required case and plies to this (2) not, the trial court if it did whether and No, I didn’t.1 JUROR: denying a mistrial. abused its discretion you learned So the first time COURT: implied-bias doctrine We hold you when saw his anything about it was that the trial court did apply does yard pulling in that pulling up car discretion. not abuse its video, right? out on that back Summary of Facts
I. Right. JUROR: of felo- appellant guilty A jury found you Have told you: Let me ask COURT: methamphetamine of ny possession else about it? anybody four gram, but less than more than one you. No. Just JUROR: punishment phase grams. During about that that anything Is there COURT: (which jury) the trial also was tried in this case or your affect decision would prior of two the State introduced evidence you way to lean one or that would cause unadjudicated convictions and a host of the other? offenses, question. including the incident September of 2006 when place It took No, sir. JUROR: car onto someone’s drove his up torn anything Was there COURT: This incident was yard police. to elude you yard have made your cam- entirety by the video captured its somebody somebody did mad did— chasing that was police era in the vehicle yard? something your appellant. ground up was moved JUROR: The the video re- the State offered When bit, I’m not replace I can that. little played it for the cording into evidence and like charges anything or pressing no that it jury, jurors discovered one that. damaged by was his lawn that had been car come in you Did see the COURT: questioned car. The court appellant’s there, just saw it— of the re- presence outside the Uranga videotape] that learned die [from never been told thus 1. It that the had seems suspect damage person previously name to his unknown who had been the State, ”). yard. Uranga yard See through .... driven had 2008) ("The juror (Tex.App.-Texarkana just tape. JUROR: No. saw it on the aged. though minimal, Even just it was damaged, and I believe it would your yard, you But as far as COURT: did have to affect in punishment. him anything happened know had when it *3 happened, you just did see it out Mr. COURT: [Prosecutor].
there later? STATE: Judge, I think that in this situa- morning, JUROR: In the when I was go- tion the case law is clear that he can work, ing to I it. saw stay juror. just as a I said—he told you, eye-to-eye, fair, seeing COURT: So as far as he could anything that be I and so think we have happened to take him at about what car came in there his word. policeman or a chasing somebody, you anything
didn’t see like that? you’re COURT: So what is suggesting, No, No. sir. Mr. [Defense JUROR: Counsel]?
COURT: You no knowledge had about DEFENSE: Whatever has to be done
anything happening law, until the next morn- within the Your Honor. If a you go when out and see car tracks personal— your yard? No, my COURT: you saying you —are Right. JUROR: you want a mistrial or want me to ex- cuse him go and with 11? you’re you And What are telling COURT: me that the wanting? fact that that car involves this Defen-
dant, allegedly, and was the one that DEFENSE: Then we would ask for a your yard, was on that video in that that mistrial.
would you not influence one way or the COURT: Overruled. other? After the questioning, the appellant re- No, JUROR: sir. quested a mistrial based on the recently COURT: You will not against hold that discovered information. The Court denied any way? Defendant in request. No. No. JUROR: jury The appellant found that the anwas right. COURT: All thing going One I’m offender,2 habitual felony and assessed the say you Do is: not let it influence punishment prison. of life in you way. appeal, On appellant argued that he No, I JUROR: won’t. denied his to a fair impartial COURT: Number two: Do not share that jury Constitution, under the Texas because experience with of the other he presume “contends that we should members until after get through. we harm from victim-juror’s participation and, therefore,
in assessing punishment Honor, time, DEFENSE: Your at this I that we rejec- should find error from the have would to—even with the reassur- tion of the motion for mistrial.”3 The ances that Mr. Richardson has given, I Court of Appeals held that since “neither object, would have to that he does have Appeals Texas Court of Criminal nor personal knowledge. I don’t think it the United States Court has could not him deciding punish- affect adopted doctrine when it mean, ment. property was dam- is discovered in the of a punish- middle S.W.3d, Uranga, Attorney’s Although they a victim the trict Office. had trial that a ment (misdemeanor-lev- application, prosecuting defendant’s extraneous learned of this el) conduct, Uranga’s not follow we shall attorneys withheld the information from suggestion that such a doctrine must be both the trial court and defense counsel applied in this case.”4 appel- until the trial had concluded and the guilty lant was found of murder.7 The granted review. We granted federal District Court habeas-cor- argues that the doctrine prosecutorial relief miscon- pus because always applied bias” must “implied duct, and the affirmed.8 during punish- when it is discovered *4 Court, The Supreme while “not con- a victim the stage juror ment that a doning] prosecutors the conduct of the in extraneous, unadjudicated of- appellant’s case,” held that their “failure to dis- says that fense. He “no admonition could juror’s] job application, although close [the effectively juror.” cure the bias of that bias, requiring post-trial hearing juror on respondent deprive did not of the fair trial Implied II. Bias guaranteed by the Due Process Clause.”9 The Sixth Amendment to the Unit principle, The Court adhered to a estab- guarantees ed States Constitution precedents, in its in lished order to by impartial jury an in all right to a trial (as relief, distinguished obtain actual from I, prosecutions. criminal Article Section implied) juror bias It must shown.10 10 similarly of the Texas Constitution that, prosecutorial also held while miscon- all guarantees prosecu criminal “[i]n might juror-bias duct be relevant to the speedy pub tions the accused shall have a issue, such misconduct alone would not impartial jury.” lic trial an This Court due-process amount to a violation.11 in has held that the the state consti greater recognized tution is no than that in Justice O’Connor said that she “con- the Sixth Amendment.5 Neither the fed opinion, in the Court’s cur[red] wr[o]te eral nor the state constitution has been separately express view that the [her] require “implied held to an bias” doctrine. opinion does not foreclose the use of ‘im- in plied appropriate bias’ circumstances.”12 “implied
The limited case law about
stated, “Determining
juror
She
whether a
largely
bias” stems
from Justice O’Con-
prejudged
is biased or has
a case is diffi-
nor’s 1982 concurrence in Smith v. Phil-
cult, partly
juror may
because the
lips.,6 After the trial of
have an
Phillips began, one
in
jurors
application
concealing
submitted an
interest
his own bias and
employment
investigator
partly
juror
as an
in the Dis-
because
be unaware
Id.,
Id.,
210-13,
4.
7.
at
5. Jones v.
391
Id.,
215,
8.
at
305 13 She illustrative gave of it.” an list of standard of harm be applied should “implied examples which the bias” doc- denial a mistrial based may apply, notably referring trine to “ex- withholding of material information.”19 justify situations that treme would find- issue, course, That is different from the examples bias. Some issue whether the juror was biased. We include revelation that is an made that clear we said: when employee agency, actual of the prosecuting Judge argues Cochran’s dissent that we is a close relative of one of should apply the federal standard that in the trial or the criminal participants Franklin must show that Juror Spradlin transaction, or that was a witness had actual bias. Under federal stan- involved in the criminal somehow trans- dard, only defendant must not show action.” that the to provide failed an honest This Court has mentioned Justice question answer to a during material twice, “implied bias” doctrine O’Connor’s voir dire but also that correct response first Franklin State15 and would provided have the basis for a chal- again State v. Morales.16 Nei- *5 lenge for cause. Judge What Cochran adopt ther case or reject called us to advocates is not doctrine, never been the the because neither case turned juror’s being disqualified law, on the issue of a standard in Texas. Under Texas because of bias. the defendant must show that juror the withheld material during information Franklin,
In when victim the took the dire, voir and the information is with- stand, juror a her a recognized as member despite diligence held due exercised Girl Scout which the troop juror the So, the was leader. The had defendant. is not necessary “[i]t heard the during victim’s name voir-dire examina- that the concealed information show ac- tion, recognize but she did not the victim bias; tual just that has a tendency to she until saw the child.17 The in- show bias.” that Spradlin The fact had formed the trial of their judge Scouting victim, the relationship with one that relationship. questioned The judge her on many people would consider almost a ability to judge only her the case on the role, parental certainly tendency has a stand; she evidence heard from the the to show bias.20 juror stated that do she could so.18 The years Morales,21 Four State later in v. judge refused to allow counsel defense to again acknowledged this Court the doc- said, question juror. the Court This “The of “implied expressly trine bias” without at issue the judge’s error here is trial it, adopted when, rejecting stating of a “we denial mistrial after the trial need not decide whether the Sixth began, juror] [the revealed that she Amend- knew So, the victim. ... issue here is what ment embraces doctrine of implied 13. Ibid. 18. Ibid.
14. Ibid. Id., at 19. 353-54. (Tex.Cr.App.2004). S.W.3d 351 Id., note; (quoting at 355-56 a law-review omitted). footnotes S.W.3d 686. S.W.3d, (Tex.Cr.App.2008). 17. 138 21.253 S.W.3d 686 bias of which Justice Morales, for the prosecutor In bias.”22 wrote. the O’Connor was seated on Attorney’s office District aggra- convicted jury that case, a hear- the trial court held In this indecency with a assault vated sexual of actual during the trial on the issue ing employment was The fact of her child.23 hold, with the in accordance bias. We examination. the voir-dire during an issue reasoning Smith Supreme Court’s of er- two claims presented The appellant appro- was procedure that such a grant refusal ror: the trial court’s was no re- adequate. There priate and prospective ju- cause to challenge for theory on a of a mistrial quirement ror, of effective assistance and the denial juror. bias must be having attorneys’ not by his of counsel (which her challenged peremptorily trial court’s rul-
necessary
preserve
III.
review). The
Court
appellate
is whether the trial
The next issue
conviction on the
reversed the
Appeals
refusing
to declare a mistri
court erred
This
ground.24
Court
ineffective-assistance
court was a
al. The issue before the trial
“erred in
held that
was actual
factual one: whether
did,
the basis that it
at least on
holding,
ly biased.
ineffective assis-
that counsel rendered
bar,
did not
In the case
expressly
We
said
tance of counsel.”25
fact,
appellant;
know the
juror-qualifica-
personally
we did not reach
even heard the name of
juror had never
ground.26
tion
*6
to his lawn.
suspect
damage
the
in the
case,
posits
the
In the instant
Franklin,
the case from
distinguishes
This
adopted
“implied
the
that this Court has
was
in which the relevant
issue
supra,
circumstances and
doctrine in limited
bias”
material
juror’s withholding
the
whether
in
juror
the
to the
impute
should
doctrine
personal
acquaintance
information —her
that the courts
argues
He
this case.
also
during voir dire had in-
with the victim—
because,
in
although
juror
the
below erred
process,
with the voir-dire
includ-
terfered
the
on the record
question stated
chal-
right
peremptory
the
to exercise
not affect his
on his lawn would
incident
to
lenges, which is essential
case, “no admonition
the
ability to decide
by
impartial jury.28
trial
an
ju-
of that
effectively cure the bias
could
argument.
either
accept
ror.” We do not
ques-
allow for additional
The court did
any actual bias.
tioning
reveal
said in the Phil-
As the
Court
the trial court that he was
juror
held that
“The
told
long
the
lips opinion,
“Court
pursuing
charges
in
criminal
juror partiali-
not interested
remedy
allegations
for
of
the
of what all
against Uranga on the basis
the defendant has
ty
hearing
is a
which
damage;
‘minimal’
the
parties agreed was
prove
to
actual bias”27—
opportunity
the
Morales,
S.W.3d,
Ibid.
at 696.
26.
253
Id.,
U.S.,
215,
102
Smith v.
455
S.Ct. 940.
State,
(Tex.
The court also admonished the However, no error in this case. I disagree with the taken to reach path that result. ... repeatedly promised The the 37.07, Article Section of the Code court that he use this trial would not Criminal Procedure —“Evidence of prior against Uranga deciding the incident criminal in all record criminal cases after a Moreover the trial court ex- sentence. finding of guilty” states, instructed the to “not let it pressly — you any way” to “not influence Regardless plea the the and whether experience any share with punishment by be assessed judge we get other members until after the jury, evidence by offered through.” The he promised state the defendant as to matter would.30 relevant sentencing, court deems but not including limited to the prior The held: defendant, criminal record of the his position court trial the best general reputation, character, his an weigh believability of the character, regarding the cir- repeated promises to court and both the cumstances offense for which he that, parties deciding Uranga’s tried, and, being notwithstanding Rules he punishment, would not take into ac- Evidence, 404 and Texas Rules of his status count as victim Uran- any other evidence of an extraneous extraneous ga’s criminal mischief. crime or act that is beyond bad shown Therefore, to the extent that the record by reasonable doubt evidence to have the trial court’s supports conclusion been committed defendant or would remain unbiased—and which could be criminally he held re- contrary evidence to absent —we regardless sponsible, of whether he has say cannot our de novo review of the been previously charged finally with or affirmatively record reveals a clear *7 convicted of crime or act. of abuse the trial in court’s discretion 37.07, § Proc. Ann. art. 3. Uranga’s ruling Tex.Code motion for mistri- Crim. 37.07, extraneous, Under Article unad- al.31 judicated at issue properly offense could agree appellate We that the standard of In punishment be offered at the stage. review was whether the trial court abused fact, jurors encouraged it seems that are its discretion on the factual issue actual to in their punish a defendant deliberations agree bias. also that was no We there extraneous offenses offered at error. Therefore, punishment trial phase. judgments of the are courts below hearing question court’s on the of actual affirmed. and subsequent this regarding discussion mistrial was unnec- MEYERS, J., a concurring opinion. filed essary. PRICE, J., filed a dissenting opinion, Though long I have disliked Article HOLCOMB, J., which 37.07’s broad allowance for the consider- joined. 31.Id., 29. 247 S.W.3d Id., at 378-79. crimes, may even have a motive not to it nevertheless or he of extraneous
ation
For
disclose it.5 She continued:
resolution of this case.
controls the
reason,
concur.
respectfully
I
must turn on its own
While each case
facts, there are some extreme situa-
PRICE, J.,
dissenting opinion
filed a
justify
finding
tions that would
HOLCOMB, J., joined.
which
implied
examples
bias. Some
fanfare,
today
the Court
an-
Without
include a revelation that the
is
thing
there
no such
as the
nounces that
is
employee
prosecuting
an actual
of the
implied
bias.
Sixth Amendment doctrine
agency,
is a close rela-
thing
apparently
figment
The whole
participants
tive of one of the
in the
I
imagination.
am here
Justice O’Connor’s
transaction,
trial or the criminal
implied
to attest
bias doctrine
a witness or
that the
was
some-
does;
I have
it.
does exist.
I know
seen
how involved
the criminal transac-
pro-
tion.
or not the state
Whether
nearly unanimous
Writing for a
in a
of “no
ceedings
finding
result
dicta,
albeit in
years ago,
two-and-a-half
bias,”
the Sixth Amendment
to
provenance
described the
of the Sixth
not allow a
impartial jury
an
should
Amendment’s
bias doctrine.1 Af-
verdict to stand under such circum-
summarizing
holding
ter
the facts and
stances.6
majority opinion
Phillips,2
in Smith v.
view that
the Sixth
Justice O’Connor’s
concurring
I turned to Justice O’Connor’s
Amendment doctrine of
bias sur
explained:3
opinion
majority’s due-process analysis
vived the
joined
majority
Justice O’Connor
Phillips
was later
Smith v.
endorsed
in Smith v.
but wrote
Court,
by five members of the
albeit in
separately
express
her view
McDonough
separate opinions,
Power
due-process holding contained therein
v.
Equipment, Inc. Greenwood.7
application
did not “foreclose”
Indeed,
‘implied
Sixth Amendment doctrine “of
the Sixth Amendment doc-
appropriate
bias’ under
circumstances.”4
trine can be traced back at least as far
pointed
pro-
She
out that sometimes a
as
when the
Court ob-
spective juror’s
ability
objectively
own
served that
Amendment
“[t]he [Sixth]
gauge
impartiality may
impaired,
prescribes
specific
no
tests. The bias of
JJ.,
Morales,
(Tex.Crim.
O’Connor,
("it
concurring)
State
Stevens
App.2008).
option, in
remains within a trial court's
deter-
biased,
mining
whether a
to order a
*8
209,
940,
2. 455 U.S.
102 S.Ct.
309
may
actually
be actual or
never
prospective juror
reversed a conviction on
is,
implied
implied;
may
ques-
be
in fact or
basis
bias and have
that
bias
tioned
whether
doctrine
conclusively presumed
matter
survived
bias
as a
v.
Smith
notwithstanding
Jus-
of law.”8
have traced
genesis
Some
its
concurring
tice O’Connor’s
opinion.
Marshall’s
Chief Justice
1807 seminal
Those courts have nevertheless assumed
in
opinion
judge
as a circuit
the Aaron
(without deciding) that
the doctrine re-
v.
United States
Burr
in
treason trial
viable,
mains
but have held that
it did
Burr.9
its
provenance,
Whatever
apply
to establish a Sixth Amend-
recog-
doctrine
implied
has been
ment violation on the particular
facts
by
applied many
nized and
of the federal
presented.12
appeals,10
by
circuit courts of
and
some
appeals
of the courts of
Texas.11 A Since
time
we issued our
Morales,
few of the federal circuit
have
appeals
courts
the federal courts of
have
pointed
out
recognize
continued to
apply
and
the im
8. United
9. See United
10. The
Nell,
pra,
Brown,
Tenth Circuits
Dretke,
v.
State.
2004) (Cochran,
out
F.2d
395
05
S.Ct.
out
Chief Justice Marshall observed in
F.2d
Sixth
983-984
United States v.
128 F.3d
person may
pacitates
The end to be obtained is an
serving
eral
ity.
cause it
feel
to secure
Burr,
rehearing);
(7th
qualification. E.g.,
expressly invoking
such as to induce
(5th Cir.2003);
at 50:
697,
177,
316,
Amendment
526 F.2d
prejudice.
case;
138 S.W.3d
persons
declare that
plied bias doctrine.13
en
the doctrine as so
regards
Circuit
are so
that a
will
compromising
hearing
has seen
reverse a
that it
fit to
trenched
of an
satisfy
guarantee
impartial
not
of
conviction
the basis
capital murder
on a
jury. Determining actual bias
juror’s
even
rigorous
bias
under the
implied juror
with,
part
problematic
begin
is
“partly
ly
governing
criteria
federal
deferential
have an
juror may
because the
interest in
under
the Antiterrorism
review
habeas
partly
and
concealing his own bias
because
Penalty
Death
Act.14
Effective
it.”17
may
be unaware of
At a
Notwithstanding
durability
of the
point,
certain
for
potential
bias
bias,
implied
doctrine of
Amendment
Sixth
judges
reach such a level that
cannot de-
rejects it
today
almost effort-
the Court
pend on the time-honored tools for gaug-
only
majority
lessly, citing
ing
of
credibility, such as tone
voice and
for
But
Phillips
support.15
Smith v.
demeanor, to ascertain the trustworthiness
Phillips
Smith v.
decided under
impartiality.
claims of
While
re-
process
Fourteenth Amendment’s due
affording
hearing
the accused
which to
trial,
quirement
a fair
the Sixth
not
try to
out actual bias under
root
these
independent guarantee of an
Amendment’s
satisfy
may always
circumstances
impartial jury.
majority in Smith v.
procedural
protections
pro-
due
that “due
Phillips
process
observed
does
cess,
fairness,
meant to ensure basic
it will
trial
require
every
not
a new
time a
inadequate to
prove
sometimes
ensure
in a
placed
potentially
compro-
been
impartiality
pur-
for Sixth Amendment
As
mising situation.”16
Justice O’Connor
poses.
valid insight
Justice O’Connor’s
is
her concurring opinion,
emphasized
Phillips majority’s
v.
Smith
Four-
no inherent conflict between this
there is
teenth
process holding
Amendment due
co-existing
and the
process principle
due
may be
principle
ju-
Sixth Amendment
that some
harmonized with the Sixth Amend-
Frost,
787,
Cir.2005);
Norris,
(8th
v.
v.
United States
125 F.3d
529 F.3d
791-93
Cir.
346,
Cir.1997).
(6th
2008).
380
Scribner,
1227,
v.
F.3d
13. See Estrada
512
Dretke,
("We
supra,
14. See Brooks v.
at 329
("in
cases,
(9th Cir.2008)
extraordinary
1240
maintain that the doctrine of
bias is
may presume
courts
cumstances.”)
bias based on the cir
‘clearly
Federal law as
established
determined
(internal quotation marks
”
by
Supreme
purposes
Court’
for
of 28
Brazelton,
omitted);
v.
United States
557 F.3d
2254(d)(1),
requires
§
which
U.S.C.
federal
Cir.2009) ("The
750,
(7th
concept
753
of im
judges
judgments
habeas
to defer to the
law.”);
plied bias is well-established in the
particular
state
courts unless
state court
Quarterman,
595,
(5th
Hatten v.
570 F.3d
600
to,
judgment
"contrary
involved an un-
Cir.2009) ("There
is also
narrow class of
of, clearly
application
reasonable
established
by
relationships described
Justice O’Connor’s
law,
by
Federal
as determined
recog
v.
concurrence
Smith
States”).
the United
occasions,
nized
this court on several
biased.”).
presumed
can be
which
Majority opinion,
(holding
at 306
assume,
continues
with
The Sixth Circuit
Phillips
categorical
Smith v.
stands for the
deciding,
out
that the doctrine
proposition
hearing
invariably
will
that a
abides,
but does not in
event call for
prove
adequate procedure
to be an
for reveal-
particular
on the facts of the
reversal
case.
bias).
actual
Russell,
633,
United
641-42
States
F.3d
(6th Cir.2010);
Bagley,
Treesh v.
F.3d
Cir.2010).
(6th
16.
certain extreme they proceed
should refuse to to verdict up- appeal
hold a conviction on even in the face juror’s
of a confident assurances that he
can be fair Nothing and disinterested.
that I can majority opinion find
Smith v. Phillips necessarily contradicts
Justice insight, O’Connor’s much less ex- The STATE of Texas pressly rejects it. This Court’s reliance on that majority opinion today to disown the Sixth implied Amendment doctrine of Cody POSEY, Appellee. Joe is, view, my a grievous mistake. PD-0034-10, Nos. PD-0035-10.
Applying the doctrine of bias on case, the facts of this I would reverse the Court of Criminal of Texas. appellant’s conviction and remand the for a punishment hearing. cause new A Jan.
juror who unexpectedly turns out to be the
victim of one of the accused’s extraneous neatly
offenses does not fit into categories.
Justice O’Connor’s But her only
list was intended to be exemplary, not
exhaustive. I can think of few more com-
pelling motives a could have to im-
pose punishment on an improper basis
than the motive avenge some wrong
perpetrated by upon the accused
himself. That the extraneous offense the against committed relatively
this case is a benign property
offense makes no difference. It is still a
highly personal affront against juror.
The high potential for injecting personal
animus into the room during pun-
ishment against deliberations counsels our
trusting either the claim to indiffer-
ence or the efficacy any judicial admon-
ishment to ensure fairness.
The Sixth Amendment bias doc-
trine is alive ought and well and to be
applied on the facts of this case. The
Court should reverse judgment appeals
court of and remand the cause to
the trial punishment court for a new pro- 44.29(b).
18. Tex.Code Crim. Proc. art.