*1 any significant of cir- of out intervention reality, lapse time is a dence. In cumstance, of was factor from the factor interven- a confession obtained. distinct circumstances, the court made no ing cases, held, and as we each of those circumstances; intervening finding of here, that to sustain the State failed hold indeed, intervening record no reveals showing the was its of confession burden follows, significance. It of circumstances Thus, the trial court’s conclu- admissible. then, that the trial court’s conclusion thе confession was not obtained sion that appellant’s unau- between connection exploitation illegal an arrest of and was suf- thorized arrest his confession record, support and without intervening ficiently by the attenuated appellant’s admitting state- court erred no lapse sixty-five minutes has basis jury. ment into evidence before Accord, Hale the record and erroneous. statement, appellant’s than Other Cir.1973), (6th 266, Henderson, 485 F.2d v. probative State adduced no evidence of 930, denied, 94 S.Ct. 415 U.S. rt. ce 1442, guilt his fоrce before establish (1974). 39 L.Ed.2d posture charged. Given this the offense itself, in the factor Resultantly, the time record, pros- no can be further there intervening cir- significant absence of appellant on the indictment. ecution cumstances, appellant’s confes- admits that States, 437 Burks v. United U.S. illegal and was arrest produced sion 2141, 2147, 57 L.Ed.2d S.Ct. therefore, and, detention, was shown v. 437 U.S. 98 S.Ct. Massey, Greene Illinois, supra, Brown v. be admissible. 57 L.Ed.2d 2262; 604-05, at 422 U.S. 95 S.Ct. Us at Accordingly, judgment conviction 771; v. supra, at Green sery v. acquittal is judgment is reversed determination supra, at This here rendered. that the enforced the evidence conduct, a fourth-factor con- of the official investigatory in
sideration, patently was probable
nature. The arrest was without spe- for it given
cause the reason
cious; obviously was for the detention confession, evi-
extraction of produced at appellant’s culpability
dence conceding act-
trial. Even officers faith, good good their faith cannot ed YANEZ, Appellant, Santana Fourth Amend- justify a violation v. York, supra, 442 v. Dunaway ment. New Texas, Appellee. The STATE of 2259-60; 218-19, at 99 S.Ct. at Brown U.S. Illinois, supra, 422 at 95 S.Ct. U.S. v. 079-84. No. 771; 2262; State, supra, at Ussery v. at Texas, Appeals of of Criminal 708-09. at Green Banc. En appeal may situation in this The factual situa- replica Sept. of the factual said to be York, supra, Dunaway New tions Illinois, Ussery Brown v. In each supra.
supra, and Green cases, here, defendant was cause, illegally probable
arrested without investigation purpose of for the
detained hour in Duna-
during a of time—one period Brown, one hour to
way, hours two three Ussery, one-half hours until, with- hours in
and one-half Green— *2 PETITION FOR
OPINION ON STATE’S DISCRETIONARY REVIEW TEAGUE, Judge. Appeals,
The Eastland Court *3 Raleigh opinion by unanimous Justice Brown, ordered the conviction of Santana Yanez, appellant, reversed because to grant failed motion court oral ap- that for counsel urged. pellant had Yanez v. — — (Tex.App. —Eastland 1983). The reflects the motion record that immediately after the to shuffle was made “screened” trial had granted petition We for jurors. State’s discretionary follow- review to answer the determining purposes ing question: For to shuffle whether defendant’s motion jury the names of the members of assigned timely urged, his case panel does dire examination of the when the voir jury commence? immediately reflects record it had determined
after been which panel, jury appellant’s would of those counsel to have moved thereto, Prior рersons shuffled. jury had members of the judge Thereafter, qualifi sworn. he tested their cations, pro presumably in accord with V.A.C.C.P., after of Art. visions open court “drew—we clerk list], placed tore the names off [the box, up, them them a shuffled Bailiff them out Bailiff and I—the drew typed I them on the list.” the box and occurred, appellant After this for prospec the names of the moved appellant, jurors shuffled. Counsel for tive has, client, a Mexican- does who as surname, into the also stated American reason he wanted rеcord Garza, Lubbock, appellant. Tomas names of the members only there four were shuffled because Carroll, Atty., Dist. Russell L. Former Mexican-Americanson Belton, Arnett, Atty., Sweet- Dist. Norman the four persons. light of the fact that Atty., water, Ottaway, Dist. Asst. Andrew occupied positions Mexican-Americans Huttash, State’s City, Robert Colorado find his numbered Austin, for the State. Atty., usu In the request was a reasonable one. num- things, prospective juror al order judge bered 25 was the the four the facts Be- case. being stood a reasonable сhance of selected cause the cases too numerous to cite subject, a member that would simply we will refer the reader judge appellant’s 131(1); facts 2d, Jury Keys cause. The Digest 34 Texas 131(4); 131(2); 131(3); 131(7). See, record does not reflect whether how- appellant’s ever, post. Mexican-Americans served on
jury.
Although much has been written on what
prosecuting
objected
attorney
and function the voir
ex-
counsel’s motion to shuffle
and the trial
amination
a whole entails
serves,
denied the motion.
very
reseаrch reveals that
little
written on
Appellant was thereafter tried and con-
pertains
interroga-
the voir dire that
felony
victed
for the offense of
*4
tion and examination of the members of the
possession of
jury
marihuana. The same
jury panel commences.
appellant’s punishment
assessed
at four
years’
of
penitentiary.
confinement
the
Several members
this Court have ex-
pressed
subject,
their
al-
views
the
appeal,
On
the court of appeals ordered
though such
views
reflected in аn ob-
appellant’s conviction reversed.
It found
lique, rather than a direct manner.
appellant’s request
for a
shuffle
Presiding
urged,
Judge
ap-
Onion
this
timely
of
and then held that the trial
pears
adopted
to have
average
the
committed reversible error when it
lawyer’s
understanding
just
usual
grant
when
failed to
the motion to shuffle. We
the voir dire examination
the prospective
agree
holdings.
its
with
jurors
opinions
commences. In several
he
appears
disagreement
There
to be no
authored,
following
has
he has made the
principle
with
by
the
of law announced
this
statement: “At the
the
commencement of
Court that a
to
motion
shuffle the
dire
voir
examination of the
the
the
jury
members of
panel
must be
court,
objection by
over
appellant, limited
urged prior to the commencement of the
thirty (30)
apiece
both sides to
minutes
voir dire examination of
the members
interrogate
jury panel,”
v.
Barrett
panel.
the jury
State,
See Latham v.
656
State,
(Tex.Cr.App.
182
S.W.2d
479 (Tex.Cr.App.1983). There
1974)
Opinion),
(Dissenting
implying
thus
appears
also
disаgreement
be no
with
that the
commencement of
voir dire
principle
of law
announced
this
examination of
members
Court that a motion to
names of
panel
prosecuting attorney
occurs
when
members of
panel
is
question
commences to
members
urged by the accused after the voir dire
State,
jury panel.
see
662
Also
Homan v.
examination
the members of the
(Tex.Cr.App.1984),
373-74
S.W.2d
untimely
commenced
and need
Judge
Presiding
which
Onion made the fol-
granted
the trial judge. Latham
lowing statement:
record
“The
reflects
page
at
that at the commencement of the voir dire
However,
disagreement
there is
over
examination of the
for the
when the voir dire
of the pro-
examination
prosecutor
made clear-cut and concise
spective
actually commences.
regarding
principles
statements
repeat
We need not
applicable
here what has
law
to the trial of a criminal case
State,
stated
decisions of
Ring
...” Also see
450
S.W.2d
courts as to what
and function the
85
The views of thе
prospective
voir dire examination of
author of this
are in accord with
Presiding Judge
serves.
It is sufficient to state that
those of
Onion. See Whi-
objective
State,
(Dis-
of this
taker v.
783
J.);
senting Opinion by Teague,
cause
be assembled a com
Gentry v.
fair,
petent,
impartial,
unprejudiced State,
(Tex.Cr.App.
640
903
S.W.2d
1983) (Dissenting Opinion by
J.)
Thomas v.
Teague,
(Tex.
S.W.2d
1981)
Judge
App.
(No P.D.R.),
appears
McCormick of this Court
Worth
— Ft.
Port
Appeals,
these
Court of
Revia v.
share
same views. See
Worth
accord
decisions,
ance
with this Court’s
that a
held
(Tex.Cr.Aрp.1983)
motion
(Motion
to shuffle
the defendant was
change
timely
of venue is
filed
timely urged in that cause because it was
prior
if filed
to the
commencement
“prior
to the commencement of voir
jury panel by
examination of the
dire.”
prosecuting attorney.)
Judge
Clin-
appears
agree
ton also
with the above
Brown
judges as to
dire
when the voir
examination
1982),
(Tex.App.
(Appel-
Worth
—Ft.
commences. See Hicks v.
Refused),
lant’s P.D.R.
the Fort Worth
(Tex.Cr.App.
Appeals explicated
“prior
Court of
on what
1984) (Cоncurring Opinion), in
he
to the commencement of voir dire” meant
following:
addressing
stated the
“...
and made the determination that
the voir
dire,
at
commencement
the jury panel
examination of
com-
judge pointed
out and instructed
asking
menced
the trial judge
started
its
‘This
questions
members as follows:
case
as to
provides
capital
law
charging
murder.’
qualifications,
explained
their
when it
...” Hicks
doubt,
page
concepts
at
them
of reasonable
*5
indictments,
proof,
pre-
burden of
and the
Our
that
a
research reveals
when it was
sumption
innocence.
of
appeals,
Corpus
court of civil
the
Christi
however,
of Appeals,
Dallas Court
Central Power &
Appeals,
of
see
Court
appears
holding
in accord
with the
Martinez,
Light Company v.
Appeals
that
of
made in
the Eastland Court
1973),
(Tex.Civ.App. Corpus
Christi
—
Holman v.
this
In
cause.
Appeals,
and the then
of
Austin Court
Civil
1982) (State’s
(Tex.App.
S.W.2d 18
Atchison, Topeka
see and
Fe
Santa
— Dallas
Refused),
rejected
P.D.R.
that court
the
Ham,
Railway Company v.
the
of
notion that
the distribution of
lists
1970),
(Tex.Civ.App.
appear
to
— Austin
jury panel
the members of
to
names of
Presiding
have had the
views that
same
attorneys
to
respective
was tantamount
Judge Onion, Judge McCormick, Judge
process.
the commencement of the
dire
voir
Clinton,
and the author of this
have.
Archibald v.
In
1982) (State’s
Re
(Tex.App.
P.D.R.
— Dallas
present
under the
intermediate
Court,
fused),
expressly
the Dallas
without
ap-
system
court
this
courts of
of
stating
the voir dire examination of
when
agreement
in
peals of
are not
as
State
commenced,
impliedly
held
just
of
when the voir dire examination
that
not
until
it did
commence
commences.
seated
the courtroom.
cause,
Ap-
In this
Eastland
of
difficulty in
part
find that
We
peals, making
just
the determination of
examina
deciding just when
commenced,
the voir
when
dire examination
in the
tion of the
commences lies
periods
following
excluded the
of time:
fact
term “voir
examination”
that the
dire
judge
determina-
general
is a
term.
rather broad
jurors
of
who had
sum-
tion
what
present
appear
moned to
fact
for
Dictionаry
Law
were
Black’s
defines
jury duty;
term,
dire,”
following:
determination
whether
“voir
mean the
excuses;
excusing
those
grant
phrase
denotes
speak
“To
the truth. This
persons who had been summoned who
which the
preliminary examination
testing
a
exemptions;
may
presented
their
and the
court
make of one
as
claimed
qualifications
prospective
juror,
competency
where his
...
witness
Dictionary
to.” Black’s
Law
objected
present.
who
then
were
(5th
1979).
prose-
ed.
Also see
The Ameri-
defendant
his counsel and thе
Heritage
cuting
can
Dictionary
English
attorney
challenging prospective
cause,
Language
that,
least,
theory
Webster’s New
for
so
at
fair,
Collegiate
Dictionary
competent,
impartial,
unpreju-
each which a
term,
similarly
may
defines
Presiding Judge
“voir dire.”
diced
be seated.
“competent,”
The word
as
pointed
phase
con- Onionhas
out that the
text of the voir dire
examination
voir dire that involves the examination and
jurors,
interrogation
prospective jurors by
summoned
means make
de-
prosрective juror
whether
opportunity
termination
a
counsel for both
is the
sides
legally qualified
juror.
to serve as a
for
the prospective
Web-
scrutinize
Collegiate
ster’s New
Dictionary,
jurors and accumulate information on each
them,
may
the end
he
“to
form
own conclusion ... as to whether in coun-
From records in our
learn
archives we
juror]
judgment,
prospective
sel’s
[the
process
that the
Texas
acceptable
whether,
would be
him or
throughout
larg-
uniform
the State.
hand,
per-
the other
he
shоuld exercise
counties,
er
citizens
are
who
summoned for
emptory challenge
keep
[the
jury duty
usually
report
are
advised to first
juror]
jury.”
off the
La Rosa
De
room,
to a central
where those who
671 (Tex.Cr.App.1967).
appear
then
judge,
are
tested
who
judge
than
judge
be a
agreement
We find that
are in
preside
will
over the defendant’s cause.
implicit holding
ap
with the
That
makes the determination wheth-
peals
cause,
made in this
that the
er any
persons present
of those
are under
the voir dire
ex
involves the
disqualified
jurors.
law
to serve as
He
interrogation
amination
prospec
persons
also
excuses
why
hears
from
as to
tive
does not commence
it is
until
they
time,
should not
serve
have to
at that
first determined
will be
hearing
as well
who have
they
on the
*6
exemptions.
lawful
person
After the
sum-
seated in the courtroom.
jury duty
passed
phase,
moned for
this
35.11, Y.A.C.C.P., provides:
Art.
permitted
he is then
to become a member
judge, upon
The trial
demand of the de-
jury panel. Thus,
a
in
larger
coun-
fendant
his
or
attorney,
or
оf the State’s
ties,
the jury panel
once
arrives
the
counsel,
cause
shall
the names of all
assigned courtroom,
presum-
its members
general panel
members
or
drawn
ably
by
have been screened
some member
assigned jurors case to
placed
such
be
judiciary.
well-shaken,
receptacle
and
and
counties,
in our smaller
clerk shall drawn therefrom the names
screening process may be slightly different
of a sufficient
from
number
simply
only
because there
be
one dis-
jury may
try
which a
selected to
suсh
be
county.
trict
in the
case,
written,
names
such
shall be
drawn,
jury
the order
on the
list from
Nevertheless, we find that
there
two
jury
try
which the
is to
selected
be
things
larger
and smaller counties
case,
such
and write the names as drawn
First,
phase
common.
the first
upon
slips
paper
two
deliver
process
all
voir dire
used
slip to
State’s counsel and
judges
persons
to eliminate
who should not
attorney.
to the defendant or his
jurors,
legally
or
serve
cannot
or are
impossible
exempt
serving
many
and want to claim
would
Because it
be
their exemption. Lastly,
permit
the second
instances to
a shuffle of all the
of the
persons
sum-
relates to ex- names of those
who had been
service,
interrogation
amination and
appeared
trial moned and
this
judge,
prosecuting attorney,
and the
Court has restricted the
a shuffle
persons
defendant
in order to assist
of the
make
names
court,
right of
up
jury panels
which are
limitations
a
interrogate
to examine and
assigned to and seated in the courtroom defendant
guaranteed by Art.
рerson’s
prospective
cause
where the accused
will
E.g.,
of the Texas Constitution. Cook v.
Boatright
heard.
Sec.
(Tex.Cr.App.
1966).
Legisla
point
We also
out that the
Thus, a
a
that further
ture has enacted
statute
up
persons
who will make
right.
Art.
V.A.
guarantees this
See
place until
is first deter
cannot take
it
C.C.P.
up
mined
will
35.11, su
By
provisions
of Art.
they
jury panel for the
are seated
pra,
given
the defendant is also
the statuto
in the courtroom.
ry right to have shuffled the names
Commentary
the Practice
to Art. 35.-
In
who make
authored, Presiding
supra,
that he
jury that
panel from which will come the
Judge
made the follow-
Onion of this Court
judge the facts of his case.
will
gives recog-
ing observation: “This article
regard,
appears
find that Texas
practice, and
commonly
to a
nition
unique in that our research reveals
it
uniformity
procedure
apparently seeks
gives
of the Union that
State
throughout
regard
in this
the State. See
attorney
prose
defendant or his
or the
old Articles
and 628.”
cuting attorney
perogative of whether
Recently, in
Hall
redrawing
a shuffle or
or not there will be
(Tex.Cr.App.1983), this Court
of the names of the members
holding:
therefore
following
made the
“We
case.
panel assigned to the defendant’s
capital
do
that in
murder eases which
hold
Am.Jur.2d,
“Jury,” and 50
under
...,
time-
special
a
venire
not involve
C.J.S., under “Juries.”
ly
properly requested, the accused is
35.11, supra, has
find that Art.
We also
the names of those
entitled to have
of this
jurisprudence
roots in the
historical
assigned
in the courtroom
to and seated
Texas
Stat-
see Willson’s
Criminal
heard shuffled or
where the cause is tо be
(1888Edition);
Crim-
utes
White’s Code of
pointed out in Hall v.
redrawn.” We also
Edition).
(1895
But for
inal Procedure
that,
excepting the situation
present
changes
wording,
slight
venire,
special
there is not
involving a
much the same as its
statute is worded
pan-
meaningful
distinction between
precursors were worded.
capital
assigned to be voir dired
el
*7
jury panel assigned to
murder case and a
right
the names of the
to have
non-capital murder case.
dired in a
be voir
or re
of the
shuffled
members
State, supra,
did
we
drawn, however,
Hall v.
is not of constitutional
made
prospective jurors-
State,
that
who
dimension,
assume
see
Bellah
previously
jury panel
Estelle,
a
had been
up
(Tex.Cr.App.1967); Harris v.
418
screened;
thus,
erroneously assumed
(5th Cir.1974),
it man
nor is
Tex.Cr.R. recognition commonly prac- in of “a рertinent part the statute read: “uniformity proce- provide tice” and to “Provided, however, the trial State,” regard throughout dure in this judge, upon any party demand of Special Commentary 35.11. to Article by jury... shall case reached for trial citing Though always not earlier cases the cause the names of all the members in, teachings e.g., Court adhered to their general jury panel available ser- for State, 468 S.W.2d 87 Gonzales case, placed jurors vice as in such State, (Tex.Cr.App.1971); Dynes v. 479 receptacle in or other and well a hat (Tex.Cr.App.1972). It S.W.2d 676 held that judge shaken and said trial shall draw “(t)he jury panel assigned right to have the therefrom the of a sufficient num- clearly provided to a case redrawn is for jury may jurors ber of from which a be 35.11,” and that harm need not Art. be try such and such selected to shown when that is denied. Woerner names shall be transcribed on the 717, State, (Tex.Cr.App. 523 S.W.2d 718 list from which the is to be selected 1975). try such case.”1 Contemporaneously with Woerner v. literally proviso means some- Read noticed the Court that Article applied thing other than how it came to be point in 35.11 “is silent as to what time Indeed, practice. in actual the Court soon the trial of a case trial court must language above construed the underscored shuffle,” request... honor the Alexan- general to exclude “those members of the 720, (Tex.Cr. 721 523 S.W.2d der v. already [tested,] de- panel who had Upon analyzing relatively re- App.1975). service, courts tailed for and sent to other cent decisions it came to conclusion not, equally they in that “would entitled” prior thаt a demand must be made to voir case, could very and in the nature of the examination, partly otherwise because ” case,’ not, ‘available for service be an election to be permit “it would such 93, State, 117 Tex.Cr.R. Wright v. upon already elicited on based information (1931). “The reason for dire,” id., timely at 721. When thus question of the statute in is to rule deny a motion to shuf- made it is error to prevent any unfavorable order the list- 781' fle. Davis ing jurors give and to to the accused equal an chance to have deemed dictiоnary defini- majority resorts him, at the head of the list.” favorable to immediately finds dire and tions of voir Thus, judge when the trial offered “phases of the voir dire that there are two prospective jurors the names of “shuffle” first, qualification testing of process:” Wright remained in the court in which V.A.C.C.P., and, pursuant to Article tried, he tendered that which was to be second, may made examination as such right to have drawn proviso intended: “the relating grounds for a the trial service in his for available However, by its en- challenge cause. сase,” the rule was ibid. The reason for 35.17, V.A.C.C.P., the Article actment of thereby Accord: Hoebrecht v. satisfied. voir dire as that ex- Legislature perceived 126 Tex.Cr.R. prosecution by the amination conducted 132 Tex.Cr.R. and Moore v. terms, Thus, original in its and defense. see also De by amendments substantially altered Joyas Tex.Cr.R. direct dire examina- to “conduct the voir presence procedure the code of criminal tion When case; ordinary panel” in an arti- the entire article 626 and related revised *9 throughout by еmphasis supplied cated. All indi- unless otherwise writer of this capital felony upon either recognized by demand State is “is party entitled to juror examine each on trial addressing individually apart from the prospective jurors qualifica- whose panel...” entire perception That is con- satisfactorily tions tested ac- general proposition sistent with a ex- 35.12, cordance with Article Y.A.G.G.P. A § pressed 97, in 35 Tex.Jur.2d at 147: “Un- pursuant demand made pri- Article 35.11 practice der interrogate timely. or to that event is oрen veniremen on their voir dire is not Therefore, I in the judgment concur question.” Reich v. 94 Tex.Cr.R. the Court. 251 S.W. confirms proposition.2 Under Article su- pra, only capital felony case is a trial
judge authorized propound questions
concerning principles doubt, of reasonable proof, indictment, pre-
burden return of
sumption of opinion. innocence and
Accordingly, I would hold that voir dire
examination commences when counsel for phrase commonly In earlier Pendergrass times see also 121 Tex.Cr.R. experienced judges question- with reference to ing prospective jurors was "examination See, e.g., their voir dire.” Crow v. Tex.Cr.R. 230 S.W. 152 and 153