Armstrong v. State

897 S.W.2d 361, 1995 Tex. Crim. App. LEXIS 34, 1995 WL 131964

• Court: Court of Criminal Appeals of Texas
• Decided: March 29, 1995
• Docket: 540-93
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

A jury convicted appellant of murder, pursuant to V.T.C.A. Penal Code, § 19.02, and sentenced him to life imprisonment. Appellant’s conviction was affirmed by the Sixth Court of Appeals. Armstrong v. State, 838 S.W.2d 323 (Tex.App. — Texarkana 1992), vacated on other grounds, 845 S.W.2d 909 (Tex. Cr.App.), on remand 850 S.W.2d 230 (Tex. App. — Texarkana 1993). On appeal appellant argued that the trial court erred in denying his motion for new trial based on misconduct by both a juror and the prosecutor during voir dire. The court of appeals held that there was no misconduct and that the trial court did not abuse its discretion in denying appellant’s motion for new trial. We granted appellant’s petition for discretionary review to examine this holding. Tex.R.App. Pro., Rule 200(c)(3).

I.

On appeal, appellant claimed there was juror misconduct during voir dire because panel member Marilyn Thornburrow, who subsequently became the jury foreperson, did not disclose her relationship to the county attorney, Tom Wells, who was one of the prosecutors in appellant’s trial. Appellant claimed that he was harmed because, had he known of the relationship, he would have used either a challenge for cause or a peremptory strike against Thornburrow.

During voir dire, the trial judge asked the following questions:

“Now, are there any of you who have any — well, I will say are so well acquainted with Mr. Wells — I know that most of you know him, he hopes that all of you know him — or with Mr. Ashmore in his office, or Mr. Chuck Superville, that’s another assistant, or Mr. Scott McDowell? They are the prosecution staff. Are there any of you who are so well connected with them or acquainted or associated with them that it might affect your verdict? I take it there are none.

Are there any of you who have any special connection with the County Attorney’s office, perhaps a close friend in the office, secretary, investigator or the like?”

Thornburrow, along with all the other panel members, did not respond to these questions.

Later, the prosecuting attorney asked the following question:

“Sometimes we fail to ask a questions (sic) that touches on your qualifications. My question to you at this time is is there anything that any of you can think of that touches on your qualifications not in just any case but in this specific case that you think needs to be pointed out to me and Mr. Jackson [the defense attorney] and the court at this time? If so, raise your hand and you may want to approach the bench and tell it to the court out [of] the presence of the other jurors.”

Thornburrow did not respond to this question. For his part, defense counsel did not ask any questions concerning possible relationships between any of the panelists and any of the prosecutors.

At the hearing on appellant’s motion for new trial, there was undisputed evidence that Thornburrow had known Wells for approximately 26 or 27 years and described him as a friend; Thornburrow’s husband and Wells had been the “best man” in each other’s weddings; Thornburrow’s husband was serving as Wells’ campaign treasurer during the time of trial and had served in that capacity in the 1988 campaign.

Thornburrow testified at the hearing on the motion for new trial that she had answered all the questions at the voir dire honestly. She testified that her silence in response to the first question by the judge was the appropriate response because her relationship with Wells would not affect her ability to be fair as a juror:

“I answered his question fairly. His question was did we know anyone well enough to keep us from being fair, and my response indicated that I knew no one well enough to keep myself from being fair.”

She testified that her silence in response to the second question by the judge was the appropriate response because she understood the question to be asking about auxiliary staff in the county attorney’s office:

“That was the second question that the judge asked. He had already asked the question about the prosecutors and I responded that I could be fair. When the second question was asked, I took that to mean the auxiliary help in the county attorneys office, and I do not know anyone in the county attorney’s office.”

She testified that she did not respond to the prosecutor’s question because:

“I felt that I had already answered the question.... I felt like I had already responded about the fairness and I did not come forward.”

Thornburrow also testified that she was expecting someone to ask whether or not she knew Wells. No one did:

“Q. [defense counsel] But you say in your affidavit that you were waiting to be asked the question about your relationship to Tommy Wells and no one ever did. Correct?

A. I was assinning that you would ask a question of all the jury panel.”

The court of appeals, citing Jones v. State, 596 S.W.2d 134,137 (Tex.Cr.App. [Panel Op.] 1980), held that there was no juror misconduct. No material information was “withheld” because no one ever asked the panelists if they knew or were acquainted with the prosecutors — no one ever asked Thornbur-row if she knew or was acquainted with Wells. The questions by the trial judge and the prosecutor were subjective in nature. If Thornburrow concluded that her acquaintance with the prosecutor would not affect her ability to be a fair juror, then the appropriate response to those questions was no response. Accordingly, the court of appeals held the trial court did not abuse its discretion by denying appellant’s motion for new trial.

II.

The voir dire process is designed to insure, to the fullest extent possible, that an intelligent, alert, disinterested, impartial, and truthful jury will perform the duty assigned to it. Jones, supra, at 137; De La Rosa v. State, 414 S.W.2d 668 (Tex.Cr.App.1967). When a juror withholds material information in the voir dire process, the parties are denied the opportunity to exercise their challenges, thus hampering their selection of a disinterested and impartial jury. Salazar v. State, 562 S.W.2d 480, 482 (Tex.Cr.App. [Panel Op.] 1978). However, defense counsel has an obligation to ask questions calculated to bring out that information which might be said to indicate a juror’s inability to be impartial and truthful. Jones, supra, at 137. Unless defense counsel asks such questions, the material information which a juror fails to disclose is not really “withheld.” Id.

In this instance, defense counsel did not ask the questions needed to elicit the desired information.¹ Given our holding in Jones, we cannot say the court of appeals erred to find that there was no juror misconduct.²

Appellant also argued on appeal that the trial court erred in denying his motion for new trial because the county attorney, Wells, did not disclose his relationship with Thorn-burrow. Although appellant included this allegation in his point of error regarding juror misconduct, appellant appeared to be making an independent claim of prosecutorial misconduct. Appellant claimed that the prosecutor had an affirmative duty to disclose this relationship to the defense and that this duty arose under the Disciplinary Rules of Professional Conduct, Rule 3.09, and under Article 2.01, V.A.C.C.P.³ The court of appeals was not convinced that the prosecutor’s conduct in this case was contrary to any disciplinary rule or to Article 2.01.⁴ Furthermore, the court of appeals could find no authority for the proposition that a prosecutor has an affirmative duty to volunteer information that defense counsel could have easily obtained by questioning the panel. The court of appeals therefore concluded that the trial court did not abuse its discretion in denying appellant’s motion for new trial.

III.

This Court has previously held that the State has no obligation to furnish defense counsel with information on prospective jurors where the information was readily available to the defense on voir dire. Linebarger v. State, 469 S.W.2d 165, 167 (Tex.Cr.App. 1971); Enriquez v. State, 429 S.W.2d 141, 145 (Tex.Cr.App.1968); Martin v. State, 577 S.W.2d 490, 491 (Tex.Cr.App.1979); Redd v. State, 578 S.W.2d 129,131 (Tex.Cr.App.1979). The conclusion of the court of appeals is certainly consistent with these holdings. We cannot say the court of appeals erred to find that there was no prosecutorial misconduct.⁵

The court of appeals used the correct analysis in reviewing the trial court’s denial of appellant’s motion for new trial. See Arcila v. State, 884 S.W.2d 357, 361 (Tex.Cr.App. 1992). Accordingly, we affirm the judgment of the court of appeals.

1 . Appellant argues that defense counsel is entitled to rely on the questions asked by the court and prosecutor. This is correct. However, neither the court nor the prosecutor asked the jury panel the necessary question — did anyone know Wells. Appellant claims that the questions by the trial judge and the prosecutor were obviously attempting to elicit the information which venire-person Thornburrow withheld. However, a review of the entire voir dire supports the court of appeals’ analysis.

First, before the panel was questioned regarding the prosecutors, the judge questioned them concerning the defendant and the victim. The judge first made some general observations:

“Now, there are certain basic things that we need to know going in, and one of them is whether or not you might be so well acquainted or even related to either the alleged victim or the defendant that it would preclude you from basing your verdict entirely on the evidence. Now, of course in a county like this we know a lot of people and there may be some of you that know the defendant or the alleged deceased. The mere fact that you may know them would not automatically disqualify you. It’s a question of whether or not the acquaintance and the relationship is such that it would keep you from honing in on the evidence and basing your verdict entirely on the evidence. It might prejudice you, in other words.”

Then the judge asked if anyone knew the defendant and if so to raise their hands. At this point the judge questioned those panel members individually. Some were excused, some were not. After that was finished, the judge asked if anyone knew the victim and if so to raise their hands. The judge then proceeded to question these panel members individually. However, when the judge questioned the panel members regarding the prosecutors (and subsequently, about the defense attorneys) the questioning procedure used by the judge was noticeably different. See p. 366, ante.

Second, the procedure used by the judge in questioning the panel on pretrial publicity was strikingly similar to the procedure used in questioning the panel regarding the prosecutors. Initially the trial judge asked whether any of the panel members had read or heard anything that might affect their ability to be fair and impartial:

“Now, it my [sic] be that some of you may have received some information about this case which might affect your verdict in the case, perhaps you have read something. I recall that it was written up in the newspaper. Of course, the mere fact that you read about the case in the paper wouldn’t disqualify you, or heard something about it on the radio. The question is whether or not what you have heard or read you would regard as evidence and whether it might affect your verdict in the case. Is there anyone who would be affected by any publicity that the case has received?”

No one in the panel responded. Later the prosecutor asked if anyone had read about the case in the newspaper, heard about it on the radio, or had any conversations about it. Numerous jurors responded affirmatively and the prosecutor then questioned them individually as to whether this would affect their ability to be fair. Thorn-burrow was one of these jurors.

2 . The dissent faults us for failing to find Von January v. State, 576 S.W.2d 43 (Tex.Cr.App. 1978), controlling. Slip op. at 370. In Von January the defense attorney asked the jury panel if anyone knew the victim or the victim’s family. Veniremember Dunn did not reveal that he knew the victim and his family. The jury panel here was not simply asked if they knew Tom Wells or if they knew any of the prosecutors in the County Attorney's Office. The panel was asked if they knew any of them so well that it might affect their verdict. Von January is distinguishable as it involved a direct and unambiguous question — do you know the victim? — whereas here the question required the veniremembers to determine whether any knowledge they had would affect their decision making — do you know anyone so well that it might affect your verdict? In Von January this Court stated that it was not the juror's function to decide whether his relationship to the subject of the question made him unacceptable. Here, however, that is essentially what the jurors were being asked to decide.

The dissent also argues that, regardless of the words used, the intent of the questions was "clear.” The trial court's questions were “clearly” meant to determine whether any of the panel had friends in the County Attorney’s Office. Even if this assumption by the dissent is accurate it would not alter the holding in this case. First, the role of the juiy panel members is to answer the questions which they are asked, not to attempt to divine the intent of the questioner. Von January, 576 S.W.2d at 45. Second, what is “clear" to the dissent is not so obvious to eveiy-one else. The questions did not have this "clear” meaning to venireperson Thornburrow, County Attorney Wells, the trial judge (who denied the motion for new trial), the court of appeals, or, now, a majority of this Court. Third, the dissent's contention that the intent of the questions was such that Thomburrow's responses constitute withholding information is contrary to this Court’s holding in Jones, supra. In Jones the defense attorney asked the juiy panel if anyone had close friends engaged in law enforcement. Venireperson Martinez did not reveal that she had previously been employed as a jail guard. This Court held that the venireperson did not withhold material information. "Clearly” defense counsel was interested in determining whether anyone on the panel was biased in favor of law enforcement; however he did not ask the questions which were necessary to bring out this information.

3 . Appellant predicated his argument on the former Code of Professional Responsibility, Ethical Consideration 7.13. As the court of appeals noted, effective January 1, 1990, more than a year prior to the trial in this case, article 10 § 9 of the Disciplinary Rules of Professional Conduct was adopted and the former Code of Professional Responsibility was repealed.

Current Rule 3.09, Special Responsibilities of a Prosecutor, reads:

"The prosecutor in a criminal case shall:

(a) refrain from prosecuting or threatening to prosecute a charge that the prosecutor knows is not supported by probable cause;

(b) refrain from conducting or assisting in a custodial interrogation of an accused unless the prosecutor has made reasonable efforts to be assured that the accused has been advised of any right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

(c) not initiate or encourage efforts to obtain from an unrepresented accused a waiver of important pre-trial or post-trial rights;

(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and

(e)exercise reasonable care to prevent persons employed or controlled by the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.07.”

Comment 1, Rule 3.09, Source and Scope of Obligations, reads, in relevant part:

"1. A prosecutor has the responsibility to see that justice is done, and not simply to be an advocate. This responsibility carries with it a number of specific obligations_ [A] prosecutor is obliged to see that the defendant is accorded procedural justice, that the defendant’s guilt is decided upon the basis of sufficient evidence, and that any sentence imposed is based on all unprivileged information known to the prosecutor. See paragraph (d).”

Vernon’s Tex.Gov't Code Ann., Title 2, Subt. G, App. A, Art. 10 § 9 (1994).

Current Article 2.01, V.A.C.C.P., reads, in relevant part:

"It shall be the primary duty of all prosecuting attorneys, including special prosecutors, not to convict, but to see that justice is done.”

4 . The prosecutor testified, at the hearing on the motion for new trial, that he believed that Thom-burrow had truly and accurately answered all questions posed to her and that she would be fair and impartial. He further testified he had considered striking Thomburrow because she was a liberal Democrat. Thomburrow testified that she had previously served as a juror in a criminal trial in which Wells was the prosecutor and that she had voted to acquit the defendant in that case.

Appellant does not argue, and the evidence would not support the argument, that Thombur-row was biased against appellant and that Wells kept their relationship a secret so that Thombur-row could get on the jury in order to help the State.

5 . In any event, violations of disciplinary rules are to be dealt with by means of the administrative mechanisms set forth within those rules. See and cf. Gentry v. State, 770 S.W.2d 780, 791 (Tex.Cr.App.1988); Henrich v. State, 694 S.W.2d 341, 342 (Tex.Cr.App.1985); Pannellv. State, 666 S.W.2d 96, 98 (Tex.Cr.App.1984) (violation of a disciplinary rule is not grounds for exclusion of evidence under Article 38.23, V.A.C.C.P.). A violation of a disciplinary rule by the prosecutor, in and of itself, would not mandate a reversal of appellant’s conviction.

If appellant believes that the county attorney violated the Disciplinary Rules of Professional Conduct (a matter about which we express no opinion), he is free to contact the State Bar.