Decker v. State

717 S.W.2d 903, 1986 Tex. Crim. App. LEXIS 829

• Court: Court of Criminal Appeals of Texas
• Decided: September 24, 1986
• Docket: 67567
• Status: Published

Opinions

OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of burglary of a habitation; the punishment is imprisonment for ten years and one day.

The appellant asserts the trial court erred in refusing to allow him to peremptorily strike the juror L.J. Rich so that he might be replaced by another juror, even though Rich had been impaneled. Ordinarily there is no right to challenge a juror peremptorily after the juror has been sworn to try the case; Carrasco v. State, 101 Tex.Cr.R. 91, 274 S.W. 155 (Tex.Cr.App. 1925); Crow v. State, 89 Tex.Cr.R. 149, 280 S.W. 148 (Tex.Cr.App.1921); but the circumstances here are not such as ordinarily occur.

During jury voir dire appellant’s counsel asked if any of the panel members knew the complainant John Oliver. One of the panel members stated that he did. Several questions and answers were exchanged between the appellant’s counsel and Mitchell, the panel member. This colloquy was before the panel, but no other panel member stated that he knew the complainant. The jury selection continued, the State and defense made their peremptory challenges, the jury was sworn, and excused for lunch.

After lunch but before the trial on the merits commenced, there was a hearing in which L.J. Rich, the juror who had been selected, impaneled, and sworn, testified. After he had been selected and sworn as a member of the jury he “recognized” the complainant. (The record is not clear, but apparently Rich saw and recognized the complainant during the lunch period.) Rich knew the complainant and testified they were welders on the same job and had been for several months. He testified he knew nothing about the case and his acquaintanceship with the complainant would not affect his duties as a juror.

After Rich testified, appellant’s counsel stated he did not believe that Rich could be challenged for cause, but if he had had the information Rich now revealed about his acquaintanceship and work with the complainant he would have used one of his strikes to peremptorily challenge Rich and said: “So, I object to the use of this juryman and move that we have a mistrial at this time and a new juror be picked.” (Emphasis added) The court summarily overruled the motion and objection and proceeded with the trial.

The appellant’s counsel, dutifully in defense of his client, severely cross-examined the complainant and also at both stages of the trial offered testimony which tended to cast an unfavorable image of the complainant. The juror Rich was elected foreman of the jury, and signed the verdict.

Apparently Rich was not intentionally deceptive in failing to disclose his relationship with the complainant; nevertheless, this relationship was not made known to the appellant’s counsel when he asked a specific question to elicit such information. Counsel did not have this information when he exercised his peremptory challenges. Similar cases are Von January v. State, 576 S.W.2d 43 (Tex.Cr.App.1978) and Salazar v. State, 562 S.W.2d 480 (Tex.Cr.App.1978), both of which were reversed because jurors did not divulge important information which could have been used in exercising peremptory challenges. This case is unlike Babin v. State, 149 Tex.Cr.R. 339, 194 S.W.2d 563 (Tex.Cr.App.1946), in which the juror said he knew the deceased when he saw him; this placed counsel on notice that an acquaintanceship existed between the juror and victim; the nature of that relationship counsel could have determined by further interrogation of the prospective juror.

In view of the relief requested by counsel, and even though the jury had been sworn in this case, it would have been proper for the court to have excused Rich and utilized a procedure to select another juror much like that used in Williams v. State, 631 S.W.2d 955 (Tex.App.—Austin 1982). In that case, after a jury was selected but before being sworn, one juror became ill and was excused for cause. The court allowed the State and defendant to voir dire five prospective jurors and gave each two peremptory challenges to replace the juror excused.

In the instant case defense counsel used diligence to determine facts so that he could intelligently exercise his peremptory challenges, but he was denied important information by the prospective juror Rich, although Rich apparently did not intend to deceive.

The appellant has also urged that if the evidence he asserts was unlawfully obtained is excluded, the evidence is insufficient to support his conviction. He says the confession offered by the State and admitted by the court was obtained after his unlawful arrest and it was tainted by his giving of an earlier confession taken without compliance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The affidavit and warrant under which appellant was arrested are not in the record; we cannot, therefore, determine whether appellant’s arrest was unlawful. Strangely enough the earlier confession, the giving of which the appellant says tainted the confession offered by the State, was offered in evidence before the jury by the appellant and admitted by the court as defense Exhibit Number One. Therefore, the appellant waived his objection to the admission of the confessions. The record would support a finding that the money obtained from the appellant’s residence was obtained by his consent. This being the rather bizarre state of the record, it appears that the appellant’s complaints concerning the admission in evidence of the confession and evidence concerning the money taken from his residence are without merit and the evidence would support the verdict.

Since the appellant was denied his right to peremptorily challenge a prospective juror, the judgment will be reversed.

The judgment is reversed and the cause remanded.

ONION, P.J., and CAMPBELL, J., dissent.