Elliott v. State

Court of Appeals of Texas

Elliott v. State

837 S.W.2d 821, 1992 Tex. App. LEXIS 2303, 1992 WL 206390

CourtCourt of Appeals of Texas

DecidedAugust 28, 1992

DocketNo. 12-91-00215-CR

StatusPublished

This text of 837 S.W.2d 821 (Elliott v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Elliott v. State, 837 S.W.2d 821, 1992 Tex. App. LEXIS 2303, 1992 WL 206390 (Tex. Ct. App. 1992).

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Opinion

COLLEY, Justice.

Appellant was convicted of aggravated sexual assault of a child by a jury who assessed his punishment at ninety-nine (99) years.

Under his sole point of error, Appellant argues that the court committed reversible error by overruling his motion to redraw (shuffle) the jury panel under Tex.Code CRIM.PROC.Ann. art. 35.11 (Vernon 1989) (hereinafter “Article 35.11”). We agree, and reverse the judgment and remand the cause.

The record reveals without dispute that the list of jurors was redrawn by the clerk on the State’s motion before the panel was seated in the courtroom. When the redrawn list of jurors were seated, the Appellant made a motion to “shuffle” the jurors. The court denied the motion.

In Contreras v. State, 733 S.W.2d 646, 647-48 (Tex.App. — San Antonio 1987, pet. ref’d), the court interpreted article 35.11 as mandating only “one shuffle” on the motion of either the State or the Defendant, provided the jury panel was seated in the courtroom in the order as originally drawn or summoned when the motion was made. On the other hand, in circumstances like those here, where the State’s motion to “reshuffle” the jurors was made and granted before the jurors were seated in the courtroom, the Appellant was entitled to have the panel redrawn (reshuffled) after he had the opportunity to observe the order in which they were seated. Stark v. State, 657 S.W.2d 115, 116 (Tex.Cr.App.1983); Smith v. State, 648 S.W.2d 695 (Tex.Cr. App.1983); see also Jones v. State, 833 S.W.2d 146 (Tex.Cr.App.1992). We sustain Appellant’s point of error, reverse the judgment and remand the cause for a new trial. [822]*822Wilkerson v. State, 681 S.W.2d 29, 30 (Tex. Cr.App.1984).

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COLLEY, Justice.

Appellant was convicted of aggravated sexual assault of a child by a jury who assessed his punishment at ninety-nine (99) years.

Under his sole point of error, Appellant argues that the court committed reversible error by overruling his motion to redraw (shuffle) the jury panel under Tex.Code CRIM.PROC.Ann. art. 35.11 (Vernon 1989) (hereinafter “Article 35.11”). We agree, and reverse the judgment and remand the cause.

The record reveals without dispute that the list of jurors was redrawn by the clerk on the State’s motion before the panel was seated in the courtroom. When the redrawn list of jurors were seated, the Appellant made a motion to “shuffle” the jurors. The court denied the motion.

In Contreras v. State, 733 S.W.2d 646, 647-48 (Tex.App. — San Antonio 1987, pet. ref’d), the court interpreted article 35.11 as mandating only “one shuffle” on the motion of either the State or the Defendant, provided the jury panel was seated in the courtroom in the order as originally drawn or summoned when the motion was made. On the other hand, in circumstances like those here, where the State’s motion to “reshuffle” the jurors was made and granted before the jurors were seated in the courtroom, the Appellant was entitled to have the panel redrawn (reshuffled) after he had the opportunity to observe the order in which they were seated. Stark v. State, 657 S.W.2d 115, 116 (Tex.Cr.App.1983); Smith v. State, 648 S.W.2d 695 (Tex.Cr. App.1983); see also Jones v. State, 833 S.W.2d 146 (Tex.Cr.App.1992). We sustain Appellant’s point of error, reverse the judgment and remand the cause for a new trial. [822]*822Wilkerson v. State, 681 S.W.2d 29, 30 (Tex. Cr.App.1984).

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837 S.W.2d 821, 1992 Tex. App. LEXIS 2303, 1992 WL 206390, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elliott-v-state-texapp-1992.

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