Gobert v. State

717 S.W.2d 21, 1986 Tex. Crim. App. LEXIS 755

• Court: Court of Criminal Appeals of Texas
• Decided: June 11, 1986
• Docket: No. 604-85
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for possession of heroin. After the jury found appellant guilty, punishment was assessed by the court at 15 years.

The Ninth Court of Appeals (Beaumont) reversed the conviction and remanded the cause to the trial court finding that counsel for appellant was absent during the time when the prosecutor injected harmful material into the voir dire (Gobert v. State, 690 S.W.2d 107, April 24, 1985). We granted the State’s petition for discretionary review to examine this holding.

Upon the case being called to trial the State through its prosecuting attorney announced ready for trial and the court stated “Defense counsel is absent but the Defendant is present.” After explaining the meaning of voir dire examination, and introducing the two prosecutors who would be trying the case for the State, the court noted, “Mr. Jim DeLee is the defense attorney and he is back in the back, I think. He will be here in a few minutes and will be representing Mr. Gobert.” The court then continued with its instructions and recognized one of the prosecutors, Mr. Wagner, who began voir dire examination:

“MR. WAGNER: My name is Ben Wagner. I work for Mr. McGrath. The case that we are going to try today is a possession of heroin. The first thing I want to say is that possession in the state of Texas is a second degree felony and the range of punishment for a second degree felony is between two and 20 years in the Department of Corrections and up to a $10,000 fine. I want to start off at the very beginning by telling you in situations where you have a second degree felony and a person who is charged with a second degree felony has been previously convicted of another felony, that second degree felony becomes a first degree felony and the range of punishment on a first degree felony in Texas is between five and 99 years or life and up to a $10,000 fine. That is extremely important.

“So let me give you a fact situation hypothetically. You have a person charged with possession of heroin, that being a second degree felony. Previously, prior to that he was charged with and convicted of possession of heroin in the past. That would make this second degree possession of heroin a first degree felony, the range of punishment being between five and 99 years or life and up to a $10,000 fine.

“Now I represent the State of Texas and my client is the State of Texas. My duty in so doing is to try to get my client a fair trial. In the same manner defense attorney is going to attempt to get his client a fair trial. Now in order for me to get my client a fair trial I am entitled to a jury that, can consider the full range of punishment. That is, if I show you that a person has been charged with possession of heroin and I can show you that there has been a prior possession case, generally, can you consider the full range of punishment?”

It was at this point that the record reflects the presence of counsel for appellant for the first time:

“MR. DeLEE [defense counsel]: Your Honor, may we approach the bench for a second?

“THE COURT: Yes, sir.

(Conference between the court and counsel outside the hearing of the jury and the reporter, after which the following proceedings were had:)

“MR. DeLEE: But would the record reflect defense counsel makes an announcement of not ready in this case, Your Honor?

“THE COURT: The record will show defense counsel is not ready.

“MR. DeLEE: By virtue of the unavailability of witnesses and also by virtue of the fact this is the third case scheduled for me this morning?”

After the court had stated “Go ahead” the prosecutor resumed voir dire examination.

The record reflects that the prosecutor then questioned fifteen members of the panel individually as to whether he or she could assess punishment of 99 years or life where a person charged with the second degree felony of possession of heroin had before been convicted of the felony offense of possession of heroin. While the questions varied somewhat in the way they were stated, the substance was the same. The question was then asked generally of all members of the panel. No objection was voiced by appellant to questions regarding the ability of prospective jurors to assess punishment of 99 years or life under the circumstances outlined by the prosecutor.

The Court of Appeals relied on our opinion in Eason v. State, 563 S.W.2d 945 (Tex. Cr.App.1978). In Eason the entire voir dire was conducted in absence of counsel for the defendant. As in the instant case, there was nothing in the record to show that the defendant had knowingly and intelligently waived his right to be represented by counsel at the voir dire examination of the jury panel.

In Eason, we held:

“Both Art. 1, Sec. 10, of the Texas Constitution and Art. 1.05, Vernon’s Ann.C. C.P., provide that an accused person shall have the right of being heard by himself or counsel or both. This right, which is guaranteed by the Constitution and statutory law, carries with it the right to have counsel interrogate the members of the jury panel ‘to the end that he may form his own conclusion, after his personal contact with the juror, as to whether in counsel’s judgment he would be acceptable to him or whether, on the other hand, he should exercise a peremptory challenge to keep him off the jury.’ De La Rosa v. State, 414 S.W.2d 668, 671 (Tex.Cr.App.1967). Numerous decisions by this Court have discussed the importance of the right to have counsel participate in the voir dire examination of the jury panel. Some of the more recent examples are Smith v. State, 513 S.W.2d 823 (Tex.Cr.App.1974); Burkett v. State, 516 S.W.2d 147 (Tex.Cr.App.1974); Barrett v. State, 516 S.W.2d 181 (Tex.Cr.App.1974); and Abron v. State, 523 S.W.2d 405 (Tex.Cr.App.1975). Consequently, it may be seen that the voir dire examination of a jury panel is a critical stage of a criminal prosecution at which the right to counsel attaches.”

A trial court should be ever vigilant to see that counsel is present at all times during the course of the trial. While the trial court runs the risk of depriving an accused of the assistance of counsel anytime it proceeds without the presence of counsel, in Heredia v. State, 528 S.W.2d 847 (Tex.Cr.App.1975) we held no deprivation to the right of counsel was shown where counsel for the defendant arrived “two or three minutes” after the State began its examination of a member of the panel and counsel was not denied the right to examine the prospective juror.

Unlike Eason, where counsel was absent during the entire voir dire examination, appellant in the instant case only contends that counsel was absent from the beginning of voir dire until such time as the record reflects that counsel asked that he be allowed to approach the bench. There is no suggestion that counsel for appellant was absent at any other stage of the trial.

The Court of Appeals’ holding is bottomed on the fact that counsel was absent at a time “when the prosecutor had injected harmful material into the voir dire.” In its opinion the Court of Appeals cited Frausto v. State, 642 S.W.2d 506 (Tex.Cr.App.1982) for the proposition that the State may not inform the jury panel at the outset of the trial of the specific allegations contained in the enhancement paragraph of a particular defendant’s indictment and noted that the prosecutor in the instant case “went too far in his fact situation hypothetically.”

Art. 36.01(1), V.A.C.C.P., provides in pertinent part that “when prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment is held as provided in Article 37.07 [V.A.C.C.P.].”

In Frausto, we found that the meaning and scope of Art. 36.01(1), supra, were violated where the prosecutor “recounted virtually all of the allegations contained in the enhancement paragraph of the indictment, including the offense, cause number, date and court of conviction.” In Frausto the rule was stated “a prosecutor may inform the jury panel of the range of punishment applicable if the State were to prove a prior conviction for enhancement purposes, but it may not inform the jury of any of the specific allegations contained in the enhancement paragraph of a particular defendant’s indictment.”

In the instant case the only arguably specific allegation of the case relied on for enhancement mentioned by the prosecutor in his voir dire was that the prior offense was possession of heroin, a matter which was mentioned in voir dire of individual members of the panel after counsel for appellant returned to the courtroom. Throughout such examination counsel never raised an objection. Under the circumstances of this case, we perceive no harm to appellant and find that he was not deprived of the assistance of counsel.

The judgment of the Court of Appeals is reversed and the cause is remanded to that Court for treatment of appellant’s other grounds of error.¹

CLINTON, J., concurs in the result.

1 . We note that the Court of Appeals has already reviewed the sufficiency of the evidence and found' it sufficient to sustain the conviction.