Michael Edwin Hicks v. State

• Court: Court of Appeals of Texas
• Decided: March 31, 2020
• Docket: 01-18-00603-CR
• Status: Published

Opinion

Opinion issued March 31, 2020

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-18-00603-CR ——————————— MICHAEL EDWIN HICKS, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 235th District Court Cooke County, Texas Trial Court Case No. CR16-00449

CONCURRING OPINION

Defense counsel did not ask potential jurors whether any of them were related

to the judge or prosecutor. The judge’s brother and the prosecutor’s brother-in-law

were seated on the jury. On appeal, Michael Edwin Hicks contends that the judge

and prosecutor were obligated to disclose the presence of relatives in the jury pool and that the selection and service of these relatives as jurors deprived him of his

constitutional right to an impartial jury. As it must, the majority rejects Hicks’s claim

based on Armstrong v. State, 897 S.W.2d 361 (Tex. Crim. App. 1995) (per curiam).

I agree that Armstrong disposes of Hicks’s complaint and thus concur in the

majority’s opinion, but I write separately to urge Armstrong’s abrogation.

Prosecutor’s Brother-in-Law

The Sixth Amendment to the United States Constitution guarantees a

defendant the right to be tried by an impartial jury. The Texas Constitution likewise

does so. TEX. CONST. art. I, § 10. In service of this guarantee, a defendant may

challenge for cause a potential juror who is related within the third degree of

consanguinity or affinity to the prosecutor. TEX. CODE CRIM. PROC. art. 35.16(c)(1).

The prosecutor’s brother-in-law is related within the third degree of affinity

and thus is subject to challenge for cause. See id.; TEX. GOV’T CODE §§ 573.023(c),

573.024(a)(2), 573.025. But under Armstrong the defendant waives any error in

seating the brother-in-law unless defense counsel or another asks the potential jurors

if any of them are related to the prosecutor. See 897 S.W.2d at 363–66.

Allowing a prosecutor to sit in silence as a close relative of his is seated on

the jury makes a mockery of the constitutional guarantee to trial by an impartial jury.

The primary duty of prosecutors is “not to convict, but to see that justice is done.”

TEX. CODE CRIM. PROC. art. 2.01. Prosecutors have an affirmative duty “to so

2 conduct themselves as to insure a fair trial for both the state and the defendant.” Id.

art. 2.03(b). As the principle dissent in Armstrong observed, nondisclosure of

relatives in the jury pool who are subject to challenge for cause is not compatible

with these duties. Armstrong, 897 S.W.2d at 373 (Baird, J., dissenting).

Trial Judge’s Brother

Texas law does not directly address the presence of the trial judge’s close

relatives in the jury pool or on the jury. Cf. TEX. CONST. art. V, § 11 (judge cannot

sit in case “where either of the parties may be connected with the judge, either by

affinity or consanguinity, within such a degree as may be prescribed by law”); TEX.

CODE CRIM. PROC. art. 30.01 (judge disqualified if “the accused or the party injured

may be connected with him by consanguinity or affinity within the third degree”).

Like prosecutors, however, trial judges have an affirmative duty “to so conduct

themselves as to insure a fair trial for both the state and the defendant.” TEX. CODE

CRIM. PROC. art. 2.03(b). Courts have rightly held that a judge errs in seating a close

relative on the jury in light of the defendant’s right to an impartial jury and the

general public’s right that the jury appears impartial. See Elmore v. State, 144

S.W.3d 278, 279–80 (Ark. 2004) (judge erred by not excusing his wife for cause);

People v. Hartson, 553 N.Y.S.2d 537, 538–39 (N.Y. App. Div. 1990) (per curiam)

(judge erred in not removing his wife from jury pool on his own initiative).

3 Conclusion

The Sixth Amendment issue in this case is straightforward: did the trial judge

and prosecutor have a relationship with potential jurors that should have been

disclosed to the defense? As Judge Overstreet said in his dissent in Armstrong, the

answer is equally straightforward: “If there is a requirement to be candid and above

board, the answer is yes.” Armstrong, 897 S.W.2d at 374 (Overstreet, J., dissenting).

Armstrong says that there is no such requirement. Armstrong is wrong.

Gordon Goodman Justice

Panel consists of Justices Keyes, Goodman, and Countiss.

Justice Goodman, concurring.

Publish. TEX. R. APP. P. 47.2(b).