Parra, Ex Parte Raul

420 S.W.3d 821, 2013 WL 5221110, 2013 Tex. Crim. App. LEXIS 1316
Court of Criminal Appeals of Texas·Decided September 18, 2013·No. AP-76,871·Published·Cited by 26 cases

Opinions

OPINION

KEASLER, J.,

delivered the opinion of the Court,

in which KELLER, P.J., WOMACK, JOHNSON, HERVEY, COCHRAN, and ALCALA, JJ, joined.

Raul Parra seeks habeas relief on the grounds that his trial counsel was ineffective for faffing to object to the trial judge’s response to a jury note and for failing to adequately question the venire to reveal one juror’s alleged experience as the victim of both domestic violence and sexual assault of a child. Because Parra has failed to satisfy the requirements of Strickland v. Washington,1 we deny relief.

Parra was convicted of aggravated sexual assault of a child and was sentenced to lifetime confinement and a one-dollar fine. The El Paso Court of Appeals affirmed Parra’s conviction, finding that Parra did not preserve any error stemming from the judge’s jury admonishment and no juror misconduct occurred.2 We denied his petition for discretionary review. We filed and set Parra’s application for a writ of habeas corpus and requested the parties to brief the following issues:

1. Whether Applicant was denied effective assistance of trial counsel when trial counsel: (a) did not object to the trial court’s response to a jury note as violating the mandates of Article 36.27 of the Code of Criminal Procedure; and (b) did not object to the contents of the trial court’s response as threatening to the jury and resulting in the deprivation of a fair and impartial jury.
2. Whether the actions of Applicant’s trial counsel denied him a fair and impartial jury when trial counsel, allegedly, did not adequately question the venire panel during voir dire to reveal that one of the venire members who later served on the jury had been a victim of crimes in the past even though the juror had indicated on a questionnaire that the juror had not been such a victim.

I. Failure to Object to Judge’s Admonishment

During its punishment-phase deliberations, the jury sent out a note stating that [824]*824“[s]ome of the jurors want to leave.” The record does not contain a response from the trial judge. An hour later, the jury-sent out another stating the following (with original emphasis): “[Two named jurors] are going to walk out, and want to talk to the judge. They want to know the consequences. We are still deliberating, but they do not want to hear anymore.”

The trial judge responded by bringing the jurors into the courtroom and addressing them as follows:

The record should reflect the attorneys for the State, the attorney for the defendant, the defendant are present in the courtroom. The Court has received a message from the jury that needs my response.
Ladies and gentleman of the jury, shortly I’m going to send you back into the jury room to see if you want to break for the day. You will be sequestered. It appears that there is a need for court reflection and maybe a break. The only break I can give you is breaking for the rest of the day. Like we did yesterday. So shortly I will send you into the jury room so that you can indicate to me whether that is your wishes at this time or whether you wish to continue to deliberate.
In response to the question that was asked, here’s my response. We have provided for you as nice an accommodation as I possibly can. If you don’t want those, I will put you in the county jail and bring you tomorrow so that you can continue to deliberate with your fellow jurors.
I have never had to do this. And I don’t want to. But, understand one thing, you are the judges, the exclusive judges, of the facts and the credibility of the witnesses. And I will continue to respect you as co-judge and not interfere with your job. I am the judge of the law. And in the way this court is conducted.
I do not want to put any of you in the county jail. But do not test me. Because I will not hesitate to put you in the county jail and bring you over to deliberate with your fellow jurors if I get that threat again.
Go back into the jury room and let me know whether you wish to continue your deliberations.

The record does not reflect that Parra requested to see the jury’s note or objected to the content of the judge’s statement. In the motion-for-new-trial hearing, Par-ra’s counsel claimed that the judge just told him to appear in the courtroom and was unaware that the jury sent out a note. After receiving this admonishment, the jury informed the judge that they wished to continue deliberating. Thirty minutes later, the jury returned its punishment verdict.

Parra’s first allegation is that trial counsel was ineffective for failing to object to the trial judge’s response to the jury note on the grounds that it was coercive and given in violation of Article 36.27. With regard to claims of ineffective assistance of counsel, an applicant is required to show by a preponderance of the evidence (1) that trial counsel was deficient and (2) that there is a reasonable probability that, but for counsel’s deficient performance, the outcome at trial would have been different.3 In order to succeed with an ineffective-assistance-of-counsel claim based on counsel’s failure to object, one “must show that the trial judge would have [825]*825committed error in overruling such objection.” 4

A. Coercive Instruction and the Deprivation of a Fair Trial

Parra alleges that the judge’s response to the jury’s note was coercive and deprived him his right to a fair and impartial jury. Parra contends “the trial court threatened to place the entire jury in jail unless they continued to deliberate to reach a verdict.” We disagree with Par-ra’s reading of the judge’s admonishment. The jury’s note indicated that two named jurors were threatening to leave the deliberations and wanted to talk to the judge about the consequences of doing so. From the note’s language, it was reasonable to interpret that these two jurors were threatening to abandon their obligations as jurors and jeopardized the judicial process.

Provided subject-matter jurisdiction is properly invoked, a trial judge’s inherent power includes broad discretion over the conduct of its proceedings.5 A necessary component of this broad discretion is the ability to find those in contempt whose “conduct tends to bring the authority and administration of the law into disrespect or disregard, interferes with or prejudices parties or their witnesses during a litigation, or otherwise tends to impede, embarrass, or obstruct the court in discharge of its duties.”6 The judge’s response answered, albeit assertively, the question the two jurors threatening to leave had — what are the consequences of leaving? — by telling the two jurors that he would, in essence, hold them in contempt, confine them, and bring them to court the following day to deliberate further with their peers. Contrary to Parra’s claim, the judge’s response was tailored to the two jurors, not the entire jury. The judge’s indication that the offending jurors would rejoin their peers the following day after their stay in the county jail indicates that the remaining jurors were not being threatened with similar treatment.

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Parra, Ex Parte Raul, 420 S.W.3d 821, 2013 WL 5221110, 2013 Tex. Crim. App. LEXIS 1316 (Tex. 2013).

420 S.W.3d 821 (Parra, Ex Parte Raul) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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