Skillern v. State

559 S.W.2d 828, 1977 Tex. Crim. App. LEXIS 1344

• Court: Court of Criminal Appeals of Texas
• Decided: December 21, 1977
• Docket: 55337 and 55338
• Status: Published

Opinions

OPINION

PHILLIPS, Judge.

These are appeals from convictions for the offense of capital murder. Punishment was assessed at death for appellant Skillern and life imprisonment for appellant Sanne. See V.T.C.A., Penal Code, Sec. 19.03, and Art. 37.071, V.A.C.C.P.

On October 24, 1974, Patrick Randel, a narcotics agent for the Texas Department of Public Safety, was found shot to death in his locked car at a roadside park in Live Oak County, Texas. Agent Randel had been working undercover in order to purchase illegal drugs from appellant Skillern and his co-defendant, appellant Sanne. When found, Randel’s money, his gun, a diamond ring, and some State issued credit cards were missing.

Randel had been last seen by other Department of Public Safety agents at 7:10 p. m. October 23, 1974, when he left a motel room in Beeville accompanied by both appellants. Randel left the State money which was to be used in purchasing the illegal drugs in the motel room. He then left in his car with appellant Sanne and appellant Skillern followed in the car in which appellants had arrived. At approximately 8:10 p. m., the car appellant Skillern had driven returned and appellant Sanne was seen entering Randel’s motel room.

Appellants were arrested early the next morning, October 24, in McAllen. Appellant Skillern had the State purchase money and Randel’s gun in his possession and appellant Sanne had Randel’s credit cards and other effects in his possession. The diamond ring was later found in the seat of the vehicle which transported appellant Skillern to jail in McAllen. Both appellants stipulated to the legality of the arrest and subsequent search. The sufficiency of the evidence is not challenged.

In appellant Skillern’s eleventh ground of error and appellant Sanne’s seventh ground of error, they allege that the trial court erred in allowing the jurors to separate after the court’s charge had been read to them on the hearing on guilt. After the court had read the charge to the jury and before final arguments concluded, the court recessed, at which time the following took place:

“MR. FOSTER [Appellant Sanne’s attorney]: May the record show that after the court’s charge had been read to the jury and after Mr. Carruth and Mr. Hardwick [the prosecutors] had argued for the State that there was a recess during the argument at which time the defendants through their counsel are objecting or objected that the jury had been allowed to separate without agreement or consent and whereupon counsel for the defendant Sanne moved for a mistrial, said motion was overruled and the defendant objected and excepted and is now stating into the record those actions as well as requesting the Court to grant leave to defendant after the jury has begun their deliberations to perfect a bill of exceptions to the Court’s ruling and have it considered as if it were done at this time.

THE COURT: All right, same thing for you?

MR. TINKER [Appellant Skillern’s attorney]: Yes, Your Honor . . .”

At the hearing to perfect the bill of exceptions, testimony showed that the jury had been allowed to separate. Mr. Foster testified that he had seen one juror reentering the courthouse from the courthouse annex. He had also seen another juror outside the courthouse coming from the direction of a grocery store which was located across the street from the courthouse. At the time of this separation, the courthouse was crowded with spectators and law enforcement officers. Foster stated that he had not seen the jurors speak to any of the people in the courthouse.

Mr. Chris Ybanez, the bailiff in charge of the jury, testified that two jurors did leave the jury room. He believed that one juror had gone to the restroom in the annex and the other went downstairs to the restroom. He stated that he had not seen any of the jurors talk with anyone during the recess. He also stated that there were many spectators in the courthouse.

The appellants cite and rely upon Goodall v. State, Tex.Cr.App., 501 S.W.2d 342, where we held that once a jury is allowed to separate after the charge had been read and without the consent of the defendant, the burden is upon the State to rebut the presumption of harm. In the instant case, this presumption was not rebutted. While both the bailiff and Foster testified that they had not seen the jurors speak to anyone, they could not testify that the jurors did not have any contacts with the spectators. The State failed to offer any affidavits or testimony from the jurors involved. Testimony by a person not proven to have had a juror within his sight at all times during a separation merely to the effect that he did not see a juror speak to anyone is analogous to testimony by a juror that he did not hear certain misconduct in the jury room. Such “did not hear” testimony of a juror as to misconduct, standing alone, has been held by this Court to constitute “no evidence” that such did not occur. Spriggs v. State, 160 Tex.Cr.R. 188, 268 S.W.2d 191; Citizen v. State, 159 Tex.Cr.R. 519, 265 S.W.2d 109. The State having wholly failed to rebut the presumption of harm from violation of said mandatory statute, such violation constituted reversible error.

The remaining grounds of error urged by appellants pertain to matters that will not likely arise upon another trial, for which reason we omit their discussion.

For the reasons stated, the judgment as to each appellant is reversed and the causes remanded.

DOUGLAS, J., concurs in the result. YOLLERS, J., not participating.