Sullivan v. State

678 S.W.2d 162, 1984 Tex. App. LEXIS 6081
CourtCourt of Appeals of Texas
DecidedAugust 30, 1984
Docket01-82-0118-CR
StatusPublished
Cited by8 cases

This text of 678 S.W.2d 162 (Sullivan 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
Sullivan v. State, 678 S.W.2d 162, 1984 Tex. App. LEXIS 6081 (Tex. Ct. App. 1984).

Opinions

OPINION

DUGGAN, Justice.

A jury found appellant guilty of felony criminal mischief and assessed her punishment at two years confinement. An active supporter of the Revolutionary Communist Party, appellant allegedly spray-painted upon a wall of the Exxon Building in Houston the following message:

Fly the Red Flag
Red, White and Blue — We Spit on You!
May 1st, 1982

Six grounds of error are presented.

Appellant’s first ground of error urges that the trial court erred by restricting her jury voir dire so severely that her attorneys were unable to intelligently exercise peremptory challenges. She argues that the court prevented inquiry as to the effect on potential jurors of anticipated inflammatory evidence relating to her political beliefs and activities.

The State urges that appellant’s ground of error is multifarious in complaining of the court’s limitation on both the terms and the scope of voir dire. Nevertheless, we are able to understand her contentions as relating to the single question of whether appellant was denied the right to the effective exercise of her peremptory strikes, and we will address the various sub-issues grouped under this heading. Tex. Code Crim.P.Ann. art. 40.09(9) (Vernon Supp. 1982-1983).

The court reporter’s notes indicate that voir dire was already in progress when the recording began, at which point the trial [165]*165judge was asking whether any of the veniremen were acquainted with the appellant, her attorneys, or the State’s attorneys. There was no response. The judge read the indictment and asked if any of the panel had knowledge of the case. Again, no prospective juror responded. He then informed the panel of the defendant’s right not to testify and discussed the jury’s role as factfinder.

Appellant’s counsel’s own voir dire, while somewhat repetitive of the State’s, focused upon the presumption of innocence and the difference between a preponderance of the evidence and proof beyond a reasonable doubt. Counsel inquired of the panel as a whole whether anyone was acquainted with four of the prosecution witnesses seated in the courtroom, and received no response. A large portion of his voir dire was devoted to questioning of individuals who had experience, or had relatives or friends with experience, in law enforcement.

Appellant’s counsel attempted twice to inform the panel of the content of the message spray-painted on the building in order to ascertain whether any juror would be influenced by its political implications. The court sustained the State’s objections each time, saying “I don’t want this message given to the jury.” Appellant’s counsel then sought to determine whether prospective testimony by a peace officer about prior dealings with appellant in connection with her activities as a supporter of the Revolutionary Communist Party would affect anyone’s ability to weigh the evidence. Again, the State’s objection was sustained, and counsel was warned that he had one minute remaining.

The court then permitted, over the State’s objection, the following question:

Is there anyone on the jury who feels that you might have some difficulty sitting in judgment on the case of a woman who is accused of this instance of criminal mischief who is a supporter of the Revolutionary Communist Party?

No veniremen, including three who were asked individually, answered that such political activity would influence their deliberations. Appellant’s counsel next asked whether appellant’s belief in communism and her opposition to capitalism would affect her credibility before the jury if she were to testify in her own behalf. No veniremen responded.

The court informed defense counsel that his time was “up.” Counsel thereafter dictated a bill of exceptions consisting of thirty additional questions he would have asked members of the panel as a whole and individuals, if necessary, (1) to determine bias or prejudice on account of appellant’s political beliefs or activities, which he stated he anticipated would be part of the evidence presented by the State, and (2) to determine whether jurors had “heard anything either by hearsay or otherwise and formed a conclusion as to the guilt or innocence of the defendant.” The court qualified the bill by stating that defense counsel made no objection when each side was advised, before voir dire began, that it had 45 minutes, and that the defense was given three additional minutes.

The State asserts that appellant’s failure to secure the recordation and transcription of the entire voir dire examination precludes review of any error allegedly occurring during the voir dire. We disagree. As noted above, only a small portion of the court’s preliminary questioning, if any, was not recorded, and prosecution and defense questions were shown in their entirety. Burkett v. State, 516 S.W.2d 147 (Tex.Crim.App.1974), cited by the State, is not controlling since the record there included only that portion of the jury panel voir dire in which “a question was asked, objection made, and the asking of the question denied.” Id. at 150. The Burkett court was thus unable to ascertain whether the questions refused were anything more than a restatement of what had been already asked; no such handicap exists here.

Finally, the State insists the appellant may not claim she was forced to accept unnamed objectionable jurors without showing that any juror seated on the panel was one against whom a challenge [166]*166for cause existed. We disagree. Such a showing is not required to claim error in the court’s refusal of questions sought to permit the intelligent exercise of peremptory challenges. Burkett, at 149. Burns v. State, 556 S.W.2d 270 (Tex.Crim.App.), cert. denied, 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 294 (1977), cited as support, is in-apposite. Appellant was entitled to voir dire to select intelligently those jurors she wished to strike peremptorily. Deprivation of that right is the only harm that need be shown. Abron v. State, 523 S.W.2d 405, 409 (Tex.Crim.App.1975). It is immaterial how the jurors would have answered the questions. Mathis v. State, 322 S.W.2d 629, 631 (Tex.Crim.App.1959).

On the merits of the issue, appellant first urges that the questions propounded, but not permitted to be answered, were proper to determine juror’s attitudes toward the message painted by appellant and her prior political activities.

The areas which defense counsel may explore during voir dire examination are broad and may not be unnecessarily limited. Hughes v. State, 562 S.W.2d 857, 862 (Tex.Crim.App.), cert. denied, 439 U.S. 903, 99 S.Ct. 268, 58 L.Ed.2d 250 (1978). Nevertheless, the conduct of voir dire examination rests within the sound discretion of the trial court, and only abuse of discretion will call for reversal. Clark v. State, 608 S.W.2d 667, 669 (Tex.Crim.App.1980); Phillips v. State, 511 S.W.2d 22, 27 (Tex.Crim.App.1974). The trial court may therefore imposé reasonable restrictions on the exercise of voir dire examination, including reasonable time limitations. Clark.

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Sullivan v. State
678 S.W.2d 162 (Court of Appeals of Texas, 1984)

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Bluebook (online)
678 S.W.2d 162, 1984 Tex. App. LEXIS 6081, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sullivan-v-state-texapp-1984.