Allen v. State, C14-90-0315-CR

• Decision Date: 28 March 1991
• Docket Number: No. C14-90-0315-CR,C14-90-0315-CR
• Citation: 807 S.W.2d 639
• Parties: Herman ALLEN, Jr., Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 639

807 S.W.2d 639

Herman ALLEN, Jr., Appellant, v. The STATE of Texas, Appellee.

No. C14-90-0315-CR.

Court of Appeals of Texas Houston (14th Dist.).

March 28, 1991.

Discretionary Review Granted Sept. 11, 1991.

John M. Barron, Jr., Bryan, for appellant.

Nancy L. Hildebrand, Bryan, Houston, for appellee.

Before PAUL PRESSLER, CANNON and ELLIS, JJ.

OPINION

PAUL PRESSLER, Justice.

A jury convicted appellant of the felony offense of possession of a controlled substance, cocaine, in an amount less than twenty-eight grams. TEX.HEALTH & SAFETY CODE ANN. § 481.115. The jury assessed punishment, enhanced under TEX.PENAL CODE ANN. § 12.42(b), at confinement for twelve years in the Texas Department of Criminal Justice, Institutional Division. Appellant's one point of error alleges that the trial court erred in permitting the jury to frame questions for a witness over appellant's objection. We affirm.

Before reading the indictment, the trial court informed the jury that after each witness had finished testifying and each attorney had completed his questioning of the witness, the jury would have an opportunity to submit questions. The court cautioned the jurors that the attorneys presenting the case "have done so with an eye on what is important in the case" and that the jurors should keep that in mind when deciding whether or not to ask questions. The court further cautioned the jury "not to put a chilling affect" on their questions, but to have "sensitivity to the whole process." Any juror who had a question would be permitted to submit his question, in writing, to the judge through the bailiff. The jury would then retire while the judge considered the admissibility of their questions. The judge explained that in order for the question to be asked of the witness, it must "pass the same legal test any lawyers' questions would have to pass," and that afterwards, the attorneys would be permitted to have follow-up questions. The judge cautioned that if he did not permit a question to be asked, the lawyers should not be blamed, but "let the blame rest with [the court]." Only one of the State's witnesses answered questions submitted by the jury and the procedure described by the judge was followed exactly.

Appellant's first argument is that Article 36.27 of the Texas Code of Criminal Procedure applies to a jury's asking questions about a trial in progress. Article 36.27 is inapplicable to this case. It sets forth the method by which the jury may communicate with the court during jury deliberation. Even if such article had applied, its procedures were followed: the jurors wrote out their questions, the questions were handed to the bailiff, and the bailiff delivered them to the judge. The first subpoint is overruled.

Appellant then argues that Article 36.01 of the Texas Code of Criminal Procedure neither provides for nor permits questioning by the jurors of the witnesses. Article 36.01 outlines the procedure to be followed during a criminal trial. Although this article directs that certain steps be followed, it does not present a comprehensive list of all events which may occur during a trial. Cross-examination by either party, questions to the judge by witnesses for purpose of clarification, or bench conferences would also be excluded if appellant's reading of the article were correct. See TEX.CODE CRIM.PROC.ANN. art. 36.01 (Vernon 1991). Appellant's second subpoint is overruled.

Appellant also contends that Article 36.13 of the Texas Code of Criminal Procedure does not provide for the jury to be an inquiring body. This article provides that unless otherwise provided, the jury is the exclusive judge of the facts, the jury should receive the law from the court and should be governed by it. TEX.CODE CRIM.PROC.ANN. arts. 36.13, 38.04 (Vernon 1981); Bonham v. State, 680 S.W.2d 815 (Tex.Crim.App.1984). This argument is also without merit. The procedure followed by the court in this case did not compromise the jury's duty to be exclusive judge of the facts. The third subpoint is overruled.

Appellant's fourth and final argument is that the court misdirected the jury as to their function in the trial. Appellant contends that when the judge permitted the jury to ask questions of the witness, he misdirected the jury which should permit a new trial under the provision of TEX.CODE CRIM.PROC.ANN. art. 40.03 (Vernon 1981). This contention is also meritless. This Article 40.03 was repealed by the Texas Rules of Appellant Procedure effective September 1, 1986 (Acts.1985, 69th Leg., ch. 685, Section 4). These Rules provide that a new trial shall be granted an accused where the court has misdirected the jury as to the law or has committed some other material error calculated to injure the rights of the accused. TEX.R.APP.P. 30(b)(2). By allowing jurors to frame their own questions to be asked of a witness, the court has not misdirected the jury as to the law. Appellant's fourth subpoint is overruled.

This is a case of first impression in Texas. See Buchanan v. State, 807 S.W.2d 644 (Tex.App.--Houston [14th Dist.] 1991) (same issue). Although there is no case law in Texas which directly supports or condemns the practice of jurors' asking questions to witnesses, foreign authorities which have addressed this issue are virtually unanimous in permitting it. These jurisdictions include Arizona: State v. LeMaster, 137 Ariz. 159, 669 P.2d 592, 598 (App.1983); Arkansas: Nelson v. State, 257 Ark. 1, 513 S.W.2d 496, 498 (1974); California: People v. McAlister, 167 Cal.App.3d 633, 213 Cal.Rptr. 271, 276 (1985); District of Columbia: Yeager v. Greene, 502 A.2d 980, 985 (D.C.1985); Florida: Ferrara v. State, 101 So.2d 797, 801 (Fla.1958); Georgia: Story v. State, 157 Ga.App. 490, 278 S.E.2d 97, 98 (1981); Indiana: Carter v. State, 250 Ind. 13, 234 N.E.2d 650, 652 (1968); Iowa: Rudolph v. Iowa Methodist Medical Center, Inc., 293 N.W.2d 550, 555-556 (1980); Kentucky: Stamp v. Commonwealth, 200 Ky. 133, 253 S.W. 242, 246 (1923); Michigan: People v. Heard, 388 Mich. 182, 200 N.W.2d 73, 75 (1972); Missouri: Sparks v. Daniels, 343 S.W.2d 661, 667 (Mo.App.1961); New Mexico: State v. Rodriquez, 107 N.M. 611, 762 P.2d 898, 901-902 (App.1988); New York: People v. Knapper, 230 A.D. 487, 245 N.Y.S. 245, 251 (1930); North Carolina: State v. Kendall, 143 N.C. 659, 57 S.E. 340, 341 (1907); Ohio: State v. Sheppard, 100 Ohio App. 345, 128 N.E.2d 471, 499 (1955), aff'd, 165 Ohio St. 293, 135 N.E.2d 340 (1956); Oklahoma: Krause v. State, 75 Okl.Cr. 381, 132 P.2d 179, 182 (1942); Pennsylvania: Boggs v. Jewel Tea Co., 266 Pa. 428, 109 A. 666, 667 (1920); South Carolina: State v. Barrett, 278 S.C. 414, 297 S.E.2d 794, 796 (1982), cert. denied, 460 U.S. 1045, 103 S.Ct. 1445, 75 L.Ed.2d 800 (1983); Tennessee: Byrge v. State, 575 S.W.2d 292, 295 (Tenn.Crim.App.1978); Utah: State v. Johnson, 784 P.2d 1135, 1144-45 (Utah 1989); United States v. Nivica, 887 F.2d 1110, 1123 n. 9. (1st Cir.1989), cert. denied, Wellington v. U.S., --- U.S. ----, 110 S.Ct. 1300, 108 L.Ed.2d 477 (1990); United States v. Witt, 215 F.2d 580, 588 (2d Cir.), cert. denied, Talanker v. U.S., 348 U.S. 887, 75 S.Ct. 207, 99 L.Ed. 697 (1954); DeBenedetto v. Goodyear Tire and Rubber Co., 754 F.2d 512, 516 (4th Cir.1985); United States v. Callahan, 588 F.2d 1078, 1086 (5th Cir.), cert. denied, 444 U.S. 826, 100 S.Ct. 49, 62 L.Ed.2d 33 (1979); United States v. Land, 877 F.2d 17, 29 (8th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 243, 107 L.Ed.2d 194 (1989); United States v. Gonzalez, 424 F.2d 1055, 1056 (9th Cir.1970).

The only jurisdiction which has refused to allow jurors to ask questions was Georgia. Stinson v. State, 151 Ga.App. 533, 260 S.E.2d 407, 410 (1979). In that case, the Georgia court disapproved of the practice of allowing jurors to ask direct questions of the witness. However, in Story v. State, supra, the same Georgia court expressly approved of the same indirect questioning procedure followed by the trial court in this case. Only direct questioning by jurors was held to constitute reversible error. See id.

The general rule in other jurisdictions is that it is within the trial court's discretion to permit this practice. See, e.g., Ferrara v. State, 101 So.2d 797, 801 (Fla.1958); Sparks v. Daniels, 343 S.W.2d 661, 667 (Mo.App.1961); People v. Wilds, 141 A.D.2d 395, 529 N.Y.S.2d 325, 326 (1988). This general rule is consistent with the rule in Texas that the manner of examining a witness is a matter within the discretion of the trial court. Suiter v. State, 165 Tex.Crim. 578, 310 S.W.2d 81, 82 (App.1958); TEX.R.CRIM.P. 610(a)(1).

During the trial, the jurors asked questions of one witness in which the following format was used:

1. The trial court asked for written questions from jurors after both counsels had concluded their respective direct and cross-examinations.

2. The jury and witness were excused from the courtroom while the admissibility of the questions were determined.

3. The trial court read the proposed questions to both state and defense counsel to determine if there were any legal objections to the questions.

4. The jury and witness were brought back into the courtroom, and the questions were propounded to the witness verbatim, if it had been ruled legally admissible.

5. Following the witness's answer, both state and defense counsel were allowed to ask follow-up questions limited to the matter discussed by a juror's question.

The chief safeguard of this indirect questioning procedure is to allow only written questions by the jury to be asked after their admissibility has been ruled on by the court out of the hearing of the jury. Permitting a juror to spontaneously ask a direct, oral question of a witness could create substantial problems as follows:

1. It places counsel "in the intolerable condition of offending the juror by objecting or permitting improper or impossible prejudicial testimony to come in without objection;"

2. It causes the juror involved to...