Armstrong v. State

• Decision Date: 23 March 1993
• Docket Number: No. 6-92-017-CR,6-92-017-CR
• Citation: 850 S.W.2d 230
• Parties: William Brooks ARMSTRONG, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 230

850 S.W.2d 230

William Brooks ARMSTRONG, Appellant, v. The STATE of Texas, Appellee.

No. 6-92-017-CR.

Court of Appeals of Texas,

Texarkana.

March 23, 1993.

Frank Jackson, Dallas, for appellant.

Tom Wells, Dist. Atty. of Lamar County, Paris, for appellee.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

CORNELIUS, Chief Justice.

William Brooks Armstrong was convicted of murder and assessed punishment at confinement for life.

On appeal, Armstrong brings three points of error, two of which contend that his motion for mistrial should have been granted because two jurors wrongfully withheld material information during the voir dire examination. In the remaining point, Armstrong contends that the trial court erred in admitting evidence of extraneous offenses. We overrule all these points and affirm the judgment.

First, Armstrong argues that the trial court should have granted his motion for new trial because the woman subsequently chosen to be the jury foreperson, Marilyn Thornburrow, and the county attorney, Tom Wells, failed to disclose during voir dire that they had a significant relationship to each other.

The trial judge asked the following questions during voir dire:

Now, are there any of you who have any--well, I will say are so well acquainted with Mr. Wells--I know that most of you know him ... or with Mr. Ashmore in his office, or Mr. Chuck Superville, that's another assistant, or Mr. Scott McDowell? They are the prosecution staff. Are there any of you who are so well connected with them or acquainted or associated with them that it might affect your verdict? I take it that there are none.

Are there any of you who have any special connection with the county attorney's office, perhaps a close friend in the office, secretary, investigator or the like?

No panel member responded affirmatively to either of the court's inquiries. The prosecuting attorney also asked the jury panel during voir dire:

Sometimes we fail to ask a questions (sic) that touches on your qualifications. My question to you at this time is is there anything that any of you can think of that touches on your qualifications not in just any case but in this specific case that you think needs to be pointed out to me and Mr. Jackson [defense attorney] and the court at this time? If so, raise your hand and you may want to approach the bench and tell it to the court out [of] the presence of the other jurors. If so, would you raise your hand at this time and let's talk about it.

Thornburrow did not respond to this question.

After the trial was over, Armstrong's counsel learned that Thornburrow knew the prosecutor, Wells; that Wells had been the best man at Thornburrow's wedding several years ago; and that Thornburrow's husband was at the time of the trial serving as the re-election campaign treasurer for Wells and had served in the same capacity in the 1988 campaign. Armstrong contends he was harmed because, if he had known of the relationship, he would have challenged Thornburrow for cause, or failing in that, he would have used a peremptory strike against her.

Armstrong argues that the questions by the trial judge and the prosecutor clearly required Thornburrow to respond and inform him of the relationship she had with the prosecutor. He relies on Jones v. State, 596 S.W.2d 134, 137 (Tex.Crim.App. [Panel Op.] 1980), where the court stated:

The voir dire examination is not an exercise to test the ability of defense counsel to joust with a prospective juror in an attempt to see what quantum of information he may or may not be withholding. The voir dire process is designed to insure, to the fullest extent possible, that an intelligent, alert, disinterested, impartial, and truthful jury will perform the duty assigned to it. De La Rosa v. State, 414 S.W.2d 668 (Tex.Cr.App.1967).

The court in Jones also said:

However, defense counsel has an obligation to ask questions calculated to bring out that information which might be said to indicate a juror's inability to be impartial, truthful, and the like. Unless defense counsel asks such questions, we must hold, as we do here, that the purportedly material information which a juror fails to disclose is not really "withheld" so as to constitute misconduct which would warrant a reversal.

Jones v. State, 596 S.W.2d at 137.

We believe the last quoted language from Jones is applicable here. Armstrong's counsel asked no question at voir dire touching on a relationship between a panelist and the prosecutor. The questions by the trial judge and the prosecutor that Thornburrow failed to affirmatively answer were subjective in nature and were such that no response was appropriate if she concluded that her acquaintance with the prosecutor would not affect her ability to be a fair juror. See Decker v. State, 717 S.W.2d 903 (Tex.Crim.App.1983); Von January v. State, 576 S.W.2d 43, 45 (Tex.Crim.App. [Panel Op.] 1978); Salazar v. State, 562 S.W.2d 480, 482 (Tex.Crim.App. [Panel Op.] 1978); Herrera v. State, 665 S.W.2d 497 (Tex.App.--Amarillo 1983, pet. ref'd).

In the hearing on the motion for new trial, Thornburrow testified that she believed the questions were intended to elicit whether she had some relationship with the prosecutor or his staff which would cause her to be unable to give the defendant a fair and impartial hearing. She said she believed that she could give Armstrong a fair trial and pointed out that in an earlier murder case prosecuted by Wells and in which she served as a juror, she had voted for, and the jury rendered, a "not guilty" verdict because she believed that Wells had not proven his case. She also testified that she understood the judge's second question to refer to acquaintance with the prosecutor's auxiliary staff. Thornburrow indicated that if the question had been whether she knew or associated with Wells, she would have answered "yes," but since the questions were whether there was any relationship that would affect her ability to be impartial, she failed to respond because she felt she could be impartial. Armstrong does not claim that Thornburrow acted improperly during jury deliberations.

The trial judge is the trier of fact at the hearing on a motion for new trial, and his findings will not be disturbed absent a showing that he abused his discretion. Jones v. State, 596 S.W.2d at 138; Herrera v. State, 665 S.W.2d at 500. As noted earlier, defense counsel did not ask questions about the panelists' acquaintance with the prosecutor. In this respect, the trial judge and the prosecutor asked only if there was anything that would adversely affect the panelists' impartiality. In these circumstances, Thornburrow did not withhold information, and the trial judge properly denied the motion for new trial.

The Court of Criminal Appeals vacated our original opinion in this cause and remanded the case to this Court with instructions to address the issue of whether the prosecutor had an affirmative duty to disclose during the voir dire process his relationship with Thornburrow. Armstrong v. State, 845 S.W.2d 909 (Tex.Crim.App.1993).

We now consider that contention. Armstrong cites only two authorities in support of his argument. The first of these, Ethical Consideration 7-13, was formerly a part of Canon 7 of the Texas Code of Professional Responsibility. State Bar Rules, art. X, § 9, EC 7-13 (Texas Code of Professional Responsibility. Effective January 1, 1990, more than a year prior to the trial in the instant case, Article 10, § 9 of the Disciplinary Rules of Professional Conduct was adopted, and the former Code of Professional Responsibility was repealed. TEX.DISCIPLINARY R.PROF. CONDUCT 3.09 (1989), reprinted in TEX.GOV'T CODE ANN tit. 2, subtit. G app. (Vernon Supp.1993) (STATE BAR RULES art. X, § 9), prescribes the special responsibilities of a prosecutor. The new rule does not support Armstrong's claim that the prosecutor had a duty in this instance to volunteer information about his acquaintance with a prospective juror.

Armstrong also cites TEX.CODE CRIM.PROC.ANN. art. 2.01 (Vernon Supp.1993). That article provides, in relevant part, that the primary duty of all prosecuting attorneys is not to convict but to see that justice is done. This language was also contained in former Ethical Consideration 7-13. We are not convinced that the conduct of the prosecutor in this case was contrary to Article 2.01. Armstrong has cited no authority holding that a prosecutor under circumstances as in this case has a duty to volunteer information that defense counsel could have easily obtained by simply asking panel members if any of them knew the prosecutor, and if so, under what circumstances.

Armstrong's reliance on the case of Implement Dealers Mutual Ins. Co. v. Castleberry, 368 S.W.2d 249 (Tex.Civ.App.--Beaumont 1963, writ ref'd n.r.e.), is misplaced. In that civil case, the defendant moved for a mistrial after the plaintiff's attorney informed the defendant's attorney that he had once represented one of the jurors in a prior case. The court noted that the defendant's counsel had a right to know the information, but denied the motion for mistrial because the defendant's attorney had the information during voir dire but did not challenge the potential juror. Id. at 254-55. The court noted that such information comes from the attorney, rather than the juror, in many instances, but the court did not impose a duty on the plaintiff's attorney, as opposed to the potential juror, to reveal the relationship. The case does not support Armstrong's claim that an affirmative duty existed in this case.

If Armstrong's counsel had asked the panel members whether any of them knew the prosecutor and, if so, to describe the relationship, Thornburrow would have been bound to answer affirmatively and to describe her relationship. The trial judge, in addressing the jury before voir dire, noted that many of the panel members probably knew the prosecutor, who had held office...