Armstrong v. State

• Decision Date: 29 March 1995
• Docket Number: No. 540-93,540-93
• Citation: 897 S.W.2d 361
• Parties: William Brooks ARMSTRONG, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 361

897 S.W.2d 361

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

No. 540-93.

Court of Criminal Appeals of Texas En Banc.

March 29, 1995.

Frank Jackson, Judith L. White, Dallas, for appellant.

Tom Wells, County Atty., Kerye Ashmore, Asst. County Atty., Paris, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

A jury convicted appellant of murder, pursuant to V.T.C.A. Penal Code, § 19.02, and sentenced him to life imprisonment. Appellant's conviction was affirmed by the Sixth Court of Appeals. Armstrong v. State, 838 S.W.2d 323 (Tex.App.--Texarkana 1992), vacated on other grounds, 845 S.W.2d 909 (Tex.Cr.App.), on remand 850 S.W.2d 230 (Tex.App.--Texarkana 1993). On appeal appellant argued that the trial court erred in denying his motion for new trial based on misconduct by both a juror and the prosecutor during voir dire. The court of appeals held that there was no misconduct and that the trial court did not abuse its discretion in denying appellant's motion for new trial. We granted appellant's petition for discretionary review to examine this holding. Tex.R.App.Pro., Rule 200(c)(3).

I.

On appeal, appellant claimed there was juror misconduct during voir dire because panel member Marilyn Thornburrow, who subsequently became the jury foreperson, did not disclose her relationship to the county attorney, Tom Wells, who was one of the prosecutors in appellant's trial. Appellant claimed that he was harmed because, had he known of the relationship, he would have used either a challenge for cause or a peremptory strike against Thornburrow.

During voir dire, the trial judge asked the following questions:

"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, he hopes that all 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 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?"

Thornburrow, along with all the other panel members, did not respond to these questions.

Later, the prosecuting attorney asked the following question:

"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 [the 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."

Thornburrow did not respond to this question. For his part, defense counsel did not ask any questions concerning possible relationships between any of the panelists and any of the prosecutors.

At the hearing on appellant's motion for new trial, there was undisputed evidence that Thornburrow had known Wells for approximately 26 or 27 years and described him as a friend; Thornburrow's husband and Wells had been the "best man" in each other's weddings; Thornburrow's husband was serving as Wells' campaign treasurer during the time of trial and had served in that capacity in the 1988 campaign.

Thornburrow testified at the hearing on the motion for new trial that she had answered all the questions at the voir dire honestly. She testified that her silence in response to the first question by the judge was the appropriate response because her relationship with Wells would not affect her ability to be fair as a juror:

"I answered his question fairly. His question was did we know anyone well enough to keep us from being fair, and my response indicated that I knew no one well enough to keep myself from being fair."

She testified that her silence in response to the second question by the judge was the appropriate response because she understood the question to be asking about auxiliary staff in the county attorney's office:

"That was the second question that the judge asked. He had already asked the question about the prosecutors and I responded that I could be fair. When the second question was asked, I took that to mean the auxiliary help in the county attorneys office, and I do not know anyone in the county attorney's office."

She testified that she did not respond to the prosecutor's question because:

"I felt that I had already answered the question.... I felt like I had already responded about the fairness and I did not come forward."

Thornburrow also testified that she was expecting someone to ask whether or not she knew Wells. No one did:

"Q. [defense counsel] But you say in your affidavit that you were waiting to be asked the question about your relationship to Tommy Wells and no one ever did. Correct?

A. I was assuming that you would ask a question of all the jury panel."

The court of appeals, citing Jones v. State, 596 S.W.2d 134, 137 (Tex.Cr.App. [Panel Op.] 1980), held that there was no juror misconduct. No material information was "withheld" because no one ever asked the panelists if they knew or were acquainted with the prosecutors--no one ever asked Thornburrow if she knew or was acquainted with Wells. The questions by the trial judge and the prosecutor were subjective in nature. If Thornburrow concluded that her acquaintance with the prosecutor would not affect her ability to be a fair juror, then the appropriate response to those questions was no response. Accordingly, the court of appeals held the trial court did not abuse its discretion by denying appellant's motion for new trial.

II.

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. Jones, supra. at 137; De La Rosa v. State, 414 S.W.2d 668 (Tex.Cr.App.1967). When a juror withholds material information in the voir dire process, the parties are denied the opportunity to exercise their challenges, thus hampering their selection of a disinterested and impartial jury. Salazar v. State, 562 S.W.2d 480, 482 (Tex.Cr.App. [Panel Op.] 1978). 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 and truthful. Jones, supra. at 137. Unless defense counsel asks such questions, the material information which a juror fails to disclose is not really "withheld." Id.

In this instance, defense counsel did not ask the questions needed to elicit the desired information. ¹ Given our holding in Jones, we cannot say the court of appeals erred to find that there was no juror misconduct. ²

III.

Appellant also argued on appeal that the trial court erred in denying his motion for new trial because the county attorney, Wells, did not disclose his relationship with Thornburrow. Although appellant included this allegation in his point of error regarding juror misconduct, appellant appeared to be making an independent claim of prosecutorial misconduct. Appellant claimed that the prosecutor had an affirmative duty to disclose this relationship to the defense and that this duty arose under the Disciplinary Rules of Professional Conduct, Rule 3.09, and under Article 2.01, V.A.C.C.P. ³ The court of appeals was not convinced that the prosecutor's conduct in this case was contrary to any disciplinary rule or to Article 2.01. ⁴ Furthermore, the court of appeals could find no authority for the proposition that a prosecutor has an affirmative duty to volunteer information that defense counsel could have easily obtained by questioning the panel. The court of appeals therefore concluded that the trial court did not abuse its discretion in denying appellant's motion for new trial.

This Court has previously held that the State has no obligation to furnish defense counsel with information on prospective jurors where the information was readily available to the defense on voir dire. Linebarger v. State, 469 S.W.2d 165, 167 (Tex.Cr.App.1971); Enriquez v. State, 429 S.W.2d 141, 145 (Tex.Cr.App.1968); Martin v. State, 577 S.W.2d 490, 491 (Tex.Cr.App.1979); Redd v. State, 578 S.W.2d 129, 131 (Tex.Cr.App.1979). The conclusion of the court of appeals is certainly consistent with these holdings. We cannot say the court of appeals erred to find that there was no prosecutorial misconduct. ⁵

The court of appeals used the correct analysis in reviewing the trial court's denial of appellant's motion for new trial. See Arcila v. State, 834 S.W.2d 357, 361 (Tex.Cr.App.1992). Accordingly, we affirm the judgment of the court of appeals.

BAIRD, Judge, dissenting.

Because the majority opinion sanctions both juror and prosecutorial misconduct by condoning the secreting of information necessary to a defendant's right to a fair trial, I dissent.

I.

The pertinent facts are as follows. During voir dire, the trial judge propounded the following question to the venire:

Now, are there any of you who have any--well, I will say are so well acquainted with Mr. Wells [The County Attorney]--I know that most of you know him, he hopes that all 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 there are none.

When no one responded, the trial judge continued: "Are there any of you who have any special connection with the prosecutor's office,...