Davis v. State

• Decision Date: 13 September 1989
• Docket Number: No. 69467,69467
• Citation: 782 S.W.2d 211
• Parties: James Carl Lee DAVIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 211

782 S.W.2d 211

James Carl Lee DAVIS, Appellant, v. The STATE of Texas, Appellee.

No. 69467.

Court of Criminal Appeals of Texas En Banc.

Sept. 13, 1989.

Rehearing Denied Oct. 25, 1989.

Roy E. Greenwood, court appointed on appeal, Austin, for appellant.

Ronald Earle, Dist. Atty. & Philip A. Nelson, Jr., Asst. Dist. Atty., Austin, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION

McCORMICK, Presiding Judge.

A jury found appellant, James Carl Lee Davis, guilty of capital murder. The death penalty was assessed as punishment. On appeal to this Court, appellant raises thirteen points of error. We find all points to be without merit and affirm the conviction.

In his first point of error, appellant asserts that the trial court erred when it would not afford him an opportunity to review the veniremen's information cards and biographic questionnaires prior to exercising his option to shuffle the names of the venire. He relies upon Article 35.11, V.A.C.C.P. Appellant's second point of error also relies upon Article 35.11. He contends that regardless of any entitlement to the veniremen's biographical information the trial court erred when it refused to shuffle the names after he so requested. Both points are without merit.

The record reflects that the entire general venire was brought into the court room and was seated in order. Thereafter, the following colloquy occurred in chambers:

"[DEFENSE ATTORNEY]: ... I understand that the jurors have now been seated in the order--or in their proper order in the courtroom.

"THE COURT: That's correct.

* * * * * * "[DEFENSE ATTORNEY]: ... For the record, Judge, we would request an additional hour before we be required to exercise our right to decide whether to move the Court for a shuffle of the panel, in that we cannot adequately make that decision until we have seen some biographical background on the venirepersons. Just merely looking at faces and seeing names does not allow us to make a competent decision. And to deny us that right violates 35.11 of the Code of Criminal Procedure and denies Mr. Davis his right to effective assistance of counsel under the Texas Constitution and the United States Constitution and denies him due process and due course of law under the United States Constitution and Texas Constitution.

"THE COURT: Request denied. The Court will give defense counsel five minutes to look over the jury panel and make their decision whether they wish to shuffle or not.

"(Recess)

"[DEFENSE ATTORNEY]: Judge, at this time we would object--once again, to the Court's refusal to give us any biographical information ... consequently at this time we're just not going to ask for a shuffle, because we can't do it.

"THE COURT: Okay.

* * * * * *

"[DEFENSE ATTORNEY]: We're not saying we don't want a shuffle. We're just saying we can't decide."

The trial judge indicated that he understood appellant's intentions as not wishing to have the veniremen's names shaken; he thus began his initial examination. See Article 35.17(2), V.A.C.C.P. Based upon pretrial publicity in the case, some members of the venire were excused from jury service without objection. Before dismissing the remaining members for the day, the judge gave each a schedule--day and hour--of when to return. That next day, the first venireman, per the scheduled time, returned to the courtroom for individual voir dire examination. Before the State began its individual examination of the venireman, however, appellant urged his motion to shuffle. The request was denied and the trial judge allowed the following to be made a part of the record:

"THE COURT: ... [T]he record will also reflect the previous Defense counsel testimony about all the investigation that they did, having been in receipt of the list of all the veniremen some days previous to the commencement of this trial.

"[PROSECUTOR]: Your honor, perhaps the record should also reflect, I think it does, that counsel were given some time to look over the panel after they were seated in the court room where they were impaneled; that they did look over the panel, but then declined to request a shuffle; and that it was at that time that all the jurors were given their schedule and when to return. And it wasn't until all 125 of those people had left the courthouse with their schedules--

"THE COURT: The record should also reflect that some jurors were excused, that the Court conducted its Voir Dire in general and then took up the issue of opinion or publicity and excused some half a dozen, I guess, veniremen from different places on the panel. [Emphasis added.]

"[PROSECUTOR]: .... But my point is that the record should reflect that all of the remaining 100 or so veniremen had been excused and had been given a date and hour to return in the proper sequence, and it would have been impossible to shuffle the panel without individually calling each one of those 100 jurors and giving them a new date and time to come in. Will the record so reflect?

"THE COURT: The record will so reflect."

Appellant in his first point of error, asserts that he was entitled to review the juror information cards and his questionnaires ¹ before he exercised his option to have the names shuffled. We disagree.

Article 35.11 creates a statutory privilege that allows the parties in a criminal trial to have the names of the prospective jurors shuffled. The Article reads as follows:

"The trial judge, upon the demand of the defendant or his attorney, or of the State's counsel, shall cause the names of all the members of the general panel drawn or assigned as jurors in such case to be placed in a receptacle and well-shaken, and the clerk shall draw therefrom the names of a sufficient number of jurors from which a jury may be selected to try the case, and write the names as drawn upon two slips of paper and deliver one slip to the State's counsel and the other to the defendant or his attorney."

In interpreting Article 35.11, we have determined that compliance with that statute is had when counsel for either the State or the defendant is allowed the opportunity to view the venire seated in the courtroom in proper sequence and is thereafter allowed an opportunity to exercise his or her option to have the names shuffled. See Williams v. State, 719 S.W.2d 573, 575 (Tex.Cr.App.1986) citing Stark v. State, 657 S.W.2d 115 (Tex.Cr.App.1983); Eldridge v. State, 666 S.W.2d 357 (Tex.App.--Dallas 1984, pet. ref'd); Thomas v. State, 624 S.W.2d 383 (Tex.App.--Fort Worth 1981, no pet.). We have never interpreted the Article as requiring the trial court to afford the defendant anything more than being able to view the outward appearance of the venire members. Indeed, in Alexander v. State, 523 S.W.2d 720 (Tex.Cr.App.1975), this Court wrote that "[t]o allow either party to request a shuffle after the voir dire begins ... would permit such an election to be based upon information elicited on voir dire ... this was not the intent of the legislature." 523 S.W.2d at 721 (emphasis added). Following Alexander, we hold that because it was not the intent of the Legislature to have the names of the venire shuffled based upon information obtained during voir dire, so too it was not the intent of the Legislature to base the shuffle on information gleaned from juror information cards and/or biographical questionnaires. Moreover, in this case, appellant's counsel requested an hour to review the veniremen's biographical information before he opted to shuffle their names. The statute cannot be read to allow such. In Williams, then Presiding Judge Onion, writing for this Court, determined that "[a] shuffle of the jury panel for the case takes a minimal amount of time if properly handled." 719 S.W.2d at 577 n. 5. Accordingly, appellant's first point of error is overruled.

In appellant's second point of error, he asserts that regardless of any entitlement to biographical information the trial court erred when it refused to shuffle the names of the venire after he finally requested such. Again, we disagree.

A motion to shuffle the names of the venire must be timely presented to the trial court. We have determined that a motion to shuffle is untimely if presented after the voir dire has commenced. And in Williams v. State, supra, this Court determined that for purposes of Article 35.11, voir dire in a non-capital murder case commences when the State begins its examination of the prospective jurors; it does not begin when the judge begins his or her initial instructions.

We reversed Williams' conviction holding that his motion to shuffle the venire, made after the judge's introductory remarks but before the State began its examination, was timely presented. The trial court's refusal to shuffle was therefore reversible error. Williams, 719 S.W.2d at 577. See also DeLeon v. State, 731 S.W.2d 948, 949 (Tex.Cr.App.1987); Yanez v. State, 677 S.W.2d 62, 70-71 (Tex.Cr.App.1984) (Clinton, J., concurring). At first blush it appears that Williams would require that the conviction in this case also be reversed; that is, because appellant made his motion to shuffle the veniremen's names before the State began its examination of the prospective jurors the trial court should have granted the motion. Upon closer examination, however, we find that the trial court was justified in denying the motion.

A unanimous Court in Williams adopted Judge Clinton's concurring opinion in Yanez and held that voir dire, for purposes of determining when a motion to shuffle is timely in a non-capital case, begins when the State initiates its questioning of prospective jurors. Williams, 719 S.W.2d at 577. Judge Clinton, in his concurring opinion to Yanez, had written:

"[B]y its enactment of Article 35.17, V.A.C.C.P., the Legislature perceived voir dire as that examination conducted by the prosecution and the defense. Thus, in its original terms, not substantially altered by amendments made in 1973, the trial court may...