Harris v. State

• Citation: 738 S.W.2d 207
• Decision Date: 24 September 1986
• Docket Number: No. 69224,69224
• Parties: Curtis Paul HARRIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 207

738 S.W.2d 207

Curtis Paul HARRIS, Appellant, v. The STATE of Texas, Appellee.

No. 69224.

Court of Criminal Appeals of Texas En Banc.

Sept. 24, 1986.

On Motion for Rehearing

March 11, 1987.

Michael A. McDougal, Conroe, for appellant.

Bill Turner, Dist. Atty., and E. Hubbard Kennady, III, Asst. Dist. Atty., Bryan,

Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for capital murder ¹ in which the death penalty was imposed after the jury affirmatively answered the special issues submitted under Article 37.071, V.A.C.C.P.

Appellant's previous conviction for the same offense was reversed because he was denied his constitutional right to confrontation of witnesses against him due to the trial court's refusal to allow effective cross-examination of the State's principal witness, Valerie Rencher, to establish her bias or motive in testifying. Harris v. State, 642 S.W.2d 471 (Tex.Cr.App.1982). Following a change of venue from Brazos County to Montgomery County, appellant was retried and again convicted of committing capital murder. ²

At the outset we are confronted with a claimed error in jury separation. Appellant contends the trial court erred in allowing the jurors in this death penalty case to separate after the charge was given at the guilt stage of the trial, and before a verdict was reached. Appellant argues that the separation was without his consent, that the mandatory provisions of Article 35.23, V.A.C.C.P., were violated, and that the State failed to rebut the presumption of harm.

After the charge was given to the jury and the opening arguments of the State and defense at the guilt stage of the trial had been completed, the court declared a recess telling the jury to go to the jury room. It appears that during this recess the claimed separation took place. Immediately after the recess the record reflects:

"THE COURT: Are y'all ready?

"MR. PRICE (Defense Counsel): At this time, Curtis Paul Harris, the defendant in Cause Number 16,430 moves for a mistrial for reason that the jurors have separated in violation of 3523, The Code of Criminal Procedure; there having been no waiver of separation provision.

"THE COURT: Emphatically denied. The Court was in attendance with the jurors just for convenience for the ladies who are members of this jury. So when they leave tonight, the Courthouse to journey to the motel, they didn't have to walk to a dark parking lot and pick up their vehicles. So, the Court instructed them to go there, proceeded with them to the lot, and brought the cars back here. So, your motion is overruled.

"MR. PRICE: Further, your Honor, for the record, please, may the record reflect that the Court is not the officer in charge of the jurors.

"THE COURT: Whatever, your motion is emphatically denied."

Appellant made the jury separation one of the grounds set forth in his motion for new trial, alleging his lack of consent.

Appellant testified that he had not consented to the jury separation nor had he been given an opportunity to consent or not to consent to the separation. The State did not cross-examine. Appellant's counsel, Michael McDougal, testified:

"As far--I'll just reiterate what I just said and make that my testimony that I was never given the opportunity to consent or not consent to their being allowed to separate and leave the courtroom, for any purpose, whether it was to move their cars late at night or not. And, we did not consent to that. And I think Mr Price (defense counsel) has already made his statement back when it happened."

The record then reflects:

"THE COURT: And the Court made itself perfectly clear at that time, and went on the record at that time, and will go on the record for purpose of the Motion for a New Trial, at this time, in saying that I accompanied the jurors to--from the Courthouse to the County parking lot, especially the Court being concerned, at that time, with lady-jurors, who did--would have to walk during the night to their cars after we finished that night. And the court being concerned for the welfare of the lady-jurors, as well as the jurors in general, accompanied the jurors to the County parking lot, saw them to their cars, and the return of the cars to parking under the Courthouse and return here as a group. And the Court is positive that none of the jurors had access to any information or contact with other persons during this process.

"MR. McDOUGAL: Did the Court ride in the cars with each of them?

"THE COURT: That's a mathematical impossibility, as counsel well knows.

"MR. McDOUGAL: Is the Court aware of whether or not any of the jurors listened to their radios on their way back to the Courthouse?

"THE COURT: No, the Court's not aware of that.

"MR. McDOUGAL: Is the Court aware of where the gentlemen, men-jurors, were when the ladies were moving their cars?

"THE COURT: Yes, they were moving their cars, too.

"MR. McDOUGAL: You didn't--the Court did not go with the men to move their cars? They accompanied--

"THE COURT: The Court accompanied all of them down there.

"MR. McDOUGAL: To each of their cars?

"THE COURT: Yes.

"MR. McDOUGAL: They were all parked in the same place?

"THE COURT: Yes, in the County parking lot.

"MR. McDOUGAL: All twelve jurors?

"THE COURT: Were parked in the County parking lot, except, I think, Thomas Vittrup, his was not there. He parked over in his Dad's--about a block from here, but they all individually drove their cars back over here. Anyway, ground thirty-two is denied ground thirty-three is denied, ground thirty-four is denied, ground thirty-five is denied.... All right. Be denied and thirty-six is denied.

"MR. BRYAN (Prosecutor): Your Honor, could we have ... as to the separation of ... that was late in the evening? ...

"MR. BRYAN: It was late in the evening?

"THE COURT: Yes, it was late in the evening.

"MR. BRYAN: After working hours?

"THE COURT: After normal working hours, it certainly was. We agreed to stay late that night.

"Ground thirty-seven is denied. Okay, Curtis, would you stand?"

No other effort was made by the State to show the circumstances under which the separation took place. The State did not contest the lack of consent to the separation or the lack of opportunity to consent or refuse to consent to the separation. The jurors were not called, although juror Vittrup, who apparently had gone to "his Dad's ..." to get his car, was a witness at the hearing on the motion for new trial on another ground.

Article 35.23, V.A.C.C.P., gives the trial court the discretion to permit the jurors to separate in a felony case until the court has given its charge to the jury. After receiving the charge, the jury "shall be kept together" until a verdict is rendered or until the jury is finally discharged. Once the charge is given, Article 35.23, supra, allows the jury to separate only by permission of the court and with the consent of the parties. ³ The provisions of Article 35.23, supra, are mandatory. Green v. State, 510 S.W.2d 919 (Tex.Cr.App.1974); Goodall v. State, 501 S.W.2d 342, 343 (Tex.Cr.App.1973); Wells v. State, 634 S.W.2d 868, 870 (Tex.App.-Houston [1st Dist.] 1982) pet. ref'd.

The statute requires reversal if the jury is allowed to separate after the court's charge has been given unless the defendant consents. McDonald v. State, 597 S.W.2d 365, 367 (Tex.Cr.App.1980), cert. den. 449 U.S. 1010, 101 S.Ct. 564, 66 L.Ed.2d 467 (1980); Skillern v. State, 559 S.W.2d 828 (Tex.Cr.App.1977). See also Rhynes v. State, 479 S.W.2d 70 (Tex.Cr.App.1972).

It is the defendant's burden to insure that the record shows that he or she did not consent to the separation. McDonald v. State, supra, at 367; Green v. State, supra; Burgett v. State, 646 S.W.2d 615, 619 (Tex.App.-Fort Worth 1983); Taylor v. State, 636 S.W.2d 600 (Tex.App.-El Paso 1982). "Where the defendant has established in the record that a separation occurred without his consent, the mandatory language of Article 35.23 raises a presumption of harm which the State must then seek to rebut." Taylor v. State, 636 S.W.2d, supra, at 602. See also Reed v. State, 595 S.W.2d 856, 857 (Tex.Cr.App.1980); Goodall v. State, 501 S.W.2d 342, 343 (Tex.Cr.App.1973); Decker v. State, 570 S.W.2d 948, 950, n. 7 (Tex.Cr.App.1978); Trevino v. State, 565 S.W.2d 938, 940 (Tex.Cr.App.1978); Skillern v. State, supra.

In order to afford the State an opportunity to rebut this presumption of harm, the issue of improper jury separation must be raised during trial or in a motion for new trial. Green v. State, supra, at 922; McDonald v. State, supra, at 367; McIlveen v. State, 559 S.W.2d 815, 818-819, n. 1 (Tex.Cr.App.1977); Taylor v. State, supra, at 602.

The appellant raised the issue by his motion for mistrial during trial on the merits. While he might not have fully developed the facts then, he did allege the issue in the motion for new trial. At the hearing thereon he demonstrated that neither he nor his attorneys consented to the separation, nor were they ever given an opportunity to consent. The burden thus shifted to the State to rebut the presumption of harm.

Apparently trying to equate failure to object with consent, the State argues, for the first time, on appeal, that appellant did not object to the separation before the alleged incident. The record does not show that appellant was ever aware of the proposed separation or plan to have the jurors move their vehicles. ⁴ In fact, the record indicates the contrary. The State's argument is without merit.

The State also attempts to rely upon the "housing" exception in Article 35.23, supra, and contends the men and women jurors separated and moved their vehicles in anticipation of the separation of men and women for the night as permitted by the statute. This argument is totally meritless.

Argument is also advanced that the separation was a mere temporary "de minimus" apartness of...