Holifield v. State, 51745
| Decision Date | 07 July 1976 |
| Docket Number | No. 51745,51745 |
| Citation | 538 S.W.2d 123 |
| Parties | Josepha HOLIFIELD, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Robin M. Green, Amarillo, for appellant.
Thomas A. Curtis, Dist. Atty., Bruce P. Sadler, Asst. Dist. Atty., Amarillo, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.
This is an appeal from a conviction for the offense of burglary of a building with intent to commit theft. The court assessed punishment at ten years.
The sufficiency of the evidence is unchallenged. Appellant contends that a new trial should have been granted because the jury was not allowed to express their feelings to the court after it had returned a verdict and that the judge was disqualified because at one time he was a district attorney in an adjoining county and had instituted prosecution against her for another offense. These contentions are overruled.
In the early morning hours of January 9, 1974, a burglary occurred at the Catching Pharmacy located at 811 Lamar Street, Amarillo. While the burglary was in progress, police arrived on the scene and found that a hole had been chopped in the roof of the pharmacy. Appellant and three companions were arrested at the scene.
In her first ground of error, appellant contends that the trial court erred in refusing to grant a new trial because several jurors stated in their affidavits that they thought their deliberations were not complete at the time their verdict was returned and that the court declined to hear their opinion when they returned the verdict.
The trial lasted three days. The jury received the court's charge the afternoon of the second day, March 18, 1975. At approximately 6:05 p.m., the jury foreman sent to the court a note as follows: 'It appears that the jury is unable to reach an unanimous verdict.' The jury was returned to the jury box and inquired of by the court as to its numerical split without having the foreman state it in terms of guilty or not guilty. The foreman replied that it was an 11--1 split. The court then inquired of the foreman as to whether or not he felt further deliberation in the morning would be meaningful after the jury had the night to think it over. In response the foreman stated that he could not speak for the one individual but that he thought the jury would be willing to wait and see. At 9:00 o'clock the next morning the jury resumed its deliberations. At 9:45 a second note was received from the jury as follows:
By agreement of counsel and the appellant herself, the following written reply was sent to the jury by the court:
'. . . 'Mr. McGee, I can only refer you to Paragraphs 6 and 7 which read together constitute the law concerning intent in this case.
"Concerning Paragraph 8, intoxication, I can only refer you to the Court's Charge."
At 11:45 a.m. another note was received from the jury as follows:
'. . . 'Judge Dowlen, is it permissible to have read into the record of this case an opinion of the jury which would not affect the verdict, but express the feeling of the jury? We have reached a unanimous decision on this case."
The jury was returned to the jury box after argument by the prosecutor that such opinion should not be allowed to be read into the record. When the jury returned, the court asked the foreman, 'Mr. McGee, has the jury reached a verdict?', to which McGee responded, 'Yes, sir, we have.'
The verdict was then read aloud by the court followed by the inquiry, 'Ladies and gentlemen, is this your verdict?' The jury answered affirmatively. Defense counsel then requested the jury be polled and each member of the panel was asked individually if the verdict as read was his or her verdict and each juror answered affirmatively. The jury was then discharged with instructions that they were now free to discuss the case with counsel if they desired and could give or not give an affidavit. Defense counsel objected to their discharge.
A hearing was then held so that defense counsel might perfect his bill of exception to the court's order discharging the jury. At this hearing eight jurors testified, two of which testified that ...
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