McDonald v. State
| Decision Date | 19 March 1980 |
| Docket Number | No. 1,No. 58823,58823,1 |
| Citation | 597 S.W.2d 365 |
| Parties | Sam McDONALD, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Before ONION, P. J., and ODOM and DAVIS, JJ.
This is an appeal from a conviction for voluntary manslaughter. Punishment was assessed by the jury at fifteen years.
The sufficiency of the evidence is not challenged.
In his first two grounds of error appellant challenges denial of his objections to the jury charge at the guilt stage of the trial for failure to submit the defensive issues of defense of third persons, V.T.C.A., Penal Code Sec. 9.33, 1 and deadly force to protect property, V.T.C.A., Penal Code Sec. 9.42. 2 We find no error because the evidence did not raise these issues.
Briefly stated, the evidence shows that the deceased came to appellant's home regarding a real estate transaction between the two of them. After first discussing the matter on the front porch, appellant went around through the garage and entered this house through the kitchen door. The deceased followed him, and after entering the kitchen he was shot by appellant with a shotgun. Appellant testified that the deceased was belligerent towards him and was coming towards him with a butcher knife picked up in the kitchen, when appellant pulled out the shotgun and fired. He also testified:
The jury was properly charged on self defense. V.T.C.A., Penal Code Sec. 9.32. One requirement for the defense of third persons, however, is that the defendant reasonably believe his action is immediately necessary to protect the third person. Sec. 9.33(2), supra. The evidence in this case showed appellant's wife and daughters were in another part of the house, and there is no evidence of any need for immediate action to protect them from the deceased, or even that any threats were made against them by the deceased.
Under Sec. 9.42(2), supra, deadly force may be used to protect property only if the defendant had a reasonable belief that such force was immediately necessary to prevent the immediate commission of arson, burglary, robbery, theft at night or criminal mischief at night, or to prevent someone from escaping with property who is fleeing immediately after committing burglary, robbery, or theft at night. No evidence was presented that the deceased was committing any of the listed offenses, or fleeing with property taken in one of the listed offenses. The first two grounds of error are overruled.
Appellant's next two grounds of error, argued together, concern the separation of the jury without appellant's consent after the charge was read at the guilt stage of the trial, in violation of Art. 35.23, V.A.C.C.P., and the subsequent hearing, after return of the punishment verdict, at which the jurors were questioned by the court about their conduct during the improper separation.
Art. 35.23, supra, requires reversal if the jury is allowed to separate without the defendant's personal consent, after the court has given its charge to the jury. Skillern v. State, Tex.Cr.App., 559 S.W.2d 828. It is the defendant's burden, however, to insure that the record reflects that he did not consent to the separation. Green v. State, Tex.Cr.App., 510 S.W.2d 919. Once that fact is established, the burden shifts to the State to show that no harm to the defendant occurred as a result of the improper separation. Skillern v. State, supra. When the issue is first raised on appeal, the State is denied the opportunity to show no harm resulted. Green v. State, supra, at 922. When the issue is timely raised in the trial court, the State is entitled to an opportunity to show that no harm occurred through improper communications or conduct during the erroneous separation. See, Johnson v. State, Tex.Cr.App., 467 S.W.2d 247. It would be inconsistent to place the burden on the State to show no harm, and then deny it an opportunity to meet that burden.
The record in this case shows an improper separation of the jury without appellant's consent, in violation of Art. 35.23, supra but it also shows that after the punishment verdict was returned, the court, on its own motion, held a hearing at which each juror was sworn as a witness and separately questioned about his or her conduct during the earlier separation. The State and appellant's counsel were also allowed to examine each juror-witness at this hearing. The testimony demonstrated that no harm befell appellant during the erroneous separation of the jury.
Appellant presents a multi-faceted argument. He asserts the separation was erroneous, the hearing was unauthorized, warnings by the trial judge to some of the juror-witnesses were intimidating in nature, and the effect on the jurors was to make them unwilling to talk to defense counsel about possible jury misconduct. We will consider each facet in turn.
It is true that the separation of the jury was in violation of Art. 35.23, supra, and was error. Testimony of the jurors at the subsequent hearing, however, showed appellant was not harmed by this error.
Although the post-verdict hearing was not specifically authorized by statute, it is also true that there is no specific statutory procedure for the State to meet its burden in this situation as discussed above. Appellant cites Tsamouris v. State, Tex.Cr.App., 472 S.W.2d 141, in which it was held not error to refuse to grant the defendant a hearing on possible jury misconduct immediately after the verdict was returned. That case is first distinguishable in that there is no indication there that misconduct had occurred; here an erroneous separation had occurred. It is also distinguished by the fact that a defendant may use a motion for new trial to present evidence on that issue; the State has no such procedure available. We hold it was not error to hold the hearing immediately after the verdict was returned.
Three of the juror-witnesses were admonished by the trial judge about the privilege against self-incrimination and the possibility of contempt charges. While this should not have occurred, Jackson v. State, 167 Tex.Cr.R. 34, 318 S.W.2d 98, in each instance the privilege was waived and the juror testified. Also, no objection was raised to the first two of the three who were admonished, which distinguishes this case from Jackson, and, after objection was made to the third juror, no admonishments were given to any of the later...
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Harris v. State
...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). S......
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Table of cases
...604 S.W.2d 113 (Tex. Crim. App. [Panel Op.] 1980) 4:60 McCuin v. State 505 S.W.2d 827 (Tex. Crim. App. 1974) 2:20, 2:60 McDonald v. State 597 S.W.2d 365 (Tex. Crim. App. [Panel Op.] 1980) 3:1920 McDuff v. State 939 S.W.2d 607 (Tex. Crim. App. 1997) 3:275 McElwee v. State 493 S.W.2d 876 (Tex......