De La Rosa v. State

• Decision Date: 03 May 1967
• Docket Number: No. 40310,40310
• Citation: 414 S.W.2d 668
• Parties: Rudolph De LA ROSA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 668

414 S.W.2d 668

Rudolph De LA ROSA, Appellant, v. The STATE of Texas, Appellee.

No. 40310.

Court of Criminal Appeals of Texas.

May 3, 1967.

John W. O'Dowd, John Michael Ille, Houston, for appellant.

Carol Vance, Dist. Atty., Richard M. DeGuerin and Gerald Applewhite, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

Appellant was convicted as a second offender of unlawfully possessing a narcotic drug under the provisions of the Uniform Narcotic Drug Act and his punishment was assessed by the jury at confinement in the Texas Department of Corrections for twelve (12) years.

The trial commenced on October 7, 1965, and concluded the following day prior to the effective date of the 1965 Code of Criminal Procedure. Notice of appeal, however, was given on January 28, 1966, and the provisions of the 1965 Code will control as to appellate procedure. Carter v. State, Tex.Cr.App., 408 S.W.2d 507; Jones v. State, Tex.Cr.App., 406 S.W.2d 451; Ross v. State, Tex.Cr.App., 403 S.W.2d 138; Rivera v. State, Tex.Cr.App., 403 S.W.2d 130.

In his brief filed in the trial court, appellant, in his first ground of error, contends that the trial court erred in allowing the State to fingerprint the appellant in open court, after the State had announced ready, in violation of his privilege against self-incrimination.

This contention that he was compelled to give evidence against himself when the State was permitted to introduce fingerprints taken on the morning of his trial in open court in the absence of the jury has been determined adversely to him in Platt v. State, Tex.Cr.App., 402 S.W.2d 898; Dennison v. State, Tex.Cr.App., 399 S.W.2d 365; Gage v. State, Tex.Cr.App., 387 S.W.2d 679. See Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021; 8 Wigmore, Evidence, Sec. 2265 (McNaughton Rev.1961).

In his next ground of error, appellant contends that the trial judge erred in denying him and his attorneys the right to examine each member of the jury panel on voir dire and such action deprived him of a fair and impartial trial by jury, of the right to counsel, as well as the effective assistance of counsel in violation of the Federal and State Constitutions.

The record reflects that prior to the voir dire examination of the jury panel, the Court instructed the attorneys that each side would have thirty minutes to conduct their portion of voir dire examination. To which action of the Court, the appellant vigorously objected in writing, pointing out that thirty-two prospective jurors would have to be qualified before the exercise of peremptory challenges; that such arbitrary limitation would deprive him of asking each prospective juror his name, address, marital status, place of employment, religious and educational background, prior jury service and attitude toward 'second offender cases' and certain principles of law. He requested the Court to allow him to propound approximately fifteen questions which he set out in his motion. All such questions appear to be proper voir dire questions. The objection was overruled and the request denied.

Thereafter, the Court propounded to the jury panel certain principles of law concerning the presumption of innocence, burden of proof, the defendant's failure to take the stand, etc., the law applicable to the trial of criminal cases in general, the responsibility and duties of jurors, and addressed questions to the panel as a whole as to their qualifications. At the conclusion of which two of the members of the panel were excused because of their prejudice arising from the nature of the charge. The State thereafter concluded its individual examination of the thirty-two jurymen in approximately twenty minutes. The appellant propounded certain questions collectively to the jury panel concerning principles of law and while he was questioning the sixteenth juror individually, he was informed by the Court his time was up and he was given five minutes in which to strike his jury list. His request to continue the voir dire examination was denied as was a similar motion renewed after the selection of the jury, but prior to the impaneling. The jury panel was not excused until after the jury list had been struck. The record further reflects that his request to perfect his bill of exception to show what the jurymen's answers would have been and how he had been harmed was denied. His additional request for the same purpose to question those jurors selected, but not yet impaneled, who had not been previously interrogated individually was likewise denied. The record reveals that appellant exercised at least four of his peremptory challenges on prospective jurors that he had not been allowed to question individually, being numbers 20, 22, 28, and 31 on the jury list.

It is abundantly clear from the record that the appellant attempted to perfect his bill of exception at the time all prospective jurors were present, to show that he had exhausted his peremptory challenges nad had been forced to take an objectionable juror and was thus harmed, but he was prevented from doing so by the action of the Court.

A review of appellant's voir dire examination of the prospective jurors reveals no attempt to prolong the voir dire. Not a single objection was addressed to any of his questions, and they do not appear to be irrelevant, immaterial or unnecessarily repetitious. The docket sheet reflects that jury selection began at 2.32 P.M. and concluded at 3:20 P.M.

Trial by impartial jury has been considered a bulwark of Anglo-American liberties particularly in criminal cases where it operates as a protection of civil liberties. An impartial jury has been said to be one which favors neither party, which is unprejudiced, disinterested, equitable, and just, and which is composed of jurors who have not pre-judged the merits of the case. See Duncan v. State, 79 Tex.Cr.R. 206, 184 S.W. 195.

The voir dire process is designed to insure--to the fullest extent possible--that an intelligent, alert an impartial jury will perform the duty assigned to it by our judicial system.

Both Article 1, Sec. 10, Texas Constitution, Vernon's Ann.St., and Article 4 (now 1.05) Vernon's Ann.C.C.P. provide that an accused person shall have the right of being heard by himself or counsel or both. It is well established by numerous decisions of this Court that this constitutional guarantee of the right to be represented by counsel carries with it the right of counsel to interrogate the members of the jury panel to the end that he may form his own conclusion, after his personal contact with the juror, as to whether in counsel's judgment he would be acceptable to him or whether, on the other hand, he should exercise a peremptory challenge to keep him off the jury. Mathis v. State, 167 Tex.Cr.R. 627, 322 S.W.2d 629; Olliff v. State, 161 Tex.Cr.R. 336, 276 S.W.2d 839; Carlis v. State, 121 Tex.Cr.R. 290, 51 S.W.2d 729; Pendergrass v. State, 121 Tex.Cr.R. 213, 48 S.W.2d 997; Hirschberg v. State, 108 Tex.Cr.R. 175, 299 S.W. 641; Plair v. State, 102 Tex.Cr.R. 628, 279 S.W. 267; Belcher v. State, 96 Tex.Cr.R. 382, 257 S.W. 1097; Reich v. State, 94 Tex.Cr.R. 449, 251 S.W. 1072; Kerley v. State, 89 Tex.Cr.R. 199, 230 S.W. 163; Barnes v. State, Tex.Cr.App., 88 S.W. 805.

Further in Plair v. State, supra, it was said:

'To prepare himself for the intelligent exercise of the peremptory challenges allowed him by statute, one accused of crime has the right, through his counsel, to direct to the veniremen appropriate questions. See Vernon's Tex.C.C.P. art. 690; Belcher v. State, 96 Tex.Cr.R. 382, 383, 257 S.W. 1097, and precedents cited therein. He has such right also when his questions are framed with the view of challenging for cause. In each instance, it is within the province of the presiding judge to limit and control the examination; and, in so doing, his discretion is broad, but...