S---- C---- v. State

Citation715 S.W.2d 379
Decision Date09 July 1986
Docket NumberNo. 04-85-00226-CV,04-85-00226-CV
PartiesIn the Matter of S____ C____, Jr., A Juvenile, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Appeals

Don Fidler, San Antonio, for appellant.

Sam Millsap, Jr., W. Michael Hervey, San Antonio, for appellee.

Before CADENA, C.J., and BUTTS and CANTU, JJ.

OPINION

CANTU, Justice.

Appeal is from a finding of delinquency. Appellant was charged by petition with having engaged in delinquent conduct by committing the offense of capital murder. Following an unfavorable jury trial, appellant was ordered committed to the Texas Youth Council.

We are favored with five points of error, some of which require a review of the evidence adduced.

The petition alleging delinquent conduct recites in pertinent part:

... on or about the 28TH day of DECEMBER, A.D., 1984, in the County of Bexar and the State of Texas, S____ C____, Jr., hereinafter called respondent, did then and there intentionally cause the death of an individual, namely: ISIDRO FELAN, hereinafter called complainant, by STABBING THE SAID IDIDRO FELAN WITH A KNIFE, and the said respondent did then and there intentionally cause the death of the said complainant while in the course of committing and attempting to commit the offense of ROBBERY upon THE SAID ISIDRO FELAN; ...

We begin with a summary of the facts.

On December 28, 1984, in San Antonio, appellant, a fourteen year old male, and four other male companions ranging in ages from fifteen to nineteen spent the day at appellant's house drinking beer and smoking marihuana. That evening at about 11:00 p.m. someone suggested that they "go roll a wetback" which meant that they were to go find an illegal alien to rob.

One of the youths left but the others, including appellant, agreed to go down to the business area along U.S. Highway 90 to search for a victim. Before leaving, however appellant went inside his house and obtained a kitchen knife. One of the other youths, the fifteen year old X____ R____, carried a club-like stick.

As the group approached a nearby elementary school a figure was spotted walking along U.S. Highway 90. Appellant and his companions hid in the bushes and followed behind the subject in an effort to get closer to him. X____ R____ and appellant then broke from the group and ran towards the subject who in turn began to accelerate his pace.

X____ R____ began to beat upon the subject with the club as the subject, who was later identified as the complainant, attempted to elude his assailant. By this time appellant had caught up to X____ R____ who was still chasing and beating up on the complainant behind one of the business establishments on U.S. Highway 90. Appellant and X____ R____ then demanded money and cigarettes of the complainant at knife point. The complainant was then forced to remove his shoes in a search for money.

As a police officer drove by, appellant stabbed the complainant twice and ran off with X____ R____. The youths all gathered at a common meeting area and from there returned to appellant's house. The complainant died later as a result of two six inch deep wounds to the abdomen. Appellant subsequently, through a conversation, admitted to one of the other youths that he had stabbed someone two times while he was "rolling" him.

Appellant's first assignment of error complains of the trial court's refusal to grant his timely motion to shuffle and redraw the jury list.

Immediately following rulings on pretrial motions and before jury voir dire the following transpired.

THE COURT: Anything else?

(Defense Counsel)

MR. FIDLER: Looking at the jury list I will request a shuffle.

THE COURT: You have already had your shuffle by the computer. We have a local rule on that.

(Prosecutor)

MR. HERVEY: There has been a shuffle already.

THE COURT: It has been shuffled by computer and this is in random shuffled order done by the central jury room.

MR. FIDLER: I am requesting that the 32 jurors called down here, standing outside the courtroom, starting with Cathleen Rothen and ending with Robert Olivari--

THE COURT: The shuffle has already taken place. It was done by the computer and that is denied. Is there anything else?

MR. FIDLER: Judge, by shuffle do you mean--

THE COURT: I mean that it is totally random.

MR. FIDLER: In other words, these 32 individuals were picked at random?

THE COURT: Each up there was picked at random. This is a random selection.

(Prosecutor)

MR. JACKSON: Under the Civil Rules do the parties have a right to a second shuffle?

THE COURT: In my mind, no.

MR. FIDLER: Wait a minute. We're getting confused. This is a random list but there has been no request that this panel of 32 be shuffled. But if they were chosen at random, then I accept the court's explanation that it was random. But I think that I have the right to shuffle these 32 that were called.

THE COURT: That is denied ...

Rule 223, Texas Rules of Civil Procedure, provides in pertinent part:

...; provided, however, that the trial judge upon the demand of any party to any case reached for trial by jury, or of the attorney for any such party, shall cause the names of all the members of the general panel available for service as jurors in such case to be placed in a receptacle and well shaken, and said trial judge shall draw therefrom the names of a sufficient number of jurors from which a jury may be selected to try such cause, and such names shall be transcribed in the order drawn on the jury list from which the jury is to be selected to try such case.

Appellant points out that the TEX.CODE CRIM.PROC.ANN. art. 35.11 is similar to Rule 223.

Article 35.11 provides:

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 such case, and such names shall be written, in the order drawn, on the jury list from which the jury is to be selected to try such 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 criminal cases, it is error for the trial court to refuse a jury panel shuffle when timely requested under article 35.11. Hall v. State, 661 S.W.2d 113 (Tex.Crim.App.1983) (en banc); Latham v. State, 656 S.W.2d 478 (Tex.Crim.App.1983) (en banc); Davis v. State, 573 S.W.2d 780 (Tex.Crim.App.1978); Woerner v. State, 523 S.W.2d 717 (Tex.Crim.App.1975).

In civil cases a trial court is specifically authorized by Rule 223 to have the jury list shuffled after the list is sent to the particular court if a party or his counsel makes timely request. This is so irrespective of the fact that the clerk's office has scrambled or shuffled the jurors' names prior to assignment of the list to a particular court. No error occurs if the trial court grants a right authorized by the rule. Davis v. Huey, 608 S.W.2d 944 (Tex.Civ.App.--Austin 1980), rev'd on other grounds following remand, 620 S.W.2d 561 (Tex.1981); Patterson v. East Texas Motor Freight Lines, 349 S.W.2d 634 (Tex.Civ.App.--Beaumont 1961, writ ref'd n.r.e.).

Moreover, no error occurs if the request for a new shuffle is not timely made or if a party acquiesces in the jury selection without a request for shuffle. Harrison v. Missouri-Kansas & T.R. Co. of Texas, 89 S.W.2d 455 (Tex.Civ.App.--Dallas 1935, writ dism'd).

While article 35.11 has been held to mandate an automatic reversal without the need to show harm upon proper invocation and refusal by the trial court, see Davis v. State, supra; Woerner v. State, supra, Rule 223 has been subjected to application of the harmless error doctrine. See Rivas v. Liberty Mutual Insurance Co., 480 S.W.2d 610 (Tex.1972).

The Court of Criminal Appeals, in Adams v. State, 50 Tex.Cr.R. 586, 99 S.W. 1015, 1016 (1907) stated:

Appellant has a right to be present when his jury is drawn, and the right to see that the list is drawn by the proper person and in accordance with law; and the court should, when this objection was made, have set aside the list already drawn, and then ordered the clerk to draw a new list for the trial of the case. It is no answer to this requirement of the statute to urge that no injury is shown; that appellant, by the means adopted, was furnished with a fair and impartial jury. We might go further, and say, according to this reasoning, the court might adopt any method outside of the statute which might secure a fair and impartial jury. The law has ordained a tribunal for the trial of criminal cases, and has provided the method of selecting a jury, and there is no authority to resort to any other method, and it is not incumbent on appellant to show that he suffered injury by the failure of the court to follow the statutory method.

See also, Woerner, supra at 718; Moore v. State, 132 Tex.Cr.R. 403, 105 S.W.2d 250 (1937).

On the other hand, in Rivas the Supreme Court took the position that under Rule 223 substantial compliance with the rule was all that was required. In holding that no inference of probable harm arose from a failure to grant a shuffle, the Court placed upon the complaining party the burden of showing harm.

The Court further denominated a violation of the rule as nonfundamental error subject to the harmless error standard of Rule 434, that is, that the error does not require reversal unless the denial was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case.

The Court reasoned that Rule 223 was simply designed to insure a random selection of jurors.

Coincidentally, both courts at one time followed the same statute with regard to shuffling of jury lists.

Vernon's Ann.Civ.Stat. art. 2138, 1 the...

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