State ex rel. Rosenthal v. Poe
| Decision Date | 12 February 2003 |
| Docket Number | No. 74515.,74515. |
| Citation | 98 S.W.3d 194 |
| Parties | The STATE of Texas ex rel. Charles A. ROSENTHAL, Jr., District Attorney of Harris County, Relator, v. The Honorable Ted POE, Judge 228th District Court of Harris County, Respondent. |
| Court | Texas Court of Criminal Appeals |
Charles L. Babcock, Houston, for Appellant.
William J. Delmore, III, Asst. DA, Houston, Matthew Paul, State's Atty., Austin, for State.
HERVEY, J., delivered the opinion of the Court in which PRICE, WOMACK, HOLCOMB, and COCHRAN, JJ., joined.
This is an original mandamus proceeding. Relator seeks a writ of mandamus directing respondent to vacate a portion of his order authorizing the videotaping of jury deliberations in a capital murder trial in respondent's court. We will conditionally grant mandamus relief.
The record reflects that after carefully considering and weighing the parties' interests, Respondent signed an order permitting WGBH Educational Foundation, Mead Street Films, Inc., and the PBS television program Frontline (collectively referred to as "Co-Production") to videotape for later public broadcast, all of the proceedings (including jury deliberations) in the capital murder trial of Cedric Ryan Harrison, Cause Number 913,903 in the 228th District Court of Harris County.1 As part of his order authorizing the videotaping, respondent found that Co-Production "has demonstrated seriousness of purpose and committed significant resources to this public educational endeavor and is uniquely deserving of the exclusive right to broadcast the footage it records." Unattended cameras and sound recording equipment will record the jury deliberations with no one from Co-production present in the jury room during these deliberations. Respondent has taken other measures to ensure that none of the proceedings will be broadcast "until after the conclusion of all matters in the trial court."
The record further reflects that Respondent did not authorize the videotaping of the proceedings until after having carefully questioned Mr. Harrison and his lawyer about Mr. Harrison's decision to consent to the videotaping and being satisfied that Mr. Harrison freely consented to it. The record also reflects that Mr. Harrison waived in writing, any statutory or constitutional right to use any of the recordings "as evidence in a motion for new trial, on direct appeal, or in post-conviction proceedings in state or federal court" and to use any of the recordings "as evidence of error or misconduct that may occur during trial and jury deliberations." Mr. Harrison also acknowledged in writing his understanding "that recorded jury deliberations cannot be used in a motion for new trial, direct appeal, or post-conviction proceedings pursuant to Texas and Federal Rule of Evidence 606(b)." Mr. Harrison's attorney asserted in writing that Mr. Harrison's waiver "was executed voluntarily and freely" and that Mr. Harrison was "competent to make such waiver." Mr. Harrison's mother stated in writing that she had consulted with Mr. Harrison "regarding [his] waiver" and she consented in writing "to the filming of trial and jury deliberations."2
When jury selection proceedings began, each veniremember was required to fill out a juror questionnaire form which asked the veniremember whether videotaping the proceedings to be aired for public television purposes after the trial would affect various aspects of the veniremember's deliberations such as the veniremember's "ability to be fair." The record further reflects that, at the beginning of voir dire, respondent carefully explained to the veniremembers that the trial proceedings would be videotaped for broadcast after trial for educational purposes and asked the veniremembers whether this would affect their deliberations. Respondent also informed the veniremembers that he had never heard of this happening before and that he believed that the videotaped proceedings would be "edited, cut down to some kind of an hour, two hours."
[RESPONDENT]: The second questionnaire that you filled out has to do with television or videoing of this particular trial. In this particular case, I suspect that the entire trial may be videoed for showing on public television after the trial is completely over with down the road. That is a possibility. And that includes every aspect of the trial including jury selection all the way through jury deliberations and every aspect of the trial in between.
Several of you stated in your questionnaire that you did not want to be videoed. That's great. That's why we asked the question. And I want to explain that a little further and see if there's any further responses. Because that's the first order of business and after we have cleared that up, we will start the jury selection in this case. As I mentioned, this case will be videoed for public television at some later date from jury selection to trial, all aspects of the trial including jury deliberations. It will not be live. It will not be aired live. In other words, this isn't live TV. It's videoed. Will be edited, cut down to some kind of an hour, two hours. I'm not sure.
Everything that takes place in a jury room is secret in the sense that no one will know what takes place back there except it would be recorded. That is the possibility in this case, it would be recorded.
Now, other than the ones that have already answered that question on the questionnaire, let me ask the rest of you. Is there anyone in this audience who feels that having the trial videoed for a later showing, including jury deliberations, in any way would affect your decision in this case? I don't how it would affect you [sic]. But would it affect you in any way at all? Could you be just as candid and forthright as a juror in this case with a camera and without a camera? That's really the question. So, other than the ones that have already answered that question, are there any others who feel that the videoing of this trial for showing on TV public television at a later time would affect you in any way during the trial, keep you from being fair, keep you from being objective, keep you from saying something, any of those things?
Anybody else?
If you do, raise your hands.
You'll get this question again before each one of you that are on the jury are sworn in, I'm going to ask you this question one more time. Because it's important. I'll level with you. As far as I know, this has never been done in a court of law, ever, in any courtroom anywhere. And the defense in this case is agreeing to this. They don't object, just so you know. And that is why it will be taking place in this case. But it's the first time. Never heard of it happening and you probably never will[.]
So, anybody else, other than those people that filled out the form that would give them a concern? Are there any other people? Okay.
The record reflects that 13 veniremembers were "excused by agreement" because "they had a problem about having the case videoed."
The next day two more veniremembers were "excused by agreement" for similar reasons. That same day relator filed this original mandamus proceeding in this Court seeking to bar only the videotaping of the jury deliberations. Relator asserts that, when he filed this mandamus proceeding, "a panel of prospective jurors [had] completed preliminary questioning and was directed to return to relator's court for individual voir dire examination" at a later date. This Court stayed the proceedings in respondent's court before individual voir dire examination began. This Court later granted relator's motion for leave to file with the stay remaining in effect "pending further orders by this Court."
This Court will grant mandamus relief if relator can demonstrate that the act sought to be compelled is purely "ministerial" and that relator has no other adequate legal remedy. See Hill v. Fifth Court of Appeals, 34 S.W.3d 924, 927-28 (Tex.Cr.App.2001). We have described the "ministerial act" requirement as a requirement that the relator have "a clear right to the relief sought" meaning that the relief sought must be "clear and indisputable" such that its merits are "beyond...
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