Williams v. State
| Decision Date | 29 May 2009 |
| Docket Number | No. 07-08-0007-CR.,07-08-0007-CR. |
| Citation | 290 S.W.3d 473 |
| Parties | James Leon WILLIAMS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
David Finn, Milner & Finn, F. Clint Broden, Broden & Mickelsen, Dallas, TX, for Appellant.
Cynthia W. Hellstern, Asst. County & District Atty., Joe F. Grubbs, County & District Atty., Waxahachie, TX, for Appellee.
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, James Leon Williams, was charged by indictment with two counts of criminally negligent homicide. Appellant was convicted by a jury and sentenced to seven years imprisonment, however, the term of confinement was suspended and appellant was placed on community supervision for a period of seven years. Appellant appeals the judgment of the trial court claiming a violation of the due process clause of the United States Constitution and a violation of the due course of law provision of the Texas Constitution. We affirm.
Appellant is not claiming error in the ultimate trial of his case, instead he is claiming that the charges against him should have been dismissed before he stood trial because of violation of both his United States and Texas constitutional rights. For these reasons we will only address those procedural facts that are relevant to our determination of the issues.
On November 6, 2006, a jury was selected to try appellant's case. That jury was seated but not sworn. The selected jury was instructed to return for the trial of appellant's case on November 14, 2006. Upon arrival for trial, appellant was notified that two of the jurors had become ill and were unable to continue. After appellant was unable to agree to two substitute jurors from the jury list, the panel was dismissed and the matter was, subsequently, rescheduled for jury selection on January 9, 2007, with trial to commence later in January.1 The second voir dire was conducted on January 9, 2007, and a jury was again selected but not sworn.
During the appellant's portion of voir dire, there were numerous confrontations between the trial judge and appellant's trial counsel. As an example, at the beginning of appellant's voir dire, trial counsel began giving a recitation about his background and family when the trial judge stated "No biographies." Trial counsel reacted with the statement, "But it's my time, Judge." The trial judge retorted, Later in the voir dire, trial counsel was discussing a fact pattern with a prospective juror and, after the juror had stated that he would consider the fact pattern an accident, the trial judge made the following comment without the State interposing an objection,
And that's not what it is. It's criminal negligent homicide. If you find that it was committed it was criminal negligence—criminally negligent homicide. It's not considered a, quote, accident.
After the trial judge's comment, trial counsel stated, "And if you don't think they proved it beyond a reasonable doubt it's called an acquittal." The trial court remarked, Trial counsel stated, "Thank you," to which the trial judge commented, "If you want to get into it, we can get into it." The trial judge's concluding comment in this portion of the voir dire was, Ultimately, the jury was selected and the trial was recessed to a later date.
Prior to reconvening for trial, the trial judge sent a letter, on January 11, 2007, advising counsel that the jury selected but not sworn on January 9, 2007, was dismissed and that a new trial date had been set. On January 16, 2007, appellant's trial counsel filed a request for the entry of findings of fact and conclusions of law regarding the court's reasons for discharging the selected but not sworn jury. That same day, trial counsel also filed a motion requesting a hearing prior to the discharge or dismissal of the selected but not sworn jury. Also filed on January 16, 2007, was a motion to recuse/disqualify the trial judge. The trial judge refused to recuse and the matter was referred to the Administrative Judge for the 1st Administrative Region for assignment of a judge to hear the motion to recuse. A hearing on the motion to recuse was conducted on February 22, 2007, and an order of recusal was entered by the visiting judge on February 27, 2007, with a different visiting judge being assigned to try appellant's case.
On July 5, 2007, the assigned visiting judge heard appellant's motion to dismiss the indictment against him. The motion alleged the same grounds as alleged on appeal. The visiting judge overruled the motion. Trial was subsequently conducted on October 29, 2007, and a verdict of guilty was returned on October 31, 2007. After the jury's verdict, the visiting judge assessed appellant's sentence at seven years imprisonment on each of the two counts, with the term of confinement suspended on each count and placed appellant on community supervision for a period of seven years. It is from this judgment that appellant appeals.
Through two issues, appellant contends that the sua sponte action of the trial court in dismissing the chosen but not sworn jury violated his constitutional rights. Specifically, appellant contends: 1) the dismissal of the selected jury violated his right to due process under the Fifth and Fourteenth Amendments to the United States Constitution and 2) the dismissal of the selected jury violated his constitutional right to due course of law under Article I, section 19 of the Texas Constitution. We disagree and affirm the judgment.
The relevant facts leading up to the dismissal of the chosen but unsworn jury are relatively uncontested. The trial judge and trial counsel engaged in a pattern of conflict that, according to the members of the jury panel who testified at the recusal hearing, could be labeled as exhibiting animus toward trial counsel. Rather than a question of the nature of the exchanges between the trial judge and trial counsel, the real questions are what does the record reveal as the reason for the discharge of the unsworn jury and how must we gauge the action of the trial judge in discharging the jury when the trial judge gave no reason for the discharge of the selected but unsworn jury. We are left to review the record in an attempt to ascertain what led to the trial court's dismissal of the jury.
Since the jury chosen was not sworn, jeopardy had not yet attached. See Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963) (); see also Proctor v. State, 841 S.W.2d 1, 4 (Tex.Crim.App.1992) (). Because jeopardy had not attached at the time the trial judge dismissed the jury, appellant is left to claim harm through a denial of due process for purposes of his federal constitution claim and denial of due course of law for purposes of his state constitutional claim.
Appellant contends that for purposes of analysis, we must view the action of dismissing the chosen but unsworn jury as a denial of due process and due course of law without regard to an inquiry into bad faith on the part of the trial judge. Appellant's contention is based upon what he describes as "his valued right to have the trial completed by a particular tribunal." See Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949). Additionally, appellant contends that, by finding a due process and due course of law violation, we will recognize the impropriety of the trial judge's actions. Finally, appellant contends that sustaining the trial judge's actions would eviscerate the holding of Batson v. Kentucky for it would allow judges to dismiss jury panels chosen but not sworn or prosecutors to dismiss indictments without prejudice after a jury has been chosen but not sworn in order to affect the racial composition of juries. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
We decline appellant's invitation to assume bad faith on the part of the trial judge. We do so for two reasons. First, the record reveals that the trial judge habitually selects a number of juries at one time. In all cases, unless trial is starting immediately, the selected jurors are excused to come back on the appointed day for trial. It is at that time that the jurors are sworn. Accordingly, the facts do not sustain appellant's contention that, by not swearing the jury in after they were selected, the trial court must have had some nefarious plan in mind. Further, the record reveals that the members of the jury panel who testified at the recusal hearing all felt that the trial judge had been rude or arrogant with trial counsel. The consensus of opinion amongst those witnesses was that appellant might not get a fair trial if trial counsel continued to represent him in front of the trial judge. This testimony is consistent with the State's position that the trial court dismissed the selected but unsworn jury because the trial judge realized that he had overstepped the bounds of proper judicial conduct during the voir dire. Secondly, we note that the United States Supreme Court has been reluctant to presume vindictiveness against defendants when allegations of due process violations occur before the conclusion of trial. See United States v. Goodwin, 457 U.S. 368, 369, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982) (). Therefore, we will not apply a...
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...the jury would place him in double jeopardy. Because the jury was chosen, but not sworn, jeopardy had not attached. Williams v. State, 290 S.W.3d 473, 476 (Tex. App.—Amarillo 2009, no pet.). Babalola argues that he had both a due process and due course of law right to be tried by the jury s......
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