Jimenez v. State , 634 S.W.2d 879 ( 1982 )

CLARK, Justice,

concurring.

I concur in the result because I agree that the appellant, by expressly accepting the jury panel after twice moving to dismiss it as tainted by the prosecutor’s statements during jury selection, waived the objections he had previously made in that regard.

I disagree strongly, however, with the attempt to justify the prosecutor’s remarks during jury selection as proper.

The prosecutor made improper, highly prejudicial remarks on two occasions during jury selection. Both were calculated to suggest to the prospective jurors, contrary to law and the trial court’s order in limine, that the appellant had a prior criminal record or was guilty of other criminal conduct in addition to that for which he was being tried.

The first of the two objectionable remarks is set out in Justice Butts’ discussion of appellant’s first ground of error. The prosecutor contrived, by purporting to ask and answer a hypothetical juror’s question about the admissibility of evidence of prior convictions, to tell the panel that the state is only allowed to bring up “criminal records of the defendant” at the punishment phase of the trial. The remark was calculated to apprise the jury panel that this particular defendant had a prior criminal record which the prosecutor was precluded from disclosing because the state was required to “play by the rules.” The prosecutor thus violated “the rules” while piously proclaiming himself bound by them. Justice Butts’ opinion seeks to legitimize the comment as merely a correct explanation of Tex.Code Crim.Pro.Ann. art. 37.07 (Vernon 1974), analogizing the prosecutor’s remarks here to the comments made in Cadd v. State, 587 S.W.2d 736 (Tex.Cr.App.1979), and Woods v. State, 569 S.W.2d 901 (Tex.Cr.App.1978). But that approach begs the question. The jury in this case was not to assess the punishment, as the prosecutor himself had taken pains to explain to the jury panel moments earlier; thus there was absolutely no legitimate reason to tell the jury that it would not get to hear about “criminal records of the defendant.” The comment certainly was as prejudicial as the comment condemned in Stearn v. State, 487 S.W.2d 734 (Tex.Cr.App.1972). In Stearn the prosecutor stated during jury argument that the state “couldn’t bring you all the circumstances surrounding the arrest.” Like the remark in Stearn, the offending comment here was an unmistakable reference to the defendant, and not a qualified reference to a hypothetical defendant. See Cadd v. State, 587 S.W.2d 736 (Tex.Cr.App.1979); Woods v. State, 569 S.W.2d 901 (Tex.Cr.App.1978). The attempt to distinguish Stearn on the ground that the improper remark in that case was made during jury argument rather than during jury selection is specious.

The second of the prosecutor’s objectionable remarks to the jury panel was, if anything, even more prejudicial than the first. When a question arose concerning a prospective juror’s recollection that he had seen television news coverage of the actual offense for which appellant was being tried, the prosecutor gave the panel his personal assurance that no reporters were present “when this offense took place,” although “there may have been some reporters there when the other offenses were committed.” The prosecutor’s remark thus injected into the discussion other criminal conduct of the defendant, and not a hypothetical defendant, and suggested in unmistakable terms that the offense for which appellant was about to be tried was not the only offense he had committed on that occasion.

Nearly fifty years ago the United States Supreme Court admonished federal prosecutors that they have a special responsibility to conduct themselves in accordance with the highest standards of fairness and professionalism in the trial of criminal cases. The court’s pointed observations in that case are equally pertinent to the facts before us:

It is fair to say that the average jury, in a greater or a less degree, has confidence that these obligations [to refrain from improper methods], which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.

Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). State prosecutors, no less than their federal counterparts, should likewise be held to high standards of fairness and professionalism and expected to heed Mr. Justice Sutherland’s admonition that the government’s attorney “may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones." Ibid.

While I agree that the judgment before us must be affirmed because the appellant expressly accepted the jury panel after the prejudicial remarks were made and objected to, I would have this court express strong disapproval of the kind of unfair trial tactics reflected by the record during jury selection in this case.

CADENA, C.J., joins in this concurring opinion.