Benny Earl Roberts v. State ( 1997 )

Bennie Earl Roberts v. State (12-94-00205-CR).wpd NO. 12-94-00205-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

BENNIE EARL ROBERTS,

§ APPEAL FROM THE 173RD

APPELLANT

V.

§ JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,

APPELLEE

§ HENDERSON COUNTY, TEXAS

________________________________________________________________________

This is an appeal from Appellant's conviction for the offense of delivery of a controlled substance. A jury found Appellant guilty of the offense, and the trial court assessed Appellant's punishment at thirty years' confinement in Texas Department of Criminal Justice, Institutional Division. Appellant raises seventeen points of error on appeal. Because of our disposition of point one, we will reverse and remand for a new trial.

In point one, Appellant contends that the trial court committed reversible error by conducting a jury shuffle after voir dire had commenced. The record reflects that the jury panel was sworn, and the State completed its questioning of the panel. During the voir dire conducted by defense counsel, the trial court briefly recessed the panel and conducted a conference with the attorneys. The following exchange occurred between the judge, the court staff and the attorneys:

COURT: This list was not prepared for a drawing. It's all right, but we need to, we need to -- get the, the shuffle, rather than drawing (Inaudible) -- it was actually be made against the list unless y'all want to accept this.

CLERK: I can put them on here just like that unless you want a shuffle.

COURT: They needed to be shuffled. I'd say shuffle them unless you--

DEFENSE COUNSEL: Let me think about it about 30 second (sic), Your Honor.

COURT: I can understand if you want to, we can make it without any inconvenience that's not, that's beside the point, the selections are more important than that.

STATE: No problem. No problem.

At this point, the court was interrupted with a matter concerning an individual juror, and then reassembled the panel for questioning. Before questioning resumed, defense counsel asked for a bench conference. During the bench conference, the court and defense counsel discussed the jury shuffle, and stated the following:

DEFENSE COUNSEL: Judge, if it would -- it might save some time if we, if we, if we went forward. It seems to me on behalf of the Defendant that the shuffle should have already been made --

COURT: It's going to be made. It's in the process.

DEFENSE COUNSEL: But it should have been made before the voir dire and it -- part of the voir dire focuses on the sitting of the person, and the -- what we've got is a panel that wasn't, you know, we didn't go strictly by the Rule in the seating order.

COURT: I don't know of any rule that says when you can shuffle. It says you may before the selection.

DEFENSE COUNSEL: My understanding is is that on behalf of the Defendant that we would object to the shuffle because the shuffle should have been -- it should have been shuffled, but it should have all ready (sic) occurred.

The trial court then overruled Appellant's objection.

At the conclusion of voir dire, Appellant offered Defendant's Exhibit Number 1, which was a copy of the list of jurors that had been furnished by the clerk of the court, and reflected the original order of the jurors. The trial court admitted the exhibit. Defense counsel then lodged the following objection:

DEFENSE COUNSEL: Then on behalf of the Defendant we would object that the jury was not called and seated in the order by which the voir dire, by which the Defendant was required to exercise his strikes and that the Defendant was required to exercise his strikes with a jury list different in order than the way the jury was seated in the Voir Dire Examination.

STATE: Your Honor, could I say one more thing regarding that matter? I believe that if my old memory serves me correctly [defense counsel] is the one that asked for the shuffle and so anything he's gripping (sic) about there is just his own cup of tea.

COURT: The court shuffled the jury list only after it was requested, period. And that was after this jury has been seated according to the, to the list which the Clerk firmly stressed as the jury, as the jury was, I presume the list in which the jury was first seated was the list that was prepared by the jury commission or however the jury panel was first selected, and the Court order (sic) the shuffle and it was done after and upon the first request that the jury, that the Court had to reshuffle, to make a shuffle and to draw a list.

STATE: Your Honor, would the record reflect that the State and the defense both struck off the same list. Not the same list, but --

COURT: Yes, sir. Yes, sir.

DEFENSE COUNSEL: Judge, for the record it is my recollection that I objected on behalf of the Defendant to shuffle, the Court did it anyway on the Court's own motion.

COURT: That is, if that is the case and there was no request for the Court to shuffle, the court did it anyway on the Court's own motion the first time it was brought to the Court's attention. Do I have, do I have the list of the State and the Defendant?

CLERK: Judge, I am doing the list now. (emphasis added).

The court then overruled Appellant's objection to the jury panel.

The issue was raised again in Appellant's motion for new trial. Appellant claimed that the jury shuffle was made after Appellant's voir dire of the jury panel, without his request and over his objection. At the hearing on the motion, the State acknowledged that the shuffle occurred after the conclusion of voir dire, but stated that it was done upon the request of Appellant. The State claimed, without supporting authority, that the shuffle was within the discretion of the trial court and did not constitute harm because only two jurors were moved from the back of the panel to the front. Appellant's motion for new trial was overruled.

On appeal, Appellant argues that the erroneous shuffle was conducted sua sponte, but cites case law discussing both sua sponte jury shuffles and shuffles performed at the request of one of the parties. Because of conflicting statements in the record, it is difficult to discern whether: (1) the shuffle was made sua sponte by the trial court ⁽¹⁾, or (2) the shuffle was conducted after timely request by Appellant. Since there is no evidence in the record of a request to shuffle by Appellant other than the statements made by the prosecution and the court, and since Appellant maintained that no request was made, it appears that the shuffle was conducted on the court's own motion. The issue of sua sponte shuffles has been rarely addressed. It is well settled that sua sponte shuffles occurring prior to the commencement of voir dire ⁽²⁾ do not foreclose Appellant's right to subsequently shuffle the jury. Wilkerson v. State, 681 S.W.2d 29 (Tex. Cr. App. 1984); Latham v. State, 656 S.W.2d 478 (Tex. Cr. App. 1983); Smith v. State, 648 S.W.2d 695 (Tex. Cr. App. 1983). However, the Court of Criminal Appeals stated in Alexander v. State, 523 S.W.2d 720, 721 (Tex. Crim. App.1975) that it disfavors shuffles which occur after questioning the venire on the law and facts:

To allow either party to request a shuffle of the names of the jury panel after voir dire begins would be disruptive and unduly prolong the trial. Further, it would permit such an election to be based upon information already elicited on voir dire. Clearly, this was not the intent of the legislature.

In the present case, the shuffle occurred after voir dire was completed. The persons seated in the last two seats, which may have been questioned less than other panel members, were shuffled into the strike zone and Appellant had to exercise a strike to remove one of them from the panel. Accordingly, we conclude that since the voir dire had already been completed when the shuffle was performed, and since the shuffle resulted in the shifting of two jurors from the back to the front of the panel, the trial court erred in conducting a sua sponte shuffle.

If the shuffle had been made after Appellant's timely request, ⁽³⁾ the court was required to follow the procedure for conducting a jury shuffle, which is set forth in Article 35.11 of the Texas Code of Criminal Procedure, as follows:

The trial judge, upon demand of the defendant or his attorney, or of the State's counsel, shall cause a sufficient number of jurors from which a jury may be selected to try the case to be randomly selected from the members of the general panel drawn or assigned as jurors in the case. The clerk shall randomly select the jurors by a computer or other process of random selection and shall write or print the names, in the order selected, on the jury list from which the jury is to be selected to try the case. The clerk shall deliver a copy of the list to the State's counsel and to the defendant or

his attorney.

Tex. Code Crim. Proc. Ann. art. 35.11 (Vernon Supp.1997) (emphasis added).

If Appellant had lodged a timely request to shuffle in compliance with Tex. Code Crim. Proc. Ann. art. 35.11, this request was effectively overruled by the trial court's failure to shuffle at that time. Refusal of the trial judge to comply with a defendant's timely request for a shuffle constitutes reversible error, and an aggrieved defendant need make no showing of harm. Jones v. State, 833 S.W.2d 146, 147-48 (Tex. Cr. App. 1992); Wilkerson, 681 S.W.2d at 30.

For the foregoing reasons, we hold that the trial court committed reversible error in conducting a jury shuffle after the conclusion of voir dire. Point one is sustained.

The judgment of the trial court is reversed and remanded for new trial.

   ROBY HADDEN

Justice

Opinion delivered August 29, 1997.

Panel consisted of Ramey, Jr., C.J., Holcomb, J., and Hadden, J.  

(DO NOT PUBLISH)

1.

A shuffle could be sua sponte if it was made without a request by either party, or if the requests of the parties were untimely.

2.

In Yanez v. State, 677 S.W.2d 62 (Tex. Cr. App. 1984), the Court of Criminal Appeals stated that voir dire examination of the jury panel commences after all of the members of the jury panel have been shown to be qualified to serve as jurors in the cause and are seated in the courtroom.

3.

A request is timely if it was made prior to the commencement of voir dire. See Williams v. State, 719 S.W.2d 573, 575 (Tex. Cr. App.1986)