Young, Carroll Dwayne ( 2004 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. 904-02

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CARROLL DWAYNE YOUNG, Appellant

v.

THE STATE OF TEXAS

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ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FIRST COURT OF APPEALS HARRIS COUNTY

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   Meyers, J., filed a dissenting opinion, in which Price and Johnson, JJ., joined.

DISSENTING OPINION

I agree with the majority that the Court of Appeals was correct in determining that appellant's point of error was preserved for appeal. I disagree that the harm could have been cured by an instruction to disregard and feel that the Court of Appeals correctly determined that the jury was tainted by the exchange between the judge and venireperson Valdez. The majority says that the appellant procedurally defaulted his remedy for failure to ask the judge for an instruction to disregard the conversation that she had with the venireperson. I respectfully disagree and dissent to this conclusion for the following reasons:

First, the error here was created by the trial judge and not by the state. Asking the judge to give an instruction telling the jury to disregard her actions ⁽¹⁾ would have been fruitless and more antagonistic than helpful in seeking a new venire panel. The judge's activity is a different component in this equation and a request to disregard is simply not necessary. See Blue v. State, 41 S.W.3d 129, 132 (Tex. Crim. App. 2000)(plurality opinion). See also Tex. R. Evid. 605 ("The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.")

Second, this is really not a mistrial situation. While a request such as this, when made during voir dire is traditionally called a mistrial, it is really a request for the judge to dismiss the venire and bring in a new one. Mistrials generate other considerations such as double jeopardy, manifest necessity, delay of trial, inconvenience to witnesses and expense of retrial, etc. that are not issues in this situation. Therefore, a request for an instruction to disregard is not necessary since this is not a true mistrial situation. Since I do not feel that this step is required, I do not think that the appellant should be penalized for not requesting it.

Third, while the majority concludes that an instruction to disregard would have cured the error herein, it is still a fact that one was not given and therefore this venire panel, and later the jury, was still influenced by this discourse between the judge and the former venireperson. Because this is judge caused error and the judge should have known the possible ramifications, the appellant should not lose by default for failing to request an instruction to disregard. Lastly, I disagree with the majority's conclusion that an instruction to disregard would have been sufficient to cure the harm caused by this error.

The majority claims that an instruction by the judge to disregard her statements would have cured the prejudice because:

it seems probable that other members of the venire, drawing on their own experiences regarding the truth-telling tendencies of young children, would question the veracity of Ms. Valdez' statements that she had never known a child with whom she worked to lie. An instruction to disregard may have served only to underscore any incredulity that the other prospective jurors already felt. Second, Ms. Valdez ultimately was challenged for cause by the appellant and was dismissed. Her departure at such an early stage in the trial may have mitigated any prejudice caused by her remarks, and an instruction to disregard, combined with her absence from the remainder of the trial, may have been easier for the remaining prospective and ultimately selected jurors to follow. Also, as the State points out, Ms. Valdez was not a witness in the trial and had not been presented as an expert. The record does not reflect any discussion of her educational background, the type of program in which she worked, or the specific type of work that she performed.

Slip op. at 10. Each of these arguments makes assumptions about the thought processes of the veniremembers that we have no way of knowing. First, we don't know what experiences with the truth-telling tendencies of young children the members of the venire may have had, and we don't know that they felt incredulity toward Ms. Valdez' statements about children with whom she worked. Additionally, the fact that Ms. Valdez "was not a witness in the trial and had not been presented as an expert" does not mean that her statements, which were practically testimony, did not influence the rest of the venire. If we're going to speculate about the thought processes and experiences of the veniremembers then let's go ahead and assume that the panel of prospective jurors probably don't know Article VII of the Texas Rules of Evidence and thus did not realize that the fact that there was no discussion of her educational background and qualifications indicates that she is not an expert. In fact, her fellow veniremembers may have given her statements even more consideration because she was a neutral party rather than a hired expert called by one side. We have no way of knowing this and should not make assumptions about what the individual veniremembers may have thought about the dialog between the judge and Ms. Valdez. Instead, we should base our decision regarding the harm and prejudice on the characteristics of the dialog itself, since they, unlike the thoughts of the jurors, can be accurately ascertained. The dialog was extensive; Ms. Valdez was adamant in her belief that children never lie about these things; and the entire venire was present and was in a setting where each venireperson would be paying close attention to the conversation between the judge and a fellow veniremember. Additionally, the fact that Ms. Valdez was challenged for cause and stricken indicates that the judge acquiesced that her opinions and conclusions, which had been shared with the entire venire, were biased and would affect her ability to render an impartial verdict. Thus, this examination of Ms. Valdez by the judge was lengthy, her opinion was repeatedly emphasized, and the panel was focused on the discussion. In many ways, the dialog between Ms. Valdez and the judge was similar to testimony.

Due to the nature of the discourse, even if an instruction to disregard had been given, the entire jury panel would still be influenced by the statements. Additionally, because the judge's interaction with Ms. Valdez is part of what made the dialog so harmful, an instruction by the judge to the panel to disregard would be tantamount to the judge saying "disregard my conversation with Ms. Valdez" which would undermine the benefit of the instruction and the venire may then view all of the judge's comments incredulously or with uncertainty.

As mentioned above, because jeopardy had not yet attached, there were measures that could have been taken by the trial judge to ensure a fair trial that, unlike an instruction to disregard, would have been beneficial but less drastic than declaring a mistrial, such as dismissing the venire and requesting a new one. ⁽²⁾ Instead, no measures at all were taken and this failure to cure the harm caused by the comments of Ms. Valdez tainted the jury that was chosen from this venire and may have affected the outcome of the trial. For this reason, I feel that appellant was entitled to relief and would affirm the holding of the Court of Appeals. I respectfully dissent.

Meyers, J.

Filed: June 9, 2004

Publish

1. It seems that everyone, including the state and the dissenting opinions at the Court of Appeals feel that the judge committed error in carrying on this conversation in front of the entire venire.

2. Article 34.02 of the Texas Code of Criminal Procedure allows the court to order additional veniremen when the court deems that the veniremen theretofore drawn will be insufficient for the trial of the case. While this statute has been applied more for when there are not enough veniremembers to construct a jury due to challenges, it could also apply to cases such as the one before us.