 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Alexander v. State3/5/1996
versing with the jury about the charge "was harmless and could not have possibly injured the accused in any way"); but see Lee v. State, 56 S.W.2d 453 (holding that a sheriff acting as a bailiff instructing the jury on the law was harmful as a matter of law).
Later cases, however, provide that when anyone outside of the court makes an unauthorized communication with a juror about the case on trial, a presumption of injury arises. Green v. State, 840 S.W.2d 394, 406 (Tex. Crim. App. 1992), cert. denied, ____ U.S. ___, 113 S.Ct. 1819, 123 L.Ed.2d 449 (1993); Mayo v. State, 708 S.W.2d 854, 856 (Tex. Crim. App. 1986); Thomas v. State, 699 S.W.2d 845, 853 (Tex. Crim. App. 1985); Mize v. State, 754 S.W.2d 732, 739 (Tex. App.-Corpus Christi 1988, pet. ref'd). Although these cases speak of an unauthorized person, the statute is clear that no person is authorized to converse with a juror about the case outside of the court and without the permission of the court. Therefore, the distinction that these later cases did not involve bailiffs is not a meaningful distinction. The only significance of the fact that a bailiff is involved concerns being associated with the jury during trial, not talking to the jury about the case.
The complaining party must establish that a communication occurred between a juror and someone else, that the communication involved the specific case at trial, and that it consisted of more than an innocuous, unrelated comment or exchange. Chairs v. State, 878 S.W.2d 250, 253 (Tex. App.-Corpus Christi 1994, no pet.).
This presumption of injury, however, may be rebutted by the State. Green, 840 S.W.2d at 406; Mayo, 708 S.W.2d at 856; Thomas, 699 S.W.2d at 853. The State may rebut this presumption by showing that the accused has not been injured, i.e., "that the case was not discussed or that nothing prejudicial to the accused was said." Green, 840 S.W.2d at 406.
Once the defendant has offered evidence that there was an unauthorized communication with a juror about the case on trial, then the State bears the burden of overcoming the presumption of harm. This does not mean that the State is required to put on repetitive evidence if the rebutting evidence is already before the court. If evidence is in the record that rebuts the presumption of harm, it should be considered, whether presented by the State or the defense. In the present case, the evidence amounted to a stipulation. The statement by counsel that was accepted by the court went beyond establishing that there was a communication concerning the case, but it also detailed the contents of the conversation.
In the Morrison case cited by Alexander, the appellate court was dealing with a situation in which the trial court had permitted jurors, as part of the judicial process, to submit questions in open court under the supervision of the judge. Morrison v. State, 845 S.W.2d 882 (Tex. Crim. App. 1992). The Morrison case held that the error was not subject to a harm analysis. In the present case, however, there was an ex parte communication to the district attorney through the bailiff, which resulted in a witness being asked specific questions.
Alexander suggests that the present case amounts to a more flagrant violation of the rules than in Morrison and therefore should not require the showing of harm. It is correct that the facts of the Morrison case do not represent an ex parte communication by a juror, but rather a procedure conducted and approved by the trial court. In dealing with the facts of the Morrison case, the Court of Criminal Appeals faced a situation in which it was being asked to approve a drastic change in the procedure for conducting the trial. There are many ramific
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 Texas DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|