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Alexander v. State3/5/1996
ations to allowing such a procedure. The Court said in Morrison: Where the role of the jury as a neutral fact-finding body is significantly modified, the underpinnings of our system, designed to ensure trial by a fair and impartial jury are likewise compromised. A determination of harm in this context is virtually impossible.
845 S.W.2d at 889. The Court of Criminal Appeals chose to disallow all juror questions to witnesses instead of trying to sort out every case to see whether there was harm. The present case does not present facts that ask the court to approve a new trial court procedure, but rather represents an isolated happening that had not been preapproved by the trial court. We find that this case is distinguishable on that basis from the Morrison case and is subject to the harm analysis.
According to the facts before us, the bailiff in the present case did not in any way try to answer any question for the juror or advise the juror in any way, but rather passed on the juror's concern to the prosecutor. Sgt. Jackson clarified that Ronnie Dean had told him about who was present at Alexander's apartment on the day of the murder. Jackson testified that when he said in his earlier testimony that Ronnie Dean told him that his (Dean's) daughter was present, he meant to say that Dean told him Alexander's daughter was present. Tatiana Alexander, testified that she did not remember any of the events that occurred at the shooting, but only remembered that her father had a barbecue one day early in 1992 and that Robbins (the victim) and Ronnie Dean were there and that her father had a glass-topped coffee table.
On first blush, it appears that this testimony does not relate to matters in dispute, does not affect the ultimate issues in the case and, therefore, might be considered harmless error under Rule 81(b)(2). But, in Harris v. State, 790 S.W.2d 568 (Tex. Crim. App. 1989), the Court of Criminal Appeals in interpreting the harmless error rule has required the application of specific tests to determine the harmless error analysis. We set out the tests below and apply them to the present case:
The reviewing court in applying the harmless error rule should not focus upon the propriety of the outcome of the trial, but instead it should be concerned with the integrity of the process.
In applying this test to the present case, there is no question that allowing jurors to communicate ex parte to the attorneys in the case outside the courtroom would be damaging to the integrity of the judicial process.
The court should examine the source of the error and the nature of the error.
Although the error initially originated with the juror and the bailiff, the prosecutor should have reported the communications to the court in open court to avoid his having knowledge of the matter without opposing counsel and the court being aware of it.
Whether or to what extent the error was emphasized by the State.
In the present case, the State emphasized the inconsistencies in evidence tending to be favorable to Alexander both in the examination of the witnesses and in the final argument. Therefore, there was an important strategy for the State to try to make its testimony and evidence as consistent as possible. The importance of the testimony in question, put in evidence by the State after receiving the ex parte communication, was to clarify that Alexander's daughter, Tatiana Alexander, was present at Alexander's apartment on the day of the murder. Other State witnesses had testified that she was present in Alexander's apartment on that day. Otherwise, the defense would have been able to point out the discrepancies and incons
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