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Alexander v. State3/5/1996
witnesses, but the trial court would not permit this. The trial court overruled the motion on the basis that the only party with whom the juror communicated was the bailiff.
The applicable statutes cited by Alexander include Tex. Code Crim. Proc. Ann. art. 36.22 (Vernon 1981), which states:
No person shall be permitted to be with a jury while it is deliberating. No person shall be permitted to converse with a juror about the case on trial except in the presence and by the permission of the court.
(Emphasis added.) The pertinent portion of Tex. Code Crim. Proc. Ann. art. 36.24 (Vernon 1981) entitled "Officer shall attend jury" reads as follows:
The sheriff of the county shall furnish the court with a bailiff during the trial of any case to attend the wants of the jury and to act under the direction of the court.
No presumption of injury arises from the bailiff's association with the jury. Holder v. State, 140 Tex. Crim. 55, 143 S.W.2d 613, 616 (1940); Gandy v. State, 139 Tex. Crim. 343, 140 S.W.2d 182, 187 (1940). There is no error when the bailiff communicates to the jury on logistical matters not dealing with the case on trial; however, there are numerous Texas cases providing that a bailiff's communications with the jury about the case on trial constitutes error. See, e.g., Stecher v. State, 373 S.W.2d 255 (Tex. Crim. App. 1963); Clark v. State, 163 Tex. Crim. 54, 289 S.W.2d 288 (1956); Lee v. State, 122 Tex. Crim. 379, 56 S.W.2d 453 (1933).
For anyone outside of the judicial process to communicate to the jury about the case on trial is error. Tex. Code Crim. Proc. Ann. art. 36.22 (Vernon 1981). We are not unmindful that a bad precedent would be set by allowing ex parte communication from the jury to counsel in the case, even if indirectly done. If the district attorney is allowed to receive communications through the bailiff from the jurors, then it would be equally appropriate for the defense attorney to receive communications from the jury through his or her investigator.
Some confusion has arisen concerning the term authorized person. In the case of Jackson v. State, 403 S.W.2d 145 (Tex. Crim. App.), cert. denied, 385 U.S. 938, 87 S.Ct. 301, 17 L.Ed.2d 217 (1966), the Court interprets Article 671 of the Code of Criminal Procedure, which is now Article 36.22. In the Jackson case, the court clearly distinguishes between the first sentence of Article 36.22, dealing with persons permitted to be with the jury while it is deliberating, from the second sentence, which refers to persons conversing with a juror. The Court held that the sheriff was not an unauthorized person to associate with the jury, and thus, no presumption of injury would arise from his association with the jury. This is not a case involving communication with the jury about the case. According to the Court of Criminal Appeals, the trial court instructed the sheriff not to discuss the case with the jury, and there was no showing that the sheriff said anything about the case to the jury. Thus, the holding of the Court that no presumption of injury would arise referred solely to the sheriff's association with the jury and not to any statement made about the case to the jurors.
A series of earlier cases decided by the Court of Criminal Appeals suggest that an error of outside communications with the jurors about the case should be analyzed on a pure harm basis. Stecher, 373 S.W.2d 255 (considering "the court's certification and the maximum punishment being assessed"); Clark, 289 S.W.2d at 290-91; Choiniere v. State, 150 Tex. Crim. 582, 204 S.W.2d 840, 841 (1947) (stating that any error arising from a deputy sheriff, functioning as a bailiff, con
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