WHERE: Eidman Courtroom, Connally Center at the University
of Texas at Austin School of Law
WHEN: The hearing starts promptly at 9:00 a.m., Wed. Jan
15
WHO: Courtroom proceedings are open to the public.
Note to the press: The Court of Criminal Appeals has stated that no recording devices may be used to record this hearing. Press wishing to park at the Law School should park in Parking Garage 1 on Trinity Street and see a UT Law Communications officer about charges. A map can be found here: http://www.utexas.edu/law/about/parking.html.
AUSTIN, Texas – On Wednesday, January 15, the State of Texas Court of Criminal Appeals will hold oral arguments at the Eidman Courtroom at The University of Texas at Austin School of Law. The court is the highest Texas court with jurisdiction over criminal matters.
The nine judge court will hear oral presentations in four cases, including two appeals from death sentences imposed after convictions of capital murder. In another case, a defendant charged in Harris County with aggravated sexual assault committed with a knife argues that his jury was improperly permitted to convict him of simple or non-aggravated assault committed without a knife.
The first case to be heard is State ex rel. Rosenthal v. Poe, involving highly publicized events in Houston. Seventeen year old Cedrick Harrison was charged by Harris County grand jury with the capital murder of Felix Sabio, 35, outside of Sabio's apartment on Rio Bonito in Houston.
Shortly before jury selection was to begin in November, PBS' Frontline sought permission to tape the entire trial, including jury deliberations. Harrison and his defense attorneys consented but the prosecution opposed the taping. Judge Poe nevertheless granted Frontline's request. When jury selection began, both sides questioned prospective jurors regarding the effects of the taping on them, and a number of jurors were rejected because of the apparent impact on them of the taping.
The Harris County District Attorney took the unusual step of asking the Court of Criminal Appeals to intervene in the ongoing trial by issuing a writ of mandamus. The writ, if issued, would order Judge Poe to set aside his grant of permission to Frontline to tape the jury's deliberations. In response, the court agreed to consider the District Attorney's request on its merits and ordered that proceeding in Judge Poe's court stop.
The Court of Criminal Appeals seldom intervenes in ongoing trial court litigation but reviews cases after they have reached a conclusion and an appeal is taken. In Wednesday's proceedings, the judges will consider whether Judge Poe's authorization for taping of deliberations is so clearly in violation of law as to justify the court in exercising its authority to step in and prevent an error in trial proceedings before that error takes place.
The judges are unlikely to announce an outcome from the bench on Wednesday.
This is apparently the first time that efforts have been made to tape a jury's deliberations in a Texas criminal trial. Few such deliberations in other states have been taped, and when taping has been permitted it has generally required the permission of both the defense and the prosecution. The case to be argued Wednesday may be the first consideration by an appellate court of whether the prosecution has a right to have jury deliberations not recorded.
Arguments to be heard on Wed. Jan 15:
State ex rel. Rosenthal v. Poe [No. 74,515]
This is an original proceeding, begun by the filing in the Court of Criminal Appeals of a request for leave to file for a petition for a writ of mandamus against Ted Poe, a Harris County District Judge. The writ of mandamus which the State seeks is an "extraordinary writ," which means it is to be used only in very unusual situation.
Cedric Ryan Harrison was charged with capital murder by Harris County grand jury, and the indictment was filed in Judge Poe's court, the 228th District Court of Harris County. The State announced it would seek the death penalty. Harrison is seventeen years old.
Three days before jury selection was to start in November, 2002, Mead Street Films, Inc. filed in Judge Poe's court a written request for permission to record and broadcast all proceedings, including jury selection and jury deliberations. Harrison and his attorneys filed written consent to the filming, and Harrison executed a written waiver of his right to introduce into evidence at any post-conviction proceedings the recordings of the jury's deliberation. The State opposed the filming. Judge Poe granted Mead Street Films' request.
The day after jury selection began, the State filed a petition asking the Court of Criminal Appeals to issue the writ of mandamus directing Judge Poe to vacate his that part of his order granting Mead Street Film's request to film the jury deliberations. Jury selection continued. Ten days after the petition was filed, the Court of Criminal Appeals ordered that the trial court proceedings stop. Several weeks later, the Court of Criminal Appeals granted the State leave to file the petition, which meant the court was prepared to let the State present its argument on the merits.
Because the proceeding is one for extraordinary writ relief, the State's burden is a particularly heavy one. It must establish that not only that Judge Poe's actions are contrary to legal requirements, but that they are clearly contrary to those demands. If the law is unclear or unsettled enough to leave Judge Poe with some discretion as to what the law requires, the State is probably not entitled to mandamus relief even if its position is ultimately determined to be "right."
The State argues that Texas law embodies a fundamental principle that criminal juries must be left alone, unobserved, and unheard by others during their deliberations. This principle protects both defendants and the State. It is embodies in article 36.22 of the Code of Criminal Procedure, which states, "No person shall be permitted to be with a jury while it is deliberating."
The State also argues that Texas law contains a comprehensive prohibition against examination of criminal jurors' deliberations, and this would be violated by the filming. In addition, filming would violate the rights of prospective jurors to serve in the case, because it will require turning away those jurors who are likely to be affected by the filming.
Essentially, the State argues it is entitled to have its evidence passed upon by a jury that is free from the distraction and influences certain to apply if the jurors know their deliberations are being filmed.
Judge Poe argues in response that article 36.22 prohibits only the presence of a "person" and thus not "an unattended, remote-controlled video camera" as would be involved in this case. He also contends that taping would not offend the spirit of the statute. The statute is designed to protect juries from outside influences and pressures during deliberations, and there is no risk the camera would influence or pressure the jury.
Further, Judge Poe stresses his view that strong public policy reasons suggest taping should be permissible or at least that the high court should not intervene to stop it. PBS and Frontline have a proven track record of appropriate recording of jury deliberations. The current focus on the legal and moral issues raised by the death penalty, particularly in Texas, make clear the need for the courts to educate and inform the public. Public confidence in the courts would be furthered by giving the public access to capital murder jury deliberations.
Judge Poe explicitly does not contend that the First Amendment compels that the new media be permitted to record the deliberations. But he argues that the policy of open access embodied in the Amendment should "inform" the Court of Criminal Appeals' analysis of the case, and militates in favor of leaving undisturbed his decision to permit recording.
Kevin Scott Varga v. State [No. 73,990]
Kevin Scott Varga was convicted by a Hunt County jury of capital murder and sentenced to death. The State's evidence showed that he and three friendsanother young man and two young women--were on a road trip from South Dakota to Mexico. In Greenville, Texas, the two women lured David Logie from a bar to a parking lot, where Varga and his male companion beat Logie to death. The group then took Logie's credit cards and money. The foursome had committed a similar robbery-murder in Kansas several days earlier.
Varga raises twenty grounds for appeal, complaining of the use of gruesome photographs at trial, improper argument by the prosecutor warning the jurors that someday in Heaven they would have to justify their verdict to the deceased victims, and the terminology of the jury instructions at the punishment stage of the trial. He also raises a number of evidentiary issues, a claim that his trial representation was inadequate, and challenges to the Texas death penalty scheme.
Robert Lee Woodard v. State [No. 74,080]
Robert Lee Woodard was convicted by a Harris County jury of capital murder and sentenced to death. The State's evidence showed that in 1999 Woodard robbed a Houston convenience store and in the course of that robbery shot and killed the owner, Thankachan Mathai and his wife, Achamma Mathia who was working at the store. The defense contended that Woodard's brother committed the crimes and the witnesses misidentified Woodward as the perpetrator.
Woodard raises eleven points of error. He argues that the trial court erred in failing to hold that he was improper arrested and this tainted State's evidence and that it erred in admitting eyewitness identification testimony over Woodard's claim that this testimony was tainted by suggestive photo showings and a lineup. He also contends that the trial court erred in failing to instruct the jury that a specific State witness was an accomplice whose testimony had to be corroborated. In addition, he complains of admission of certain victim impact evidence and he challenges the Texas death penalty scheme.
Walter Hampton, Jr. v. State [No. 0362-02]
Walter Hampton, Jr., was charged by a Harris County of aggravated sexual assault, alleged to have been committed by threatening the victim with a knife. At the State's request, and over the defense objection, the trial judge instructed the jury that it could convict him of "simple" sexual assault. This verdict would be proper if the jury found the State proved the sexual assault but failed to prove that Hampton used the knife. The jury convicted Hampton of the lesser included offense of sexual assault.
He complains of the trial court's instructions permitting the jury to consider his guilt of simple sexual assault. The First Court of Appeals in Houston rejected his complaint and the Court of Criminal Appeals accepted review of the matter.
In order for the State to be entitled to an instruction on simple sexual assault, it had to establish that the affirmative evidence before the jury permitted the jury to find that the accused is guilty only of that lesser included offense. Here, the affirmative evidence must permit a finding that the Hampton sexually assaulted the victim but did not use a knife. The mere fact that the jury could disbelieve the victim's testimony regarding the knife while crediting her testimony regarding the assault is not sufficient because it is not affirmative evidence.
Here, the victim testified that after the attack, Hampton went to sleep in the apartment and she escaped to call police. When police arrived, Hampton had apparently just awakened. A police search of the apartment did not result in discovery of a knife. The State argued that this shows no knife was used, and thus is the affirmative evidence necessary to support conviction of simple sexual assault.
There is some discussion to the effect that under the victim's own testimony, Hampton may have put the knife down during part of the attack. Thus, the jury might have concluded he committed simple sexual assault by his conduct when he no longer was exhibiting the knife. This position may not be available to the State, however, since the State may have disclaimed the argument in the court of appeals.