This is interesting, and it would certainly give some insight to the minds of our jurors during the trial that might allow for adjustments in strategy during the trial (double-edged sword, of course, as the defense gets the same benefit), and jurors don't always talk to the attorneys after the trial, so it could aid future cases as well in terms of feedback you might not otherwise have. Obviously there would be some information that they could not be privvy to, so it would have to be monitored. It also would keep jurors from speculating about information they'd be entitled to have if only the "right" question had been asked.

I watched this sort of procedure in several civil trials. I was an intern for CCL #3 in Dallas under Judge Bob Jenevein. He'd have the jury write down their questions. The bailiff would collect the questions and allow the attorney's to review them and write down objections. The judge would rule silently on the objections written by each attorney and ask the remaining questions. He thought the 'silent ruling' would keep the jurors from taking offense at having their questions objected to.

It was really interesting to hear what they would ask. On the car wreck cases, the jurors cared more about who was polite and calm after the accident and awarded financial damages linked to appropriate behavior.

One case was a boating accident where the plaintiff was dragged by his arm in a waterskiing mishap while the driver of the boat kept on going thinking the plaintiff was just "F*ing around." The defendant didn't listen to the jury questions and refused the last minute settlement offer.

Plaintiff was awarded over a quarter of a million dollars.

I think Jury questions would be a hoot. Maybe even an entire hoot-n-nanny.

How is it that the 12 aren't selected until later? 15 picked and hear the evidence and then 12 of the 15 picked to render a verdict?

I know it would be objected to and perhaps they are told ahead of time they can't ask it, but the one question we always get after a jury trial, win or lose, is whether or not the def. had ever done it before. 9 times out of 10, is they had a prior DWI, then they are relieved if they convicted or troubled if they didn't.

If they asked in trial and you tell them you can't answer or that it isn't relevant, then I think alot of people would jump to a conclusion.

Very interesting, none the less.

This is a plot to do away with lawyers. Run. Shannon is clearly in bed with some sort of Republic of Texas group.

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Originally posted by JMH:
How is it that the 12 aren't selected until later? 15 picked and hear the evidence and then 12 of the 15 picked to render a verdict?

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Looks like that is just a different way to handle alternate jurors. Seems like little difference between picking the final 12 after evidnece and picking 12 plus 3 alternates and excusing the alternates if they are not needed.

We don't have enough space for 3 alternates in our courtrooms.

I've seen this in other jurisdictions. It is scary. Oftentimes the questions are irrelevant or inadmissible and the members then get testy when they still do not get the anwer they want.

I once had a contested hearing with my main witness. The defense atty. asked her a very simple question, and she acted like she hadn't a clue what he was talking about.

I was embarrassed, because she wasn't stupid, and the question was not difficult to understand. She was obviously claiming to not understand the question in order to avoid answering the question--in direct violation of my advice to her.

The def. atty. asked the question in a different way, so that any moron could understand him. Again, my witness gave us this perplexed look, and said she still didn't understand what he was asking. I looked at the judge, and he was getting impatient too. Obviously he was irritated that my witness was wasting everyone's time by pretending she didn't understand this very simple question.

The def. atty. was getting frustrated and angry that she was stonewalling him, and he re-phrased the question. Again he got no where.

Finally, the judge, very annoyed, spoke up, addressing the defense atty. "Logene, I don't understand your question either."

Sometimes, what is obvious to us, is not so obvious to others. If the "other" is the fact finder, it is very helpful at arriving at an accurate decision if the fact finder can ask questions to clear up any confusion he may have.

I always thought this was one of the major advantges the Zimbabwean court system has over our jury trials. The magistrate always got to question a witness after both parties were thru. It cut out a lot of gamesmanship in questioning witnesses by the attys., and it made the trial more business like in getting to the truth of the matter. Sometimes magistrates opened areas of inquiry that had not occured to the attys., and sometimes they re-hashed what had already been covered, but they were unclear about. In either case, it helped them arrive at a just decision--which always helps the State.

If a trial judge as the factfinder at a bench trial can ask questions to assist in resolving the issues, why not allow the jurors as the factfinder in a jury trial to do the same? Such a practice doesn't mean the end attorneys any more than it does during bench trials. It also doesn't mean that jurors have a carte blanche to obtain answers to any questions. Rules of procedure and evidence would still apply. Filtering the juror questions through the court and allowing counsel to object seems a very rationale way to allow the jury to understand the issues it must decide while maintaining the integrity of the judicial system.

Didn't we already try this in Texas only to have the Court rule that it moves the jurors from nuetral judges to advocates for one party or the other? The only time I had it come up, both the defense attorney and I told the judge, prior to knowing the question, that we felt that it would not be proper, and the question was never asked.

Don't we criticize judges for asking questions, suggesting that they are revealing their loss of impartiality or giving one side or the other an advantage?

And shouldn't we criticize that?

After a hearing, how about the attorneys relay the jurors' questions then?

I hate to go against the tide but which of you wants to be the one who objects to the question a juror has asked?

Part of the reason we all went to school for 7 years and received the training our offices and TDCAA offers is so that we could learn how to formulate good (legal) questions.

Am I the only one who thinks a juror might give more weight to the answer to a question they asked than one asked by the attorneys?

Might this not encourage an attorney to develop a line of questioning, not for it's probative value, but in an attempt to ingratiate a juror to their side of the case?

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Am I the only one who thinks a juror might give more weight to the answer to a question they asked than one asked by the attorneys?

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I'm sure you're not, and I agree that we all went through hell to get where we are as attorneys, but when you're dealing with a jury sometimes you're dealing with the lowest common denominator, and sometimes you're dealing with rocket scientists (although I for one would not leave a rocket scientist on my jury, unless I thought it would help me). Just because they don't have our education doesn't mean that they can't think through issues. And even we sometimes miss an angle that might be important to a juror. Also, since state and defense attorneys often disagree on what is important, why isn't a juror capable of viewing things differently from all of us? At least this way we get some insight into what they think is important, whether we thought it was important or not. They're back there speculating on these random issues anyway, why not tell them what they want to know and have a record of it?

I also don't believe that attorneys would pander to this in the sense of ingratiating ourselves to the jury. I think that we all do our best to ask relevant and understandable questions in the first place, and if they are confused on an issue it's our job to clear it up, but sometimes we think something is perfectly clear and it's clear as mud to a jury. I think it's better to find out that they don't understand something, try to have it explained better, and let them make decisions based on good information rather than them trying to fill in gaps and missing the boat completely.

(And if the situation warranted it, I'd object to a juror's question in a heartbeat. Outside the presence of the jury, of course.)

This recent case discusses some of the issues that arise when a judge asks questions:

Guin v. State



Before Morriss, C.J., Ross and Carter, JJ.
OPINION

James Michael Guin was charged with committing the offense of graffiti. See Tex. Penal Code Ann. � 28.08 (Vernon 2003). Specifically, it was alleged that he intentionally or knowingly made markings with aerosol paint on property of the Gladewater Independent School District (Gladewater ISD) causing a loss of less than $20,000.00. As alleged, the offense was classified as a state-jail felony offense. Tex. Penal Code Ann. � 28.03(3) (Vernon Supp. 2006). On September 29, 2005, after he was properly admonished by the trial court, Guin entered a written waiver of jury trial and consent to stipulation of testimony, and pled guilty to the offense. After a hearing was conducted, the trial court took the punishment issue under advisement and on a later date sentenced Guin to fifteen months' confinement in a state-jail facility. Guin raises four points of error on appeal: (1) the indictment is insufficient to confer jurisdiction in the trial court, (2) the trial court erred by improperly interrogating Guin, (3) the punishment assessed was unconstitutionally disproportionate to the crime, and (4) Guin received ineffective assistance of counsel. We affirm the judgment of the trial court.

1. Jurisdiction of the Trial Court

In his first point of error, Guin argues that the indictment filed in this case did not confer jurisdiction on the trial court. The basis for this argument is as follows: Section 28.08 of the Texas Penal Code states that a person commits an offense if, without the effective consent of the owner, a person intentionally or knowingly (marks or paints on tangible property of the owner with paint, marker, or engraving device). Article 1.07 of the Texas Penal Code defines an "owner" as meaning a person who (has title, greater right of possession or holder in due course of a negotiable instrument). Tex. Penal Code Ann. � 1.07 (Vernon Supp. 2006). From those definitions, Guin concludes an owner must be a "natural person" and since this indictment identified the owner as the Gladewater ISD, the indictment is defective and fails to allege a fundamental element of the offense and, therefore, does not confer jurisdiction on the court.

Guin has failed to mention several other relevant definitions in the Texas Penal Code. It is true that subsection 35 of Article 1.07 defines owner as a person. Tex. Penal Code Ann. � 1.07(35). However, subsection 38 of that same article defines "person" as an individual, corporation, or association. Tex. Penal Code Ann. � 1.07(38). Further, in subsection 6 of the same article, one definition of "association" means a "government or government subdivision or agency." Tex. Penal Code Ann. � 1.07(6). In this case, the State alleged in the indictment that the owner of the property in question was the Gladewater ISD. The law is well settled in this state that an independent school district is an agency of the state. Barr v. Bernhard, 562 S.W.2d 844, 846 (Tex. 1978); Zuniga v. Navarro & Assoc., P.C., 158 S.W.3d 663, 670 (Tex. App.--Corpus Christi 2005, pet. denied). Further, in the Texas Civil Practice and Remedies Code, a governmental unit is defined, among other things, as including any "school district." Tex. Civ. Prac. & Rem. Code Ann. � 101.001(3)(B) (Vernon 2005).

The allegation that the owner of the property involved was the Gladewater ISD was sufficient to allege that element of the offense. We, therefore, overrule Guin's first point of error.

2. Did the trial court improperly interrogate Guin?

A. Procedure in the Trial Court

Guin filed an application for community supervision alleging that he had never been convicted of a felony in this or any other state. There was no negotiated plea agreement in connection with the plea of guilty. After entering the plea of guilty, Guin was questioned by his attorney concerning his remorse in committing the offense, his application for community supervision, and some of the terms and conditions of community supervision. Guin also testified that, at the time of the offense, a person named Joe Fiquette participated in painting the graffiti on the walls. The State then cross-examined Guin concerning the incident and asked, "[W]hat in the world possessed you to go write these things on the school?" In response, Guin stated, "I don't know, I had a couple drinks and a shot." Guin further responded that he did not write "white pride" on the wall and that Fiquette wrote that and some other vulgar language. The State questioned Guin concerning his actions in smoking marihuana after he was released on bond, which Guin conceded to be true. The State then asked, "[S]o where are you getting this marijuana?" Guin answered that he obtained it from some people with whom he was "hanging around." The State then questioned Guin concerning his failure to appear when his case was originally set. Guin answered that he did not realize he had court at that time.

Guin's attorney conducted redirect examination explaining that, if placed on community supervision, Guin would be prohibited from smoking marihuana and drinking intoxicating beverages. Guin stated that he would abide by those conditions of community supervision.

The trial court asked a series of questions concerning whether Guin was a member of any kind of gang or practiced racism and inquired about the tattoos on his body. The court also asked Guin, "[W]here you been getting your liquor?" Guin responded that he had been getting it from John Brown. The court further asked him if he was a member of the Aryan Nations Group and also where he was obtaining marihuana. Guin answered he obtained it from several places without giving the trial court specific names of persons.

The trial court expressed to Guin that it felt he was being evasive in his answers which was not helping him in "seeking mercy," and the trial court explained it would give Guin an opportunity to change any answers he had given. Guin replied, "Sir, I am telling the truth." Guin argues the trial court stepped beyond its required role of objectivity and neutrality. He further alleges that, since the trial court took the matter under advisement for four and a half months and ultimately sentenced Guin to a "significant period of incarceration," the harm of such interrogation is "obvious."

The State argues that any such error was not preserved as no objection was made to the court's questioning of Guin. The State further argues that the trial court's questioning was permissible.

B. Analysis of Interrogation by the Trial Court

Due process demands an impartial adjudicator to make a ruling based on admissible evidence in a forum with the opportunity to cross-examine and present evidence as allowed. Williams v. State, 89 S.W.3d 325, 328 (Tex. App.--Texarkana 2002, pet. ref'd) (citing Rose v. State, 752 S.W.2d 529, 536 (Tex. Crim. App. 1987)). A trial court is permitted to question a witness when seeking information to clarify a point, or to get the witness to repeat something that a judge could not hear. Williams, 89 S.W.3d at 328. Two potential dangers arise when the trial court goes beyond this permissible questioning: (1) the trial court may convey its opinion of the case to the jury and ultimately influence the jury's decision, id. (citing Morrison v. State, 845 S.W.2d 882, 886 n.10 (Tex. Crim. App. 1992)); and (2) the trial court in its active participation may become an advocate in the adversarial process and lose the neutral and detached role required for a judge. Williams, 89 S.W.3d at 328 (citing Moreno v. State, 900 S.W.2d 357, 359-60 (Tex. App.--Texarkana 1995, no pet.)). The first potential danger cannot apply in this case since this entire proceeding was before the court during a guilty plea proceeding.

The second issue is whether the trial court's questions were of such a nature as to indicate the trial court abandoned its proper role as a neutral arbitor and became an advocate for the State. It is important to note that, in this proceeding, Guin had entered a plea of guilty. In such a proceeding, the court does have a role in directly addressing the defendant. The trial court is required to admonish the defendant on a number of matters. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2006). The court is also required to make an independent determination as to whether the defendant's plea of guilty is freely and voluntarily given and whether the defendant is mentally competent to enter such a plea. Tex. Code Crim. Proc. Ann. art. 26.13(b).

Further, in this case, Guin had filed an application for community supervision. The law imposes on the state courts the responsibility for determining when the imposition of sentence in certain cases shall be suspended, the conditions of community supervision, and the supervision of the defendant. See Tex. Code Crim. Proc. Ann. art. 42.12(1) (Vernon Supp. 2006). A judge may place a defendant on community supervision if the judge determines it is in the best interest of justice, the public, and the defendant after conviction or a plea of guilty. Tex. Code Crim. Proc. Ann. art. 42.12, � 3(a) (Vernon Supp. 2006). In certain instances, if a judge determines that alcohol or drug abuse may have contributed to the commission of the offense, the judge shall direct an evaluation to determine the appropriateness of, and a course of conduct necessary for alcohol or drug rehabilitation. Tex. Code Crim. Proc. Ann. art. 42.12, � 9(h). The judge shall also determine the appropriate conditions of community supervision and may impose any reasonable condition that is designed to protect or restore the community, protect or restore the victim, or punish, rehabilitate, or reform the defendant. Tex. Code Crim. Proc. Ann. art. 42.12, � 11 (Vernon Supp. 2006). The court may also require as a condition of supervision that the defendant serve a term of confinement and treatment in a substance abuse facility. Tex. Code Crim. Proc. Ann. art. 42.12, � 14(a) (Vernon Supp. 2006).*fn1 In making the determinations that are required when a defendant is seeking community supervision, we believe the court has the authority to independently inquire from witnesses information relevant to those determinations.

Guin originally testified he may have been prompted to commit this offense due to "a couple of drinks and a shot." Both the State and the defense attorney asked Guin about his use of alcohol and marihuana. We believe the trial court was authorized in following up on those areas to make the determinations necessary in considering community supervision. However, in asking questions of the defendant, it is extremely important that the court should not abandon its neutral and detached role. Some of the questions of the court appeared to go beyond what was necessary for a determination of placement of Guin on community supervision or the terms and conditions thereof. (e.g., where you been getting your liquor?, Where does he live?, What is the name of the person where you have been getting your marihuana?, Are you a member of any gang or organization that practices racism?).

However, no objection was lodged to any of the questions or comments by the trial court. In order to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. Tex. R. App. P. 33.1(a). Where no objection is made, remarks and conduct of the court may not be subsequently challenged unless they are fundamentally erroneous. Moreno, 900 S.W.2d 357 (citing Brewer v. State, 572 S.W.2d 719, 721 (Tex. Crim. App. 1978)). Guin does not argue that the court's questions represent fundamental error. Guin cites In re R.P., 37 S.W.3d 76 (Tex. App.--San Antonio 2000, no pet.), in which the trial court questioned a juvenile and, based on the juvenile's comments, refused to accept a negotiated disposition of the case. Id. at 79. The appellate court found that, since the trial judge was the trier of fact at the disposition hearing, the trial judge was required to determine whether the agreed disposition was suitable and his questioning of the juvenile was for clarification and was not improper. Likewise, the case of In re S.J., 940 S.W.2d 332 (Tex. App.--San Antonio 1997, no pet.), cited by Guin, contains questions of the court seeking clarification as to the testimony regarding the time the incident occurred, and such questioning was not improper. Id. at 338.

As we view this entire proceeding in context, we do not believe that the judge became so entangled in questioning Guin that he became an advocate and could not make an objective finding in the case. We find that the judge's questions do not constitute fundamental error and are not so egregious that Guin was denied a fair trial.

This point of error is overruled.


We affirm the judgment of the trial court.

Jack Carter Justice

Date Submitted: August 17, 2006

Publish

Opinion Footnotes

*fn1 Due to apparent misnumbering by the Legislature, there are two sections numbered 14 in Article 42.12 of the Texas Code of Criminal Procedure. The Section 14 we cite in this opinion is titled "Substance Abuse Felony Program."

Fair enough, but eliminate judge questioning and employ the attorneys to ask the questions. Now what are the arguments against the attorneys asking the questions the jury wants to know?

Wouldn't every jury ask about whether a defendant has a criminal history? And then their question won't be asked and then would they be told that the questions were objected to and suppressed? If so, it seems that would pretty much tell them the defendant has a criminal history. Every jury I've spoken with after the fact (I've only tried misdemeanors) wanted to know the defendant's criminal history--and then are shocked when they find out that we aren't allowed to bring that information out into the trial--they always seem to think it's important (and are confused that that's exactly the reason why it's kept out). I would think defense attorneys would fight this? Would a jury realize that if there is absolutely no mention of priors, it's likely that there actually are some, otherwise the question would come in without objection?

I think that if jurors were allowed to ask questions, there would probably be some sort of instruction at the beginning of the trial along with all the other instructions, that might say something like "The jurors will be allowed to ask questions of the witnesses through the court (or however it's set up). As is the case with the questioning by the attorneys, not all questions by the jurors may be answered. Because the nature of some questions/information is so sensitive or prejudicial, for example, the defendant's criminal history or victim's prior sexual history (throw in a couple other examples, or leave the examples out entirely), there may be questions that legally cannot be answered regardless of what the answer would have been, and you are not to take any inference from any failure to answer such a question. The court still must make a determination that a juror's question can be answered under the rules of evidence and other applicable law."

I don't know - what do you think? More trouble than it's worth? Will calling attention to the UNanswered questions be more problematic than just not answering them? Or would an instruction of this type alleviate some concerns about assumptions jurors might be making by not answering a question they have?

Another question: is there anything out there that shows how often the juror questioning is actually employed in jurisdictions that allow it (i.e. how many juries actually ask questions)? If juries generally don't ask very much, then it's an even less scary proposition to have this than if you have a jurisdiction of activist jurors who ask about every minute detail.

Been there, done that, got the reversals (several cases reversed including a murder, an ag robbery and an embezzlement). See Morrison v. State, 845 S.W.2d 992, 1991 Court of Criminal Appeals opinion, 31 pages with dissent, castigating our Brazos County judge for the same procedure. I thought it was a good idea then, I think still think it's a good idea. But once Morrison came down, the lower appellate courts reversed the rest of the cases in which the procedure had been used.