BRYAN KEITH WILLIAMS,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-01254-CR
 
BRYAN KEITH WILLIAMS,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE.OF KAUFMAN COUNTY, TEXAS
 
 
 
BEFORE JUSTICES STEWART, ROWE, AND CARVER FN:1
OPINION BY JUSTICE ROWE
MAY 1, 1989
        Following a jury trial, Bryan Keith Williams was convicted of involuntary manslaughter. The trial court sentenced Williams to five years' confinement. In his first point of error, Williams complains that the trial court erred in denying his motion to shuffle the jury panel. For the reasons discussed below, we sustain this point of error and reverse the trial court's judgment.
        Prior to trial, Williams filed a written motion to shuffle. On the day of trial, the trial court shuffled the jury panel by computer before Williams had an opportunity to see the panel seated in the order in which they were called. Williams objected to this procedure before the panel was seated as follows:
                And at this time, I would also point out for the record that I had a motion to shuffle filed. The procedure in which the motion for shuffle was granted was after roll call. The judge asked me if I wanted to shuffle the jury. I did not get an opportunity to see the jury seated in their designated places. I do -- would like to operate my motion to shuffle. And the procedure used was used by computer and I would request that the names be placed in a box and drawn from the box as the proper shuffle for the jury selection. At this time, I would like to see the jury seated as they are going to be in order, and at that time be allowed to exercise my motion to shuffle.
 
        THE COURT: Your request to shuffle having been previously granted, the jury has been shuffled pursuant to that request and order.
After the panel was seated but before the beginning of voir dire, Williams reiterated his objection:
        MR. PATTON: Your Honor, at this time Bryan Keith Williams would like to exercise a motion to shuffle.
 
        THE COURT: That -- one shuffle has been granted, and your subsequent motion is denied.
        Upon timely motion, FN:2 Texas Code of Criminal Procedure article 35.11 grants the defendant an absolute right to have the panel shuffled after he has had an opportunity to observe the jury panel. Mays v. State, 726 S.W.2d 937, 947 (Tex. Crim. App. 1986); Stark v. State, 657 S.W.2d 115, 116 (Tex. Crim. App. 1983). The trial court's refusal to comply with such a request is reversible error, and the defendant need not show that he was harmed or that he was forced to take an unacceptable juror. Latham v. State, 656 S.W.2d 478, 479 (Tex. Crim. App. 1983). Since the order in which the prospective jurors are seated directly impacts which members will be finally chosen for the jury, the right to observe the panel before urging a motion to shuffle includes the right to see the order in which the panel is seated. Batchelor v. State, 757 S.W.2d 455, 457 (Tex. App.--Dallas 1988, pet. pending); see Stark, 657 S.W.2d at 116. Otherwise, the defendant would be unable to intelligently exercise his right to shuffle. Batchelor, 757 S.W.2d at 457.
        In this case, the trial court shuffled the jury panel before Williams had an opportunity to observe the panel seated in order. Williams properly objected to this procedure and requested a second shuffle pursuant to his pretrial motion. In Wilkerson v. State, the Court of Criminal Appeals faced a somewhat similar situation. 681 S.W.2d 29 (Tex. Crim. App. 1984). In Wilkerson, court personnel shuffled the jury panel pursuant to a standing order from the trial judge while the attorneys and trial judge were in chambers. The panel was then seated in order, and the defendant requested a shuffle of the panel. The trial judge replied that the panel had already been shuffled and denied the request. The Court of Criminal Appeals expressly held that a sua sponte shuffle of a jury panel by the trial judge does not foreclose the defendant's right to a timely requested shuffle. Id. at 30. Similarly, we conclude that the trial court's premature action on Williams's motion did not deprive him of his right to have the panel shuffled after having had an opportunity to observe the panel seated in order. Accordingly, we sustain Williams's first point of error.
        Williams also challenges the method of shuffling the panel by computer. Article 35.11 provides:
                The trial judge, upon the demand of the defendant or his attorney, or of the State's counsel, shall cause the names of all the members of the general panel drawn or assigned as jurors in such case to be placed in a receptacle and well-shaken, and the clerk shall draw therefrom the names of a sufficient number of jurors from which a jury may be selected to try such case, and such names shall be written, in the order drawn, on the jury list from which the jury is to be selected to try such case, and write the names as drawn upon two slips of paper and deliver one slip to the State's counsel and the other to the defendant or his attorney.
TEX. CODE CRIM. PROC. ANN. art. 35.11 (Vernon 1966). Since the governing statute explicitly describes the manner in which the shuffle is to be performed, the trial court also erred in performing the shuffle by computer.
        We reverse the trial court's judgment and remand this cause for further proceedings consistent with this opinion.
 
                                                          __________________________
                                                          GORDON ROWE
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
88-01254.F
 
FN:1 The Honorable Spencer Carver, Justice, retired, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
FN:2 To be timely, the defendant must urge the motion to shuffle before the court recognizes the State to commence voir dire and before the State actually starts to examine the panel. Williams v. State, 719 S.W.2d 573, 577 (Tex. Crim. App. 1986).
File Date[01-02-89]
File Name[881254]