NO. 74,515






Price, J., filed this concurring opinion.

I join the majority opinion and agree that conditionally issuing a writ of mandamus is appropriate in this case. I write separately to express some additional reasons for my conclusion.

As the amici and Judge Keasler point out, there is a "cardinal principle that the deliberations of the jury shall remain private and secret in every case." United States v. Virginia Erection Co., 335 F.2d 868, 872 (4th Cir. 1964). Judge Keasler also points out that this Court has recognized that "[t]he deliberations of a jury are required to be kept secret." Alsup v. State, 118 Tex. Crim. 388, 390, 39 S.W.2d 902, 903 (1931). To this end, the citizens of the State of Texas, through the legislature, enacted the predecessor to Code of Criminal Procedure Article 36.22. (1)

But the policy that supports the law is not the point. Mandamus is an extraordinary remedy, only issuing when there is a clear right to the relief sought and when there is no other adequate remedy. State ex rel. Hill v. Court of Appeals for the Fifth District, 34 S.W.3d 924, 926 (Tex. Crim. App. 2001). In this case, Code of Criminal Procedure Article 36.22 clearly provides a right to the relief sought, and the State has no adequate remedy other than mandamus.

There are two parts to Article 36.22. The first, that no person shall be permitted to be with a jury while it is deliberating. The second, that no person shall be permitted to converse with jurors except under limited circumstances. If the Article had included only the second part, I might agree with the dissenters. A camera or even a person could be present in the jury room during deliberations, but the person could not converse with the jurors.

But Article 36.22 is designed to protect jury deliberations from something more than someone conversing with jurors. The very presence of another person who is not under the same oath as the jurors affects deliberations. The camera brings the viewers to the jury just as surely as it brings the jury to the viewers. For what other purpose could the first sentence in the Article have been enacted?

Some judges believe that the statute is not sufficiently clear enough to conclude that the trial judge exceeded the scope of his discretion. If we were to conclude that Article 36.22 did not apply in this case, there are many equally disturbing scenarios that would be within a trial court's discretion.

For example, what if a person had a water glass against the wall of the jury room and was listening? He is a person, but is he with the jury? What if the door to the room was ajar and a woman was standing around the corner listening? Is she with the jury? What if there were a window in the room and a lip-reader with a telescope were to interpret what jurors were saying from the top of a building across the street? Is she with the jury? These situations would be no different than the case before us, especially if the people who observed the jury did not tell what they learned until after a verdict was rendered.

What if Co-Production wanted to broadcast the proceedings live? An interpretation of the Article that allows deliberations to be taped and later broadcast allows the same proceedings to be taped and broadcast live. If the statute is read as the dissenters would have us read it, a camera is not a "person" and the people viewing the broadcast are not "with" the jury. Judge Keasler's dissent focuses on the language "while the jury is deliberating," but a party could rely on the terms "person" and "with" in the same manner.

If the trial judge is within his discretion in allowing the video camera into the jury room, then how can his decision be shocking and appalling? No one has accused the trial judge of having an impure motive. His intention is clear. "It is important in my opinion, that our country, our community, knows what takes place in these courtrooms. And the better educated folks can be, the better they'll have an appreciation and understanding of the greatest judicial system ever invented." A trial judge who acts within his discretion with pure motive should not be said to have made an order that is shocking and appalling.

The problem in this case is that the trial judge, however well intentioned, exceeded the scope of his discretion because Article 36.22 prohibits permitting a person to be with the jury while it deliberates. Permitting the recording and broadcast, whether live or after the verdict has been rendered, has the same effect. And it was that effect that Article 36.22 was designed to prohibit. Foreknowledge that one's secret deliberations will not be kept secret cannot help but change the form and content of the deliberations and, perhaps, the result. (2) A line was crossed that Article 36.22, by its clear language, does not permit.

The argument can be made that the presence of a video camera is not the same as the presence of a person. But that argument is not very persuasive. The reason the hypotheticals given above and the actual scenario with which we are faced in this case are prohibited under Article 36.22 is that to be with the jury is to perceive with one's senses what is happening in the jury room. It nullifies the privacy that Article 36.22 was designed to protect.

That the legislature is currently addressing the issue is of no moment. The legislature enacts legislation. If this or some other court misinterprets the language of a statute, the legislature does not issue a statement correcting us. The legislature amends the statute to make things more clear. Regardless, the current and future acts of the legislature are not appropriate to consider. Our task today is to consider the law as written, and our decision can be no different whether the legislature chooses to enact a change or not.

Lady Justice is blindfolded, but the majority sees clearly that Article 36.22 prohibits the trial court's action in this case. It is appropriate for this Court to conditionally grant the relator's application for writ of mandamus.

With these comments, I join the majority opinion.

Filed: February 12, 2003.



1. The Article reads in full:

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.

Tex. Code Crim. Proc. art. 36.22.

2. It is interesting to note Judge Poe's comment to the venire on secrecy:

"Everything that takes place in a jury room is secret in the sense that no one will know what takes place back there except it would be recorded." (emphasis added).