THE STATE OF TEXAS EX REL.

OF HARRIS COUNTY, Relator

THE HONORABLE TED POE, JUDGE 228^TH DISTRICT COURT

OF HARRIS COUNTY, Respondent

FROM HARRIS COUNTY

This is an original mandamus proceeding. Relator seeks a writ of mandamus directing respondent to vacate a portion of his order authorizing the videotaping of jury deliberations in a capital murder trial in respondent's court. We will conditionally grant mandamus relief.

The record reflects that after carefully considering and weighing the parties' interests, Respondent signed an order permitting WGBH Educational Foundation, Mead Street Films, Inc., and the PBS television program Frontline (collectively referred to as "Co-Production") to videotape for later public broadcast, all of the proceedings (including jury deliberations) in the capital murder trial of Cedric Ryan Harrison, Cause Number 913,903 in the 228^th District Court of Harris County. ⁽¹⁾ As part of his order authorizing the videotaping, respondent found that Co-Production "has demonstrated seriousness of purpose and committed significant resources to this public educational endeavor and is uniquely deserving of the exclusive right to broadcast the footage it records." Unattended cameras and sound recording equipment will record the jury deliberations with no one from Co-production present in the jury room during these deliberations. Respondent has taken other measures to ensure that none of the proceedings will be broadcast "until after the conclusion of all matters in the trial court."

The record further reflects that Respondent did not authorize the videotaping of the proceedings until after having carefully questioned Mr. Harrison and his lawyer about Mr. Harrison's decision to consent to the videotaping and being satisfied that Mr. Harrison freely consented to it. The record also reflects that Mr. Harrison waived in writing, any statutory or constitutional right to use any of the recordings "as evidence in a motion for new trial, on direct appeal, or in post-conviction proceedings in state or federal court" and to use any of the recordings "as evidence of error or misconduct that may occur during trial and jury deliberations." Mr. Harrison also acknowledged in writing his understanding "that recorded jury deliberations cannot be used in a motion for new trial, direct appeal, or post-conviction proceedings pursuant to Texas and Federal Rule of Evidence 606(b)." Mr. Harrison's attorney asserted in writing that Mr. Harrison's waiver "was executed voluntarily and freely" and that Mr. Harrison was "competent to make such waiver." Mr. Harrison's mother stated in writing that she had consulted with Mr. Harrison "regarding [his] waiver" and she consented in writing "to the filming of trial and jury deliberations." ⁽²⁾

When jury selection proceedings began, each veniremember was required to fill out a juror questionnaire form which asked the veniremember whether videotaping the proceedings to be aired for public television purposes after the trial would affect various aspects of the veniremember's deliberations such as the veniremember's "ability to be fair." The record further reflects that, at the beginning of voir dire, respondent carefully explained to the veniremembers that the trial proceedings would be videotaped for broadcast after trial for educational purposes and asked the veniremembers whether this would affect their deliberations. Respondent also informed the veniremembers that he had never heard of this happening before and that he believed that the videotaped proceedings would be "edited, cut down to some kind of an hour, two hours."

[RESPONDENT]: The second questionnaire that you filled out has to do with television or videoing of this particular trial. In this particular case, I suspect that the entire trial may be videoed for showing on public television after the trial is completely over with down the road. That is a possibility. And that includes every aspect of the trial including jury selection all the way through jury deliberations and every aspect of the trial in between.

Several of you stated in your questionnaire that you did not want to be videoed. That's great. That's why we asked the question. And I want to explain that a little further and see if there's any further responses. Because that's the first order of business and after we have cleared that up, we will start the jury selection in this case. As I mentioned, this case will be videoed for public television at some later date from jury selection to trial, all aspects of the trial including jury deliberations. It will not be live. It will not be aired live. In other words, this isn't live TV. It's videoed. Will be edited, cut down to some kind of an hour, two hours. I'm not sure.

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. That is the possibility in this case, it would be recorded.

Now, other than the ones that have already answered that question on the questionnaire, let me ask the rest of you. Is there anyone in this audience who feels that having the trial videoed for a later showing, including jury deliberations, in any way would affect your decision in this case? I don't how it would affect you [sic]. But would it affect you in any way at all? Could you be just as candid and forthright as a juror in this case with a camera and without a camera? That's really the question. So, other than the ones that have already answered that question, are there any others who feel that the videoing of this trial for showing on TV public television at a later time would affect you in any way during the trial, keep you from being fair, keep you from being objective, keep you from saying something, any of those things?

Anybody else?

If you do, raise your hands.

You'll get this question again before each one of you that are on the jury are sworn in, I'm going to ask you this question one more time. Because it's important. I'll level with you. As far as I know, this has never been done in a court of law, ever, in any courtroom anywhere. And the defense in this case is agreeing to this. They don't object, just so you know. And that is why it will be taking place in this case. But it's the first time. Never heard of it happening and you probably never will[.]

[VENIRE PERSON]: What is the purpose of videoing this?

[RESPONDENT]: To educate the public on administration of justice in our courtroom. So the public has a better understanding of the real world and what takes place in our courts. This is a conception among everybody about courtrooms, especially criminal cases. And my own opinion is the more the public can know about the truth, the way things really are, the better we are as a people. And the system benefits from this, this system we all operate under. So, that's why it's public television.

[RESPONDENT]: Yes?

[VENIRE PERSON]: When you say through jury deliberations, that means going into the jury room where all the jurors are discussing the matter and trying to come up with a verdict?

[RESPONDENT]: That is correct. There won't be a person back there, but there's a camera back there. And it will record what takes place. It's not live. None of these people would ever see it until after the trial is over. It's secured by the Court. The viewing in the jury room, how the mechanics and dynamics of the discussion in the jury room, all of that would be recorded, televised to be shown at a later date.

So, anybody else, other than those people that filled out the form that would give them a concern? Are there any other people? Okay.

The record reflects that 13 veniremembers were "excused by agreement" because "they had a problem about having the case videoed."

[RESPONDENT]: ... Just so the record is perfectly clear, the lawyers and the Court with the Court's agreement: Any juror that had a problem in any way of answering the Question 118 will be excused if they had a problem about having the case videoed; is that correct?

[MR. HARRISON]: That is correct, Your Honor.

[RESPONDENT]: Is that right?

[RELATOR]: Yes, Judge.

[RESPONDENT]: And then there were 13 of those jurors. Do you have those marked?

[THE CLERK]: Yes, sir.

[RESPONDENT]: Okay. Read into the record those 13 jurors. These are the people that have already been excused by agreement based on Question 118.

The next day two more veniremembers were "excused by agreement" for similar reasons. That same day relator filed this original mandamus proceeding in this Court seeking to bar only the videotaping of the jury deliberations. Relator asserts that, when he filed this mandamus proceeding, "a panel of prospective jurors [had] completed preliminary questioning and was directed to return to relator's court for individual voir dire examination" at a later date. This Court stayed the proceedings in respondent's court before individual voir dire examination began. This Court later granted relator's motion for leave to file with the stay remaining in effect "pending further orders by this Court."

A. General Mandamus Principles

This Court will grant mandamus relief if relator can demonstrate that the act sought to be compelled is purely "ministerial" and that relator has no other adequate legal remedy. See Hill v. Fifth Court of Appeals, 34 S.W.3d 924, 927-28 (Tex.Cr.App. 2001). We have described the "ministerial act" requirement as a requirement that the relator have "a clear right to the relief sought" meaning that the relief sought must be "clear and indisputable" such that its merits are "beyond dispute" with "nothing left to the exercise of discretion or judgment." See id. Mandamus does not lie to correct a trial court's ruling on an "unsettled or uncertain" question of law. See id. ⁽³⁾

Relying on Hill, respondent argues that videotaping the jury deliberations is a matter of judicial discretion because this involves an issue of first impression. In Hill, the trial court followed the "plain" language of a statute which the relator sought to have declared unconstitutional. See Hill, 34 S.W.3d at 926. We held that the relator failed to establish a "clear legal right" to have the statute declared unconstitutional in part because the constitutional issue was one of first impression but also (and more importantly) because we could not hold that "the trial court would be conducting a ministerial act by refusing to apply the plain language" of the statute that relator sought to have declared unconstitutional. See Hill, 34 S.W.3d at 928. Hill does not stand for the proposition that, when the issue involved in a mandamus proceeding is one of first impression, this is necessarily dispositive of the ministerial act requirement.

B. Ministerial Act

When subject-matter jurisdiction is properly invoked, a trial court's inherent power includes broad discretion over the conduct of its proceedings. ⁽⁴⁾ Though some limits to this broad discretion may exist, ⁽⁵⁾ this Court would find it very difficult to decide that respondent has no discretion to permit the videotaping of jury deliberations (even for live broadcast) in the absence of a statute that specifically prohibits it. Cf. Patrick, 86 S.W.3d at 595 (discussing the maxim that "whatever is not forbidden is permitted"). ⁽⁶⁾

Relator argues that respondent has no discretion to permit videotaping of the jury deliberations because the first sentence of Article 36.22, Texas Code of Criminal Procedure, clearly prohibits it. The first sentence of Article 36.22 provides that "[n]o person shall be permitted to be with a jury while it is deliberating." ⁽⁷⁾ Relator claims that videotaping the jury's deliberations will unlawfully pierce the "veil of confidentiality" of jury deliberations established by the first sentence of Article 36.22. Relator further claims that maintaining the confidentiality of jury "deliberations is essential to preservation of the jurors' ability to fully and freely consider all aspects of the case, without fear of embarrassment, retaliation, or public approbation."

Respondent claims that it is within his sound discretion to permit videotaping of the jury deliberations because no "statute, rule, or common law in Texas" clearly prohibits an unattended camera to videotape the jury deliberations for later public broadcast. Respondent argues that videotaping jury deliberations does not violate the "plain" language of Article 36.22 because Article 36.22 does not establish an absolute "veil of confidentiality" of jury deliberations but only prohibits persons from being present with the jury during deliberations for the purpose of preventing jurors from being subjected to outside influences and pressures. Respondent further asserts that if Article 36.22 did "create a veil of confidentiality, then jurors would not be free to violate this statute by speaking about deliberations after a verdict is rendered, a very common practice in Texas." Respondent also asserts that if "current law did forbid taped jury deliberations, there would be no reason for proposing Senate Bill No. 164 [which apparently has been filed and is pending in the current legislative session] to bar the recording of jury deliberations in trials commenced on or after September 1, 2003."

Respondent argues in his brief:

Relator reads into this unambiguous provision [of Article 36.22] a requirement that deliberations be conducted under a "veil of confidentiality," such that jurors be "unobserved and unheard by others during deliberations." (Relator's Brief at p. 4 & 6). That is not what the provision requires; rather, it merely prohibits any "person" from being present, i.e. "with", a jury during deliberations. By preventing the presence of other persons during deliberations, Article 36.22 achieves the goal of preventing jurors from being subjected to outside influences and pressures. This purpose is clearly evidenced by the title of the provision: "Conversing with the jury." In this case, recording jury deliberations cannot possibly introduce outside influences and pressures on the jury-there would be no "person" present "conversing with the jury." Instead, there would merely be the presence of an unattended, remote-controlled video camera in the jury room. The camera is not a person, nor is it capable of interacting or conversing with jurors about any subject, much less about the case on trial.

This case boils down to what the Legislature meant in the first sentence of Article 36.22 by its language, "[n]o person shall be permitted to be with a jury while it is deliberating." We normally construe a statute according to its "plain" textual meaning without resort to extratextual sources. See Boykin v. State, 818 S.W.2d 782, 785 (Tex.Cr.App. 1991). We will, however, also resort to extratextual sources to construe a statute if we decide that the statute is ambiguous or that construing the statute according to its "plain" textual meaning will lead to "absurd consequences." See Jordan v. State, 36 S.W.3d 871, 873 (Tex.Cr.App. 2001). Mandamus may lie to compel compliance with even an ambiguous statute if we can determine the "clear and indisputable" meaning of the statute by resort to extratextual sources. See Hill, 34 S.W.3d at 927-28.

Respondent claims that videotaping the jury deliberations does not violate the first sentence of Article 36.22 because the unattended camera is not a "person with [the] jury" and "cannot possibly introduce outside influences and pressures on the jury"while it is deliberating. But each of the millions of viewers of the videotape is a person, and the playing of the videotape (live or not) permits these persons to "be with the jury while it is deliberating" under the "plain" language of the fist sentence of Article 36.22.

And, videotaping the jury deliberations with an unattended camera does introduce an "outside influence and pressure" on the jury while it is deliberating. Questioning the veniremembers during voir dire about whether this will affect their deliberations all but admits that this is an "outside influence and pressure" since these are normally the types of questions asked after an improper outside influence has been brought to bear on a jury for which our law presumes prejudice. ⁽⁸⁾ In addition, it normally cannot be determined whether an event introducing an "outside influence and pressure" on the jury has affected jury deliberations until after (not before) the event has occurred. ⁽⁹⁾ Even though many of the veniremembers in this case may have indicated that videotaping their deliberations will not affect them, this really cannot be determined until after the jury has completed its deliberations.

In a notorious Texas case involving televising portions of a defendant's trial which did not include televising the jury deliberations, ⁽¹⁰⁾ Justice Clark's observations about the "potential impact of television on jurors" are also responsive to the argument that an unattended camera videotaping jury deliberations is not an "outside influence and pressure."

As has been said, the chief function of our judicial machinery is to ascertain the truth. The use of television, however, cannot be said to contribute materially to this objective. Rather its use amounts to the injection of an irrelevant factor into court proceedings. In addition experience teaches that there are numerous situations in which it might cause actual unfairness-some so subtle as to defy detection by the accused or control by the judge. We enumerate some in summary:

1. The potential impact of television on the jurors is perhaps of the greatest significance. They are the nerve center of the fact-finding process. It is true that in States like Texas where they are required to be sequestered in trials of this nature the jurors will probably not see any of the proceedings as televised from the courtroom. But the inquiry cannot end there. From the moment the trial judge announces that a case will be televised it becomes a cause celebre. ... If the community be hostile to an accused a televised juror, realizing that he must return to neighbors who saw the trial themselves, may well be led "not to hold the balance nice, clear and true between the State and the accused . . . ."

Moreover, while it is practically impossible to assess the effect of television on jury attentiveness, those of us who know juries realize the problem of jury "distraction." The State argues this is de minimis since the physical disturbances have been eliminated. But we know that distractions are not caused solely by the physical presence of the camera and its telltale red lights. It is the awareness of the fact of telecasting that is felt by the juror throughout the trial. We are all self-conscious and uneasy when being televised. Human nature being what it is, not only will a juror's eyes be fixed on the camera, but also his mind will be preoccupied with the telecasting rather than with the testimony.

Estes, 85 S.Ct. at 1634 (emphasis supplied).

We hold that the first sentence of Article 36.22 clearly and indisputably prohibits the videotaping of jury deliberations. ⁽¹¹⁾ The existence of a proposed and pending Senate Bill that more clearly prohibits what the first sentence of Article 36.22 already clearly prohibits is of no consequence. We further note that our interpretation of the first sentence of Article 36.22 is also consistent with the ancient and centuries-old rule that jury deliberations should be private and confidential in order to promote "freedom of debate," "independence of thought" and "frankness and freedom of discussion and conference." See Clark v. United States, 53 S.Ct. 465 (1933); McDonald v. Pless, 35 S.Ct. 783, 784 (1915); ⁽¹²⁾ see also Alsup v. State, 39 S.W.2d 902, 903 (Tex.Cr.App. 1931) (requiring jurors to identify publicly in the presence of spectators those jurors who disagreed with the majority was error because the "deliberations of a jury are required to be kept secret"); Abraham Abramovsky & Jonathan L. Edelstein, Cameras in the Jury Room: An Unnecessary and Dangerous Precedent, 28 Ariz.St.L.J. 865 (1996); Cohn Marjorie & David Dow, Cameras in the Courtroom: Television and the Pursuit of Justice154, McFarland & Company, Inc. (2d ed. 1998); Lloyd E. Moore, The Jury: Tools of Kings, Palladium of Liberty 2, Anderson Publishing (2d ed. 1973).

Finally, respondent points to instances where other jurisdictions (Arizona and Wisconsin) have permitted videotaping of jury deliberations and claims that this had "no impact on jury deliberations." Relator speculates that videotaping the jury deliberations in the Arizona experiment affected the jury deliberations since two out of the three cases chosen for initial broadcast resulted in hung juries and mistrials. The practice of other jurisdictions, however, does not control our interpretation of Article 36.22.

C. Adequate Legal Remedy

Relator has no right to appeal respondent's order. We have decided that this satisfies the no adequate legal remedy mandamus requirement. See Patrick, 86 S.W.3d at 594; Gray, 726 S.W.2d at 127-28.

As is our custom, we withhold issuance of the writ to accord respondent an opportunity to make that unnecessary. See Hill, 34 S.W.3d at 929. We also lift the stay of proceedings in respondent's court.

Hervey, J.

Delivered: February 12, 2003

Publish

1. Respondent makes the unchallenged factual assertion in his brief that the interested parties to this proceeding, including relator, "discussed [the] parameters and procedures of the filming process for several months before the start of trial," with no objection from relator. The record before the Court indicates that relator first lodged an objection "to the filming of all proceedings" three days before the commencement of jury selection. Respondent does not claim that relator has procedurally defaulted the claim (videotaping the jury deliberations) raised in this proceeding.

2. Relator asserts that Mr. Harrison has not waived "his right to complain in post-conviction proceedings that the recording of the deliberations deprived him of a fair trial, or that his court-appointed attorneys provided ineffective assistance of counsel by consenting to the recording of the deliberations."

3. In Hill, we noted a possible conflict between our decisions in Gray v. State, 726 S.W.2d 125 (Tex.Cr.App. 1987), and Healey v. McMeans, 884 S.W.2d 772 (Tex.Cr.App. 1994). See Hill, 34 S.W.3d at 927 n.3 and at 928 n.5. Healey explained that an act is ministerial when the "law clearly spells out the duty to be performed with such certainty that nothing is left to the [sic] discretion or judgment" and that mandamus may be used to correct judicial action "that is clearly contrary to well-settled law, whether that law is derived from statute, rule, or opinion of a court" such as "clear, binding precedent from a court of superior jurisdiction." See Healey, 884 S.W.2d at 774. Hill noted that this potentially conflicted with our statement in Gray that mandamus does not lie to compel a trial court "to rule a certain way." See Gray, 726 S.W.2d at 128.

This statement from Gray, however, must be read in the context of the issue presented in Gray. The act sought to be compelled in Gray was to require the trial court to rule a certain way on an issue involving the doctrine of collateral estoppel "as embodied in the Fifth Amendment guarantee against double jeopardy" under Ashe v. Swenson the application of which is inherently discretionary and almost always "uncertain and unsettled." Gray, 726 S.W.2d at 126; see Ashe v. Swenson, 90 S.Ct. 1189, 1194-95 (1970) (requiring courts to "examine the record of [the] prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude [sic] whether a rational jury could have grounded its [general] verdict upon an issue other than that which the defendant seeks to foreclose from consideration") and at 1203-05 (Burger, C.J., dissenting) (collateral estoppel concept "is a strange mutant as it is transformed to control" in criminal cases); Reynolds v. State, 4 S.W.3d 13, 21 n.18 (Tex.Cr.App. 1999) (acknowledging the ambiguity in this Court's "collateral estoppel" jurisprudence) and at 22 (Meyers, J., dissenting) (same). The real problem in Gray, therefore, was not necessarily that the relator was attempting to have this Court compel the trial court "to rule a certain way" but that the relator was attempting to have this Court compel the trial court "to rule a certain way" on an uncertain and unsettled issue the resolution of which involved a fair amount of discretion.

We reconcile Gray and Healey on this basis: when read together with Hill, these cases support the proposition that mandamus may lie to compel a trial court "to rule a certain way" on an issue that is "clear and undisputable" such that its merits are "beyond dispute" or when the "law clearly spells out the duty to be performed with such certainty that nothing is left to the [sic] discretion or judgment" whether that law is derived from "statute, rule, or opinion of a [superior] court." See Hill, 34 S.W.3d at 928 n.5. Of course, mandamus will not lie even under these circumstances if the aggrieved party has a right to appeal since the right to appeal is usually considered an adequate legal remedy. See Gray, 726 S.W.2d at 127.

4. See Article 5, Section 8, Texas Constitution, (setting out broad grant of jurisdiction to district courts); State v. Patrick, 86 S.W.3d 592, 595-96 (Tex.Cr.App. 2002); State v. Johnson, 821 S.W.2d 609, 612 (Tex.Cr.App. 1991); Awadelkariem v. State, 974 S.W.2d 721, 728 (Tex.Cr.App. 1998) (Meyers, J., concurring); Ex parte Krupps, 712 S.W.2d 144, 153 (Tex.Cr.App. 1986) (Onion, P.J., concurring) ("judge's control of the courtroom must be maintained with as little burden on him as possible") and at 160 (Campbell, J., dissenting) (same) and at 163 (Miller, J., dissenting) (same)

5. Relator asserts that mandamus would lie if, for example, a district court required jurors "to disguise themselves with ski masks and speak only Pig Latin during deliberations." That may be so. But, this case does not present such extreme circumstances.

6. In Patrick, we decided that mandamus relief was warranted because the district court acted without subject-matter jurisdiction and, therefore, had no power to act. See Patrick, 86 S.W.3d at 595. This case does not present the jurisdictional issue presented in Patrick as there is no dispute that respondent has jurisdiction over the subject-matter in this case.

7. Article 36.22, whose caption is "Conversing with Jury," in its entirety provides:

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.

8. See Romo v. State, 631 S.W.2d 504, 506 (Tex.Cr.App. 1982), overruled on other grounds, Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Cr.App. 1996), cert. denied, 117 S.Ct. 1442 (1997) (juror testified that officer's unauthorized communication did not affect her ability to decide the case).

9. For example, in the Romo v. State situation, the veniremembers would not be asked at voir dire whether some later "outside influence or pressure" (such as the one that occurred in Romo) would affect their deliberations. See Romo, 631 S.W.2d at 506.

10. See Estes v. Texas, 85 S.Ct. 1628, 1629 (1965) (televising and broadcasting of defendant's trial deprived defendant of a fair trial under the Fourteenth Amendment); see also Chandler v. Florida, 101 S.Ct. 802, 809 (1981) (Estes did not announce a rule that broadcast coverage of criminal trials is per se a denial of due process).

11. Our interpretation of the first sentence of Article 36.22 also does not prevent a juror from speaking about the deliberations after a verdict is rendered since the second sentence of Article 36.22 prohibits this while the case is "on trial."

12. These cases apply the general rule that a juror cannot impeach his own verdict. This rule is codified in Texas Rule of Evidence 606(b) which, like the first sentence of Article 36.22, promotes, among other things, the confidentiality of jury deliberations. The Supreme Court's decision in McDonald v. Pless explains that this rule is a choice between the lesser of two evils. See McDonald, 35 S.Ct. at 784-85:

The rule [that a juror cannot impeach his own verdict] is based upon controlling considerations of a public policy which in these cases chooses the lesser of two evils. When the affidavit of a juror, as to the misconduct of himself or the other members of the jury, is made the basis of a motion for a new trial, the court must choose between redressing the injury of the private litigant and inflicting the public injury which would result if jurors were permitted to testify as to what had happened in the jury room.

These two conflicting considerations are illustrated in the present case. If the facts were as stated in the affidavit, the jury adopted an arbitrary and unjust method in arriving at their verdict, and the defendant ought to have had relief, if the facts could have been proved by witnesses who were competent to testify in a proceeding to set aside the verdict. But let it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation; to the destruction of all frankness and freedom of discussion and conference.

(Emphasis Supplied).