United States Court of Appeals

Fifth Circuit



## FILED

July 20, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-70023

CARL L. BROOKS,

Petitioner-Appellant,

versus

DOUG DRETKE, Director, Texas Department of Crim inal Justice,

Correctional Institutions Division,

Respondent-Appellee.

Appeal from the United States District Court

For the Western District of Texas, San Antonio

Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

On the first day of the sentencing phase of his capital trial,

a member of the jury that had convicted Carl L. Brooks was arrested

for the misdemeanor offense of unlawfully carrying a weapon and

faced prosecuti on by the district attorney’s office then

prosecuting Brooks. A loaded pistol was found in his briefcase in

the routine screening of a security checkpoint in the courthouse.

Whether this jury misconduct tainted the jury’s sentencing decision

of death is the only issue remaining in this ca se today. We are1 Brooks v. State , 990 S.W.2d 278 (Tex. Crim. App. 1999).

2 Brooks v. Texas , 528 U.S. 956 (1999).

2 persuaded that while the conviction of capital murder must stand

the sentence of death must be vacated.

I

Carl L. Brook s was convicted by a Texas jury of the capital

murder of Frank Johnson in the course of a robbery and sentenced to

death. The Texas Court of Criminal Appeals affirmed 1 and the

Supreme Court denied certiorari. 2 Brooks filed a writ of habeas

corpus in state court. Judge Pat Priest, sitting by assignment in

the 175th District Court in Bexar County, Texas, presided at the

trial and conducted evidentiary hearings on Brooks’s petition for

post-conviction relief under Articl e 11.071 of the Texas Code of

Criminal Procedure:

On the evening of April 21, 199 7, applicant was

convicted by the jury of the offense of Capital Murder as

charged in the indictment. After reaching a verdict on

the issue of guilt, the jury retired for the evening. At

the onset of the punishment phase, counsel for applicant

moved for a mistrial on the grounds that one of the

jurors (juror Garcia) had been arrested that morning for

entering the courthouse with a handgun. This court found

that the juror had been “booked and released on P.R.

bond” and as a result was “available for jury service”.

That motion for mistrial was denied. The applicant then

requested that this Court remove the juror on the grounds

that he was disabled. That request was also denied. At

the request of the applicant, this Court made an inquiry

of the juror. During questioning by the court, it was

established that the juror had not informed other members

of the jury of his arrest. The juror also informed the

court that his arrest would in no way impede his ability

to be fair to the applicant during the remainder of the

trial. No further relief was requested by the applicant.3 Ex Parte Brooks

, No. 96CR0292-W1, at 3-5 (175th Dist. Ct., Bexar County,

T ex. May 5, 2000) (unpublished) (findings of fact and conclusions of law)

(citations omitted).

3 The trial continued with Juror Garcia.

. . .

This claim for relief was a subject of the

evidentiary hearing conducted at the applicant’s request.

The jur or in question testified at the evidentiary

hearing, along with the members of the District

Attorney’s Office involved in the subsequent prosecution

of juror Garcia.

Garcia was arrested while passing through the

security checkpoint on the first floor of the Bexar

County Criminal Just ice Center on April 22, 1997. The

arrest was based upon the fact that Garcia carried a .25

caliber pistol in his briefcase upon entering the Justice

Center. At the time of his arrest, Garcia explained to

the arresting officer that he was carrying the pistol

because he was planning to take it to the gunsmith for

repairs.

Garcia related that he was not carrying the pistol

because he feared for his personal safety at the time of

the trial. Moreover, his arrest did not influence him in

his deliberations regarding applicant’s punishment.

Garcia’ s fellow jurors were unaware of his arrest

throughout the remainder of the proceedings. The event

was not a subject of discus sion during jury

deliberations. At no point did Garcia have any off-therecord conversations with members of the District

Attorney’s Office regarding the disposition of his case.

Garcia did not vote at the punishment phase in a fashion

designed to ingratiate himself with the District

Attorney’s Office in hopes of obtaining some species of

leniency in the future.

Gar cia related that his vote to assess the death

penalty upon the applicant, was based solely up on the

evidence presented during the course of the trial and was

w holly unrelated to the charge pending against him.

Garcia had no contact with any members of law enforcement

regarding his charge, with the exception of the arresting

officer. 34 Ex P arte Brooks , No. 45,631-01 (Tex. Crim. App. Sept. 13, 2000)

(unpublished).

5 Brooks v. Dretke

, No. SA-00-CA-1050-FB (W.D. Tex. Jun. 2, 2004)

(unpublished).

6 See Brooks v. Dretke , 404 F.3d 924 (5th Cir. 2005).

7 This claim was briefed as three issues. S ee id. at 925-26 (issues 2-4).

4 The Texas Court of Criminal Appeals adopted the f indings of

fact and conclusions of law of the state trial court and denied

Brooks’s state appl ication for a writ of habeas corpus. 4 Brooks

then filed his application for a federal writ under 28 U.S.C.

§ 2254 on April 4, 2003. The federal di strict court judge denied

all relief on June 2, 2004, 5 and denied a certifi cate of

appealability two weeks later. We then granted a certificate of

appealability, 6 only upon the claim that the verdict of the jury in

the sentencing phase of the trial was tainted by the arrest of the

juror. 7

II

Brooks urges that the trial judge should have granted his

motion for mistrial, which he filed upon learning of Garcia’s

arrest and arraignment. The contention is that the same district

attorney’s office prosecuting Brooks for capital murder was

prosecuting a member of the jury deciding his fate. This

circumstance, however innocent on the part of the juror and however

pure the motive of the prosecution in the filin g of the initial

charge, created an intolerable inherent risk of abuse. The8 See T EX

. P ENAL C ODE A NN

. § 46.02(a) (V ernon 1994) (“A person commits an

offense if he intentionally, k nowingly, or recklessly carries on or about his

person a handgun

. . . .”); T EX

. P ENAL C ODE A NN

. § 46.02(e) (Vernon 1994) (offense

is class A misdemeanor).

9 See T EX

. P ENAL C ODE A NN

. § 46.03(a)(3) (Vernon Supp. 1996) (“A person

commits an offense if, with a firearm, . . . he intentionally, knowingly, or

recklessly possesses or goes . . . in any government court or offices utilized

by the court, unless pursuant to written regulations or written authorization of

the court.”); T EX

. P ENAL C ODE A NN

. § 46.03(g) (Vernon Supp. 1996) (offense is third

degree felony).

10 In 2003, § 46.03(a)(3) was amended to make it an offense to

intentionally, knowingly or recklessly possess a firearm “on the premises” of--

rather than just “in”--any government court or offices utilized by the court.

See Act of June 20, 2003, 78th Leg., R.S., ch. 1178, § 3, 20 03 Tex. Sess. Law

Serv. 3364 (Vernon).

5 argument is that throughout the sentencing phase of the trial and

deliberations over the sentence, Garcia faced the reality that his

own fate would be decided by a prosecutor exercising virtually

unreviewable discretion over his offense--an offense that could

have been charged up to a third degree felony.

The State argues that the state proceedings have demonstrated

that there was no actual bias; that Brooks must rely on what, in

the State’s view, is an unsettled doctrine: implied bias. It next

replies that the arresting officer charged Broo ks unlawfully

carrying a weapon, a misdemeanor, 8 not the felony offense of going

with a firearm into a courthouse; 9 that Garcia was in fact never

charged with a felony and pled to the possession charge. Moreover,

the State urges that it could not have sustained a felony

prosecution on these facts in that the statute at the time required

entry into a courtroom, although it was later amended to reach

entry onto the premises of a courthouse. 1011 We do not speculate on other choices that the state trial judge may have

had such as seating an alternate. The record sheds no light on this question.

We assume that the choices were to do as he did or to empanel a new jury for the

sentencing phase of the trial.

6 A

This is not a case of jury tampering or outside information

finding its way to a juror. Nor is it a case of misconduct by a

juror while performing his duties, although he was headed into the

courthouse to resume work as a juror. Rather, this case involves

a juror, Garcia, who found himself in a position of potential

conflict between his duty and his self-interest. Further, this is

not a case where the trial judge fail ed to respond properly. To

the contrary, on learni ng of Garcia’s arrest, the trial judge

questioned Garcia out of the presence of the other jurors and in

the presence of all counsel, insuring that others had not and would

not learn of what had happened. He also accepted the assurances of

Garcia that this would have no effect on his deliberations. In

short, there can be no claim of deficiency in the procedural

response to the arrest of the juror. The trial judge did all that

he could do, short of seating a new jury. 11

We cannot know whether Garcia’s as surances of fairness were

realized even if we accept as we do the trial court’s finding of

his credibility. In general, we have responded to this reality in

two ways. In one small set of circumstances, we have been

unwilling to accept a juror’s claims of fairness; rather, we have12 See, e.g

., United States v. Scott , 854 F.2d 697, 700 (5th Cir. 1988);

see also Smith v. Phillips , 455 U.S. 209, 222-23 (1982) (O’Connor, J.,

concurring); cf. Leonard v. United States , 378 U.S. 544 (1964).

13 Solis v. Cockrell , 342 F.3rd 392 (5th Cir. 2003).

14 Phillips

, 455 U.S. at 222 (O’Connor, J., concurring) (emphasis added),

quoted in Scott , 854 F.2d at 699.

15 See, e.g.

, Solis v. Cockrell , 342 F.3d 392, 399-400 (5th Cir. 2003);

United States v. Sylvester

, 143 F.3d 923 ( 5th Cir. 1998); s ee also Smith v.

Phillips , 455 U.S. 216 (1982); Remmer v. United States , 347 U.S. 227 (1954).

16 347 U.S. 227 (1954).

7 i mplied bias and ordered new trials. 1 2 While we recently

summarized the law in this circuit and need not march that ground

again, 13 it bears emphasis that while we are persuaded that the

principle of implied bias is settled federal law, its application

has been confined to a narrow range of cases. As Justice O’Connor

once opined:

While each case must turn on its own facts,

there are some extreme situations that would

justify

a finding of implied bias . Some

examples might include a revelation that the

juror is an actual employee of the prosecuting

agency, that the juror is a close relative of

one of the participants in the trial or the

criminal transaction, or that the juror was a

witness or somehow involved in the criminal

transaction. 14

In a second set of cases, we have r efused to imply bias and

held that post-verdict hearings to determine bias is an adequate

response, guided in our path b y Supreme Court precedent. 1 5 In

Remmer v. United States

, 16 the Court found presumptive prejudice in

an unsuccessful effort to bribe a juror; but rather th an order a

new trial, instructed the trial judge to conduct a hearing into the17 Id. at 230.

18 455 U.S. 216 (1982).

19 Id. at 217.

20 Id.

21 Phillips , 455 U.S at 222 (O’Connor, J., concurring).

22 854 F.2d at 699.

8 circ umstances to determine prejudice. 1 7 Then, in S mith v.

Phillips

, 18 the Court declined to imply bias where a juror in a

murder trial applied for a job in the district attorney’s office,

a fact not disclosed until after the conviction. Reviewing

case law, the Court summed up: “These cases demonstrate that due

process does not require a ne w trial every time a juror has been

placed in a potentially compromising situation.” 19 The Court

continued:

Due process means a jury capable and willing

to deci d e the case solely on the evidence

before it, and a trial judge ever watchful to

prevent prejudicial occurrences and to

determine the effect of such occurrences when

they happen. Such determinations may properly

be made at a hearing like that ordered in

Remmer and held in this case. 20

Justice O’Connor concurred, m aking clear that in certain narrow

circumstances where implied bias is found, “a he aring may be

inadequate for uncovering a juror’s biases.” 21 We, in turn, made

clear in United States v. Scott that the law in this Circuit tracks

Justice O’Connor’s view. 22

Lower courts have divided over whether Remmer ’s presumption of23 507 U.S. 72 5 (1993); s ee Parker v. Head

, 244 F.3d 831, 839 n.6 (11th

Cir. 2001) (collecting cases).

24 143 F.3d 923 (5th Cir. 1998).

25 See United States v. Wood

, 299 U.S. 123, 133 (1936) (“The bias of a

prospective juror may be actual or implied; that is, it may be bias in fact or

bias conclusively presumed as matter of law.”), quoted in Solis

, 342 F.3d at 395.

9 prejudice survived Phillips as well as the later decision of the

Court in United States v. Olano

. 23 While a panel of this court

concluded in United States v. Sylvester 24 that Remmer and Phillips

had ended the “ presumption of prejudice,” it did not address

implied bias, seeing the issue in Sylvester to be where the burden

of proof properly lay. It held that the government had no burden to

prove the absence of prejudice until the cour t on inquiry

determines that prejudice is likely. The determination of implied

bias is an objective legal judgment made as a matter of law and is

not controlled by sincere and credible assurances by the juror that

he can be fair. 25 By definition then, rules for hearings into

actual bias such as shifting burdens of proof are not in play in

the narrow range of cases in which it is implied.

B

Our question is whether Garcia’s conduct is of the genre of

cases Justice O’Connor pointed to in her concurring opinion in

Phillips : juror conduct not salvageable by post event hearings. We

think that the answer to this question is yes. Garcia was married

with two young children. As he list ened to the evidence in the

sentencing phase and participated in the jury’s decision of the26 Precedent to and implicit in our finding of implied bias is the judgment

that reasonable jurists could not disagree with our legal conclusion.

27 Co. Litt. 155b, quoted in Turner v. Louisiana

, 379 U.S. 466, 472 (1965).

10 State’s contention that Brooks should be put to death he was facing

a stunning turn of events in his own life. He could have been

sentenced to a year in jail; worse yet, he could have faced a

felony prosecution, notwithstanding the State’s interpretation in

this case of the older version of the Texas gun possession statute.

True enough he was not an employee of the district attorney’s

office, but in practical ways his future was even more in its

hands. Garcia testified that the sentencing hearing “was one

entire week of hell” and he suffered “unrelenting embarrassment.”

He thought the matter of his arrest was to be held in confidence,

but his “name and this case [was] the head story at twelve, five,

six and ten o’clock for four straight days.”

We do not suggest that being charged with unlawfully carrying

a weapon alone disqualified Garcia for jury service under state law

or that any outstanding misdemeanor charge should support a finding

of implied bias. It is rather the sum of all factual circumstances

surrounding this juror--in part icular, the power of the District

Attorney, and the timing and sequence of events--that compels this

conclusion. 26 As Lord Coke put it, a juror must be as “indifferent

as he stands unsworne.” 27 That there is no evidence that the

District Attorney did anything to exploit his power over juror

Garcia is of no moment. That the power presents an intolerable28 489 U.S. 288 (1989).

29 See Phillips

, 455 U.S. at 222 (O’Connor, J., concurring); a lso id. at

216-17 (noting that the Court had addressed and rejected claims of implied juror

bias in Dennis v. United States

, 339 U.S. 162 (1950) and Chandler v. Florida

, 449

U.S. 560 (1981)).

30 See, e.g.

, Wood , 299 U.S. at 133.

31 See Phillips

, 455 U.S. at 223 (O’Connor, J., concurring) (“[T]his Court

[in Le onard v. United States , 378 U.S. 544 (1964)] has used implied bias to

reverse a conviction.”).

32 See Burdine v. Johnson

, 262 F.3d 33 6, 350-57 (5th cir. 2001)

(Higginbotham, J., concurring); id. at 352 (noting that the “distinction between

cases presenting new rules and cases presenting new facts is central to the

f unctioning of T eague ” and that “ Teague does not bar a federal court from

reviewing the application of an old rule to new facts in state court”).

11 risk of working its will without the raising of a hand or a nod is

the vice here.

III

The State further argues that Teague v. Lane 28 bars application

of the implied bias doctrine in this case. The State’s argument is

not without weig ht, as the Supreme Court has never explicitly

required a new trial based on implied bias. 29 However, the Court

has long acknowledged the principle, 30 and has implicitly applied

it to require a new trial. 31 That is, it is a settled principle of

law that there is a set of cases in which misconduct by a juror

cannot be ameliorated by a hearing. While the Supreme Court has

oft-rejected applic ation of the implied bias principle, in cases

such as Remmer and Phillips

, it has never rejected the principle

itself. Where, as here, we are merely undertaking the case-by-case

application of a settled principle, Teague is not implicated. 3212 IV

The judgment of the District Court denying federal habeas is

reversed. This case is remanded to the district court for entry of

an order directing the State of Texas to e ither conduct a new

sentencing hearing or impose a sentence of other than death as

provided by applicable state law.

REVERSED and REMANDED with instructions.