            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                      NO. PD-0385-08



                              JOHN URANGA, III, Appellant

                                             v.

                                 THE STATE OF TEXAS



            ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                    FROM THE SIXTH COURT OF APPEALS
                             WICHITA COUNTY

       P RICE, J., filed a dissenting opinion in which H OLCOMB, J., joined.

                                DISSENTING OPINION

       Without fanfare, the Court today announces that there is no such thing as the Sixth

Amendment doctrine of implied bias. The whole thing is apparently a figment of Justice

O’Connor’s imagination. I am here to attest that the implied bias doctrine does exist. I know

it does; I have seen it.

       Writing for a nearly unanimous Court two-and-a-half years ago, albeit in dicta, I
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described the provenance of the Sixth Amendment’s implied bias doctrine.1                   After

summarizing the facts and holding of the majority opinion in Smith v. Phillips,2 I turned to

Justice O’Connor’s concurring opinion and explained:3

              Justice O’Connor joined the majority opinion in Smith v. Phillips, but
       wrote separately to express her view that the due-process holding contained
       therein did not “foreclose” application of the Sixth Amendment doctrine “of
       ‘implied bias’ under appropriate circumstances.” 4 She pointed out that
       sometimes a prospective juror’s own ability to objectively gauge his
       impartiality may be impaired, or he may even have a motive not to disclose it.5
       She continued:

               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. Whether or not the state
               proceedings result in a finding of “no bias,” the Sixth
               Amendment right to an impartial jury should not allow a verdict
               to stand under such circumstances.6


       1

        State v. Morales, 253 S.W.3d 686 (Tex. Crim. App. 2008).
       2

        455 U.S. 209 (1982).
       3

        Id. at 694-96 (footnotes from the original Morales opinion will be reproduced here, in the
margin, in footnotes four through twelve, post).
       4

        Smith v. Phillips, supra, at 221.
       5

        Id. at 222.
       6

        Id.
                                                                                             Uranga — 3


        Justice O’Connor’s view that the Sixth Amendment doctrine of implied bias
        survived the majority’s due-process analysis in Smith v. Phillips was later
        endorsed by five members of the Court, albeit in separate opinions, in
        McDonough Power Equipment, Inc. v. Greenwood.7

               Indeed, the Sixth Amendment doctrine can be traced back at least as far
        as 1936, when the Supreme Court observed that “[t]he [Sixth] Amendment
        prescribes no specific tests. The bias of a prospective juror may be actual or
        implied; that is, it may be bias in fact or bias conclusively presumed as a
        matter of law.” 8 Some have traced its genesis to Chief Justice Marshall’s 1807
        seminal opinion as a circuit judge in the Aaron Burr treason trial in United
        States v. Burr.9 Whatever its provenance, the doctrine of implied bias has been
        recognized and applied by many of the federal circuit courts of appeals,10 and


        7

         464 U.S. 548, 556-57 (1984) (Blackmun, J., joined by Stevens and O’Connor, JJ., concurring)
(“it remains within a trial court’s option, in determining whether a jury was biased, to order a post-trial
hearing at which the movant has the opportunity to demonstrate actual bias or, in exceptional
circumstances, that the facts are such that bias is to be inferred.”); id. at 558 (Brennan, J., joined by
Marshall, J., concurring) (“for a court to determine properly whether bias exists, it must consider at
least two questions: are there any facts in the case suggesting that bias should be conclusively
presumed; and, if not, is it more probable than not that the juror was actually biased against the
litigant.”).
        8

        United States v. Wood, 299 U.S. 123, 133 (1936). See Franklin v. State, 138 S.W.3d 351,
363-64 (Tex. Crim. App. 2004) (Cochran, J., dissenting).
        9

        See United States v. Haynes, 398 F.2d 980, 983-984 (2 nd Cir. 1968), citing United States v.
Burr, 25 Fed.Cas. 49 (C.C.Va. 1807). Without expressly invoking the Sixth Amendment, Chief
Justice Marshall observed in Burr, supra, at 50:

        The end to be obtained is an impartial jury; to secure this end, a man is prohibited from
        serving on it whose connexion with a party is such as to induce suspicion of his
        partiality. The relationship may be remote; the person may never have seen the party;
        he may declare that he feels no prejudice in the case; and yet the law cautiously
        incapacitates him from serving on the jury because it suspects prejudice, because in
        general persons in a similar situation would feel prejudice.
        10

      The Second, Fifth, Seventh, Ninth and Tenth Circuits seem to have accepted the Sixth
Amendment implied bias doctrine without qualification. E.g., United States v. Torres, 128 F.3d 38,
                                                                                           Uranga — 4


        by some of the courts of appeals in Texas.11 A few of the federal circuit courts
        have pointed out that the Supreme Court has never actually reversed a
        conviction on the basis of implied bias and have questioned whether the
        doctrine survived Smith v. Phillips, notwithstanding Justice O’Connor’s
        concurring opinion. Those courts have nevertheless assumed (without
        deciding) that the doctrine remains viable, but have held that it did not apply
        to establish a Sixth Amendment violation on the particular facts presented.12

Since the time we issued our opinion in Morales, the federal courts of appeals have continued

to recognize and apply the implied bias doctrine.13 Indeed, the Fifth Circuit regards the


45-6 (2 nd Cir. 1997); Brooks v. Dretke, 444 F.3d 328 (5 th Cir. 2006) (Opinion on rehearing); Solis v.
Cockrell, 342 F.3d 392, 395 (5th Cir. 2003); United States v. Scott, 854 F.2d 697, 700 (5 th Cir. 1988);
United States v. Nell, 526 F.2d 1223, 1229 (5 th Cir. 1976); United States v. Polichemi, 219 F.3d 698,
704-05 (7 th Cir. 2000); Hunley v. Godinez, 975 F.2d 316, 318-19 (7 th Cir. 1992); Fields v. Brown, 503
F.3d 755, 770 (9 th Cir. 2007), cert. denied [552] U.S. [1314], No. 07-8724 (April 14, 2008); United
States v. Gonzalez, 214 F.3d 1109, 1112 (9 th Cir. 2000); Dyer v. Calderon, 151 F.3d 970, 981-82 (9th
Cir. 1998); Tinsley v. Borg, 895 F.2d 520, 526-29 (9 th Cir. 1990); United States v. Eubanks, 591 F.2d
513, 517 (9 th Cir. 1979); United States v. Allsup, 566 F.2d 68, 71-72 (9 th Cir. 1977); United States
v. Cerrato-Reyes, 176 F.3d 1253, 1260-61 (10 th Cir. 1999); Gonzales v. Thomas, 99 F.3d 978, 987
(10 th Cir. 1996); Burton v. Johnson, 948 F.2d 1150, 1158 (10 th Cir. 1991). In one of these cases,
observing that “[t]he concept of implied bias is well-established in the law[,]” the Seventh Circuit
Court of Appeals held that a 15-year employee of the United States Attorneys Office was biased as a
matter of law notwithstanding her assertions that she could be fair and impartial. United States v.
Polichemi, supra, at 705.
        11

       Ruckman v. State, 109 S.W.3d 524, 528 (Tex. App.—Tyler 2000, pet. ref’d); Harvey v. State,
123 S.W.3d 623, 631 (Tex. App.—Texarkana 2003, pet. ref’d).
        12

        The Fourth and Sixth Circuits have tentatively suggested that the implied bias doctrine might
have been abrogated, but they have avoided resolving the issue by holding that it would not apply in
any event to the facts presented in any of the cases before them. E.g., Connor v. Polk, 407 F.3d 198,
206 n.4 (4 th Cir. 2005); Jones v. Cooper, 311 F.3d 306, 312-13 (4 th Cir. 2002); Fitzgerald v. Greene,
150 F.3d 357, 365 (4 th Cir. 1998); Person v. Miller, 854 F.2d 656, 664 (4 th Cir. 1988); Johnson v.
Luoma, 425 F.3d 318, 326-27 (6 th Cir. 2005); United States v. Frost, 125 F.3d 346, 380 (6 th Cir.
1997).
        13

       See Estrada v. Scribner, 512 F.3d 1227, 1240 (9 th Cir. 2008) (“in extraordinary cases, courts
may presume bias based on the circumstances.”) (internal quotation marks omitted); United States v.
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doctrine as so entrenched that it has seen fit to reverse a capital murder conviction on the

basis of implied juror bias even under the rigorously deferential criteria governing federal

habeas review under the Antiterrorism and Effective Death Penalty Act.14

        Notwithstanding the durability of the Sixth Amendment doctrine of implied bias, the

Court today rejects it almost effortlessly, citing only the majority opinion in Smith v. Phillips

for support.15 But Smith v. Phillips was decided under the Fourteenth Amendment’s due

process requirement of a fair trial, not the Sixth Amendment’s independent guarantee of an

impartial jury. The majority in Smith v. Phillips observed that “due process does not require

a new trial every time a juror has been placed in a potentially compromising situation.” 16 As




Brazelton, 557 U.S. 750, 753 (7 th Cir. 2009) (“The concept of implied bias is well-established in the
law.”); Hatten v. Quarterman, 570 F.3d 595, 600 (5 th Cir. 2009) (“There is also a narrow class of
relationships described by Justice O’Connor’s concurrence in Smith v. Phillips, and recognized by this
court on several occasions, for which a juror can be presumed biased.”). The Sixth Circuit continues
to assume, without deciding, that the doctrine of implied bias abides, but does not in any event call for
reversal on the facts of the particular case. United States v. Russell, 595 F.3d 633, 641-42 (6 th Cir.
2010); Treesh v. Bagley, 612 F.3d 424, 437 (6 th Cir. 2010). And lately, the Eighth Circuit has noted,
but not resolved, an inconsistency in its own case law with respect to whether it will apply implied
bias. Sanders v. Norris, 529 F.3d 787, 791-93 (8 th Cir. 2008).
        14

         See Brooks v. Dretke, supra, at 329 (“We maintain that the doctrine of implied bias is ‘clearly
established Federal law as determined by the Supreme Court’” for purposes of 28 U.S.C. § 2254(d)(1),
which requires federal habeas judges to defer to the judgments of state courts unless a particular state
court judgment is “contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States”).
        15

         Majority opinion, at 10-11 (holding that Smith v. Phillips stands for the categorical proposition
that a hearing will invariably prove to be an adequate procedure for revealing actual juror bias).
        16

        455 U.S. at 217.
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Justice O’Connor emphasized in her concurring opinion, there is no inherent conflict

between this due process principle and the co-existing Sixth Amendment principle that some

jurors may find themselves in situations that are so compromising that a hearing will not

satisfy the guarantee of an impartial jury. Determining actual bias on a juror’s part is

problematic to begin with, “partly because the juror may have an interest in concealing his

own bias and partly because the juror may be unaware of it.” 17 At a certain point, the

potential for bias may reach such a level that judges cannot depend on the time-honored tools

for gauging credibility, such as tone of voice and demeanor, to ascertain the trustworthiness

of the juror’s claims of impartiality. While affording the accused a hearing in which to try

to root out actual bias under these circumstances may always satisfy his right to the

procedural protections of due process, meant to ensure basic fairness, it will sometimes prove

inadequate to ensure jury impartiality for Sixth Amendment purposes. Justice O’Connor’s

valid insight is that the Smith v. Phillips majority’s Fourteenth Amendment due process

holding may be harmonized with the Sixth Amendment promise of jury impartiality so long

as courts continue to recognize that, under certain extreme circumstances, they should refuse

to proceed to verdict or uphold a conviction on appeal even in the face of a juror’s confident

assurances that he can be fair and disinterested. Nothing that I can find in the majority

opinion in Smith v. Phillips necessarily contradicts Justice O’Connor’s insight, much less



       17

       Id. at 221-22 (O’Connor, J., concurring).
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expressly rejects it. This Court’s reliance on that majority opinion today to disown the Sixth

Amendment doctrine of implied bias is, in my view, a grievous mistake.

       Applying the doctrine of implied bias on the facts of this case, I would reverse the

appellant’s conviction and remand the cause for a new punishment hearing. A juror who

unexpectedly turns out to be the victim of one of the accused’s extraneous offenses does not

fit neatly into any of Justice O’Connor’s categories. But her list was only intended to be

exemplary, not exhaustive. I can think of few more compelling motives a juror could have

to impose punishment on an improper basis than the motive to avenge some wrong

perpetrated by the accused upon the juror himself. That the extraneous offense the appellant

committed against the juror in this case is a relatively benign property offense makes no

difference. It is still a highly personal affront against the juror. The high potential for

injecting personal animus into the jury room during the punishment deliberations counsels

against our trusting either the juror’s claim to indifference or the efficacy of any judicial

admonishment to ensure fairness.

       The Sixth Amendment implied bias doctrine is alive and well and ought to be applied

on the facts of this case. The Court should reverse the judgment of the court of appeals and

remand the cause to the trial court for a new punishment proceeding.18 Because it does not,

I respectfully dissent.



       18

        T EX. C ODE C RIM. P ROC. art. 44.29(b).
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FILED:    November 17, 2010
PUBLISH
