









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





No. PD-0923-03


JOSE MAURICIO, Appellant

v.


THE STATE OF TEXAS




ON APPELLANT'S AND THE STATE'S PETITIONS 
FOR DISCRETIONARY REVIEW

FROM THE FOURTEENTH COURT OF APPEALS

BRAZOS COUNTY



Holcomb, J., delivered the opinion of the unanimous Court.


OPINION


	This case presents three questions:  (1) whether the court of appeals erred in holding that the
trial court permitted a "jury view" as that term is understood in law, (2) whether the court of appeals
erred in holding that the trial court erred in permitting that jury view, and (3) whether the court of
appeals erred in holding that the trial court's error was harmless.  We answer the first question in the
negative, we answer the second question in the affirmative, we do not reach the third question, and
we affirm the judgment of the court of appeals.
	We begin our discussion with a review of the relevant facts.  On January 24, 2002, a Brazos
County grand jury presented an indictment that charged appellant with felony possession of cocaine
with intent to deliver.  See Tex. Health & Safety Code §481.112(a) & (d).  On April 3, 2002, the
State brought appellant to trial under that indictment.  At the guilt/innocence stage of trial, the State's
principal witness was Bryan Police Officer Gabriel Alvarez, who testified in relevant part as follows: 
On the evening of November 23, 2001, at the beginning of his shift, Alvarez searched the back of
his patrol car for contraband, as was his routine, and found nothing.  Later that evening, he arrested
appellant during the course of a traffic stop.  After he arrested appellant, he handcuffed him, placed
him in the back of his (i.e., Alvarez') patrol car, and took him to the county jail.  Shortly thereafter,
he (i.e., Alvarez) searched the back of his patrol car again and found six small bags of a white,
powdery substance, later identified as cocaine. 
	At the conclusion of Alvarez' in-court testimony, the State asked the trial court to take the
jurors out to the court's parking lot so that they could watch Alvarez demonstrate how he searched
his patrol car on the evening of appellant's arrest.  The trial court granted the State's request over
appellant's objection.  The following then transpired:
	The Court: Members of the jury, we're going to relocate to consider some testimony,
some demonstrative testimony.  This is being offered for the limited purpose to
demonstrate to you a procedure.  It would be - you should not talk to each other
while we're going down there or while we're down there.  You shouldn't make any
kind of inquiry.  You shouldn't ask any questions.  I know it might be frustrating for
you.  I am having to restrain you in that regard.  But there is case law about how it
is improper to permit jurors to ask questions of witnesses during a trial.  And so, you
shouldn't discuss this.  It is the duty of the attorneys to make sure that you all can see
what they are trying to communicate through the testimony.  I am going to ask you
to - we're going to take a five minute break.  Then [the bailiff] will lead you
downstairs.  We will get the court reporter located down there.  Everything we do has
to be on the record.  So, I'm going to give her a minute to get set up.  And me, the
attorneys, the defendant, and the witness [Alvarez] will meet you all down there in
about ten minutes.

(Court relocates to the parking lot.)

	The Court: Okay.  Let's go on the record.  Present are all three attorneys, the witness,
the defendant, and all twelve jurors.  Six on one side of the car, six on the other.  This
is going to have to be in a question/answer format.  And I will ask for the benefit of
the court reporter, Mr. Phelps [the prosecutor] and Officer Alvarez, if you would,
please speak loudly so that she can hear you.  Same is true for Mr. Paul [defense
counsel].  Go ahead.
 
	Q: (by Mr. Phelps)  Officer Alvarez, this is the type of patrol car that you drove on
November 23?
 
	A: This is the same car.
 
	Q: Okay.  What I would like you to do, if you would, please, you have described for
the jury your procedure of searching the back of the vehicle at the beginning of your
shift as you did it on the night of November 23.  Would you now show the jury the
procedure you go through?  How you did it on November 23, 2001.  And if you
would, just explain what you're doing as you're doing it.
 
	A: I always start by just a visual inspection, what I can see on the top here, the dash
here, the seats that I can see without moving anything.  This rear seat, bottom
cushion, folds over.  And I always fold over as such, exposing the floorboard here. 
And then I run my hand underneath the back cushion so that if anything is stuffed
under there, it can come out.
		I go along - I go along from one end to the other.  Then, just looking -
inspecting underneath this plastic mat, and under there to see if there is anything
underneath there.  If nothing is found, I just put it back into place, just like that.
 
	Q: You checked the floorboards in front of the seat as well?
 
	A: Yes, sir, I do.
 
	Q: And did you do that on the night of November 23?

	A: Yes, I did.
 
	Mr. Phelps: You Honor, at this time could we have the other jurors switch around? 
Do it one more time?
 
	The Court: All right.  Let's do that.  All right.  Will y'all swap sides?
 
 (Jurors comply.)
 
	Q: (by Mr. Phelps) Officer Alvarez, if you would demonstrate it again, again
explaining what you're doing, so the jury understands.
 
	A: Again, I do the visual inspection.  Anything obvious.  Then when I get to the seat,
I just pull it out in this manner.  And then as far as I can to the partition [between the
front and back seats].  And then I do my visual inspection, run my hand underneath
this area, so that - ensure that nothing was placed underneath here.  And if it is all
clear, I just place it - it slides right back into place like that.

	Mr. Phelps: At this time that's all I have.
 
	Mr. Paul: I don't have any questions.
 
	With the demonstration over, everyone returned to the courtroom, and the trial continued as
before.  The jury later found appellant guilty as charged in the indictment, and assessed his
punishment at imprisonment for twenty years and a fine of $10,000.
	On direct appeal, appellant argued that "the trial court in this case did not merely abuse its
discretion in allowing the jury view [i.e., the jury's trip to the trial court's parking lot to watch 
Alvarez' demonstration] - it had no discretion at all to allow it."  The State argued in response that
what the trial court permitted in this case was not a true "jury view" but rather merely a
demonstration because the jury was not taken to see the actual crime scene.  According to the State,
"[a] jury view could have only occurred in this case if the jury was taken over to the Bryan Police
Department and allowed to view the [patrol] car while in the sally port [where Alvarez conducted
the second search and found the cocaine] and while [Alvarez] testified exactly where the cocaine was
found."  The State also argued, in the alternative, that even if what the trial court permitted was
considered a jury view, "jury views are within the discretion of the trial court."
	On May 8, 2003, the Fourteenth Court of Appeals affirmed the judgment of the trial court. 
Mauricio v. State, 104 S.W.3d 919 (Tex.App.-Houston [14th Dist.] 2003).  Although the court of
appeals agreed with appellant that what the trial court permitted in this case was a true jury view and
that "the trial court erred in allowing [it]," the court of appeals held that the trial court's error was
harmless since Alvarez testified on the stand, without objection, and "described in detail his search
of the backseat [of the patrol car] before and after appellant's arrest."  Id. at 922-923.
	On February 11, 2004, we granted both appellant's and the State's petitions for discretionary
review in order to determine whether the court of appeals erred, either in whole or in part.  See Tex.
R. App. Proc. 66.3(c).  Appellant, in his petition and brief, argues that the court of appeals erred in
holding that the trial court's error was harmless.  He also argues that "[n]o jury view was necessary"
in this case because "the backseat of the patrol car could have been photographed and the
photographs . . . shown to the jury inside the courtroom."  The State, in its petition and brief, argues
that the court of appeals erred in holding that the trial court permitted a  jury view rather than merely
a demonstration.  The State also argues, in the alternative, that the court of appeals erred in holding
that the trial court erred in permitting the jury view.  According to the State, "[t]he trial court . . .
acted within its discretion in allowing the jury to go outside the courtroom to the adjacent parking
lot and observe the officer's demonstration" because "[s]uch evidence was relevant to the case and
it would have been impractical, if not impossible, to have presented the evidence in the courtroom."
	We turn first to the State's argument that the court of appeals erred in holding that the trial
court permitted a jury view as opposed to a mere demonstration.  The term "view," as understood
in law, refers to the act or process by which the trier of fact ventures forth to observe places or
objects that are material to litigation but that cannot reasonably be brought, or satisfactorily
reproduced, within the courtroom.  See Black's Law Dictionary 1568 (6th ed. 1990); 23A C.J.S.
Criminal Law §1156 (1989); 4 Wigmore on Evidence §1162 (Chadbourne rev. 1972).  If the trier of
fact is a jury, the view is properly termed a "jury view."  See H. Wendorf, "Some Views on Jury
Views," 15 Baylor L. Rev 379 (1963).  In this case, the jury, acting with the trial court's permission
and under its supervision, left the courthouse and went to the court's parking lot in order to watch
Officer Alvarez demonstrate how he searched his patrol car on the evening of appellant's arrest.  We
hold that what the trial court permitted in this case was a "jury view" as that term is understood in
law, and the court of appeals did not err in holding likewise.
	We turn next to the State's alternative argument that the court of appeals erred in holding that
the trial court erred in permitting the jury view.  There was a time in which, for a variety of reasons,
we condemned jury views.  See, e.g., Weeks v. State, 476 S.W.2d 310, 316 (Tex.Crim.App. 1972)
(trial court may not allow jury view of crime scene); Abell v. State, 5 S.W.2d 139, 141
(Tex.Crim.App. 1928) (same); Kile v. State, 291 S.W. 1104, 1105 (Tex.Crim.App. 1927) (same). 
However, in Jones v. State, 843 S.W.2d 487, 499 (Tex.Crim.App. 1992), cert. denied, 507 U.S. 1035
(1993), we held that the question of whether to grant or deny a request for a jury view rests "within
the trial court's [sound] discretion." (1)  The court of appeals in this case cited Jones and even
acknowledged that "trial judges . . . have discretion to grant [jury views]," but the court of appeals
did not explain how the trial court abused its discretion when it permitted the jury view.
	A trial court, in exercising its discretion to grant or deny a request for a jury view, must
consider the totality of the circumstances of the case, including, but not limited to, the timing of the
request for the jury view, the difficulty and expense of arranging it, the importance of the information
to be gained by it, the extent to which that information has been or could be secured from more
convenient sources (e.g., photographs, videotapes, maps, or diagrams), and the extent to which the
place or object to be viewed may have changed in appearance since the controversy began. (2) See J.
Strong, et al., McCormick on Evidence §216 at 27 (5th ed. 1999); Wendorf, supra, at 390-391.   In
addition, the trial court, in exercising its discretion to grant or deny a request for a jury view, must
give opposing counsel an opportunity to be heard on the question.  See Clemente v. Carnicon-Puerto
Rico Mgmt. Assoc., 52 F.3d 383, 386 (1st Cir. 1995), overruled on other grounds, United States v.
Gray, 199 F.3d 547 (1st Cir. 1999). (3)
	We discern no abuse of discretion on the part of the trial court in permitting the jury view in
this case.  The State's request for the jury view was made in a timely fashion, and defense counsel
was given an opportunity to object.  Furthermore, on this record the trial court could have reasonably
concluded that the jury view would be quick and easy to conduct and that the information to be
gained by the jury view might be significant to the jury.  
	We hold that the court of appeals erred in holding that the trial court erred in permitting the
jury view.  Given our holding, we need not reach appellant's argument that the court of appeals erred
in holding that the trial court's "error" was harmless.  
	We affirm the judgment of the court of appeals.

DELIVERED JANUARY 12, 2005
PUBLISH
1.   Professor Wendorf has commented:

	Texas courts have long admitted in evidence objects small enough to be brought
into the courtroom.  The acceptance of photographic evidence plus small objects
cannot be successfully distinguished from jury views.  If the jurors can be shown a
small object or a photograph of an object of any size in the courtroom, why not
permit them under proper supervision to step outside to see a larger subject?  Why
not permit them, with efficient modern transportation, to travel a reasonable
distance - under proper supervision, of course - for the same purpose?

H. Wendorf, "Some Views on Jury Views," 15 Baylor L. Rev. 379, 383 (1963) (footnotes
omitted).
2.   For example, in Jones v. State, 843 S.W.2d 487, 499 (Tex.Crim.App. 1992), cert.
denied, 507 U.S. 1035 (1993), we held that the trial court did not abuse its discretion in denying
the defendant's request for a jury view because the information to be gained by the view was
available from more convenient sources. 
3.   Once a trial court grants a request for a jury view, the court must implement appropriate
procedural safeguards to ensure fundamental fairness to the accused as well as to protect the
trial's truth-finding function.  See United States v. Gray, 199 F.3d 547, 550 (1st Cir. 1999); State
v. Pauline, 60 P.3d 306, 325-326 (Hawaii 2002); Wendorf, supra, note 1, at 393-396.  What
procedural safeguards are appropriate in any given case will depend on the particular
circumstances of that case.  Although we did not grant review of the question, it appears that the
trial court in this case implemented appropriate procedural safeguards.  That is, the trial court (1)
attended and supervised the jury view; (2) instructed the jury before the view began that it was to
remain quiet at the view, not conversing or asking questions; (3) gave the defendant and both
counsel the opportunity to be present at the view; and (4) enlisted the attendance of a court
reporter to record what transpired at the view.
