Petition for Discretionary Review, from the Fifth Court of Appeals, Dallas County.
Jim Burnham, on appeal only, Dallas, Texas, R. K. Weaver, on appeal only, Dallas, Texas.
John Vance, D. A. & Kathi Alyce Drew & Knox Fitzpatrick, Asst. D. A's. Dallas, Texas. Robert Huttash, State's Attorney, Austin, Texas.
En Banc. Teague, J. Campbell, White, and Berchelmann, J.j., concur in the result. McCormick, P.j., and Davis and Sturns, J.j., dissent.
Opinion ON APPELLANT'S MOTION FOR REHEARING ON PETITION FOR DISCRETIONARY REVIEW
Steve Steele Shipley, henceforth appellant, was convicted by the jury of first degree murder on May 9, 1986 for the death of his wife, Deborah Sue Shipley. Appellant's punishment was also assessed by the jury at life imprisonment in the Department of Corrections.*fn1 He appealed to the Fifth Court of Appeals which affirmed the trial court's judgment of conviction. Shipley v. State, 727 S.W.2d 118 (Tex.App.-Dallas 1987).
One of appellant's contentions on direct appeal to the court of appeals was that the trial court erred in instructing the jury on the law concerning good time and parole. The charge was given pursuant to the parole law charge provision of Art.37.07, Sec. 4, V.A.C.C.P. Appellant asserted on appeal that Article 37.07, Section 4 was unconstitutional. The court of appeals held otherwise. Appellant then brought a petition for discretionary review to this Court.*fn2
Subsequent to the court of appeal's opinion, this Court held that the parole law charge of Article 37.07, Section 4 was unconstitutional. See Rose v. State, 752 S.W.2d 529 (Tex.Cr.App. 1988). Thereafter, in an unpublished opinion on appellant's petition for discretionary review, this Court vacated the judgment of the court of appeals and remanded the cause to the court of appeals for a determination of harm arising from the unconstitutional jury instruction. Shipley v. State, Tex.Cr.App. No. 0412-87 (November 16, 1988).
Appellant thereafter filed a motion for rehearing in this Court, requesting that we consider his petition for discretionary review on both of the grounds upon which it was granted before remanding his cause to the court of appeals. We granted the motion for rehearing and, in another unpublished opinion, withdrew our prior opinion. See Shipley v. State, No. 0412-87 (Tex.Cr.App. November 30, 1988).
Appellant asserts in his second ground for review that the court of appeals erred in its determination that he was not denied his right to effective counsel in the trial court pursuant to Art. I, Sec. 10, Texas Constitution. Appellant contends that the trial judge prevented his trial counsel from intelligently exercising his peremptory challenges because he was not permitted to obtain sufficient information regarding the venire members' feelings about extra-marital affairs in order to make intelligent peremptory strikes.
We agree with appellant's contention.
The record reflects the following exchange between the trial judge, the prosecuting attorney, and appellant's trial counsel:
Appellant's counsel (to the venire members): I need to talk with you about something that is very hard for me to talk with you about . . . and that is the subject of an extra-marital affair. [H]ow would you feel about it if it became apparent--
Prosecuting attorney: I will object to this, going into any possible facts of this case.
Appellant's counsel: I'm not going into the facts of this case, Your Honor. I am talking about extra-marital affairs in general, not going into the facts of this case. I realize I am well prohibited from doing that. It's often asked if a witness can base the testimony on one witness. I mean, you know, that may be the facts of that case, but as a general matter, inquiry is permitted.
The Court: Well, you are going to have to be more specific in your question. Otherwise, I am not going to be able to say that you are not talking about this case when you say, "How do you feel about that?" You are going to have to be specific, then I am going to rule. I will let you ask that question.
Appellant's counsel: I want to make it clear, Your Honor, that I am not making inquiry with relationship to this case. I am talking about the subject of extra-marital affairs.
The Court: Well, what I am talking about the question to the [veniremember], I am going to sustain the objection if that is the ...