dissenting:
I would not grant the stay; and since the panel majority has stated its reasons for doing so, I briefly state mine.
It is now almost eight years since Petitioner O’Bryan murdered his eight-year old son for insurance proceeds by feeding him Halloween candy laced with cyanide.1 The evidence that he did so is clear; there is no doubt of his guilt. Even so, he was entitled to a fair and constitutional trial; and if I believed the record raised serious doubts about whether he received one, I would join in granting the stay. He makes three such claims.
One is that the charge by which jurors in Texas fix capital punishment is unconstitutional. He made no objection to the charge, however, and hence has waived the right to complain of it. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The charge has, moreover, already been upheld as constitutional by the United States Supreme Court. Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976).
Another claim is that the prosecutor, arguing in the punishment phase of his trial, erred in referring to O’Bryan’s failure to produce testimony about his community reputation for truth and veracity, or as a peaceful and law-abiding citizen. These were matters in mitigation, matters for the defendant to advance if they were to be advanced by anyone. Though he produced witnesses to his civic and church activities, none were questioned on any of these subjects. Counsel for O’Bryan objected to the argument as “the State trying our case” and on the ground that “it’s not our burden to bring any evidence into this courtroom f)
*711It is settled, both in the law of Texas and of our circuit, that the prosecutor may comment on the defendant’s failure to call certain witnesses. See O’Bryan v. State, 591 S.W.2d 464, 479 (Tex.Cr.App.1979); United States v. Lehmann, 613 F.2d 130 (5th Cir. 1980). But even if, as I do not think, the argument was an erroneous one, it clearly amounted to no more than ordinary trial error and not “that sort of egregious misconduct held in Miller2 and Brady3 ... to amount to a denial of constitutional due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 647-8, 94 S.Ct. 1868, 1873-1874, 40 L.Ed.2d 431 (1974).
Finally, petitioner claims that three veniremen were improperly excused from jury service in contravention of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Two of the veniremen, however, Messrs. Bowman and Wells, early and candidly acknowledged that they would automatically vote against the death penalty in all circumstances, a clear disqualification under Witherspoon. The third, Mr. Pfeffer, engaged in a lengthy sparring session with counsel and with the court on the subject, giving equivocal and conditional answers over almost fifteen pages of record testimony. When at last pinned down by the court, however, and required to give a clear answer one way or the other, he responded:
THE COURT: You yourself are in such a frame of mind that regardless of how horrible the facts and circumstances are, that you would automatically vote against the imposition of the death penalty? Is that correct?
JUROR PFEFFER: Well, if it says a yes or no, I would have to say yes, I would automatically vote against, to give a correct answer.
THE COURT: You would vote against?
JUROR PFEFFER: Yes.
THE COURT: Any other questions?
Later, in response to renewed questioning by defense counsel, he three times reaffirmed the answer set out above. In my view, his earlier equivocal responses are robbed of further significance by these latter answers which, the record makes plain, were in no sense coerced as to their tenor by the judge — who simply, and at last, required him to answer the question clearly, yes or no.4 Indeed, and with all deference, I do not see how there can be a different view of the matter.
For the reasons that I have stated, then, I would not further delay this eight-year old matter in response to an eleventh-hour plea advancing grounds that seem to me clearly devoid of merit. We are, as my brethren’s opinion observes, sworn to uphold the law and the Constitution. I find no warrant in either for a stay. And while I thoroughly respect my brethren’s convictions and take no pleasure whatever in standing alone in my own- — convictions that would dictate the execution of a fellow human being — I fear that the granting of a stay on such grounds as these trivializes state criminal procedures and goes far to forward a public perception that the real rule of our courts regarding capital sentences is that, while they may be imposed, they cannot be carried out. I would not grant the stay.
. Poisoned candy that he gave to his other child, also insured, and to three children of neighbors was retrieved after the death of Timothy, the murdered boy. Those and other facts of the case are related in the opinion of the Texas Court of Criminal Appeals and need not be repeated here. O’Bryan v. State, 591 S.W.2d 464 (Tex.Cr.App.1979).
. Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967) (prosecutor, who knew undershorts were stained with paint only, repeatedly described them during trial as bloodstained).
. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (prosecutor deliberately withheld evidence bearing on extent of petitioner’s involvement in the crime).
. O’Bryan asserts a supposed right of veniremen to persist in equivocal answers to such questions, citing Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). I find no such holding in Adams. It held that veniremen could not be excluded merely because they stated that their deliberations would be “affected” by the possibility of the death penalty, or even because they were unable to state whether or not their deliberations would in any way be “affected.” 448 U.S. at 50, 100 S.Ct. at 2529. That holding has no bearing on the issue before us, which is whether the judge properly excluded Mr. Pfeffer after requiring him to give a clear answer whether “he would automatically vote against the imposition of the death penalty.” He answered that he would and he was properly excluded.