dissenting.
One must be perpetually amazed about what a majority of this Court will next label “equivocation” on the part of prospective capital jurors.
Construing the record of Freeman’s voir dire1 in a fashion most liberal to the exclusion, her pertinent attitudes are clearly reflected to be as follows:
(1) It would rest on her conscience to sentence someone to death;
(2) She could participate in returning a capital sentence in a proper case;
*395(3) The possibility of the death penalty would cause her to resolve fact issues “differently” than in a noncapital case;
(4) Her beliefs “might interfere” with her deliberations;
(5) She believed her attitude “could change” her answers;
(6) She would let her personal belief “affect” her determination of fact issues.
So, where is the “equivocation?”2
It was just such a juror whom the Supreme Court acknowledged in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968),3 then later in Adams v. Texas, 448 U.S. 38, 39, 100 S.Ct. 2521, 2523, 65 L.Ed.2d 581 (1980),4 a capital defendant has a Sixth Amendment right to have serve on his jury, absent a showing by the challenging party that the juror’s objections to the death penalty would lead her to ignore the law or violate her oath.
Far from making it “unmistakably clear”5 that she would invariably vote so as to avoid the death penalty regardless of the evidence, Freeman’s attitudes seem more akin to those of jurors excused in Adams v. State, 577 S.W.2d 717 (Tex.Cr.App.1979), the exclusion of whom was finally condemned in Adams v. Texas:
"... [I]t is apparent that a Texas juror’s views about the death penalty might influence the manner in which he performs his role but without exceeding the ‘guided jury discretion’ ... permitted under Texas law. In such circumstances, he could not be excluded consistently with Witherspoon. Exclusions under § 12.31(b), like other exclusions,[6] must be examined in this light.”
Adams, 448 U.S. at 46-47, 100 S.Ct. at 2526-27..
Freeman, like jurors in Adams, “apparently meant only that the potentially lethal consequences of [her] decision would invest [her] deliberations with greater seriousness and gravity or would involve [her] emotionally. ⅜ * * But neither nervousness, emotional involvement nor inability to deny or confirm any effect whatsoever is equivalent to an unwillingness or an inability on the part of the jurors to follow the court’s instructions and obey their oath.”
Adams, at 49-50, 100 S.Ct. at 2528-29.
The Supreme Court likewise rejected as unconstitutional the exclusion of jurors, such as Freeman, who “aver that they will honestly find the facts and answer the questions in the affirmative if they are convinced beyond reasonable doubt, but not otherwise, yet who frankly concede that prospects of the death penalty may affect *396what their honest judgment of the facts will be or what they may deem to be a reasonable doubt.” Adams, at 50 U.S.
In other words, a prospective juror may not be excluded solely because she might treat issues in a capital case “differently” from those presented in a noncapital case.7
This leaves only the prosecutor’s version of § 12.31(b) as a possible justification for the exclusion of Freeman: that her attitudes toward the death penalty “might interfere” with her deliberations.
Whatever significance this may have had to the prosecutor in 1978, it clearly is not tantamount to a statement that Freeman would consciously distort the answers to the statutory special issues, be unable to follow the law or unwilling to abide by her oath.
For this Court to pretend Freeman was excluded for any reason other than what it had repeatedly approved by 1978 for applying § 12.31(b), is an exercise in selfdeception.
If the record really reflected “equivocation” on the part of Freeman so that a studied reading of her examination failed to reveal her true attitudes, I would be as willing as anyone to defer to the trial court’s personal observation of her responses. See Hernandez v. State, 643 S.W.2d 397 (Tex.Cr.App.1982) (Opinion dissenting). But this record merely shows one more impermissible, unconstitutional application of § 12.31(b) in a trial conducted before the Supreme Court decided Adams v. Texas. Because the teachings of Adams continue to be either lost on or ignored by a majority of the Court, I am constrained to respectfully dissent.
TEAGUE, J., joins.APPENDIX
After greeting Patricia Freeman and introducing counsel, the trial judge explained abstractly the State’s burden to prove the allegations in the indictment and the answers “to the ... two or three questions we call special issues [that the trial court will propound to the jury at the punishment phase of the trial],” and the jury’s corresponding duties in those regards. Then, after explaining the effect of the answers to the abstract questions to be propounded at punishment, the trial judge asked Freeman whether she had any “religious, moral or conscientious scruples or scruples of any sort of that matter against the infliction of death as a punishment for crime in a proper case?”
Freeman stated she held “conscientious” scruples. She further indicated, “I just don’t know” when asked if she could participate in a verdict under “the most awful fact situation that you can possibly think of.” The trial judge insisted, “I have to push you for a yes or no answer.”
Freeman inquired, “You mean could I ever give anybody the death penalty?” The trial judge confirmed her meaning. Freeman stated, “Yes.”
The trial judge asked Freeman, essentially, if she were sure, stating, “I am not trying to change your mind.” Freeman replied, “Gosh. It makes me a nervous wreck to think about it.” Taking a different tack, the trial judge asked what would *397prove to be the focus of the remainder of Freeman’s voir dire examination:
“Let me ask you another way, Mrs. Freeman. Would the fact that the death penalty was a possible punishment cause you to resolve any fact issues differently from the way you might otherwise resolve it?”
Freeman agreed that it would, pointing out that in her role as a teacher, she “almost [goes] beyond being fair” when she knows a child might receive a certain punishment. Then the following:
“Q: [By the Court]: This is one of the times you have to look inside yourself because nobody but you can tell how you feel. * * *
A: Certainly. This is something to think about but you never face the fact that you could actually have to — yes, I guess I could. Yes, I could.
Q: You could in a proper case?
A: Thinking of the worst case I can think of, yes.
Q: If you thought it was proper?
A: Yes.
Q: And additionally then would the fact that the death penalty was a proper punishment or a possible punishment would that cause you to resolve any fact issue any differently from the way you would resolve it if that was not a possible punishment?
A: It shouldn’t. If there is no reasonable doubt it shouldn’t.
The court told Freeman “if there is a reasonable doubt then your oath as a juror requires you ... to find someone not guilty or to answer the [questions no].” Freeman replied,
“A: So, if I have a reasonable doubt how would that affect me?
Q: No.
A: That’s what I’m saying right now. Yes, it would.”
After reiterating her “resolve it differently” criterion, the trial judge explained to Freeman that “beyond a reasonable doubt” was the standard of proof in both capital and ordinary criminal trials and the jury’s role is to resolve fact issues. She concluded:
“My question to you is the fact that the death penalty is a possible punishment would that cause you to resolve any fact issues any differently than from the burglary case merely because the death penalty was a possible punishment?
A: No.
Q: It would not?
A: No.”
The prosecutor then began his examination of Freeman by informing her that if selected, she would be required to “take another oath ... and that would go something like this, that you will a true verdict render according to the law and the evidence so help you God. The key words are ‘according to the law and the evidence.’ Okay?” Using as an example a juror who is opposed to proscriptions regarding marihuana, the prosecutor was able to help Freeman understand that it would be improper “to find the person not guilty — not because of the evidence but due to ... beliefs” and told her “this is what we are trying to prevent.” He then returned to the death penalty, asking Freeman about her discussions with others. She conceded that in such discussions, “I am usually against it.”
Freeman told the prosecutor that “it would rest on my conscience that I have sentenced somebody to death.” He assured her there was nothing wrong with her beliefs, but what was critical was that she not “let those beliefs interfere with her deliberations.” Freeman conceded:
“I am afraid that I could let those beliefs that I have in that the idea that this could be on my mind interfere with how I feel.”
The following then occurred:
“Q [By Prosecutor]: It sounds like — I am not trying to put words in your mouth but what I am getting at is that it seems those beliefs would interfere with your deliberations?
A: Yes, I believe they would.
Q: We need to have a positive statement. * * *
*398[Defense Counsel]: Judge, we object to that.
Q [By Prosecutor]: Either you feel they will or they will not.
[Defense Counsel]: We object to that. That is an improper statement under Witherspoon.
[Prosecutor]: I am not under With-erspoon, Judge.
THE COURT: That’s right. He is not at this moment, [defense counsel], under Witherspoon.
A [By Witness]: My beliefs would interfere.
THE COURT: What he is asking you really is can you set aside your own personal beliefs and follow the law as given you by the Court or would your own personal beliefs cause you in your deliberations as a juror to decide a fact issue differently from the way you might otherwise decide it?
A: Yes they would.”
Without stating the basis, the prosecutor moved to “excuse her.” Defense counsel began his voir dire by telling Freeman that what the court and the prosecutor and he were asking is whether she would answer an issue “no” even if the evidence showed beyond a reasonable doubt, it should be answered “yes.” The trial judge interrupted:
“Or resolve a fact issue differently, Mr. [Defense Counsel].”
Then an esoteric discussion took place between the attorneys and judge about the guilt stage versus the punishment stage and “fact issues” versus “three questions,” which clearly confused the prospective jur- or.1 But finally, defense counsel repeated his earlier inquiry about whether Freeman would answer “no” even if the evidence established it should be “yes.” The juror stated (or inquired), “I didn’t answer that question.” And, she never would answer it. Each time it was restated the prosecutor or judge interrupted. Finally, defense counsel asked:
“Q: Would ... your personal beliefs affect your answer as to any fact issue in answering those questions yes or no even though the State proved up their case beyond a reasonable doubt?
A: No.
[Defense Counsel]: Judge, I submit to you she has been rehabilitated.
THE COURT: Yes sir. Go ahead Mr. [Prosecutor].”
When the prosecutor resumed questioning, Freeman told him she was very confused by the “terminology and the way you are speaking.” She indicated she “thought” she had previously answered the same question when he, the prosecutor had asked it, “no;” but now she was wondering if it was a different question altogether. The prosecutor stated:
“No, what we are trying to get at is—
A: Could my beliefs interfere?
Q: Yes, as to either the guilty or not guilty part or to the three questions submitted to you.
THE COURT: Or any fact situation. Would you answer it differently as to a fact issue of guilty or not guilty or as to the answers to those questions. Even though the State has proved something to you beyond a reasonable doubt whether it should be an answer of guilty or an answer of yes would you do something differently merely because of your own personal objections to the assessment of death?
[Defense Counsel]: Judge—
THE COURT: Just a minute, Mr. House.
A: My conscience — I don’t want it on my conscience that I have given anybody a death penalty. Therefore I believe the beliefs I have could change my answers.
Q: It would affect your deliberations?
A: It would affect my deliberations, yes.
THE COURT: It would cause you to resolve a fact issue differently from *399the way you would otherwise resolve it?
A: Yes, it — I might twist it in my mind.
THE COURT: It’s whether or not you would resolve it differently, Mrs. Freeman.
A: Yes.
THE COURT: You would? All right.
[PROSECUTOR]: We will move to excuse her, Judge.”
. A complete compendium of Freeman’s voir dire appears in an Appendix to this opinion.
. "Equivocal” is defined as "subject to two or more interpretations and usually used to mislead or confuse ...; of uncertain nature or classification; of uncertain disposition toward a person or thing: UNDECIDED.” Webster’s New Collegiate Dictionary (1979).
. Hereinafter Witherspoon.
. Hereinafter Adams or Adams v. Texas.
. Witherspoon, 391 U.S. at 522, 88 S.Ct. at 1777.
. The majority’s final disclaimer — "it is observed that the basis for excusal of [Freeman] was on a ground independent of Witherspoon and § 12.31(b)” — sounds all too familiar. It is truly distressing to see such a statement by this Court almost four years after Adams v. Texas.
Long ago I acknowledged that if jurors were no longer called upon to assess a death sentence, but instead answer statutory questions solely and strictly on the basis of evidence, then their attitudes regarding the death penalty were, technically, irrelevant, and Witherspoon concerns need not come into play in Texas. Russell v. State, 598 S.W.2d 238 (Tex.Cr.App.1980) (Opinion dissenting). Before the Supreme Court of the United States, the State Attorney General conceded that under our special issue scheme, the application of Witherspoon "is questionable as matter of ‘logic.’ ’’ Adams, 448 U.S. at n. 4. And though the application of Wither-spoon to our bifurcated procedure was the first question fashioned by the Court for itself in Adams, that Court had "little difficulty in concluding [the] rule applies” in Texas, no doubt partially because the State agreed "that Texas experience and case law conclusively demonstrate Witherspoon’s applicability.” Id. 448 U.S. at n. 4.
(All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)
. The voir dire as a whole reveals the trial judge’s commendable rejection of the all too typical abuse of § 12.31(b) which was characteristic of contemporary capital trials throughout the State. She was not content to permit wholesale exclusions of those whose "deliberations” might be "affected” by the mandatory penalties in her own court; instead, she interpreted and limited application of § 12.31(b) to those, like Freeman, who stated they would resolve issues "differently” because of the mandatory penalties.
While the trial judge's version of the criterion for exclusion under § 12.31(b) is closer to being constitutional than was this Court’s, see, e.g., Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.1976), the rationale of Adams v. Texas, decided two years after the instant voir dire was conducted, would condemn them both, for the distinction between resolving an issue “differently” and allowing deliberations to be "affected” is far too fine.
. Indeed, it confuses the writer.