dissenting.
The question whether venireman Scott was excludable for cause was a close one. The trial court answered the question by applying an unconstitutional standard. Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), had not yet been delivered at the time this voir dire was conducted. Without that guidance, the trial court herein was clearly of the opinion that a prospective juror could be excluded for cause if he could not swear that the mandatory penalties of life or death would not “affect” his deliberations. Y.T.C.A. Penal Code, § 12.31(b). The trial court applied that incorrect standard. I dissent to the majority’s approval of this error.
Prospective juror Scott was firmly opposed to the death penalty. That does not mean, however, that he was automatically disqualified from serving on a jury in a capital case. No matter how often he was asked whether he would “vote for” or “vote against” the death penalty, the fact remains that as a juror in a capital murder prosecution he would be called upon to do neither. Granviel v. State, 723 S.W.2d 141 (Tex.Cr.App.1986) (dissenting opinion). He would first vote on whether applicant was guilty or innocent and then, assuming a verdict of guilt, he would vote on his answers to the Article 37.071 special issues. The question to be determined on voir dire was whether Scott could cast those votes based on the evidence at trial and the trial court’s instructions on the law. Scott initially stated that he did not “believe” he could, knowing a death penalty might be assessed as a result. Upon further questioning, however, he stated that he would “have to follow the Court’s instructions,” that he could decide on applicant’s guilt or innocence, and that his answers on the punishment issues would depend on the evidence. He also gave the following answers — surprising after his assertions that he did not consider death a proper punishment — when asked if he could ever consider such a penalty:
Q: All right. Then does that change anything you have said earlier, that you could under certain circumstances consider the death penalty; is that right?
A: I could in — like with a child or something like that.
Q: All right.
A: And murders, well, that’s — that’s possible.
Q: In other words, by saying that you could under certain circumstances consider it, then that means that you would not automatically vote against the death pen*488alty in every conceivable case; isn’t that right?
A: I might not, and I may again I might. It depends on the evidence. I’m very much against it, but — who knows?” 1
It was at this point that the State reurged its challenge for cause and the trial court took a hand in the questioning, concentrating on whether Scott could take the oath mandated by § 12.31(b) of the Penal Code:
“Court: You must take an oath, Mr. Scott, that the mandatory penalty of life or death will not affect your deliberation on any issue of fact in the case. Now, can you take that oath?
Witness: The life or death penalty will not affect it?
Court: That the mandatory penalty of life or death will not affect your deliberation on any issue of fact.
Witness: Well, I’d say it would affect it.
Court: It would affect it.
Witness: It would affect it if that—
Court: Are you saying, then, that you cannot take that oath?
Witness: I don’t think, no.”
The trial court then discharged Scott over applicant’s objection.
Both the State and defense glancingly addressed Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), in which the Supreme Court invalidated a death sentence given by a jury from which all veniremen who expressed generalized objections to the death penalty had been excluded. The Court concluded that when the State “swept from the jury all who expressed conscientious or religious scruples against capital punishment and all who opposed it in principle, the State crossed the line of neutrality. In its quest for a jury capable of imposing the death penalty, the State produced a jury uncommonly willing to condemn a man to die.” 88 S.Ct. at 1776.
In Adams v. Texas, 448 U.S. 38,100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), the Supreme Court restated the holding of Witherspoon and applied it to the Texas capital murder procedure. Specifically it addressed the trial court’s exclusion of prospective jurors who could not swear that the mandatory penalties of life imprisonment or death would not affect their deliberations concerning issues of fact. V.T.C.A. Penal Code, § 12.31(b). The Court reversed the death sentence in Adams, holding that § 12.31(b) may not be used to exclude prospective jurors on any basis broader than that set out in Witherspoon. A venireman who testifies merely that his deliberations will be “affected” by the mandatory penalties in a capital murder case may only mean that he will take his duties as a juror more seriously, not that he will neglect them. 100 S.Ct. at 2528. He may not be excused for that reason. Even a juror who harbors moral or philosophical objections to the death penalty may be able to weight the evidence presented at trial and truthfully answer the special issues in the affirmative.
“Nor in our view would the Constitution permit the exclusion of jurors from the penalty phase of a Texas murder trial if they 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 the prospects of the death penalty may affect what their honest judgment of the facts will be or what they may deem to be a reasonable doubt.”
100 S.Ct. at 2529.
The trial court in the instant case was without benefit of the Adams opinion because it was not delivered until some two months after the conclusion of applicant’s trial.
*489The Supreme Court’s latest return to Witherspoon is in Wainwright v. Witt, 469 U.S. 412, 106 S.Ct. 844, 83 L.Ed.2d 841 (1985). Witt “simplifies” the Witherspoon limitation on exclusion of veniremen, 105 S.Ct. at 851, and reaffirms the following standard from Adams:
“ ... a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The State may insist, however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court.”
105 S.Ct. at 850, 852.
The opinion in Witt also holds that in a federal habeas corpus action under 28 U.S.C. § 2254 deference must be paid to the findings of the trial court, and that where a record does not show otherwise it is presumed that the trial court applied the proper standard in its exclusion of prospective jurors. Id., at 853, 856.
Here, however, the trial court clearly did not apply the proper standard.
At the time he was excused it was not yet clear whether Scott could put aside his personal feelings and honestly answer the Article 37.071(b) special issues in the punishment phase of a capital murder trial. The confusion was compounded because even after the State briefly explained that the jury would be required to answer two questions at punishment, both sides continued to ask the venireman whether he would “vote for” or “vote against” capital punishment. Although Scott stated initially that he would automatically “vote against” imposition of the death penalty, upon further questioning he maintained that he would follow the trial court’s instructions as to the law, that he could consider the death penalty in cases of murder, and at least three times that his decision on the proper verdict would depend on the evidence.
It was at this point that the trial court took charge of the questioning and asked simply if Scott’s deliberation would be “affected” by the mandatory penalties in a capital case. Scott answered affirmatively. The trial court then interrupted the venireman’s attempted qualification of this answer to ask if Scott could take an oath that he would not be so affected. Receiving a negative reply, the trial court immediately dismissed the prospective juror.2 Thus, rather than inquire to what extent Scott’s attitude toward the death penalty would “affect” his ability to render a true verdict in accordance with his oath as to special issues under Art. 37.071, the court cut off his answer and excused him when he stated he could be affected at all. In doing so the trial court clearly misapplied § 12.31(b):
“ ... the application of Sec. 12.31(b) that is required by Adams and Witherspoon calls for a determination of not merely whether the mandatory penalty would ‘affect’ his deliberations, but rather the extent to which the juror would be affected.” [Emphasis in original]
Graham v. State, 643 S.W.2d 920, 923-24 (Tex.Cr.App.1983). Exclusion of prospective jurors based on this overbroad definition of “affect” was exactly the procedure condemned in Adams. Scott may well have been precisely the type of prospective *490juror Witherspoon would shield from being excluded for cause: one who represents that extensive segment of the community that objects to the death penalty, and yet one who would follow the law and the evidence to arrive at his verdict. If so, his exclusion was in violation of the Sixth and Fourteenth Amendments to the United States Constitution. Adams, supra; Hartfield v. State, 645 S.W.2d 436, 441 (Tex.Cr.App.1983). At the very least his dismissal was premature. Lackey v. State, 638 S.W.2d 439, 476 (Tex.Cr.App.1982) (Opinion on Appellant’s Motion for Rehearing); Rougeau v. State, 651 S.W.2d 739, 743 (Tex.Cr.App.1982). The party seeking to exclude a prospective juror has the burden of proving the exclusion is proper. The State had not satisfied that burden before Scott was excluded. Ex parte Bravo, 702 S.W.2d 189, 192 (Tex.Cr.App.1985) (Opinion on State’s Motion for Rehearing). It was in that sense that Scott’s dismissal was premature. No one contends that applicant was denied his right of examining the prospective juror. It was the State that had not gone far enough to sustain its burden of showing Scott was properly excludable for cause. His answers to the crucial questions of whether he would follow the law and the evidence in arriving at his verdicts were ambiguous. Indeed, his clearest statements that it was “possible” for him to consider the death penalty for “murders” and that his decision would depend on the evidence came just before the trial court intervened in the voir dire. The trial court then abruptly resolved the ambiguity by applying the standard later condemned in Adams.
The death penalty may not be imposed where even one venireman has been excluded from the jury in violation of the rule of Witherspoon. Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976). Because I believe one venireman was so excluded in this case, I respectfully dissent.
TEAGUE, J., joins this opinion.. All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.
. The conclusion that the court based its decision on the venireman’s admission that he would be "affected” by the mandatory penalties is supported by the court’s questioning of prospective juror Ida Mary Seymore, which concluded as follows:
“THE COURT: All right. Then let me ask you another question. Even though you believe that the death penalty should not be given, could you nevertheless take the oath which says that the mandatory penalty of life or death will not affect your deliberation on any issue of fact?
THE WITNESS: No.
THE COURT: All right. All right. I will excuse you, then."
Earlier answers of Seymore’s demonstrated that she could properly be excluded for cause under the standard adopted in Wainwright v. Witt, supra. Even so, the conclusive factor for the trial court seemed to be that she could not swear that her deliberations would be unaffected by the mandatory penalties of life or death. That was the last question asked by the trial court before excusing her, just as in Scott’s case.