Riley v. State

OPINION

BAIRD, Judge.

Appellant was convicted of capital murder pursuant to Tex.Penal Code Ann. Sec. 19.03(a)(2).1 The jury affirmatively answered the three issues submitted under Tex.Code Crim.Proc.Ann. art. 37.071(b).2 Punishment was assessed at death. Id. at (e). Appeal to this Court is automatic. Id. at (h). We will reverse.

As appellant does not challenge the sufficiency of the evidence, we will dispense with a recitation of any facts unnecessary to the resolution of the point of error under consideration. In point of error six, appellant contends Veniremember Bulah Brown was improperly excluded from jury service because her views on the death penalty would not have “substantially impaired” her performance as a juror.

I. Adams v. Texas

In Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), the Supreme Court held former Texas Penal Code Section 12.31(b) may not be used to exclude venire-members who acknowledge they “might” be affected by the death penalty.3 Adams, 448 *292U.S. at 49, 100 S.Ct. at 2528. A potential juror may not be challenged for cause based upon 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.” Adams, 448 U.S. at 45, 100 S.Ct. at 2526.

In Adams, seven veniremembers were excluded from jury service because they were unable to take an oath that the mandatory penalty of death or imprisonment for life would not affect their deliberations. Adams, 448 U.S. at 40, 100 S.Ct. at 2524. Our review of the record in Adams reveals two venire-members testified similarly to Brown and will, therefore, provide guidance for our analysis of this case.

Veniremember White

White testified although she believed in capital punishment, she could not participate in a proceeding in which the death penalty was handed down. White felt the mandatory sentence of death or life would affect her deliberations in a case. The trial judge asked White if she could ever, in a capital murder case, vote yes to all three statutory punishment issues if evidence had proven them, and White responded, “I don’t think so.”4 Upon further examination, White finally stated she could set aside her feelings and vote “yes” to the statutory punishment issues if the facts justified it. However, at the end of her testimony White vacillated on this issue. When defense counsel again asked White if she could lay her feelings aside and answer the questions honestly she replied, “I did but I cannot say yes to that now. That is not — I couldn’t lay my feelings aside."

Veniremember Ferguson

Ferguson testified he was opposed to capital punishment. Ferguson felt it would be “almost impossible” for him to render a death penalty verdict, and stated he had “grave doubts” about ever being able to vote for death. Ferguson could not conceive of a case wherein he would vote for the death penalty. When asked if he would “automatically” vote against the death penalty, Ferguson replied, “With my conscious, yes.”

After an explanation of the Texas statutory punishment issues, Ferguson testified he thought he could honestly try to answer the questions but he did not want to vote for the death penalty. Ferguson again testified he felt he would automatically vote against the death penalty. Upon further examination, the trial judge asked:

Trial Judge: Is what you’re saying, knowing he would go to the electric chair, are you saying that would affect your ability to answer those questions?
Ferguson: It wouldn’t affect my ability, but it would cause me to do some squirming trying to be honest in my answers if I felt like the answers to the three questions was yes.

At the conclusion of both White’s and Ferguson’s testimony, the trial judge sustained the State’s challenges for cause. We affirmed. Adams v. State, 577 S.W.2d 717 (Tex.Cr.App.1979).

The Supreme Court held the exclusion of the veniremembers was improper. The Court reasoned a juror’s performance could be influenced by his views on the death penalty without exceeding “ ‘guided jury discretion’ ”. Adams, 448 U.S. at 47, 100 S.Ct. at 2527. Thus, “if prospective jurors are barred from jury service because of their views about capital punishment on ‘any broader basis’ than inability to follow the law or abide by their oaths, the death sentence cannot be carried out.” Adams, 448 U.S. at 48, 100 S.Ct. at 2528, citing Witherspoon v. Illinois, 391 U.S. 510, 522, n. 21, 88 S.Ct. 1770, 1777, n. 21, 20 L.Ed.2d 776 (1968). Such exclusion violates the Sixth and Fourteenth Amendments to the U.S. Constitution. Adams, 448 U.S. at 50,100 S.Ct. at 2529. In emphasizing the breadth of its holding the Court stated:

... 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 rea*293sonable 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. Such assessments and judgments by jurors are inherent in the jury system, and to exclude all jurors who would be in the slightest way affected by the prospect of the death penalty or by their views about such a penalty would be to deprive the defendant of the impartial jury to which he or she is entitled under the law.

Id.

II. Application By This Court

We have considered Adams on numerous occasions, namely, Cuevas v. State, 641 S.W.2d 558 (Tex.Cr.App.1982); Turner v. State, 635 S.W.2d 734 (Tex.Cr.App.1982); Durrough v. State, 620 S.W.2d 134 (Tex.Cr.App.1981); Pierson v. State, 614 S.W.2d 102 (Tex.Cr.App.1981). Two eases in particular, Cuevas and Durrough, contain testimony similar to that of Brown and will, therefore, be discussed in detail.

In Cuevas, 641 S.W.2d at 560, the venire-member testified “that under no circumstances could he participate as a juror in returning a verdict that would require the court to assess the death penalty.” After an explanation of the Texas statutory punishment issues, the veniremember testified:

Trial Judge: Now, you have expressed an objection to the death penalty. Would you feel that your conscientious objection to the death penalty as such, that it would affect your deliberation upon his guilt in the first instance or on either of the questions of fact, on those questions that I asked?
Veniremember: No.
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Trial Judge: You believe you can successfully set that aside and base you answers solely and exclusively upon the evidence you hear in the trial of the case?
Veniremember: Yes, sir.
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Prosecutor: So you are saying the fact that the death penalty is a possible punishment, that fact would influence you in your decision as to how you answer these two punishment questions, right?
Veniremember: It probably would. Yes.
Prosecutor: Could you say yes or no?
Veniremember: Yes. Of course, it would certainly be in my mind, surely, it would influence me.
⅜ ⅜ ⅜ ⅛ ⅜ ⅜
Veniremember: ... I would try to be as fair as possible, but I do have—
Prosecutor: If you were that opposed to the death penalty, I could understand how it would affect you, and you just told me it would.
Veniremember: Sure it would.
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Defense Counsel: Even though a juror feels that way, and I think it’s proper that they should certainly be concerned about this life or death issue, but if you could answer yes to those questions if the State convinced you beyond a reasonable doubt that the answers should be yes, then you should serve and do your duty as a juror.
Veniremember: That’s right.
Defense Counsel: Can you do that?
Veniremember: Yes.
Defense Counsel: So it would depend on the evidence that you heard?
Veniremember: Yes.
Defense Counsel: And if you were convinced beyond a reasonable doubt, it wouldn’t affect your feelings on the death penalty, you’d answer those questions yes or no and let the chips fall where they may?
Veniremember: Yes.
Defense Counsel: Is that correct?
Veniremember: That is true. It will be very unpleasant, but I will do it.
⅜ ⅜ ⅜ ⅝ ⅜ ⅜
Prosecutor: ... I assume ... that your feeling against the death penalty would affect your deliberation how to answer those [statutory punishment issues].
*294Veniremember: Yes.
Prosecutor: It would?
Veniremember: Yes.
⅜ ⅜ # ⅜ ⅜ ⅝
Prosecutor: If that’s the case, I take it that you could not state under oath that the mandatory penalty of death would not affect your deliberations in the punishment part?
Veniremember: Now, I understand what you are saying. I could not take that. Prosecutor: You couldn’t take that oath? Veniremember: No. I couldn’t do that.

At the conclusion of the veniremember’s testimony, the trial judge sustained the State’s challenge for cause. Id. at 562. We held the exclusion was improper under With-erspoon and Adams:

... [The veniremember] could not have been excluded consistently with Wither-spoon. He repeatedly stated that he could follow the law and convict upon proper evidence of guilt beyond a reasonable doubt, despite his opposition to the death penalty.
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This exclusion of [the veniremember] was precisely the kind of exclusion forbidden by the Supreme Court in Adams. If even one juror is improperly excluded under the Witherspoon line of cases, the State cannot execute an appellant. Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339.
Id. at 563.

In Durnugh, 620 S.W.2d at 140, the veniremember testified she had conscientious scruples against the death penalty:

Trial Judge: Does that mean you could not in a proper case if you felt the facts warrant it, vote for a verdict that would result in the Death Penalty being inflicted?
Veniremember: I don’t think in all consciousness [sic] I could.
Trial Judge: I can’t hear you?
Veniremember: I don’t think in all consciousness [sic] I could vote for someone to, for me to inflict death on any human being. I don’t think I could.
Trial Judge: All right. Are you saying that you couldn’t do this in any case, regardless of the facts?
Veniremember: I don’t think I could. No.

After an explanation of the Texas statutory punishment issues, the veniremember testified:

Defense Counsel: Okay. Now, could you decide those [punishment issues] based on the evidence and follow the law in that respect?
Veniremember: I could follow the law but I would still feel responsible. Morally responsible.
Defense Counsel: Well, I feel you might feel morally responsible but what I’m asking you however you feel in the end when it’s all over, could you follow the law and answer those questions based only on the evidence?
Veniremember: Yes. I could.
# ⅜ ⅝ ⅜ ⅜ ⅜
Defense Counsel: [C]ould you ... be a juror and make or base your decision only on the evidence, that’s it?
Veniremember: I could but I would still like I said, I would still feel morally responsible. I really would. I will I would still feel morally responsible.

At the conclusion of the veniremember’s testimony, the trial judge sustained the State’s challenge for cause. Id. at 142. We held the exclusion was improper under Adams:

It does not appear from the record that [the veniremember] was so irrevocably opposed to capital punishment that she could not follow the law or obey the instructions of the trial court. To the contrary Scott repeatedly stated that she could answer the questions put to her based on the evidence presented at the punishment phase of the trial. We conclude that V.T.C.A. Penal Code, Section 12.31(b) was applied by the trial court in the instant case to exclude a prospective juror whose only fault was to acknowledge honestly that she had conscientious scruples against *295capital punishment and that the mandatory penalty of death or imprisonment for life might affect her deliberations. On this state of the record to hold that the exclusion for cause of [the veniremember] from jury service contravened the Sixth and Fourteenth Amendments. Adams v. Texas, [citation omitted].

Id.

As exemplified by Cuevas and Dur-rough, we have consistently held that a potential juror may not be challenged for cause based upon 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.” Adams, 448 U.S. at 45, 100 S.Ct. at 2526. In other words, unless a veniremember is so irrevocably opposed to capital punishment that he could not follow the law or obey the instructions of the trial court, he is not disqualified from jury service. Durrough, 620 S.W.2d at 142.

III. Facts of the Present Case

In the present case Brown testified she strongly opposed the death penalty and could not participate in a proceeding in which the death penalty was handed down. However, after an explanation of the Texas statutory punishment issues, Brown testified as follows:

State: I want you to assume at this point that you are a juror in a capital murder case and that the jury has returned a verdict of guilty, and you are now deliberating punishment. The State has brought you evidence that has convinced [you] beyond a reasonable doubt that the answer to each of those questions should be yes, based upon the evidence that you have heard. Now, I want to remind you that you have taken an oath that you will render a true verdict based upon the law and the evidence. So, if you followed your oath, you would answer yes, would you not, to each of those questions? Brown: Yes.
State: But because of your religious, moral objections to the death penalty, you would be sentencing that Defendant to death, would you not, if you answered yes?
Brown: Yes.
State: You would, of course, then be asked, or forced, if you followed your oath, to sacrifice those moral, religious and personal feelings, would you not?
Brown: Yes, I would.
State: Could you do that?
Brown: I guess I would have to.
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
State: Knowing that you have deep-seated religious beliefs against the death penalty ... would those feelings prevent you, or substantially impair your ability to follow your oath as a juror and render a verdict based upon the evidence and the law as given to you?
Brown: No.
State: They would not?
Brown: (Shaking head.)
State: In other words, you’re willing to sacrifice those beliefs?
Brown: Yes.
State: You would give up those beliefs, as deep-seated as they are?
Brown: Yes.
* * * * * *

When questioned by appellant the following exchange occurred.

Appellant: The first [statutory punishment issue] comes to the jury and it says: Was the conduct of the Defendant that caused the death of the deceased committed deliberately and with the reasonable expectation that the death of the deceased or another would result ... And if you believe from the evidence that this question should be answered yes, could you answer yes?
Brown: Yes.
Appellant: All right. Special issue Number 2 talks about whether or not there’s a probability that the Defendant ... would commit criminal acts of violence that would constitute a continuing threat to society ... [I]f that had been proven to you beyond a reasonable doubt ... could you answer yes to that question?
*296Brown: Yes.
Appellant: And we’re not sure about [statutory punishment issue] Number 3. We don’t know if in the facts in this case would come up, but it could very well come up in a certain type of case. And that is: If the conduct of the Defendant, in killing the deceased, was unreasonable in response to the provocation, if any, by the deceased ... [I]f there was enough evidence to convince you beyond a reasonable doubt that this question should be answered yes, could you answer that question yes'?
Brown: Yes.

At the conclusion of Brown’s testimony, the trial judge sustained the State’s challenge for cause, over appellant’s timely objection. In support of his ruling, the trial judge stated:

Gentlemen, on the State’s challenge, in view of the juror’s repeated statements of moral and personal religious opposition to the death penalty, and on the Court’s finding that, taken at best, the juror would have to overcome her moral and religious personal prejudice against the death penalty in order to perform her duty, the Court feels that the juror’s views; personal, religious and moral, with regard to the death penalty, would substantially impair the performance of her duties as a juror if selected, the Court will sustain the challenge for cause....

IV. Application

Adams and its progeny control the resolution of this point of error. In comparing Brown’s testimony to that of Ferguson and White in Adams, it is clear to us Brown was a qualified juror. The Adams Court held Ferguson and White were qualified jurors despite their inability to unequivocally state they could answer the statutory punishment issues according to the evidence.5 Brown, however, consistently and unequivocally stated she could answer the statutory punishment issues affirmatively if proven beyond a reasonable doubt. Because Brown’s testimony is even less questionable than Ferguson’s and White’s, it is clear Brown was excluded on a “broader basis than [her] inability to follow the law....” in violation of the Sixth and Fourteenth Amendments. Adams, 448 U.S. at 48, 100 S.Ct. at 2528.

Our holdings in Cuevas and Durrough also support this conclusion. Like the venire-members in Cuevas and Durrough, Brown expressed her opposition to the death penalty but stated she could set aside her feelings and reach a verdict based solely on the evidence. Despite her feelings towards the death penalty, Brown was not so “irrevocably opposed” to capital punishment as to be unable to follow the law in reaching a verdict. Durrough, 620 S.W.2d at 142.6

Finally, our conclusion of Brown’s improper exclusion is supported by the trial judge’s own words when ruling on the State’s challenge to Brown. The trial judge clearly stated he was excluding Brown because of her “moral and personal religious opposition to the death penalty.” This action was improper because Brown testified that she would not disobey the law or the jury instructions by answering the statutory punishment issues negatively in order to avoid rendering the death penalty. Durrough 620 S.W.2d at 142. The fact that Brown’s views on the death penalty could have affected her performance was not sufficient grounds to disqualify her. Adams, 448 U.S. at 47, 100 S.Ct. at *2972527. A veniremember may not be excluded from jury service based solely on his opinion of the death penalty when the record clearly demonstrates he is capable of following the law. Adams, 448 U.S. at 49, 100 S.Ct. at 2528; Cf. Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (uncertainty in the record due to ambiguous questions as to whether a veniremember’s views would “interfere” with her role as a juror requires deference to the trial judge’s ruling on qualification).

For the foregoing reasons, we sustain appellant’s sixth point of error. The judgment is reversed, and this case is remanded to the trial court.

MILLER, J., dissents. CAMPBELL, J., dissents for the reason that the venireperson exemplified the responses of a classic, vacillating juror as explicated in Wainwright v. Witt. McCORMICK, P.J., and WHITE, J., join this note.

. Tex.Penal Code Ann. Sec. 19.03 provides in part:

(a) A person commits an offense if he commits murder as defined under Section 19.02(a)(1) of this code and:
(2) the person intentionally commits the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, or arson;

. Appellant was convicted on November 17, 1986. All references to Tex.Code Crim.Proc.Ann. art. 37.071 will be to the statute as it appeared then, prior to its amendment on September 1, 1991.

Tex.Code Crim.Proc.Ann. art. 37.071(b) provides:

(b) On conclusion of the presentation of the evidence, the court shall submit the following three issues to the jury:
(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and....
(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.

.Former Texas Penal Code art. 12.31(b) provided:

Prospective jurors shall be informed that a sentence of life imprisonment or death is mandatory on conviction of a capital felony. A prospective juror shall be disqualified from serving as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact.

This article was amended and the italicized portion deleted in 1991 pursuant to Adams. It now states:

In a capital felony trial in which the state seeks the death penalty, prospective jurors shall be informed that a sentence of life imprisonment or death is mandatory on conviction of a capital felony. In a capital felony trial in which the state does not seek the death penalty, prospective jurors shall be informed that the state is not seeking the death penalty and that a sentence of life imprisonment is mandatory on conviction of the capital felony.

. Unless otherwise indicated, all emphasis is supplied.

. At the end of White’s testimony in Adams, she stated she could not set aside her feelings concerning the death penalty and answer the statutory punishment issues honestly. Ferguson never unequivocally stated he could answer the statutory punishment issues affirmatively if the evidence supported it.

. This case is to be distinguished from cases in which the veniremember never asserts she can follow the law and answer the statutory punishment issues accordingly, or when the venire-member is “unwavering in her opposition to the death penalty.” Callins v. State, 780 S.W.2d 176, 196 (Tex.Cr.App.1986).

This is also not the case where a veniremember is challenged due to her "vacillation” regarding her feelings on the statutory punishment issues. Farris v. State, 819 S.W.2d 490 (Tex.Cr.App.1990). In such a case, the trial judge’s rulings should be given great deference on appeal because only he "is in [the] unique position to determine whether those same feelings would prevent or substantially impair the venireper-son’s performance as a juror." Id. at 501.