concurring.
This is a post-conviction application for writ of habeas corpus. See Article 11.07, V.A.C.C.P.
The applicant’s conviction for capital murder, where the death penalty was imposed, was affirmed by this court in Bravo v. State, 627 S.W.2d 152 (Tex.Cr.App.1982). On appeal the applicant did not raise the constitutional questions concerning the selection of the jurors he now seeks to raise by habeas corpus proceedings.
I concur in the holding that the venire-person Juanita Madrigal was improperly excused by the trial court in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). See also Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). I further agree that the United States Supreme Court has held that a death penalty cannot be legally carried out when even one prospective juror was improperly excused for cause by the trial court in violation of Witherspoon v. Illinois, supra; Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976), although I consider this an extremely harsh rule.
I write in this case because the applicant complains for the first time of the court’s excusal of at least 10 prospective jurors and claims they were discharged from the case in violation of the Witherspoon doctrine. While the improper excusal of one such prospective juror would call for a death penalty to be set aside, my examination of the voir dire of the jury panel reveals at least three prospective jurors in addition to venireperson Madrigal were improperly excused under the Witherspoon holding. The excusal of the other six prospective jurors is highly questionable. There is more here than the improper excusing of one prospective juror.
For the reasons stated, I concur.
ROBERTS and TOM G. DAVIS, JJ., concur.