Zinger v. State

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

A jury convicted appellant of aggravated sexual assault and assessed punishment at confinement for thirty-five years. On appeal appellant contended, inter alia, that the trial court erred in granting the State’s challenge for cause against venireperson Robin Gatling after Gatling stated that he could not conceive of convicting someone on the basis of testimony from a single witness. Appellant argued on appeal that Gatling’s voir dire shows only that his threshold for reasonable doubt was higher than the legal minimum to support a conviction, and this is permissible under Garrett v. State, 851 S.W.2d 853 (Tex.Cr.App.1993).

The Court of Appeals rejected appellant’s contention by relying on Coleman v. State, *512881 S.W.2d 344, 359-360 (Tex.Cr.App.1994), instead of Garrett. Zinger v. State, 899 S.W.2d 423, 428 (Tex.App.Austin, 1995). Coleman addressed the issue of a venireper-son holding the State to a burden of proof greater than beyond a reasonable doubt. We granted appellant’s petition for discretionary review to address his claim that the Court of Appeals misread Gatling’s voir dire and that under Garrett the trial court erred in sustaining the State’s challenge for cause.1

FACTS

The prosecutor asked the jury panel whether anyone could convict a defendant on the basis of one witness’ testimony if they believed that witness beyond a reasonable doubt. Gatling indicated that he could not convict only on one person’s word. A little later the trial court explained the law and clarified the question to the panel in this fashion:

If you believe the witness beyond a reasonable doubt, even though there’s only one and they have met your burden, they’ve met your level of reasonable doubt, you’re required to vote guilty. If they haven’t met the level of reasonable doubt that you have in your own mind, you’re not required to vote guilty, even though there’s only one witness. You can convict a person on one witness’ testimony if you believe that witness.

Later during individual questioning Gatling explained his position: .

[Prosecutor]: Mr. Gatling, I was questioning you about whether you could believe a witness — if you believed a witness beyond a reasonable doubt and that witness established all the elements of the State’s case, that one witness. And I believe it was your statement was [sic] that one witness is not enough, you were going to need more.
Gatling: That’s correct. In the scenario that you laid out, if someone was walking down the street, my neighbor robbed me, in that scenario, yes. If there was nothing else, even though I probably wouldn’t like it myself, but that’s the situation.
[Prosecutor]: And what it comes down to is, even though you can believe that person beyond a reasonable doubt, what that person is saying, you still want more?
Gatling: There’s a question right there of reasonable doubt.
[Prosecutor]: What the law says is that that’s the standard.
Gatling: Okay.
[Prosecutor]: Are you saying that anytime there’s only one witness, that that standard can’t be reached for you, no matter what?
Gatling: Not for me, no, sir. I wouldn’t— no matter who it was, if it was just one person against another person, to get to that point that you’re suggesting, I wouldn’t be able to do it.
[Prosecutor]: You couldn’t do it?
Gatling: No, sir.
[Defense Attorney]: So what you’re saying, you understand that if you were convinced beyond a reasonable doubt, your obligation would be to vote to convict someone, but what you’re saying, as I understand it, is you just cannot conceive reaching proof beyond a reasonable doubt only on one witness.
Gatling: I couldn’t get to that point.

The State challenged Gatling for cause. The defense attorney objected, stating that what Gatling had said was “it would be difficult for him to reach the point of proof beyond a reasonable doubt, he has not said that if he were convinced beyond a reasonable doubt he would not convict.” The trial court granted the State’s challenge.

COURT OF APPEALS’ HOLDING

The Court of Appeals acknowledged appellant’s argument as “persuasive” that Garrett overruled Caldwell v. State, 818 S.W.2d 790 (Tex.CrA.pp.1991), cert. denied, 503 U.S. 990, *513112 S.Ct. 1684, 118 L.Ed.2d 899 (1992), so that sustaining the State’s challenge for cause would be error if that were the only reason for the challenge. Zinger, 899 S.W.2d at 428. However, the Court of Appeals upheld the trial court’s action on a different basis. The Court of Appeals asserted Gatling had stated that even if he believed the one witness beyond a reasonable doubt he could not convict a person based on the testimony of that single witness. Therefore, the court found the trial court correctly sustained the State’s challenge for cause because Gatling would hold the State to a higher standard than proof beyond a reasonable doubt. The court explained that in Coleman a venireperson was properly excluded for cause because she stated she would have to be one hundred percent certain before she could affirmatively answer the future dangerousness punishment issue. Ibid, (citing Coleman, 881 S.W.2d at 359-360). In contrast Garrett involved a venireperson who set his individual definition of proof beyond a reasonable doubt at a higher level than the legal minimum required to support such an affirmative finding conviction. Here, the Court of Appeals stated that presumably the veni-reperson in Garrett would have been able to affirmatively answer the punishment issue once his individual threshold was met, while in Coleman the venireperson would hold the State to a standard higher than proof beyond a reasonable doubt. The Court of Appeals concluded that Gatling was properly excluded from the jury panel because he had stated “that even after the level of proof surpassed [his] personal definition of beyond a reasonable doubt, [he] would not be able to convict a defendant without more. [Gatling] clearly had a bias or prejudice against a phase of the law upon which the State is entitled to rely.” Ibid. See, Tex.Code Crim. Proc. Ann. art. 35.16(b)(3).

APPELLANT’S CONTENTION

Appellant disputes the Court of Appeals’ reading of the record. He contends that Gatling, similar to the venireperson in Garrett, indicated that his threshold of reasonable doubt might be higher than what the State might prefer, but that he could convict once his threshold was met. Therefore, appellant argues that Garrett controls the disposition of this issue and not Coleman.

ANALYSIS

When the record reflects a vacillating or equivocal venireperson, the reviewing court is bound by the trial court’s judgment in the matter. Brown v. State, 913 S.W.2d 577 (Tex.Cr.App.1996).2 Gatling’s voir dire is *514neither vacillating nor equivocal. Rather, Gatling was unwavering once the distinction was clarified between (1) reaching the level of what Gatling, himself, believed would constitute reasonable doubt and (2) refusing to convict even if one witness’ testimony convinced him beyond a reasonable doubt of a defendant’s guilt. Gatling was clear that he would always have reasonable doubt in a one witness case. The prosecutor finally asked the question as a single sentence, stating, “And what it comes down to is, even though you can believe that person beyond a reasonable doubt, what that person is saying, you still want more?” Gatling replied, “There’s a question right there of reasonable doubt.” The prosecutor again asked about the reasonable doubt standard and Gatling repeated, “I wouldn’t — no matter who it was, if it was just one person against another person, to get to that point that you’re suggesting, I wouldn’t be able to do it.” Finally, the defense attorney stated that he understood Gatling to say he could not reach proof beyond a reasonable doubt with one witness. Gatling confirmed that, stating, “I couldn’t get to that point.”

In Coleman the venireperson accepted the State’s definition that reasonable doubt did not mean beyond all doubt, one hundred percent certain. With that in mind, the veni-reperson stated that she would require the State to prove more than reasonable doubt, that she would have to be one hundred percent certain. Gatling’s statements are not similar to those made in Coleman. Once Gatling’s views were clarified, Gatling did not say he would hold the State to a burden higher than proof beyond a reasonable doubt. Instead, he stated that in his mind, the evidence could not meet the standard of proof beyond a reasonable doubt in a case with one witness. Therefore, the Court of Appeals erred in finding Coleman controlled this case.

As Appellant contended in the Court of Appeals and in his petition, Garrett and its effect on Caldwell are the issues presented in this ease. In Castillo v. State, 913 S.W.2d 529 (Tex.Cr.App.1995) (plurality op.), we held that “a venireman who categorically refuses to render a guilty verdict on the basis of only one eyewitness is not challengeable for cause on that account so long as his refusal is predicated on his reasonable understanding of what constitutes proof beyond a reasonable doubt.” Castillo, 913 S.W.2d at 538. For these reasons we hold the Court of Appeals erred in holding the trial court did not err granting the State’s challenge for cause to veniremember Gatling.

Usually we would set aside the Court of Appeals’ judgment and remand the case to that court for a harm analysis. However, in a non-capital ease when a State’s challenge for cause was erroneously granted, the next step is to determine if the State used all of its peremptory challenges. Payton v. State, 572 S.W.2d 677 (Tex.Cr.App.1978). Because this can be accomplished by simply cheeking the record, we see no need to remand the ease to the Court of Appeals to perform this task. In the instant ease the State used its ten peremptory challenges, so Appellant was harmed. Accordingly, the judgments of the trial court and the Court of Appeals are reversed. The case is remanded to the trial court.

. We also granted appellant’s petition on two other grounds: one ground raised this same contention involving another venireperson; the other ground concerned the admission of hearsay statements made to a psychologist under Tex. R.Crim.Evid. 803(4). Because of the disposition of appellant’s ground regarding venireperson Gatling, we need not address these other grounds. Thus, grounds one and four are dismissed.

. A good example of this kind of venireperson is presented in the instant case by venireperson Thomas Sharpe, who is the subject of Appellant’s ground number one. Sharpe took two positions: first, that he could never convict based on the testimony of a single witness even if he believed that witness beyond a reasonable doubt; and second, he would never be convinced beyond a reasonable doubt by one witness. The trial court granted the State’s challenge for cause.

Dining questioning of the jury panel, Sharpe had stated that he could not convict based on the testimony of one witness. He was asked if he understood the distinction between being convinced by one witness beyond a reasonable doubt but not voting to convict and not being convinced beyond a reasonable doubt. He replied, “My evaluation of the issue is, I don’t want to see a person’s life be ruined based on testimony of only one person. I would never say, you know, I'm convinced based on one person. There has to be somebody else.” During individual questioning Sharpe reiterated his belief:

[Prosecutor]: Mr. Sharpe, you’ve been asked several times in the same manner about whether you can convict someone on the testimony of one witness, even if you believe beyond a reasonable doubt that witness’ testimony establishes the elements of the offense; is that correct? I think it’s always been your statement that one witness, under any circumstance, is not enough.
Sharpe: That’s not enough for me.
[Prosecutor]: Regardless of whether or not you believe that witness beyond a reasonable doubt?
Shaipe: That’s not enough.
⅜ ⅜ * * * *
[Defense Attorney]: Mr. Sharpe, is what you’re saying that you cannot imagine being convinced beyond a reasonable doubt by only one witness? Do you understand that there is a distinction between being convinced beyond a reasonable doubt and being convinced beyond a reasonable doubt and still not being willing to convict someone?
Sharpe: Right.
[Defense Attorney]: Which of those two are you saying?
Sharpe: I would not be willing to convict someone based on even convincing testimony of one person.
*514[Defense Attorney]: So you’re saying that you could not be convinced beyond a reasonable doubt?
Sharpe: I could not send a person to jail based on convincing — overwhelmingly convincing testimony of one person.
[Defense Attorney]: Okay. Now — but so I guess the question is, are you saying that you cannot conceive of being convinced beyond a reasonable doubt by only one witness?
Sharpe: That’s correct.

The trial judge granted the State’s challenge for cause.