Zinger v. State

McCORMICK, Presiding Judge,

dissenting.

I respectfully dissent. The majority holds this case is controlled by Castillo v. State, 913 S.W.2d 529 (Tex.Cr.App.1995). However, this case clearly is distinguishable from Castillo. In Castillo, this Court held a veniremember who stated he could not convict on the basis of 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 533. However, this Court also stated:

*517“A venireman who says, for instance, that he could not convict even if he believed the State’s only eyewitness, and that testimony convinced him beyond a reasonable doubt of the defendant’s guilt, can he be challenged for cause, [Garrett v. State, 851 S.W.2d 853 (Tex.Cr.App.1993) ] notwithstanding. Such a venireman really does hold the State to a higher burden of proof than the law allows.” Castillo, 913 S.W.2d at 533.

Therefore, under Castillo, a veniremember is challengeable for cause if he says he could not convict on the basis of one eyewitness even if he believed that witness beyond a reasonable doubt. See id.

However, the record in this case reflects the “proper” question under Castillo was asked. The veniremember was informed the law required him to convict on the basis of one eyewitness if he believed the witness beyond a reasonable doubt, and then was asked whether he could convict under those circumstances.. The veniremember replied he “couldn’t get to that point.”

“Q. [PROSECUTOR]: Are you saying that anytime there’s only one witness, that that standard [i.e., reasonable doubt] can’t be reached for you, no matter what?
“A. [VENIREMEMBER]: 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.
“Q. [PROSECUTOR]: You couldn’t do it?
“A [VENIREMEMBER]: No, sir.
“Q. [APPELLANT]: 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.
“A [VENIREMEMBER]: I couldn’t get to that point.” (Emphasis Supplied).

In other words, the veniremember unequivocally stated he would not even consider whether he believed the witness beyond a reasonable doubt if that was the only witness the State presented.

This case has nothing to do with a venire-member’s “threshold for proof beyond a reasonable doubt” being “higher than the minimum that the law recognizes as sufficient.” See Castillo, 913 S.W.2d at 533. What this case involves is a veniremember’s categorical refusal to apply the concept of reasonable doubt to the facts of the case. But, the State is entitled to a juror who will apply the concept of reasonable doubt to the facts of the case. Therefore, I would hold Castillo does not control here, and a veniremember, like the one here, who indicates he will not apply the concept of reasonable doubt to the facts of the case is challengeable for cause.

In addition, this case illustrates how Garrett and Castillo were so wrongly decided in terms of substantive law and the application of the standard of review to a trial court’s ruling on a challenge for cause. The applicable standard of review is highly deferential since the trial court is in the best position to make the call on whether to grant a challenge for cause.

For example, if a trial court grants a State’s challenge for cause when a venire-member, like the one in Castillo, says he cannot convict on the basis of one eyewitness with no rehabilitation by the defense, the appellate courts should uphold the trial court’s ruling because, under the applicable deferential standard of review, the trial court has not abused its discretion to understand such a veniremember to be saying he would not convict on the basis of one eyewitness even if he believed that witness beyond a reasonable doubt. See Castillo, 913 S.W.2d at 538. This is a reasonable inference from the veniremember’s response.

This is how I would apply the standard of review in cases like this if Castillo and Garrett are going to be the law in this State.1 Voir dire is not a mechanical process where *518all human interaction and responses can be classified into nice and neat categories from a cold record. It is not this Court’s institutional role to, in effect, micromanage trial courts’ rulings on challenges for cause.

More importantly, this case demonstrates how Garrett and Castillo were wrongly decided as a matter of substantive law for reasons other than those set out in the dissenting opinions in these cases. See, e.g., Castillo, 913 S.W.2d at 542 (Keller, J., dissenting) (would hold the veniremember’s response increased the State’s burden of proof); Garrett, 851 S.W.2d at 861 (McCormick, P.J., dissenting) (same). For example, in Castillo, this Court applying Garrett said:

“Like venireman Bradley in Garrett, a venireman who categorically refuses to render a guilty verdict on the basis of a single eyewitness may only be indicating that his threshold for proof beyond a reasonable doubt is somewhat higher than the minimum that the law recognizes as sufficient. Unless we are prepared to hold that jurors must always convict on the basis of legally sufficient evidence, we cannot say that such a venireman has a bias against the law.” Castillo, 913 S.W.2d at 533.2

However, this Court is not required to hold “jurors must always convict on the basis of legally sufficient evidence,” if a venireman “who categorically refuses to render a guilty verdict on the basis of a single eyewitness” is subject to a challenge for cause. Id.; see also Garrett, 851 S.W.2d at 861 (McCormick, P.J., dissenting). This Court only has to hold the veniremember should at least consider convicting under circumstances like this to make the veniremember not challengeable for cause.

When a veniremember categorically refuses to convict on the basis of one eyewitness, then he has stated he will not even consider convicting under these cireum-stances. See Castillo, 913 S.W.2d at 533. Similarly, when a veniremember categorically refuses to answer affirmatively special issue “two” at the punishment phase of a capital murder trial based on the facts of the offense alone, then he has stated he will not even consider doing so. See id.

However, because the law allows for conviction on the basis of one eyewitness, and the law allows for imposition of a death sentence on the basis of the facts of the offense alone, these veniremembers have demonstrated a bias or prejudice against a phase of the law upon which the State is entitled to rely. See Article 35.16(b)(3), V.A.C.C.P. That is because the State is entitled to jurors who will at least consider convicting on the basis of one eyewitness, or who will at least consider affirmatively answering special issue “two” at the punishment phase of a capital murder trial based on the facts of the offense alone.3 This analysis has nothing to do with “holding the State to a higher [burden] than that required by law.” See Castillo, 913 S.W.2d at 533. Moreover, the contentions here apparently went completely unaddressed in Garrett and Castillo since the basis of decision in those cases involved a veniremember’s minimum threshold level of “reasonable doubt.” See Castillo, 913 S.W.2d at 533.

I would hold the veniremember in this case was challengeable for cause, and I also would overrule Garrett and Castillo.

I respectfully dissent.

. In addition, in this case, it was not an abuse of discretion for the trial court to have understood the veniremember to be saying he would not convict on the basis of a single eyewitness even if he believed the witness beyond a reasonable doubt, which makes the veniremember subject to a challenge for cause even under Castillo.

. Under Garrett, a defendant would not be entitled to a favorable ruling on a challenge for cause to a veniremember who will not "find” an affirmative defense based on the testimony of a single witness. This is absurd. And, what about the veniremember who says he will not consider alibi or self-defense based on the testimony of a single witness? Like that pink bunny rabbit, the list goes on and on. Garrett represents an ill-conceived departure from well-established precedent with a high potential for ’low mischief. See Garrett, 851 S.W.2d at 861 (McCormick, P.J., dissenting) & at 861-64 (Campbell, J., dissenting).

. These veniremembers also would increase the State's burden of proof; however, this claim was rejected in Castillo and Garrett.