concluding appellant did not preserve for review argument that trial court abused discretion by not disqualifying, excusing, or removing juror with “psychological instability” based on personal tragedy that was later empaneled because defense counsel did not challenge potential juror for cause; object to the trial court’s decision not to disqualify, excuse, or remove potential juror; or otherwise seek to exclude potential juror from jury during individual voir dire or at the special hearing; and did not specifically object to jury as seated
How later courts described this case
- concluding appellant did not preserve for review argument that trial court abused discretion by not disqualifying, excusing, or removing juror with “psychological instability” based on personal tragedy that was later empaneled because defense counsel did not challenge potential juror for cause; object to the trial court’s decision not to disqualify, excuse, or remove potential juror; or otherwise seek to exclude potential juror from jury during individual voir dire or at the special hearing; and did not specifically object to jury as seated
- holding that the trial judge did not erroneously deny a challenge for cause against a prospective juror when the prospective juror “did not express an inability to set aside her personal opinions and follow the law”; “consistently stated that she would need to know all of the evidence before she could answer the special issues”; and “did not think that the death penalty was always appropriate for the capital murder of a police officer.”
- stating that the trial court did not err in denying a challenge for cause to a potential juror who indicated that “a defendant in a criminal case should be required to present some evidence to prove his innocence” but also “understood that she could not draw any inferences or assumptions from a defendant’s failure to testify or present evidence”
- providing that the defendant preserved error where he made eleven specific challenges for cause, used peremptory challenges on the complained-of venire members, exhausted all of his peremptory strikes, was denied his request for additional strikes, and was forced to accept an objectionable juror to sit on the jury
Written by the judges who cited it.
The opinion
HERVEY, J.,
filed a, concurring opinion in which KEASLER and NEWELL, JJ., joined.
I join the majority opinion of this Court, but I write ‘separately ¡to make three observations regarding - Judge Alcala’s suggestion urging “thé Legislature to consider amending the article[ 1 ] to add a provision that would permit the possibility of a life sentence without parole under the circumstances presented by this case.” Concurring Op. at 107 (Alcala,. J.). Judge Alcala finds the absence of such an instruction for cases occurring under Article 37.0711 of the Texas Code of Criminal Procedure on or after September 1, 1991, to be an inequity. that the Legislature. may choose to address. This argument ignores the fact that equity includes the right of the State of Texas to decide to seek the death penalty in the first place, and the right of the jurors to make an ultimate decision based on all the facts and their right to perform their duties based on the law provided by the Legislature at the time they carry out that heavy burden.
I believe that such a change in the law might violate the prohibition against ex post facto laws enshrined in the Texas and Federal constitutions, especially in cold cases and in reversals of those cases where the offense occurred before September 1, 1991 or in years between 1991 and 2005, after which Article 37.071 was amended to allow the jury only a choice of life without parole or death. And what roles do former Article 42.18, Section 8 of the Texas Code of Criminal Procedure and current Section 508.145 of the . Texas Government Code play in this suggestion to the Legislature? Although Judge Alcala suggests an inmate might prefer consideration of life without parole, I cannot imagine. an inmate preferring that choice to a possibility of parole in 15 years or even 40 years, and since life without parole would be a greater punishment, it runs up against ex *107 post facto law and the fact that one cannot be sentenced to a punishment that did not exist at the time of the offense. Moreover, former Article 42.18, Section 8 and current Section 508.145 of the Texas Government Code would seem to provide an even greater pool of inmates that could be hindered by ex post facto law. And I note that we have held that parties cannot consent to waive the prohibition against ex post facto laws. Phillips v. State, 362 S.W.3d 606, 611-12 (Tex.Crim.App.2011), overruled on other grounds, Ex parte Heilman, 456 S.W.3d 159 (Tex.Crim.App. 2015). So even if the -parties were to agree to reformation, ex post facto law would direct them to the punishment applicable at the time of the offense.
This is true despite our holding in Ex parte Maxwell, 424 S.W.3d 66 (Tex.Crim.App.2014), in which the majority of this Court decided that a juvenile. could not automatically be sentenced to- life without parole and also decided that the provision was retroactive. That case can be distinguished based on the fact that Maxwell allowed for consideration of a lesser sentence. Life without parole is not a lesser sentence than life with the possibility of parole in 15 through 40 years.
Second, in Texas a defendant cannot waive a jury in' a capital/death case. Tex. Code Crim. Proc. art. 1.13. Thus, reforming those cases in which a jury found death to be the appropriate punishment based on the sheer speculation that juries would be more likely to choose death rather than life with parole totally usurps the role of the jury.
Finally, in addressing inequity, what are we to make of Article 44.2511 of the Texas Code of Criminal Procedure in which the Legislature already allows for reformation of these old cases under certain circumstances? With these additional comments, questions, and considerations, I respectfully join the opinion of the majority.
. - Tex.Code Crim, Proc. art. 37.0711.