# Esquivel v. State > Court of Criminal Appeals of Texas · January 9, 1980 · 595 S.W.2d 516 URL: https://www.frixlaw.com/law-library/cases/9644369 ## Case - **Full name:** Rudy Ramos ESQUIVEL, Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** January 9, 1980 - **Citations:** 595 S.W.2d 516; 1980 Tex. Crim. App. LEXIS 1040 - **Precedential status:** Published - **Opinion:** Dissent by Clinton - **Judges:** Tom G. Davis - **Cited by:** 196 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9644369 ## How later opinions describe it (automated extraction) - explaining Article 34.01’s special venire procedures and holding that the trial judge’s decision whether to order a special venire is “a matter within his discretion” ## Opinion text CLINTON, Judge, dissenting. In Jurek v. Texas, 428 U.S. 262 , 96 S.Ct. 2950 , 49 L.Ed.2d 929 (1976), with respect to special issues 1 and 3 under Article 37.-071(b), V.A.C.C.P., the Supreme Court of the United States observed: “The Texas Court of Criminal Appeals has not yet construed the first and third questions; thus it is as yet undetermined whether or not the jury’s consideration of those questions would properly include consideration of mitigating circumstances. In at least some situations the questions could, however, comprehend such an inquiry. * * * We cannot, however construe the statute; that power is reserved to the Texas courts.” Id., at 272 , 96 S.Ct. at 2956, n. 7 . This Court still has not determined expressly and specifically whether in deliberating on its response to the first question the jury may properly include consideration of mitigating circumstances, although there are some general statements to that effect. See Adams v. State, 577 S.W.2d 717, 730 (Tex.Cr.App.1979), citing Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975) 1 and Robinson v. State, 548 S.W.2d 63 (Tex.Cr.App.1976). 2 But until the precise holding is made, I only venture the thought that a reasonable concept of “deliberateness” embraces a possibility of mitigating circumstances. *530 Yet, in pattern and form jury charges on punishment in a capital case the jury is not instructed that it may, must or shall consider evidence of mitigating circumstances in responding to the first question. 3 Indeed, the Court held in King v. State, 553 S.W.2d 105, 107 (Tex.Cr.App.1977) that “deliberately” need not be defined in the charge for, not being specially defined by law, it is a word deemed simple in itself and used in its ordinary meaning that jurors are supposed to know. 4 So far as can be ascertained we have not developed a standard or measure by which this Court will review an affirmative answer to the first question in order to decide that mitigating circumstances were, adequately considered or, for that matter, considered at all by the jury. Thus, while opinions of the Court use phrases like “the jury must consider” all relevant evidence, we have no way of telling that it did the duty it was not told it must perform or for what purpose. Now what was intimated in Chambers v. State, 568 S.W.2d 313, 323 (Tex.Cr.App.1978) — no abuse of authority in restricting length of voir dire by excluding inquiry into a venireman’s understanding of “deliberately” — becomes a definitive holding that an accused is not entitled to question prospective jurors as their definition of the term. Thus, the juror goes into the box without the accused and his trial counsel having the slightest inkling whether the juror understands and appreciates that “deliberately” as used in the first question means something more than “intentionally” or “knowingly” as will have been found extant from the charge on the court in the offense phase 5 — indeed, without the juror even realizing that in performing his duty during the punishment stage he will be confronted with the problem. During the trial, both at the offense and punishment stages, the uninformed juror naturally is not likely to be alert for evidence of “deliberateness.” Unlike the applicable culpable mental state defined in the main charge, “deliberately” need not be, and therefore probably will not be, defined in the charge on punishment. Still guideless in this respect the jurors will deliberate, and perhaps argue, with one another as to the common meaning of the term “deliberately.” And, finally, no one outside the jury room will ever be able to determine just what meaning the jury settled on and worked with in answering the first question. A more wanton and freakish method of achieving a responsive answer to a question of life or death may be conjured up, but not many. 6 In order that a prospective juror may engage in some measure of self analysis and that an accused and his counsel may critically evaluate the prospects, to the end that the jury which is finally selected at least gives hope of being “fair” in a constitutional sense, the seventh ground of error *531 should be sustained. Because it is not I dissent. ROBERTS, J., joins. . In Jurek the Court pointed out that to impose the death penalty the jury must respond affirmatively to the submitted questions which, the Court thought, “direct and guide their deliberations” and “channel the jury’s consideration on punishment and effectively insure against the arbitrary and wanton imposition of the death penalty.” Only generally did the Court observe that taking all discretion from the jury would risk losing that element which “permits individualization based on consideration of all extenuating circumstances . . . ” . Robinson invokes the idiom, “A good rule of evidence works both ways,” to hold that psychological testimony is admissible on behalf of an accused, but applies it in a context of the second question of “future dangerousness,” not the first of “deliberately.” . See Texas Criminal Pattern Jury Charges, CPJC 19.03(P), 136 ff.; 8 Texas Practice, Criminal Forms, Willson (Morrison and Blackwell) § 81.13, 161 ff.; cf. McClung, Jury Charges for Texas Criminal Practice 43, para. 3. . The King court also noted that in Jurek the Supreme Court concluded that submitting the three special questions “constitutionally guided” determination of the punishment issues without requiring special definitions of the terms. As already indicated, however, what the Supreme Court pointed out was that this Court had not then determined whether mitigating circumstances were to be included in that determination. On this point King brings the matter full circle. Similarly, Hovila v. State, 562 S.W.2d 243, 249 (Tex.Cr.App.1978). . That the meanings are and were intended to be different is implicit in the opinion of the Court in Brown v. State, 554 S.W.2d 677 (Tex. Cr.App.1977) in disposing of the sixth ground of error. .As an aside, I am constrained to remark that decisions such as made by the majority in overruling the seventh ground of error are what often bewilder the practitioner and perplex the thinking layman. Here, in this very case, a venireman may not be asked his understanding of the meaning of “deliberately” — the key phrase in one of two or three questions that he must answer as a juror — but may be interrogated at will by counsel for the State and the accused and, yes, by the trial court concerning, and be disqualified by the State for confusedly answering questions as to, “motive” — which all admit is a matter that need not be proved in order to convict. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9644369. Public record. Not legal advice.