when prospective juror vacillates between inconsistent answers, trial judge usually does not err in finding him substantially impaired
How later courts described this case
- when prospective juror vacillates between inconsistent answers, trial judge usually does not err in finding him substantially impaired
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Valencia v. State, 1997 Tex. Crim. App. LEXIS 44 (1997)
742 S.W.2d 379, 390 (Tex. Crim. App. 1987), overruled on other grounds by Valencia v. State, 946 S.W.2d 81, 82
The opinion
CLINTON, Judge,
concurring.
Having just recently argued against our causing the Court to adopt as state law a federal habeas statutory rule for reviewing substantial federal questions raised in state convictions, see Clark v. State, 717 S.W.2d 910 (Tex.Cr.App.1986) (opinion joining judgment, at 920), I do not reiterate my objections. Suffice to say that often “we but engage in an amiable fiction by pretending to give deference to a determination never made,” id., at 921 .
The instant cause presents contrasting situations involving voir dire examination of venirepersons, namely Robert E. Goodwin and Beatrice Brock. Yet the Court seem to make the same analysis in each.
From the Court’s resume of examination of Godwin there is no indication that the trial judge was troubled enough by his answers to resort to an examination of demeanor, tone and the like in order to decide the challenge for cause. Thus it is not a matter of paying deference to the trial judge, but whether the ruling made for the court is correct. Given his answers I agree the trial court did not err.
On the other hand Brock is characterized as a “vacillating” venireperson. In her case after the trial court sustained the challenge for cause by the State, the judge mentioned observations made as she answered questions and “confusion” in her answers leading to a stated impression of inability of Brock to perform her duties as a juror because of her strong views against capital punishment. Since in my judgment the record sustains that impression, again I agree the trial court did not err.
As to points of error six, seven and eight pertaining to testimony of Linda Fletcher, at page 7, in note 4, the Court describes a hearing on appellant’s motion in limine held by the trial court just before Fletcher would take the stand to testify at the first stage of trial. Manifestly, counsel was well aware of the marital communications privilege. The prosecutor gave assurances that he had instructed Fletcher to restrict her testimony to conversations with appellant in the presence of a third party, and he was prepared to demonstrate that was true in each instance; counsel for appellant seems to have accepted those assurances, requesting the showing be made in advance; but the trial judge demurred. In that context and apparently for those reasons the court overruled the motion — in effect it became moot.
From my reading of relevant portions of the statement of facts it appears that the prosecution did not show that a third party was present when the three statements complained of were made. Considering the bizarre nature of the first two and the inculpatory character of the third, one is at loss to comprehend an utter failure to object on either ground available, or both. Like other privileges, this one is given special protection. See Tex.R.Cr.Evid. Rules 104(a), 504(1) and 1101(b). Nevertheless, prior case law and now Rule 504(l)(c) make clear this privilege must be claimed.
With those observations I join the judgment of the Court.