Riley v. State

OPINION ON STATE’S MOTION FOR REHEARING

CLINTON, Judge.

On original submission in this cause we sustained appellant’s sixth point of error, and reversed his conviction. In that point of error appellant argued that the State’s challenge for cause against venireman Bulah Brown was erroneously granted. We held that the trial court had indeed erred to exclude Brown from jury service because the excusal was predicated upon nothing more than her moral and religious scruples against the death penalty. In so holding we placed principal reliance upon Adams v. Texas, 448 U.S. 38 , 100 S.Ct. 2521 , 65 L.Ed.2d 581 (1980), and two cases out of this Court, Cuevas v. State, 641 S.W.2d 558 (Tex.Cr.App.1982) and Durrough v. State, 620 S.W.2d 134 (Tex.Cr.App.1981). In its motion for rehearing, the State now contends that we erred on original submission in failing adequately to account for the subsequent opinion from the United States Supreme Court in Wainwright v. Witt, 469 U.S. 412 , 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985). The State also complains that we have effectively overruled our own opinions in such cases as Farris v. State, 819 S.W.2d 490 (Tex.Cr.App.1990), Vuong v. State, 830 S.W.2d 929 (Tex.Cr.App.1992), and Gunter v. State, 858 S.W.2d 430 (Tex.Cr.App.1993). We granted the State’s motion for rehearing in order to address these contentions.

Venireman Brown frankly acknowledged she did not believe in the death penalty. She opined, “I say God put people on this earth to live, not for other folks just to do away with their lives. If they should die, He will do it.” She agreed that she “personally could not participate in any proceeding that ultimately decreed and handed down a death sentence.” After the special issues were explained to her, however, Brown was asked whether she could answer them affirmatively if the evidence called for it, despite her misgivings about the death penalty. She responded that if she had taken an oath to do so, she would “have to” sacrifice her conscientious objections to the death penalty, and answer the special issues in accordance with the evidence. She testified unequivocally that her opposition to the death penalty would not substantially impair her ability to follow her oath and render a true verdict. 1 *298 Although Brown admitted that this scenario would create a “deep conflict between what [she] would be required to do as a juror and what [her] personal feelings regarding the death penalty were,” and that affirmative answers would effectively “violate [her] moral and religious beliefs,” she never wavered in her assurances that she could nonetheless give affirmative answers to the special issues if the evidence convinced her beyond a reasonable doubt they should be so answered. In this respect, she neither equivocated nor vacillated.

On original submission we pointed out that, like the veniremen in Cuevas and Dur-rough, both supra, venireman Brown stated unequivocally that she could set aside her scruples against the death penalty and answer the questions honestly in accordance with the evidence. As with venireman Ward in Cuevas , we held that Brown was not chal-lengeable for cause in spite of acknowledging “that under no circumstances could [she] participate as a juror in returning a verdict that would require the court to assess the death penalty.” Maj. op. at 293, quoting Cuevas, 641 S.W.2d at 560 . To hold otherwise, we reasoned on original submission, would violate the prohibition in Adams against excusing veniremen “on any broader basis than their inability to follow the law or abide by their oaths[.]” 448 U.S. at 48 , 100 S.Ct. at 2528 , 65 L.Ed.2d at 591 (internal quotation marks omitted). Accordingly, we reversed appellant’s conviction and remanded the cause.

The State argues that we have failed to take into account the entire voir dire examination of venireman Brown. Examining that voir dire in its entirety reveals, contends the State, that Brown had “conflicting feelings regarding the law,” and' under those circumstances the appellate court should defer to the trial court’s ruling. Gunter v. State, supra, at 444, quoting Farris v. State, supra, at 501. Unless we have overruled Gunter and Farris sub silentio, maintains the State, we have erred to reverse the instant conviction. And to overrule those cases, the State submits, would be inconsistent with the Supreme Court’s opinion in Wainwright v. Witt, supra. Although we believe our opinion in Gunter is distinguishable on its facts, we agree with the State that our disposition on original submission is inconsistent with our opinion in Farris . However, for reasons about to be given, we believe Farris was wrongly decided, Wainwright v. Witt notwithstanding, and hereby expressly overrule it.

In Wainwright v. Witt, supra, the Supreme Court laid to rest the infamous footnote 21 from Witherspoon v. Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968), which had been construed to require that as a predicate to exclusion of a venire *299 man on the basis of conscientious scruples against the death penalty, a state must demonstrate with “unmistakable clarity” that the venireman would “automatically” reject the possibility of imposing a sentence of death. In its stead the Supreme Court solidified the standard announced in Adams v. Texas, supra, viz: that a venireman may be challenged consistent with the Sixth Amendment upon a finding that his opposition to the death penalty would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. Of course, the Supreme Court had already made it clear in Adams itself that whatever reservations a venireman might harbor toward the death penalty could not justify excluding him, even under the “substantial impairment” standard, so long as he maintains unswervingly that his reservations will not prevent him from answering the special issues to the best of his ability in accordance with the evidence, without conscious distortion or bias. A venireman who can do this is a venireman who can do all that the law requires. 2 From the time the operation of the special issues was explained to her, venireman Brown steadfastly maintained she could take the oath and answer the special issues honestly, according to the evidence, even though to do so would violate her conscience. The record thus establishes she could follow the law; there is no basis to support a conclusion otherwise. Our holding’on original submission is therefore fully in keeping with the standard announced in Adams and reiterated in Witt .

The State argues, however, that we have failed to give the deference that is due the trial court’s conclusion that the venireman was substantially impaired. 3 According to the State, we did not take account of the entirety of Brown’s voir dire, and had we done so, we would have found ample support in the record for the trial court’s conclusion that she was substantially impaired. In particular, we failed to effectuate Brown’s statement that she could never participate in a proceeding that might eventually result in imposition of the death penalty, her frank and consistent acknowledgments that to follow her oath and answer the special issues honestly would, if her answers were affirmative, violate her moral and religious beliefs, and her failure to accept that death might ever be an acceptable penalty. At best Brown was, in the State’s assessment, a vacillating venireman. Under the aegis of Wainwright v. Witt, supra, this Court has long deferred to a trial court’s judgment about vacillating veniremen, whether that judgment is that the venireman is substantially impaired or that he is not. E.g., Perillo v. State, 758 S.W.2d 567, at 577 (Tex.Cr.App.1988). The State believes we have violated that principle here. We disagree.

It is true that Brown affirmed in response to leading questions that she could never participate in a proceeding that might result in imposition of a sentence of death. These leading questions came, however, before it was ever explained to Brown how the sentence of death is imposed in Texas. *300 From the time it was explained to her that the jury simply responds to special issues at the punishment phase, she acknowledged that even though it would be “difficult,” and that it would clearly “violate her moral and religious beliefs,” she would answer the special issues “yes” if the evidence called for it. That it would be difficult, or even that it would unquestionably violate her conscience, however, does not lend support to a finding that Brown was substantially impaired, for this is no more than a simple acknowledgment that her attitude toward the death penalty would “affect” her deliberations. Adams v. Texas, supra, 448 U.S. at 49-50 , 100 S.Ct. at 2528-2529 , 65 L.Ed.2d at 592-93 . So long as she consistently affirmed that she could in fact answer the special issues in accordance with the evidence, neither the difficulty she may have in doing so, nor the fact it might violate her conscience, renders her a “vacillating” venireman in any material sense. The dispositive question under Adams is simply whether she could follow the law, notwithstanding her staunch opposition to the death penalty. In that, Brown was unyielding — she could.

The State insists that our conclusion that Brown was not a vacillating venireman is at odds with our dispositions in Gunter and Farris . In Gunter , however, venireman Fre-de first stated she could not answer the special issues affirmatively even if the evidence convinced her she ought to. Later she answered that she could. Because she gave conflicting answers to what after Adams must be considered the dispositive question, Frede was truly a vacillating venireman. Under those circumstances it is only appropriate to defer to the trial court’s judgment. See Perillo v. State, supra. Our resolution of this cause on original submission is thus not inconsistent with the result, at least, in Gun-ter.

But our opinion in Gunter did rely in large measure for authority on Farris , and Farris is another story. In Farris venireman Good-son testified she could never “return a verdict which assessed the death penalty.” Acknowledging that it would violate her conscience to do so, Goodson nevertheless insisted she would not violate her oath to render a true verdict, and unambiguously and unwaveringly insisted she would answer the special issues honestly and in accordance with the evidence. Thus, in every material aspect her voir dire testimony was identical with venireman Brown’s in the instant cause. Yet in Farris we observed that Goodson “vacillated.” 819 S.W.2d at 501 . And in Gunter we again described Goodson as having been a vacillating venireman, and observed that deference to the trial court was the proper course in the premises. 858 S.W.2d at 443-44 . Manifestly the State is correct that our opinion on original submission in this cause is in conflict with our opinions in Gunter and Farris , notwithstanding our footnote 6, maj. op. at 296, in which we purported to distinguish Farris. We now recognize that we must either follow Farris or forsake it.

We cannot follow it. A venireman who unflinchingly insists she can answer the special issues according to the evidence does not “vacillate” when she frankly acknowledges that to do so will violate her conscience should she have to answer the questions in a way that assures death will be imposed. To defer to the trial court’s judgment that such a venireman is substantially impaired is to give the trial court carte blanche to excuse her on the basis of nothing more than what Farris characterized as “conflicting feelings regarding the law, the juror’s oath, and capital punishment!.]” 819 S.W.2d at 501 . If Adams makes anything clear, it is that “conflicting feelings” about the death penalty do not disqualify the venireman who is able to put those feelings aside and impartially serve the simple factfinding function called for under the special issues. To allow a State’s challenge for cause on any broader basis than the venireman’s ability to find facts, as the late Judge Teague put it in his dissenting opinion in Farris, supra, at 508 , “simply will not do.” Of course we defer to the trial court’s judgment when confronted with a record that reveals true equivocation or vacillation on the question whether, despite conscientious scruples against the death penalty, a venireman can abide by and follow the law. Wainwrigkt v. Witt, supra; Perillo v. State, supra. But a venireman such as Brown, who steadfastly insists she can follow the law irrespective of the damage it may do her *301 conscience, leaves nothing to the discretion of the trial court, for she has provided no basis to conclude she is challengeable for cause.

In another context Judge Teague observed that, consistent with Adams , “[a] juror may not be excluded merely because there is difficulty in resolving questions of fact, even when that difficulty is exacerbated by a sensitive conscience. Only when there is a substantial likelihood that he will balk at the task or falsify an answer should he be judged unqualified.” Hernandez v. State, 757 S.W.2d 744, at 752-53 (Tex.Cr.App.1988) (Plurality opinion). The Farris Court dismissed Hernandez in a footnote. 819 S.W.2d at 501-502, n. 3 . Later, in Fuller v. State, 829 S.W.2d 191, at 200 (Tex.Cr.App.1992), the Court consigned Hernandez to oblivion. We now expressly overrule our holding in Farris , disapprove of our reliance upon Farris in Gunter , and resurrect the above principle from Hernandez . Brown gave no indication she would “balk” at the prospect of taking her oath, nor that she might falsify answers to the special issues to protect her conscience. The record presents no basis for the trial court to conclude she was substantially impaired, and its conclusion that she was constituted an abuse of discretion. Under these circumstances it would be anomalous, to say the least, to defer to the trial court, Wainwright v. Witt notwithstanding.

Finally, the State argues that reversal of this cause is inconsistent even with the language of Adams itself. It is true that in Adams the Supreme Court observed in passing that in order to be able to follow the law in Texas a venireman in a capital ease must be able, inter alia, “to accept that in certain circumstances death is an acceptable penalty[.]” 448 U.S. at 46 , 100 S.Ct. at 2527 , 65 L.Ed.2d at 590 . But as Judge Teague cogently explained in Hernandez, supra, at 752, n. 16 , the Supreme Court to this extent has simply mischaracterized Texas law. Under former Article 37.071, V.A.C.C.P., any venireman who could answer the special issues according to the evidence, without conscious distortion or bias, could follow the law, irrespective of his willingness to “accept” the death penalty in the abstract. See n. 2, ante. As long as his rejection of the death penalty, however categorical, did not substantially impair his ability to abide by his oath to render a true verdict, it did not make him challenge-able for cause under our law. “He need not himself favor the penalty under any circumstances.” Hernandez, supra at 752 . 4

The State’s motion for rehearing is overruled.

CAMPBELL, J., dissents.

. On this score Brown testified:

“Q. Knowing that you have these deep-seated religious beliefs against the death penalty, and you have told me that you do not believe in it, if you were to serve as a juror in this case, would those feelings prevent you, or substantially impair your ability to follow your oath as a juror and render a verdict based upon the evidence and the law as given to you?

A. No.

Q. They would not?

A. (Shaking head.)

Q. In other words, you’re willing to sacrifice those beliefs?

A. Yes.

Q. You would give up those beliefs, as deep-seated as they are?

A. Yes.”

The State points to the following voir dire testimony that occurred shortly after the above as evidence that Brown in fact did believe she would be substantially impaired, notwithstanding the above:

"Q. All right. And if you took that oath it would be very difficult for you to live up to it, because of those feelings and values, would it not?

A. Yes, it would.

*298 Q. Would it impair your ability to live up to that oath?

A. Impair my ability?

Q. Uh-huh.

A. What you mean?

Q. Would it make it difficult for you to live up to that oath?

A. Yes.

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Q. It would therefore be very difficult for you, and you would have to sacrifice those moral beliefs, moral beliefs, if you were to fulfill your duty under your oath, wouldn’t it?

A. Yes.

Q. And I take it then that your ability to perform that oath would be made most difficult by your religious and moral feelings?

A. Yes.

Q. And that your duty as a juror, and your performance as a juror, would be in direct conflict with those deep-seated religious and moral feelings?

A. Yes.

Q. Ms. Brown, I think I understand exactly how you feel. I think you have made your position very clear. I'm going to go one step further with you.

Knowing what your answers of yes would be to those questions; that is, that the death penalty would be inflicted on the Defendant, in all good conscience, all good conscience, recognizing your moral and religious beliefs, is there any way that you could vote yes and not violate your moral and religious beliefs?

A. I don’t think so.”

That Brown would find her task as a juror more difficult, or that it would violate her conscience to answer special issues affirmatively when the evidence called for it, knowing it would result in the death penalty, does not establish she could not do it, or even that she would be substantially impaired in doing it. In fact, she maintained throughout, whenever asked directly, that she would not be substantially impaired, and that she could and would sacrifice her conscience if called upon as a juror, however difficult that might be.

. At the time of appellant’s trial, in 1988, Article 37.071(b) required the jury at the punishment phase of a capital case to answer two, and sometimes three special issues. The jury’s function was purely that of a factfinder, to determine whether the accused acted deliberately, was a continuing threat to society, and acted unreasonably in response to provocation, if any. The law required jurors who could serve this factfinding function without conscious distortion or bias. It required nothing more. A juror with conscientious scruples against the death penalty who could nevertheless'answer the special issues honestly and in accordance with the evidence was a juror who could follow the law. Whether the same can be said of such a juror under the current statutory regime is an open question. See n. 4, post.

. The State complains that we distorted the record in our opinion on original submission when we pointed out that the trial judge "clearly stated that he was excluding Brown because of her ‘moral and personal religious opposition to the death penally.’ ” Maj. op. at 296-297. The State makes a legitimate point here, for the trial judge just as clearly went on to state for the record that it was because he believed that Brown’s opposition “would substantially impair the performance of her duties as a juror” that he granted the State’s challenge for cause. Whatever the implication of our opinion on original submission, we do not now hold that the trial court failed to use the proper standard in judging the validity of the State's challenge for cause. Rather we hold, post, that the record does not support the trial court’s judgment that Venireman Brown was substantially impaired.

. Under the current version of Article 37.071, supra, it is arguable that categorical opposition to the death penalty can support a trial court's conclusion that a venireman is "substantially impaired” under Wainwright v. Witt, supra, at least if that opposition would cause the venireman invariably to answer the special issue required to be submitted by subsection (e) in such a way as to prevent imposition of the death penalty. Cf. Staley v. State, 887 S.W.2d 885 (Tex.Cr.App., 1994) (rehearing denied September 21, 1994) (venireman who maintained his categorical opposition to death penalty would cause him invariably to answer jury nullification instruction in satisfaction of Penry v. Lynaugh, 492 U.S. 302 , 109 S.Ct. 2934 , 106 L.Ed.2d 256 (1989), in such a way as to prohibit imposition of death sentence was properly subject to State’s challenge for cause). But under the capital punishment regime in effect at the time of appellant’s trial, in 1988, a juror had only to find facts without conscious distortion or bias. He need not have been willing to “accept” the death penalty at all in order to be capable of following the law.