finding, in similar circumstances, sufficient evidence that an officer was acting in the lawful discharge of an official duty while investigating a suspicious circumstance in uniform and driving an official patrol vehicle
How later courts described this case
- finding, in similar circumstances, sufficient evidence that an officer was acting in the lawful discharge of an official duty while investigating a suspicious circumstance in uniform and driving an official patrol vehicle
- prospective juror who admitted that her feelings against the death penalty would "affect" or "influence" her deliberation on the punishment issues, but who also repeatedly stated that she would follow the law and answer the punishment issues based on the evidence and the law, was not challengeable for cause
- “[A]ny 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.”
- op. on reh = g
Written by the judges who cited it.
The opinion
DISSENTING OPINION ON STATE’S MOTION FOR REHEARING
WHITE, Judge,
dissenting.
I dissent to the majority’s decision to overrule the State’s motion for rehearing in the instant cause, to the majority’s decision to overrule this Court’s holding in Farris v. State, 819 S.W.2d 490 (Tex.Cr.App.1990), and to the majority’s disapproval of this Court’s reliance upon Farris in Gunter v. State, 858 S.W.2d 430 (Tex.Cr.App.1993).
In its motion for rehearing, the State argues “a review of Brown’s entire testimony reveals she testified that her opposition to the death penalty would prevent her from participating in any proceeding in which the death penalty was assessed, stated that her views would impair her ability to follow her *302 oath, and indicated she was not willing to accept that in certain circumstances death is an acceptable penalty.” The State contends this Court’s decision on original submission “cannot be squared with this Court’s previous decisions,” citing Gunter v. State, Vuong v. State, 830 S.W.2d 929 (Tex.Cr.App.1992); and Farris v. State; among others. The majority, conceding that Brown’s voir dire in the instant cause cannot be distinguished from the voir dire of venireperson Goodson in Farris , resolves the State’s contention by overruling our holding in Farris and claiming that Gunter is distinguishable on the facts.
I disagree with the majority’s assessment of the voir dire of Brown in the instant case and of Goodson in Fams, and the comparison to the voir dire in Gunter. In each of these cases, the record of the testimony of the venirepersons in question revealed their conflicting answers which demonstrated their equivocation, vacillation and uncertainty. In our review of the records of these three cases, we are obligated to “defer to the trial judge who had the opportunity to observe and evaluate components that are insightful to the juror’s views but which are not reflected on the face of the record, such as demeanor, inflection, and expression.” Cooks v. State, 844 S.W.2d 697, at 713-715 (Tex.Cr.App.1992).
A method of review, as set out in Gunter, Farris, Vuong and Cooks , would be in line with the precedent set by the Court in Wainwright v. Witt, 469 U.S. 412 , 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985) and Adams v. Texas, 448 U.S. 38 , 100 S.Ct. 2521 , 65 L.Ed.2d 581 (1980). When faced with a record where a venireperson has given conflicting answers, thereby demonstrating equivocation, vacillation or uncertainty, this Court should grant considerable deference to the decision of the trial court who had the opportunity to directly observe the demeanor of the venireperson. Until today, this has been the method relied upon by this Court. See Goodwin v. State, 799 S.W.2d 719, at 731 (Tex.Cr.App.1990); Farris v. State, 819 S.W.2d at 501 ; Vuong v. State, 830 S.W.2d at 943 , and cases cited therein; Cooks v. State, 844 S.W.2d 697, at 713-715 ; and Gunter v. State, 858 S.W.2d at 443 .
The majority’s decision today represents not only a breach of stare decisis, but a return to the days when this Court engaged in appellate re-evaluation of voir dire records in a dangerous revisionist approach to the assessment of the rulings of trial courts. In those days this Court chose to ignore what it personally could not witness or evaluate: the credibility and demeanor of the members of a venire. Instead this Court exalted the superiority of cold, one-dimensional records of voir dire proceedings above any deference to the position and experience of the members of the trial bench. With its decision to return to those days, the majority usurps the authority of trial courts to assess the ability of venirepersons to perform their duties.
The majority’s decision creates problems for trial courts. They are now faced with the prospect of our being predisposed to second-guess their decisions on voir dire. No matter what degree of equivocation and conflict exists in the answers, demeanor, inflection, and expression of a venireperson, no matter how much these factors convince the trial court that the venireperson would be substantially impaired in his performance of his duties as a juror in accordance with his oaths and instructions, if the record reveals even one hesitant, assenting nod to a question of whether the venireperson could follow his oath, this Court will, on its own, rule that venireperson to be acceptable and hold any ruling otherwise to be in error.
For these reasons, I respectfully dissent to the majority’s decision to overrule the State’s motion for rehearing.
McCORMICK, P.J., and MILLER, J., join this dissent.