Farris v. State

*508 TEAGUE, Judge,

dissenting.

Appellant’s second point of error calls for a fairly straightforward application of the principles enunciated in Hernandez v. State, 757 S.W.2d 744 (Tex.Cr.App.1988). Veniremember Janice Morrison Goodson indicated that she was categorically opposed to the death penalty and would under no circumstances vote to impose it. No effort was made by defense counsel to determine whether her views might be affected by the hypothetical facts of an especially gruesome, senseless, or shocking murder. Yet Goodson insisted throughout voir dire examination that she would honestly answer questions of fact relating to deliberateness and future dangerousness, all to the best of her ability. The prosecutor made no attempt to determine whether her opposition to capital punishment would prevent or substantially impair her ability fairly and accurately to decide the special issues of fact which are entrusted to the judgment of jurors at the second phase of a capital murder trial, and the trial judge made no such finding.

This case thus provides graphic illustration of two radically different viewpoints concerning the qualification of venireper-sons for service on a capital jury in Texas. The prosecutor in this cause evidently believed that an inability to impose the death penalty under any circumstances automatically subjects a venireperson to a challenge for cause. The defense attorney, on the other hand, maintained that such opposition disqualifies a potential juror only when such person is thereby rendered unable to decide or is substantially impaired in . his ability honestly to decide critical questions of fact. For the reasons elaborated at length in Hernandez , the second view is a correct understanding of the law.

The majority’s failure to apply this law in even-handed fashion holds for naught one of the soundest and most enduring rules of jury selection in this State — that a venire-member’s personal view of the law is immaterial so long as he is willing and able during his official deliberations as a juror conscientiously to apply the law imparted by the court’s instructions. Indeed, in Sat-tiewhite v. State, 786 S.W.2d 271, 279-281 (Tex.Cr.App.1989), this Court even held that a prospective juror who discerns no difference between the terms “deliberate” and “intentional” is nevertheless qualified for jury service in spite of what would otherwise be a challengeable viewpoint so long as he affirms during voir dire that he will “follow the law.” Yet veniremember Goodson, who affirmed precisely the same thing in the instant cause, is thought by the Court to be vacillating. This simply will not do.

As in other contexts, a citizen’s personal support for or opposition to the law ultimately has very little to do with his qualifications for jury service. If put to a popular vote, I daresay that a significant part of the population would favor the repeal or amendment of many statutes. Yet these people are not thereby disqualified from jury service. Thus, even if a state senator or representative actually voted in the legislature to eliminate the defense of insanity, for example, we would not hold him automatically challengeable for cause in any criminal trial where the defense of insanity might be raised. Only if his personal views were such that he could not or would not fairly apply the law of insanity to the case at hand would a challenge to his service on this ground properly be sustained.

This Court has evidently lost sight of the fact that these principles apply with equal force to a veniremember’s personal view of the death penalty. One might have expected that a fair reading of Wainwright v. Witt, 469 U.S. 412 , 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985), to say nothing of Adams v. Texas, 448 U.S. 38 , 100 S.Ct. 2521 , 65 L.Ed.2d 581 (1980) and Wither-spoon v. Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968), would convince even a casual student of constitutional law that opponents of capital punishment are not automatically excludable from capital juries. But the lesson has not been learned even by the judges of Texas’s highest court. And the message which they now send to the trial courts of this State is that anyone who personally opposes the death penalty may with complete impunity be barred from jury service in any capital case upon request of the prosecuting attorney.

*509 I say “anyone” because the majority admits that Goodson “consistently” affirmed that she would follow the law in spite of her opposition to capital punishment and that she would give honest answers to the statutory questions submitted for her consideration at the punishment phase of trial. The majority admits that “Goodson understood her responsibilities as a juror and said she would not violate her oath[.]” The majority also acknowledges that in spite of her disagreement with the law Goodson repeatedly averred that “if she were selected as a juror she would have no choice but to follow it.” The Court never so much as intimates that Goodson ever gave an answer from which any contrary inference could be drawn. In short, the majority approves her exclusion from jury service on account of her opposition to the death penalty, and for no other reason. Doing so is contrary to the United States Constitution and to Texas law as I understand it. Moreover, the error cannot be harmless beyond reasonable doubt. Gray v. Mississippi, 481 U.S. 648 , 107 S.Ct. 2045 , 95 L.Ed.2d 622 (1987). Also cf. Harris v. State, 790 S.W.2d 568 (Tex.Cr.App.1990).

Because it is the burden of the party moving for exclusion to produce evidence of substantial impairment, and because the record in this cause contains no evidence from which it might be inferred that Good-son was at all impaired in her ability to decide material questions of fact, it was error to sustain the State’s challenge for cause against her.

It should be noted that the trial judge, in excluding Goodson, caused the record to reflect that he relied upon her demeanor during voir dire. He did not, however, specify in the record the circumstances surrounding her demeanor which moved him to conclude that she was excludable for cause. The prudent defense attorney, later produced testimony indicating that Good-son’s demeanor was calm, collected, and attentive throughout questioning. As we noted in Hernandez , the demeanor of a prospective juror should form a significant part of this Court’s appellate review only when the record itself discloses ambivalence, equivocation, or vacillation by the venireperson in question, or when the evidence is ambiguous or conflicting on the issue of such venireperson’s qualifications for jury service. None of these circumstances are reflected by the record in this cause, and the Court therefore errs in deferring to the trial judge’s observation of Goodman’s demeanor as justification for sustaining the State’s challenge for cause.

Students of this Court, if any remain after its years of abject inconsistency, will no doubt be amazed that the majority opinion in this case so fully sets forth the voir dire examination of Goodson before approving her exclusion. There is unambiguously revealed a woman who manages to keep in balance both personal conscience and public responsibility. And there is also revealed a number of lawyers on and off the bench who, perhaps because of this Court’s past folly, have evidently lost sight of the real world. Their myopia is best illustrated by the final colloquy between Goodson and the prosecutor immediately before she was excused.

“[I]f you don’t agree with this law,” the prosecutor moaned in frustration, “that’s all we are asking you. If you will just tell us, you can go home.”

“Pardon me for saying so,” Goodson replied with uncommon patience, “but I have said so for several times that I don’t agree with it.”

So the trial judge let her go home. He did it because she didn’t “agree with this law” that murderers should sometimes be put to death. He did it even though he had no reason to suppose that she would not give him honest answers to the special issues if called upon to do so. He did it in spite of her unconditional promise to follow the law. He did it only because she was personally opposed to the death penalty. And this Court, in violation of the United States Constitution, here holds that it was within his discretion to do so.

I dissent.

CLINTON, J., joins in dissent of TEAGUE, J.