# Crawford v. State > Court of Criminal Appeals of Texas · July 16, 1980 · 617 S.W.2d 925 URL: https://www.frixlaw.com/law-library/cases/9675684 ## Case - **Full name:** Murriel CRAWFORD, Jr., Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** July 16, 1980 - **Citations:** 617 S.W.2d 925; 1980 Tex. Crim. App. LEXIS 1291 - **Precedential status:** Published - **Opinion:** Dissent by Roberts - **Judges:** Douglas, Phillips, Davis, Clinton, Roberts, Teague - **Cited by:** 77 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/9675684 ## Opinion text ROBERTS, Judge, dissenting. Venire woman Stulce could not have been excused properly; she stated unequivocally that she could consider giving the death penalty, and the only ground for excusing her was. a misapplication of Section 12.31(b) of the Penal Code. “Q. You cannot state that? [The “oath” of Sec. 12.31(b)] “A. No. “Q. You would think about what the effect of your answers were, and that *938 would necessarily intrude on your decision of how to answer those issues? “A. Right. “Q. That’s just human, isn’t it? “A. Yes. “Q. So, actually, you cannot state under oath that your deliberations would not be affected? “A. No. “Q. We understand each other, don’t we? “A. I think. “MR. CURTIS: Your Honor, we would respectfully challenge for cause based on Section 12.31.” This is the very thing that the Constitution forbids. “Such a test could, and did, exclude jurors who stated that they would be ‘affected’ by the possibility of the death penalty, but who apparently meant only that the potentially lethal consequences of their decision would invest their deliberations with greater seriousness and gravity or would involve them emotionally.” Adams v. Texas, 448 U.S. 38, 49 , 100 S.Ct. 2521, 2528 , 65 L.Ed.2d 581 (1980). Even worse, when defense counsel tried to question the juror on the crucial difference between being “affected” generally and failing to answer the special issues impartially * (see Adams v. Texas, supra), the court twice sustained the State’s objections to the questions because they departed from the statutory language. As Adams v. Texas teaches, it is necessary to go behind the statutory language if misapplication is to be avoided. In the face of this error the Court today holds that the question was waived because “no objection was raised.” To begin with, the appellant twice asked questions which illustrated the improper application of Section 12.31(b), and objections to his questions were sustained both times. This was sufficient to call the court’s attention to its error, and it was better‘than an objection would have been. It is simply fantastic to say that the appellant, who was struggling to show the trial court that the juror could not be excused under the proper interpretation of Section 12.31(b), waived this ground or even made a procedural bypass of it. In the second place, the Court can impose this waiver doctrine only by talking out of both sides of its constitutional mouth. On October 6, 1976, we held that there was no merit to an objection that it was improper to excuse a Witherspoon -qualified juror on the broader ground of Section 12.31(b). Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.). Jury selection in this case began six months later (April 11, 1977). Now the Court holds that the appellant was at fault for not raising an objection that we had six months earlier held to be legally worthless. At the least it is ungracious of us to require defense counsel to recognize merit in an argument when we could not; at worst, it denies him due process and due course of law on appeal. It is tantamount to saying that our opinions on constitutional law are so notoriously untrustworthy that attorneys are not justified in following them. Finally, I am not persuaded that our waiver doctrine is any better than was our mistaken holding on Section 12.31(b). It rose in Boulware v. State, 542 S.W.2d 677 (Tex.Cr.App.1976), on two legs: waiver and harmless error. The harmless error leg was knocked down promptly in Davis v. Georgia, 429 U.S. 122 , 97 S.Ct. 399 , 50 L.Ed.2d 399 (1976). The waiver leg rests on the theories that defendants should not be allowed to “sandbag” trial judges and that counsel may deliberately choose, for tactical reasons, to waive certain rights. As I already have said, it is fantastic to say that this appellant was hiding his objections from the trial court; he was trying to ask questions to advance his (correct) theory, and the trial court rejected him. No tactical choice could have been involved. In any event, it is by no means clear that this doctrine of waiver by failure to object applies to Witherspoon error. See Wigglesworth v. Ohio, 403 U.S. *939 947 , 97 S.Ct. 2284 , 29 L.Ed.2d 857 (1971) (reversing decision which held that Wither-spoon error was waived). This error affects the very fact-finders; it is not like an improper grand jury venire or the trying of a defendant in a jail uniform. We have decided this question of waiver in an off-handed manner only three weeks after the decision in Adams v. Texas, 448 U.S. 38 , 100 S.Ct. 2521 , 65 L.Ed.2d 581 (No. 79-5175, 1980). It should receive full consideration, but it has not. I dissent. PHILLIPS, J., joins in this dissent. “Can’t you answer that factual question honestly, even though you know the effect of your answers?” Counsel also asked, “Do I take it by your answer that knowing the effect of your answer means that you couldn’t answer it with complete integrity?” The court rejected the question as irrelevant. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9675684. Public record. Not legal advice.