Crawford v. State

OPINION ON APPELLANT’S MOTION FOR REHEARING

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for capital murder. Following his plea of guilty, the court instructed the jury to return a verdict of guilty. The jury then answered “yes” to the first two questions under Art. 37.071(b) and punishment was assessed at death.

Appellant contends the court erred in sustaining the State’s challenge for cause to prospective juror Matha Stulce. The record reflects that the State’s challenge was based upon V.T.C.A. Penal Code, Sec. 12.-31(b). 1 On original submission, it was held that appellant’s failure to object to the alleged improper exclusion of Stulce waived the error for purposes of appeal.

This Court has consistently held that the failure to object to the improper exclusion of a prospective juror in a capital murder trial, waives the error for purposes of appeal. 2 In Boulware v. State, 542 S.W.2d 677 , this Court stated the following:

“In view of the recent decisions of the Supreme Court of the United States that a constitutional guarantee may be waived by a defendant’s counsel for the failure to object such as to the improper organization of a grand jury at the trial level and our decisions above discussed on waiver, we hold that the failure to object to the improper exclusion of a venire member waives that right and it cannot be considered on appeal. Hovila v. State, [ 532 S.W.2d 243 ] and all cases insofar as they hold to the contrary are overruled. See also Tezend v. State, [ 484 S.W.2d 374 (Tex.Cr.App.)].

“We hold that, absent an objection, the trial court did not err in excusing the jurors, Hurse and Holt, even though they were not questioned as thoroughly as they might have been with reference to their ability to render the death penalty no matter what the trial may reveal.” Id. at 682 and 683.

The Supreme Court of California recently considered similar issues in People v. Velasquez, 26 Cal.3d 425 , 162 Cal.Rptr. 306 , 606 P.2d 341 (1980) and People v. Lanphear, 26 Cal.3d 814 , 163 Cal.Rptr. 601 , 608 P.2d 689 (1980). In those cases, the defendants were convicted of murder and sentenced to death. The convictions were reversed on appeal after the Court concluded that prospective jurors had been excused in violation of Witherspoon v. Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968). The Court rejected the State’s contention that the defendants’ failure to object to the ex-cusal of the jurors waived the Witherspoon error. The State then appealed and in California v. Velasquez, 448 U.S. 903 , 100 S.Ct. 3042 , 65 L.Ed.2d 1132 (1980) and California v. Lanphear, 448 U.S. -, 101 S.Ct. 57 , 66 *940 L.Ed.2d 13 (1980), the Supreme Court of the United States vacated and remanded the causes for further consideration in light of Adams v. Texas, 448 U.S. 38 , 100 S.Ct. 2521 , 65 L.Ed.2d 581 (1980).

In Adams , the Supreme Court recited the factual setting of the case in the following manner, “[o]n the State’s submission and over petitioner’s objections, the trial judge excused a number of prospective jurors who were unwilling or unable to take the Sec. 12.31(b) oath.” (Emphasis is added). The Court ultimately concluded that Sec. 12.-31(b), supra, had been applied in Adams’ trial to exclude prospective jurors on grounds impermissible under Witherspoon .

Appellant urges that his failure to object to Stulce’s exclusion on April 12, 1977, should be excused in light of the fact that Adams v. Texas, supra, was not decided until June 25, 1980. This Court has previously held that where a defect of constitutional magnitude has not been established at the time of trial, the failure of counsel to object does not constitute waiver. Ex Parte Sanders, 588 S.W.2d 383 (Tex.Cr.App.); Ex Parte Casarez, 508 S.W.2d 620 (Tex.Cr.App.); Ex Parte Taylor, 484 S.W.2d 748 (Tex.Cr.App.). Such a holding is bottomed on the premise that there was no tactical or logical reason for counsel’s failure to object other than the fact that the defect had not been established at the time of trial.

In order for this Court to excuse appellant’s failure to object to Stulce’s exclusion, we would be required to assume that the prospective juror was acceptable to appellant in every respect and negate the possibility that appellant looked with favor on the court’s action in excusing the venireman. Such an assumption would further require speculation that appellant would not challenge her for cause under Art. 35.-16, V.A.C.C.P., and that he found Stulce’s age, sex, race, occupation, religious preference, marital status, prior jury service etc., acceptable to the extent that he would not have used a peremptory strike against her. Even if we speculate that appellant would not have challenged Stulce for cause or exercised a peremptory challenge on her, we cannot assume that he would have desired to have her as one of the twelve jurors (from the entire panel) who was to render a verdict in his case. We cannot conclude that the only reason appellant failed to object to the exclusion of Stulce was the as yet unestablished defect as found in Adams v. Texas, supra.

We therefore find that appellant may not complain of the exclusion of prospective juror Stulce for the first time on appeal. The appellant’s motion for rehearing is .denied.

ROBERTS, J., dissents for reasons given in his dissenting opinion on original submission.

. That statute provides as follows:

“Prospective jurors shall be informed that a sentence of life imprisonment or death is mandatory on conviction of a capital felony. A prospective juror shall be disqualified from serving as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact.”

. See White v. State, 610 S.W.2d 504 (Tex.Cr.App.); Brandon v. State, 599 S.W.2d 567 (Tex. Cr.App.); Russell v. State, 598 S.W.2d 238 (Tex.Cr.App.); Esquivel v. State, 595 S.W.2d 516 (Tex.Cr.App.); Burks v. State, 583 S.W.2d 389 (Tex.Cr.App.); Earvin v. State, 582 S.W.2d 794 (Tex.Cr.App.); Von Byrd v. State, 569 S.W.2d 883 (Tex.Cr.App.); Hughes v. State, 562 S.W.2d 857 (Tex.Cr.App.); Hovila v. State, 562 S.W.2d 243 (Tex.Cr.App.); Burns v. State, 556 S.W.2d 270 (Tex.Cr.App.); Shippy v. State, 556 S.W.2d 246 (Tex.Cr.App.); Granviel v. State, 552 S.W.2d 107 (Tex.Cr.App.); Boulware v. State, 542 S.W.2d 677 (Tex.Cr.App.).