holding that focus of insanity inquiry should not be on appellant's morality, but should instead be on “whether [he] *14 We overrule appellant's second issue. understood the nature and quality of his action and whether it was an act he ought to do.... By accepting and acknowledging his action was ‘illegal’ by societal standards, [Bigby] understood that others Admission of Storer's Testimony believed his conduct was ‘wrong’ ”
How later courts described this case
- holding that focus of insanity inquiry should not be on appellant's morality, but should instead be on “whether [he] *14 We overrule appellant's second issue. understood the nature and quality of his action and whether it was an act he ought to do.... By accepting and acknowledging his action was ‘illegal’ by societal standards, [Bigby] understood that others Admission of Storer's Testimony believed his conduct was ‘wrong’ ”
- holding that focus of insanity inquiry should not be on appellant’s morality, but should instead be on “whether [he] understood the nature and quality of his action and whether it was an act he ought to do.... By accepting and acknowledging his action was ‘illegal’ by societal standards, [Bigby] understood that others believed his conduct was ‘wrong’ ”
- holding that focus of insanity inquiry should be on “whether [appellant] understood the nature and quality of his action and whether it was an act he ought to do.... By accepting and acknowledging his action was ‘illegal’ by societal standards, [Bigby] understood that others believed his conduct was ‘wrong1 ”
- concluding trial court’s ruling was within zone of reasonable disagreement because evidence that defendant—who had pled insanity and did little to contest his guilt—threatened trial judge with gun and attempted to flee was highly probative of defendant’s guilt and enhanced State’s case
Written by the judges who cited it.
Later courts went against this
Overruled in part, on other grounds by Tennard v. Dretke, Director, Texas Department of Criminal Justice, Correctional Institutions Division, 542 U.S. 274 (2004)
892 S.W.2d 864, 884 (Tex. Crim. App. 1994) (explaining that evidence of flight shows a consciousness of guilt of the crime for which the defendant is on trial), overruled on other grounds by Tennard v. Dretke, 542 U.S. 274
The opinion
CLINTON, Judge,
dissenting.
Article 35.13, V.A.C.C.P., is derived from former article 632, C.C.P. 1879; also applicable to capital cases, it provided, viz:
*893 “When a juror has been held to be qualified he shall be passed to the parties, first to the state and then to defendant, for acceptance or challenge.”
The same code further contemplated an “examination” of a venire-person relating, to a challenge for cause was not confined to answers given, in that “other evidence may be heard in support of or against the challenge.” Id., article 687; O.C. 577; now Article 35.18.
The peremptory challenge, made without assigning any reason therefor, goes back to O.C. 571, which inevitably came from the English common law. See Knox v. Collins, 928 F.2d 657, at 660-661 (C.A.5 1991), and cases cited therein.
The statutory order of things remained substantially the same until 1965. * Sometime and somewhere along the way and apparently borrowing from the civil side, the Court sanctioned an “examination” of venire-persons “on their voir dire,” and it became accepted practice that parties may seek to glean information enabling them more intelligently to exercise their respective peremptory challenges. See, e.g., Reich v. State, 94 Tex.Cr.R. 449 , 251 S.W. 1072 (1928), citing civil and criminal cases; Belcher v. State, 96 Tex.Cr.R. 561 , 258 S.W. 815 (1924); Kincaid v. State, 103 Tex.Cr.R. 485 , 281 S.W. 855 (1926). Accepting a proposal recommended by the Special Committee for Revision of the Code of Criminal Procedure, the Legislature refined and codified that common practice in Article 35.17 of the 1965 code. See Interpretative Commentary and Special Commentary (common practice of individual examination in certain capital cases now written into statutes).
Therefore, as the majority correctly observes, its construction of Article 35.13 is “neither novel nor new.” Slip opinion at 18. This Court recognizes that a trial court has broad discretion “over the course of the voir dire examination,” e.g., Earhart v. State, 823 S.W.2d 607, at 623 (Tex.Cr.App.1991). Yet, it also has discerned that the statute on its face and in practice is beneficial to capital defendants in respects not accorded other defendants, not the least of which is that the former “do not have to exercise a peremptory strike against a particular venireman until the State has first decided whether to do so.” Janecka v. State, 739 S.W.2d 813, at 834 (Tex.Cr.App.1987). It follows that should the State accept the venireperson, in turn the defendant may then opt to accept or exercise challenges. Accordingly, the Court fairly consistently resisted “corruption of the peremptory strike practice” through innovative departures from the statutorily prescribed order of exercising challenges, either for cause or peremptorily. Ibid. See, e.g., Grijalva v. State, 614 S.W.2d 420, at 424 (Tex.Cr.App.1980); Pierson v. State, 614 S.W.2d 102, at 107 (Tex.Cr.App.1980); cf.; Bridge v. State, 726 S.W.2d 558, at 563-564 (Tex.Cr.App.1986); see also McClain v. State, 432 S.W.2d 73, at 75 (Tex.Cr.App.1968) (by virtue of 1967 amendment Article 35.13 applicable only to capital cases), and authorities cited therein.
*894 For these additional reasons and with such further observations, I agree that the trial court erred in imposing a regimen for voir dire in a capital case in direct contravention of the legislative mandate of Article 35.13 (qualified juror shall be passed for acceptance or challenge etc.). But I can not accept the strained exercise by the Court to justify its saying an error of such fundamental character and nature in selecting a jury to try a capital case is harmless.
Because this Court above all others should not make excuses for and thereby approve “innovative” departures from that which the Legislature commands in cases where the life of a citizen is at stake, I respectfully, stoutly dissent.
The 1925 code outlined initial statutory steps for forming a capital jury, each of which may be traced back through the 1911 and 1895 codes to the 1879 code or the Old Code, summarized as follows.
When the case is going to trial the names of the summoned jurors shall be called [and seated], Article 602 [now 35.01]. Those present shall then be sworn to answer questions touching on their service and qualifications. Article 603 [35.02]. The court shall then hear and determine excuses, and if the court deems it sufficient, the juror shall be discharged. Article 604 [35.03, § 1], [Provisions for claiming exemption and challenging array omitted]. The court shall then proceed to try the qualifications of those present who were summoned to serve as jurors in the mode prescribed. Article 611-612 [35.10, 35.12]. When such juror is held qualified, he shall be first passed to the state, and then to the defendant, for acceptance or challenge, either peremptory or for cause. Article 613 [35.13]. A peremptory challenge is made without assigning any reason therefor. Article 614 [35.14]. [Provisions of reasons and procedure for challenges for cause omitted]. After proper examination the judge shall decide all challenges without delay and argument. Article 621 [35.21],
See, e.g., Bizzell v. State, 72 Tex.Cr.R. 442 , 162 S.W. 861, at 862 (1914). Former statutes did not expressly provide for voir dire for purposes of making peremptory challenges, but as shown post such inquiries developed into a general practice that would become a statutory entitlement upon demand under the present code.