Howard v. State

OVERSTREET, Justice,

dissenting.

This case presents a Garrett problem. Garrett v. State, 851 S.W.2d 853 (Tex.Crim.App.1993). Where the State challenges a veniremember for cause and the trial court erroneously grants the challenge under Garrett , this Court has no choice but to reverse the case.

In his first point of error, appellant argues that the trial court erred in granting the State’s challenge for cause against venire-member Durling. During voir dire, Durling stated that she would require the State to prove a prior murder before she could find a defendant to be a future danger under the first special issue. The majority believes that this requirement adds an additional element to the State’s burden at trial. Majority op. at 112. Relying on this Court’s plurality opinion in Rachal v. State, 917 S.W.2d 799 (Tex.Crim.App.1996), the majority states that “potential jurors must be able to set aside their personal preferences and biases to consider death eligible all those defined as death eligible” under the law. The majority concludes that “[s]ince veniremember Durling unequivocally stated an unwillingness to set aside her view regarding death eligibility— such definition adding to the Article 37.071 statutory definition of those eligible for the death sentence in Texas — she possessed a bias against that law” and was, therefore, properly dismissed from the jury panel. Majority op. at 112.

In point of error twenty-four, appellant argues the trial court erred in granting the State’s challenge for cause against venire-member Ochoa. Ochoa agreed that violent illegal acts directed toward property were “criminal acts of violence that would constitute a continuing threat to society” under the first special issue. However, Ochoa stated that she would not answer the first special issue in the affirmative unless the State proved an act of violence directed toward people. The majority finds that “[t]he effect of this belief is that even if this venire-member believed, beyond a reasonable doubt, that a defendant presented a continuing threat to society, by virtue of a propensity to commit violent acts directed toward property, she would never answer Special Issue One Tes’ unless the State met her personal dictates.” Again relying on Rachal , the majority states that Ochoa substituted the statutory definition of those eligible for death with her “personal preferences and biases.” Majority op. at 112.

Both of these points of error are governed by Garrett . In Garrett , the defendant argued the trial court erred in granting the State’s challenge for cause against a venire-member who indicated that he could never answer the future dangerousness special issue “yes” based solely on the facts of the capital crime itself. We concluded that the refusal to find that a defendant would constitute a future danger based solely on the facts of the case did not amount to a bias against the law. This Court reasoned:

[Tjhat the law permits jurors to find future dangerousness in some cases on the facts *126 of the offense alone does not mean that all jurors must do so, or even consider doing so. A particular juror’s understanding of proof beyond a reasonable doubt may lead him to require more than the legal threshold of sufficient evidence to answer the second special issue affirmatively. There is nothing unlawful about that; in fact, quite the opposite.

Garrett, 851 S.W.2d at 859 ; see Castillo v. State, 913 S.W.2d 529, 533 (Tex.Crim.App.1995) (plurality opinion). We held “that a venireman is not subject to challenge for cause merely because he indicates that he would require more evidence than the legal minimum in order to answer special issue two affirmatively.” Garrett, 851 S.W.2d at 860 .

The principle of Garrett applies here. Durling required proof that a defendant committed a prior murder and Ochoa required proof that “criminal acts of violence” be committed against people before either of them would answer the first special issue “yes.” “If they meant that, absent a particular character of evidence, they would have a reasonable doubt whether an accused would constitute a continuing threat to society, then they have not proven themselves subject to a challenge for cause.” Rachal, 917 S.W.2d at 820 (Clinton, J., concurring). Durling and Ochoa were not challengeable for cause because they did not indicate that they would not answer the special issue affirmatively absent the State’s proof of specific evidence, even if, without that evidence, they believed beyond a reasonable doubt that appellant would constitute a future danger to society.

The challenging party has the burden to demonstrate that the veniremember he seeks to ehaEenge is in fact incapable of following the law. Hernandez v. State, 757 S.W.2d 744, 753 (Tex.Crim.App.1988) (plurality opinion), ce rt. denied, 504 U.S. 974 , 112 S.Ct. 2944 , 119 L.Ed.2d 568 (1992). In order to sustain a State’s challenge for cause on the ground that a veniremember will not find future dangerousness absent specific evidence, the State must show the trial court that the venireman’s categorical refusal is predicated upon something other than his understanding of what constitutes proof beyond a reasonable doubt. Castillo, 913 S.W.2d at 534 (plurality opinion). In the context of this case, the State needed to demonstrate that Durling and Ochoa, absent certain types of evidence, would answer the first special issue “no,” even if they believed beyond a reasonable doubt that the defendant presented a future danger. Because the State has not done so, it has failed to sustain its burden to show these venire-members could not follow the law.

Because the majority holds veniremembers Durling and Ochoa were challengeable for cause, I respectfully dissent.

CLINTON and BAIRD, JJ., join.