# Howard v. State

> Court of Criminal Appeals of Texas · December 18, 1996 · 941 S.W.2d 102

URL: https://www.frixlaw.com/law-library/cases/9682162

## Case

- **Full name:** Ronald Ray HOWARD, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** December 18, 1996
- **Citations:** 941 S.W.2d 102; 1996 Tex. Crim. App. LEXIS 252; 1996 WL 333686
- **Precedential status:** Published
- **Opinion:** On rehearing by Clinton
- **Judges:** Overstreet, Clinton, Baird, McCormick, State, Maloney, Ochoa, Court'S, White, Mansfield, Keller
- **Cited by:** 312 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Easley, Damian Demitrius, 2014 Tex. Crim. App. LEXIS 272 (2014).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9682162

## How later opinions describe it (automated extraction)

- stating that "[i]f the record at bar indicated some overt conduct or expression, or perhaps a higher ratio of police officers, or even perhaps some indication that the law-enforcement contingency gravitated toward the jury, then there might be some basis for appellant's argume…
- declining to go outside the record and find that police presence in the courtroom was per se prejudicial when the record merely reflected that defense counsel had objected the police presence but failed to state how that presence was inherently prejudicial
- finding that where appellant was allowed to question jurors regarding the substance of the restricted questions, albeit in a different form, there was no abuse of discretion
- holding that no inherent prejudice existed where twenty uniformed police officers were spectators in back of courtroom in trial of defendant for murder of state trooper

## Opinion text

OPINION ON APPELLANT’S MOTION FOR REHEARING
CLINTON, Judge.
We granted rehearing in this cause in order to re-examine appellant’s points of error one and twenty-four, whereby he contended the trial court erred in granting State’s challenges for cause against veniremen Durling and Ochoa, respectively. Appellant contends that our disposition of these points of error on original submission conflicts with our holding in Garrett v. State, 851 S.W.2d 853 (Tex.Cr.App.1993). On closer scrutiny we reaffirm our conclusion that the trial court did not err in granting the State’s challenge for cause against venireman Ochoa. However, we conclude that the State failed to sustain its burden to establish venireman Dur-ling was challengeable for cause, and that the trial court erred to grant the State’s challenge against her. Accordingly, we will vacate the judgment of the trial court and remand the cause for a new punishment proceeding. Article 44.29(e), V.A.C.C.P.; Ransom v. State, 920 S.W.2d 288 (Tex.Cr.App.1996) (Opinion on State’s motion for rehearing).
Venireman Ochoa made it clear that she believed that crimes of destruction against property constitute “criminal acts of violence” for purposes of the special issue in Article 37.071, Section 2(b)(1). But she asserted that even if evidence of such crimes against property convinced her that appellant *127 would “constitute a continuing threat to society,” she could not bring herself to answer the special issue in such a way as to permit imposition of the death penalty. Thus she proved herself to be analogous to the hypothetical venireman we discussed in our plurality opinion in Castillo v. State, 913 S.W.2d 529, at 533-84 (Tex.Cr.App.1995). There we declared that a venireman who refuses to convict an accused on the basis of a single witness’ testimony, even if that witness’ testimony convince him beyond a reasonable doubt of the accused’s guilt, was properly challengeable for cause for harboring a bias against a phase of the law upon which the State is entitled to rely. Article 35.16(b)(3), V.A.C.C.P. Similarly, venireman Ochoa maintained that, even if the evidence convinced her appellant would commit future acts of violence constituting a continuing threat to society, she would not answer the special issue affirmatively if the evidence that so convinced her was comprised solely of offenses against property. As with the hypothetical venireman in Castillo , Ochoa thus would require the State to prove something different than the law requires. She betrayed “an agenda of [her] own for [answering the special issue], but one which bears no relation to the law.” Id., at 533-34 . At one point appellant’s counsel was able to persuade Ochoa that she might be willing to affirmatively answer the special issue on the basis of property offenses alone, but only on the assumption that such offenses would cause at least psychological damage to people. On further questioning by the prosecutor, however, Ochoa returned to her categorical assertion she could never answer the special issue favorably to the State on the basis of property crimes alone, even if that evidence served to convince her appellant would commit future acts of criminal violence that would constitute a continuing threat to society. In the face of this vacillation, we defer to the trial court’s judgment that Ochoa was substantially impaired in her ability to follow the law. Perillo v. State, 758 S.W.2d 567, at 577 (Tex.Cr.App.1988). For these reasons we were correct to conclude on original submission that the trial court did not abuse its discretion in granting the State’s challenge for cause against venireman Ochoa. 1
Venireman Durling, however, is another matter. True, she asserted that she could never answer the future dangerousness issue in the affirmative without evidence the accused had committed a prior murder. But the State did not ask Durling whether she would refuse to answer “yes” sans a prior murder even if other evidence were sufficient to convince her beyond a reasonable doubt (or to any level of confidence) that appellant would commit future acts of violence that would constitute a continuing threat to society. Thus the record does not disclose whether or not Durling’s assertion was merely a prediction that without evidence of a prior murder she would not likely be convinced of future dangerousness beyond a reasonable doubt, or a categorical refusal to answer “yes” even if other evidence could convince her of appellant’s future dangerousness to that level of confidence. Only in the latter even that she shown herself susceptible to a challenge for cause. It is the State’s burden, as the challenging party, to show that Durling’s refusal “is predicated upon something other than [her] understanding of proof beyond a reasonable doubt.” Castillo v. State, supra, at 534. Because the State did not satisfy that burden here, the trial *128 court abused its discretion to grant the State’s challenge against Durling.
On original submission the Court found “instructive” our recent plurality opinion in Rachal v. State, 917 S.W.2d 799 (Tex.Cr.App.1996). There the plurality “reaffirmed” earlier holdings that:
“potential jurors must be able to set aside their personal preferences and biases to consider as death eligible all those defined as death eligible by Section 19.03 of the Texas Penal Code and Article 37.071 of the Texas Code of Criminal Procedure. Potential jurors may believe what they want regarding the death penalty, including the quantum of evidence they will require to impose a death sentence. But, jurors may not substitute legal categories of death eligibility with their personal preferences and biases and thereby place themselves above the law.”
Id., at 812-13 (footnotes and citations omitted). The Rachal plurality relied in large measure on Fuller v. State, 829 S.W.2d 191, at 200 (Tex.Cr.App.1992), for this proposition that potential jurors must be able to accept the law’s definition of death eligibility. It is certainly true, as both Rachal and Fuller suggest, that a venireman who says he would never, for example, vote to convict an accused of capital murder because he does not accept murder in the course of a burglary as a valid criteria for a sentence of death, notwithstanding Section 19.03(a)(2) of the Penal Code, has demonstrated himself to be chal-lengeable for cause. But the reason he is challengeable is not per se his inability to accept the law’s criteria for death eligibility in the abstract. He is challengeable, rather, because he is likely to pay heed to his own conception of what the law ought to be rather than follow the legal criteria. Plainly put, his disagreement with the law will prevent him from following it. That appears to have been the case in Fuller , where the venireman indicated she could only assess the death penalty for serial killers. 2 It was unquestionably the case in Rachal , where the veniremen testified, much like venireman Ochoa in the instant ease, that they could never answer special issues affirmatively absent a particular character of evidence, even if other evidence convinced them beyond a reasonable doubt the special issues should be answered “yes.”
But disagreement with the legal criteria for death eligibility, without a further showing of consequent inability to follow the law, will not suffice to establish a challenge for cause. This was underscored by the majority opinion in Riley v. State, 889 S.W.2d 290 (Tex.Cr.App.1994) (Opinion on State’s motion for rehearing). There we observed:
“Under former Article 37.071, [supra], any venireman who could answer the special issues according to the evidence, without conscious distortion or bias, could follow the law, irrespective of his willingness to *129 ‘accept’ the death penalty in the abstract. As long as his rejection of the death penalty, however categorical, did not substantially impair his ability to abide by his oath to render a true verdict, it did not make him challengeable for cause under our law. ‘He need not himself favor the penalty under any circumstances.’ Hernandez [v. State, 757 S.W.2d 744 ,] at 752 [(Tex.Cr.App.1988) (Plurality opinion) ].”
Id., at 801 . Thus we have made it clear that potential jurors need not agree with the law in order to be able to follow it. A venireman has not shown he will “substitute” his “personal preferences and biases” about what the law ought to be unless and until he indicates it is his “personal preferences and biases” he will apply in the jury room, rather than the law. This is as true of the law defining death eligibility as any other aspect of the law. A venireman who would require proof of a prior murder before he would be willing under any circumstances personally to assess a death sentence may yet be capable of putting that personal attitude behind him and answering special issues in accordance with the evidence, come what may. Until the State establishes otherwise, it has not shown the venireman to be challengeable for cause on account of an inability to follow the law. Id.
In any event, in saying she would need proof of a prior murder before she could find future dangerousness, Durling did not indicate a disagreement with the law’s definition of death eligibility. She demonstrated no “personal preference or bias” that was at odds with the law. A venireman who predicts he would require proof of a prior murder before he would be convinced beyond a reasonable doubt that the accused would commit criminal acts of violence that would constitute a continuing threat to society is not a venireman who has shown he cannot render a true verdict consistent with the law’s contemplation of death eligibility. “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 [future dangerousness] special issue affirmatively. There is nothing unlawful about that; in fact, quite the opposite.” Garrett v. State, supra, at 859. “A venireperson is not challengeable when he says he would never answer the [future dangerousness] special issue affirmatively without evidence of a prior murder if by that he simply means he does not think the State can convince him beyond a reasonable doubt that the accused will pose a future danger without such evidence.” Rachal v. State, supra, at 821 (Clinton, J., concurring, joined by Baird and Meyers, JJ.). A venireman who requires evidence of a prior murder has not demonstrated an inability to abide by the law if his requirement is predicated upon his personal threshold of reasonable doubt. The State must show more, viz: that the venireman’s insistence on evidence of a prior murder will prevent him from honestly answering the special issue regardless of whether he was otherwise convinced beyond a reasonable doubt of future dangerousness, before it can be said it has met its burden to demonstrate the venireman cannot follow the law. Castillo v. State, supra, at 534.
The judgment of the trial court is vacated and the cause remanded to that court for a new punishment hearing. Article 44.29(c), supra; Ransom v. State, supra.
BAIRD, J., concurs. I concur in that portion of Judge Clinton’s opinion relating to veniremember Durling for the reasons stated on original submission, See Howard v. State, 941 S.W.2d 102, 126 (Tex.Cr.App.1996) (CLINTON, BAIRD and MALONEY, JJ., dissenting). However, because we sustain that portion of the motion for rehearing, there is no need to address the propriety of the trial judge’s excusal for cause of venire-member Ochoa. Therefore, that portion of the motion for rehearing should be dismissed. With these comments, I join only the judgment of the Court.
McCORMICK, P.J., dissents with the following note: I dissent to the Court’s disposition of point of error one for the reasons set out in my dissenting opinion in Zinger v. State, 932 S.W.2d 511, 516-18 (Tex.Cr.App.1996) (McCormick, P.J., dissenting).
MALONEY, J., I disagree with the Court’s disposition as to venireman Ochoa because the State did not demonstrate that Ochoa, absent certain types of evidence, would answer the first special issue “no,” even if she believed beyond a reasonable *130 doubt that the defendant presented a future danger. I otherwise join the Court’s opinion.
WHITE, MANSFIELD and KELLER, JJ., dissent.
. Ochoa did not say, and the State did not ask her, whether she would be unable to answer the future dangerous special issue "yes” on the basis of property crimes alone even if those crimes convinced her beyond a reasonable doubt that appellant would commit criminal acts of violence that would constitute a continuing threat to society. There remains, therefore, perhaps a remote chance that Ochoa's inability to answer the special issue affirmatively was predicated upon her personal threshold of reasonable doubt. Such a venireman is not challengeable for cause. Garrett v. State, supra, at 859; Castillo v. State, supra, at 533. We think the State’s questioning was specific enough, however, to justify a trial court's inference that the venireman would be substantially impaired. That she would not answer “yes” to the future dangerousness issue even if convinced to some unspecified level of confidence that appellant would constitute a continuing threat to society is enough to support the conclusion that there is a substantial likelihood she would "balk” at the task of honestly answering the question, irrespective of the applicable level of confidence. See Riley v. State, supra, at 301.
. It appears in Fuller that the State failed to question the venireman whether her personal requirement that a capital accused be proven a serial killer before she would "consider capital punishment” would cause her either to vote to acquit at the guilt phase of trial or distort her answer to a special issue at the punishment phase. Thus it is impossible to tell whether her own personal preference or bias would likely prevent her from following the law. We opined in Fuller that such specific questioning was no longer "a prerequisite to the exclusion of a prospective juror for bias or prejudice against the death penalty. See Farris v. State, 811 S.W.2d 577 (Tex.Cr.App.1991).” 829 S.W.2d at 200 . But this notion, taken from Farris , that the proponent of a challenge for cause need not ask questions designed to show that an apparent bias against the law will be so great as to cause the prospective juror to heed his prejudice rather than follow the law, was roundly rejected by our subsequent opinion in Riley v. State, 889 S.W.2d 290, at 300-301 (Tex.Cr.App.1994) (Opinion on State’s motion for rehearing). Since Riley it has been observed:
"Of course, a venireperson’s attitude about when capital punishment is appropriate cannot take precedence over what the law defines as death-eligibility. In order to meet its burden to show a venireman will in fact allow his attitude to take precedence over the law, however, the State must explain the law to him, and ask him whether, given his 'conflicting views’ he can abide by it. In Fuller , the State did not ask these questions of venireperson White. After Riley , that 'neither party took the time to explore [White’s] views with a precision sufficient to resolve the ambiguity!,]’ see Fuller, supra, at 201 , must cut against the party with the burden, the challenging party, namely, the State.”
Rachal v. State, supra at 823 (Clinton, J., concurring, joined by Baird and Meyers, JJ.).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9682162. Public record. Not legal advice.