Zinger v. State

MEYERS, Judge,

concurring.

I agree that exclusion of veniremember Gatling was contrary to the rule announced by our opinions in Garrett v. State, 851 S.W.2d 853 (Tex.Crim.App.1993) and Castillo v. State, 913 S.W.2d 529 (Tex.Crim.App.1995). No prospective juror may be excluded for cause from jury service just because he is sure that the testimony of a single witness will not convince him beyond reasonable doubt of the defendant’s guilt. He is *515 excludable only if he states, as another veniremember did in this case, “I doubt I could be convinced beyond reasonable doubt with only one witness, but even if I was convinced, I still could not convict that person.”

Gatling’s testimony makes it clear that he did not think he could ever be convinced of guilt beyond reasonable doubt by a single prosecution witness, but nowhere so much as suggests that he would acquit even if he were. Under our precedents, therefore, reversal of the conviction in this cause is not only required, but unremarkable.

Nevertheless, application of the Garrett/Castillo rule in new cases continues to be painful, and a few words of sympathy are in order. I am always struck by the incurability of jury selection error once the trial begins, and often find it regrettable that a conviction must be reversed for mistakes which might not actually have affected the verdict. But we are committed by Rule 81(b)(2) of our Rules of Appellate Procedure to reverse all judgments under review if error was committed at trial unless we “deter-minen beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.” This is a high level of confidence, and one which can never be met in the case of jury selection error because the task is intrinsically too speculative. See Marin v. State, 851 S.W.2d 275 (Tex.Crim.App.1993); Nunfio v. State, 808 S.W.2d 482 (Tex.Crim.App.1991); Sodipo v. State, 815 S.W.2d 551 (Tex.Crim.App.1990). We cannot know with any certainty, let alone beyond reasonable doubt, whether appellant would have been convicted had Gatling served on his jury. We cannot know whether the State would have used a peremptory strike against Gatling had its challenge for cause been overruled, nor who would have served in Gatling’s place had the State used a peremptory challenge against him. If we follow the admonishment of Rule 81(b)(2), none of us can fairly say that the record affirmatively discloses a lack of harm beyond reasonable doubt.

But we do suspect that the persons who actually served on appellant’s jury were fair to him and that their verdict was adequately supported by the evidence. For this reason, it may be appropriate to address the broad public concern that this Court sometimes orders accused criminals to be retried at considerable expense and inconvenience even when we cannot be sure that they did not have a fair trial the first time. Certainly, the public often wonders why this Court cannot just declare a trial to have been tolerably fair whenever it seems intuitively to have been so, even though the trial judge violated some of the very laws enacted by our Legislature specifically to promote the fairness of trials.

There are no easy answers to these questions. Clearly, trials have become such complicated affairs that the public finds them incomprehensible and yearns for a simpler, more viscerally satisfying method of adjudication. But most of the rules which contribute to the complexity of litigation were enacted by the Legislature, not imposed by the courts. And it is the essence of judicial conservatism that the courts should interpret and implement the law, not make laws or repeal laws enacted by the legislative representatives of the people, no matter how senseless or irresponsible those laws may seem in practice. Thus, when statutes do not seem to promote fairness of the judicial process, they should arguably be repealed, but it is not for the courts to do so.

Because jury selection is entirely controlled by statute, I am committed by my oath to uphold the rules controlling exclusion of veniremembers in every case coming before me for decision except to the extent that those rules violate the Constitution of Texas or of the United States. Article 35.16 of the Code of Criminal Procedure prescribes in detail the only legally available grounds for excluding a veniremember from jury service. Butler v. State, 830 S.W.2d 125, 130 (Tex.Crim.App.1992). But see Mason v. State, 905 S.W.2d 570, 577 (Tex.Crim.App.1995). Although the statute does allow the State to remove every person with “a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment[,]” Tex.Code Crim. Proc. art. 35.16(b)3, it is well-settled that the trial judge commits error to remove a venire-member upon this ground who does not have *516 such a bias or prejudice. E.g., Wilson v. State, 868 S.W.2d 59 , 69 (Tex.Crim.App.1993).

We could hold, of course, that the erroneous exclusion for cause of a qualified venire-member never amounts to reversible error, that only the erroneous inclusion of a venire-member who is challengeable for cause actually denies the accused a fair and impartial trial. But we would first have to accept that the exclusion of qualified, persons from jury service never renders a trial unfair. Then, we would have to overrule a good deal of case law. And finally, we would have to amend article 35.16. As a conservative jurist, I cannot fairly support any of these positions.

In the first place, jury trials cannot be expected to function fairly when the judge has discretionary authority to permit the exclusion of qualified jurors whenever he thinks it would be a good idea. The danger is too great that more jurors favorable to one side than to the other would be excused. It seems far better to me that the issue be rule-governed. I am convinced, therefore, that the rule prohibiting exclusion of qualified veniremembers does actually promote the fairness of adversarial jury litigation.

In the second place, I could not accept the suggestion that we abandon a consistent line of judicial interpretation holding that the exclusion of qualified veniremembers is error. Judges and lawyers alike are familiar with the law on this subject, and there has been no serious argument to my knowledge that it be changed by judicial interpretation. In the absence of some compelling reason to exempt erroneous exclusion from the rule of reversal, stare decisis militates that we remain faithful to precedent. McGlothlin v. State, 896 S.W.2d 183, 188-89 (Tex.Crim.App.1995).

Finally, we are simply not authorized to amend a statute. Article 35.16 plainly authorizes exclusion of prospective jurors only under specified conditions. To permit exclusion under other circumstances as well, or to condone exclusion under a condition which has not been met, would be to substantially involve this Court in the legislative process contrary to article II of the Texas Constitution, which requires a separation of powers in government.

In short, however much we may suspect that errors such as the one committed in this case did not affect the outcome of trial, however much we may suspect that the jurors who tried appellant were entirely fair in their deliberations, we are not at liberty under the law to ratify the judgment of conviction in this case, nor will we be in subsequent cases where the same error occurs. If it seems to some that this is too harsh a rule, the only solution is to amend or repeal article 35.16. For that, the people must consult their legislators. But until that happens, this Court remains obliged to reverse convictions whenever a veniremember was erroneously excluded for cause from jury service at the request of the State. The best that we can do is to make a clear statement of the law so that trial judges and lawyers do not have to guess at its meaning. Once that is done, the public has a right to expect and this Court has a duty to ensure that trial judges bear responsibility for excluding prospective jurors in violation of the law.

With these additional remarks, I join the Court’s opinion.