Pittman v. State

OPINION ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

This Court does not hesitate to reverse where it is apparent that the trial court has excluded from the jury all persons expressing general objections to or conscientious or religious scruples against the infliction of death as punishment for crime as enunciated by the Supreme Court of the United States in Witherspoon v. State of Illinois, supra. See Ex parte Bryan, Tex.Cr.App., 434 S.W.2d 123 , and Ellison v. State, Tex.Cr.App., 432 S.W.2d 955 , this day decided. We do, however, remain convinced of the soundness of our original disposition of the case at bar.

The amicus curiae brief, as well as appellant’s brief on rehearing, presented and so ably argued, expects and says that in Witherspoon the Supreme Court held that perfection must be achieved in the examination of every venireman. With this drastic standard we, as practical lawyers who have sat on the trial benches of this State and have qualified veniremen to serve in cases where the death penalty has been sought, are not inclined to agree. It may be that the Supreme Court has written a rule of law whereby no death penalty conviction could ever be upheld even though that is exactly what they say they were not doing. We must accept them at their word and re-examine our original opinion.

It would serve no useful purpose, as we see it, to review in this opinion the examina *362 tion, cross-examination, or lack of cross-examination, of each of the 126 veniremen examined in this case. This was done exhaustively by the author of the orginal opinion. Where, as here, several of the venire expressed their convictions against the infliction of the death penalty and appellant’s counsel, evidently being satisfied with the veniremen’s statements or because he did not want the veniremen for some other reason, made no effort to qualify them for service, we do not conclude that it becomes the duty of the court to take other steps toward attempting to qualify the veniremen. Veniremen may still be excused by agreement in this State; and it is our view that the rule set forth in Footnote 21 in Wither-spoon has application to veniremen whom appellant seriously tried to qualify for service, and serves as an excellent guideline in such cases. We think, however, that it should not be construed as imposing upon trial courts additional duties when it is evident that the accused did not want the venireman as a juror. This is why we pointed out in our original opinion that “The appellant here made no such request for further interrogation.”

This is not a case where the manner of jury selection is shown by stipulation only which reflects a violation of the Wither-spoon standards as was the case in Spencer v. Beto, 398 F.2d 500 (5th Cir).

Remaining convinced that this cause was properly decided originally, appellant’s motion for rehearing is overruled.