McGee v. State

CLINTON, Judge,

dissenting.

The majority, sans authority, effectively finds support for the trial court’s conclusion that venireman Locke was “substantially impaired” in her ability to perform as a juror in this capital case solely because she indicated she “couldn’t give no one the death penalty[,]” and could not ever “vote for” that result irrespective of the evidence. Indeed, the majority finds Locke to have shown such an irrevocable disability in the answers she gave, almost all of which are excerpted in its opinion, as to prove herself impervious to rehabilitation. Perceiving two flaws in the majority’s analysis, I dissent.

To begin with, in my view there is no reasonable basis on this record to support the trial court’s implied finding. That a venireman cannot “give” or “vote for” the death penalty is not remotely dispositive in a capital sentencing scheme that does not call for jurors to do so under any circumstances. Hernandez v. State, 757 S.W.2d 744 (Tex.Cr.App.1988) (Plurality Opinion). See also, Ex parte Russell, 720 S.W.2d 477 (Tex.Cr.App.1986) (Clinton, J., dissenting); Granviel v. State, 723 S.W.2d 141, 157 (Tex.Cr.App.1986) (Clinton, J., dissenting); Hernandez v. State, 643 S.W.2d 397 (Tex. Cr.App.1982) (Clinton, J., dissenting). Critical to a reasonable evaluation of substantial impairment is the question whether the venireman’s reservations, if any, about imposition of the death penalty would or could cause him consciously to distort answers to special issues under Art. 37.071, V.A.C.C.P.; whether, in order to avert that end, the venireman would be inclined to answer at least one special issue negatively in spite of evidence that would convince him beyond a reasonable doubt that both should be answered yes. See Ex parte Williams, 748 S.W.2d 461, 463, n. 2 (Tex. Cr.App.1988). Only where the testimony of the venireman may be read to prepon *243 derate in favor of a finding that he would be so inclined may we say on appellate review that there is support in the record for the trial court’s conclusion the venireman was substantially impaired. Confronted with the proper question, however, the venireman who either “vacillates” or “equivocates,” see Williams v. State, 622 S.W.2d 116,121 (Tex.Cr.App.1981) (Teague, J., dissenting), may reasonably be said to be disabled, and under such circumstances we should defer to the trial court’s ruling either that the venireman is impaired or that he is not.

Here, as proponent of the challenge for cause against venireman Locke, the State had the burden to show not just a moral or philosophical aversion to the death penalty, but that such aversion could actually cause the venireman consciously to distort her answers to special issues in order to avoid it. Simply asking the venireman whether she would ever “vote for” the death penalty does not suffice.

Secondly, at the very least in the instant case appellant’s counsel should have been allowed to ascertain what we should be requiring the State to ask, viz: whether Locke’s inclination to “vote” against the death penalty would likely preclude her from answering special issues without conscious distortion or bias.

In the past, and especially since the decision of the Supreme Court in Wainwright v. Witt, 469 U.S. 412 , 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985), this Court has paid lip service to the trial court’s discretion in ruling upon State’s challenges for cause. A typical statement appears in Ex parte Russell, 720 S.W.2d 477, at 485 (Tex.Cr. App.1986):

“In making the determination of the qualification of a juror, great deference is to be given to the decision of the trial judge, who has broad discretion in his rulings in challenges, who was present, heard the tenor of the voice of the prospective juror, his demeanor, etc.”

See also, e.g., Smith v. State, 676 S.W.2d 379, at 387 (Tex.Cr.App.1984); Smith v. State, 683 S.W.2d 393, at 401, n. 5 (Tex.Cr. App.1984); Vanderbilt v. State, 629 S.W.2d 709 (Tex.Cr.App.1981). Having granted this discretion to trial courts, however, it seems to me we turn around and effectively revoke it when we continually conclude our discussions on these points of error with holdings that “we find” the venireman to have been substantially impaired, or that “clearly” he was so. At least in the context of what has been termed “equivocating” or “vacillating” veniremen, see Williams v. State, 622 S.W.2d 116, 121 (Tex.Cr.App.1981) (Teague, J., dissenting), it seems to me that due deference to the trial court means that he has discretion to find such a venireman is not in fact impaired, in spite of some obvious difficulty he may have. Categorically to hold, or at least to imply as our holdings do, that such a venireman is in every case substantially impaired sends a message to trial courts that in fact they do not have the discretion to overrule State’s challenges for cause in the premises. Rather, as a matter of appellate review, this Court should simply hold there is a reasonable basis in the record to support a finding by the trial court that the venireman will be impaired in his ability to abide by his oath as a juror. Hernandez v. State, supra. Such a standard of appellate review does not preclude the trial court from exercising its discretion to find that, what from a cold appellate record may appear to be a truly equivocating or vacillating venireman, has actually proven himself, by demeanor, tone or howsoever, able in fact to follow the law. See Perillo v. State, 758 S.W.2d 567, at 577 (Tex.Cr.App.1988).

Having vested the trial court with this discretion to arbitrate challengeability of veniremen who appear, at least on a cold record, “to be genuinely noncommittal, vacillating, equivocal, or uncertain,” Hernandez v. State, supra, 757 S.W.2d at 753 , we should never allow it to exercise that discretion unilaterally; that is, without affording the opponent of the challenge the opportunity to rehabilitate the venireman. The majority fails to require the State, as proponent of the challenge for cause, to inquire of Locke specifically whether her opposition to the death penalty could cause her to distort her answers to the special *244 issues. In the majority’s view, it is enough that Locke indicated she would never “vote for” the death penalty. Assuming, ar-guendo, that were true, it seems to me unconscionable not to allow appellant’s counsel an opportunity, at the very least, to demonstrate that in answering the special issues in accordance with the evidence Locke would not, in her own view, be “voting for” or otherwise personally exacting that harsh result. By refusing to allow counsel this opportunity, the trial court effectively insulated itself from having to exercise that discretion we are so quick to afford. If we are not prepared to hold the State to its burden as proponent of the challenge for cause, at least we should refuse thus to condone the trial court’s abdication of its proper function in a capital voir dire.

Absent some other valid, asserted reason for excluding this venireman, I would reverse this conviction under authority of our holdings in Lackey v. State, 638 S.W.2d 439 (Tex.Cr.App.1982) (Opinion on appellant’s motion for rehearing), and Rougeau v. State, 651 S.W.2d 739 (Tex.Cr.App.1982). Because the majority does not, I dissent.

TEAGUE, J., joins this opinion.