Castillo v. State

MANSFIELD, Judge,

dissenting.

Because I believe that our opinion in Caldwell v. State, 818 S.W.2d 790 (Tex.Cr.App.1991) is dispositive of the present case, I respectfully dissent. Furthermore, I believe that Garrett v. State, 851 S.W.2d 853 (Tex.Cr.App.1993) is not applicable and, additionally, was wrongfully decided.

Texas Code of Criminal Procedure article 35.16(a) (1994) defines a challenge for cause as “an objection made to a particular juror, alleging some fact which renders him incapable or unfit to serve on the jury.” Under Article 35.16(b)(3), a challenge for cause may be made by the State for the following reason: “(3) that [the juror] has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment.”

Appellant was convicted by a jury of the offense of possession with intent to deliver cocaine. The jury assessed punishment at twelve years confinement in the Texas Department of Criminal Justice — Institutional Division. The Fifth Court of Appeals affirmed appellant’s conviction and sentence. Castillo v. State, 867 S.W.2d 817 (Tex.App.—Dallas 1993).

During general voir dire, the prosecutor asked the venire whether they could find appellant guilty if there was only one witness to the offense charged. Venireperson Blaydes stated that he could not vote to convict appellant if the only evidence was the testimony of a single police officer. During individual voir dire, Blaydes stated that, due *538 to Ms background as a drug agent, “No way I could find guilty with just one officer. There would be a reasonable doubt. Be automatic. Automatic reasonable doubt.” In response to a later question, Blaydes said, “I’ll be honest with you, what I would do, I would pray and ask God whether the man was telling me the truth, the police officer, and if God told me, yes, and there was other evidence that it was crack that was taken into, you know, as evidence, yeah, yeah, I would find your man guilty.” Finally, in response to a question from the court, Blaydes stated he couldn’t convict on the testimony of one peace officer “for this particular offense.” Over appellant’s objection, the court granted the State’s challenge for cause and Blaydes was struck from the ve-nire.

Article 35.16(b)(3), in effect for many years, has been addressed by tMs Court on numerous occasions. In Bodde v. State, 568 S.W.2d 344 (Tex.Cr.App.1978), a venireper-son testified “repeatedly and unequivocally that in answering the second question at the pumshment hearing, Art. 37.071(b)(2), V.A.C.C.P., she would hold the State to a more stringent burden of proof than that required by the statute, ‘beyond a reasonable doubt.’ ” Bodde, at 349. We held she was properly excluded for cause under Art. 35.16(b)(3) (1978).

In Hawkins v. State, 660 S.W.2d 65 (Tex.Cr.App.1983), venireperson Pritchard, according to the record, had “great difficulty in understanding the term reasonable doubt.” She stated that the State’s proof would have to convince her to a certainty before she would find appellant guilty. She further stated that if there was any doubt in her mind, she would consider such a doubt to be reasonable. Hawkins, at 76. We held that the trial court properly sustained the State’s challenge for cause as to Pritchard under Art. 35.16(b)(3) as her testimony demonstrated she would have held the State to a Mgher burden of proof than beyond a reasonable doubt, as she repeatedly stated that proof would have to convmce her to a certainty before she would vote to convict.

Also in Hawkins , we held that the trial court properly sustained the State’s challenge for cause of venireperson Williams. Williams’ testimony indicated she would have voted in such a manner as to avoid the death penalty for the defendant without regard to the evidence wMch might be developed at trial. Hawkins at 77 . She was challengea-ble under Art. 35.16(b)(3) and also was properly excused under the standards established in Witherspoon v. Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968).

Similarly, in Franklin v. State, 693 S.W.2d 420 (Tex.Cr.App.1985), we found the trial court properly sustained the State’s challenge for cause of venireperson Santana. “In the ease at bar, we find that the testimony elicited from prospective juror Santana indicated that she would hold the State to a Mgher standard of proof than beyond a reasonable doubt. Moreover, we accord some deference to the trial court’s determination given that he was in a position to gauge the sincerity and demeanor of the prospective juror’s answers.” Franklin, at 424.

A prospective juror who stated he could not find appellant guilty of capital murder uMess appellant himself did the killing was held to be a proper subject for a challenge for cause by the State under Art. 35.16(b)(3). Phillips v. State, 701 S.W.2d 875 (Tex.Cr.App.1985). Also in Phillips , we found the trial court properly sustained the State’s challenge of another prospective juror who stated clearly that she would hold the State to a Mgher burden of proof, i.e., proof beyond all doubt. Phillips at 888-889 .

In White v. State, 779 S.W.2d 809 (Tex.Cr.App.1989) the State challenged for cause:

(1) venireperson Sheppard, who mdieated she could not vote to find someone guilty of capital murder absent eyewitness testimony;

(2) venireperson Simmons, who indicated he could vote for the death penalty only for “premeditated” murders;

(3) venireperson Callender, who stated she could not consider the minimum range of pumshment (five years) for murder; and

(4) venireperson Moton, who stated he would vote to convict the defendant even if the State did not prove the defendant com *539 mitted the offense charged on or about the date alleged in the indictment.

We found that the trial court ruled correctly in sustaining the State’s challenge for cause under Art. 35.16(b)(3) of each of the four venirepersons listed above, as the law does not require eyewitness testimony for conviction, premeditation is not necessary for imposition of the death penalty, a prospective juror must be willing to consider the entire range of punishment, and a prospective juror who indicates he would not require the State to prove a required element (date of the offense) would have difficulty following his oath. “We note again that when passing on whether a juror was improperly excluded for cause, we must accord due deference to the trial court’s determination given its position to assess the juror’s sincerity and demean- or.” White, at 822.

In Jacobs v. State, 787 S.W.2d 397 (Tex.Cr.App.1990), we held that it is the burden of the party seeking exclusion of a prospective juror for cause to demonstrate that such exclusion is proper. “On appeal, we recognize that great deference must be given to the trial court judge who is in the best position to see and hear the prospective jurors and to evaluate their responses. We will reverse a trial court’s ruling on these issues only when the record shows a clear abuse of discretion on the trial court’s part.” Jacobs, at 402. See also Callins v. State, 780 S.W.2d 176, 194 (Tex.Cr.App.1986) (op. on rehearing).

We found the State did present evidence that venireperson Gilbert could not read or write; the court therefore did not abuse its discretion in granting the State’s challenge for cause. The record also showed that veni-reperson Dupree would never answer yes to Special Issue Two and that venireperson Roark would require the State to prove appellant’s guilt beyond all doubt as opposed to beyond a reasonable doubt; accordingly we held the trial court did not abuse its discretion in granting the State’s challenges for cause of those two venirepersons.

In the following recent cases, this Court found the trial court properly granted the State’s challenge for cause under Art. 35.16(b)(3):

(1) During voir dire a venireperson stated he would require proof higher than beyond a reasonable doubt in order to convict appellant and would require proof of at least two to three hours of premeditation in order to convict the defendant of capital murder. Cantu v. State, 842 S.W.2d 667, 681-2 (Tex.Cr.App.1992). We also held in Cantu that we will reverse such a decision [trial courts’s ruling on a challenge for cause of a venire-person] “only for clear abuse of discretion; i.e., only when the trial judge’s decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree.” Cantu, at 683.

(2) A prospective juror stated clearly that she would hold the State to a higher burden of proof than proof beyond a reasonable doubt before she could vote to impose the death penalty. Cook v. State, 858 S.W.2d 467, 471 (Tex.Cr.App.1993).

(3) During voir dire the challenged venire-person testified she would consider a defendant’s failure to testify to be an admission of guilt. Flores v. State, 871 S.W.2d 714, 719 (Tex.Cr.App.1993), holding that the State may challenge for cause under Art. 35.16(b)(3) a venireperson for bias against any phase of the law even where the bias might have been in favor of the State, and the trial court’s granting same is supported, as here, by the record.

(4) Where a prospective juror testified she would hold the State, in a capital case, to a burden of proof higher than that of beyond a reasonable doubt and the record of her entire voir dire testimony supports the trial court’s decision to grant the State’s challenge for cause. Butler v. State, 872 S.W.2d 227, 235 (Tex.Cr.App.1994).

(5) Where a prospective juror testified he could not vote to convict defendant based on the testimony of only one eyewitness, even if he believed the eyewitness’ testimony beyond a reasonable doubt. Caldwell v. State, 818 S.W.2d 790, 791-792 (Tex.Cr.App.1991). See also Barnard v. State, 730 S.W.2d 703, 712-714 (Tex.Cr.App.1987), cert. denied 485 U.S. 929 , 108 S.Ct. 1098 , 99 L.Ed.2d 261 (1988); Marquez v. State, 725 S.W.2d 217, 238 (Tex.Cr.App.1987), *540 cer t. denied 484 U.S. 872 , 108 S.Ct. 201 , 98 L.Ed.2d 152 (1987).

In the present ease, the record demonstrates that venireperson Blaydes would not convict appellant based on the testimony of one witness “even if you believed him 100%,” unless there was other evidence. The record demonstrates further that venireperson Blaydes could not convict on the testimony of one peace officer “for this particular offense.” “To force the State to prove its case with more than one eyewitness is an even greater burden on the State than was extant in Barnard or Demouchette, and such a sentiment clearly subjected the venireperson to a challenge for cause.” Caldwell, at 797.

Caldwell is directly on point in the present case and appellant does not present any compelling arguments for us to overrule Caldwell . Furthermore, appellant fails to show in the record any abuse of discretion on the part of the trial court with respect to his granting of the State’s challenge for cause to venireperson Blaydes pursuant to Art. 35.16(b)(3). We have held repeatedly that we will not second guess the trial court as to its decisions with respect to venireperson bias absent a showing of abuse of discretion.

Appellant contends that our opinion in Garrett v. State, 851 S.W.2d 853 (Tex.Cr.App.1993), in effect, overruled Caldwell , as well as Marras v. State, 741 S.W.2d 395 , 401—402 (Tex.Cr.App.1987). However, as the court of appeals correctly states, Garrett concerns only the venireperson’s bias or prejudice against the law at the punishment phase of a capital trial, where the State is allowed to present evidence of the defendant’s character, psychiatric history and other evidence the court deems relevant to prove future dangerousness. At the guilt-innocence phase, the State is limited to presentation of evidence of the offense itself and the State is entitled to have the case tried by jurors who will consider that evidence, even if the evidence consists of the testimony of one witness. Caldwell, at 797. See also Leach v. State, 770 S.W.2d 903, 907-908 (Tex.App.— Corpus Christi 1989), pet. refused. I believe that Garrett was wrongfully decided and is inconsistent with our holdings in the cases cited earlier in this opinion. In Garrett we held that a venireperson is not subject to a challenge for cause simply because he could never answer yes to the second special issue based solely on the evidence of the capital offense. In effect, the State would, regardless of the amount of evidence it presented at trial, never be able to meet such a venireper-son’s individual threshold of reasonable doubt so as to obtain an affirmative answer as to special issue two.

As Judge Campbell stated in his dissent, we interpreted Art. 35.16(b)(3) “in what we thought was a commonsense manner to allow the State to challenge a venireperson for cause if the venireperson indicated ‘that he could not answer yes to the second special issue based solely on the evidence of the capital offenses.’ ” Garrett, at 861, citing Marras, at 401-402.

The State is entitled to challenge for cause any venirepei’son who has 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). We have held, in the cases cited above, that the State may challenge, for cause, a venireperson who states he could not convict based solely on circumstantial evidence, or who states he would hold the State to a burden of proof greater than beyond a reasonable doubt in order to convict as a venireperson who has a bias or prejudice against the law. Furthermore, we have held likewise with respect to a venireperson who states he could not convict based on the testimony of a single witness (even if he believes him beyond a reasonable doubt) or who could not affirmatively answer a special issue based solely on the evidence at trial (prior to Garrett).

The majority opinion in Garrett subverts the doctrine of stare decisis in overruling Marras as no evidence is presented that our opinion in Marras had become unworkable or led to injustice or that our interpretation of Art. 35.16(b)(3) was, somehow, erroneous. Although the majority in Garrett does not specifically overrule them, its opinion appears to be inconsistent with our rulings in Caldwell, Barnard, Phillips and other cases cited above, and should not be interpreted to overrule them.

*541 I respectfully dissent. I would affirm the judgment of the court of appeals.