Castillo v. State

KELLER, Judge,

dissenting on appellant’s petition for discretionary review.

This case involves the potential conflict between two lines of precedent: Caldwell v. State, 818 S.W.2d 790 (Tex.Crim.App.1991), cert. denied, 503 U.S. 990 , 112 S.Ct. 1684 , 118 L.Ed.2d 399 (1992) on the one hand and our later opinion in Garrett v. State, 851 S.W.2d 853 (Tex.Crim.App.1993) on the other. In Caldwell , we upheld the excusal of a venireman who could never convict solely on the basis of the testimony of one eyewitness. 818 S.W.2d at 797 . We reasoned that such a requirement increased the state’s burden of proof. Id. In Garrett , a capital murder case, the trial court sustained the State’s challenge for cause of a venireman who could never answer “yes” (in favor of the prosecution) to the “future dangerousness” special issue 1 based solely upon the facts of the offense. Id. at 857-861 . We reversed the conviction in Garrett , holding that the venireman’s position merely expressed a threshold of reasonable doubt that was higher than the legal minimum. Id. at 860 .

Appellant does not dispute that if Caldwell remains intact then venireman Blaydes was challengeable for cause. Appellant merely argues that Garrett essentially overruled Caldwell , and therefore, Garrett controls the disposition of this case. The majority agrees, concluding that these decisions are irreconcilable. Because I believe that the decisions can and should be reconciled, I disagree with the majority’s assessment.

An important distinction between the voir dire questions contained in Garrett and those in Caldwell centers upon the nature of the category of “evidence” that the respective veniremen were called upon to evaluate. The “facts of the offense,” as described in Garrett , is a category defined by the content of evidence. For example, one may ascertain the “facts of the offense” by hearing testimony, reading documentary evidence, etc. A statement that the circumstances of the offense constitute the only evidence of future dangerousness in a given ease is an observation about the content of the evidence in that case. Essentially, the venireman is asked to assume that a certain set of facts is proved at trial (i.e. that the only facts relevant to punishment are the circumstances of the offense itself), and then the venireman is asked whether he can draw a desired inference (i.e. future dangerousness) from that set of facts. A juror is not obligated to draw such inferences even when the evidence would be sufficient to support such inferences on appeal. A juror who refuses to do so merely expresses a reasonable doubt threshold that is higher than the legal minimum.

The question in Garrett is in this respect similar to issues concerning mitigating evidence in capital murder prosecutions. We have held consistently that a venireman is not challengeable for cause simply because he will not consider a particular kind of evidence to be mitigating. Morrow v. State, 910 S.W.2d 471 , (Tex.Crim.App.1995) (“Veniremembers are not challengeable for their particular views about particular [mitigating] evidence.”). Allridge v. State, 850 S.W.2d 471, 481-482 (Tex.Crim.App.1991), cert. denied, — U.S. -, 114 S.Ct. 101 , 126 L.Ed.2d 68 (1993) (age, family background, and criminal history offerred as mitigating). Our holding in Garrett is consistent with this position, in that the mitigating nature of a particular circumstance is an observation about the content of evidence. After being offered a particular set of facts (e.g. regarding age, family background, limited mental capacity), a venireman is asked to infer that such facts are of mitigating character.

By contrast, the “testimony of a witness” is a category defined by the source of evidence. The content of a witness’ testimony may vary widely depending upon the nature of the case. In the Caldwell situation, the venireman is not asked to draw an inference from a certain set of facts: disclosing that all relevant facts come from a single witness does not disclose what those facts are. Because the statement that testimony of a single witness constitutes the only evidence in the case *542 says nothing about the content of that witness’ testimony, a venireman must be able to consider the possibility that the content of that testimony will meet his threshold of reasonable doubt, whatever that may be. 2 A venireman who fails to consider such a possibility has in essence drawn an inference about what the facts show without knowing what the facts are.

Moreover, a venireman should not be permitted to add a corroboration requirement similar to the accomplice witness rule to the State’s burden of proof. See Texas Code of Criminal Procedure, Article 38.14 (“A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.”) Essentially, the accomplice rule increases the State’s burden by requiring the State to submit additional evidence to corroborate an accomplice witness’ testimony. See Boozer v. State, 717 S.W.2d 608 (Tex.Crim.App.1984) (State increased its burden of proof by failing to object to accomplice witness instruction in jury charge). This rule was imposed because an accomplice’s testimony was considered inherently suspect. Cast v. State, 296 S.W.2d 269, 271 (Tex.Crim.App.1966) (“An accomplice witness is a discredited witness”). Because the legislature has not determined that the testimony of a “single” witness is similarly suspect, a venireman should not be permitted to increase the State’s burden of proof by imposing a corroboration requirement.

The State may challenge for cause any venireman who “has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment.” Texas Code of Criminal Procedure, Article 35.16(b)(3). One “phase of the law” upon which the State is entitled to rely is that the jury will not require a greater burden of proof than “beyond a reasonable doubt.” Cook v. State, 858 S.W.2d 467, 471 (Tex.Crim.App.1993). Because excluding the possibility of conviction based upon one witness increases the State’s burden of proof, I would hold that the Court of Appeals did not err in its reliance upon Caldwell in upholding the challenge for cause against venireman Blaydes.

I respectfully dissent.

McCORMICK, P.J., and WHITE, J., join.

. The issue reads: "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Art. 37.071 § 2(b)(1).

. A venireman who states that he could never convict on the basis of the testimony of a single witness because he would never believe such a witness expresses a bias in favor of the defendant and shows an inability to evaluate impartially the witness' credibility. The State may challenge such a venireman for cause because he is biased in the defendant’s favor. Art. 35.16(a)(9).