# Hughes v. State > Court of Criminal Appeals of Texas · June 23, 1993 · 878 S.W.2d 142 URL: https://www.frixlaw.com/law-library/cases/9768400 ## Case - **Full name:** Preston HUGHES, III, Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** June 23, 1993 - **Citations:** 878 S.W.2d 142; 1992 WL 360550 - **Precedential status:** Published - **Opinion:** Dissent by Campbell - **Judges:** Campbell, Meyers, Baird, Mecormick, White, Overstreet, Clinton - **Cited by:** 226 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9768400 ## How later opinions describe it (automated extraction) - holding that where an appellate court fails to address systemic requirements on original submission such as issue of whether error has been preserved or forfeited by the parties, the parties may call to the court's attention such failure in a motion for rehearing - holding that a motion for rehearing regarding a preservation of error issue was an appropriate vehicle to force "appellate courts to observe their systemic requirements" - holding that trial court's instruction was sufficient to cure any harm caused by police officer's reference to appellant having a parole officer - holding that jury instruction to disregard reference to the appellant=s parole status was sufficient to cure the unresponsive answer ## Opinion text CAMPBELL, Judge, dissenting. Based upon vague portions of the voir dire record, the majority opinion concludes that the trial judge abused his discretion in denying appellant’s challenge for cause of venire-person Charles Faulkner. I cannot agree with the majority’s rationale. *149 A trial court should grant a challenge for cause only if a potential juror’s statements indicate that the juror’s views “would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instruction and oath.’” Cockrum v. State, 758 S.W.2d 577, 592 (Tex.Cr.App.1988), cert. denied, 489 U.S. 1072 , 109 S.Ct. 1858 , 108 L.Ed.2d 825 (1989), quoting Sharp v. State, 707 S.W.2d 611, 620 (Tex.Cr.App.1986), cert. denied, 488 U.S. 872 , 109 S.Ct. 190 , 102 L.Ed.2d 159 (1988). A trial court’s decision to grant or deny a challenge for cause is subject to appellate review under an abuse of discretion standard. Cockrum, 758 S.W.2d at 584 . The rationale behind according great deference to the trial judge’s decision to grant or deny a challenge for cause is that “such a finding is based upon determinations of demeanor and credibility that are particularly within a trial judge’s province” because the trial judge sees the jurors and hears their testimony. Wainwright v. Witt, 469 U.S. 412, 428 , 105 S.Ct. 844, 854 , 83 L.Ed.2d 841 (1985). Based upon the portions of the voir dire record quoted in the majority opinion, the majority concludes that venireperson Faulkner was biased against the law pertinent to the second punishment issue, 1 upon which appellant was entitled to rely, in violation of Article 35.16(c)(2). 2 The remainder of the voir dire record, however, indicates that Faulkner harbored no such bias. During voir dire, other exchanges were as follows: PROSECUTOR: ... [Wjould you be able to, having found someone guilty of that offense, if the evidence called for it, answer these questions, the Special Issue No. 1 and Special Issue No. 2 in the negative? If that’s what the evidence showed you? FAULKNER: In th< PROSECUTOR: No, would you be able to answer them no if that’s what the facts showed you? FAULKNER: Yes, sir. PROSECUTOR: In other words, its the burden on the State to prove to you beyond a reasonable doubt that you should answer these questions yes before you should answer them yes? FAULKNER: Yes, I understand that, yes. PROSECUTOR: If the State doesn’t meet that burden, would you be able to answer the question no? FAULKNER: Yes, sir. PROSECUTOR: The fact that a death sentence is out there or a life sentence, depending on the responses, wouldn’t influence your answer to those questions? FAULKNER: Yes, sir. PROSECUTOR: You’re going to decide it on the facts of the evidence presented? FAULKNER: That is correct. 5⅜ ⅝ ⅜ ⅜ ⅜ ⅜ PROSECUTOR: It’s for the State to prove that the defendant is guilty, not for him to prove he’s not guilty. You understand and agree with that principle? FAULKNER: Yes, sir, I sure do. ⅝ ⅝ ⅜ ⅜ ⅜ ⅜ PROSECUTOR: Likewise, on [Special Issue] 2, if I convince you beyond a reasonable doubt, you will answer yes? FAULKNER: Yes, sir. PROSECUTOR: You are not going to make me prove to you beyond any doubt that the answer should be yes? *150 FAULKNER: No, sir. Additionally, appellant’s counsel questioned Faulkner during voir dire. The following exchange occurred between Faulkner and appellant’s attorney concerning the second punishment issue. DEFENSE COUNSEL: ... Could you ever, after finding somebody guilty of a capital murder, you, yourself — and you alone know this. As the judge told you, we’re here to get your answers. Could you ever vote no on Question 2? FAULKNER: Yes, sir. Initially, the trial court could have completely foreclosed any inquiry into Faulkner’s conception of “probability.” Cuevas v. State, 742 S.W.2d 381 , 346 (Tex.Cr.App.1987), cert. denied, 485 U.S. 1015 , 108 S.Ct. 1488 , 99 L.Ed.2d 716 (1988); Esquivel v. State, 595 S.W.2d 516, 525 (Tex.Cr.App.1980), cert. denied, 449 U.S. 986 , 101 S.Ct. 408 , 66 L.Ed.2d 251 (1980). Even though such inquiry could have been totally barred by the trial judge, and appellant’s counsel would have known nothing of Faulkner’s views on “probability,” the majority decides, based upon ambiguous testimony that the trial judge allowed to be solicited, that the trial judge abused his discretion in failing to exclude Faulkner for cause. In making this decision, the majority relies upon language from Cuevas. I fail to see how Cuevas in any way supports the majority’s position. In Cuevas, venireperson Cullather was asked to define “probability.” Cullather responded that “it implies that it is a good chance that it would happen ... [M]y definition would be that there is a strong potential for that act to be repeated. Not that it is likely to happen, but there is a strong potential for it to happen;” “stronger than possibly;” “less than likely ... probability is somewhere between likely and possible;” “somewhere between potential and likely;” “not necessarily ‘more likely than not;’” “stronger than a potential;” “not that it was equivalent to potential, that it was somewhere between potential and ‘more likely than not;”’ “I don’t believe that ‘more likely than not’ is to me a criteria;” “a strong likelihood that the act would be repeated;” “a very strong potential of that individual to commit acts of violence.” 742 S.W.2d at 346. This Court noted that the examination of Cullather covered ten pages in the record and provided a perfect illustration of how voir dire could continue interminably if counsel were allowed to question each prospective juror concerning every legal term involved in the case. Id. at 346-347. Cullather’s comments were no clearer than those of Faulkner, yet the trial judge committed no abuse of discretion in failing to excuse Cullather for cause. Id. at 347. In concluding that Faulkner’s comments belie his bias, the majority relies upon dictionary definitions of “probability” mentioned in Cuevas. Those definitions included “likelihood; appearance of reality or truth; reasonable ground of presumption; verisimilitude; consonance to reason ... A condition or state created when there is more evidence in favor of the existence of a given proposition than there is against it.” Id. These definitions lack consistency. That something is “likely” does not necessarily mean that more evidence favors the existence of that thing. After reviewing the entire voir dire record, I cannot say that the trial judge clearly abused his discretion in denying appellant’s challenge for cause. The quoted portions of the voir dire record upon which the majority relies are vague at best. Faulkner’s comments reveal only his internal conception of “probability,” a term that is undefined in law. His statements reveal no propensity to impose the death penalty in a freakish or wanton manner. Throughout the remainder of Faulkner’s testimony during voir dire, he stated unequivocally that he would hold the State to its burden of proof, that he would base his answers on the facts of the case, and that he would not answer the second punishment question affirmatively “all the time.” The trial judge observed Faulkner and found no grounds for excluding him from the jury. I would conclude that the trial judge acted within his discretion in refusing to exclude Faulkner for cause because Faulkner’s views in no way would have impaired his perfor- *151 manee of his duty as a juror, and would overrule appellant’s point of error four. MeCORMICK, P.J., and WHITE and OVERSTREET, JJ., join. . At the time of appellant's trial, Article 37.-071(b)(2) of the Code of Criminal Procedure provided in relevant part: (b) On conclusion of the presentation of the evidence [at the punishment phase], the court shall submit the following three issues to the jury: ⅜ ⅜ ⅜ * * ⅜ (2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; . Article 35.16(c)(2) of the Code of Criminal Procedure provides: (c) A challenge for cause [toward a potential juror] may be made by the defense for any of the following reasons: Sj< ⅜ !⅝ ⅜ j£ ⅜ 2. That he has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof or of the punishment therefor. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9768400. Public record. Not legal advice.