Ransom v. State

CLINTON, Judge,

dissenting on State’s Motion for Rehearing.

On original submission in this cause, we reversed a capital conviction on the basis that the trial court erroneously granted a State’s challenge for cause. The State premised its challenge for cause on the venireman’s asserted unwillingness to answer the second punishment issue affirmatively based on nothing more than the facts of the capital *304 offense itself. We held that granting such a challenge for cause was error under Garrett v. State, 851 S.W.2d 858 (Tex.Cr.App.1993), and reversed the entire conviction. In a footnote we explained why it was not necessary to reach other points of error claiming error at the guilt phase of trial:

“We cannot say that in the case of an erroneously granted challenge for cause that it ‘affectfed] punishment only’, even though the challenge was based on a punishment issue. This is because the erroneous elimination of a venireperson conceivably affects the composition of the jury, which sits at both guilt and punishment.”

Majority op. at 294, n. 5. That is to say, error of any kind at the voir dire stage of trial is error that by its very nature “affects” more than just the punishment assessed.

The State Prosecuting Attorney has filed a stout motion for rehearing, attacking our construction of Article 44.29(c), supra. He argues that the erroneous exclusion of a venireman on the basis of a purported inability to follow some aspect of the law applicable only to the punishment phase of a capital trial is “error affecting punishment only” in contemplation of the statute. He points to the fact that exclusion of veniremen on the basis of conscientious scruples against the death penalty, without more, in violation of the Sixth Amendment to the United States Constitution, does not wholly vitiate a capital conviction, but only the sentence of death. See Witherspoon v. Illinois, 391 U.S. 510, 516-17 , 88 S.Ct. 1770, 1774-75 , 20 L.Ed.2d 776, 782 (1968); Bumper v. North Carolina, 391 U.S. 543, 545 , 88 S.Ct. 1788, 1790 , 20 L.Ed.2d 797, 800-801 (1968); see also Lockhart v. McCree, 476 U.S. 162 , 106 S.Ct. 1758 , 90 L.Ed.2d 137 (1986). Accordingly, in capital cases in which punishment less than death was assessed, the Court has rejected the contention that exclusion of veniremen for nothing more than harboring conscientious scruples against the death penalty called for reversal of the conviction. E.g., Parks v. State, 437 S.W.2d 554, 557-58 (Tex.Cr.App.1969); Bradley v. State, 450 S.W.2d 847, 849-850 (Tex.Cr.App.1969). Moreover, even in capital cases in which the death penalty has been assessed, the only reason the Court has not remanded those cases for reassessment of punishment in the past has been a perceived lack of authority from the Legislature to do so. Ellison v. State, 432 S.W.2d 955, 957 (Tex.Cr.App.1968).

In Ellison we held that the trial court erred to grant State’s challenges for cause in violation of Witherspoon v. Illinois, supra. In addressing the proper disposition of the cause in light of that error, the Court observed:

“As we understand the opinion of the Supreme Court in Witherspoon v. Illinois, supra, in its role as arbiter of the punishment to be imposed, appellant’s jury ‘fell woefully short’ of that impartiality to which he was entitled under the Sixth and Fourteenth Amendments but, as to the guilt or innocence issue, bias with respect to appellant’s guilt is not shown.

“The Texas Statute provides for a separate hearing on proper punishment before the same jury and provides that where the matter of punishment is referred to the jury, the verdict shall not be complete until the jury has rendered a verdict both on the guilt or innocence of the defendant and the amount of punishment when the jury finds the defendant guilty. And in the event the jury shall fail to agree, a mistrial shall be declared, the jury discharged and no jeopardy shall attach. Art. 37.07 V.A.C.C.P. [Footnote omitted.]

“Our statute provides that the Court of Criminal Appeals may affirm the judgment of the court below, or may reverse and remand for a new trial, or may reverse and dismiss the case, or may reform and correct the judgment as the law and nature of the case may require. Art.' 44.24 V.A.C.C.P.

“Also, Art 44.29 V.A.C.C.P. provides: ‘Where the Court of Criminal Appeals awards a new trial to the defendant, the cause shall stand as it would have stood in case the new trial had been granted by the court below.’

“It follows that this court is without authority to direct a new trial before a different jury on the issue of punishment only.”

*305 Since Ellison , of course, Article 44.29 has been amended. It now provides, in subsection (e), that:

“[i]f any court sets aside or invalidates the sentence of a defendant convicted of an offense under Section 19.03, Penal Code, and sentenced to death on the basis of any error affecting punishment only, the court shall not set the conviction aside but rather shall commence a new punishment hearing under Article 37.071 or Article 37.011 of this code, as appropriate, as if a finding of guilt had been returned.”

The State Prosecuting Attorney contends that by adding subsection (c), the Legislature has now authorized this Court, as it was. not authorized at the time of Ellison , to remand solely for a new punishment hearing any sentence invalidated for “error affecting punishment only.” He contends granting a State’s challenge for cause that is invalid under Witherspoon and its progeny constitutes just such an error.

In support of this argument the State Prosecuting Attorney invites us to contrast the language of subsection (c) with that of the immediately preceding subsection, Article 44.29(b). That provision authorizes remand only for a new punishment proceeding in any non-capital case that is reversed “only on the basis of an error or errors made in the punishment stage of the trial[.]” This language from subsection (b) clearly does not apply to voir dire error, since voir dire error is not “made in the punishment stage” of trial. But, the argument goes, error during the voir dire, though it does not occur “in the punishment stage,” may yet “affect[ ] punishment only[.]” Thus, remand only for a new punishment hearing would be the proper course in a capital case under subsection (c). The State Prosecuting Attorney argues that this change in language from subsection (b) to subsection (c) was specifically intended to cover Witherspoon error.

To these arguments of the State Prosecuting Attorney I would add one more. On original submission we reversed partly on the strength of our opinion in Grijalva v. State, 614 S.W.2d 420 (Tex.Cr.App.1980). In Gri-jaiva the Court held that any inquiry as to error in granting a State’s challenge for cause in violation of Adams v. Texas, 448 U.S. 38 , 100 S.Ct. 2521 , 65 L.Ed.2d 581 (1980) could not be obviated by the fact that at the conclusion of voir dire the State had remaining peremptory challenges. But even in Grijalva itself, we characterized Adams error as “error [that] affects only the death penalty[.]” 614 S.W.2d at 425 . If its goal was, as the State Prosecuting Attorney contends, expressly to authorize only a remand for a new punishment hearing whenever the only error in a capital murder trial is Adams /Witherspoon error committed during voir dire, the Legislature could hardly have chosen more appropriate language to effectuate that goal. Given the characterization in Grijalva , it seems indisputable that whatever Article 44.29(c) means by “error affecting punishment only,” we must construe it to embrace error in granting a State’s challenge for cause on the basis of an inability to follow some phase of the law that has application only to punishment phase issues. Garrett error is of this kind. *

For all these reasons I agree with the majority today that we were not at liberty on original submission to reverse the judgment of conviction without first assaying points alleging error at the guilt phase of trial. The majority therefore correctly proceeds to the merits of appellant’s guilt phase points of error. Nevertheless the majority errs, in my view, in failing to sustain, if not his sixth point of error, then at least his seventh. In his sixth point of error appellant claims the trial court erred in admitting evidence of extraneous misconduct for nothing more than its character conformity value, in violation of Tex.R.Cr.Evid., Rule 404(b). In his seventh point of error he argues that the probative value of that evidence, if any apart from character conformity, was substantially outweighed by the danger of unfair prejudice, and therefore should have been excluded under Tex.R.Cr.Evid., Rule 403.

Police investigators found the murder weapon, a .44 Ruger, in appellant’s possession upon his arrest. As I understand it, the *306 State’s theory of admissibility of testimony that appellant came to possess the Ruger as a result of a prior offense is that it was necessary to show he “owned” the weapon at some time before the instant offense so that the jury would not mistakenly conclude it had belonged to the victim himself, who was a gun dealer. Apparently the State’s concern was that if the Ruger was taken from the victim’s possession at the time of the offense, it might have been one of appellant’s accomplices rather than appellant himself who actually pulled the trigger; and it is not enough to refute that possibility that the gun was later recovered in appellant’s bedroom. Even accepting the legitimacy of this theory, it was not necessary to show how appellant came to possess the Ruger prior to the instant offense. As counsel for appellant pointed out at trial, it would have served the purpose to show through accomplice Johnson’s testimony the simple fact that appellant did in fact possess the gun at an earlier time. There was no need to prove he found it in a gym bag in a car he had stolen. See majority op. at 300. This amounts to nothing more than evidence appellant is a criminal in general, inviting the jury to reason, contrary to Rule 404(b), that he was guilty of the offense charged because that conclusion would be consistent with his criminal character.

Moreover, even if proof that the murder weapon that appellant possessed at some point prior to the crime was in fact stolen did somehow serve incrementally to strengthen the inference that he was the triggerman, the contribution of that evidence would be so marginal as to approach insignificance. The potential for unfair prejudice — that the jury would consider the evidence purely for its character conformity value — would substantially outweigh its probative value; so much so that I would declare that no reasonable trial court could refuse to exclude it, upon request, under Rule 403, even affording the trial court the degree of deference that Montgomery v. State, 810 S.W.2d 372, at 391-393 (Tex.Cr.App.1991) (Opinion on rehearing), calls for. Counsel for appellant more than adequately preserved both the relevance complaint and the Rule 403 complaint for appeal, and in my view the trial court erred to admit the complained-of testimony.

The State contends that any error in admitting the extraneous misconduct was harmless beyond a reasonable doubt, and hence Tex.R.App.Pro., Rule 81(b)(2) does not require us to reverse the conviction. I disagree. The State’s case was predicated largely upon the testimony of an accomplice, Isaac Johnson, who was the only witness who positively placed appellant at the scene of the shooting, and testified appellant himself was the shooter. At least one other witness testified that he saw appellant earlier in the evening in Johnson’s company, and that appellant was carrying a gun that looked like the Ruger. Thus, there was other evidence to connect appellant to the offense, and appellant does not contend the evidence failed to corroborate the accomplice’s testimony, as required by Article 38.14, Y.A.C.C.P. But appellant presented alibi testimony from two of his siblings, a twenty-one year old sister and a ten year old brother. Each maintained that on the evening of the killing, Johnson had come by their house to borrow the Rug-er, which appellant kept on the premises for protection in a rough neighborhood. Appellant did not go with Johnson, but stayed home that night. Early the next morning, according to appellant’s sister, Johnson returned the gun. These witnesses had an obvious bias, and the sister’s testimony was impeached; but their credibility was no more inherently suspect than Johnson’s. Under these circumstances I cannot discount the possibility that the prejudice engendered by showing appellant obtained the Ruger by illegal means contributed to the conviction. A jury having to choose whether to believe Johnson over appellant’s siblings may well have been unfairly influenced by the fact that appellant had previously committed another criminal act. I, for one, cannot conclude to a level of confidence beyond a reasonable doubt that admission of the extraneous offense did not contribute to appellant’s conviction.

Thus I believe reversible error occurred at both the guilt and punishment phases of trial. For this reason we should reverse the judgment of the trial court and remand the cause *307 for a whole new trial, albeit this time pursuant to Article 44.29(a), V.A.C.C.P., rather than Article 44.29(c). Because the Court does not, I dissent.

It should be noted that when Garrett itself was decided, the Legislature had not yet amended' Article 44.29(c) to read as it does in its present form.