Broxton v. State

CLINTON, Judge,

dissenting.

As I did in Smith v. State, 898 S.W.2d 838 (Tex.Cr.App.1995), I dissent to the Court’s disposition of appellant’s claim, in his sixth point of error, that the failure to inform the jury of the minimum period he would be incarcerated before becoming eligible for parole under a life sentence for capital murder violated his right to due process under Simmons v. South Carolina, — U.S.-, 114 S.Ct. 2187 , 129 L.Ed.2d 133 (1994). I also dissent to the Court’s disposition of appellant’s second point of error, concerning the State’s challenge for cause against venireman Dwayne Edward Nolan.

I.

As Judge Maloney and Judge Overstreet illustrates in their dissents, appellant adduced evidence from which a jury could conclude that he poses a significantly lesser danger to prison society than he does to society at large. Absent some mechanism to inform the jury of at least the minimum period of time appellant would in fact be confined to prison society, appellant was urn-able to emphasize for the jury the full mitigating impact of this evidence as it related to the statutory issue whether he would pose a continuing threat to society. As long as evidence has a tendency to show appellant will not pose a threat to some facet of society, due process requires that he be allowed to present it. Simmons v. South Carolina, supra, at-, n. 5, 114 S.Ct. at 2194-2195, n. 5 , 129 L.Ed.2d at 143-144, n. 5 . For reasons given in Part III of my dissenting opinion in Smith , I dissent today as well to the majority’s disposition, such as it is, of appellant’s sixth point of error.

II.

I also believe the trial court erred in granting the State’s challenge for cause against venireman Nolan. The Court assures us that the trial court applied the correct legal standard (that is, whether Nolan was substantially impaired in his ability to follow the law), and that the record supports its “implied finding” that he was, in fact, unable to follow the law. But the Court never informs us *920 what aspect of the law Nolan is supposed to have had a bias against. Nor does the Court demonstrate where in the record the prosecutor, as proponent of the challenge, explained to Nolan what the law would require of him before challenging him on the ground that he could not conform. This Court cannot put its imprimatur on the trial court’s conduct without first showing that Nolan understood what the law expected of him, and that he was unable or unwilling to oblige.

Nolan’s answers to the questions posed both by the State and appellant were fairly inartful, but from them we can glean two unvarying and unequivocal attitudes on his part. First, Nolan was perfectly able and willing to answer the third special issue contained in Article 37.071, § 2(e) in accordance with whatever evidence was presented to him. Second, without hearing any evidence at all, Nolan would be inclined, if called upon to do so, to answer that issue “yes” — which would, of course, result in the imposition of a life sentence. In ruling on the State’s challenge, the trial court clearly found Nolan unacceptable because of this latter inclination, for it opined that “it was apparent from Mr. Nolan’s responses that he was certainly leaning towards answering [the § 2(e) issue] yes before any issue was presented to him, and certainly before any of the facts were presented to him.” But neither the trial court then, nor this Court today, bothers to explain in what respect Nolan was thus biased against the law. That is to say, no one bothers to explain why Nolan’s inclination to find sufficient mitigation to justify imposition of a life sentence in the absence of any evidence constitutes a bias or prejudice against some aspect of the law upon which the State is entitled to rely. See Article 35.16(b)(3), V.A.C.C.P.

Whether Nolan’s inclination to mitigate in the absence of evidence evinces a bias against the law depends in the first place upon which party, the State or the capital defendant, has the burden of proof under Article 37.071, § 2(e), supra. It is the function of a burden of proof to determine which party should prevail on a particular issue in the event the evidence relevant to that issue is in perfect equipoise. To say that no evidence has been presented on the issue is functionally the same as saying the evidence is in perfect equipoise. Either way, without assigning a burden of proof to one party or the other, we would not know how to determine the winner. Once we do assign the burden of proof, we know that in the event no evidence is presented, the party with the burden loses. By this accounting, before we can say that Nolan’s inclination to answer the § 2(e) special issue “yes” in the absence of evidence amounts to an inability to follow the law, we must know which party shoulders the burden of proof on that issue. Indeed, should we hold that the burden falls upon the State, far from constituting a bias against the law, Nolan’s inclination would coincide with it.

We have never expressly resolved this question of who has the burden of proof on the Article 37.071, § 2(e) issue. We came closest in Barnes v. State, 876 S.W.2d 316 (Tex.Cr.App.1994), where we commented on the question in passing. Barnes had argued that the trial court erred not to instruct the jury at the punishment phase of his capital murder trial that the State had a burden to negate evidence proffered in mitigation of the death penalty. This Court held that the trial court had not erred because neither the Eighth Amendment, nor any state provision implementing it, had assigned such a burden to the State. In a footnote we remarked:

“Currently, Article 37.071 mandates that a jury that finds beyond a reasonable doubt, as required by Subsection (c), that the special issues under Subsection (b) should be answered affirmatively must go on pursuant to Subsection (e) to decide whether mitigating circumstances nevertheless warrant a life sentence. However, neither Subsection (e) nor Subsection (e) itself expressly assigns a particular burden of proof on the issue of mitigation. It might be argued, although we certainly have no occasion here to hold, that Subsection (c) implicitly assigns the burden to the beneficiary of a finding of ‘sufficient miti *921 gating ... circumstances to warrant that a sentence of life ... be imposed.’ Cf. Arnold v. State, 786 S.W.2d 295, at 298 (Tex. Cr.App.1990) (State has burden of proof to establish harmless error under Tex. R.App.P. 81(b)(2), as beneficiary of the error). That, of course, would be the defendant.”

Id., at 330, n. 17 .

I agree with the Barnes footnote that Article 37.071, § 2(e) assigns at least a burden of ‘production to the defendant. Before a capital jury can even reach the § 2(e) issue, it must have affirmatively found the existence of aggravating facts under Article 37.071, § 2(b), for which the State expressly harbors the burden of proof, under § 2(c). Once these facts have been established to the jury’s satisfaction to a level of confidence beyond a reasonable doubt, the jury proceeds to the § 2(e) special issue, viz: “whether ... there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.” (Emphasis added.) If there are not sufficient mitigating circumstances, the default position is that a sentence of death will be imposed. This means, of course, that it is the capital defendant who stands to benefit from the presentation of mitigating evidence. Because he is, thus, the beneficiary of mitigating evidence, the burden of production falls to him. Arnold v. State, supra. This necessarily means that if no mitigating evidence is adduced from any source, a rational jury would not be at liberty to answer the special issue “yes.” For this reason I agree with the Court that Nolan’s inclination to answer the § 2(e) issue “yes” does indeed tend to evince a bias against a phase of the law upon which the State is entitled to rely.

But this does not fully resolve the question whether the trial court erred to grant the State’s challenge for cause. A venireman must be told what the law requires of him before it can be established that he cannot follow it. Cuevas v. State, 742 S.W.2d 331, 343, n. 12 (Tex.Cr.App.1987). That the venireman harbors some attitude antithetical to the law is of no moment so long as he can lay that attitude aside and abide by the requirements of the law. The proponent of a challenge for cause has the burden of establishing his challenge is proper. Hernandez v. State, 757 S.W.2d 744, 753 (Tex.Cr.App.1988) (plurality opinion). The proponent does not meet that burden until he has shown that the venireman understood the requirement of the law and could not overcome his prejudice well enough to follow it. We have applied this eminently sensible principle often enough when it was a capital defendant making the challenge for cause against a venireman who held some aspect of the law upon which the defendant was entitled to rely in low regard. See, e.g., Cuevas v. State, supra; Trevino v. State, 815 S.W.2d 592, 614 (Tex. Cr.App.1991); Teague v. State, 864 S.W.2d 505, 513 (Tex.Cr.App.1993). Cf. Martinez v. State, 899 S.W.2d 655 (Tex.Cr.App.1994) (appellant’s challenge for cause appropriately denied where, even though venireman opined in response to inartful questioning that he would not be able to follow court’s instruction not to apply law of parties at punishment phase of trial, counsel’s questions were “confusing and were not followed up by more pinpoint questioning” whether he could follow the law). That the Court should blatantly ignore this principle when the State is the proponent of the challenge for cause “does not speak well of the evenhandedness of our supposedly adversarial criminal justice system.” Smith v. State, supra, at 872, n. 16 (Clinton, J., dissenting).

It was nowhere explained to venireman Nolan in this cause that the law assigns the burden of production (if not persuasion) to the defendant to adduce mitigating evidence at the punishment phase in a capital case, and that, in the absence of evidence, he therefore may not lawfully answer the § 2(e) special issue “yes.” Without this explanation, it cannot be determined whether Nolan could overcome his inclination to answer the special issue affirmatively in the absence of evidence, and follow the law instead. Thus, the State has failed to satisfy its burden to *922 show that Nolan was challengeable for cause, and the trial court abused its discretion to grant the challenge.

Accordingly, the Court should at least reverse the judgment of the trial court and remand the cause for a new punishment hearing, under Article 44.29(c), V.A.C.C.P., if not for a whole new trial. See Ransom v. State, — S.W.2d - [ 1994 WL 259057 ] (Tex.Cr.App., No. 71,633, delivered June 15, 1994) (pending State’s motion for rehearing) (Slip op. at 5 n. 5). Because the Court does not, I respectfully dissent.