“[A] trial judge may properly overrule a challenge for cause even if a venire member is not unequivocal as to the ability to follow the law despite personal prejudices.”
How later courts described this case
- “[A] trial judge may properly overrule a challenge for cause even if a venire member is not unequivocal as to the ability to follow the law despite personal prejudices.”
- “Even if [the venire-member] vacillated about his ability to set aside his personal feelings on a defendant’s decision to testify, we must defer to the ruling of the trial court.”
Written by the judges who cited it.
The opinion
O’CONNOR, Justice,
dissenting.
I dissent from the panel’s resolution of point of error one, regarding the motion to excuse a member of the venire. The appellant contends Shatto should have been excused for cause because Shatto said he would be unable to disregard the appellant’s failure to testify. I agree.
The majority resolves point of error one by stating that, although Shatto initially indicated he would have a problem, he eventually stated that he would follow the law and the rules of the court. I disagree with that characterization of Shatto’s statements.
Shatto repeatedly — seven times — said he would have a problem if a defendant did not testify. Then, without connecting the right not to testify to the court’s instruction on that issue, Shatto was asked if he would refuse to follow the law. Not surprisingly, he said he would not. However, he was not told that he would have to put aside his prejudice against a defendant who refused to testify in order to follow the law. No upstanding citizen is ever going to state that he or she would refuse to follow the law.
Not only does the record not support the majority’s characterization of Shatto’s testimony, the authority cited by the majority does not support its result. Quoting from the majority opinion: “If venire members testify unequivocally as to their ability to follow the law despite personal prejudices, the trial court does not abuse its discretion in overruling a challenge for cause on that basis.” Brown v. State, 913 S.W.2d 577, 580 (Tex.Crim.App.1996). There was no attempt in this case to find out if Shatto could follow the law “despite personal prejudices In Brown , after the venire member admitted his *464 prejudice against a defendant who would not testify, the court asked him the following:
[T]he Court would simply like to inquire if the Court instructs you of the Defendant’s right not to testify and if you are instructed and in the event that the Defendant fails to testify, you cannot and must not consider that for any purpose as evidence against him.... [Cjould you follow the Court’s instructions if you were so instructed by the Court that you could not consider that for any purpose or evidence of guilt.
Id. at 579 .
After Shatto stated seven times that he would have a problem if the appellant did not testify, the assistant district attorney [ADA] merely asked the following:
ADA: So, we’re not asking you if you could remove every doubt or set all your feelings aside about it.
Shatto: Sure.
ADA: But would you refuse to follow the law?
Shatto: Oh, no.
ADA: Even if you believe I can’t carry my burden?
Shatto: No, there would always be that doubt there. If I was innocent I would want to get up and say, “Look. I’m innocent.”
ADA: Would you vote according to the rules that the court gives you, though? Shatto: Well, sure.
Here, neither the court nor the ADA asked Shatto if he could follow the law as related to the appellant’s refusal to testify. 1 I would sustain point of error one.
Shatto, unlike Parsons, was not unequivocal in his ability to follow the law. I believe the court abused its discretion in overruling the appellant’s motion to excuse him for cause. I would sustain the appellant’s point of error one.
. In contrast, the ADA, in a lengthy soliloquy, told venire person Parsons about the defendant’s right not to testify, how it was the law, and would be included in the court’s instruction.