venireman who maintained his categorical opposition to death penalty would cause him invariably to answer jury nullification instruction in satisfaction of Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), in such a way as to prohibit imposition of death sentence was properly subject to State's challenge for cause.
How later courts described this case
- venireman who maintained his categorical opposition to death penalty would cause him invariably to answer jury nullification instruction in satisfaction of Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), in such a way as to prohibit imposition of death sentence was properly subject to State's challenge for cause.
- language that can reasonably be construed to refer to failure to present evidence other than from defendant’s own testimony does not violate right against self-incrimination
- noting that use of deadly weapon in deadly fashion raises inference that defendant intended to kill
- Baird, Overstreet and Maloney, JJ., concurring
Written by the judges who cited it.
The opinion
BAIRD, Judge,
concurring.
For the following reasons, I concur in the resolution of points of error six, fourteen and nineteen.
I.
In point of error six appellant contends the State’s peremptory strike of veniremember Calvert was racially motivated. After both parties and the trial judge questioned Calvert, the State exercised a peremptory strike. Appellant objected, contending the State struck Calvert because she was black. 1 The trial judge held “... I’ll find that the prima facie case has been made, so, we’ll hear the explanations.” 2 The State responded the strike was not racially moti *898 vated and provided twelve race-neutral reasons for the strike. 3 The trial judge overruled appellant’s objection. 4 Appellant now contends that ruling was erroneous.
The exclusion of any person from jury service on the basis of race is prohibited. Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). See also, Powers v. Ohio, 499 U.S. 400 , 111 S.Ct. 1364 , 113 L.Ed.2d 411 (1991); and, Tex.Code Crim. ProeAnn. art. 35.261. Once a defendant has objected to the State’s use of a peremptory strike and made a prima facie showing of racial discrimination,
... the burden then shifts to the attorney representing the state to give a racially neutral explanation for the challenges. The burden of persuasion remains with the defendant to establish purposeful discrimination.
Tex.Code Crim.Proe.Ann. art. 35.261.
The plurality refuses to reach the merits of the sixth point of error but instead summarily overrules the point.
The policy of this Court in Batson challenges has been not to review a trial court’s determination of whether the defendant has made a prima facie showing. Dewberry v. State, 776 S.W.2d 589, 591 (Tex.Cr.App.1989). Rather, we have avoided any rigid determinations for appellate review of such findings by trial courts.... However, in this instance the prima facie showing at the trial court was only that the State struck a member of an identifiable racial group. This is not sufficient to meet a defendant’s prima facie burden for purposes of Batson . ... Appellant’s sixth point of error is overruled.
As the plurality recognizes, we do not review the determination of a prima facie showing of discrimination when race-neutral reasons for the peremptory strike(s) are articulated. In Dewberry v. State, 776 S.W.2d 589 (Tex.Cr.App.1989), we stated:
The question of whether a defendant has established a prima facie case is normally not a concern for appellate review.... Where the [State] has done everything that would be required of [it] if the [defendant] had properly made out a prima facie case, whether the [defendant] really did so is no longer relevant.
Id., 776 S.W.2d at 591, n. 2 (Internal quotation marks omitted). (Emphasis in original.) Further, in Hill v. State, 827 S.W.2d 860 (Tex.Cr.App.1992), we stated:
... the policy of this Court, like that of the United States Supreme Court, is that we will not review the issue of whether the defendant established a prima facie case where the prosecutor has articulated his reasons for the challenged peremptory strike and the trial court has ruled on the ultimate questions of intentional discrimination. 5
Id., 827 S.W.2d at 865 . The plurality offers no reason or justification for its decision to deviate from this established policy. The plurality opinion will only serve to confuse what was previously a settled area of law.
The record is sufficient to address the merits of this point of error. None of the *899 State’s explanations indicate that Calvert was struck on the basis of race. The State’s first explanation dealt with Calvert’s general opposition to capital punishment. Although Calvert stated that if selected she would follow her oath and the law and render a verdict based upon the evidence, she further indicated that if she were a legislator voting on the propriety of capital punishment she would vote against it. These comments “present the precise situation where a peremptory challenge is appropriate, viz: the prospective juror is not challengeable for cause, but the prosecutor does not believe the venireperson will be [a] favorable juror for the State.” Mines v. State, 852 S.W.2d 941, 946 (Tex.Cr.App.1992). Because the ruling of the trial judge is not clearly erroneous, see, Hill, 827 S.W.2d at 865 ; Williams v. State, 804 S.W.2d 95, 101 (Tex.Cr.App.1991); and Whitsey v. State, 796 S.W.2d 707, 726 (Tex.Cr.App.1989) (opinion on rehearing), I concur in the disposition of appellant’s sixth point of error.
II.
Appellant’s fourteenth and nineteenth points of error dramatically illustrate the confusion that has arisen in capital jurisprudence since Penry v. Lynaugh, 492 U.S. 302 , 109 S.Ct. 2934 , 106 L.Ed.2d 256 (1989). Further, these points of error raise two valid concerns over the application of Penry : 1) whether Penry should be used to exclude jurors who, under Adams and Wainwright, are otherwise qualified to serve; and, 2) whether the uncontrolled discretion denounced in Furman is now sanctioned by the requirement of a Penry vehicle.
A. A Constitutional Capital Sentencing Scheme
In Furman v. Georgia, 408 U.S. 238 , 92 5.Ct. 2726, 33 L.Ed.2d 346 (1972) (decided in conjunction with Branch v. Texas), the Supreme Court held the Texas capital sentencing scheme allowed uncontrolled discretion, was overly broad and unconstitutional under the Eighth Amendment. The Legislature responded to Furman by enacting Tex. Code Crim.Proc.Ann. art. 37.071, narrowing the class of persons subject to capital punishment and providing for the assessment of capital punishment based upon the jury’s response to statutory punishment issues. 6 This capital sentencing scheme passed constitutional muster in Jurek v. Texas, 428 U.S. 262, 276 , 96 S.Ct. 2950, 2958 , 49 L.Ed.2d 929 (1976).
The first successful constitutional challenge to art. 37.071 occurred in Penry where mitigating evidence was presented that Pen-ry was mentally retarded and suffered from organic brain damage resulting in poor impulse control and the inability to learn from experience. Further evidence was presented that Penry was abused as a child. The Supreme Court found the jury was unable to give effect to Penny’s mitigating evidence through the statutory punishment issues and held art. 37.071 was unconstitutional as applied.
Penry teaches that, in order to pass Constitutional muster, a capital sentencing scheme must provide the jury with a vehicle to “consider and give effect to mitigating evidence relevant to a defendant’s character or record or the circumstances of the offense.” Penry, 492 U.S. at 319 , 109 S.Ct. at 2946 . We have judicially approved two such vehicles. In State v. McPherson, 851 S.W.2d 846 (Tex.Cr.App.1992), we approved the use of an additional punishment issue allowing the jury to determine if “the death penalty is a reasoned moral response to the Defen *900 dant’s background, his character, and to the crime of which he was convicted.” Id., 851 S.W.2d at 850 . In Fuller v. State, 829 S.W.2d 191 (Tex.Cr.App.1992), we approved an instruction permitting the jury to nullify its affirmative answer to one of the statutory punishment issues if the mitigating evidence demonstrated a life sentence was appropriate. Id., 829 S.W.2d at 209 .
In 1991, the Legislature responded to Pen-ry by amending art. 37.071 and requiring the jury to answer the following statutory punishment issue:
Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant’s character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.
Tex.Code Crim.Proc.Ann. art. 37.071(2)(e).
B. Juror Qualifications in a Capital Case
After Jurek , an issue arose concerning whether a veniremember, opposed to capital punishment, was disqualified to serve on a capital jury. Tex.Penal Code Ann. § 12.31(b) provided for the exclusion of any juror who would be affected by the mandatory penalty of death or life imprisonment for those convicted of capital murder. 7 However, the Supreme Court held the operation of § 12.31(b) impermissibly excluded qualified jurors. Adams v. Texas, 448 U.S. 38, 49 , 100 S.Ct. 2521, 2528 , 65 L.Ed.2d 581 (1980). The Court stated:
... Nor in our view would the Constitution permit the exclusion of jurors from the penalty phase of a Texas murder trial if they aver that they will honestly find the facts and answer the questions in the affirmative if they are convinced beyond a reasonable doubt, but not otherwise, yet who frankly conceded that the prospects of the death penalty may affect what their honest judgment of the facts will be or what they may deem to be a reasonable doubt.
Adams, 448 U.S. at 50 , 100 S.Ct. at 2529 . The Court reaffirmed Adams in Wainwright v. Witt, 469 U.S. 412 , 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985), holding:
We therefore take this opportunity to ... reaffirm the ... standard from Adams as the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment. That standard is whether the juror’s views would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.”
Id., 469 U.S. at 424 , 105 S.Ct. at 852 .
C. Adams and Wainwright v. Penry
While the capital punishment issues that arose in Adams and Wainwright would appear to be settled, the instant case questions the continued viability of those cases after Penry . Veniremember Chandler expressed her general opposition to capital punishment but stated she could set aside those feelings and decide appellant’s case in accordance with her oath and the trial judge’s instructions. Accordingly, under Adams and Wainwright , Chandler was qualified to serve on appellant’s jury. Indeed, the State concedes Chandler’s general opposition to capital punishment would not have prevented or substantially impaired the performance of her duties in accordance with art. 37.071(b). However, Penry effectively changed the law *901 by requiring a vehicle. 8 In the instant case, the trial judge stated the Penry vehicle would be in the form of an additional punishment issue allowing the jury to consider and give effect to any mitigating evidence. The State questioned whether Chandler’s opposition to capital punishment would impair her ability to render a verdict on that additional issue. Chandler stated her opposition to capital punishment would cause her to answer the additional issue in such a way as to avoid the imposition of death. The trial judge sustained the State’s challenge for cause.
The Waimoright Court was unequivocal in holding that a juror, generally opposed to capital punishment but true to her oath and the trial judge’s instructions was qualified to serve on a capital jury. Yet today we see Penry used as a means to disqualify such a juror. When two decisions of our nation’s highest court conflict, which shall we follow?
That we need guidance in this area cannot be disputed. With almost four hundred inmates on death row, we struggle daily with the application and interpretation of Penry . In the five years since Penry , we have been asked to determine: when a Penry claim is preserved; 9 what is Penry evidence; 10 when a Penry vehicle is required; 11 and what vehicle is sufficient. 12 Yet in the same five years the Supreme Court has addressed Pen-ry only on two occasions. In Johnson v. Texas, - U.S. -, 113 S.Ct. 2658 , 125 L.Ed.2d 290 (1993), the Supreme Court determined that evidence of youth can be given effect under the statutory punishment issues. The Court instructed that Penry does not require that the jury be able to consider mitigating evidence “in every conceivable manner in which the evidence might be relevant,” only that the jury have “room for independent judgment in reaching its decision.” Id., - U.S. at -, 113 S.Ct. at 2660 .
In Graham v. Collins, 506 U.S. -, 113 S.Ct. 892 , 122 L.Ed.2d 260 (1993), the Court never reached the merits of Graham’s contentions that mitigating evidence of youth, acts of kindness, religious devotion, redeeming character traits and a troubled family background were beyond the scope art. 37.071(b). However, in dictum, the Court stated:
We do not read Penry as effecting a sea change in this Court’s view of the constitutionality of the ... Texas death penalty statute; it does not broadly suggest the invalidity of the special issues framework. Indeed, any such reading of Penry would be inconsistent with the Court’s conclusion in that case that it was not announcing a “new rule” within the meaning of Teague v. Lane, [ 489 U.S. 288 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989)]....
Graham , 506 U.S. at -, 113 S.Ct. at 894.
*902 And we still do not know the ultimate impact of Penry and its progeny. 13
D. Furman v. Penry
Furthermore, appellant contends that Pen-ry now allows the jury the same uncontrolled discretion forbidden by Furman . This is a proposition with which Justice Thomas agrees. In his concurring opinion in Graham , Justice Thomas stated:
... Whatever contribution to rationality and consistency we made in Furman , we have taken back with Penry . In the process, we have upset the careful balance that Texas had achieved through the use of its special issues.
* * * * * *
Penry reintroduces the very risks that we had sought to eliminate through the simple directive that States in all events provide rational standards for capital sentencing. For 20 years, we have acknowledged the relationship between undirected jury discretion and the danger of discriminatory sentencing — a danger we have held to be inconsistent with the Eighth Amendment. When a single holding does so much violence to so many of this Court’s settled precedents in an area of fundamental constitutional law, it cannot command the force of stare decisis. In my view, Penry should be overruled.
Graham , 506 U.S. at -, 113 S.Ct. at 911, 913 (Thomas, J., concurring).
Although I do not agree that Penry should be overruled, I can sympathize with Justice Thomas. I do not believe the Supreme Court anticipated the broad effect Penry would have on capital jurisprudence or the difficulties state courts would face in its application. I can only hope the Supreme Court will recognize the confusing and difficult constitutional path it has created in capital jurisprudence.
When the opinions of the Supreme Court are conflicting or inconsistent, our only course is to apply the holdings of the most recent opinion and await further guidance. Because the plurality follows that course I concur in the resolution of appellant’s fourteenth and nineteenth points of error.
With these comments, I join the judgment of the Court.
OVERSTREET and MALONEY, JJ., join this opinion.
MILLER and CAMPBELL, JJ., join only Part I of this opinion and otherwise join the judgment of the Court.
. The record reveals three black veniremembers were successfully challenged for cause prior to the voir dire of Calvert. Calvert was the only remaining black on the venire. Consequently, by striking Calvert, the State struck 100% of the black veniremembers.
. The State objected to the trial judge’s ruling contending appellant failed to make a prima facie case. The trial judge sustained the State's objection, but stated "... I want to hear the reason anyway.”
. The State recited the following reasons for the strike: 1) Calvert held a general opposition to the death penalty; 2) Calvert demonstrated an inability to answer direct and clear questions; 3) Calvert expressed displeasure with the trial judge's decision to sequester the jury during trial; 4) Calvert had a nervous demeanor throughout voir dire; 5) Calvert demonstrated an inability to understand or follow the law; 6) Calvert's employer had a son currently representing a criminal defendant charged with capital murder; 7) Calvert was unable to articulate when, in her opinion, the death penalty was appropriate; 8) although Calvert was employed in a restaurant, she expressed no feelings about a capital murder committed in a restaurant; 9) Calvert was hesitant when questioned concerning the use of an intentional act to support a conviction for capital murder and sentence of death; 10) the State unsuccessfully challenged Calvert for cause; 11) Calvert equated the terms "intentional” and “deliberate”; and, 12) Calvert appeared to be weak willed and "unable to maintain any opinion in the face of the questioning or challenge.”
. The trial judge found the fifth and seventh reasons were not supported by the record. See n. 3., supra.
. All emphasis is supplied unless otherwise indicated.
. Before a sentence of death was imposed, Tex. Code Crim.Proc.Ann. art. 37.071(b) required the jury to unanimously answer the following punishment issues in the affirmative:
(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
(3)if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.
Acts 1973, 63rd Leg., p. 1125, ch. 426, art. 3, § 1, eff. June 14, 1973.
. Tex.Penal Code Ann. § 12.31 stated:
Prospective jurors shall be informed that a sentence of life imprisonment or death is mandatory on conviction of a capital felony. A prospective juror shall be disqualified from serving as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue or fact.
Acts 1973, 63rd Leg., p. 1124, ch. 426, art. 2, § 2, eff. Jan. 1, 1974. Partially repealed September 1, 1991.
. Appellant’s trial was conducted in March, 1991. On September 1, 1991, the legislatively created Penry issue became mandatory. See, art. 37.071(e). Prior to September 1, 1991, the trial judge determined whether a Penry vehicle was required. That decision was subject to appellate review.
. See e.g., Black v. State, 816 S.W.2d 350, 369 (Tex.Cr.App.1991); Selvage v. Collins, 816 S.W.2d 390 (Tex.Cr.App.1991); and, Ex parte Kelly, 832 S.W.2d 44 (Tex.Cr.App.1992).
. See e.g., James v. State, 805 S.W.2d 415, 417 (Tex.Cr.App.1990); Gribble v. State, 808 S.W.2d 65, 76 (Tex.Cr.App.1990); Ex parte Ellis, 810 S.W.2d 208, 212 (Tex.Cr.App.1991); Ex parte Baldree, 810 S.W.2d 213 (Tex.Cr.App.1991); Lewis v. State, 815 S.W.2d 560, 567 (Tex.Cr.App.1991); Trevino v. State, 815 S.W.2d 592, 621 (Tex.Cr.App.1991); Ramirez v. State, 815 S.W.2d 636, 656 (Tex.Cr.App.1991); Black v. State, 816 S.W.2d 350, 365, 369 (Tex.Cr.App.1991); Ex parte Goodman, 816 S.W.2d 383 (Tex.Cr.App.1991); Ex parte Herrera, 819 S.W.2d 528 (Tex.Cr.App.1991); Ex parte Rogers, 819 S.W.2d 533, 534 (Tex.Cr.App.1991); Joiner v. State, 825 S.W,2d 701, 707 (Tex.Cr.App.1992); and, First v. State, 846 S.W.2d 836, 842 (Tex.Cr.App.1992).
. See e.g., Lackey v. State, 819 S.W.2d 111 (Tex.Cr.App.1991) (opinion on reh’g); Goss v. State, 826 S.W.2d 162 (Tex.Cr.App.1992); Nobles v. State, 843 S.W.2d 503 (Tex.Cr.App.1992); Mines v. State, 852 S.W.2d 941 (Tex.Cr.App.1992); and, Richardson v. State, 879 S.W.2d 874 (Tex.Cr.App.1993).
. See, State v. McPherson, 851 S.W.2d 846 (Tex.Cr.App.1992); Fuller v. State, 829 S.W.2d 191 (Tex.Cr.App.1992); and, Rios v. State, 846 S.W.2d 310 (Tex.Cr.App.1992).
. In seven separate death penalty cases, the Supreme Court recently granted petitions for certiorari, vacated our judgments and remanded each case to this Court for consideration in light of Johnson, supra. See, Mines v. Texas, — U.S. -, 114 S.Ct. 42 , 126 L.Ed.2d 13 (1993); Earhart v. Texas, - U.S. -, 113 S.Ct. 3026 , 125 L.Ed.2d 715 (1993); Granviel v. Texas, — U.S. -, 113 S.Ct. 3027 , 125 L.Ed.2d 715 (1993); Hawkins v. Texas, — U.S. -, 113 S.Ct. 3029 , 125 L.Ed.2d 718 (1993); Lucas v. State, - U.S. -, 113 S.Ct. 3029 , 125 L.Ed.2d 717 (1993); Richardson v. Texas, — U.S. -, 113 S.Ct. 3026 , 125 L.Ed.2d 715 (1993); and, Zimmerman v. Texas, — U.S. -, 114 S.Ct. 374 , 126 L.Ed.2d 324 (1993).