Teague v. State

CLINTON, Judge,

dissenting.

I must dissent to, inter alia, the majority’s disposition of appellant’s seventh point of error. At 512-514. Venireman Osburn testified he would “automatically” answer the first special issue “yes” simply on the basis of having found an accused guilty of an intentional murder. The proposed majority opinion holds that Osburn was rehabilitated on this point, on authority of Sattiewhite v. State, 786 S.W.2d 271, at 279-281 (Tex.Cr. App.1989). I dissented in Sattiewhite , joined by Judge Duncan, on the ground that the venireman had not been genuinely rehabilitated. Likewise, I do not believe Osburn was genuinely rehabilitated in this ease.

The Court held the venireman in Sattiew-hite to have been rehabilitated because he asserted he could “follow the law” and would wait until all the evidence had been presented at the punishment phase of trial before making his decision as to the first special issue. In dissent I argued that a venireman who cannot tell any difference between “intentional” and “deliberate” cannot be rehabilitated

“by the simple expedient of promising to wait until all the punishment evidence is in to make his determination of ‘deliberateness.’ If in his mind ‘intentional’ and ‘deliberate’ are identical or synonymous, it does not matter when he makes the latter determination, so long as it follows his verdict finding that appellant intentionally killed. His resolution of the deliberateness issue will still be predetermined.”

Sattiewhite v. State, supra, at 291 (Clinton, J., dissenting).

Here, the prosecutor first broached the subject with venireman Osburn of the difference between “intentional” and “deliberate”:

“Q. Now, you will notice in [special issue one] that the Legislature has used the term deliberately, and you may recall that earlier I said if a defendant commits an intentional murder in the course of committing say a kidnapping as is set out in this Indictment, in this case. The term intentional has a legal definition and it is— it’s a person’s conscious objective or desire to engage in the conduct or cause the result. It’s a conscious objective or desire to kill somebody or cause their death that you would be dealing with in this kind of ease.

The term deliberately does not have a legal definition and therefore the jury is expected to use their own common understanding as to what that term means.

The jury obviously — the Legislature obviously could have used the term intentional but that would be a useless act because the jury will already have determined that the act was intentional, so if they wanted to use intentional instead of deliberately, they surely could have chosen that word.

I assume or I would suggest to you it calls for the jury to take a second look from a different vantage point in answering that question, so a jury doesn’t automatically answer Question Number 1 yes solely because they found a defendant acted intentionally at the first phase of the trial and not only just because the its [sic] a different word there but also because they may not have heard all of the evidence on that ‘particular issue until the close of the trial, so the jury would be expected to not answer that question until they had heard all of the evidence at the trial.

I take it you would be able to do that? A. Yes.” *

This multifaceted question entailed the qualification that the venireman could wait until all the evidence was in before answering the first special issue. To my way of thinking, Osburn’s affirmative answer therefore does not count as an undiluted expression that a finding of intentional murder would not dictate his answer to the deliberateness question. Sattiewhite, supra (Clinton, J., dissenting). Later, upon questioning by counsel for appellant, Osburn testified that he agreed *521 with the prosecutor’s assessment that “deliberately” “is different than the word intentionally.” Asked whether his resolution of the question of intentional murder would “automatically” supply an answer to the first special issue, however, Osburn indicated that it would.

“Q. Do you believe that [special issue one] can be answered automatically yes, if a jury has found someone guilty of capital murder at the first phase of the trial?

A. Say that again.

Q. Do you believe that first issue Punishment Issue Number 1 can automatically be answered yes, if a jury has found someone guilty of committing capital murder at the first phase of a capital murder trial?

A. Evidently I’m not understanding what you’re trying to ask.

Q. You see in the first phase of a capital murder trial the jury will have found someone has intentionally or knowingly committed a murder while in the course of committing some other offense such as kidnapping?

A. Okay.

Q. But they found intentional, intentional act, but here they are asked to find whether or not the conduct was deliberate and it was with the reasonable expectation that the death of the deceased or another would result.

So my question to you is: If you were on a jury that had found someone guilty of capital murder at the first phase, now that you go to the second phase would you look at punishment issue one and would you determine that that automatically must be answered yes based on your earlier finding?

A. I would feel like it would, if I found him guilty of the first.

Q. Why do you feel it should be automatically be answered yes?

A. Because they proved it without a shadow of a doubt he was guilty.

Q. In other words, that question in your own mind and that’s the only thing important to us now, in your own mind that question is not asking you to do anything additional to the finding you already made at the first phase of the trial?

A. I don’t feel like it is, no.”

With this, absent rehabilitation, Osburn proved himself challengeable for cause. See Gardner v. State, 730 S.W.2d 675 (Tex.Cr.App.1987); Martinez v. State, 768 S.W.2d 413 (Tex.Cr.App.1988).

After appellant made his challenge for cause, the prosecutor was allowed to question Osburn further, and the following colloquy ensued:

“Q. Mr. Osburn, I want to ask a couple other questions and I want to refer you back to the point in a trial of a capital murder case where the jury would be concerned with the issue of punishment.

And the Defense Counsel asked you a couple questions in which he threw in some terms and asked you if you had found, if you had facts in your mind, if you had found a defendant was guilty beyond a reasonable doubt, I believe he said would you tend to answer Question Number 1 yes, to automatically answer that Number 1 yes.

Would it be correct to say based on what you had said earlier when I was asking you some questions that you would answer that question based on the facts of a particular case?

A. I would base it on this case.

Q. Whatever case you were trying?

A. Yes.

Q. And, if the facts didn’t show that a yes answer was proved to you beyond a reasonable doubt you wouldn’t answer it no — you would answer it no unless it was proved yes?

A. Right.

Q. So, when you would — would it be fair to say that when you had — when [Defense Counsel] had asked you some questions about answering yes, you wouldn’t answer — you wouldn’t write down yes unless it was proven to you considering all of the evidence that you might hear whether it came to you in the first phase of the trial or you might hear some evidence in the second phase of a trial that might relate to that issue and you would keep an open mind and not answer it until you had heard all of the evidence; is that true?

*522 A. Right.

Q. In a particular case, and we’re not talking about this particular case, but in a ease in general in the abstract, it is possible under a given set of facts for a juror to find and a whole jury to be convinced that a defendant acted intentionally and yet when they had heard all of the evidence, it might still be that they would answer that question no, if the evidence in total doesn’t justify a yes answer, and if you were not convinced that a yes answer was appropriate, would you answer that first question no?

A. I would consider all of the facts before I even answered that question, regardless of where they came, whether the beginning or the middle, I wouldn’t attempt to answer it until I had heard all of them and they sayd [sic] that’s it, that’s all of the facts, now base it on that.”

Osburn’s answers here amount to no more than another assurance that he would not decide the first special issue until he had heard all the evidence. As in Sattiewhite , that will not alter the fact that his answer to the first special issue has already “automatically” been determined by virtue of his finding that an intentional murder was committed. For this reason, in my view, Osburn was not rehabilitated.

At the time the trial court denied his challenge for cause against Osburn, appellant had exhausted all fifteen of his peremptory challenges, and had also used the one additional peremptory challenge the trial court had granted him. Appellant requested yet another additional peremptory challenge. This was denied, and consequently Osburn became the twelfth member of the jury. Needless to say, appellant had made it clear Osburn was an objectionable juror. I would therefore hold that the trial court reversibly erred to deny appellant’s challenge for cause.

Because the majority does not, I respectfully dissent.

Emphasis supplied.