Petition — Hernandez v. Texas
Supreme Court brief1983
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RECEIVED
MAR 2 4 1983
OFFICE OF THE CLERK
SUPREME COURT, U.S.
vo. 82 6448
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1982
RAMON PEDRO HERNANDEZ,
Petitioner,
Vv,
THE STATE OF TEXAS,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS OF TEXAS
ATTORNEYS FOR PETITIONER:
VICTOR R. ARDITTI
Texas State Bar No. 01298000
1014 North Mesa
El Paso, Texas 79902
(915) 533-4444
(Lead counsel and member of
the Bar of this Court)
RICHARD M. LOVELACE
Texas State Bar No. 12604000
1014 North Mesa
El Paso, Texas 79902
(915) 532-4400
1. 82 6448
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1982
RAMON PEDRO HERNANDEZ,
Petitioner,
¥e
THE STATE OF TEXAS,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS OF TEXAS
Petitioner prays that a writ of certiorari issue to
review the judgment of the Court of Criminal Appeals of
Texas, entered January 20, 1982, rehesring denied January
18, 1983.
QUESTION PRESENTED
Whether the rule of Witherspoon v
Illinois, 391 U.S. 510 Ciseey was
violated by the exclusions for cause
of four prospective jurors who, des-
pite reservations @s to the death
penalty, did not make it unmistakably
clear that they would automatically
vote against the death penalty, or
thet their attitude about the death
penalty would prevent them from making
an impartial decision as to guilt.
TABLE OF CONTENTS
QUESTION PRESENTED ...--eeereeeseerecccrrccre® eee
TABLE OF AUTHORITIES ...cceeeeeeerererercvseseses
CITATIONS TO OPINIONS BELOW ..ceeeeeeeeerverrcees
SURISDICTION wcccccccccccscvcseseseosecsssesesees
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED ..cccccccccvesereseesesereser”
STATEMENT OF THE CASE .ocoeeeevecrcrceersvevrere®
HOW THE FEDERAL QUESTIONS WERE RAISED AND
DECIDED BELOW ....ceecceveererrererrres®
ARGUMENT FOR GRANTING THE WRIT weeeeeeeeeerercees
CONCLUSION .ccccccccccecccscvcesesessssssesesere®
CERTIFICATES OF MAILING AND SERVICE .wseeeeeevees
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TABLE OF AUTHORITIES
Page
CASES
Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521,
65 L.Ed.2d 58] (3980). .ccccccccvccssece ret 20
Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399,
50 L.Ed.2d 339 (1976) woccccvcvcevseseveesess 22
Hernandez v. State, 643 S.W.2d 397 (Tex.Crim.
App. 1982, reh den 1983) ...6- errr rT ere ee hs ee
Witherspoon v. Illinois, 391 U.S. $10, 68 S.Ct.
1770, 20 Leb. 26 776 CIGBB) ccosecevesscveeese Tne
19-23
STATUTES
Texas Code of Criminal Procedure,
Article 37.071] weccoee COE eT TTC TEY Oe a, OO,
17
Texas Penal Code, Sec. 12.3] wecceeveeceseeesevees ~ rer i"
CITATIONS TO OPINIONS BELOW
The opinion of the Texas Court of Crimina! Appeals is
reported at 643 S.W.2d 397 (Tex.Crim.App. 1982, reh den
1983), and is annexed hereto as Appendix A,
JURISDICTION
Jurisdiction of this Court is invoked pursuant to 26 U.5.C.
eec.. 12397(3).
The opinion of the Court of Criminal Appeals was entered
on January 20, 1982. The motion for rehearing was overruled
on January 18, 1983, wibout an opinicn of the court.
- 6 e
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED
he This case involves the Sixth, Eighth, and Fourteenth
Amendments to the Constitution of the United States.
2. This case also involves the following Texas statutes:
Texas Penal Code, Sec. 12.31. Capital Felony.
(a) An individual adjudged guilty of a capital felony
shall be punished by confinement in the Texas
Department of Corrections for life or by death.
(b) Prospective jurors shall be informed that @ sen-
tence of life imprisonment or death is mandatory
on conviction of a capital felony. A prospective
juror shall be disqualified from serving as 4
juror unless he states under oath that the manda-
tory penalty of decth or imprisonment for life
will not affect his deliberations on any issue
of fact.
Texas Code of Criminal Procedure, Article 37,071. Pro-
in Capital Case.
(a) Upon a finding that the defendant is guilty of a
capital offense, the court shall conduct a separate
sentencing proceeding to determine whether the
defendant shall be sentenced to death or life
imprisonment. The proceeding shall be conducted
in the trial court before the trial jury 48 soon
as practicable. In the proceeding, evidence may
be presented as to any matter that the court deems
relevant to sentence. This subsection shall not
be construed to authorize the introduction of any
evidence secured in violation of the Constitution
of the United States or of the State of Texas.
The state and the defendant or his counsel shall
be permitted to present argument for or against
sentence of death,
(b) On conclusion of the presentation of the evidence,
the court shall submit the following issues to the
jury:
(1) whether the conduct of the defendant that
caused the death of the decedent was com-
mitted deliberately and with the reasonable
expectation that the death of the deceased
or another would result;
(2) whether there is a probability thet the
defendant would commit criminal acts of
violence that would constitute a contin-
uing threat to society; end
(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, of the deceased.
Li ae
(c) The state must prove each issue submitted beyond
@ reasonable doubt, and the jury shall return a
special verdict of “yes" or "no" on each issvue
submitted.
(d) The court shall charge the jury that:
(1) it may not answer any issue "yes" unless it
agrees unanimously; and
(2) at may not answer any issue “no” unless 10
or more jurors agree,
(e) If the jury returns an affirmative finding on each
issue submitted under this article, the court shal!
sentence the defendant to death. If the jury re-
turns @ negative finding on any issue submitted
under this article, the court shall sentence the
defendant to confinement in the Texas Department
of Corrections for life. (This was the text of
the statute in 1980, when Petitioner was tried.
It has since been amended slightly, and in a manner
not relevant to this case.)
(f) The judgment of conviction and sentence of death
shall be subject to automatic review by the Court
of Criminal Appeals within 60 days after certifi-
cation by the sentencing court of the entire record
unless time is extended an additional period not
to exceed 30 days by the Court of Criminal Appeals
for good cause shown. Such review oy the Court
of Criminal Appeals shall have priority over all
other cases, and shall be heard in accordance with
rules promulgated by the Court of Criminal Appeals.
STATEMENT OF THE CASE
By an indictment returned on July 24, 1980, Ramon Pedro
Hernandez was charged with the murder of Oscar Martin Frayre,
on or about June 26, 1980, in the course of a filling station
robbery. He entered a plea of not guilty.
On September 8, 1980, the trial of Mr. Hernandez began
with the individual voir dire of potential jurors. versal
venirepersons were excused for cause after expressing reser-
vations concerning the death penolty. The coastitutional
question now presented arises from that process of jury
selection.
A. Voir dire of venireperson Michael J. Knapp.
Mr. Michael J. Knapp was excused for cause upon motion
- 6 «
of the state because of his responses to questions concerning
the death penalty. His entire voir dire appears at SF 180-87.+/
A photocopy of it is attached hereto as Appendix B. The per-
tinent part of it is excerpted as follows:
Q: (By the District Attorney) ... 1 need to know how
you feel. Do you feel like you could sit in here
in a capital murder case and sentence another human
being to death?
At No, sir.
Q: Is this a feeling that you have carried inside you
for a long period of time?
A: Just a short time 1 feel,
Q: I take it by your answer that you don't agree with
the death penalty?
A: That's correct.
Q: (By the District Attorney) Can you think of any
case in your own mind where you could ever consi-
der sentencing another human being to death?
A: No, not at this moment.
SF 184,
Upon questioning by defense counsel, Knapp at first held
to his position. Then he began to give an answer which, if
completed, might have indicated a softening of his position;
however he was cut off by the court at that point.
Q: (By defense counsel) Is there any crime that you
can imagine so terrible that you think the person
who did it should be put to death?
A: No, of course, not. I cannot imagine any crime
being so terrible. I have never seen it or
experienced,
Q: Or any crime you ever heard of?
At Well, you hear it every day but --
THE COURT: All right. Mr. Knapp is disqualified under
the death penalty and will be excused,
MR. LOVELACE (Defense counsel): Objection, Your Honor,
or note our exception to the ruling.
af Numbers preceded by "SF" refer to pages of the transcribed
tatement of Facts of Petitioner's trial.
a; 0 ie
THE COURT: Noted. All right. You are excused, sir.
Call Mr. Burns.
SF 186-87.
B. The voir dire of venireperson Frances Bradley.
Mrs. Frances Bradley was excused by the court sua sponte
without a challenge for casue by the state; in fact, the state
specifically declined to challenge her, (SF 313) Her entire
voir dire is photocopied and annexed hereto as Appendix C,
lt appears in the record at SF 307-17.
Mrs. Bradley at no time made the definite, unequivocal
response as to her opposition to the death penalty as would
indicate that she would automatically vote against the inflic-
tion of it. She revealed herself to be a woman with incli-
nations against it, rather strong reservations, yet she also
indicated that she believed that it might be appropriate in
certain cases, and that she might be able to vote for it.
The pertinent part of her voir dire is excerpted as follows:
Q: (By the District Attorney) ... At thevery outset,
what is your attitude? What is your opinion?
How do you feel about the death penalty?
A: Well, it depends on the circumstances. I1 couldn't
say right out that I agree but it if it’s the law
and the crime --
THE COURT: Well, would your conscience permit you under
some circumstances, ma'am, to vote for the imposi-
tion of death?
A: I will be truthful with you, no. I was sitting
out there trying to debate my answer,
THE COURT: That, of course, is getting right down to
the nitty-gritty. Are you unalterably opposed to
the death sentence as a punishment for crime?
A: No, I am not on some crimes. Now, I don't know
if that's a very good answer.
THE COURT: Well, it isn't but it's a bad answer because
it conflicts with your other answer,
A: 1 know,
THE COURT: Are there some circumstances or can you
conceive of some cases in which your conscience
would permit you to vote for the death penalty?
A: No, I don't think so, I will be honest with you,
I don't think I could,
THE COURT: We are not being critical of any attitude
you mayhave but we do have to know this,
A: The only way 1 could see a death penalty was if
it was a child or minor that couldn't protect them-
selves or it was caused--they intended to do it,
you know what 1 mean?
THE COURT: In our State, you couldn't hardly find a
person guilty of murder unless you found that
they had intentionally committed the act. That's
part of the very definition of murder, Well, now,
at the risk of repeating myself and boring you,
do you think of any case or any situation grave
enough in your mind which would permit you, Mrs.
Bradley, to vote for the death penalty.
A: No, I don't think so.
THE COURT: Now are you firm in that answer, ma'am?
A: 1 guess, yes.
SF 312-13.
At this point the court passed Mrs. Bradley back to
counsel, and the District Attor»ey declined to challenge her.
Upon questioning by defense counsel, she again stated that
she thought she could vote for thedeath penalty in cases of
intentional killings or the killing of a minor, Then the
following occurred:
Q: (By defense counsel) Yes, ma'am, In the case of
intentional killings, if the circumstances are
severe or revolting or shocking enough to you,
could you vote for the death penalty?
At I am sort of contradicting myself.
Q: Pardon,
A: 1 feel like 1 am contradicting myself. In some
cases I feel like 1 could if I knew all the evi-
dence. I feel like the death penalty is pretty
strong.
THE COURT: Yes, it is kind of final, Mrs. Bradley.
That's why we are trying to get from you a defi-
nite commitment, which is not easy for yor to
make. I don't imagine you sit around and drink
tea everyday and discuss the death penalty. We
}
nf
A!
have to know at this time what your feelings are
in that respect. I have to ask you once again,
would your conscience ever permit you in any case
to vote for the imposition of the death penalty?
A: Well, if it was one of those two cases, yes,
THE COURT: You told us--
A: I know 1 said yes and no,
THE COURT: You told us about three different things,
now, which is understandable but not very helpful.
A: I just don't think, to tell you the truth, 1
would be very good on a murder trial,
THE COURT: We are trying to find out one little thing.
We want to know if Frances Bradley could sit on
that jury or a jury and work together with eleven
other jurors in any case she might conceive and
write a death penalty that would spell finish to
some old boy. Now, can you do it orcan't you?
A: No, I don't think I can, I don't think I would
be good on a jury.
THE COURT: It's not whether you would be good or not.
A: I don't think I can make the decision,
THE COURT: Whether you can or could not?
A: I don't think I can,
THE COURT: Do you want to examine any further, Mr,
Lovelace?
MR. LOVELACE (Defense counsel): Just for a moment,
Your Honor.
EXAMINATION
By Mr. Lovelace:
Q: 1 don't mean to be critical. 1 know we are all
tired and it is late but now awhile ago you told
me an intentional child killing you could.
A: I thought I could, yes.
Q: Have you changed your mind about that?
A: 1 have been sitting all this day debating. Part
of me says 1 could and part of me says I couldn't.
That makes me a dual person, 1 guess.
Q: I am not suggesting it is an easy decision. I am
not suggesting that the proponents and opponents
of the death penalty don't have a good argument.
They do, 1 think, butin as far os the way you
are, you say in the case of a grave crime that
offends you very much such as child killing,
intentional child killing or any other inten-
tional planned, done type killing, are you telling
us you are not sure thet you can or that you can-
not?
At Well, 1 would say that I don't believe I could
make the decision for a person's death.
Q: Which means not sure?
A: That's right.
THE COURT: Which means to me I'm going to excuse you,
Thank you, Mrs. Bradley. You will be excused,
We thank you for your attendance, Was the clerk
there or not?
BAILIFF: He still was.
THE COURT: Is he still there?
BAILIFF: I assume he is.
THE COURT: If he is not, be sure to verify Mrs. Bradley's
address. Is that an apartment?
At Yes.
THE COURT: Get the apartment number because we will
mail you a check if the clerk isn't there.
You have objection to my ruling. (Emphasis added)
ou are excused now,
SF 315-17.
Cc. Voir dire of venireperson Virginia Gonzalez
This voir dire is found in its entireity at SF 336-47,
and has been photocopied and annexed hereto as Appendix D.
Mrs. Gonzalez was revealed to be a nervous, unsure
person, not overly articulate, and yet, by no means defi-
nite in her attitide toward the death penalty. It was
apparent that she did not want to serve on the jury, @s was
true of Mrs. Bradley before her; the enormity of the death
penalty tended to overwhelm her. Pertinent parts of her
voir dire are excerpted below:
Q: (By the District Attorney) ... I want to ask you
to begin with what your sttitude is about the
death penalty, about capital punishment if you
= 3
will tell me, please?
At No. This is my first time,
THE COURT: We can't hear you, please.
A: I'm so nervous. I'm so nervous, I don't know
anything.
THE COURT: Just relax. Nobody is out to embarrass
you.
Q: You are not on trial and there are not any right
answers or wrong answers, What we are interested
in is how you feel inside. «++ If you will be
honest with me, please?
A: 1 am opposed,
Q: Is that based on a religious or conscientious
feeling you have inside of you, Mrs. Gonzalez?
A: Yes,
Q: What is your religious belief?
A: Catholic.
Q: Do you know what the Catholic Church's position
is on the death penalty?
A: Shakes head negatively.
Q: Is your opposition to the death penalty so strong
inside of you that no matter what the facts were
in any kind of criminal case, no matter how hor-
rible the facts might be, because you feel the
way you do, you could never vote in such @ way
that another person would receive the death penalty;
is that what you are telling me?
A: That's true.
THE COURT: Speak up loudly.
A: Yes, Your Honor,
This line of questioning continued until the state
challenged her “under Witherspoon", SF 341. At this point
the venirewoman was passed to the defense.
Q: (By defense counsel) Suppose it were something
really horrible like torture killing a child?
MR. WEISER (Assistant District Attorney): Excuse me,
Your Honor. That is not capital murder under
Texas law.
Ai
Paying someone to torture kill a child, something
really gruesome, could you vote for a death penalty
in a case like that?
No.
Not even that?
1 don't understand the question, Repeat it.
Suppose, that's certainly not what the accusation
against our client here is, nothing even close to
that, but suppose somebody did something like pay
somebody to torture a child to death or something
else, if you can think of anything worse than
that, fill in your own imagination, is there any-
thing you could vote for the death penalty on?
Still 1 am so nervous.
THE COURT: Don't be nervous. Nobody is trying to trip
Q:
At
Q:
At
Q:
you up or ask you fancy questions. We just need
to know, all of us, how you feel. Can you think
of any case, any circumstances now, that would
permit you to vote for the infliction of death;
just answer yes or no if you can?
What he said about that killing, you know, for hire,
you know, whatever. You did say that, didn't you?
Yes, ma'am, hiring someone to do your killing for
you. Could you vote for the death penalty in
that case?
Yes.
That as o matter of fact is capital murder in this
state.
4 a,
How about a killing that’s done while another crime
is being committed such as say rape? What about if
68 woman were being raped and she were killed in the
process? E
I don't go for that.
Well, I don't think any of us do. What 1 mean,
the person who did it, could you see voting for
the death penalty if you were on that person's
jury or something like that?
Yes, uh-huam,
Any other examples you can think of where you
could consider the death penalty?
No, not at all.
But those you could, couldn't you?
- 13 -
A: Yes, uh-huh,
Q: How about, oh, somebody that came into a bank to
rob it and shot three or four people and killed
some of them?
A: The same, 1 think so,
MR. LOVELACE: Pass it back.
THE COURT: Mrs. Gonzalez, I don't understand you?
A: Yeah,
THE COURT: You told this man here it didn't make any
difference what he said or he said or 1 said,
you would never vote tor the death penalty?
At I am confused,
THE COURT: Now, tell me because I am confused now,
That's what you told this man, and you told this
man three different things.
A: I said 1 don't understand period.
THE COURT: Which is it to be? We are not trying to
trip you up. If you agree with what Mr. Lovelace
asked you, tell me. I1 am not taking sides. If
you agree with what this man asks you, tell me.
A: Religion is religion. If something happened like
that, 1 would vote for that.
THE COURT: Let me ask you again 80 we can get it
definite. Arethere some cases in which your con-
science would permit you to vote for the death
penalty?
A: I don't know,
SF 341-44,
The court further interrogated Mrs. Gonzalez, eliciting
several responses, but nowhere did she make a statement that,
in the context, could be taken to be o firm, unyielding posi-
tion that would produce an automatic vote against the inflic-
tion of death. Finally, the following occurred:
THE COURT: Now, you told Mr, Weiser before and I'm
going to ask you again, are you opposed to the
death penalty as a punishment for crime?
At Well, at the time I didn't understand. I didn't
understand.
THE COURT: I don't care what you understood at the time.
ae We
You answer me now, please.
At lf he did something wrong, yes.
THE COURT: If what?
Ai What I meant was if he did something wrong, of
course, he has to be punished for what he did.
THE COURT: 1 guess we would all agree with that, I1'11
get back to the question again. Do you think
that Virginia Gonzalez, that's you, isn't it?
A: Yes.
THE COURT: Could you ever vote to send a man to his
death?
At No, I don't think so.
THE COURT: This juror will be excused under the doctrine
of Witherspoon. You have your objection and your
exception, Thank you ma'am, You will be excused.
SF 346-47,
Ce Voir dire of venireperson Charlotte Smith.
The voir dire of this venireperson is found at SF 682-90,
A photocopy of the entireity of this voir dire is annexed
hereto as Appendix E,.
Mrs. Smith was revealed to have strong reservations
against the death penalty, yet, upon questioning by defense
counsel, she made a remark that indicated she realized that
society needed protection, despite her feelings, which
always contained en element of doubt. Her inclination was
definitely against the death penalty, yet she never committed
herself in any absolute sense. The pertinent portion of her
voir dire is as follows:
Q: (By the District Attorney) Mrs. Smith, let me
begin by asking the most important question and
that is what your attitude is about the death
penalty? Are you in favor of it, opposed to it
or how do you feel about it?
At 1 guess I am opposed to it. I am really not sure,
SF 683.
The questioning by the state went on. At SF 685,
the following discussion occurred:
Q: (By the District Attorney) ... Now let me ask
you this question before 1 go any further: Is
your feeling about the death penalty so strong
that you would not be able to even return a
verdict of guilty in a case of this type?
A: Well, I think I could return o verdict of guilty
if he is proven guilty.
Q: Exactly.
A: But the death penalty I don't know, It's some-
thing that is against my inner judgment,
Q: Is that feeling you have carried with you for
many years?’
A: That's right.
Q: Is it based on religious or moral?
A: It is probably my upbringing.
SF 685-86.
Q: (By the District Attorney) Is your feelings in
Opposition to the death penalty so strong inside
of you no matter what the facts are in the case,
no matter how gruesome or how horrible the murder
might be, no matter how many people were killed,
you could never vote in such a way that the death
penalty would be the result?
At 1 really don't know. I have to tell you honestly
what I feel. I1 really don't know,
SF 686.
THE COURT: Well, Mrs. Smith, let me ask you this:
You have told us you have a deep feeling against
the death penalty?
A: That's right.
THE COURT: Isn't that what you said?
A: Yes.
THE COURT: All right. Let me make it simple. Could
you ever sit on a jury and vote in such @ way that
@ man would be executed?
At I don't think so.
THE COURT: All right.
Q: (By the District Attorney) When you say I don't
think so, you mean you could not do that, is
that correct?
A: That's right.
MR. WEISER: 1 pass on Witherspoon and challenge on
point.
MR, LOVELACE: You have challenged?
MR WEISER: I have challenged.
EXAMINATION
By Mr. Lovelace:
Q: Mrs. Smith, can you think of no crime that 1s so
damaging to society or to the individual against
whom it is done that the person who did it should
die for it?
A: No, 1 don't think so,
Q: No crime?
A: No.
Q: Not even to someone's children or someone who is
very helpless and dear to someone else, babies’
A: Well, that depends if somebody is sick and do
something like that,you know, what I am saying’
Q: Mentally i111?
A: Mentally ill, mentally sick, then it isn't right
but then there is an excuse,
Q: But suppose someone were not mentally ill or at
least not in the sense that the law deals with
that subject, or just is sane as a dollar, just
really nasty, just a really bad person, but not
mentally il] and does some really horrible thing?’
A. Well, if there is no help for anybody anymore, I
guess the law has to do something about it.
THE COURT: Let me interrupt you here. You told us
several times you are so against the death penalty
you could not votefor it?
A: Yes, that's right.
THE COURT: Now, which is it? Is that what your feeling
is?
A: That's what my feeling is. If somebody proved to
me that somebody would do 44 over again, then 1 am
really not sure of myself .=
2/ Virtually the exact second issue found in Tex.C.C.P.
art. 37.071, to be submitted to thejury at the sentencing
hearing. 17 -
THE COURT: I1 don't understand what you are talking
about now. Are you so against the death penalty
that you could not vote to send a man to death
under any circumstances? How do you feel about
that?
A: Under any circumstnaces?
THE COURT: That's what I asked you before.
A: I just don't feel it is my place to put anybody
to death.
THE COURT: You will be excused, ma'am, Thank you
very much,
MR. LOVELACE: Your Honor, may we have exception to that’
THE COURT: Surely. Mr. Ricardo Rodriguez.
SF 689-91.
The jury finally selected convicted Petitioner and
sentenced him to death by returning affirmative responses
to the two issues submitted to them. The provocation issue
was not submitted, despite a timely request for same. Peti-
tioner's challenge on appeal to the constitutionality of the
exclusion of these four venirepersons for cause was rejected
by the Court of Criminal Appeals. That court affirmed the
conviction and death sentence,
HOW THE FEDERAL peat
WERE RAISED AND , » LOW
In his brief before the Texas Court of Criminal Appeals
and his rehearing application addressed to that Court, Peti-
tioner urged that the exclusion of these four prospective
jurors for cause violated his right to a fair trial as
guaranteed to him by the Due Process Clause of the Fourteenth
Amendment, as interpreted by this Court in Witherspoon v.
Illinois, 391 U.S. 510 (1968). The Court of Criminal Appeals
of Texas, by affirming the conviction and sentence, and by
denying the rehearing application, rejected this contention,
The issues were raised in the trial court in the last
- 16 -
portions of the voir dire of each of them, and ruled on by
the trial court contemporancously. In the instances in
which the trial court anticipated the exceptions of defense
counsel and noted and implicitly denied the same, what is
spread on the face of the record is sufficient to preserve
for review the objections, exceptions, and issues thereby
raised.
ARGUMENT FOR GRANTING THE WRIT
THIS COURT SHOULD GRANT CERTIO-
RARI TO DECIDE WHETHER THE RULE
OF WITHERSPOON V. ILLINOIS, 391
U.S. 510 (1968), WAS VIOLATED BY
THE EXCLUSIONS FOR CAUSE OF FOUR
PROSPECTIVE JURORS WHO, DESPITE
RESERVATIONS AS TO THE DEATH
PENALTY, DID NOT MAKE IT UNMIS-
TAKABLY CLEAR THAT THEY WOULD
AUTOMATICALLY VOTE AGAINST THE
DEATH PENALTY, OR THAT THEIR
ATTITUDE ABOUT THE DEATH PENALTY
WOULD PREVENT THEM FROM MAKING
AN IMPARTIAL DECISION AS TO GUILT.
The exclusions of each of the four veniremembers above-
mentioned were each a clear violation of the doctrine of
Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20
L.Ed.2d 776 (1968). To take the second prong of Witherspoon
first, the first three of the venirepersons were not ques-
tioned at all as to whether their feelings about the death
penalty would render them impartiel on the issue of guilt,
and Mrs. Smith, when questioned by the state, answered with-
out equivocation that she could return a guilty verdict if
the evidence supported it. SF 685. Beyond question, none
of these venirepersons were disqualified on that criterion.
The test announced in Witherspoon v. Illinois, supra,
prohibits the exclusion of prospective jurors who do not make
it
mera ee
unmistakably clear (1) that they would
sutomatically vote against the imposition
of capital punishment without regard to
any evidence that might be develuped at
the trial of the case before them, or
(2) that their attitude toward the death
penalty would prevent them from making
an impartial decision as to the defendant's
guilt.
391 U.S. at 522 n. 21 (Emphasis in the original).
If there was any doubt in anyone's mind as to the application
of Witherspoon v. lllinois, supra, to the Texas capital felony
scheme enacted some five years after that case was announced,
and in response to the declaration by this Court of the uncon-
stitutionality of the former scheme, that doubt was erased
by Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2¢d
581 (1980). That case, while dealing directly with Texas
Penal Code, Sec. 12.31, established the proposition that no
Texas statute or rule that broadened the basis for excluding
death penalty jurors beyond that ambit established in Wither-
spoon v. Illinois, supra, would be constitutionally permis-
sible. Thus this inquiry is limited to whether the events
of Petitioner's trial comported with the test above-quoted.
The venireman Knapp expressed himself as opposed to
the death penalty, although at no time did he say that he
would automatically vote in # wanner that would prevent that
sentence from resulting. Arguably, his comments could be
taken to indicate that. However, as he was beginning to
remark about heinous crimes that one hears about daily, he
was cut off by the trial court. We shall not know what he
might have had to say about that topic, much less whether
he would have modified his stence against capital punishment
when confronted with especially gruesome criwes. Petitioner
was prevented from delving into this area, and for this rea-
son his exclusion was improper.
The exclusion of Mr. Knapp, however, was the mildest
of the constitutional offenses during this jury selection.
Each of Mrs. Bradley, Mrs. Gonzalez, and Mrs. Smith was
excluded, Mrs. Bradley by the court without a challenge by
the state, despite the fact that none of them had established
themselves under the rule above-quoted.
There was nothing unmistakably clear at all about the
responses of Mrs. Gonzalez. She was frequently confused,
but it is apparent from the record that eventuaily she under-
stood the issue. It is also apparent that her scruples against
the infliction of thedeath penalty were largely religious in
nature. The whole thrust of her voir dire showed a woman who
could consider the death penalty for particularly revolting
crimes, even though her beliefs might make her uncomfortable
in so doing. This is a far cry from satisfying the first
prong of Witherspoon v. Illinois, supra. She was not exclud-
able constitutionally.
And if Mrs. Gonzalez was not excludable, certuinly nei-
ther Mrs. Bradley nor Mrs. Smith were excludable. Mrs. Smith
expressed strong inner feelings against the imposition of the
ultimate penalty, but when pressed by the prosecutor and the
court, she always fell short of coming out unmistakably for
an automatic vote against it. Her responses were of the
variety of "I guess so", “I'm not sure”. And if Mrs. Smith
was indefinite, Mrs. Bradley was even more so. She agreed
with defense counsel that in the cases of intentional killings
and the killings of children she could consider the death
penalty. The first of these is, of course, a prerequisite
to any murder conviction in Texas and probably any other
jurisdiction in the United States. Despite the efforts of
the prosecutor and the court, she never actua)ly recanted
this position, and it is apparent that the court simply
maneuvered her into position, so to speak, to excuse on his
own motion. This technique violated Texas statute law as
well as Witherspoon v. Illinois, asisably pointed out in
the dissent of Judge Teague of the Texas Court of Cripina!
Appeals in his dissent to the denial of Petitioner's motion
for rehearing. Hernandez v. State, 643 S.W.2d 397 (Tex.Crim.
App. 1982, reh den 1983).
Of course, even one constitutional violation is suffi-
cient to establish fatal prejudice to Petitioner, in terms
of exclusion of qualified jurors. Davis v. Georgia, 429 U.S.
122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976). Thus this Court
may, in effect, choose the violation most appealing to it
in deciding upon the certiorari question. Any one of them
would suffice, although the violation pertaining to Mr. Knapp
is the least obvious. The argument that Mrs. Gonzalez was
unable to understand the proceedings is not the best inter-
pretation of her voir dire. A better interpretation is that
she was easily intimidated and was very nervous, neither of
which is a ground for exclusion. But even if this Court
chooses to find against Petitioner on Mrs. Gonzalez, there
remain Mrs. Bradley and Mcs. Smith. In their cases, the
Witherspoon violations were open and obvious.
This Court may, by granting certiorari, make it even
Clearer than it should already be, to the trial courts of
Texas and, with all due respect, to the five judges of the
Texas Court of Criminal Appeals who constituted the majority
against Petitioner, that Witherspoon v. Illinois, supra, in
all its fullness and vitality, applies in Texas, and that
this Court will not tolerate "“jur[ies) uncommonly willing
to condemn a man to die." Witherspoon v. Illinois, supra,
391 U.S. at 52).
CONCLUSION
Petitioner prays that the petition for writ of cer-
tioreri be granted.
Respectfully submitted,
VICTOR R, ARDITTI
(Attorney of record)
1014 North Mesa
El Paso, Texas 79902
(915) 533-4444
RICHARD M. LOVELACE
1014 North Mesa
| so, Texas 79902
(915) 532-4400
“
—
i
-~
VicfOk R. ARDITTI
Dated: £1 Paso, Texas
March 18, 1983
CERTIFICATE OF MAILING AND SERVICE
On this 18th day of March, 1983, I certify that I
deposited in the U.S. Mails, with first class postage
affixed, true copies of the attached and foregoing Peti-
tition for Writ of Certiorari, mailed by certified mail,
return receipt requested, and addressed to:
Office of the District Attorney
Appellate Section
Third Floor, City-County Building
El Paso, Texas 79901
(Certified Mail No. P 272 390 274)
and to: Hon, Jim Mattox
Attorney General, State of Texas
Capitol Station
Austin, Texes 711
(Certified Mail N P 272 390 275
ae g2 6448 i
; MAR 2 4 1983
v, s suolth
SupRE
RAMON PEDRO HERNANDEZ, Appellant oe
NO. 68,008 Vv. -- Appeal from EL PASO County
THE STATE OF TEXAS, Appellee
OPINION
This is an appeal from a conviction for capital murder.
The punishment is death.
The appellant contends that the trial court erred: in
overruling his motion for continuance, in overruling his
motion to attach absent venire members, in permitting an in-
competent witness to testify, in allowing the State to question
the incompetent witness by asking her leading questions, and in
refusing to submit the third punishment issue of Art. 37.071,
V.A.C.C.P. to the jury. Also, the appellant complains of six
instances of allegedly improper jury selection.
The appellant was convicted for the murder of Oscar
Martin Frayre. The evidence establishes that in the early
morning hours of June 20, 1980, the appellant entered a
closed gas station in El Paso and robbed and fatally shot Frayre,
a mechanic at the gas station. Frayre, who had been staying
overnight in the quarters provided for him in the back of the
gas station, was shot three times. Lucila Sanchez, a friend
of the appellant, was present outside the gas station during
the commission of the offense and she testified against the
appellant at trial. The sufficiency of the evidence is not
challenged.
The appellant first complains of the overruling of his
motion for continuance. The motion urged that appointed counsel
had not been given enough time to investigate and prepare for
trial. The granting or denial of a motion for continuance is
vested in the sound discretion of the trial court, and reversal
of a judgment is justified only when it is shown the trial court
APPENDIX A
HERNANDEZ °2
has abused its discretion. Corley v. State, 582 S.W.2d 815
(Tex.Cr.App. 1979); Ashabranner v. State, 557 S.W.2d 774
(Tex.Cr.App. 1977); Nelson v. State, 505 S.W.2d 271 (Tex.Cr.
App. 1974); Bryant v. State, 423 S.W.2d 320 (Tex.Cr.App. 1968).
The record in the present case shows that other counsel
had been first appointed to represent the appellant, but on
August 15, 1980, the two attorneys who tried the case and who
now represent the appellant on appeal were appointed. The
case was set for trial on September 8, 1980. Although this is
a relatively short time for preparation in a case where the
State is seeking the death penalty, no specific, serious
matter has been raised by the appellant and the record does
not otherwise show that the appellant's defense was prejudiced
by counsel not having more time to prepare for trial. We find
no abuse of discretion in the trial court's action. Furthermore,
since the appellant himself did not want a continuance he did
not sign the motion for continuance as required by Art. 29.08,
V.A.C.C.P., and for this reason nothing is presented for review.
Kemner v. State, $89 S.W.2d 403 (Tex.Cr.App. 1979); Zanders v.
State, 515 S.W.2d 907 (Tex.Cr.App. 1974); Ikner v. State, 468
S.W.2d 809 (Tex.Cr.App. 1971).
Complaint is next made that the appellant's motion to
attach absent veniremen was erroneously overruled. In Brown
v. State, 475 S.W.2d 938 (Tex.Cr.App. 1971), it was said:
os co vieiy’ "i relies neon Article 35.01,
.A.C.C.P., to support his claim that the
ceertente te ienue aginst: apsons prospective
ucused from jury duty. The statute is directory,
observeca iiterel compliance will not constitute
reversible error in the absence of a showing of
injury."
HERNANDEZ “3
The appellant in the instant case has failed to show any injury
resulting from the trial court's action in overruling the
motion. This ground of error is therefore overruled. See
Stephenson v. State, 494 S.W.2d 900 (Tex.Cr.App. 1973); Dent
v. State, $04 S.W.2d 45S (Tex.Cr.App. 1974); Moreno v. State,
$87 S.W.2d 405 (Tex.Cr.App. 1979).
In his next two grounds of error, the appellant asserts
that the trial court erred in permitting Lucila Sanchez, who
he says was an incompetent witness, to testify and in permitting
the State to ask her leading questions over objection.
The record discloses that Lucila Sanchez was 24 years old
and a high school graduate of 1975; she attended special
education classes in high school. It is apparent from the
record that it was difficult for her to articulate in English
certain responses to questions and that many questions had to
be rephrased before she understood them. Nevertheless, she
answered all the questions, her answers were understandable,
and her answers reflect an ability to observe intelligently
the events in question.
The issue of a witness’ competency is a question for the
trial court, and its ruling will not be disturbed on appeal
unless an abuse of discretion is shown by a review of the entire
record, including the witness’ trial testimony. Watson v. State,
$96 S.W.2d 867 (Tex.Cr.App. 1980); Villarreal v. State, 576
S.W.2d S51 (Tex.Cr.App. 1978); Clark v. State, 558 S.W.2d 887
(Tex.Cr.App. 1977); Provost v. State, 514 S.W.2d 269 (Tex.Cr.
App. 1974); Melton v. State, 442 S.W.2d 687 (Tex.Cr.App. 1969).
We conclude from a review of Lucila Sanchez's trial testimony
that the court did not abuse its discretion in permitting her
to testify.
HERNANDEZ -4
Complaint is also made of the trial court's action in
permitting the State to ask Lucila Sanchez certain leading
questions over the appellant's objections. This was a matter
within the sound discretion of the trial court. Unless a
defendant can show that he was unduly prejudiced by virtue of
such questions, no reversal of his conviction will result.
Navajar v. State, 496 S.W.2d 61 (Tex.Cr.App. 1973); Ortega
v. State, 493 S.W.2d 828 (Tex.Cr.App. 1973); Uhl v. State, 479
S.W.2d $S (Tex.Cr.App. 1972); Linton v. State, 346 S.W.2d 320
(Tex.Cr.App.1961 ). As one of the exceptions to the rule
excluding leading questions, it has been said that leading
questions may be permitted when the witness has difficulty in
understanding the English language. See Ray, Texas Evidence,
Sec. 578 at 534 (3d ed. 1980).
The record in the instant case discloses that Lucila
Sanchez had difficulty in understanding certain questions and
in articulating certain responses in the English language.
In some instances, the court's interpreter was used. In other
instances, leading questions were allowed. We find no error
in the court's actions, especially since substantially the
same testimony, elicited through leading questions, was obtained
from Lucila Sanchez in response to questions by the appellant's
counsel on cross-examination; the appellant was not prejudiced
by virtue of the leading questions. See Ortego v. State, supra;
Davis v. State, 272 S.W. 480 (Tex.Cr.App. 1925); Dave Lehr, Inc.
v. Brown, $8 S.W.2d 886 (Tex.Civ.App. - Waco, 1933).
The appellant next asserts that the trial court erred in
refusing his request to submit the third punishment issue to the
jury. Art. 37.071, V.A.C.C.P., provides that at the punishment
stage of a capital murder trial and upon conclusion of the pre-
sentation of the evidence, "the court shall submit the following
issues to the jury:
HERNANDEZ “5
"(1)
yi) ee
“(3) if raised by the evidence, whether the conduct
or the defendant in killing the deceased was unreason-
able in response to the provocation if any, by the
deceased." [Emphasis added. ]
In urging that the third punishment issue was raised by
the evidence, the appellant in his brief says, "The evidence
to which we make reference in the instant case is testimony
that appears in several places in the Statement of Facts to the
effect that sounds of a fierce struggle were heard from inside
the filling station a moment before the shots were heard.
Voices raised in argument were also heard, according to the
testimony of Lucila Tercero Sanchez. It is reasonable to draw
the inference from this that the decedent was putting up some
kind of resistance to whatever was being done to him, and this
before he was fatally injured, or injured at all."
According to the appellant's brief, “sounds of a fierce
Struggle were heard from inside the filling station a moment
before the shots were heard." The appellant, however, does not
cite us to any evidence in the record to support his contention.
Our review of the record discloses that other than loud voices,
the only “sounds” heard coming from inside the gas station were
sounds of tools falling on concrete. This is not evidence of
a fierce struggle. And although the evidence supports the
appellant's contention that Lucila Sanchez heard the appellant
and Frayre exchanging words .in a tone of voice that sounded
as if they were arguing, the only words she could discern
were the appellant saying, "Paso el dinero," and Frayre
responding, "No tengo dinero yo." When asked for the English
translation, the court's interpreter stated that "paso el
dinero'meant “pass the money or hand over the money" and
“no tengo dinero yo" meant "I do not have any money."
HERNANDEZ -6
In order to raise the issue of provocation, it is
necessary that there be evidence cf the deceased's conduct
just prior to his death; also, that evidence must be suffi-
cient to be considered provocation. The loud voices heard
by Lucila Sanchez in this case together with the sounds of
tools falling on concrete are not evidence of Frayre's conduct;
they do not show that Frayre may have provoked the appellant
to kill him. Therefore we are unable to conclude from our
review of the record that the evidence raises the issue of
provocation; we also decline the appellant's invitation to
infer "that the decedent was putting up some kind of resistance
to whatever was being done to him." See and compare Evans y.
State, 601 S.W.2d 943 (Tex.Cr.App. 1980). Moreover, at the
punishment stage of the trial the appellant did not present
any evidence in an attempt to raise the issue of provocation.
The appellant, against the advice of his own counsel, testi-
fied, but he did so only to request that the jury sentence him
to death.
The appellant next complains of six instances of allegedly
improper jury selection. In the first of these instances the
appellant urges that the trial court erred by excusing venire-
man Chavez over the appellant's objection. This 59 year old
venireman stated that he had a sick mind, pneumonia, and heart
trouble, and that he was on medication. Chavez further expressed
doubt about his physical ability to serve on the jury. The
trial court excused Chavez on its own motion.
A trial court should not on its own motion excuse a
venire member on grounds which do not show an absolute dis-
qualification. See Art. 35.19, V.A.C.C.P.; Esquivel v. State,
$95 S.W.2d 516 (Tex.Cr.App. 1980); Bodde v. State, 568 S.W.2d
344 (Tex.Cr.App. 1978); Valore v. State, 545 S.W.2d 477 (Tex.
HERNANDEZ -7
Cr.App. 1977). Chavez would have been subject to a challenge
for cause under Art. 35.16(a)(4), V.A.C.C.P., on the ground
that he had “such bodily or mental defect or disease as to
render him unfit for jury service... ." The appellant has
not shown how he was harmed by the exclusion of Chavez nor
has he established that he was tried by a jury to which he had
a legitimate objection. Esquivel v. State,supra; Bodde v.
State, supra; Valore v. State, supra; Henriksen v. State, 500
S.W.2d 491 (Tex.Cr.App. 1973). Furthermore, that the trial
court excused Chavez on its own motion when he was not challenged
for cause by the State is not an issue in this case since the
appellant did not object on this ground. See Bodde v. State,
supra; Moore v. State, 542 S.W.2d 664 (Tex.Cr.App. 1976). We
conclude that the trial court did not abuse its discretion by
excluding Chavez. See and compare Redd v. State, 578 S.W.2d
129 (Tex.Cr.App. 1979); Villarreal v. State, $67 S$.W.2d 51
(Tex.Cr.App. 1978); Bodde v. State, supra.
Next, the appellant complains that venireman Jose A.
Gomez was erroneously excluded for cause over the appellant's
objection. This venireman showed that he would not consider
the entire range of punishment provided by law; therefore, he
was subject to challenge for cause under Art. 35.16(b)(3),
V.A.C.C.P.,0n the ground that he had "a bias or prejudice against
{a) phase of the law upon which the State is entitled to rely
for conviction or punishment."
During voir dire examination by the prosecutor, venireman
Gomez expressed his bias against the minimum punishment for the
lesser included offense of murder and unequivocally stated that
he was unable to consider such punishment in a murder case.
The State challenged Gomez for cause. Thereafter, the appellant's
HERNANDEZ -8
-
counsel sought to rehabilitate Gomez hy demonstrating the wide
range of fact situations that may fall within the murder
Statute. The trial court then intervened to ask:
"THE COURT: Now, Mr. Gomez, again I
am not criticizing you. You told us two
different things. You told the District
Attorney you couldn't conceive of a murder
case where you felt like five years punish-
ment was in order; do you recall saying that?
“A. Yes, 3 60.
“THE COURT: Now, you told the defense
attorney you could conceive of one where you
felt five years would be in order; which is it
please?
"A. If I can say something. He said to think
of a certain case. What if it's self-
defense?
"THE COURT: If it's self-defense, you
wouldn't find the man guilty.
"A. They could have been fighting or something.
"THE COURT: Again, I will ask you as every-
body else has, and we are entitled tc know whether
you could consider the full range of punishment
for the offense of murder which starts at a low
of five years and goes on up to a possible ninety-
nine years cr life. That's the range of punish-
ment. Is that understood, Mr. Gomez?
"A. Yes, Saf.
"THE COURT: Well, could you conceive of a
case, I'll ask you again, where your conscience
would permit you to consider five years as
punishment for murder?
"A. No.
“THE COURT: All right. You are disqualified.
You will be excused. You are excused, sir.
"(DEFENSE ATTORNEY]: For the record, may
we have an objection to that, Your Honor.
"THE COURT: Sure."
We find no error in the trial court's exclusion of Gomez; his
answers certainly reflect a bias against the minimum punishment.
See Chambers v. State, 568 S.W.2d 313 (Tex.Cr.App. 1978); Moore
‘wv. State, 542 S.W.2d 664 (Tex.Cr.App. 1976). Furthermore, the
HERNANDEZ -9
appellant has not shown that he was tried by a jury to
which he had a legitimate objection. See Henriksen v. State,
supra.
In four grounds of error, the appellant also complains
that the trial court erred by excluding venire members Michael
Knapp, Virginia Gonzales, Charlotte Smith and Frances Bradley
“on grounds of inability to consider imposition of the death
sentence." This case was tried after the decision of the
Supreme Court in Adams v. Texas, __U.S.__, 100 §.Ce. 2521,
65 L.Ed.2d 581 (1980); our review consists of determining
whether any of the venire member's exclusions were inconsistent
with Witherspoon v. Illinois, 391 U.S. 510, 88 $.ce. 1770,
20 L.Ed.2d 776 (1968).
The appellant first complains of the trial court's action
in excusing venireman Knapp. When the prosecutor asked Knapp
whether he could think of any case in which he could consider
sentencing another human being to death, Knapp answered in the
negative and added that nothing would change his mind. The
prosecutor then challenged Knapp under Witherspoon. Thereafter,
counsel for the appellant attempted to rehabilitate Knapp
but Knapp never equivocated in his opposition to the imposition
of the death penalty; he continued to ans» °r that he would
never sentence another human being to death. We find that
Knapp's exclusion was consistent with Witherspoon. Compare
Russell v. State, 598 S.W.2d 238 (Tex.Cr.App. 1980); Brandon
v. State, 599 S.W.2d 567 (Tex.Cr.App. 1980); O'Bryan v.
State, 591 S.W.2d 464 (Tex.Cr.App. 1979); Granviel v. State,
552 S.W.2d 107 (Tex.Cr.App. 1976).
HERNANDEZ -190
The appellant next directs our attention to the examina-
tion of venire members Gonzales, Smith and Bradley. We will
set out the pertinent portion of each of these examinations.
During voir dire examination by the prosecutor, Virginia
Gonzales was asked:
"Q. Is your opposition to the death penalty so
strong inside of you that no matter what the
facts were in any kind of criminal case, no
matter how horrible the facts might be, be-
cause you feel the way you do, you could never
vote in such a way that another person would
receive the death penalty; is that what you
are telling me?
"A. That's true.
"THE COURT: Speak up loudly.
"A. Yes, Your Honor.
"Q. So, no matter what the crime is, you could
never vote for the death penalty because
that's the way you feel?
"A. That's true.
"Q. No matter what the evidence, you have to vote
against the death because of the way you feel
inside?
"A. That's true.
"Q. There is nothing I can say to Change your mind,
is that correct?
"A. That's correct.
"Q. And there is nothing the Defense lawyers can say
to change your mind?
"A. That's correct.
"Q. And there is nothing that the Judge can say to
change your mind, is that correct?
"A. That's correct.
“[PROSECUTOR]: Thank you, ma'am. I
challenge under Witherspoon, Your Honor."
In subsequent questioning by the appellant's counsel,
Gonzales seemed to equivocate, leading the trial court to ask:
+ HERNANDEZ -11
and
“THE COURT: Let me ask you again so we can
get it definite. Are there some cases in which
your conscience would permit you to vote for the
death penalty?
“A. I don't know.
“THE COURT: Ma'‘am.
"A. I don't know. I am confused. I am very confused.
“THE COURT: Well, I don't think what I
am asking you is very confusing, now, is it? Are
there some situations that would enable you to
conscientiously vote for the death penalty; do
you understand what I am asking?
"A. Yes, Your Honor.
“THE COURT: How do you answer?
"A. Ne.
~?. You can't conceive of any? You can't think of
anything that would — you conscientiously
to vote for the death penalty?
"A. No, sir.”
Continued questioning by the court seemed to confuse Gonzales
the court thereafter asked the following series of questions:
"THE COURT: I'm going to ask you again.
Try to understand me because it is really not
too difficult. You know what the death penalty
is?
"A. Yes, Your Honor.
“THE COURT: Now, we are here today, we are
trying to get jurors, that's what you are doing
here to sit on this case. They have to be fair
and impartial both to the State and to the De-
fendant. Now, it is gaye that in this case,
the death penalty could be assessed. So, we are
asking you, Mr. Weiser, Mr. Lovelace, and myself,
how you feel about the death penalty? That's what
we ol pra Okay. Now, are you following me
so far?
"A. Yes, uh-huh.
“THE COURT: Now, you told Mr. Weiser before
and I'm going to ask you again, are you opposed
to the death penalty as a punishment for crime?
“A. Well, at the time I didn't understand. I didn't
understand.
HERNANDEZ “12
-
“THE COURT: I don't care what you under-
Stood at the time. You answer me now, please.
"A. If he did something wrong, yes.
“THE COURT: If what?
“A. What I meant was if he did something wrong, of
course, he has to be punished for what he did.
“THE COURT: I guess we would all agree
with that. I'll get back to the question again.
Do you think that Virginia Gonzalez, that's
you, isn't it?
"A. Yes.
“THE COURT: Could you ever vote to send a
man to his death?
"A. No, I don‘tt think so.
“THE COURT: This juror will be excused
under the doctrine of Witherspoon. You have
your objection and exception. Thank you, ma'am.
You will be excused."
Venire member Charlotte Smith was at first equivocal in
Stating her position on capital punishment. She did not know
whether she could consider the death penalty under the approp-
riate facts. The prosecutor then explained the procedure
fcllowed under Art. 37.071, V.A.C.C.P., and towards the end of
the voir dire examination asked Smith:
"Q. Are you telling me then no matter what the
instructions were from the Court, your feelings
inside -- you have a right to disagree with the
law. Because we live here, we have the right to
disagree with the law. Are you telling me your
feelings inside would say to you no matter what
the facts are I hear in this case or in a case of
capital murder, I would either have to answer
one of those questions no or refuse to answer
the question because I don't want the person to
be executed? If that's the way you feel, that's
fine. If you don't feel that way, then tell me.
“A. I don't know. I don't know how to answer you.
“THE COURT: Well, Mrs. Smith, let me ask you
this: You have told us you have a deep feeling
against the death penalty?
"A. That's right.
HERNANDEZ -13
"A,
hd
"Q x
ad
“THE COURT: Isn't that what you said?
Yes.
“THE COURT: All right. Let me make it
simple. Could you ever sit on a jury and vote
in such a waythat a man would be executed?
I don't think so.
“THE COURT: All right.
When you say I don't think so, you mean you could
not do that, is that correct?
That's right.
“{PROSECUTOR]: I pass on Witherspoon and
challenge on that point."
Further examination of Smith by the appellant's counsel
reveals
"Q m
"A.
"Q,
"A.
"Q.
vA.
"Q.
"A.
"Q _
"A.
"A.
the following:
Mrs. Smith, can you think of no crime that is so
damaging to society or to the individual against
whom it is done that the person who did it should
die for it? :
No, I don't think I do.
No crime.
No.
Not even to someone's children or someone who is
very helpless and dear to someone else, babies?
Well, that depends if somebody is sick and do
something like that, you know what I am saying?
Mentally ill?
Mentally ill, mentally sick, then it isn't right
but then there is an excuse.
But suppose someone were not mentally ill or
at least not in the sense the law deals with
that subject, or just is sane as a dollar, just
really nasty, just a really bad person, but not
mentally ill and does some really horrible thing?
Well, if there is no help for anybody anymore, I
guess the law has to do something about it.
. “THE COURT: Let me interrupt you here. You
told us several times you are so against the death
penalty you could not vote for it?
Yes, that's right.
HERNANDEZ “14
“THE COURT: Now, which is it? Is that
what your feeling is?
“A. That's what my feeling is. If somebody proved
to me that somebody would do it over again, then
I am really not sure of myself.
“THE COURT: I don't understand what you are
talking about now. Are you so against the death
penalty that you could not vote to send a man to
death under any circumstances? How do you feel
about that.
“A. Under any circumstances?
“THE COURT: That's what I asked you before.
"A. I just don't feel it is my place to put anybody
to death.
“THE COURT: You will be excused, ma'am.
Thank you very much."
Like Smith, venire member Frances Bradley was at first
equivocal in her answers concerning Capital punishment, leading
the trial court to ask:
“THE COURT: Are there some circumstances
Or can you conceive of some cases in which your
conscience would permit you to vote for the death
penalty?
"A. No, I don't think so. I will be honest with you.
I don't think I could.
“THE COURT: We are not oe critical of
any attitude you may have but we do have to know
this.
"A. The only way I could see a death penalty was if
it was a child or minor that couldn't protect
themselves or it was caused -- they intended to
do it, you know what I mean?
“THE COURT: In our State, you couldn't hardly
find a person guilty of murder unless you found
that they intentionally committed the act. That's
part of the very definition of murder. Well, now,
at the risk of repeating myself and boring you,
do you think of any case or any situation grave
or in your mind which would permit you, Mrs.
Bradley, to vote for the death penalty?
"A. No, I don't think so.
“THE COURT: Now, are you firm in that answer,
ma'am?
"A. I guess, yes."
HERNANDEZ “15
In subsequent questioning by the appellant's counsel,
Bradley seemed to again equivocate. The trial court then
asked:
“THE COURT: You told us about three
different things, now, which is understandable
but not very helpful.
"A, I just don't think, to tell you the truth, I
would be very good on a murder trial.
"THE COURT: We are trying to find out one
little thing. We want to know if Frances Bradley
could sit on that jury or a jury ®"° work to-
gether with eleven other jurors in any case she
might conceive and write a death penalty that
would spell finish to some old boy. Now, can
you do it or can't you?
"A. No, I don't think I can. I don't think I would
be good on a jury.
"THE COURT: It's not whether you would be
good or not.
"A. I don't think I can make the decision.
"THE COURT: Whether you can er could not?
"A. I don't think I can."
A continued examination by the appellant's counsel further
reveals the following:
"Q,. I am not suggesting it is an easy decision. I
am not suggesting that the proponents and op-
ponents of the death penalty don't have a good
argument. They do, I think, but in as far as the
way you are, you say in the case of a grave crime
that offends you very much such as child killing,
intentional child killing or any other intentional
planned, done type killing, are you telling us you
are not sure that you can or that you cannot?
“A, Well, I would say that I don't believe I could
make the decision for a person's death.
"Q. Which means not sure?
“A. That's right.
“THE COURT: Which means to me I'm going to
excuse you. Thank you, Mrs. Bradley. You will
be excused."
HERNANDEZ -16
This Court has previously recognized the troublesome
area of the “equivocating venireman," and we have held that
Witherspoon, supra, does not require specific formalized
answers. Brandon v. State, supra; Villarreal v. State,
supra; White v. State, 543 S.W.2d 104 (Tex.Cr.App. 1976);
Tezeno v. State, 484 S.W.2d 374 (Tex.Cr.App. 1972). See also
Hughes v. State, 563 S.W.2d S81 (Tex.Cr.App. 1978); Granviel
v. State, supra. With only a "cold" record before us, it is
difficult to say in many instances whether certain venire
members are unequivocally committed to vote against imposition
of the death penalty. Certainly the trial judge, who is
present to hear the tone of voice and observe the demeanor of
the venire members as they answer questions, is better situated
to determine whether a particular venire member is in fact
unequivocally committed to vote against imposition of the
death penalty. In the absence of an abuse of discretion, we
should not disturb the trial court's ruling, especially if
at the very least, serious doubt is cast on the ability
of a venire member to be a fair and impartial juror.
Villarreal v. State, supra; Granviel v. State, supra; Tezeno
v. State, supra.
Reiterating what was said in White v. State, supra, about
the troublesome area of the “equivocating venireman," we adhere
to the following statement from Tezeno v. State, supra:
"We cannot believe that Witherspoon v. Illinois,
supra, requires certain formal answers and none other.
We surely feel that the test of Witherspoon is ‘not to
be ny tht with the hypertechnical and archaic approach
of a 19th century pleading book, but with realism and
rationality.’
HERNANDEZ “17
-
“We are aware of a large number of death
aggetd cases which have recently been reversed
nm memorandum opinions by the United States
Supreme Court5 [Footnote 3 citing cases omitted].
While it is difficult, if not impossible to syn-
thesize a rule from those opinions, we have con-
Cluded that the voir dire in the instant case and
answers of the veniremen are more unequivocal than
those which were set forth in the cases which have
been reversed."
After a careful consideration of the record before us, we
conclude that the trial court's decision to exclude Gonzales,
Smith and Bradley from the jury was consistent with Witherspoon;
their answers reflect that each would have been unable to serve
as fair and impartial jurors consistent with Witherspoon. See
and compare Villarreal v. State, supra; Granviel v. State, supra;
White v. State, supra; Moore v. State, supra; Tezeno v. State,
supra.
We recognize and give due deference to the trial judge's
discretion; to not properly respect the trial court's discretion
would constitute a failure to recognize and understand the
realities of the voir dire of jurors. The trial judge's
interpretation of the jury voir dire in the instances of which
complaint has been made does not show an abuse of discretion.
Additionally, the appellant in oral argument urged that each
of these venire members was erroneously excused because the
State did not challenge them for cause. The record, however,
reflects that onl, venire member Bradley was excused on the
Court's own motion; the other three venire members were
challenged for cause. That the Court excused Bradley on its
own motion does not present_an issue in this._case since no
— = -_— —
-———
objection on this ground was made in the trial court when
Bradley was excused. Moore v. State, supra; Hughes v. State,
$62 S.W.2d 857 (Tex.Cr.App. 1978). All four grounds of error
are overruled.
The judgment is affirmed.
DALLY, Judge
(Delivered January 20, 1982)
En Banc
RAMON PEDRO HERNANDEZ, Appellant
NO. 68,008 v. == = Appeal from EL PASO County
THE STATE OF TEXAS, Appellee
DISSENTING OPINION
The focus of my concern in this case is cn the methodology of the
majority in disposing of appellant's grounds of error four through
seven. Therein the appellant complains of the exclusion of venire-
members Michael Knapp, Virginia Gonzales, Frances Bradley and
Charlotte Smith; though the State's asserted basis for its entitle-
ment to the exclusion for cause of Knapp, Gonzales and anstn” wee
their disgualification “under dtuennian ses is appropriate that
we construe each to have been made in fact, because the State be-
lieved the prospective juror had "a bias or prejudice against [a]
phase of the law oR which the State [was] entitled to rely for
. « »« punishment,” since “it is clear beyond preadventure that
Witherspoon is not a ground for challenging any prospective juror.
Adams v. Texas, 448 .S. 38, ¢7. 100 £.Ct. 2521, 2527, 65 L.Ed.24
581 (1980). (Hereinafter cited as Adams.)
Indeed, I believe the State established its entitlement to
the exclusion for cause of venireman Knapp, for his answers re-
vealed he would be unable to be a fair and impartial juror in de-
Liberating the issues to be submitted at punishment. Adams;
Vigneault v. State, 600 S.W.2d 318 (Tex.Cr.App. 1980). Further,
I am willing to agree with the majority that venirewoman Smith
i/
Bradley was not challenged by the State; indeed, in passing her
the prosccuting otteorney expressly declined tc make one.
2/
Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20
L.Ed.2d 776 (1960;. (Hereinefter cited as Witherspoon.)
3/
See Article 35.16(b) (3), V.A.C.C.P. The accused is provided a
similar challenge for cause by id. (c)(2). When applied to a capital
case in which the jury does determine whether the penalty shall be
imprisonment or death, according to Witherspoon, “The most that can
be demanded of a venireman in this regard is that he be willing to
consider all of the penalties provided by state law, and that he not
be irrevocably committed, before the trial has begun, to vote against
the penalty of death regardless of the facts and circumstances that
might emerge in the course of the proceedings.” Id., U.S. at 522, n.
21 (Emphasis by the Supreme Court).
. HERNANDEZ - Dissenting - 2
4/
was a classic “equivocating veniremember," and because the thrust
of her voir dire examination as a whole reveals her to be irrevocably
committed against imposition of the death penalty, I concur in
S/
overruling the ground of error complaining of her exclusion.
4/
“To seven of the prosecutor's ten questions, Smith “honestly
didn't know” how she felt. She “didn't think" she could think of
a crime so damaging to society or the victim that the actor should
@ie for it. The closest Smith got to saying the death penalty
might be appropriate in some cases, was “well, if there is no help
for anybody anymore, I guess the law has to do something about it;"
of course, this too, is painfully ambiguous. (All emphasis is
supplied throughout by the writer of this opinion unless otherwise
indicated.)
5/
“My conclusion in this regard, however, has not been reached
without reservation. The record reflects that after the prosecutor
posited his questions and challenged Smith for cause, defense
counsel elicited Smith's doubts that she could think of a crime
so damaging as to justify the death penalty; he then gave her a hy-
pothet regarding the victim being a child or baby. Smith's reply
indicated she thought the perpetrator or such a crime would have to
be mentally ill. Defense counsel negated this contingency in his
hypothet and Smith gave the response about guessing “the law has
to co something about it." (See n.3, ante.)
At this point, after only five questions from defense counsel,
the trial judge interrupted with the following:
“THE COURT: Let me interrupt you here. You told us
several times you are so against the death penalty
you could not vote for it?
A: Yes, that's right.
THE COURT: Now, which is it? Is that what your
feeling is?
A: That's what my feeling is. If somebody proved
to me that somebody would do it again, then I
am really not sure oi myself.
THE COURT: I don't understand what you're talking
about now. Are you SO against the death penaity
that you could not vote to send a man to death
under any circumstances? How do you feel about
that?
Footnote § continued -
HERNANDEZ = Dissenting - 3
However, my review of the record reveals no insidious feature
of venirewoman Bradley's voir dire examination which would require
the Court's deference to a trial judge's exclusion of an apparently
qualified juror without challenge by either party, and over an
acknowledged objection by the defense. I cannot agree that a trial
judge's discretion extends this far.
Contrary to the majority opinion's assertion that Bradley “was
at first equivocal in her answers concerning capital punishment,"
the record reveals that Bradley approved of the death penalty
"depend[ing) on the circumstances;" neither was she “unalterably
opposed to the death sentence as a punishment for [some crimes]}."
However, the trial court interrupted Bradley's first response in
this vein with,
“Well, would your conscience permit you under some
circumstances, ma'am, to vote for the imposition
of death?”
Bradley replied that, to be truthful, she would have to answer
“no.” Then, after stating to the court that she was not unalter-
ably opposed to the death penalty for some crimes, she added, “Now,
”
Footnote 5 continued -
A: Under any circumstances?
THC COURT: That's what I asked you before?
ust don't feel it is m lace to put any-
y_ to death.
THE COURT: You will be excused, ma'am. Thank you
very much.”
This interruption of defense counsel's cross voir dire of Smith
and the virtual sua te dismissal of her by the trial court consti-
tute a risky undertaking in terms of the "method of jury selection”
condemned in Withers - See especially the venirewoman who twice
said she would not. want or like “to be responsible” for “deciding
somebody should be put to death,” id., at 515; the Supreme Court
scotched an assumption that such a prospective juror “thereby affirms
that he could never vote in favor of it or that he would not consider
doing so in the case before him,” id., at 516, n. 9. Here, however,
Smith's last expression does not negate her earlier affirmations.
HERNANDEZ = Dissenting - 4
if
I don't know if that's a very good answer.” The trial judge replied,
"Well, it isn't but it's a bad answer because it
conflicts with your other answer.”
It seems rather clear to me that Bradley was asserting a be-
lief in the viability of capital punishment in the appropriate case,
while expressing a doubt as to her personal ability “to vote for
the imposition of death,” a fairly common juxtaposition of attitudes
which I would not characterize as “conflicting” or “equivocal.”
The majority opinion sets out the trial court's continued
interrogation wherein Bradley reiterated her doubts about her
ability “to vote for the death penalty,” while standing firm on her
belief that it would be appropriate "if it was a child or minor
that couldn't protect themselves or it was caused -- they intended
to do it, ... .-." But the majority opinion omits the conclusion
of what was originally the prosecutor's examination:
“THE COURT: All right. You may examine further, if
you wish.
(PROSECUTOR): We pass on that issue.
{[DEFENSE): You are not imposing a challenge?
[PROSECUTOR]: No.”
Apparently the majority opinion labels any response or group
of responses which reveal Bradley to be a qualified capital juror
as “eguivocation;” illustrative is the following exchange which is
not otherwise alluded to by that opinion:
"(By Defense Counsel)
Q: * * * In such a case, the killing of a child,
the intentional killing of a child, could you vote for
the death penalty in that case if you were on the jury?
A: Yes, I think I could then.
HERNANDEZ = Dissenting - 5
Q: Now, that's not what we have here but never-
theless, . . . are there. . . other intentional killing
Circumstances where you could, if the circunstances
were such that. ..
eath penalt AS 4n example, a ing, an intentional
killing while another crime is going on.
A: That's what I said. That's the only way I
could say, I could vote for a death penalty is if it
was an intentional thing or minor that couldn't protect
themself [sic)."
Defense counsel at this point reminded Bradley that all murders
would have to be intentional, asking her if she understood, and on
her affirmative reply, stated, "All right. We are limiting this
to intentional killings;" and on asking her again whether she could
“vote for the death penalty” if the "circumstances [were] severe
or revolting or shocking enough,” she replied:
“I feel like I am contradicting myself. In some cases
I feel like I could if I knew all the evidence. I feel
dike the death penalty is pretty strong."
Whereupon the trial judge interrupted, observing, “Yes, it is
kind of final Mrs. Bradley,” again stressing the urgency that the
court “get a definite commitment, which is not easy for you to make.
I don’t imagine you sit around and drink tea everyday and discuss
the death penalty.” The trial court then again elicited from
Bradley that her “conscience [would) permit [her]. . . to vote
for the imposition of the death penalty. . . if it was one of
those two cases." The trial court continued:
"THE COURT: You told us --
A: I know I said yes and no.
THE COURT: You told us about three different things,
now, which is understandable but not very helpful.
A: I just don't think, to tell you the truth, I would
very good on a murder trial.
*
° HERNANDEZ = Dissenting - 6
THE COURT: We are trying to find out one little
thing. * * * [Can Frances Bradley sit on]
a jury and work together with eleven other
jurors in any case she might conceive and
write a death penalty that would spell finish
to_ some old boy. Now can you do it or can't
you?
Mrs. Bradley again expressed doubts about her ability to
“write a death penalty.” When passed back to defense counsel
Bradley conceded “part of me says I could and part of me says I
couldn't." Her voir dire examination was concluded thus,
“A: Well, I would say that I don't believe I could
make the decision for a person's death.
Q: Which means not sure?
A: That's right.
THE COURT: Which means to me I'm going to excuse
you. Thank you Mrs. Bradiey. You will be excused.
Was the Clerk there or not? * * *
BAILIFF: I assume he is.
THE COURT: If he is not, be sure to verify Mrs.
Bradley's address. Is that an apartment?
(MRS. BRADLEY]: Yes.
THE COURT: Get the apartment number because we
will mail you a check if the clerk isn't there.
You have objection to my ruling. You are
are excused now.”
First, it is apparent that the majority opinion errs in con-
cluding no objection was offered to the trial court's action in
excluding Bradley without challenge. I am certainly willing to
defer to the trial judge's acknowledgement of objection to his
ruling which is spread on the face of the record, and believe
that defense counsel was entitled to assume this Court would give
due deference thereto. Thus, in my view, the trial court committed
reversible error when he excluded Bradley sua sponte when she was
HERNANDEZ = Dissenting - 7
not shown to be absolutely disqualified under Article 35.16(a) (2),
(3) or (4), V.A.C.C.P.
But my deepest reservation about the majority opinion concerns
the holding that we "give due deference to the trial judge's dis-
cretion,” without in any fashion explicating acceptable limitations
on that "“discretion;” how can we determine whether an "abuse of
Giscretion” has occurred when we have failed to delineate what
that discretion entails? While it may be appropriate in scme cases)
to wholly defer to the trial judge's “credibility calls,” such
should be the case only where a careful and faithful review of the
cold record fails to communicate to us the “feelings,” “beliefs” and
"attitudes" held by a capital venireperson regarding the death penalty.
The voir dire examination of Mrs. Bradley does not present such a
case.
Patently, the trial judge was of the belief that the only
issue is whether a prospective juror could “vote for"
or “write” a death penalty. Inquiries along other lines - including
those suggested by Witherspoon - were interrupted and treated
as irrelevant by the trial court. In the case of Mrs. Bradley, it
was the trial judge who branded her responses as “conflicting,” and
Giverted attempts by the attorneys to clarify her relevant attitudes.
We can only speculate about whether Bradley could “consider”
the death penalty fairly and answer the special issues according
6/
to the evidence, since she was never asked whether she could. What
does “vote for the death penalty” mean? Every member of the Court
has seen capital voir dire examinations in which a prospective
juror states unequivocally that he could “never vote for imposition
on light of experience since Hovila v. State, 532 S.W.2d 293
(Tex.Cr.App. 1975), the premise that “the jury will know that their
answers will determine whether the defendant is to be punished by
death or life imprisonment,” id., at 294, is not a reliable assump-
tion in voir dire examination. Yn Texas, “to obey his oath and follow
the law,” the juror “must be willing not only to accept that in cer-
tain circumstances death if an pe oi eae po mpsita but sey to answer
sup g y
swers to proper questions daatenee to ascertain ie.
HERNANDEZ - Dissenting - 8
of the death penalty,” only to make an about face when he fully
comprehends that jurors in Texas are not called upon to "write
a death verdict,” but to answer questions according to evidence
so that the trial court can assess the penalty.
Who knows what Mrs. Bradley would have said had she under-
stood the true nature of her “more limited role,” Adams, supra,
U.S. at 46.
Neither do we know from the record whether Bradley could have
“followed the court's instructions.” Again, she was never asked
if she could. Had the trial court allowed a full and fair epleta-
tion of these crucial areas before taking over the voir dire exami-
nation and then dismissing Bradley sua sponte, the record would
likely show an elaboration of her statement - "In some cases I feel
like I could [vote for the death penalty) if I knew all the evidence.”
It is most perplexing that the Court fails to condemn such a
“method of jury selection,” but the explicit legitimation of it as
“discretionary” is incomprehensible.
What we do know about Mrs. Bradley, is that she believed the
death penalty is an appropriate punishment in some cases, but
V/
would have some difficulty “writing a death sentence.” Now, if
we only knew what her understanding of “writing a death sentence”
8/
was, we might have sufficient information to justify excluding her.
7/
“If a majority persists in characterizing such attitudes as
"equivocation,” then so be it. But “to not properly respect” the
sheer consistency of such attitudes, and require more of the State
and the trial court in denotatively refining them, “constitutes a
failure to recognize and understand the realities” and complexity
of the human psyche.
8/
There can be no doubt whatever that venirewoman Virginia
Gonzales believed that in order to serve on the jury she was required
to pre-commit to the trial judge that she would vote for the death
penalty. ler misunderstanding is completely understandable in view
of the manner in which the voir dire was conducted throughout this
case. Though she too was never shown to be disqualified, Bradley's
improper exclusion alone requires reversal of the case. Davis v.
Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 399 (1976).
ih
HERNANDEZ - Dissenting - 9
But because we do not, we can only conclude that she was not
shown to be disqualified, and it was therefore error to exclude
her. To grant unlimited power tc trial judges to conduct ex parte
capital voir dire examination on an improper criterion and tien
make sua sponte exclusions, is perhaps the most dangerous way
the Court has taken to date, along a mighty thin line”
I dissent.
CLINTON, Judge
(Delivered January 20, 1982)
EN BANC
Onion, P.J., Roberts, J. & Teague, J. join
9/
“The writer's conviction that a juror's ability to “vote for"
or “write” a death penalty, is immaterial to the ability of that
juror to serve fairly and impartially on a Texas capital jury, has
beep very recently fortified. See Alderman v. Austin, pvr F.2d
10/
“Phat is “the line of neutrality” which the State of Texas,
not just the prosecution, is constitutionally forbidden to cross
and produce “a jury uncommonly willing to condemn a man to dic,”
Witherspoon, supra, U.S. at 520, 521.
J
RAMON PEDRO HERNANDEZ, Appellant
NO. 68,008 - - - Appeal from EL PASO COUNTY
THE STATE OF TEXAS, Appellee
DISSENTING OPINION ON APPELLANT'S MOTION FOR REHEARING
OVERRULED WITHOUT WRITTEN OPINION
Appellant contends on rehearing that this Court erred in its
original opinion when it upheld the trial court's exclusion of
venireperson Francis heedaae enka exclusion occurred on the trial
court's own motion. Because I find that the majority erroneously
overrules without written opinion the appellant's motion for
rehearing, I must respectfully dissent. The mcetion should be granted
and the judgment of conviction reversed.
On original submission, a majority of this Court held, inter alia,
that the appellant had failed to perfect his ground of error that the
trial court had erred by excusing Bradley. Nevertheless, the majority
also substantively held that Bradley's views were consistent with the
constitutional restraints set out in Witherspoon v. Illinois, 391 U.S.
$10, 68 S.Ct. 1770, 20 L.Ed.24 776 (1968). A careful review of the
voir dire examination of Bradley, in conjunction with the law,
convinces me that the majority was in error on both holdings, and
today it compounds that error by failing to grant appellant's motion
for rehearing and reverse the conviction.
The record reflects that the trial judge excused Bradley without
the prosecuting attorney manifesting any challenge to Bradley serving
as a juror in this cause. In fact, the record reflects that the
prosecuting attorney not only did not challenge Bradley serving as a
juror in this cause, but affirmatively declined to interpose a
challence to Bradley serving as a juror. The trial court had no lecal
authority to excuse Bradley on its own motion. It is self-evident
under the law of this State that a trial court should not on its own
1/the pertinent portions of Bradley's voir dire examination are
either reproduced verbatim or adequately summarized in Judge Clinton's
dissenting opinion on original submission, and need not be reproduced
again in this opinion.
MERNANDEZ - 2
motion excuse a prospective juror for cause-unless that juror is
absolutely disqualified for service in a Criminal case. See Esquivel
v. State, 595 &.W.2d 516, 524 (Tex.Cr.App.1960). Also see Martinez v.
State, 621 S.W.2d 797, 798799 (Tex.Cr.App.1981), and the cases cited
therein; as well as the cases collated in Vol. 25, Texas Digest under
Jury Key No. 109.
According to the above cases, and Art. 35.19, V.A.C.C.P. = the
term “absolute disqualification” encompasses only the second, third,
and fourth causes for challenge listed under Art. 35.16(a), V.A.C.C.P.
I have carefully reviewed the responses Bradley gave during her voir
Gire examination and have not found the slightest indication that she
was absolutely disqualified for jury service under the provisions of
Arts. 35.16 and 35.19, supra. Thus, the trial court should rot have
excused Bradley sua sponte. I also find that such error was not
harmless error because the State had exhausted all of its peremptory
challenges prior to the conclusion of jury selection in this cause.
And even if it had not, this Court in Grijalva v. State, 614 S..2d
420 (Tex.Cr.App.1980), in overruling Chambers v. State, 568 S.W.2d
313 (Tex.Cr.App.1978), held that the existence of unused State
peremptory challenges does not serve to make harmless an erroneous
exclusion of a venireperson in a capital murder case.
2/ ase. 35.19, V.A.C.C.P., provides as follows:
No juror shall be impaneled when, it appears he is
subject to the second, third, or fourth cause of challenge in
Article 35.16, though both parties may consent.
Art. 35.16(a) (2), (3), (4) provide as follows:
(a) A challenge for cause is an objection made to a parti-
cular juror, alleging some fact which renders him incapable or unfit
to serve on the jury. A challenge for cause may be made by either the
state or the cefense for any one of the following reasons:
(2) That he has been convicted of theft or any felony;
(3) That he is under indictment or other legal accusation
(4) That he is insane or has such defect in the organs of
feeling or hearing, or such bodily or mental Jefect of
disease as to render him unfit for jury service, or
that he is legally blind and either the court or the
state in its discretion or the defendant or the
prospective juror in his discretion is not satisfied
that he is fit for jury service in that particular
case. ;
Art. 35.16(a) also provides that “to juror shall be impaneled
when it appears that he is subject to the second, third or fourth
grounds of challenge for cause set forth above, althouch both parties
may consent. All other crounds for challenge may be waived by the
party or parties in whose favor such grounds of challenge exist.”
a, eee yy RN fs me ee
‘HERNANDEZ - 3
As to this Court's holding that the appellant failed to make a
timely and specific objection to the trial court's excusing Bradley, I
find it necessary to discuss the contemporaneous and specific
objection rules of law. The contemporaneous objection rule of law is a
requirement in law that before a defendant can complain on appeal
about some action of the trial court or the prosecuting attorney it is
incumbent upon him to make an objection at the very first
opportunity-to whatever his complaint refers. See Boulware v. State,
542 S.W.24 677 (Tex.Cr.App.1976), cert. den., 430 U.S. 959 (1977);
Crawford v. State, 617 S.W.2d 925 (Tex.Cr.App.1981), cert. denied, 452
U.S. 931 (1981); Zillender v. State, 557 S.W.2d 515 (Tex.Cr.App.1977);
Sullivan v. Little Hunting Park, 396 U.S. 229, 233-234, 90 S.Ct. 400,
24 L.Ed.24 386 (1969); Williams v. Georgia, 349 U.S. 375, 75 S.Ct.
614, 99 L.Ed.1161 (1955); Henry v. Mississippi, 379 U.S. 443, 447-448,
8S S.Ct. $64, 13 L.Ed.2d 405 (1965); Engle v. Isaac, <-U.S.--, 102
U.S. 1558, 71 L.Ed.24 763 (1982); May v. State, 618 S.W.2d 333
(Tex.Cr.App.1981), cert. granted, --U.S.--, 102 S.Ct. 947, 70 L.Ed.2d
374 (1982). This rule of law has been applied to capital murder jury
selection proceedings. A corollary to the contemporaneous objection
rule of law is the requirement that before error is preserved for
appellate review purposes, the objection must be specific. This rule
has also been applied in capital murder voir dire situations involving
exclusion of jurors in the absence of challenge by the parties. Bodde
v. State, 568 S.W.2d 344, 349 (Tex.Cr.App.1978); Burns v. State, 556
S$.W.2d 270, 278 (Tex.Cr.App.1977); Moore v. State, 542 S.W.2d 664, £68
(Tex.Cr.App.1976).
The reason appellate courts require that an objection must oe
made as soon as the ground of objection becomes apparent is obvious.
The additional requirement that the objection must be specific, in
order to properly preserve error for appellate review purposes, stens
from two policies. The twofold reason for the rule was succinctly
stated in Zillender +». State, 557 S.W.2d 515, 517 (Tex.Cr.App.i977).
There, this Court stated the following:
First, a specific objection is required to inform the
trial judge of the basis of the objection and afford him
the opportunity to rule on it. Second, a specific objection
is required to afford opposing counsel an Upportunity to
remove the objection or supply other testimony. Me Cormick,
a
ie a te oe
‘HERNANDEZ - 4 | ;
Handbook of the Law of Evidence, Sec. 52, P+ 113, 115 (24
ed.1972); 4 Jones, The Law of Evidence, Sec. 28:2, p. 276
(6th ed.1972).
Also see Xanthull v. State, 358 S.W.24 631 (Tex.Cr.App.1962); Fowler
vy. State, 352 S.W.2¢ 838 (Tex.Cr.App.1962).
Ordinarily, the responsibility for making a timely and specific
objection rests with the complaining party. Failure to timely and
specifically object will usually constitute waiver of the objection.
However, because the instant case presents a unique situation, I an
unable to agree that appellant failed to object or that the objection
to the trial court's exclusion of venireperson Bradley was untimely.
Although the record does not reveal any manifestation of a
defense objection to Bradley's exclusion by the trial court, sua
sponte, nevertheless, it instead reflects the trial court's
acknowledgment of appellant's objection to the exclusion of Bradley.
Prior to excusing Bradley, the trial court statec into the record the
following: “You [appellant] have objection to my ruling.” :
As previously noted, a primary purpose of the specific objection
rule is to ensure that the trial court and opposing counsel are
informed of the ground of objection so that they possibly can take
act. a to remedy or cure the noted defect or action. Another reason
for the specific objection rule is to ensure that the trial court has
adequate opportunity to rule on the objection. Zillender v. State,
supra. In this instance, neither of the above Purposes would be served
by holding that the appellant did not preserve error in the trial
court's wrongful exclusion of the venireperson Bradley. The record
makes it apparent to me that the focus of Pradley's voir dire
_ @xamination was on her views regarding the imposition of capital
punishment, and her ability to render a verdict Which would result in
@ sentence of death. As noted, the prosecuting attorney affirmatively
HERNANDEZ - 5
C.
* declined to interpose a challenge for cause to Bradley serving as a
4 juror. The trial court, nevertheless, sua sponte and without stating
any reasons for its action, excused Bradley. However, in doing so, it
explicitly stated the following: “You may have objection to my ruling
{that is, to the excusing of Bradley]}.” Under these circumstances, I
am able to state that the most apparent defense objection would have
been that the trial court excused Bradley in the complete absence of
authority to take such action. I therefore believe that under the
above circumstances, to further require appellant to have made any
additional and synonymous statements that the trial judge had just
made would be to mandate that appellant was required to do a useless
act. The law ordinarily does not require the doing of a useless act.
In light of this record, I am unable to state that the trial court was
unaware of a ground of objection; especially when it was the trial
judcse himself who took the initiative in noting appellant's objection
to his exclusion of Bradley. As Judge Clinton noted in his dissenting
opinion on original submission, appellant should be entitled, for
appellate review purposes, to rely on the trial judge's acknowledgment
of his objection. I would also hole he may co so. I also believe, in light
of this record, that it would be quite unfair to the appellant to hold
that no error was preserved; especially after the trial judge, in
effect, assured appellant that any error in Bradley's exclusion was in
fact preserved for appellate review. In light of the action by the
trial judge, I believe that to hold the error was not preserved for
appellate review would tend to impugn the fairness and integrity of
the judiciary. This, I decline to do.
Having previously found that such error was harmful to appellant,
I woulé grant appellant's motion for rehearing and reverse the
judgment of conviction for the above stated reasons.
On original submission, the majority implicitly found that the
trial judge's acknowledgment of appellant's objection was sufficient
to preserve any potential error in reference to his claim that Bradley
was improperly excluded in light of Witherspoo1 v. Illinois, supra.
The majority, however, held that the trial court's excluding Bradley
was “consistent with Witherspoon: [her] answers reflect that [she]
would have been unable to serve as [a) fair and impartial juror
consistent with Witherspoon.” I totally disagree with this conclusion.
A careful review of the transcription of Bradley's voir dire
exemination reflects that she was improperly excused under the Supreme
Court decisions of Witherspoon and Adams v. Texas, 448 U.S. 38, 100
S.Ct. 2521, 65 &.Ed.24 581 (1980). The majority's holding is
Constitutionally unsound.
The Supreme Court in Witherspoon, supra, mandated that “a
sentence of death cannot be carried out by excluding veniremen for
cause simply because they voiced general objections to the death
penalty or expressed conscientioss oor religious scruples against its
infliction.” 392 U.S. at 522, 88 S.Ct. at 1777, 20 L.Ed.24 784-785. In
Adams, supra, the Supreme Court held that V.T.C.A., Penal Code, Sec.
12.31(b), which statute disqualifies a prospective jurcr who is
unwilling to swear that the mandatory penalty of death or life
imprisonment for the offense of cepital murder will not affect that
person's dGeciaracions on factual issues in the case, stated a
Gisqualification standard impermissibly troader than Withersoceos,
Supra, and cannot be used as a basis for disqualification independent
of Witherspcon. supra.
The voir dire examination of Sradley reflects that aithougn she
was not imaiteracly opposed to the death penalty, she did not think
“hat the could “vote for the imposition 2f 3senth.” ‘lowever. she
Sakatioun i4¢r nswers iv 4irse stating “hac ithe sould “ste <er <Ac
.: HERNANDEZ «7 . .
« Geath penalty” if “it was an intentional thing or a minor that
couldn't protect [himself])." Bradley's voir dire examination concluded
with the following responses:
Bradley: Well, I would say that I don't believe I could
make the decision for a person's death.
Defense Attorney: Which means not sure?
Bradley: That's right.
At no time during voir dire did anyone ask Bradley any questions
concerning the special issues set forth in Art. 37.071, V.A.C.C.P.
Bradley's responses also indicate that in the abstract she was unsure
whether she could vote to impose the death penalty. Thus, it is
conclusive that Bradley did not make it “absolutely and unmistakably
clear" that she could not follow the law. The trial judce's excluding
her was improper under the Guidelines of Adams, supra, and
Witherspoon, supra. For this additional reason, I am compelled to
dissent to the denial of appellant's motion for rehearing without any
written opinion.
Therefore, for all of the above reasons, I respectfully dissent
to the action of the majority in denying the appellant leave to file
his motion for rehearing.
TEAGUE, Judge
En Banc
Delivered January 18, 1983 Presiding Judge Onion, Judge Clinton and
Judge Miller join in this opinion.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.