*1 rehearing deed, appellant s motion for bankruptcy precise result On petition discretionary appel- re- this after Commissioner Ware review: case decision, rehearing granted: prior original court’s deliv- lant’s motion ceived this 31,1990. gar- opinion judgment of Additionally, ered withdrawn: the Court December “encourages Appeals of of cause remanded to overextension reversed: nishment lenders, marginal high-risk credit cre- that court. relationship adversary
ates undesirable employer employee, is unnec- between CAMPBELL, WHITE and essary creditors can use other de- BERCHELMANN, JJ., dissent. payment, mostly vices to secure and used (citing against poor ignorant.” Id. Wage
Sweeney, “Abolition of Garnish- ment,” Fordham L. Review
(1969)). today, only modification of
Before provision important since century ago more adoption than approved the voters Wayne McKAY. David allow the enforcement of court-ordered 70850. No. payments. permit- Instead of support child ting scope to determine the voters Texas, Appeals of Court of Criminal ban, fiat, judicial garnishment today, by En Banc. effectively six of this court de- members repeal, part. in at substantial clare its least Sept. 1990. By eviscerating con- this well-established Rehearing Dec. Denied provision, today’s decision will stitutional exactly force into that “condition debtors abject dependence and want” sought pre-
framers of our constitution Co., 11 v. Indian Live-Stock vent. Bell vigorously at 346. dissent from S.W. judicial of the Texas Constitution. rewrite GAMMAGE,JJ., join in
DOGGETT this dissent.
SHELBY
STATE. No. 0491-87. Texas, Appeals Court of Criminal En Banc. Jan. Court, Appeal from the 338th District Coker, Judge. County; Ernest Harris *2 III, Dallas, Monning, appel-
B. Prater lant. Vance, Tolle, Atty., Dist. Teresa
John Dallas, Huttash, Atty., Asst. Dist. Robert Paul, Atty., Asst. State’s Matthew W. Austin, Atty., for the State. State’s
OPINION
MILLER, Judge.
post-conviction application
This
pursuant
corpus
11.07,
Applicant was
Article
V.A.C.C.P.
plea
guilty
by jury
on a
of not
convicted
V.T.C.A., Penal
capital murder. See
19.03(a)(2).
August
Section
On
Code
imposed
pen-
court
the death
trial
jury’s
alty
affirmative answers
pursuant
submitted
the three
issues
ap-
Art.
V.A.C.C.P. On direct
affirmed
peal,
convictionwas
2, 1985,in a publish-
this Court on October
opinion. McKay v.
ed
reh’g
(Tex.Crim.App.1985),
denied.
attorneys “not to
Following applicant’s
petition
his
instructed the
appeal,
juror’s interpre-
inquire
prospective
of certiorari
denied
for writ
on October
tation,
understanding
States
United
definition or
terms
Texas,
McKay v.
479 U.S.
deliberately, probability,
reason-
(1986). Applicant
jury panel State, 413 In Martinez v. 763 S.W.2d time, however, afforded trial we have juror held that (Tex.Cr.App.1988), we the voir dire ability to control courts the in who, guilty verdict returning a upon compel a would process if sound discretion case, automatically capital murder restrict judge nevertheless trial one, inquiring special issue “yes” to answer conducting an questioning in the interest delib- conduct was the defendant’s See, e.g., orderly expeditious trial. for har- erate, challengeable for cause was State, (Tex.Cr. 823 v. 513 S.W.2d Smith since “such a against the law boring a bias State, 591 v. App.1974) and McManus inability, once manifests an position (not 505, (Tex.Cr.App.1980) 520 S.W.2d against an guilt has been resolved issue of duplicitous disallow of discretion to abuse accused, guilt evidence for reconsider State, 608 S.W.2d v. questions); Clark in value it will probative whatever (trial court can set (Tex.Cr.App.1980) 669 first context of the particular State, v. limits); Abron reasonable time Martinez, 763 S.W.2d issue.” (tri (Tex.Cr.App.1975) 408 523 S.W.2d Gardner3, held that: we limits, time set reasonable al court can constrained to Ordinarily we would questions, vexatious repetitious or restrict of discre- not an abuse form, ... it is hold that improper in questions asked restrict of veniremen questioning prohibit hab tion personal questions directed restrict which, having no statu- regarding terms court’s Accordingly, a trial jurors). its of juror’s definition, left are during tory voir questioning to limit decision was rendered. in Gardner years before our decision tried in five case was The instant
483 understanding State contends that even based common usage, long meaning and at least so error was committed “constitutional” prohibition imposed harmless, in the interest judge, already reasonably limiting Smith, notwithstanding language procedure. On lengthy voir presumes S.W.2d at case, however, the facts the instant that the defendant once is determined we find that interest the trial court asking proper ques from prevented might limiting Gardner, in voir dire was have had The State relies tion. right clearly outweighed appellant’s an abuse of wherein we found S.W.2d interrogate Kirklin venireman disallowing in the defendant [con- discretion cerning automatically whether she would a similar the one pose affirmatively answer issue one case, dis present yet found harm. We having after found that the defendant tinguished the facts of Gardner cases intentionally committed present murder]. like and the case Smith Gard itself, stating:
ner State, v. Pow Smith appellant Footnote 7. Counsel for the (Tex.Cr.App. v. ell State S.W.2d [631 apparently State were 1982)], the two Mathis cases [Mathis prevented they legally view that were State, inquiring from ever as to a venireman’s 167 Tex.Cr.R. and Mathis understanding meaning “de- of the (1959)], Campbell S.W.2d authority We know of no liberate.” (Tex.Cr.App. statute or caselaw substantiate this 1985), prevented from the defendant was notion. question to the entire' posing proper *6 Therefore, attempt Id. at 684 and 688. panel, simply single a venire jury juror to a ascertain whether maintains such man. that event it is clear In position proper is mat- unquestionably a a to upon right repre the encroachment inquiry during capital a ter murder voir I,Art. sentation counsel under Sec of dire. Constitution, 10 the see tion Texas present case, applicant’s In the de Mathis, 322 S. W.2d at has infected questioning proper. sired line of In was process jury selection. entire asking prospective juror whether a could The Smith manifest. “no” ever answer issue one the defendant verdict, returning guilty a effec pos from complained prevented he was tively sought juror to determine question during the ing proper a individ thereby automatically “yes”, answer separate venire ual voir dire twelve demonstrating against a bias law Again, the harm man in that event [sic]. challenge grounds for a We cause. evident. would be consistently right held contrast, error in- By in this case the representation as afforded under Article single dire of but venire- fected the voir a in 10 of the Texas Section Constitution appellant man. Because was awarded right question pro properly cludes the peremptories, the infection additional spective during voir dire order to jurors cured. was peremptory challenges effectively exercise (emphasis Gardner, S.W.2d at n. 9 challenge predicate for a establish added). Gardner, for cause. case, applicant pre- was Smith, Mathis, present In the asking proper question Thus, applicant’s from right vented S.W.2d 629. veniremen, approximately half jurors thirty-five limited in question prospective court abused the entire venire. way as to his constitutional violate limiting by improperly hold, therefore, that the trial its discretion rights. We appli- disallowing questioning. Since scope of its discretion in voir court abused thirty-five allowed to question. cant was not difference, there is a per- qualitative of that thirty-five additional veniremen and in the need for emptories granted, corresponding were not Gardner difference distinguishable, and the harm clearly reliability in the determination that death manifest. appropriate punishment specif- is the ic case.
Still,
error rise
does this “constitutional”
of error
level
Id.
considering
corpus?4 In further
Alabama, 447 U.S.
In Beck v.
dealing
that in
question,
we remember
(1980),
the Su-
65 L.Ed.2d
S.Ct.
imposing the death
procedures for
with
to deter-
preme
certiorari
Court
Supreme
penalty, the United States
Court
could
mine whether a sentence of death
invariably recognized
heightened
has
jury
constitutionally imposed after a
ver-
requirements
need for assurances that
jury
capital
guilt
in a
case when
dict
in a
of due
are followed
in-
permitted
consider a lesser
Carolina, v. North
case. Woodson
noncapital offense and when
cluded
2978,
closed
Thus,
juror
equate
a
these
who would
justifications
discussion of the
of-
defen-
by automatically finding the
terms
the
the
re-
fered
upon
finding
deliberate
dant’s conduct
ground
jected
on the
several reasons
knowing would
intentional or
that was
“nullity.”
use
such information
sat-
special
while the
issue one
To
render
obviously
juror
process
such a
who
isfy
requirements
due
allow
determining
in
special issues
guided
case,
noncapital
its use was
constitu-
constitu-
would undermine the
penalty is
in a case
the death
tional
where
Jurek,
sentencing
tionality of
scheme.
our
invoked. Id.
U.S.
489 per se renders a Washington, 468 error v. that constitutional Strickland prong Crispen, 668, parte Ex 2052, “void,” 674 104 S.Ct. 80 L.Ed.2d U.S. conviction see a (1984), on such 103, would come to bear (Tex.Cr.App.1989) at 111 S.W.2d 108 Amendment claim of ineffectiveness Sixth J., concurring), least (Clinton, we should at any of counsel. It would not seem to fit say an is “of able to error sufficient be categories for obliged magnitude character or that we are prejudice analysis unnec has held a say rectifying it to that our interest Cronic, 466 v. See United States essary. compelling finality in- overcomes otherwise 648, 2039, 25, n. at U.S. 659 & 104 S.Ct. terests”, we make it a basis before 657, (1984). On the L.Ed.2d at 668 Goodman, collateral relief. case, as set out in the present facts of the (Clinton, J., S.W.2d State, McKay v. opinion appeal, on direct 3). concurring) op. said (slip at We have (Tex.Cr.App.1985), at 27-28 intelligent peremptory denial use of acted, readily appellant find jury could analy- challenges a harm is not premeditar but with deliberately, just sis, so the likelihood harm is tion, which is more than Article 37.- impartial fair and great a denial V.A.C.C.P., requires. Russell v. 071(b)(1), inevitable, rather, simply but be- State, (Tex.Cr. at 779-780 S.W.2d is such that a cause the nature error circumstance, it App.1983). Given this non, harm, vel meaningful inquiry into can- that, probable reasonably does not seem State, supra, v. See not be made. Nunfio questions for the failure allow but State, 3; Roberts v. n. at 485 & S.W.2d “inten the difference between the terms (Tex.Cr.App.1990). I do not con- “deliberate,” tional” and the first indulge harm sider the refusal issue have been answered would different reason, appeal, on for this direct Washington, Strickland ly. 466 U.S. declaring equivalent of functional S.Ct. at L.Ed.2d “void,” or error rendered conviction short, my it has been demonstrated to magnitude as of sufficient was otherwise rely it on satisfaction that was a mistake to interest justify suspending the State’s post Amendment the Sixth as a source of finding finality even absent voidness. corpus relief in this conviction habeas applicant’s claim is not I would hold that purely cause. error is consti- state post-appel- cognizable post-conviction, Only tutional dimension. three 11.07, Article collateral attack under late plurality explains why state opinion rehearing By denying the Court supra. Ar- constitutional error under majori- than opinion by stand less lets parte Truong 11.07, not- supra, ticle claim, but ty only that not entertains I, withstanding. presumably the three extraordinary in this grants relief cause. my concurring opinion, judges joined who respectfully dissent. rejected plurality’s explanation. Judge rejected it Presumably Berchelmann majority That means a of the Court too. CAMPBELL, J., joins. yet agree
has available only present- collateral attack 10, supra. here—violation of Article
ed § cannot Until we address that issue we grant relief. intelligent peremptory
Denial use of susceptible challenges ordinarily analysis. See Nunfio Cf. Gard- (Tex.Cr.App.1991). at 690 n. 9 ner Nevertheless, I (Tex.Cr.App.1987). hold under Article Particularly reject the fiction supra. we