*1 beyond a are satisfied reasonable doubt prejudice emanating residual illegitimate guilt- prosecutor’s
from the
phase jury’s remark that called the atten- lack of appellant’s
tion to the in-court re- not at all to its
morse contributed assess- punishment.
ment of his
CONCLUSION
Accordingly, judgment we reverse the appeals
the court of and remand the cause appellant’s
to that court to address the
remaining of error. point
WOMACK, J., dissented. GONZALES, Appellant,
Michael Dean
The STATE of Texas.
No. AP-76176.
Court of Criminal Appeals of Texas.
Sept. *3 Zavoda, Odessa, P.
David Appellant. for Mau, Wesley H. Asst. Coun- A.G./Ector ty McMinn, Da Pro Tempore, Lisa C. Austin, State’s Attorney, for State. OPINION HERVEY, J., opinion delivered the KELLER, P.J., the Court in which MEYERS, PRICE, KEASLER, ALCALA, JJ., COCHRAN and joined. Appellant was convicted in December 1995 of capital murder. Tex. Penal Code 19.03(a)(2). § jury’s Based on the answers to the special issues set forth in the Texas Procedure, Code of Criminal Article 37.071, 2(b) 2(e), Sections the trial Appellant sentenced to death. Art. 37.071, § 2(g).1 His conviction and sen tence were affirmed on direct appeal. State, (Tex. AP-72,317 Gonzales v. No. 1998) (not 3, Crim.App. June designated for publication). Appellant’s applica state tion for corpus habeas relief was denied. parte Gonzales, Ex WR-40,541-01 No. 1999) (not (Tex.Crim.App. March des ignated publication). for Appellant’s fed petition eral for corpus habeas relief was denied as to his granted conviction but as punishment, and the case was remanded for a punishment new hearing. Gonzales Cockrell, (W.D.Tex. v. No. MO-99-CA-073 2002) (not December designated for publication). The United States Court of Appeals for the Fifth Circuit affirmed the 1. Unless otherwise indicated all references to dure. Articles refer to the Code of Criminal Proce-
829
(Tex.Crim.App.
939-40
Gon
S.W.2d
judgment.
court’s
district
federal
(5th 1995).
specifically, Appellant
More
relies
Quarterman, 458 F.Bd
zales
(Tex.
Cir.2006) (not
on Drew v.
S.W.2d
designated
publication).
dism’d,
1989),
improvi
as
pet.
App.-Austin
punishment
held a new
trial court
(Tex.Crim.
If court sets aside or invalidates the hearing. sentence of a defendant convicted of an 19.03, Code, offense under Section Penal Appellant cites to Moore v. John and sentenced to death on the basis of son, (5th Cir.1999), 194 F.3d affecting punishment only, error holding its that when federal habeas relief court shall not set conviction aside in a capital case is punishment, limited to but rather shall commence a new pun- the proper course is to permit the state hearing ishment under Article 37.071 or court a reasonable time which to decide code, Article 37.0711 this as appropri- whether to hold a new trial limited to ate, as if a finding guilt been had punishment or to vacate the death sen *5 returned. tence impose and a life sentence. Similar Moore, Appellant’s appealed case was statutory This provision makes no mention the United Appeals States Court of for the of the transmittal or receipt of a court Fifth Appellant Circuit after obtained ha- order. The mandate for the court to com- beas corpus relief punishment limited to mence a punishment new hearing is not However, the district court. See id. un conditioned on such receipt, and we do not Moore, like in parties in this case did read that condition into the today. statute complain language about the long So as the federal district court’s order federal district court’s order in the appeal set sentence, aside or invalidated the death to the Fifth Circuit. See id. Appellant then the trial court’s action was author- also failed alleged to call this error to the ized. event, attention of the trial court. In Appellant dispute does not that the or- this assertion fails to demonstrate that the der set aside invalidated the sentence. above, order is void.4 As discussed long so Consequently, the trial jurisdiction court’s as the federal district court’s order set was restored as to the punishment, issue of sentence, aside or invalidated the Article and the trial court had no choice but to 44.29(c) authorized the trial court’s action. conduct a trial punishment on was re- —it Point of error one is overruled. quired to commence a punishment new hearing “as if a finding guilt had been II. CHALLENGES FOR CAUSE 44.29(c). returned.” Art. points three, In of error two and Appel-
Appellant argues in the alternative that lant claims that the trial court erred when the federal district court’s order did not it denied his challenges for cause to venire- confer jurisdiction to punish- hold a new persons Sarah Murdock and Randall Phil- ment hearing because the order “is void on lips. 3. Under Rule 41 Ap- ject Federal Rules of parties, matter jurisdic or of the lacked Procedure, pellate order, mandate "[t]he is effective tion to enter capacity or lacked the R.App. when (emphasis issued." Fed. P. 41(c) See, State, to act e.g., as a court. Nix v. 65 added). 664, S.W.3d (Tex.Crim.App.2001); 668 Placke, 362, Browning v. 698 S.W.2d 363 general, In an order is void when the court (Tex. 1985). jurisdiction that entered it lacked of the sub Mur- peremptory whether the trial used strikes exclude
The issue is and He all of challenges Phillips. dock exhausted his rulings Appellant’s court’s by effectively peremptory granted strikes and one Appellant for cause harmed After statutorily using al additional strike. the addi- him of one of depriving strike, requested challenges. Appellant See New tional addition- peremptory lotted (Tex. State, peremptory venireper- 30-31 al strikes v. 135 S.W.3d bury State, objectionable. v. 43 sons he identified as His Crim.App.2004); Johnson denied, requests venireper- (Tex.Crim.App.2001). Harm were those S.W.3d Still, the jury. of a defense sons were seated on be- the erroneous denial from granted on whether a cause the trial court one additional challenge for cause focuses strike, wrongfully Appellant “was tak must show that the trial peremptory Johnson, court error in his chal- denying committed en from” the defendant. “(1) lenges to two venirepersons when a for cause at 6. Such harm occurs S.W.3d he order to was harmed. chal demonstrate peremptory defendant exercises State, Busby See 253 S.W.3d 673 n. whom on a the trial lenge veniremember 12 (Tex.Crim.App.2008); Newbuny, 135 for cause at the court should have excused S.W.3d at (2) request, the defendant uses defendant’s statutorily peremptory all of his allotted look at the entire record of We (3) the defendant unsuc challenges, voir dire determine evidence cessfully requests perempto an additional support ruling sufficient to on a court’s he challenge which he claims would use ry challenge for cause. Feldman v. *6 whom the on another veniremember defen 738, S.W.3d 744 We (Tex.Crim.App.2002). ‘objectionable’ identifies as and who dant great afford to trial court’s deference 135 at jury.” Newbury, on the S.W.3d sits present decision because the trial is met, are When these conditions we 31. venireper- to the demeanor of the observe trial court’s erroneous have stated his tone Id. son to listen to of voice. challenge a for denial of defense cause Particular is due veni- deference when the effectively by depriv harms defendant reperson’s “vacillating, answers are un statutory ing peremptory him of one of his State, clear, contradictory.” or v. Davis per “he had to use a challenges because (Tex.Crim.App.2010); 313 344 S.W.3d remove a venire- emptory challenge to (Tex. State, v. 999 S.W.2d Moore who have been removed
member should Crim.App.1999). Consequently, we will Id. for cause.” ruling challenge a reverse trial court’s on only for cause if a clear abuse of discretion has been grant When defendant Davis, at is evident. 313 S.W.3d peremptory challenge, one additional ed effectively he could have been then venireperson challengea- A is statutorily peremp of a allotted deprived ble for if he or she has a bias or cause tory challenge the trial court’s erro from prejudice against the defendant or only of one defense neous denial the law which either the State or upon circumstances, Id. these for cause. Under 35.16(b)(3) rely. is to Art. defense entitled the defendant must show the trial (c)(2); & 306 S.W.3d Gardner his challenges denied for erroneously court The test (Tex.Crim.App.2009). to to two veniremembers demon cause preju venireperson’s whether the “bias harm. Id. strate ability substantially impair [his] dice would carry and instructions after chal- to out his oath The record reveals that his Feldman, denied, the law.” Appellant were accordance with lenges cause at 744. To the chal- or the other. way establish that one Does that make S.W.3d lenge proper, proponent for cause is sense? the venire- challenge must show that Okay. A. [MURDOCK]: person requirements understood the Q. you follow Do that law? prejudice could not his law and overcome Yes, I do. Id. at enough
well to follow the law. So before venireperson may be excused [*] [*] [*] basis, on the law must be for cause Q. So what [STATE]: [the defense] him, to and he must asked explained is, asking you was neverthe- law, regardless whether he can follow that him guilty dangerous less find of being personal views. Id. at 744. though even the State to has failed show Appellant’s point second of error beyond a reasonable he is? doubt that To venireperson concerns Murdock. be A. No. Appellant argues upon her gin, based No, Q. okay. Do you understand— answers, Appel Murdock could not afford Yeah, understand, I am starting to right lant the to remain silent and would yeah. proof Appellant shift the burden of dangerousness.5
the issue of future Okay. Q. And I say, like I want supports that record Murdock was not make am not trying change sure. challengeable on Her these bases. state your mind about anything, trying I am were misunderstanding ments based on a sure to make we are all clear— of the law. This was overcome when the A. Right. her, explained law was her under Q. what —on meant that? standing of the law as to issues those A. Uh-huh. example, corrected. For Murdock testi to the following: fied And so do feel like no Okay. [STATE]: So that one of longer confused about that? *7 why the reasons the would in- Yes, now, A. I am okay yeah. with that you testify, if he struct doesn’t that that n n *!' against cannot be taken as evidence him any way. in You use Q. you couldn’t that as ... I thought [DEFENSE]: any kind of a justify evidence to verdict that in said was deciding whether the 5. The record Appellant reflects that chal- evidence that she—that Mr. Gonzales lenged following Murdock for the danger, reasons: not a future even if had the State proven danger beyond his future a rea- Honor, [DEFENSE]: Your we would chal- sonable doubt. lenge Ms. Murdock for cause on the basis [sic], secondly And that she would consider testimony, depending that she—her on present any Mr. Gonzales’s failure to evi- on, you response which time focus but in to contrary deciding dence to the or in question, defense she she said that would determining whether or not the had State to expression want hear an of remorse from proof beyond met burden of its reason- a the defendant in open court would con- able doubt. assessing that in sider whether not he thirdly, get And that Ms. Murdock has stated punishment should the maximum so grounds that would—felt like she the fact that life that is that would she not be disregard parole parole life testify. able to was not without his failure to would— Secondly, eligibility we would would her on the be—would affect deci- her is, answering special basis that she is a burden shifter. That sion in Under issues. grounds that she would both want to hear from the three we lodge those would a chal- her, defense and the present lenge defense to some cause Your Honor. special and answer the gives you, it to danger you to future proved had State doubt, issues, that the answers to you knowing that a reasonable beyond may whether the result in a life deciding special issues consider those would burden, fact that sentence, willing its to you had met would be State presented had not honestly the defendant issues ac- special answer those not a future dan- not, that he was you evidence to the evidence and cording ger. them, know, as we talked not prejudge I it would be because Okay. guess I about before. A. of proof the burden not understand did Yes. A. [MURDOCK]: part. the State’s on give could take the oath and Q. You Q. Okay. to the fair trial defendant? I now understand
A. And so therefore A. Yes. know, prove, have to your if danger now and then testified: he is not Murdock it, about then say anything people didn’t Okay. Understanding [STATE]: know, mean, you say no. I would be, obviously, the concern would the second go have on to wouldn’t [sic], prospective from defendant’s one. unwilling to answer would argues further Appellant way that a life questions such challengeable because Murdock was because sentence would result her answers on would affect parole issue of might that he re- opposed to this idea (i.e., would issues whether she special eventually? ceive parole out of a con Appellant sentence Correct. [MURDOCK]: eventually be released might he cern that not render a true That would life). Again, parole sentenced on the law and the evi- verdict based Murdock was not supports that record dence, you would render a verdict but this basis. The State on challengeable on preventing solely with an aim towards Murdock re questioned examination direct getting a life sentence. him from ever parole feelings her garding whether feelings on that Do see how affect her answers would him think might cause parole issue under Murdock testified that she issues. do that. when parole operated how the law stood Yes, I see. She also it to her.6 explained the State *8 stated, penalty,” in the death “I believe thoughts about Q. So what are that, concern if expressed some and she that? murderer, it was shown to a leniency way I change I can’t just A. —I victims. the families of be unfair to would think. Yet, she be affirmed that Murdock could asking you to do Q. nobody And is fair. that, you suggesting I am is that. What question be- Q. ... So the [STATE]: know, you when answer comes, way, could although you feel that society. continuing threat to about the juror, take were selected as a you, you A. oath, Uh-huh. follow the oath as Court de- whether a life-sentenced would determine summary, that a life-sentenced In this was parole on once he years would be released in 40 fendant parole-eligible defendant would parole-eligible. and Paroles became the Board of Pardons and that
Q. Obviously, in, not, the risk that the defen- what the case should result I prison dant would ever be out of or how think a appropriate life sentence is but I long going prison may going give he is to remain am to him a death sentence Okay? be an element to that. get because don’t want him to ever parole. A. Uh-huh. A. I understand.
Q. you something And Q. Okay. just You have to kind of trust certainly think about. Then when we that if the defendant doesn’t rehabilitate get mitigation question in terms and doesn’t parole, just deserve that he of whether there are mitigating circum- it, get never but without having any [sic] justify stances that are sufficient to individual control of that. Does that sentence, you life again, would think make sense? know, about that as well. You whatever are, mitigating A. circumstances do Yes. they justify a life sentence in light of Q. Do think can follow that whatever kind of danger the defendant law? represents, whatever kind of crime he could, A. yes. committed, things. and all those other defense, On cross-examination by the Mur- But I think what—what we would not dock stated that possibility that a life- want to do is to authorize a death sentenced Appellant could make parole somebody sentence on who would not “might “might influence” or affect” her justified otherwise be in being executed special answers to the issues. special under those just issues because Q. ... I worry [DEFENSE]: And you wanted to avoid the parole issue. some people might think if I don’t—am Do understand what I am saying? not a percent hundred sure he is Yes,
A. I do. out, never going get life with- words, In other if a going out—that life means life without parole, well, say, I think the defendant deserves that’s—that nagging about him concern a life sentence but I don’t think it should getting out at some future going date is years, be with 40 so I am going give my influence decision on whether to him a death sentence instead. give him life. Oh, yes. A. Uh-huh. [MURDOCK]: Q. You see how that’s— Q. How to answer the issues. Do see what saying I am there? A. Yes. A. Uh-huh. Q. That’s not—that is not the kind of How do feel about that? asking issue that we are you to look at in this case and that would be—I think Well, me, if it was never proven to be an improper then, know, verdict. you, or that he would never That following your wouldn’t be oath if get out parole or something like *9 you were to do that. mean, know, you I I don’t know. I am confused now. A. I understand that. Q. Sure.
Q. You can parole consider the law but A. I’m sorry. give I could if life I you questions shouldn’t answer the dif- knew that he going get wasn’t to out on ferently simply you because are con- parole. Let me put way. it that know, you cerned you if think a about— life appropriate, sentence is then Q. Okay. that is Well— question the future danger can’t be as- answer with A. that can’t be—that But might think he yes just you because sured. Likewise, parole. you out on get should my question would the Q. So is Right. the mitigating not answer circumstances however, slim, that he would possibility, just you because question with no get parole— on out point get might think at some he re- A. Uh-huh. parole. leased You should answer date, future that Q. —at some based on questions those instead what- you completely that something be could you evidence the can show ever State mind, you are con- put your out of or danger mitigat- he is a whatever that you that you that concerned cerned —are circumstances there is. ing evidence Do back mind and your it be of might what I am you saying? see in answer- might your influence decision A. Yes. ing issues? just Q. And not answer the to Yes, A. it would. that make sure there is death sentence mean, judge to tell Q. going is you parole. don’t because like the idea is you you can’t consider—that that Okay. A. and of Pardons strictly up Board Q. Okay? Paroles, asking people that is a lot of but can, nobody knows A. I understand. guess, and I know they to going are react until how Q. you ques- defense] asked [The situation, kind of but it are in that tion, you put whether could that out of something, me as if sounds to That your mind. is what he was talking feelings pen- the death given your about it out Talking putting about. about alty, you you would have mind, is, your saying what he was can are — your ability ignore to doubts about Not you questions. answer these down parole eligibility issue that —of because, just forget about it obvi- you line; right? is that expect ously, expect we don’t don’t —I you we in court Yes, anything that tell A. sir. something you just going to be able might think affect And by the end of completely forget your your spe- answers to decision— expect you trial. But we do be able cial issues. know, to, particular have a Yes, sir. parole, that that will feeling about not On examination redirect ability your follow oath. affect testified: Murdock Okay. ... want to So what I [STATE]: you think Q. And that’s—so do parole now right in on is on focus take the oath can—if the—if you you will instruct issue. on the render a true verdict based law parole, the existence of can consider despite the evidence can do we a little bit how that talked about your feelings parole? some issues. play into of these might A. Yes. answering these you should But by the Finally, a life on re-cross examination questions based on the fact that defense, ultimately Murdock stated that result might sentence in the defendant *10 parole would not affect feelings future about parole at some her being released issues. words, special not her answers you In other should date. Well, concern, Q. All With re- I right. my Q. [DEFENSE]: [DEFENSE]: you of is when we were regard guess, to—with to the issue life said when gards you talking, you strongly said still felt I under- being parole, life without not My concern I about that. is this: don’t you say to that that would be of stood where, want to be a situation as I concern, put you that could not that out sorry I’m to said—and belabor the issue. mind, that that be in the your might of Gonzales, But have Mr. be- you found mind, your might that that back and doubt, yond reasonable a have found your special answers to is- affect these probability a there is he will be future sues, possibility might get the that he danger. Would then decision at some future out date. verdict, whether or not to return a I strongly yes. A. still feel on that life verdict rather than ver- the death strongly? You still feel dict, by would it be affected de- —that I to going COURT]: am inter- [THE cision, by would that the be affected ... I law rupt. don’t think the is that possibility get that he out could at put must it out back of her she date? some future mind, put or it out of her mind. A. No. the law is whether
believe that it is would It not? That not she will answering consider it in your decision? affect these, or will she follow oath that the A. No. took. she have, That all Your [DEFENSE]: is we presenta- You remember [the defense’s] Honor. to earlier
tion where he told added). (Emphasis you could be against pen- that The trial Appellant’s overruled alty and still serve on a jury. Murdock, challenge for cause regarding A. Uh-huh. stating that he was “of opinion juror. there was some confusion saying I am COURT]: [THE However, believe, having to her listened very strong can still have questions questioned and her answers feelings penalty about the death Court, is of the opinion that she is still follow the law and follow the qualified.” instructions of the Court follow your oath. appellate Under well-settled stan- ruling dard of review to a trial on a court’s (Nodded affirmatively.) cause, apparent for it should be got And I have [THE COURT]: what that the trial court clearly did not abuse its know, will do that? discretion decide that was not Murdock Yes, I will do that. challengeable for cause on the basis ahead, All Go right. feelings [THE COURT]: her parole law would sir. affect her answers to the issues.7 argues pellant 7. The dissent questions. its conclusion that was allowed to ask such challengeable sup- Murdock was Morgan prop- for cause is To the extent stands for the Illinois, by Morgan ported challengeable 504 U.S. osition that cause (1992). 112 S.Ct. automatically 119 L.Ed.2d if he would assess a sentence death, Morgan proposition parties Morgan stands for the point is not on here because at permitted questions should be questioning, to ask about a end of Murdock said that law, Ap- veniremember’s biases the law. she could follow the the instruc- follow
837 State, Prystash v. 3 (Tex.Crim.App.2007); at 32. Murdock 135 S.W.3d Newbury, See 522, require- (Tex.Crim.App.1999). We S.W.3d 536 that she understood affirmed law. Al- follow the to revisit them here. persuaded of and would are not ments she had Murdock stated of error four is overruled. though Point as- parole, she also feelings about strong feelings would not strong those
serted that PROTOCOL IV. EXECUTION special to the issues. her answers affect five, Appellant In of error point out above of the record set portions when it the trial court erred claims that to the last two responses her (particularly to declare the death his motion denied on re-cross the defense questions from based on Texas’s penalty unconstitutional examination) that Mur- clearly indicate He asserts that injection protocol. lethal would not af- feelings parole dock’s bromide in the pancuronium the use of issues. fect her answers Eighth violates the injection protocol lethal overruled. of error two is Point of the United States Constitu Amendment has not shown Appellant Because I, 13, of the Texas and Article Section tion his chal denied improperly the trial court Constitution.8 venirepersons, he at least two lenges to execution is not imminent. Appellant’s error. See Feld reversible cannot show Therefore, the method in which the lethal Therefore, man, we at 748. 71 S.W.3d injection currently administered is not error point his third need not address will way it be admin- determinative it is venireperson Phillips, and regarding Appellant’s at the moment of exe- istered overruled. ripe claim is not for review. cution. This State, 757, 780 v. 239 S.W.3d See Gallo III. 12-10 RULE Point of error five (Tex.Crim.App.2007). four, claims Appellant of error point In is overruled. overruling in the trial court erred the trial judgment affirm the 12-10 Rule unconsti- We to declare the motion that the 12-10 Rule court. tutional. He asserts and Fourteenth Eighth
violates COCHRAN, J., concurring filed States Amendments to the United Consti- opinion. infor- provides misleading it tution because prohibits the jurors
mation JOHNSON, J., dissenting filed correcting the parties from court and opinion. 12- He reasons that the misinformation. risk that unacceptable Rule creates an WOMACK, J., dissented. sufficiently mitigating fac- jurors who find COCHRAN, J., concurring. effect to their give tors will be unable case, I judge the trial Had been minority “or a findings are in the challenges granted have Appel- would rejected appellant’s one.” We have holdout of See, Sarah venirepersons to both for cause arguments previous cases. lant’s Phillips. But was Murdock and Randall v. 225 S.W.3d e.g., Druery (2008), court, hold- S.Ct. 170 L.Ed.2d and follow her oath. The tions of the her, Kentucky lethal-injection proto- and we ing was entitled to believe trial that the col, proto- defer to that belief. very to the Texas which is similar col, Eighth Amendment. does not violate acknowledges Supreme Appellant 57-58, Id. at 128 S.Ct. Rees, 553 U.S. Court's decision Baze *12 838 judge. present
not the trial And I was not import the clear their response of total venirepersons gauge to see the or to no, never, their “Absolutely is never.” All too context, sincerity. demeanor or In this frequently judge the trial lawyers and (or, spoken the actual frequently, words judge must particular the fitness of a misspoken) by venireperson a ex- do not venireperson by a “gut feel” for the ul- press message conveyed by the full that is timate open-mindedness fairness and of speaker by or received the listener. that person. Among participated those who have why That is the experienced trial judge death-penalty individual voir dire proce- pays particularly close attention to the dures, it is common knowledge po- venireperson’s overall attitude toward a jurors frequently express tential extraor- specific conveyed issue as it is both verbal- beliefs, dinarily strong principles, and ly nonverbally, and consciously and uncon- they attitudes when fill out the written sciously. The fairness of the entire trial questionnaires questioned and are first depends Thus, upon this assessment. re- judge attorneys. and It is not viewing rely courts must heavily upon the their initial thoughts and beliefs de- good judgment of the trial judge in decid- potential jurors’ termine ultimate suita- ing grant whether to or refuse a challenge bility for service in a death-penalty case. we, They, for cause.2 not “Johnny-on- are Rather, ability it is their temporarily the-Spot.”3 set strong aside those beliefs and follow But coupled the law with the trial given judge’s great as it is to them that de- termines their discretion responsibility fitness.1 The comes his initial an- to en- questionnaires swers sure that any venireperson merely might are who guide possible be fair is parties jury areas removed from the panel. judge and the always should discuss with There are more fish in the sea and venireperson. jurors And more jury sometimes it is not in the panel. In close calls, even the final spoken by words the ven- trial judges always should err on the ireperson that are determinative. We side of granting challenge for cause rath- “Yes,” have all seen those say who but er than denying one.4 Reviewing courts See, Balkcom, 573, e.g., Smith v. 660 F.2d vacillating juror is faced with a ... elements (5th 1981) ("All 578 Cir. poten- veniremen voice, etc., are such as demeanor and tone of tially process biased. The of voir dire de- important conveying factors in precise signed to cull persons from the venire who Therefore, message intended. the trial they demonstrate that cannot be fair to either court's great decision is accorded defer- Clearly, side case. the extremes must ence.”). i.e., who, be evidence, spite those eliminated — automatically vote to convict State, 386, (Tex. 4.Jones v. 982 S.W.2d 394 impose or penalty the death automatically or (courts Crim.App.1998) pol should follow the sentence.”). acquit impose vote to a life icy granting of "the challenges liberal comprises cause. The venire many jurors so State, (Tex. v. Feldman 71 S.W.3d clearly qualified who are that it is unneces ("We Crim.App.2002) give great deference to sary by denying to err for cause the trial court's decision because the trial State, question.”); Threadgill on a close v. present to observe the demeanor of S.W.3d (Tex.Crim.App.2004) 673-74 venireperson and to listen to his tone of (Womack, J., concurring) (noting policy voice. given Particular deference is when the stating set venirepersons out in Jones and potential juror’s vacillating, answers are un death-penalty easily in a replaced case (citation omitted). contradictory.”) clear or therefore, close case should be; Mooney 3. See say 817 S.W.2d "I judge's do not that the trial deci ("Where (Tex.Crim.App.1991) the trial court sion of this wrong. close of fact was prosecution explained their in more to use scarce the law required not be should *13 to depth, she seemed understand these reviewing resources denials of judicial on issues, complicated but remained adamant call” for on “close venire- challenges cause “strongly” that she her feelings felt that capital in It is much easi- cases.5 persons parole affect her answers to yet dire another quicker to voir er point, At that the issues. the trial the retry to entire venireperson than it is her, judge interrupted point- and asked simply because a chal- case capital-murder blank, granted. have been for cause should lenge I am to still saying you can any for cause in Denying challenge a strong have the very feelings about “penny-wise, pound-foolish” is “close case” penalty and still follow the law time-savings. and follow the instructions of the Court Furthermore, Judge with John- agree and follow oath.... And what I granting greatest possi- even the son know, got have will you to do that? to latitude the trial ble discretion and ‘Yes, responded, Ms. I will Murdock do failure for judge, grant challenge the to saying that.” she feel into Did intimidated Randall Phillips cause venireman really that? mean Did she it? Or was she was error for the reasons she cites. just get going along along? to We cannot judge gave the appellant But because trial possibly know from the spoken words strike, or “free” peremptory an extra they appear as on That paper. themselves fully compensated for the error that strike why give great is we such deference to the Mr. judge concerning Phillips.6 made the ruling, judge’s trial ultimate confident that Murdock, apparent for Ms. it is As the trial judge observed the venire- —who initially in her demeanor, was confused under- she person’s listened to her tone of law, standing especially the law voice and hesitancy noted —made the careful concerning parole. After both defense conscientious and decision.7 ordinarily contrary policy there no such need when it But it was that courts is follow.”). deciding qual- comes whether should a citizen is If jury ified service. for State, 5.See, e.g., Nos. Palmer v. PD-1889-05 close, juror away. can be sent 2694226, 1890-05, (Tex. WL at & 2006 *3 And, question, juror Id. when it is a close 20, (not 2006) designated Crim.App. Sept. for only away, protract- should be sent to avoid (Womack, J., dissenting). publication) Judge appellate litigation. ed noted, Womack State, Newbury 6. See v. 135 31 S.W.3d repeat what I said for four members of the (noting (Tex.Crim.App.2004) when "a de- crying in of a court another case venire member, granted per- fendant has been an additional when we no error be- "f[ou]nd emptory challenge, he must that two of show seeing cause we defer the trial court's erroneously challenges were de- for cause hearing jurors' jurors’ demeanors and wrongfully nied in show that he order to voices.” 'deprived' 'the use of at of his least one reviewing for This is venerable rule ”). challenges.’ decisions, peremptory allotted credibility which there is little is, My question alternative a close case. State, (Tex. selecting why permit jurors? 622 cases in 7. See v. S.W.2d close Garza fact, 1980) (trial reh’g) (op. judge had Crim.App. When a faces an issue of it court rely opportunity prospective juror's on limited sources of information. to observe must deciding Only many will have and demeanor so witnesses relevant tone voice meaning convey; precise issue she intended to information about a contested of fact. conflicts, judge denying When evidence hard must did not err choices prospective voir dire person made. The trial cause to whose prejudiced respected. answers indicated that she was whose decision must be But comments, I join majori- With these reviewing A court must look at the en ty opinion. tire record of voir dire to determine if the
evidence is sufficient to support the court’s
J.,
JOHNSON,
dissenting.
ruling on a challenge for cause. Feldman
State,
(Tex.Crim.
71 S.W.3d
Our
ought
concern
not be for those who
App.2002). This Court has said that the
jury,
are not
for the
selected
but for those
reviewing court should
great
afford
defer
See,
who
e.g.,
are.
Jones v.
*14
ence to the trial court’s decision because
(courts
386,
S.W.2d
394
liberally
should
the trial judge
present
to observe the
grant challenges for cause: “The venire
prospective jurors
demeanor of
and to lis
comprises many jurors
so
who
clearly
ten to tones of voice. Id. Particular defer
qualified
unnecessary
that it is
by
to err
ence is due when
prospective juror’s
the
denying
challenge
for cause on a close
unclear,
answers are vacillating,
or contra
question.”);
Illinois,
Morgan
see also
v.
State,
dictory.
260,
Smith v.
297 S.W.3d
719, 736,
2222,
504 U.S.
112 S.Ct.
119
268 (Tex.Crim.App.2009).
(1992) (the
L.Ed.2d 492
risk of impaneling
Yet, deference is not absolute. The
juror
impose
who would
regardless
standard for review is whether the trial
of the facts and circumstances of the of-
court abused its discretion when it over
fense is unacceptable
light
of the ease
ruled a challenge for cause. Id. In making
minimized).
with which the risk can be
decision,
the reviewing court examines
“The Sixth
guarantee
Amendment
to trial
the voir dire of
prospective juror
the
as a
by an impartial jury
right
includes the
whole and decides whether
the record
jurors
have
that can follow the law and
shows that the prospective juror’s convic
words,
consider the evidence. In other
the
tions will
ability
interfere with the
to serve
jury must be able to make an independent
juror
as a
by
and to abide
the oath. Curry
determination based on the
present-
facts
State,
(Tex.Crim.
v.
490,
910 S.W.2d
493
trial,
ed at
any personal
not on
opinions
App.1995) (citing
State,
Johnson v.
773
they may
State,
have.” Raby v.
970
322,
S.W.2d
327-28 (Tex.Crim.App.1989)).
1,
S.W.2d 10 (Tex.Crim.App.1998). In cap-
juror
If a
states that he believes that he
cases,
ital
we must be especially vigilant
set aside
influences and biases he
that strong opinions, for or against
the
may have and the trial court overrules a
death penalty, are
glossed
not
over
cause,
challenge for
its decision will be
agreement with question,
common
in light
reviewed
of all of the answers the
“Can
set
personal
aside
feelings
prospective juror gave. Anderson v.
and follow the instructions
from the
State,
851,
633 S.W.2d
854 (Tex.Crim.App.
judge?”
Morgan,
See
734-39,
who also stated that grant she could consider Jones, App.1999) 389). (quoting 982 S.W.2d at ing probation if defendant guilty was found of selling heroin). pounds four
841
law,
274,
regardless
(Tex.Crim.App.2009).
personal
295
follow
S.W.3d
In
views.
Id.
order
establish that the
juror’s
prospective
is whether the
The test
challenge
propo
for cause is
proper,
substantially im-
prejudice
bias
that the
nent of
must show
carry
her
out
ability
his or
pair
require
understood the
prospective
with
duties
accordance
juror’s
ments of the law and could not overcome
oath.
juror’s
instructions and
court’s
well
to follow
personal prejudice
enough
Witt,
412, 424, 105
v.
Wainwright
469 U.S.
Id. at 747.
v.
e.g.,
the law.
See
Howard
(1985).
This
in favor of the penalty every *16 A. Uh-huh. Again, homicide agreed case. she position.9 that was her agreed She also Q. You would have to hear something anyone that she believed convicted of like or would consider Mr. Gon- capital murder should be sentenced to zales’s failure to testify? death, regardless of the answers to the A. Yes.13 special 114, question On issues.10 what is the best argument for the death penalty, appellant Counsel for asked about the she wrote that a conviction for murder special issues. should result in a death sentence. On Q. one, On addressing issue number 115, question what is the argument best whether Michael Dean Gonzales is a fu- penalty, wrote, she danger, ture prove the State has to “None.” question On what is the best you to beyond a My reasonable doubt. argument sentence, wrote, for a life she question you to is suppose the State “None.” On what is the best present you does evidence to that he ais argument sentence, against a life she future danger, but prove doesn’t it in wrote, “Same as number 114.”11 In re- beyond mind a reasonable doubt. sponse questions to about whether she Okay? could follow the trial court’s instruction not to appellant’s consider failure testify to or A. Uh-huh.
5. XVIII R.R. at 45-46. 10. XVIII R.R. at 6. XVIII R.R. at 52-53. 11. XVIII R.R. at 63-64. 7. XVIII R.R. at 58-59. 12. XVIII R.R. at 65-66.
8. XVIII R.R. at 59-60. 13. XVIII R.R. at 66-67.
9. XVIII R.R. at 60. don’t,” answered, “No, then, but him.” She Q. some evidence They present continued, The beyond “I can’t.”17 discussion proof it falls short of your mind possible state scenar- suggesting with the doubt. reasonable testify, might in which a defendant not ios A. Yes. responding with Murdock and she require to the defense Would rea- suggestions the state’s understood Michael evidence that present some choosing testify. not The sons for state danger is not a future Dean Gonzales saying, “Do ended the discussion could answer this issue no? before answered, ‘Yes, that law?” follow She am saying? what I youDo see ambiguous; Her answer did she do.”18 Yes. Uh-huh. explanation, agree or did she follow just me sure I un- Again, let make would follow that she the instruction. The saying. You are derstand what clarify not her state did answer. prove if the saying that State did a future dan- that Michael Gonzales was exchanges next series of followed evidence, before ger presented but some pattern, with the state explaining the same issue, answer no to this could law, indicating Murdock that she un- present would want defense point saying and that she derstood evidence that he was not you some understand, and the state beginning correct? danger; future agree her to that she could follow getting ques- A. Yes.14 oath.19 did not The state posi- Murdock further on her stated tion differ- was uncertain as to the Murdock be capital, that all homicides should tion possibility probability15 ence between irrelevant, mitigation evidence was possibility appel- that the agreed arguments could think of no that she in 40 might parole lant be released on *17 for life against penalty the death or im- spe- her to the years would affect answers prisonment. cial issues. re-cross-examination, examination, ap- counsel for counsel for the On On redirect if her questions, repeated- again asked Murdock feel- pellant a series of state asked her parole about would affect answers ly asking ings Murdock she understood asked, issues. she said that Again, law. state then take “[I]f that, strongly “I on a on the would: still feel the oath to render true verdict evidence, “I interrupted, that The trial don’t yes.” law do court and it out of put the law is she must despite your feelings parole?”16 about think answered, mind, of put of her it out her posed She “Yes.” The state also the back it is wheth- the defen- I believe law is that testimony a from mind. why will it in answering think of a reason or not she consider dant: “Can er these, not his defense or will she follow the oath she might testify defendant at with the colloquy from fact that he is took.” After trial in the case? Aside remorseful, response questions in from judge, he not some reason and guilty or Murdock that she could necessarily against judge, work said would R.R. at at 69-70. 18. XVIII 84-86. 14.XVIII R.R. R.R. at 73 74. XVIII XVIII R.R. at 86-91. 19> at
16. XVIII R.R. R.R. at 84.
17.XVIII could, appellant Morgan:24 follow her oath.20 Counsel for Court in good she conscience, challenged law, Murdock for cause. The trial uphold yet swear to court noted that “there was some confu- maintaining unaware that her dogmatic be juror,”21 quali- sion but found her penalty liefs about the death pre challenge.22 Appellant fied and denied the vent her from actually doing so. See id. at challenge used a peremptory remove 736 n. 2222 (giving S.Ct. exam jury. from the Murdock ple prospective juror having who denied case, any “prefixed ideas” about the af Everyone Jury question- has biases. firmed that she would follow the law that designed naires are to reveal those biases. her, gave the court but also stated that she opportunity fully Voir dire is an to more could not vote for a penalty). explore may them. biases Some be based would find under Morgan, Murdock misunderstanding on a of the law. Mur- biases, qualified was not to serve dock as a in this displayed some such such as requiring the case and that the trial court testify defendant erred over placing show remorse and ruling the burden on for cause. prove the defendant to that he would not error, point In his third appellant danger be a in the future. These misun- complains of the trial court’s failure to derstandings were addressed her voir grant a challenge for cause dire, and her understanding of the law as Randall On Phillips. questionnaire, to those issues was corrected. Phillips had any indicated belief that biases, however, Other easily are not so all defendants convicted of murder should issues, overcome. On some Murdock’s penalty. receive the death pur- The state opinion change. did not She continued to sued issue. proper punishment state that the Q: But at least as of the time murder ais death sentence. See Morgan, in your questionnaire, turned your opin- (“[T]he 504 U.S. at S.Ct. ion people convicted of murder [prospective juror’s] belief that death life, prison, should do life in depending imposed should be ipso upon convic facto circumstances, on the pen- or the death tion of capital directly offense reflects alty. inability individual’s to follow the A: That would be correct. That is how law.”) dire, At the end of her voir when *18 I today. feel if asked her feelings parole about would affect her special issues, answers to the Q: My reading you on what have they
she still said that writ- would: “I still feel that, ten strongly yes.”23 here is at least at Her clear an the time that out, question you your swer to that filled this response impression belies her to the trial judge that she could get follow her defendants kind of more breaks oath. juror to, Murdock is the sort of they de than are entitled are scribed Supreme United States way you not treated the would rather could, 20. XVIII R.R. at may 93-94. 24. "It good a conscience, uphold yet swear to the law and issues, 21. As to some the record reflects that maintaining dogmatic be unaware that such Murdock was not so much confused as tend- penalty prevent beliefs about the death would ing agree spoke with whomever to her last. doing him or her from so.” Id. at S.Ct. 2222. 22. XVIII R.R. at 97. 23.XVIII R.R. at 93. murder, I capital it comes to A. When were kind of you
them be treated my answer.25 think that I will stick with Is that justice system. charge of feelings about your of interpretation fair explained jury that the prosecutor The that or— give instructed that it needed would be issues special consideration” to the “proper Iwhat general overall I believe A. special that it should not answer and what I meant that —I think say is would achieving a eye with “an towards issues con- someone is was that when by that he Phillips said that punishment.” certain murder, intentional- knowingly, victed of instruction, pros- could follow murder, prob- big that the committing ly continued. ecutor not the is probably have—and this lem I have con- far as the defendant looking for—as Should you are answer at going looking to be you cern that sentence, they sit on I think death eye getting an towards this case with long. far too death row evi- reviewing and not penalty eye rendering towards with an dence was, a defen- your questions Q. One verdict? impartial true and if eleven out guilty found should be dant Right. You said guilty. vote jurors twelve concerned Q. Should the defendant be you also that. But then agree with you something is that that or about with the said, too concerned courts are get are not out to promise us agreed You also criminals. rights of you are out to answer penalty, the death like also feel But with that.... questions properly? these are, at least circumstances guess there Yes, sir, that correct.26 tend to override rights where criminals’ be? justice question to the first Phillips’s response sense of what only appropriate not answer it. The did A. That is correct. (he have a con- yes were should answers question to ask Q. So want fair) (he should I would be or no cern that It page That is on number 109. concerned). Nor, pros- because not be which you to check the statement asks op- encompassed ecutor’s second about the your views best summarizes Phillips’s did incompatible positions, posite, issues, like it looked to me special The question. answer the second response issues initially picked, either of clarify not seek to did prosecutor who deserve some defendants will allow Phillips’s answers. sentence, penalty to avoid the death question- continued his prosecutor checked, I out and crossed that but parole, life with which ing, touching on capital mur- anyone convicted of believe case, dangerousness to this future applies death, sentenced to re- should be der *19 it, and the proving the burden of and special the the answers to gardless of proba- and possibility difference between anyone you agree still issue.... Do questioned Phillips about bility. He then re- capital murder should convicted of mitigation. you think penalty, or do ceive the death says, It the defen- Q. Number 138. that in a are-limit special that the issues history, age, background, criminal you dant’s or what do way proper, factors should be state and other mental think? 26. XXI R.R. at 25. XXI R.R. at 200-01. by juror making
considered a deci- Defense counsel then asked Phil- about lips’s responses questions pris- argu- sion about whether to choose life in ments for and penalty. the death penalty, you put you on or the death and Now, strongly disagree. that opinion Q. [Question] 114 argu- asked best you oppo- can see would be kind of the ment penalty you for the death in- and you site of what the will instruct Court dicated, we prison would lessen over- mitigation question. to do with this So crowding issuing an appropriate your is that —and if that is opin- honest punishment. And then on ion, I argue you won’t with but I need to what argument against best life? you again, eye And said an you you eye ask whether or for an not set that aside, prison and overcrowding. opinion, or is or how you do special feel about issue? your opinion, In should that be kind of a consideration in application of the Well, A. I still change my wouldn’t an- penalty? death ... I don’t mean this to swer but I would still act within the sound crass but people kind of cull out guidelines of the law and the court.27 every once in awhile to keep prison prosecutor responded with the stan- population down? dard rehabilitating questions, received the you I think mostly right. are What responses, passed correct and potential by my I meant answer was if someone juror.28 began Defense counsel question- death, has been sentenced to don’t wait ing with Phillips’s strong support of the years can*y out that sentence. penalty. death I can’t understand that. in your opinion, And pen- Question said, And on you alty is not enough used Texas. Tell anyone
believe capital convicted of mur- you us how feel about that. der should be sentenced to death re- Well, gardless just of the answers to from hearing about cases my opinion where in issues. And I the death sentence believe—is that the one used, should have been some of those you told Mr. just Mau now that may cases be where the defendant stay would still with that answer? insanity claimed or was under the influ- A. Yes.29 ence of drug some kind of weren’t guilty, just found outright guilty This answer directly negates an- crime, they consider the circum- Phillips gave swers prosecutor to the as to stances.30 ability mitigation to consider evidence fairly impartially. ence, 27. XXI R.R. at 209. open possibility they may cause to vote for a life sen- Q. Okay. I think that is consistent with tence if mitigating feel like those cir- your other answers but I want to make sure cumstances are there? disagree understand. You with the idea that A. Yes. [mitigating] these kinds of circumstances XXI R.R. at 210. ought to be considered. But if the court them, instructs to consider will and *20 29. XXI R.R. at 212-13. you fairly will impartially? consider them and A. That’s correct. XXI R.R. at 214. Q. despite your strong feelings And that necessarily shouldn’t make a differ- try would to be as jury I would be—I that concerns things
Q. [0]ne can, with both I but to be honest page much is fair as is, very me concerns me it room, mean, in I you everyone I this people you, three list question still, you put and even now why, really can’t sit here and and least admire one, hour, Hitler, Wayne think that life John half number after this Adolph was, two, I think he apolo- I won’t enough. which would be Gacy, prison number a bunch of just my opinion who killed fellow that. That is gize was the murderer; a mass back on boys, sorry going he was I’m if I am little and fair. I I would still be correct? what I said. but position in this put want to be don’t A. Yes. really my opinion. that is D. Michael three is And number Q.
Gonzales? Well, obviously Q. right. All it is [sic], I I that. appreciate and A. Yes. heartfelt But by your now. am moved disclosure Michael D. Gonzales? Q. This this, jurors all who at the end of A. Yes. have to be able to sit on this case have you is do concern Q. guess my ISo their own con- hands with shake feel, that down having put really you if can’t need to know science. We right you are the questionnaire, fair, you you I think told us and in this case? to serve as person right? you cannot. Is fear is, impartial be a fair and you That you A. That I can’t? specifically listed—and juror, having lawyer? as his my concerns understand impartial can’t be fair and Q. you That A. Yes. in this case. Well, like I would want to be I feel calls into my mind
Q. That answer trying But what I am I would be. to this your ability to listen is, precon- already got I have say evidence, might you hard no matter how how I want the my notion in mind ceived hope you might how try or not be fair. be and it would outcome to worry I to the evidence. could listen would affect fear that that And which is not response, given your ques- answer these way you would before, mean might one of those having tions? impar- not be a fair and A. Yes.31 Tell me how juror in this case. tial continued the discussion. prosecutor that. feel about point, want to belabor I don’t Well, here think- sitting I have been am not want to make sure—I just sir. the answers that and after ing about this answer change your trying get you attorney, I to the other given I have sure I understand. I want to make but put I have never been to be fair. want morning about earlier this We talked want to be like this. don’t position in a is, your opinion what between if I am difference I will be position, but the case to you might want way up, it I came But to sum upon. called to follow and then duties come out prison life in thinking thing into this now Am I correct that the law. I still would although enough, you would not think saying that do here in this over placed want to be fair XXI R.R. at 215-18. *21 your with oath if comply you be able to work prove now. The State must that can, you you think you were—if need to there is a probability that he will be a but, mean, I let us know that I think a find, danger. future you And have to people you lot of feel like that if commit order yes, you to answer have to find murder, capital you probably a deserve that probable he would be a future dan- penalty. the death Some of those peo- ger beyond a you reasonable doubt. If mind, I an ple say, keep open can listen beyond doubt, don’t find a reasonable to all the evidence and answer these you would have to answer no. And if questions and I will answer them the you no, life, did answer then capital life. way regardless that the evidence shows Okay? prosecutor If the presented you I of how want the ease to come out. If some amount of evidence of future dan- you person are the kind of that I thinks ger your but that did not in mind rise to that, I I don’t think can do think I am proof the level of beyond a reasonable going questions to answer these so Okay? doubt. you Could answer this want, way it comes out the I then obvi- special you issue no? Or would answer ously you telling you are us you can’t— yes it you unless and until heard the comply can’t with the evidence. I don’t defense present some evidence that he you want to feel like I am trying to was not a danger? future you shame answering into A. I don’t leaning know. am toward differently because I am not. I am try- no, answering your question that I could ing to you make sure that are telling us not—I am leaning toward —I am not your are feelings strong you so leaning life, capital toward to answer just you do not think comply your question. with the oath that the give would you to render a true verdict based on All right. the law only and the evidence and A. If you if attorney asked me your preconceived notions. present could me with enough, you I’ll comply with the oath and with know, mitigating circumstances to lean court, the law and the laws of this but life; capital toward right, is that what is,
what I am telling you and I think you asking? kind of hit on it just there ago, second Well, no, we are up here on the my would do was called on me —what now, danger future right issue the first case, but, do as a this as one. said, in the go end it didn’t the way Right, I understand. that I wanted it to Igo got have preconceived idea of where I want it to Q. That is they the one that have to go fair, and I don’t think that al- prove beyond doubt, a reasonable though I comply would still with the law there is a probability danger. of future and the oath.32 right? All my question And if you Defense explained counsel the state’s thought present you with special burden on the issue on future dan- evidence, some maybe even significant gerousness Phillips and asked about his evidence, amount of but not feelings special on that issue. mind beyond evidence a reasonable .Well,
Q... doubt, let me ask this. You could answer special is- no, know how the issues sue did not find future have— 32. XXI R.R. at 218-19. *22 strongly case. He dis- every in murder doubt? Or a reasonable beyond
danger person’s background is agrees it though even yes, answer it would should be consid- something doubt beyond a reasonable proof wasn’t thing The worst about it is ered .... and until—would mind unless in that one of the specifically that he noted evi- present have to "come the defense least, that he admired first people three not Mr. Gonzales was dence Hitler, second was John Adolph was Do understand danger? a future Gacy, particu- and third was this Wayne saying there? what I am defendant, Honor. It reveals a lar Your my and I believe I believe do A. He has told this case. prejudgment yes. have to be answer would He prejudged that he has case. us danger? a future That he would be affect feelings ... that his will worries Yes, sir. A. says questions. He the answers presented Mr. Gonzales Q. Unless he preconceived idea of where he has a he was not a some evidence go.... He said he wants the case danger? future prison fair but life in wanted to be correct, Yes, and would that is situation, enough. And ... this it to and that I would listen something dangerous person too to allow a just consider. we jury. mindset on this And so of his make sure I am under- I want to him for cause on the would you. You would standing want— he that he has told us that grounds bring defense to some require impartial juror a fair and cannot be danger he was not a future evidence that case, Your Honor.35 this answer this issue no? in order to that, although prosecutor responded The correct. A. That’s strong feelings his acknowledged Phillips proved had not Q. Even if the State penalty and about about the a reasonable danger beyond you future he case, affirmed that he nevertheless doubt? feelings aside and follow would set his Yes, correct.33 that is The trial over- court’s instructions. counsel challenge, and defense ruled the questions prosecutor continued challenge.36 peremptory exercised Phillips dangerousness, future Defense counsel changed his answer.34 responses his to some Despite changing cause, asserting for Phillips challenged issues, Phil- questioner, on the depending position his that he had changed never lips of how the trial should idea preconceived be a fair acknowledged he cannot he has pre- that he feared that on come out or He has said impartial juror.... affect his answers to the conception would believes a hun- that he questionnaire his away he back from issues. Nor did eye. an He eye in an percent dred was convicted anyone who favors, opinion highest answer strongly should receive the death capital murder He believes penalty. the death give, 735,112 at Morgan, See U.S. penalty. He lenient on criminals. that we are too (“[T]he juror’s] be- [prospective S.Ct. penalty appropriate the death believes XXI R.R. at 229-30. 35. 223-25. 33. XXI R.R. at XXI R.R. at 232. XXI R.R. at 225-26. *23 lief that be imposed ipso death should Jeffery Jay SOLIZ, Appellant, upon capital conviction of a offense
facto directly reflects on that individual’s inabili- law.”). ty to follow the He also affirmed to The STATE of Texas. prosecutor both the and defense counsel No. PD-0117-11. strongly disagreed that he that a defen- background, history, age, dant’s criminal Appeals Court Criminal of Texas. mental state and other factors should be 5,Oct. deciding considered in between life and death. person
A who strongly continues to dis-
agree mitigating factors should be
considered cannot act within guidelines
of the law and the court. Id. at (any juror
S.Ct. to whom mitigating
factors are irrelevant disquali- should be cause).
fied for Phillips juror is the sort of
described Supreme United States Morgan:
Court in he represented, good
conscience, that he uphold could swear to fair,
the law yet and be was unaware that dogmatic beliefs about the death penal-
ty prevent him actually from doing 735,112
so. See id. at S.Ct. I would
find Morgan, under Phillips was not
qualified to serve as a in this case
and that the trial court erred in overruling
the challenge for cause.
Appellant challenged prospective two ju-
rors. Because he received an additional strike,
peremptory he must demonstrate challenged both prospective jurors
should have been struck for cause.
would find that he has done so and is
therefore entitled to a new punishment
hearing. upholds Because this Court
rulings of the trial court as to these two
challenged jurors thereby denies ap-
pellant that hearing, I dissent.