*1 Tex.R.Civ.P., to Rule Pursuant being appeals of the court of civil
decision cases, cited
in conflict with the above and, granted
application for writ error hearing argument, we reverse oral judgment appeals court civil court. the cause to trial
and remand HOVILA, Appellant,
William David Texas, Appellee.
The STATE 49396.
No. Criminal of Texas.
April Rehearing
On Denial of Feb. Wilson, Dallas, G. Timothy
Howard Ann Sloan, Odessa, appellant. Wade,
Henry Atty., Dist. and W. T. Westmoreland, Jr., Whaley, Robert E. Ste- Ovard, Tokoly ven and John Asst. Dist. Attys., Dallas, Vollers, Jim Atty., D. State’s McAngus, and David S. Asst. Atty., State’s Austin, State.
294 regardless facts, or consider its
OPINION
imposition in the case irrespective of the
MORRISON, Judge.
evidence, etc.,
not
does
with With-
square
murder;
punishment,
The offense
the
erspoon or the
prac-
traditional Texas
1257,
Article
Vernon’s
and
Ann.P.C.1
tice.”
Ann.C.C.P.2,
Article
death.
Vernon’s
Martin,
parte
Tex.Cr.App.,
See also Ex
are
with appellant’s
We
met at the outset
280;
State,
479 S.W.2d
Ocker v.
Tex.Cr.
contention
trial court failed
that “the
State,
App., 477
288. Cf. Tezeno
S.W.2d
v.
properly apply the standards of Wither Tex.Cr.App.,
belief ing ascertaining At the outset of the voir further and case at bar. in- spective automatically jury panel, vote dire of each the trial court case, general against principles them on the structed 1973, 1125, 1973, 1122, Leg. amended, p. 2. ch. Leg., p. Added Acts 63rd 63rd 1.As Acts 426, 3, 1, 14, 426, 1, 14, 1, eff. 1973. Art. Sec. June eff. June 1973. ch. Article Sec. superseded 19.- Section 1257(d), part: 3. Article states Code, 1973, V.A.P.C. Penal 03 of the new Texas Acts Leg., January ch. eff. person 63rd qualified to . No Penal is sub- 19.03 of the new Code Section serve as a unless he states under oath stantially Article 1257 of the old mandatory penalty similar to or im- of death alleged prisonment the date of The indictment code. for life will not affect his delib- the offense as June issue of fact.” erations Right. as the new death criminal law well jury’s role in ad- penalty statute and MR. Attorney]: SIMMONS [Defense it. He then asked those who ministering questions. have no felt you. THE Thank You present forward their reason to come be excused.” *3 Among those who res- excuses. 4. Juanita Miller: ability impose ervations as their “Q your What name? were: A Juanita Miller. W. 1. Mrs. T. Smith: MR. WHALEY: 6.No. “Q May your I have name? Yes, THE COURT: ma’am?
A T.Mrs. W. Smith. A I’m my afraid conscience wouldn’t prosecutor]: MR. WHALEY No. [The give let me the death sentence. 2, Judge. Q You questions couldn’t answer the Q right. All concerning yourself about the A I can’t —I believe in the death don’t penalty? disqualified. I like I penalty. feel I’m No, A I couldn’t. don’t think I could sit on it. may THE COURT: You be excused.” Any questions, gentle- THE COURT: Wells, 5. L. D. Mrs. N. Jr.: men? name, “Q please? Your No, MR. WHALEY: sir. A Mrs. Wells. MR. Attorney]: WILSON No. [Defense MR. WHALEY: No. Judge. THE You COURT: excused.” right, THE All COURT: Mrs. Wells.
2. J. R. Chatham: I unalterably A am opposed to the “Q your name? What penalty. A Chatham. With a clear conscience Q To such an extent— I not could make a decision of that it, A I say really hate to is true. magnitude. Q say you Don’t hate to it. Thank MR. No. WHALEY: your courtesy coming up. Chatham, you may THE COURT: Mr. any objection If there is please to this be excused.” let me know. Dorothy Guttridge: (Whereupon, Prospective Juror No. your you “THE COURT: Will state Panel, Wells, Jr., Second Mrs. L. N. D. name, please? excused.)” Dorothy Guttridge. J. cursory examination of these 29, Your MR. TOKOLY: Honor. members of the venire was insufficient right. THE COURT: All meet promulgated by the test the United Supreme States Witherspoon, DOROTHY J. I Court in MRS. GUTTRIDGE: Grider; just applied by live my- don’t feel like I can this and this knowing self have ad- conviction can therefore stand. judged somebody. death on Accordingly, judgment is reversed you THE And couldn’t an- and the cause remanded. concerning
swer
the issues without
yourself
your
ROBERTS, J.,
about the effect of
an-
concurs
results for
telling
are
you
swers? Is that what
the reasons
stated
his dissent in Jurek v.
(1975).
ODOM, Judge (dissenting).
“the fact remains that
the jury will know
their answers will determine whether
majority have ordered this needless
the defendant
is to be punished by death or
inadequate reasoning. They
reversal on
imprisonment.
life
To say that
misinterpreted
Y.A.C.
jury’s answers would not be
affected
C.P.,
incorrectly
and have
determined the
their attitude
toward the death
Witherspoon v.
applicability of
disregard
would be to
the obvi-
1770,
upon presumption MOTION FOR STATE’S REHEARING reversal majority’s I dissent to the also ONION, Presiding Judge (concurring). reasoning fol- this conviction because major- While I concur in the action conflict with opinion in their is in lowed ity in overruling the State’s motion for disposition in their of Jurek v. that followed rehearing opinion, written (1975). In Jurek the 522 934 S.W.2d clarify concluded that in order to some con- 37.071, supra, Article majority found that among the fusion which exists bench and “the standard- a limitation on provides for pro- bar as to when a sentence should be penalty,” by less appellant’s nounced in a death case “channeling] jury’s consideration ground original first of error on submission “directing] guid[ing] and punishment,” should be discussed. controls, These said their deliberations.” ground In his first of error majority, appellant saved this statute from the appeal contends the should be Georgia in Furman v. abated be- faults condemned Texas, the trial court improperly pronounced 92 Branch v. Now, prior say majority, sentence to the decision of this court 42.04, in violation of Article study Vernon’s Ann. 37.071, of Article supra, reveals C.C.P., provides which in part: drafting of such statute started with out-of-state statutes where the words appeal
“When an is taken from a death “sentencing” “sentence” or were not used in penalty, sentence pro- shall not be the same sense nounced, as formal sentence defined suspended but shall be until the 42.02, supra, Article but were used decision of the Court of Criminal equivalent punishment. has been received. . .” 42.02, Ann.C.C.P., pro- Article Vernon’s I therefore would hold that provisions vides: 37.071, of Article supra, referring to “sen- “A ‘sentence’ is the order of the death,” etc., court tence to refers to the assess- felony in a or misdemeanor case made in ment of punishment and not to a formal presence defendant, except sentence, provisions and the of Article 42.- misdemeanor cases where the maximum supra, still control. The judge trial possible punishment fine only, and apparently misled wording awkward record, entered of pronouncing judg- 37.071, Article supra, but it is observed ment, ordering same be carried that no execution date was set as normally into prescribed execution the manner required sentences, in death apparently be- by law.” cause the court realized that it could not be carried out within the necessary time limits Ann.C.C.P., Vernon’s *5 while the case appeal, was on and that vides that when a sentence of death is another sentence setting the execution date pronounced the sentence shall be executed would be required. “at time before the hour of sunrise on day set for the execution not less than There is no reason to abate the appeal sentence, thirty days day from the of as the pronounced because the court sentence. It may adjudge court . . . .” regarded will be as surplusage. Appellant’s 43.15, Ann.C.C.P., Article Vernon’s de- contention is without merit.
scribes the duties of the clerk of the trial issuing
court in a warrant for the execution DOUGLAS, Judge (dissenting). of the sentence of death within ten of days sentence, recite, such which shall among The majority has overruled the State’s things, other “the time fixed for his execu- motion for rehearing without opin- written tion,” by set the trial court. ion. In view of the time limits set forth in consideration, After further appears it statutes, these latter it is understandable that reversible error was not committed why delayed sentence is in death cases until during the examination of prospective receipt of the mandate of the Court of jurors. appears It Witherspoon v. Illi- Appeals required by Criminal as Article 42.- nois, 391 U.S. 04, supra. compare See and time limits for complied with. preparation record, of an appellate Article 40.09, my opinion jurors can qualify Vernon’s Ann.C.C.P. under Witherspoon, supra, and can take the oath 37.071(e) Article provides jury that if the 1257(d), V.A.P.C., now Sec- an finding returns affirmative on each issue 19.03, tion (1974), V.T.C.A. Penal Code submitted under the statute “the court shall ” provides, which part: sentence the defendant to death. . . . (f), provides person qualified Section which “No is to serve as a “judgment juror of conviction and sentence unless he states under oath that the subject of death shall be to automatic re- mandatory penalty of imprison- death or view Court of Criminal ment for life will not affect his delibera-
tions on. issue of fact.” trial, at a special penalty that one take such an cised convened appears It regardless per- of his guilt oath and abide after a verdict of has been returned. opinion regarding States, a life death sen- imposed upon sonal is a In other juror whose determination of tence. degree unless conviction first murder affected, would be either issue fact jury mercy im- recommends or life direction, by mandatory punishment a prisonment, although in these States fair and impartial life or death cannot a degree is allowed find a to lesser juror.1 (or manslaughter, murder if under find degrees state law there are no mur- into about the going
Without detail der), permit, if the evidence selection, discharged were not regard charge. to the In some formal condemned in States, mandatory objections general voiced types for certain of crimes. oth- In still conscientious ers, it has been in whole abolished either scruples its infliction. against part. special or in And a few States have agreed prospective each Both sides precisely rules which do not fit into the to be found the court categories. . above inability pre- to take the because of the under Article V.A.C. “. . scribed oath The conscience of the com- C.P., disqualified. in fact and in law subject variables, munity many one which is the attitude toward the death This is a case where there is conten- If particular sentence. community challenges tion that for cause were exer- overwhelmingly opposed capital merely because the cised the State punishment, it not be able to exer- scruples had spective jurors cise a impose impose discretion to or not be assessed. against representing sentence. A original opinion holds appears It the conscience of that community would only way could be chal- *6 things depending do one of several on the by lenged by the would be for cause State type governing of state law it: it would automatically that he would establishing by recommending penalty avoid death imposition of the against death vote finding or it mercy by would avoid it application This of cause. penalty guilt of a lesser offense.” S.Ct. [88 Witherspoon is incorrect. 1780, emphasis added] all, apparent that the First of it is United Therefore, speculation it is not mere that Court, the time it decid- Supreme at States the proposition was before the Court and was aware of the fact Witherspoon, ed well by jury could recognized the Court a impose a mandato- that some state statutes punish- of the of avoid determination issue types death for certain of crimes ry answers, ment, knowing by the result of its a jury could avoid such that a finding guilty lesser defendant of a guilty of a lesser by finding the defendant strongly empha- This is more offense. even is assumption certainly offense. This what of the by opinion sized was said concurring opinion of strengthened by by Mr. when he Court Justice Stewart he Douglas wherein said: Mr. Justice pointed out that presented in different “The problem issue us is a one. before narrow types of state postures under several “[t]he right prose- States, including It does not involve the of the Many laws. those grant challenge discretion as to cution specifically some, jurors spective is exer- who state that their reser- this discretion penalty; finding fact ex- of with their function be The of Criminal Oklaho- Court jury. scruples whose cluded from the Cr., Justus v. Okl. that veniremen ma held against capital punishment P.2d would interfere 18 Cr.L. 2042. Therefore, main capital punishment would thrust of the vations about decision impartial Witherspoon, an as followed making them from in Boulden v. prevent Holman, preventing at guilt.” was aimed the chal- decision as to defendant’s [88 lenge juror merely of a for cause because he 1772, emphasis added] opposed the death penalty where the forcefully proposition This even more jury was to exercise in assessing discretion out in by pointed illustrated what the Court punishment, the Witherspoon decision majority where it opinion 21 to the footnote perfectly made it clear that did apply not said wherein, to a though situation even the jury however, nothing repeat, “We we was the punishment, they aware of would upon power of a say today bears by finding exercise their discretion the de- a sentenced to execute defendant State fendant of some guilty other offense. Even only from which the death though Witherspoon speaks of bias in the veniremen who were in fact excluded guilt, of they determination are referring unmistakably cause were those who made no more to a determination of fact issue (1) they automatically clear than the instant case. against capital vote of statutory Under our scheme as punishment regard evi- V.A.P.C., in Article 1257(d), present and the developed at dence that 37.071, V.A.C.C.P., does not them, (2) trial of the case before assess the penalty. The jury is their toward the attitude charged with the of determination issues of making prevent them from an im- fact charge under the court’s reason partial decision as to the defendant’s statutory they scheme must be able guilt.” [emphasis added] to state oath that will they not let punishment consideration of holding Witherspoon affect primary their determination issue fact. qualification aimed at for discre- If cannot state unbiased tionary punishment, as op- determination on the determination of of fact finding issues posed to fact. possible punishment, reason of then they pointed out that do qualify jurors. appear It would opposes penal- man who “[a] this is no from any different other basis for it, ty, no less than one who favors can disqualification when a admits that he discretionary make the judgment entrust- impartial cannot be fair for both sides. ed to him the obey State and can thus *7 It should the be remembered that statute is juror.” the oath he takes as a [88 merely aimed at conferring challenge a 1775, emphasis added] for cause the upon upon State but also strengthened This is interpretation challenge conferring upon a for cause the Holman, what the said in v. Boulden juror accused if the is biased in favor of the 433, to such an extent it pointed where the Court out: impartiality would affect his upon issue “. . that a entirely possible guilt. Although thought by . it is some against’ remote, has ‘a person opinion might who fixed this be possibility capital pun- not ‘believe in’ certainly recognized by who does was Mr. Justice perfectly Witherspoon, supra. ishment nevertheless Black in his dissent in existing to juror pointed able as a abide law— In that was dissent it out those conscientiously to follow the instructions to majority unwilling cast fairly judge petitioner’s of a trial to consider doubt on He conviction. went in a on imposition point death sentence to out State should be particular challenge juror case.” S.Ct. 1141 and allowed to a who [89 emphasis against inflicting pen- biased the death added] (a) penal- to inform the veniremen that the was entitled to a just the defendant alty ty prospective mandatory upon where the of life or death is challenge for cause con- charged (b) the offense pen- of the death viction of to ask juror was biased in favor mandatory penalties who adheres lit- whether such af- alty; example, for an one issue eye admonition of “an fect his deliberations of fact. erally to the biblical- assigned by The Appellant reason was that eye.” for an questions questions such are the only neces- opinion in its reading Witherspoon sary qualify juror for such service. majority opinion impact, overall challenges at for cause where the aimed hearing prior “A was held on the motion discretion in assessment of jury exercised jury, to the voir dire of the at which the a chal- specifically excluded penalty and following colloquy occurred: “ juror lenge excluding for cause who ad- (Prosecutor): object ‘MR. TOKOLY We way one or the other which mitted his bias Motion, part to the first Your making impar- him from an prevent would Honor, grounds on the that I think the an issue of fact. Al- tial decision as to Witherspoon case entitled us to ask a draw, it though appears this is a fine line to prospective juror whether not that Supreme Court was the United States juror has any scruples line and it in Wither- aware of the drew go against that would application to the instant case spoon. penalty. Witherspoon in the entire of what was said that, though, “‘THE I think to the conclusion that under opinion leads juror under this —that a who is unalter- statutory juror scheme a who cannot our (sic) ably opposed to sentence he will be unbiased on state under oath that pun- would inflict death as a means of disqualified, of fact will be the issue ishment, if said that they would disqualification prohibited by is not such just absolutely under no circumstances application Witherspoon proper juror want to sit as a in a juror supra, merely because the case where the death could be might realize the effect of his answers assessed, I think that questions. the factual Witherspoon under the motion for rehear- partA State’s case. Westmoreland, Jr., ing, prepared by W. T. “ Certainly. ‘MR. TOKOLY: of Dallas Attorney District Coun- Assistant “ case ‘THE COURT: opinion of this ty, adopted as a you got go said on more than procedure used and for its reason- show the just scruples, you go have to further. ing. It is as follows: just talking I’m about if said atmosphere “It has been said death, depending your it’s life or re- must be considered in proceeding answer to the issues. solving Witherspoon question. (Defense Counsel): “‘MR. WILSON: entitled, ‘De- filed a motion “Appellant was— *8 in Limine’. In Third Motion fendant’s “ ‘THE COURT: And do not consider the requested 1 thereof he the Court paragraph now, answers inquire your results and when prosecutors the not to to instruct said, “Well, just they wouldn’t have juror’s personal feel- any prospective into death, anything just to do with I am ings scruples regarding the death or sitting unalterably opposed to in a case is not allowed Art. because such you go- where I’m blindfolded and are requested 2 he that the paragraph P.C. switches, bring ing pull to the at- to one of these one is forbidden to prosecutor be death”, prospective juror that the life and one is I believe that tention juror imposed except: disqualified. should be may of death be in this case was procedure “The followed with agree I would “‘MR. WILSON: section of the think he could each new that, I don’t as follows. When because facts, put courtroom, the death sen- to the the panel was called consider the judg- make a his mind and the law of the case to explained tence out of questions, answering if these them, qualify ment in fact that to for including the (underscoring supplied) can. juror he must take the prospective the service “ jur- any prospective invited He then oath. we are in I think ‘MR. TOKOLY: disqualified for might he be thought or who position Your Honor. The agreement, bench, the out of approach to that, any reason first take is the that State jurors of the others. Some hearing the whether or all, as to question reasons, the scru- excused for other conscientious were they were first voir dired pertinent here imposition the of the death ones ples against on regard position to their disqualification is not a the Court penalty, per- each side was ques- oath. Then required It is relevant the question. juror. sides parties prospective the on both the question that aids mitted to tion feelings, determining juror’s and sometimes did in did Sometimes question the ruled that the and I think not. When the Court feelings or not their be whether side was accorded qualified, then each was not their deliberations. would affect the invitation object. Although right the “ as to object repeated was not question question ‘THE I think nonetheless understood every juror, it was pertinent.’ by all. parties the of the position “This is what the voir dire the context in which and
was “This, then, of the ‘atmosphere’ was the Counsel and the Court was conducted. here a ease wherein proceeding. We have under the consensus that operating prospec- initially wanted the defendant scruples were relevant questions regarding only as to their abili- jurors questioned tive challenges; other- peremptory an aid to oath, where he prescribed ty to take wise, such was whether question examine the opportunity given affect his deliberation scruples would subject, very on that veniremen himself say, fact. That is to mere any question of to ob- given opportunity where he scruples against disqualification ject to a determination chal- peremptory the exercise of a lead to so, each side had not do and where but did State, absolute lenge on the of the after the challenges left peremptory inability in a matter which the to vote had been selected. in felt would result “Furthermore, clearly implicit challenge penalty might lead to record, counsel position based on inability to take the selection throughout both sides mandatory penalty of death oath agreed each is the fact that process, life would not affect his deliberations the Court to jurors found prospective him simply disqualified fact any issue of to take inability disqualified because of by either challenge from service and law were in fact prescribed oath im- side, he would not be fair and sitting in from prohibited Legisla- matter of law. The as a partial, C.C.P., Query: Is Art. this case. authority prescribe qualifi- has ture upon spe- summoned that ‘One 2133, providing (e. general g. Art. cations of parties by consent of cial venire (e. g. cases Art. R.C.S.) particular at by the court attendance excused from the circum- 2134, R.C.S.) prescribe and to not for impaneled’ he is any time before citizens qualified which otherwise stances *9 course, this was not a (Art. application here? Of from service excused can be venire, capital it was a case and special R.C.S.). logic there is no reason in law or why the principle
same should not apply.” reasons,
For the above grant motion for rehearing
State’s and would af- judgment,
firm the because the contention comply selection-does not
Witherspoon and the other contentions do
not reflect reversible error. DAY, Appellant,
William Texas, Appellee.
The STATE of
No. 49859.
Court of Criminal Appeals of Texas.
July Rehearing
On Feb.