Butler v. State

• Decision Date: 06 May 1992
• Docket Number: No. 1086-90,1086-90
• Parties: David Lee BUTLER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 125

830 S.W.2d 125

David Lee BUTLER, Appellant, v. The STATE of Texas, Appellee.

No. 1086-90.

Court of Criminal Appeals of Texas,

En Banc.

May 6, 1992.

Molly Meredith Lenoir, Gary A. Udashen (on appeal only), Dallas, for appellant.

John Vance, Dist. Atty., and Sharon Batjer, Asst. Dist. Atty., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

A jury convicted appellant, on his not guilty plea, of the offense of aggravated robbery. Punishment was assessed at fifteen years confinement in the Texas Department of Corrections ¹. We granted review to consider whether the court of appeals erred in holding that the trial court did not abuse its discretion in excusing a qualified venireperson over appellant's objection. We will affirm.

As sufficiency of the evidence is not in issue, only a brief recitation of the facts is necessary. In Dallas, on March 13, 1989, a robbery took place at an M.E. Moses store. Having been alerted that suspicious activity was afoot, a number of Dallas Police Officers proceeded to the store and were at the location as a group of suspects exited. After a brief chase, appellant and his cohorts were apprehended; the store manager and one of his employees identified appellant as one of the participants. The manager later testified that appellant had placed a gun to his head and demanded that he open the store's safe and cash register; further testimony indicated that he had tied the manager's hands with an extension cord while an accomplice threatened the employee with a knife. Admitting participation in the crime, appellant nevertheless raised the affirmative defense of duress claiming that his role in the robbery was prompted by a need for money after he received death threats from a Jamaican drug dealer.

On direct appeal, appellant challenged his conviction raising four "grounds of error" [sic], the first of these alleging that the trial court erred in sua sponte excusing a qualified juror over his timely objection. Specifically, he maintains that the court's action was an improper sua sponte challenge for cause of a prospective juror who would otherwise not be challengeable under Article 35.16 of the Texas Code of Criminal Procedure. As such, it is appellant's contention that the trial judge abused his discretion.

During the general voir dire of the array, Venireperson DeCarlucci expressed some apprehension over the possibility of an extended trial ². As suggested by the defense counsel, DeCarlucci waited until the general voir dire had concluded and then asked to speak to the judge concerning her problem. Judge Crosier's questioning elicited the following:

THE COURT: Mrs. Kathleen DeCarlucci. Did you need to see us about something, ma'am?

JUROR NO. 8: Well, only because he suggested I might want to. I just am experiencing some high anxiety about sitting on a jury for three or four days and my potential loss of pay because it's--

THE COURT: You work for Travelhost?

THE WITNESS [sic]: Yes, sir.

THE COURT: What is that now?

JUROR NO. 8: Well, I'm specifically in a magazine operation. We publish a travel magazine.

THE COURT: Your situation is such that they don't honor jury service by paying you while you are here? Are you just on a commission?

JUROR NO. 8: It's counted against my time off. And if I don't have enough days to compensate that, then I don't get paid.

THE COURT: By days, you mean such as in lieu of vacation?

JUROR NO. 8: Yes, sir.

THE COURT: Well, is that going to impair your ability to sit here patiently and listen to this case and be fair and impartial to both sides?

JUROR NO. 8: I am concerned that I would be preoccupied with the fact that I am missing work.

THE COURT: Of course, you understand everybody here had probably rather be somewhere else.

JUROR NO. 8: Oh, I understand that. It's the potential I will lose pay. (Emphasis added).

* * * * * *

The judge then asked both the defense and the State if they desired to individually question her. Both sides declined the invitation and the judge dismissed DeCarlucci, her excusal prompting an objection by the defense. Without directly responding to appellant's objection, the judge instead explained that:

[THE COURT:] on yesterday [sic] while we were here on voir dire and also this morning the Court personally observed this venire person [sic], Kathleen DeCarlucci who was seated as it happens the eighth person here on the first row, and she was unusually and noticeably nervous and edgy about something and I assume from what she said it was about her economic situation in being here and not being covered by her employment in any way for it. And I just think it's fair to both sides not to have a juror that's in such a hurry to get out, they can't pay complete, full attention and concentrate on this case. It's not fair to the State or the defense either one.

* * * * * *

The court moved on to the next juror without explicitly stating the statutory basis for the excusal of DeCarlucci ³.

The Fifth Court of Appeals reviewed the trial proceedings and, in an unpublished opinion, sustained appellant's first point of error. Butler v. State, No. 05-89-00655-CR, slip op. at 3 (Tex.App.--Dallas, delivered June 27, 1990). However, that court subsequently granted the State's Motion for Rehearing and withdrew and vacated its prior opinion and judgment while affirming the trial court's judgment ⁴. Butler v. State, No. 05-89-00655-CR (Tex.App.--Dallas, delivered September 13, 1990) (Opinion on State's Motion for Rehearing).

In its opinion on rehearing, the court of appeals held that the excusal of venireperson DeCarlucci was a proper exercise of the court's discretion pursuant to Article 35.03(1) of the Code of Criminal Procedure ⁵. That court, interpreting past caselaw in concert with relevant portions of the Code ⁶, noted that although "[a] trial court should never sua sponte excuse prospective jurors for cause unless they are absolutely disqualified from serving on a jury", the presiding judge at trial "shall hear and determine excuses offered by prospective jurors for not serving as a juror and, if sufficient, discharge those members of the venire." Id. at 4 (citing to Johnson v. State, 773 S.W.2d 322, 329 (Tex.Crim.App.1989); Harris v. State, 784 S.W.2d 5, 18 (Tex.Crim.App.1989); Nichols v. State, 754 S.W.2d 185, 193 (Tex.Crim.App.1988); TEX.CODE CRIM.PROC.ANN. art. 35.03(1) (Vernon 1981)). The court reasoned that "the trial court excused DeCarlucci pursuant to article 35.03(1)" of the Code and not under Article 35.16, therefore the action taken by the trial court was not an abuse of discretion. Id. at 5-6.

In his petition to this Court, appellant renews his assertion that the trial court has undertaken a sua sponte challenge for cause which, in effect, is tantamount to granting the State an additional peremptory strike. In particular, he claims that the court of appeals erred because the excusal granted in the present cause is similar to those found in Moore v. State, 542 S.W.2d 664 (Tex.Crim.App.1976), cert. denied, 431 U.S. 949, 97 S.Ct. 2666, 53 L.Ed.2d 266 (1977), and Green v. State, 764 S.W.2d 242 (Tex.Crim.App.1989), cases which he claims stand for the proposition that it is improper for the trial court to grant an excusal when the excuse given comes during or after questioning of the venire.

In Green, this Court confronted the propriety of a sua sponte excusal of a prospective venireperson on the ground that she was unable "to distinguish intentional conduct from deliberate conduct" despite the absence of a challenge for cause. 764 S.W.2d at 246. The facts presented in that case invited our review of a court's sua sponte excusal for cause, and not a court's granting of an excuse from jury service. See Id.; See also TEX.CODE CRIM.PROC.ANN. arts. 35.03 and 35.16 (Vernon supp.1990). There, in response to the State's voir dire questioning, Venireperson Ritz stated that she would be unable to assess the death penalty. Id. at 244. The State challenged her for cause, but further questioning by the defense revealed that she would assess the death penalty if the special issues ⁷ were proven. Id. at 244-245. The trial judge delayed his decision on the State's challenge until the State had finished its redirect examination of Ritz and until he had had the opportunity to question her. Id. The judge's questioning showed that Ritz had difficulty distinguishing between the terms deliberate and intentional; however, the judge granted the State's challenge for cause solely on the punishment issues and despite Ritz's rehabilitation on the punishment points. Id. As the State "had never challenged Ritz for cause as to her ability to distinguish intentional conduct from deliberate conduct, the trial court's subsequent excusal of Ritz on [that] ground was unquestionably sua sponte [ ]" and, therefore, improper as an excuse for cause on grounds other than absolute disqualification ⁸. Id. at 246. The present cause neither involves an excusal for cause nor an absolute disqualification and, thus is not of the type addressed by Articles 35.16 and 35.19 of our Code. Green, therefore, is without application to this cause.

This Court, in Moore, acknowledged that a trial judge should not sua sponte excuse a potential juror except on grounds of absolute disqualification. Moore, 542 S.W.2d at 668; See also TEX.CODE CRIM.PROC.ANN. art. 35.19 (Vernon supp. 1990). Once again, however, that case dealt with an excusal based upon Articles 35.16 and 35.19, not Article 35.03. Additionally, that case never reached the grounds raised as that appellant failed to preserve the issue for appeal. Id. As no error was there presented, that holding does not control in the case at issue.

In the past, we have held that Article 35.16 is not a comprehensive list of challenges for cause. See Moore, 542 S.W.2d at 669; Nichols, 754 S.W.2d at 193 (citing Moore...