Cuevas v. State, 57116

• Decision Date: 20 December 1978
• Docket Number: No. 57116,57116
• Citation: 575 S.W.2d 543
• Parties: Ignacio CUEVAS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 543

575 S.W.2d 543

Ignacio CUEVAS, Appellant, v. The STATE of Texas, Appellee.

No. 57116.

Court of Criminal Appeals of Texas, En Banc.

Dec. 20, 1978.

Rehearing Denied Jan. 24, 1979.

Will Gray, Houston, court appointed, for appellant.

Jerry A. Sandel, Dist. Atty., Huntsville, for the State.

Before the Court en banc.

OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for the offense of capital murder. V.T.C.A., Penal Code, Sec. 19.03(a)(4). Punishment was assessed at death pursuant to Art. 37.071, V.A.C.C.P. Venue was changed from Walker County to Harris County.

On July 24, 1974, three inmates of the Texas Department of Corrections, Fred Carrasco, Rudolpho Dominguez, and the appellant, seized the top floor of the educational building inside the Walls Unit at Huntsville. They held a number of people as hostages while Carrasco negotiated with TDC officials. After long negotiations the inmates attempted their escape on August 3, with the hostages and a movable shield constructed from law books, chalkboards and tape. When law enforcement officers sought to prevent the escape, gunfire erupted. In the end, Carrasco, Dominguez and two of the hostages had been killed. The appellant was charged with the murder of one of the hostages.

In his sixth ground of error appellant contends that the trial court erred in overruling his challenge for cause to venireman James Whorton. Appellant argues that Whorton clearly reveals during voir dire that he would vote to impose the death penalty in all cases where the accused was found guilty of capital murder, unless the accused proved he was insane at the time of the offense.

The record reflects that the appellant was forced to use his last peremptory challenge on venireman Whorton. Appellant then filed a written motion requesting an additional peremptory challenge, which motion was denied. Venireman John Thomas, the eventual foreman, was the last juror seated. At the time Thomas was selected, appellant notified the court that had he been granted an additional peremptory challenge he would have struck Thomas as being an unacceptable juror. These facts place appellant squarely within the rule laid down by this Court in Wolfe v. State, 147 Tex.Cr.R. 62, 74, 178 S.W.2d 274, 281:

". . . in the trial of a criminal case where an accused has been wrongfully deprived of a peremptory challenge by being forced to use such upon a juror who was shown to be subject to a challenge for cause, and such accused has exhausted his peremptory challenges, and a further juror be presented whom he states to be objectionable to him, then it will not be necessary for accused to show in what manner such further juror was objectionable to him, nor to show that such juror was an unfair or partial juror. In further words, we think the accused should only be required to exercise a peremptory challenge on the objectionable juror and not a challenge for cause, nor show grounds for a challenge for cause, nor to show why such juror was objectionable to him."

Thus, if appellant can show that the challenge for cause to venireman Whorton should have been sustained and that the overruling of such challenge deprived him of a peremptory challenge he would have used to strike venireman Thomas, this case must be reversed. Salazar v. State, 149 Tex.Cr.App. 260, 193 S.W.2d 211; Bayless v. State, 166 Tex.Cr.R. 479, 316 S.W.2d 743; Sifford v. State, Tex.Cr.App., 505 S.W.2d 866.

Appellant is relying primarily upon Art. 35.16(c)(2), V.A.C.C.P. ¹ He primarily contends that both parties, the appellant and the State, have a right to have jurors who believe in the full range of punishment. Woodkins v. State, Tex.Cr.App., 542 S.W.2d 855. Appellant argues that Whorton's inability to impose life imprisonment, unless it was shown appellant was insane, demonstrated that Whorton could not consider the full range of punishment.

The relevant portion of venireman Whorton's testimony is as follows:

"Q (BY MR. GRAY): Well, in every case where you sit as a juror, let's say that you found the defendant guilty of the offense of capital murder, you found that he had intentionally and deliberately killed another person, do you feel that every person that you found guilty of that offense

A If he's not insane, yes, sir.

Q Unless he proved that he was insane, you would assess the death penalty?

A Yes, sir.

Q And you would not even consider life imprisonment then, under those circumstances, after you had found him guilty of the offense of capital murder?

A I don't think so.

Q And you have answered yes to each of the punishment questions, then if you had found him guilty beyond a reasonable doubt of the intentional killing of another person, capital murder.

A Yes, sir, I believe I would.

Q And under no circumstances, then, would you answer no to the question?

A I wouldn't say under no circumstances, I can't think of none off hand.

Q You can't visualize anything that would permit you to answer no to those questions unless the defendant was insane?

A I can't think of anything, no.

Q Let me make sure that I understand you, Mr. Whorton, and you are the only one that can tell us this. Mr. Sandel can't answer this for you or the Judge or anybody else. You feel that in every case where you find a defendant guilty of the offense of capital murder, the proper punishment is death in the electric chair unless he's insane?

A I would say yes.

Q And let's take a hypothetical case, now, where you found a defendant guilty of the offense of capital murder. Let's say that both sides put on evidence at the punishment hearing and there's no evidence that would indicate to you that the defendant is insane, then your answer to the two punishment questions, I take it, would be yes?

A The evidence showed he's guilty and not insane, is that what you are saying?

Q Yes, sir.

A I would say yes.

Q And you can't visualize any mitigating circumstances other than insanity?

A None comes to mind, no, sir.

Q (BY THE COURT): Mr. Whorton, what is it you'd require the defendant to prove? His insanity? Is that what you said?

A If he was found guilty of a capital crime, And other than insanity, I can't think of anything that would.

Q In that case, you wouldn't be requiring the defendant to do anything, so your answers to the two lawyers involved here are opposed. Have we thoroughly confused you?

A Well, you have, Other than the fact if the evidence presented by the State were to prove this man incompetent or whatever, then I wouldn't recommend it." (Emphasis added.)

At the end of the examination the trial court sought to rehabilitate the prospective juror. At that time Whorton did state that he could base his answers on the evidence. The statements were inapposite, however, to his previous statements which showed an unwillingness to consider life imprisonment unless the defense of insanity was proven.

The same issue presented by appellant was raised in the recent case of Smith v. State, 573 S.W.2d 763 (No. 56,072, delivered December 7, 1977). In that case, we held:

"The overall picture presented by the voir dire examination of Payne is one of a person holding strong convictions that death is the only punishment he could consider for a person guilty of capital murder, and that life imprisonment is not adequate punishment and would not be considered.

It is too mechanistic to reason that Payne was a qualified juror because he was willing to require of the State to prove beyond a reasonable doubt the special issues submitted at the punishment stage. The law requires this and in addition requires that each juror consider the full range of punishment applicable to the offense in question."

Similarly, in the instant case, Whorton indicated that life imprisonment would not be a viable punishment alternative In the absence of evidence showing insanity. The statement by Whorton that he would base his answers to the punishment questions on the evidence does not indicate that he could consider the full range of punishment. It is conceivable that Whorton could base his answers on the evidence and yet, he could not consider the minimum punishment of life imprisonment unless that evidence proved appellant insane. Such responses clearly demonstrate Whorton's inability to consider the full range of punishment. We hold that appellant's challenge for cause was improperly overruled. Smith v. State, supra; Wolfe v. State, supra.

In light of our disposition of appellant's sixth ground of error, we need not address the balance of appellant's contentions.

For the reasons stated, the judgment is reversed and the cause remanded.

VOLLERS, Judge, dissenting.

The majority reverses this cause because it finds that the trial court erred in overruling appellant's challenge for cause to venireman James Whorton. It is the majority's conclusion...