Ellison v. State, 40072
| Decision Date | 30 October 1968 |
| Docket Number | No. 40072,40072 |
| Citation | 432 S.W.2d 955 |
| Parties | Jesse ELLISON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Charles E. Reagan (Court appointed), Jack Welch, Marlin (Court, appointed on appeal), Sam Houston Clinton, Jr., Austin, for appellant.
Thomas Bartlett, County Atty., Marlin, Stanley Kacir, Dist. Atty., Belton, and Leon B. Douglas, State's Atty., Austin, for the State.
This conviction for robbery with a deadly weapon, with punishment assessed at death, was affirmed by this court in Ellison v. State, Tex.Cr.App., 419 S.W.2d 849, and mandate issued November 17, 1967.
On June 17, 1968, the Supreme Court of the United States, in Ellison v. Texas, 392 U.S. 649, 88 S.Ct. 2290, 20 L.Ed.2d 1350, granted certiorari and ordered that the judgment be vacated and the case remanded for reconsideration in light of Witherspoon v. State of Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (decided June 3, 1968).
Transcript of the voir dire examination of the special venire now before this court fully supports appellant's bill of exception, approved by the trial court, which certifies that all prospective jurors who, upon questioning, stated that they Did not believe in the death penalty Or had conscientious scruples in regard to its infliction were challenged by the state and excused.
Art. 35.16(b), Section 1, of the 1965 Code of Criminal Procedure provides that a challenge for cause may be made by the state for the reason 'that the juror has conscientious scruples in regard to the infliction of the punishment of death for crime, in a capital case, where the State is seeking the death penalty.'
'A challenge for cause is an objection to a particular juror, alleging some fact which renders him incapable or unfit to serve on the jury. * * *' Art. 35.16(a) V.A.C.C.P., 1965.
'Conscientious scruples' in regard to the infliction of death as punishment for crime was a ground for challenge in capital case in this state even before the Original Code of Criminal Procedure (O.C., 575) provided for such a challenge. White v. State, 16 Tex. 206, 207; Burrell v. State, 18 Tex. 713.
In affirming this conviction, the constitutionality of the present statute, as it relates to 'conscientious scruples,' was upheld by this court in light of the fact that the statute has never been construed as rendering a juror incapable or unfit to serve on the jury in a capital case where the state is seeking the death penalty simply because he did not believe in or voiced general objections to the death penalty.
We note, however, that Sec. (b)(3) of Art. 35.16, supra, also provides that a challenge for cause may be made by the state for the reason that the juror 'has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction Or punishment,' and Sec. (c)(2) provides that a challenge for cause may be made by the defense for the reason that the juror 'has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof Or of the punishment therefor.'
The jury which assessed appellant's punishment at death first found him guilty. After the verdict finding him guilty of robbery with a deadly weapon was returned, the matter of punishment was referred to the same jury and, after separate hearing, death was assessed. 1
As we understand the opinion of the Supreme Court in Witherspoon v. Illinois, supra, in its role as arbiter of the punishment to be imposed, appellant's jury 'fell woefully short' of that impartiality to which he was entitled under the Sixth and Fourteenth Amendments but, as to the guilt or innocence issue, bias with respect to a...
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Ex parte Granger
...Articles 1.14(a) and 37.071, V.A.C.C.P., his punishment on remand would have to be decided by a jury as well. E.g., Ellison v. State, 432 S.W.2d 955, at 957 (Tex.Cr.App.1968); Hickman v. State, 548 S.W.2d 736 (Tex.Cr.App.1977). And because prior to the addition of subsection (b) to Article ......
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