Evans v. State
| Decision Date | 10 September 1980 |
| Docket Number | No. 60016,60016 |
| Parties | Michael Wayne EVANS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
This is an appeal from a conviction of capital murder, wherein the jury assessed the death penalty. See V.T.C.A., Penal Code, § 19.03; Article 37.071, V.A.C.C.P.
Appellant advances 38 grounds of error, but in light of Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), we are immediately confronted with appellant's ground of error No. 13 contending certain prospective jurors were improperly excused under V.T.C.A., Penal Code, § 12.31(b). The ground of error is multifarious and not in accordance with Article 40.09, § 9, V.A.C.C.P. Twenty-four prospective jurors are mentioned by juror numbers only. No reference is made to names and no reference is made to any part of this voluminous record where the voir dire examination of these prospective jurors took place. Only a statement is made that a number of jurors were improperly excused under V.T.C.A., Penal Code, § 12.31(b). No argument is advanced in the brief as why this is true under the circumstances surrounding the challenge for cause of each of these prospective jurors. Nothing is presented for review. Article 40.09, § 9, V.A.C.C.P. In light of the extreme penalty assessed, the recent Adams decision, and Article 40.09, § 13, V.A.C.C.P., we shall, however, consider the contention "in the interest of justice." This has necessitated an examination of literally hundreds of pages of the voir dire examination page by page in order to locate the particular voir dire examination to which appellant apparently had reference. Neither this court with its tremendous caseload nor any other appellate court, should be required to do this when the appellant could have provided the ready reference, index, and page numbers in his brief.
An examination of the excusing of the prospective jurors complained of shows one who was challenged for cause by the appellant and his challenge was sustained. Other prospective jurors excused were clearly disqualified under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), independent of V.T.C.A., Penal Code, § 12.31(b), although the court may have used both as the basis for sustaining the challenge for cause by the State. There were other prospective jurors who were excused under V.T.C.A., Penal Code, § 12.31(b), where there was no objection to such action. Still other prospective jurors were excused under said statute where the only objection was "Voir dire objections 1 and 2," which is totally meaningless as far as this record is concerned. We have found no agreement between the parties with approval of the trial court as to such type of objection, no local custom was dictated into the record, and our attention has not been directed to any portion of the record which reflects the nature of the objection.
Nevertheless, V.T.C.A., Penal Code, § 12.31(b), was applied in this case in at least three instances 1 to exclude prospective jurors in contravention of the Sixth and Fourteenth Amendments on a broader basis than that as construed and applied in Witherspoon v. Illinois, supra. This was the basis of the reversal in Adams v. Texas, supra. In Witherspoon the United States Supreme Court said:
In footnote No. 9 of the Witherspoon opinion it was stated in part:
There were a number of other prospective jurors who were improperly excused under said § 12.31(b), but the only objection was "Voir dire objections Nos. 1 and 2," which has no meaning as far as this record is concerned.
V.T.C.A., Penal Code, § 12.31(b), is part of our state death penalty scheme enacted after Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). See now V.T.C.A., Penal Code, § 19.03, and Article 37.071, V.A.C.C.P. It provides:
Adams v. Texas, supra, presented the question whether Texas contravened the Sixth and Fourteenth Amendments as construed and applied in Witherspoon when it excluded members of the venire from jury service because they were unable to take an oath that the (said § 12.31(b)) mandatory penalty of death or imprisonment for life would not "affect (their) deliberations on any issue of fact." The Court reversed the conviction, holding that the exclusions were inconsistent with Witherspoon and set aside the death penalty imposed on Adams. The Court held that Witherspoon and § 12.31(b) may not co-exist as separate and independent bases for excluding prospective jurors so as to permit exclusion under § 12.31(b) on a ground broader than permitted by Witherspoon. The Court noted that although the State could, consistent with Witherspoon, use § 12.31(b) to exclude prospective jurors whose views on capital punishment are such as to make them unable to follow the law or obey their oaths, the use of § 12.31(b) to exclude such prospective jurors on broader ground based on their opinion concerning the death penalty is impermissible.
In Adams the Court observed here the touchstone of the inquiry under § 12.31(b) was not whether the prospective jurors could and would follow their instructions and answer the posited questions in the affirmative if they honestly believed the evidence warranted it beyond a reasonable doubt, but rather whether the fact that the imposition of the death penalty would follow automatically from affirmative answers to the submitted questions would have any effect at all on the jurors' performances of their duties. Such a test could and did, the Court held, exclude jurors whose only fault was to take their responsibilities with special seriousness or to acknowledge honestly they might or might not be affected. It did not appear to the court that these prospective jurors were so irrevocably opposed to capital punishment as to frustrate the State's legitimate efforts to administer its constitutionally valid death penalty scheme. 2
The same fault in Adams infected the voir dire examination of the prospective jurors enumerated in the instant case, as well as others, if the objections, "voir dire examination objections 1 and 2," are valid objections. Even one improper sustaining of a challenge for cause means the death penalty may not be imposed. See Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976). One cannot read the voir dire examination in this case without finding a number of examples where the prospective juror stated he was not opposed to the death penalty in a proper case, that he could determine the issue of guilt on the evidence presented without regard to the mandatory penalty of life imprisonment or death, if based on evidence of guilt beyond a reasonable doubt, that he could affirmatively answer the two or possibly three questions submitted at the penalty stage if the evidence warranted the same beyond a reasonable doubt knowing the death penalty would result and then have the prosecutor relentlessly pursue the interrogation as to whether the prospective juror could state the mandatory penalty of death or life imprisonment would not "affect" his deliberations on the issues of fact submitted. When the prospective juror, usually without prior jury experience and not having heard the evidence in the instant case, could not positively or absolutely state under oath that such penalties would not "affect" them in some way in their deliberations they were excused upon challenge for being unable to take the oath under § 12.31(b). For the errors noted, the judgment must be reversed and remanded.
It has long been held by this court that it may not reduce the punishment assessed by the jury. Ocker v. State, 477 S.W.2d 288, 290 (Tex.Cr.App.1972), and cases cited therein. And it has been held that where a Witherspoon type error has occurred it has been the consistent policy of this court that although the error is to penalty alone, the cause must be reversed for an entirely new trial. Ellison v. State, 432 S.W.2d 955 (Tex.Cr.App.1968); Grider v. State, 468 S.W.2d 393 (Tex.Cr.App.1971); Ocker v. State, supra. This is so, for as explained in Ellison v. State, supra, "... this court is without authority to direct a new trial before a different jury on the issue of punishment only." See also Articles 37.07 and 37.071, V.A.C.C.P.
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