Ex parte Bryan, 41618

• Decision Date: 30 October 1968
• Docket Number: No. 41618,41618
• Citation: 434 S.W.2d 123
• Parties: Ex parte William Clark BRYAN, Jr.
• Court: Texas Court of Criminal Appeals

Page 123

434 S.W.2d 123

Ex parte William Clark BRYAN, Jr.

No. 41618.

Court of Criminal Appeals of Texas.

Oct. 30, 1968.

Will Gray, Houston, for petitioner.

R. A. Bassett, Dist. Atty., Richmond, W. Jack Sayler, Asst. Dist. Atty., Bay City, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

This is a habeas corpus proceeding brought under the provisions of Article 11.07, Vernon's Ann.C.C.P., as amended (Acts 1967, 60th Leg., Ch. 659, p. 1734, eff. Aug. 28, 1967). The petitioner seeks to set aside as void his 1965 conviction for murder where the penalty imposed was death. Such conviction was affirmed by this Court in 406 S.W.2d 210.

On July 11, 1968, a habeas corpus petition was presented to the convicting court pursuant to the provisions of Article 11.07 supra, and in compliance with the Order of the United States District Court, Southern District of Texas, Houston Division, remanding applicant's Federal Petition for Habeas Corpus to the state trial court for determination of the issue of petitioner's mental competency to stand trial in 1965 in light of the decisions of this Court in Townsend v. State, 427 S.W.2d 55, and Morales v. State, 427 S.W.2d 51.

The convicting court refused to entertain the habeas corpus petition and denied the same without a hearing.

On July 12, 1968, the petitioner presented another habeas corpus petition to the convicting court contending, among other things, that the jury which imposed the death penalty upon him was selected in violation of the doctrine of Witherspoon v. State of Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, which decision of the United States Supreme Court is to be applied retroactively. See footnote 22 thereof. See also Pittman v. State, Tex.Cr.App., 434 S.W.2d 352. At the hearing granted upon such petition the only evidence presented was an agreed stipulation, both the State and the petitioner specifically declining the court's offer to hear any further evidence that either wished to present. Said written stipulation reflects that the voir dire examination of the prospective jurors was not recorded by the court reporter as no request was made for the same; that during petitioner's trial 44 of the 117 prospective jurors examined were challenged for cause by the State after such prospective jurors expressed conscientious or religious scruples against capital punishment, or expressed the opinion they were opposed to the death penalty in principle; that such prospective jurors were excused by the court upon challenge for cause by the State 'solely because they expressed either general objections to the death penalty, or conscientious or religious scruples against its infliction'; that none of the challenged jurors was questioned further to determine whether or not they could, in a proper case, set aside their scruples and assess the death penalty if such penalty were justified by the facts, nor whether their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt.

The judge of the convicting court, who also was the trial judge at petitioner's trial, entered findings of fact in accordance with the stipulation, but concluded that the jury was selected in compliance with Articles 35.15, 35.16, and 35.17, V.A.C.C.P. These articles did not become effective until January 1, 1966, which was after the date of petitioner's trial. Obviously, the judge meant to refer to the statutory provisions for selecting jurors in capital cases under the former Code. The record of such habeas corpus proceedings was transmitted to this Court. See Ex parte Young, Tex.Cr.App., 418 S.W.2d 824.

The petitioner has now filed a new habeas corpus petition in this Court seeking to invoke our original jurisdiction under the procedure authorized in Ex parte Young, supra, raising both the mental competency and jury selection issues. Such new petition was utilized to invoke our original jurisdiction as to the mental competency question since the convicting court denied the petition presented to it on July 11 without a hearing, Ex parte Young at p. 830, but was unnecessary as to the jury selection question where the petitioner was accorded a hearing. Nevertheless, these matters have been consolidated, docketed, and submitted and will be considered together.

In Witherspoon v. State of Illinois, supra, the Supreme Court held that due process voided a death sentence imposed by a jury from which were excluded all persons expressing general objections to or conscientious or religious scruples against capital punishment.

The holding is clarified to some extent by Mr. Justice Stewart, who delivered the majority opinion, when he wrote:

'The issue before us is a narrow one. It does not involve the right of the prosecution to challenge for cause those prospective jurors who state that their reservations about capital punishment would prevent them from making an impartial decision as to the defendant's guilt. Nor does it involve the State's assertion of a right to exclude from the jury in a capital case those who say that they could never vote to impose the death penalty or that they would refuse even to consider its imposition in the case before them.' See also footnote 21 of said majority opinion.

Further, in footnote 9 of the Witherspoon opinion the Court said in part:

'* * * it cannot be assumed that a juror who describes himself as having 'conscientious or religious scruples' against the infliction of the death penalty or against its infliction 'in a proper case' (see People v. Bandhauer, 66 Cal.2d 524, 531, 58 Cal.Rptr. 332, 337, 426 P.2d 900, 905) thereby affirms that he could never vote in favor of it or that he would not consider doing so in the case before him. See also the Voir dire in Rhea v. State, 63 Neb. 461, 466--468, 88 N.W. 789, 790. Cf. State v. Williams, 50 Nev. 271, 278, 257 P. 619, 621. Obviously many jurors 'could, notwithstanding their conscientious scruples (against capital punishment), return * * * (a) ...