Ex parte McKay

• Decision Date: 12 September 1990
• Docket Number: No. 70850,70850
• Citation: 819 S.W.2d 478
• Parties: Ex parte David Wayne McKAY.
• Court: Texas Court of Criminal Appeals

Page 478

819 S.W.2d 478

Ex parte David Wayne McKAY.

No. 70850.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 12, 1990.

Rehearing Denied Dec. 4, 1991.

B. Prater Monning, III, Dallas, for appellant.

John Vance, Dist. Atty., Teresa Tolle, Asst. Dist. Atty., Dallas, Robert Huttash, State's Atty., Matthew W. Paul, Asst. State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

MILLER, Judge.

This is a post-conviction application for writ of habeas corpus relief pursuant to Article 11.07, V.A.C.C.P. Applicant was convicted by a jury on a plea of not guilty of capital murder. See V.T.C.A., Penal Code Section 19.03(a)(2). On August 5, 1982, the trial court imposed the death penalty upon the jury's affirmative answers to the three special issues submitted pursuant to Art. 37.071, V.A.C.C.P. On direct appeal, applicant's conviction was affirmed by this Court on October 2, 1985, in a published opinion. McKay v. State, 707 S.W.2d 23 (Tex.Crim.App.1985), reh'g denied.

Following applicant's appeal, his petition for writ of certiorari was denied by the United States Supreme Court on October 6, 1986. McKay v. Texas, 479 U.S. 871, 107 S.Ct. 239, 93 L.Ed.2d 164 (1986). Applicant was then denied state habeas corpus relief on February 27, 1987, and again on March 3, 1987. Finally, applicant's petition for writ of habeas corpus presented in federal district court was dismissed by agreement on November 3, 1988, in order to permit applicant to file an amended application for writ of habeas corpus in this Court. We granted applicant's application solely on the issue of whether the trial court erred in its ruling restricting the scope of voir dire examination. ¹ Applicant contends that his ability to question prospective jurors was limited in such a fashion as to violate his rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Texas Constitution.

No evidentiary hearing was held in this matter. The trial judge entered an order expressly adopting the proposed findings of fact and conclusions of law submitted by the State in its response to applicant's writ application. Those findings conclude that applicant's application for habeas corpus relief was without merit and that applicant was not denied any state or federal constitutional rights. We are not bound by the trial judge's conclusions, however, if unsupported by the record. Ex Parte Adams, 768 S.W.2d 281, 288 (Tex.Cr.App.1989). The parties in the present case cite identical portions of the record with regard to the grounds for relief presented by applicant, and we are unable to find any discrepancies. Based upon the record so presented, we find that the trial court's conclusions are unsupported. We further find, for the reasons stated, that applicant's claim is cognizable under habeas corpus. We will grant applicant relief.

The record shows that on July 15, 1982, during the course of applicant's trial, the trial judge instructed the attorneys "not to inquire of the prospective juror's interpretation, definition or understanding of terms such as deliberately, probability, reasonable doubt, criminal acts of violence." The trial judge went on to say that the terms "are not statutorily defined, and they are to be taken as understood in common language, and the jurors are supposed to know such common meanings.... And therefore I will ask you not to question them along those lines." After applicant had exercised his fifth peremptory challenge to prospective juror Robert Berg, the State had exercised six (6) peremptory challenges, and four jurors had been selected, the record further reflects the following colloquy:

THE COURT: On the record. Counsel for the State has inquired of the Court to be a bit more specific here in its ruling to whether or not defense counsel is prohibited from asking the question, 'If you have found someone guilty of intentionally killing another human being without justification, could you ever answer no to the question which asks was it done deliberately?'

While this is not specifically asking the definition of the common term deliberately, I feel this is indirectly doing what the Court is asking you not to do directly, and I will ask you not to ask that question.

MR. HARRISON [Defense Counsel]: Your Honor, to which we--may we have a running objection to the Court's ruling.

THE COURT: Yes, you may, and I overrule it.

Following the above ruling, thirty-five (35) prospective jurors were interrogated.

Applicant maintains that the above ruling unduly and unconstitutionally limited his ability to properly question prospective jurors. Although applicant's attorney preserved any error by making a running objection ² to the trial court's ruling, applicant did not contest the ruling on direct appeal. Thus, before reaching the merits of applicant's claim, we must decide whether this issue may be raised in a death penalty case for the first time by application for a writ of habeas corpus.

It is well-settled in this state that "[t]raditionally, habeas corpus is available only to review jurisdictional defects ... or denials of fundamental or constitutional rights." Ex Parte Banks, 769 S.W.2d 539, 540 (Tex.Crim.App.1989) (citations omitted). In Banks, we held that where the applicant complains that a venireman was improperly excused following a challenge for cause pursuant to Art. 35.16, V.A.C.C.P., such claim could not be asserted via habeas corpus since it involves a procedural statute and not a jurisdictional defect or constitutional consideration. Banks, 769 S.W.2d at 540.

However, not all constitutional errors cause the level of harm necessary to warrant cognizability under a writ of habeas corpus. We have held that although a habeas corpus application may be predicated on violations of state constitutional rights, the claim may not be cognizable via habeas corpus when the alleged error, if committed, is nevertheless subject to a harm analysis under Texas Rule of Appellate Procedure 81(b)(2). Ex parte Truong, 770 S.W.2d 810 (Tex.Cr.App.1989); Ex parte Dutchover, 779 S.W.2d 76 (Tex.Cr.App.1989). As stated in Truong:

Therefore, contrary to the contention advanced by applicant, this Court has determined that giving the unconstitutional instruction on parole law did not render the verdict of the jury assessing punishment invalid nor the judgment based in part of that verdict void. To give the instruction may be harmful indeed, but is no more than reversible error. That is to say, the judgment is at best voidable, and as such is not subject to a collateral attack by writ of habeas corpus.

Inasmuch as applicant will be unable to demonstrate that including an unconstitutional instruction on parole law in a charge on punishment ... so fatally infected the entire punishment proceeding as to render the resultant sentence invalid and judgment void, ... we hold that his "Rose claim" of error is not cognizable in a postconviction habeas corpus proceeding, and thus will not be entertained, under Article 11.07.

Truong, 770 S.W.2d at 813. Implicit in these holdings is that habeas corpus is limited to those constitutional errors, at least those pursuant to the state constitution, that are so exceptional or fundamental that they are not susceptible to a harm analysis, or that so fatally infected the entire [punishment] proceeding as to render the resultant sentence invalid and judgment void.

Numerous other cases have discussed the merits of habeas corpus claims that certain errors have fatally infected the proceedings. Ex parte Maldonado, 688 S.W.2d 114, 116 (Tex.Cr.App.1985) (charge error that so infected the trial procedure that applicant was denied a fair and impartial trial is cognizable on habeas corpus); Ex parte Coleman, 599 S.W.2d 305 (Tex.Cr.App.1978) (charge error that infected the entire trial such that the resulting conviction violates due process is cognizable on habeas corpus); Ex Parte Aaron, 691 S.W.2d 680 (Tex.Cr.App.1985) (failure of the State or trial judge to sign waiver of jury contemplated in Articles 1.13 or 1.15, V.A.C.C.P., is per se not cognizable if evidence shows those parties' consent or approval); Ex parte Ashcraft, 565 S.W.2d 926 (Tex.Cr.App.1978) (sufficiency of evidence not cognizable); Ex parte Moffett, 542 S.W.2d 184 (Tex.Cr.App.1976) (allegation of no evidence is cognizable on writ of habeas corpus because it results in a violation of due process); See also Ex parte Brandley, 781 S.W.2d 886 (Tex.Cr.App.1989) (Campbell, J., dissenting) (newly discovered evidence not fit subject matter for the exercise of state or federal habeas corpus); etc.

This list is anything but exhaustive, but suffice it to say that while there is no bright line rule showing just which errors are or are not "a violation of due process cognizable on writ of habeas corpus", are or are not "so exceptional or fundamental that they are not susceptible to a harm analysis", or have or have not "so fatally infected the entire [punishment] proceeding as to render the resultant sentence invalid and judgment void", certainly many errors do fall into these "categories" and thus are cognizable on writ of habeas corpus despite the principle that the great writ should not be used as a substitute for appeal. Banks, 769 S.W.2d 539. The question to be answered then is: Does the voir dire error of the case at bar fall into one or more of these "categories"?

The constitutionally guaranteed right to counsel encompasses the right to question prospective jurors in order to intelligently and effectually exercise peremptory challenges and challenges for cause during the jury selection process. Mathis v. State, 167 Tex.Crim. 627, 322 S.W.2d 629, 631 (Tex.Cr.App.1959); Gardner v. State, 730 S.W.2d 675, 689 (Tex.Cr.App.1987); Smith v. State, 703 S.W.2d 641, 643 (Tex.Cr.App.1985); and cases cited therein. To that end, trial judges should allow defendants much leeway in questioning a jury panel...