Ex parte Russell

• Citation: 720 S.W.2d 477
• Decision Date: 17 September 1986
• Docket Number: No. 69298,69298
• Parties: Ex parte Clifton Charles RUSSELL, Jr.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 477

720 S.W.2d 477

Ex parte Clifton Charles RUSSELL, Jr.

No. 69298.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 17, 1986.

Stan Brown, Abilene, for appellant.

Jorge A. Solis, Dist. Atty., Abilene, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ONION, Presiding Judge.

This is a post-conviction application for writ of habeas corpus brought under Article 11.07, V.A.C.C.P. See Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App.1967).

The applicant was convicted of capital murder in 1980 and his punishment was assessed at death. The death penalty conviction was affirmed by this Court. Russell v. State, 665 S.W.2d 771 (Tex.Cr.App.1983). Certiorari was denied by the United States Supreme Court. Russell v. Texas, 465 U.S. 1073, 104 S.Ct. 1428, 79 L.Ed.2d 752 (1984).

After his date of execution was set, applicant filed his post-conviction habeas corpus application in the convicting court alleging, inter alia, that prospective juror Norman B. Scott was excused by the trial court in violation of the standards required by Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980).

This contention was not raised on direct appeal by the applicant. The voir dire examination of the prospective jurors was not requested to be included in the appellate record. To his habeas application applicant attached the transcription of the voir dire examination of the prospective juror Scott. The convicting court concluded that the application was without merit, recommended denial and ordered the record transmitted to this Court. ¹

The execution was stayed, and the habeas application was filed and set so that applicant's contentions could be considered.

The entire voir dire examination of Scott is set forth with the exception of the background information showing Scott was a retired postman, had previously served on a criminal trial jury which had reached a verdict, and had personally had a civil law suit involving an automobile accident.

The voir dire examination then reflects:

"Q ... The Court told you yesterday morning that this is a death penalty case, possibly. That is, it's a capital, the defendant has been charged with capital murder, and in a capital murder case there are two options for punishment: life imprisonment or death. Do you have any disagreement with the law that sets aside certain kinds of murders and makes them punishable by death?

"A Well, I don't believe in it, no. I don't believe in capital punishment.

"Q Excuse me; I didn't quite understand you.

"A I said I didn't believe in capital punishment.

"Q Okay. Can you tell the judge and tell us, are there certain--Why, particularly--I mean, I'm not questioning your feelings or attitudes--but why in particular you don't believe in it?

"A Well, it doesn't look like to me if a man kills somebody he's getting enough punishment. If they just kill him it's all just over with. If he has to live in this world for forty, fifty years, well, it's more punishment.

"Q And how long have you felt this way about the death penalty?

"A Well, for some time. I've thought about it a lot the last few years.

"Q You have given it a great deal of thought?

"A Yes, ma'am.

"Q Now, you understand--Of course, this is a capital case. It's not automatic or mandatory. But if the jury in a case finds the defendant guilty, then the jury has to go on to the punishment phase, just as when you served on that jury in that robbery case before. In that case, in any case that's not a capital case, the jury has to set a punishment; that is, a certain number of years. In a capital case the jury has to answer some questions. The first question is whether or not the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result. In other words, that it was deliberate and that, from what the defendant was doing, he could reasonably expect that the person would die. Now, do you understand what that question means, what that question would ask the jury to find?

"A Well, no, I don't understand it.

"Q Okay. The jury is going to be asked probably two questions should they find this defendant guilty. Then on the punishment phase there would be more evidence and then the Court will give another charge, and in the charge he is going to ask these questions, and the jury must answer the questions. If the answer is yes it must be unanimous, and if the answer is not it must be--at least ten people must agree that the answer is no. And the first one, basically, asks whether or not the jury believes that whatever it is the defendant did was deliberate and that when he did that he could reasonably expect that death would result; that is, it was deliberate and that, you know, a reasonable person would think that, well, if you did this that somebody would die. And that would be the question.

"The second question would be whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. And that means basically the jury looking at the evidence of the particular case, the evidence of the defendant's past--that is, what has been his conduct in the past--and from that determine whether or not he would be violent in the future.

"And those are the questions that would have to be answered one way or the other, whatever that answer would be. If both answers are yes, then the Court must assess the death penalty. Do you understand that?

"A Yes.

"Q Now, could you answer those questions, knowing that if you answered them yes that the death penalty would be mandatory?

"A I don't believe I could.

"Q Now, in a criminal case, if it's a capital case, the Court, in order to qualify somebody to sit on the jury, must give a person an oath, and that oath--Besides the regular oath that you take, the juror must state under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact; in other words, the fact that the punishment is mandatory wouldn't bear on your determining the guilt or innocence. Could you take that oath?

"A Not if it meant his death I couldn't.

"Q So, then, you are saying, then, the possibility of a death penalty would weigh on your mind and affect your deliberations even on determining whether or not the defendant was guilty?

"A Right.

"Q Therefore, from what you are saying, I take it that you have some principles, whether they be religious or conscientious or moral or whatever, against the death penalty.

"A I do.

"Q Even if the facts would justify it; that is, if the law allowed for it and the facts would justify it, you still couldn't give it?

"A I don't believe in taking a man's life, no.

"Q This, I take it, is a very deep-seated and firm conviction that you have?

"A That's right.

"Q Are you sufficiently opposed or against capital punishment to the point that you could not take the law and the evidence without considering the fact that the death penalty might be imposed?

"A Well, I could take the law and the evidence, but when it come to imposing the death penalty, I don't think I could do it.

"Q Would your attitude toward the death penalty, that is, feeling as you do--And understanding, again, Mr. Scott I am not quarreling with your viewpoints; there are lots of different viewpoints. But would this attitude, this strong feeling that you have toward the death penalty, prevent you from making an impartial decision as to the defendant's guilt.

"A Well, I'm afraid it would.

"Q Would you automatically vote against the imposition of the death penalty without regard to any evidence that might be developed at the trial?

"A On this case?

"Q Or in any case.

"A Would I vote against the death penalty?

"Q Yes.

"A Yes.

"Q Are you saying that your ideas and your viewpoint is such and your frame of mind is such that regardless of how horrible the facts might be, or the circumstances might be of the death, that you would absolutely unequivocally automatically vote against the death penalty, no matter what the facts were?

"A I'm afraid I would.

"Q And I take it there is nothing that could cause you to change your mind?

"A I don't think so. I don't know what it could be.

"Q And that nobody could talk you out of it.

"A No.

"Q Despite your feelings and the convictions that you have stated, are you telling the Court that you could not put aside your disbelief in the death penalty and do your duty as a citizen?

"A I could do my duty as a citizen as long as it didn't include the death penalty.

"MISS ELLIOTT: Your Honor, at this time we would challenge this juror for cause both under--I think he has disqualified himself under Witherspoon, under 12.31, and under 35.16.

"MR. BROWN: Your Honor, may I ask him a question?

"THE COURT: Go ahead.

"EXAMINATION BY MR. BROWN:

"Q Mr. Scott, understanding what you have said, that you are opposed to capital punishment, are you actually saying that in any case, no matter what the circumstances were, no matter what the evidence was, that you would automatically vote against the death penalty?

"A I'm afraid so. I just don't believe in it.

"Q All right. Can you think of any set of circumstances, any type of case--for example, a killing of, say, a young mother and her three children, or whatever the most horrible type of killing that you could imagine would be--can you think of any type of case, any circumstances like that, where you could consider voting for the death penalty?

"A I might consider it, but I don't know whether I could do it or not.

"Q Do you think there could be certain cases where you could consider voting for the death penalty?

"A If somebody killed a small child, it's possible.

"Q Now, in answer to some other questions from Miss Elliott, you stated that...