Fearance v. State

• Decision Date: 17 September 1980
• Docket Number: No. 63342,63342
• Citation: 620 S.W.2d 577
• Parties: John FEARANCE, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 577

620 S.W.2d 577

John FEARANCE, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 63342.

Court of Criminal Appeals of Texas, En Banc.

Sept. 17, 1980.

On Rehearing May 27, 1981.

J. Thomas Sullivan, Preston DeShazo, Dallas, for appellant.

Henry Wade, Dist. Atty., W. T. Westmoreland, Jr., Douglas D. Mulder, Norman Kinne, David Schick and John Hagler, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for capital murder. After the jury answered yes to the three special issues under Art. 37.071(b), V.A.C.C.P., punishment was assessed at death.

Appellant was convicted of having murdered Larry Faircloth during the course of a burglary on December 23, 1977, in Dallas. The deceased died as a result of multiple stab wounds.

In his twelfth ground of error, appellant contends that the trial court erred in sustaining the State's challenge for cause to prospective juror Patricia Randolph. He maintains that exclusion of Randolph was in violation of the Sixth and Fourteenth Amendments to the United States Constitution.

The prosecutor initially questioned Randolph on voir dire concerning her general attitude with regard to the death penalty. In this regard, the record reflects as follows:

"Q. (Prosecutor)

"... Therefore, I want first of all to ask you how you feel generally with regard to the issue of capital punishment. By that I mean are you in favor of it, against it, have some specific religious or moral objections to it, and, if you would, I'd ask you to share your thoughts with us and with the Court as to how you feel about the issue of capital punishment.

"A. Well, the only objections I would have to capital punishment would be the circumstances involved in the crime that was committed.

"Q. You are saying that you would be in favor of it in certain instances?

"A. Yes, sir.

"Q. ... Do you feel that under the proper circumstances you could consider and assess the death penalty as the punishment for a person who has committed a murder during the course of a burglary?

"A. Yes."

Randolph was then questioned for a short time concerning a personal data information sheet she had filled out. The prosecutor then explained certain rules of law to Randolph such as proof beyond a reasonable doubt, the presumption of innocence and the defendant's right not to testify. Randolph stated that she understood these rules and would follow them if selected to sit on the jury.

The prosecutor then explained the procedure at the punishment phase of the trial. Randolph acknowledged that she understood the three special issues under Art. 37.071(b), supra, and that depending upon the evidence, the answer to a special issue might be yes or no. She stated that she could answer any of the issues yes or no depending upon the evidence presented at trial.

Randolph was informed that if all the special issues were answered yes, the defendant would be sentenced to death. With respect to whether this knowledge would affect her deliberations, the record reflects:

"Q. ... Now, knowing ahead of time what the ultimate result would be, do you feel that that would in some way affect your deliberations or your answers to those three questions?

"A. I'd have to say yes.

"Q. You feel that it would?

"A. Yes.

"Q. Well, I just want you to be honest with us and I appreciate your being honest with us. Now, just so that I understand you: Knowing ahead of time that the Defendant would either get a maximum sentence of life or death and knowing what would occur, depending on how you answered the questions, you do feel that that would enter into your deliberations in answering the three questions?

"A. Well, I'd have to answer all each question on an individual basis to the best of my ability and my honesty to myself. I'd take each question on an individual basis and not as a whole.

"Q. Right. Okay, and I'm not suggesting you wouldn't answer them truthfully. My question maybe that last one was confusing there; at least it wasn't in line with what I'd asked you before. Do you feel that, although you'd be answering the questions truthfully, that your answers to the three questions would be affected by the fact that you already know what the ultimate outcome would be?

"A. Yes.

"Q. Let me twist that around; I'm going to have to ask it to you again and try to follow me, if you would, please: Can you or would you be able to state under oath that the mandatory sentence of life or death would not affect your deliberations or answers to those three questions of fact?

"A. No.

"Q. You could not state under oath that it would not affect your

"A. It would it would affect me, yes; it would have to."

Following the above answers, Randolph was challenged for cause by the State. The challenge was sustained by the trial court over appellant's objection that:

"MR. DeSHAZO: Your Honor, at this time the defense would object to the Court excusing the venire lady, Patricia Randolph, for cause for the reason that a systematic exclusion of veniremen under 12.31(b) violates our right to a fair and impartial jury as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution...."

V.T.C.A. Penal Code, Sec. 12.31(b), ¹ recently came under scrutiny by the United States Supreme Court in Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). The Court found the statute to be constitutional and that "(t)he State could, consistent with Witherspoon, ² use Sec. 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." It was noted that "(i)f the juror is to obey his oath and follow the law of Texas, he must be willing not only to accept that in certain circumstances death is an acceptable penalty but also to answer the statutory questions without conscious distortion or bias. The State does not violate the Witherspoon doctrine when it excludes prospective jurors who are unable or unwilling to address the penalty questions with this degree of impartiality."

However, the Court found that the State had impermissibly used Sec. 12.31(b), supra, as a ground for challenge against several prospective jurors in Adams' trial. These veniremen were excused after they stated that the possibility of the death penalty would have an affect on their deliberations. In finding their exclusion to be improper, the Court noted:

"Nor in our view would the Constitution permit the exclusion of jurors from the penalty phase of a Texas murder trial if they aver that they will honestly find the facts and answer the questions in the affirmative if they are convinced beyond reasonable doubt, but not otherwise, yet who frankly concede that the prospects of the death penalty may affect what their honest judgment of the facts will be or what they may deem to be a reasonable doubt. Such assessments and judgments by jurors are inherent in the jury system and to exclude all jurors who would be in the slightest way affected by the prospect of the death penalty or by their views about such a penalty would be to deprive the defendant of the impartial jury to which he or she is entitled under the law." Adams v. Texas, 100 S.Ct. at 2529.

In the instant case, Randolph stated that she could consider and vote for the death penalty for one who committed a murder during the course of a burglary. She acknowledged that she understood the three special issues under Art. 37.071(b), supra, and could answer those questions yes or no depending upon the evidence presented at trial. However, Randolph was excused, over appellant's objection, after she stated that the possibility of the death penalty would affect her deliberations or answers to the three special issues.

We find that Randolph's testimony showed that she would consider the evidence and honestly answer the three special issues. The mere fact that the death penalty would have an affect on her deliberations or answers was not a sufficient basis upon which she could have been challenged and excused for cause. We hold that her exclusion for cause was inconsistent with Witherspoon.

The judgment is reversed and the cause remanded.

OPINION ON APPELLANT'S MOTION FOR REHEARING

CLINTON, Judge.

On original submission the Court reversed the judgment of conviction and remanded the cause for a new trial, deciding only that a prospective juror had been improperly excused under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), given the judicial gloss applied to V.T.C.A., Penal Code, § 12.31(b) recently by the Supreme Court of the United States in Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). In his motion for rehearing appellant complains that we did not but should rule on several of his forty five grounds of error which do not present voir dire error and additionally, that our disposition of the cause remand for a new trial should the State be so advised is improper; we granted appellant leave to file his motion in order to address his complaints.

At the outset we reject the contention that the initial disposition of the cause on a finding of Witherspoon violation alone was incorrect. That we will not reform the verdict of the jury reached at the punishment stage in such a way as to render judgment of life imprisonment is now settled by the action of the Court overruling the State's motion for rehearing in the Grijalva-Loudres-Pierson trilogy April 29, 1981. ¹ Still at the threshold, we are confronted with ground of error one, reading:

"The Texas Death Penalty Statute is unconstitutional because it is inflicted as a result of prosecutorial discretion which is not limited by guidelines or standards for determining its appropriateness in individual prosecutions."

This ground is derived from the trial court's overruling a motion to dismiss the indictment to the same effect,...