Franklin v. State
| Decision Date | 26 June 1985 |
| Docket Number | No. 69026,69026 |
| Parties | Donald Gene FRANKLIN, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
This is an appeal taken from a conviction of capital murder. V.T.C.A. Penal Code, § 19.03. The death penalty was imposed after the jury answered affirmatively the special issues submitted under Article 37.071, V.A.C.C.P. Appellant's previous conviction for the same offense was reversed because the State improperly impeached appellant on the basis of his failure to testify to his exculpatory story at a pre-trial hearing. Franklin v. State, 606 S.W.2d 818 (Tex.Cr.App.1979) (Opinion on Rehearing). The retrial conducted after this court remanded the case was held in Harris County. After the verdict was returned in that case, the trial judge granted appellant's motion for a new trial because of error in the court's charge. The new trial was set in Bexar county, but was moved to Cameron County on a change of venue. Appellant now alleges twelve grounds of error arising from the trial he received in Cameron County. The sufficiency of the evidence is not attacked. 1
In his first ground of error, appellant contends that the trial court erred by granting the State's challenge for cause to potential juror Flavia Santana. The record of the voir dire examination of prospective juror Santana reflects:
[The State's attorney then challenged Ms. Santana for cause, which the trial court overruled.]
[Whereupon the trial court granted the State's challenge for cause.]
Appellant maintains that this testimony indicates potential juror Santana was manifesting a special concern for the seriousness of the ultimate penalty, and was voicing the kind of conscientiousness deemed proper for a juror by the United States Supreme Court in Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980) and Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Thus, her exclusion for cause was error which mandates reversal by this Court. The State counters that the testimony indicates that potential juror Santana intended to impose a heavier burden of proof upon the State than that which the law requires. We agree with this latter argument.
Article 35.16(b)(3) provides that a challenge for cause may be made by the State if the juror "has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment." In Hawkins v. State, 660 S.W.2d 65 (Tex.Cr.App.1983), the defendant was charged with capital murder. During voir dire, a potential juror stated that the State's proof would have to convince her to a certainty before she would find the defendant guilty. She added that if there were any doubt in her mind, she would consider such a doubt to be reasonable. We held that the court had properly sustained the State's challenge for cause since the prospective juror indicated she would hold the State to a more stringent standard of proof than beyond a reasonable doubt.
Similarly, in Cannon v. State, 568 S.W.2d 344 (Tex.Cr.App.1978), a potential juror was examined during voir dire and repeatedly and unequivocally testified that in answering the second question at the punishment hearing, Art. 37.071(b)(2), V.A.C.C.P., she would hold the State to a more stringent standard of proof than beyond a reasonable doubt. This court held that she was properly excluded for cause under Art. 35.16(b)(3). See also cases cited id. at 349.
In the case at bar, we find that the testimony elicited from prospective juror Santana indicated that she would hold the State to a higher standard of proof than beyond a reasonable doubt. Moreover, we accord some deference to the trial court's determination given that he was in a position to gauge the sincerity and demeanor of the prospective juror's answers. See Bird v. State, 692 S.W.2d 65 (Tex.Cr.App.1985), citing Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). Thus, the trial court properly sustained the State's challenge for cause. Appellant's first ground of error is overruled.
In his second and third grounds of error, appellant argues, respectively, that the trial court erred by granting the State's challenge for cause to...
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