Goodman v. State

• Decision Date: 02 October 1985
• Docket Number: No. 68927,68927
• Citation: 701 S.W.2d 850
• Parties: Michael GOODMAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 850

701 S.W.2d 850

Michael GOODMAN, Appellant, v. The STATE of Texas, Appellee.

No. 68927.

Court of Criminal Appeals of Texas,

En Banc.

Oct. 2, 1985.

Rehearing Denied Dec. 4, 1985.

Allen C. Isbell, on appeal only, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Winston E. Cochran, Jr., John Holleman & Ira Jones, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MILLER, Judge.

This is an appeal taken from a conviction of capital murder. V.T.C.A. Penal Code, § 19.03(a)(2). The death penalty was imposed after the jury answered affirmatively the special issues submitted under Art. 37.071, V.A.C.C.P. Appellant presents fourteen grounds of error for review. We affirm the conviction.

In ground of error number eight, appellant contends that the trial court erred in excusing venireman Fausto Nolasco sua sponte in that the potential juror was not absolutely disqualified under Art. 35.16(a)(2), (3), or (4), V.A.C.C.P. During the voir dire examination of venireman Nolasco, the following discussion took place "Q. [Prosecutor]: Maybe this question doesn't make much sense, but I've been told, I tried to learn Spanish and I wasn't very good at it, very little. I know they say you really aren't completely fluent in a language until you can think in it. I never could think in Spanish. But at any rate, do you kind of more or less think in Spanish? Do you hear the English--

"A. [Witness]: That's what happened when we came to this country, because especially when I came, I was 28 when I came to this country and I came along real, real--I don't know how to say it, but everything I translate in English, and that's where my problem is.

"Q. So when you are listening to evidence or the questions or the answers that were given, you would be having to translate that into Spanish. I mean that's the way your thought processes work?

"A. Yes, I'm kind of confused.

"Q. And you have been confused in some of the questions I've asked?

"A. No, I don't have confused. I understand mostly.

"Q. Well, you understand that it would be very important for you, as a juror--we have a life or death matter. It would be kind of maybe very critical that someone understands everything instead of just most of it.

"A. I understand.

"Q. And it would be impossible for a juror to say, I'm sorry, Mr. Attorney, I didn't understand what the question was. Could you rephrase it, or I'm sorry, Mr. Witness, I'm sorry, Mr. Attorney, I didn't understand the question, could you rephrase it in such a way, or I'm sorry, Mr. Witness, I didn't understand exactly what you meant, could you say it a different way.

Now, Mr. Nolasco, I don't know if that would apply to you, because, like I said, again, I don't know you, but I know I'm having a little trouble with you here and that's probably my problem too. But do you thing [sic] your usage and understanding of the English language would be such that it would keep you from fairly listening to questions and answers and understanding them completely in such a way you could be fair to both sides.? [sic]

"A. I can do both sides, but most of my problem is with the language. I don't think it is your fault. It is my fault, because I don't--I'm aware this is something serious and I don't want to answer something that I don't understand.

"Q. Okay. I'm not sure, my question was, do you think you would be able to sit over here and understand the questions well enough, understand the answers given well enough, knowing you are going to have to pick it up as the questions are asked and answers are given and understand what was said and apply that to the law that the Judge will give you. That's a very important thing, especially when we are talking about the possibility of somebody receiving the death penalty. And you can see that someone who, for the most part, uses another language than English. The proceeding will be in English.

"A. That's true.

"Q. That even though you have a working relationship as far as English is concerned, I understand you can speak English and you understand, and you understand at least most of it, but there could be a point where there is a position where someone who speaks Spanish and thinks in Spanish might not be able to sit over here and perform the functions or duties of a juror in a fair way. And I don't know if that would apply to you or not. Do you think it would?

"A. I don't know what to answer. I don't know. You talk too fast to me.

"Q. I apologize for talking too fast.

"THE COURT: Let me interrupt. Of course, you've been informed there's a possibility that the defendant in the case could [be] assessed the death penalty. This is the most important type of criminal case that exists. This is a very important case, both to the defendant and to the State.

Now, both the defendant and the State are entitled to 12 jurors that they know can hear and fully understand not just part of the evidence, but all of the evidence.

Can you assure me that [you] are confident that you can understand everything that was said from the witness stand by doctors, policemen, laywitnesses, and others? Do you feel sure that you can understand it all?

"THE JUROR: I'm sure I don't understand everything.

"THE COURT: You are sure you could not understand it all?

"THE JUROR: I understand a lot, but not everything.

"THE COURT: Well, it's necessary that you understand all of it.

"THE JUROR: Yes, sir.

"THE COURT: You don't think you could do that?

"THE JUROR: I don't think I can do that.

"Q. [By Mr. Holleman] You see what I'm saying, or why I would have a concern about having somebody base their decision on the case on just part of the evidence?

"A. No, I don't think I really do. I don't think I understand everything. I don't think I'm going to be able to serve as a juror.

"Q. You honestly don't think you would be able to?

"A. That's true.

"THE COURT: Mr. Nolasco, step out in the hall a moment while I have a private conference with the lawyers.

OUT OF THE PRESENCE OF THE PROSPECTIVE JUROR:

"THE COURT: My inclination is to excuse this juror on the Court's own motion. I don't want to commit reversable [sic] error. I don't believe that he will be capable of fully understanding all of the testimony from the responses he has given here, and he's indicated by his own words that he doesn't believe that he can understand it all.

John, do you think it would be error to excuse him on my own motion?

"MR. HOLLEMAN: No, Your Honor. I think it is clear from his answers and all, and at least to me, and you have the same opportunity to view him and we will move that he be excused for cause. And we were planning on doing that. I just simply don't feel he could fulfill the function of a juror and he's even told us that much.

"MR. TOOMEY: Your Honor, would except and object to the challenge for cause.

"THE COURT: He hasn't challenged him yet.

"MR. TOOMEY: I take exception to the Court's own motion and would like an opportunity to do it official after it is done, because he meets the requirement of the law. He can read and write based upon his own testimony. He filled out the questionnaire and reads Time magazine and the newspaper. He has his own business here in the United States. Secondly, the State procedure to this inquiry, after they realized the person had problems with the death penalty issue. And I think it is obvious with the record he passed the Witherspoon test, and they are now going in to try to bolster his inability to read and write the English language. If they were truely [sic] concerned about that, that would have been the first question asked.

We object to him being excused by the Court on his own motion.

"MR. HOLLEMAN: May I respond to the last part?

I think the Record will show that in answer to him attempting to answer some of the questions, it became apparent to me he didn't understand. I think he even said so much, he didn't understand, and then I went into that area.

"THE COURT: All right, I'm going to excuse him on the Court's own motion, because in a death penalty case, I think it is absolutely essential that every juror have at least the capability of understanding all of the testimony. And I think it would be a dangerous thing to permit anybody to serve on a jury that might not understand at least a portion of the testimony. And I'm convinced this man could not adequately understand it all.

Appellant asserts that the record does not establish that Nolasco was absolutely disqualified under Art. 35.16. Thus, the trial court erred in excusing the venireman on its own motion. Appellant further contends that since the State exhausted all of its peremptory challenges, the error was reversible error citing this Court's decision in Payton v. State, 572 S.W.2d 677 (Tex.Cr.App.1978).

It is well settled that a trial judge should not on its own motion excuse a prospective juror for cause unless the juror is absolutely disqualified from serving on a jury. Martinez v. State, 621 S.W.2d 797 (Tex.Cr.App.1981); Esquivel v. State, 595 S.W.2d 516 (Tex.Cr.App.1980); Payton v. State, 572 S.W.2d 677 (Tex.Cr.App.1978); Chambers v. State, 568 S.W.2d 313 (Tex.Cr.App.1978); Valore v. State, 545 S.W.2d 477 (Tex.Cr.App.1977); Pearce v. State, 513 S.W.2d 539 (Tex.Cr.App.1974); Henriksen v. State, 500 S.W.2d 491 (Tex.Cr.App.1973). If the court does so, however, reversible error will arise only on a showing of harm to the defendant.

If the trial court erroneously excludes a qualified juror, then the State has in effect received the benefit of an additional peremptory strike. ¹ Payton, supra. Thus, a defendant may show that he was harmed by an erroneous exclusion by showing that the State exhausted its peremptory challenges, and that but for the court's actions, the juror would have served. Pearce, supra.

A different situation arises, however, when the court sua sponte excludes a disqualified juror: viz, a juror subject to a challenge for cause. In such a situation,...