Grider v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: ONION; ROBERTS
• Citation: Grider v. State, 468 S.W.2d 393 (Tex. Crim. App. 1971)
• Decision Date: 23 June 1971
• Docket Number: No. 43728,43728
• Parties: Jackie Wayne GRIDER, Appellant, v. The STATE of Texas, Appellee.

Page 393

468 S.W.2d 393

Jackie Wayne GRIDER, Appellant, v. The STATE of Texas, Appellee.

No. 43728.

Court of Criminal Appeals of Texas.

June 23, 1971.

James E. Bock, Waco (Court appointed), Don Hall, Waco (Court appointed), Neal Wheeler, Dallas (Court appointed), William Frank, Houston (Court appointed), for appellant.

Henry Wade, Dist. Atty., John B. Tolle, Harry J. Schulz, Jr., W. T. Westmoreland, Jr., and Edgar Mason, Asst. Dist. Attys., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This appeal arises out of a conviction for murder where the punishment was assessed at death.

The trial occurred in Dallas County after a change of venue from McLennan County.

The sufficiency of the evidence is not challenged, but we are met at the outset with the most serious question in the case. The appellant contends that his constitutional rights were violated by the trial court's improper exclusion of prospective jurors who had expressed conscientious or religious scruples against the infliction of the death penalty. Reliance is had upon Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776.

In Witherspoon the United States Supreme Court said:

'Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected.

'Whatever else might be said of capital punishment, it is at least clear that its imposition by a hanging jury cannot be squared with the Constitution. The State of Illinois has stacked the deck against the petitioner. To execute this death sentence would deprive him of his life without due process of law.'

As to the matter of voir dire examination the Court in footnote #9 of the Witherspoon opinion said in part:

'(I)t cannot be assumed that a juror who describes himself as having 'conscientious or religious scruples' against the infliction of the death penalty or against its infliction 'in a proper case' (see People v. Bandhauer, 66 Cal.2d 524, 531, 58 Cal.Rptr. 332, 337, 426 P.2d 900, 905) thereby affirms that he could never vote in favor of it or that he would not consider doing so in the case before him. * * *

'The critical question, of course, is not how the phrases employed in this area have been construed by courts and commentators. What matters is how they might be understood--or misunderstood--by prospective jurors. Any 'layman * * * (might) say he has scruples if he is somewhat unhappy about death sentences. * * * (Thus) a general question as to the presence of * * * reservations (or scruples) is far from the inquiry which separates those who would never vote for the ultimate penalty from those who would reserve it for the direst cases.' Id., at 308--309. Unless a venireman states unamibiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position.' (emphasis supplied)

In Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433, the Supreme Court further said:

'(I)t is entirely possible that a person who has 'a fixed opinion against' or who does not 'believe in' capital punishment might nevertheless be perfectly able as a juror to abide by existing law--to follow low conscientiously the instructions of a trial judge and to consider fairly the imposition of the death sentence in a particular case.'

The case at bar was tried ¹ prior to the date of the Witherspoon opinion and without the benefit of that decision. Nevertheless, the Witherspoon decision must be applied retroactively. See footnote #22 of the Witherspoon opinion, supra; Pittman v. State, Tex.Cr.App., 434 S.W.2d 352; Ex parte Bryan, Tex.Cr.App., 434 S.W.2d 123; Harris v. State, Tex.Cr.App., 457 S.W.2d 903; State v. Ruth, 276 N.C. 36, 170 S.E.2d 897.

It appears without dispute that of the 72 prospective jurors examined 23 were excused because of their opposition to the extreme penalty. Although the entire voir dire examination is not in the appellate record, we conclude that the portion brought forward, when considered in light of the remainder of the record, is sufficient to dispose of appellant's contention.

The record reflects the interrogation of prospective juror Josie Boyd as follows:

'Q. * * * I tell you that now so that I can ask you if you have any conscientious or religious scruples that would keep you yourself from voting the death penalty in a proper case; in other words, I'm asking you how you feel about the death penalty?

'A. Well, uh--

'Q. You just don't believe in the death penalty?

'MR. BOCK: Your Honor, we're going to object to his suggesting that.

'THE COURT: Do you understand the question?

'THE PROSPECTIVE JUROR: Yes, sir.

'THE COURT: Well, answer it.

'A. Well, I'll put it this way: I don't believe in it in a way, and in a way I do believe in it.

'Q. Well, let me explain it to you this way: The law entitles the State to have twelve jurors who, in a proper case where the law permits it and the facts warrant it, who could and would willingly vote the death penalty just like the Defense is entitled to twelve jurors who could and would consider the minimum punishment if the facts warrant that. I will be satisfied with whatever answer you give me, but if you have some reservation that would keep you yourself as a member of the jury from voting the death penalty, then I would appreciate your telling me just what your feelings are about it.

'A. Well, uh, I am a strong believer in Christ and the Bible says thou shalt not kill. I just don't believe in it.

'Q. You just really don't believe in it?

'A. I really don't.

'Q. Then I take it that your feeling would influence your verdict if you were taken on this case?

'A. I believe so.

'Q. I expect we ought not to take you, feeling as you do. Maybe you can get on some other case--

'THE COURT: Take your card and go back to the Central Jury Room.'

William D. Crockett was also shown to be a prospective juror and his interrogation reflects the following:

'Q. This is a murder case and the possible penalty for murder in Texas is the electric chair. The State will be asking the death penalty in this case and I tell you that now so that I can ask you if you have any conscientious or religious scruples or reservations of mind that would keep you yourself from voting the death penalty in a proper case. In other words, I'm asking you if you believe in the death penalty and if you could give it where the law permits it and the facts justify it?

'A. No, sir.

'Q. You just don't believe in the death penalty; I take it that your feeling would influence your verdict, then.

'A. Yes.

'Q. I expect we ought not to ask you to serve.

'THE COURT: Get your card and go back to the Central Jury Room. Go back downstairs where you have been.'

The following occurred during voir dire interrogation of Thomas E. Mills:

'Q. Good. Now, the penalty for murder ranges from a minimum of two years in the penitentiary and up to and including life imprisonment and, in extreme cases, death in the electric chair. Now, the State will be asking the death penalty in this case, urging and contending that it is the only proper punishment for the crime committed--

'A. I don't believe in capital punishment.

'Q. You think your feelings would interfere with your verdict?

'A. Yes, sir, I believe they would.

'Q. You think they would?

'A. Yes, sir, I do.

'Q. I believe we should excuse you, Mr. Mills, and you can serve on a less serious case.

'THE PROSPECTIVE JUROR: Thank you.

'THE COURT: Get your card, please, sir, and go back to the Central Jury Room.'

Mr. R. C. Turman was interrogated as follows:

'Q. This is a case that is alleged to have occurred in McLennan County down in Waco and I believe that the evidence will show that the victim in this case was a Baylor University student, a young girl. I mention that to you so that I may ask you if you hold any opinion as to the guilt or innocence of this Defendant?

'A. Well, if we are seeking death, I would.

'Q. You just don't go for the--for death at all?

'A. I think it's a good law if someone doesn't have these scruples about it.

'MR. ALEXANDER: I expect we'd better not ask you to serve. We submit the Juror, Your Honor.

'THE COURT: Get your card, please, and return to the Central Jury Room.'

Mrs. Bennie Gipson was interrogated as follows:

'Q. How do you feel about death as a punishment for crime, do you believe in the death penalty?

'MR. BOCK: I object, Your Honor--

'THE COURT: I sustain that.

'Q. The State will be asking the death penalty as one of the possible penalties for murder and I tell you that now so that I may ask you if you have any religious or conscientious scruples that would keep you yourself from voting the death penalty in a proper case--what I'm asking you is if you would vote the death penalty in a proper case?

'A. I don't think so.

'Q. Would your feeling influence your vote if you were on the jury?

'A. I just don't think I would vote the death penalty.

'Q. Then it would influence it to that extent?

'A. Yes.

'MR. ALEXANDER: We submit the Juror, Your Honor.

'THE COURT: Get your card over here.'

Jesse T. Mize, Sr., was interrogated as follows:

'Q. As you were told, you have been called as a prospective juror in a murder case. The punishment for murder ranges from a minimum of two years in the penitentiary up to and including life imprisonment and, in extreme cases, death in the electric chair. The State will be asking the death penalty in this case, urging and contending that it is the only proper punishment for the crime committed. I tell you that now so that I may ask you the question: If you have any conscientious or religious scruples that would keep you...