Grijalva v. State

• Decision Date: 10 September 1980
• Docket Number: No. 65174,65174
• Citation: 614 S.W.2d 420
• Parties: David GRIJALVA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 420

614 S.W.2d 420

David GRIJALVA, Appellant, v. The STATE of Texas, Appellee.

No. 65174.

Court of Criminal Appeals of Texas, En Banc.

Sept. 10, 1980.

Rehearing Denied April 29, 1981.

E. Dean Roper, Kenneth A. Back, Amarillo, for appellant.

Thomas Curtis, Dist. Atty., Steve Schiwetz, Carol Habern, Richard A. Keffler, Jr. and William R. Bowden, Jr., Asst. Dist. Attys., Amarillo, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ODOM, Judge.

This is an appeal from a conviction for capital murder. After the punishment issues submitted under Art. 37.071, V.A.C.C.P., were answered affirmatively, the death penalty was assessed.

In his third ground of error appellant raises an issue that requires reversal under the recent Supreme Court decision in Adams v. Texas, 581 U.S. ----, 100 S.Ct. 2521, 65 L.Ed.2d --- (1980). A prospective juror was excused on challenge by the State under V.T.C.A., Penal Code Sec. 12.31(b). We set out the controlling portions of the juror's voir dire examination:

(Questions by the Prosecutor)

"Q. In other words, being very honest with me, what you're telling me, you can't state under oath that the mandatory penalty of life or death won't affect your deliberations on any issue of fact?

"A. I cannot say that for such and for certain. It might affect it.

"Q. Being very honest with me?

"A. Being very honest.

"Q. Knowing what's coming if you are selected?

"A. It might affect it. I wouldn't want it to, but I'm human. It might affect it.

"Q. And it seems to me from listening to you that these although you have said you possibly could give the death penalty in a proper case

"A. Uh-huh.

"Q. you've got some awfully serious reservations about it. I can tell the amount of thought that you have given it up to this point in time.

"A. And I have given it a lot of thought.

"Q. I'll bet you have and I'll bet you have studied on it pretty serious since Monday.

"A. I have.

"Q. Have you talked about it with anybody?

"A. No.

"Q. In other words, just trying to

"A. It's something that I have to work out myself because no one else can tell me how I feel.

"Q. Certainly. Certainly.

"A. And discussing it wouldn't help.

"Q. It's just something you have to

"A. I had to make up my own mind about.

"Q. And I think that knowing as the Judge told you the other day that you had to come in here and say yes or no

"A. He did.

"Q. you finally came to the conclusion that, 'Well, I I'm going to say yes, but, boy, I just really don't know about it.'?

"A. I wanted you to know that. I wanted you to know that, yes, I think I can do it but I'm not positive that I can. It might affect my yes and my no answers in the second phase of the trial.

"Q. What you're telling me is you can't state under oath that the mandatory penalty of life or death won't affect your answers to these questions of fact because you think that although you might try, that it probably would?

"A. Probably would.

"Q. In other words, to be very specific and I don't want to tie you down, but it's such a serious matter.

"A. I know it's a serious matter, very serious, and I have thought about it a lot.

"Q. You can't state under oath that the mandatory penalty of life or death will not affect your deliberations on any issue of fact, can you? You can't make that statement?

"A. No.

(Questions by the Court)

"Q. Now, then, sitting in a jury room, you are deliberating on how you're going to answer two questions. By you, I mean the whole jury, 12 people, and you as an individual, also

"A. Okay.

"Q. if you were selected.

"Now, look at Question Number One, which has to be answered yes or no, and you feel that under the evidence heard the State has proven to you beyond a reasonable doubt that the answer to that question ought to be yes.

"Okay?

"A. Okay.

"Q. Then you look at Question Number Two. You review the evidence, talk about it, and you arrive at the conclusion that by the evidence you've heard in that case the State has presented to you beyond a reasonable doubt that the answer to that question should be yes.

"Okay?

"A. Okay.

"Q. You are at the point now of putting a yes answer to one and yes answer to number two.

"Now, at that point the oath we are talking about would require any juror at that point to put down two yes answers knowing full well that when he did the Judge was going to sentence the Defendant to death

"A. Uh-huh.

"Q. instead of

"A. Life.

"Q. Saying, 'Okay, I agree both of them sure ought to be answered yes. Not any question about that. Not any reasonable doubt in my mind but that ought to be answers to both of them, but because of my feelings about the death penalty I'm going to have to insist on a no to one of those.'

"A. I'm a very honest person and I think that if I felt both answers should be yes, I would put yes, but I'm how can anyone know for sure that they would not let that influence them?

"Q. Nobody probably can know for sure.

"A. Can 12 people be picked that can honestly say that it would not affect their answer?

"Q. Okay. Now, the oath that we have been talking about as is contained in the law says, quote, a prospective juror shall be disqualified from serving as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact, and that means that when it comes down to that point the juror will go by what the facts are and not what his feelings are.

"A. And I would very definitely try to go by the facts, but I cannot swear under oath that it wouldn't my feelings might affect it. I wouldn't want to mislead you and say that I can honestly say for sure and for certain they might not. I don't think they would, but they might.

"Q. Okay.

"A. Now, what are y'all going to do with me?

"Q. Are you relatively comfortable right now?

"A. Uh-huh.

"Q. Okay. That's important to me.

"What we're going to do right now, because it's five o'clock, is recess for the night, come back at nine o'clock tomorrow morning and finish this voir dire.

(Questions by the Court)

"Q. Mrs. Pannell, in connection with the questions that were asked of you yesterday, is it fair to say that you're feeling about and opinions about the imposition of the death penalty penalty of death as a possible punishment in a capital case in Texas are essentially that it would be a very serious matter with you, but if it were a proper case that is to say, one in which the law allows for the death penalty under certain circumstances and a case which in your opinion the facts justified the infliction of the death penalty, that you could serve on a jury that may be called on to inflict a death penalty? Is that a fair statement?

"A. Yes.

"Q. Okay. Wouldn't be easy for you, but you could in a proper case?

"A. Right.

"Q. Okay. Now, if you were selected as a juror, you would be required to take the oath that we were talking about yesterday. All of the jurors would.

"A. Yes, sir.

"Q. Okay. Now, that oath is verbatim from the law, this: The mandatory penalty of death or imprisonment for life will not affect the juror's deliberation on any issue of fact.

"Now, if you were selected as a juror and I started to give you that oath, could you in good conscience take it and follow it?

"A. I'm not sure that I could.

"Q. Well, how about a yes or a no?

"A. No.

"Q. Okay. You will be excused from serving in this jury."

Section 12.31(b), under which this juror was excluded, provides:

"Prospective jurors shall be informed that a sentence of life imprisonment or death is mandatory on conviction of a capital felony. A prospective juror shall be disqualified from serving as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact."

In Adams v. Texas, supra, the Court restricted the constitutionally permissible scope of Sec. 12.31(b). The Court there stated:

"The State could, consistently with Witherspoon (v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968)) 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. But the use of Sec. 12.31(b) to exclude jurors on broader grounds based on their opinions concerning the death penalty is impermissible."

Applying the restricted scope of Sec. 12.31(b) to the facts in Adams, the Court concluded:

"We repeat that the State may bar from jury service those whose beliefs about capital punishment would lead them to ignore the law or violate their oaths. But in the present case Texas has applied Sec. 12.31(b) to exclude jurors whose only fault was to take their responsibilities with special seriousness or to acknowledge honestly that they might or might not be affected. It does not appear in the record before us that these individuals were so irrevocably opposed to capital punishment as to frustrate the State's legitimate efforts to administer its constitutionally valid death penalty scheme. Accordingly, the Constitution disentitles the State to execute a sentence of death imposed by a jury from which such prospective jurors have been excluded."

The same error as occurred in Adams v. Texas, supra, is evident in the record of this case, as demonstrated in the excerpts set out above.

We next consider the proposition that no reversible error is shown because the State did not exercise all of its peremptory challenges. Chambers v. State, Tex.Cr.App., 568 S.W.2d 313, was a capital murder case in which it was held that a prospective juror was improperly excluded on challenge for cause by the State. After deciding that error was committed, the Court held:

"However, because there is no showing that appellant did not receive a fair and impartial jury, and because the State exercised only 13 of its 15 peremptory challenges, one of which could have been used to remove (the erroneously...