Hartfield v. State

• Decision Date: 17 September 1980
• Docket Number: No. 59343,59343
• Citation: 645 S.W.2d 436
• Parties: Jerry HARTFIELD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 436

645 S.W.2d 436

Jerry HARTFIELD, Appellant, v. The STATE of Texas, Appellee.

No. 59343.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 17, 1980.

On Rehearing Jan. 26, 1983.

Rehearing Denied March 1, 1983.

Robert A. Scardino, Jr., Houston, for appellant.

Jack Salyer, Dist. Atty., Bay City, Robert Huttash, State's Atty., and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ROBERTS, Judge.

The appellant was found guilty of capital murder, and his punishment was fixed at death. He complains that a venirewoman was excluded improperly from the jury and that his confession was received improperly.

Section 12.31(b) of our Penal Code requires that:

"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."

The Sixth and Fourteenth Amendments to the United States Constitution are violated if Section 12.31(b) is used to exclude jurors on grounds broader than those established in the Witherspoon line of cases. ¹ Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980); Shippy v. State, 556 S.W.2d 246, 257 (Tex.Cr.App.) (Roberts, J., dissenting), cert. denied, 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 294 (1977).

Adams v. Texas, supra, 448 U.S. at 45, 100 S.Ct. at 2526, teaches that:

"a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The State may insist, however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court."

In the Texas scheme of special issues (V.A.C.C.P., Art. 37.071(b)), this means that a juror may be excluded either because he is not willing to accept that death may be a punishment in certain circumstances or because he is not willing and able to answer the statutory questions impartially, without conscious distortion or bias. Id. at 46, 100 S.Ct. at 2527. Yet a juror is not to be excused merely because his views about the death penalty might influence the manner in which he exercises his discretion within the guidelines permitted him under Texas law. Id. at 46, 100 S.Ct. at 2527. Section 12.31(b) may not be used to exclude jurors whose deliberations would be affected only by greater seriousness and gravity or emotional involvement, or who cannot state positively whether their deliberations would be "affected" in any way. Id. at 49-50, 100 S.Ct. at 2528-2529.

"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."

Id. at 50, 100 S.Ct. at 2529.

The latter passage from Adams v. Texas, which we have quoted above, well describes Venirewoman Hlozek in this case. Her answers to about 75 questions from the court and counsel established three things: she would not vote automatically against the imposition of capital punishment; ² her answers to the special issues at the punishment stage of the trial would be based on the evidence; and she could not promise that she would be unaffected by her knowledge of the possible penalty.

"Q * * * The question is: Would this knowledge affect your deliberations on any issue of fact presented to you by the Court?

"A It would.

"Q Ma'am?

"A It would.

"Q That is what you said a while ago. Your answer is 'yes'?

"A It would have to be.

"Q Let me try to make sure you understand the question. [Explanation of sentencing procedure omitted.]

"I will ask you again: With this knowledge that you now have that we have the mandatory penalty in Texas of life imprisonment or death, would this knowledge affect your deliberations on any issues of fact?

"A Yes. It would.

* * *

* * *

"Q * * * Well, one of these things is going to happen, and it depends on how you answer these two questions.

"If you answer them both yes, then the Judge is going to sentence him to death--if you answer them both yes.

"If you answer either one of them no, the Judge sentences him to life in the penitentiary.

"That is the way it works. Do you understand the procedure now?

"A Yes.

"Q Now, what the prosecutor is asking you is this:

"Can you answer these questions as the law says you should and that is by the evidence that is presented before you, and not have the end result of these questions affect the way you answer them? See?

"A No.

"Q You would answer one of them so that you wouldn't give the death penalty?...that he wouldn't get the death penalty?

"See, that is what we are trying to find out.

"If you were sitting in a murder case where it was a bad murder case, like the one we talked about where you could consider the death penalty--that kind of murder, and you came down to the punishment stage and you had heard evidence that he meant to kill, would you answer that yes or no?

"A That one I would have to answer yes.

"Q You would have to answer it yes?

"And you came down and you had to decide whether or not he would be a continuing threat to society and would probably commit violent acts in the future and you heard evidence that he would and he has, now, how would you answer that?...yes or no?

"A Yes, I guess.

"Q You would answer it yes?

"A Yes.

"Q So you would answer your questions based on the evidence, then?

"A Yes.

"Q You wouldn't answer the second question 'no' to avoid giving the death penalty in that case?

"A Not if it was a real bad murder.

* * *

* * *

"Q Are you saying, Ma'am, that your knowledge that judgment of death or life working out there, as he put it, would not affect your answers to those two questions?

"A Yes, it would.

* * *

* * *

"THE COURT: * * *

"Now, after all of that, then what they are asking you is: Would the knowledge, your knowing in your own mind that how you answer those two questions is going to affect what I do, is that going to cause you any trouble in answering those two questions?

"MRS. HLOZEK: Yes, it would, knowing what I know. I mean--

"THE COURT: ...knowing that your answers to the two questions would have a bearing on what I do?

"MRS. HLOZEK: Yes. It would.

"THE COURT: So then the question is:

"Would that affect you in your making a decision as to how to answer the questions?

"MRS. HLOZEK: Yes, it would.

* * *

* * *

"THE COURT: * * *

"Now, will you answer those questions based upon the evidence without regard to what I have to do?

"MRS. HLOZEK: I don't believe so.

* * *

* * *

"Q One of the laws is that we must have jurors that can answer those questions based on the evidence.

"In fact, the law says the Judge must make each one take a solemn oath that that is just what they will do: Answer these questions--these two questions based on the evidence and nothing else in every death penalty case that is ever tried in this state. This is the way that it's got to be done and we are trying to find out what you would do.

"Would you answer these questions based on the evidence?

"A Yes.

"Q Okay. Would you allow the effect of your answers--would you allow the result of your answers to affect the way you would answer them?

"A Yes.

"Q You would?

"A Yes.

"Q Now, that is where we are having problems.

* * *

* * *

"THE COURT: * * *

"Would you answer both of those questions in any case--not this case--but in any other case that you were sitting on, would you answer both of those questions based solely upon what you heard and see as evidence or testimony and nothing else, and regardless of what you thought or knew I as a judge would have to do?

"MRS. HLOZEK: It would still affect the way I feel on what you asked me.

"THE COURT: Well, we understand that, but would you go ahead and do it anyway, or would you not do it anyway?

* * *

* * *

"I don't know how to put it any other way--but you are just not going to do it?

"MRS. HLOZEK: If he had done something bad enough I guess I would.

* * *

* * *

"By Mr. Salyer:

"Q Can you state to this Court under oath that the mandatory penalty of death or imprisonment for life will not affect your deliberations on any issue of fact?

"A I guess I can't answer that because it's confusing.

"It would affect the way I--

"Q Well, that is your answer, if it would.

"Well, can you state under oath that it would not?

"A No.

"MR. SALYER: Your Honor, we submit under the statutory definition--

"THE COURT: I will sustain the challenge and you may have your exception.

"MR. SCARDINO: We make an exception, Your Honor, to the Court's ruling.

"THE COURT: Thank you, Mrs. Hlozek."

The burden of these answers (not all of which were perfectly clear) was that the venirewoman would follow the law, that she would base her verdict on the evidence, that she could answer Yes to the special issues, but that her answers might be affected by her knowledge of the possible penalty. The application of Section 12.31(b) to excuse her was a violation of the Sixth and Fourteenth Amendments. Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). Even one such violation means the death penalty may not be...