Hovila v. State
| Decision Date | 30 April 1975 |
| Docket Number | No. 49396,49396 |
| Citation | 532 S.W.2d 293 |
| Court | Texas Court of Criminal Appeals |
| Parties | William David HOVILA, Appellant, v. The STATE of Texas, Appellee. |
Howard G. Wilson, Dallas, Timothy Ann Sloan, Odessa, for appellant.
Henry Wade, Dist. Atty., and W. T. Westmoreland, Jr., Robert E. Whaley, Steven Tokoly and John Ovard, Asst. Dist. Attys., Dallas, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.
The offense is murder; the punishment, under Article 1257, Vernon's Ann.P.C. 1 and Article 37.071, Vernon's Ann.C.C.P. 2, death.
We are met at the outset with appellant's contention that 'the trial court failed to properly apply the standards of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).'
Witherspoon held 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.'
The Supreme Court reiterated its position in Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969), and again shortly thereafter in Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970), by quoting Witherspoon:
"Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment, no matter what the trial may reveal, it simply cannot be assumed that that is his position."
In Grider v. State, Tex.Cr.App., 468 S.W.2d 393, this Court applied the doctrine set out in Witherspoon, stating:
'It is clear then that the procedure utilized in the case at bar in excusing prospective jurors after an initial expression of 'conscientious scruples' or disclaimer of belief in capital punishment without going further and ascertaining that the prospective juror would automatically vote against the death penalty in any case, regardless of the facts, or consider its imposition in the case irrespective of the evidence, etc., does not square with Witherspoon or the traditional Texas practice.'
See also Ex parte Martin, Tex.Cr.App., 479 S.W.2d 280; Ocker v. State, Tex.Cr.App., 477 S.W.2d 288. Cf. Tezeno v. State, Tex.Cr.App., 484 S.W.2d 374.
Initially we must determine if the test set forth in Witherspoon applies in view of the oath 3 now required of jurors in death penalty cases and under the new procedure set forth in Article 37.071, supra, for determination of punishment in a death penalty case. See also Article 1257, supra, and Section 19.03, V.T.C.A., Penal Code.
While the new statutes provide that the jury shall take an oath that they will not let the penalty involved affect their deliberations and requires them only to answer questions while the judge actually assesses the punishment based on such answers, the fact remains that the jury will know that their answers will determine whether the defendant is to be punished by death or by life imprisonment. To say that the jury's answers would not be affected by their attitude toward the death penalty as a punishment for crime simply because they will not bring forth the ultimate verdict would be to disregard the obvious. We will not engage in such tenuous reasoning.
We hold, therefore, that the Witherspoon test remains the same.
We must next determine whether the requisites of Witherspoon have been met in the case at bar. At the outset of the voir dire of each jury panel, the trial court instructed them on the general principles of criminal law as well as on the new death penalty statute and the jury's role in administering it. He then asked those who felt that they were disqualified for any reason to come forward and present their excuses. Among those who expressed reservations as to their ability to impose the death penalty were:
1. Mrs. T. W. Smith:
'Q May I have your name?
A Mrs. T. W. Smith.
MR. WHALEY (The prosecutor): No. 2, Judge.
Q All right.
A I can't--I don't believe in the death penalty. I feel like I'm disqualified. I don't think I could sit on it.
MR. WILSON (Defense Attorney): No.
THE COURT: You may be excused.'
2. J. R. Chatham:
'Q What is your name?
A Chatham. With a clear conscience I could not make a decision of that magnitude.
3. Dorothy Guttridge:
'THE COURT: Will you state your name, please?
A Dorothy J. Guttridge.
A Right.
MR. SIMMONS (Defense Attorney): I have no questions.
THE COURT: Thank you. You may be excused.'
4. Juanita Miller:
'Q What is your name?
A Juanita Miller.
A I'm afraid my conscience wouldn't let me give the death sentence.
Q You couldn't answer the questions without concerning yourself about the death penalty?
A No, I couldn't.
THE COURT: You may be excused.'
5. Mrs. L. N. D. Wells, Jr.:
'Q Your name, please?
A Mrs. Wells.
A I am unalterably opposed to the death penalty.
Q To such an extent--
A I hate to say it, but it really is true.
Q Don't hate to say it. Thank you for your courtesy in coming up.
If there is any objection to this please let me know.
(Whereupon, Prospective Juror No. 3, Second Panel, Mrs. L. N. D. Wells, Jr., was excused.)'
The cursory examination of these members of the venire was insufficient to meet the test promulgated by the United States Supreme Court in Witherspoon, and applied by this Court in Grider; and this conviction can therefore not stand.
Accordingly, the judgment is reversed and the cause remanded.
ROBERTS, J., concurs in the results for the reasons stated in his dissent in Jurek v. State, 522 S.W.2d 934 (1975).
The majority have ordered this needless reversal on inadequate reasoning. They have misinterpreted Article 37.071, V.A.C.C.P., and have incorrectly determined the applicability of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
Witherspoon, supra, says:
'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.'
The precedure set out in Article 37.071, supra, is mechanical, and provides for a mandatory death penalty upon an affirmative answer to each of the special fact issues submitted under Section (b). The jury neither imposes nor recommends imposition of the death penalty under this statute. In fact, under the provisions of Article 1257, V.A.P.C. (under which appellant was convicted), each juror must state under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact. The majority ignore both the mandatory character of this statute and the oath required of each juror. I must dissent to their reliance upon a presumption of jury misconduct.
I also dissent to the majority's reversal of this conviction because the reasoning followed in their opinion is in conflict with that followed in their disposition of Jurek v. State, 522 S.W.2d 934 (1975). In Jurek the majority found that Article 37.071, supra, provides for a limitation on 'the standardless imposition of the death penalty,' by 'channel(ing) the jury's consideration on punishment,' and 'direct(ing) and guid(ing) their deliberations.' These controls, said the majority, saved this statute from the faults condemned in Furman v. Georgia and Branch v. Texas, 408 U.S. 238, 92 S.Ct. 2726, 32 L.Ed.2d 346. Now, say the majority, After their finding that the controls of Article 37.071 save the scheme from unconstitutionality, they now find it obvious that the controls will be ignored. If the majority insist on being wrong, they should at least strive to be wrong with consistency, and avoid being wrong in a different way each day.
Finally, I must dissent for the reasons stated in my opinion concurring in part and dissenting in part in Jurek v. State, supra. In that opinion I pointed out the defects in Article 37.071, supra, which render it unconstitutional. Under the reasoning therein the judgment herein should likewise be reformed to provide for life imprisonment. The Witherspoon issue upon which the majority stand so ready to reverse would then be moot (Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797; Stephenson v. State, Tex.Cr.App., 494 S.W.2d 900, 910) and the judgment would be affirmed.
For all the reasons stated I dissent to the needless reversal of this case.
While I concur in the action of the majority in overruling the State's motion for rehearing without written opinion, I have concluded that in order to clarify some confusion which exists among the bench and bar as to when a sentence should be pronounced in a death penalty case appellant's first ground of error on original submission should be discussed.
In his first ground of error appellant contends the appeal should be abated because the trial court improperly pronounced sentence prior to the decision of this...
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