Loudres v. State

• Decision Date: 10 September 1980
• Docket Number: No. 63676,63676
• Citation: 614 S.W.2d 407
• Parties: Woodie LOUDRES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 407

614 S.W.2d 407

Woodie LOUDRES, Appellant, v. The STATE of Texas, Appellee.

No. 63676.

Court of Criminal Appeals of Texas, En Banc.

Sept. 10, 1980.

Rehearing Denied April 29, 1981.

Frank Coffey and Marvin D. Snodgrass, Fort Worth, for appellant.

Tim Curry, Dist. Atty., William Kane, Jack Strickland and Charles Roach, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

C. Chris Marshall, Asst. Dist. Atty., Fort Worth, for the State on rehearing only.

Before the court en banc.

OPINION

DALLY, Judge.

This is an appeal from a conviction for capital murder. The punishment is death.

The appellant contends that certain prospective jurors were improperly excused. We agree: the rationale of the decisions of the Supreme Court in Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980) and Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), requires the reversal of the judgment in this case.

In Witherspoon v. Illinois, supra, the United States Supreme Court stated:

"... 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."

391 U.S. at 522, 88 S.Ct. at 1776. Accord, Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969); Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Ocker v. State, 477 S.W.2d 288 (Tex.Cr.App.1972); Grider v. State, 468 S.W.2d 393 (Tex.Cr.App.1971); Ex parte Martin, 479 S.W.2d 280 (Tex.Cr.App.1972).

The New Penal Code of 1974 provides a statutory scheme for imposition of the death penalty which includes the requirement that each juror take an oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact. V.T.C.A. Penal Code, Sec. 12.31(b). The jurors' answers to certain factual questions determine whether a defendant found guilty of capital murder will be sentenced to death or to imprisonment for life. Art. 37.071, V.A.C.C.P. This Court has repeatedly found the holding in Witherspoon remains alive and well in light of this procedure. Hovila v. State, 532 S.W.2d 293 (Tex.Cr.App.1975); Livingston v. State, 542 S.W.2d 655 (Tex.Cr.App.1976), cert. denied 431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 250 (1977); Brock v. State, 556 S.W.2d 309 (Tex.Cr.App.1977), cert. denied 434 U.S. 1002, 98 S.Ct. 647, 54 L.Ed.2d 498 (1977).

This Court, however in construing the statutory scheme enacted by the Texas Legislature, determined that a prospective juror might be disqualified from serving in a capital trial under Sec. 12.31(b) independent from any determination that his exclusion was consistent with Witherspoon. See, e. g., Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.1976), cert. denied 431 U.S. 949, 98 S.Ct. 2666, 53 L.Ed.2d 266 (1977); Boulware v. State, 542 S.W.2d 677 (Tex.Cr.App.1976), cert. denied 430 U.S. 959, 97 S.Ct. 1610, 51 L.Ed.2d 811 (1977); Burns v. State, 556 S.W.2d 270 (Tex.Cr.App.1977), cert. denied 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 294 (1977); Freeman v. State, 556 S.W.2d 287 (Tex.Cr.App.1977), cert. denied 434 U.S. 1088, 98 S.Ct. 1284, 55 L.Ed.2d 794 (1978); Hughes v. State, 562 S.W.2d 857 (Tex.Cr.App.1978), cert. denied 439 U.S. 903, 99 S.Ct. 268, 58 L.Ed.2d 250 (1978); Hughes v. State, 563 S.W.2d 581 (Tex.Cr.App.1978), cert. denied 440 U.S. 950, 99 S.Ct. 1432, 59 L.Ed.2d 640 (1979); Bodde v. State, 568 S.W.2d 344 (Tex.Cr.App.1978), cert. denied 440 U.S. 968, 99 S.Ct. 1520, 59 L.Ed.2d 784 (1979); Adams v. State, 577 S.W.2d 717 (Tex.Cr.App.1979), rev'd --- U.S. ----, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980).

However, in the recent case of Adams v. Texas, supra, the majority of the United States Supreme Court reversed Adams v. State, supra, and rejected the contention that Sec. 12.31(b), supra, provides a basis for excluding a prospective juror independent of Witherspoon considerations. The Court held that the United States Constitution does not permit the State to exclude a prospective juror under Sec. 12.31(b), supra, on grounds which exceed the limitations set out in Witherspoon :

"The State could, consistently with Witherspoon, 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."

448 U.S. 48-49, 100 S.Ct. 2528.

Although a majority of this Court might well agree that Mr. Justice Rehnquist, in his dissenting opinion, states the proper view that Texas should be permitted under the Constitution to require each juror to swear that he or she will answer the punishment questions in a capital case without regard to their cumulative consequences, we must adhere to and implement the majority opinion, which is now the law.

In the present case, the appellant argues that the trial court erred in requiring the appellant to confine his voir dire examination of certain prospective jurors, who were excused for cause, to questions relating only to Sec. 12.31(b), supra, and not to Witherspoon.

The State moved to exclude venirewoman Betty Workman under Sec. 12.31(b), supra, because she could not state that her deliberations would remain unaffected by the mandatory penalty of death or imprisonment for life. The defense counsel, in his examination, asked:

"Q. ... Are you telling me that you would never, under any circumstances, take any affirmative action which would result in the imposition of the death penalty in any case, regardless of the facts?

"MR. STRICKLAND (PROSECUTOR): Your Honor, we would have to object to that question, of course, because it is outside the scope of this limited voir dire. Our inquiry should be limited to 12.31.

"THE COURT: I'll sustain the objection."

The defense counsel was not permitted to elicit an answer to this question from venirewoman Workman in order to perfect his bill of exceptions. Venirewoman Workman was excused for cause under Sec. 12.31(b), supra.

Similarly, the State moved to exclude venirewoman Beatrice Grant on Sec. 12.31(b), supra, grounds because of her inability to follow the required oath. The defense attorney objected that her exclusion was not required under Witherspoon. The defense attorney asked venirewoman Grant:

"Q. ... would you automatically answer the special issues ... posed to you by the Court's instructions in the negative in any case regardless of the facts?

"MR. STRICKLAND (PROSECUTOR): Your Honor, we have to object.

"Once again Mr. Snodgrass (Defense counsel) is confusing Witherspoon with 12.31. That's a Witherspoon question, and the voir dire, as I understand it, is limited to 12.31 based upon the State's challenge on that basis.

"THE COURT: Mr. Strickland, the Court is limiting the interrogation to 12.31; however, that particular question ... could be considered to be encompassed by 12.31, so I'll overrule the objection."

The trial judge, in subsequently excusing venirewoman Grant for cause, clearly indicated that he was doing so only on Sec. 12.31(b), supra, grounds:

"THE COURT: ....

"Miss Grant, it's my impression both from the attorneys' questions and those that I've asked you and your answers to them that you would try very hard to answer any questions based on the evidence that you hear and by that alone.

"I do not believe, however, that that is in compliance with Article 12.31 of the Penal Code which says that you have to state under oath before you start that the mandatory penalty will not affect your deliberations on any issue of fact. I can understand how you feel and it's not all that unusual.

"At the same time I think that the qualification in that oath is a rather severe one and requires an absolute yes instead of probably or maybe or, 'I would try.'

"I do understand what you're telling me, so I'm going to sustain the State's challenge under 12.31."

The record reveals that the defense voir dire examination of prospective jurors Karl Kroeger, Betty Kuykendall, and Frances Brownlee, was similarly limited. These prospective jurors and Arthur C. Lawing were excused for cause solely on the ground they were disqualified under Sec. 12.31(b), supra. The death penalty may not be imposed if even one prospective juror has been excluded in violation of Witherspoon. Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976).

The State argues that the trial judge did not abuse his discretion when he restricted the voir dire examination of these prospective jurors to questions relating to the State's challenge under Sec. 12.31(b), supra. Quite understandably, both the State and the trial court were apparently relying upon the previous decisions holding that a juror could be properly excused for cause under Sec. 12.31(b), supra, independent of the requirements of Witherspoon. E. g. Moore v. State, supra, Boulware v. State, supra.

However, because these prospective jurors were excused solely under Sec. 12.31(b), supra, and inquiry of whether their exclusion comported with Witherspoon was foreclosed, we must in light of Adams v. Texas, supra, reverse the judgment. Our decision does not preclude the State from again seeking the death penalty on retrial.

The judgment is reversed and the cause remanded.

PHILLIPS, Judge, concurring.

I wholeheartedly agree that this cause must be reversed in light of Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). I write this concurring opinion in order to make two points.

First, I must emphatically disassociate myself from the majority opinion's implicit endorsement of Mr. Justice Rehnquist's dissent in Adams. As a factual matter, § 12.31(b) of our penal code...