Mead v. State

• Decision Date: 12 January 1983
• Docket Number: No. 68025,68025
• Citation: 645 S.W.2d 279
• Parties: Jimmy Loyd MEAD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 279

645 S.W.2d 279

Jimmy Loyd MEAD, Appellant, v. The STATE of Texas, Appellee.

No. 68025.

Court of Criminal Appeals of Texas,

En Banc.

Jan. 12, 1983.

Rehearing Denied Feb. 16, 1983.

Allan K. Butcher and Jeff Kearney, Fort Worth, for appellant.

Tim Curry, Dist. Atty., and C. Chris Marshall, Howard Borg and J. Mike Worley, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION

TEAGUE, Judge.

I. INTRODUCTION

Jimmy Loyd Mead, appellant, appeals his conviction for committing capital murder. After the jury found appellant guilty and answered in the affirmative the special issues submitted at the punishment stage of the trial, see Art. 37.071, V.A.C.C.P., the trial court assessed appellant's punishment at death.

II. APPELLANT'S CONTENTIONS ON APPEAL

Appellant presents in his appeal forty-five grounds of error; seventeen of which concern the selection of the jury in this cause. Because we have determined that a venireperson, Arturo Cabriales Espindola, was improperly excused by the trial court, we will only discuss appellant's ground of error number eight, which deals with the trial court's exclusion of Espindola. ¹ First, however, we will discuss some past decisions of the Supreme Court of the United States, which have discussed the imposition of the death sentence.

III. THIS COURT IS BOUND BY THE DECISIONS OF THE SUPREME COURT

This Court, by virtue of Article VI of the Constitution of the United States of America, is bound by the decisions of the Supreme Court of the United States. The Supreme Court has decreed that the death penalty cannot be carried out if even one prospective juror has been excused on a challenge for cause by the State, when the challenge is based solely on that venireperson's opposition to the death penalty, unless that opposition to the death penalty results in the venireperson's inability to follow the law. See Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976); Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970); Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969); Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); Durrough v. State, 620 S.W.2d 134 (Tex.Cr.App.1981); Pierson v. State, 614 S.W.2d 102 (Tex.Cr.App.1980).

IV. WITHERSPOON V. ILLINOIS

In Witherspoon v. Illinois, supra, the Supreme Court held that a prospective juror may not be excluded by the trial court for cause unless that person makes it absolutely and unmistakably clear that 1) he would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before him, or 2) that the person's attitude toward the death penalty would prevent him from making an impartial decision as to the defendant's guilt. Thus, as a result of Witherspoon, "a sentence of death cannot be 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." Witherspoon v. Illinois, 391 U.S. at 522, 88 S.Ct. at 1777, 20 L.Ed.2d, at 784-785.

V. BRANCH V. TEXAS

AND THE NEW TEXAS DEATH PENALTY STATUTES

Subsequent to the Supreme Court's decision of Witherspoon v. Illinois, supra, that Court, in Branch v. Texas, decided with Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), declared unconstitutional this State's system for imposing capital punishment. As a result of Furman, the Legislature of this State enacted new legislation relating to capital punishment. See Article 1257 of the 1925 Penal Code, as amended, ² and Art. 37.071, supra. V.T.C.A., Penal Code, Sec. 19.03, of the present Penal Code of this State, ³ is substantially similar to Art. 1257, supra. Sec. 19.03 limits capital homicides to intentional and knowing murders committed in only five situations. After Furman, the legislature of this State also enacted a new capital-sentencing procedure. See Art. 37.071, supra. Although in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), the Supreme Court was unable to agree upon an opinion, seven members of the Court did agree that the imposition of the death penalty for the crime of murder under the Texas statutes did not violate the prohibition against the infliction of cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution. For further discussion on the subject of past and present Texas law governing capital cases and the sentencing procedures involved in the imposition of the death sentence, we will refer the reader to Furman v. Georgia, supra, and Jurek v. Texas, supra.

However, we will point out that one of the most significant changes in a capital case that the new legislation brought about, as to the imposition of the death sentence is that the jury no longer assesses the death sentence, but instead makes objective findings of fact as to two or three special issues or questions submitted to it by the trial court. If the submitted questions are all answered in the affirmative, then the trial court, not the jury, assesses death. See Art. 37.071, supra. Also see Jurek v. Texas, supra.

VI. JURY SELECTION IN THIS CAUSE OCCURRED PRIOR TO ADAMS V. TEXAS

Another decision of the Supreme Court that has had great impact upon the capital sentencing procedures of a capital case in Texas is Adams v. Texas, supra. We observe that jury selection in this cause occurred prior to the Supreme Court's decision of Adams v. Texas, supra. However, as previously noted, we are bound by that decision. The Supreme Court in Adams interpreted its decision of Witherspoon v. Illinois, supra, as such decision was applicable to a Texas statute, see V.T.C.A., Penal Code, Sec. 12.31(b), ⁴ which statute disqualifies a prospective juror who is unwilling to swear that the mandatory penalty of death or life imprisonment for the offense of capital murder will not affect that person's deliberations on factual issues in the case. In Adams, the Supreme Court held that Sec. 12.31(b) stated a disqualification standard impermissibly broader than Witherspoon permitted and, contrary to past decisions of this Court, see, for example, Bodde v. State, 568 S.W.2d 344, 348 (Tex.Cr.App.1978), held that Sec. 12.31(b) may not be used as a basis for disqualification independent of Witherspoon. Thus, a prospective juror may not be disqualified solely pursuant to Sec. 12.31(b), but his answers to questions asked concerning how the death penalty might affect his serving as a juror must be viewed in a light dependent upon Witherspoon.

VII. NOT ALL PERSONS ARE QUALIFIED TO SERVE AS JURORS IN A DEATH PENALTY CASE

We pause to point out that the above does not mean that a prospective juror may never disqualify from serving as a juror in a capital case. We believe that the above decisions of the Supreme Court stand for the proposition that a prospective juror in a capital case is not subject to a challenge for cause by the prosecution unless that person's views reflect that regardless of what evidence may be presented by the State, the prospective juror, nevertheless, will vote "No" to at least one of the submitted special issues, or will distort the admitted evidence in such fashion as to prevent him from adhering to the applicable law governing the case; be it at the guilt or the punishment stages of the trial. Compare Lackey v. State, 638 S.W.2d 439 (Tex.Cr.App.1982) (Appellant's Motion for Rehearing); Moore v. Estelle, 670 F.2d 56 (5th Cir.1982). Also see Porter v. State, 623 S.W.2d 374 (Tex.Cr.App.1981); Lockett v. Ohio, supra; Granviel v. Estelle, 655 F.2d 673 (5th Cir.1981). We find that the Supreme Court, when it pointedly stated the following in Adams v. State, supra, has for the present time placed the perimeter upon when a prospective juror may not be excused because of his views toward the death penalty:

Nor in our view would the Constitution permit the exclusion of jurors from the penalty phase of a Texas [capital] 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. .

VIII. DID THE TRIAL COURT ERR IN EXCUSING VENIREPERSON ESPINDOLA?

With the above backdrop in mind, we will now direct our attention to the issue at bar: Did the trial court err in excusing venireperson Espindola after the State challenged the juror because of his beliefs regarding the death penalty? The record reflects that Espindola, by the initial responses he gave to questions asked by the prosecuting attorney during voir dire examination, which responses indicated Espindola's views of the death penalty and the stance he would take in answering the special issues, appears, at that point in time, to have been disqualified from serving as a juror in this cause. However, the record amply demonstrates that when appellant's attorney subsequently examined Espindola, the venireperson stated, inter alia, that he could listen to the evidence and answer the special issues or questions; that he would render a true verdict according to the law and the evidence; and that he would not answer the questions "untruthfully". The record further reflects the following:

Q: Would you, simply because you knew what the effect of your answers would be, simply for that reason would you deliberately answer those questions untruthful just because you knew what the effect of your answers would be?

A: I said before that I wouldn't swear untruthfully.

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