Nethery v. State
| Decision Date | 22 May 1985 |
| Docket Number | No. 68849,68849 |
| Parties | Stephen Ray NETHERY, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Appellant was convicted of capital murder. Upon receiving the jury's affirmative answers to the punishment issues, the court assessed punishment at death. See Art. 37.071, V.A.C.C.P.
Appellant alleges fifty-five grounds of error. We will first address his contentions that venirepersons were erroneously excused.
The trial court sustained the State's challenge for cause to three venirepersons--Williams, Simnacher, and Lee--because each of the three expressed a bias against the minimum punishment for the lesser included offense of murder. See Art. 35.16(b)(3), V.A.C.C.P. Appellant does not dispute the showing of such bias. Rather, he contends that the State should not be permitted to utilize Art. 35.16(b)(3) when the bias is against the minimum range of punishment. He argues that the State never relies upon a minimum punishment for conviction or punishment and, thus, cannot be harmed by such a bias.
The State's interest is in fair and impartial jurors, in accord with our legal system's basic tenet to insure that every defendant is accorded a fair and impartial trial. The State seeks, or should seek, to uphold the integrity of the jury system. Therefore, the State is permitted to challenge a juror who cannot be fair and impartial because he will not consider the full range of punishment. Whether the State later urges the jury to assess the minimum or the maximum is of no moment.
Appellant invites us to overrule settled case law on this issue. We decline the invitation. The State is entitled to jurors who will consider the full range of punishment. Hernandez v. State, 643 S.W.2d 397 (Tex.Cr.App.1983); Chambers v. State, 568 S.W.2d 313 (Tex.Cr.App.1978). No error is presented.
Venireperson Pippi and venireperson Keller were excused upon the State's challenge for cause. Each professed opposition to the death penalty and would vote "no" to the three punishment questions under Art. 37.071(b), V.A.C.C.P., regardless of the evidence, to prevent imposition of the death penalty. Keller was unequivocal in so stating. Pippi initially said that she was opposed to the death penalty in all cases, that she would never impose it, and that she was firm in that belief. Further questioning followed:
Q. ... Now, I take it from what you're telling me that your belief is so strong that you simply could not write yes three times, knowing that the Defendant would get death?
A. Probably not, no.
Q. Okay. I don't want to quarrel with you, Debbie, but we've got to pin it down a little bit more. I hope you understand the seriousness of what we're doing here.
* * *
Q. ... [K]nowing that if you answer yes three times, it's going to mean the death penalty, you just simply could not answer yes three times regardless of what the evidence showed, is that fair?
A. Ummm--I would probably have--no, I don't guess I could.
* * *
Q. And Judge Ryan would have the twelve people who are going to sit as jurors over here, have to take an oath to follow the law and the evidence; and what you're telling us is that you couldn't do that?
A. No, I couldn't.
Q. Because of your beliefs, regardless of what the evidence showed? You knew those three answers mean death and you simply couldn't answer yes regardless of what the evidence showed?
A. That's right.
* * *
Pippi was then questioned by the defense attorney:
Q. At one time you said something about, I'm not sure or I don't know.
A. Well, I wouldn't want to take an oath to be responsible for doing something when I know that I couldn't do it, knowing what the outcome of it may be.
Q. Well, are you saying that you don't believe in the death penalty period, not as far as whether you could impose it or not, but are you saying you don't believe in the death penalty in any given situation?
A. I do not.
Q. You do not.
A. No sir, I don't believe that's up to us to impose that on people.
* * *
Q. ... Are you saying that you would automatically vote no so that the death penalty would not be imposed regardless of what evidence there was in reference to the questions?
A. I would probably, yes; I don't know. I would hope not to be in the situation to begin with.
Q. Well, none of us want to be in that situation, but, unless you tell me that you just automatically vote no, I'm not--I'm not sure that, that you couldn't be qualified. Now, if you tell me you automatically would vote no because you don't believe in the death penalty, then that pretty well rules you out; but if you have reservations about that, then we're at a different matter.
A. I can't say that I wouldn't for sure do it, but I probably would have to vote no to avoid the outcome.
Q. You know, we can--and I'm not trying to argue with you or anything, but you have undoubtedly read of cases where you thought that they were so extremely brutal, perhaps involving a child or something of that nature, where the facts without going in--you can imagine what facts might be involved, are you saying that in absolutely no case, not whether or not you could assess the death penalty, but you don't believe in the death penalty?
A. I do not believe in it, no.
Q. Regardless?
A. Regardless.
Q. And then you would probably, you say, vote no in answer to the questions because regardless of the evidence, is that it?
A. Probably, yes.
Both jurors were properly excused. Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980); Williams v. State, 682 S.W.2d 538 (Tex.Cr.App.1984); Woolls v. State, 665 S.W.2d 455 (Tex.Cr.App.1983).
The grounds of error are overruled.
Appellant challenged five venirepersons on the basis of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). The five venirepersons--Shaffer, Albough, Gann, Alders, and Bush--all stated that they would answer the punishment questions "yes" only if the State proved, beyond a reasonable doubt, that the answers should be "yes"; they would answer "no" if the State did not so prove. There was some confusion about the two stages of a capital murder trial. However, once the procedure was clarified all of the venirepersons said they would vote "no" to the punishment questions if the State failed to prove them beyond a reasonable doubt, and said they would not automatically vote for the death penalty if they found appellant guilty. 1 The grounds of error are overruled.
Appellant's final contention concerning the voir dire is that his challenge for cause of venireperson Stancil should have been sustained because Stancil had previously expressed an opinion about the guilt or innocence of the murderer of the police officer.
Art. 35.16(a)(10), V.A.C.C.P. states that a challenge for cause may be made for the following reason:
That from hearsay, or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as would influence him in his action in finding a verdict. To ascertain whether this cause of challenge exists, the juror shall first be asked whether, in his opinion, the conclusion so established will influence his verdict. If he answers in the affirmative, he shall be discharged without further interrogation by either party or the court. If he answers in the negative, he shall be further examined as to how his conclusion was formed, and the extent to which it will affect his action; and, if it appears to have been formed from reading newspaper accounts, communications, statements or reports or mere rumor or hearsay, and if the juror states that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that he is impartial and will render such verdict, may, in its discretion, admit him as competent to serve in such case. If the court, in its discretion, is not satisfied that he is impartial, the juror shall be discharged;
Stancil said that based upon what he had read he believed someone killed a police officer. Stancil told defense counsel that he had expressed an opinion previously in discussions with some of his policemen friends. He also said that he did not know whether appellant was the one who shot the officer. The court questioned him:
Q. Well, the question was based upon what you read, have you formed an opinion as to the guilt or innocence, without going into what that opinion is?
A. Yeah, I would have to say I've formed an opinion.
Q. Now, based upon that and having formed an opinion, will it, the opinion, influence your verdict in this case?
A. I don't think it would.
Q. Okay. As you sit there right now, and you can return a verdict based upon the evidence and nothing else?
A. I think I could.
During the discussion with the court as to whether or not Stancil should be excused, the prosecutor specifically cited and quoted from Barefoot v. State, 596 S.W.2d 875 (Tex.Cr.App.1980). Barefoot is controlling in the instant case; Stancil said he could base his verdict on the evidence presented and nothing else. He was qualified under Art. 35.16(a)(10). See Barefoot.
The ground of error is overruled.
Prior to the selection of the jury, appellant filed a motion for a change of venue under Art. 31.03, V.A.C.C.P. The State filed affidavits controverting the motion. At the hearing, appellant introduced several newspaper articles and photographs. No witnesses were called by either side. The court overruled the motion.
The applicant seeking a change of venue bears a heavy burden to prove the...
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