Ortega v. State
| Decision Date | 10 November 1970 |
| Docket Number | No. 43084,43084 |
| Citation | 462 S.W.2d 296 |
| Parties | Melchor ORTEGA, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Charles A. Tucker, Marvin O. Teague, Houston, for appellant.
Carol S. Vance, Dist. Atty., James C. Brough and Erwin G. Ernst, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.
The offense is rape by force; the punishment, death.
Prosecutrix, while asleep in bed with her husband and three year old daughter, was awakened by her husband's remark, 'Oh my God, no.' She then saw a man, whom she positively identified as appellant, standing near the bed. He commanded prosecutrix's husband to turn his face to the wall, and brandished a knife with a hooked blade at the husband, with vile threats that he would kill the husband and the child. Appellant forced prosecutrix to commit an act of oral sodomy upon him and allow him to commit acts of intercourse with her, both rectally and vaginally. All this occurred in the presence of her husband and child.
Appellant's first three grounds of error relate to the manner in which the court excused certain veniremen because of their assertion that in no case, regardless of the facts, could they vote to impose the death penalty. We have examined the testimony of each such venireman, using Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, as a window through which to view their commitments against death as a proper punishment in a rape case. The State and the court questioned each venireman and venirewoman carefully in an effort to trace the language found in Witherspoon. We quote from the examination of each venireman so excused. Venireman Thomas, after being questioned thoroughly, answered as follows:
Q. And if the Judge told you that it also carried any number of years in excess of five, could you consider that?
A. Yes.
Q. And if the Judge told you you could in fact impose life imprisonment, could you consider that?
A. Yes.
Q. And if the Court told you one of the possible punishments was by death, could you consider that?
A. For just rape?
Q. Yes.
A. No.
Appellant's counsel was unable to shake Mr. Thomas from his view.
Venireman Hurd answered the Court as follows:
Q. You do not feel there is any case where you as a juror would or could ever impose death under any circumstances?
A. No.
While being questioned, Venirewoman Wright answered as follows:
Q. You can't think of any set of facts and circumstances which would render proper such a penalty in your personal opinion?
A. No.
She gave the Judge substantially the same answers.
Venireman Burchfield answered as follows:
Q. Did I understand by your answers to his questions that in any case where the offense of rape were involved that you, irrespective of what the facts in a case might be and irrespective of how convinced you might be of the guilt of a person charged with such offense, that you automatically would vote against the death penalty?
A. Yes, sir, I would.
Q. You just could not and would not? Would there be any facts where you could consider that to be a proper punishment.
A. No, sir.
Venirewoman Le Blanc, after full interrogation, answered:
Q. There just are no facts where you could consider imposing death as a punishment for one you had found guilty of the offense of forcible rape?
A. No. I get touchy about death penalties.
A. I do not believe in the death penalty under any circumstances.
Venireman Mosley answered in part as follows:
Q. And as a juror, would you in any case that you felt the facts were extremely bad in the case, would your conscience permit you to assess the penalty of death?
A. No, sir.
Q. Under no circumstances?
A. No, sir.
Q. Then do I understand in your thinking that you would automatically exclude consideration of the punishment of death for anyone you had found guilty of rape as a juror?
A. Yes, sir.
Venirewoman Nolan, when being questioned as to proper punishment in a forcible rape case, answered as follows:
Q. Would you automatically exclude consideration of the death penalty as a proper punishment?
A. Yes.
Venireman Osterman answered as follows:
Q. I will ask you if you have any conscientious scruples against the assessment of death as a proper punishment in a rape case where you thought the facts called for it?
A. Sir, I couldn't do it if it was left up to me. I could not--capital punishment, I could not.
Q. Do I take it fairly from your answer that as a member of a twelve-man jury you could not individually think of any set of facts and circumstances which will render it possible for you personally to return such a verdict?
A. No, sir, I could not.
Q. Does that mean that in all rape cases no matter what the facts or circumstances you would automatically exclude consideration of the death penalty and vote against it?
A. Yes, sir, In any case.
Venireman Bloomquist answered as follows:
Q. Mr. Bloomquist, as the Court would understand, you do not feel there could be any facts and circumstances surrounding the commission of the offense of forcible rape which to your mind would warrant and justify and render it proper to impose death as a punishment even though the law authorized it, sir? Is that your position.
A. That's my position, yes.
Q. You would, as you have advised Counsel, automatically exclude consideration of that penalty irrespective of whether you found a person guilty and irrespective of what you found the facts and circumstances to be?
A. Yes, sir.
Venireman Britt answered as follows:
Q. I take it from your answer you cannot conceive of any set of facts and circumstances which would render it possible for you personally to render death as a verdict in a rape case.
A. Yes, sir.
Venireman Stelly answered as follows:
Q. I take it from your answer you could not conceive of any set of facts and circumstances in a rape case that would render it possible for you personally to return a death verdict?
A. I don't feel I could, sir.
Q. Does this mean you would automatically vote against and exclude consideration of the death penalty in a rape case if you were sitting as a juror considering punishment of one you had already found guilty?
A. My personal feeling, yes. I don't think I could vote for the death penalty.
Q. You qualify that. Could you or could you not?
A. I could not.
Venireman Sanders answered as follows:
Q. Does your answer mean that you cannot conceive of any set of facts and circumstances which to your mind would warrant, justify and render it proper for you to participate in such a verdict?
A. I'm sorry. I can't see a death penalty for anything.
Q. Just so that we can all be sure now and everything is proper in the record, I want to ask you one more question. Does this mean you would automatically exclude consideration of the death penalty in any rape case in which you were a juror no matter what the facts were?
A. Yes.
Venireman Young answered as follows:
A. I wouldn't give the death penalty.
Q. Does this mean that you as a member of a twelve-man jury--
A. I wouldn't.
Q.--you would automatically exclude consideration of the death penalty in any rape case, is that correct?
A. Yes, sir.
He answered the Court in the same manner.
Venireman Kent answered as follows:
Q. My question to you is do you have any conscientious scruples against the assessment of death as a proper punishment for the crime of rape where you think the facts call for it?
A. I don't believe in the death penalty.
Q. Under any circumstances?
A. Under any circumstances.
Q. I take it then you would automatically exclude consideration of the death penalty no matter what the facts were even though you had already found this individual guilty?
A. I would.
Venireman Burton answered as follows:
Q. My question to you is do you have any conscientious scruples against the assessment of death as a proper punishment for the crime of rape if you think the facts call for it?
A. Yes, I do.
Q. Do I take it from your answer you would automatically exclude consideration of the death penalty as a punishment for the crime of rape no matter what the facts were?
A. Yes sir, I would.
Venireman Lovell answered as follows:
Q. Does this mean you could never think of any facts and circumstances in a rape case, not a murder case or any other kind of capital crime, but a rape case that would justify you to your mind participating as a member of a jury bringing in a death verdict in that rape case?
A. No.
Venireman Bohac answered as follows:
Q. Does this mean you would automatically exclude consideration of the death penalty in any rape case no matter what the facts were when you had already found somebody guilty of that ofense?
A. I think I would.
Q. If I don't ask you, the Court will. Without qualification you either do or don't. Are you sure you would exclude consideration of death? You wouldn't consider it at all under any facts or circumstances?
A. No.
Venireman Collier, when being questioned as to death as a proper punishment for rape, answered:
A. I could not return a death verdict under any circumstances.
Venirewoman Hartsell, after much interrogation answered as follows:
Q. I need to know what your general philosophy and feeling is, your general principles and what I'm interested in at this time is can you conceive of a set of facts and circumstances which would justify you personally returning a verdict of death in a rape case where nobody was killed, no children are involved. It's on an adult woman.
A. No.
Q. Would you automatically exclude consideration of death as a punishment in a rape case?
A. Yes.
Venireman Sappell answered as follows:
A. I do not believe in capital punishment.
Q. You don't believe in it at all?
A. No.
Q. Does this mean you would automatically exclude death as a punishment for the crime of rape no matter what the facts are?
A. That's right.
Venireman McCay answered as follows:
A. You mean do I believe in the death...
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