O'Pry v. State

• Decision Date: 20 May 1981
• Docket Number: No. 66144,66144
• Citation: 642 S.W.2d 748
• Parties: Jermiah B. O'PRY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 748

642 S.W.2d 748

Jermiah B. O'PRY, Appellant, v. The STATE of Texas, Appellee.

No. 66144.

Court of Criminal Appeals of Texas En Banc.

May 20, 1981.

On Rehearing Dec. 22, 1982.

Reed Jackson, Fairfield, for appellant.

Robert W. Gage, County Atty., Fairfield, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

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 in light of the recent United States Supreme Court holding in Adams v. Texas, --- U.S. ----, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). We agree and reverse.

In Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the United States Supreme Court said:

"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."

Included in the statutory scheme in the New Penal Code of 1974 for imposition of the death penalty in Texas is 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 holding in Witherspoon was repeatedly found to be "alive and well" in light of this scheme. See, e.g., 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). Prior to Adams v. Texas, supra, this Court consistently held that under this statutory scheme a juror could be excluded under Sec. 12.31(b), supra, independent of a 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); Hovila v. State, 532 S.W.2d 293 (Tex.Cr.App.1975); 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).

However, in Adams v. Texas, supra, the Supreme Court held that under the United States Constitution the State may not 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."

--- U.S. at ----, 100 S.Ct. at 2528, 65 L.Ed.2d at 592. The Supreme Court concluded that the jurors in Adams had been excused under Sec. 12.31(b), supra, in violation of the Sixth and Fourteenth Amendments to the United States Constitution, stating:

"[N]either nervousness, emotional involvement, nor inability to deny or confirm any effect whatsoever is equivalent to an unwillingness or an inability on the part of the jurors to follow the court's instructions and obey their oaths, regardless of their feelings about the death penalty ....

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"[I]n the present case Texas has applied Sec. 12.31(b) to exclude jurors whose only fault was to take their responsibilities with special seriousness or to acknowledge honestly that they might or might not be affected. It does not appear from the record before us that these individuals were so irrevocably opposed to capital punishment as to frustrate the efforts to administer its constitutionally valid death penalty scheme."

--- U.S. at ----, 100 S.Ct. 2529, 65 L.Ed.2d at 593.

The same error which the United States Supreme Court found in Adams also appears in this case. The State moved to exclude venireman Earnest Aldridge because he could not state that his deliberations would remain unaffected by the mandatory penalty of death or imprisonment for life. The relevant portions of his voir dire examination are set out below.

"Q. [PROSECUTOR]: Is there anything about being an ordained minister in the Assembly of God Church that would give you particular difficulty in sitting on a Jury where the death penalty might possibly be assessed?

"A. Not to my knowledge, Mr. Gage. It is not the most comfortable position, but I am not aware of any tenets of faith or organizational structure that would hinder a person to be in that position.

"Q. Then in the proper facts and circumstances, you are in favor of the death penalty? Is that what you're telling me?

"A. Under the circumstances, yes.

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"A. ... I have some very firm convictions that the death penalty is appropriate and would be very--would be acceptable and then whenever I come to me, frankly, as you placed it, you make me say yes or no; I guess I'm going to say, I probably--some of my background would probably come out, Mr. Gage, and I probably would have reservations. Now, I'm not opposed to the death penalty, personally.

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"Q. [DEFENSE COUNSEL]: Now, what we need to know in that regard since you're not opposed to the death penalty in the proper circumstances, would you automatically and let's underline automatically, return a verdict to prevent the imposition of the death penalty?

"A. There were a lot of beautiful scriptures and cliches that I had in my mind--whether I would automatically do it just because of my background efforts and again, I have never been placed in that position so--I still maintain the position that I am in favor of capital punishment. For me to be able to say definitely that I would vote against it--I guess I'm wavering again, aren't I?

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"A. I do have reservations.

"Q. Okay. With that in mind, reservations is not saying that you would automatically return a verdict that would prevent the imposition of the death penalty.

"A. That's true.

"Q. So in effect, you are saying that you would not automatically vote against the death penalty?

"A. That's correct, likewise."

On further questioning, the venireman indicated that he felt the mandatory punishment of death or life imprisonment would affect his deliberations. The State's challenge for cause on this basis was sustained over appellant's objection that the venireman was not disqualified under Witherspoon.

As in Adams, the prospective juror in this case was excluded under Sec. 12.31(b), supra, although his voir dire responses do not indicate that he was irrevocably opposed to capital punishment; this exclusion was therefore improper. As the State concedes, an examination of the record reveals that veniremen James Smith, Wayne Cannon, and Zella Bunch were also improperly excused for cause under Sec. 12.31(b), over appellant's objection, on broader grounds than those permissible under Witherspoon. 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 in this case recognizes that the judgment imposing the death penalty cannot be affirmed in view of the Supreme Court's opinion in Adams v. Texas, supra, and moved the Court in oral argument to affirm the judgment of guilt but to reform the judgment to provide for the only other possible punishment, that is imprisonment for life. The author of this opinion, Judge Roberts, and Judge McCormick would grant the State's motion. However, a majority of the Court would not. See Pierson v. State, 614 S.W.2d 102 (Tex.Cr.App.1980) (On Motion for Rehearing, overruled without written opinion on 4/29/81, McCormick, J. dissent joined by Dally, J. joined in part by Roberts, J.); Evans v. State, 614 S.W.2d 414 (Tex.Cr.App.1980) (Roberts, J. dissent) (On Motion for Rehearing, overruled without written opinion on 4/29/81, McCormick, J. concurrence joined by Dally, J.); Loudres v. State, 614 S.W.2d 407 (Tex.Cr.App.1980) (Roberts, J. dissent) (On Motion for Rehearing overruled without written opinion on 4/29/81, McCormick, J. dissent joined by Dally, J.); Grijalva v. State, 614 S.W.2d 420 (Tex.Cr.App.1980) (Roberts, J. dissent) (On Motion for Rehearing, overruled without written opinion on 4/29/81, Dally, J. dissent).

Accordingly, in light of Adams v. Texas, supra, the judgment is reversed. The decision does not prevent the State from again seeking the death penalty on retrial.

The judgment is reversed and the cause remanded.

Before the Court en banc.

OPINION ON STATE'S AND APPELLANT'S MOTIONS FOR REHEARING

ROBERTS, Judge.

Appellant was indicted for capital murder. The evidence was circumstantial, but the verdict was guilty and the punishment, death.

On original submission, we reversed the conviction because several prospective jurors were excluded in violation of Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). Declining the State's motion that the court reform the judgment to provide a punishment of life imprisonment, we remanded the cause.

Subsequently, however, on June 1, 1981, the Governor commuted appellant's sentence from death to life imprisonment. In a timely motion for rehearing, the State requested that we again consider reformation of the judgment in light of the Governor's action. Appellant also filed a motion for rehearing, arguing that our original opinion was not "mooted" by the Governor's commutation, which he did not seek, and to which he was opposed. In the alternative, appellant asked that we review his remaining grounds of error, particularly the sufficiency of the evidence.

We observe first that our decisions in Turner v. State, 485 S.W.2d 282 (Tex.Cr.App.1972), and Harris v. State, 485 S.W.2d 284 (Tex.Cr.App.1972), dispose of appellant's claim that we are without authority to reform the judgment. In each of those cases, we originally affirmed the trial...