Ransom v. State
| Decision Date | 15 June 1994 |
| Docket Number | No. 71633,71633 |
| Citation | 920 S.W.2d 288 |
| Parties | Cedric Lamont RANSOM, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Appellant was convicted of capital murder for a murder committed during the course of a robbery. Tex.Penal Code Ann. § 19.03(a)(2). The jury returned affirmative findings to the two special issues submitted to it and appellant was sentenced to death. Direct appeal to this Court is automatic. Tex.Code Crim.Proc.Ann. art. 37.071(h).
Appellant raises sixteen points of error, but because he does not challenge the sufficiency of the evidence we dispense with a recitation of the facts. We will reverse.
In his first point of error appellant claims the trial court erred in granting the State's challenge for cause against venireman Harold Freeman. The trial court granted the State's challenge on the ground that Freeman evidenced a prejudice or bias against the law as set forth in Marras v. State, 741 S.W.2d 395 (Tex.Crim.App.1987). Appellant relies on Garrett v. State, 851 S.W.2d 853, 860 (Tex.Crim.App.1993), in which we overruled Marras, and held that it is reversible error for the trial court to grant a challenge for cause based upon a venireperson's statement that he "would require more evidence than the legal minimum in order to answer" the special issue on future dangerousness in the affirmative. 1
During voir dire, in language indistinguishable from that at issue in Garrett, 2 Freeman asserted that he could never affirmatively answer the special issue on future dangerousness based solely on the evidence supporting the capital murder conviction. He stated that it would take more than the evidence supporting the defendant's guilt for capital murder to persuade him beyond a reasonable doubt that the defendant was a continuing danger to society.
The State concedes that under Garrett the trial court committed reversible error but presents four arguments which we will address separately. First, the State urges that we reconsider and overrule our holding in Garrett. Remaining convinced of the soundness of our reasoning in Garrett, we decline the invitation to overrule it. See Sigler v. State, 865 S.W.2d 957, 961 (Tex.Crim.App.1993) (declining to overrule Garrett ).
Secondly, the State urges that we apply Garrett only prospectively. We have addressed and rejected this argument previously. Id. ().
The State also argues that Freeman's exclusion was harmless in view of the fact that the State did not exercise all of its peremptory challenges, and therefore could have used one of its remaining peremptory strikes to exclude Freeman. The State concedes that in Garrett we held the error was reversible "notwithstanding that the State may have had peremptory challenges remaining at the conclusion of voir dire", but argues that in so holding we relied upon Grijalva v. State, 614 S.W.2d 420, 423 (Tex.Crim.App.1981), the rationale for which is inapplicable to the instant case.
In Grijalva, we held that peremptory challenges remaining at the end of the voir dire would not remove the harm of an erroneous grant of a State's challenge for cause. Grijalva, 614 S.W.2d at 425; see also Bell v. State, 724 S.W.2d 780, 795 (Tex.Crim.App.1986) ( Grijalva ). We based this holding on our observation that the State would otherwise receive three unfair advantages over the defendant:
First, to allow the State to exercise its peremptory challenge in a capital case after conclusion of voir dire examination gives it the benefit of making its judgments with a perspective of the entire panel, a perspective not given the defendant.
Second, giving such a privilege to the State allows it to withhold its strikes until after the defendant has exercised his strikes, even though Art. 35.13, supra, explicitly states that the qualified venireman shall be passed first to the state and then to the defendant. The statute would give the benefit to the defendant in instances where both sides might desire to strike the same venireman. Allowing the State to wait until the end of the selection process would transfer that benefit to the State.
Third, to allow retrospective exercise of peremptory challenges on appeal gives the State even greater advantages. When used on appeal the State effectively postpones exercise of its strikes until error has been found, and then with the benefit of the ruling of this Court as its guide the State can maximize the accuracy of the strikes not used at trial. In actuality this Court not only counsels the State, but actually exercises the strike for the State. In effect a peremptory strike against a prospective juror is transformed into a peremptory strike against a ground of error.
Grijalva, 614 S.W.2d at 424-25 (emphasis in original).
In the instant case, as in a non-capital case, all of the peremptory strikes by both parties were made after the completion of individual voir dire of all the venirepersons. The State argues that it would "gain no unfair advantage in this case from a retroactive strike because both sides exercised their strikes in view of the entire panel." This argument is based only upon the first of the three basis for our holding in Grijalva. The second and third advantages realized by the State, as set forth in Grijalva, are applicable here. Even under the method of selection employed in this case, the State would have the benefit of a "retroactive peremptory strike" after the defendant has made his strike or challenge rather than prior thereto as required by Tex.Code Crim.Proc.Ann. art. 35.13, and also after error has been found. Accordingly, Garrett and the underlying rationale set forth in Grijalva are applicable to the facts of this case.
Finally, the State posits that because a challenge against Freeman could be upheld on other grounds, the trial court's ruling should be sustained. The State points to Freeman's testimony that he was against the death penalty as sufficient to have justified a challenge for cause, citing Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). Assuming, arguendo, that the State had challenged Freeman on the basis of Wainwright v. Witt, the trial court's excusal of Freeman would nevertheless be erroneous.
A venireperson's views about the death penalty will not subject him to a challenge for cause unless those views "would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath." Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980); see also Cuevas v. State, 641 S.W.2d 558, 563 (Tex.Crim.App.1982); Durrough v. State, 620 S.W.2d 134, 142 (Tex.Crim.App.1981). When initially questioned by the State, Freeman stated that he was "against the death penalty" and expressed that he could never "vote for a death penalty." 3 However, when he was specifically asked whether he could follow the law and answer special issues, Freeman stated that his feelings about the death penalty would have no bearing on his role in answering the issues. Freeman never wavered in maintaining that his views about the death penalty would not affect his performance as a juror in answering the issues, even knowing what the ultimate outcome would be. Therefore, while he stated initially that he was against the death penalty and could not vote for it, once he took into account the proper role of the jury in answering the special issues rather than selecting the punishment, Freeman was unequivocal in stating that his views would not affect his performance. The State cites Gunter v. State, 858 S.W.2d 430 (Tex.Crim.App.), cert. denied, 510 U.S. 921, 114 S.Ct. 318, 126 L.Ed.2d 265 (1993); however, in that case, the prospective juror vacillated as to whether her views about the death penalty would prevent her from answering the special issues in the affirmative. 4 Appellant's first point of error is sustained. Appellant's conviction is reversed and this cause is remanded to the trial court. 5
CAMPBELL, J., dissents for the reason that venireperson Freeman, although qualified under Garrett v. State was disqualified under Wainwright v. Witt, and therefore his excusal by the trial judge was proper.
APPENDIX
this case. Perhaps the most important areas we want to ask you about are your feelings about the death penalty. So why don't we start out and ask you to explain to us how you feel about the death penalty as a possible punishment for a crime.
A. I am against the death penalty.
Q. And how long have you been against the death penalty?
A. Probably a decade.
Q. Okay. And why are you against the death penalty?
A. I don't believe the facts bear out the fact that it is a deterrent. And that is the usual major argument for it.
Q. So if you were designing the laws of our state, or the United States laws, you would fashion something other than the death penalty as a punishment for a crime? Is that a fair statement?
A. Correct.
Q. How strongly are you against the death penalty? Are you strong enough against it where you feel like you cannot take an oath to follow that law if you were selected as a juror in a case?
A. Yes. I don't believe I could ever vote for a death penalty.
Q. When you say you could never vote for it, I take it that's about as strong a feeling as ever comes down the pike, I take it?
A. Right.
Q. You are saying that there is no set of facts for which you could...
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