Richardson v. State, 68934

• Decision Date: 28 October 1987
• Docket Number: No. 68934,68934
• Citation: 744 S.W.2d 65
• Parties: Miguel A. RICHARDSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 65

744 S.W.2d 65

Miguel A. RICHARDSON, Appellant, v. The STATE of Texas, Appellee.

No. 68934.

Court of Criminal Appeals of Texas,

En Banc.

Oct. 28, 1987.

Allen Cazier (Court-appointed), San Antonio, for appellant.

Fred G. Rodriguez, Dist. Atty. & Keith Burris, Steve Hilbig, James L. Bruner & Daniel Thornberry, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

PER CURIAM.

Appellant was convicted of capital murder. The special issues required under Article 37.071(b), V.A.C.C.P., were submitted to the jury and were answered in the affirmative. Punishment was assessed at death. Having reviewed appellant's twelve grounds of error, we affirm. ¹

We will first consider appellant's eleventh ground of error, in which he makes his sole complaint regarding voir dire examination. He complains of the improper excusal of prospective juror William Noble. Earlier during the examination of Noble, the trial court overruled the State's challenge for cause on Witherspoon grounds. ² Later, however, Noble was excused sua sponte by the trial judge after Noble stated that he had already formed an opinion as to guilt or innocence. As stated in appellant's brief: "Defense counsel objected on the basis that Mr. Noble was being excused by the court without the full predicate for his excuse [sic] having been laid. The court replied that when a prospective juror states that he has already formed an opinion as to the guilt or the innocence of the defendant there should be no further questioning. Defense counsel then pointed out that an additional sentence is contained in the article in question." The entire exchange is herein set out:

"[NOBLE:] You used a couple of words there, bias and impartial that I think you might want to pursue.

"[DISTRICT ATTORNEY:] Well, are you biased in some manner about this case?

"[NOBLE:] Well, I have read quite a bit about it. And I feel that I have already prejudged the case. I mean I take all the newspapers. I'm a journalist by profession and I know--I don't disregard what I see in the paper.

"THE COURT: Have you already formed an opinion as to the guilt or innocence?

"[NOBLE:] Yes, Your Honor. I think it's only fair that I say that I have formed an opinion.

"THE COURT: You will be excused Mr. Noble. You can return to the Central Jury Room. They will discharge you from there.

* * *

* * *

"[APPELLANT'S ATTORNEY:] If the Court please, the Defendant objects to Mr. Noble being excused, the entire predicate not having been laid for his excuse.

"THE COURT: You are excused.

* * *

* * *

"THE COURT: The statute provides if the juror states from hearsay or otherwise he has already formed an opinion as to the guilt or innocence of the Defendant there will be no further questioning.

"[APPELLANT'S ATTORNEY:] Does it say one more sentence?

"THE COURT: [Ignoring the last remark of appellant's attorney] Can you do one [another juror] in ten minutes?

"[DISTRICT ATTORNEY:] No sir.

"[APPELLANT'S ATTORNEY:] I would say that we--

"THE COURT: Mr. Williams [District Attorney] says no. I'll accept that. Let's recess until 1:30, gentlemen."

[Lunch Recess Declared]

The statute referred to, Art. 35.16(a)(10), V.A.C.C.P., provides in pertinent part 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...."

Contrary to the State's argument in its brief on appeal, we find the objection of appellant's counsel, although not a model in specificity, was sufficient to preserve his complaint on appeal that an Art. 35.16(a)(10) challenge for cause requires more than that the juror express that he has established a conclusion as to a defendant's guilt or innocence. It is readily apparent that appellant's counsel was attempting to alert the trial judge that Noble needed to be asked whether, in his opinion, the conclusion would influence him in his action in finding a verdict. Absent this question, made mandatory by the statute, the predicate for excusal had not been laid. Indeed, even if the question had been asked and answered, the predicate for excusal would only be complete if the reply were yes. A negative reply calls for further specific questioning about the extent to which the conclusion will affect his action, followed by a discretionary decision by the trial judge concerning the venireman's impartiality.

It is clear then that the predicate for excusal under Art. 35.16(a)(10) had not been laid and that the objection of appellant's attorney specifically directed the trial court's attention to the missing portion of the predicate. The overruling of said objection constituted error. It remains to be seen whether such error requires reversal.

When a trial judge erroneously excuses a prospective juror over the objection of defense counsel, the general rule is that this is not error requiring reversal unless there is a showing that appellant was harmed by the trial court's action. Culley v. State, 505 S.W.2d 567 (Tex.Cr.App.1974); Henriksen v. State, 500 S.W.2d 491 (Tex.Cr.App.1973); Weaver v. State, 476 S.W.2d 326 (Tex.Cr.App.1972). In Payton v. State, 572 S.W.2d 677, 680 (Tex.Cr.App.1978), this Court held that "[h]arm may be shown in the erroneous exclusion of a qualified juror by showing the State exhausted its peremptory challenges." If the State has exhausted all of its peremptory challenges, the trial court's action, "from the perspective of the defendant, [was] the same as if the State had been given an extra peremptory challenge." Payton, supra at 680; Martinez v. State, 621 S.W.2d 797 (Tex.Cr.App.1981). When the State does not use all of its strikes in the jury selection process, however, harm is not shown because had the judge refused the challenge for cause the State could have (and most assuredly would have) peremptorily struck the person from the jury at the conclusion of the voir dire. Thus, by reserving an unused peremptory challenge the State is permitted a constructive use against the erroneously excluded venire member. Payton, supra; Culley, supra; Weaver, supra.

In capital cases, however, it is ordinarily immaterial that the State had strikes remaining at the end of the voir dire examination. If the trial court erroneously sustains a State's challenge for cause over defense objection during individual voir dire in a capital case, this has the immediate effect of giving the State an additional peremptory strike. Grijalva v. State, 614 S.W.2d 420 (Tex.Cr.App.1981). As stated in Grijalva, supra at 424:

"The manner of exercising peremptory challenges is explicitly differentiated in Arts. 35.13 and 35.25, V.A.C.C.P. The procedure followed in Chambers [v. State, 568 S.W.2d 313 (Tex.Cr.App.1978) ] and this case is stated in Art. 35.13, supra:

'A juror in a capital case in which the state has made it known it will seek the death penalty, held to be qualified, shall be passed for acceptance or challenge first to the state and then to the defendant. Challenges to jurors are either peremptory or for cause.'

"On the other hand, in non-capital cases, such as those upon which Chambers relied, the procedure is quite different, as provided in Art. 35.25, supra:

" 'In non-capital cases and in capital cases in which the State's attorney has announced that he will not qualify the jury for, or seek the death penalty, the party desiring to challenge any juror peremptorily shall strike the name of such juror from the list furnished him by the clerk.' "

To allow the State to render harmless the improper challenge for cause and excusal of a venire member by the simple expedient of not using all of the State's peremptory challenges would be, as stated in Grijalva, supra at 424-425:

"... corruption of the peremptory strike practice that violates the terms of Art. 35.13, supra, and gives an unfair advantage to the State in the jury selection process.

First, to allow the State to exercise its peremptory challenges in a capital case after conclusion of the voir dire examination gives it the benefit of making its judgments with a perspective of the entire panel, a perspective that is 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." (Emphasis in original) ³

In Bell v. State, 724 S.W.2d 780 (Tex.Cr.App.1986), we set forth the rules relative to jury selection and its review, and stated, id. at 795:

"Before addressing appellant's specific contention, ...