Sanne v. State

• Decision Date: 10 September 1980
• Docket Number: Nos. 63254,63255,s. 63254
• Citation: 609 S.W.2d 762
• Parties: Charles Victor SANNE and Doyle Edward Skillern, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 762

609 S.W.2d 762

Charles Victor SANNE and Doyle Edward Skillern, Appellant, v. The STATE of Texas, Appellee.

Nos. 63254, 63255.

Court of Criminal Appeals of Texas, En Banc.

Sept. 10, 1980.

Rehearing Denied Nov. 5, 1980 for No. 63254.

Rehearing Denied Dec. 10, 1980 for No. 63255.

Allen C. Lee, Rockport, for Sanne.

David B. Connery, Jr., Houston, for Skillern.

William L. Hardwick, County Atty., George West, Thomas L. Bridges, Dist. Atty., Sinton, Charles D. Butts, Sp. Pros. Atty., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ODOM, Judge.

These are appeals from convictions for capital murder. Appellants were charged as parties to the offense and were tried together a second time after the first conviction was reversed by this Court. Skillern v. State, 559 S.W.2d 828. Punishment was assessed at death in each case after the jury returned affirmative answers to the punishment issues submitted under Article 37.071, V.A.C.C.P.

Eighteen grounds of error have been raised by Sanne and twenty-three by Skillern. For convenience, we will group together for discussion those grounds from the two briefs which touch upon similar points of law.

The sufficiency of the evidence to convict has not been challenged by either appellant. The facts forming the basis of this prosecution are summarized in the opinion on the appeal of the first conviction. Skillern v. State, supra. In addition, Sanne took the stand in his own behalf at the second trial and admitted shooting the deceased, but claimed he acted in self-defense.

SANNE'S JEOPARDY ISSUE

In his first and second grounds of error Sanne urges that the trial court committed reversible error in refusing to grant his pretrial motion of former jeopardy and in refusing to instruct the jury to answer "No" to the second punishment issue under Art. 37.071, V.A.C.C.P. He bases his argument on the jury's finding in his first trial that he would not commit criminal acts of violence that would constitute a continuing threat to society, and the consequent assessment of life imprisonment. As a result of the first jury's decision, Sanne contends, he should not have been forced to run the risk of being assessed the death penalty in his second trial.

Recently, in Brasfield v. State, 600 S.W.2d 288, this Court held that the principle of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978) applies to the appellate court's reversal of a death penalty on the basis of insufficient evidence to sustain the jury's affirmative answer to the second punishment issue. Accordingly, it was held that the State could not again seek the death penalty against the defendant. The defendant, therefore, was accorded the protection upon retrial which accrued to him when the appellate court found as a matter of law that life imprisonment was the only verdict permissible under the evidence. A fortiori, when, as in the case at bar, the defendant has in fact received a favorable verdict on the issue of future dangerousness in his first trial, he should be entitled to the same protection against having his life placed in jeopardy a second time. We hold, then, that having received a favorable answer to the second punishment issue in his first trial, appellant Sanne should not have been subjected to the risk of receiving the penalty of death upon his retrial following reversal of his first conviction, and that his punishment must be reformed from death to life. This holding, however, affects only the punishment stage, and does not affect the jury's determination of appellant's guilt of the crime charged. We therefore must consider the other grounds of error addressed to the guilt stage of appellant Sanne's trial. ¹

JURY SELECTION ISSUES

Skillern's fifth ground of error raises a challenge to the constitutionality of Article 35.13, V.A.C.C.P., which provides in part:

"A juror in a capital case ... 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."

The claim is made that it violates the equal protection and due process clauses of the state and federal constitutions to require the defendant in a capital case to exercise peremptory challenges upon the examination of individual prospective jurors, and to deny him the right of the defendant in a non-capital felony case to make a sensible and circumspect exercise of his peremptory challenges after examination of the entire venire.

Assuming, without deciding, that this constitutional challenge is not without merit, we are constrained to find that harm has not been demonstrated under the facts of this case. The flaw in Skillern's argument is that he has not shown that he would have exercised his peremptory challenges differently, and that a jury he did not want was impaneled as a result of the procedure followed. That such a showing is incumbent upon defense counsel may be extracted from the rules previously enunciated by this Court with respect to determination of harm arising from jury selection errors, discussed in Payton v. State, Tex.Cr.App., 572 S.W.2d 677.

We will describe two methods that could have been used to show the harm required to preserve this constitutional challenge for review. On the one hand, a defendant may choose to use a peremptory challenge to exclude a prospective juror while claiming he should have the right to reserve the strike until after the entire venire has been questioned. In such a case, harm would be shown by use of all peremptory challenges, denial of a request for additional peremptory challenges, and the seating of a juror upon whom the defendant would have exercised peremptory challenge. This rule allows correction of any error by giving the defendant an extra peremptory challenge for use against the venireman the defendant would have stricken if given a choice between him and the venireman against whom a peremptory had already been used. ² In the case at bar the record reflects two occasions on which Skillern exercised peremptory challenges while claiming the right to reserve them. He did not, however, show a request for additional peremptory strikes after exhaustion of his peremptory challenges, the next vital step in demonstrating harm. No error has been shown from this standpoint.

On the other hand, a defendant may, as Skillern did with respect to two veniremen, join the issue by declining to use a peremptory challenge to exclude a prospective juror while claiming he should have the right to reserve the strike. In such a situation, the defendant must show that at the end of examining the venire, he made a retroactive request to exercise his peremptory challenges in the manner to which he claims he is entitled. In this way, the trial court is accorded the opportunity to nullify any error stemming from adherence to the complained of procedure. In the case at bar, the record fails to reflect that Skillern made such a request. Accordingly, we do not reach the merits of this ground of error. The fifth ground of error is overruled.

Skillern's ninth ground of error asserts the trial court erroneously sustained the State's challenge for cause to venireman Frank Garza. He claims that Garza was excused in violation of the doctrine of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). ³ Specifically, appellant argues that Garza should not have been excused because it was brought out that he could vote for the death penalty in a case where a very close friend was the victim. Prior to this testimony, the prosecutor had elicited the following from Garza:

"... Now, do you have any conscientious scruples against voting for or giving the death penalty as a punishment for crime in the proper case?

"A. Yes, sir.

"Q. You do have?

"A. I'm against capital punishment.

"Q. I see. Now, when you say, 'against capital punishment,' are you telling us that you could not, under any circumstances as a juror, vote for a verdict that would result in that being the penalty?

"A. I'd have to vote against it. I just don't believe in capital punishment.

"Q. Are you telling us that you can think of no circumstances or no fact situation, regardless of how severe were the facts, knowing that that might be the penalty if you voted to find someone guilty, you could not do so because that would be the result?

"A. Yes, I couldn't vote for capital punishment."

In O'Bryan v. State, 591 S.W.2d 464, this Court held that a prospective juror who stated that the only circumstance under which he could vote for the death penalty was if the victim was a member of his family was properly excused under Witherspoon. The reasoning of that decision is quoted below, because it applies with equal force in the instant case:

"... (I)t is apparent that venireman Bowman could consider capital punishment only if the victim of the crime were a member of his family. In such a circumstance, venireman Bowman would be unable to serve as a juror because of his interest and prejudice in the case. Article 35.16, Vernon's Ann.C.C.P. The ability to consider capital punishment as a tool of vengeance by a person aggrieved by the loss of a family member is surely not within the contemplation of Witherspoon. No other group would be more predisposed to vote for capital punishment than a jury composed of surviving members of the deceased victim's family. The situation in which Bowman could consider the imposition of death as a penalty is the situation which Witherspoon proscribes the imposition of the death penalty by a 'hanging jury.'

"The voir dire of Bowman revealed that he would not vote for capital punishment in a case where he was otherwise qualified to sit as a juror. In those situations, Bowman was resolved to vote against capital punishment, regardless of the evidence produced. He was...