Sawyers v. State

• Decision Date: 29 October 1986
• Docket Number: No. 69184,69184
• Citation: Sawyers v. State, 724 S.W.2d 24 (Tex. Crim. App. 1986)
• Parties: John Christopher SAWYERS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 24

724 S.W.2d 24

John Christopher SAWYERS, Appellant, v. The STATE of Texas, Appellee.

No. 69184.

Court of Criminal Appeals of Texas En Banc.

Oct. 29, 1986.

Douglas M. O'Brien, Charles F. Baird, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. and J. Harvey Hudson, George Godwin and Keno Henderson, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

McCORMICK, Judge.

Appellant was convicted of capital murder. Punishment was assessed at death.

In his first ground of error, appellant contends that prospective juror Dr. Vernon Ray Walling II was erroneously excused in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

The record shows that during initial questioning by the trial judge Walling expressed opposition to the death penalty:

"Q. All right, sir, I must go into the matter further with you. I don't mean to quarrel with you but the law requires that I talk to you about it greater than that. Are you telling me that no matter what the facts were and no matter what the State proved to you, even though you considered it to be proper, that under no circumstance could you ever participate in a verdict that would require the Court to assess the death penalty?

"A. That's correct."

During examination by the State, Walling reiterated his feelings:

"Q. Doctor, the Judge has explained to you the procedure with regard to the question. There would be the first part of the trial which deals with the guilt of a person and if the person is found guilty then we go on to the second stage of the trial, and from what I understand from what you said to the Judge, you could under no circumstance vote to assess the death penitentiary (sic) in any case?

* * *

"A. That's correct."

Defense counsel again explained to Walling that the jurors did not in fact assess the death penalty, but rather only answered the special issues, whereupon, depending upon the answers to the special issues, the trial judge assessed the penalty. The following then occurred:

"Q. Okay now, do you feel like that you could answer issue number one based according to the evidence? If the State proved to you beyond a reasonable doubt that issue number one should be answered yes do you feel like you could answer issue number one yes?

"A. Yes.

"Q. Okay now, issue number two is whether there is a reasonable probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. Let's assume that at the punishment phase of the trial the State offered evidence to you and proved to you beyond a reasonable doubt that the defendant would in fact commit future acts of violence and it could take the form of all sorts of evidence. It could be many prior convictions of the defendant. It could be extraneous offenses where he killed numerous people. All types of evidence could be introduced on that issue and if the State proved to you beyond a reasonable doubt issue number two should be answered yes do you feel like you could answer issue number two yes?

"A. Yes."

Thereafter the trial judge tried to resolve the conflict in Walling's answers:

"Q. All right, then do I understand that your answer now is that if the state proved to you beyond a reasonable doubt that both of those questions should be answered yes that you could answer them yes knowing that the Court would be required to assess the death penalty?

"A. It really puts one in a bind.

"Q. It sure does. Welcome to the N.F.L.

* * *

"Q. If the State proves to you beyond a reasonable doubt that both of those questions should be answered yes could you participate in a verdict answering both of them yes knowing that it would require the Court to assess the death penalty?

"A. No.

"Q. You could not?

"A. No.

* * *

"Q. Would you, because you knew that yes answers to both of them would require the Court to assess the death penalty, would you, even though the State proved beyond a reasonable doubt that both of them should be answered yes, would you answer one or both of them no?

"A. I would."

The prosecutor then concluded the voir dire examination with the following:

"Q. Doctor, then you are saying regardless of the evidence, it doesn't make any difference--if you believed beyond a reasonable doubt the questions should be answered yes, because of the way you feel and because of what would happen, you're going to answer one or both of them no because you could not participate in an answer that would call for the death penalty?

"A. Yes, sir.

"Q. And would you say that's your true answer as opposed to what you just told the Defense Attorney (sic), based on the evidence?

"A. Well, it's clear to me now.

"Q. So, regardless of the evidence, you would answer one of those questions no to make sure the person didn't get the death penalty by your vote?

"A. Yes.

"Q. And you are saying that even if the State proved beyond a reasonable doubt that both of them should be answered yes to you that you would still answer one of them no to insure that you did not participate in a proceeding where someone received the death penalty?

"A. Yes. I do not want to participate if there is a possibility of the death penalty."

Thereupon Walling was excused for cause over appellant's objection.

Our reading of the voir dire examination shows that the initial inconsistency in Dr. Walling's answers stemmed from his confusion over the procedure used during the punishment phase of the trial. Once it became clear to Dr. Walling what would be expected of him as a juror, he remained steadfast in his resolve to vote against the death penalty no matter what the evidence revealed. We find that Dr. Wall's voir dire examination reads very similar to the voir dire examinations of prospective jurors Sells and West in Vanderbilt v. State, 629 S.W.2d 709 (Tex.Cr.App.1981). This Court found that where both women indicated they could follow the law but further examination resulted in the women concluding that they did not believe they could answer the punishment questions "yes" knowing that a death sentence would result from a unanimous verdict, both women were properly challenged for cause pursuant to Witherspoon v. Illinois, supra. Compare Turner v. State, 635 S.W.2d 734 (Tex.Cr.App.1982), in which the potential juror, although opposed to the death penalty, clearly indicated that he could return a verdict consistent with the instructions of the court and facts proved. We find no error in the trial court's exclusion of Dr. Walling. Appellant's first ground of error is overruled.

In his second ground of error, appellant argues that the trial court erred in terminating the defense counsel's questioning of venireperson Plummer in violation of this Court's decision in Perillo v. State, 656 S.W.2d 78 (Tex.Cr.App.1983). In Perillo v. State, supra, the prospective juror Vennard vacillated during questioning by both the trial judge and the prosecutor as to whether he would follow the law and answer the special issues in accordance with the evidence or whether he would ignore the evidence and answer at least one of the special issues in the negative so that the defendant would receive a life sentence rather than the death penalty. Before defense counsel had an opportunity to question Vennard, the trial judge excused Vennard for cause. When defense counsel requested permission from the trial judge to examine Vennard, the trial judge refused. This Court reversed Perillo's conviction after reviewing the record and determining that there was nothing therein that would guarantee that "had appellant's trial counsel been given the opportunity to question him, Vennard would not have returned to his former position, and agreed that he could have found appellant guilty of capital murder and thereafter would have answered in the affirmative the statutory special issues." Perillo v. State, supra at p. 81.

We have reviewed the record of the instant case and find Perillo v. State, supra, to be quite distinguishable and thus inapplicable from the case at bar. We note initially that error has not been preserved. At the time that the trial court terminated defense counsel's questioning and excused Plummer for cause, the only objection voiced by defense counsel was:

"MR. O'BRIEN: Your Honor, for the purpose of the record, we object to him being excused for cause."

No objection was voiced as to the limitation nor was request made for additional time of the voir dire examination. It has long been the rule that error is not preserved when the error presented on appeal is not the same as the objection raised at trial. Vanderbilt v. State, supra, at 721.

Secondly, in Perillo, defense counsel was not allowed to conduct any examination of the prospective juror. In the instant case, examination by both the trial judge and the prosecutor revealed that Plummer was undeniably so opposed to the death penalty that in no situation would he answer the special issues affirmatively. Defense counsel was allowed to question Plummer and this questioning further showed Plummer's adamance in refusing to answer the special issues affirmatively.

(THE COURT)

"Q. If you thought it was right under all the facts could you vote for a verdict that would require the Court to assess the death penalty?

"A. No, ma'am.

"Q. Under no circumstance? I am not trying to quarrel with you.

"A. You did say the punishment--could I give the punishment of death?

"Q. Un-huh, if you thought it was the right thing to do under all the circumstances.

"A. No, ma'am.

* * *

(THE PROSECUTOR)

"Q. A case in Texas is in two parts--a criminal case. A capital murder case is one where the State must prove that a defendant is guilty of the offense of capital murder. That is the first part of the trial. If the jury finds the defendant guilty of the offense of capital murder then we move to the second part of the trial. The second part of the...