Graham v. State , 1983 Tex. Crim. App. LEXIS 865 ( 1983 )

OPINION

ODOM, Judge.

This is an appeal from a conviction for capital murder. At the punishment phase of the trial, the jury answered the issues under Art. 37.071, V.A.C.C.P. affirmatively and the death penalty was assessed.

Appellant raises twenty-one grounds of error on appeal. In light of Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), however, our initial and primary attention focuses on one of the contentions that several prospective jurors were improperly excused over objection under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) in that V.T.C.A., Penal Code Sec. 12.31(b), was broadly applied in contravention of the Sixth and Fourteenth Amendments.

In Adams v. Texas, supra, the United States Supreme Court clarified the permissible grounds for challenging venire members by holding that the Witherspoon doctrine is violated by excusing a potential juror who could follow the court’s instructions in the charge but who could not take the Section 12.31(b) oath to remain unaffected by the potential death penalty. It appears from the following portions of the voir dire examination of venire member Slack that the trial court excluded a juror under Sec. 12.31(b), supra, who would not have been excludable under Witherspoon:

“Q. All right sir. How do you feel generally about capital punishment?

“A. Oh, I think capital punishment is justified under certain conditions.

* * * * * *

“Q. ... the question I need to ask you is would the fact that the penalty for capital murder is automatically life or death affect your deliberations on any particular fact issue in the case?

“A. I, I imagine so.

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“Q. And you can conceive then, sir, of some case — not this case; not a particular fact circumstance — but of some case in which the death penalty could and should be imposed? Maybe not should be but could be imposed?

“A. ... [Y]es, I think that the death penalty is, is a fitting thing in some instances, that society has that right.

“Q. And you can think of some set of circumstances in which you yourself, if— first of all guilt was established beyond a reasonable doubt and if you were convinced if that was necessary, can you think of some instance in which you yourself could impose, vote to impose the death penalty?

“A. I suspect I probably could.”

Direct examination was resumed and after the following interchange, Slack was excused:

“Q. But, Reverend Slack, the statutory question that I need to ask you is would the mandatory penalty of either life or death affect your deliberations on any particular fact issue? Would that— in other words, would that be a consideration that you would give in your deliberations, thinking about the automatic nature of the penalty, because it’s pretty high, either life imprisonment or death. That’s what I’d like to know.

“A. Well, I’m tempted to say — I suspect it would. I don’t see how it could keep from making some difference.

“Q. All right, sir.

“THE COURT: Would it or would it not, Brother Slack?

“THE JUROR: It would.

“THE COURT: Affect your deliberations? As to facts in the case. Is that right?

“THE JUROR: Yes, it would.

“MR. DAVIS: We would reurge our earlier statement to the court, Your Hon- or.

“THE COURT: I’m going to excuse the juror.

“MR. WALKER: Note our exception, Your Honor.”

In Adams the Supreme Court noted that although the State could, consistent 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, the use of Sec. 12.31(b) to exclude such prospective jurors on broader grounds based on their opinion concerning the death penalty is impermissible. The court stated that it is improper to exclude jurors who stated that they would be “affected” by the possibility of the death penalty, “but who apparently meant only that the potentially lethal consequences of their decision would invest their deliberations with greater seriousness and gravity or would involve them emotionally.”

As in Adams, it does not appear that prospective juror Slack was so irrevocably opposed to capital punishment as to frustrate the State’s legitimate efforts to administer its constitutionally valid death penalty scheme. Indeed, the voir dire examination reflects that he considered the death penalty proper in some cases and probably could vote to impose the death penalty. Additionally, he indicated he could make a determination of guilt or innocence based solely on the evidence presented at trial. Although the precise statutory question was answered negatively, Sec. 12.31(b) may not be applied by the trial court to exclude a prospective juror whose only fault is to acknowledge honestly that he has conscientious reservations against capital punishment and that the mandatory penalty of death or imprisonment for life might affect his deliberations. Durrough v. State, 620 S.W.2d 134 (Tex.Cr.App.1981); Evans v. State, 614 S.W.2d 414 (Tex.Cr.App.1980); Loudres v. State, 614 S.W.2d 407 (Tex.Cr.App.1980). Therefore, the application of Sec. 12.31(b) that is required by Adams and Witherspoon calls for a determination of not merely whether the mandatory penalty would “affect” his deliberations, but rather the extent to which the juror would be affected.¹

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), and the judgment of guilt must be reversed. Evans, supra. We will not reform the verdict reached at the punishment stage by an improperly selected jury in such a way as to render judgment of life imprisonment. Fearance v. State, 620 S.W.2d 577 (Tex.Cr.App.1980); Grijalva v. State, 614 S.W.2d 420 (Tex.Cr.App.1980); Loudres, supra; Pierson v. State, 614 S.W.2d 102 (Tex.Cr.App.1980).

Because of our disposition of the Adams question, the only remaining issue that we need address is appellant’s twenty-first ground of error wherein the sufficiency of the evidence is challenged. The significance of the contention is that if sustained, a retrial would be barred. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). Therefore, a challenge to the sufficiency of the evidence should be considered before disposing of a case even though reversal may be based on another ground. Hooker v. State, 621 S.W.2d 597 (Tex.Cr.App.1980); Watson v. State, 605 S.W.2d 877 (Tex.Cr.App.1979) (opinion on original submission); Swabado v. State, 597 S.W.2d 361 (Tex.Cr.App.1980).

Appellant argues that the trial court erred in admitting hearsay statements of the murder victim as related to a police officer and that if such testimony is properly excluded, the remainder of the record does not sufficiently show his connection with the death of the victim, Linda Mae Rogers, to corroborate the accomplice witness in order to sustain a conviction. However, the record shows that the statement of the accomplice witness was sufficiently corroborated by other admissible evidence “tending to connect” appellant to the murder and therefore the hearsay objections need not be addressed. Infante v. State, 612 S.W.2d 603 (Tex.Cr.App.1981); Carrillo v. State, 591 S.W.2d 876 (Tex.Cr.App.1979); Deas v. State, 531 S.W.2d 810 (Tex.Cr.App.1976); Runkle v. State, 484 S.W.2d 912 (Tex.Cr.App.1972).

The record reflects that appellant’s brother, Jeffrey Scot Graham, made a voluntary statement in which he related that after some discussion, he and appellant decided to commit a robbery at a Fisca service station. They left their house in a dark brown Fire-bird with a beige vinyl top at approximately eight o’clock on the evening of April 9th. Upon their arrival at the station, the attendant filled the car with gas and checked the oil. After following the girl into the station to get the oil, appellant began shooting her. He returned to the car, closed the hood and reached into the car for additional bullets. Appellant then instructed his brother to drive around the block and as he subsequently circled the car back toward the station, appellant was walking toward the car. He got in the car and they headed home. Appellant told his brother he had shot the woman.

To test the sufficiency of the corroborative evidence, the accomplice’s testimony is eliminated from consideration and the evidence of the other witnesses is examined to ascertain if there is any inculpatory evidence which tends to connect the accused with the commission of the offense. Walker v. State, 615 S.W.2d 728 (Tex.Cr.App.1981); Infante, supra. The testimony of several witnesses tends to place appellant at the scene of the offense at the time of its occurrence. Witness Woodard testified that she was at the Fisca station visiting with her sister, the victim, at approximately 8:55 p.m. No one else was there at the time and as she was leaving, she noticed a brown Firebird pull into the station. She recognized Jeffrey Graham and also “got a good look” at the passenger whom she identified as appellant at trial. Witness Rudd testified that she was at the Fisca station at about 9:00 p.m. and that upon leaving she noticed a brown Firebird with a tan top pulling into the station. No other cars were in the area at the time. Witness Hansford testified that she pulled up to the Fisca station at about 8:55 and saw the attendant fall off the chair in the office. Noticing red stains on the victim’s shirt, she started toward a nearby grocery store to call the police. She noticed a man walking around toward the back of the building. Although her view was from behind, she testified that the appellant looked like the man she saw walking around the station at the time the victim’s body was discovered.

The cumulative weight of the evidence tends to connect appellant with the crime. Proof that an accused was at or near the scene of a crime at or near the time of its commission may tend to connect the accused with the crime so as to furnish sufficient corroboration to support a conviction. Deas v. State, 531 S.W.2d 810 (Tex.Cr.App.1976). The testimony of several witnesses places appellant at the scene at the time of the commission of the offense.

We hold the evidence to be sufficient to sustain the conviction. The conviction is reversed because of the improper exclusion of a prospective juror under Sec. 12.31(b) and Witherspoon, and the cause is remanded.

ONION, P.J., concurs.

1 . As stated by the Supreme Court in Wither-spoon:

“... the most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings. If the voir dire testimony in a given case indicates that veniremen were excluded on any broader basis than this, the death sentence cannot be carried out even if applicable statutory or case law in the relevant jurisdiction would appear to support only a narrower ground of exclusion. 391 U.S. 510, 522, n. 21, 88 S.Ct. 1770, 1777, n. 21, 20 L.Ed.2d 776 (Emphasis added.)”