Smith v. State

OPINION

ODOM, Judge.

This is an appeal from a conviction for capital murder, with punishment fixed at death. Appellant was indicted and charged with intentionally causing the death of Travis Russell Durham by cutting his throat with a knife during the commission of the offense of burglary. In view of our disposition of this appeal, further discussion of the facts is not necessary.

Appellant contends the trial court erred in failing to grant his challenge for cause to the twelfth juror seated, Leo Franklin Payne, in that Payne had stated that he could only consider assessing the penalty of death in a capital murder case. The record adequately reflects that the appellant exhausted fifteen peremptory challenges allotted him pursuant to Art. 35.15(a), V.A.C. C.P. and an additional peremptory challenge granted him by the trial court. The record reflects as well that Payne did sit in the case. Thus, a reversal will be warranted if it is established that a sufficient challenge for cause was overruled. Bell v. State, 137 Tex.Cr.R. 401, 129 S.W.2d 664; Story v. State, Tex.Cr.App., 502 S.W.2d 764.

Article 35.16(c)(2), V.A.C.C.P., provides that a challenge for cause may be made by the defense for the reason that the juror “has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof, or of the punishment therefor.” (Emphasis added.)

In Woodkins v. State, Tex.Cr.App., 542 S.W.2d 855, we held, “[T]he appellant [has] the right to challenge for cause any juror who could not give the minimum punishment. Both the appellant and the state [have] the right to have jurors who believe in the full range of punishment.” See also Huffman v. State, Tex.Cr.App., 450 S.W.2d 858. Thus, if it is established that the appellant was forced, over objection, to have a juror sit on his case who could not consider the full range of punishment, a reversal of the cause would be warranted.

During the course of the voir dire examination of prospective juror Payne, he stated explicitly that he would not consider the punishment of life imprisonment if appellant were found guilty of capital murder:

“Q. Then, you really wouldn’t consider life — you wouldn’t even consider it?

“A. That’s right.”

At several points he expressed his belief that death should be the penalty for taking a life:

“I feel very strongly if a person, after pushing to take somebody’s life, he should — give his life.”

“[If] a person actually took another person’s life then he should give his life for another person’s life.”

“I’ve always felt that way about it, I feel that if somebody knowingly takes some[one] else’s life . . . then they should be willing to forfeit theirs.”

The juror stated that he held his view that death would be the only proper punishment as a firm conviction and that he could not be swayed or persuaded from that position. When asked whether he could consider a punishment of life imprisonment, he stated that they are turned loose too quickly and that murderers who are given a life sentence are “back on the streets in a few years and [do] it all over again.”

Although during an effort by the trial court to rehabilitate the prospective juror he did state that he could consider both penalty options by answering the questions under Article 37.071(b), V.A.C.C.P.,¹ as the law requires, his answers were equivocal and ambiguous in contrast to his earlier statements that demonstrated an unwillingness to consider life imprisonment. The overall picture presented by the voir dire examination of Payne is one of a person holding strong convictions that death is the only punishment he could consider for a person guilty of capital murder, and that life imprisonment is not adequate punishment and would not be considered.

In overruling the appellant’s challenge for cause, the trial court appears to have reasoned that Payne was cognizant of the two phase trial procedure and of the questions submitted to the jury pursuant to Art. 37.071(b), V.A.C.C.P., and since he testified that he could follow the court’s instruction that a “Yes” answer would be warranted to each question submitted at the penalty stage only upon a finding from the evidence beyond a reasonable doubt, that this was sufficient indication of Payne’s willingness to consider the alternative penalty of life imprisonment. Payne had testified on several occasions that he realized that a “No” answer to any of the questions by any of the jurors would result in the automatic imposition of a life sentence. Defense counsel remarked in his objections to the court that;

“We (the defense) have the right to know whether he can consider the full range of punishment, just as the state does and he has — the juror has testified that he cannot consider the minimum punishment in a capital murder case and if nothing else, we feel that that will have a defínate (sic) effect on his answering the final questions as the statutes set out and we would challenge the juror for cause. . . . ”

The question to be resolved is the following: does the fact that a juror indicates that he will return a “yes” answer to the questions submitted pursuant to Art. 37.-071, supra, only upon a finding from the evidence that the state has proven each issue submitted beyond a reasonable doubt comport with the clear requirement that a defendant should have a right to be tried by jurors who will consider the full range of punishment applicable to the offense in question? We are constrained to hold that a juror’s willingness to demand of the state that it prove each question submitted pursuant to Art. 37.071 beyond a reasonable doubt is not equivalent to an assertion that the juror will consider the full range of punishment for the offense in question. This is especially so in light of Payne’s rather adamant assertion that life imprisonment for him would not be a viable punishment alternative.

In Jurek v. State, 522 S.W.2d 934, affirmed 428 U.S. 262, 49 L.Ed.2d 929, 96 S.Ct. 2950 (1976), we held that Art. 37.-071(b) was not vague and that it did provide adequate guidance to the jury. It was further held that:

“[T]he fact that an exhaustive and precise list of factors is not specifically included (in Art. 37.071(b)) does not indicate that the jury is without adequate guidelines. We are inclined to believe that the factors which determine whether the sentence of death is an appropriate penalty in a particular case are too complex to be compressed within the limits of a simple formula. However, there are some factors which are readily apparent and are viable factors for the jury’s consideration. In determining the likelihood that the defendant would be a continuing threat to society, the jury could consider whether the defendant had a significant criminal record. It could consider the range and severity of his prior criminal conduct. It could further look to the age of the defendant and whether or not at the time of the commission of the offense he was acting under duress or under the domination of another. It could also consider whether the defendant was under an extreme form of mental or emotional pressure, something less, perhaps, than insanity, but more than the emotions of the average man, however inflamed, could withstand.” at 939-940.

In that a multiplicity of viable factors are present in the consideration of the punishment for each capital murder defendant, a willingness to hold the state to prove beyond a reasonable doubt on each of the Art. 37.071(b) questions does not insure, as well, that the juror will consider the full range of punishment in a particular case. It is too mechanistic to reason that Payne was a qualified juror because he was willing to require of the state to prove beyond a reasonable doubt the special issues submitted at the punishment stage. The law requires this and in addition requires that each juror consider the full range of punishment applicable to the offense in question.

It is certainly possible that a juror could hold the state to its burden of proof beyond a reasonable doubt on the special issues submitted at the punishment stage and still not be willing to consider life imprisonment as being a viable punishment under the circumstances. It is equally erroneous to reason that a juror has met the requirement of being able to consider the full range of punishment in a capital murder case when he has indicated that he could not consider life imprisonment as a punishment alternative by relying on his statement that he knew that a “no” vote to any one of the Art. 37.071(b) questions would mean that life imprisonment would automatically be assessed as the punishment. Indeed, the juror in that case has not expressed a willingness to consider the full range of punishment alternatives but has in fact acquiesced to the clear statutory mandate. For this reason, the judgment must be reversed.

In his second ground of error appellant contends that the trial court erred in admitting his confession into evidence in that he was denied the right to counsel prior to and during the taking of the confession.

In light of the disposition of this case, we need not decide this contention. We do find, however, that the instrument filed by the trial court and denominated as “Order relating to Voluntary Nature of Statement of Accused” is inadequate to apprise this Court of the trial court’s independent finding as to whether the statement was made under voluntary conditions as required by Art. 38.22(2), V.A.C.C.P. The appellant’s contention is that he re-asserted his Miranda rights during the interrogation and does not question the fact that initially he was advised of his rights as required by Art. 38.22(l)(c) and Miranda. The trial court’s findings do not address this specific contention. See Hester v. State, 535 S.W.2d 354, wherein we abated the appeal and directed the trial court to reduce to writing his findings on the disputed fact issues surrounding the taking of appellant’s confession raised in the grounds of error. For an example of an excellent compliance with the provisions of Art. 38.22(2), see Hester v. State, 544 S.W.2d 129. In the event this issue is raised at a subsequent trial, we recommend that the findings made therein comport with Hester v. State, 544 S.W.2d 129.

For the above reasons, the judgment is reversed and the cause remanded.

1 . “(b) On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:

“(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;

“(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and

“(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.”