Appeal from Cameron County, 197th Judicial District Court of Cameron County, Texas.
David K. Chapman -court appointed- San Antonio, Texas, for Appellant.
Sam D. Millsap, Jr., D.A. & Bill Harris, Mitch Weidenbach, Allan Battaglia & Linda C. Anderson, Asst. D. A.'s. San Antonio, Texas. Robert Huttash, State's Atty., Austin, Texas, for Appellee State of Texas.
En Banc. Miller, Judge. White, J. not participating.
This is an appeal taken from a conviction of capital murder. V.T.C.A. Penal Code, § 19.03. The death penalty was imposed after the jury answered affirmatively the special issues submitted under Article 37.071, V.A.C.C.P. Appellant's previous conviction for the same offense was reversed because the State improperly impeached appellant on the basis of his failure to testify to his exculpatory story at a pre-trial hearing. Franklin v. State, 606 S.W.2d 818 (Tex.Cr.App. 1979) (Opinion on Rehearing). The retrial conducted after this court remanded the case was held in Harris County. After the verdict was returned in that case, the trial judge granted appellant's motion for a new trial because of error in the court's charge. The new trial was set in Bexar county, but was moved to Cameron County on a change of venue. Appellant now alleges twelve grounds of error arising from the trial he received in Cameron County. The sufficiency of the evidence is not attacked.*fn1
In his first ground of error, appellant contends that the trial court erred by granting the State's challenge for cause to potential juror Flavia Santana. The record of the voir dire examination of prospective juror Santana reflects:
"Q. One of the general principles of law we talked about yesterday was the burden of proof. We have talked about it again today and we have, I think, from a different angle, but let me tell you directly, if you don't already know.
The burden of proof is on the State. We have the burden of proving this case, as we do in every case in Texas, the burden of proving the guilt of the Defendant beyond a reasonable doubt. Would you hold the State to that burden or would you, in a circumstantial evidence case, hold the State to a higher burden when you say that you would want to be one hundred percent sure.?"
"A. Yes. I would expect the State to prove to me that --
"Q. I know we have to prove it beyond a reasonable doubt. But it seems to me you are saying you will hold the State to a higher burden, that you will require the State to prove the guilt of the Defendant beyond any doubt whatsoever or beyond a shadow of a doubt. Do I misunderstand you?
"A. What is it that you are asking? I don't understand. You are saying that the law only requires that you prove guilt beyond a reasonable doubt?
"A. And I'm saying that I want to be more than reasonable. Is that what you saying.
"Q. Yes, that is basically what I'm asking.
"A. That's true in this case. I feel that the case is serious enough that's [sic] I will want to be more than reasonably convinced.
"[Prosecutor]: We again challenge for cause because the juror cannot follow the law upon which the State has a right to depend.
"[Defense Counsel]: May we inquire, Your Honor?
"Questions by [Defense Counsel]:
"Q. Isn't what you are really saying is in view of the open but final penalty attached to a Capital murder case, that is a possibility of a person being put to death, that your view of what might be a reasonable doubt would be that much stricter in your own mind and that it would invest your deliberations with that much more cause before voting guilty?
"Q. Wouldn't that be a fair statement? And so really all you are saying is what you would consider to be a reasonable doubt would be that much stricter because of the maximum penalty?
"[Defense Counsel]: We submit --"
The State's attorney then challenged Ms. Santana for cause, which the trial court overruled.]
"Questions by [Prosecutor]:
"Q. You seem to give me one answer and you give Mr. Cazier another answer. You are either going to follow the reasonable doubt or you are not?
"A. Okay. I want more than a reasonable doubt. Okay.
"Q. You want proof beyond any doubt whatsoever?
"Q. Knowing that the burden of the State under state law is that we only have to prove the guilt beyond a reasonable doubt?
"[Prosecutor]: We submit that juror is subject to challenge for cause.
"THE COURT: Okay. Mr. Cazier, did you have any final questions?
"Questions by [Defense Counsel]:
"Q. Mrs. Santana, the problem is that the law in civilized countries knows no higher burden than beyond a reasonable doubt. Okay. And that burden is just about as high as an individual juror wants to make it. Nobody is going to define for you or tell you what is a reasonable doubt, okay. It is your decision to decide what is reasonable and to say whether or not you have a doubt. Knowing that, I want to ask you again, if what you are really saying, I guess so simple that in view of the finality of the death penalty, that your construction of the term reasonable doubt would be very very strict not that you would go beyond the law and require total certainty, but only that you will require a very strict interpretation of reasonable doubt. Would that be so?
"A. Let me ask you something first. Does that mean then that a reasonable doubt is different in each person's mind, like what is reasonable for me could not be for you or vice versa?
"Q. That's right. That's why we have twelve jurors instead of one?
"A. So your question was?
"Q. Isn't what you are really saying that your construction of the term reasonable doubt would be very very strict, not that it would be anything higher than beyond a reasonable doubt.?
"A. Well, what is higher than a reasonable doubt.
"Q. Total certainty, I would assume.
"A. Well, I will say then that my level or my whatever, for reasonable doubt is very high.
"Questions by [Prosecutor]:
"Q. Didn't you also say that your reasonable doubt would be different in a Capital case than it would say in some other case?
"Q. Because of the very nature of it, and didn't you say you would have to be one hundred percent convinced before you find a person guilty of Capital Murder?
"[Prosecutor]: We renew our challenge for cause.
"THE COURT: Mrs. Santana, would you have to be absolutely certain of a person's guilt before you could find him guilty? Would you have to be absolutely certain?
"THE COURT: All right. Now the court is going to instruct the jury in every case, that a defendant's guilt must be proved by legal and competent evidence beyond a reasonable doubt. Would you hold the State to a more severe burden than that? Would you make them prove it to an absolute certainty?
"A. Well, it would -- they would have to prove to me beyond a doubt and up to one hundred percent.
"A. In other words, my limit as far as doubt is very high. It is very close to one hundred percent. And I'm sorry if I am not making myself clear.
"THE COURT: You are making yourself clear."
"[Whereupon the trial court granted the State's challenge for cause.]
Appellant maintains that this testimony indicates potential juror Santana was manifesting a special concern for the seriousness of the ultimate penalty, and was voicing the kind of conscientiousness deemed proper for a juror by the United States Supreme Court in Adams v. Texas, 448 U.S. 38, 100 S. Ct. 2521, 65 L. Ed. 2d 581 (1980) and Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968). Thus, her exclusion for cause was error which mandates reversal by this Court. The State counters that the testimony indicates that potential juror Santana intended to impose a heavier burden of proof upon the State than that which the law requires. We agree with this latter argument.
Article 35.16(b)(3) provides that a challenge for cause may be made by the State if the juror "has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment." In Hawkins v. State, 660 S.W.2d 65 (Tex.Cr.App. 1983), the defendant was charged with capital murder. During voir dire, a potential juror stated that the State's proof would have to convince her to a certainty before she would find the defendant guilty. She added that if there were any doubt in her mind, she would consider such a doubt to be reasonable. We held that the court had properly sustained the State's challenge for cause since the prospective juror indicated she would hold the State to a more stringent standard of proof than beyond a reasonable doubt.
Similarly, in Bodde v. State, 568 S.W.2d 344 (Tex.Cr.App. 1978), a potential juror was examined during voir dire and repeatedly and unequivocally testified that in answering the second question at the punishment hearing, Art. 37.07(b)(2), V.A.C.C.P., she would hold the State to a more stringent standard of proof than beyond a reasonable doubt. This court held that she was properly excluded for cause under Art. 35.15(b)(3). See also cases cited id. at 349.
In the case at bar, we find that the testimony elicited from prospective juror Santana indicated that she would hold the State to a higher standard of proof than beyond a reasonable doubt. Moreover, we accord some deference to the trial court's determination given that he was in a position to gauge the sincerity and demeanor of the prospective juror's answers. See Bird v. State, 692 S.W.2d 65 (Tex.Cr.App., delivered 1985), citing Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985). Thus, the trial court properly sustained the State's challenge for cause. Appellant's first ground of error is overruled.
In his second and third grounds of error, appellant argues, respectively, that the trial court erred by granting the States's challenge for cause to prospective juror Juanita Garcia, and it erred by allowing the State to use one of its peremptory challenges retroactively on Juanita Garcia. The record reflects the following testimony during the examination of prospective juror Juanita Garcia:
"Q. [By Prosecutor] Do you feel that there is a distinct possibility that knowing what the punishment could be in this case, that that would influence you in arriving at a verdict or deliberating on any issue of fact in this case?
"Q. Do you think it would influence you?
"A. Because I have a personal problem that is similar to this.
"Q. And is this something to do with your family?
"Q. Is your son named Ernest Abraigo?
"A. Armando Ernesto. He has two names.
"Q. Abraigo. He has been involved, I am told, in a case like this as a Defendant?
"Q. And I'm sure there [sic] is very upsetting to you. Do you think that because you have this personal problem that that would influence you in sitting as a juror in this case?
"Q. You think that would prevent you from being fair to the Defendant or the State either one, without saying which way?
"Q. I don't like to belabor the point but we have to be very careful in this case. Let me ask you a little bit about your feelings about the death penalty. I think you told the Court that you may have some conscientious scruples or deep seated feelings concerning the death penalty?
"Q. Do you feel that sitting as a juror, if you were chosen to sit as a juror in a Capital Murder case that you would automatically exclude the death penalty or automatically vote against the death penalty?
"A. I might, I am not sure.
"[Prosecutor]: I will stop at this point and ask that the juror be excused for cause based upon her statement that she feels she will not be fair in the case and it might influence or affect her verdict.
"THE COURT: Well I will not grant your challenge at this time. You can continue.
"Q. Did we make it clear the procedure that we follow in assessing a punishment in a Capital Murder case?
"Q. . . . Do you feel that if chosen as a juror in a Capital Murder case and found the Defendant guilty, could you answer those questions fairly ...