Cuevas v. State

575 S.W.2d 543, 1978 Tex. Crim. App. LEXIS 1465
CourtCourt of Criminal Appeals of Texas
DecidedDecember 20, 1978
Docket57116
StatusPublished
Cited by30 cases

This text of 575 S.W.2d 543 (Cuevas v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cuevas v. State, 575 S.W.2d 543, 1978 Tex. Crim. App. LEXIS 1465 (Tex. 1978).

Opinions

OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for the offense of capital murder. V.T.C.A., Penal Code, Sec. 19.03(a)(4). Punishment was assessed at death pursuant to Art. 37.-071, V.A.C.C.P. Venue was changed from Walker County to Harris County.

On July 24, 1974, three inmates of the Texas Department of Corrections, Fred Carrasco, Rudolpho Dominguez, and the appellant, seized the top floor of the educational building inside the Walls Unit at Huntsville. They held a number of people as hostages while Carrasco negotiated with TDC officials. After long negotiations the inmates attempted their escape on August 3, with the hostages and a movable shield constructed from law books, chalkboards and tape. When law enforcement officers sought to prevent the escape, gunfire erupted. In the end, Carrasco, Dominguez and two of the hostages had been killed. The [544]*544appellant was charged with the murder of one of the hostages.

In his sixth ground of error appellant contends that the trial court erred in overruling his challenge for cause to venireman James Whorton. Appellant argues that Whorton clearly reveals during voir dire that he would vote to impose the death penalty in all cases where the accused was found guilty of capital murder, unless the accused proved he was insane at the time of the offense.

The record reflects that the appellant was forcéd to use his last peremptory challenge on venireman Whorton. Appellant then filed a written motion requesting an additional peremptory challenge, which motion was denied. Venireman John Thomas, the eventual foreman, was the last juror seated. At the time Thomas was selected, appellant notified the court that had he been granted an additional peremptory challenge he would have struck Thomas as being an unacceptable juror. These facts place appellant squarely within the rule laid down by this Court in Wolfe v. State, 147 Tex.Cr.R. 62, 74, 178 S.W.2d 274, 281:

“. . .in the trial of a criminal case where an accused has been wrongfully deprived of a peremptory challenge by being forced to use such upon a juror who was shown to be subject to a challenge for cause, and such accused has exhausted his peremptory challenges, and a further juror be presented whom he states to be objectionable to him, then it will not be necessary for accused to show in what manner such further juror was objectionable to him, nor to show that such juror was an unfair or partial juror. In further words, we think the accused should only be required to exercise a peremptory challenge- on the objectionable juror and not a challenge for cause, nor show grounds for a challenge for cause, nor to show why such juror was objectionable to him.”

Thus, if appellant can show that the challenge for cause to venireman Whorton should have been sustained and that the overruling of such challenge deprived him of a peremptory challenge he would have used to strike venireman Thomas, this case must be reversed. Salazar v. State, 149 Tex.Cr.App. 260, 193 S.W.2d 211; Bayless v. State, 166 Tex.Cr.R. 479, 316 S.W.2d 743; Sifford v. State, Tex.Cr.App., 505 S.W.2d 866.

Appellant is relying primarily upon Art. 35.16(c)(2), V.A.C.C.P.1 He primarily contends that both parties, the appellant and the State, have a right to have jurors who believe in the full range of punishment. Woodkins v. State, Tex.Cr.App., 542 S.W.2d 855. Appellant argues that Whorton’s inability to impose life imprisonment, unless it was shown appellant was insane, demonstrated that Whorton could not consider the full range of punishment.

The relevant portion of venireman Whor-ton’s testimony is as follows:

“Q [BY MR. GRAY]: Well, in every case where you sit as a juror, let’s say that you found the defendant guilty of the offense of capital murder, you found that he had intentionally and deliberately killed another person, do you feel that every person that you found guilty of that offense—
A If he’s not insane, yes, sir.
Q Unless he proved that he was insane, you would assess the death penalty?
A Yes, sir.
Q And you would not even consider life imprisonment then, under those circumstances, after you had found him guilty of the offense of capital murder?
A I don’t think so.
* * * * * *
Q And you have answered yes to each of the punishment questions, then if you had [545]*545found him guilty beyond a reasonable doubt of the intentional killing of another person, capital murder.
A Yes, sir, I believe I would.
Q And under no circumstances, then, would you answer no to the question?
A I wouldn’t say under no circumstances, I can’t think of none off hand.
Q You can’t visualize anything that would permit you to answer no to those questions unless the defendant was insane?
A I can’t think of anything, no.
* * * * * *
Q Let me make sure that I understand you, Mr. Whorton, and you are the only one that can tell us this. Mr. Sandel can’t answer this for you or the Judge or anybody else. You feel that in every case where you find a defendant guilty of the offense of capital murder, the proper punishment is death in the electric chair unless he’s insane?
A I would say yes.
Q And let’s take a hypothetical case, now, where you found a defendant guilty of the offense of capital murder. Let’s say that both sides put on evidence at the punishment hearing and there’s no evidence that would indicate to you that the defendant is insane, then your answer to the two punishment questions, I take it, would be yes?
A The evidence showed he’s guilty and not insane, is that what you are saying?
Q Yes, sir.
A I would say yes.
Q And you can’t visualize any mitigating circumstances other than insanity?
A None comes to mind, no, sir.
* * * * * *
Q [BY THE COURT]: Mr. Whorton, what is it you’d require the defendant to prove? His insanity? Is that what you said?
A If he was found guilty of a capital crime, and other than insanity, I can’t think of anything that would.
******
Q In that case, you wouldn’t be requiring the defendant to do anything, so your answers to the two lawyers involved here are opposed. Have we thoroughly confused you?
A Well, you have,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Johnson v. State
43 S.W.3d 1 (Court of Criminal Appeals of Texas, 2001)
Kemp v. State
846 S.W.2d 289 (Court of Criminal Appeals of Texas, 1992)
Allridge v. State
850 S.W.2d 471 (Court of Criminal Appeals of Texas, 1991)
Cuevas v. Lynaugh
754 F. Supp. 1127 (S.D. Texas, 1990)
Fearance v. State
771 S.W.2d 486 (Court of Criminal Appeals of Texas, 1988)
Cumbo v. State
760 S.W.2d 251 (Court of Criminal Appeals of Texas, 1988)
Felder v. State
758 S.W.2d 760 (Court of Criminal Appeals of Texas, 1988)
Hernandez v. State
757 S.W.2d 744 (Court of Criminal Appeals of Texas, 1988)
Pyles v. State
755 S.W.2d 98 (Court of Criminal Appeals of Texas, 1988)
Janecka v. State
739 S.W.2d 813 (Court of Criminal Appeals of Texas, 1987)
Rougeau v. State
738 S.W.2d 651 (Court of Criminal Appeals of Texas, 1987)
Cuevas v. State
742 S.W.2d 331 (Court of Criminal Appeals of Texas, 1987)
Satterwhite v. State
726 S.W.2d 81 (Court of Criminal Appeals of Texas, 1987)
Fielding v. State
719 S.W.2d 361 (Court of Appeals of Texas, 1986)
Reyes v. State
694 S.W.2d 556 (Court of Appeals of Texas, 1985)
Koonce v. State
654 S.W.2d 705 (Court of Appeals of Texas, 1983)
Burnett v. State
642 S.W.2d 765 (Court of Criminal Appeals of Texas, 1982)
Pierce v. State
604 S.W.2d 185 (Court of Criminal Appeals of Texas, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
575 S.W.2d 543, 1978 Tex. Crim. App. LEXIS 1465, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cuevas-v-state-texcrimapp-1978.