Ex Parte Banks

769 S.W.2d 539, 1989 Tex. Crim. App. LEXIS 71, 1989 WL 29611

• Court: Court of Criminal Appeals of Texas
• Decided: March 29, 1989
• Docket: 69302
• Status: Published

Opinions

OPINION ON APPELLANT’S MOTION FOR REHEARING

MILLER, Judge.

This is a rehearing on application for writ of habeas corpus pursuant to the provisions of Art. 11.07, V.A.C.C.P. Applicant was convicted of the offense of capital murder and punishment was assessed at death. V.T.C.A. Penal Code, § 19.03. This Court affirmed applicant’s conviction on direct appeal. Banks v. State, 643 S.W.2d 129 (Tex.Cr.App.1983), cert. denied, 464 U.S. 904, 104 S.Ct. 259, 78 L.Ed.2d 244 (1983). Applicant was granted a stay of execution on January 3, 1984, pending ha-beas corpus pursuant to Art. 11.07, supra. On February 29, 1984, this Court vacated the stay and denied the application for post-conviction relief. Applicant filed a second application for writ of habeas corpus that the trial court recommended be denied. We denied relief. Ex parte Banks, No. 69,032, delivered September 26, 1984. We granted applicant’s motion for rehearing on this second application for habeas corpus on October 1, 1986.

First, we will withdraw the opinion issued on September 26, 1984, wherein applicant’s first application for writ of habeas corpus was denied. Next, we will deny without a written opinion all grounds raised in the application for writ of habeas corpus except those concerning the alleged improper excusal of three prospective jurors, Dillon, Ervin and McAfee.

With regard to prospective jurors Dillon and Ervin, applicant contends that they were improperly excused under 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). We have reviewed the testimony presented during the voir dire of these two jurors and find that they were properly excused. We therefore overrule applicant’s contentions without further discussion.

With regard to the third prospective juror, McAfee, applicant contends that the trial court erred by permitting McAfee to be excused for cause because of bias under Art. 35.16, V.A.C.C.P. Although applicant’s attorney objected to the grant of the State’s challenge for cause at trial, applicant did not contest the exclusion on direct appeal. Thus, before we may consider the propriety of the trial court’s actions, we must decide whether this issue may be raised for the first time by application for a writ of habeas corpus.

Traditionally, habeas corpus is available only to review jurisdictional defects, Ex parte Watson, 601 S.W.2d 350 (Tex.Cr.App.1980), or denials of fundamental or constitutional rights. Ex parte Clark, 597 S.W.2d 760 (Tex.Cr.App.1979). See also Ex parte Russell, 738 S.W.2d 644 (Tex.Cr.App.1987). The Great Writ should not be used to litigate matters which should have been raised on appeal.

The improper exclusion of a prospective juror on statutory grounds, as alleged in the instant case, does not involve jurisdictional defects nor are fundamental constitutional considerations invoked. As such, we will not consider such a claim for the first time in an application for writ of habe-as corpus.

We must pause to distinguish this Court’s opinion in Ex parte Bravo, 702 S.W.2d 189 (Tex.Cr.App.1982). In that case, we ruled on original submission that “error rising to the level of constitutional error may be raised for the first time in a post-conviction application for writ of habe-as corpus even though not raised in the direct appeal.” Id. at 190. In our opinion issued on the State’s motion for rehearing, we stated, id. at 193:

“Exclusion of venirepersons in violation of Adams and Witherspoon violates the Sixth and Fourteenth Amendments to the United States Constitution, and a death sentence so imposed cannot be carried out.”

Thus, in Bravo, supra, the exclusion of the prospective jurors was in violation of the constitution since it did not meet the requirements of Adams, supra, or Wither-spoon, supra. Because this error was of constitutional magnitude, we considered it on application for writ of habeas corpus even though the error was not raised on direct appeal.

In the case before us, applicant contends that prospective juror McAfee was excluded in violation of a procedural statute; no constitutional issues are raised. Thus, the holding in Bravo, supra, does not apply to the instant case.

The relief sought is denied.