Ex Parte Bravo

702 S.W.2d 189, 1982 Tex. Crim. App. LEXIS 1125

• Court: Court of Criminal Appeals of Texas
• Decided: December 15, 1982
• Docket: 69046
• Status: Published

Opinions

OPINION

TEAGUE, Judge.

This is a post-conviction application for writ of habeas corpus filed in this Court pursuant to Art. 11.07, V.A.C.C.P.

Margarito Bravo, the applicant, was sentenced to death after a jury convicted him of capital murder and affirmatively answered the questions submitted to it pursuant to Art. 37.071, V.A.C.C.P. This Court affirmed the applicant’s conviction and sentence of death. See Bravo v. State, 627 S.W.2d 152 (Tex.Cr.App.1982). The applicant asserts in the application, inter alia, that a prospective juror, Juanita Madrigal, was erroneously excused by the trial court, over the “exception” of the appellant’s trial attorney. This contention was neither raised by the appellant in his appeal nor discussed by this Court in its decision affirming the appellant’s cause. However, 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. The excusal of the venire-person, Madrigal, was predicated upon the trial court’s sustaining a challenge for cause made by the prosecuting attorney. We find the excusal was constitutionally and legally impermissible and will grant the application.

The United States Supreme Court has decreed that the death penalty cannot be carried out if even one prospective juror has been excused on a challenge for cause by the State, when the challenge is based solely on that venireperson’s opposition to the death penalty, unless that opposition to the death penalty results in the venireper-son’s inability to follow the law. Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980); Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976); Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). The Supreme Court has also, see Witherspoon v. Illinois, Id., decreed that a prospective juror may not be excluded for cause unless that person makes it unmistakably clear that (1) he would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before him, or (2) that the person’s attitude toward the death penalty would prevent him from making an impartial decision as to the defendant’s guilt. In Adams v. Texas, supra, the Supreme Court held that V.T.C.A., Penal Code, Section 12.31(b), which disqualifies a prospective juror unwilling to swear that the mandatory penalty of death or life imprisonment will not “affect” the person’s deliberations on factual issues, states a disqualification standard impermissibly broader than the Court’s decision of Witherspoon v. Illinois, supra.

The voir dire examination of the venire-person, Madrigal, was conducted more than three years before the United States Supreme Court decided Adams v. Texas, supra. This Court is bound by that decision. Article VI, United States Constitution.

It is clear from a reading of the voir dire examination of Madrigal that she was extremely nervous during the examination. However, in Adams v. Texas, supra, the Supreme Court stated the following:

“[Njeither nervousness, emotional involvement nor inability to deny or confirm any effect whatsoever is equivalent to an unwillingness or an inability on the part of the jurors to follow the court’s instructions and obey their oaths, regardless of their feelings about the death penalty. The grounds for excluding [Ms. Madrigal] were consequently insufficient under the Sixth and Fourteenth Amendments.” [448 U.S. at 50, 100 S.Ct. at 2529]

We find that the questioning of Madrigal simply did not go far enough to disqualify her for cause. The voir dire examination clearly reflects that Madrigal was unable to unequivocally state that her knowledge of the potential penalty of death would not affect her deliberations as to the applicant’s guilt. She initially stated that she did not think she would be affected, then said she could not say whether she would be affected, and finally answered that although she could “vote with the other people and decide the guilt or innocence of anyone,” she still could not answer whether she would be affected. At that point, the trial judge stated: “I believe I will excuse you, to which ruling the applicant’s trial attorney responded: “Note our exception to that ruling, please.” Clearly, the premature and legally impermissible excusal of Madrigal constitutes “Adams error”. The conviction and sentence must therefore be set aside.

When the voir dire examination of venire-person Madrigal is considered in light of Witherspoon v. Illinois, supra, Adams v. Texas, supra, Williams v. State, 622 S.W.2d 116 (Tex.Cr.App.1981); Porter v. State, 623 S.W.2d 374 (Tex.Cr.App.1981), Burns v. Estelle, 626 F.2d 396 (5th Cir.1980); and Granviel v. Estelle, 655 F.2d 673 (5th Cir.1981), it follows that we must hold that the venireperson, Madrigal, was prematurely and improperly excused by the trial court.

The Supreme Court decision of Adams v. Texas, supra, mandates that the applicant’s sentence of death be set aside and vacated. See also Lackey v. State, 638 S.W.2d 439 (Tex.Cr.App.1982); Graham v. State, 643 S.W.2d 920 (1981). Because this Court is without legal authority to reform the sentence of death, the applicant must be granted a new trial on guilt as well as punishment. See 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 v. State, 614 S.W.2d 407 (Tex.Cr.App.1980); Pierson v. State, 614 S.W.2d 102 (Tex.Cr.App.1980); Graham v. State, supra.

Accordingly, the writ is granted, the conviction and sentence in Atascosa County cause number 4711 are set aside and vacated and the applicant is remanded to the Sheriff of Atascosa County to answer to the indictment in that cause.