Ex Parte Chambers
This text of 612 S.W.2d 572 (Ex Parte Chambers) 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.
Opinion
OPINION
This applicant is confined by authority of a judgment that he is guilty of capital murder and that he shall “be punished . . . by Death, according to the law.” We affirmed this judgment. Chambers v. State, 568 S.W.2d 313 (Tex.Cr.App.1978), cert. denied, 440 U.S. 928, 99 S.Ct. 1264, 59 L.Ed.2d 584 (1979). This is Chambers’ second application for habeas corpus relief. His petition prays four things.
First, it prays that a writ of habeas corpus issue. The writ already has issued. V.A.C.C.P. Article 11.07, Section 2(b):
“Whenever a petition for writ of habe-as corpus is filed after final conviction in a felony case, the clerk shall transfer or assign it to the court in which the conviction being challenged was obtained. When the petition is received by that court, a writ of habeas corpus, returnable to the Court of Criminal Appeals, shall issue by operation of law.”
Second, it prays that the convicting court conduct a hearing at which proof could be offered. This the convicting court refused to do, and its refusal was correct. Hearings and other fact-finding procedures are required only if there are controverted, previously unresolved issues of fact that are material to the legality of the applicant’s *574 confinement. V.A.C.C.P. Article 11.07, Section 2(d). This petition raises only issues of law, not issues of fact. No hearing was required.
Third, the petition prays a stay of execution. There is no showing that a date for execution has been set; in fact the applicant alleges that he is “awaiting the hearing of sentence.” Because of our holding below, no stay will be required.
Fourth, the petition prays “such other relief as may be appropriate.” We find that the applicant has not shown himself to be entitled to relief by either of the two grounds he advances. Both grounds allege that the trial court erred in conducting the selection of the jury that convicted the applicant.
One ground alleges that the court violated the Sixth and Fourteenth Amendments, as they were construed and applied in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 766 (1968), when it excused Venire Members Hamilton and Chase. The appellant advanced this same ground on appeal, but this court held that it was unnecessary to consider the Witherspoon questions because the venire members had been unable to “state under oath that the mandatory penalty of death or imprisonment for life will not affect [their] deliberations on any issue of fact,” as V.T.C.A. Penal Code 12.31(b) provides. 568 S.W.2d at 319-320. Subsequently the Supreme Court held that it was error to assume that Wither-spoon and Section 12.31(b) are independent grounds of exclusion, and that the Wither-spoon doctrine is violated by the excusing of some venire members who could follow the court’s instructions in the charge but who could not take the Section 12.31(b) oath to remain unaffected by the penalty while deliberating. Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). The Supreme Court reaffirmed the Witherspoon doctrine that the State may bar from jury service “those whose beliefs about capital punishment would lead them to ignore the law or violate their oaths,” those who are “so irrevocably opposed to capital punishment as to frustrate the State’s legitimate efforts to administer its constitutionally valid death penalty scheme.” 448 U.S. at 51, 100 S.Ct. at 2529. Adams v. Texas makes it clear that the Sixth and Fourteenth Amendments will countenance the excusing of some venire members who cannot take the Section 12.31(b) oath, but only those who may be excused under the With-erspoon doctrine. This court was in error when it refused to go beyond Section 12.-31(b) in deciding Chambers’ appellate challenge to the excusing of Venire Members Hamilton and Chase. Since the State would be disentitled to execute a punishment of death that was imposed by a jury from which members had been excluded in violation of the Witherspoon doctrine, Adams v. Texas, supra, we now shall take up the Witherspoon questions as to these ve-nire members.
The record of the voir dire examinations of Hamilton and Chase reveals that they fell into the class of venire members who could neither follow the court’s instructions nor take the Section 12.31(b) oath to remain unaffected. 1 The excusing of such venire members was not a violation of the Witherspoon doctrine.
*575 The only other complaint raised in this writ has to do with Venire Member Minicks. She was excused because she worked for the same federal agency that *576 employed the father of the appellant’s counsel. We held that the trial court abused its discretion in excusing Minicks, but “because there is no showing that appellant did not receive a fair and impartial jury, and because the State exercised only 13 of its 15 peremptory challenges, one of which could have been used to remove prospective juror Minicks, no reversible error is shown.” 568 S.W.2d at 321. Subsequently we overruled the holding that error in excusing a juror was “cured” if the State had not exercised all its peremptory challenges in the jury selection procedure in capital cases. Grijalva v. State, 614 S.W.2d 420 (Tex.Cr.App., 1980) (pending on rehearing). We did not overrule the alternative holding that “there is no showing that the appellant did not receive a fair and impartial jury .... ” As the dissenting opinion in Chambers v. State, 568 S.W.2d 313, 328, pointed out (at 335), ordinarily the erroneous excusing of Minicks would be deemed harmless. 2 Valore v. State, 545 S.W.2d 477, 481 (Tex. Cr.App.1977). Neither the Constitution nor the statutes were violated by the excusing of Minicks. See Rogers v. State, 163 Tex.Cr. 260, 261, 289 S.W.2d 923, 924 (1956). Recognizing that Grijalva has overruled one holding in Chambers v. State, we adhere to the alternative holding that the excusing of Minicks was harmless error.
Relief is denied.
. The relevant parts of Hamilton’s testimony were:
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612 S.W.2d 572, 1981 Tex. Crim. App. LEXIS 909, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-chambers-texcrimapp-1981.