Hovila v. State
This text of 532 S.W.2d 293 (Hovila 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.
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[294]*294OPINION
The offense is murder; the punishment, under Article 1257, Vernon’s Ann.P.C.1 and Article 37.071, Vernon’s Ann.C.C.P.2, death.
We are met at the outset with appellant’s contention that “the trial court failed to properly apply the standards of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).”
Witherspoon held that “a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.”
The Supreme Court reiterated its position in Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969), and again shortly thereafter in Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970), by quoting Witherspoon :
“ ‘Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial may reveal, it simply cannot be assumed that that is his position.’ ”
In Grider v. State, Tex.Cr.App., 468 S.W.2d 393, this Court applied the doctrine set out in Witherspoon, stating:
“It is clear then that the procedure utilized in the case at bar in excusing prospective jurors after an initial expression of ‘conscientious scruples’ or disclaimer of belief in capital punishment without going further and ascertaining that the prospective juror would automatically vote against the death penalty in any case, regardless of the facts, or consider its imposition in the case irrespective of the evidence, etc., does not square with With-erspoon or the traditional Texas practice.”
See also Ex parte Martin, Tex.Cr.App., 479 S.W.2d 280; Ocker v. State, Tex.Cr.App., 477 S.W.2d 288. Cf. Tezeno v. State, Tex.Cr.App., 484 S.W.2d 374.
Initially we must determine if the test set forth in Witherspoon applies in view of the oath3 now required of jurors in death penalty cases and under the new procedure set forth in Article 37.071, supra, for determination of punishment in a death penalty case. See also Article 1257, supra, and Section 19.03, V.T.C.A., Penal Code.
While the new statutes provide that the jury shall take an oath that they will not let the penalty involved affect their deliberations and requires them only to answer questions while the judge actually assesses the punishment based on such answers, the fact remains that the jury will know that their answers will determine whether the defendant is to be punished by death or by life imprisonment. To say that the jury’s answers would not be affected by their attitude toward the death penalty as a punishment for crime simply because they will not bring forth the ultimate verdict would be to disregard the obvious. We will not engage in such tenuous reasoning.
We hold, therefore, that the Witherspoon test remains the same.
We must next determine whether the requisites of Witherspoon have been met in the case at bar. At the outset of the voir dire of each jury panel, the trial court instructed them on the general principles of [295]*295criminal law as well as on the new death penalty statute and the jury’s role in administering it. He then asked those who felt that they were disqualified for any reason to come forward and present their excuses. Among those who expressed reservations as to their ability to impose the death penalty were:
1. Mrs. T. W. Smith:
“Q May I have your name?
A Mrs. T. W. Smith.
MR. WHALEY [The prosecutor]: No. 2, Judge.
Q All right.
A I can’t — I don’t believe in the death penalty. I feel like I’m disqualified. I don’t think I could sit on it.
THE COURT: Any questions, gentlemen?
MR. WHALEY: No, sir.
MR. WILSON [Defense Attorney]: No. THE COURT: You may be excused.”
2. J. R. Chatham:
“Q What is your name?
A Chatham. With a clear conscience I could not make a decision of that magnitude.
MR. WHALEY: No. 21.
THE COURT: Mr. Chatham, you may be excused.”
3. Dorothy Guttridge:
“THE COURT: Will you state your name, please?
A Dorothy J. Guttridge.
MR. TOKOLY: 29, Your Honor.
THE COURT: All right.
MRS. DOROTHY J. GUTTRIDGE: I just don’t feel like I can live with myself knowing that I might have adjudged death on somebody.
THE COURT: And you couldn’t answer the issues without concerning yourself about the effect of your answers? Is that what you are telling the Court?
Right. A
MR. SIMMONS [Defense Attorney]: I have no questions.
THE COURT: Thank you. You may be excused.”
4. Juanita Miller:
“Q What is your name?
A Juanita Miller.
MR. WHALEY: No. 6.
THE COURT: Yes, ma’am?
A I’m afraid my conscience wouldn’t let me give the death sentence.
Q You couldn’t answer the questions without concerning yourself about the death penalty?
A No, I couldn’t.
THE COURT: You may be excused.”
5. Mrs. L. N. D. Wells, Jr.:
“Q Your name, please?
A Mrs. Wells.
MR. WHALEY: No. 3, Judge.
THE COURT: All right, Mrs. Wells.
A I am unalterably opposed to the death penalty.
Q To such an extent—
A I hate to say it, but it really is true.
Q Don’t hate to say it. Thank you for your courtesy in coming up.
If there is any objection to this please let me know.
(Whereupon, Prospective Juror No.
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532 S.W.2d 293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hovila-v-state-texcrimapp-1976.