Johnson v. State

982 S.W.2d 403, 1998 Tex. Crim. App. LEXIS 131, 1998 WL 692441

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MANSFIELD, Judge,

delivered the opinion of the Court,

in which BAIRD, MEYERS, KELLER, PRICE, and HOLLAND, Judges, joined.

Article 35.16(c)(2)¹ provides that a defendant may challenge a prospective juror for cause if the prospective juror “has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof or of the punishment therefor.” We granted appellant’s petition for discretionary review to determine whether a defendant may challenge a prospective juror for cause under Article 35.16(c)(2) if the prospective juror states unequivocally that he could not consider assessing the minimum legal punishment for a defendant found guilty of the offense charged as a principal.

The Relevant Facts

On July 5, 1995, a Harris County grand jury indicted appellant for aggravated robbery. See Tex. Penal Code § 29.03(a)(2). On July 25,1995, the case went to trial in the 209th District Court of Harris County. During voir dire, the State, apparently concerned that it might be able to prove appellant’s guilt only as a party to the offense, explained the law of parties to the prospective jurors and asked them whether, if the evidence warranted it, they could find a defendant guilty of aggravated robbery as a party. See Tex. Penal Code § 7.02(a)(2). The prospective jurors indicated that they could. Later, defense counsel picked up on this general theme and asked the prospective jurors whether they could consider assessing the minimum legal punishment (imprisonment for five years) for a defendant found guilty of aggravated robbery as a principal. See Tex. Penal Code § 12.32. Two prospective jurors, Kelley and Clevenger, stated unequivocally that they could not, and the State made no attempt to rehabilitate them. Shortly thereafter, defense counsel ehal-lenged Kelley and Clevenger for cause on the ground that “a juror has to be able to consider the full range of punishment, not only for a person who would be a party, but for a person who would be a principal.” The District Court, however, denied both challenges for cause. Defense counsel then took the necessary steps to preserve any error for appellate review. See Jacobs v. State, 787 S.W.2d 397, 405 (Tex.Crim.App.), cert. denied, 498 U.S. 882, 111 S.Ct. 231, 112 L.Ed.2d 185 (1990); Cumbo v. State, 760 S.W.2d 251, 253-254 (Tex.Crim.App.1988).

Later, at the guilt/innocence stage, the jury charge authorized conviction of appellant as a principal or as a party. The jury returned a general verdict of “guilty” and assessed appellant’s punishment, enhanced by a prior felony conviction, at imprisonment for 75 years. See Tex. Penal Code § 12.42(c)(1).

On direct appeal, appellant argued, inter alia, that the District Court had erred in denying his challenges of prospective jurors Kelley and Clevenger for cause. Specifically, appellant contended that Kelley and Cleven-ger had been properly challengeable under Article 35.16(c)(2) because they had been biased against the minimum legal punishment for a defendant found guilty of aggravated robbery as a principal. In response, the State argued that Kelley and Clevenger had not been challengeable for cause because voir dire had shown only that they could not consider the minimum legal punishment in a particular circumstance, i.e., when the defendant was found guilty as a principal.

The Fourteenth Court of Appeals adopted the State’s theory and affirmed appellant’s conviction. Johnson v. State, No. 14-95-00860-CR (Tex.App. — Houston [14th Dist.], delivered March 27, 1997) (not published). The Court of Appeals cited no controlling precedent, but it reasoned as follows:

The legislature has set forth a range of punishment applicable to all phases of this offense. See Tex. Penal Code Ann. § 12.32 (Vernon 1994). It may be, therefore, that a prospective juror cannot assess the maximum punishment against one acting solely as a party or the minimum punishment for one acting as a principal, but this alone does not render him unfit for jury service. There are an infinite number of ways in which a hijacker can commit the offense of aggravated robbery. In its wisdom, the legislature has created a broad range of punishment to permit judges and juries the freedom carefully to tailor a sentence to fit both the offender and the crime. A prospective juror, therefore, must be able to consider the full range of punishment for the offense generally, and not for some specific manner and means of committing the offense.

... Here, the venire persons stated that they could not consider the full range of punishment only for the one hypothetical situation being discussed. Under these circumstances, we do not believe the trial court abused its discretion in failing to strike for cause venire persons 17 [Kelley] and 33 [Clevenger].

Johnson v. State, slip op. at 4-5.

We granted appellant’s petition for discretionary review to determine whether the Court of Appeals had erred. See Tex.R.App. Proc. 66.3(c) & (d).

Analysis

In a criminal trial, “both the [defendant] and the State ha[ve] the right to have jurors who believe in the full range of punishment.” Woodkins v. State, 542 S.W.2d 855, 862 (Tex.Crim.App.1976). The right of the defendant arises from Article 35.16(c)(2), and the right of the State arises from Article 35.16(b)(3).² Smith v. State, 573 S.W.2d 763, 764 (Tex.Crim.App.1977); Weaver v. State, 476 S.W.2d 326, 327 (Tex.Crim.App.1972). Prospective jurors “must be able, in a sense, to conceive both of a situation in which the minimum penalty would be appropriate and of a situation in which the maximum penalty would be appropriate.” Fuller v. State, 829 S.W.2d 191, 200 (Tex.Crim.App.1992), cert. denied, 508 U.S. 941, 113 S.Ct. 2418, 124 (1993). What we meant in Fuller was that prospective jurors must be able to accept that, for the offense in question, the minimum legal punishment will be appropriate in some circumstances and the maximum legal punishment will be appropriate in some circumstances. In other words, prospective jurors must be able to keep an open mind with respect to punishment until they hear the evidence in the case being tried. Furthermore, they must be able to keep an open mind with respect to punishment regardless of whether the defendant might be found guilty as a principal or as a party, because the statutory range of punishment for any offense is the same whether the defendant is found guilty as a principal or as a party.

Under Article 35.16(c)(2), appellant was entitled to jurors who could accept that the minimum legal punishment would be appropriate in some circumstances for a defendant found guilty as a principal.³ Because prospective jurors Kelley and Clevenger could not accept that, they were, as a matter of law, biased against a law applicable to the case upon which appellant was entitled to rely. Williams v. State, 773 S.W.2d 525, 536 (Tex.Crim.App.1988), cert. denied, 493 U.S. 900, 110 S.Ct. 257, 107 L.Ed.2d 207 (1989). The District Court abused its discretion, therefore, in denying appellant’s challenge of them for cause. Ibid.

It is true, as a general matter, that “[a] prospective juror ... must be able to consider the full range of punishment for the offense generally, and not for some specific manner and means of committing the offense.” Johnson v. State, swpra, slip op. at 5. After all, the law actually requires jurors to use the facts of the case being tried to tailor the punishment to the offense and the offender. Sadler v. State, 977 S.W.2d 140 (Tex. Crim.App.1998). But the Legislature has determined and codified that the full range of punishment for any offense is the same whether the defendant is found guilty as a principal or as a party. Therefore, a prospective juror who does not “believe in the full range of punishment,” Woodkins v. State, 542 S.W.2d at 862, for either a defendant found guilty as a principal or a defendant found guilty as a party, is biased against the law as established by the Legislature.

We vacate the judgment of the Court of Appeals and remand the case to that court for a harm analysis under Texas Rule of Appellate Procedure 44.2(b). See Schutz v. State, 957 S.W.2d 52, 74 (Tex.Crim.App. 1997); Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App.1997).

MEYERS and KELLER, JJ., each filed a concurring opinion.

McCORMICK, P.J., filed a concurring and dissenting opinion. WOMACK, J., filed a dissenting opinion. OVERSTREET, J., dissented without a written opinion.

1 . All references to articles are to those in the Texas Code of Criminal Procedure.

2 . Article 35.16(b)(3) provides that the State may challenge a prospective juror for cause if the prospective juror "has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment.”

3 . We hasten to point out that, under Article 35.16(b)(3), the State is entitled to jurors who can accept that the maximum legal punishment will be appropriate in some circumstances for a defendant found guilty as a party. In other words, what is sauce for the goose is sauce for the gander.