Jordan v. State

635 S.W.2d 522, 1982 Tex. Crim. App. LEXIS 1052

• Court: Court of Criminal Appeals of Texas
• Decided: June 23, 1982
• Docket: 68858
• Status: Published

Opinions

OPINION

ODOM, Judge.

This is an appeal from a conviction for capital murder in which the punishment is death.

In his ninth ground of error appellant argues it was error for the trial court to deny his challenge for cause to prospective juror Adkins. The juror was excused by peremptory strike by appellant after the court refused his challenge for cause. The record also shows appellant exercised all of his peremptory strikes, that his request for an additional peremptory strike was refused, and that had he been granted an additional strike he would have used it against a juror whom he found objectionable and who was seated on the jury. This was sufficient to preserve the issue of the denial of his challenge for cause for review, and to require reversal if it is shown the denial of the challenge for cause was error. Pierce v. State, Tex.Cr.App., 604 S.W.2d 185, 186, and authorities cited there.

Adkins was challenged for cause under Art. 35.16(c)(2), V.A.C.C.P.:

“That he 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.”

The record of the voir dire examination of Adkins reveals that he could not consider the minimum punishment of five years for the lesser included offense of murder. The State argues that the punishment range for murder is not relevant to the issue of a challenge for cause under Art. 35.16, supra, because appellant was charged with capital murder. The cases of Chambers v. State, Tex.Cr.App., 568 S.W.2d 313, and Bodde v. State, Tex.Cr.App., 568 S.W.2d 344, are contrary to the State’s position. In both of those capital murder cases challenges for cause made by the State under Art. 35.-16(b)(3), V.A.C.C.P., were held proper because the prospective juror could not consider the minimum punishment for murder. If it is proper for the State to exclude a prospective juror in a capital murder case because he cannot consider the minimum punishment for the lesser included offense of murder, it is certainly proper for the defendant to be granted a challenge for cause on the same ground, for if that minimum punishment for the lesser included offense against which the prospective juror “has a bias or prejudice” (Art. 35.16(b)(3) and (c)(2), supra, is a “phase of the law upon which the State is entitled to rely,” (Art. 35.16(b)(3), supra) then it certainly is also a phase of the law “upon which the defense is entitled to rely.” (Art. 35.-16(c)(2), supra.) It was therefore reversible error to deny appellant’s challenge for cause made against Adkins. The ground of error is sustained.

The judgment is reversed and the cause remanded.