Castillo v. State

¶1concurring on appellant’s petition for discretionary review.

¶2While I agree the Court of Appeals erred in holding Garrett was not applicable at the guilVinnocenee phase of a trial, I do not believe Caldwell v. State, 818 S.W.2d 790 (Tex.Cr.App.1991), and Garrett v. State, 851 S.W.2d 853 (Tex.Cr.App.1993), are irreconcilable.

¶3In Caldwell, the veniremember stated he could not convict based upon the testimony of a single witness, even if that testimony convinced him of the defendant’s guilt beyond a reasonable doubt.1Id.,818 S.W.2d at 796-797. We held the veniremember was subject to a challenge for cause because “he would have held the State to a higher burden of proof than that required by law.” Id.,818 S.W.2d at 797.

¶4In Garrett, the State challenged for cause a veniremember who would not affirmatively answer the “future dangerousness” capital punishment issue based solely on the facts of the capital offense. Id.,851 S.W.2d at 857-859. The trial judge granted the challenge believing the veniremember had a bias or prejudice against the law upon which the State was entitled to rely. Id.,851 S.W.2d at 859. We reversed, holding “an individual juror must determine what proof beyond a reasonable doubt means to him.” Ibid.Simply because the veniremember may him*537self have a higher threshold “than the minimum required to sustain a jury verdict does not indicate he has a bias or prejudice against the law.” Id.,851 S.W.2d at 860.

¶5From the voir dire in the instant case it is clear the veniremember did not believe the testimony of a single narcotic agent would normally be sufficient to constitute proof beyond a reasonable doubt. Ante at 531-532. But Garrettguarantees the veniremember the right to his own definition of reasonable doubt. Thus, I agree Garrettcontrols the resolution of the instant case.

¶6However, it does not necessarily follow that Garrettand Caldwellare in conflict. In Caldwell, the veniremember stated he could never convict upon the testimony of a single witness, even if that testimony convinced the veniremember of guilt beyond a reasonable doubt. Id.,818 S.W.2d at 796-797. In other words, the veniremember would have held the State to a greater burden and therefore was subject to a challenge for cause under Tex.Code Crim.Proc.Ann. art. 35.16(b)(3). But in the instant case, there is no evidence the veniremember would have held the State to a greater burden of proof. On the contrary, the record establishes that if the State convinced the veniremember of appellant’s guilt beyond a reasonable doubt, the venire-member would follow the law and convict.2

¶7The distinction between these cases is subtle but important: the State is entitled to a jury that -will convict if it believes the State has proven its case beyond a reasonable doubt. A veniremember who would require more is subject to a challenge for cause. Caldwell, supra.However, the State is not entitled to challenge for cause venire-members whose definition of beyond a rea-

¶8sonable doubt is higher than the legal minimum. Garrett, supra.

¶9With these comments, I join only the judgment 0f the Court.