Johnson v. State

¶1concurring.

¶2“Qualified prospective jurors must be willing to consider the full range of punishment applicable to the offense submitted for their consideration.” Banda v. State, 890 S.W.2d 42, 55 (Tex.Crim.App.1994), cert. denied, U.S. 515 U.S. 1105, 115 S.Ct. 2253, 132 L.Ed.2d 260 (1995). The inability to do so constitutes a bias or prejudice against the law and renders a prospective juror chal-lengeable for cause by the defendant or by the State. Pyles v. State, 755 S.W.2d 98, 103 (Tex.Crim.App.1988), cert. denied, 488 U.S. 986, 109 S.Ct. 543, 102 L.Ed.2d 573 (1988)(citing Texas Code of Criminal Procedure, Articles 35.16(b)(3) and (c)(2)). The question presented here is: what do we mean when we say “the offense submitted for consideration?” In voir dire, the issue arises when a party asks a prospective juror a question regarding his ability to consider the full range of punishment under a certain set of circumstances. If the party’s question and the prospective juror’s answer illustrate that the prospective juror would be unable to consider the full range of punishment under circumstances that merely comprise the offense submitted for consideration, then the prospective juror is challengeable for cause. If, however, the question and answer show only that the prospective juror would be unable to consider the full range of punishment for a set of circumstances that go beyond the “offense submitted for consideration,” then the juror is not challengeable for cause on the basis that he could not consider the full range of punishment.

¶3Several alternative definitions of “the offense submitted for consideration” present themselves. I will characterize these differing approaches as (1) the classification approach, (2) the holistic approach, and (3) the evidentiary approach.

¶4(1) The Classification Approach. First, we could define “the offense submitted for consideration” as any statutory classification that could be applicable to the case at hand to which the full range of punishment would apply. Statutory classifications would include the elements of an offense as defined in a section or subsection of a statute, general principles of liability such as party liability and transferred intent, and/or certain mitigation issues that may further define the degree of punishment such as “sudden passion” in a murder case or “release in a safe place” in an aggravated kidnapping prosecution. See Texas Penal Code § 6.04(b)(transferred intent), § 7.02 (party liability), § 19.02(d)(sudden passion), § 20.04(d) (release in a safe place).1 Under this definition, any combination of statutory elements constituting a convictable offense in the case in question would be an “offense submitted for consideration.” Hence, a given case could well have multiple offenses submitted for consideration, based upon alternative legal theories for committing the offense, and persons on the venire would have to be able to consider the full range of punishment for each one.

¶5Take, for example, an indictment for murder which alleges alternate theories of liability, those being intentionally and knowingly causing the death of the victim (Sec.l9.02(b)(l) murder) and felony murder (Sec.l9.02(b)(3) murder.) Under the classification approach a prospective juror must be able to consider the full range of punishment for both intentional murder and for felony murder. If he could not consider the full range of punishment for even one of the theories he would be challengeable for cause. But, he would not be challengeable for cause for an inability to consider the full range of punishment for murder under Sec. *40819.02(b)(2)(serious bodily injury murder), because that'variant of murder was not plead.

¶6(2) The Holistic Approach. A second possible approach would be to hold that some but not all statutory classifications to which the full range of punishment applies are considered as part of the offense submitted for consideration. One formulation of this approach would be to exclude general principles of liability as constituting separately submittable offenses. Under this scenario, party and principle liability would simply be considered alternative methods for committing a particular offense submitted. A second formulation of the holistic approach would be to hold that alternative theories contained in a Penal Code section should not be considered as constituting separately submittable offenses. Under this formulation, a particular Penal Code section, such as § 19.02 (Murder) would constitute the submitted offense, and subsections (b)(1), (2), and (3)(intention-al/knowing murder, serious bodily injury murder, and felony murder respectively) would constitute merely different methods of committing the submitted offense instead of being considered independently submitted offenses. Under this “section” definition, a prospective juror would not be challengeable for cause for being unable to consider the full range of punishment for a particular legal theory of the offense so long as he could consider the full range of punishment for the “submitted offense” (murder) as a whole. In the murder indictment example, a prospective juror would not be challengeable for cause even if he could not consider the full range of punishment for the two theories plead, as long as he could consider the full range of punishment for the unplead theory (Sec.l9.02(b)(2) serious bodily injury murder).

¶7(3) The Evidentiary Approach. A third possible formulation would be that one should determine the submitted offense by examining the facts of the case. Such an inquiry would entail examining the particular conduct committed by the defendant and asking a prospective juror if he could consider the full range of punishment for a person committing that conduct.

¶8Of these three options, I believe that the classification approach is preferable. In my opinion, it is the formulation most consistent with the legislature’s intent, case law, reason, and fairness.

¶9The evidentiary approach may be easily dispensed with. We have recently held that approach to be invalid. Sadler v. State, 977 S.W.2d 140 (Tex.Crim.App.1998) (prospective juror is not required to consider the full range of punishment under the particular facts of the case). This holding is consistent with past case law on the subject. See Faulder v. State, 745 S.W.2d 327, 339 (Tex.Crim.App.1987)(prospective juror must be able to consider the possibility of probation for the offense of murder but is not required to consider probation for the offense of murder in a particular factual situation).

¶10The downfall of the evidentiary approach paves the way for the conflict between the holistic and classification approaches. The holistic approach would characterize separate theories of the “same offense” (e.g., Sec.l9.02(b)(l),(2), and (3)) as factual matters upon which prospective jurors may validly prejudge punishment, as long as they can consider the full range of punishment for at least one theory of the submitted offense (Sec.l9.02(b) murder). The classification approach, by contrast, holds that separate legal theories are in fact legal definitions of the offense to which the full range of punishment must apply.

¶11Case law supports the classification approach. In the capital murder arena, we have stated that a prospective juror must be able to assess the death penalty for the particular statutory legal theory of capital murder found in § 19.03 that is on trial:

[Potential jurors must be able to set aside their personal preferences and biases to consider as death eligible all those defined as death eligible by Section 19.03 of the Texas Penal Code and Article 37.071 of the Texas Code of Criminal Procedure. ... [Jjurors may not substitute legal categories of death eligibility with their personal preferences and biases and thereby place themselves above the law.

¶12*409Howard v. State, 941 S.W.2d 102, 128 (Tex.Crim.App.1996)(emphasis in original, ellipsis inserted)(quoting Rachal v. State, 917 S.W.2d 799, 812-813 (Tex.Crim.App.1996) (plurality opinion)). For example, a juror, in deciding a capital murder case, is not free to reject “murder in the course of burglary” as a valid criteria for a sentence of death because the law provides otherwise. Howard, 941 S.W.2d at 128 (discussing Fuller v. State, 829 S.W.2d 191, 200 (Tex.Crim.App.1992) and citing its holding that a juror was challengea-ble for cause when she indicated that she could assess the death penalty only for serial killers); see also Wilson v. State, 863 S.W.2d 59, 70 n. 2 (Miller, J. concurringXprospective juror challengeable for cause when, to give the death penalty, he requires evidence of capital murder that constitutes an offense under a different subsection of the statute from the crime with which he is charged). If the holistic approach were correct, one would have to say that the “submitted offense” was “capital murder” and the various methods of committing that offense outlined in § 19.03(a)(l)-(8) are simply different fact situations which a juror is free to decide do not merit the death penalty (i.e. do not show future dangerousness). But, consistent with the classification approach, case law holds that a prospective juror must be able to consider assessing the death penalty for each statutory scenario for capital murder in issue in the case at hand.

¶13In addition, we have indicated that a prospective juror is challengeable for cause if he cannot assess the death penalty against a non-trigger person. Phillips v. State, 701 S.W.2d 875, 884 (Tex.Crim.App.1985). Phillipsis not unequivocal authority for that proposition, however, because the prospective juror in that case also stated that he could not find a non-trigger person guilty of capital murder. Id.2And we have indicated that a juror is challengeable for cause if he cannot consider the full range of punishment for felony murder — although that case is also ambiguous. Smith v. State, 683 S.W.2d 393, 398 (Tex.Crim.App.1984)(upholding State’s challenge for cause on the ground that prospective juror could not consider minimum range of punishment for felony murder; the case is ambiguous because, arguably, the juror’s response showed an inability to assess punishment for murder in general).

¶14One can, of course, draw distinctions between capital cases, non-capital cases, and general principles of liability. In capital cases, there are only two possible punishments: life or death. If a juror excludes one of the statutory classifications of capital murder from the purview of the death penalty, that juror has clearly frustrated the Legislature’s intent, which was to make the death penalty an available punishment in that situation. Non-capital cases, by contrast, involve a range of punishment rather than two stark alternatives. And, general principles of liability, such as party liability and transferred intent, can be distinguished from questions involving offense-specific elements on the ground that these general principles are separated from the specific offenses in the Penal Code and need not be alleged in an indictment.

¶15But I question whether those difference are important. A persuasive argument can still be made, even in non-capital cases, that: the Legislature must have intended that prospective jurors be able to consider the full range of punishment for the different statutory classifications because it subjected those classifications to the range of punishment provided. That reasoning also applies to general principles of liability: the legislature subjected parties and persons with “transferred intent” to the same range of punishments as the principal offenses, and therefore, must have intended jurors to consider the range of punishment involved. And while general principles of liability need not be alleged in an indictment, those principles are nevertheless used in measuring eviden-tiary sufficiency, and such principles, if raised by the evidence, would be included in a correct jury charge. See Malik v. State, 953 S.W.2d 234, 239-240 (Tex.Crim.App. *4101997). In most important respects, general principles of liability are treated as offense elements.

¶16Moreover, attempting to pick and choose which statutory classifications require consideration of the full range of punishment risks creating a muddled jurisprudence in which trial judges and litigants have difficulty distinguishing between prospective jurors who are challengeable and those who are not. By contrast, the classification approach — holding that any statutory classification, implicated by the indictment, to which a range of punishment applies constitutes the submitted offense — creates a bright-line rule that is easy to apply.

¶17Bright-line rules can be fashioned under the holistic approach, but such rules create arbitrary results. For example, consider a bright-line rule holding that a “section” (such as § 19.02 “murder”) is the submitted offense for which a juror must consider the full range of punishment. In a murder prosecution in which the State relies upon the felony murder subsection, a juror would not be chal-lengeable for cause if he could not consider the maximum sentence for felony murder (an accidental killing during the course of a felony), so long as he could consider the maximum sentence for one of the other two types of murder outlined in § 19.02 (i.e. intentional/knowing killing or intent to commit serious bodily injury resulting in death). See § 19.02(b)(l)-(3). However, a prospective juror would be challengeable for cause if he could not consider the full range of punishment for intoxication manslaughter (in a prosecution for that offense) even if he could consider the full range for “ordinary” manslaughter, because the two offenses are found in separate Penal Code sections. See and compare § 19.04 (Manslaughter) and § 49.08 (Intoxication Manslaughter). This result holds true under the “section” formulation of the holistic approach — despite the fact that the two manslaughter offenses have the same range of punishment and are as much alike as intentional murder and felony murder are alike.

¶18There is no reason to believe that the Legislature organized the offenses in its statutes with jury selection in mind; in fact, the prospect seems unlikely. Hence, no legitimate reason exists for treating offenses differently for jury selection purposes simply because of differences in offense grouping.

¶19Further, there is no reason to believe that someone guilty as a party must necessarily be less culpable than one guilty as a principal. In some cases the accomplice may be less culpable, but in other cases he may be more culpable: sometimes the accomplice is the dominating influence exerted during the crime or the lead figure who plans the crime or sets the criminal action into motion. And, perhaps more importantly, the law of parties, when implicated, is functionally an element of the offense tried, and it makes little sense to attempt to distinguish that particular element from other elements for range of punishment purposes.

¶20Similarly, a defendant’s status as the “principal” is a legal classification to which the full range of punishment attaches. Being charged as a principal simply means that the State relies upon the elements of the specific offense without the benefit of the law of parties.

¶21The classification approach to range of punishment issues avoids the problems inherent in the holistic approach. We need not attempt to pick and choose which legislative provisions require a respect for range of punishment and which do not. We need not draft a principle of law that will result in treating similarly related offenses differently. And we need not ignore the apparent legislative intent to subject its classifications to the ranges of punishment it specifies. A principled, bright-line rule is drawn by a rule that states: a prospective juror must be able to consider the full range of punishment for any legislative classification, implicated by the indictment, to which the range of punishment could apply.

¶22The present case involves the distinction between principals and parties. Because liability as a principal involves a legal classification to which the full range of punishment could apply — to wit, the elements of the offense charged (without the benefit of the law of parties) — the prospective jurors in the present case were challengeable for .cause *411because they could not consider the full range of punishment for a principal.

¶23With these comments, I join the majority opinion.

¶26concurring and dissenting.

¶27I concur to remanding this case to the Court of Appeals for a harm analysis. However, I dissent to the Court’s holding that the veniremembers were challengeable for cause.

¶28Both parties in a criminal case have a statutory right to challenge veniremembers who have a bias or prejudice against a phase of the law upon which a party is entitled to rely. See Article 85.16(b)(8) and (c)(2), V.A.C.C.P. The obvious intent of Article 35.16 is to effectuate a defendant’s Sixth Amendment right to an impartial jury while also providing the prosecution a statutory right to an impartial jury. In other words, our Legislature has statutorily decided that both sides in a criminal case are entitled to a fair trial.

¶29The veniremembers in this case were not challengeable for cause under this Court’s decision in Garrett v. State which overruled direct precedent, and has been used to overrule various other parallel precedents,1 of this Court. See Garrett v. State, 851 S.W.2d 853, 860 (Tex.Cr.App.1993), and at 861-64 (Campbell, J.) (discussing parallel precedents Garretteffectively overruled). Fairly and consistently applied, Garrettshould cut a wide swath through this Court’s parallel precedents making no distinctions between defense challenges for cause and prosecution challenges for cause. See Garrett, 851 S.W.2d at 861-64 (Campbell, J., dissenting). To be consistent with Garrett, Howard, Zinger and Castillo, the Court should decide the veniremembers in this case were not challengeable for cause.

¶30Garrettrelied on what it characterizes as a veniremember’s “minimum threshold level of reasonable doubt” rationale to overrule precedent which had held a veniremember who categorically refuses in a capital case to consider affirmatively answering the “future dangerousness” special issue based on the facts of the offense itself is subject to a challenge for cause. See Garrett, 851 S.W.2d at 857-61.2 The rationale for the unprecedented new rule announced in Garrettis “a venireperson who categorically refuses to answer the [“future dangerousness”] special issue on nothing more than evidence of the capital offense itself may only be indicating that his threshold for proof beyond a reasonable doubt is somewhat higher than the minimum that the law recognizes as sufficient.”3Radial v. State, 917 S.W.2d 799, 820 (Tex.Cr.App.) (Clinton, J., concurring in the judgment), cert.denied, — U.S.-, 117 S.Ct. 614, 136 L.Ed.2d 539 (1996) (explaining Garrett’s rationale); see Garrett, 851 S.W.2d at 860 (veniremember “who indicates he would set his reasonable doubt threshold higher than the legal minimum” does not demonstrate a prejudice against the law).4

¶31*412After Garrett, this veniremember is not subject to a challenge for cause unless he says “he would not answer the [“future dangerousness”] special issue affirmatively [based on the facts of the offense itself] even if the facts of the offense itself convinced him beyond a reasonable doubt that” this special issue should be answered affirmatively. See Rachal, 917 S.W.2d at 820-21 (Clinton, J., concurring in the judgment). Under Garrett, this veniremember “really does hold the State to a higher burden of proof than the law allows.” Id.

¶32Garrett’s “minimum threshold level of reasonable doubt” rationale was applied in Castillo to overrule more precedent which had held a veniremember who categorically refuses to consider convicting on the basis of one eyewitness is subject to a challenge for cause.5 See Castillo, 913 S.W.2d at 532-35.6 After Castillo, this veniremember is not subject to a challenge for cause unless he categorically refuses to consider convicting on the basis of one eyewitness even if he believes that witness beyond a reasonable doubt. See Castillo, 913 S.W.2d at 533; see also Rachal, 917 S.W.2d at 818-21 (Clinton, J., concurring in the judgment).7

¶33Garrett’s “minimum threshold level of reasonable doubt” rationale was applied in Howard to overrule more parallel precedent to the effect that a veniremember who categorically refuses in a capital case to consider affirmatively answering the “future dangerousness” special issue without evidence the defendant had committed a prior murder is subject to a challenge for cause. See Howard, 941 S.W.2d at 127-29 (op. on reh’g).8 After Howard, this veniremember is not subject to a challenge for cause unless she categorically refuses to consider affirmatively answering the “future dangerousness” special issue without evidence the defendant had committed a prior murder even if other evidence convinces her beyond a reasonable doubt that this special issue should be answered affirmatively. See Howard, 941 S.W.2d at 127 (op. on reh’g); see also Rachal, 917 S.W.2d at 818-21 (Clinton, J., concurring in the judgment).

¶34In this case, the veniremembers categorically refused to consider the minimum (or full range of) punishment for a defendant convicted as a principal. Under Garrett’s rationale, these veniremembers were not subject to a challenge for cause. They did not say they would categorically refuse to consider the minimum punishment even if the evidence otherwise convinced them the minimum punishment was appropriate. These veniremembers merely indicated their threshold for being convinced the minimum *413punishment should be assessed was “somewhat higher than the minimum that the law recognizes as sufficient.” Compare Rachal, 917 S.W.2d at 820 (Clinton, J., concurring in the judgment). “Unless we are prepared to hold that jurors must always” assess the minimum punishment, then under Garrettit cannot be said that such veniremembers have “a bias against the law.” Compare id.

¶35Garrettrejects the principle that venire members must be able to keep an open mind with respect to punishment until they hear the evidence in the case being tried. But, this essentially is the principle the Court’s opinion applies in this case to decide the defense challenges for cause were erroneously denied. See majority opinion, Johnson v. State, 406 S.W.2d at 4 (prospective jurors must be able to keep an open mind with respect to punishment until they hear the evidence in the case being tried).

¶36To support its holding in this case, footnote three of the Court’s opinion claims “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.” (Emphasis in Original). This states a pre-Garrett holding of this Court in Phillips v. State, 701 S.W.2d 875 (Tex.Cr.App.1985), cert.denied, 477 U.S. 909, 106 S.Ct. 3285, 91 L.Ed.2d 574 (1986) (veniremember who says he could never answer special issues in such a way as to require imposition of the death penalty for defendant found guilty of capital murder as a party was subject to prosecution challenge for cause).

¶37Therefore, the Court essentially relies on Phillips for its holding in this ease. But, Phillips and Garrettcannot be reconciled. Under Garrett, a veniremember like the one in Phillips is not challengeable for cause because this veniremember merely indicates his “threshold for proof beyond a reasonable doubt” is somewhat higher than the minimum that the law recognizes as sufficient. See Garrett, 851 S.W.2d at 860. It would appear Phillips is another one of Garrett’s collateral casualties. See Garrett, 851 S.W.2d at 861-64 (Campbell, J., dissenting).

¶38Notwithstanding the foregoing, Garrett’s “minimum threshold level of reasonable doubt” rationale is an irrelevant rabbit trail, and I would use this case to overrule Garrett. While a veniremember like the one in Garrettarguably may not increase the State’s burden of proof, there is another and more important reason why this veniremember is subject to a challenge for cause which Garrettand its progeny completely ignored even though raised by the losing party in each one of these cases. See Zinger, 932 S.W.2d at 518 (McCormick, P.J., dissenting) (Garrett and Castillo completely ignored the losing party’s alternative contentions on why the veniremembers were subject to a challenge for cause).9

¶39The simple fact of the matter is the venire-members in Garrettand Castillo demonstrated an inability to follow the law by categorically refusing to consider all the evidence in deciding guilt and punishment issues. But see majority opinion, Johnson, 406 at 4 (prospective jurors must be able to keep an open mind with respect to punishment until they hear the evidence in the case being tried). A trial court does not abuse its discretion to decide that a veniremember, who categorically refuses to consider affirmatively answering the “future dangerousness” special issue based on the facts of the offense itself, demonstrates an inability to consider all the evidence in answering this special issue which also effectively demonstrates an inability to consider the full range of punishment for the offense. A trial court does not abuse its discretion to decide that a veniremember, who categorically refuses to consider convicting on the basis of one eyewitness, demonstrates an inability to consider all the evidence in deciding guilt. A trial court does not abuse its discretion to decide these veniremembers demonstrate an inability to follow their oaths to render a verdict “according to the law and the evidence.” See Article 35.22, V.A.C.C.P.10

¶40*414Garrett’s “minimum threshold level of reasonable doubt” rationale also is based on a flawed premise. This premise is that without Garrettwe must be “prepared to hold that jurors must always be convinced beyond a reasonable doubt on the basis of legally sufficient evidence.” See Castillo, 913 S.W.2d at 533; Rachal, 917 S.W.2d at 820 (Clinton, J., concurring in the judgment) (explaining the premise of the “minimum threshold level of reasonable doubt” rationale). This is incorrect. All we must be prepared to hold is that jurors must be able to consider all the evidence in deciding guilt and punishment issues. See Article 35.22. And, a veniremember who categorically refuses to do so is challengeable for cause. This is what I always thought the law was until Garrettand its progeny came along.

¶41This case demonstrates Garrett’s flawed premise. In reversing this conviction, I do not understand the Court’s opinion to hold that jurors must always assess the minimum punishment. I understand the Court’s opinion to hold jurors should be able to consider assessing the minimum punishment under appropriate circumstances. This is no different from saying a veniremember should be able to consider convicting on the basis of one eyewitness (Castillo) or should be able to consider affirmatively answering the “future dangerousness” special issue based on the facts of the offense (Garrett).

¶42However, Garretthas effectively interpreted Article 35.16 to mean the parties (or, at least the prosecution) in a criminal case are not entitled to a favorable ruling on a challenge for cause to veniremembers who categorically refuse to consider all the evidence in deciding guilt and punishment issues.11 In Garrettthe veniremember demonstrated an inability to consider the full range of punishment by categorically refusing to consider all the evidence in answering the “future dangerousness” special issue. Similarly the veniremembers in this case demonstrated an inability to consider all the evidence in deciding punishment by categorically refusing to consider the full range of punishment for a defendant convicted as a principal. They were not challengeable for cause under Garrett.

¶43In this case, the Court should either overrule Garrettor follow it. The Court picks a third and what I consider to be the least desirable option which is to wholly ignore Garrettcreating a glaring inconsistency and imbalance in how the Court interprets Article 35.16(b)(3) (prosecution challenges for cause) and Article 35.16(c)(2) (defense challenges for cause).

¶44As this case demonstrates, Garrettapparently applies only to prosecution challenges for cause which means the citizens of this State, acting through them officials, are not entitled to a fair trial. This stands the clear legislative intent of Article 35.16(b)(3) on its head.

¶45With these comments, I join the Court’s judgment to remand the case to the Court of Appeals for a harm analysis. I dissent to everything else.