Witherspoon doctrine in Texas

2009Adams, 448 U.S. at 50 , 100 S.Ct. 2521 ; see also Lockett v. Ohio, 438 U.S. 586, 595-96 , 98 S.Ct. 2954 , 57 L.Ed.2d 978 (1978) (no Witherspoon violation if prospective juror’s conviction so strong he could not take oath, knowing death penalty possible).

2009Adams, 448 U.S. at 50 , 100 S.Ct. 2521 ; see also Lockett v. Ohio, 438 U.S. 586, 595-96 , 98 S.Ct. 2954 , 57 L.Ed.2d 978 (1978) (no Witherspoon violation if prospective juror’s conviction so strong he could not take oath, knowing death penalty possible).

2015But the Supreme Court has explained that the broad language in Gray was too sweeping to be applied literally and should not be extended beyond the context of the “‘erroneous Witherspoon exclusion’ of a qualified juror in a capital case.” This Court has also held that, when Witherspoon error is not at issue, the erroneous excusal of a veniremember will call for reversal “only if the record shows that the error deprived the defendant of a lawfully constituted jury.” Under Jones, the question is whether or not the jurors who actually sat were impartial.” Gamboa v. State, 296 S.W.3d 574, 590 (Tex.

2015But the Supreme Court has explained that the broad language in Gray was too sweeping to be applied literally and should not be extended beyond the context of the “‘erroneous Witherspoon exclusion’ of a qualified juror in a capital case.” This Court has also held that, when Witherspoon error is not at issue, the erroneous excusal of a veniremember will call for reversal “only if the record shows that the error deprived the defendant of a lawfully constituted jury.” Under Jones, the question is whether or not the jurors who actually sat were impartial.” Gamboa v. State, 296 S.W.3d 574, 590 (Tex.

2009Appellant relies on Gray v. Mississippi to support his position.6 But the Supreme Court has explained that the broad language in Gray was too sweeping to be applied literally and should not be extended beyond the context of the “erroneous Witherspoon exclusion” of a qualified juror in a capital case.”7 This Court has also held that, when Witherspoon error is not at issue, the erroneous excusal of a veniremember will call for reversal “only if the record shows that the error deprived the 4 Brooks v. Dretke, 444 F.3d 328 (5th Circuit 2006) . 5 Gray v. Mississippi, 481 U.S. 648 (1987). 6 Gray, 48

1987NOTES [1] We will use the term "ground of error," because it was proper when appellant's appeal was filed and was used by appellant in his brief. [2] Witherspoon v. Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968). [3] Although the venire member in Grijalva, supra, was erroneously excluded on Witherspoon, supra, grounds, the rationale of Grijalva clearly applies to all challenges for cause in death penalty cases since this Court specifically held that the decision was based on State law grounds and was not limited to Witherspoon error.

1980See n. 5, ante. .Of course, no objection .was voiced in Witherspoon itself, nor in Maxwell v. Bishop, 398 U.S. 262 , 90 S.Ct. 1578 , 26 L.Ed.2d 221 (1970); and in Boulden v. Holman, 394 U.S. 478 , 89 S.Ct. 1138 , 22 L.Ed.2d 433 (1969) the defense actually assented to exclusions, as did the defense in State v. Wiggiesworth, 18 Ohio St.2d 171 , 248 N.E.2d 607 (1969) [holding defendant waived Witherspoon error], reversed per curiam in Wiggiesworth v. Ohio, 403 U.S. 947 , 91 S.Ct. 2284 , 29 L.Ed.2d 857 (1971).

1980See n. 5, ante. .Of course, no objection .was voiced in Witherspoon itself, nor in Maxwell v. Bishop, 398 U.S. 262 , 90 S.Ct. 1578 , 26 L.Ed.2d 221 (1970); and in Boulden v. Holman, 394 U.S. 478 , 89 S.Ct. 1138 , 22 L.Ed.2d 433 (1969) the defense actually assented to exclusions, as did the defense in State v. Wiggiesworth, 18 Ohio St.2d 171 , 248 N.E.2d 607 (1969) [holding defendant waived Witherspoon error], reversed per curiam in Wiggiesworth v. Ohio, 403 U.S. 947 , 91 S.Ct. 2284 , 29 L.Ed.2d 857 (1971).

2002See Gauldin v. State, 683 S.W.2d 411, 413 (Tex.Cr.App.1984) (statements obtained in violation of Miranda), overruled on other grounds, State v. Guzman, 959 S.W.2d 631, 634 (Tex.Cr.App.1998); Mendoza v. State, 552 S.W.2d 444, 450 (Tex.Cr.App.1977) (trial court did not commit fundamental error by allowing testimony that denied defendant federally guaranteed constitutional rights; defendant was required to object to preserve this error); Boulware v. State, 542 S.W.2d 677, 682-83 (Tex.Cr.App.1976) (Witherspoon error), ce rt. denied, 430 U.S. 959 , 97 S.Ct. 1610 , 51 L.Ed.2d 811 (1977); Gibson v. S

1980Hovila v. State, 532 S.W.2d 293 (Tex.Cr.App.1975) reflects just such an understanding of the Witherspoon doctrine, whereas Boulware v. State, 542 S.W.2d 677 (Tex.Cr.App.1976) in overruling Hovila, id. at 683 , did not.

1970See also Branch v. State, Tex.Cr.App., 447 S.W.2d 932 ; Whan v. State, Tex.Cr.App., 438 S.W.2d 918 ; Thames v. State, Tex.Cr.App., 453 S.W.2d 495 .

1970See also Branch v. State, Tex.Cr.App., 447 S.W.2d 932 ; Whan v. State, Tex.Cr.App., 438 S.W.2d 918 ; Thames v. State, Tex.Cr.App., 453 S.W.2d 495 .

1980No defendant can constitutionally be put to death at the hands of a tribunal so selected." The Court further stated: "Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position." *246 In Davis v. Georgia, 429 U.S. 122 , 97 S.Ct. 399 , 50 L.Ed.2d 339 (1976), the Court reaffirmed the Witherspoon doctrine.

1980No defendant can constitutionally be put to death at the hands of a tribunal so selected." The Court further stated: "Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position." *246 In Davis v. Georgia, 429 U.S. 122 , 97 S.Ct. 399 , 50 L.Ed.2d 339 (1976), the Court reaffirmed the Witherspoon doctrine.

1984The State does not violate the Witherspoon doctrine when it excludes prospective jurors who are unable or unwilling to address the penalty questions with this degree of impartiality. * * * * * * "We repeat that the State may bar from jury service those whose beliefs about capital punishment would lead them to ignore the law or violate their oaths." In Williams v. State, 622 S.W.2d 116, 118 (Tex.Cr.App.1981), it was held that certain veniremen whose views on the death penalty would have prevented or substantially impaired their performance as jurors in accordance with their instructions were pr

1984The State does not violate the Witherspoon doctrine when it excludes prospective jurors who are unable or unwilling to address the penalty questions with this degree of impartiality. * * * * * * "We repeat that the State may bar from jury service those whose beliefs about capital punishment would lead them to ignore the law or violate their oaths." In Williams v. State, 622 S.W.2d 116, 118 (Tex.Cr.App.1981), it was held that certain veniremen whose views on the death penalty would have prevented or substantially impaired their performance as jurors in accordance with their instructions were pr

1980While the disposition in Harris, supra, was subsequently reversed by the United States Supreme Court in Harris v. Texas, 403 U.S. 947 , 91 S.Ct. 2291 , 29 L.Ed.2d 859 (1971), we are safe in assuming that the reversal did not implicate the language quoted above. [9] In synopsizing its decision in Witherspoon , the Supreme Court observed that "[t]he State was held to have no valid interest in such a broad-based rule of exclusion.... * * * The defendant, on the other hand, was seriously prejudiced by the State's practice." Adams, 100 S.Ct. at 2525 . [10] In Velasquez, supra, the second question p

1980See also Harris v. State, 457 S.W.2d 903 (Tex.Cr.App.1970) [holding that Witherspoon error was waived by failure of defense to object], re versed in Harris v. Texas, 403 U.S. 947 , 91 S.Ct. 2291 , 29 L.Ed.2d 859 (1971).

1970The jury was selected in a manner consistent with the Texas rule discussed in Pittman v. State, Tex.Cr.App., 434 S.W.2d 352 and Scott v. State, Tex.Cr.App., 434 S.W.2d 678 , which was held not to contravene the Witherspoon doctrine.

1970The jury was selected in a manner consistent with the Texas rule discussed in Pittman v. State, Tex.Cr.App., 434 S.W.2d 352 and Scott v. State, Tex.Cr.App., 434 S.W.2d 678 , which was held not to contravene the Witherspoon doctrine.

2009Appellant relies on Gray v. Mississippi to support his position.6 But the Supreme Court has explained that the broad language in Gray was too sweeping to be applied literally and should not be extended beyond the context of the “erroneous Witherspoon exclusion” of a qualified juror in a capital case.”7 This Court has also held that, when Witherspoon error is not at issue, the erroneous excusal of a veniremember will call for reversal “only if the record shows that the error deprived the 4 Brooks v. Dretke, 444 F.3d 328 (5th Circuit 2006) . 5 Gray v. Mississippi, 481 U.S. 648 (1987). 6 Gray, 48

2003Under Witherspoon , a venire-person would be excluded “only where they made it unmistakably clear they would automatically vote against the imposition of the death penalty, or where their attitude would preclude them from making an impartial determination of guilt or innocence.” Drinkard v. State, 776 S.W.2d 181, 182 (Tex.Crim.App.1989).

2003Under Witherspoon , a venireperson would be excluded "only where they made it unmistakably clear they would automatically vote against the imposition of the death penalty, or where their attitude would preclude them from making an impartial determination of guilt or innocence." Drinkard v. State, 776 S.W.2d 181, 182 (Tex.Crim.App.1989).