Palmer, Gary Marshal ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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PD-1889-05 & PD-1890-05

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GARY MARSHALL PALMER, Appellant

v.

THE STATE OF TEXAS

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On Petitions for Discretionary Review of Cases 14-04-00044-CR & 14-04-00045-CR of the Fourteenth Court of Appeals Harris County

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Womack, J., filed a dissenting opinion, in which Price and Johnson, JJ., joined.

I repeat what I said for four members of the court in another case of a crying venire member, when we "f[ou]nd no error because we defer to the trial court's seeing the jurors' demeanors and hearing the jurors' voices."

This is a venerable rule for reviewing credibility decisions, to which there is little alternative in a close case. My question is, why permit close cases in selecting jurors?

When a court faces an issue of fact, it must rely on limited sources of information. Only so many witnesses will have relevant information about a contested issue of fact. When evidence conflicts, hard choices must be made. The trial judge is the person whose decision must be respected. But there is ordinarily no such need when it comes to deciding whether a citizen is qualified for jury service. If the question is close, the juror can be sent away.

We said exactly that a few years ago. We applied our harmless-error standard to a line of cases in which we had held that judgments of conviction would be reversed when a State's challenge for cause was erroneously granted. We said, "By the standards of stare decisis, analysis of precedent, and logic, th[at] holding … is unsupportable. It is also contrary to a policy which we think courts should follow: the liberal granting of challenges for cause. The venire comprises so many jurors who are clearly qualified that it is unnecessary to err by denying a challenge for cause on a close question." Jones v. State, 982 S.W.2d 386, 394 (Tex. Cr. App. 1998).

Maybe the trial court could see in Venire Member Hawkins's demeanor and hear in her voice something that I cannot read in her words, that she could excuse a murderer from the death penalty. But I do think that, when a potential juror in a capital murder case is crying about the murder of her relative and thinks that no one who has killed another should be allowed to live, we could ask our trial judges to let her go to a court that is trying a theft case and bring in another person for the murder trial. If [Ms. Hawkins] were an eyewitness to the crime, she might well be irreplaceable. But as a juror, she easily could have been replaced. I do not say that the trial judge's decision of this close question of fact was wrong. But it was contrary to the policy that courts should follow.

Threadgill v. State, 146 S.W.3d 654, 674 (Tex. Cr. App. 2004) (concurring opinion).

Trial courts should excuse prospective jurors who are brought to tears by memories of similar crimes that affected them. There is no need for close calls.

In Jones, we reevaluated our standards for harmless error in denying a defendant's challenge for cause. We adopted a standard that led to affirming more convictions in which trial courts committed such errors. We did so, in part, because this court embraced the policy of liberal granting of challenges for cause. But we choose today not to carry out that policy when it would lead to reversal. I would not renege on our opinion in Jones.

I dissent.

Filed September 20, 2006.

Do Not Publish.