Castillo v. State

OPINION ON APPELLANT’S PETITION FOB DISCRETIONARY REVIEW

CLINTON, Judge.

A jury convicted appellant of possession with intent to deliver cocaine and assessed punishment at confinement for twelve years. On appeal appellant complained, inter alia, that the trial court erred in granting the State’s challenge for cause against venireman Noel Blaydes on the ground that he harbored a bias against some aspect of the law upon which the State was entitled to rely. Article 35.16(b)(3), V.A.C.C.P. The trial court had granted the State’s challenge that Blaydes was unable to consider convicting an accused on the basis of the testimony of a single witness. Appellant contends that Blaydes’ voir dire reveals nothing more than that his threshold for reasonable doubt is higher than the legal minimum to justify conviction, and that granting the State’s challenge for cause was error under this Court’s opinion in Garrett v. State, 851 S.W.2d 853 (Tex.Cr.App.1993).

The court of appeals rejected appellant’s contention, holding that propriety of the trial court’s grant of the State’s challenge for cause was governed, not by Garrett, but by our earlier opinion in Caldwell v. State, 818 S.W.2d 790 (Tex.Cr.App.1991). Accordingly the court of appeals affirmed the conviction. Castillo v. State, 867 S.W.2d 817 (Tex.App.—Dallas 1993). In his petition for discretionary review, appellant now contends that our opinion in Garrett effectively overruled Caldwell, and that the court of appeals therefore erred to dispose of his contention on appeal on the basis of the latter. We granted appellant’s petition to address this contention. Tex.R.App.Pro., Rule 200(e)(2) & (3).

I.

During the prosecutor’s questioning of the jury panel he asked whether anyone would need more than a single witness to a crime. Blaydes responded, “I have one police officer tell me that a man was guilty: that is all I had, I couldn’t say guilty. I couldn’t do it.” Later during individual questioning, Blaydes reaffirmed his position:

“[Prosecutor]: You had indicated that you would have trouble deciding this case if we brought you testimony of only one police officer. Could you explain what is the genesis of that?

[Blaydes]: Well, I was a drug agent for a couple of years there, and I just ran into and encountered so many things with various law enforcement persons that I worked with, and I have known of more than one to get their story — to not get their stories straight and lie, frankly. I would be able to convict with two, but not with one. It’s just no way. No way I could find guilty with just one officer. There would be a reasonable doubt. Be automatic.

[Prosecutor]: Automatic?

[Blaydes]: Automatic reasonable doubt.

The Court: I’m not sure that that is grounds for a challenge.

I would think that, Mr. Blaydes, the question that he asked was if you believed the witness?

[Blaydes]: I wouldn’t automatically believe the witness.

The Court: But the way he asked the question was if you believed the witness? [Blaydes]: ‘If is such a big word, I would not believe. If it was just one witness, I would not automatically.

The Court: You would prejudge?

[Blaydes]: Yes, I would prejudge one peace officer; not two or three, but one, yeah. I have a problem with that because drug cases are just so different, as far as I’m concerned, than other types of criminal cases.

⅜ ⅜ * ⅜: *

[Defense Counsel]: The scenario that has been painted is that if there was one witness, and that one witness gave testimony, are you saying that no matter how credible, even if you believed him a hundred percent, you would still not be able to fairly decide this case based on just one person’s testimony?

[Blaydes]: No. If he convinced me, if he convinced me, and there were other corroborative testimony, that it was crack, you know, and—

[Defense Counsel]: You know, the other corroborative evidence might not be another live person, but may be physical evidence; so, if there was — if that one witness convinced you, then you had other things corroborated it, you could believe that one witness?

[Blaydes]: I’ll be honest with you, what I would do, I would pray and ask God whether the man was telling me the truth, the police officer, and if God told me, yes, and there was other evidence that it was crack that was taken into, you know, as evidence, yeah, yeah, I would find your man guilty.

[Defense Counsel]: Okay.

The Court: That is with one witness?

[Blaydes]: With one witness right. See, I would be under pressure in there, but if I got the — got the answer when I prayed over it, if the one witness was telling the truth, I would find that man guilty.

⅜ * ⅜ * *

[Prosecutor]: One further question. I don’t mean this is in a disrespectful way. You said if you got the answer?

[Blaydes]: Yes, it’s possible it might not— [Prosecutor]: What if you prayed over it, and you didn’t get an answer?

[Blaydes]: That is why I was doing this. With — with all I know, if I was under pressure, wasn’t given enough time to get an answer, very quick trial, then I would have to acquit because there would be a reasonable doubt there. You see, there is an — automatically reasonable doubt unless I have been given some sort of sign, because anyone could say anything.

[Prosecutor]: I understand that. I understand that.

The Court: [Defense Counsel], do you have additional questions?

[Defense Counsel]: No, Your, Honor.

The Court: I’m going to grant the challenge.

Mr. Blaydes, let me assure you that you have the right to believe as you desire, as you have indicated. It’s just that both sides have the right to have twelve jurors come in without some preconceived idea, and able to sit and listen to the evidence before they make up their mind as to whether or not to believe a witness, and here you have indicated to me that you would prejudge the facts; that there is only one peace officer, you can’t believe them?

Playdes]: No, it doesn’t necessarily mean he’s telling the truth. That would be prejudging him, to just believe he’s a police officer; he’s automatically telling the truth.

The Court: What I’m saying, you have already prejudged the facts that you couldn’t convict on the testimony of one peace officer, is that correct?

[Blaydes]: Not for this particular offense. For other offenses, yeah, but not for this particular offense.

The Court: So—

[Blaydes]: Kind of risky.”

The trial court then granted the State’s challenge for cause, without articulating a legal basis.

On appeal, appellant contended that the trial court erred to grant the State’s challenge for cause against Blaydes, who had indicated nothing more than that he would “set his threshold of reasonable doubt higher than the minimum required to sustain a jury verdict[.]” Castillo v. State, supra, at 823. Conceding that this Court’s opinion in Caldwell v. State, supra, had held that a venireman who refuses to consider rendering a guilty verdict on the testimony of only a single eyewitness is subject to a State’s challenge for cause, appellant contended that we effectively overruled Caldwell in our subsequent opinion in Garrett v. State, supra. In rejecting this argument, the court of appeals drew a distinction between Garrett and Caldwell:

We do not read Garrett so broadly. Garrett concerns only the venireman’s bias or prejudice against the law at the punishment phase of a capital trial. This case involves bias or prejudice against the law at the guilt-innocence phase. The considerations for and evidence adduced at these two phases are different.

At the punishment phase of a capital case, the law does not limit the State to presenting only the facts of the offense. To prove future dangerousness, the State can present evidence of the defendant’s background and character, criminal record, psychiatric history, and any other evidence the court deems relevant, [citations omitted.]

However, at the guilt-innocence phase, the State can only present the existing evidence of the offense. If there is only one witness to the offense, the State has the right to have the case tried by jurors who will objectively consider the testimony of that one witness. See Caldwell, 818 S.W.2d at 797. If the only witness is a police officer, the State has the right to have the case tried by jurors who will objectively consider the police officer’s testimony. Cf. Leach v. State, 770 S.W.2d 903, 907-08 (Tex.App.— Corpus Christi 1989, pet. ref'd).

The Court of Criminal Appeals has always allowed the State to challenge for cause veniremen who express an inability to convict based solely on a class of legitimate evidence. * * * Garrett contains no indication that the Court of Criminal Appeals intended to overrule this line of case law. We conclude Garrett does not apply in this case.

In his petition for discretionary review appellant continues to insist that this Court effectively overruled Caldwell in Garrett. We granted his petition to address the question whether in principle Garrett and Caldwell can be meaningfully distinguished as the court of appeals believed they could. We hold they cannot.

II.

A

In Caldwell the trial court granted a State’s challenge for cause against venireman Hacker. Hacker had acknowledged that “under no circumstances would [he] be able to base a [guilty] verdict on the testimony of one witness.” 818 S.W.2d at 797. Analogizing to cases in which we had approved challenges for cause against veniremen who could not convict on the basis of purely circumstantial evidence, this Court held that Hacker had indicated a bias against a phase of the law the State was entitled to rely on:

“since he would have held the State to a higher burden of proof than that required by law. To force the State to prove its case with more than one eyewitness is an even greater burden on the State than was extant in [the circumstantial evidence cases], and such a sentiment clearly subjected [Hacker] to a challenge for cause.”

Id. We therefore ruled that the trial court committed no error in granting the State’s challenge.

Like Caldwell, Garrett was a capital prosecution. There the trial court granted a State’s challenge for cause against venireman Bradley, who had indicated that he could never answer the second special issue at the punishment phase affirmatively based on no more evidence than the facts of the capital offense itself. See former Article 37.071, § (b)(2), V.A.C.C.P. On appeal we observed, however, that a venireman’s categorical refusal to find a capital defendant would constitute a continuing threat to society based only on the facts of the offense did not amount to a bias against the law. We reasoned:

“[Tjhat the law permits jurors to find future dangerousness in some cases on the facts of the offense alone does not mean that all jurors must do so, or even consider doing so. A particular juror’s understanding of proof beyond a reasonable doubt may lead him to require more than the legal threshold of sufficient evidence to answer the second special issue affirmatively. There is nothing unlawful about that; in fact, quite the opposite.”

Garrett, supra, at 859 (emphasis in the original). Accordingly we held “that a venireman is not subject to challenge for cause merely because he indicates he would require more evidence than the legal minimum in order to answer special issue two affirmatively.” Id., at 860.

In his dissenting opinion in Garrett Judge Campbell observed that the Court’s holding was “flatly incompatible” with, inter alia, our earlier holding in Caldwell. Notably, the majority in Garrett did not disagree. We now hold that a venireman who categorically refuses to render a guilty verdict on the basis of only one eyewitness is not challengeable for cause on that account so long as his refusal is predicated on his reasonable understanding of what constitutes proof beyond a reasonable doubt. To the extent it conflicts with this holding, we overrule Caldwell.

Like venireman Bradley in Garrett, a venireman who categorically refuses to render a guilty verdict on the basis of a single eyewitness 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. Unless we are prepared to hold that jurors must always convict on the basis of legally sufficient evidence, we cannot say that such a venireman has a bias against the law. We were mistaken in Caldwell to assume that a venireman who will not convict on the basis of one eyewitness is necessarily holding the State to a higher burden than that required by law. As long as the law permits a range of “reasonable doubt,” the individual venireman who says he will hold the State to the high end of the range is not requiring anything that the law does not tolerate. Unless reasonable doubt is a fixed point — unless, in other words, the law requires a jury to convict whenever presented with legally sufficient evidence — a venireman who will not be convinced beyond a reasonable doubt on the testimony of a single eyewitness is nevertheless a venireman who can follow the law. If the State does not want that venireman on the jury, it is obliged to use one of its statutorily allotted peremptory challenges to remove him. Garrett, supra, at 861.

B.

This is not to say that a venireman who maintains he would never convict on the basis of one eyewitness is never properly the subject of a State’s challenge for cause. It depends upon the reason he says he would never convict. A venireman who says, for instance, that he could not convict even if he believed the State’s only eyewitness, and that testimony convinced him beyond a reasonable doubt of the defendant’s guilt, can be challenged for cause, Garrett notwithstanding. Such a venireman really does hold the State to a higher burden of proof than the law allows. He has an agenda of his own for conviction, but one which bears no relation to the law. If he cannot set his personal agenda aside, he should be excused at the State’s demand. Article 35.16(b)(3), V.A.C.C.P.

A ready example of a venireman who is challengeable for cause notwithstanding our opinion in Garrett is, ironically, the venireman in Caldwell itself. In Caldwell Hacker acknowledged during his voir dire that “even if [he] heard one eyewitness and [he] believed the witness beyond a reasonable doubt and that eyewitness’ testimony prove[d] the indictment beyond a reasonable doubt, [he] would still require additional evidence before [he] would return a verdict of guilty[.]” 818 S.W.2d at 796. Hacker was therefore chal-lengeable for cause because he would not convict on the basis of a single eyewitness even if that was enough to convince him of guilt beyond a reasonable doubt. His excu-sal was therefore not inconsistent with our rationale in Garrett. However, to the extent we held in Caldwell that Hacker was necessarily challengeable for cause only because he would not convict on the basis of a single witness, without more, we erred.

It is the burden of the challenging party to demonstrate that the venireman he seeks to challenge is in fact incapable of, or at least substantially impaired from, following the law. Hernandez v. State, 757 S.W.2d 744, 753 (Tex.Cr.App.1988) (Plurality opinion). In the present context this means that before the trial court may sustain a State’s challenge for cause on the ground that the venireman will not convict on the testimony of a single eyewitness, it must be demonstrated to the trial court that the venireman’s categorical refusal is predicated upon something other than his understanding of proof beyond a reasonable doubt. Otherwise there is no indication the venireman cannot follow the law, and the State has failed to carry its burden to show the venireman should be excused.

C.

Our holding in Garrett is largely unaffected by Geesa v. State, 820 S.W.2d 154 (Tex.Cr.App.1991). In Geesa we mandated that juries in all criminal cases be instructed on a definition of “reasonable doubt.” The trial in Garrett occurred well before the prospective holding in Geesa went into effect. Therefore, even though we decided Garrett after Geesa, we had no occasion there to discuss it. The instant cause, by contrast, was tried in July of 1992, well after Geesa was decided. Nevertheless, though we must consider Geesa, it does not change our disposition today.

We held in Geesa that in all criminal cases the trial court should instruct the jury that reasonable doubt, inter alia, “is the kind of doubt that would make a reasonable person hesitate to act in the most important of his own affairs.” To the extent that reasonable persons may entertain different thresholds of hesitation in acting in the most important of their own affairs, however, even after Geesa the law continues to recognize a range of “reasonable doubt.” So long as it is possible to say that a venireman could reasonably “hesitate to act in the most important of his own affairs” on the basis of minimally sufficient evidence, Geesa, supra, at 162, it is his prerogative to refuse to convict on that evidence. His refusal does not show a bias or prejudice against the law in any respect.

The State could have attempted to demonstrate that Blaydes would not convict on the basis of a single police witness even if that kind of evidence were sufficient to remove whatever reasonable hesitation he might harbor to act in the most important of his own affairs. Had the State successfully demonstrated this, the record would support granting the State’s challenge for cause against him. Failing that, the State has not sustained its burden to show he cannot follow the law, Geesa notwithstanding.

D.

Finally, we reject the court of appeals’ punishment-phase-versus-guilt-phase dichotomy as the proverbial distinction without a difference. Whether it is deliberating upon a defendant’s guilt or deciding how to answer the special issues at the punishment phase, a jury is authorized by law to make a finding detrimental to the accused only if the evidence is convincing to a level of confidence beyond a reasonable doubt. In either context it is up to the individual juror to decide for himself his own understanding of proof beyond a reasonable doubt, within the tolerances of the law. A venireman who indicates he will set his threshold for reasonable doubt higher than the minimum allowed by law does not thereby demonstrate an inability to follow the law. This is true irrespective of the character of evidence presented or the nature of the issues involved in the respective proceedings.

III.

Now that we have resolved the conflict between Caldwell and Garrett, it remains to dispose of the instant cause. Venireman Blaydes at first seemed to indicate his refusal to convict on the basis of one police officer’s testimony was a function of his understanding of reasonable doubt. This assertion soon became intermixed, however, with indications that he would automatically disbelieve a police officer’s testimony. The State argues that Blaydes’ readiness to prejudge the credibility of a police witness provides an altogether different, and independent, support for the trial court’s decision to grant its challenge for cause. See Hernandez v. State, 563 S.W.2d 947, 950 (Tex.Cr.App.1978). The court of appeals did not address this contention on direct appeal, having disposed of the cause on the basis of what we have held here to be mistaken reliance upon Caldwell.

We will remand the cause to the court of appeals for at least one of two purposes. First, the court of appeals may address the question whether the State met its burden of showing Blaydes’ unwillingness to convict on the basis of a single police witness was the product of something other than his reasonable understanding of proof beyond a reasonable doubt. Cf. Garrett v. State, supra. Having set out the proper legal standard in Part II, ante, we now appropriately remand the cause to the lower appellate court for it to apply that standard to the facts of this case in the first instance. Arcila v. State, 834 S.W.2d 357, 860 (Tex.Cr.App.1992). In any event, even were we to hold that the court of appeals ultimately erred to excuse Blaydes under the standard we have set out ante, we would have to remand the cause for the court of appeals to address the State’s alternative argument that Blaydes was properly excused under Hernandez v. State, supra.

Accordingly, we vacate the judgment of the court of appeals and remand the cause to that court for further consideration and disposition consistent with this opinion.

. Of course, a venireman who requires proof to a level of confidence "beyond all doubt” is still challengeable for cause on the basis of inability to follow the law. E.g., Coleman v. State, 881 S.W.2d 344, 359-60 (Tex.Cr.App.1994); Narvaiz v. State, 840 S.W.2d 415, 427 (Tex.Cr.App.1992); cf. Geesa v. State, 820 S.W.2d 154, 162 (Tex.Cr.App.1991) (jury to be instructed, inter alia, that prosecution need not prove guilt "beyond all possible doubt”).

. Although Hernandez was overruled in part in Fuller v. State, 829 S.W.2d 191, 200 (Tex.Cr.App.1992), rumors of its demise were greatly exaggerated. For in Riley v. State, 889 S.W.2d 290 (Tex.Cr.App.1994), we revived Hernandez to the extent Fuller had overruled it.

. Judge Keller suggests another distinction by which she believes that Garrett and Caldwell can be reconciled. If we are paraphrasing her correctly, she believes that it was acceptable in Garrett for the venireman to assert that he would not answer the special issue regarding future dangerousness affirmatively based upon the facts of the offense alone (a "content”-based reasonable doubt). But it is somehow unacceptable for a venireman to assert, as in Caldwell, that he would not convict based upon the testimony of a single witness (a "source”-based — and therefore, says Judge Keller, un reasonable- — doubt). The very analogy the she provides to illustrate this supposed distinction only serves to demonstrate its fallacy.

The analogy is to the accomplice witness rule. Article 38.14, V.A.C.C.P. This provision essentially constitutes a legislative judgement that a reasonable doubt exists if the only evidence the State presents in satisfaction of its burden of proof is the testimony of an uncorroborated accomplice witness. In other words, as a matter of statutory law, an uncorroborated accomplice witness cannot by itself persuade to a level of confidence beyond a reasonable doubt — or, at least, even if it persuades a particular jury to that level of confidence, a conviction will not be permitted. A venireman who maintains he will convict even though the State has presented nothing more than the uncorroborated testimony of an accomplice witness is subject to a defendant's challenge for cause for harboring a bias against the law.

The Legislature, however, is free to repeal Article 38.14 at any time. Presumably Judge Keller would say that were the Legislature to repeal Article 38.14 tomorrow, a venireman who testifies that his understanding of reasonable doubt would prevent him from convicting on the uncorroborated testimony of an accomplice witness would suddenly become subject to a State's challenge for cause. Likewise challengeable, we suspect she would say, is the venireman who would require more than the testimony of a single witness.

We concede that if the accomplice-witness venireman in Judge Keller’s analogy is properly subject to a State’s challenge for cause, then so is the single-witness venireman in Caldwell, and in this cause. But we cannot agree that the accomplice-witness venireman is in fact subject to a State’s challenge for cause. Reluctance or even flat-refusal to convict on the basis of uncorroborated accomplice testimony is not objectively reasonable solely because the Legislature is willing to codify it. The widely prevailing view that accomplice testimony is "inherently suspect” would certainly survive the repeal of Article 38.14! Repeal of Article 38.14 could only mean that the Legislature had decided no longer to hold that uncorroborated accomplice witness testimony is insufficient to meet a standard of proof beyond a reasonable doubt as a matter of law, but instead to submit to jurors on a case-by-case basis the decision whether naked accomplice testimony may convince them beyond a reasonable doubt, notwithstanding their suspicions. This just gives the question of what doubt is reasonable in this context back to the jury, where in practically eveiy other context it already resides.

Of course there is no statute that requires jurors to harbor a reasonable doubt any time the State presents only a single witness in satisfaction of its burden of proof. Certainly a single witness is not ipso facto "inherently suspect,” as is an accomplice witness. Moreover, the jury is allowed to convict on the basis of a single witness, if that evidence is legally sufficient. Even so, the law does not require the jury to convict unless each juror is convinced beyond a reasonable doubt. The venireman who says he wiE never convict based on the testimony of a single witness does not hold the State to an increased burden of proof if by that he is simply predicting that the testimony of a single witness will never be weighty enough in his mind to convince him to a level of confidence beyond a reasonable doubt. Unless and until he maintains that even in the event a single witness did convince him beyond a reasonable doubt, he would still refuse to convict, he has not yet proven himself to be subject to challenge for cause because biased against the law. And it is the State’s burden, as proponent of the challenge, to demonstrate that this is what he means.

. In Arcila we observed:

“Our principal role as a court of last resort is the caretaker of Texas law, not the arbiter of individual applications. When different versions of the law, including unsettled applications of the law to significantly novel fact situations, compete for control of an issue, it is finally the job of this Court to identify and elaborate which is to control. But, except under compelling circumstances, ultimate responsibility for the resolution of factual disputes lies elsewhere.”

Id. We have discharged “our principal role” in this cause in settling the conflict between Garrett and Caldwell. It is appropriate that we now remand the cause to the court of appeals to reconsider its resolution of the issue raised in this cause accordingly.