## IN THE COURT O F CRIMINAL APPEALS OF TE XAS

N O . A P
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M I C H A E L D E A N G O N Z A L E S , A p p e l l a n t

v . T H E S T A T E O F T E X A S

O N D I R E C T A P P E A L F R O M C A U S E N O . D
- 2 3 , 7 3 0 I N T H E 3 5 8 J U D I C I A L D I S T R I C T C O U R T

T H E C T O R C O U N T Y

J O H N S O N , J . , f

i l e d a d i s s e n t i n g o p i n i o n . D I S S E N T I N G O P I N I O N
Our conce rn oug ht not be for those who are not selec ted for the jury , but for those who are . See, e .g., Jones v. State , 982 S.W .2d 386, 394 (cour ts should li bera lly

g rant c halleng es for

cause : “The venire comp ri ses so many jurors who are clea rly qualified that it is unnece ssary to err by deny ing a challeng e for cause on a close question.”); see also Morgan v. Illinois, 504 U.S. 719, 7362

(1992) (the risk of impaneling a juror who would impose death reg ardle ss of the fac ts and ci rc u m s t an ce s o f the offe nse is unacc eptable in light of the ease with which the risk can be
minimi zed). “The Six th Amendment g uara ntee to trial by an impartial jury includes the rig ht to have jurors t hat can follow the l aw and consider t h e evidence. I n other words, the j ury must be able to make an independe nt deter mination based on the fac ts prese nted at t rial, not on any persona l opinions they may have.” Raby v. State , 970 S.W .2d 1, 10 (Tex. Crim. App. 1998). I n capital case s,

we must be espec ially vigilant that strong opinions, for or ag ainst the death penalty , are not g lossed

over by ag ree ment with the common question, “Can y ou set aside y our persona l fee lings and follow the instructions from the judge ? ” See Morgan , 504 U.S. at 734–39. Whil e this Court has rec og nized that “complete impartiality cannot be rea liz ed as long as human being s are called upon to be jurors,” 1
doubt about a prospec tive juror’s a b i l i t y t o b e impartial should result i n a gra nt of a challeng e for

cause . Jones , 982 S.W .2d at 391, 394.
A revie wing court must look at the entire rec ord of voir dire to deter mine if the evidenc e is sufficie nt to support the court’s ruling on a challeng e for cause . Feldman v. State, 71 S.W .3d 738,
744 (Tex. Crim. App. 2002). This Court has said that the revie wing court s h o u l d aff ord g rea t defe renc e to the trial court’s decision beca use the trial judge is pr esent to observe the demea nor of
prospec tive jurors and to l i s t en t o tones of voice. Id. Particular defe renc e is due when the
prospec tive juror’s answe rs are vacillating , unclea r, or contra dictory

. Smith v. S t a t e, 297 S.W .3d 260, 268 (Tex. Crim. App. 2009). Yet, defe renc e is not absolute. The standard for revie w is whether the trial court abused its discretion when it overr

uled a challeng e for cause . Id. I n making this decision, the revie wing court

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examines the voir dire of the prospec tive juror as a whole and decide s whether the rec ord shows that the prospec tive juror’s convictions will inter fer e with the ability to se rve as a juror and to abide by the oath. Curry v. State, 910 S.W .2d 490, 493 (Tex. Crim. App. 1989) (citing Johnson v. State , 773
S.W .2d. 322, 327–28 (Tex. Crim. App. 1989)). I f a juror states that he believes that he can set aside
any influence s and biases he may have and the trial court overr ules a challeng e for cause , its decision will be revie wed in l i gh t o f al l of the answe rs the prospec tive juror g ave. Anderson v. State , 633
S.W .2d 851, 854 (Tex. Crim. App. 1982).
A prospec tive juror is challeng eable for cause if he or she has a bias or prejudice ag ainst the defe ndant or ag ainst the law upon which either the state or the defe nse is entitled to rely

. T E X
. C O D E C R I M
. P R O C
. art. 35.16(a) (9) & (c) (2); Gardner v. State, 306 S.W .3d 274, 295 (Tex. Crim. App. 2009). The test is w hether the prospec tive juror’s bias or prejudice would substantially impair his

or her ability to car

ry out the juror’s duties in acc ordanc e with the court’s instructions and the juror’s oath. W ainwright v. W itt, 469 U.S. 412, 424 (1985). This standard does not require that a juror’ s bias be proved with “unmistakable clar ity ” beca use many prospec tive jurors simply cannot be asked
enoug h questions to rea ch the point wher e their bias has been made “unmistakably clea r.” Id. Some
prospec tive jurors may not know how they will rea ct when fac ed with imposing the death sentenc e,

or they may be unable to articula te their true fee lings. Id. at 425; see also Bell v. State, 724 S.W .2d 780, 794 (Tex. Crim. App. 1986).
Ba sed on the require m en t of impartiality embodied in the Due Process Clause of the
Four teenth Amendment, a capital defe ndant may challeng e for cause any prospec tive juror who will automatically vote for the death penalty

. Morgan , 504 U.S. at 729. Be cause such a juror has alre ady formed an opinion on the merit s, the prese nce or absenc e of either ag g rava ting or mitigating4

circ umstances is entirely irrele vant to such a juror. Id. I f even one such juror is empane led and the death sentenc e is imposed, the state is disentitled to execute the sentenc e. Id. See also Feldman , 71
S.W .3d at 744.
Be fore a prospec tive juror may be excused for cause on this basis, the law must be explained
to the juror, and the juror must be asked whether he or she can follow that law, reg ardle ss of persona l views. Id. I n order to establish that the challeng e for cause is proper , the proponent of the challeng e
must show that the prospec tive juror understood the require ments of the law and could not overc ome
persona l prejudice well enoug h to follow the law. Id. at 747. See e.g., Howard v. State, 941 S.W .2d 102, 128 n.2 (Tex. Crim. App. 1996); Harris v

. State , 784 S.W .2d 5, 25 (Tex. Crim. App. 1989).
Gene ral questions about fairne ss and ability to follow the law and the cou rt ’s i n structions are not
enoug h; the court must assess the eff ects of bias more specific ally

. See Morgan, 504 U.S. at 734–35 (some jurors may in all truth and ca n d o r re s pond that they will be fair and impartial, persona lly confide nt that their views are fair and impartial, while leaving the specific conce rn—whe ther they

are unaltera

bly in favor of

or opposed to the de ath pena lty —unprobed)

. I n his secon d p o i n t o f err or, appellant complains of the trial court’s failure to g rant a challeng e for cause ag ainst Sarah Murdock. Early in the state’s voir dire, Murdock said, “I believe in the death penalty .” She stated t hat l enienc y under special is sue t wo wasn’t fair to the victim’s 2 family

. I n her answe rs on the juror questionnaire, she chec ked the box stating that she believed that

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any one convicted of capital murder should be sentenc ed to death, reg ardle ss of the specia l issues. 4
Cou n s el for the state explained that there was a conce rn that, beca use she was opposed to parole ,

ever , that she “w ould be unwilling to a nswer the question in suc h a way that a life se ntence would result.” He r answe r wa s, “I just–I can’ t chang e the wa y I think.” 5
The state questioned her about her response to the question about being able to co n s i d er leniency in a brutal murder: “somewha t disa g ree .” When a sked what was g oing throug h her mind when she chec ked that box, she stated her c oncer n that “the victims have no rig hts.” 6
Counsel for appellant beg an his voir dire by asking if Murdock believe d t h at the death penalty should be the rule rathe r than an exception. She ag ree d. She also ag ree d that she believed 7 strong ly in an ey e for

an ey e: someone w ho kills shoul d also die. 8
Counsel then asked her about her choice of chec king a box indicating she is strong ly in favor of the death penalty for ever y homicide case . Ag ain, she ag ree d that that was her position. She also 9
ag ree d that she believ ed t hat any one convicted of capital murder should be sentenc ed to death,
reg ardle ss of the answe rs to the specia l issues. On question 114, what is the best arg ument for the 1 0

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s h o u l d b e p u n i s h e d b y l i f e i n p r i s o n . T h e s t a t e p o i n t e d o u t t h e i n c o n s i s t e n c y w i t h h e r a n s w e r i n d i c a t i n g t h a t a n y o n e c o n v i c t e d o f c a p i t a l m u r d e r s h o u l d b e s e n t e n c e d t o d e a t h , r e g a r d l e s s o f t h e s p e c i a l i s s u e s . M u r d o c k a g r e e d t h a t s h e s h o u l d n o t h a v e c h e c k e d t h e l i f e - i n - p r i s o n b o x . X V I I I R

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death penalty , she wrote that a conviction for murder should result in a death sentenc e. On question 115, what is the best arg ument ag ainst the death penalty , she wrote, “None .” On question 116, what is the best arg ument for a life sentenc e, she wrote, ”None .” On question 117, what i s t h e best
arg ument ag ainst a life sentenc e, she wrote, “Same as number 114.” I n response to questions about 1 1
whether she could follow the trial court’s instruction not to consider appellant’ s failure to testify or
express remorse and whether she would put the matter out of her mind, she said, “No, I wouldn’t.
I wouldn’t put it out of my mind.” I n the ensuing discussion, she aff irmed that she would require 1 2
a show of r emorse f

rom appe llant. Q. So even if the judg e we re to inst ruct y ou that y ou must–y ou could not consider the defe ndant’s failure to testify for any purpose whatsoeve r, that particula r portion of the char g e is something y ou couldn’t follow, or y ou are not cer tain y ou could follow.
A. Yes. I f there was no re morse in it, no, I couldn’t. Q. And I am talking about re morse fr om the witness stand in open cour t. Okay ? A. Uh-huh. Q. You would have to he ar something like that, or would consider Mr. Gonzales’s failure to testify ?
A. Yes. 1 3 Counsel for appe llant asked a bout the specia l issues. Q. On addre ssing issue number one, whether Michae l Dea n Go n z al es i s a future dang er, the State has t o prove that to y ou bey ond a re asonable doubt. My question to y ou is suppose the State does prese nt evidenc e to y ou that he is a future dang er, but doesn’t prove it in y our mind bey ond a re asonable doubt. Okay ?

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A. Uh-huh. Q. They prese nt some evidenc e but in y our mind it falls short of proo f b ey o n d a rea sonable doubt.
A. Yes. Q. Would y ou require the defe nse to prese nt some evidenc e t hat Michae l Dea n Gonzales is not a future dang er befor e y ou could answe r this issue no? Do y ou see what I am say ing? A. Uh-huh. Y es. Q. Ag ain, let me just make sure I understand w

hat y ou are say ing. Y ou are say ing t h at i f t h e State did not prove that Michae l Gonzales was a future dang er but prese nted some evidenc e, befor e y ou could answe r no to this specia l issue, y ou would want the defe nse to prese nt to y ou some evidenc e that he wa s n o t a future dang er; corr ect?
A. Yes. 1 4
Murdock was uncer

tain as to the differ ence betwee n possibili ty and probability and ag ree d 1 5 that the possibilit y that appellant might be rele ased on parole in 40 y ear s would aff ect her answe rs to the specia l issues.
On redire ct examination, counsel for the state asked a series of questions, repe atedly asking Murdock if she understood the law. T h e s t at e t h en asked, “[I ]f y ou take the oath to rende r a true verdic t on the law and the evidenc e, can y ou do that despite y our fee lings about parole? ” She 1 6

answe red, “Ye s.” The state also posed a question ab o u t testimony from the defe ndant: “Can y ou think of a rea son why a defe ndant might not te stify at his de fense in the case ? Aside fr om the fac t that he is g uilty or he is not remorse ful, some rea son that would not nece ssarily work ag ainst him.”

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She answe red, “No, I don’t,” then, “I can’ t.” The discussion c ontinued, with the state sug g esting 1 7 possible scena

rios in which a defe ndant m ight not testify , and with Murdock responding that she understood the state’s sug g estions of rea sons for choosing not to testify

. The state en d ed t h e discussion by say ing, “Do y ou follow that law? ” She answe red, “Ye s, I do.” Her answe r is 1 8 ambig uous; did she follow the explanation, or did she ag ree that she would follow the instruction. The state did not cla

rify her a nswer. The nex t series of exchang es followed the s ame pa t t ern, with the s tate ex plaining the law, Murdock indicating that she understood his point and say ing that she was beg inning to understand, and the state getting her to ag ree that she could follow the jur or oath. The state did not question 1 9
Murdock further on her stated position that all homicides should be capital, that mitigation evidenc e

was irrele vant, or that she could think of no arg uments ag ain s t t h e d ea t h penalty or for life imprisonment.
On re-cr oss-examination, counsel fo r appellant asked Murdock ag ain i f her fee lings about parole would aff

ect he r answe rs to the spec ial issues. Ag ain, she said that they would: “I

still fee l strong ly on that, y es.” The trial court inter rupted, “ I don’t think the law is that she m ust put it out of the ba ck of her mind, or put it out of her mind. I believe the law is that it is whether or not she will consider it in answe ring these, or will she follow the oath that she took.” After t h e co l l o q u y with the trial judge , and in response to questions from that judge , Murdock said that she could follow

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her oath. Counsel for appe llant challeng ed Murdoc k for cause. The trial court noted that “ther e

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was some confusion by the juror,” but found her qualified and denied the challeng e. Appellant 2 1 2 2 used a pe remptory

challeng e to re move Murdock f rom the jury

. Every one has biases. J ury questionnaires are desig ned to reve al t hose bi ases. Voir di re is

an opportunity to more fully explore them. Some biases may be based on a misunderstanding of the law. Murdock display ed some such biases, such as requiring the defe ndant to testify and show

remorse and placing the burden on the defe ndant to prove that he would not be a dang er in the future. These misunderstanding s wer e addre ssed in her voir dire, and her understanding of the law as to those issues was c orre cted. Other biases, howeve r, are not so easily overc ome. On some issues, Murdock’ s opinion did
not c hang e. She continued to state that the proper punishment for any murder is a death sentenc e. See Morgan , 504 U.S. at 735 (“[T]he [prospective juror’s] belief that death should be imposed ipso facto upon conviction of a capital offe nse ref lects direc tly on that individual’s inability to follow the law.”) At the end of her voir dire, when asked if her fee lings about parole would aff ect her answe rs
to the specia l issues, she still said that they would: “I still fee l strong ly on that, y es.” He r clear 2 3

answe r to that question belies her response to the trial judge that she could follow her oath. Murdock

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A s t o s o m e i s s u e s , t h e r e c o r d r e f l e c t s t h a t M u r d o c k w a s n o t s o m u c h c o n f u s e d a s t e n d i n g t o a g r e e w i t h 2 1
w h o m e v e r s p o k e t o h e r l a s t

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is the s ort of j uror described by the Unit ed S tates S upreme Court in Morgan : she could, in g ood 2 4
conscie nce, swea

r to uphold the law, y et be unawa re that maintaining her dog matic beliefs about the death penalty would preve nt her from actua lly doing so. See id

. at 735, 736 n.9 (g iving example of
prospec tive juror who de nied having any “pre fix ed idea s” about the case , aff irmed t hat she would follow the law that the c ourt g ave he r, but also stated that she c ould not vote for a death penalty ).
I would find that, under Morgan , Murdock was not qualified to serve as a juror in this case and that the trial cour

t erre d in overruling the cha lleng e for cause . I n his third point of err or, appellant complains of the trial court’s failure to g rant a challeng e for cause ag ainst Randall Phill ips. On his questionnaire, Phill ips had indicated a belief that any and all defe ndants convicte d of murder should rece ive the death penalty . The state pur sued that issue. Q: But at least as o f t h e time y ou turned in y our questionnaire, y our opinion was people convicted o f murder should do life, life in prison, depending on the circ umstances, or

the dea th penalty

. A: That would be c orre ct. That is how I fee l today

.

. . . Q: My rea ding on what y ou have written here is that, at least at t h e time that y ou filled this out, y our impression is tha t de fenda nts g et kind of more brea

ks than they are entitled to, that they

are not treate d the way y ou would rathe r them be tre ated if y ou wer e kind of in char g e of the justice sy stem. I s that a fair interpre tation of y our fee lings a bout that or–
A. I believe in g ener al overa ll what I would say is that–I think what I meant by that was that when someone is convicted of murder, knowing ly , intentionally committing murder, that the big problem I have–a nd this is probably n ot the answe r y ou are looking f or–as f ar a s the dea th sentence , I think they sit on death row f

ar too long

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. . .

“ I t m a y b e t h a t a j u r o r c o u l d , i n g o o d c o n s c i e n c e , s w e a r t o u p h o l d t h e l a w a n d y e t b e u n a w a r e t h a t 2 4
m a i n t a i n i n g s u c h d o g m a t i c b e l i e f s a b o u t t h e d e a t h p e n a l t y w o u l d p r e v e n t h i m o r h e r f r o m d o i n g s o . “ I

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Q. One of y our questions was, a defen d an t should be found g uilty if eleve n out of twelve jurors vote g uilty

. You said y ou ag ree wi th that. But then y ou also said, courts ar e too conc erne d with the rig hts of criminals. You also ag ree d with tha t.

.

. . But y ou also fee l like there are , I g uess at least circ umstances wher e criminals’ rig hts tend to override what y our sense of justice would be? A. That is cor

rec t. Q. So I want to ask y ou about question number 109. That is on pag e 20. I t asks y ou to chec k the statement whic h best summarizes y our vi ews about the spec ial issues, and it looked to me like y ou initially picked, the specia l issues will allow some defe ndants who deser

ve the death penalty to avoid that sentenc e, but y ou crosse d that out a nd chec ked, I believe any one convicted of capital murde r should be sente nced to de ath, reg ardle ss of the answe rs to the specia l issue.

. . . Do y ou still ag ree that any one convicted of capital murder should rec eive the death penalty , or do y ou think that the spec ial issues are –limit that in a way that is proper, or

what do y ou think? A. When it comes to capital murde r, I think that I will sti ck with my answe r. 2 5
The prosec utor ex p l ai n ed that the jury would be instructed that it neede d to g ive “prope r consideration” to the specia l issues and that it should not answe r the s p ec i al issues with “an ey e towards achie ving a cer

tain punishment.” Phill ips said that he could follow that instruction, and the
prosec utor continued. Q. Should the defendant h av e any conce rn t hat y ou are g oing to be looki ng at t his case with an ey e towards g etting a death penalty and not revie wing the evidenc e with an ey e towar ds rende ring a true and impartial ve rdict? A. Right. Q. Should the defe ndant be c oncer ned about that or is that something tha t y ou can promise us y ou are not out to g et the death penalty , y ou are out t o an s wer these questions properly ? A. Yes, sir, tha t is corre ct. 2 6

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Phill ips’s response to the first question did not answe r it. The only appropr iate answe rs wer e
y es (he should have a conce rn that I would be fair) or no (he should not be conce rned)

. Nor, beca use the prosec utor’s second question en co mpassed opposite, incompatible positions, did Phill ips’s
response answe r t h e s ec ond question. The prosec utor did not seek to clar ify either of Phill ips’s

answe rs. The prosec utor continued his questioning, touching on life with parole , which applies to this

case , future dang erousne ss and the burden of proving it, and the differ ence betwee n possibili ty and probability . He then que stioned Phil lips about mit iga tion. Q. Number 138. I t say s, the defe ndant’s backg round, criminal history , ag e, mental state and other fac tors should be considere d by a juror in making a decision about whether to choose life in prison or the death penalty , and y ou put y o u strong ly disag ree . Now, that opinion y ou can see would be kind of the opposite of wha t the Court will ins truct y ou to do with this mitigation question. So is that–and if that is y our honest opinion, I won’t arg ue with y ou but I need to ask y ou whether or not y ou can se t that aside, or is t hat not y our opi nion, or how do y ou fee l about t his specia l issue?
A. Well, I still wouldn’t chang e my answe r but I would still act within the g uidelines of the lawand the c ourt. 2 7
The prosec u t o r responded with the standard reha bilitating questions, rec eived the corr ect
response s, and passed the potential juror. Def ense c o u n s e l b e g an questioning with Phill ips’s strong 2 8

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. O k a y . I t h i n k t h a t i s c o n s i s t e n t w i t h y o u r o t h e r a n s w e r s b u t I w a n t t o m a k e s u r e I u n d e r s t a n d

. Y o u d i s a g r e e w i t h t h e i d e a t h a t t h e s e k i n d s o f [ m i t i g a t i n g ] c i r c u m s t a n c e s o u g h t t o b e c o n s i d e r e d

. B u t i f t h e c o u r t i n s t r u c t s y o u t o c o n s i d e r t h e m , y o u w i l l a n d y o u w i l l c o n s i d e r t h e m f a i r l y a n d i m p a r t i a l l y ?
A

. T h a t ’ s c o r r e c t

. Q

. A n d d e s p i t e y o u r s t r o n g f e e l i n g s t h a t t h e y s h o u l d n ’ t n e c e s s a r i l y m a k e a d i f f e r e n c e , y o u a r e o p e n t o t h e p o s s i b i l i t y t h a t t h e y m a y c a u s e y o u t o v o t e f o r a l i f e s e n t e n c e i f y o u f

e e l l i k e t h o s e (continued...)13

support of the de ath pena lty

. Q. An d on Question 109, y ou said, I believe any one convicted of capital m u rd er should be sentenc ed to death reg ardle ss of the answe rs to the specia l issues. And I believe–is that the one y ou told Mr. Mau just now that y ou would still stay with that answe r?
A. Yes. 2 9
This answer

direc tly neg ates the a

nswers Phillips gave to the prosec utor as to his ability to consider mitig ation evidenc e fa irly and impartially

. Def ense counsel then asked about Phill ips’s response s to questions about arg uments for and
ag ainst the dea th penalty

. Q. [Question] 114 asked the best arg ument for the death penalty and y ou indicated, we would lessen prison overc rowding b y i s s u i n g an appropriate punishment. And then on question 117, what is the best arg ument ag ainst life? And y ou said ag ain, an ey e for an ey e and pr ison overcr owding

. I n y our opinion, should that be kind of a c onsideration in the application of the death p enalty ?

... I don’t mean this to sound cra ss but kind of cull people out ever y once in a while to keep the prison population down?
A. I think y ou are mostly rig ht. What I m ea n t b y my answe r was if someone has been sentence d to death, don’t wait 1 5 , 2 0 y ea rs to car ry out that sentenc e. I can’ t understand tha t. Q. And in y our opinion, the death penalty is not used enoug h in Texas. Tell us how y ou fee l about that.
A. Well, just from hear ing about case s wher e in my opinion the d ea th sentenc e should hav e b ee n used, some of those case s may be wher e the defe ndant claimed insanity or was under the influence of some kind of drug an d t h ey wer en’t found
(...continued) 2 8

m i t i g a t i n g c i r c u m s t a n c e s a r e t h e r e ?
A

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g uilty , just outright g uilty of the c rime, they

consider the circ umstances. 3 0

. . . Q. [O] ne of the things that conce rns me i s, it conce rns me very much is pag e 12, question 70, list three people y ou least admire and why , and y ou put Adolph Hitler, number one, J ohn Way

ne Gacy , number two, which wa s, I think he was the f ellow who killed a bunch of

littl e boy s, he wa s a mass murder er; c orre ct?
A. Yes. Q. And number

three is Michael D. Gonzales?
A. Yes. Q. This Michae l D. Gonzales?
A. Yes. Q. So I g uess my conce rn is do y ou rea lly fee l, having put that down on the questionnaire, tha t y ou are the rig ht person to serve as a juror in this ca se? That is, can y ou be a fa ir and impartial juror, having specific ally listed–and y ou understand my conce rns as his lawy er?
A. Yes.

. . . Q. That answe r in my mind calls into question y our ability to listen to this evidenc e, no matter how hard y ou might try or how y ou might hope that y ou could listen to the evidenc e. I worry that g iven y our response , which is not having one of those befor e, might mean that y ou would not be a fair and impartial juror in this case . Tell me how y ou fee l about that.
A. Well, I have been sitti ng here thinking about this and afte r the answe rs that I have g iven to the other attorney , I want to be fair. I have never been put in a position like this. I don’t want to be in this position, but I will be if I am called upon. But to sum it up, I came into this thing thinking life in prison was not enoug h, and althoug h I still would want to be fair if place d over here in this jury I would be–I would try to be as fair as I can, but to be honest with both of y ou, I mean, ever y one in this room, I rea lly can’ t sit here and still, even now af ter this half hour, think that life in prison would

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be enoug h. I won’t apolog ize for that. That is just my opinion and I ’m sorry if I am g oing back on what I said. I would still be fair. I don’t want to be put in this position but that is really

my opinion. Q. All rig ht. Well, it is obviously a hear tfelt [si c], and I appre ciate that. I am moved by y our disclosure now. But at the end of all this, the jurors who have to sit on this case have to be able to shake hands with their own conscie nce. We need to know if y ou can’ t be fa ir, and I

think y ou told us that y ou fea r y ou cannot. I s that rig ht? A. That I can’ t? Q. That y ou can’ t be fa ir and impartial in this case

. A. Well, I fee l like I would want to be and I would be. But what I am try ing to sa y is, I have a lrea dy

g ot a pre conce ived notion in my mind how I want the outcome to be and it would not be f

air. Q. And y ou fea

r that that would aff

ect the way y ou would answe r these questions?
A. Yes. 3 1 The prose cutor c ontinued the discussion. Q. I don’t want to belabor the point, sir. I just want to make sure–I am not try ing to g et y ou to chang e y our answe r but I want to m ak e s u re I understand. We talked ear lier this morning about the differ ence betwee n what y our opinion is, the way y ou might want the case to come out and then y our duties to follow the law. Am I corr ect that now y ou are say ing that y ou do not think y ou would be able to comply with y our oath if y ou wer e–if y ou think y ou can, y ou need to let us know that but, I mean, I think a lot of people fee l like that if y ou commit a capital murder, y ou probably deser ve the death penalty

. Some of those people say , I can keep an open mind, listen to all the evidence and answe r t hese questions and I will answe r t hem t he way that t h e evidenc e shows reg ardle ss of how I want the case to come out. I f y ou are the k ind of person that thinks I don’t think I can do that, I think I am g oing to an s we r these questions so that it comes out the way I want, then obviously y ou are telling us y ou can’ t–y ou can’ t comply wit h t h e evidenc e. I don’t want y ou to fee l like I am try ing to sha

me y ou into a

nswering the question differ ently beca use I am not. I am try ing to make sure that y ou are telling us that y our fee lings are so strong that y ou just do not think that y ou can comply with the oath that the j u d ge wo u l d g ive y ou to rende r a true verdic t based on the law and the evidenc e and only that, not y our prec onceive d notions.

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A. I ’ll comply

with the oath and with the law and the laws of this c ourt, but w hat I am telling y ou is, and I think y ou kind of hit on it there just a second ag o, I would do my –what was called on me t o do as a juror in this case, but, as y ou said, in the end if it didn’t g o the way that I wanted it to g o I have g ot a prec onceive d idea of wher e I want it to g o and I don’t think that is fair, althoug h I would still comply with the law and the oa th. 3 2
Def ense counsel ex plained the state’s burden on t he spec ial issue on future dang erousne ss and aske d Phill ips about his feeling s on that special issue. Q. .

. .Well, let me ask y ou this. You ha ve–y ou know how the spe cial issues work now. The State must prove that there is a probability that he will be a future dang er. And y ou have to find, in o rd er t o an s we r y es, y ou have to find that he would be a p ro bable future dang er bey ond a rea sonable doubt. I f y ou don’t find bey ond a rea sonable doubt, y ou would have to answe r no. And if y ou did answe r no, then life, capital life. Okay ? I f the prosec utor prese nted y ou some amount of evidenc e of future dang er but that did n o t i n y o u r m ind rise to the level of proof bey ond a rea sonable doubt. Okay ? Could y ou answe r this specia l issue no? Or wo u l d y o u answe r i t y es unl ess and until y ou hear d the defense present som e evidence that he was not a f

uture da ng er?
A. I don’t know. I am leaning toward answe ring y our question no, that I could not–I am leaning toward–I

am not leaning toward c apital life, to answe r y our question. Q. All rig ht.
A. I f y ou asked me if the attorney cou l d p re s en t me with enoug h, y ou know, mitigating circ u m s tance s to lean toward capital life; rig ht, is that what y ou are asking ? Q. Well, no, we ar e up her e on the f uture da ng er issue r ight now, the first one. A. Right, I

understand. Q. That i s the o ne that they have to prove bey ond a reasonable doubt, that there is a p ro b ab i l ity of future dang er. All rig ht? And my question is if y ou thought they would prese nt y ou with some evidenc e, may be even a significan t am o u nt of evidenc e, but not in y our mind evidenc e bey ond a rea sonable doubt , co u l d y ou answe r this specia l issue no, that y ou did not find future dang er bey ond a rea sonable doubt? Or would y ou answe r it y es, even though it wasn’t proof bey ond a rea sonable

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doubt in y our mind unless and until–w o u l d the defe nse have to come prese nt evidenc e to y ou that Mr. Gonzales was not a future dang er? Do y ou understand what I am say ing the re?
A. I believe I do and I believe my

answe r would have to be y es. Q. That he would be a f

uture da ng er? A. Yes, sir. Q. Unl es s M r. Go nzales prese nted some evidenc e to y ou that he was not a future dang er?
A. Yes, that is corr ect, and would be something that I would listen to and consider. Q. I want to make sure I am understanding y ou. You would want–y ou would require the defe nse to bring some evidenc e that he was not a future dang er in order to answe r this iss ue no? A. That’s c orre ct. Q. Even if the State had not proved to y ou future dang er bey ond a rea sonable doubt? A. Yes, tha t is corre ct. 3 3 The prosecutor continued the questi ons on future dang erousne ss, and P hillips chang ed his

answe r. Def

ense c ounsel cha lleng ed Phillips for c ause, a sserting that 3 4
he has a cknowledg ed he cannot be a fair and impartial juror.

. . . He has said on his questionnaire that he believes a hundred p er cent in an ey e for an ey e. He strong ly favor s, the hig hest answe r y ou can g ive, the death penalty

. He believes that we are too lenient on criminals. He believes the death penalty is appropr iate in ever y murder case . He strong ly disag ree s that a person’ s backg round is something that should be considere d.

. . . The worst thing about it is that he specific ally noted that one of the three people that he admired least, first was Adolph Hitler, second was J ohn Way ne Gac y , and third was this particula r defe ndant, Your Honor. I t reve als a prejudg ment in this case. He has t old us that he has prejudg ed the case . He . . . worries that his fee lings will aff

ect the answe rs to the questions. He say s he has a prec onceive d idea

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of wher e he wants the case to g o. . . . He said he wanted to be fair but life in prison was not enoug h. And

. . . in this situation, it is just too dang erous to allow a person of his mindset on this jury

. And so we would challeng e him for cause on the g rounds that he h as t o l d us that he cannot be a fair and impartial juror in this case , Your Honor. 3 5
The prosec utor responde d that, althoug h Phill ips acknow ledg ed his strong fee lings about the death penalty and about this case , he never theless aff

irmed that he would set his fee lings aside and follow the court’s instruct i o n s . T h e trial judge overr uled the challeng e, and defe nse counsel exercised a
pere mptory

challeng e. 3 6 Despite chang ing his response s to some issues, depending on the questioner, Phill ips never chang ed his position that he had a prec on ceived idea of how the trial should come out or that he fea red that the prec onception would aff ect his answe rs to the specia l issues. Nor did he back awa y from his opinion that any one who was convicted of capital murder should rec eive the death penalty

. See Morgan, 504 U.S. at 735 (“[T]he [prospective juror’s] belief that death should be imposed ipso facto upon conviction of a capital offe nse ref lects direc tly on that individual’s inability to follow the law.”)

. He also aff

irmed to both the prosec utor and defe nse counsel that he strong ly disag ree d that

a defe ndant’s backg round, criminal history , ag e, mental state and other fac tors should be considere d in deciding betwee n life and de ath.
A person who continues to strong ly disag ree that mitigating fac tors should be considere d
cannot act within the g uidelines of the law and the court. Id

. at 739 (any juror to whom mitigating fac tors are irrele vant should be disqualified for cause ). Phill ips is the sort of juror descr ibed by the United S tates S upreme Court in Morgan : he represe nted, i n g ood conscie nce, that he could swea r

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to uphold the law and be fair, y et was unawa re that his dog matic beliefs about the death penalty would preve nt him from actua lly doing so. See id

. at 735. I would find that, under Morgan , Phill ips

was n o t q u al i fi ed to serve as a juror in this case and that the trial court err ed in overr uling the challeng e for

cause . Appellant challeng ed two prospec tive jurors. Be cause he rec eived an additional pere mptory strike, he must demonstrate that b o t h challeng ed prospec tive jurors should have been struck for

cause . I would find that he has done so and is t h er ef o re en t i t led to a new punishment hear ing.
Be cause this Court upholds the ruling s of the trial court as to these two challeng ed jurors and there by denies a ppellant that hea

ring , I dissent.

Filed: September

28, 2011 Publis h