Estelle v. Granviel Petition for Writ of Certiorari to the US Court of Appeals for the Fifth Circuit

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NO. 81

IN THE
SUPREME COURT OF THE UNITED STATES  

OCTOBER TERM , 1981

W. J. ESTELLE, JR., DIRECTOR,
T E X A S D EPAR TM EN T OF CORRECTIONS,

Petitioner
V.

KENNETH G RANVIEL,
Respondent

PETITION FOR W R IT OF CERTIORARI TO 
TH E UNITED STATES COURT OF APPEALS

FOR THE

MARK WHITE 
Attorney General of Texas

- JOHN W. FAINTER, JR. 
First Assistant 

Attorney General

RICHARD E. GRAY, III 
Executive Assistant 

Attorney General

FIFTH CIRCUIT

GILBERT J. PENA 
Assistant Attorney General 
Chief, Enforcement Division

LESLIE A BENITEZ 
Assistant Attorney General

P. O. Box 12548, Capitol Station 
Austin, Texas 78711 
(512) 475-3281

Attorneys for Petitioner



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QUESTIONS PRESENTED

DOES THE EXCLUSION FOR CAUSE OF A 
V EN IR EM AN  W HO OTHERW ISE U NEQ UIVOCAL­
LY AFFIRM S TH A T HE COULD NOT VOTE TO IM ­
POSE THE D EATH  PENALTY VIOLATE THE DOC- 
T R IN E  OF W I T H E R S P O O N  V. I L L I N O I S  
BECAUSE HE USES THE W ORDS “T H IN K ” AND  
“ FEEL” IN DOING SO?

SHOULD THE FEDERAL COURTS R EVIEW  A 
V E N IR E M A N ’S RESPONSES IN THE CONTEXT  
IN W HICH TH E Y W ERE M ADE IN D ETER M IN ­
ING W H ETH ER  HE W A S EXCUSED IN V IO L A ­
TION OF WITHERSPOON V. ILLINOIS?

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED *

TABLE OF AU TH ORITIES...........................................................

OPINIONS BELOW ....................................................................... 1

JURISDICTION ..................................................................................2

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED 2

STATEMENT OF THE CASE ...........................................................2

REASONS FOR GRANTING THE WRIT 4

ARGUMENT ........................................................................................ 4

I. THERE ARE SPECIAL AND 
IMPORTANT REASONS FOR
GRANTING THE WRIT ...................................................4

II. THE EXCLUSION FOR CAUSE OF 
A VENIREMAN WHO OTHERWISE 
UNEQUIVOCALLY AFFIRMS THAT 
IIE COULD NOT VOTE TO IMPOSE 
THE DEATH PENALTY DOES NOT 
VIOLATE THE DOCTRINE OF 
WITHERSPOON V. ILLINOIS BECAUSE 
HE USES THE WORDS -THINK"
AND "FEEL" IN DOING SO ......................................4

III. THE FEDERAL COURTS SHOULD RE­
VIEW A VENIREMAN'S RESPONSES 
IN THE CONTEXT IN WHICH THEY 
WERE MADE IN DETERMINING 
WHETHER HE WAS EXCUSED IN 
VIOLATION OF WITHERSPOON V.
ILLINOIS ..........................................................................6

CONCLUSION 10

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TABLE OF AUTHORITIES

Case Fage

Lockett v. Ohio, 438 U.S. 586 (1978)

Witherspoon v. Illinois, 391 U.S. 510(1968).................................  ̂^



NO. 81

IN THE
SUPREME COURT OF THE UNITED  STATES  

OCTOBER TERM, 1981

W . J. ESTELLE, JR., DIRECTOR,
T E X A S D EPARTM ENT OF CORRECTIONS,

Petitioner

V.

KENNETH GRANVIEL,
Respondent

PETITION FOR W R IT OF CERTIORARI TO 
TH E UNITED STATES COURT OF APPEALS  

FOR THE FIFTH CIRCUIT

TO TH E H O N O R A B LE  JU STIC E S OF TH E  
SUPREME COURT:

The Petitioner respectfully prays that a writ of cer 
tiorari issue to reveiw the judgment of the United States 
Court of Appeals for the Fifth Circuit entered in this 
case on September 11, 1981.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 1555 
F 2d 673 (5th Cir. 1981) and appears as Appendix A.
The report and recommendation of the United States 
Magistrate, adopted by the district court, appears as 
Appendix B.



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JURISD1CTI0N

The judgment of the United States Court of Appeals 
for the Fifth Circuit in Granviel v Estelle was entered 
on September 11, 1981. A timely filed petition for 
rehearing was denied on October 13. 1981 This petition 
for certiorari was filed within sixty days after final judg­
ment in this case. This Court’s jurisdiction is invoked 
under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY  
PROVISIONS INVOLVED

United States Constitution, art. VI, in pertinent part:

In all criminal prosecutions, the accused shall 
enjoy the right to a speedy and public trial, by 
an impartial jury of the State and district 
wherein the crime shall have been committed...

United States Constitution, art. XIV , §, in pertinent 
part:

No State shall make or enforce any law which 
shall abridge the privileges or immunities of 
citizens of the United States; nor shall any 
State deprive any person of life, liberty, or pro- >  
perty, without due process of law; nor deny to 
any person within its jurisdiction the etjual pio 
tection of the laws.

STATEM ENT OF TH E CASE

Respondent Kenneth Granviel was indicted for the 
October 7, 1974, capital murder of Natasha McClendon 
while in the cause of committing rape. On October 6, 
1975, jury selection began in this capital trial. Juiy 
selection was concluded on October 17, 1975, an 
testimony began. On October 24, 1975, Respondent

was convicted of the capital offense. Thereafter, the 
jury found as true the special issues submitted pursuan- 
to Article 37.071, V.A.C.C.P., and accordingly, punish­
ment was assessed at death.

The Texas Court of Criminal Appeals affirmed the 
conviction on November 10, 1976, in Granviel v State, 
522 S W 2d 107 (Tex.Crim.App. 1977). Petition for cer­
tiorari was denied on May 23, 1977. Granviel v. Texas, 
431 U.S. 933 (1977).

A state application for habeas corpus relief was denied 
after a hearing in the district court and consideration by 
the Texas Court of Criminal Appeals. Ex parte Gran­
viel, 561 S.W.2d 503 (Tex.Crim.App. 1978).

Thereafter, Respondent filed his petition for federal 
habeas corpus pursuant to 28 U.S.C. § 2264 u. the 
United States District Court tor the Southern District 
of Texas. On March 27, 1978, after a hearing, the case 
was transferred to the Northern District Fort \\oith 
Division. The recommendation of the Umted States 
Magistrate was filed on November 27, 1978. dhe fin­
dings of the Magistrate were adopted and judgment de­
nying habeas corpus relief was entered on January 2b, 
.1978. On January 31, 1978, Respondent’s notice of ap- 
•peal was filed, and certificate of probable cause was 
granted on February 1, 1978.

On September 11, 1981, a panel of the Fifth Circuit 
rendered an opinion affirming the judgment m part an 
reversing and remanding in part. A timely filed petitio 
for rehearing was denied. This petition tor writ of cer­
tiorari followed.



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REASONS FOR GRANTING THE W R IT

I.

T H E R E  A R E  S P E C IA L  A N D  IM P O R T A N T  
REASONS FOR GRANTING THE W RIT.

The Court of Appeals for the Fifth Circuit has decided 
an important question of federal law which has not been, 
but should be, settled by this Court. The decision of the 
Court of Appeals, which applies a hypertechnical stan­
dard of review to a claimed violation of Witherspoon u. 
Illinois, 391 U.S. 510 (1968), may affect most, if not all, 
death penalty cases within the jurisdiction of that 
Court, and may affect many other death penalty cases in 
other circuits if adopted by those Courts of Appeals. 
The import of the holding by the Fifth Circuit is to 
establish a rigid and unwieldy test for review, so that 
certain words or Lhe lack thereof have acquired a 
talismanic quality, to the exclusion of a fair considera­
tion of Lhe words in the context in which they were 
made. Since this decision may affect so many other 
cases of importance to the States, this Court should 
grant the writ to review the lower court s decision.

II.

THE EXCLUSION FOR CAUSE OF A VENIREM EN  
W HO OTH ERW ISE UNEQUIVOCALLY AFFIRM S  
TH A T HE COULD NOT VOTE TO IMPOSE THE  
D EATH  PENALTY DOES NOT VIOLATE THE  
DOCTRINE OF WITHERSPOON V. ILLINOIS  
BECAUSE IIE USES THE W ORDS “ T H IN K ” AND  
“ FE E L” IN DOING SO.

Venireman Donald L. Harrison was excluded for cause 
from Respondent’s capital trial after he three times af­
firmed that he could not vote to impose the death penal­
ty (S.F. 708-711). The prosecutor asked

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Let me ask if you, personally sitting as a juror, 
could ever vote so as to inflict the death penal­
ty? (S.F. 711).

When Harrison replied that he could not, the prosecutor 
further inquired,

That is a definite prejudice or feeling that you 
could not change? You just don’t feel like you 
would be entitled to take another person’s life 
in that fashion? (S.F.711).

Again, Harrison affirmed that he could not so vote, and 
would not change his position. The prosecutor inquired 
a third time, “ Okay. You could not? (S.F.711).
Harrison, for the third and final time, stated "No, I 
could not” (S.F. 711). (Emphasis added).

The court below found that Harrison was excluded in 
violation of Witherspoon, because his responses were 
equivocal, due to the use of the words “ think” and 
“ feel.” The court, in so holding, has applied a 
hypertechnical construction to the voir dire examina­
tion, and in doing so, has established a new standard of 
review by federal courts.

• ■■
The record reflects that, once the import of the ques­

tions was conveyed to the venireman, he never 
equivocated in his position that he could never vote to 
impose the penalty of death. That Harrision stated 
“ no” and then added that he did not “ think” that he 
could ever vote for the death penalty was no more than a 
manner of speech. His added words, especially in light 
of his two subsequent positive affirmations that he 
could not consider or vote for the death penalty, did not 
render ambiguous his clear and unequivocal position. 
The questioning of Harrison focused solely upon 
whether he could ever vote to impose the death penalty, 
not what he “ thought” or “ felt” about the imposition of



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capital punishment. Harrison made unmistakably clear 
that he would be unable to vote to impose the death 
penalty. As stated in the dissenting opinion below,

Witherspoon mandates no precise questions 
and answers. The test is ‘not to be applied with 
the hypertechnical and archaic approach of a 
19th century pleading book, but with realism 
and rationality.'

655 F.2d at 690.

To require the State or trial court in a death penalty 
case to continue to press a veniremen, where he has af­
firmed three times that he could not vote for the death 
penalty or follow the law, is to require the repetition of a 
matter on which the juror has been clear and which is 
wholly clear to the parties and the court. Further, to re­
quire that a venireman affirm his position with some 
specific words, but not others, is to establish a rigid and 
unwieldy test so that certain words or the lack thereof 
acquire a talismanic quality, to the exclusion ot a fair 
consideration of the import of the words in the context 
in which they were made. Such a rigid application of the 
principles of Witherspoon simply is unwarranted and 
places a new and quite substantial burden upon tbe 
States seeking to enforce their constitutional death 
penalty statutes. Because the holding of the court 
below establishes a new and unwarranted standard of 
federal review, this Court should grant certiorari to con­
sider this issue.

III.

THE FEDERAL COURTS SHOULD R E V IE W  A 
V E N IR E M A N ’S RESPONSES IN THE CONTEXT  
IN W H ICH  T H E Y W ERE M AD E IN D ETER M IN ­
ING W H E TH E R  HE W A S EXCUSED  IN V IO L A ­
TION OF WITHERSPOON V. ILLINOIS.

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In reviewing a claim that a venireman was excluded in 
violation of Witherspoon, the federal courts should con­
sider the context in which the responses were made. To 
ignore the fact that the trial court previously instructed 
the veniremen on the applicable law in this regard, and 
that the Witherspoon standard was applied consistently 
and correctly throughout the entire voir dire, and that 
neither the trial court, the prosecutor or defense counsel 
found the venireman’s answers equivocal, is to set up a 
rigid and totally unrealistic method of review.

The record reflects that the trial court had just 
previously instructed Harrison that this was a capital 
case wherein there was a possibility that the death 
penalty could be imposed; that the law required that 
each possible penalty be considered; that each 
venireman must follow the law to consider each punish­
ment whether he or she agreed or disagreed with the 
law; and that during individual voir dire examination 
each venireman would be asked whether he or she could 
follow the law (S.F. 161-162, 166-167). The subsequent 
examination of Harrison should have been considered in 
light of the trial’s court’s instructions.

• Further, that Harrison, the trial court, and the at­
torneys saw no equivocation in the questions propound­
ed or answers given is reflected by this record. Where 
the venireman gives a clear answer to a question, and 
then adds supporting words, whether the words render 
equivocal the prior affirmation must be considered in 
the appropriate context. The trial court had just in­
structed Harrison that the law specified that the death 
penalty was one possible punishment to be considered, 
and that he must be willing to follow the law whether he 
agreed or disagreed with it, and that he would be asked 
whether he could follow the law in this regard. After 
Harrison three times affirmed that he could never vote 
to impose the death penalty, defense counsel specifically 
stated that he had no questions for the venireman, and



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specifically relinquished the opportunity to pursue the 
matter with this venireman.' Further, that the 
venireman’s responses were unequivocal is supported by 
the prosecutor’s making a challenge and the trial court s 
sustaining the challenge on this particular record. 1 he 
entire record of the voir dire examination in this case 
reveals that the prosecutor, the defense counsel and the 
trial court fully understood and consistently correctly 
applied the doctrine of Witherspoon. There is no ques­
tion that the trial court and the prosecutor went to great 
lengths to ensure compliance with Witherspoon. 1ms 
fact is extremely relevant to show that the court and t le 
parties heard no equivocation in the words of the 
venireman and supports a finding that the venireman s 
responses were anything but equivocal in the context in 
which they were given. Harrison’s subsequent asser­
tions, in the face of his knowledge of what was required 
of him, were tantamount to assertions that he simp y 
could not follow the law in the instant case. As such, his 
exclusion did not violate Witherspoon. See, Lockett v. 
Ohio, 438 U.S. at 596, 597.

The dissenting opinion below correctly stated that the 
context in which a venireman’s responses are made is ex­
tremely relevant to a review of the voir dire.

>>
While the mere demeanor of a venireman can­
not contradict his express words so as to give 
them a meaning in opposition to that which 
they state, nevertheless, in those instances 
where the meaning is apparent, elements such 
as attitude and tone of voice each are relevant 
factors in conveying the precise message m-

1 Although the majority opinion found that one reason defense 
L n S  failed u> objeh to the exclusion of Harrison was because he 
did not believe an objection was necessary under state law, inis 
failure to object and the explicit waiver of further examination 
should be considered as further support that no one perceived ar- 
rison’s responses as equivocal.

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tended. The trial judge and counsel were pre­
sent with the opportunity to observe and ques­
tion’ Harrison. Here, we think the express 
words brought forth this message loud and 
clear: H arrison’s attitude toward capital 
punishment would have prevented him from 
making an impartial decision on both the guilt 
and penalty facets of the trial. Moreover, the 
action of the trial judge (who had seen and 
heard) in excusing the juror, and appellant s 
counsel’s failure to object, emphasize the ap­
preciation of those who were present that Har­
rison’s views concerning capital punishment 
would substantially impair the performance of 
his duties as a juror, (footnotes omitted)

655 F.2d at 690.

For the federal courts to review a claimed Wither­
spoon violation without any consideration ot the con.ex 
in which the questions and answers were given is to 
blink reality and establish an unrealistic standard of 
review. This Court should grant certiorari to consider 
whether the holding in Witherspoon and its progeny re­
quire such a rigid and unwieldy standard of review.



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CONCLUSION

For these reasons, Petitioner prays that the petition 
for writ of certiorari to the United States Court of Ap­
peals for the Fifth Circuit issue.

Respectfully submitted,

MARK WHITE 
Attorney General of Texas

JOHN VV. FAINTER, JR. 
First Assistant 

Attorney General

RICHARD E. GRAY, 111 
Executive Assistant 

Attorney General

GILBERT J. PENA 
Assistant Attorney General 
Chief, Enforcement Division

LESLIE A. BENITEZ 
Assistant Attorney General

P. O. Box 12548, Capitol Station 
Austin, Texas 78711 
(512) 475-3281

Attorneys for Petitioner

appendix a



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A-l

NO. 79-1332

* * *

IN THE
UNITED STATES COURT O FAPPEALS FOR 

TH E FIFTH CIRCUIT*

KENNETH G llAN VIEL,
Petitioner- Appellan t, 

V.

W. J. ESTELLE, JR., Director,
Texas Department of Corrections, ET AL,

Respondents-Appellees

*  *  *

Appeal from the United States District Court for the 
Northern District of Texas

* * *

ON PETITION FOR REHEARING  
.* (October 13, 1981)

Before AINSW ORTH and HENDERSON,
Circuit Judges,

and HUNTER*, District Judge.

PER CURIAM:
IT IS ORDERED that the petition for rehearing tiled in the 

above entitled and numbered cause be and the same is hereby 
denied.

*District~Judge of the Western District of Louisiana, sitting by 
designation.



ENTERED FOR THE COURT:

Albert. J. Henderson 
United States Circuit Judge

District Judge Hunter Dissents.

Kenneth GRANVIEL, 
Petitioner-Appellant,

A-2

v.

W. J. ESTELLE, Jr., Director,
Texas Department of Corrections, et al., 

Respondents-Appellees.

No. 79-1332.

United States Court of Appeals,
Fifth Circuit.

Sept. 11, 1981.

Appeal from the United States District Court for the 
Northern District of Texas.

Before AINSW ORTH and HENDERSON, Circuit 
Judges, and HUNTER*, District Judge. >

HENDERSON, Circuit Judge:

The appellant, Kenneth Granviel, was convicted in 
the 213th Judicial District Court of Tarrant County, 
Texas, of capital murder of two-year old Natasha Mc­
Clendon and received the death sentence. The Texas 
Court of Criminal Appeals affirmed the conviction,

* District Judge of the Western District of Louisiana, sitting by 
designation.

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Granviel v. State, 552 S.W.2d 107 (Tex.Civ.App. 1976), 
cert, denied, 431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 
250 (1977), as well as the subsequent denial of state 
habeas corpus relief, Ex Parte Granviel, 561 S.W.2d 
503 (Tex.Cr.App. 1978). Granviel then filed a petition 
for a writ of habeas corpus in the United States Dis­
trict Court for the Southern District of Texas. The case 
was transferred to the Northern District of Texas, Fort 
Worth Division, where the petition was denied. This 
appeal followed.

The gruesome details of the multiple rapes and mur­
ders which resulted in Granviel’s conviction are fully 
explicated in the first opinion of the Texas Court ol 
Criminal Appeals, 552 S.W.2d at 110-12. Hence, we 
gladly refrain from repeating them here. Suffice it to 
say that altogether, and in the course of two separate 
killing sprees, Granviel raped four women and stabbed 
to death five women and two children. He fully con­
fessed to these crimes and relied solely on the defense 
of insanity at trial.

On this appeal, Granviel seeks habeas relief on four 
distinct grounds. We consider the problems he raises 
seriatim.

Granviel first maintains that the Texas capital sen­
tencing statute, as applied in this case, violated his 
rights under the Eighth and Fourteenth Amendments. 
The bifurcated procedure employed by Texas courts in 
the trial of capital offenses is set out in Tex.Code Crim. 
Pro.Ann. art. 37.071.Under this system, the jury first 
decides the question of guilt or innocence. In the event 
of a guilty verdict, a separate sentencing proceeding is 
held in which additional aggravating and mitigating 
evidence may be introduced. The jury then answers the 
following questions on the basis of the evidence ad­
duced at both phases of the trial:



(1) whether the conduct of the defendant that 
caused the death of the deceased was committed 
deliberately and with the reasonable expectation 
that the death of the deceased or another would 
result;

(2) whether there is a probability that the defend­
ant would commit criminal acts of violence that 
would constitute a continuing threat to society; and

(3) if raised by the evidence, whether the conduct 
of the defendant in killing the deceased was unrea­
sonable in response to the provocation, if any, by 
the deceased. (Not applicable in this case.)

Art. 37.07.(b). The state must prove each issue sub­
mitted beyond a reasonable doubt: Art. 37.071(c). If 
the jury answers each of these questions affirmative 
ly, the death penalty is mandatory under the terms of 
the statute. A life sentence is required if the jury 
responds “ no” to any one question. Art. 37.07(e). In 
Granviel’s case, the jury answered “ yes” to the first 
and second questions and, accordingly, the trial court 
imposed the death sentence.

Granviel specifically contends that this sentenc- * 
ing procedure, as applied in his particular case, did not 
allow the jury to consider as a mitigating factor the 
evidence of his mental instability. Rather, his mental 
abnormality renders him a dangerous person who 
would admittedly “ constitute a continuing threat to 
society” for purposes of answering the question con­
tained in art. 37.071(b)(2). Therefore, according to 
Granviel, having failed to persuade the jury on the 
insanity defense, the evidence of his mental condition 1 *

1. An affirmative answer requires unanimity, whereas ten of
the twelve jurors may return a negative answer. Art. 37.071(d).

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could only possibly have served as an aggravating 
factor at the penalty phase of the trial.-

The Supreme Court has made quite clear that the 
sentencing authority in a capital case may not be 
precluded from considering as a mitigating factor, any 
aspect of a defendant’s character or record and any of 
the circumstances of the offense that the defendant 
proffers as a basis for a sentence less than death.’ 
Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 
2964-65, 57 L.Ed.2d 973, 990 (1978) (emphasis in the 
original)! Dell v. Ohio, 438 U.S. 637, 98 S.Ct. 2977, 57 
L.Ed.2d 1010 (1978); Woodson u. North Carolina, 428 
U.S. 280, 96 S.Ct. 2978, .49 L.Ed.2d 944 (1976). With 
this standard in mind, the Court held, in response to a 
similar challenge to art. 37.0 1 1(b), that the second stat 
utory question, as construed by the Texas Court of 
Criminal Appeals, “ allow[ed] the defendant to bring to

Neither the prosecution nor the defense presented additional 
evidence at the sentencing stage. Instead, both sides chose to 
rely on the record made during the-trial on guilt or innocence.

The evidence of Granviel's mental disturbance was by no 
means insubstantial. As a child, he attempted several times to 
burn-down his mother's house. His younger brother often ob­
served him tying pillows with strips of rags to simulate the 
body of a woman and then “ having sex with them.” At times, he 
tried to force his brother into performing homosexual acts with 
him. When he was sixteen, Granviel beat and attempted to rape 
his mother, threatening to kill her, his younger brother and 
himself. Thereafter, he was sent to Gatesville State School for 
Boys, where he described to a psychiatrist his pleasure at stick­
ing knives into meat and “ watching the blood squirt” while 
working in the school kitchen. A few years after his release from 
Gatesville, Granviel jumped out of a tree onto his girlfriend and 
later hung her by her heels over a banister while threatening to 
drop her. Approximately two weeks before the first set of mur­
ders, he stood on the same girl’s stomach, beat and raped her at 
gunpoint. One psychologist who testified for the defense diag­
nosed Granviel as a paranoid schizophrenic.



the jury’s attention whatever mitigating circum­
stances he may be able to show.” Jurek v. Texas, 428 
U.S. 262, 272, 96 S.Ct. 2950, 2956, 49 L.Ed.2d 929, 939 
(1976). One such mitigating factor enumerated by the 
Texas court in its opinion in the Jurek case was 
“ whether the defendant was under an extreme form of 
mental or emotional pressure, something less, perhaps, 
than insanity, but more than the emotions of the aver­
age man, however inflamed, could withstand.” Jurek v. 
State, 522 S.W.2d 934, 939-40 (Tex.Cr.App. 1975).

In the instant case, the Texas Court of Criminal Ap­
peals met squarely Granviel’s particular challenge to 
the statute, concluding:

Moreover, the jury in answering the special issues 
may properly consider all the evidence adduced dur­
ing both the guilt and punishment phases of the 
trial. This could include evidence of a defendant’s 
mental condition —whether such evidence be char­
acterized as an ‘aggravating’ or ‘mitigating’ factor. 
Thus, Article 37.071(b), supra, does not prevent the 
jury from considering a defendant’s mental condi­
tion as a mitigating factor.

561 S.W.2d at 516.

While we agree that the evidence of Granviel’s men­
tal condition, when channeled through the second stat­
utory inquiry, most likely had an aggravating result in 
his individual case, we do not believe that the jury was 
absolutely precluded from considering this evidence in 
mitigation. Indeed, taking a quite different tack from 
that used here, defense counsel stressed the following- 
point during closing argument at the penalty phase of 
the trial:

Mr. Strickland has told you the Defendant’s san­
ity is no longer an issue and I agree. You have made 
up your mind on that point, but it is not true that

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the state of his mind, his mental condition is still an 
issue not so far as a defense of insanity, but there is 
not any witness who testified in this case who led 
you to believe that there was nothing wrong with 
this man. If he is a sociopath, you heard Dr. 
Methner—they burn out. Sociopaths burn out. It s 
a deep disease of youth. It is a personality disorder
of youth.

Dr. Methner also said this man could benefit from 
psychiatric help.

R 3275-76. Moreover, Granviel proffered a similar 
argument on his direct appeal to the Texas Court ot 
Criminal Appeals. There, he maintained that because 
of his “ antisocial personality disorder, the evidence 
should be considered insufficient to support the jury s 
affirmative answer to the second statutory question.

We also disagree with Granviel’s suggestion that art. 
37 071(b)(2) is the only statutory question relevant to 
our investigation.3 Art. 37.071(b)(2) requires the jury

3 The Supreme Court based its decision in Jurek v. Texas on 
art. 37.071(b)(2), but stated with respect to the other statutory

*' Pr° VlSThe Texas Court of Criminal Appeals has not yet con­
strued the first and third questions . . thus it is as yet 
undetermined whether or not the jury s consideration of 
those questions would properly include consideration of mi i 
gating circumstances. In at least some situations the ques­
tions could, however, comprehend such an inquiry, lo r  exam­
ple the third question asks whether the conduct of th 
defendant was unreasonable in response to any provocation 
by the deceased. This might be construed to allow the jury to 
consider circumstances which, though not sufficient as a 
defense to the crime itself, might nevertheless have enough 
mitigating force to avoid the death penalty-a claim, for 
example, that a woman who hired an assassin to kill her 
husband was driven to it by his continued cruelty to her. We 
cannot, however, construe the statute; that power is reserved 
to the Texas courts. „

428 U.S. at 272 n. 7, 96 S.Ct. at 2956 n. 7, 49 L.Ed.2d at 938 n. 7.



A-8

to decide whether the defendant acted deliberately and 
with the reasonable expectation that death would 
result. This inquiry seems to be the better vehicle for 
the concept of mitigation which is of primary impor­
tance to Granviel, i.e., that mental disorder lessens 
moral culpability.

It is true, as the NAACP maintains in its amicus 
curiae brief, that a “ yes” answer to the first statutory 
question logically follows from a conviction of capital 
murder. See Tex.Penal Code Ann. § 19.03. However, 
such is not necessarily the case. The Texas Court of 
Criminal Appeals explains the inconsistency as fol­
lows:

[A] jury having found that a defendant intention­
ally committed a capital murder to be consistent 
would have to find that the act was deliberately 
done. However, the inconsistent answer to the ques­
tion Art. 37.071(b)(1) reflects only that the jury did 
not want the death penalty assessed.

Blansett v. State, 556 S.W.2d 322, 327 n.6 (Tex.Civ. 
App. 1977). Similarly, in Brown v. State, 554 S.W.2d 
677 (Tex.Cr.App. 1977), the Texas court rejected the 
contention that art. 37.071(b)(1) requires the same find- t 
ing as a determination of guilt under § 19.03.

It is not inconceivable that a jury, having found the 
requisite intent for a conviction of capital murder and 
having rejected the insanity defense, may yet conclude 
that, because of evidence of mental disturbance, a de­
fendant’s acts should not be deemed sufficiently delib­
erate to warrant the death penalty. Here again, we note 
than Granviel propounded a similar argument on his 
first appeal, where he maintained that the murder of 
Natasha McClendon “ occurred in a frenzy” and that 
there was insufficient evidence that it was done delib­
erately. 522 S.W.2d at 123. True, the Texas Court of

A-y

and the appellate court's
dence was^ufhc.ent t o ^ W  ,uded from consider-

PeT h e evidence of Granviel's mental instability as a 
lug  the evidence o d oniy to this consider-
mitigaUng factor. He is^ntitle^t  ̂ [n Ju re k  ,
ation. Given th P 07 1(b)(2) and our own
T , T  with respect t»  art of art.
understanding of th capital-sen-
37.071(h) as a whole, we conclude thatj »e cap 
tencing statute is not unconstitutional as app
Granviel.

As a second attack on the validity of his death 
sentence. Granviel  ̂assert!  ̂that ̂ . ^ ^ ^ W i t h e r -
improperly excluded t e c  - gg ^  20 L.Ed.

2d° 776 (1968) The Witherspoon rule has been the 
s u l T J *  discussion since its Ptonoencement.

f ^ t d % U33“ 'M o L e /f u. B i*op . 3981138, 22 L.Ed.2d 433 (19bJ , i $
US. 262. 90 - . ~ - ; 2 d 2 2U  ^  ^

u. Georgia, ~ 7o t F2d 29 (5th Cir. 1970), cei t.(1976); M ario n  n. B e ta , 43 F M  29 l ̂  ^  L Ed 2d 646
'. 'denied,402 U.S. 90 , • (6th cir. 1980) (en

S 7 ;e ^ o S™ fd “ to3 its intricacies here.

S r t a t e d . ^ = ^ - » r o S
may nitted'before the trial has begun, to vote against 
thtTpeiudty of death regardless of the facts and crcunv

o Pnnrt recently upheld the applicability of4. The Supreme Court Recent y P' & Adams u. Texas,
Witherspoon to ^ as ‘ u . „  , 2d 5gl (1980). We note that 
448 U S 38 100 S.CL “ f > - w a s  held in
Tex.Penal Code Ann. § • • j as an independent basis
Adams to have been improperly used as an P here.
for the exclusion of prospective jurors, is not



A-10

stances that might emerge in the course of the proceed­
ings.” 391 U.S. at 522 n.21, 88 S.Ct. at 1777 n.21, 20 
L.Ed.2d at 785 n.21. The state retains the right to 
exclude only those veniremen who

ma[k]e unmistakably clear (1) that they would auto­
matically vote against the imposition of capital 
punishment without regard to any evidence that 
might be developed at the trial of the case before 
them, or (2) that their attitude toward the death 
penalty would prevent them from making an impar­
tial decision as to the defendant s guilt.

Id. (emphasis in original.)

Of the five veniremen whose exclusion Granviel chal­
lenges,5 6 the district court held, in accordance with the 
magistrate’s recommendation, that one venireman, 
Donald L. Harrison, was improperly excused for cause 
for merely voicing conscientious scruples against the 
death penalty. We, too, believe that Harrison’s exclu­
sion for cause constituted a Witherspoon violation." He 
was first asked whether he had conscientious scruples 
against the infliction of the death penalty, whereupon 
he stated, ‘ ‘ I don’t know what that means.” When 
asked if he could ever vote to inflict the death penalty, 
he replied, ‘ ‘No, I don’t think 1 could.” Then, in re-^ 
sponse to the question, “ You just don’t feel like you 
would be entitled to take another person’s life in that 
fashion?” he nodded and then said, No, I could not. 
These questions and answers fall far short of an affir­
mation by Harrison that he would automatically vote

5. The relevant voir dire examination of each of these venire­
men-Donald L. Harrison. Homer N Lipscomb, Inez Wallace, 
Mrs. Hoy I. Cox and Mattie D. Vernon—is reproduced in the 
Appendix.

6. We express no opinion as to the propriety of striking prospec­
tive jurors Lipscomb, Wallace, Cox, and Vernon.

against the death penalty regardless of the evidence 
nr ^hat his objections to capital punishment won d 
prevent him from making an impartial decision as to

guilt.

This court recently reaffirmed its commitment Lo 
ensuring strict adherence to the mtindates <itWiiiher- 
ZTonin Burns u.Estelle. 626 F.2d 396 (5th Cir. 19801

(en banc). There, we explained the improper exclusion 
of a prospective juror as follows:

ITlhree times in succession Mrs. Doss stated that 
she did not believe in the death penalty, M ow ing  
with an affirmation that it would affect her del,be,
ations on any issue af tact in the e ^ e . Thesse are 
strong expressions indeed, but they fall short of 
unequivocal avowals disqualifying her under eit e 
aspect of Witherspoon’s two-pronged test------

626 F2d at 397-98. Mr. Harrison's equivocation differs 
slightly in kind from that of Mrs. Doss, but is certainly 
of no lesser degree. While Mrs. Doss stated that the 
nossibility of the death penalty would affect her 
deliberations on any issue of fact, Mr. Harrison made 
no such representations and, indeed, was never quo 
Honed as to whether his attitude toward the death 
penalty would prevent him from making an impartia 
determination as to guilt. Further, Mrs. Doss s re­
peated disclosures that she did not believe in the deat 
penalty were no less indicative of an automatic vo
against the imposition of caP{ a ^pU.nl,sh^ e^ e\ he
Mr Harrison's statement that he did not feel that he
would be entitled to take another person s life.

13! Normally, our determination that veniremen 
Ha risen waslmproper.y excused would conclude ou 
inuuirv for if just one prospective juror is struck for 
reasons insufficient under the death pe
S ty  must be set aside. Davis u. Georgia, supra. Ma-



A-12

non v. Beto, supra. However, in the instant ease, the 
district court, again following the magistrate’s recom­
mendation, held that defense counsel’s failure to con­
temporaneously object to the improper exclusion 
amounted to a waiver of the Witherspoon error.

The Supreme Court established in Wainwright v. 
Sykes, 433 U.3. 72. 97 S.Ct. 2497, 53 L.Ed.2d 594 
(1977), that a state procedural waiver of a constitu­
tional claim bars federal habeas corpus review absent a 
showing of “ cause" and “ prejudice.’ ’ The prejudice 
resulting from the exclusion of a juror in violation of 
Witherspoon can hardly be questioned in light of deci­
sions such as Davis v. Georgia and Marion v. Beto. 
Granviel maintains that the cause for the failure to 
object was the reliance by defense counsel on Texas 
case law which, at the time of his trial, indicated that a 
contemporaneous objection was not a prerequisite to 
the subsequent assertion of a Witherspoon error. It 
would seem, however, that the absence of a state con­
temporaneous objection rule would render the Sykes 
issues irrelevant. Thus, we turn to Granviel’s conten­
tion that there was no such rule in Texas in October of 
1975.

In Tezeno v. State. 484 S.W.2d 374 (Tex.Cr.App.> 
1972), the Texas Court of Criminal Appeals enter­
tained Witherspoon challenges to the exclusion of sev­
eral jurors, including one whose voir dire examination 
was much the same as that of venireman Harrison.7

7. Do you have any conscientious scruples against the assess­
ment of death as a punishment for the crime of murder, in a 
proper case, sir?

A Yes, sir, I do.
Q I take it, by your answer, then, that there are no facts or 
circumstances whatever, that would justify you, personally, 
in rendering a death verdict in a murder case?

(footnote continued on following page)

A-13

The court concluded (incorrectly, we believe) that no 
violation occurred, but nevertheless reached the merits 
of the Witherspoon claim even though defense counsel 
had expressly stated that he had no objection to the 
challenge for cause. The court reasoned as follows:

Waiver of objection apparently will not, in itself, 
vitiate an improper challenge. It is, however, a fac­
tor to be considered in cases such as the one at bar, 
where the exact meaning of a venireman’s answer 
cannot be ascertained with total accuracy trom the 
words of his answer alone.

484 S.W.2d at 383 n.2. .

On April 30, 1975, the Texas Court of Criminal Ap­
peals decided Hovila v. State, 532 S.W.2,d 293 (Tex.Ci. 
App. 1975), holding that several jurors were struck for 
reasons insufficient under Witherspoon. Defense coun­
sel had voiced no contemporaneous objections to the 
improper exclusions, and yet the court did not even 
mention the possibility of waiver.

It was not until its decision in Boulware v. State, 542 
S.W.2d 677 (Tex.Cr.App. 1976), where it expressly 

’ overruled Hovila and Tezeno, that the Texas court held 
that the failure to object constituted a waiver of a.

(footnote continued from previous page)

A I don’t believe I could.
Q All right. You're just absolutely opposed to that penalty, 
on conscientious grounds?
A Yes, sir.
Q Thank you, sir.
Mil. BENNETT: We’ll challenge for cause.
MR. CALDWELL: No objections, Your Honor.
THE COURT: All right. You’re excused, Mr. Juror.

484 S.W.2d at 382-83.



A-14

Witherspoon claim. We cannot enforce against Gran- 
viel a contemporaneous objection rule that apparently 
did not even exist at the time of his trial.

We must admit that we reach this result reluctantly 
and without great satisfaction. We obviously do not 
have here the situation perceived by Judge Goldberg 
in his opinion in Jurek v. Estelle, 593 F.2d 672 (5th Cir. 
1979), now vacated by the decision of the court on 
banc,’ 623 F.2d 929 (19S0) (see 5th Cir. Rule 17). He 
concluded that Jurek's trial counsel was either igno­
rant of the Witherspoon holding or that he misunder­
stood it, thus explaining his failure to object to im­
proper exclusions. Granviel's counsel was well-aware 
of the Witherspoon rule, as his objections to certain 
lines of questioning demonstrate.9 He did, in fact, ob­
ject to the exclusion of Mattie D. Vernon on Wither­

8. The treatment given Granviel’s Witherspoon claims on his 
direct appeal is somewhat confusing. The Texas court discussed 
the responses of each of the five veniremen, implying that exclu­
sion was proper. Then, as to each one (except Mattie D. Vernon, 
whose exclusion did elicit an objection), it cited Boulware in 
concluding no error was shown. 552 S.VV.id 112-14.

9. I ’m going to object. That is an improper question, whether it 
would be in conflict with religious feelings.

R.1058.

I object. The most the State can demand is a person be 
willing to consider all the penalties.

R. 1059-60. I

I will object to that as being an improper question. The 
question is whether cr not she would unequivocally and 
automatically vote against it in every case.

R.1725.
By the same token, the prosecutor and the trial judge were 

also cognizant of the need to comply with Witherspoon. Indeed, 
the observation made by Judge Gee in Burns v. Estelle, 592 F2d

(footnote continued on foilouinp puge)

A-15

spoon grounds.10 As to the other challenged exclusions, 
defense counsel testified at the state habeas nearing 
that he deliberately chose not to object because he felt 
he was not required to do so under Texas law e 
cannot condone such tactics. Indeed, we agree with the 
state’s assessment that “ [t]o fail to object when coun­
sel perceives error is to undermine the mtegnty of the 
judicial process.” However, faced with the apparent 
absence of a Texas contemporaneous objection rule at 
the time of Granviel's trial, and ever-mindful of the 
gravity of a Witherspoon transgression and tne conse­
quences of precluding its assertion, we decide that the 
error in excluding venireman Harrison was not waived. 
Accordingly, Granviel’s death sentence cannot stand.

As his third ground of error, Granviel asserts that 
the allowance of certain psychiatric testimony at t e 
guilt phase of the trial violated the attorney-client 
privilege and resulted in the deprivation ot his Sixth

(footnote continued from previous page)

*' 1297- 1302 (5th Cir. 1979), reheard en banc, 626 F.2d 396 (1980), 
is equally applicable here: “ [M]uch of the voir dire concerned the 
Wi therspoon problem; the trial judge's comments and questions 

clearly indicate that his attention was focused upon it during 
the entire process of cutting the panel.” In Burns, these factors 
militated against the finding of a waiver. The en banc opinion 
reaffirmed the panel’s holding on the merits, thus implicitly 
approving the discussion of the waiver issue.

10 For the purpose of the record, I am going to object to the 
exclusion of Mrs. Mattie D. Vernon on the grounds her ques­
tions (sic) were less than unequivocal and never did she say 
she would automatically vote against the death penalty in
every case. . ..

11.1728.



A ' i O

Amendment right to effective assistance of counsel.1' 
Since our resolution of this issue is largely dependent 
on certain aspects of Texas law, we find the Texas 
Court of Criminal Appeals’ analysis of the problem on 
Granviel’s direct appeal most helpful, both as to the 
facts and the relevant state law:

Appellant contends that the attorney-client privi­
lege was violated by the State’s subpoenaing and 
calling to the witness stand psychiatrist John T. 
Holbrook, who was appointed to examine appellant 
at the request of appellant’s court appointed coun­
sel. Appellant contends that Dr. Holbrook was an 
agent of appellant’s trial counsel because he was 
employed to assist them in the preparation of the 
defense in the trial. The appellant s only detense is 
that he was insane at the time of the commission of 
the offense.

On the written request of appellant the couit ap­
pointed Charles Dickens and Frank Sullivan, Es­
quires, practicing attorneys to defend him on Feb- 11

11 We assume that Granviel employs this argument as an at- 
' tack upon the conviction itself, and that it is not another chal­

lenge aimed solely at the validity of his death sentence. We note, 
however, that he does not specifically complain that the psychia­
trist’s testimony weakened his insanity defense, but rather that 
it damaged him in relation to the jury’s determination under 
Art 37 071(b)(2). And yet, our examination of the record reveals 
no testimony by Dr. Holbrook which touched directly on the 
issue of Granviel’s future dangerousness. Rather, the import of 
his testimony was that Granviel suffered from no psychosis and 
that he was sane, within the legal definition, at the time of the 
commission of the offenses. As we mentioned previously, neither 
the prosecution nor the defense offered additional testimony at 
the separate sentencing phase of the trial. Also, the prosecutor s 
only reference to Dr. Holbrook’s testimony during arguments at 
the penalty phase was that “ Dr. Holbrook said he [Granviell 
should be held accountable for what he did.” It.3291.

ruary 13, 1975. Appellant’s counsel then contacted 
Dr. Holbrook, a psychiatrist, some time before 
April 26, 1975, and requested him to examine appel­
lant in the Tarrant County Jail. These examinations 
were made on April 26 and May 16, 1975. Present 
at both examinations were the psychiatrist, appel­
lant and counsel. Dr. Holbrook stated that appel­
lant satisfactorily communicated with him and re­
sponded to his questions during the examination.

On May 22, 1975, upon counsel’s written motion, 
the trial court appointed Dr. John 1. Holbrook to 
examine the defendant in the Tarrant County Jail 
at any and all times that are convenient both to I h . 
John Holbrook and the Sheriff. On the same date 
the court upon appellant’s counsel s written notice 
appointed Dr. M. Jerold May to administer psycho 
logical tests to appellant at his office in Fort Worth, 
which tests were made at a later date. On August 9, 
1975, upon the State’s request the court appointed 
Dr. Hugh Brown, a psychiatrist, to examine appel 
lant at the Tarrant County Jail. Dr. Brown wioi.e 
the court of his inability to examine appellant be­
cause appellant refused to talk to him without Ida 
counsel being present. Dr. John Methner, a court 
appointed psychiatrist requested by the State;, tes­
tified that on April 13, 1975. when he tried to exam 
ine the appellant in the presence of his counsel, he 
was unable to do so because appellant refused to 
talk to him or cooperate for the examination. Coun­
sel stated that he advised the appellant that he did 
not have to talk to the psychiatrist (Dr. Methner); 
however, the psychiatrist did get to observe appel­
lant for a while.

Art. 46.02, Sec. 2(f), V.A.C.C.P., as amended Au­
gust 30, 1971, and effective at the date of the ap­
pointment of Dr. Holbrook on May 22, 1975, pro­
vides;



/wt>

‘ (1) The court may, at its discretion appoint dis­
interested qualified experts to examine the de­
fendant with regard to his present competency 
to stand trial and as to his sanity, and to testify 
thereto at any trial or hearing in connection to 
the accusation against the accused . . .

* * * * * *

(4) No statement made by the defendant during 
examination into his competency shall be admit­
ted in evidence against the accused on the issue 
of guilt in any criminal proceeding no matter 
under what circumstances such examination 
takes place.

(5) Any party may introduce other competent 
testimony regarding the defendant’s compe­
tency.’

Under this statute, the trial court’s allowing Dr. 
Holbrook to testify was proper. ‘[AJppoint disinter­
ested qualified experts to examine the defendant 
. . .’ clearly means that such expert is not appointed 
by the court as the expert of the State or the de­
fense, but is the court’s disinterested expert. He 
may appoint such expert at his discretion and with­
out a motion therefore (sic), and either party may 
subpoena such witness. Therefore, no attorney-cli­
ent privilege exists as to Dr. Holbrook.

In Stultz v. State, [Tex.Cr.App.], 500 S.W.2d 853, 
this Court said:

‘A psychiatric examination is not an adversary 
proceeding. Its purpose is not to aid in establish­
ment of facts showing that an accused commit­
ted certain acts constituting a crime; rather, its 
sole purpose is to enable an expert to form an

opinion as to an accused’s mental capacity to 
form a criminal intent.

Because of the intimate, personal and highly 
subjective nature of a psychiatric examination, 
the presence of a third party in a legal and non­
medical capacity would severely limit the effi­
cacy of the examination . . (Emphasis added.)

Compare Walker v. State, Tex.Cr.lt. 176 (1885). 
See also Gholson v. State, Tex.Cr.App., 542 S.W.2d 
395 (1976).

Art. 46.03, Sec. 3, V.A.C.C.P. effective June 19, 
1975, provides as follows:

‘(a) If notice of intention to raise the insanity 
defense is filed under Section 2 of this article, 
the court may, on its own motion or motion by 
the defendant, his counsel, or the prosecuting 
attorney, appoint disinterested experts experi­
enced and qualified in mental health or mental 
retardation to examine the defendant with re­
gard to the insanity defenses and to testify 
thereto at any trial or hearing on this issue, but 
the court may not order the defendant to a state 
mental hospital for examination without the 
consent of the head of the state menLal hospital.

* * * * * *

(d) A written report of the examination shall be 
submitted to the court within 21 days of the 
order of examination and the court shall furnish 
copies of the report to the defense counsel and 
the prosecuting attorney. The report shall in­
clude a description of the procedures used in the 
examination and the examiner’s observations 
and findings pertaining to Lhe insanity delense.



A-20

* * * * * *

(g) The experts appointed under this section to 
examine the defendant with regard to the insan­
ity defense also may be appointed by the court 
to examine the defendant with regard to his 
competency to stand trial pursuant to Section 3 
of Article 46.02 of this code, provided that sepa­
rate written reports concerning the defendant’s 
competency to stand trial and the insanity de­
fense shall be filed with the court.’

Cf. Article 46.02, Sec. 3, V.A.C.C.P. (Incompetency 
to stand trial).

A procedural statute controls litigation from its 
effective date. Wilson v. State, Tex.Cr.App., 473 
S.W.2d 532. The trial o'f the instant case was in 
October 1975, and Article 46.03, Sec. 3, supra, was 
then effective and controlling. Wilson, supra. Cf. 
McCarter v. State, [Tex.Cr.App.], 527 S.W.2d 296.

Articles 46.03 and 46.02, supra, negate the con­
tention of appellant that the attorney-client privi­
lege was violated. Both the State and appellant had 
the right to subpoena the psychiatrist and adduce 
his testimony at the trial. There is no difference in 
the result when the examinations were completed 
before the appointment was made, as in the instant 
case, and when a psychiatrist is appointed by the 
court and then makes his examination.

Communications between a physician and his pa­
tient are not privileged under Texas Law. Texas has 
no statute establishing the privilege and the courts 
invariably deny its recognition. See Bonewald u. 
State, 157 Tex.Cr.R. 521, 251 S.W.2d 255.

* * * * * *

A-21

There is no affirmative evidence in the instant 
case showing that Dr. Holbrook revealed any fact or 
communication between him and appellant showing 
that appellant committed a crime of any nature. The 
testimony shows to the contrary that Dr. Holbrook 
never communicated to anyone in the disLrict attor­
ney’s office any such statements or facts, if any, 
resulting from the examinations he made of appel­
lant as to his sanity or his competency. Therefore, 
Article 46.02, Sec. 2(f)(4), supra, and Article 46.03, 
Sec. 3, supra, have not been violated.

Appellant claims that Dr. Holbrook’s examina­
tion was necessary to. his defense of insanity and 
failure to request the examination would have been 
ineffective assistance of counsel. Appellant contends 
that by employing Dr. Holbrook he created an invol­
untary State’s witness who gave testimony adverse 
to appellant relating to Special Issue No. 2 under 
Article 36.071(b)(2), V.A.C.C.P. In view of our pre­
vious discussion of the status of Dr. Holbrook as a 
disinterested expert witness under Articles 46.02, 
Sec. 2(f) and 46.03, Sec. 3, this contention is without 
merit.

562 S.YV.2d at 114-17. (Emphasis in original.)

Granviel admits that, in order to prevail on this 
issue, he must establish that his conversations with Dr. 
Holbrook were protected within the attorney-client priv­
ilege as iL exists in Texas. However, it is clear that under 
Texas law, as interpreted by the Texas Court of Criminal 
Appeals, the attorney-client privilege does not attach in 
this situation. Rather, psychiatrists or psychologists 
who examine a defendant with respect to competency or 
insanity are designated as “ disinterested qualified ex­
perts.” As such, they may be subpoenaed by either 
party and they are not, as Granviel suggests, agents of 
either defense counsel or the prosecutor.



A 22

We realize thaL several state courts have, indeed 
adopted the ru.e advocated b ,  Orjnvid.

Franciscan Superior Court, 37 CaL2d 227 231 K2d2b  
(1951)' State v. Kociolek, 23 N.J. 400, - . .
(1957) Also, the Third Circuit, faced with a remarkably 
similar set of facts, concluded that the attorneJ '^ ieiJ 
privilege should be recognized when a psychiatnst 
secured by defense counsel for assistance-.in trial.prepa­
ration. United States v. Alvarez, 519 F.2d 1036 (3d Cir 
1975) 12 However, it did so in the context o a ire 
appeal from a federal conviction. We are not here decid­
ing the scope and appropriate application ot the attor 
ney-client privilege for federal criminal proceedings, 
hence, we are not at liberty to flatly agree or disagree 
with the Third Circuit rule. Rather, we must determine 
whether such a rule of privilege, though perhaps prefer­
red, is constitutionally required.

12 The court analogized the case to United States v. Kovel, 2JG 
F.2d 918 (2d Cir. 19(31), where the Second Circuit held the pr - 
lege applicable to communications made to an accountant tor 
the purposes of aiding counsel in preparing a defense_ Fro 
there, it reasoned that the appellant had been denied effective
assistance of counsel, as follows: .

' The issue here is whether a defense counsel in a czsemvoW- 
ing a potential defense of insanity must run the risk that ^  
psychiatric expert whom he hires to advise him with respect 
to the defendant's mental condition may be forced to be an 
involuntary government witness. The effect of such a ru 
would we think, have the inevitable effect ot depriving d 
fendants of the effective assistance of counsel in such cases. 
A psychiatrist will of necessity make inquiry about the facts 
surrounding the alleged crime, just as the attorney  ̂ wil 
Disclosures made to the attorney cannot be used to furnish 
proof in the government’s case. Disclosures made to th 
attorney’s expert should be equally unavailable, at least un­
til he is placed on the witness stand. The attorney must be 
free to make an informed judgment with respect to the best 
course for the defense without the inhibition of creating a 
potential government witness.

519 F2d at 1046-47.

[5! In concluding that there is no such constitutional 
mandate, we substantially agree with the rationale of 
Judge Weinstein in his excellent and thorough opinion in 
Edney v. Smith, 425 F.Supp. 1038 (E.D.N.Y. 1976), aff'd, 
556 F.2d 556 (2d Cir. 1977), a habeas corpus case which, 
for our present purposes, involved essentially the same 
facts 1:1 Recognizing that the defendant might suffer 
prejudice as a result of the New York rule allowing the 
psychiatrist to testify, Judge Weinstein inquired as to 
whether “ ihe balance drawn by New York is so detri­
mental to Lhe attorney's effective representation of his 
client as to be prohibited by the Sixth Amendment.” 42o 
F.Supp. at 1053." He then answered this question nega­
tively:

We can only speculate that the New York rule 
results in substantial prejudice to criminal defend­
ants.

The statements by the defendant to his psychia­
trist were not admitted to establish the fact of his 
having committed the murder, but only to establish a 
basis for the psychiatrist's evaluation of petitioner's 
sanity at the time of the offense."51 Given this limited 
use, any possible prejudice may be balanced, within 13 14 *

13 in Edney, the New York state court had not held, as the 
Texas court did here, that the attorney-client privilege was inap­
plicable, but rather that it had been waived by Lhe mere asser­
tion of the insanity defense. People v. Edney, 39 N.Y.2d 620, 38o 
N.Y.S.2d 23, 350 N.E.2d 400 (1976). As a practical matter, there 
would seem to be little difference in the effects of these two 
approaches.

14 Judge Weinstein noted that the Alvarez court, although us­
ing language “ constitutional in tone,” did not have a constitu­
tional question before it.

15. In the instant case, Dr. Holbrook did not relate to anyone the 
statements made to him by Granviel, but only his expert opin­
ion derived from the psychiatric examination,



A-21

limits not exceeded in this case, by the strong 
counter-balancing interest of the State in accurate 
fact-finding by its courts.

In sum, it seems undesirable at this time to can­
onize the majority rule on the attorney-psychiatrist- 
client privilege and freeze it into a constitutional 
form not amenable to change by rule, statute, or 
further case-law development.

425 F.Supp. at 1054.

We are especially driven to this outcome in this case 
where Granviel, at his counsel’s urging, refused to coop­
erate with the experts who were appointed at the prose­
cution’s request.'* As other circuit courts have noted:

It would be a strange situation, indeed, if first, 
the government is to be compelled to afford the.de­
fense ample psychiatric service and evidence at gov­
ernment expense, and, second, if the government is 
to have the burden of proof—and yet it is to be denied 
the opportunity to have its own corresponding and 
verifying examination, a step which perhaps is the 
most trustworthy means of attempting to meet that 
burden.

United States u. Albright, 388 F.2d 719, 724 (4th Cir. 
1968), Quoting Pope v. United States, 372 F.2d 710, 720 
(8th Cir. 1967), vacated and remanded on other grounds, 
392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968). 
This court made a similar observation in the context of a 
federal prosecution:

16. In federal courts, such refusal could result in the exclusion of
any expert testimony offered by the defendant on the issue of 
his mental state. See Fed.R.Crim.P. 12.2(d).

A - Z . )

[T]he government will seldom have a satisfactory 
method of meeting defendant’s proof on the issue of 
sanity except by the testimony of a psychiatrist it 
selects—including, perhaps, the testimony of psychi­
atric experts offered by him—who has had the oppor­
tunity to form a reliable opinion by examining the 
accused.

United States v. Cohen, 530 F.2d 43, 48 (5th Cir. 1976) 
(footnote omitted). Hence, we hold that Granviel is not 
entitled to habeas relief on the attorney-client and Sixth 
Amendment grounds.16 17

[61 Granviel finally urges that he was deprived of his 
Sixth Amendment right of confrontation by the intro­
duction of hospital records containing diagnostic opin­
ions. These records were presented by the State to rebut 
defense evidence that Granviel had been hospitalized for 
insanity.

Texas recognizes the business records exception to 
the hearsay rule, Tex.Rev.Civ.Stat.Ann art 3737e, and 
applies it in criminal as well as civil cases, Coulter v. 
State, 494 S.W.2d 876 (Tex.Cr.App. 1973). Granviel com­
plains that the state did not strictly adhere to the proce­

dural requirements of art. 3737e, and, further, that the 
"diagnostic opinion in question lacked the requisite trust­
worthiness. However, at the trial, defense counsel

17. We note that the issues of the Fifth Amendment privilege 
against compelled self-incrimination and the Sixth Amendment 
right to counsel which underlie the Supreme Court’s recent
decision in Estelle v. Smith,___ U.S. ____ , 101 S.Ct. 1866, 68
L.Ed.2d 359 (1981), are not involved here. Granviel and his 
attorneys were certainly aware that the prosecution intended to 
call Dr. Ilolbrook as a witness and they knew of the conclusions 
and the expert opinion to which he would testify. Further, Gran­
viel was in no way compelled to submit to the examination by 
Holbrook.



A -26

merely objected to the admission of the evidence on the 
ground that it was “ hearsay." The Texas oourt of crimi­
nal Appeals held this objection insufficient, 552 S.W.2d 
at 121-22 citing its previous opinions in Forbes v. 
State, 513 S.W.2d 72 (Tex.Cr.App. 1974); Williams v. 
State, 531 S.W.2d 606 (Tex.Cr.App. 1976) (objection 
must be contemporaneous); and Bouchillon v. State, a40 
S.W.2d 319 (Tex.Cr.App. 1976) (objection too general 
properly overruled). Granviel having failed to demon­
strate “ cause" and “ prejudice” in connection with the 
inadequate objection, see Waiiiwright v. Sykes, 433 U.S. 
72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), habeas corpus 
relief was properly denied on this ground.

Accordingly, petitioner s death sentence must be set 
aside, and the judgment of the district court is reversed 
insofar as it leaves the death sentence in effect. In all 
other respects the judgment is affirmed. Ih e case is 
remanded to the district court with directions that the 
State of Texas determine within a reasonable time 
whether (1) to conduct a new sentencing proceeding in 
the manner provided by state statute, or (2) to vacate 
petitioner’s sentence and impose a sentence less than 
death in accordance with state law.'"

A FFIR M ED  IN PART; REVERSED  IN PART, 
AND R EM AN D ED  FOR FURTHER PROCEEDINGS- 
IN ACCORDANCE W ITH  TH IS OPINION.

18. Marion v. Beto, 434 F.2d 29 (5th Cir. 1970), cert, denied, 402 
U.S. 906, 91 S.Ct. 1372, 28 L.Ed.2d 646 (1971).

APPEN D IX

DONALD L. HARRISON

Q; (By Prosecutor) The defendant in this case is 
charged with capital murder. There are only two punish­
ments for the offense of capital murder and that is either 
death or life in the penitentiary.

Now, do you have conscientious scruples against
the infliction of the death penalty as a punishment
for crime?

A: I don’t know what that means.

Q: Let me ask you if you, personally sitting as a
Juror, could ever vote so as to inflict the death penalty?

A: No, 1 don’t think I could.

Q: That is a definite prejudice or feeling that you 
have that you would not change? You just don’t feel like 
you would be entitled to take another person s life in 
that fashion.

A: (Venireman nods.)
• r

Q: Okay, you could not?

A; No. I could not.

MR. W ILSON; We challenge. Your Honor.

THE COURT: The defense have any objections? 

MR. DICKENS: We don’t have any questions.

THE COTJRT: All right.



A - Z t l

The Court feels that the State’s challenge for 
cause is qualified in this cause and supported by 
the evidence.

You will be excused, then, Mr. Harrison. Thank 
you very much. (R. 711-12).

HOM ER N. LIPSCOMB

Q: (By Prosecutor) . . . There are only two possible
punishments for capital murder, and that is lile or death.

Now, bearing in mind the fact that this is a capital 
murder situation, I will ask you whether or not you 
have any conscientious or religious scruples against 
the imposition of the death penalty in a proper case?

A: I ’m not very religious but T do have. I am kind of
against the death penalty.

Q: Kind of against the death penalty. I appreciate
your candor, and of course that is why we need to ask 
you these questions.

When you say you are kind of against the death 
penalty, what do you mean by that?

A: I mean it would have to be, you know, 1 really
don’t know what I am, but I just wouldn t want to be a 
part of it.

Q: I understand that.

Of course, nobody thinks it s a very pleasant occa­
sion, nobody thinks that it’s something they would 
particularly want to do, but the question is, of 
course, whether or not you yourself could peisonally 
take part in making decisions which you knew would 
result in the death of a human being.

A: I don’t think I would.

Q: You don’t think you could?

Well, you understand I have no argument with 
that position, but it’s necessary that we find out 
exactly how you feel about it.

Is what you are saying that you have personal 
and deep-seated feelings which would prevent you 
from rendering a decision which would result in the 
death of a person in any case whatsoevei ?

A: I don’t feel like I am that kind of a judge.

O: You don’t think you could imagine any sort of
case in which you feel the death penalty would be justi­
fied, then?

A: No.

O' By that you mean you would automatically vote 
against the infliction of the death penalty, no matter 
what the facts were in a particular case!

A: I might consider it, but I automatically would
Tight now.

Q: You would automatically vote against the impo­
sition no matter what the trial would reveal?

A: Yes.

Q: And no matter what these facts reveal no mat­
ter how terrible the crime might be, that would not be 
enough to cause you to set aside your personal deep 
convictions regarding this matter?

A: I wouldn’t want that on my mind.



A-30

Q: And this is a firm conviction, I take it, from
what you have said?

A: Yes.

Q: And it’s the sort of conviction which you are not
going to let anybody talk you out of, presumably some­
thing within yourself and of course you have to live with 
yourself and your convictions and it’s something you 
believe in and you are not going to let anybody talk you 
out of that?

A: Yes.

Q: I appreciate you telling that, Mr. Lipscomb, and
we do appreciate your candor.

MR. STRICKLAND: Your Honor, it’s the posi­
tion of the State these are sincere and deep seated 
convictions and as such we would challenge Mr. Lips­
comb for cause.

THE COURT: The challenge is granted under 
the authority of Witherspoon in (sic) Illinois. (R. 
809-11).

INEZ WALLACE

Q: (By Prosecutor) . . .  I ’d like to ask you now
whether you personally have any conscientious or reli­
gious scruples against the imposition of the death pen­
alty in a proper case?

A: Well, the truth. I don’t know exactly how I feel 
in that way.

Q: Of course, I can understand that. It ’s a serious
point, but it’s something we need to talk about because 
obviously if we are only faced with two possible alterna­

tives, we need to make sure we have jurors that are able 
to consider both of those alternatives.

Have you been able to give it some thought? 
Have you thought about this question, say, before 
you came over here on jury service?

A: Well, I do believe in the Bible and I don’t think
no one should kill anyone.

Q: Okay. Let’s talk about that, if I may, for a while. 
You say, ‘ I believe in the Bible,’ and you believe in the 
things that it teaches you and no one should kill. By that 
are you saying you don’t feel that you could give consid­
eration to the death penalty regardless of what the facts 
might show in a case?

A: Well, I believe I could do that.

Q: You believe you could consider the death penalty
and you don’t feel that would in any way conflict with 
your religious feelings; is that right?

MR. DICKENS: I ’m going to object. That is an
improper question, whether it would be in conflict 
with religious feelings. Certainly perhaps the death 
penalty might be.

THE COURT: Sustained.

MR. STRICKLAND: If I may make a state­
ment to that. I think Witherspoon allows us to in­
quire as to whether they have religious scruples and 
that is the point of my inquiry.

THE COURT: I agree it is.

BY MR. STRICKLAND:



Q: Now, understanding that, I assume that no one
would like to be involved in a death penalty situation, 
that is, it’s not a pleasant task for anybody, you under­
stand that, but what I need to know is whether you 
yourself could personally take part in a trial and pei son- 
ally make decisions which might result in the death of 
another human being?

A: I don’t think I could.

Q: You don’t think you could. Well, you understand
1 don’t have any quarrel with that position. All we need 
to do is we need, if that is your conviction and those are 
your deep and sincere feelings, well, of course, you aie 
certainly entitled to those.

Are you saying, then, you have a deep-seated feel­
ing that would prevent you from being able to take 
part in rendering a death penalty?

A: Yes, sir, I just don’t believe in it.

Q: You just don’t believe in the death penalty? Re­
gardless of what the facts are, you just don’t believe 
people ought to take another person’s life?

A: I don’t know what else to say. I just don t . . .

Q: I understand, number one, it may be sincere feel­
ings and number two, I realize it may be something you 
haven’t really had to experience before. You have 
thought about it but you haven’t had to say anything. 
Well, you have just told me you don’t think you believe 
in the death penalty and question 1 would have is are 
your feelings of such a nature or are your feelings so 
deep that no matter what the facts were, you just would 
not be able to give another person the death penalty or 
consider it?

MR. DICKENS: I object. The most the State
can demand is a person be willing to consider all the 
penalties, Your Honor, and I object for that reason, 
and the way he phrases that question.

THE COURT: Overruled.

BY MR. STRICKLAND:

Q: Should I ask the question again, or did you un­
derstand?

A: What was the question?

Q: Well, let me ask it this way: Are you saying that
the feelings you have and what you have already told us 
about these leelings you have that people should not 
take another person’s life, are those feelings such no 
matter what you heard in a trial like this, no matter 
what you heard, you could be able to even consider 
giving a person the death penalty? You would just say, 
‘No, I ’m sorry. I am just not going to take part in that’?

A: I don t know. That is kind of hard.

Q: I understand.
•r

Well, of course, you understand that both sides 
and of course the Defendant, also, need to know if 
you would just automatically say you would not con­
sider one of these, that is what we need to know and 
what is the purpose of us talking here this afternoon.

MR. SULLIVAN: Your Honor, I would object to 
this continual line of repetitive questioning. This 
Venirewoman has testilied she could consider the 
death penalty if the facts warranted it; therefore the 
question ol the Prosecutor is improper and repeti­
tious.



A-U4

THE COURT: Overrule the objection.

MR. SULLIVAN: Please note my exception.

BY MR. STRICKLAND:

Q: Now, you understand if that is the way you
feel—as I indicated. I don’t have any quarrel with the 
way you feel, hut all we need to know is precisely how 
you do feel and if I misunderstood you, set me straight. 
I thought you said you did not feel that you could 
participate in a trial in which the death penalty might be 
inflicted upon somebody? Did I understand you right?

A: Well, I say that is just how I feel. 1 wouldn’t like
to participate in it.

Q: Let me ask you this: Nobody would like to, I
figure nobody really would like to be involved in some­
thing like that, but could you be involved? Would you 
set aside your feelings and just say, ‘Well, I ’m going to 
go ahead anyway and do it,’ or are those feelings so 
strong you’d say, ‘Well, I am not going to be involved’?

A: I just don’t think I could.

Q: And this is a pretty deep and firm conviction you
have; is that correct?

A: (Venirewoman nods.)

Q: And you are not going to let anybody talk you
out of that conviction, I presume? Is that pretty right? 
Something you believe in and you are just not going to 
let anybody talk you out of that? You are going to stand 
for what you believe in?

A: (Venirewoman nods.)

A-35

MR. STR ICK LAN D : Your Honor, the State
would challenge for cause on the basis of the 
witness’es (sic) testimony.

THE COURT: Mrs. Wallace, I am sure you do
feel very deeply about this. It ’s brought tears to your 
eyes; is that right?

VEN IR EW O M AN  W ALLACE: Yes.

THE COURT: All right.

I know it’s not an easy thing for you to go
through here. The challenge for cause is sus­
tained.

Do you understand, Mrs. Wallace, nobody is un­
happy with you.

You have been excused, Mrs. Wallace.

(Whereupon, Juror number thirty-six excused.)

MR. SULLIVAN: Your Honor, would the Court
take judicial notice that Mrs. Inez Wallace was a 
Negro female?

THE COURT: Yes, the Court will. (R. 1057-63).

MRS. ROY F. COX

Q: (By Prosecutor) . . . Now Mrs. Cox, the punish­
ment for capital murder which is the offense that this 
Defendant is charged with is only one of two things and 
that is by confinement in the penitentiary for life or 
death in the electric chair, and I would like to ask you at 
the outset whether or not you have any conscientious 
scruples against the inlliction of the death penalty as a 
punishment for crime in a proper case?



A-36

A: Yes, I do.

Q: Mrs. Cox, is that such a deep-seated feeling that
you have that regardless of the facts in the case that you 
personally acting as a juror could never vote to assess 
the death penalty; is that correct?

A: That’s correct.

Q: I take it, then, Mrs. Cox that because of these
feelings that you have and you are entitled to them, that 
you would automatically exclude the death penalty from 
any case you were sitting on as a punishment? You just 
wouldn’t do it?

A: I don’t think I could with all due consideration.

Q: Reg^dless of the facts of the case, and I ’m not
trying to badger you about it, but regardless of the facts 
of the case you just couldn’t do it; is that correct?

A: Well, I would feel I was contributing to a death
and I think that is wrong.

MR. W ILSON: Your Honor, we would challenge
for cause.

THE COURT: Challenge is sustained.

Mrs. Cox, you are excused. You may go back
home, now. (It. 1086-87).

M ATTIE D. VERNON

Q: (By Prosecutor) . . . Do you have any conscien­
tious scruples against the death penalty as a punish­
ment for crime?

A: I don’t know.

Q: Well, could you personally acting as a juror vote
in such a way that the death penalty would be inflicted?

A: What do you mean?

MR. DICKENS: I will object to that as being an
improper question. The question is whethei 01 not 
she would unequivocally and automatically vote 
against it in every case.

THE COURT: Sustained.

Q: What we need to know is, Mrs. Vernon, whether
you personally could ever vote to—in such a way that 
the death penalty would be inflicted or is your leeling 
such that you personally could not do that in any case?

A: I don’t know. I will be honest. I don’t know.

Q: Well, you see, the State is asking for the death
penalty. That is why they made it known that we are 
asking for the death penalty.

MR. DICKENS: I am going to object. It ’s im­
material what they are asking for. It ’s whether or not 
she can consider all the punishment.

• r

THE COURT: Overruled.

BY MR. W ILSON:

Q: And the death penalty is one of the penalties
that the law says can be voted by the jury in a capital 
case.

MR. SULLIVAN: Your Honor, I would object to 
that because the law doesn’t say the death penalty 
can be voted by the jury. It ’s an incorrect statement 
of the law.



A-38

THE COURT: Overruled.

BY MR. W ILSON:

Q: So, to be qualified as a juror you have got to be 
able to not just say if there is some punishment that the 
law allows, well, I just couldn’t do that and if you 
couldn’t, now is the time to tell us. There is a lot of 
people can’t.

A: No, I don’t guess I could because I mean a life is 
a life. You can’t bring back a life. I just really don’t 
know. I will be honest. I don’t know.

Q: Yeah, but you think you couldn’t because you
could not bring back a life?

A: No, you couldn’t.

Q: You would, then—you really would have reli­
gious, conscientious, or whatever you might call them, 
scruples against the death penalty, don’t you?

A: Yes, I guess I would.

Q: M a’am?

A: I just, I guess not. I really don’t know. I will be
honest, I don’t know, because I have never been through 
this before. I don’t know.

Q: I ’m sorry. I thought you told me that a life was a
life and you just couldn’t be involved in taking a life 
even if it was by jury verdict.

A: Really 1 am serious. I just don’t know.

Q: Well, as I say, Mrs. Vernon, I am sorry to have to 
push you, but we need to know and if you could not do

A-39

that, why now is the time to tell us and there is nothing 
wrong with it whatsoever.

A: No, 1 couldn’t.

Q: You could not?

A: No, sir.

Q: And that is—I appreciate your telling us and do
you tell us no matter what kind of case it was if you were 
the juror you couldn’t vote to give the death penalty?

A: No.

Q: Okay.

I take it, Mrs. Vernon, and that is an affirmative
\

opinion that you have.

A: Yes.

Q: All right.

MR. W ILSON: We challenge, Your Honor.

' THE COURT: All right.

The challenge is allowed and granted on the basis 
of Witherspoon versus Illinois.

Mrs. Vernon, you are excused from jury service.

(Whereupon, Juror number sixty-five excused.)

MR. DICKENS: For the purpose of the record, I
am going to object to the exclusion of Mrs. Mattie 
Vernon on the grounds her questions (sic) were less 
than unequivocal and never did she say she would



A-40

automatically vote against the death penalty in 
every case and, I guess, on that grounds (sic) and I 
would further ask the Court to take judicial notice 
she was a black lady.

THE COURT: Objection is noted. Court does 
take judicial notice Mattie D. Vernon was a black 
female. (It. 1724-28).

HUNTER, District Judge, dissenting:

I dissent from the majority opinion, only insofar as it 
concludes:

“ [Tjhat Harrison’s exclusion for cause constituted a 
Witherspoon violation.”

The basic facts developed in the trial are set forth in 
the opinion of the Texas Court of Criminal Appeals in 
Granviel v. State, 552 S.W.2d 107. cert, denied 431 U.S. 
933, 97 S.Ct. 2642, 53 L.Ed 2d 250. It is not disputed 
that Granviel, in two separate killing sprees, stabbed to 
death five women and two children. The sufficiency of 
the evidence to support the jury’s verdict of guilty is not 
challenged by anyone.

Witherspoon involved a state procedure for selecting^ 
jurors in capital punishment cases, where the jury did 
the sentencing and had complete discretion as to 
whether the death penalty should be imposed. In this 
context the Court held that a state may not constitu­
tionally execute a death sentence imposed by a jury 
culled of all those who reveal during voir dire examina­
tion that they had conscientious scruples against the 
death penalty. Most of the veniremen challenged for 
cause were excluded with no effort to ascertain whether 
their scruples would compel them to vote against capital 
punishment. The Court specifically defined the issue and 
noted:

A-41

It does not involve the right of the prosecution to 
challenge for cause those prospective jurors who 
state that their reservations about capital punish­
ment would prevent them from making an impartial 
decision as to the defendant’s guilt.

Witherspoon v. Illinois, 391 U.S. 510 at 513, 88 S.Ct. at 
1772. The Supreme Court has considered Witherspoon 
in numerous cases since that original opinion was 
handed down in 1968.' The most recent expression of the 
Supreme Court is lound in Adams v. rexas, 448 U.S. 38, 
100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). In an opinion 
written by Justice White, the Court, in making reference 
to this line of cases, stated:

This line of cases establishes the general proposi­
tion that a juror may not be challenged for cause 
based on his views about capital punishment unless 
those views would prevent or substantially impair 
the performance of his duties as a juror in accordance 
with his instructions and his oath. The State may 
insist, however, that jurors will consider and decide 
the facts impartially and conscientiously apply the 
law as charged by the court.

The majority holds that venireman Donald L. Harri­
son’s exclusion for cause constituted a Witherspoon vio­
lation. The opinion concludes:

“ These questions and answers fall far short of an 
affirmation by Harrison that he would automatically 
vote against the death penalty, regardless of the evi­
dence, or that his objections to capital punishment 1

1. Boulden u. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 
433 (1969); Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 
L.Ed.2d 221 (1970); Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 
399, 50 L.Ed.2d 339 (1976); Adams v. Texas. 448 U.S. 38, 100 
S.Ct. 2521, 65 L.Ed.2d 581 (1980).



A-42

would prevent him from making an impartial deci­
sion as to guilt.”

We cannot agree. In analyzing the record I find that 
appellant’s rights were fully protected, and that Harri­
son was properly questioned as to his commitment to 
vote against the death penalty. The relevant questioning 
and answering follows:

DONALD L. HARRISON

Q: (By Prosecutor) The defendant in this case is
charged with capital murder. There are only two punish­
ments for the offense of capital murder and that is either 
death or life in the penitentiary.

Now, do you have conscientious scruples against 
the infliction of the death penalty as a punishment 
for crime?

A: I don’t know what that means.

Q- Let me ask you if you, personally sitting as a 
juror, could ever vote so as to inflict the death penalty?

A: No, I don’t think I could.

Q: That is a definite prejudice or feeling that you 
have that you would not change? You just don’t feel like 
you would be entitled to take another person’s life in 
that fashion.

A: (Venireman nods.)

Q: Okay, you could not?

A: No. I could not.

MR. W ILSON: We challenge, Your Honor.

A-43

THE COURT: The defense have any objections? 

MR. DICKENS: We don’t have any questions. 

THE COURT: All right.

The Court feels that the State’s challenge for 
cause is qualified in this cause and supported by 
the evidence.

You will be excused, then, Mr. Harrison. Thank 
you very much. (R. 711-12).

Straightforward application of the Witherspoon line 
of cases as enunciated in Adams leads me to one self-evi­
dent conclusion: Harrison entertained reservations 
about capital punishment which would have prevented 
him from making an impartial decision as to defendant’s 
guilt.2 Witherspoon mandates no precise questions and 
answers. The test is ’ ’not to be applied with the hypei- 
technical and archaic approach of a 19th Century plead­
ing book, but with realism and rationality.” 3 While the 
mere demeanor of a venireman cannot contradict his 
express words so as to give them a meaning in opposi­
tion to that which they state, nevertheless, in those 
instances where the meaning is apparent, elements such 
as attitude and tone of voice are relevant factors in 
conveying the precise message intended.1 I he trial judge 
and counsel were present, with the opportunity to ob­
serve and further question Harrison. Here, we think the

2. This was the narrow issue involved in Witherspoon, 391 U.S. 
512 at 513, 88 S.Ct. 1772 at 1772. See also footnote 21, 391 U.S. 
522,88 S.Ct. 1777.

3. Ashe v. Swenson, 397 U.S. 436, 444, 90 S.Ct. 1189, 1194, 25 
L.Ed.2d 469.

Tezono v. State, 484 S.W.2d 374, 383-384 (Tex.Cr.App. 
1972).

4.



A 44

express words brought forth this message loud and 
clear: Harrison's attitude toward capital punishment 
would have prevented him from making an impartial 
decision on both the guilt and penalty facets of the trial. 
Moreover, the action of the trial judge (who had seen and 
heard) in excusing the juror, and appellant’s counsel’s 
failure to object, emphasize the appreciation of those 
who were present that Harrison’s views concerning capi­
tal punishment would substantially impair the perform­
ance of his duties as a juror in this case.

There were five veniremen whose exclusion is chal­
lenged. The majority, having concluded that Harrison 
was improperly excused for cause, did noc find it neces­
sary to discuss the challenges to Lipscomb, Wallace, Cox 
and Vernon. The relevant voir dire examination of each 
is reproduced in the Appendix. Lipscomb stated that he 
would automatically vote against the imposition of the 
death penalty. Wallace affirmed that she did not believe 
in the death penalty and that her feelings were so strong 
that she could not be involved. Cox made no “ bones” 
about it. She was opposed to the death penalty and she 
would never vote to assess it. Vernon equivocated when 
first questioned, before concluding that in the final anal­
ysis she could not vote to impose a death penalty. Each 
of these excluded veniremen made it “ unmistakably 
clear” that they could not abide by Texas law as it 
related to the death penalty. They were thus properly 
excluded under Witherspoon.

In a larger sense, this case emphasizes the frustra­
tion of states in their effort to enforce their constitution­
ally valid capital punishment statutes. The majority 
holds that Witherspoon requires it to intervene to set 
aside the death penalty in this episode of murder, the 
nature of which all of us agree is so gruesome that we 
“ gladly refrain from repeating.” I think the conclusion 
is completely without support on the record.

A-45

The State of Texas had every right to insist that any 
juror whose views on capital punishment would sub­
stantially impair the performance of his duties as a juror 
be excused for cause. The State exercised that right and 
challenged five jurors. The trial court was imminently 
correct in sustaining each challenge.

In the opinion of this court, written by Judge Gee in 
Burns u. Estelle, 512 F.2d 1297 at 1302, we note this 
language:

We cannot close without voicing our dissatisfac­
tion at the unfortunate result to which logic and our 
lights on Witherspoon have driven us. Indeed, it is 
with something like agony—though only a pale 
shadow of what must have been felt by the victim of 
Burns’ ghastly crime—that we intervene to set aside 
in part the operation of state policy and procedures 
aimed at preventing further atrocities of this kind. 
Nor do we retreat an inch from our observation in 
Spinkellink v. WainwrighC that “ the State also en­
joys the right to an impartial ju ry . . . and impartial­
ity requires not only freedom from jury bias against 
the accused and for the prosecution, but freedom 
from jury bias for the accused and against the piose- 
cution.” After all', the prosecution speaks in some 
degree for Burns’ helpless and pitiful victim and to 
that degree justly claims in his right.

But the requirements of Witherspoon are clear, 
and the Supreme Court has made equally clear in 
later decisions that it will not countenance their 
grudging or ungenerous application.

5. 442 U.S. 1301, 99 S.Ct. 2091, L.Ed.2d 649 (1980).