Bobby Hartfield, Jr. v. The State of Texas--Appeal from 399th Judicial District Court of Bexar County

DISSENTING OPINION
No. 04-02-00407-CR
Bobby HARTFIELD, Jr.,
Appellant
v.
The STATE of Texas,
Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CR-2197-B
Honorable Juanita A. Vasquez-Gardner, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Dissenting opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: November 5, 2003

As the majority accurately states, the test in determining whether a veniremember is biased against the law is whether the "veniremember's beliefs would prevent or substantially impair him from following the law as set out in the trial court's instructions and as required by the juror's oath." Swearingen v. State, 101 S.W.3d 89, 99 (Tex. Crim. App. 2003). After reviewing the voir dire examination of Venireperson 5, the majority concludes, "Venireperson 5 was unequivocal in stating that, although he believed a defendant should 'tell his story,' he would follow the law and not hold it against Hartfield if he did not testify." I disagree that Venireperson 5 was unequivocal.

Venireperson 5 repeatedly stated that he disagreed with the law, that Hartfield should tell his story, and that Hartfield's failure to testify would indicate a weakness, an inability to show guilt or innocence, or a lack of confidence in his case being successful. This attitude toward the effect on Hartfield's case if Hartfield failed to testify is not sufficiently overcome by Venireperson 5's bald assertion that he could follow the law. Venireperson 5's ability to follow the law is clearly impaired by his expressed beliefs and attitude toward the law. Because I believe the record only supports the conclusion that Venireperson 5's beliefs would substantially impair him from following the law, I respectfully dissent.

Alma L. L pez, Chief Justice

DO NOT PUBLISH