IN WITHERSPOON V. ILLINOIS, THE SUPREME COURT PROHIBITED TRIAL COURTS FROM EXCUSING POTENTIAL JURORS FROM A CAPITAL CASE MERELY BECAUSE THEY EXPRESSED CONSCIENTIOUS 0BJECTIONS TO THE DEATH PENALTY. TEXAS LAW ALLOWS THE STATE TO CHALLENGE FOR CAUSE ANY JUROR WHO EXPRESSES CONSCIENTIOUS SCRUPLES AGAINST CAPITAL PUNISHMENT, AND SECTION 12.31 (B) OF THE TEXAS PENAL CODE REQUIRES EVERY POTENTIAL JUROR TO SWEAR THAT THE MANDATORY SENTENCE OF LIFE IMPRISONMENT OR DEATH WILL NOT AFFECT HIS OR HER DELIBERATIONS ON ANY FACT ISSUE. THE BOULWARE CASE INVOLVED MURDER OF A POLICE OFFICER. BOULWARE'S CONVICTION WITH THE PENALTY ASSESSED AS DEATH WAS APPEALED BECAUSE 20 JURORS WERE EXCUSED AT THE TIME OF VOIR DIRE BECAUSE THEY OBJECTED TO THE DEATH PENALTY. THE TEXAS COURT OF CRIMINAL APPEALS UPHELD THE LOWER COURT, RULING THAT BOULWARE FAILED TO OBJECT TO THE PROCEDURE AT THE TIME OF TRIAL AND THEREFORE WAIVED HIS RIGHT TO OBJECT TO SUCH A PROCEDURE DURING APPEAL. IT IS SUGGESTED THAT THE RULING OF THE COURT OF APPEALS IS IN VIOLATION OF THE WITHERSPOON DECISION. IT IS FURTHER SUGGESTED THAT JURORS NOT BE QUESTIONED ABOUT THE DEATH PENALTY AT THE TIME OF TRIAL AND THAT PROSECUTION AND DEFENSE ATTORNEYS SHOULD REFRAIN FROM MENTIONING PUNISHMENT DURING JURY SELECTION. TRIAL JUDGES SHOULD ALSO TAKE A MORE ACTIVE ROLE IN ASSURING THAT JURY CHALLENGES ARE ACCEPTABLE AND WITHIN CONSTITUTIONAL LIMITS. A SECOND JURY TO ASSESS THE PUNISHMENT IN CAPITAL MURDER CASES WOULD BE MORE EXPENSIVE BUT MIGHT INSURE THE CONSTITUTIONAL RIGHTS OF THE DEFENDANT AND ELIMINATE FURTHER APPEALS.