concluding that a section 8.04(a) instruction suffers no constitutional infirmity and does not improperly benefit the State by shifting the burden on the requisite element of criminal intent
How later courts described this case
- concluding that a section 8.04(a) instruction suffers no constitutional infirmity and does not improperly benefit the State by shifting the burden on the requisite element of criminal intent
- holding that “trial court does not abuse its discretion.by refusing to allow a defendant to ask venire members questions ... about particular mitigating evidence”
- holding a trial court does not abuse its discretion by refusing to allow a defendant to ask venire members questions based on facts peculiar to case on trial
- setting out evidence that grandsons often let appellant into the home through the window so that appellant could spend the night
Written by the judges who cited it.
The opinion
OVERSTREET, Judge,
concurring and dissenting.
I dissent to the majority’s holding on points seven, eight, and nine, which complain about the trial court’s refusal to inform jurors, or allow appellant to inform prospective jurors, that he would have to serve 35 calendar years before becoming eligible for parole on a life sentence for capital murder.
I continue to dissent to the majority’s treatment of this issue. See, e.g., Smith v. State, 898 S.W.2d 838 (Tex.Cr.App.1995)(plurality opinion), cert. denied, 516 U.S. 843 , 116 S.Ct. 131 , 133 L.Ed.2d 80 (1995); Morris v. State, 940 S.W.2d 610 (Tex.Cr.App.1996), cert. denied, - U.S. -, 117 S.Ct. 2461 , 138 L.Ed.2d 218 (1997). As I discussed in some detail in my dissent to Rhoades v. State, 934 S.W.2d 113, 131-44 (Tex.Cr.App.1996), in light of the United States Supreme Court’s holding in Simmons v. South Carolina, 512 U.S. 154 , 114 S.Ct. 2187 , 129 L.Ed.2d 133 (1994), I believe that the United States Constitution’s guarantees of due process required appellant’s jury be informed of the 35-year parole eligibility law.
I also note that four members of the United States Supreme Court have recently commented upon the “[p]erverse[ness]” of our death penalty scheme not letting the jury know when the defendant will become eligible for parole if he is not sentenced to death. Brown v. Texas, - U.S. -, 118 S.Ct. 355 , 139 L.Ed.2d 276 (1997). I likewise find rather perverse this Court’s continued approval of keeping jurors ignorant and uninformed of such a critical legal fact when making life and death decisions as to whether the death penalty will be assessed. Capital jurors deserve to be so informed so that they can make an informed decision. Hopefully a majority of this Court will soon realize this; before the Supreme Court explicitly informs us via a myriad of our opinions being reversed.
I respectfully dissent to the majority’s discussion and holding as to points seven, eight, and nine. Otherwise, I concur in the disposition of all the other points.
PRICE, J., joins as to points 7, 8, and 9.