upholding the governor’s commutation from death to life imprisonment of an inmate’s sentence after his case was remanded by the U.S. Supreme Court along with Furman
How later courts described this case
- upholding the governor’s commutation from death to life imprisonment of an inmate’s sentence after his case was remanded by the U.S. Supreme Court along with Furman
- noting that the defendant, in a new trial, would have been subject to a “full range of alternative penalties”
Written by the judges who cited it.
The opinion
OPINION ON APPELLANT’S MOTION FOR REHEARING
JACKSON, Commissioner.
This is appellant’s first motion for rehearing following remand.
On his appeal the judgment of the trial court was affirmed in Morales v. State, Tex.Cr.App., 458 S.W.2d 56 (1970) and his first and second motions for rehearing were overruled.
In this motion appellant’s diligent counsel raises three grounds:
1. The Governor having commuted the death penalty to life, he urges that *834 such commutation is invalid because the Governor did not file within the office of the Secretary of State his reasons therefor.
The commutation from death to life was held valid in Whan v. State, Tex.Cr.App., 485 S.W.2d 275 .
If failure to file reasons as required by Art. 48.02, V.A.C.C.P., would invalidate the commutation, which it is not necessary for us to decide, such ground is not applicable, for, in fact, the Governor stated his reasons in his proclamation in these words:
“ . . . acting upon and because of the recommendation of the Board of Pardons and Paroles dated September 11, 1972.”
We hold that such reasons comply with Art. 4, Sec. 11, Texas Constitution, and Art. 48.02, V.A.C.C.P.
2. Appellant argues that the action of the Governor in commuting his punishment from death to life was an unconstitutional assumption of judicial power by the executive and a denial of due process.
This is no longer an open question since Whan v. State, supra, and in accordance with that decision, we hold against appellant on this ground.
3. Appellant argues that the commutation is invalid because it denies appellant credit for time spent in confinement. His rights to credit for time spent in confinement and for “good time” are fully discussed in Ex parte Freeman, Tex.Cr.App., 486 S.W.2d 556 , and in Ex parte Enriquez, Tex.Cr.App., 490 S.W.2d 546 (dated February 21, 1973), and we cannot agree with appellant in this contention.
We overrule the motion for rehearing.
No further motion for rehearing will be filed by the clerk except upon leave of the Court for good cause.
Opinion approved by the Court.