# Pierson v. State

> Court of Criminal Appeals of Texas · April 29, 1981 · 614 S.W.2d 102

URL: https://www.frixlaw.com/law-library/cases/9673568

## Case

- **Full name:** James Willard PIERSON, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** April 29, 1981
- **Citations:** 614 S.W.2d 102; 1981 Tex. Crim. App. LEXIS 994
- **Precedential status:** Published
- **Opinion:** On rehearing by Teague
- **Judges:** Phillips, Teague, McCormick, Roberts, Dally
- **Cited by:** 29 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9673568

## Opinion text

OPINION TO OVERRULE STATE’S MOTION FOR REHEARING
TEAGUE, Judge,
concurring.
Oftentimes, the decisions this Court renders are far from being classified as popular. This is understandable for it is the rare case that comes before the Court where this Court can publish an opinion that is totally and wholly acceptable by all parties before it, and also by persons who chance to read the opinion. The cases handled by this Court are a long way from “adoption” type causes, but are cases many times evoking a great deal of emotion and discussion among the electorate citizenry who are, interestingly by law, our constituents.
I concur by written opinion in this cause because in my view the dissent opts for reaching the popular, though pragmatic result. There is absolutely no question Judge McCormick’s well-written opinion resembles in many respects something almost irresistible, like the siren of the mermaid Lorelei. However, after spending many hours rationalizing, analyzing, agonizing, and meditating over what is the proper legal decision to make, I have concluded that what the dissent asks of this Court is for it to act legislatively, which would unquestionably be the popular thing to do in this type cause. However, that is not our function under the Constitution and laws of this State. We must never forget the very simple fact that our government is divided into three equal departments: the executive, the legislative, and the judiciary, as well as the additional fact that it is our sole function to interpret the law and not replace the proper department whose sole function is to pass our laws, even if in doing so we render an unpopular decision. We are only one of the three equal coordinating divisions of our government and must religiously accept that fact of life, as I believe the members of this Court do.
As a result of a decision by the Supreme Court of the United States in Adams v. Texas, 448 U.S. 38 , 100 S.Ct. 2521 , 65 L.Ed.2d 581 (1980), decided by a vote of 8-1, that Court, in rendering as unpopular a decision as we do today, struck down a death penalty conviction from the State of Texas, which this Court had unanimously sustained, at a time when I was not a member of the Court. The Supreme Court held in Adams, id., that (1) the exclusion of prospective jurors on the ground that they were unwilling or unable to take the statutory oath to the effect that a mandatory penalty of death or life imprisonment would not have affected their deliberations on any issue of fact contravened the sixth and fourteenth amendments to the United States Constitution, and (2) the State of Texas could not execute a sentence of death imposed by a jury from which such prospective jurors had been excluded.
As a result of that decision, due to the Supremacy Clause of the United States Constitution, see Art. VI, it is now our duty to decide the applicability of Adams, supra, to cases, such as this one, presently before this Court. It is unanimously agreed by the members of this Court that as a result of *109 the Adams’ error, this conviction cannot be affirmed and the error on that point must be sustained. It is also unanimously agreed by the members of this Court that the trial appellant received, except for the selection of the jury, is facially an error free trial.
There lies the nub, and the logical questions: (1) do we reverse the cause for a completely new trial or, as said in some quarters, “Do we let the defendant have the whole nine yards again?” or (2) do we partially reverse for a new trial on the issue of punishment, empaneling a new jury to decide only that issue or (3) do we reform the judgment to provide that the conviction is affirmed, but the sentence of death is reformed to life imprisonment?
Of course, the most popular option, and unquestionably the one that would be the most pleasing to many of our constituents, is the third one. But, we do not decide cases on the basis of what decision we might make would be the most popular one, for if we did we would shortly cease to exist as an independent judiciary, which we are, and also cease to exist as an equal to the executive and legislative branches of our state government, which we are.
Though the above is what I have characterized as “logical” options, unfortunately, something said to be a “logical” option is not necessarily synonymous with a “legal” option.
I, for one, believe Judge McCormick recognizes this, but at the same time he is apparently pleading for a pragmatic result by his well-written and appetizing dissenting opinion, for he concludes with the following statement:
******
Perhaps today’s decision will ring the death knell for the rule requiring a complete retrial of guilt when an error has occurred at the sentencing stage. The Legislature can, and should, immediately remedy by amendment the law that allows a lawfully convicted felon another trial when there was no constitutional infirmity in the verdict that found him guilty. 1
******
Our legal options, it is sad to say, due to lack of legislative action, are no better today than in 1972 when, as a result of Branch v. Texas, 2 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972), the Supreme Court of the United States struck down many convictions from Texas for a similar reason as they did in Adams, supra.
In 1972, this Court was confronted with an almost identical issue as the one now before us. A similar, if not the same argument made by the dissent was unanimously rejected by this Court at that time.
In Ocker v. State, 477 S.W.2d 288 (Tex.Cr.App.1972), a case that did not reach the Supreme Court, Judge Roberts speaking for this Court said:
******
We note that the State has filed a motion in this Court requesting permission to withdraw its notice of intent to seek the death penalty and moving this Court to assess the punishment in this cause at imprisonment for life. The State has cited numerous cases from other jurisdictions in which appellate courts have reduced the punishment assessed by the trial court. We have examined those cases cited by the State, and have concluded that they have no application to the case at bar. In those cases, the court either followed a rule of that particular jurisdiction which permitted modification of the lower court sentence, or acted pursuant to a statute specifically authorizing the appellate court to modify sentences.
We are also aware of the solution found by the Supreme Court of New Jersey in cases such as this. In that State, if the prosecutor agrees to waive the death penalty after the punishment has been assessed, but while the case is on appeal, the Supreme Court may modify the sen *110 tence and assess punishment at imprisonment for life. State v. Conyers, 58 N.J. 123 , 275 A.2d 721 (1971); State v. Royster, 57 N.J. 472 , 273 A.2d 574 (1971); State v. Laws, 51 N.J. 494 , 242 A.2d 333 (1968) cert. denied, 393 U.S. 971 , 89 S.Ct. 408 , 21 L.Ed.2d 384 (1968). We do not feel that the New Jersey solution is permissible under our law.
This Court has long held that it may not reduce the punishment assessed by the jury. E. g., Johnson v. State, 447 S.W.2d 927 (Tex.Cr.App.1969); Darden v. State, 430 S.W.2d 494 (Tex.Cr.App.1968); Broadway v. State, 418 S.W.2d 679 (Tex.Cr.App.1967); Elli son v. State, 419 S.W.2d 849 (Tex.Cr.App.1967); Mason v. State, 375 S.W.2d 916 (Tex.Cr.App.1964); McGruder v. State, 377 S.W.2d 191 (Tex.Cr.App.1964); Hunt v. State, 167 Tex.Cr.R. 51 , 317 S.W.2d 743 (1958); Garcia v. State, 166 Tex.Cr.R. 482 , 316 S.W.2d 734 (1958); Bell v. State, 166 Tex.Cr.R. 340 , 313 S.W.2d 606 (1958); Suit v. State, 161 Tex.Cr.R. 22 , 274 S.W.2d 701 (1955); Treadwell v. State, 159 Tex.Cr.R. 182 , 262 S.W.2d 201 (1953); Pineda v. State, 157 Tex.Cr.R. 609 , 252 S.W.2d 177 (1952); Knight v. State, 148 Tex.Cr.R. 236 , 186 S.W.2d 350 (1945); Brown v. State, 16 Tex. 122 (1856).
This Court may reform a sentence so as to conform to the judgment and may reform a judgment to conform to the verdict of the jury. However, except where the penalty is absolutely fixed by law or where the sentence fails to apply the indeterminate sentence law (Art. 42.-09, Vernon’s Ann.C.C.P.), this Court may not pass sentence.
We feel that our situation differs from that of New Jersey. In New Jersey, the punishment for murder in the first degree (the offense in the cases cited) is either death or life imprisonment, depending upon the verdict of the jury. N.J.S.A. 2A:113-4. If the jury chooses to recommend life imprisonment, there is no other punishment which may be assessed. Therefore, if a defect pertains to only the imposition of the death penalty, the appellate court, in reducing the sentence, is not performing a function which is properly reserved for the jury. In the present case, however, the jury was not faced with a choice between one of only two alternatives. Art. 1189, Vernon’s Ann. P.C. provides: ‘A person guilty of rape shall be punished by death or by confinement in the penitentiary for life, or for any term of years not less than five.’ Thus, unlike New Jersey, the alternative punishment is not fixed by law, but encompasses a wide range. If this Court were to reduce the sentence to life imprisonment, we would be assessing punishment as we saw fit, not as required by law. We would be performing a function which properly belongs to the jury. If our statutes provided for a fixed punishment in lieu of the death penalty, the situation would be closely akin to the cases in which the punishment is absolutely fixed, and in which this Court has assessed punishment.
Also, unlike states which have statutory power to modify judgments, our statute provides: ‘The Court of Criminal Appeals may affirm the judgment of the court below, or may reverse and remand for a new trial, or may reverse and dismiss the case, or may reform and correct the judgment, as the law and nature of the case may require.’ Art. 44.24, V.A.C. C.P. Thus, the statute does not provide for modification of punishment, nor do we feel that it may be inferred. In that the statute provides for reformation and correction, we feel that we are limited to those powers. (Art. 5, § 5 of the Texas Constitution, Vernon’s Ann.St. restricts the jurisdiction of this Court to the extent provided by statute.)
We also feel that we may not remand this case for assessment of punishment only. Art. 37.07(3)(c) provides, ‘In the event the jury shall fail to agree, a mistrial shall be declared, the jury shall be discharged, and no jeopardy shall attach.’ If the punishment was erroneously imposed, then the case stands in the same position as if the jury had failed to reach a verdict. While this court may remand *111 for assessment of punishment where the punishment was originally set by the court, we may not do so where the original punishment was set by the jury.
While the power to reduce or modify sentences may be desirable, see American Bar Assn. Project on Minimum Standards for Criminal Justice, Standards Relating to Appellate Review of Sentences, Approved Draft 1968, we do not feel that we are able, or should effect such a procedure without legislative approval, (footnotes omitted) Id. at 289
* * * * * *
In a pre-Branch, supra, case, Presiding Judge Onion speaking for this Court said in Grider v. State, 468 S.W.2d 393, 400 (1971), in very succinct fashion:
******
The reversible error presented by this cause relates to penalty only. The State has sought the death penalty which only a jury may impose. For the reasons stated in Ellison v. State, 432 S.W.2d 955 ([Tex.Cr.App.] 1968), ‘[t]his court is without authority to direct a new trial before a different jury on the issue of punishment only.’ Cf. State v. Ruth, 276 N.C. 36 , 170 S.E.2d 897 . Id. at 400.
******
In Ellison, supra, former Presiding Judge Woodley, now deceased, in speaking for this Court long before Branch but after Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968), was decided, said:
******
Our statute provides that the Court of Criminal Appeals may affirm the judgment of the court below, or may reverse and remand for a new trial, or may reverse and dismiss the case, or may reform and correct the judgment as the law and nature of the case may require. Art. 44.24 V.A.C.C.P.
Also, Art. 44.29 V.A.C.C.P. provides: ‘Where the Court of Criminal Appeals awards a new trial to the defendant, the cause shall stand as it would have stood in case the new trial had been granted by the court below.’
It follows that this court is without authority to direct a new trial before a different jury on the issue of punishment only. Id. at 957.
******
In Turner v. State, 485 S.W.2d 282 (1972), Judge Odom speaking for this Court said:
******
The question now before this court is the proper disposition of this case in light of ... Texas law. A commutation of appellant’s sentence by the Governor would have satisfied the mandate of the Supreme Court. Whan v. State, 485 S.W.2d 275 (1972). However, commutation has not been sought or granted in the instant case.
The options available to this court in a case where a sentence is defective are quite limited. We may reform: (1) a sentence so as to conform to the judgment; (2) a judgment to conform to the jury’s verdict; (3) a sentence which fails to apply the penalty fixed by law; or (4) a sentence which fails to apply the indeterminate sentence law (Article 42.09, Vernon's Ann.C.C.P.).
However, this court is without authority to either pass sentence or reduce the punishment assessed by a jury. Ocker v. State, Tex.Cr.App., 477 S.W.2d 288 . And, while we may remand solely on the issue of punishment where punishment was originally assessed by the court, we may not do so where punishment was assessed by the jury, (footnotes omitted) Id. at 283.
******
In Harris v. State, 485 S.W.2d 284, 285 (1972), Judge Tom Davis speaking for this Court said:
******
This Court is without authority to either pass sentence or reduce the punishment assessed by a jury. Turner v. State, 485 S.W.2d 282 (1972); Ocker v. State, Tex.Cr.App., 477 S.W.2d 288 . We cannot remand solely on the issue of punishment where punishment was assessed *112 by the jury. Ellison v. State, Tex.Cr.App., 432 S.W.2d 955 .
The United States Supreme Court having found that punishment was erroneously imposed in this cause, its status is the same as if the jury had been unable to agree on a verdict. Turner v. State, supra; Ocker v. State, supra. Id. at 285.
******
There is no question that appellant’s jury in this cause was contaminated; contaminated in the sense that he received a jury from which prospective jurors had been unlawfully excluded. Under Adams, supra, no prospective juror may be excluded simply because he states that his view of the facts or law would be “affected” by the possible infliction of the death penalty. In this cause, two prospective jurors were excluded from serving on the jury in violation of the holdings of Witherspoon and Adams, supra.
In a sense, there can never be an error free trial where a jury is unlawfully selected because the unlawful selection of that jury has infected the entire trial, although from the face of the trial record, as to the guilt-innocence of the defendant, the trial may be free of common trial errors. A jury that is unlawfully selected is inherently not a dispassionate jury. For example, a trial where a jury was selected from a panel from which members of the accused’s race were excluded, may facially constitute an error free trial, but it could not be argued that the accused received the fair and impartial trial to which the law demands he have. Surface-wise, such a trial would have no ascertainable defects, due to the cosmetic appearance of the trial record, but depth-wise the unlawful selection of the jury stigmatizes the whole trial. “Due process requires a competent and impartial jury.” See Peters v. Kiff, 407 U.S. 493 , 92 S.Ct. 2163 , 33 L.Ed.2d 83 (1972). “Proof of actual harm, or lack of harm, is virtually impossible to adduce.” Peters, id., 407 U.S. 504 , 92 S.Ct. 2169 , 33 L.Ed.2d 94 . Such a defendant in that instance would have been convicted by a tribunal that fails to satisfy the elementary requirements of due process and due course of law under our constitutions.
It may, therefore, be that even where a trial is facially an error free trial, the defendant may still be entitled “to the whole nine yards.” 3 However, I pretermit a discussion of that issue for another day as today we must, in the colloquial, “Give the defendant the whole nine yards,” and grant him a totally new trial even though facially the error does not go to guilt, but only to punishment.
However, I wholeheartedly agree with Judge McCormick's suggestion that as the legislature is now in session, a law should be enacted to give this Court an additional legal option in such cases as here.
I therefore, concur to overruling the State’s motion for rehearing without written opinion for the above stated reasons.
. All emphasis is supplied throughout hereinafter by the writer of this opinion unless otherwise indicated.
. Sub nom., Furman v. Georgia.
. In this regard, it is observed that due to the fact a jury being selected to hear a capital murder case will undoubtedly be examined by the parties on the possible lesser included offense of murder, see Art. 37.09, V.A.T.C.C.P., the punishment for which is life or any term of not more than 99 years or less than five years and a possible fine not to exceed $10,000, see V.T.C.A. Penal Code, Secs. 19.02 and 12.32, at least initially the jury to be selected in a capital murder case is not necessarily one qualified to assess a punishment fixed by law, but is actually a jury qualified to assess a rather broad range of punishment.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9673568. Public record. Not legal advice.