McGinn v. State

BAIRD, Judge,

concurring and dissenting.

I agree there was no error at the guilt phase of trial sufficient to warrant reversal of appellant’s conviction. Therefore, I concur in the decision to affirm that portion of the trial court’s judgment. However, I dissent to the majority’s failure to reach the merits of appellant’s first and seventh points of error which contend the evidence is insufficient to support the jury’s answers to the punishment issues of Tex.Code Crim. Proc. Ann. art. 37.071.

I.

For the reasons stated in Morris v. State, 940 S.W.2d 610, 621 (Tex.Cr.App.1996) (BAIRD and Overstreet, JJ., dissenting), I would hold the future dangerousness punishment issue of art. 37.071, § 2(b)(1) is subject to a factual sufficiency review, and I would hold “the Penry issue,” art. 37.071, § 2(e), is subject to appellate review. Therefore, I dissent to the disposition of points of error one and seven.

In light of the majority’s resolution of these points of error, and our decision in Martinez v. State, 924 S.W.2d 693, 694-98 (Tex.Cr.App.1996), this Court now provides no meaningful appellate review of the punishment issues of art. 37.071. The failure to do so violates the Eighth Amendment.

II.

Our capital sentencing scheme passed constitutional muster in Jurek v. Texas, 428 U.S. 262 , 96 S.Ct. 2950 , 49 L.Ed.2d 929 (1976). As a part of its holding, the Supreme Court stated:

... By providing prompt judicial review of the jury’s decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sen *174 tences under law. Because this system serves to assure that sentences of death will not be “wantonly” or “freakishly” imposed, it does not violate the Constitution.

Id., 428 U.S. at 276 , 96 S.Ct. at 2958 . 1 This holding was important because decisions which give rise to a death sentence must be subject to appellate review. See, Furman v. Georgia, 408 U.S. 238, 310 , 92 S.Ct. 2726, 2762 , 33 L.Ed.2d 346 (1972); Lockett v. Ohio, 438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978); Eddings v. Oklahoma, 455 U.S. 104 , 102 S.Ct. 869 , 71 L.Ed.2d 1 (1982); Gregg v. Georgia, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976); Jurek, 428 U.S. at 276 , 96 S.Ct. at 2958 ; Penry v. Lynaugh, 492 U.S. 302 , 109 S.Ct. 2934 , 106 L.Ed.2d 256 (1989); and, Proffitt v. Florida, 428 U.S. 242 , 96 S.Ct. 2960 , 49 L.Ed.2d 913 (1976).

In Clemons v. Mississippi, 494 U.S. 738 , 110 S.Ct. 1441 , 108 L.Ed.2d 725 (1990), the Supreme Court spoke at length about the necessity of meaningful appellate review. The Court noted that the process of appellate courts reweighing of evidence was consistent with the pursuit of the Eighth Amendment’s twin objectives of measured, consistent application of the death penalty and fairness to the accused. Id., 494 U.S. at 748 , 110 S.Ct. at 1448 (citing Eddings, supra; and, Lockett, supra). The Court pointedly noted that failure to perform meaningful appellate review would result in an automatic rule of affir-mance that would be invalid under Lockett, supra, and Eddings, supra. Clemons, 494 U.S. at 752 , 110 S.Ct. at 1450 . See also, Parker v. Dugger, 498 U.S. 308, 321-322 , 111 S.Ct. 731, 739-740 , 112 L.Ed.2d 812 (1991) (Appellate review of mitigating evidence by the Florida Supreme Court was so deficient as to be arbitrary.).

Meaningful appellate review has been a requirement of the Eighth Amendment since the States began re-enacting capital sentencing schemes following Furman . For example, in upholding the constitutionality of the Georgia scheme the Supreme Court held:

As an important additional safeguard against arbitrariness and caprice, the .Georgia statutory scheme provides for automatic appeal of all death sentences to the State’s Supreme Court. That court is required by statute to review each sentence of death and determine whether it was imposed under the influence of passion or prejudice, whether the evidence supports the jury’s finding of a statutory aggravating circumstance, and whether the sentence is disproportionate compared to those sentences imposed in similar cases.

Gregg v. Georgia, 428 U.S. at 198, 96 S.Ct. at 2937 .

Similarly, in Proffitt v. Florida, supra, the Supreme Court stated:

The statute provides for automatic review by the Supreme Court of Florida of all cases in which a death sentence has been imposed.... Since, however, the trial judge must justify the imposition of a death sentence with written findings, meaningful appellate review of each such sentence is made possible and the Supreme Court of Florida, like its Georgia counterpart, considers its function to be to [guarantee] that the [aggravating and mitigating] reasons present in one case will *175 reach a similar result to that reached under similar circumstances in another case. ... If a defendant is sentenced to die, this Court can review that case in light of the other decisions and determine whether or not the 'punishment is too great.

Proffitt, 428 U.S. at 250-252 , 96 S.Ct. at 2966 . (Internal quotes omitted.)

Meaningful appellate review plays the crucial role of ensuring that the death penalty is not imposed arbitrarily or irrationally. Parker, 498 U.S. at 321 , 111 S.Ct. at 739 . The authority discussed above confirms that the Eighth Amendment creates an absolute duty on this Court to review the jury’s answers to the punishment issues of art. 37.071. By not doing so we shirk our Constitutional responsibility and legislative mandate and, in the process, apply our capital sentencing scheme in an unconstitutional manner. 2

Accordingly, I dissent to the resolution of points of error one and seven.

OVERSTREET, J., joins this opinion.

. All emphasis is supplied unless otherwise indicated.

Since Jurek , our capital sentencing scheme has been modified to include Tex.Code Crim. Proc. Ann. art. 37.071, § 2(e) which provides for submission of the following punishment issue:

Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant’s character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.

Article 37.071, § 2(e) was enacted following Penry v. Lynaugh, 492 U.S. 302 , 109 S.Ct. 2934 , 106 L.Ed.2d 256 (1989), which held the Texas capital sentencing scheme must provide the jury with a vehicle to express its "reasoned moral response” to mitigating evidence in reaching its selection decision. Because of its source, the § 2(e) punishment issue is commonly referred to as “the Penry issue.” In conjunction with this issue, the Legislature enacted Tex.Code Crim. Proc. Ann. art. 44.251 which provides:

(a) The court of criminal appeals shall reform a sentence of death to a sentence of confinement in the institutional division of the Texas Department of Criminal Justice for life if the court finds that there is insufficient evidence to support ... a negative answer to an issue submitted to a jury under Section 2(e), Article 37.071, or Section 3(e), Article 37.0711, of this code.

. Judge McCormick believes Clemons has no application, ante at 169, and therefore, criticizes me for relying on it. (This is a purely selective reading, as Judge McCormick does not contend the other cases cited in this opinion have no application to our statute. He then stoops to use this selective reading to call me disingenuous.). The McCormick argument boils down to this: only weighing states are required to provide meaningful appellate review. This simplistic argument fails to recognize that the constitutionality of our capital sentencing scheme depends on judicial review by this Court. Jurek, 428 U.S. at 276 , 96 S.Ct. at 2958. Obviously this appellate review must be meaningful, otherwise death sentences are imposed in a capricious, arbitrary and random manner, a manner which violates the Eighth Amendment regardless of where it occurs. This fundamental notion of appellate jurisprudence was recognized by the Legislature in enacting art. 44.251(a), which provides for the reformation of a death sentence when this Court finds there is insufficient evidence to support a negative answer to “the Penry issue.” See, n. 1, supra. As pointed out by Judge Overstreet, infra, a legal sufficiency review of "the future dangerousness issue” is not meaningful. Therefore, a factual sufficiency review is required. Unfortunately, this fundamental notion of meaningful appellate review is lost on Judge McCormick. Finally, while the cases cited by Judge McCormick do hold that we are not a weighing state, that is to say that we are not a weighing state in that our capital sentencing scheme does not prescribe a list of factors and then assign to them a mitigating or aggravating value. However, we have always weighed the factors recognized in Keeton v. State, 724 S.W.2d 58, 61 (Tex.Cr.App.1987), in reviewing the sufficiency of the evidence. See id., and cases cited therein at pp. 61-64. In fact, Judge McCormick adopted that weighing process when he joined the majority opinion in Keeton . Talk about disingenuous!