Prystash v. State

HOLLAND, J.,

delivered a dissenting opinion in which MEYERS, J. and PRICE, J., joined.

Today, the majority uses the “doctrine of invited error” to “estop” appellant from challenging on appeal the trial court’s authority to sentence him to death. Specifically, the majority refuses to allow appellant to challenge any errors arising from the absence of a jury finding on the “anti-parties” special issue because the trial court omitted the special issue from the punishment jury charge at appellant’s request. Because the majority insists this Court neither need address the propriety of a request that a special issue be omitted *542 nor the effect of omitting a special issue, I must respectfully dissent. I write separately because although the majority is correct in that appellant invited the error, I cannot condone ignoring the fact that without a jury finding on the “anti-parties” special issue, the jury’s verdict on punishment was incomplete, and thus, the trial court had no authority to assess appellant’s punishment at death.

I. Punishment Phase

In point of error one, appellant asserts the trial court erred in failing to submit to the jury at the punishment stage the “anti-parties” charge required by Article 37.071 § 2(b)(2). He further submits in point two that the absence of this special issue rendered the verdict illegal and incomplete, and therefore, appellant’s death sentence was not authorized. 1 The State contends appellant waived any right to complain about the absence of this issue because appellant affirmatively requested that it be omitted.

A. Powell v. State

In Powell v. State, 897 S.W.2d 307, 314-18 (Tex.Crim.App.1994), the trial court, at the appellant’s request, failed to submit to the jury the “deliberateness” special issue required by the version of Article 37.071(b)(1) applicable to his case. On appeal, appellant claimed the trial judge erred in the charge to the jury, in accepting an incomplete and illegal verdict, and in sentencing Powell to death without the authority to do so. He insisted that since the jury never answered the requisite issue, the verdict was incomplete and illegal, and the sentence of death was not authorized. We agreed.

We noted that Article 37.071 had been amended just prior to the time of Powell’s trial. Among other changes, the “deliberateness” issue had been deleted and a new issue, the “anti-parties” issue, had been added. Powell, 897 S.W.2d at 315 . In changing the statute, however, the Legislature mandated that the changes only applied to offenses committed on or after September 1, 1991. Powell committed his offense in May 1978. Nonetheless, at his trial, Powell requested that the trial court substitute the “anti-parties” issue for the “deliberateness” issue. The trial court did as Powell requested and the State failed to object. On direct appeal, the State claimed that Powell could not complain about the substitution because he had requested it. Id.

We held in Powell that a defendant may not waive, and a trial court cannot ignore, the “effective dates of Article 37.071.” Id. at 316 . We explained that this is so because the effective dates of statutes are absolute requirements which are independent of litigants’ wishes. Specifically, in the case of Article 37.071, we held that its effective dates define the offense and “determine what elements a jury must find to establish a capital murder punishable by death.” Id. at 316 . By substituting Powell’s requested issue for the one legislatively prescribed, the trial court effectively removed an element the jury was required to find before a death sentence could be authorized.

*543 In a concurring opinion in which he joined the Court’s opinion with a “qualification,” Judge Clinton noted that while the Court’s opinion framed the issue as whether the “effective dates of statutes are absolute requirements,” this phraseology was actually a “subtle but significant distortion of the true issue” in the case. Judge Clinton posited that a jury answer to the deliberateness issue was absolutely required and unwaivable because the law prohibits a defendant from waiving a trial by jury in a death penalty case. See Arts. 1.13 and 1.14. Thus, without a jury’s answer to that specific issue, the punishment verdict would be incomplete, and a death sentence would not be authorized. 2

B. Majority’s Overruling of Powell

The majority insists “[t]he Powell Court should not have permitted Powell to raise as error an action that he procured,” and thus, overrules it “insofar as it did so.” (ante at 532). The majority claims the Powell Court, by analyzing the question in terms of the rules for waiver, “overlooked the crucial distinction between rules [for waiver] and the law of invited error.” The majority insists the question in Powell was “not whether he could waive a right, it was whether he could complain of an action he requested.” Contrary to the majority, however, the Powell Court did address whether a defendant may challenge the trial court’s authority to assess his punishment at death even though the error arose from an action he procured.

The defendant in Powell , like appellant, requested that a special issue be omitted from the jury charge on punishment. Although the Powell Court addressed the matter in terms of whether the defendant could request that the special issue be omitted, its reasoning demonstrates a willingness to permit a defendant to challenge the trial court’s authority to assess the death penalty despite the fact that it was the defendant who procured the error. Even though the defendant invited the error in Powell , this Court refused to ignore the fact that by granting the defendant’s request it omitted an element the jury had to find beyond a reasonable doubt before the trial court had the authority to assess punishment at death. Art. 37.071(2)(b). 3 *544 Today, the majority avoids addressing this consequence by concluding the matter need not be addressed because “we resolve the points before us with the doctrine of waiver.”

Although her reasoning differs somewhat from the majority, Judge Keller also avoids addressing the effect of omitting a special issue. In her concurring opinion, Judge Keller claims Powell was overruled by Cain v. State, 947 S.W.2d 262 (Tex.Crim.App.1997) because the omission of a special issue is statutory error. Op. at 539. Under Cain all statutory errors are subject to a harmless error review. Non-constitutional error requires a reviewing court to examine the impact of the error on the jury’s verdict to determine whether it affected the “substantial rights” of the defendant. Tex.R.App. P. 44.2(b). The error in the instant case, however, is not amenable to harmless error review because there is no jury verdict on punishment. It is for this reason that Cain neither overrules Powell nor applies to the instant case.

She also claims this error did not result in egregious harm to appellant, because “the guilt/innocenee charge in the present case required the State to show that appellant intended the victim’s death. The guilt/innocence charge instructed on the ‘intent to promote or assist’ theory of party liability.” Op. at 540. The only punishment charge instruction relating to parties specifically prohibited the jury from considering the party liability instructions given at guilt/innocence in answering the special issues:

However, in this punishment phase of the trial you should not consider the instructions given you in the first phase of the trial that relate to the law of parties and the responsibility of the parties for the acts of others in the commission of the offense. You shall consider only the conduct and state of mind of this defendant in determining what your answers to the Special Issues shall be.

Judge Keller is essentially arguing that the guilVinnocence parties instruction, which the jury was not allowed to apply at punishment, somehow makes the omission of the special issue harmless. This reasoning is faulty because it requires the jury to consider parties liability at punishment in violation of the capital punishment statute. Art. 37.071 § 2(b)(2).

Both the majority’s use of this equitable doctrine, and Judge Keller’s use of Cain , fail to appreciate the unique role special issues play. 4 In Texas, the “anti-parties” special issue plays a vital role in determining whether a defendant is death eligible. In a capital case, the question the jury must answer during the guilt/innocence phase is whether a capital offense was committed and whether the defendant committed it. During the punishment phase, however, the jury must determine the defendant’s death worthiness. That is, the jury must determine whether death is an appropriate punishment for the defendant. Tuilaepa v. California, 512 U.S. 967 , 114 S.Ct. 2630 , 129 L.Ed.2d 750 (1994); see also Zant v. Stephens, 462 U.S. 862, 879 , 103 S.Ct. 2733 , 77 L.Ed.2d 235 (1983) (at punishment jury makes “an individualized determination on the basis of the character of the individual and the circumstances of the crime”). When the charge at guilt/innocence authorizes the jury to find a defendant guilty on a theory of party liability, the trial court must given an “anti-parties” special issue to prevent a defendant, found guilty as a party, from being sentenced to death. 5 Art. 37.071 § 2(b)(2).

*545 The Powell Court recognized that a trial court cannot eliminate a special issue created by our Legislature, in response to the dictates of the United States Supreme Court, although the defendant requests that it be omitted. A contrary holding would have invited the judicial branch to ignore the legislature’s directives in matters of capital punishment procedure. In our legal system, the parties are adversaries, the trial judge is not. It is the trial judge who must carry out the duties imposed upon him or her by law. The majority’s holding today which “estops” appellant from challenging the trial court’s lack of authority to assess his punishment at death transforms what the Legislature has enacted as a mandatory duty, in response to the dictates of the Supreme Court, into a discretionary act.

II. Waiver of Jury Trial

Also, the majority insists the absence of a jury finding on a special issue from the jury’s verdict does not violate the legislature’s prohibition against allowing a capital defendant to waive a jury trial. Instead, the majority claims “the worst that can be said is that the jury returned a verdict which did not answer one issue.” (ante at 532). It is, however, precisely the absence of a finding on an issue legislatively assigned to the jury which violates the waiver prohibition. See Tex.Code.CRIm. PROC. Art. 1.14(a); See Art. 87.071 § 2(b)(2). By upholding appellant’s sentence of death despite the lack of a jury finding on a special issue authorizes the waiver of a finding essential to a determination of death worthiness.

The majority attempts to diminish the significance of omitting a special issue from the jury charge at punishment in a capital case by likening it to the omission of an element of an offense in the jury charge at guilt/innocence, (ante at 532. Such a comparison is invalid because if an element is omitted from the jury charge at guilt/innocence, the sufficiency of the evidence presented at trial can be examined to determine whether the State proved up that element. See Malik v. State, 953 S.W.2d 234 (Tex.Crim.App.1997) (sufficiency of evidence is not measured by the elements of the offense set out in the jury charge, but the elements of the offense as defined by the “hypothetically correct” jury charge). When a special issue is omitted in the charge on punishment, however, the evidence cannot be reviewed to determine whether a sentence of death was appropriately assessed because there is no jury verdict in on punishment. Consequently, the effect of not having a jury finding on a special issue is that it renders the verdict incomplete.

*546 III. Conclusion

In the instant case, there is no question that in order for the jury to have determined appellant death worthy, it had to return an affirmative finding on the “anti-parties” special issue. Thus, the special issue was an “element [the] jury [had to] find to establish a capital murder punishable by death.” Boykin v. State, 818 5.W.2d 782, 785 (Tex.Crim.App.1991); Powell, 897 S.W.2d at 316 . 6 Accordingly, because there was no jury finding on the “anti-parties” special issue the trial court had no authority to assess appellant’s sentence at death. With these concerns in mind, I must respectfully dissent.

. The guilt/innocence charge in the instant case set out the following:

All persons are parties to an offense who are guilty of acting together in the commission of the offense. A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.

A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.

This definition, which tracks the language of Texas Penal Code §§ 7.01 and 7.02, was applied to the facts of the case in the application paragraph of the charge. Under the version of Article 37.071 in effect at the time of his trial, whenever a charge at guilt/innocence authorized the jury to find a defendant guilty as a party under Texas Penal Code §§ 7.01 and 7.02, a trial judge was required to submit the “anti-parties” charge to the jury.

. Powell, 897 S.W.2d at 318 (Clinton, J., concurring); see also Simpson v. State, 991 S.W.2d 798, at 3 (Tex.Crim.App.1998) (citing to Judge Clinton's concurrence in Powell with approval). An unauthorized sentence is void. Ex parte Beck, 922 S.W.2d 181, 182 (Tex.Crim.App.1996); Levy v. State, 818 S.W.2d 801, 802 (Tex.Crim.App.1991).

. The pertinent parts of Article 37.071 § 2 read as follows:

(b)On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:

(1) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and

(2) in cases in which the jury charge at the guilt or innocence stage permitted the jury to find the defendant guilty as a party under Sections 7.01 and 7.02, Penal Code, whether the defendant actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken.

(c) The state must prove each issue submitted under Subsection (b) of this article beyond a reasonable doubt, and the jury shall return a special verdict of “yes” or “no” on each issue submitted under Subsection (b) of this article.

(d) The court shall charge the jury that:

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(2) it may not answer any issue submitted under Subsection (b) of this article "yes” unless it agrees unanimously and it may not answer any issue "no” unless 10 or more jurors agree; ...

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(e) The court shall instruct the jury that if the jury returns an affirmative finding to each issue submitted under Subsection (b) of this article, it shall answer the following 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.

*544 (Emphasis added).

. In her concurring opinion, Judge Keller claims that even if the omission of a special issue was of federal constitutional origin, according to Neder v. United States, — U.S. -, 119 S.Ct. 1827 , 144 L.Ed.2d 35 (1999) the error is not structural. Neder is inapplicable to the instant case because it examines the omission of an element of the offense at the guilt phase of a defendant’s trial.

. Effective September 1, 1991, the Texas Legislature deleted the "deliberateness” special issue from Article 37.071 and added the "anti- *545 parties” special issue. Prior to this time, an "anti-parties” charge was only required when requested by a defendant. We have noted in several opinions that the purpose of an "anti-parties” charge is to protect a defendant’s constitutional rights by ensuring that a jury's punishment-phase deliberations are based solely upon the conduct of the defendant and not that of another party. See Martinez v. State, 899 S.W.2d 655, 657 (Tex.Crim.App.1994), ce rt. denied, 516 U.S. 942 , 116 S.Ct. 378 , 133 L.Ed.2d 301 (1995). In other words, to ensure that a defendant is not sentenced to death merely for being a party to the offense.

We noted in these early cases that when the law of parties is presented to the jury in the guilt phase of a trial, a trial court should give an "anti-parties” charge at punishment when requested. Belyeu v. State, 791 S.W.2d 66, 73 (Tex.Crim.App.1989), ce rt. denied, 499 U.S. 931 , 111 S.Ct. 1337 , 113 L.Ed.2d 269 (1991). However, absent such a request or an objection, an "anti-parties” charge was not required by statute or by the constilution. Id.; Johnson v. State, 853 S.W.2d 527, 536 (Tex.Crim.App.1992), cer t. denied, 510 U.S. 852 , 114 S.Ct. 154 , 126 L.Ed.2d 115 (1993). V.e even went so far as to say that it would be inappropriate to have a blanket rule that each time a charge on the law of parties is given at the guilt/innocence stage of a capital murder case, an "anti-parties” charge must be given on request at the punishment stage. Belyeu, 791 S.W.2d at 72-73 . The 1991 amendments to Article 37.071, however, appear to be the Legislature's response to those cases in that the plain language of the amended statute indicates that such a blanket rule is appropriate.

. In Mosley v. State, 983 S.W.2d 249 , No. 72,281, slip op. at 90-91 (Tex.Crim.App. July 1, 1998)(op. on motion for reh’g), this Court stated that a defendant can waive reliance on and submission of the mitigation issue. See Art. 37.071 § 2(e). The opinion distinguishes the mitigation issue from the “deliberateness” issue in Powell on the basis that the mitigation issue has no burden of proof to be carried by the State. The "anti-parties” issue, like the deliberateness issue in the prior statute, has to be proven beyond a reasonable doubt by the State. See Art. 37.071 § 2(c).