Henderson v. State

WOMACK, Judge,

concurring.

Point of Error Ten is, “Section 19.03(a)(8) of the Texas Penal Code is unconstitutional on its face because it violates the Sixth [sic ] and Fourteenth Amendments to the United States Constitution.” I join the Court’s judgment in overruling this point, but my reasons differ from those of the Presiding Judge and Judge Keller.

Remarkably, the appellant never uses the words “equal protection” in her brief on this point, and the reason for invoking the Sixth Amendment is not clear. But after examining the cases she cites, I agree that her argument is based on the Equal Protection Clause of the Fourteenth Amendment.

The Presiding Judge says that “no state or federal equal protection questions are presented.” Concurring Opinion, ante at 568. I cannot agree. “The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 439 , 105 S.Ct. 3249, 3254 , 87 L.Ed.2d 313 (1985). Section 19.08(a)(8) makes a classification within the ambit of the Clause because it creates a class of murderers (those who murder individuals under the age of six) and subjects them to different treatment.

When a statute is challenged as denying equal protection, the general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. Id., 473 U.S. at 440 , 105 S.Ct. at 3254 .

The appellant argues that the statute makes an irrational classification, which at one point she identifies as a distinction between children younger than six years of age and older children, 1 and at another point as a distinction between murders of children younger than six and murders of six-year-olds and older. 2 Her argument consists mostly of a critical, even sarcastic, evaluation of the legislative history of the statute which enacted the classification. While legislative history may have value in determining the meaning of a statute, it is irrelevant to deciding whether the statute has a rational relationship to a legitimate state interest.

Where, as here, there are plausible reasons for Congress’ action, our inquiry is at an end. It is, of course, “constitutionally irrelevant whether this reasoning in fact underlay the legislative decision,” Flemming v. Nestor, 363 U.S. [603], at 612, 80 S.Ct. [1367], at 1373 [ 4 L.Ed.2d 1435 ], because this Court has never insisted that a legislative body articulate its reasons for enacting a statute.

United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 179 , 101 S.Ct. 453, 461-462 , 66 L.Ed.2d 368 (1980).

The classification “murderers of individuals under the age of six” is rationally related to the state’s objective of protecting young children, for the reasons given in Judge Keller’s opinion, ante at 562-563. This classification therefore survives the equal protection scrutiny. Since this analysis addresses and overrules the appellant’s point of error, the feder *570 al equal protection inquiry should now be closed.

Judge Keller raises a question that the appellant does not: 3 whether the statute affects a fundamental right under the Equal Protection Clause of the Fourteenth Amendment. Ante at 560-561.

The general rule, that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest, gives way when state laws impinge on certain personal rights protected by the Constitution. Such laws are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest. City of Cleburne, Texas v. Cleburne Living Center, supra, 473 U.S. at 440 , 105 S.Ct. at 8254 . The personal rights protected by the Constitution are called “fundamental rights” in federal equal protection jurisprudence. The fundamental rights are those in the first eight amendments to the Constitution that have been made applicable to the states, and an additional set of rights which are not specified in the Bill of Rights (rights to privacy in marriage, reproduction, contraception, and abortion; access to voting; and the right to interstate travel).

Judge Keller concludes that fundamental-right analysis must apply to capital punishment because it applied to the sterilization statute in Skinner v. Oklahoma, 316 U.S. 535 , 62 S.Ct. 1110 , 86 L.Ed. 1655 (1942), in which the Supreme Court held that procreation was a fundamental right. Judge Keller “would find it strange, indeed, to hold that the right to life is any less fundamental than the right to procreation.” Ante at 561. She misidentifies the right in question and overlooks important differences in the sources of the constitutional protections.

The Skinner Court did say that marriage and procreation are fundamental, and that sterilization effected a permanent loss of the right. But this does not mean that the permanent loss of every constitutional right is subject to Skinner analysis. The right of procreation is one of the fundamental rights of privacy which are implied in the Constitution but not specifically identified in the first eight amendments of the Bill of Rights. Equal protection analysis is the first line of analysis in protecting those rights, because there is no substantive protection of them elsewhere in the Constitution. The right that the appellant claims is different.

While there are emerging issues of implied constitutional privacy rights to live and die, 4 a general right to life is not at issue in this case. The appellant’s right is the Eighth Amendment right of a person convicted of crime not to suffer a punishment of death that is cruel and unusual.

The constitutional scrutiny of death penalty statutes under the Cruel and Unusual Punishments Clause of the Eighth Amendment has been extensive since Furman v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972). “The guiding principle that emerged from Furman was that States were required to channel the discretion of sentencing juries in order to avoid a system in which the death penalty would be imposed in a “wanton’ and ‘freakish’ manner. Id., at 310 , 92 S.Ct. at 2762-2763 (Stewart, J., concurring).” Johnson v. Texas, 509 U.S. 350, 359 , 113 S.Ct. 2658, 2664 , 125 L.Ed.2d 290 (1993) (brackets omitted). Another principle is that the death penalty must not be disproportionate to the crime. Coker v. Georgia, 433 U.S. 584 , 97 S.Ct. 2861 , 53 L.Ed.2d 982 (1977).

The Texas statute in particular survived this scrutiny because it “limits the imposition *571 of the death penalty to a narrowly defined group of the most brutal crimes and aims at limiting its imposition to similar offenses occurring under similar circumstances.” Jurek v. Texas, 428 U.S. 262, 279 , 96 S.Ct. 2950, 2960 , 49 L.Ed.2d 929 (1976) (opinion of White, J.). Put another way, Texas’ “action in narrowing the category of murders for which a death sentence may ever be imposed serves much the same purpose” as other states’ statutory lists of aggravating circumstances. Jurek v. Texas, supra, at 270, 96 S.Ct. at 2955 (opinion of Stewart, J.).

The appellant’s point of error has to do with the amendment of the capital murder statute to add the category of murders of individuals younger than six years. Penal Code § 19.03(a)(8). When the Texas statute is amended to add another category of murders, the amendment is scrutinized under the Eighth Amendment. See Johnson v. State, 853 S.W.2d 527, 533 (Tex.Cr.App.1992) (addition of murders of more than one individual), cert. denied, 510 U.S. 852 , 114 S.Ct. 154 , 126 L.Ed.2d 115 (1993); Narvaiz v. State, 840 S.W.2d 415, 432 (Tex.Cr.App.1992) (same), cert. denied, 507 U.S. 975 , 113 S.Ct. 1422 , 122 L.Ed.2d 791 (1993); Vuong v. State, 830 S.W.2d 929, 941 (Tex.Cr.App.) (same), cert. denied, 506 U.S. 997 , 113 S.Ct. 595 , 121 L.Ed.2d 533 (1992). If the statute is made impermissibly broad by the addition of murders of individuals younger than six, the Eighth Amendment will have been violated.

While it is possible to make an equal protection issue of a violation of a fundamental right in the first eight amendments, it is not necessary.

In these instances the denial of the right to one class of persons is likely to be held a violation of the specific guarantee without any need to resort to equal protection analysis. Thus, if the state or federal government were to deny to a specific class of persons the right to bail upon certain criminal charges, the classification should be analyzed to determine the compatibility of the law with the substantive guarantees of the eighth amendment prohibition of excessive bail, although it could just as easily be analyzed as an equal protection issue.

R. Rotunda & J. Nowak, 3 Treatise on Constitutional Law § 18.39 (2d ed.1992). Just as a bail statute could be analyzed as an equal protection issue, but should be analyzed under the Excessive Bail Clause of the Eighth Amendment, so should a capital punishment statute be analyzed under the Cruel and Unusual Punishments Clause of the Eighth Amendment.

On the same day that Jurek v. Texas was decided, an opinion in Gregg v. Georgia, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976), indicated that fundamental-right analysis would be inappropriate in a capital-punishment case. The lead opinion by Justice Stewart said:

Therefore, in assessing a punishment selected by a democratically elected legislature against the constitutional measure, we presume its validity. We may not require the legislature to select the least severe penalty possible so long as the penalty is not cruelly inhumane or disproportionate to the crime involved. And a heavy burden rests on those who would attack the judgment of the representatives of the people.

Id. at 175 , 96 S.Ct. at 2926 (emphasis added). If capital punishment implicated a fundamental right to life, a capital-punishment statute could not be presumed valid, nor could the opinion have approved the statute because it was not “clearly wrong” (id., 428 U.S. at 186, 96 S.Ct. at 2931). The deference that the Court showed to legislative decisions in Gregg v. Georgia demonstrates that funda-mentalright analysis is not required. Gray v. Lucas, 677 F.2d 1086, 1104 (5th Cir.1982), cert. denied, 461 U.S. 910 , 103 S.Ct. 1886 , 76 L.Ed.2d 815 (1983).

The appellant recognizes and relies on the Eighth Amendment standard, asking us to decide whether the statute, in the language of Spaziano v. Florida, 468 U.S. 447, 460 , 104 S.Ct. 3154, 3162 , 82 L.Ed.2d 340 (1984), “rationally distinguishfes] between those individuals for whom death is an appropriate sanction and those for whom it is not.” Appellant’s Brief at 120. Because the statute meets the Eighth Amendment standards, I join the Court’s judgment on this point of error.

*572 I join the Court’s opinion on the other points of error.

MANSFIELD, J., joins this opinion.

. Appellant’s Brief at 120.

. Id. at 128.

. The appellant does not argue for strict scrutiny under the Fourteenth Amendment. In Point of Error Nine she argues for a strict scrutiny standard under the state constitution. As the Court holds, she fails to provide any reason why the state constitution requires such a standard when the federal constitution does not. Ante at 563 n. 17. Her argument is that strict scrutiny should be applied to the capital murder statute because it affects the appellant’s Eighth Amendment rights. As I explain below, the existence of Eighth Amendment scrutiny is the reason why strict scrutiny is unnecessary.

. See, e.g., Washington v. Glucksberg, 521 U.S. --, 117 S.Ct. 2302 , 138 L.Ed.2d 772 (1997) (no due process right to commit suicide); Yale Kamisar, When Is There a Constitutional "Right to Die”? When Is There No Constitutional "Right to Live”?, 25 Ga. L.Rev. 1203 (1991).