finding that the death penalty was not ―unusual‖ under the Texas Constitution 3 But see Anderson, 932 S.W.2d at 509 (―We do not decide whether the state constitutional provision is broader than its counterpart.‖). 5 because the Court of Criminal Appeals ―has never in its history held the death penalty to constitute cruel and unusual punishment under the Texas Constitution‖
How later courts described this case
- finding that the death penalty was not ―unusual‖ under the Texas Constitution 3 But see Anderson, 932 S.W.2d at 509 (―We do not decide whether the state constitutional provision is broader than its counterpart.‖). 5 because the Court of Criminal Appeals ―has never in its history held the death penalty to constitute cruel and unusual punishment under the Texas Constitution‖
- explaining that “only exception” to adverse-ruling requirement “occurs if an instruction to disregard would not have cured the harm”
- finding defendant did not receive adverse ruling where counsel objected to improper argument, and trial court replied, “The jury’s been instructed. [State], you have two minutes left”
- holding that capital punishment is neither cruel nor unusual for purposes of the Texas Constitution
Written by the judges who cited it.
The opinion
OVERSTREET, Judge,
dissenting.
I dissent to the majority’s disposition of appellant’s points of error one and two where he complains of the trial court’s refusal to inform the jury that if sentenced to life he was statutorily required to serve 35 years in prison before becoming eligible to be considered for parole. I believe the failure to adequately inform the sentencing jury may be a due process violation and may cause the Texas death penalty statute to be unconstitutional as applied.
Additionally, I add that this Court through actual knowledge is well aware that some Texas trial courts do in fact inform some sentencing juries as to what a capital life sentence means. See, e.g., Ford v. State, 919 S.W.2d 107, 116 (Tex.Cr.App.1996); and McDuff v. State, No. 71,872 (Tex.Cr.App., currently pending). This Court has never said that such practice is forbidden, and in fact has noted that there is no express constitutional or statutory prohibition against including such an instruction. Walbey v. State, 926 S.W.2d 307, 313 (Tex.Cr.App.1996).
Some juries who are informed of the parole eligibility law do indeed answer the special issues and return verdicts which result in a death sentence. See, e.g., Ford, supra, McDuff, supra, and Walbey, supra. Other juries which are kept in the dark and not informed about such have returned verdicts which result in a life sentence. See, e.g., Weatherred v. State, 833 S.W.2d 341 (Tex. App. — Beaumont 1992, pet. ref'd); Cisneros v. State, 915 S.W.2d 217 (Tex.App. — Corpus Christi 1996, pet. pending); Norton v. State, 930 S.W.2d 101 (Tex.App. — Amarillo 1996, pet. refd). Others which' have been informed of the parole eligibility law have returned verdicts which result in a life sentence. See, e.g., Johnson v. State, No. 13-93-504-CR (Tex.App. — Corpus Christi, delivered February 29, 1996), pet. summarily granted and remanded, Johnson v. State, No. 684-96 (Tex.Cr.App. delivered -, 1996); Koslow v. State, No. 02-94r-385-CR (Tex.App. — Fort Worth, currently pending). And in a myriad of cases in which jurors have been kept in the dark about parole eligibility juries have returned verdicts which result in a sentence of death. See, e.g., Smith v. State, 898 S.W.2d 838 (Tex.Cr.App.1995), cert. denied, — U.S. —, 116 S.Ct. 131 , 133 L.Ed.2d 80 (1995); Willingham v. State, 897 S.W.2d 351 (Tex.Cr.App.1995); cer t. denied, — U.S. —, 116 S.Ct. 385 , 133 L.Ed.2d 307 (1995); Broxton v. State, 909 S.W.2d 912 (Tex.Cr.App.1995); Rhoades, supra; Martinez v. State, 924 S.W.2d 693 (Tex.Cr.App.1996); Sonnier v. State, 913 S.W.2d 511 (Tex.Cr.App.1995).
Consequently the “luck of the draw” determines whether a defendant’s sentencing jury in a capital murder prosecution will be adequately truthfully fully informed or have vital information withheld. Such practice in my opinion gives rise to questions of equal protection of the law under both the Federal and Texas Constitutions, especially when, as shown above, some juries which have been informed as to the proper legal definition of a capital murder life sentence have answered the special issues in a way that mandates life while other juries which have not been so informed have answered the special issues in a way that mandates death.
For these reasons I urge this Court to allow the capital sentencing jury to have the *511 truth, the whole truth, and nothing but the truth. I truly believe in the trial by jury system and that if capital sentencing juries are given the complete truth regarding the issue of future dangerousness they will make appropriate and fair decisions; at the very least, they ought to be given the opportunity to do so. Because the majority continues to sanction the practice of hiding the truth in sentencing from citizens, who are asked to decide life and death, I voice my strongest dissent.