Lawton v. State

MALONEY, Judge,

concurring.

In pomts of error three and four appellant claims that murder committed in the course of a burglary of a veMcle does not constitute capital murder under Texas law. In point of error five appellant claims that to permit the imposition of the death penalty for murder committed in the course of a burglary of a *562 vehicle violates the Eighth and Fourteenth Amendments. The Court does not address the merits of these claims but concludes that error, if any, was harmless since the jury found appellant committed murder in the course of burglary and robbery. I join the Court’s opinion, but write separately to address the merits of appellant’s contentions, to provide some insight to the bench and bar on this subject. Had appellant’s conviction been based solely on murder in the course of burglary of a vehicle, I would be compelled to agree with appellant that it could not stand.

A person commits capital murder if he intentionally commits murder

in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, or arson[.]

Tex.Penal Code Ann. § 19.08(a)(2) (emphasis added). Penal Code Chapter 30, entitled Burglary and Criminal Trespass, includes the following offenses:

30.02 Burglary

30.03 Burglary of Coin-Operated or Coin Collection Machines

30.04 Burglary of Vehicles

30.05 Criminal Trespass

Appellant argues that only § 30.02 burglary is encompassed within § 19.03. The State reasons that all forms of burglary listed in Chapter 30 satisfy the underlying offense of “burglary” for purposes of § 19.03 because Chapter 30 itself is entitled “Burglary.”

We have previously recognized that

if the meaning of the statutory text, when read using the established canons of construction relating to such text, should have been plain to the legislators who voted on it, we ordinarily give effect to that plain meaning.

Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). Only if application of the plain language would lead to absurd results or if the language is not plain but is ambiguous, do we look to extratextual evidence of intent, such as legislative history. Id. at 785-86 . Because there is ambiguity in section 19.03’s use of the term “burglary” when read in view of Chapter 30 — the ambiguity being whether “burglary” refers only to the offense of burglary as identified in § 30.02 or whether it refers to all burglary offenses within Chapter 30 — it is appropriate to consider legislative history in order to determine the intent of the legislators at the time of enactment.

Section 19.03 was enacted following the United States Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972), which struck down the previous Texas capital murder provision as unconstitutional under the Eighth and Fourteenth Amendments. After Fur-man, it was generally agreed that the death penalty should be reserved for a narrow class of persons and be imposed in a manner that avoided unfettered discretion. Chief Justice Burger, joined by Justices Blackmun, Powell, and Rehnquist, dissenting to the Court’s opinion and to the concurring opinions in Furman , observed that

legislative bodies may seek to bring their laws into compliance with the Court’s ruling by providing standards for juries and judges to follow in determining the sentence in capital cases or by more narrowly defining the crimes for which the penalty is to be imposed.

Furman, 408 U.S. at 400-401 , 92 S.Ct. at 2809 (Burger, C.J., dissenting). The Supreme Court has since recognized that under Furman a provision defining an offense as capital “must ... provide a meaningful basis for distinguishing the few cases in which the death penalty is imposed from the many cases in which it is not.” Gregg v. Georgia, 428 U.S. 153, 188 , 96 S.Ct. 2909, 2932 , 49 L.Ed.2d 859 (1976) (citing Furman, 408 U.S. at 313 , 92 S.Ct. at 2764 (White, J., concurring)).

The primary concern of the Texas legislature was to enact a new capital murder provision that would withstand constitutional muster under Furman by narrowly defining the circumstances in which a death sentence could be imposed. Testimony from hearings in both the House and Senate reflect a general concern that the offenses included within the definition of capital murder be limited in order to keep the bill within the confines of Furman . When originally introduced, House Bill 200 (which, upon passage, became section 19.03) included kidnapping, burglary, robbery, forcible rape, and arson as underly *563 ing offenses to capital murder. After public debate on the bill, the subcommittee eliminated all of the underlying offenses with the exception of kidnapping, expressing the belief that the bill would have a better chance of being held constitutional if the circumstances elevating a murder to capital murder were limited. 1 When brought back to the floor, there was discussion about amending the bill to add back certain offenses. One amendment was proposed to add robbery and rape. Another amendment was proposed to add back the offenses originally included — kidnapping, burglary, robbery, forceful rape and arson. The latter floor amendment passed, although several representatives continued to express concerns that they were running a risk of rendering the bill unconstitutional. Representative Robert Maloney, who proposed the floor amendment, expressed his view about the addition of these offenses:

... these are all offenses which guard the private citizen who is at home or in some place minding their own business and get murdered in the commission of another felony.

Texas House of Representatives, Floor Proceedings on H.B. 200, 63rd Leg., May 8,1973 (emphasis added). The Senate rejected a proposed amendment to make the commitment of any felony an underlying offense, believing such a broad provision would render the bill unconstitutional. Texas Senate, Floor Proceedings on H.B. 200, 63rd Leg., Transcript of Tape 93 (May 23,1973).

It seems clear from a reading of the proceedings relating to House Bill 200 that the legislators wanted to include as underlying offenses violent crimes that impacted private citizens “at home or minding their own business” but did not want to include so many underlying felonies as to endanger the constitutionality of the bill. Justice Brennan had observed in Furman that if capital murder is an appropriate punishment only for “extreme” cases, and “[i]f ... petitioner Furman or his crime illustrates the ‘extreme,’ then nearly all murderers and their murders are also ‘extreme.’” Furman, 408 U.S. at 294 , 92 S.Ct. at 2754 (Brennan, J., concurring).

In drafting our capital murder provision, the legislature was struggling to identify circumstances that would elevate a simple intentional murder to a capital offense. 2 It follows that the elevating circumstances would need to be “extreme” or violent in nature. Anything less would not sufficiently render a capital murder defendant more deathworthy than a murder defendant.

Under the Penal Code applicable to appellant, Burglary of Vehicles is defined as a Third Degree felony. However, in 1993, this offense was reduced from a Third Degree felony to a Class A misdemeanor. Acts 1993, 73rd Leg., ch. 900 § 1.01. The offense of Burglary of Coin-Operated or Collection Machines was enacted as a Class A misdemean- or and has remained so.

I cannot believe that the legislators enacting section 19.03 had any intention of permit *564 ting a misdemeanor to serve as the underlying offense to capital murder. Even the most sweeping of amendments that was rejected in the Senate — the amendment proposing that all felonies could serve as the underlying offense — did not contemplate including misdemeanors. The criticism of that amendment made it clear that it was rejected because many offenses that are defined as felonies are not of a violent nature or sufficiently “extreme” as to render an accompanying murder a capital offense. Speaking to the proposed amendment to include all felonies as the underlying offense, one senator questioned the senator who proposed the amendment:

Do you understand that writing a hot check could be a felony? Do you understand that a man going down and just making or using a credit card incorrectly could be a felony. Do you understand that improperly filing a correct expense report or contribution report whenever you are reporting your election campaign expenses could be a felony?

Texas Senate, Floor Proceedings on H.B. 200, 63rd Leg., Transcript of Tape 93, Side 1 (May 23,1973).

In view of the legislative history indicating that it was not the intent of the legislature to include as underlying offenses to capital murder anything but felonies of a violent nature or involving “extreme” circumstances, I can only conclude that the reference to “burglary” was intended to reference that offense as it is defined in section 30.02, and was not intended to reference “burglary of vehicles.” It is also my opinion that to define capital murder as murder committed in the course of a burglary of a vehicle is violative of the Eighth and Fourteenth Amendments under Furman . Had the jury not found appellant guilty of murder committed in the course of robbery as well as murder committed in the course of burglary of a vehicle, I would be compelled to sustain these points of error.

MANSFIELD, J., joins.

. As explained by the author of the bill, Representative Cobb:

... [The subcommittee] had before them all of the other categories, robbery, rape, and any number of other offenses wherein a murder was committed, arson, things of this nature. It was the opinion of the committee — the members of the penal code subcommittee who were dealing with — dealt with this in numerable meetings that to broaden that might very likely render the bill unconstitutional.

Texas House of Representatives, Floor Proceedings on H.B. 200, May 8, 1973.

. It is likely that in considering the capital murder provision, the legislators understood "burglary” as it existed under the 1925 Penal Code. Under the 1925 Penal Code, Chapter 5 was entitled "Burglary.” "Burglary" was defined within that chapter as follows:

The offense of burglary is constituted by entering a house by force, threats or fraud, at night, or in like manner by entering a house at any time, either day or night, and remaining concealed therein, with the intent in either case of committing a felony or the crime of theft.

Tex.Rev.Civ.Stat.Ann. art. 1389. The other forms of burglary appearing in Chapter 5 (burglary by breaking, burglary of a private residence at night and burglary by explosives) were simply expansions on that definition. All burglary in Chapter 5 incorporated the concept of entering a house or residence. Chapter 5 was ultimately repealed and replaced with Chapter 30, effective at the same time the capital murder provision was made effective, with the passage of the 1973 Penal Code.