Beets v. State

CLINTON, Judge,

dissenting.

I would be content to adhere to my concurring opinion on original submission in which three judges joined, but for an appallingly determined revisionist approach taken today: the writer of the lead opinion must reinterpret two previous opinions and disavow another — all of which he himself wrote — to come to a conclusion that is at odds with our opinions on original submission, as well as legislative history.

To determine just what the Legislature intended in § 19.03(a)(3), let us resort to legislative history of House Bill 200, Acts 1973, 63rd Leg., ch. 426, p. 1122. *

*749 House Bill 200, as passed there, defined three capital offenses — for which the death penalty was mandatory. Comment, supra, at 417, n. 58 and accompanying text. Murder for hire was not one of them. Ibid.

When the bill reached the Senate Committee on Jurisprudence, leading senators put a different concept to work. Obviously influenced by related provisions of the Model Penal Code written by the American Law Institute (ALI), they drafted a complete committee substitute for House Bill 200.

While ALI did not take a position on the death penalty, it did insist that the capital sanction should be limited to murder and excluded for all other offenses, and that certain procedures govern its imposition. Model Penal Code and Commentaries, Part II, ALI (1980), at 3. It formulated a general definition of murder in § 201.2, at 13, and a scheme of aggravating and mitigating circumstances to be considered in determining the sentence in § 210.6, at 107. One aggravating circumstance is that murder was committed “for pecuniary gain.” Id., at 110.

The first part of what became § 19.03(a)(3) was crafted primarily by Senators Creighton and Meier, sponsors of the Committee Substitute attached hereto. Please notice that Section 1(B)(3) reads: “the person committed the murder for remuneration or the promise of remuneration” — nothing about employing another to kill. The remaining subsections follow ALI § 210.6; subsection (H) lists aggravating circumstances almost verbatim with § 210.6 (one ALI was omitted and item (7) was inserted), one of which is the murder was committed “for pecuniary gain.”

The Senate Journal essentially reports motions and results of proceedings. With respect to such matters germane to House Bill 200 on May 23, 1973, see 2 Senate Journal (1973) (S.J.) 1440-1453 (not those pages cited in notes 62-66 of Comment, supra). However, the proceedings were taped and there is a transcription of that tape. Relevant portions will be interpolated with the Senate Journal.

Senator Ogg moved to bring up House Bill 200 out of regular order, S.J., at 1440; he stated that he had a version of the bill more like the House had passed, whereas Senator Meier was sponsoring one similar to the Committee Substitute, and they “would like to debate the two different philosophies.” The motion passed and Senator Ogg opened the debate by explaining that whichever version was adopted would be worked into the proposed new penal code, and that both bills apply only to murder, including “if it is a killing for hire.” Compare (b)(2) of the Ogg amendment at S.J. 1441-1442 — “the person committed the murder for remuneration or the promise of remuneration” — with Section 1(B)(3) of the Committee Substitute, ante. The main difference was that, like the House Bill, if the jury found defendant guilty Ogg would have the judge automatically assess the death penalty, and he argued that comported more with recent Supreme Court decisions. Pointing out that either version was sure to be tested again, he noted that one advantage to the Committee Substitute is that “it is basically like the Florida law, and the Florida law is already under attack in the federal court system.” On motion by Senator Meier the Ogg proposal was tabled. S.J., at 1442. Thus the House version was interred.

Senator Meier then offered a comprehensive amendment in the nature of a substitute to the Committee Substitute. Retaining the basic concept and most provisions of the latter, it amended both article 1257, P.C. 1925 and Chapter 19 of the proposed penal code. Each included what senators were now calling the “murder for hire” provision, viz: (3) the person committed (or commits) the murder for remuneration or the promise of remuneration — still nothing about employing another to kill, S.J., at 1443 — and in a new article 37.071 in the Code of Criminal Procedure were aggravating circumstances as in the Committee Substitute, e.g., that the murder was committed “for pecuniary gain,” S.J., at 1445-1446.

*750 Senator Gammage argued that given the “murder for hire” classification there could be no moral justification for excluding the person who hired the killer. Senator Bracklein offered a floor amendment to address that argument, viz:

“(3) the person committed the murder for remuneration or the promise of remuneration or employed another to commit the murder for remuneration or the promise of remuneration.”

S.J., at 1449. Senator Bracklein briefly stated that his amendment makes “the punishment the same for the person responsible for the commission of the crime. And that is the person who instigated it ... that hired the person who does the actual commission of the murder.” Senator Meier further explained it, viz:

“[T]his amendment cures an objection that was raised earlier by Senator Gam-mage of Harris when he asked the question, well, if you have a murder for hire section ... for which the death penalty would be applicable, how can you morally justify excluding the person who is doing the paying in order to instigate the crime when you are subjecting the man who actually carries it out ... to the death penalty. Senator Bracklein’s amendment merely places in a murder for hire classification the man ... or the woman who is doing the paying in the same position as a person who goes out and carries out the crime. I think it is a good amendment.”

Being thus acceptable to Senator Meier, the amendment was adopted.. S.J., at 1449.

Shortly the Meier Amendment was adopted and, as House Bill 200, was passed on third reading and sent back to the House. The House refused to concur in the Senate amendments and requested a conference; the joint conference committee produced “a hybrid of the original bill as passed by the House and the amended version as passed by the Senate.” Comment, supra, at 418. In Table 1 there is set out a summary of each version along with the reconciliation by the conference committee. Ibid. Subdivision (3) remained intact. Id., at n. 70. And, of course, the ALI and, e.g., Florida scheme of aggravating versus mitigating circumstances was abandoned— gone was the aggravating circumstances that murder was committed “for pecuniary gain.”

From this legislative history the conclusion is inescapable that in context of subdivision (3) a person who “commits the murder for remuneration” must be hired by another to kill. The debate preceding the Bracklein amendment is couched by senators precisely in terms of “murder for hire,” and no other. Both Senator Brack-lein and Senator Meier made abundantly plain that his amendment was intended and designed to place the “hirer” in the same position as the “hiree.” Using the term “remuneration” in the second clause is symmetrical with its use in the first.

That is the way Judge W.C. Davis and I read it in Doty v. State, 585 S.W.2d 726 (Tex.Cr.App.1979) — panel opinions to be sure, but they withstood State’s motion for rehearing. So did the prosecutors who participated in preparing explanatory comments for Brancroft-Whitney in 1974, viz:

“The section [19.03] is intended to provide the possibility of punishment of death for the murder of certain individuals thought to be in special need of protection and in cases of murder for hire_ Murder for hire is included because there appears to be a substantial probability that those engaged in that occupation pose a continuing and unacceptable threat to society.”

2 Texas Annotated Penal Statutes (Branch’s 3rd Ed.), § 19.03, p. 17. Those who write forms for indictment and jury charge do also. See, e.g., Id., § 19.03, pp. 17 and 19; McCormick & Blackwell, Texas Criminal Forms and Trial Manual, 4.06, 7 Texas Practice 37, and § 93.06, 8 Texas Practice 412.

So did the Supreme Court in Jurek v. State, 428 U.S. 262 , 96 S.Ct. 2950 , 49 L.Ed.2d 929 (1976), when it pointed out that the Texas statute requires the jury to determine, inter alia, “whether [the crime] was committed for hire[.]” Id., at 270, S.Ct., at 2955. As Professor David Crump, himself an astute scholar and practitioner of the law on behalf of organizations dedicated to *751 strict enforcement, has written, “The statute provides that capital murder may be committed in one of five ways: .... (3) murder committed for ‘remuneration’ or hire[.]” Crump, Capital Murder: The Issues in Texas, 14 Houston L.Rev. (March 1977) 531, at 534.

For all those reasons, and many more not articulated but directed to other aspects of the lead opinion, I dissent first to extreme judicial revisionism in the face of clear legislative intent, and then to distorition of the law to overrule other points of error to the end that the sentence of death is upheld.

MILLER and CAMPBELL, JJ., joins in this opinion.

APPENDIX

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*752 H.B. No. 200

By: Cobb, Lombardino, et al

(In the Senate — Received from the House May 11,1973; May 11,1973, read first time and referred to Committee on Jurisprudence; May 18, 1973, reported adversely, with favorable Committee Substitute; May 18, 1973, sent to the printer.)

COMMITTEE SUBSTITUTE FOR H.B. NO. 200

By: Creighton, Meier A BILL TO BE ENTITLED

AN ACT

relating to the punishment for murder under certain circumstances and conditions; repealing Article 1257, Penal Code of Texas, 1925, as amended; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

“Section 1. Punishment for murder

“(A) Except as provided in Subsection (b) of this Article, the punishment for murder shall be confinement in the penitentiary for life or for any term of years not less than two.

“(B) The punishment for murder with malice aforethought shall be death or imprisonment for life if:

“(1) the person murdered a peace officer or fireman who was acting in the lawful discharge of an official duty and who the defendant knew was a peace officer or fireman;

“(2) the person intentionally committed the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, forcible rape, or arson;

“(3) the person committed the murder for remuneration or the promise of remuneration;

“(4) the person committed the murder while escaping or attempting to escape from a penal institution;

“(5) the person, while incarcerated in a penal institution, murdered another who was employed in the operation of the penal institution;

“(C) In all cases prosecuted pursuant to this section, the procedure set out herein shall be followed in order to determine sentence of death or life imprisonment.

“(D) Upon conviction or adjudication of guilt of a defendant under section (B) of this Article, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment. The proceeding shall be conducted in the trial court before the trial jury, unless waived, as soon as practicable. If the trial jury has been waived or if the defendant pleaded guilty, the sentencing proceeding shall be conducted before a jury empaneled for that purpose unless waived by the defendant. In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence, and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in subsections (H) and (I) of this section. Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements; and further provided that this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the State of Texas. The state and the defendant or his counsel shall be permitted to present argument for or against sentence of death.

“(E) After hearing all the evidence, the jury shall deliberate and render an advisory sentence to the court based upon the following matters:

“(1) whether sufficient aggravating circumstances exist as enumerated in subsection (H), and

“(2) whether sufficient mitigating circumstances exist as enumerated in subsection (I), which outweigh aggravating circumstances found to exist, and

“(3) based on these considerations whether the defendant should be sentenced to life or death.

*753 “(F) Notwithstanding the recommendation of the jury, the court after weighing the aggravating and mitigating circumstances shall enter a sentence of life imprisonment or death, but if the court imposes a sentence of death, it shall set forth in writing its findings upon which the sentence of death is based as to the facts:

“(1) that sufficient aggravating circumstances exist as enumerated in Subsection (H), and

“(2) that there are insufficient mitigating circumstances, as enumerated in Subsection (I), to outweigh the aggravating circumstances. In each case in which the court imposes the death sentence, the determination of the court shall be supported by specific written findings of fact based upon the circumstances in Subsections (H) and (I) and based upon the records of the trial and the sentencing proceedings.

“(G) If the court does not make the findings requiring the death sentence, the court shall impose sentence of life imprisonment.

“(H) Aggravating circumstances — Aggravating circumstances shall be limited to the following:

“(1) the murder was committed by a person under sentence of imprisonment;

“(2) the defendant was previously convicted of another murder or of a felony involving the use or threat of violence to the person;

“(3) the defendant knowingly created a great risk of death to many persons;

“(4) the murder was committed while the defendant was engaged or was an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit any kidnapping, burglary, robbery, forcible rape, or arson;

“(5) the murder was committed for the purposes of avoiding or preventing a lawful arrest or effecting an escape from custody;

“(6) the murder was committed for pecuniary gain;

“(7) the murder was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.

“(8) the murder was especially heinous, atrocious or cruel.

“(I) Mitigating circumstances — Mitigating circumstances shall be the following:

“(1) the defendant has no significant history of prior criminal activity;

“(2) the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance;

“(3) the victim was a participant in the defendant’s conduct or consented to the act;

“(4) the defendant was an accomplice in the murder committed by another person and his participation was relatively minor;

“(5) the defendant acted under extreme duress or under the substantial domination of another person;

“(6) the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired;

“(7) the age of the defendant at the time of the crime.

“(J) If the jury does not find beyond a reasonable doubt that the murder was committed under one of the circumstances or conditions enumerated in Subsection (B) of this Article, the defendant may be convicted of murder, with or without malice, under Subsection (A) of this Article or of any other lesser included offense.

“(K) If one of the circumstances or conditions enumerated in Subsection (B) of this Article is charged in an indictment, the prospective jurors shall be informed that a sentence of either death or imprisonment for life is mandatory on conviction for the offense charged. No person is qualified to serve as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact.

“(L) In this Article:

“(1) ‘penal institution’ means an institution operated by or under the supervision of the Texas Department of Corrections or a city, county, or regional jail.

*754 “(2) ‘peace officer’ means a person defined as such by Article 2.12, Code of Criminal Procedure, 1965, as amended.

“(3) ‘fireman’ means a person employed or engaged by the state or a county, city, municipality, or public subdivision in connection with the fighting or extinguishing of fires.

“(M) The judgment of conviction and sentence of death shall be subject to automatic review by the Court of Criminal Appeals of Texas within sixty (60) days after certification by the sentencing court of the entire record unless time is extended an additional period not to exceed thirty (30) days by the Court of Criminal Appeals for good cause shown. Such review by the Court of Criminal Appeals shall have priority over all other cases, and shall be heard in accordance with rules promulgated by the Court of Criminal Appeals.”

Sec. 1. Article 1257 of Section 1, Chapter 274, Acts of the 40th Legislature, Regular Session, 1927, as amended (Article 1257, Vernon’s Texas Penal Code), is repealed.

Sec. 2. Severability Clause. If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are declared to be severable.

Sec. 3. Emergency Clause. The importance of this legislation and the crowded condition of the calendars in both houses create an emergency and an imperative public necessity that the constitutional rule requiring bills to be read on three several days in each house be suspended, and that this Act take effect and be in froce [sic] from and after its passage, and it is so enacted.

* * * * * *

Austin, Texas

May 18, 1973

Hon. William P. Hobby

President of the Senate

Sir:

We, your Committee on Jurisprudence, to which was referred H.B. No. 200, have had the same under consideration, and I am instructed to report it back to the Senate with the recommendation that it do pass and be printed.

Herring, Chairman

ANALYSIS OF CONFERENCE COMMITTEE REPORT H.B. NO. 200

Because the structure of H.B. No. 200, as it passed the House and as it passed the Senate is not parallel, a section-by-section analysis is not possible. The following compares the differences in the Senate and House versions and shows how the Conference Committee Report adjusts these differences.

Senate Conference Committee House

1. Provides for death penalty or life imprisonment Adopted Senate version Provides for death penalty only

2. Applies to person who hires murderer Adopted Senate version Not covered

3. Applies to murders by bombs Adopted House version Not covered

4. Definition of fireman Adopted House version Fireman not defined

5. Includes Texas Youth Council in definition of institution Adopted House version Youth Council not included

6. Provision to incorporate death penalty into new Penal Code Adopted Senate version Not covered

7. Amended Code of Criminal Procedure to abolish notice of intent to seek death Adopted Senate version Not covered

*755 Senate Conference Committee House

8. Amended Code of Criminal Procedure to permit waiver of jury in capital case Adopted House version Not covered

9. Amended Code of Criminal Procedure to provide standards for jury consideration of penalty Reduced number of standards from Senate version Death mandatory

10. Provided advisory jury verdict on penalty; judge assessment Death or life depends on jury’s answers to issues Not covered; death automatic if guilty

11. Effective date provision: amendment to existing Penal Code effective until new Penal Code takes effect; then expires and amendment to new Penal Code applies Adopted Senate version Not covered

For an overview, see Comment, House Bill 200: The Legislative Attempt to Reinstate Capital Punishment in Texas, 11 Houston L.Rev. (January 1974) 410 ("Comment'), but be aware that some references to pages in the Senate Journal are in *749 error. See also legislative working materials appended hereto.