Johnson v. State

CLINTON, Judge,

dissenting.

Article 37.071, § (b)(3) provides:

“On conclusion of the evidence, the court shall submit the following issues to the jury:

(1) * * *

(2) * * *

(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.” 1

The majority finds the evidence introduced by the State raised the issue, the statutory language is mandatory and the trial court erred in failing to submit the issue, but then says that there was a “waiver,” in that his counsel did not object, which saves a failure on the part of the trial court to do that which the statute mandates from being reversible error. I respectfully dissent.

No case cited by the majority defeats the ground of error. In Duffy v. State, 567 S.W.2d 197 (Tex.Cr.App.1978) the court proposed to submit the third Article 37.071(b) issue to the jury in terms precisely adapted from the statutory language, viz:

“Do you find from the evidence beyond a reasonable doubt whether the conduct of the defendant, Harvey Joseph Duffy, Jr., in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.”

Though the wording was called to his attention by the trial court, attorney for Duffy made no objection. 2 On direct appeal appellate counsel, who did not try the case, argued that by using “whether” instead of “that” the trial court made the issue so unclear, vague and inconclusive that an affirmative answer is similarly ambiguous. The Court rejected the contention on the legal theory that “acquiescence in and absence of an objection to the form of the charge waives all but fundamental error,” citing primarily Rummel v. State, 509 S.W.2d 630 (Tex.Cr.App.1974). 3 Still, secondarily, the Court went on to find “there is no error in this portion of the charge,” and then overruled the ground of error, id. 567 S.W.2d at 204 .

Martinez v. State, 576 S.W.2d 854 (Tex.Cr.App.1979), like all other decisions the Duffy Court directs the reader to see, involves an alleged faulty portion of the main charge on guilt-innocence. Even at that stage, however, as one of them confirms:

“This Court has consistently held that where no objection is made to the court’s charge ... a judgment will not be reversed on appeal because of error in the charge unless it appears that he has not *738 had a fair and impartial trial. * * * Thus, we are confronted with the question of whether the errors in the court’s charge constitute fundamental error.” Harris v. State, 522 S.W.2d 199, 201 (Tex.Cr.App.1975).

Here, though confronted with the exact same question, the majority does not address it. Rather, it changes the question to “whether the failure of the trial court to submit the instruction sua sponte constitutes reversible error,” and is content to say that it does not — “in the absence of a timely objection.” All of that strikes me as circular, and I will undertake to address headon the question of fundamental error.

“Fundamental error is presented where the error in the court’s instruction to the jury goes to the very basis of the case so that the charge fails to state and apply the law under which the accused is prosecuted. Harris v. State, 522 S.W.2d 199 (Tex.Cr.App.1975).” Martinez v. State, supra, at 855.

And to that general proposition the Martinez Court tied on the provision of Article 36.19, V.A.C.C.P., that though any requirement of Articles 36.14, 4 36.15, 5 36.16, 6 36.17 7 and 36.18, 8 V.A.C.C.P., be disregarded, yet the judgment is not to be reversed “unless the error . .. was calculated to injure the rights of the defendant, OR unless it appears from the record that the defendant has not had a fair and impartial trial.” The proposition stated in Harris and the provision of Article 36.19 just quoted were developed long before the Legislature bifurcated a trial into two phases: guilt-innocence and punishment. 9 But an error found in that portion of the unitary charge relating to assessing punishment could be, and often was, considered fundamental: e.g., Graham v. State, 29 Tex.App. 31 , 13 S.W. 1013 , 1014 10 (1890). Today, so far as I can determine, for the first time, we must examine the question in the context of a capital case with its own special issue submission adopted even more recently. 11

When the Supreme Court of the United States upheld the Article 37.071(b) portion of the Texas capital punishment scheme in Jurek v. Texas, 428 U.S. 262 , 96 S.Ct. 2950 , 49 L.Ed.2d 929 (1976) it wrote with respect to the first and third special issues:

“The Texas Court of Criminal Appeals has not yet construed the first and third questions; thus it is yet undetermined whether or not the jury’s consideration of *739 those questions would properly include consideration of mitigating circumstances. In at least some situations the questions could, however, comprehend such an inquiry. For example, the third question ... might be construed to allow the jury to consider circumstances which, though not sufficient as a defense to the crime itself, might nevertheless have enough mitigating force to avoid the death penalty.... We cannot, however, construe the statute; that power is reserved to the Texas Courts.” Id., at 272 , 96 S.Ct. at 2956, n. 7 .

Thus, though our statute does not explicitly prescribe mitigating circumstances in terms, the Supreme Court read issues one and three facially to admit a consideration by the jury of mitigating circumstances in some situations, and on that basis was able to uphold the entire scheme. Compare Lockett v. Ohio, 438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978).

That the constitutionality of our procedures turns on whether the questions allow consideration of particularized mitigating factors as ultimately construed by the Court was quickly perceived in, e.g., Brown v. State, 554 S.W.2d 677 (Tex.Cr.App.1977). The holding on Brown, supra, was expressly reaffirmed by this Court in Evans v. State, 601 S.W.2d 943 (Tex.Cr.App.1980), and the third issue was construed “to permit the jury to consider particularized mitigating circumstances” — there, as here, “the situation where the evidence raises an imperfect self-defense claim,” id., at 946 . The rationale is clear;

“The sole purpose of the punishment issues is to aid the jury in determining whether the proper punishment is life imprisonment or death. Because the provocation issue was not submitted, the jury failed to receive adequate guidance in its punishment deliberations, and its consideration of mitigating circumstances was limited. Such a result is contrary to this Court’s decision in Jurek v. State [, 522 S.W.2d 934 (Tex.Cr.App.)] and the Supreme Court’s decision in Jurek v. Texas.” 12

Jury consideration of mitigating circumstances inherent in the third special issue is, therefore, of constitutional dimension. 13 Its nature and quality are thus far above the level of quibbling over the “form” of the issue in Duffy and omitting what is essentially a precautionary limiting instruction in Ramirez. We deal here with the sine qua non of jury determination of death or life imprisonment — that the jury be given “adequate guidance in its punishment deliberations” that does not limit “its consideration of mitigating circumstances,” Evans, supra, at 946 . 14 In this light failure to provide the guidance mandated by a constitutionally ac *740 ceptable statute is fundamental error as we know it in Texas, for the error goes to the very basis of the punishment so that the charge fails to permit the jury to consider the circumstances constitutionally required for its imposition, 15 see Harris v. State, supra, and, therefore, we should sustain the third ground of error.

Returning to the question framed by the majority, if the majority continues to insist that is the question in the case, the answer is: “It depends.”

Assuming, as the majority apparently does, that the provisions of Articles 36.14-36.19, V.A.C.C.P., see notes 4-8, ante, are applicable to the mandates of Article 37.-071, supra, 16 Article 36.15 expressly provides that “both sides” may present “written instructions and ask that they be given to the jury.” Thus the prosecuting attorney in the case may well believe that the statutory direction that his “primary duty ... to see that justice is done,” Articles 2.01 and 2.03(b), Y.A.C.C.P., impels a request by him that the third issue be submitted. Moreover, it is clearly the duty of a judge presiding at a trial of a capital ease to “deliver to the jury ... a written charge distinctly setting forth the law applicable to the case...” Article 36.14, and to consider any requests for special charges, Article 36.15, incorporating those granted in the final charge, Article 36.16. Finally, should all such procedures be disregarded, it is for this Court to say whether one or more omissions injured the rights of an accused or deprived him of a fair and impartial trial, Article 36.19.

Thus, implicated more than a “right” an accused may be said to have waived, are respective duties of others, and in turn this Court, to safeguard the judicial process by which a citizen is condemned to death. See Taylor v. Kentucky, 436 U.S. 478, 489, n. 17 , 17 98 S.Ct. 1930, 1936, n. 17 , 56 L.Ed.2d 468 (1978); Jurek v. Texas, supra, 428 U.S. at 276 , 96 S.Ct. at 2958 . 18 We honor the “basic concept underlying the Eighth Amendment” — “the dignity of man” — Trop v. Dulles, 356 U.S. 86, 100 , 78 S.Ct. 590, 597 , 2 L.Ed.2d 630 (1958), in the doing.

ROBERTS, J., joins.

. All emphasis is mine unless otherwise indicated.

. See the sequel in Ex parte Duffy, 607 S.W.2d 507 (Tex.Cr.App.1980), which set aside the judgment of conviction and remanded Duffy to custody of the Sheriff to answer the indictment.

. In Rummel v. State, supra, on his plea of “True” the trial court submitted a charge on punishment that required the jury to assess punishment unless it found his special pleas “True,” and the jury so found. On appeal Rummel contended “the court erred in withdrawing the question of punishment from, and submitting only a charge as to the special pleas to the allegations of prior felony convictions to, the jury.” Noting that his trial counsel affirmatively stated “no objection,” the Court did make the point attributed to it by the majority, and overruled the ground of error because nothing was presented for review in respect to the charge.

. The charge of the court generally, and making objections thereto.

. Requested special charges.

. Final charge.

. Charge certified by Judge.

. Jury taking charge to juryroom.

. The legislative metamorphosis is reflected in contemporaneously rendered opinions of the Court: Ryan v. State, 64 Tex.Cr.R. 628 , 142 S.W. 878, 883 (1911); James v. State, 72 Tex. Cr.R. 457, 163 S.W. 61, 62, 63-64 (1914); and Wright v. State, 73 Tex.Cr.R. 178 , 163 S.W. 976, 977-978, 979-980 (1914); Quinn v. State, 164 Tex.Cr.R. 125 , 297 S.W.2d 157 (1957). As the last cited opinion read the predecessor to Article 36.19, supra, “It merely says that a disregard of the statute plus injury must be shown in order to bring about a reversal of the conviction,” Quinn, supra, 297 S.W.2d at 159 . Throughout, however, a constant exception to the legislative inhibition has been “unless fundamental error is presented,” Wright, supra, 163 S.W. at 978 , and Harris, supra.

. “It has been repeatedly held that if the charge incorrectly instructs as to the penalty for the offense, it is fundamental error, for which the conviction will be set aside although the error be not excepted to, and although it may be an error inuring to the benefit of the defendant [citing authorities].” See also Hargrove v. State, 30 S.W. 801 (Tex.Cr.App.1895) and the host of cases annotated at note 22 following Article 36.19, supra.

. In Williams v. State, 622 S.W.2d 116 (Tex.Cr.App.1981), upon which the majority also relies, the contention rejected for failure of Williams to comply with Articles 36.14 and 36.15, V.A.C.C.P., was that Article 37.071, V.A.C.C.P., is unconstitutional in that it makes no provision for instructing and directing the jury in its consideration of mitigating circumstances. Here, however, we deal with what is conceded to be a mandatory statutory provision that should have been included — not a general proposition devised by an appellant. Thus, I do not regard Williams as controlling in this quite different situation.

. While the Evans opinion goes on to hold that the trial court should have granted his request that the third issue be submitted to the jury, and does not intimate the result where, as here, an objection is not made, the Court reiterates the purpose of the punishment issues when it comes to rejecting the State’s contentions that reversible error was not shown, viz:

“The State’s argument ignores the purpose of the punishment issues. They cannot relieve a defendant of criminal liability; they serve only to guide the jury’s deliberations on punishment. That the deceased acted lawfully or that his conduct was reasonably foreseeable does not deprive appellant of his right to have the jury consider mitigating circumstances. The evidence raised the provocation issue, and it should have been submitted to the jury.”

. A portion of a guilt-innocence charge that is given may be constitutionally impermissible, if “plainly inconsistent” with an established principle, e.g., Cool v. United States, 409 U.S. 100 , 93 S.Ct. 354 , 34 L.Ed.2d 335 (1972) and Sandstrom v. Montana, 442 U.S. 510 , 99 S.Ct. 2450 , 61 L.Ed.2d 39 (1979); when collaterally attacked in a federal habeas corpus proceeding the test of an instruction given or omitted is whether it “so infected the entire trial that the resulting conviction violates due process,” Cupp v. Naughten, 414 U.S. 141, 147 , 94 S.Ct. 396, 400 , 38 L.Ed.2d 368 (1973); Henderson v. Kibbe, 431 U.S. 145, 156-157 , 97 S.Ct. 1730, 1738 , 52 L.Ed.2d 203 (1977).

.It is not enough, contrary to the argument by the State, that appellant’s trial counsel told the jury that provocation was relevant to the second issue of future dangerousness for “arguments of counsel cannot substitute for instructions by the court,” Taylor v. Kentucky, 436 U.S. 478, 488-489 , 98 S.Ct. 1930, 1936 , 56 L.Ed.2d 468 (1978).

. Like the State in its brief, the majority seems to view the provocation question as a “defensive issue” which an accused is “entitled” to have submitted if raised by the evidence. Both the Court and the Supreme Court saw it otherwise: an integral part of a constitutional scheme for directing and guiding deliberations of a capital jury to avoid an arbitrary, wanton and freakish imposition of the death penalty. Jurek v. State, 522 S.W.2d 934, 939 (Tex.Cr.App.1975); Jurek v. Texas, supra.

. Article 37.07, § 3(b), V.A.C.C.P., ties in “such additional written instructions as may be necessary” on punishment with rules “applicable on the issue of guilt or innocence.” Article 37.071, supra, however, does not; rather it is, so to speak, a formbook presentation of that which must be submitted to the jury. There is no mention of objections to or requested instructions for inclusion in the charge, nor any reference back to other procedural rules, and the Court has all but held in King v. State, 553 S.W.2d 105, 107-108 (Tex.Cr.App.1977) and Quinones v. State, 592 S.W.2d 933, 947 (Tex.Cr. App.1980) that additional charges are not required; see also Vigneault v. State, 600 S.W.2d 318, 329-330 (Tex.Cr.App.1980).

. The opinion of the Supreme Court by Justice Powell refers to admonishments in the ABA Project on Standards for Criminal Justice, Function of the Trial Judge, viz:

“The trial judge has the responsibility for safeguarding both the rights of the accused and the interests of the public in the administration of justice. The adversary nature of the proceedings does not relieve the trial judge of the obligation of raising on his own initiative, at all appropriate times and in an appropriate manner, matters which may significantly promote a just determination of the trial. * * * ”

. “By providing prompt judicial review of the jury’s decision in a court with statewide jurisdiction, Texas has provided means to promote the evenhanded, rational, and consistent imposition of death sentences under law.”