Green v. State

BAIRD, Judge,

concurring.

In points of error eight, nine, and ten, appellant contends the current capital punishment scheme is unconstitutional as applied. 1 Although the majority holds appellant’s constitutional challenge at trial “was too general to preserve the claims he now advances on appeal,” 912 S.W.2d at 195, it nevertheless addresses the merits of appellant’s points of error, resolving them in short order. Because this is the first challenge to the constitutionality of Tex.Code Crim.Proc. Ann. art. 37.071, after the September 1,1991 amendments, I believe the bench and bar are entitled to an informed and thoughtful analysis of the issues presented. Therefore, I write separately.

I.

To address the constitutionality of a capital punishment scheme under the Eighth Amendment, we must address two aspects of the capital decision-making process: the eligibility decision and the selection decision. Tuilaepa v. California, — U.S. -,-, 114 S.Ct. 2630, 2634 , 129 L.Ed.2d 750 (1994).

A.

First, a capital sentencing scheme must narrow the category of persons convicted of murder who are eligible for the death penalty. Zant v. Stephens, 462 U.S. 862, 875 , 103 S.Ct. 2733, 2741 , 77 L.Ed.2d 235 (1983). See, Lowenfield v. Phelps, 484 U.S. 231, 244 , 108 S.Ct. 546, 554 , 98 L.Ed.2d 568 (1988) (To pass constitutional muster, a capital sentencing scheme must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.) Thus, to be constitutional, a capital sentencing scheme must require proof of murder and at least one “aggravating circumstance.” Tuilaepa , — U.S. at - — -, 114 S.Ct. at 2634 . The aggravating circumstance may not be vague, Godfrey v. Georgia, 446 U.S. 420, 428 , 100 S.Ct. 1759, 1764-1765 , 64 L.Ed.2d 398 (1980), and must be such that the capital murder is distinguished from the offense of murder. Arave v. Creech, 507 U.S. 463, 473-74 , 113 S.Ct. 1534, 1542 , 123 L.Ed.2d 188 (1993).

The Texas capital punishment scheme meets the constitutional requirements concerning the “eligibility decision.” Tex.Penal Code Ann. § 19.03 distinguishes capital murder from murder by requiring an aggravating circumstance. These aggravating circumstances include: the murder of a police officer or fireman in the lawful discharge of their duties, § 19.03(a)(1); murder in the course of committing kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, § 19.03(a)(2); murder for remuneration or the employment of another to commit murder, § 19.03(a)(3); murder of a prison official during the defendant’s incarceration, murder of another prisoner while incarcerated for capital murder, or murder committed while attempting to escape incarceration, § 19.03(a)(4) and (5); multiple murders, § 19.03(a)(7); and, the murder of a child, § 19.03(a)(8).

Our Legislature’s requirement that the State prove one of the circumstances enumerated in § 19.03 “genuinely [narrows] the *197 class of death-eligible persons,” Lowenfield, 484 U.S. at 245 , 108 S.Ct. at 554 , directing and limiting the jury’s discretion so as to “minimize the risk of wholly arbitrary and capricious action.” Gregg v. Georgia, 428 U.S. 153, 189 , 96 S.Ct. 2909, 2932 , 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell and Stevens, JJ.). See also, Zant, 462 U.S. at 874 , 103 S.Ct. at 2741 . Thus our capital sentencing scheme passes constitutional muster with respect to the “eligibility decision.”

B.

While the State must provide some standardized criteria to limit those persons eligible for capital punishment, the sentencer must further make an individualized determination of the appropriateness of capital punishment, considering the character of the individual and the circumstances of the crime. Tuilaepa , — U.S. at -, 114 S.Ct. at 2635 . The jury must be allowed to consider all relevant mitigating evidence, Lockett v. Ohio, 438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978) and, Blystone v. Pennsylvania, 494 U.S. 299, 303 , 110 S.Ct. 1078, 1081 , 108 L.Ed.2d 255 (1990), and have a vehicle to give effect to that evidence. Penry v. Lynaugh, 492 U.S. 302, 317 , 109 S.Ct. 2934, 2946 , 106 L.Ed.2d 256 (1989). See also, Johnson v. Texas, 509 U.S. -,-, 113 S.Ct. 2658, 2669 , 125 L.Ed.2d 290 (1993).

The Texas capital sentencing scheme provides the following punishment issues:

(1) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and

(2) in cases in which the jury charge at the guilt or innocence stage permitted the jury to find the defendant guilty as a party ... whether the defendant actually caused the death of the deceased, or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken.

Art. 37.071(2)(b). Further, if the jury affirmatively answers those issues, it must then consider the following issue:

Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant’s character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.

Art. 37.071(2)(e).

The punishment issues submitted under section (2)(b) allow the jury to consider the defendant’s character and record, as well as the circumstances of the crime. Indeed, the future dangerousness issue was approved by the Supreme Court in Jurek v. Texas, 428 U.S. 262, 276 , 96 S.Ct. 2950, 2958 , 49 L.Ed.2d 929 (1976). And in Franklin v. Lynaugh, 487 U.S. 164 , 108 S.Ct. 2320 , 101 L.Ed.2d 155 (1988), and Johnson v. Texas, 509 U.S. -, 113 S.Ct. 2658 , 125 L.Ed.2d 290 (1993), the Supreme Court held such an issue allowed for the individualized determination of the appropriateness of capital punishment in the vast majority of capital cases. Franklin, 487 U.S. at 177 , 108 S.Ct. at 2329 ; Johnson , 509 U.S. at -, 113 S.Ct. at 2669.

Moreover, the enactment of an additional punishment issue, focusing the jury’s consideration only on the defendant’s actions, serves to ensure such an individualized determination. The enactment of art. 37.071(2)(e) was reasonable in light of Penny’s holding that our capital sentencing scheme may be unconstitutional as applied because it did not allow the jury to give effect to certain types of mitigating evidence. Penry, 492 U.S. at 317 , 109 S.Ct. at 2946 . This punishment issue does not limit the jury’s ability to make an individualized determination of the appropriateness of capital punishment. Indeed, in State v. McPherson, 851 S.W.2d 846 (Tex.Cr. App.1992), we held a similar punishment issue corrected the constitutional infirmities identified in Penry . Thus the “selection decision” to be made under the Texas capital sentencing scheme passes constitutional muster.

II.

Appellant contends the Legislature’s deletion of the “deliberateness issue” renders our capital sentencing scheme unconstitutional as applied, because the jury was not allowed to *198 consider the circumstances of the offense during its deliberations. I disagree. We have held the circumstances of a capital offense are relevant to the determination of the probability the defendant will commit future violent acts. Art. 37.071(2)(b)(l). See e.g., Willingham v. State, 897 S.W.2d 351 (Tex.Cr. App.1995); and, Hughes v. State, 897 S.W.2d 285 (Tex.Cr.App.1995). And further, to the extent that the circumstances of the offense are mitigating, the “Penry ” issue specifically allowed the jury to consider and give effect to such evidence. Art. 37.071(2)(e). Thus, our capital sentencing scheme satisfies the constitutional requirements for a “selection decision,” because it requires the jury to make an mdividualized determination of the appropriateness of capital punishment, considering the character of the individual and the circumstances of the crime. Tuilaepa , — U.S. at -, 114 S.Ct. at 2635 .

III.

The Texas capital sentencing scheme narrows the class of persons eligible for capital punishment, and insures capital defendants an individualized determination of the circumstances of their offense, character and record. See, Tuilaepa, supra. Further, the scheme provides a vehicle for the jury to consider and give effect to all relevant mitigating evidence which militates against the ultimate punishment. See, Penry, supra. Thus, the Texas capital sentencing scheme is not unconstitutional.

With these comments I join only the judgment of the Court, and I join Judge Over-street’s concurring opinion.

OVERSTREET, J., joins this opinion.

. Appellant’s points of error state:

POINT OF ERROR EIGHT THE TEXAS DEATH PENALTY STATUTE IS UNCONSTITUTIONAL AS APPLIED TO APPELLANT IN THAT IT FAILED TO NARROW THE SENTENCER’S DISCRETION AS A RESULT OF DELETION OF THE "DELIBERATENESS" SPECIAL ISSUE.

POINT OF ERROR NINE THE TEXAS DEATH PENALTY STATUTE IS UNCONSTITUTIONAL AS APPLIED TO APPELLANT IN THAT IT WHOLLY FAILS TO CHANNEL THE SENTENCER'S DISCRETION BY CONSIDERATION OF THE UNDERLYING CRIME OR OFFENSE.

POINT OF ERROR TEN THE TEXAS DEATH PENALTY STATUTE IS UNCONSTITUTIONAL AS APPLIED TO APPELLANT IN THAT THE “FUTURE DANGEROUSNESS" SPECIAL ISSUE DOES NOT ENCOMPASS CONSIDERATION OF THE ACT OR CONDUCT THAT FORMED THE BASIS OF CONVICTION IN ANY MEANINGFUL OR STANDARDIZED MANNER.