Jurek v. State
| Citation | 522 S.W.2d 934 |
| Decision Date | 16 April 1975 |
| Docket Number | No. 49416,49416 |
| Parties | Jerry Lane JUREK, Appellant, v. The STATE of Texas, Appellee. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
George I. Middaugh & Emmett T. Summers, III, Cuero, for appellant.
Wiley L. Cheatham, Dist. Atty., Cuero, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.
The offense is murder; the punishment, under Article 1257, Vernon's Ann.P.C. 1 and Article 37.071, Vernon's Ann.C.C.P., 2 death.
The offense occurred in Cuero. The record reflects that after spending the late afternoon drinking beer, the 22 year old appellant made repeated efforts to engage 10 year old Wendy Adams in conversation at the Cuero City Park. They were next seen as appellant sped through town in his pickup, the child in back screaming for help. The pickup halted near Hell's Gate Bridge, which spans the Guadalupe River at the outskirts of Cuero, where appellant attempted to make sexual advances to the child. Rebuffed, he began to choke the girl. When she lost consciousness, he threw her into the river. The child's body was recovered from the river two days later.
We are met at the outset with appellant's contention that the assessment of the death penalty under Article 1257, supra, and Article 37.071, supra, is cruel and unusual punishment under the holding of the Supreme Court of the United States in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 32 L.Ed.2d 346, (1972), and the Eighth and Fourteenth Amendments of the United States Constitution.
Furman is lengthy and complex. There are nine separate opinions. Five Justices comprise the majority; four Justices dissenting. Of the five Justices who joined in the majority, no two concurred for the same reason. Such diversity makes generalization difficult. However, some conclusions may be drawn.
Two Justices in the majority concluded that the death penalty is cruel and unusual punishment under the Eighth Amendment. 3 Three other Justices, who concurred in the majority, did not conclude the death penalty was unconstitutional per se. Rather, they condemned as they see it, the arbitrary, capricious and standardless manner in which juries impose the death penalty. They rejected the concept of uncontrolled discretion in the jury to impose the death penalty or some lesser penalty. 4
Furman, then does not seem to ban the assessment of the death penalty per se or to eliminate all sentencing discretion. It seems reasonable to conclude that there are seven Justices--the four dissenters and these latter three members of the majority--who would permit the imposition of the death penalty, if the statutes under which it was imposed were properly drawn.
Article 1257, supra, and Article 37.071, supra, were enacted in response to Furman. The question before us is whether these statutes are valid under that holding. Do they provide effective guidance to the jury? Do they adequately limit the discretion of the jury? Do they guard against the arbitrary and standardless imposition of the death penalty?
We hold they do.
Article 1257, supra, states:
'(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 or employed another to commit 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) 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.
(d) 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.'
Article 37.071, supra, states:
'(a) Upon a finding that the defendant is guilty of a capital offense, the court shall conduct a separate sentencing proceeding to determine whether the defendant shall be sentenced to death or life imprisonment. The proceeding shall be conducted in the trial court before the trial jury as soon as practicable. In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence. This subsection may 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 the sentence of death.
(b) On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:
(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
(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.
(c) The state must prove each issue submitted beyond a reasonable doubt, and the jury shall return a special verdict of 'yes' or 'no' on each issue submitted.
(d) The court shall charge the jury that:
(1) it may not answer any issue 'yes' unless it agrees unanimously; and
(2) it may not answer any issue 'no' unless 10 or more jurors agree.
(e) If the jury returns an affirmative finding on each issue submitted under this article, the court shall sentence the defendant to death. If the jury returns a negative finding on any issue submitted under this article, the court shall sentence the defendant to confinement in the Texas Department of Corrections for life.
(f) The judgment of conviction and sentence of death shall be subject to automatic review by the Court of Criminal Appeals within 60 days after certification by the sentencing court of the entire record unless time is extended an additional period not to exceed 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.'
First, Article 1257, supra, limits the circumstances under which the State may seek the death penalty to a small group of narrowly defined and particularly brutal offenses. This insures that the death penalty will only be imposed for the most serious crimes. It also insures that the death penalty will only be imposed for the same type of offenses which occur under the same types of circumstances.
Article 37.071, supra, further limits the standardless imposition of the death penalty. It provides for a separate sentencing procedure to determine punishment, once the accused has been found guilty of a most serious crime. It limits the jury's discretion on the range of punishment to life imprisonment or death. A jury may no longer choose from a range of two years to life to death. Further, in order to impose the death penalty, the jury must find beyond a reasonable doubt and must respond affirmatively to two or three questions, depending on the circumstances. These questions direct and guide their deliberations. They channel the jury's consideration on punishment and effectively insure against the arbitrary and wanton imposition of the death penalty.
Lastly, the statute provides for swift and mandatory appellate review.
We reject appellant's contention that Article 37.071(b), supra, is too vague to provide adequate guidance to the jury. The fact that an exhaustive and precise list of factors is not specifically included does not indicate that the jury is without adequate guidelines. We are inclined to believe that the factors which determine whether the sentence of death is an appropriate penalty in a particular case are too complex to be compressed within the limits of a simple formula 5 However, there are some factors which are readily apparent and are viable factors for the jury's consideration. In determining the likelihood that the defendant would be a continuing threat to society, the jury could consider whether the defendant had a significant criminal record. It could consider the range and severity of his prior criminal conduct. It could further look to the age of the defendant and whether or not at the time of the commission of the offense he was acting under duress or under the domination of another. It could also consider whether the defendant was under an extreme form of mental or emotional pressure, something less, perhaps, than insanity, but more than the emotions of the average man, however inflamed, could withstand.
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