Allen v. State

• Decision Date: 29 June 1977
• Docket Number: No. 53654,53654
• Citation: 552 S.W.2d 843
• Parties: Michael Ray ALLEN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 843

552 S.W.2d 843

Michael Ray ALLEN, Appellant, v. The STATE of Texas, Appellee.

No. 53654.

Court of Criminal Appeals of Texas.

June 29, 1977.

Thomas M. Roberson, Houston, for appellant.

Carol S. Vance, Dist. Atty., Phyllis M. Bell and Robert C. Bennett, Jr., Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

Appellant was convicted by a jury for capital murder. See V.T.C.A., Penal Code, § 19.03(a)(2). The court assessed punishment at life imprisonment.

This appeal presents questions of procedure in capital murder cases where it is undisputed that the accused was under seventeen (17) years of age at the time of the commission of the offense. The appellant contends he was denied due process of the law and the right to a fair and impartial trial when the trial judge rather than the jury assessed punishment, and that the trial judge erred in permitting the State to proceed under a capital felony indictment.

Capital murder is a capital felony. V.T.C.A., Penal Code, § 19.03(b). An individual adjudged guilty of a capital felony is punishable by confinement in the Texas Department of Corrections for life or by death. V.T.C.A., Penal Code, § 12.31(a).

V.T.C.A., Penal Code, § 8.07(e), in effect at the time of the alleged offense and appellant's trial, however, provides:

"(e) No person may, in any case, be punished by death for an offense committed while he was younger than 17 years." ¹

The indictment, omitting the formal parts, alleged that the appellant on or about April 1, 1974:

"did then and there unlawfully and intentionally cause the death of Eric Siegfried, hereafter styled the Complainant, by shooting the Complainant with a gun, and the Defendant was in the course of committing and attempting to commit robbery. . . . "

At the trial it was stipulated by the appellant and the State that the appellant was sixteen (16) years of age on April 1, 1974, the date on which the alleged offense occurred. Attached to the written stipulation, approved by the court, was a certified copy of appellant's birth certificate showing that he was born on August 31, 1957. The stipulation thus established, without dispute, that the appellant was 16 years of age at the time of the commission of the alleged offense. ²

At the time of the entrance of his plea of not guilty, appellant requested that in the event of conviction the jury assess his punishment, and in addition, he filed a motion for probation before the jury. These measures would ordinarily entitle an accused to a jury at the penalty stage of a criminal trial on a non-capital charge. See Article 37.07, Vernon's Ann.C.C.P. After the conclusion of the guilt stage of the trial, the court submitted the case to the jury charging on capital murder and felony murder (V.T.C.A., Penal Code, § 19.02), etc. After the jury returned a verdict finding the appellant guilty of capital murder as charged in the indictment, the trial court discharged the jury and assessed punishment at life. There was no penalty stage of the trial.

Article 37.071, Vernon's Ann.C.C.P., is the applicable statute in capital murder cases. It provides in part:

"(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. . . . "

Article 37.071(b), (c) and (d) provide for certain issues to be submitted to the jury at the punishment hearing, the burden of proof on those issues, and the number of votes necessary for answering the issues. Article 37.071(e) requires the court to sentence the defendant to death if the jury returns affirmative findings to the issues submitted or to life imprisonment if any issue submitted is answered in the negative.

While V.T.C.A., Penal Code, § 12.31(a), provides that either life or death may be assessed for a capital felony as the instant offense, V.T.C.A., Penal Code, § 8.07(e) (now § 8.07(d)), provides that the death penalty cannot be imposed upon any person who was under 17 years of age at the time of the offense. Therefore, in the instant case life imprisonment was the only punishment that could be assessed since death was removed as a possible penalty, not by the action of the prosecutor, but the clear expression of the legislative will expressed in enacting said § 8.07, supra.

While a jury is ordinarily required in all capital murder cases at the "sentencing proceeding" by virtue of the provisions of Article 37.071, supra, ³ the very purpose of the jury at such stage of the bifurcated trial is to answer the special issues submitted to them. Dependent upon the answers, the court then, not the jury, assesses the punishment. However, in the instant case it would be irrelevant what evidence would have been offered or how the jury answered the issues submitted because the only permissible punishment was imprisonment for life. To hold that a jury was required to hear evidence and answer special issues in the instant case would be to require a useless thing. The law does not require a useless thing to be done. We do not believe the Legislature intended such result.

Appellant relies upon Batten v. State, 533 S.W.2d 788 (Tex.Cr.App.1976). We believe Batten to be distinguishable upon its facts. There an adult defendant was charged with capital murder. Prior to trial the court took the position the State had waived the death penalty since it had not filed written notice it would seek the death penalty, relying upon the provisions of Article 1.14, Vernon's Ann.C.C.P. Such statute had been amended in 1973 to eliminate the requirement of such written notice and the trial court was in error. Since the trial court no longer considered death a possible punishment, it refused to permit the defendant to exercise 15 peremptory challenges permitted in capital cases or to voir dire the prospective jurors individually apart from the entire panel. We concluded the trial court was in error. There we stated:

"We agree that in the wake of Furman (v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)) the Legislature has adopted a 'category of cases' view and has adopted a mandatory procedure to be followed in capital cases where the extreme penalties of death or life imprisonment are involved, and that it is not possible to say, absent a clear legislative expression, that the possibility of the imposition of the death penalty was the sole reason the Legislature mandated the procedure to be used in capital murder cases. Under the statutory scheme adopted, the State may not waive the death penalty, but even in cases such as the instant one where such waiver has been improperly permitted, the capital case procedures, including the right to fifteen peremptory challenges, are still applicable even though the only possible penalty under the circumstances would be life imprisonment."

In the instant case the trial court granted the appellant 15 peremptory challenges and allowed the prospective jurors to be examined individually and apart from the entire panel. As earlier noted, death was removed from the instant case not by the action of the trial court or the prosecution but by expression of the legislative will enacting V.T.C.A., Penal Code, § 8.07, and the undisputed evidence of appellant's age.

Consequently, in construing the statutes, including V.T.C.A., Penal Code, §§ 19.03, 12.31(a), 8.07(e) (now 8.07(d)) and Articles 37.071 and 1.14, Vernon's Ann.C.C.P., we hold that where an accused is convicted of capital felony at the guilt stage of the trial and it is undisputed that he was under 17 years of age at the time of the commission of the offense, ⁴ a trial judge does not err in excusing the jury at the penalty stage of the trial or "sentencing proceeding" and assessing the punishment at life imprisonment since that is the only punishment that can be assessed. ⁵ In effect, under the circumstances the punishment was fixed by law. See and cf. Zaragosa v. State,516 S.W.2d 685 (Tex.Cr.App.1974), and cases there cited.

Further, this court has recognized that an accused has no constitutional right to have a jury assess punishment. Martin v. State, 452 S.W.2d 481 (Tex.Cr.App.1970); Green v. State, 474 S.W.2d 212 (Tex.Cr.App.1971); Hall v. State, 475 S.W.2d 778 (Tex.Cr.App.1972); Emerson v. State, 476 S.W.2d 686 (Tex.Cr.App.1972); Johnson v. State, 492 S.W.2d 505 (Tex.Cr.App.1973); Hill v. State, 493 S.W.2d 847 (Tex.Cr.App.1973); Jones v. State, 502 S.W.2d 771 (Tex.Cr.App.1973); Ex parte Giles, 502 S.W.2d 774 (Tex.Cr.App.1973).

Appellant's initial contention is overruled.

Appellant next contends:

"The trial court committed reversible error when it allowed the state's attorney to proceed on a capital felony indictment."

Appellant takes the position that since he could not be legally executed because of V.T.C.A., Penal Code, § 8.07(e), the State should not have been allowed to proceed against him on the capital murder charge, but should have proceeded against him for non-capital murder under V.T.C.A., Penal Code, § 19.02. This question was decided adversely to appellant in Batten v. State, supra, where we held that the Legislature had adopted a "category of cases" view rather than a "penalty" view of the offense. Moreover, in those causes where an accused is charged with several crimes growing out of the same transaction under Article 21.24, Vernon's Ann.C.C.P., or is charged with one crime which includes lesser offenses under Article 37.09, Vernon's Ann.C.C.P., we know of no authority which would prohibit the State from seeking a conviction for the crime having the highest penalty. See, e. g., Stephens v. State, 522 S.W.2d 924 (Tex.Cr.App.1975).

We further observe that the trial court charged the jury both on the elements of...