Bullard v. State

• Decision Date: 16 February 1977
• Docket Number: No. 51025,51025
• Citation: 548 S.W.2d 13
• Parties: Charles Edwin BULLARD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 13

548 S.W.2d 13

Charles Edwin BULLARD, Appellant, v. The STATE of Texas, Appellee.

No. 51025.

Court of Criminal Appeals of Texas.

Feb. 16, 1977.

Rehearing Denied March 9, 1977.

Pat McDowell, Dallas, for appellant.

Henry Wade, Dist. Atty., Steve Wilensky and Thomas F. Lillard, Asst. Dist. Attys., Dallas, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

In Bullard v. State, 533 S.W.2d 812 (Tex.Cr.App.1976), the conviction for felony theft was affirmed. Life imprisonment was assessed as punishment under the provisions of V.T.C.A., Penal Code, § 12.42(d). Although the conviction was affirmed, the cause was remanded for a new penalty hearing since one of the two prior convictions alleged for enhancement was not properly proven though utilized by the trial court in assessing punishment.

This appeal then is taken from the new penalty hearing ordered by this court where the trial court found the allegations in the indictment as to the prior convictions to be "true" and again assessed life imprisonment as punishment.

At the outset we shall consider appellant's contention that the trial court erred in denying appellant a jury trial at the new penalty hearing following remand.

Prior to such penalty hearing the appellant filed a motion requesting the withdrawal of his election under Article 37.07, Vernon's Ann.C.C.P., to have the judge assess punishment made at the original trial and requested the same jury at the guilt stage of the trial be empaneled to pass on punishment, or in alternative, that a new jury be empaneled for the purpose of the penalty hearing. The motion was overruled.

Appellant contends there were fact issues to be determined that is, the truth of the allegations as to the prior convictions alleged for the enhancement of punishment, and under the constitutional and statutory provisions of this State he was entitled to a jury trial following the remand. He acknowledges that Article 37.07, supra, provides for a bifurcated trial procedure, but questions its validity in light of State constitutional provisions.

Article I, § 15, of the Texas Constitution provides in part:

"The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency. . . . "

Article 1.12, Vernon's Ann.C.C.P., also provides that the right of trial by jury shall remain inviolate.

Article V, § 10, of the Texas Constitution provides:

"In the trial of all causes in the District Courts, the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury; but no jury shall be empaneled in any civil case unless demanded by a party to the case, a jury fee be paid by the party demanding a jury, for such sum, and with such exceptions as may be prescribed by the Legislature." (Emphasis supplied.) ¹

The foregoing State constitutional provisions have been held to only guarantee a trial by jury where one was provided for by common law or by a statute in effect when the Constitution was adopted in 1876. See Ex parte Garner, 93 Tex.Cr.R. 179, 246 S.W. 371 (1922); White v. White, 108 Tex. 570, 196 S.W. 508 (1917); Johnson v. State, 267 S.W. 1057 (Tex.Civ.App.1924), err. ref.; Walsh v. Spencer, 275 S.W.2d 220 (Tex.Civ.App.1955), reh. den.; Hickman v. Smith, 238 S.W.2d 838 (Tex.Civ.App.1951), err. ref.; Huguley v. Board of Adjustment of City of Dallas, 341 S.W.2d 212 (Tex.Civ.App.1960), reh. den.; Welch v. Welch, 369 S.W.2d 434 (Tex.Civ.App.1963); Hatten v. City of Houston, 373 S.W.2d 525 (Tex.Civ.App.1963), ref. n. r. e.; Swinford v. Logue, 313 S.W.2d 547 (Tex.Civ.App.1958); Smallwood v. Swarner, 510 S.W.2d 156 (Tex.Civ.App.1974), ref. n. r. e.; 35 Tex.Jur.2d, § 18, p. 53. See also 47 Am.Jur.2d, Jury, § 17, p. 639.

It has long been consistently held that the right to have the jury assess punishment was not part of the right to trial by jury at common law. Ex parte Marshall, 72 Tex.Cr.R. 83, 161 S.W. 112 (1913); Fogg v. Com., 215 Va. 164, 207 S.E.2d 847, 849 (1974); Hunter v. State, 496 S.W.2d 900 (Tenn.1972); Corlew v. State, 181 Tenn. 220, 180 S.W.2d 900 (1944); State v. Morton, 338 S.W.2d 858 (Mo.1960); State v. Hamey, 168 Mo. 167, 67 S.W. 620 (1902); Woods v. State, 130 Tenn. 100, 169 S.W. 558 (1914); Lee v. Buchanan, 264 S.W.2d 661 (Ky.1954); Ward v. Hurst, 300 Ky. 464, 189 S.W.2d 594 (1945); 47 Am.Jur.2d, Jury, § 50, p. 667.

It is clear that a defendant in a criminal case in Texas is not entitled to have a jury assess punishment because of any common law right derived through the Constitution of 1876.

The statute in effect at the time of the adoption of such Constitution relating to the assessment of punishment by a jury reads as follows (Article 626, C.C.P., 1859):

"The verdict in every criminal action, must be general; when there are special pleas upon which the jury are to find, they must say in their verdict that the matters alledged (sic) in such pleas are either true or untrue; where the plea is not guilty, they must find that the defendant is either 'guilty' or 'not guilty;' and in addition thereto they shall assess the punishment in all cases where the same is not absolutely fixed by law, to some particular penalty."

In 1876 there existed a unitary trial in criminal cases where the jury in its deliberations first passed on the issue of guilt or innocence, and if the accused was found guilty the jury then assessed punishment. Such unitary type jury trials continued in Texas until the effective date of the 1965 Code of Criminal Procedure (January 1, 1966), which included Article 37.07, Vernon's Ann.C.C.P. Such latter statute provided for the first time a bifurcated trial in criminal cases in Texas.

The question remaining is whether the statute in effect at the time of the adoption of the 1876 Constitution preserved the right to have the jury assess punishment in a criminal case.

In 47 Am.Jur.2d, Jury, § 50, p. 667, it is written:

"The constitutional right of trial by jury does not encompass the right to have the jury assess the punishment. The right is limited to the question of guilt or innocence, and does not extend to the determination of the term of imprisonment or punishment. This follows, since it was no essential part of a jury trial at common law that the jury should also fix the punishment if they convicted an accused.

"The adoption of a new Constitution preserving the right of trial by jury 'as heretofore enjoyed' has been construed not to include the right, which has existed by statute for many years, of having the jury assess the punishment in criminal cases whenever there is an alternative or discretion in regard to it. . . . " ²

In re Moynihan, 332 Mo. 1022, 62 S.W.2d 410, 91 A.L.R. 74 (1933), held that a constitutional provision that the right of trial by jury "as heretofore enjoyed" shall remain inviolate is to be construed as preserving the right to jury trial as that right came from the common law and from the territorial statutes, in exactly the same status as was guaranteed under the preceding constitutions, with the observation that it was not the particular statutory method of procedure in force at the time of the adoption of the present constitution that is guaranteed.

This is better explained in 47 Am.Jur.2d, Jury, § 18, p. 640, where it is pointed out that, generally speaking, the object of the constitutional provisions guaranteeing the right of trial by jury is to preserve the substance of the right rather than to prescribe the details of the methods by which it shall be exercised and enjoyed, and is not so inelastic as to render unchangeable every characteristic and detail of the common law system or statutory scheme in existence at the time of the adoption of the Constitution. The preservation of the right to trial by jury does not require that the old forms of practice and procedure be retained. "So long as the substance of the right to jury trial is maintained, the procedure by which this result is reached is wholly within the discretion of the legislature . . . ."

Long prior to the adoption of the bifurcated trial procedure in criminal cases (Article 37.07, supra), this court held that Article I, § 15, of the Texas Constitution did not preclude the Legislature from providing that the jury shall only pass on the question of guilt or innocence and that punishment shall be assessed by the court. See Ex parte Marshall, 72 Tex.Cr.R. 83, 161 S.W. 112 (1913).

Although the procedure in Article 37.07, supra, differs from that in 1876, we must determine if the substance of the right to trial by jury has been maintained.

Article 37.07, § 2, Vernon's Ann.C.C.P., as amended, in effect at the time of appellant's trial, provides:

"Sec. 2. (a) In all criminal cases, other than misdemeanor cases of which the justice court or municipal court has jurisdiction, which are tried before a jury on a plea of not guilty, the judge shall, before argument begins, first submit to the jury the issue of guilt or innocence of the defendant of the offense or offenses charged, without authorizing the jury to pass upon the punishment to be imposed.

"(b) Except as provided in Article 37.071 (Capital Murder), if a finding of guilty is returned, it shall then be the responsibility of the judge to assess the punishment applicable to the offense; provided, however, that (1) in any criminal action where the jury may recommend probation and the defendant filed his sworn motion for probation before the trial began, and (2) in other cases where the defendant so elects in writing at the time he enters his plea in open court, the punishment shall be assessed by the same jury. If a finding of guilty is returned, the defendant may, with the consent of the attorney for the state, change his election of one who assesses the punishment.

"(c) Punishment shall be assessed on each count on which a finding of guilty...