Ex parte Dowden, 59889

Citation580 S.W.2d 364
Decision Date02 May 1979
Docket NumberNo. 59889,59889
PartiesEx parte Billy Wayne DOWDEN, Appellant.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
OPINION

ONION, Presiding Judge.

These proceedings involve a post-conviction application for writ of habeas corpus under Article 11.07, V.A.C.C.P.

On April 30, 1975 the petitioner pled guilty to the indictment charging that he, acting together with Clifford S. Blansett, killed the deceased, Danny Gray, by shooting him with a gun, knowing and being informed that Gray was a peace officer. He waived trial by jury. Punishment was assessed by the court of life imprisonment. Apparently the State had entered a plea bargain to waive the death penalty. 1

The real thrust of his argument is that in a capital murder case an accused cannot waive trial by jury and the State may not waive the death penalty.

Article 1.14, V.A.C.C.P., provides:

"The defendant in a criminal prosecution for any offense may waive any rights secured him by law Except the right of trial by jury in a capital felony case." (Emphasis supplied.)

V.T.C.A., Penal Code, § 19.03, defines capital murder and provides in part:

"(a) A person commits an offense if he commits murder as defined under Section 19.02(a)(1) of this code and:

"(1) the person murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman;

"(2) * * *

"(b) An offense under this section is a capital felony.

"(c) If The jury does not find beyond a reasonable doubt that the defendant is guilty of an offense under this section, he may be convicted of murder or of any other lesser included offense." (Emphasis supplied.)

V.T.C.A., Penal Code, § 12.31, provides:

"(a) An individual adjudged guilty of a capital felony shall be punished by confinement in the Texas Department of Corrections for life or by death.

"(b) Prospective jurors shall be informed that a sentence of life imprisonment or death is mandatory on conviction of a capital felony. A prospective juror shall be disqualified from serving 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."

It is clear from a study of the Penal Code that capital murder is the only capital felony provided by such code. In the Practice Commentary to said § 19.03 it is written:

"Section 19.03 is a separate offense, punishable by a mandatory sentence of death or life imprisonment, see Section 12.31, and once an indictment is presented for capital murder the prosecutor may not waive the death penalty as he could under C.C.P. art. 1.14 before that article was amended by the Capital Felony Act of 1973. The offense's mandatory nature is the first of the constitutional bases touched by the legislature in recognition of the fact that three of the majority in Furman 2 objected to the death penalty essentially because of its discretionary application."

In Batten v. State, 533 S.W.2d 788 (Tex.Cr.App.1976), this court was confronted with an unusual fact situation. The trial judge took the position in that case that since the State had not filed a written notice that it would seek the death penalty within certain time limits the State had waived the death penalty. Overlooked was the fact that the statute on which the court relied had been amended and there was no longer such a requirement. The trial court ordered the trial to proceed as a capital murder trial but instructed the jury that the only possible penalty was life imprisonment. The trial court refused the defendant the procedures applicable to the trial of a capital felony case. The court refused the request for separate voir dire examination of the jurors and denied the defendant the fifteen peremptory challenges granted each party in a capital case under Article 35.15(a), V.A.C.C.P. Upon a finding of guilt, the court did not submit the special issues required by Article 37.071, V.A.C.C.P., but simply instructed the jury to assess life.

In Batten we held that the trial court erred in holding that the State had waived the death penalty and in limiting the number of peremptory challenges, etc., but then had to decide whether the error was reversible.

In Batten we stated:

"We agree that in the wake of Furman 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." 3

It is clear from what has been said that the State cannot waive the death penalty in capital murder cases, and that the petitioner could not validly waive the right to trial by jury. 4

The relief prayed for is granted, and petitioner is remanded to the custody of the Sheriff of Harris County to answer the indictment in Cause No. 225031 in the 182nd District Court.

It is so ordered.

ROBERTS, Judge, concurring.

As the majority ably points out, the plea bargain attempted in the present case is an impossibility for two statutory reasons: (1) An accused, in a capital felony case, cannot waive the right to trial by jury. Article 1.14, Vernon's Ann. C.C.P. (2) Capital murder is a separate offense, punishable by a mandatory sentence of death or life imprisonment and therefore, neither of these mandatory sentences can be waived by the State. V.T.C.A., Penal Code, Section 12.31.

In the present case, the State was not precluded from dismissing the capital felony indictment in order to proceed on an indictment or information for the lesser included offense of murder. Had this been done, a valid plea bargain could have been struck between the State and the appellant providing that in return for appellant's plea of guilty the State would recommend punishment at life imprisonment. Under our present capital felony scheme, this is the only possible way the State could have entered into a plea bargain such as the one sought in the present case.

For the reasons stated, I concur.

PHILLIPS and DALLY, JJ., join in this opinion.

DOUGLAS, Judge, dissenting.

The majority grants relief and holds that in a case where a capital offense is charged a defendant cannot waive a trial by jury after the State waives the death penalty. 1

V.T.C.A., Penal Code, Section 12.31(a), provides that the punishment for a conviction for capital murder under V.T.C.A., Penal Code, Section 19.03, is limited to either life imprisonment or death. Death, however, is the permissible punishment only if the jury answers "yes" to the questions set out in Article 37.071, V.A.C.C.P. In addition, Article 1.14, V.A.C.C.P., states that a defendant accused of capital murder may not waive his right to a jury.

Appellant relies on Batten v. State, 533 S.W.2d 788 (Tex.Cr.App.1976), for the proposition that the State may not waive the death penalty in a capital case.

Under the "category of cases" view, the five acts delineated as capital crimes are by their nature capital offenses regardless of whether the death penalty is to be imposed. Allen v. State, 552 S.W.2d 843 (Tex.Cr.App.1977); Batten v. State, supra. This reasoning, however, does not compel us to hold that the State may not waive the death penalty in a prosecution under V.T.C.A., Penal Code, Section 19.03, and no statute requires such a ruling.

The present Texas statutes relating to capital cases were passed in the wake of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and were an attempt by the Legislature to alleviate the constitutional infirmities of our former law, the most significant of which appeared to be unbridled discretion. This was also the reasoning behind the dictum in Batten v. State, supra. See Crump, Capital Murder in Texas, 14 Houston L.Rev. 531 (1977).

In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), which was decided after Batten, the Supreme Court of the United States clarified its views on prosecutorial discretion. The defendant argued that the Georgia capital murder statute was unconstitutional because the prosecutor had "unfettered authority to select those persons whom he wishes to prosecute for a capital offense and to plea bargain with them." He also complained of the jury's ability to convict only for a lesser included offense and the governor's authority to commute the sentence. In answering these contentions the Supreme Court wrote "In order to repair the alleged defects pointed to by the petitioner, it would be necessary to require that prosecuting authorities charge a capital offense whenever arguably there has been a capital murder and that they refuse to plea bargain with the defendant. If a jury refused to convict even though the evidence supported the charge, its verdict would have to be reversed and a verdict of guilty entered or a new trial ordered, since the discretionary act of jury nullification would not be permitted. Finally, acts of executive clemency would have to be prohibited. Such a system, of course, would be totally alien to our notions of criminal justice.

"Moreover, it would be unconstitutional. Such a system in many respects would have the vices of the mandatory death penalty statutes we hold unconstitutional today in ...

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