Ex parte Granviel

Decision Date01 February 1978
Docket NumberNo. 56267,56267
Citation561 S.W.2d 503
PartiesEx parte Kenneth GRANVIEL.
CourtTexas Court of Criminal Appeals

ONION, Presiding Judge.

This is a post-conviction habeas corpus proceeding under Article 11.07, V.A.C.C.P., in which petitioner seeks to set aside his death sentence and to have Article 43.14, V.A.C.C.P., establishing a new method of execution, declared unconstitutional. We stayed petitioner's execution scheduled for September 16, 1977, pending disposition of these proceedings. Petitioner's conviction for capital murder, wherein the death penalty was assessed, was affirmed by this court in Granviel v. State, 552 S.W.2d 107 (Tex.Cr.App.1976), cert. den. 431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 250 (1977).

Petitioner contends the new method of execution would subject him to cruel and unusual punishment prohibited by the Eighth Amendment, United States Constitution. See also Article I, § 13, Texas Constitution. He further urges said Article 43.14 is unconstitutionally infirm for vagueness for its failure to specify what substance or substances shall be used in the injection to execute a condemned prisoner that it results in an improper delegation of legislative authority to the Director of the Department of Corrections and is in irreconcilable conflict with Article 6166j, V.A.C.S. He further attacks the constitutionality of Article 37.071, V.A.C.C.P. 1

With the enactment of the amendment to Article 43.14, supra, on May 11, 1977, Texas became the second jurisdiction to provide statutorily for the execution of capital felony offenders by the intravenous injection of a lethal substance. A similar law was enacted in Oklahoma one day earlier. See 1977 Okla.Sess.Law Serv., ch. 41, § 1, at pp. 89-90, amending 22 O.S.1971, § 1014. 2

The amendment to said Article 43.14 reads:

"Whenever the sentence of death is pronounced against a convict, the sentence shall be executed at any time before the hour of sunrise on the day set for the execution not less than thirty days from the day of sentence, as the court may adjudge, by intravenous injection of a substance or substances in a lethal quantity sufficient to cause death and until such convict is dead, such execution procedure to be determined and supervised by the Director of the Department of Corrections." Acts 1977, 65th Leg., ch. 138, p. 287.

At the same time Article 43.18, V.A.C.C.P., was amended to permit the Director of the Department of Corrections to designate an executioner rather than serving as executioner. Acts 1977, 65th Leg., ch. 138, p. 288.

Thus, the Legislature sought to change the method of execution in this state from electrocution as formerly provided in said Article 43.14 3 and which has been the method of execution since 1923. 4

At the post-conviction habeas corpus hearing in the trial court, the State introduced into evidence the affidavit of W. J. Estelle, Jr., Director of the Department of Corrections:

"September 7, 1977

"Mr. Howard Fender

Assistant District Attorney

200 W. Belknap

Fort Worth, Texas

"Dear Mr. Fender:

"In response to your request, please be advised that pursuant to Vernon's Annotated Criminal Code of Procedure, Article 43.14, provides that the execution procedure will be determined by the Director of the Texas Department of Corrections. Your specific question of me asked 'What specific substance will be used in carrying out executions?' "After considerable consultation with people familiar with lethal substances, the decision has been made to use sodium thiopentol in lethal doses. It will be administered by medical technicians knowledgeable in such procedure and a medical doctor will be present, but will not participate in any aspect of the execution other than to pronounce death.

"Very truly yours,

"/s/ W. J. Estelle, Jr.

SWORN TO AND SUBSCRIBED BEFORE ME by the said W. J. Estelle, Jr., this 7th day of September, 1977.

"/s/ Dorothy Coleman

NOTARY PUBLIC in and for

Walker County, Texas"

The petitioner and the State jointly called as a witness Dr. Gary Harold Wimbish, a toxicologist with ten years' experience. Wimbish, an assistant professor of pathology at the Texas College of Osteopathic Medicine, testified he was certified by education and experience to determine what substance would be lethal to a human being. He explained that the drug sodium thiopental 5 was a paralytic agent, a rapidly acting barbiturate commonly used in pre-operative anesthesia. He stated a massive dosage of the drug would be calculated to kill any human if properly administered, and that records showed a lethal dosage of the drug ranges from two to five grams. 6 He explained that a solution of sodium thiopental in sterile water was commonly administered with syringe and needle and injected intravenously and that the only expected pain would be from the insertion of the needle. Wimbish further related that the drug is commonly administered by an anesthesiologist, who is a physician, but it could be administered by a registered nurse, L.V.N., medical technician or any person trained in intravenous injections. His conservative estimate was that unconsciousness would ensue within fifteen seconds after injection, the time it takes the blood of an individual to reach the brain from the elbow or site of injection, and if a lethal dosage was administered, death would occur within approximately thirty seconds, 7 a virtually painless death consistent with the intent of Article 43.14, supra. Dr. Wimbish noted a wide variety of poisons that could potentially cause death if injected into a human's bloodstream, but he indicated that sodium thiopental was a drug unique in its effect and onset of action, and if he had been consulted by Director Estelle he would not have advised against its use in executions but would have given it high priority in consideration. There was no other proof offered at the habeas corpus hearing.

Appellant urges the new method of execution provided by Article 43.14, supra, violates the Eighth Amendment provision against cruel and unusual punishment. See also Article I, § 13, Texas Constitution. The United States Supreme Court has always held that the imposition of the death penalty is not cruel and unusual punishment per se, Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 2954, 49 L.Ed.2d 929, 936 (1976); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859, 882-883 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 2964, 49 L.Ed.2d 913, 920 (1976); In re Kemmler, 136 U.S. 436, 447, 10 S.Ct 930, 34 L.Ed. 519 (1890); Wilkerson v. Utah, 99 U.S. 130, 25 L.Ed. 345 (1879), and the Court of Criminal Appeals has been in accord with such position. See, e. g., Livingston v. State, 542 S.W.2d 655, 662 (Tex.Cr.App.1976); Gholson and Ross v. State, 542 S.W.2d 395 (Tex.Cr.App.1976); Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975); Cherry v. State, 488 S.W.2d 744, 755 (Tex.Cr.App.1972), cert. den. 411 U.S. 909, 93 S.Ct. 1538, 36 L.Ed.2d 199 (1972); Tezeno v. State, 484 S.W.2d 374 (Tex.Cr.App.1972); David v. State, 453 S.W.2d 172, 179 (Tex.Cr.App.1970).

It is observed that the constitutionality of executions by hanging or firing squad (Wilkerson v. Utah, supra), by electrocution (In re Kemmler, supra) and by lethal gas (State v. Gee Jon, 46 Nev. 418, 211 P. 676, 682 (1923); People v. Daugherty, 40 Cal.2d 876, 256 P.2d 911, 922-923 (1953), cert. den. 346 U.S. 827, 74 S.Ct. 47, 98 L.Ed. 352 (1953); In re Anderson, 69 Cal.2d 613, 73 Cal.Rptr. 21, 34, 447 P.2d 117, 130 (1968), cert. den. 406 U.S. 971, 92 S.Ct. 2415, 32 L.Ed.2d 671 (1972)) have been upheld.

In Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464, 67 S.Ct. 374, 376, 91 L.Ed. 422 (1947), it was held:

". . . (t)he cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely."

In 30 A.L.R. 1452 it is stated:

"The punishment of death is not in violation of the constitutional prohibition of cruel or unusual punishments unless it is so inflicted that it involves lingering death, torture, or such practices as disgraced the civilization of former ages. So long as the death inflicted is speedy, and without undue pain or torture, the provision is not violated."

In State v. Woodward, 68 W.Va. 66, 69 S.E. 385 (1910), the court wrote:

". . . This interdict applies to such punishment as amounts to torture, like drawing, quartering, burning at stake, cutting off nose, arms, or limbs, starving to death, or such as were inflicted by the act of Parliament in 22 Henry VIII, whereby the prisoner was ordered to be thrown into boiling water and boiled to death for poisoning . . . The word 'cruel,' as used in the Constitution, was intended to prohibit torture, agonizing punishment, but never intended to 'abridge the selection of the lawmaking power of such kind of punishment as was deemed most effective in the suppression of crime'. . . ." See also State v. Williams, 77 Mo. 310, 312-313 (1883); In re Calhoun, 87 Ohio App. 193, 94 N.E.2d 388 (1949); Hart v. Commonwealth, 131 Va. 726, 109 S.E. 582, 587 (1921).

The intravenous injection of a lethal substance as a means of execution has not been heretofore utilized in this nation and is now authorized in only two states. The fact that it is new and innovative would not, however, make it cruel and unusual. What is cruel and unusual "is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice" and "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958). See also Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 290, ...

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