Harris v. State

• Citation: 645 S.W.2d 447
• Decision Date: 09 February 1983
• Docket Number: No. 68900,68900
• Parties: Danny Ray HARRIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 447

645 S.W.2d 447

Danny Ray HARRIS, Appellant, v. The STATE of Texas, Appellee.

No. 68900.

Court of Criminal Appeals of Texas En Banc.

Feb. 9, 1983.

Lamar Hankins, William W. Vance, Bryan, for appellant.

Travis B. Bryan, III, Dist. Atty., Bryan, Anita Ashton, Sp. Asst. Dist. Atty., Austin, Robert Huttash, State's Atty., and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CLINTON, Judge.

Before us for automatic review, mandated by Article 37.071(f), V.A.C.C.P., is a conviction for capital murder under V.T.C.A. Penal Code, § 19.03(a)(2) and sentence of death assessed pursuant to Article 37.071(e), V.A.C.C.P. The victim was a motorist who had stopped to help appellant and his three companions, stranded outside Bryan. One of those companions, James Charles Manuel, appellant's codefendant, was convicted of capital murder and received a sentence of life imprisonment. Another, Curtis Paul Harris, appellant's brother, was tried separately, was convicted of capital murder, and a death sentence was assessed. His conviction was reversed by the Court, and the cause was remanded. Harris v. State, 642 S.W.2d 471 (Tex.Cr.App.1982). The remaining companion, Valarie Rencher, a juvenile at the time, testified for the State at both trials.

Appellant contends the action of the trial court in delivering on a Sunday the charge to the jury on punishment was an error requiring reversal. He relies upon Guerrera v. State, 136 Tex.Cr.R. 411, 125 S.W.2d 595 (1939), which cites Moss v. State, 131 Tenn. 94, 173 S.W. 859 for the rule that a court may not perform a judicial act on Sunday.

Dies dominicus non est juridicus. ¹ The dictum originated as a canon of early Christianity--first made in 517 A.D. Swann v. Broome, 3 Burrow 1595, 1598 (1764), 97 English Reports (King's Bench Book 26) 999, 1001. It and successor canons were received from Rome and adopted in Britain by Saxon Kings. Ibid. and State v. McElhinney, 88 Ohio App. 431, 100 N.E.2d 273, 278 (1950). In time those canons were transformed into constitutions by Edward the Confessor and, in turn, were confirmed by William the Conqueror and Henry the Second, and so became part of the common law of England. Swann v. Broome, supra, at 1598.

In the Declaration of Independence Texian revolutionaries made bitter charges against the religiosity of the military government of General Antonio Lopez de Santa Anna; ² when they came to deliberate on a new constitution, representative delegates required Presidential consent before any person was "permitted to perform divine service in the chamber occupied by the [Constitutional] Convention;" ³ they strongly stated ineligibility of ministers and priests to certain public office; ⁴ and they included an insistent declaration of impartiality among religions and personal freedom of worship. ⁵

The same attitude was prevalent when the Constitution of the State of Texas was adopted in 1845. See Article I, §§ 3 ⁶ and 4 ⁷ of Bill of Rights, and Article III, § 27. ⁸ See generally Church v. Bullock, 104 Tex. 1, 109 S.W. 115, 117-118 (1908). ⁹

In a related vein also to be noted is that reasonably diligent research reveals that "Sunday laws" were not enacted until December 16, 1863, 5 Gammel's Laws 690-691, and neither that Act nor any successors are intended or designed to prohibit judicial "work" on the Sabbath. See, e.g., Act of November 13, 1866, id., at 1137; Act of December 2, 1871, 7 Gammel's Laws 64; Chapter Two, P.C. 1925. Indeed, in Shearman v. State, 1 Tex.App. 215 (Ct.App.1876), the former court of appeals found they did not refer to proceedings in court; Stephens v. Porter, 29 Tex.Civ.App. 556, 69 S.W. 423 (1902, no writ history) held they did not apply to "an officer engaged in the performance of official duties," id., at 424. ¹⁰ They have since been removed from the penal Code. ¹¹

Notwithstanding such strongly demonstrated antipathy to mixing affairs of government and religion and a shared secularism in matters of state, some scattered opinions of our courts suggest that the founders of Texas and framers of its constitutions imported into the jurisprudence by way of the English common law that canon of religion which held Sunday is not a court day. However, the unique circumstances of and felt declarations surrounding the separation of Texians from the Mexican nation and establishment of form of government to their liking seem not to have been examined, nor has continued development of their constitution and laws been appreciated.

The Constitution of the Republic of Texas did indeed provide in Article IV, § 13:

"The Congress shall, as early as practicable, introduce, by statute, the common law of England, with such modifications as our circumstances, in their judgment, may require; and in all criminal cases the common law shall be the rule of decision." ¹²

Conformably, the first Congress introduced the common law of England "in its application to juries and to evidence" into the practice of the courts "so far as the same may not be inconsistent with this act, or any other law passed by this congress." "An Act Organizing the Inferior Courts ...," § 41, 1 Gammel's Laws 1208, 1216-1217. By the Act of January 20, 1840, the Congress further provided in Section 1:

"... That the Common Law of England (so far as it is not inconsistent with the Constitution or the Acts of Congress now in force) shall, together with such acts be the rule of decision in the Republic, and shall continue in full force until altered or repealed by Congress."

2 Gammel's Laws 177-178.

The following year the Supreme Court of Texas was called on to address the language of adoption in the Constitution and statutes. In The Republic v. Smith, Dallam's Digest 407 (1841), Dallam's Decisions 83, at 87-88, the Supreme Court concluded:

"But we cannot admit that in adopting the common law the convention intended thereby to adopt irrevocably the practice of the common law in criminal proceedings, and tie down the legislature of the country to the common law course in criminal proceedings: for we see that the very framers of the Constitution itself, after adopting the 'common law as the rule of decision in criminal proceedings,' have gone on and made considerable innovations in the practice of that very Code which they had just adopted. * * * It is our opinion, then, that the convention intended only to adopt the common law, to use their own language, 'as the rule of decision' in criminal proceedings; and no more of the forms and peculiar writs of that Code than might be found necessary to carry out the objects contemplated by that adoption."

Then, when the Supreme Court came to confront the term again, it confessed, "What is meant by 'the rule of decision' we do not pretend to say ...," The Indorsement Cases, 31 Tex. 693, 697 ¹³ (1869).

The constitutional and statutory provisions promulgated by the Republic turned out to be shortlived. The 1845 Constitution of the State of Texas omitted the command of Article IV, § 13, supra, ¹⁴ and did not contain any mention of incorporating the common law of England in either civil or criminal cases. See Article IV, 3 Vernon's Texas Constitution 551-554. ¹⁵ Implementing the requirement in Article 4, § 10 that in all criminal cases, except capital and where penalties were specifically imposed by law, the jury shall find and assess the punishment to be inflicted and fine imposed, the Legislature passed the Act of April 30, 1846, 2 Gammel's Laws 1467; it enacted a law regulating juries by the Act of May 4, 1846, id., 1476 ff; an Act to Regulate Proceedings in the District Courts was passed May 13, 1846, id., 1669 ff. ¹⁶

The First Legislature of the State of Texas imposed on the attorney general the duty to revise, digest and arrange the civil and criminal law and to lay before the next session of the Legislature his report. However, that project may have bogged down for the next session authorized the Governor to subscribe to a number of copies of a Digest of the Laws of Texas proposed to be published by O.C. Hartley, with the proviso that they be delivered to the Secretary of State within twelve months. Act of December 18, 1849, 3 Gammel's Laws 447-448. Hartley's Digest was published in 1850. However, soon a penal code and a code of criminal procedure were compiled by a commission, presented to the Legislature and by it adopted through passage of the Act of August 26, 1856.

Section 27 of the code of criminal procedure contained the pregenitor of present Article 1.27, V.A.C.C.P. It was amended, though, by the Act of February 15, 1858, and then provided:

"Whenever it is found that this Code fails to provide a rule of procedure in any particular state of case which may arise, and is therefore defective, the rules of the common law shall be applied and govern."

What had been an uncertain "rule of decision" now became a dormant rule of procedure. But, more importantly, Section 27 shifted the impact of the common law, moving it from being the "rule of decision" unless inconsistent with Texas law to a position of resort when the code of criminal procedure did not provide an applicable rule of procedure. Bloss v. State, 127 Tex.Cr.R. 216, 75 S.W.2d 694, 696 ¹⁷ (1934); see Robbins v. State, 73 Tex.Cr.R. 367, 166 S.W. 528, 529 ¹⁸ (1914). And early on quick resort to the common law was viewed with disdain. See, e.g., Leeper v. State, 29 Tex.App. 63, 14 S.W. 398 (Ct.App.1890):

"We shall not enter upon an investigation and review of authorities, for whatever may be the common-law rule, or the rule established by the decisions of other states, we consider that in the decision of this question we must be controlled by our statute. In this state for more than 30 years we have had a Penal Code and a Code of Criminal Procedure, which, having been carefully prepared by distinguished, experienced, and able jurists, were adopted by the legislature. .... We regard it as the imperative duty of this...