Jones v. State, 40175

Citation416 S.W.2d 412
Decision Date07 June 1967
Docket NumberNo. 40175,40175
PartiesDelbert Winston JONES, Appellant, v. The STATE of Texas, Appellee.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

Tom L. White, L. Holt Magee, Monahans, for appellant.

A. R. Archer, Jr., Dist. Atty., Monahans, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

WOODLEY, Presiding Judge.

The offense is murder; the punishment, life.

This case was tried after the effective date of the 1965 Vernon's Ann.Code of Criminal Procedure and prior to the decision of this Court in Rojas v. State, Tex.Cr.App., 404 S.W.2d 30, in which we held that the alternate procedure provided in Art. 37.07, Sec. 2, of said Code is not applicable in a capital case where the state is seeking the death penalty, and the punishment in such cases must be assessed by the jury and not the judge.

We reaffirm this holding, but point out, as we did in Williams v. State, Tex.Cr.App., 415 S.W.2d 917, this day decided, that a defendant pleading not guilty in a capital case where the state is seeking the death penalty is denied no constitutional or statutory right when, without objection or at his request, separate trials are had before the same jury on the issues of guilt or innocence and the punishment to be assessed.

The case before us is a capital case in which the District Attorney gave notice that the State would seek the death penalty. Without objection, the court submitted the issue of guilt or innocence of the defendant of the offense charged without authorizing the jury to pass upon the punishment to be assessed.

The jury having found appellant guilty of murder with malice, and appellant's counsel, after consulting with his client, having elected to have the court assess the punishment, the jury was discharged.

Prior to the hearing before the court on the question of punishment, appellant's counsel objected to proceeding further.

Appellant's objections and motions were overruled and the trial judge then proceded to hear evidence on the question of punishment and, at the conclusion of the hearing, assessed appellant's punishment at life.

In due time appellant filed motion in arrest of judgment which was overruled.

We are in accord with the trial court's holding that the constitutional right of trial by jury does not encompass the right to have the jury assess the punishment. 31 Am.Jur. 40; 50 C.J.S. Juries § 78, p. 784; Williams v. Jones, Ky., 338 S.W.2d 693, cert. denied 365 U.S. 847, 81 S.Ct. 808, 5 L.Ed.2d 811.

We also point out that the provision of Art. 693 C.C.P. (1925) which required that if the plea is not guilty, in addition to finding the defendant guilty or not...

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32 cases
  • Bullard v. State
    • United States
    • Texas Court of Criminal Appeals
    • February 16, 1977
    ...held that the constitutional right of trial by jury does not encompass the right to have the jury assess punishment. Jones v. State, 416 S.W.2d 412 (Tex.Cr.App.1967); Johnson v. State, 436 S.W.2d 906 (Tex.Cr.App.1968); Martin v. State, 452 S.W.2d 481 (Tex.Cr.App.1970); Green v. State, 474 S......
  • Harris v. State
    • United States
    • Texas Court of Criminal Appeals
    • September 23, 1970
    ...such as the case at bar. Rojas v. State, Tex.Cr.App., 404 S.W.2d 30; Williams v. State, Tex.Cr.App., 415 S.W.2d 917; Jones v. State, Tex.Cr.App., 416 S.W.2d 412; Wilhelm v. State, Tex.Cr.App., 426 S.W.2d 850; Pittman v. State, Tex.Cr.App., 434 S.W.2d 352. It was expressly amended in 1967 (A......
  • Brumfield v. State
    • United States
    • Texas Court of Criminal Appeals
    • March 19, 1969
    ...of capital cases where the State was seeking the death penalty. See also Williams v. State, Tex.Cr.App., 415 S.W.2d 917; Jones v. State, Tex.Cr.App., 416 S.W.2d 412; Wilhelm v. State, Tex.Cr.App., 426 S.W.2d 850; Vessels v. State, Tex.Cr.App., 432 S.W.2d In order to remedy this and other de......
  • Ex parte Giles
    • United States
    • Texas Court of Criminal Appeals
    • December 5, 1973
    ...(Tex.Cr.App.1970); Green v. State, 474 S.W.2d 212 (Tex.Cr.App.1971); Johnson v. State, 436 S.W.2d 906 (Tex.Cr.App.1968); Jones v. State, 416 S.W.2d 412 (Tex.Cr.App.1967), it is observed that an accused may have the jury assess punishment under the conditions prescribed in Article 37.07, Sec......
  • Request a trial to view additional results

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