Stanley v. State, s. 43907
| Decision Date | 06 December 1972 |
| Docket Number | Nos. 43907,42663,42605,39803,43602,41697,42743,42540,42306,44062,s. 43907 |
| Parties | Billy STANLEY, Appellant, v. The STATE of Texas, Appellee. Theo Ray THAMES, Appellant, v. The STATE of Texas, Appellee. Robert CURRY, Appellant, v. The STATE of Texas, Appellee. Roy Earl DAVID, Appellant, v. The STATE of Texas, Appellee. Reginald Edison WRIGHT, Appellant, v. The STATE of Texas, Appellee. Charles C. SMITH, Appellant, v. The STATE of Texas, Appellee. Cornelius TEA, Appellant, v. The STATE of Texas, Appellee. Elmer BRANCH, Appellant, v. The STATE of Texas, Appellee. Samuel MATTHEWS, Appellant, v. The STATE of Texas, Appellee. Leopoldo MORALES, Jr., Appellant, v. The STATE of Texas, Appellee. Arlice James HUFFMAN, Appellant, v. The STATE of Texas, Appellee. , and 42596. |
| Court | Texas Court of Criminal Appeals |
Melvin Bruder, Dallas, James R. Caton, Cleatus M. Phelan, McKinney, for Billy Stanley.
Tom Ryan, County Atty., Tom O'Connell, Asst. County Atty., McKinney, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
Will Gray, Houston, Dalton Gandy, Fort Worth, for Theo Ray Thames.
Frank Coffey, Dist. Atty., Truman Power, John Brady, and R. J. Adcock, Asst. Dist. Attys., Fort Worth, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
Walter S. Smith, Jr. (Court appointed on appeal), G. Stanley Rentz, Waco (Court appointed), for Robert Curry.
Martin D. Eichelberger, Dist. Atty., Frank M. Fitzpatrick, Jr., Kenneth H. Crow and James R. Barlow, Asst. Dist. Attys., Waco, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
Will Gray, Johnnie Abercia, Houston, for Roy Earl David.
Carol S. Vance, Dist. Atty., Phyllis Bell and Thomas C. Dunn, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
Will Gray, Houston, Jack Beech (on appeal only), Alfred J. Jackson, Fort Worth (court appointed), for Reginald Edison Wright.
Frank Coffey, Dist. Atty., Glenn Goodnight, Grady Hight, and Roger Crampton, Asst. Dist. Attys., Fort Worth, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
Marvin O. Teague, Houston (on appeal only), for Charles C. Smith.
Carol S. Vance, Dist. Atty., James C. Brough and Thomas C. Dunn, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
Will Gray, C. C. Divine, Houston, for Cornelius Tea.
Carol S. Vance, Dist. Atty., James C. Brough and Tom Dunn, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
Melvyn Carson Bruder, Barry P. Helft, Dallas, Charles Alan Wright, Austin, J. G. Souris, Vernon, for Elmer Branch.
Bill Neal, Dist. Atty., Vernon, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
John B. Patrick, Houston, for Samuel Matthews.
Wiley L. Cheatham, Dist. Atty., Cuero, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
Richard T. Marshall, and J. G. Lay, El Paso, for Leopoldo Morales.
Jamie C. Boyd, Dist. Atty., Thomas F. Keever, Asst. Dist. Atty., El Paso, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
David Ball, Jr., Houston (Court appointed), Will Gray, Houston, for Arlice James Huffman.
Carol S. Vance, Dist. Atty., James C. Brough and Erwin G. Ernst, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
These cases come to us on remand from the United States Supreme Court. All appellants were convicted of murder with malice except for Smith and Branch, who were convicted of rape, and punishment was assessed at death. These convictions have all been affirmed by this Court. 1 In Furman v. Georgia (Branch v. Texas), 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the United States Supreme Court held that the death penalty, as currently imposed, is unconstitutional.
Subsequently, Governor Preston Smith, acting upon the recommendation of the Board of Pardons and Paroles, has granted each appellant a commutation of sentence, from death to life imprisonment.
Appellants now contend that since the judgment was vacated by the United States Supreme Court, there exists no procedure to validly sentence them and, therefore, we should either grant them a new trial, permit them to be re-sentenced by a jury, or release them from custody.
We disagree. The Governor's commutation is valid. We are cognizant of the due process argument raised by appellants. The contention is that appellants have been deprived of their right to have a jury assess the punishment. We are not swayed by the out-of-state cases cited by appellants in support of their argument. See Anderson v. State, 267 So.2d 8 (Fla., 1972); In re Baker, 267 So.2d 331 (Fla., 1972); Huggins v. Commonwealth, Va., 191 S.E.2d 734 (1972); Beaver v. State, 475 S.W.2d 557 (Tenn.Sup.Ct.1971). We are further aware of appellants' argument that when the Governor and Board of Pardons and Paroles acted to commute the sentences, they did so without notifying appellants or their attorneys and thus denied them the right to be heard. Such a notification procedure is not necessary to effectuate either the Governor's or the Board's powers.
There is no reason to conclude that the Governor's constitutionally granted commutation powers are rendered invalid in such cases. This Court only recently dealt with this problem and we see no reason to depart from that holding. See Whan v. State, 485 S.W.2d 275 (Tex.Cr.App.1972).
The order of the Supreme Court is satisfied.
The judgments are affirmed.
ODOM, J., not participating in David and Tea.
DOUGLAS, J., not participating in Branch, Wright and Smith.
The cases at bar are in a somewhat different posture than Whan v. State, 485 S.W.2d 275 (Tex.Cr.App.1972) and related cases. In those cases, the United States Supreme Court reversed the judgments of this court insofar as the judgments imposed death sentences and remanded the causes to this court for 'further proceedings.' Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969) and Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970) were merely cited indicating the error as to penalty was in the method of jury selection in these cases where the death penalty was imposed.
This court had two choices open to it. It could have reviewed the record in each case in light of the authorities cited and reinstated the death penalty and again have affirmed the judgment, or if it determined there had in fact been a Witherspoon error, it could have remanded the causes to the trial court not for a re-sentencing or hearing on punishment, but for an entirely new trial on the issue of guilt as well as punishment where the death penalty would have been a possible penalty. Ellison v. State, 432 S.W.2d 955 (Tex.Cr.App.1968); Grider v. State, 468 S.W.2d 393 (Tex.Cr.App.1971); Ocker v. State, 477 S.W.2d 288 (Tex.Cr.App.1972). This is so, for as explained in Ellison v. State, supra, '. . . this court is without authority to direct a new trial before a different jury on the issue of punishment only.'
While Whan and related cases were pending in this court following remand, the Governor, acting upon the recommendation of the Board of Pardons and Paroles, 'commuted' the no longer existent death sentences to life imprisonment. The majority of the court then seized upon such action in order to affirm the convictions which would have otherwise been reversed. For the reasons set forth in my dissenting opinion in Whan v. State, supra, I disagree.
The day after the decision in Whan, the United States Supreme Court handed down its decision in Furman v. Georgia (), 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (June 29, 1972). This decision held the imposition of the death penalty to be cruel and unusual punishment under the Eighth and Fourteenth Amendments. Although it may be validly argued that the decision did not hold the death penalty unconstitutional per se, it must be conceded that the decision did declare the Texas procedure of assessing the extreme penalty unconstitutional. Cf. Attorney General's Opinion M--1187.
Branch and the other cases here involved were reversed and remanded to this court for further proceedings. See also Stewart v. Massachusetts, 408 U.S. 845, 92 S.Ct. 2845, 33 L.Ed.2d 744. The mandates of the Supreme Court were issued on August 4, 1972.
Even though the only error went to the penalty, the only recourse open to this court was to remand these cases to the trial courts for entirely new trials. Ellison v. State, supra.
While the cases here involved were pending before this court, the Governor acted to commute the death sentences no longer in existence to life sentences in each case.
Appellants contend that process used was not due. They point to the fact that at the time of the commutation the cases were pending before this court which is without authority to re-sentence, and they were entitled to an entirely new trial on the issues of guilt and punishment with the full range of alternative penalties available, and they were deprived of this right by the intrusion by the Governor into the judicial process which was a perverse extension of his constitutional authority amounting to ex post facto re-sentencing without due process; that since the death sentences had already been vacated (and could not...
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