State v. McPherson
| Decision Date | 03 January 1992 |
| Docket Number | No. 07-91-0151-CR,07-91-0151-CR |
| Parties | The STATE of Texas, Appellant, v. Larry Eugene McPHERSON, Appellee. |
| Court | Texas Court of Appeals |
Randall L. Sherrod, Dist. Atty., John L. Davis, Asst. Dist. Atty., Canyon, for appellant.
Warren L. Clark, Amarillo, for appellee.
Before DODSON, BOYD and POFF, JJ.
On April 3, 1991, after his conviction of capital murder, appellee Larry Eugene McPherson was sentenced to death. During Do you find from the evidence, after considering fully the Defendant's mitigating evidence, if any, that the death penalty is a reasoned moral response to the Defendant's background, his character, and to the crime of which he was convicted?
the punishment phase of the trial, the three special issues mandated by article 37.071 of the Texas Code of Criminal Procedure were submitted to the jury. 1 Additionally, and over the objection of the State, a fourth issue was submitted. By the issue the jury was queried as follows
The jury answered the three special issues mandated by article 37.071 in the affirmative. The fourth special issue was answered in the negative. After receiving the answers to the issues, the trial court sentenced appellee to death.
Thereafter, appellee filed a motion for new trial, or in the alternative, to reform the judgment to provide for a life sentence. Based upon the jury's answer to the fourth special issue, the trial court granted that motion and reformed the death sentence to life imprisonment.
Initially, appellee had earlier filed a motion to dismiss the State's appeal on the ground that this court lacks jurisdiction. That motion was overruled without prejudice to reurging the matter upon submission of this appeal, and appellee now reurges that contention.
Courts of Appeals do not have appellate jurisdiction in criminal cases "in which the death penalty has been assessed." Tex.Code Crim.Proc.Ann. art. 4.03 (Vernon Supp.1991). It is also provided that "The appeal of all cases in which the death penalty has been assessed shall be to the Court of Criminal Appeals." Tex. Const. art. V § 5 (1981); Tex.Code Crim.Proc.Ann. art. 4.04 § 2 (Vernon Supp.1991). Thus, if this is a this court is without jurisdiction.
The words "has been assessed" constitute a present perfect verb form. The present perfect tense of a verb is formed with the helping verb "has" or "have." H. Ramsey Fowler, The Little, Brown Handbook, 187 (1986). The present perfect verb tense indicates action occurring in the past and continuing to the present. Webster's Secretarial Handbook 282 (2d ed., 1983). The past perfect tense is formed by use of the helping verb "had." H. Ramsey Fowler, The Little, Brown Handbook, 187 (1986). The past perfect tense indicates action completed at a past time or before the immediate past. Webster's Secretarial Handbook 282 (2d ed., 1983).
The phrase "cases in which the death penalty has been assessed" contains the present perfect verb tense. That being so, the cases "in which the death penalty has been assessed," within the purview of the above authorities, are cases in which the assessment occurred in the past and continues to the present. In the present case, although the judgment at one time did call for the death penalty, it was reformed and does not do so now.
The language of the constitution and statutes is presumed to have been selected with care. Gallagher v. State, 690 S.W.2d 587, 592 (Tex.Crim.App.1985); see Polk v. State, 676 S.W.2d 408, 410 (Tex.Crim.App.1984). We must presume the verb tense used in article V § 5 of the Texas Constitution and articles 4.03 and 4.04 of the Texas Code of Criminal Procedure was selected with care. Accordingly, the sentence before us is not one "in which the death penalty has been assessed" and over which the Court of Criminal Appeals has sole appellate jurisdiction. Appellee's motion to dismiss is overruled and we will proceed to consider the State's appeal.
In a single point, the State contends that the trial court erred in reforming appellee's sentence based on the jury's answer to the In the Penry case, the U.S. Supreme Court noted that a defendant might introduce mitigating evidence about his background, character or the circumstances of the crime that was not relevant to the special verdict questions of art. 37.071, or that had relevance to the defendant's moral culpability beyond the scope of the special verdict questions. Id. 492 U.S. at 321, 109 S.Ct. at 2948. The Court stated that in the absence of instructions informing the jury that it could consider and give effect to such mitigating evidence, a jury is not provided with "a vehicle for expressing its 'reasoned moral response' to that evidence in rendering its sentencing decision." Id. 492 U.S. at 328, 109 S.Ct. at 2951.
fourth special issue because the issue was not authorized by Texas law. In response, appellee asserts that the submission of the fourth issue is supported by Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).
In support of his response to the State's point of error, appellee argues that the Penry requirement of a "vehicle" to allow a jury to express its reasoned moral response to proper mitigating evidence is not limited to an instruction. He posits that a special issue may also provide such a "vehicle."
In considering the effect of the Penry decision, and of Penry-type mitigating evidence, our Court of Criminal Appeals in Gribble v. State, 808 S.W.2d 65, 76 (Tex.Crim.App.1990), cert. denied, 501 U.S. 1232, 111 S.Ct. 2856, 115 L.Ed.2d 1023 (1991), cited Penry and referred to its requirement of a "functionally equivalent instructive device" to allow the jury to properly consider, and give effect to, the Penry-type of mitigating evidence. Likewise, in Judge Benevides' concurring opinion in Richardson v. State, No. 68,934, slip op. at 3 1991 WL 99949 (Tex.Crim.App. June 12, 1991), in which the Court addressed a Penry-type situation, referred to the need for a jury instruction "or its functional equivalent." It is, of course, appellee's contention that the fourth special issue was functionally equivalent to a jury instruction and as such was permissible.
While it is true that a functional equivalent to an instruction might satisfy the Federal Penry requirement, under the relevant Texas statute, a special issue may not serve in that capacity. Texas Code Crim.Proc.Ann. art. 37.07 § 1(a) (Vernon 1981) 2 provides, "The verdict in every criminal action must be general." The three special issues mandated by art. 37.071 are an exception to the statutory prohibition of special issues. Harris v. State, 790 S.W.2d 568, 579 (Tex.Crim.App.1989); Stewart v. State, 686 S.W.2d 118, 124 (Tex.Crim.App.1984), cert. denied, 474 U.S. 866, 106 S.Ct. 190, 88 L.Ed.2d 159 (1985).
While we cannot say that a special issue would never be constitutionally necessary despite the statutory prohibition of art. 37.07 § 1(a), that is not the situation in this case. An instruction informing the jury that it could consider and give effect to Penry-type mitigating evidence would provide the jury with the mandated vehicle to allow the jury to express "its reasoned moral response" to such mitigating evidence. Penry v. Lynaugh, 492 U.S. at 328, 109 S.Ct. at 2952. Because a proper instruction serves the purposes delineated in Penry, a special issue is not constitutionally necessary, and thus, is not an exception to the statutory prohibition of art. 37.07.
Appellee also contends that the State has lost its right to raise purported error in the submission of the fourth special issue since the State (1) failed to object and (2) acquiesced in its submission. The State has filed a supplemental statement of facts which clearly shows that the State objected to the submission of the fourth special issue. That being so, appellee's first contention is without merit.
Appellee contends that by its conduct the State acquiesced in the submission of the fourth issue and has, therefore, lost its right to complain of that submission. The In support of his contention, appellee relies upon the decisions in Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981); Wilson v. State, 692 S.W.2d 661 (Tex.Crim.App.1984); and State v. Lee, 818 S.W.2d 778 (Tex.Crim.App.1991). However, those cases are distinguishable.
thrust of this assertion is that the State participated in the discussion of the wording of the issue. Indeed, appellee contends that the final wording of the issue was the result of the State's efforts in that discussion.
In the Steagald case, the government raised for the first time on appeal before the Supreme Court the argument that Steagald lacked an expectation of privacy in the house sufficient to prevail on a Fourth Amendment claim. The Court concluded that the government through its assertions, concessions and acquiescence, lost its right to challenge Steagald's assertion that he possessed a legitimate expectation of privacy in the searched home. Id.
The Court's holding was based upon the government's actions in (1) acquiescing in statements by the lower courts characterizing the search as being one of Steagald's residence, (2) arguing during trial and appeal that petitioner's connection with the searched home was sufficient to establish his constructive possession of the cocaine found in a suitcase in the closet of the house, (3) failing to file a cross-petition for certiorari suggesting, as later requested before the Supreme Court, remand for factual determination of the matter, but rather, arguing that further review was unnecessary, and (4) expressly representing in its opposition to certiorari that the searched home was petitioner's residence. Id.
In Lee, appellant had been charged with the offense of murder and was found guilty of the lesser-included...
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State v. McPherson
...the submission of the fourth punishment issue was not authorized by art. 37.071(b) and remanded for a new trial. State v. McPherson, 828 S.W.2d 81 (Tex.App.--Amarillo 1992). We granted the State's Petition for Discretionary Review to determine whether the Court of Appeals erred in ordering ......