Whan v. State

• Decision Date: 28 June 1972
• Docket Number: No. 41789,41789
• Citation: 485 S.W.2d 275
• Parties: Tracey Virgil WHAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 275

485 S.W.2d 275

Tracey Virgil WHAN, Appellant, v. The STATE of Texas, Appellee.

No. 41789.

Court of Criminal Appeals of Texas.

June 28, 1972.

Rehearing Denied Oct. 11, 1972.

Frank Mabry, Forrest F. Baird, Houston, Mitchell, Gilbert & McLean, Austin, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough and Erwin G. Ernst, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

Appellant was convicted of murder with malice aforethought and his punishment was assessed at death. On appeal, this Court affirmed the conviction on February 26, 1969. Whan v. State, 438 S.W.2d 918 (Tex.Cr.App.1969). The United States Supreme Court granted appellant's petition for certiorari, and on June 28, 1971, ordered that 'The judgment of the Court of Criminal Appeals of Texas, insofar as it imposes the death sentence, be reversed, and that this cause be remanded to the Court of Criminal Appeals of Texas for further proceedings.' Whan v. Texas, 403 U.S. 946, 91 S.Ct. 2281, 29 L.Ed.2d 856 (1971).

The mandate of this Court affirming the judgment of the trial court was issued on April 25, 1969. Subsequently, on May 28, 1969, appellant was sentenced to death, sentence not having been passed prior to the disposition of appellant's appeal, pursuant to Art. 42.04, Vernon's Ann.C.C.P.

On December 28, 1971, Governor Preston Smith, acting upon the recommendation of the Board of Pardons and Paroles, granted appellant a commutation of sentence, from death to life imprisonment.

The question before the Court is the disposition to be made of the case at this point. It has been recently decided that this Court does not have the power to assess punishment at life imprisonment in cases where the death penalty has been assessed illegally by a jury, nor may this Court remand the case for assessment of punishment only, where the punishment was originally set by a jury. Ocker v. State, 477 S.W.2d 288 (Tex.Cr.App.1972). Therefore, it would not be proper for this Court to reverse the judgment of the trial court, insofar as it imposes the death penalty, and to reform the judgment so that punishment is assessed at life imprisonment.

We are also of the opinion that the Governor's commutation is valid, notwithstanding that the case is still pending before this Court. Art. IV, Sec. 11 of the Texas Constitution, Vernon's Ann.St. and Art. 48.01, V.A.C.C.P., provide:

'In all criminal cases, except treason and impeachment, the Governor shall have power, after conviction, on the written signed recommendation and advice of the Board of Pardons and Paroles, or a majority thereof, to grant reprieves and commutations of punishments and pardons . . ..'

In construing the meaning of the term After conviction, as used in the above provision, this Court stated, in the case of Snodgrass v. State, 67 Tex.Cr.R. 615, 150 S.W. 162 (1912):

'Under the common law, a person was said to be convicted of the crime when verdict was rendered thereon adjudging him guilty . . ..' at 172.

'The foregoing references show that the ordinary meaning of the word 'conviction' is the verdict of guilty pronounced by a jury.' at 173.

'Thus it is seen that the terms 'after conviction' in our Constitution do not embrace the sentence, but simply mean the determination of guilt or innocence of a defendant, and the person becomes subject to pardon whenever that issue is finally determined.' at 174.

Likewise, in Goss v. State, 107 Tex.Cr.R. 659, 298 S.W. 585 (1927), this Court stated:

'While in some sense the term 'conviction' applies to a final judgment of guilty, that term, as used in our Constitution, means a Verdict 'of guilty,' and a pardon granted pending appeal is valid.'

In addition, Art. 42.07, V.A.C.C.P., provides, in part:

'Before pronouncing sentence, the defendant shall be asked whether he has anything to say why the sentence should not be pronounced against him. The only reasons which can be shown, on account of which sentence cannot be pronounced are:

'1. That the defendant has received a pardon from the proper authority, on the presentation of which, legally authenticated, he shall be discharged. * * *'

This Article indicates that a pardon is valid even if granted before sentence is pronounced. The Governor's authority to grant commutations arises from the same Article of the Constitution as does his authority to grant pardons. It follows that a commutation under the same circumstances would likewise be valid, the punishment having been assessed before sentence is pronounced, and therefore subject to commutation.

We note that the United States Supreme Court ordered that the judgment of this Court be reversed 'insofar as it imposes the death sentence.' However, in light of our State procedure, we construe the order as reversing the affirmance, by this Court, of the Judgment of trial court (the sentence not having been imposed at the time of affirmance), and remanding the cause for further proceedings. In light of the Governor's commutation, we conclude that the proper course to follow is to again affirm the judgment of the trial court. The imposition of the death penalty is no longer possible by virtue of the commutation. However, a commutation does not affect the judgment, but merely mitigates the punishment which can be given. See Young v. Young, 61 Tex. 191 (1884). That being the case, no change in the original judgment is necessary. The Supreme Court reversed our affirmance only in regard to the death penalty. The Governor's commutation has rendered the death penalty portion of the trial court's judgment and subsequent sentence a nullity. Therefore, the proper course for this Court to follow is to again affirm the judgment of the trial court. By so doing, the order of the Supreme Court is satisfied.

The judgment is affirmed.

DOUGLAS, J., not participating.

ONION, Presiding Judge (dissenting).

On February 26, 1969, this court affirmed the conviction for murder wherein the death penalty was assessed by the jury. See Whan v. State, 438 S.W.2d 918 (Tex.Cr.App.1969). In affirming the conviction, this court concluded that the jury had not been selected in violation of the mandate of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). This opinion was handed down prior to the decisions in 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).

The United States Supreme Court granted this appellant's petition for writ of certiorari, and on July 23, 1971, ordered

'. . . that the judgment of the Court of Criminal Appeals of Texas, insofar as it imposes the death sentence, be reversed, and that this cause be remanded to the Court of Criminal Appeals of the State of Texas 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).'

Upon re-examination of the voir dire examination of the prospective jurors in light of Boulden v. Holman and Maxwell v. Biship, both supra, I am convinced that the judgment of affirmance heretofore rendered in this cause must be set aside and vacated pursuant to the mandate from the Supreme Court.

Where it is conceded that the mandate of Witherspoon has been violated, it has been the consistent policy of this court that, although the error is to penalty alone, the cause must be reversed for an entirely new trial. 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, far 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.' A jury alone may assess the death penalty. Jones v. State, 416 S.W.2d 412 (Tex.Cr.App.1967). Therefore, in each case where reversal has been predicated upon a Witherspoon error, the defendant has been entitled to a new trial where the issue of guilt is to be relitigated and where the jury, upon a finding of guilt, may consider the full range of penalty for murder in assessing punishment.

It would appear that this appellant would be entitled to such procedure except for the fact that on December 28, 1971, the Governor of Texas granted 'unto the said Tracey Virgil Whan the commutation of sentence from death to life imprisonment in the Texas Department of Corrections, . . ..'

The Governor acted upon the recommendation of the Board of Pardons and Paroles, who in turn acted upon the recommendations of the District Attorney, the District Judge and the Sheriff. These individuals apparently relied upon Attorney General's Opinion No. M--981 (Nov. 1, 1971).

The question presented is whether or not the Governor and the Board of Pardons and Paroles had the authority to take such action following the reversal of the case as to penalty by the Supreme Court and prior to any action by this court pursuant to the mandate of the Supreme Court.

The majority agrees that the Governor's action was proper, apparently equating 'commutation' with 'pardon'. I cannot agree.

Article IV § 11 of the Texas Constitution provides in part:

'In all criminal cases, except treason and impeachment, the Governor shall have power, After conviction, on the written signed recommendation and advice of the Board of Pardons and Paroles, or a majority thereof, to grant reprives and commutations of punishment and pardons; and under such rules as the Legislature may prescribe, and upon the written recommendation and advice of a majority of the Board of Pardons and Paroles, he shall have the power to remit fines and forfeitures. The Governor shall have the power to grant one reprieve in any capital case for a period not to exceed thirty (30) days; and he shall have power to revoke...