By:  Gallego                                           H.B. No. 798
       73R3952 GWK-F
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to sentencing procedures in capital felony cases for
    1-3  offenses committed before September 1, 1991, and to the reformation
    1-4  of a sentence or an award of a new trial in a capital felony case.
    1-5        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-6        SECTION 1.  Section 2, Article 37.071, Code of Criminal
    1-7  Procedure, is amended by adding Subsection (i) to read as follows:
    1-8        (i)  This article applies to the sentencing procedure in a
    1-9  capital case for an offense that is committed on or after September
   1-10  1, 1991.  For the purposes of this section, an offense is committed
   1-11  on or after September 1, 1991, if any element of that offense
   1-12  occurs on or after that date.
   1-13        SECTION 2.  Chapter 37, Code of Criminal Procedure, is
   1-14  amended by adding Article 37.0711 to read as follows:
   1-15        Art. 37.0711.  PROCEDURE IN CAPITAL CASE FOR OFFENSE
   1-16  COMMITTED BEFORE SEPTEMBER 1, 1991
   1-17        Sec. 1.  This article applies to the sentencing procedure in
   1-18  a capital case for an offense that is committed before September 1,
   1-19  1991, whether the sentencing procedure is part of the original
   1-20  trial of the offense, an award of a new trial for both the guilt or
   1-21  innocence stage and the punishment stage of the trial, or an award
   1-22  of a new trial only for the punishment stage of the trial.  For the
   1-23  purposes of this section, an offense is committed before September
   1-24  1, 1991, if every element of the offense occurs before that date.
    2-1        Sec. 2.  If a defendant is found guilty in a case in which
    2-2  the state does not seek the death penalty, the judge shall sentence
    2-3  the defendant to life imprisonment.
    2-4        Sec. 3.  (a)  If a defendant is tried for a capital offense
    2-5  in which the state seeks the death penalty, on a finding that the
    2-6  defendant is guilty of a capital offense, the court shall conduct a
    2-7  separate sentencing proceeding to determine whether the defendant
    2-8  shall be sentenced to death or life imprisonment.  The proceeding
    2-9  shall be conducted in the trial court and, except as provided by
   2-10  Article 44.29(c) of this code, before the trial jury as soon as
   2-11  practicable.  In the proceeding, evidence may be presented as to
   2-12  any matter that the court deems relevant to sentence.  This
   2-13  subsection shall not be construed to authorize the introduction of
   2-14  any evidence secured in violation of the Constitution of the United
   2-15  States or of this state.  The state and the defendant or the
   2-16  defendant's counsel shall be permitted to present argument for or
   2-17  against sentence of death.
   2-18        (b)  On conclusion of the presentation of the evidence, the
   2-19  court shall submit the following three issues to the jury:
   2-20              (1)  whether the conduct of the defendant that caused
   2-21  the death of the deceased was committed deliberately and with the
   2-22  reasonable expectation that the death of the deceased or another
   2-23  would result;
   2-24              (2)  whether there is a probability that the defendant
   2-25  would commit criminal acts of violence that would constitute a
   2-26  continuing threat to society; and
   2-27              (3)  if raised by the evidence, whether the conduct of
    3-1  the defendant in killing the deceased was unreasonable in response
    3-2  to the provocation, if any, by the deceased.
    3-3        (c)  The state must prove each issue submitted under
    3-4  Subsection (b) of this section beyond a reasonable doubt, and the
    3-5  jury shall return a special verdict of "yes" or "no" on each issue
    3-6  submitted.
    3-7        (d)  The court shall charge the jury that:
    3-8              (1)  it may not answer any issue submitted under
    3-9  Subsection (b) of this section "yes" unless it agrees unanimously;
   3-10  and
   3-11              (2)  it may not answer any issue submitted under
   3-12  Subsection (b) of this section "no" unless 10 or more jurors agree.
   3-13        (e)  The court shall instruct the jury that if the jury
   3-14  returns an affirmative finding on each issue submitted under
   3-15  Subsection (b) of this section, it shall answer the following
   3-16  issue:
   3-17        Whether, taking into consideration all of the evidence,
   3-18  including the circumstances of the offense, the defendant's
   3-19  character and background, and the personal moral culpability of the
   3-20  defendant, there is a sufficient mitigating circumstance or
   3-21  circumstances to warrant that a sentence of life imprisonment
   3-22  rather than a death sentence be imposed.
   3-23        (f)  The court shall charge the jury that, in answering the
   3-24  issue submitted under Subsection (e) of this section, the jury:
   3-25              (1)  shall answer the issue "yes" or "no";
   3-26              (2)  may not answer the issue "no" unless it agrees
   3-27  unanimously and may not answer the issue "yes" unless 10 or more
    4-1  jurors agree; and
    4-2              (3)  shall consider mitigating evidence that a juror
    4-3  might regard as reducing the defendant's moral blameworthiness.
    4-4        (g)  If the jury returns an affirmative finding on each issue
    4-5  submitted under Subsection (b) of this section and a negative
    4-6  finding on the issue submitted under Subsection (e) of this
    4-7  section, the court shall sentence the defendant to death.  If the
    4-8  jury returns a negative finding on any issue submitted under
    4-9  Subsection (b) of this section or an affirmative finding on the
   4-10  issue submitted under Subsection (e) of this section or is unable
   4-11  to answer any issue submitted under Subsection (b) or (e) of this
   4-12  section, the court shall sentence the defendant to confinement in
   4-13  the institutional division of the Texas Department of Criminal
   4-14  Justice for life.
   4-15        (h)  If a defendant is convicted of an offense under Section
   4-16  19.03(a)(6), Penal Code, the court shall submit the issues under
   4-17  Subsections (b) and (e) of this section only with regard to the
   4-18  conduct of the defendant in murdering the deceased individual first
   4-19  named in the indictment.
   4-20        (i)  The court, the attorney for the state, or the attorney
   4-21  for the defendant may not inform a juror or prospective juror of
   4-22  the effect of failure of the jury to agree on an issue submitted
   4-23  under this article.
   4-24        (j)  The Court of Criminal Appeals shall automatically review
   4-25  a judgment of conviction and sentence of death not later than the
   4-26  60th day after the date of certification by the sentencing court of
   4-27  the entire record, unless the Court of Criminal Appeals extends the
    5-1  time for an additional period not to exceed 30 days for good cause
    5-2  shown.  Automatic review under this subsection has priority over
    5-3  all other cases before the Court of Criminal Appeals, and the court
    5-4  shall hear automatic reviews under rules adopted by the court for
    5-5  that purpose.
    5-6        SECTION 3.  Article 44.251(a), Code of Criminal Procedure, is
    5-7  amended to read as follows:
    5-8        (a)  The court of criminal appeals shall reform a sentence of
    5-9  death to a sentence of confinement in the institutional division of
   5-10  the Texas Department of Criminal Justice for life if the court
   5-11  finds that there is insufficient evidence to support an affirmative
   5-12  answer to an issue submitted to the jury under Section 2(b),
   5-13  Article 37.071, or Section 3(b), Article 37.0711, <(b)> of this
   5-14  code or a negative answer to an issue submitted to a jury under
   5-15  Section 2(e), Article 37.071, or Section 3(e), Article 37.0711,
   5-16  <(e)> of this code.
   5-17        SECTION 4.  Article 44.29(c), Code of Criminal Procedure, is
   5-18  amended to read as follows:
   5-19        (c)  If any court sets aside or invalidates the sentence of a
   5-20  defendant convicted of an offense under Section 19.03, Penal Code,
   5-21  and sentenced to death on the basis of any error affecting
   5-22  punishment only, the court shall not set the conviction aside but
   5-23  rather shall commence a new punishment hearing under Article 37.071
   5-24  or Article 37.0711 of this code, as appropriate, as if a finding of
   5-25  guilt had been returned.  The court shall empanel a jury for the
   5-26  sentencing stage of the trial in the same manner as a jury is to be
   5-27  empaneled by the court in other trials before the court for
    6-1  offenses under Section 19.03, Penal Code.  At the new punishment
    6-2  hearing, the court shall permit both the state and the defendant to
    6-3  introduce evidence as permitted by Article 37.071 or Article
    6-4  37.0711 of this code.
    6-5        SECTION 5.  Notwithstanding Section 5, Chapter 838, Acts of
    6-6  the 72nd Legislature, Regular Session, 1991, the changes in law
    6-7  made by Section 2 of Chapter 838 to Subsections (b) and (c) of
    6-8  Article 44.29, Code of Criminal Procedure, and by Section 3 of
    6-9  Chapter 838 to Article 44.251, Code of Criminal Procedure, apply to
   6-10  an offense whether the offense is committed before, on, or after
   6-11  September 1, 1991.
   6-12        SECTION 6.  The change in law made by this Act applies to an
   6-13  offense whether committed before, on, or after the effective date
   6-14  of this Act.
   6-15        SECTION 7.  The importance of this legislation and the
   6-16  crowded condition of the calendars in both houses create an
   6-17  emergency and an imperative public necessity that the
   6-18  constitutional rule requiring bills to be read on three several
   6-19  days in each house be suspended, and this rule is hereby suspended,
   6-20  and that this Act take effect and be in force from and after its
   6-21  passage, and it is so enacted.