1-1 By: Gallego, et al. (Senate Sponsor - Turner) H.B. No. 798
1-2 (In the Senate - Received from the House May 10, 1993;
1-3 May 11, 1993, read first time and referred to Committee on Criminal
1-4 Justice; May 25, 1993, reported favorably by the following vote:
1-5 Yeas 6, Nays 0; May 25, 1993, sent to printer.)
1-6 COMMITTEE VOTE
1-7 Yea Nay PNV Absent
1-8 Whitmire x
1-9 Brown x
1-10 Nelson x
1-11 Sibley x
1-12 Sims x
1-13 Turner x
1-14 West x
1-15 A BILL TO BE ENTITLED
1-16 AN ACT
1-17 relating to sentencing procedures in capital felony cases for
1-18 offenses committed before September 1, 1991, and to the reformation
1-19 of a sentence or an award of a new trial in a capital felony case.
1-20 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-21 SECTION 1. Section 2, Article 37.071, Code of Criminal
1-22 Procedure, is amended by adding Subsection (i) to read as follows:
1-23 (i) This article applies to the sentencing procedure in a
1-24 capital case for an offense that is committed on or after September
1-25 1, 1991. For the purposes of this section, an offense is committed
1-26 on or after September 1, 1991, if any element of that offense
1-27 occurs on or after that date.
1-28 SECTION 2. Chapter 37, Code of Criminal Procedure, is
1-29 amended by adding Article 37.0711 to read as follows:
1-30 Art. 37.0711. PROCEDURE IN CAPITAL CASE FOR OFFENSE
1-31 COMMITTED BEFORE SEPTEMBER 1, 1991
1-32 Sec. 1. This article applies to the sentencing procedure in
1-33 a capital case for an offense that is committed before September 1,
1-34 1991, whether the sentencing procedure is part of the original
1-35 trial of the offense, an award of a new trial for both the guilt or
1-36 innocence stage and the punishment stage of the trial, or an award
1-37 of a new trial only for the punishment stage of the trial. For the
1-38 purposes of this section, an offense is committed before September
1-39 1, 1991, if every element of the offense occurs before that date.
1-40 Sec. 2. If a defendant is found guilty in a case in which
1-41 the state does not seek the death penalty, the judge shall sentence
1-42 the defendant to life imprisonment.
1-43 Sec. 3. (a) If a defendant is tried for a capital offense
1-44 in which the state seeks the death penalty, on a finding that the
1-45 defendant is guilty of a capital offense, the court shall conduct a
1-46 separate sentencing proceeding to determine whether the defendant
1-47 shall be sentenced to death or life imprisonment. The proceeding
1-48 shall be conducted in the trial court and, except as provided by
1-49 Article 44.29(c) of this code, before the trial jury as soon as
1-50 practicable. In the proceeding, evidence may be presented as to
1-51 any matter that the court deems relevant to sentence. This
1-52 subsection shall not be construed to authorize the introduction of
1-53 any evidence secured in violation of the Constitution of the United
1-54 States or of this state. The state and the defendant or the
1-55 defendant's counsel shall be permitted to present argument for or
1-56 against sentence of death.
1-57 (b) On conclusion of the presentation of the evidence, the
1-58 court shall submit the following three issues to the jury:
1-59 (1) whether the conduct of the defendant that caused
1-60 the death of the deceased was committed deliberately and with the
1-61 reasonable expectation that the death of the deceased or another
1-62 would result;
1-63 (2) whether there is a probability that the defendant
1-64 would commit criminal acts of violence that would constitute a
1-65 continuing threat to society; and
1-66 (3) if raised by the evidence, whether the conduct of
1-67 the defendant in killing the deceased was unreasonable in response
1-68 to the provocation, if any, by the deceased.
2-1 (c) The state must prove each issue submitted under
2-2 Subsection (b) of this section beyond a reasonable doubt, and the
2-3 jury shall return a special verdict of "yes" or "no" on each issue
2-4 submitted.
2-5 (d) The court shall charge the jury that:
2-6 (1) it may not answer any issue submitted under
2-7 Subsection (b) of this section "yes" unless it agrees unanimously;
2-8 and
2-9 (2) it may not answer any issue submitted under
2-10 Subsection (b) of this section "no" unless 10 or more jurors agree.
2-11 (e) The court shall instruct the jury that if the jury
2-12 returns an affirmative finding on each issue submitted under
2-13 Subsection (b) of this section, it shall answer the following
2-14 issue:
2-15 Whether, taking into consideration all of the evidence,
2-16 including the circumstances of the offense, the defendant's
2-17 character and background, and the personal moral culpability of the
2-18 defendant, there is a sufficient mitigating circumstance or
2-19 circumstances to warrant that a sentence of life imprisonment
2-20 rather than a death sentence be imposed.
2-21 (f) The court shall charge the jury that, in answering the
2-22 issue submitted under Subsection (e) of this section, the jury:
2-23 (1) shall answer the issue "yes" or "no";
2-24 (2) may not answer the issue "no" unless it agrees
2-25 unanimously and may not answer the issue "yes" unless 10 or more
2-26 jurors agree; and
2-27 (3) shall consider mitigating evidence that a juror
2-28 might regard as reducing the defendant's moral blameworthiness.
2-29 (g) If the jury returns an affirmative finding on each issue
2-30 submitted under Subsection (b) of this section and a negative
2-31 finding on the issue submitted under Subsection (e) of this
2-32 section, the court shall sentence the defendant to death. If the
2-33 jury returns a negative finding on any issue submitted under
2-34 Subsection (b) of this section or an affirmative finding on the
2-35 issue submitted under Subsection (e) of this section or is unable
2-36 to answer any issue submitted under Subsection (b) or (e) of this
2-37 section, the court shall sentence the defendant to confinement in
2-38 the institutional division of the Texas Department of Criminal
2-39 Justice for life.
2-40 (h) If a defendant is convicted of an offense under Section
2-41 19.03(a)(6), Penal Code, the court shall submit the issues under
2-42 Subsections (b) and (e) of this section only with regard to the
2-43 conduct of the defendant in murdering the deceased individual first
2-44 named in the indictment.
2-45 (i) The court, the attorney for the state, or the attorney
2-46 for the defendant may not inform a juror or prospective juror of
2-47 the effect of failure of the jury to agree on an issue submitted
2-48 under this article.
2-49 (j) The Court of Criminal Appeals shall automatically review
2-50 a judgment of conviction and sentence of death not later than the
2-51 60th day after the date of certification by the sentencing court of
2-52 the entire record, unless the Court of Criminal Appeals extends the
2-53 time for an additional period not to exceed 30 days for good cause
2-54 shown. Automatic review under this subsection has priority over
2-55 all other cases before the Court of Criminal Appeals, and the court
2-56 shall hear automatic reviews under rules adopted by the court for
2-57 that purpose.
2-58 SECTION 3. Article 44.251(a), Code of Criminal Procedure, is
2-59 amended to read as follows:
2-60 (a) The court of criminal appeals shall reform a sentence of
2-61 death to a sentence of confinement in the institutional division of
2-62 the Texas Department of Criminal Justice for life if the court
2-63 finds that there is insufficient evidence to support an affirmative
2-64 answer to an issue submitted to the jury under Section 2(b),
2-65 Article 37.071, or Section 3(b), Article 37.0711, <(b)> of this
2-66 code or a negative answer to an issue submitted to a jury under
2-67 Section 2(e), Article 37.071, or Section 3(e), Article 37.0711,
2-68 <(e)> of this code.
2-69 SECTION 4. Article 44.29(c), Code of Criminal Procedure, is
2-70 amended to read as follows:
3-1 (c) If any court sets aside or invalidates the sentence of a
3-2 defendant convicted of an offense under Section 19.03, Penal Code,
3-3 and sentenced to death on the basis of any error affecting
3-4 punishment only, the court shall not set the conviction aside but
3-5 rather shall commence a new punishment hearing under Article 37.071
3-6 or Article 37.0711 of this code, as appropriate, as if a finding of
3-7 guilt had been returned. The court shall empanel a jury for the
3-8 sentencing stage of the trial in the same manner as a jury is to be
3-9 empaneled by the court in other trials before the court for
3-10 offenses under Section 19.03, Penal Code. At the new punishment
3-11 hearing, the court shall permit both the state and the defendant to
3-12 introduce evidence as permitted by Article 37.071 or Article
3-13 37.0711 of this code.
3-14 SECTION 5. Notwithstanding Section 5, Chapter 838, Acts of
3-15 the 72nd Legislature, Regular Session, 1991, the changes in law
3-16 made by Section 2 of Chapter 838 to Subsections (b) and (c) of
3-17 Article 44.29, Code of Criminal Procedure, and by Section 3 of
3-18 Chapter 838 to Article 44.251, Code of Criminal Procedure, apply to
3-19 an offense whether the offense is committed before, on, or after
3-20 September 1, 1991.
3-21 SECTION 6. The change in law made by this Act applies to an
3-22 offense whether committed before, on, or after the effective date
3-23 of this Act.
3-24 SECTION 7. The importance of this legislation and the
3-25 crowded condition of the calendars in both houses create an
3-26 emergency and an imperative public necessity that the
3-27 constitutional rule requiring bills to be read on three several
3-28 days in each house be suspended, and this rule is hereby suspended,
3-29 and that this Act take effect and be in force from and after its
3-30 passage, and it is so enacted.
3-31 * * * * *
3-32 Austin,
3-33 Texas
3-34 May 25, 1993
3-35 Hon. Bob Bullock
3-36 President of the Senate
3-37 Sir:
3-38 We, your Committee on Criminal Justice to which was referred H.B.
3-39 No. 798, have had the same under consideration, and I am instructed
3-40 to report it back to the Senate with the recommendation that it do
3-41 pass and be printed.
3-42 Whitmire,
3-43 Chairman
3-44 * * * * *
3-45 WITNESSES
3-46 FOR AGAINST ON
3-47 ___________________________________________________________________
3-48 Name: Peggy Griffey x
3-49 Representing: Office of the Attorney Gen.
3-50 City: Austin
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