By: Turner S.B. No. 985
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.