By: Turner S.B. No. 1241
A BILL TO BE ENTITLED
AN ACT
1-1 relating to sentencing procedures in capital felony cases for
1-2 offenses committed before September 1, 1991.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 2, Article 37.071, Code of Criminal
1-5 Procedure, as added by Chapter 652, Acts of the 72nd Legislature,
1-6 Regular Session, 1991, is amended by adding Subsection (i) to read
1-7 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 subsection, an offense is committed before
2-1 September 1, 1991, if every element of the offense occurs before
2-2 that date.
2-3 Sec. 2. If a defendant is found guilty in a case in which
2-4 the state does not seek the death penalty, the judge shall sentence
2-5 the defendant to life imprisonment.
2-6 Sec. 3. (a) If a defendant is tried for a capital offense
2-7 in which the state seeks the death penalty, on a finding that the
2-8 defendant is guilty of a capital offense, the court shall conduct a
2-9 separate sentencing proceeding to determine whether the defendant
2-10 shall be sentenced to death or life imprisonment. The proceeding
2-11 shall be conducted in the trial court and, except as provided by
2-12 Article 44.29(c) of this code, before the trial jury as soon as
2-13 practicable. In the proceeding, evidence may be presented as to
2-14 any matter that the court deems relevant to sentence. This
2-15 subsection shall not be construed to authorize the introduction of
2-16 any evidence secured in violation of the Constitution of the United
2-17 States or of this state. The state and the defendant or the
2-18 defendant's counsel shall be permitted to present argument for or
2-19 against sentence of death.
2-20 (b) On conclusion of the presentation of the evidence, the
2-21 court shall submit the following three issues to the jury:
2-22 (1) whether the conduct of the defendant that caused
2-23 the death of the deceased was committed deliberately and with the
2-24 reasonable expectation that the death of the deceased or another
2-25 would result;
3-1 (2) whether there is a probability that the defendant
3-2 would commit criminal acts of violence that would constitute a
3-3 continuing threat to society; and
3-4 (3) if raised by the evidence, whether the conduct of
3-5 the defendant in killing the deceased was unreasonable in response
3-6 to the provocation, if any, by the deceased.
3-7 (c) The state must prove each issue submitted under
3-8 Subsection (b) of this section beyond a reasonable doubt, and the
3-9 jury shall return a special verdict of "yes" or "no" on each issue
3-10 submitted.
3-11 (d) The court shall charge the jury that:
3-12 (1) it may not answer any issue submitted under
3-13 Subsection (b) of this section "yes" unless it agrees unanimously;
3-14 and
3-15 (2) it may not answer any issue submitted under
3-16 Subsection (b) of this section "no" unless 10 or more jurors agree.
3-17 (e) The court shall instruct the jury that if the jury
3-18 returns an affirmative finding on each issue submitted under
3-19 Subsection (b) of this section, it shall answer the following
3-20 issue:
3-21 Whether taking into consideration all of the evidence,
3-22 including the circumstances of the offense, the defendant's
3-23 character and background, and the personal moral culpability of the
3-24 defendant, there is a sufficient mitigating circumstance or
3-25 circumstances to warrant that a sentence of life imprisonment
4-1 rather than a death sentence must be imposed.
4-2 (f) The court shall charge the jury that in answering the
4-3 issue submitted under Subsection (e) of this section, the jury:
4-4 (1) shall answer the issue "yes" or "no";
4-5 (2) may not answer the issue "no" unless it agrees
4-6 unanimously and may not answer the issue "yes" unless 10 or more
4-7 jurors agree; and
4-8 (3) shall consider mitigating evidence that a juror
4-9 might regard as reducing the defendant's moral blameworthiness.
4-10 (g) If the jury returns an affirmative finding on each issue
4-11 submitted under Subsection (b) of this section and a negative
4-12 finding on an issue submitted under Subsection (e) of this section,
4-13 the court shall sentence the defendant to death. If the jury
4-14 returns a negative finding on any issue submitted under Subsection
4-15 (b) of this section or an affirmative finding on an issue submitted
4-16 under Subsection (e) of this section or is unable to answer any
4-17 issue submitted under Subsection (b) or (e) of this section, the
4-18 court shall sentence the defendant to confinement in the
4-19 institutional division of the Texas Department of Criminal Justice
4-20 for life.
4-21 (h) If a defendant is convicted of an offense under Section
4-22 19.03(a)(6), Penal Code, the court shall submit the issues under
4-23 Subsections (b) and (e) of this section only with regard to the
4-24 conduct of the defendant in murdering the deceased individual first
4-25 named in the indictment.
5-1 (i) The court, the attorney for the state, or the attorney
5-2 for the defendant may not inform a juror or prospective juror of
5-3 the effect of failure of the jury to agree on an issue submitted
5-4 under this article.
5-5 (j) The judgment of conviction and sentence of death shall
5-6 be subject to automatic review by the Court of Criminal Appeals
5-7 within 60 days after the date of certification by the sentencing
5-8 court of the entire record unless time is extended an additional
5-9 period not to exceed 30 days by the Court of Criminal Appeals for
5-10 good cause shown. Automatic review by the Court of Criminal
5-11 Appeals has priority over all other cases, and shall be heard in
5-12 accordance with rules promulgated by the Court of Criminal Appeals.
5-13 SECTION 3. The importance of this legislation and the
5-14 crowded condition of the calendars in both houses create an
5-15 emergency and an imperative public necessity that the
5-16 constitutional rule requiring bills to be read on three several
5-17 days in each house be suspended, and this rule is hereby suspended,
5-18 and that this Act take effect from and after its passage, and it is
5-19 so enacted.