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.