79R7428 KCR-D
By: Dunnam H.B. No. 2165
A BILL TO BE ENTITLED
AN ACT
relating to the sentencing procedure in capital felony cases.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 2(a)(1), Article 37.071, Code of
Criminal Procedure, is amended to read as follows:
(1) If a defendant is tried for a capital offense in
which the state seeks the death penalty, on a finding that the
defendant is guilty of a capital offense, the court shall conduct a
separate sentencing proceeding to determine whether the defendant
shall be sentenced to death or life imprisonment. The proceeding
shall be conducted in the trial court and, except as provided by
Article 44.29(c) of this code, before the trial jury as soon as
practicable. In the proceeding, evidence may be presented by the
state and the defendant or the defendant's counsel as to any matter
that is [the court deems] relevant to the defendant's punishment or
the commission of offense [sentence], including evidence of the
defendant's background or character or the circumstances of the
offense that mitigates against the imposition of the death penalty.
This subdivision shall not be construed to authorize the
introduction of any evidence secured in violation of the
Constitution of the United States or of the State of Texas. The
state and the defendant or the defendant's counsel shall be
permitted to present argument for or against sentence of death. The
introduction of evidence of extraneous conduct is governed by the
notice requirements of Section 3(g), Article 37.07 [The court, the
attorney representing the state, the defendant, or the defendant's
counsel may not inform a juror or a prospective juror of the effect
of a failure of a jury to agree on issues submitted under Subsection
(c) or (e) of this article].
SECTION 2. Section 2, Article 37.071, Code of Criminal
Procedure, is amended by amending Subsections (b), (c), and (d) and
adding Subsection (d-1) to read as follows:
(b) The [On conclusion of the presentation of the evidence,
the] court shall submit [the following issues] to the jury the issue
of,[:
[(1) whether there is a probability that the defendant
would commit criminal acts of violence that would constitute a
continuing threat to society; and
[(2)] in cases in which the jury charge at the guilt or
innocence stage permitted the jury to find the defendant guilty as a
party under Sections 7.01 and 7.02(a), Penal Code, whether the
defendant actually caused the death of the deceased or did not
actually cause the death of the deceased but intended to kill the
deceased or another or anticipated that a human life would be taken
and was a major participant in the intentional murder.
(c) On conclusion of the presentation of the evidence, the
jury shall deliberate and render a verdict based on the following
considerations:
(1) whether at least one aggravating factor listed in
Section 4 has been proven;
(2) whether sufficient aggravating factors exist
which outweigh any mitigating factors found to exist; and
(3) based on the considerations in Subdivisions (1)
and (2), whether the defendant should be sentenced to death or life
imprisonment. [The state must prove each issue submitted under
Subsection (b) of this article beyond a reasonable doubt, and the
jury shall return a special verdict of "yes" or "no" on each issue
submitted under Subsection (b) of this Article.]
(d) If no aggravating factors listed in Section 4 are found
to exist, the jury shall return a verdict indicating the defendant
is guilty of a capital offense for which the jury recommends life
imprisonment, and the court shall sentence the defendant to life
imprisonment. The jury may not recommend a sentence of death unless
the jury unanimously finds and specifies in writing that:
(1) at least one aggravating factor has been proven;
and
(2) the aggravating factors are sufficient to outweigh
the mitigating factors that were proven, if any.
(d-1) If the jury's recommendation of a sentence of death is
not unanimous, the jury shall be discharged and the court shall
sentence the defendant to life imprisonment. [The court shall
charge the jury that:
[(1) in deliberating on the issues submitted under
Subsection (b) of this article, it shall consider all evidence
admitted at the guilt or innocence stage and the punishment stage,
including evidence of the defendant's background or character or
the circumstances of the offense that militates for or mitigates
against the imposition of the death penalty;
[(2) it may not answer any issue submitted under
Subsection (b) of this article "yes" unless it agrees unanimously
and it may not answer any issue "no" unless 10 or more jurors agree;
and
[(3) members of the jury need not agree on what
particular evidence supports a negative answer to any issue
submitted under Subsection (b) of this article.]
SECTION 3. Article 37.071, Code of Criminal Procedure, is
amended by adding Sections 3, 4, 5, 6, and 7 to read as follows:
Sec. 3. (a) For purposes of this article, mitigating
factors consist of the following:
(1) the age of the defendant at the time of the
offense;
(2) significant impairment of the defendant's capacity
to appreciate the wrongfulness of the defendant's conduct or the
defendant's ability to conform the defendant's conduct to the
requirements of law at the time of the offense;
(3) the defendant was under duress at the time of the
offense;
(4) the defendant could not reasonably have foreseen
that the defendant's conduct in the commission of the offense would
create a risk of causing death to another person;
(5) the emotional state of the defendant at the time of
the offense;
(6) the absence of any significant prior conviction;
(7) the extent of the defendant's cooperation with law
enforcement officers or agencies and with the office of the
attorney representing the state;
(8) the influence of controlled substances at the time
of the offense;
(9) the good faith belief by the defendant at the time
of the offense that circumstances existed that constituted a moral
justification for the defendant's conduct;
(10) the defendant is not a continuing threat to
society; or
(11) any other evidence that the court considers to be
relevant to the question of mitigation.
(b) A burden of proof does not exist with respect to proving
or disproving mitigating factors.
Sec. 4. (a) For purposes of this article, aggravating
factors consist of the following:
(1) the defendant was previously convicted of a felony
of the first or second degree involving violence, or was previously
convicted of an offense with substantially similar elements and a
similar degree of punishment under the laws of another state or the
United States;
(2) because of the defendant's use of a deadly weapon
or other device which would normally be considered hazardous to the
lives of more than one person, the defendant knowingly created a
risk of death to more than one person in a public place;
(3) in the commission of the offense, the defendant
knowingly created a risk of death to another person in addition to
the victim of the offense; or
(4) the defendant committed capital murder against the
victim because of the victim's race, color, ancestry, religion, or
national origin.
(b) The burden of proof for the aggravating factors listed
in this section is beyond a reasonable doubt.
Sec. 5. (a) When a sentence of death is imposed on the
defendant under this article, the court shall review the propriety
of that sentence considering the:
(1) nature of the offense;
(2) character and record of the defendant;
(3) public interest; and
(4) manner in which the sentence was imposed,
including the sufficiency and accuracy of the information on which
it was based.
(b) A sentence of death may not be imposed under this
article if the court determines that:
(1) the sentence was imposed under the influence of
passion or prejudice or other arbitrary factor; or
(2) the evidence presented does not support the
finding of statutory aggravating circumstances.
(c) If a death sentence imposed under this article is held
invalid based on unconstitutionality of the death penalty or
insufficiency of the evidence to support the sentence, the
defendant shall be sentenced to life imprisonment.
Sec. 6. The court, on the written request of the attorney
representing the defendant, shall charge the jury in writing as
follows:
"Under the law applicable in this case, if the defendant is
sentenced to imprisonment in the institutional division of the
Texas Department of Criminal Justice for life, the defendant will
become eligible for release on parole, but not until the actual time
served by the defendant equals 40 years, without consideration of
any good conduct time. It cannot accurately be predicted how the
parole laws might be applied to this defendant if the defendant is
sentenced to a term of imprisonment for life because the
application of those laws will depend on decisions made by prison
and parole authorities, but eligibility for parole does not
guarantee that parole will be granted."
Sec. 7. The judgment of conviction and sentence of death is
subject to automatic review by the court of criminal appeals.
SECTION 4. Sections 2(e)-(i), Article 37.071, Code of
Criminal Procedure, are repealed.
SECTION 5. The change in law made by this Act applies only
to an offense committed on or after the effective date of this Act.
An offense committed before the effective date of this Act is
covered by the law in effect when the offense was committed, and the
former law is continued in effect for that purpose. For purposes of
this section, an offense was committed before the effective date of
this Act if any element of the offense was committed before that
date.
SECTION 6. This Act takes effect September 1, 2005.