Amend HB 8 (House Committee Printing) as follows:
(1) Strike SECTION 2 of the bill.
(2) Add appropriately numbered SECTIONS to the bill to read
as follows and renumber existing SECTIONS of the bill accordingly:
SECTION ___. Section 5(a), Article 11.071, Code of Criminal
Procedure, is amended to read as follows:
(a) If a subsequent application for a writ of habeas corpus
is filed after filing an initial application, a court may not
consider the merits of or grant relief based on the subsequent
application unless the application contains sufficient specific
facts establishing that:
(1) the current claims and issues have not been and
could not have been presented previously in a timely initial
application or in a previously considered application filed under
this article or Article 11.07 because the factual or legal basis for
the claim was unavailable on the date the applicant filed the
previous application;
(2) by a preponderance of the evidence, but for a
violation of the United States Constitution no rational juror could
have found the applicant guilty beyond a reasonable doubt; or
(3) by clear and convincing evidence, but for a
violation of the United States Constitution no rational juror would
have answered in the state's favor one or more of the special issues
that were submitted to the jury in the applicant's trial under
Article 37.071, [or] 37.0711, or 37.072.
SECTION ___. Section 3, Article 31.08, Code of Criminal
Procedure, is amended to read as follows:
Sec. 3. Except for the review of a death sentence under
Section 2(h), Article 37.071, or under Section 2(h), Article 37.072
[37.071(h) of this code], an appeal taken in a cause returned to the
original county under this article must be docketed in the
appellate district in which the county of original venue is
located.
SECTION ___. Section 2(b), Article 37.07, Code of Criminal
Procedure, is amended to read as follows:
(b) Except as provided by [in] Article 37.071 or 37.072, if
a finding of guilty is returned, it shall then be the responsibility
of the judge to assess the punishment applicable to the offense;
provided, however, that (1) in any criminal action where the jury
may recommend community supervision and the defendant filed his
sworn motion for community supervision before the trial began, and
(2) in other cases where the defendant so elects in writing before
the commencement of the voir dire examination of the jury panel, the
punishment shall be assessed by the same jury, except as provided in
Section 3(c) of this article and in Article 44.29. If a finding of
guilty is returned, the defendant may, with the consent of the
attorney for the state, change his election of one who assesses the
punishment.
SECTION ___. Chapter 37, Code of Criminal Procedure, is
amended by adding Article 37.072 to read as follows:
Art. 37.072. PROCEDURE IN REPEAT SEX OFFENDER CAPITAL
CASE. Sec. 1. If a defendant is found guilty in a capital felony
case punishable under Section 12.42(c)(3), Penal Code, in which the
state does not seek the death penalty, the judge shall sentence the
defendant to life imprisonment without parole.
Sec. 2. (a)(1) If a defendant is tried for an offense
punishable under Section 12.42(c)(3), Penal Code, 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 without parole. The
proceeding shall be conducted in the trial court and, except as
provided by Article 44.29(d) 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 the court considers relevant to 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 may 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
(b) or (e).
(2) Notwithstanding Subdivision (1), evidence may not
be offered by the state to establish that the race or ethnicity of
the defendant makes it likely that the defendant will engage in
future criminal conduct.
(b) On conclusion of the presentation of the evidence, the
court shall submit the following issues to the jury:
(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, Penal Code, whether the
defendant actually engaged in the conduct prohibited by the offense
of which the defendant was found guilty or did not actually engage
in the conduct prohibited by that offense but intended that the
offense be committed against the victim or another intended victim.
(c) The state must prove beyond a reasonable doubt each
issue submitted under Subsection (b) of this section, and the jury
shall return a special verdict of "yes" or "no" on each issue
submitted under Subsection (b) of this section.
(d) The court shall charge the jury that:
(1) in deliberating on the issues submitted under
Subsection (b) of this section, 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 section "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 section.
(e)(1) The court shall instruct the jury that if the jury
returns an affirmative finding to each issue submitted under
Subsection (b), it shall answer the following issue:
Whether, taking into consideration all of the evidence,
including the circumstances of the offense, the defendant's
character and background, and the personal moral culpability of the
defendant, there is a sufficient mitigating circumstance or
circumstances to warrant that a sentence of life imprisonment
without parole rather than a death sentence be imposed.
(2) The court shall:
(A) instruct the jury that if the jury answers
that a circumstance or circumstances warrant that a sentence of
life imprisonment without parole rather than a death sentence be
imposed, the court will sentence the defendant to imprisonment in
the Texas Department of Criminal Justice for life without parole;
and
(B) charge the jury that a defendant sentenced to
confinement for life without parole under this article is
ineligible for release from the department on parole.
(f) The court shall charge the jury that in answering the
issue submitted under Subsection (e) of this section, the jury:
(1) shall answer the issue "yes" or "no";
(2) may not answer the issue "no" unless it agrees
unanimously and may not answer the issue "yes" unless 10 or more
jurors agree;
(3) need not agree on what particular evidence
supports an affirmative finding on the issue; and
(4) shall consider mitigating evidence to be evidence
that a juror might regard as reducing the defendant's moral
blameworthiness.
(g) If the jury returns an affirmative finding on each issue
submitted under Subsection (b) and a negative finding on an issue
submitted under Subsection (e)(1), the court shall sentence the
defendant to death. If the jury returns a negative finding on any
issue submitted under Subsection (b) or an affirmative finding on
an issue submitted under Subsection (e)(1) or is unable to answer
any issue submitted under Subsection (b) or (e), the court shall
sentence the defendant to imprisonment in the Texas Department of
Criminal Justice for life without parole.
(h) The judgment of conviction and sentence of death shall
be subject to automatic review by the Court of Criminal Appeals.
SECTION ____. Articles 44.251(a) and (c), Code of Criminal
Procedure, are amended to read as follows:
(a) The court of criminal appeals shall reform a sentence of
death to a sentence of confinement in the [institutional division
of the] Texas Department of Criminal Justice for life without
parole if the court finds that there is legally insufficient
evidence to support an affirmative answer to an issue submitted to
the jury under Section 2(b), Article 37.071, or Section 2(b),
Article 37.072.
(c) If the court of criminal appeals finds reversible error
that affects the punishment stage of the trial only, as described by
Subsection (b) of this article, and the prosecuting attorney does
not file a motion for reformation of sentence in the period
described by that subsection, the defendant shall receive a new
sentencing trial in the manner required by Article 44.29(c) or (d),
as applicable [of this code].
SECTION ____. Article 44.29, Code of Criminal Procedure, is
amended by adding Subsection (d) to read as follows:
(d) If any court sets aside or invalidates the sentence of a
defendant convicted of an offense punishable as a capital felony
under Section 12.42(c)(3), Penal Code, and sentenced to death on
the basis of any error affecting punishment only, the court shall
not set the conviction aside but rather shall commence a new
punishment hearing under Article 37.072, as if a finding of guilt
had been returned. The court shall empanel a jury for the
sentencing stage of the trial in the same manner as a jury is to be
empaneled by the court in other trials before the court for the
offense of which the defendant was convicted. At the new punishment
hearing, the court shall permit both the state and the defendant to
introduce evidence as permitted by Article 37.072.