Horne v. State

not applicable and no error was committed

by rereading jury portion

trial testimony complained Appel- of here. ground

lant’s fifth of error is overruled.

There being error, no reversible judg-

ment is affirmed. HORNE, Appellant,

William Evans Texas, Appellee. STATE

No. 63221. Musslewhite, Houston, appeal J. R. Court of Criminal only, appellant. En Banc. Holmes, Jr., Atty., John B. Dist. Calvin A. Nov. Cain, Asst. Dist. Hartmann and Dennis At- Huttash, Houston, tys., Robert State’s Austin, Atty., for the State.

OPINION CLINTON, Judge. appeal cap-

This is an from conviction for and, having answered ital murder affirmatively, penalty. issues death I. evidence comes

The essence of State’s from two witnesses. 21, 1977, Linda Tomlinson

On November when working pharmacy at a at man, later 11:30 a. m. Horne and another Cummings, entered and identified Allen turquoise jewelry. asked look some bracelet, put pocket Horne took it in his impeach truth-finding case it was error to defendant with cloak silence and advance the testify theory his failure to to his defensive function of the criminal trial. See Jenkins v. pretrial hearings. Anderson, 231, 238, appar- In this case ently gave (1980); different version the same facts Harris v. New York, 643, 645, prior hearing. explained by As the Unit- Court, impeachment ed States follows the defendant’s own decision to case aside his pocket his he pud did not it out of when Cummings grabbed a he pulled gun. and out Tomlinson, he put nor did talking to was to her stand still and Tomlinson and told stated that jewelry pocket. in his He any hurt.” “nobody get Horne then filling about approached Hatched to ask he the walked the counter into back around talking was on the Hatched prescriptions.1 deceased, Hatched, the room where the Don the Horne went into back phone when working. was pharmacist, Tomlinson then Horne, around, saw room. Hatched turned Cummings go heard shots. let several shot Horne twice.2 gun out a and pulled her and ran out the door. then saw She pulled gun the that he then Horne stated out from the Horne crawl behind counter said that shot. Horne pocket of his and out later found Hatched toward the door. She he fired the gun the and that he did not aim dead in the back room. lying killing him. prevent Hatched gun he, Horne, Brock testified that Michael the a third time in then shot him Hatched Cummings’ brother Cummings and David out door crawled the and groin. Horne morning on of November went a bar the escape. his made acquiring drugs by 1977 and discussed Cummings testified that the also Aden drove the three men robbery. Brock then robbing place the men discussed four never Cummings the Allen and pharmacy. but, passing forged instead, talked Horne into the Brock went store. stated Cummings also he prescription. stated that that he the gun saw Horne’s hand but pud gun, never saw Horne out either that stuck it Horne somewhere when he or his toway front of Mrs. Tomlinson on pharmacy. went into the Brock then heard he back He stated that never the room. Cummings out gunshots. Aden ran He further told Tomlinson stand still. pharmacy yelling that Horne had been shot. stealing any or planning denied steal Horne out fell down in front of came and jewelry. Cummings picked the store. The brothers argues Horne that the trial court erred up, him him car took put and him charge overruling objection to be- his hospital. on self-de- no instruction cause contained Through investigating officers was es- agree. fense. We must tablished cross that brace- on examination Rodriquez v. 544 S.W.2d by let such was as that described Tomlinson (Tex.Cr.App.1976), or found at around crime scene or in (Tex.Cr.App.1978) and Randle S.W.2d jacket among personal effects (Tex.Cr.App.1978) ap appellant hospi- inventoried them rule that was wed stat ply long-settled tal. 420, 421 ed in Gavia v. Appellant presented Cummings Aden (Tex.Cr.App.1972): himself. determining any “In defensive Horne testified four never dis- credibility of charge given, should be robbing cussed pharmacist. Their sole isit controverted or evidence or whether prescriptions,” intent was to “bust some i. other evidence in the case conflicts with e., to prescription write a on a stolen considered. When defen- not be scription by forging signa- doctor’s pad any evidence from theory sive raised handwriting. ture and Horne testified that properly requested, charge source jury. It is although gun pharmacy he took the into the it must be submitted pharmacy According deputy Cummings who examined had 2. to a sheriff testified scene, illegal prescrip- previously legal found filled both a revolver was under crime right leg tions for him and idea that the the knee of the deceased. it was own area cases, weapon go particular pharmacy one foursome to that contained five fired cylinder empty. While stated that was occasion. pharmacist speaking did not intend he “fake,” imply prescription he did attempt phar- impression to create the that the anyway. macist filled it would have face, then the jurors’ duty* proper under on its majority instructions, to determine whether predicated United States supports first, evidence is credible and the de- upon conclusion two factors: fense.” special statutory issues4 submitted to the punishment, give finding fact Allen testimony appellant and Cum body adequate guidance enabling constitu- mings, though disputed, even raises the is performance sentencing tional of its func- self-defense, sue of injury, and the harm tion; and, Court, in the words of the and damage perceive that the fails secondly, flow right from denial of the to have his legal By judicial defense jury providing prompt determined the rather review of State, court.3 than the trial in a court with state- jury’s the decision State, Randle v. supra, and cases cited jurisdiction, provided wide Texas has State, therein; Rodriquez supra; v. even-handed, means to cf. Sut promote the ra- State, ton v. tional, (Tex.Cr. imposition 548 S.W.2d 699 and consistent of death sys- law. Because this App.1977). sentences under tem serves to assure sentences Accordingly, we hold that the trial court ‘wantonly’ death will not be ‘freakish- refusing committed reversible error in the it does not violate the ly’ imposed, Consti- submission of the issue of self-defense Georgia, tution. Furman v. 408 the jury finding, upon for a fact appellant’s J., (Stewart, 92 at 2762 Concur- S.Ct. Thus, timely request therefor. judg- the ring). the Accordingly, of the ment of conviction must be reversed. Texas Court of Criminal is af- II. firmed.5 262, 276-277, determining the Texas 96 murder procedure constitutionally is viable State, Tex.App. put jury

3.In Liskosski v. 3 S.W. fense that was never to the for deter (1886) charge is written: mination in the main of the court. charge “... The of the court must make a provides pertinent part: in Article 37.071 pertinent application covering of the law ev- evidence; ery theory arising out of the (b) presentation duty dependent upon judg- On conclusion of the is not the court’s evidence, strength the the court shall submit the fol- ment of the or weakness of the testi- lowing jury: mony supporting theory, being issues to the the rogative jury pass upon proba- whether the conduct of testimony.” that caused the death of the deceased was tive force of the deliberately State, assuming arguendo committed and with the reasona- the issue of raised, contends, expectation ble that the death of the de- self-defense was neverthe result; less, jury prerogative ceased or another would that the exercised its probability stage by finding that the con appellant killing acts of vio- pharmacist duct defendant would commit criminal “was response provocation, lence unreasonable in that would constitute to the if any, by society; threat to deceased.” The contention is with evidence, simply out if raised whether the merit for the third does killing not embrace the fense set conduct of the defendant in the de- critical elements of self-de Code, response was unreasonable in to the out V.T.C.A. Penal 9.31 ceased §§ instance, provocation, By separate grounds any, by and 9.32. As one we note that the if the deceased. objectively appellant focus of the third is on an of error our response, sufficiency sup- challenges port determined reasonableness of see of the evidence to State, Duffy (Tex.Cr. jury’s v. 567 S.W.2d to the affirmative answers App.1978), depends issues, respectively. whereas self-defense more second and third For rea- accused, subjective viewpoint on the g., opinion, e. sons persuaded in Part II I am stated of this State, (Tex.Cr. Jones v. 544 S.W.2d appellant is correct as to the App.1976). may While and, therefore, be true second issue do not reach the properly charged on the merits will more than third one. likely accused, against answer this issue Death,” throughout by emphasis supplied see Black. “Due Process 5. All 26 Catho opinion response lic U.L.R. 1 at an writer of this indi- affirmative unless otherwise rejection not serve as a of a claim of self-de cated. ’ I, Apprentice an “Airman Aviation. ed as Thus, responsibility in as recognizing our air- on an eight month tour application He served the evenhanded suring off him to coast considera carrier which took punishment, I turn to craft ultimate apparently assess honorable supporting tion After his evidence Viet Nam. Navy ex rank of E-3 penalty, discharge ment and factors at the death Id.; mitigation see also with contractor tant thereof. worked appellant (Tex.Cr. mer- Vigneault houses, v. returned building S.W.2d then entry 573 S.W.2d App.1980); Ferguson marines, prior v. occupation chant v. Villarreal (Tex.Cr.App.1979); of commission Navy. At the time into (Tex.Cr.App.1978); Bodde offense, had of the instant (Tex.Cr.App.1978); for less voyage, back in Houston (Tex.Cr.App. Duffy making approxi- two weeks. He than 1978). money and had per month mately $1200.00 saved. pun- evidence adduced State’s of the testi- phase ishment consisted indicates that at the time The evidence Lowe, eigh- Jim mony of a sole witness: offense, appellant had year old the out of teen old “licensed minister year Cummings broth- “partying” with Lakewood International.” of his days celebration ers for several Cum- and Allen Appellant return home. Lowe, who testified he According to offense, hád, morning of the mings on the Maxey Pharmacy, was part-time worked “quaaludes,” last the latter’s ingested the Baptist University a student at Houston drug, the effect of powerful hypnotic “presently engaged and was in the minis- Later, which is exacerbated alcohol. try,” appellant’s reputation he knew of “Wild Tur- they drank beer and “shots” being peaceful abiding and law citizen key.” knowledge gleaned was bad. This was girl “got-

from “a Debbie” who had named before, appellant while and the night drugs ten” appel- some unidentified away were from their Cummings brothers lant, believed, a year the witness “about dates, up apartment pick apartment ago.” The his witness claimed that main return, Upon their burglarized. were ministry peo- contacts in his “street Cummings borrowed discovery, this David once, ple” appellant and that he had seen fatally wound pistol which would but did not when or where. Af- remember Cummings day. Allen deceased the next ter testimony, the State rested. possession admitted his theft again took the stand in his own Appellant office, and from his doctor’s scription pad that he had in Appellant behalf. admitted go into the his idea to it was conceded that others, past given or sold marihuana on the prescriptions pharmacy and “bust” preceding but denied he had done so Cummings testified day of the offense. denied that he had years; three he further carry appellant to he never known had heroin, “pills” ever or other hard any sold Appellant testi- firearm, one. or to own drug. weapon. own such fied that did not he appellant establishes that had The record Allen Cum- According appellant any felony never before been convicted of morning mings, they set out fact, offense and in had no misdemeanor to confront Cummings, offense with David police Appellant record at all. testified suspected burglarizing person only offense was the “act the instant preceding night. they As apartment of violence ever committed.” [he had] car, David asked into Michael Brocks’ got gotten pistol had whether someone employment Appellant also detailed said, “Well, just a minute” and appellant years was sixteen starting when he record pistol Appellant put the ran back in for it. of his old. Part of that record consisted went outside to before he pocket in his back year duty with the more than four tour brandished out was enlist- car “so it wouldn’t be Navy in which he United States ... parking They lot.” then went to an individual will commit “criminal acts of a bar the person they sought “frequented.” violence that would constitute As they in, were about go David asked threat to society.”6 This is particularly so appellant if gun,” and, he “had that because light when viewed in of other evidence es- illegal it is carry bar, pistol into a tablishing appellant had no criminal appellant stuck it in the seat. they When arrests, record of allegations either or con- got car, back into the concern for the dis- victions, whatever. play of weapon prompted the seat In Brooks v. put pocket. back in his (Tex.Cr.App.1980), we stated: Appellant claimed that he pull did not “The circumstances offense itself pistol out until he had been shot twice can ‘yes’ they sustain a answer if are Hatched, and then he fired it without aim- enough, Burns severe ing, which, Hatched shot him again, ... Muniz (Tex.Cr.App.1977); S.W.2d 270 hitting groin. him in the While the testi- 792 (Tex.Cr.App. mony as to who pulled pistol first was 1978), support they or can fail to it if are disputed, Linda Tomlinson never asserted unsupplemented by not and are other evi movements, that she witnessed the words or dence, gestures parties involved in the actu- supra. Muniz v. (Tex.Cr.App.1978); al shooting. While there is no appellant possessed gun it, and fired The circumstances of present- the offense 3, ante], n. important it is note-par- [see ed here are in marked contrast those ticularly in considering the issues involved State, supra, Burns v. adduced in well as as at punishment-that there was no testimony in Muniz v. supra. The cases latter from anyone, save appellant, as to how the chronicle shocking crimes of the most na- began altercation and progressed. ture, evincing dangerous that most aberra- Thus, in addition to the aggravating fea- tion of character conceivable. ture found extant by jury in the verdict supra, Warren v. of majority of guilt-that the murder occurred in the concluded at see course of robbery, may “While there be cases where the. supra,-the only evidence reflected by this guilt stage evidence offered at the record which would arguably sup- tend to trial support sufficient to an af- port an finding affirmative on the second finding firmative issue No. 2 4, ante], n. and the result- [see 37.071, under Article we conclude under ant assessment of penalty, the death is the the circumstances of the instant case that facts of the appellant’s offense itself and ” the evidence is insufficient.... admission past that he had in the sold mari- huana. language This was recently quoted and

I am unable to Brasfield admitted, applied conclude that an in unadjudicated past history “giving of See also Cortez v. (Tex.Cr.App.1980). and marihuana, selling” probative of whether 308 (Tex.Cr.App.1978).7 I 6. The United States Court of for the must consider the societal harm caused Circuit, passing Fifth proportionality drug in trafficking regard on the as a whole without of [degree danger presented by to the offense of sale of heroin facts the] Eighth prohibition under particular Amendment’s case Terre under review.” n against punishment, Blackburn, recently (5th cruel and unusual bonne v. 624 F.2d 1363 Cir. noted, 1980) argues "... [T]he State that we should take determining 7. On the admission of two cognizance drug of the fact that abuse is a punishment phase Florida convictions at the grave society, matter of concern to our proceeded constituted error the Court con- to a problem engenders concomitant criminal * ** sideration of whether that admission was activity. harmless. It was concluded at again point The State has missed the proportionality arguing “Considering doctrine in in primary the facts of the offense every drug each and appellant’s prior case of distribution we and the nature of [criminal] is reversed of conviction of the instant case believe that the facts proffered those in fall somewhere between this cause is remanded supra, Brasfield court. State; such, to find I am constrained It is ordered. so they are short of sufficient. whole, presents Viewed as a the record DAVIS, DOUGLAS, ODOM, TOM G. man, picture twenty-three year old DAVIS, join in I Part C. DALLY and W. regularly employed, who had been served only. military, no honorably pro- exhibited violence, perhaps pensity ROBERTS, concurring. toward Judge, through powerful irresponsible use Judge opinion, Clinton’s join I Part I of in drug companions, in- and selection of the court. as do all the members single volved act of violence which expressly have majority A of the court he injury. Appellant’s serious sustained opinion. II of join Part declined to conduct which the death of the caused de- (A) the views that expresses II Part here, appears to ceased have been aber- proba- “a to show evidence was insufficient probabili- ration. is no evidence of a There would commit bility that ty that he will commit future acts vio- that would consti- criminal acts of violence continuing lence that constitute a threat (as the society” tute a threat society. finding affirmative jury’s 37.071(b)(2) issue is drawn in Article regard unsupported by the record. (B) Procedure), Texas Code Criminal palliate This conclusion does not serve to of the Fifth Jeopardy Clause the Double participation in a transaction such as prevents State from seek- Amendment us; the one the record before established of this ing the death retrial rather, impelled by statutory it is our func- so, Although say I they case. do take tion assure that death sentences are not disagree with majority must wantonly freakishly imposed. (A) view was insufficient that the evidence imposition I would hold that of the death (B) of the Double rather than with view sentence under the facts and circumstances view of the The identical Jeopardy Clause. of this case would constitute constitution- adopted as the Jeopardy Clause Double ally capricious arbitrary8 ap- forbidden State, v. holding Brasfield of the court in plication of extreme and we penalty 288, (Tex.Cr.App.1980), 298 600 S.W.2d State, decline to do v. Vigneault so. Cf. in I judge participate did not no dissented. supra; Ferguson State, supra; v. Villarreal State, so this occasion to Brasfield v. I take State, State, v. supra; supra; Bodde v. of insufficient evidence express my view Duffy supra. v. 37.071(b). special issue of Article authority of Burks v. United Under 288, 298 600 S.W.2d v. Brasfield States, 2141, 1, 57 L.Ed.2d 437 U.S. 98 S.Ct. au- (Tex.Cr.App.1980), the court drew its 1 v. (1978); Massey, 437 and Greene U.S. States, 437 thority v. United from Burks (1978); 98 S.Ct. 57 (1978). 57 L.Ed.2d U.S. State, supra, the Brasfield v. State should There Court remarked: again seeking be precluded from death Jeopardy Clause forbids “The majority but a of Double penalty against appellant, affording purpose of so second trial for permit would it do in the prosecution opportunity of another event a new trial. record, deadly weapon-involved say of a crime the erroneous sault with violence, we cannot prior murder of not and the facts admission two convictions could murder have their answers established an otherwise unremarkable affected the ” robbery. special committed in the course of issues. ... improperly Excluding the two ad- convictions Georgia, 408 S.Ct. 8. See Furman v. U.S. mitted, record consisted of Cortez’ criminal (1972). 33 L.Ed.2d convictions, “only prior one which”-as- four of

supply evidence which it failed to muster there Because be retrial after a proceeding. error, central first This is reversal trial but not after a evidence, of insufficiency reversal for we objective prohibition against developed procedural have rule which is a successive trials. does The Clause corollary though Even natural to Burks: allow repeated ‘the State ... to make we found reversible trial we have error attempts to convict an individual for an challenge must still address the suffi offense,’ alleged since ‘the constitutional “ ” evidence, because ciency such a prohibition against jeopardy’ ‘double ground would Rains bar a retrial. was designed protect individual an (Tex.Cr.App.1980); Swaba S.W.2d being subjected to the hazards of 361 (Tex.Cr.App. do v. possible trial and more conviction than Accord, 1980). g., United e. States v. alleged once for an offense.’ Green v. Meneses-Davila, (5th 580 F.2d Cir. States, United [78 1978). 2 L.Ed.2d ....” 199] State, 600 In Brasfield v. S.W.2d 288 (footnote U.S. at 98 S.Ct. at 2147 applied the court (Tex.Cr.App.1980), omitted). court went on to draw a procedural ground challenged rule to a distinction between trial error and insuffici- special evidence on sufficiency ency of It held there evidence. could (2). (The already found court had be a appellate retrial after an reversal for trial error failure quash reversible error, implies nothing which indictment.) Judge Part II Clinton’s parties defendant’s because both guilt, have procedural opinion today apply this would readjudication. an interest again to rule a claim that evidence was 15, 98 S.Ct. at I insufficient on do not “The cannot be same said when a de- properly applicable think the rule is fendant’s conviction has been overturned claim, I think such a do not that reliti- trial, proof due to a failure of in which should gation special issue be barred complain case the prosecution cannot reversal for trial error. Once we prejudice, given has been one fair error in have found reversible trial a death proof to offer opportunity whatever case, consider a we need not claim * * * could assemble. that the evidence was insufficient on * * * requirements “Given for en- (2).1 try acquittal, the pur- with, begin To it must remembered poses negated of the Clause would be a case like Brasfield were we to afford the Government (Tex.Cr.App.1980), proverbial for the opportunity ‘second be a remand for retrial because the trial ” apple.’ bite at the error, regardless on special of the evidence 16-17, (foot- (2). U.S. at S.Ct. at 2149-50 not issue The case would be one like omitted). States, note 437 U.S. Burks United 98 S.Ct. remanding entirely 1. When is no error reversible trial we new and an trial would only pointless relitigation judg should consider a claim that the evidence was not be a (2). error; guilt might insufficient on If the evidence of from it ment that was free judgment were against insufficient be re- prohibition should also offend the successive formed to confinement for as the objective life Jeopar trials that is the the States, of Double Oust Clause, court should have entered a dy directed verdict of Burks v. United 437 U.S. special issue) no on and affirmed. Evans (1978). 98 S.Ct. 60,016 (Tex.Cr.App. Sept. Jones, State No. generally See Breed v. 421 U.S. 1980) J., (Roberts, argued dissenting) 532-533, that authority duty this court had the and the (1975) (Part III-A). Such case would be only to reform a when one ver- (Tex. unlike Brasfield v. S.W.2d 288 dict was available under the It is even law. Cr.App.1980), in of that the retrial such a case more clear that such an action be taken should be the would result of insufficient evidence only when special error evidence on is insufficient than rather trial error. (2). reversing of The alternative ” Id. at apple.’ bite verbial ‘second (1978), in which insuffi- L.Ed.2d Clause guilt Jeopardy would bar retrial Double evidence of 17. Therefore the cient “objective” the Dou- altogether. If the of the historical facts relitigation bar of should prohibition Clause is “the Jeopardy unreasonableness, ble just of deliberateness trials,” against 437 U.S. at successive relitigation the historical fact of it bars objective be achieved then the would not guilt.4 of relitigating spe- prohibiting the State Article 37.- issue drawn in (2). prohibition cial Such is one of his- It not 071(b)(2) is different. of only range punishment. narrow the State, Shippy v. fact. torical fun- importantly special issue is More it Rather is (Tex.Cr.App.1977). different, only is- not from the damentally fact, whether there at best:5 present one of issues sue of even from other guilt, but trial, probability now, the time of are in Article which drawn punishment criminal commit the defendant would that & 37.071(b)(1) (3) of the Texas Code would constitute acts of violence that Criminal Procedure. society. This fact threat guilt and issues The issue of those other appeal we If find on immutably fixed. prove call the State was insuffi- at trial proof offered historical facts. Did defendant commit happened dur- cient, well have things may his the offense of murder? Was appeal trial and ing between the interim the death of the de- conduct caused indeed, question; change probability deliberately ceased committed and with inevitable is almost the death expectation reasonable aged if changed. He will have will have would result?2 the deceased or another else, more than nothing probably by killing deceased Was his conduct confined on death year. He will have been response provocation, unreasonable in Depart- of the Texas row in the Ellis Unit any, if All the events by the deceased?3 under conditions ment of Corrections is- that determine the resolution of those resilient change in the most produce could trial; sues will have occurred before See, generally, B. & D. Jackson psyche. immutably fixed at the they will have been Any Row Christian, number Death If the State fails they happened. time emotional, intellectual, moral, and beha- prove deliberateness or unreason- guilt or occurred in him. changes have vioral ableness, and that is detected failure had at his trial “one fair Although the State complain prejudice, appeal, it “cannot it could proof whatever to offer opportunity opportunity it has given been one fair conduct at probable his assemble” about proof offer whatever it could assemble.” time, opportunity had no will have States, 1, 16, 98 Burks v. United conduct at probable proof about offer 2141, 2149-50, L.Ed.2d Chief To borrow the of his retrial. time omitted). (footnote Nothing could have had one bite proverb, the has Justice’s happened during interim between trial time of retrial but apple changed the appeal to have crime. Be- orange. have become over, apple may alleged long murder will have (2) involves a different special issue cause Jeopardy] purposes “the [Double differ- it should bear a perspective, factual negated were we afford Clause would Jeopardy relationship Double ent opportunity pro- for the the Government an special (2) (Tex.Cr.App. 1979). Except issue 37.071(b)(1). for 2. art. Tex.Code Crim.Pro. case, every in a crimi factual issue in a 37.071(b)(3). art. 3. historical fact. Tex.Code Crim.Pro. nal trial is one of why reasoning explains court This same 4. predicting 5.Many people view as issue view, clearly wrong, my to hold that Texas, See, g., Jurek v. 428 e. future “facts.” relitigated prior conviction could be issue of 2957-58, 2950, 274-276, 262, 49 96 S.Ct. U.S. merely it is “an historical on retrial because Stevens, J.). (1976) (opinion of 929 L.Ed.2d 482, 484 fact.” Porier 591 564 relationship

Clause-a punishment is less like that should fit the offender and prescribed the guilt issues in Burks v. merely Id., the crime.’ 247 at [69 States, 1, 2141, United 437 U.S. 98 S.Ct. 57 S.Ct. at 1083].” (1978), L.Ed.2d 1 and more like 723, at (The U.S. at S.Ct. punishment scribed issues in North that, court also guard held against a Pearce, 711, Carolina v. 395 U.S. 89 S.Ct. court’s penalizing a having defendant 23 L.Ed.2d 656 successfully appealed conviction, his first process requires due

In II the record to question was, Part of Pearce6 the affirma- tively show that error, the new sentence is “based reversal for trial “what con- upon objective concerning stitutional information iden- limitations there may upon part the general tifiable conduct on the of the defend- power judge impose upon occurring ant after the time of the longer original reconviction a prison sentence sentencing than the proceeding.” at originally U.S. received.” requirement S.Ct. at 2081. This U.S. 89 S.Ct. at does not 2077. The court apply jury held that when it is a rather than a judge neither the Double Jeopardy retrial, Clause nor that assesses Equal Protection Clause im- least when the has not posed jury given an absolute bar to a more severe improper prejudicial information upon sentence reconviction. prior pun- sentence and when the same “A trial judge is not constitutionally pre- being ishment sought under the same cluded, words, in other imposing jury Stynchcombe, instructions. Chaffin v. sentence, new greater or less 412 U.S. 93 S.Ct. 36 L.Ed.2d 714 sentence, original than the light (1973). In possibility such cases the of vin- subsequent events to the first trial that minimis.) dictiveness is de may have thrown light new upon the ‘life, health, habits, conduct, defendant’s already It has been held jury’s propensities.’ mental and moral Wil- in answering special (2) task is like York, liams v. New that which any sentencing faces authority. [69 S.Ct. L.Ed. 274-276, Such 428 U.S. 1337]. information may judge’s 2950, 2957-58, come to the at- (1976) S.Ct. tention from evidence Stevens, adduced at (opinion J.). reasoning itself, second trial presen- Pearce, from a new North Carolina v.

tence investigation, from 2072, 23 the defendant’s (1969), appli is as prison record, possibly from other cable to sentencing by jury sources. The sentencing freedom of a judge. I Therefore would hold that after a judge to consider the defendant’s conduct reversal for may again trial error the State subsequent to the first conviction in im- seek penalty regardless the death posing a new sentence is no more than sufficiency special on the evidence (2) consonant with principle, fully ap- at the first trial. In cases in which we proved York, error, Williams v. New supra, have found trial reversible we should that a may adopt ‘prevalent not even address a claim that the evidence modern philosophy penology was insufficient.7 Mason, (Mo. 6. The 1980) (death in Part I of Pearce was whether Jeopardy required the give Constitution). Double Clause a state to sentence did not violate punish- my a reconvicted defendant credit for view the death sentence in that case ment that had been exacted because of his should be set aside because the in the first earlier, overturned conviction. apparently aggravat found either that the ing proved they circumstances were not or that appears 7. At this time it that we soon outweighed by mitigating were circum constitutionality have a decision on the of im stances, Jeopardy and the Double Clause would posing a death at retrial when life be violated if those historical facts were reliti- given sentence had been in the first trial. See gated just as it would be if Texas’ violated Missouri, - U.S. Bullington ——, relitigated. issues were If (1980), L.Ed.2d 28 Crim.L. 4045 granting cert. to State ex rel. Westfall v. cases, If focuses on the results one be

might strange that a defendant can seem again

exposed to the death special issue proof fails in its State

(2), guilty who pleaded while be to retrial after the exposed

cannot Thornton ceremony. plea

botches (Tex.Cr.App.1980).

But is of our logical consequence asking

truly statutory scheme of execrable8

jurors beyond to find reasonable doubt person will probability act in the

commit a certain kind of criminal that Texas had never start-

future. Would Despite my

ed path.9 down this absurd due perforce that accept

wishes I must Having

process this scheme. countenances process cam-

been forced to swallow due

el, I jeopardy cannot strain at the double

gnat. parte

Ex Charles B. YARBOROUGH.

No. 64610. Criminal

En Banc.

Nov. 1980. Holmes, Jr., Mol- Atty., Dist. B.

John Houston, Rob- Atty., Dist. ly Naylor, Asst. Austin, Huttash, Atty., ert State’s State. held, Maloney, Representative who 9. Robert drafted Court so special relitigated bill became be conference committee’s could law, has after a reversal open, trial error stiil testified whether the defendant an issue intended to determine because ” Perini, person just aggravating .... “was a flat mean of historical fact as Missouri’s are Special Is- Material to mitigating “Evidence of Parole as circumstances. Ideas,” 24, in sue Unusual No. 2-And Other Project, Capital Lawyers Criminal Defense generally, See view, (1978). my Defense Course Murder (opinions (Tex.Cr.App.1975) 943 & 946 if that better would have much Roberts, Black, statute JJ.); “Due Process Odom & language had been used. Death,” Cath.U.L.Rev.

Case Details

Case Name: Horne v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Nov 12, 1980

Citation: 607 S.W.2d 556

Docket Number: 63221

Court Abbreviation: Tex. Crim. App.