Pierson v. State

land, only which describes it by quantity tract, being part of a with larger PIERSON, Appellant, Willard James nothing identify specific portion what the larger tract is intended to conveyed,

is invalid for uncertainty description. Texas, Appellee. The STATE of Pfeiffer v. Lindsay, 66 Tex. S.W. No. 63437. (1886), this following Court held the de- scription to be insufficient: Court of Appeals “[F]ifty survey, acres of the J. M. Moss En Banc. abstract No. situated near the town

of Burlington, in Montague county, Sept. Tex- 1980. as.” 29, On Rehearing April contract, money second the earnest contract between the Joneses and the Kel-

leys, conveyed described the land to be the Kelleys as follows:

“91.55 Wagstaff acres out of the W. W. A-796 survey and D. G. survey Green A-263 in Shelby County, Texas.” This contract is for the same lacking reason

as the 36 acre Additionally, contract. 91.55 acre tract surveys, Wag- lies in two Green,

staff and and the 36 acre tract was Wagstaff to be taken survey. As evidenced by money the two earnest contracts, the and Kelleys Joneses contract- ed for two separate conveyances. There is

no way go to determine which 36 acres will portion

to the VLB without lien or to which the Joneses are to retain their lien. These highly significant factors are to the VLB application and to the The VLB Joneses. provide contract of sale that if the 36 public acres does not abut on a road the provide seller will a usable easement to a public attempted road. The Kelleys

show that the 36 acres have been at was to abutting

the back side of the farm and not public on a road. no attempt provide made to of the ease- description ment. Whether the land on which the Joneses were to retain a lien abutted on a

public road and whether the land was to be

encumbered with an easement would be

decisive to them. provide

The four instruments fail to suf- ficient with the description comply Stat- ute of Frauds.

GREENHILL, J., and POPE and C. BAR- ROW, JJ., join dissenting opinion. in this

OPINION

PHILLIPS, Judge. for a conviction appeal

This is death. capital murder. Punishment of error. grounds fifteen raises Appellant that two We with his contentions only deal for cause excused jurors were prospective impartial jury right to an violation the Sixth process of law under and due Wither See Fourteenth Amendments. Illinois, 510,88 S.Ct. spoon the record Because 20 L.Ed.2d improperly jurors both were reflects that conviction. excused, appellant’s reverse juror Graham initial- Prospective William opposed that he ly testified impose had to personally if explained then prosecutor The penalty. did not members to Graham that the answered penalty, assess all answered questions. three judge would the trial questions “yes,” three death; if the assess “no,” the questions any of the answered im- of life assess judge would prisonment.1 Graham informed prosecutor then he would juror as that in order to serve the mandato- under oath that have to state death or ry penalty of any on deliberation would not affect his Code, Penal V.T.C.A. issue of fact. See inquired wheth- 12.31(b). prosecutor § knowing oath Graham could take the er answered affirmatively Dallas, that if the Bruder, appel- Carson Melvyn be sen- special appellant issues three lant. responded: Graham tenced death. Wade, Wilen- Atty., Dist. & Steve Henry here? over questions A Are these Attys., Dist. Whaley, & Robert Asst. sky Right. A Huttash, Dallas, Atty., Aus- Robert State’s A Can I read them? tin, for the State. (2) probability special is a that the questions, generally whether there

1. The known issues, 37.071(b), vio- commit criminal acts of are set in Art. V.A.C. defendant would forth continuing constitute a as follows: lence that would C.P. society; and threat to (3) (1)whether the conduct of the defendant evidence, whether the if raised deceased was that caused the death committed ble killing the de- conduct defendant deliberately and with reasona- response ceased was unreasonable in expectation that the the de- death of provocation, any, by deceased. if result; ceased or another would you might required to do the Q very Sure. thing you say you don’t want to do. A I don’t see I would have why you suggesting And at that time am answering questions yes. those difficulty might your well affect delibera- Well, words, saying in other you extent, tions to because of your some knowing you yes can answer them feelings deep-seeded personal there. [sic] you yes that when returned a answer to Iwhy A I understand. That’s wouldn’t mandatorily each of those questions, that to oath. want take the going the Defendant is to receive the you death sentence. saying. A That’s what I am time, you feeling have this at this haven’t A What I suc- saying you am is that if evidence, just saying even heard I am any case, well cessfully prove your may very I would you to I wouldn’t think want you have no alternative to answer those but even know what to take that oath to not questions yes. taking yourself you kind of situation are Well, in, A the alternative would come in, strong, apparently you because have a see, questions, do in each of those you feeling against strong personal a very yes answer would have beyond to will result in a returning a verdict that see, doubt, reasonable do from the you sentence; right? that death is Now, jurors great evidence. will have a Well, strictly reason is selfish. my A people deal of latitude. Sometimes —be- penalty if the opposed I’m not to death feelings cause of their personal own I do not want to be crime warrants it. prejudice, bias and interest in what it, and then later the one that would do way them one going happen, sway to can grievous er- find that I have made some another, subconsciously, you do even ror. in. see. That’s where the oath comes Well, sure, a lot of mandatory Q sen- there are saying

You are that to opposed say not affect that will I am not your people tence of life or death will else does it. finding deliberations on of fact at all. if someone any Now, right if I A Yeah. you understood when started, re- said would not you you you entitled —we Q But that isn’t —we are turn would result in a a verdict that here in people representing who are sentence; right? is that Texas, all of County, Dallas to such a on that opposed persons A I said I would be those twelve you “If show say I want to be start to finish will thing, yes. don’t from at all qualms what I I will have no put position. in that That’s said. it to me following the law —” about Now, and you way, you A if feel that don’t want to be put in that position, ^[******] take you there is no one to force going saying I am Q (By Whaley) Mr. What I exactly why this oath. That’s asked jurors that is, we are entitled to twelve question. you can do with- the outset that know at oath, now, Now, you if you take that says, oath question what the out to do are bound law and oath God going in. And mind any question in their do. you what said would exactly you talking you feeling I have a here, you get tight And if into a situation reser- would have a considerable yes, you the evidence— you haven’t heard you returning a verdict that about vation going to result Right. A knew was be with going sentence. And that’s Q yes But that a you know full well you your the rest of life. questions answer to each of those three I Well, I feel that sentence, feeling. A my that’s going to result in a death position, put in an untenable it was a would you going to know I job, prose- my said the nature of personally direct result of what because you in the course people maybe thirty where cuted put position in a you yourself special Ju- answer work. Because I want to my gone I have Grand [the ries, arraignments, course, worked with I closely honestly, of issues] Attorneys, the U.S. and in no instance did go strictly the facts and like to answer I ever have a Defendant that was if everything all the And honestly. facts problem proving it. guilty. So I have by the came to the fact that facts case, therefore, good if have a you I yes, don’t questions to answer all three case, you no prove your I would have I oath. know if to take that want ques- choice but to answer to these yes position Massey ultimately took my problem, tions. And therein lies be- concerning personal feelings sending I opposed cause would be distort him to would not cause to their someone death. disregard the case: facts talking exactly That’s what we are personal feelings I would my not let about, your choice comes at mo- so would, if I be- get involved to where you ment as to whether or not would take yes, be questions lieved all to I three you say you this oath. wouldn’t take say would no. that oath— A I won’t take the oath. ^{[*] [*] [*] [*] [*]} # Q counsel]) Mr. (By Evans As- [defense counsel, On by examination defense Gra- you suming are on a in ham explained why he could swear that case, more going you I’m one time: to ask his deliberation on the facts would not mandatory penalty If you would let the by mandatory penalty affected the of death for life of death or affect imprisonment: of fact issue in your any deliberations on Well, saying I am quite that it’s obvi- a case. ous if have had you always this in mind,

back of your you going are to take A If I jury? was on the evidence, a much harder look at and If,Q yes. look for more reasonable doubt you than my put person- A Then I would have to would otherwise.... feelings strictly by go al aside and The challenged state Graham on the basis facts, I jury. if was on that he could not take the oath required Q you do you And could and would 12.31(b), supra. § The court sustained that? challenge. Referring state’s to court Well, now, A see been that I’ve never motions, his pre-trial appellant objected say, I honestly I position, really can’t that holding under the Witherspoon strictly by the yes, I facts go think Illinois, supra, Graham should not have go strictly and the rules. Appellant objected excluded. also Well, you us is Q telling you what 12.31(b) that unfairly oath restricted § on the would rather not be the jury’s special consideration three place. first 37.071(b), issues set forth in Art. supra. Well, if the facts by going strictly objection The was overruled. going strictly by the rules hon- Wayne Massey Prospective juror Russell it, estly give to a man I could response questions by testified in to sentence, be on yes, do not want to I prosecutor he not think did jury. really say. know what don’t was appropriate due for cause challenge state’s Massey crime. further testified that Massey’s 12.31(b) the § to take inability would not vote for the death personally objected Appellant oath was sustained. Mas-„ explained Defense counsel penalty. Massey contrary the exclusion sey procedure that under the Texas Witherspoon, holding of penalty. did not itself impose per- aside Massey appeared put able to explained 12.31(b) oath Counsel then § law. The feelings sonal follow the initially that he Massey. Massey stated oath, could objection take the then wavered: was overruled. consequences Court held their decision would in-

The United States not entrust that “a State greater vest their deliberations with seri- the determination of whether a man should would involve gravity ousness and organized live or die to a tribunal to return emotionally. were excluded them Others a verdict of death.” 391 U.S. positively were unable they because the Court held Specifically, S.Ct. at state or not their deliberations whether that: way would in be “affected.” But ... a be carried sentence death cannot nervousness, emotional involve- neither imposed out if the or recom- ment, inability deny nor or confirm excluding ve- mended it was chosen equivalent to an any effect whatsoever they simply niremen for cause because part on the unwillingness inability or an general objections voiced to the death instruc- jurors to follow the court’s expressed conscientious or reli- oaths, regardless of obey tions and their infliction, gious scruples against penalty. feelings their about [footnote omitted] excluding jurors these grounds Id. at 1777. The 88 S.Ct. at under the were insufficient consequently subsequently that the im- established Nor Amendments. and Fourteenth Sixth requires proper juror exclusion of even one per- in our view would Constitution imposed. the death sentence not pen- from the jurors mit the exclusion Georgia, Davis v. U.S. they if murder trial alty phase of a Texas 50 L.Ed.2d 399 honestly find the facts will aver that recently addressed Supreme Court affirma- in the questions and answer the of question application the whether the reason- beyond they tive if are convinced 12.31(b), of supra violates the mandate otherwise, doubt, yet § who able but Texas, 448 U.S. Witherspoon. Adams of the prospects frankly concede that the (1980). 65 L.Ed.2d S.Ct. hon- what their penalty may affect literal applica- Adams makes it clear that a be or what will ést of the facts 12.31(b) tion is unac- language of the of § doubt. to be a reasonable they may deem ceptable Witherspoon. under The Court jur- judgments and Such assessments stated: and jury system, ors are inherent of the Based on our own examination be in the who would jurors to exclude all record, 12.31(b) that we have concluded § prospect of by the slightest way affected pro- applied was in this case to exclude views about their penalty the spective jurors grounds impermissible on deprive the be to penalty such a would As under and related cases. jury to which impartial of the defendant here, of in- the touchstone the employed law. the he or she is entitled under [foot- whether 12.31(b) under was not quiry § [emphasis what constitutes a doubt. See reasonable peremptory parties do the exercise their portion quotation the underlined of a voir challenges having after conducted Adams, jurors Under prospective above. panel. of the entire dire examination a who take such serious but who attitude V.A.C.C.P.; Full see 35.25 and Arts. honestly nonetheless state can they that (Tex.Cr. 409 S.W.2d er v. the facts and the law determine abide the state seek elects App.1966). not be service. may excluded from in it must select penalty, procedure established with the accordance Prospective jurors Massey and Graham to take It seek capital for cases. from on in serving were excluded capi procedures for both advantage of Witherspoon holdings violation of the in ñon-capital cases. tal and Their from service and Adams. exclusion impartial an right appellant denied pure considered, would be things All the Sixth and due jury under Amendment our hold part on speculation law Fourteenth process of under peremptory its failure exhaust state’s Amendment. the error in harmless challenges rendered refuse We excluding Massey. and Graham the exclusion objected to Appellant is- concerning an speculation engage Although the of and Massey. both Graham a fair significant sue as the selection failed to use record reflects that the state case where jury in challenges, impartial we do a and peremptory five of harm assessed. view this as the error rendering not harmless.2 less. Court, cisions, including Supreme this decision of note that the United States We summarily de- has state error under was harmless reversed several held Court is reversed legislative, and the cause judiciary, as well as the

remanded. additional fact that it is our sole function to

interpret replace the law and not the proper OPINION TO OVERRULE STATE’S department whose sole function is to pass MOTION FOR REHEARING laws, our if in doing even so render an unpopular decision. We are one of the TEAGUE, Judge, concurring. equal coordinating three divisions of our Oftentimes, the decisions this ren- Court government religiously accept and must ders are far from being popu- classified as life, that fact of as I believe the members of lar. This is understandable it is the this Court do. rare case that comes before the Court As a result of a decision where this publish opinion Court can the United States in Adams v. that is totally wholly acceptable by all Texas, it, parties before by persons and also who 8-1, L.Ed.2d 581 decided a vote of chance to read opinion. The cases han- Court, rendering as unpopular a dled this long way Court are a from down today, decision as we do struck causes, “adoption” type but are many cases conviction the State of evoking times great deal emotion and unanimously which this Court had discussion among the electorate citizenry sustained, was not a are, time when I law, who interestingly by our constitu- member of the Court. The ents. Adams, id., (1) held in the exclusion of I concur by opinion written in this cause jurors prospective ground on the my because in view opts the dissent unwilling were unable to take statu reaching popular, though pragmatic re- tory mandatory oath to the effect that a sult. There is absolutely question Judge no or life would opinion McCormick’swell-written resembles not have affected their deliberations on in many respects something almost irresisti- issue fact contravened the sixth ble, like the siren of the mermaid Lorelei. fourteenth amendments to the United However, spending many after hours ra- Constitution, (2) States

tionalizing, analyzing, agonizing, and medi- Texas could not execute a sentence of death tating proper legal over what is the decision imposed by jury prospec from which such make, I have concluded that what the jurors tive had been excluded. dissent asks of this Court is for it to act legislatively, decision, unquestionably due As a result of that popular thing type to do Supremacy Clause of the United States Constitution, VI, cause. that is not our function is now our duty see Art. it Adams, under the and laws of supra, Constitution this to applicability decide the State. We forget very cases, one, must never sim- presently to such as this before ple government agreed fact that our is divided into unanimously by the this Court. It is executive, equal departments: three result of members of that as a this Court 2278, 946, sey, 948, waived. Whan v. 403 91 403 U.S. 91 S.Ct. 29 U.S. S.Ct. L.Ed.2d 859 2281, (1971), Forcella, 263, rev’g (1971), rev’g 29 L.Ed.2d 856 Whan v. State v. 52 N.J. 245 (Tex.Cr.App.1969); Carolina, (1968); 438 S.W.2d 918 A.2d 181 Childs v. North 403 Illinois, 946, 2279, Speck 948, 2278, (1971), v. 403 U.S. 91 29 S.Ct. U.S. 29 L.Ed.2d 859 (1971), rev’g People Speck, 307, L.Ed.2d Childs, 855 v. 41 rev’g S.E.2d State v. 269 152 N.C. 177, (1968); Wiggles cases, Whan, Ill.2d 242 208 Wig- N.E.2d Speck, 453 Of these Ohio, 947, 2284, worth v. 403 U.S. 91 29 glesworth, S.Ct. or in and Bernette relied in whole (1971), rev’g Wiggles 857 L.Ed.2d State v. part argument on the error worth, 171, 18 Ohio St.2d 248 N.E.2d 607 was harmless failed to ex because the state (1969); Illinois, 947, Bernette v. 403 U.S. 91 peremptory challenges. Supreme haust 2290, Illinois, Tajra S.Ct. 29 L.Ed.2d 858 and summary Court’s indi treatment of these cases 947, 2291, 91 29 858 S.Ct. L.Ed.2d right cates that the defendant’s to a fair (1971), Bernette, rev’g People v. 45 Ill.2d impartial readily is not forfeited. (1970); 258 N.E.2d 793 Funicello v. New Jer

109 there error, cannot when was no constitutional this trial the Adams’ conviction him point error on must the verdict that found infirmity and the affirmed unanimously agreed It is also guilty.1 sustained. appellant ing opinion, for something terized option. ognizes punishment, empaneling a cide quarters, apparently pleading tions: by is the third one. cases on the basis of for if we did we would lowing statement: state and also cease to exist executive as unquestionably the one formed to life might affirmed, whole nine tially reverse completely new most pleasing many Though the above what I have charac- There I, Of necessarily synonymous only that government, course, ^[******] independent make would be the most well-written and members of this jury, (1) one, this, lies “Do we received, “logical” options, unfortunately, do said yards again?” is believe provide that the conviction the most for a new trial on the issue of but at issue or we reverse imprisonment? legislative facially to be a nub, trial let sentence of judiciary, except for But, concludes the defendant have Judge is the same and the (3) or, shortly cease popular of our Court an as an appetizing what “logical” option we do do as pragmatic branches new McCormick with a we reform the (2) are. which we would be the said in some with the that the the selection equal logical ques- constituents, popular decision we cause for a death is option, and time do we not decide free dissent- to exist “legal” of our result he trial. trial par- one, rec- are, fol- de- re- is before us. ment lack of rejected Cr.App.1972), day than in reason an many Court Branch jurisdiction which of the lower cause the trial court. suant cluded either followed cases have sion to withdraw er seek the death motion in this Court In Our almost We note jurisdictions Ocker made case at bar. ^[******] 33 L.Ed.2d ^[******] appellate convictions legal options, of the United as reduced legislative has cited to a statute to assess the Court, they said: this Court was confronted identical issue Texas,2 by this cited similar, court the dissent was did case that did Judge Roberts court Court at that numerous cases in which from Texas a rule of that We action, In those have no the State when, permitted modification specifically sentence, its notice 477 S.W.2d Adams, supra. if have examined is sad States not U.S. requesting modify as the one appellate as a result cases, for application no better struck for a similar time. speaking unanimously of intent to moving this has filed assessed authorizing same say, life. acted sentences. have con- particular from oth- reach permis- in this due to courts argu- down those court (Tex. S.Ct. with pur- now for to- solution ring will the the Perhaps today’s are also aware of decision We of Jer- com- New requiring by knell for the rule the Court found State, if guilt has such as this. In plete retrial when in cases sey agrees to waive the sentencing stage. the prosecutor occurred at can, should, punishment has immediately after Legislature assessed, appeal, is on law that al- but while the case remedy by amendment the modify sen- may another lawfully lows a felon convicted nom., Georgia. throughout Furman v. emphasis supplied 2. Sub is herein- All by opinion of this other- after the writer unless wise indicated. 110 tence punishment and assess at imprison performing a function which prop- is ment for life. Conyers, State v. 58 N.J. erly reserved for jury. present 123, (1971); 275 A.2d 721 Roy State v. case, however, was not faced ster, 472, 57 N.J. (1971); 273 A.2d 574 with a choice between one of only two Laws, 494, State v. 51 N.J. 242 A.2d 333 1189, alternatives. Art. Vernon’s Ann. (1968) denied, 971, cert. provides: P.C. ‘A person guilty rape 408, 21 (1968). L.Ed.2d 384 We do not shall be punished death or by by confine- feel that the New Jersey per solution is life, ment in the penitentiary for or for missible under our law. years term of not less than five.’ This Court has long held it may Thus, unlike Jersey, New the alternative not reduce punishment by assessed law, punishment is not fixed but en- jury. State, g., E. Johnson v. 447 compasses range. a wide If this Court S.W.2d 927 (Tex.Cr.App.1969); Darden v. were to reduce to life the sentence im- State, 430 S.W.2d 494 (Tex.Cr.App.1968); prisonment, assessing pun- we State, Broadway v. (Tex.Cr.App.1967); 418 679 S.W.2d fit, required ishment as we saw not as State, son 419 Elli law. We performing would be a function S.W.2d 849 (Tex.Cr.App.1967); Mason v. which properly belongs jury. to the State, 375 S.W.2d 916 (Tex.Cr.App.1964); our provided statutes for a fixed punish- State, McGruder v. (Tex. 377 S.W.2d 191 ment in lieu of the death penalty, Cr.App.1964); State, Hunt v. 167 Tex. situation closely would be akin 51, Cr.R. 317 (1958); S.W.2d 743 Garcia v. cases in which is punishment abso- State, 482, 166 Tex.Cr.R. 316 S.W.2d 734 fixed, lutely and in this Court has which (1958); State, Bell 340, 166 Tex.Cr.R. punishment. assessed 313 (1958); State, S.W.2d 606 Suit v. 161 Also, unlike states which have statuto- 22, Tex.Cr.R. 274 (1955); 701 S.W.2d ry power judgments, to modify our stat- State, Treadwell v. 182, 262 159 Tex.Cr.R. provides: ute Ap- ‘The (1953); S.W.2d 201 Pineda v. 157 peals may judgment affirm the of the Tex.Cr.R. (1952); S.W.2d 177 below, court may reverse and remand Knight 148 Tex.Cr.R. trial, for a new and dis- may reverse (1945); S.W.2d 350 Brown v. case, miss the reform and correct may Tex. judgment, as the law and nature This Court may reform a sentence so as the case may require.’ Art. V.A.C. to conform to the judgment may Thus, provide C.P. the statute does reform a to conform for modification nor do punishment, verdict of the jury. except we feel that it be inferred. In that may where the absolutely fixed provides the statute for reformation and law or where the sentence apply fails to correction, we feel that we are limited to (Art. indeterminate sentence law 42.- powers. (Art. those Texas § Ann.C.C.P.), Vernon’s may this Court Constitution, Vernon’s Ann.St. restricts not pass sentence. jurisdiction of this Court the ex- We feel that our situation differs from statute.) provided tent

that of Jersey. New In New Jersey, the punishment We also not remand may for murder in feel that the first de- gree (the cited) offense in case for assessment the cases only. 37.07(3)(c) either death or Art. ‘In the imprisonment, provides, de- pending upon the event the a mis- jury. agree, verdict of the shall fail to declared, N.J.S.A. 2A:113-4. If the trial shall be chooses to shall imprisonment, recommend life discharged, jeopardy there is no and no shall attach.’ other be assessed. If the im- erroneously Therefore, if pertains a defect posed, then the case stands in the same imposition of the death penalty, ap- position as if the had failed to reach court, pellate sentence, in reducing the is a remand may verdict. While this court

HI is without where the It follows that this court punishment for assessment of trial a originally by authority set a new before was direct punishment origi- punishment court, on the issue may we not do so where different by jury. only. nal was set Id. at 957. punishment ****** modify or power While the to reduce desirable, see American may sentences (1972), State, 282 In v. 485 Turner S.W.2d Project Minimum Bar Assn. on Standards said: Judge speaking for this Court Odom Justice, Relating Standards Criminal ****** Sentences, Ap- Review of Appellate 1968, we do not feel that we proved Draft is court question The now before this able, a proce- are or should effect such light case in of this disposition the proper (foot- legislative approval, without dure Texas law. commutation ... omitted) jury. impossible id., Ellison v. Tex.Cr. to Peters, adduce.” 407 U.S. App., 432 S.W.2d 955. 504, 2169, 92 S.Ct. 33 L.Ed.2d 94. Such a

The United in that States Court hav- defendant instance would have been found ing was a satisfy errone- convicted tribunal that fails to cause, ously imposed in this its elementary requirements status is due process the same as if the jury had unable course of due law under constitu- our agree to on a verdict. Turner v. tions. Ocker

supra; Id. at supra. may, therefore, It be that where a even ****** trial, facially trial is an error free the de- may still There is no fendant be entitled “to the whole question that appellant’s jury contaminated; However, yards.”3 pretermit this cause was nine I contami- a dis- day in the sense cussion issue for nated that he received a another jury must, from which prospective had jurors today colloquial, been un- “Give the Adams, lawfully excluded. supra, grant Under no defendant the whole nine yards,” juror prospective though him may simply totally facially be excluded a new trial even because states go that his view the facts the error does not but guilt, or possible law would be “affected” by punishment. infliction of the death In this penalty. agree I with wholeheartedly cause, two prospective were jurors excluded suggestion Judge McCormick's that as the serving on the in violation of the jury legislature session, is now in a law should be

holdings Adams, of Witherspoon supra. to give enacted this additional Court an sense, In a there be an can never legal option such cases as here. free trial where a jury unlawfully is select- therefore, overruling concur to ed because the unlawful selection of that rehearing State’s motion for without writ- trial, jury has infected although the entire ten opinion the above stated reasons. record, from the face of the as to the trial guilt-innocence defendant, of the the trial McCORMICK, dissenting. Judge, be free of jury commontrial errors. A original submission, appellant’s On con- that is unlawfully inherently selected is viction was reversed on the basis example, a dispassionate jury. For a trial holding in United States Court’s a jury panel where from a selected Adams 448 U.S. from which members of the accused’s race (1980). This Court 65 L.Ed.2d 581 excluded, were constitute an may facially further ordered the cause remanded trial, argued error free but it could not majority trial court. overrules Today, the that the accused fair received the and im- rehearing motion for without State’s trial partial to which demands he the law opinion. written Surface-wise, trial have. such defects, have no due to ascertainable motion for the State rehearing, record, appearance cosmetic solely of the trial but due Adams urges that reversal depth-wise require the unlawful selection of the automatically error should not stigmatizes trial. court, the whole “Due remand the trial but process requires a competent impartial to reform the authority Court has Kiff, jury.” See Peters v. to life whenever S.Ct. 33 L.Ed.2d 83 “Proof of in the best certifies that such would be harm, harm, actual virtually justice. argument predi- lack of This interest $10,000, regard, possible 3. In this it is due to the observed that and a fine not to exceed see Code, being capital fact selected hear a Penal V.T.C.A. least murder assess a Secs. 19.02 and undoubtedly initially case will murder the fense of be examined to be selected parties possible qualified necessarily on the lesser included of- case is one murder, 37.09, V.A.T.C.C.P., law, see Art. is actual- fixed ly qualified for which term of broad is life to assess a rather years years punishment. range not more than 99 five less than

H3 See, Laws, that, v. 51 N.J. prisonment. Adams State the since proposition cated on denied, 510, (1968), 393 Illinois, 494, v. 88 333 cert. Witherspoon 391 U.S. 242 A.2d 408, 1770, (1968), 971, 21 L.Ed.2d 384 errors 89 20 L.Ed.2d 776 S.Ct. S.Ct. U.S. 304, State, 206 Kan. 477 prohibit (1968); the of a sentence of v. only execution Zimmer Sherrick, 105 Ariz. finding (1970); of v. death and does not render the P.2d 971 State (1970); Rhay, v. invalid, 514, reform the 908 Hawkins 467 P.2d guilt Court (1970); 389, Segu 557 only other 78 474 P.2d sentence to life since that is the Wash.2d 20, Court, P.2d 498 com- ra 179 Colo. available for the offense v. District punishment (1972). in this conten- 926 mitted. The is correct State tion, granted. and the motion should be here significant to note I it also think who were jurisdictions two that at least I. provid laws but whose faced with this issue Illinois, supra, Witherspoon In v. the addition in punishments ed for alternative “a of death cannot Court held that sentence the reforma rejected to life or death have imposed or carried out if exist there only because argument tion by excluding recommended was chosen Following alternative. ed more than one simply veniremen for cause because Georgia, 408 U.S. of Furman decision objections pen- death general voiced 2726, 33 (1972), 346 238, 92 L.Ed.2d S.Ct. religious alty expressed conscientious setting aside Virginia, in Supreme Court of scruples against its infliction. 391 U.S. at conviction, noted that a death penalty 522, so holding, 88 at 1777. In S.Ct. to life be reformed could not punishment abundantly made it clear that alternative, third because imprisonment decision did not “render invalid convic- was available. 99 years’ imprisonment, tion, sentence, opposed in this or as 316, Commonwealth, 191 213 Va. Hodges v. fn. any other case.” at 88 reaching deci In 794 S.E.2d added) (Emphasis S.Ct. fn. the Califor sion, to follow the court refused Anderson, Court, People v. nia the Court held supra, Adams v. 152, 493 P.2d 880 Cal.Rptr. Cal.3d Code, of Penal provisions that the V.T.C.A. to life punishment and reform 12.31(b), constitutionally could not Section or death was only life in California because and, Witherspoon, based on coexist with restrictive such available and “[n]o Witherspoon, held: however, Virginia.” in obtain provisions, Accordingly, “... the Constitution sen- 475 S.W.2d disentitles the execute a in Beaver Similarly, State to Tennessee imposed by (Tenn.Cr.App.1971), of tence remanding Appeals, have been prospective jurors which such Criminal hearing on a new appellant’s case for excluded. stated: punishment only, Court of judgment “The of the Texas variety re- consequently “Had we not Appeals (from twen- over degree murder sustains the first versed to the extent that it life, execution), T.C.A. years, imposition penalty.” ty 39-2405, substitute added) simply we could (Emphasis at 2529. § S.Ct. jur- (usually, other to death alternative two decisions leave to the Clearly, these enter isdictions, imprisonment) and proper to be followed procedure states the did if the accordingly, be set aside. when a must seeking upon again not insist pro- whose laws jurisdictions other Several State, at 560. Beaver v. penalty.” imprisonment as vide for death or life conclude, jurisdictions, have other have crime specified assessment to be uti- where error occurs remedy proper determined that a prohibit its a death selection lized when punish- other one if there is but imposition, case is infected impris- i. e. life given, im- which could death to life ment reduce onment, there exists no constitutional infir- It has been suggested that this Court is mity in reforming punishment. State without authority reform a death penalty Laws, supra. to life in that such would be usurpation power of the constitutional II. and would to a amount reformation being It well established that a death verdict, of a prohibited. which is Such a penalty which was infected with Wither- rejected contention was the by spoon error bemay impris- reformed to life Court of in Segura Colorado District onment where that is the other availa- only Court, 20, (1972). 179 498 926 Colo. P.2d In punishment, ble I proceed to consider overruling appellant’s the contention that a whether existing Texas law will allow the punishment different only could be deter- same result. Such is not an issue of first by jury, mined the Colorado Court held impression before this Court. substituting a life sentence for death State, this Court in held Ocker v. nothing more ministerial than a act 477 288 (Tex.Cr.App.), S.W.2d “imposed judgment the penalty secured in violation of Witherspoon have imposed jury been had the in [selected could not be reformed to life. In so hold- violation in of fact returned ] ing, this Court holdings noted that the of only qualified the verdict it was to return the Court of New could Jersey be applied because, Segura in under the circumstances.” v. Dis- Texas “in New Jersey punishment the for murder in the first de- Court, trict P.2d at 928-929. supra, 498 gree ... is either imprison- death or life “except This Court where has stated that depending ment upon the verdict of the the law” absolutely by fixed jury.” Under the statutes then in effect in may pass sentence. Ocker this punishment the alternatives to in supra, at 290. Further Court has held capital cases also included a term of years. juvenile that when a guilty is found Since, time, punish- the alternative capital murder and since V.T.C.A. Penal law, ment was not fixed the cause was Code, 8.07(d), punish- Section disallows remanded. death, ment of may properly the trial court The Court say went on to that: sentencing authority remove the from the “If our provided statutes for a fixed jury assess the at life im- punishment in lieu of the death penalty, is the prisonment only punish- since that the situation closely would be akin to the ment available. Allen v. S.W.2d cases in which is abso- (Tex.Cr.App.1977). fixed, lutely and in which this Court has punishment.” Ocker, assessed at 290. pun- is the imprisonment only Since life Code, With passage of the 1974 Penal on the ishment which could be entered the situation is now identical the New case, that, judgment I where in this hold Jersey having cases. Appellant been found capital in a case only error which occurs murder, guilty capital only punish- imposition affects the ment that imposed could have been was death, reform may properly this Court either or death. Article judgment to be to reflect the 37.071, V.A.C.C.P. life imprisonment. 44.24, V.A.C.C.P., (b), Article Subsection of the In so not unaware concluding, am provides that: argument that such a reformation would may “The Court of Appeals upon power invade the role and affirm of the judgment court below authority and that this Court is without or may reverse and remand for a new argu- reform a verdict. Not has that trial or may may reverse and dismiss elsewhere, ment Laws and rejected reform and correct the as the unique pro- Sequra, supra, it overlooks the require.” law and the nature of the case (Emphasis added) cedures case Texas. employed a

H5 Laws, V.A.C.C.P., 37.071, on seek death retrial. State Under Article denied, Punishment cert. punishment. does not assess N.J. 242 A.2d jury’s an- upon court based 21 L.Ed.2d 384 set S.Ct. 37.071(e), could, swer to issues. Article court not special a waiver Such Furthermore, to Arti- pursuant V.A.C.C.P. ed, seeking prosecution’s be effected 44.24, “re- V.A.C.C.P., may offense; cle this Court ac for a lesser indictment the law as judgment, form and correct a lesser of cepting plea negotiation may require.” Un- and nature the case fense; on a lesser to trial by proceeding V.A.C.C.P., “ver- the term der Article matter, whenever practical offense. “As a (1),(7)-{1),(8), dict” as used Sections ask for the decides not to prosecutor of the refers to the decision clearly so tell guilt or innocence. reformation its return.” effectively eliminates before punishment in cases such as the one Laws, 242 A.2d at 343. (1),(10)of only us would affect Arti- Section “utterly wasteful Laws, be As in it would 42.01,relating cle to the has “as to conduct the needlessly and burdensome been determined.” if the capital it case” though were a trial penalty. the death State does not seek III. sen- legal was a error “Here there Having Witherspoon and recognized that assuming as prosecutor, tence alone and Adams error do not affect the determina- we find a new trial on that guilt, tion of determined having and also unavailable, modification seeks alone is that this has to reform authority Court retrial; effect the death rather than I now penalty imprisonment, death to life undoubtedly It penalty being waived. to that turn the contention of State during and been waived before could have such occur when reformation should basis there is no rational the trial and jus- certifies interests of State that the Laws, now.” to waive denying power that, thereby tice would best be served Sherrick, also, at 342. State A.2d See certification, should absent such the cause (Ariz.1970),and 514, 467 105 Ariz. P.2d be remanded to the trial court for com- 870, 39 State, 183 Ark. S.W.2d Williams v. plete retrial where the again be As stated possible punishment. authority to statutory has This Court 614 S.W.2d 420 Grijalva law and the as the judgment reform a to such as presented here may require. nature of the case retrying the defend- prevent the State has indicated attorney, through her district seeking penalty. the death ant and this case retrial of to this Court that “a no to this Court certifies justice best interest would not be pen- to longer seek desires State desires that the public and of the and recognize that this Court alty, should not possibility and the forego to such retrial to reform “waiver” and The na- in this case.” of a death when only punishment available life—the dictates today of this ture case discretion, re- has, through its the State to reflect reformed in the case be punishment? possible as a moved death novel, imprisonment. punishment of would not be approach Such would not novel. through her elected Texas, If the State justice would be prosecutor, certifies situation, the New In an almost identical reformation, then that, served such a even Court concluded Jersey Supreme judgment. can and should reform for the State specific authority absent that death is feels if the State Similarly, penalty, waive the again seek that wishes proper and relating to indeed infected with error conviction should option punishment, then where could be reformed punishment only also. it would not available makes known prosecution

This Court is charged by statute to deter- mine appeals with due regard to the rights JOHNSON, Appellant, Joe of the parties proper administration of

justice. Article V.A.C.C.P. Texas, Appellee. STATE of As pointed by Judge out Roberts in his dissenting opinion in Evans v. No. 64574. S.W.2d414 (1980): Court of Appeals Panel No. 3.

“There is nothing in the Constitution requires judg- us to set aside the Jan. 1981. (which ments of guilt is free of error so On Rehearing April 1981. us); far as the tells cloak Rehearing April Denied properly-convicted appellants pre- innocence; sumption of require

State marshall evidence that is years old; years require the sizeable expenditure money of time and that at-

tends a trial.” Both reason justice indicate that this give Court should careful consideration to it, the “nature of the and if case” before justice would best be by reforming served

appellant’s punishment imprison- of life

ment, that is what should be done.

The majority has concluded that our stat- utory prohibits scheme the results set forth opinion. Perhaps today’s decision ring will requir- the death knell for the rule ing complete retrial when guilt

error has sentencing stage. occurred at the Legislature can, should, immedi-

ately remedy amendment the law

allows a lawfully convicted felon another

trial when there was no constitutional infir- him

mity guilty. verdict that found Finally, I am compelled speak briefly to the concurring opinion that has been casej

filed in this my believe reasons concluding sufficiently as I have are set however, not,

forth above. I do believe legal that when this reaches a conclu- sion logical being prag- that is also we are Instead,

matics. I believe we have accom- plished that intent of the law. people

Some call it Justice. I dissent. ROBERTS, J., joins in Part I and Part II only.

DALLY, J., joins in the dissent. notes added] omitted] would follow putative jurors could and Id., 100 at 2528-2529. S.Ct. posited their instructions and answer juror may prospective no Under Adams if hon- questions they in the affirmative that he states because simply be excluded warranted estly believed the evidence be “af- law would view of facts or his Rather, doubt. beyond reasonable of the infliction possible fected” the fact that the touchstone was whether jur- prospective amay Nor penalty. would of the death imposition inflic- possible because the or be excluded from affirmative automatically follow him involve would of the death tion any have questions answers to the would upon deliberate him to emotionally or cause jurors’ performance at all on the effect than he greater seriousness the issues with did, could, and their duties. a test Such juror may prospective would otherwise. that jurors exclude who stated Adams if he with be excluded consistent possibility would be “affected” follow the he could indicates that apparently who penalty, the death to ren- his oath obey lethal instructions or court’s potentially meant First, law evi- es- procedure der and under the according statutory á verdict portion cases, capital prospective dence. See underlined tablished for above; at 2529. quotation see also 100 S.Ct. and chal- jurors in this case were examined challenge cause In order to establish a See Arts. lenged on an individual basis. go statutory the state must beyond 35.25, 35.20, 35.13, 35.17, V.A.C.C.P. and be- 12.31(b) and show that language § overruling state’s Had the court feelings prospective juror’s cause of the consistent cause in a manner challenges for would be un- against the death he we cannot Witherspoon, Adams and with issues without special able to answer the would state assurance that the say with a engaging in “conscious distortion” challenge a peremptory exercised have Id., When facts or law. at 2526. S.Ct. Massey. The against either Graham or distortion, juror engages such conscious taking may well have considered state concerning ignores instructions using preferable one or both of them issues, special and oath to ren- violates his thereby challenges and enhanc- peremptory der true verdict according to the law accept being ing possibility forced 35.22, evidence. See Art. V.A.C.C.P. juror. desirable even less present both case Graham Second, showing that there is no spite stated of their Massey the state court would have allowed trial about penalty, they reservations the death challenges retro peremptory exercise special could answer the in the af issues manifestly action actively. It Such firmative if the state its case. proved procedure the established improper “take under true that Graham testified he would evidence, look case. Gri selecting jury much harder at the and look for in a capital State, 614 jalva Pro S.W.2d420 more reasonable than he would doubt” out, however, otherwise. Adams exam points jurors spective cases juror challenged be excluded prospective cannot individually and must be ined prospect concedes because he 35.13 Arts. passed upon separately. view of penalty may affect his non-capital Only in cases supra.

Notes

notes Id. at 289 Governor appellant’s sentence mandate of the would have satisfied

[*]

[*]

[*]

[*]

[*]

[*] State, v. 485 Whan Court. case, Presiding In pre-Branch, supra, a However, commuta- 275 S.W.2d Court said in Judge speaking Onion this sought granted or tion has State, (1971), 400 Grider v. 468 S.W.2d the instant case. very succinct fashion: ain this court options available to

[******] is defective a sentence case where presented by reversible error (1) a We reform: quite may limited. penalty only. cause relates to The State judg- to the so as to conform sentence sought has ment; (2) judgment conform a stat- jury may impose. a For the reasons verdict; which fails (3) jury’s a sentence 955 ed in Ellison v. 432 S.W.2d law; (4) or fixed apply 1968), court with- ([Tex.Cr.App.] ‘[t]his the inde- apply which fails to sentence authority out direct a new trial before (Article law sentence terminate punish- on the issue of different Ann.C.C.P.). Vernon's Ruth, ment State v. 276 N.C. only.’ Cf. without authori- this court is 36, 170 897. Id. at 400. S.E.2d reduce the pass sentence ty to either

[******] by jury. Ocker punishment assessed Presiding Ellison, supra, Judge former And, 288. Tex.Cr.App., S.W.2d deceased, in speaking for this Woodley, now solely on the issue may remand while we long after Wither before Branch but was where Illinois, spoon v. court, may by the assessed originally decided, L.Ed.2d 776 said: assessed punishment was not do so where ****** omitted) Id. at (footnotes jury, 283. Court of provides Our statute judg- Appeals may affirm

[******] below, may court reverse ment 284, 285 State, 485 In Harris v. S.W.2d trial, may re- for a new and remand for this speaking Davis (1972), Judge Tom case, or may reform and dismiss the verse Court said: as the law and and correct

[******] Art. require. nature of the case 44.24 V.A.C.C.P. to ei authority without This punish or reduce Also, pass sentence provides: ther Art. 44.29 V.A.C.C.P. jury. Turner Appeals ment assessed of Criminal ‘Where the Court (1972); defendant, Ocker S.W.2d awards new trial to the We State, Tex.Cr.App., S.W.2d have stood cause shall stand as would pun the issue solely on cannot remand granted by had been in case the new trial was assessed where ishment below.’ court

Case Details

Case Name: Pierson v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Apr 29, 1981

Citation: 614 S.W.2d 102

Docket Number: 63437

Court Abbreviation: Tex. Crim. App.