*1 general ter on the court’s docket without
transferring the matter. 24.124(c) § (emphasis Tex. Gov’t Code Ann. added).30 No transfer order was needed for Stilley, Judge assigned to the 23rd district Matagorda County, court of to hear dis- pose case the 130th district County. Matagorda
court of Tex. Gov’t 24.124(c). § fifty- Points Code Ann. fifty-five four and are overruled. Having any found no reversible error in points presented, judgment we affirm the of the trial court.
CAMPBELL, J., concurs in the result in my dissenting opinion accordance with (Tex.Crim.App. Cook v. 1994), decided, day joins this and otherwise opinion.
MeCORMICK, P.J., WHITE, J., join this note.
CLINTON, J., dissents. POWELL, Appellant,
David Lee Texas, Appellee. The STATE of No. 71399. Texas, Appeals Court of Criminal En Banc. Dec. 1994. Although judges this code section was amended in hear from these two district courts can again provide it continues to dispose general matter on the courts’ that the 23rd and 130rd district courts of Mata- transferring doсket without the matter. gorda County general share one docket and *2 Goldstein, Orr, Cynthia Hujar
Gerald H. Antonio, appellant. San Earle, Atty. Philip Ronald Dist. A. Nel- &. son, Jr., Austin, Atty., Asst. Dist. Robert Huttash, Austin, Atty., for the State.
OPINION
MEYERS, Judge.
Upon appellant retrial1 November was convicted under Texas Penal Code 19.03(a)(1) murder, § for the commit- 18, 1978, May ted on of a law enforcement jury affirmatively officer. The answered the two issues submitted under Article 37.071(b).2 Appellant was sentenced to death 37.071(e). as mandated Article 37.071(h)provides appeal direct to this court. conviction, We affirm but vacate proceed- remand his sentence for further 44.29(c). ing in accordance with Article Summary Factual Appellant challenge does not the sufficien- cy However, of the evidence. a brief factual usually helpful. context is night May On the Meinert, ex-girlfriend, сalled Sheila an slightly hysterical manner asked her to him got drive to south Austin. As Meinert into the Mustang, driver’s seat of gun she noticed a machine on the back floor. Appellant rifle, pistol, also had a a live hand-grenade, knapsack ammunition and a containing methamphet- about 2.25 ounces of amine, weapons literature about and radical politics, drug and written accounts of his dealings. car, police
A uniformed
officer in a marked
Ablanedo,
Ralph
pulled appellant and Mei-
nert over and
asked
Meinert’s driver’s
Texas,
Supreme
granted.
was tried and convicted for the same
Court was
In Powell v.
offense and sentenced to death in 1978. On
492 U.S.
109 S.Ct.
Bobby bystander, objection, ruling conclusory; that a testified must and be is, walking from that Officer Ablanedo and Meinert were that it must be clear the record other, judge toward when he heard two to trial in fact overruled the defen each gunshots objection; fall. Ablan- error is waived. four and saw Ablanedo dant’s otherwise 636, State, by another up e.g. edo stood but was downed v. 815 See Ramirez S.W.2d Darty gunfire. (Tex.Crim.App.1991) (citing Bullard looked at v. round When 643 State, (Tex.Crim.App.1986) was shat- Mustang, the back windshield 709 652 S.W.2d State, tered, Bailey was the car hold- 532 322 appellant inside S.W.2d 52(a). was (Tex.Crim.App.1975)); Tex.R.App.P. a rifle and someone’s head visible State, driver’s seat. 867 compare below the dashboard also and Martinez v. See (Tex.Crim.App.1993), cеrt. de S.W.2d 35 Appellant mortally officer Ablan- wounded —nied, —, S.Ct. U.S. chest, arm, gunshots edo with ten to his (1994); Chappell L.Ed.2d abdomen, leg. (Tex.Crim.App.1993) (Court’s granting motion for shuffle State’s Voir Dire appellant’s objection to ruling final was point appellant fifth of error his In shuffle). request Having to his failed make alleges denying that the trial court erred appellant ruling, and to a final clear obtain jury. timely to his motion shuffle The Appel for preserved error review. has argues to State failed obtain a point lant’s fifth of error overruled. thus, court, ruling trial has from the appel preserve agree; failed to error. Six, point In of error avers only preserve lant has to Not failed error. denying the trial court erred in ruling, no but also fails there final the record jury then timely motion for a shuffle and clear, appеllant made a un to establish that untimely shuf granting the motion to State’s equivocal for a shuffle. See request jury. agree must Again fle the we with 52(a). Tex.R.App.P. preserved. that no error was According to the record defense counsel “request” for The objected proce- dire the trial court’s voir disposed point jury shuffle has been Objecting procedure, he stated: dure. five, also reveals supra. error The record was and de- you excus- that defense counsel offered going
I had were to be no idea (XI, 294-95), and the venire ing jurors we were— clined shuffle on the voir dire while object when trial court then failed to had a chance shuffle haven’t even motion for a shuffle. granted yet. I ask a shuffle before them would 298). (XI, specific timely objection eliminating juror.... It Without we even start presеrved Mar- no error is for review. See my understanding judge, so the record was
3H
35; Chappell,
qualified” general
tinez. v.
867 S.W.2d at
members was “death
voir
52(a).
510; Tex.R.App.P.
Ap-
general
dire
conducted. After the
voir
was
dire,
pellant’s
parties
peremptory
exercised their
sixth
of error is overruled.
challenges
Id. at
and the
was selected.
Appellant urges,
points
eight,
seven and
court denied
appears
In
case it
that the one-
him the effective assistance of counsel and
hundred-seventy-one prospective jurors were
by limiting
violated Article 35.17
the individ
array
assigned to the trial court. This
ual
venirepersons
voir dire of fourteen
panels.
divided into two
The trial court be-
Witherspoon
Witherspoon
issues. See
v. Illi
gan
panel by explaining
the voir dire of each
nois,
20 L.Ed.2d
general
prеsump-
legal concepts such as the
(1968). Appellant
allege
does not
judge
tion of
The
then asked
innocence.
completely
trial court
denied him the
questions designed
responses sug-
to evoke
veniremen,
individual voir dire of these
challenges
gesting potential
for cause.
merely
forcing
that the trial court
erred
explained
this vein
trial court
the differ-
begin
him
questions
voir dire with
about
ent attitudes towards the death sentence and
the veniremembers’ attitudes
toward the
legal significance
of each of the attitudes
penalty. Appellant
death
asserts that
Witherspoon
progeny.
under
and its
guaran
Texas Constitution and Article 35.17
court then asked
veniremember inclined
*5
permitted
proper ques
tee that he be
to ask
toward one of the attitudes described to raise
chose;
in
alleges
tions
order he
he
this is
his or her hand. Those who raised their
strategy.
crucial to voir dire
individually
regarding
hands were
examined
procedure
The State counters that the
em
parties.
the issue
each of the
The trial
court,
ployed by
limiting
the trial
the initial
require
parties
court did not
to exercise
qualification issues,
voir
dire
death
in
any peremptory challenges based on this ab-
distinguishable
procedure
from
upheld
in
examination;
they
breviated
were
Martinez,
35;
see also Ber
only
any challenges
to make
for cause based
nard
(Tex.Crim.App.
S.W.2d 703
potential jurors’
on the
attitudes toward the
1987),
denied,
cert.
penalty.
death
(1988).
allowed to examine each individual concern- that Article 35.16 contains “an exclu regarding penal- grounds removing their attitudes the death list” all sive ty. juror a sufficient of venire- When number for cause. appellant’s pellant explain specifically
3. We note that
brief
laden with
does not
how
conclusory arguments
theories
which assert
court's decision to limit voir dire interfered with
example, ap-
right
error but fail to show harm. For
to counsel. How was he harmed?
—
denied,
—,
Allridge
U.S.
App.1992),
484-
cert.
—
dеnied,
(1993).
(Tex.Crim.App.1991),
A
cert.
A be struck for properly for cause can be as- 35.16, grounds specifical- despite as on which as unfit under Article her serted are ly 35.16, enumerated in where such that she will survive “crisis.” surances challenge twenty-eighth point is based on facts that show of error is Appellant’s juror ‘incap- prospective that the would be overruled. jury.’ or unfit able to serve These twenty-nine Point voices challenges, upon any which not based sustaining that the court erred contention ground specifically stat- enumerated objection proper question to a the State’s ordinarily utes are to the addressed sound Al- during the examinatiоn of veniremember judge. discretion of dridge.
(citation omitted). record, According to the coun- venireperson The record indicates that explained special punishment is- sel the two Hodgkins early voir in her individual dire explained and then sues veniremember informed the of her nervous- court extreme judge give jury a that the either would 1902). (XVII, Noting ness. that she was mitigation jurors or third issue instruct the physically shaking, the court offered to ex- nullify one issues two her, appellant objected, requesting cuse they mitigating cir- voting “no” if believed give “soothing instead for the court to her justified im- cumstances which life existed 1905). (XVII, instructions” calm her. prisonment they if the evidence even believed examination, Hodgkins During her stat- Ms. reply affirmatively. The was sufficient to “really not” ed that she would rather serve *6 ensued, following giving tо appellant’s rise on the but that she would emo- survive point of error: tionally physically she sur- because had (XVIII, “crisis-type Aldridge]: I’m not that I vived situations” before. sure [Venireman 1009-1010). Though appeared fully. knowing- she to I become understand would never tranquil progressed, ly killing more her examination participate as in another human be- might reap- you’re ing. saying she stated that her And that to stand nervousness belief, pear my during that lie deliberations. She asserted I would have to about adversely questions. her health would not be affected. two responses to these challenged The under Article State cause do [Appellant’s counsel]: You’re able to 35.16(a), objected, appellant the court that. granted explaining: challenge, the State’s Aldridge]: I’m able lie to [Venireman [Hjaving this оbserved witness’ demeanor it? about totality upon and conduct ... based Yes, [Appellant’s Counsel]: third— circumstances, of her con- statements 103). (XI, objection to asser- The State’s cerning her room and conduct could in his tion that veniremember lie doing physically, it her court what to to two issues was sus- answer going impose upon is not this citizen a to tained. through I duty going this trauma.... well-being, having am her concerned about questions right proper The to ask brought observed her. I it to counsel’s right to misstate the does not include attention.... State, e.g. 860 law. See Zimmerman 1951-1952).
(XVII,
89,
(Tex.Crim.App.1993), vacat
96-7
—
expose
grounds,
facts of
case
not
ed and remanded on other
U.S.—
this
do
374,
324,
,
126
judge’s
114
L.Ed.2d
great
abuse of the trial
discretion
S.Ct.
(1994).
reaffirmed,
matters
are
left to those
Article 46.02 Richard does not he appellant competency purposes Coons examine for for of Article 46.02. to ested witness” insanity though required by even he had testified Amend- That Sixth Coons against at trial. appellant provide his first with notice as to ment to defendant appointment requires 46.02 of “disinter- scope psychiatric of a examination does experts ested” to examinations. make such not him disinter- render eithеr interested or ested. appellant’s notice of to Pursuant intent present insanity defense the cause now not Appellant argues also that Coons could review, under the State filed a motion re- appellant’s be- be “disinterested” at retrial questing appointment of Coons to exam- against appellant at he had testified cause appellant. granted ine The trial court that the first trial. The fact Coons testified pretrial hearing appellant motion. At a as- against years ago appellant fourteen does serted that Coons was not a disinterested or alone establish that he was is biased party he had at because testified against appellant. evidence of bias is Some judge ap- first trial. The trial declined required. reject argument point psychiatrist another and ordered coun- expert that if an has reached a conclusion sel to interfere with Coons’ examination. testified, the ex- unfavorable to him and so
Appellant withdrew his notice intent pert law biased. is as matter of insanity raise the later defense. actually he was Without evidence that bi- insanity confirmed the of the de- withdrawal appellant, that against ased we cannot find punishment fense. Dr. Pesikoff testified appointing the court abused its discretion in legally for the that appellant defense was not appellant. Appellant’s Dr. Coons examine insane at the time of the offense. thirty-first point of error overruled. State, In Sterling v. denied, (Tex.Crim.App.1990), cert. Sentencing Trial (1991), 115 L.Ed.2d S.Ct. Appellant alleges in his eleventh professional claimed that trial court in its erred Hospital, staff of Rusk em State because charge jury, accepting an incom ployed by the could not be “disinter verdict, plete illegal sentencing and in meaning ested experts” within the of Article authority to do to death without the Stating qualification 46.02. of ex court Appellant explains so. the trial pert witnesses is a which rests determination jury the to submit to the “deliberate failed within the discretion of the trial court and special issue ness” the version abuse, not be absent clear held disturbed 37.071(b)(1) He applicable Art. his case. Sterling had failed to establish such an explains never further that since psychiatrist abuse. fact that a works requisite issue, the ver answered the does not that he is alone establish incomplete illegal. Appellant dict was Byrd v. biased. Id. Seе also Von *8 not argues also of death is the sentence 883, (Tex.Crim.App.1978), cert. 895-7 authorized, is because the “deliberateness” denied, 967, 2418, 441 U.S. 99 S.Ct. sue was answered. (1979). L.Ed.2d 1073 bar, Appellant charge no The submit- Similarly, in the at abuse of correct. case jury, ted the and therefore the verdict Appellant discretion has been established. to imposed in his any argument and the put fails to forth much less returned sentence contrary the of the showing actually was case were mandate evidence that Coons legislature expressed argues Dr. in as in Article 37.071’s Appellant biased. Coons 5., See, 880, dates. Tex.S.B. Sec. testifying appellant’s first trial became an effective (1991) Chapter agent Leg., R.S. of the State. cites Estelle v. 72nd V.T.S.L.S. Smith, 1866, in 454, oversight The of the trial court 451 U.S. 101 S.Ct. 68 838. (1981). object failing in submitting, and the State L.Ed.2d 359 it is true that While to, рunishment per- charge was purposes the incorrect Coons was for of Sixth Amendment haps the amendments analysis agent it due to then recent found to be an of jury special ‘yes’ of in shall return a verdict Article 37.071. As reflected both the offi- submitted.... unofficial versions of the Texas Code or ‘no’ on each issue cial and Procedure in circulation at the of Criminal (e) If the returns an affirmative find- 1991, trial, Ar- time of November under this on each issue submitted by Bill ticle 37.071 had been amended Senate article, the court shall sentence the defen- No 880. Section of the bill deleted death. dant to special “deliberateness” issue and added the added). mandate, By statutory (emphasis “anti-parties” special issue. See Tex.S.B. required in the trial court was (1991) 880, Leg., Chap- 72nd R.S. V.T.S.L.S. issue to case to submit the “deliberаteness” bill, ter 838. 5 of the also reflected Section jury, to return circulating of Code of in the versions addressed the “deliberateness” verdict which Procedure, unequivocally stated: Criminal issue, of could not be and the sentence death (a) Sep- The effective date of this Act is pronounced without an affirmative answer to 1, 1991, change tember and the law Yet, question. appel- the “deliberateness” by applies only Act to an offense made this charged jury was not with the issue lant’s September that is committed on or after and therefore did not return an answer to it. 1991. record,
According to the it was at request the trial lant’s court did (b) An date offense before effective of pun- issue in the submit the “deliberateness” this Act is covered the law effect charge. appellant’s requеst At ishment committed, when the offense was and the “anti-par- trial court submitted instead the former law is continued in effect for this appeared special ties” issue as in the amend- purpose. ap- ments to Article 37.071 not in effect for added). (Emphasis leg- The mandate of the object pellant’s failed to case. State unequivocal. only islature is Not did the the substitution. legislature mandate that the amendments only were effective for offenses committed appeal, argues ap On the State 1, 1991,” September “on or after pellant complain cannot because the im now legislature specifically also mandated that for proper jury charge was altered and submit prior September offenses committed request. The cites ted at his own 1991 the version of Article 37.071 in effect on Livingston v. apply. the date of the offense would denied, (Tex.Crim.App.1987), cert. (1988). Thus, special issues to be asked But, Livingston murder defen appellant’s punishment charge were those requested, dant had addition to the man offense, May in effect at the time of the issue, datory of special the submission May in pertinent part Article 37.071 issue, “provocation” special which is third required: mandatory only provo if there is evidence (b) presentation On conclusion of the 37.071(b)(3). cation the victim. See Art. evidence, the court shall submit the Livingston complain held that could not following jury: issues to the improper “provoca submission of about the (1) whether conduct defendant issue, explaining: tion” that caused the death the deceased was Error, any, if was initiated and was to deliberately and with the rea- committed appellant. long- It the benefit of expectation sonable that the death of *9 may standing rule that a defendant result; deceased or another would charge request charge a and when that is (2) probability whether there is a that the given requested complain appeal of as defendant would commit criminal acts of any error. continuing that a violence would constitute society; ...
threat and distinguishable. Living- Appellant’s case is (c) gratuitous spe- of a prove each sub- ston dealt with inclusion The state must issue doubt, issue, statutorily of a beyond a reasonable and the cial not the exclusion mitted question into In required Appellant’s being.” is more come criminal matters the issue. existence elements of an offense are сomplex. and governed by legisla- the effective date of the Though precedents strong some are Article tion. If effective dates of 37.071 the error, ly appellant’s point it analogous to of seriously, appellant was are taken sentenced presented question one of seems that the to death a version of under nonextant 37.071. impression; whether the dates first effective Neither a trial court nor a criminal defendant statutes, by may legislature of mandated the statute, bring may being especially a into by capital be waived or forfeited murder against legislature. explicit will of law, It is a and defendants? of questions 37.071, law are of province since of In the its case of Art. effective courts, specific question a is whether dates define offense. This is so because the may ignore unequivocal, legis trial court effective what elements a dates determine latively effect Article capital mandated dates of must find to establish a murder 37.071, capital at a punishable even when murder defen In by death. case the reasons, following defining power dant’s behest. For we especially of effective dates is may offense, hold that a defendant not waive and a poignant; May at the time of the ignore jury find, trial court cannot dates effective a 37.071 doubt, of beyond Article 37.071. a reasonable committed murder with “deliberateness” be- types three There are of rules our Thus, fore he could be sentenced to death. 1) legal requirements system: Absolute and through of Article the effective dates 37.071 prohibitions which cannot be or for waived legislature capital pun- a murder defined 2) feited; rights litigants of which must be by including the ishable death as element of waived; implemented affirmatively unless “deliberateness” at the time com- 3) rights litigants imple and of which are mitted the offense. upon request and can mented be forfeited In the that the effective sense then dates Sims, parte a to invoke them. Ex failure pun- define what constituted murder (Tex.Crim.App.1993), citing date, given ishable a it is death on analo- (Tex. 851 S.W.2d Marin 279-80 gous statutory definitions. have held Crim.App.1993). statutory may not be definitions altered dates of are The effective statutes request even at of criminal defendants. requirements. require absolute Absolute They requirements. are See absolute Casias prohibitions independent ments and of (Tex.Crim.App. 503 S.W.2d Marin, litigants’ wishes. at 1973) (Defendаnt sworn executed waiver implementation of 279. The these absolute right sentencing; present to be at sen- prohibitions requirements optional is not of Art. tence voided due as violation 42.02 therefore, neither forfei- waivable nor presence defining “made is the sentence as by any party. Id. In table Marin we noted defendant”). jurisdiction of the courts is sentencing procedure far so as the example systemic clearest of such absolute imposed sentence of case death prohibitions. requirements and Id. As we legislature, were not authorized Marin, consents, if even he a defen noted indeed, legislature’s are in with the conflict may County dant tried not be Court mandate, explicit appellant’s case is analo- Id., felony citing e.g., Law for a offense. gous addrеssing cases the waiver of those (Tex. Dial, Garcia v. statutorily required sentencing sentences and jurisdiction, Crim.App.1980). Besides can procedures. optional requirement think of no less than date” of “effective statute. Recently, parte Ex Sims issue courts, jurisdiction empowers presented a defendant could As effective was whether legislation. meaning affirmatively concurrent empower dates waive sentences effective, according guilty when more than one offense word to Webster’s found *10 Dictionary arising episode pros- Collegiate is cause to out of the same criminal Ninth “to
317
have the
action,
alty,
proper procedure was to
single
in a
criminal
or whether
ecuted
trial court con-
punishment;
court assess
prohibition against consecutive sentences
imprison-
to life
sented and sentenced Sorola
Penal Code is
in section 3.03 of the Texas
reversed, holding that
trial
ment. We
subject
and not
even to affirmative
absolute
courts,
of the
the consent
with or without
Noting
principle
waiver.
the well established
mandatory
ignore
parties,
not free to
may
by agreement
a defendant
ren-
in Article 37.071. See
procedures set forth
not other-
legal
punishment
a
which is
der
also, 37.071;
McKinney,
parte
688
law,
Ex
authorized
we held:
wise
(Tex.Crim.App.1985);
parte
Ex
S.W.2d 559
language
§
creates an abso-
[of 3.03]
This
(Tex.Crim.App.1981);
Bailey,
741
626 S.W.2d
general
of a trial court’s
lute restriction
(Tex.Crim.
Jackson,
parte
scribed Article 37.071 are man- We hold datory may effective dates of Article not be waived. In Sorola v. the mandated requested by (Tex.Crim.App. in favor of the scheme 37.071 1985), that the ver- example, parties agreed appellant. must also hold both incomplete it did not answer the pen- had the death dict is since because the State waived principle capital special that a one of the issues left unanswered 6. Sorola relied on may jury jury trial. jury, denying murder dеfendant not waive Since the thus Eads a trial. precedent analogous Here too judge enter a case could not by appellant's raised case. In Eads v. affirmatively unless the sentence of death (Tex.Crim.App.1980), we re- deliberateness, imposing answered the issue of imposed capital the life sentence on a versed effectively provided an the death sentence he neg- murder defendant where the returned Thus, imposi- to that issue himself. answer issue, provocation special ative verdict on the appellant’s case is tion a sentence of death in had failed to answer the first two issues. jury punishment analogous to the waiver of a accepting incomplete of the We held that trial, repeatedly we have held is not within which imposing verdict and a sentence on the verdict powers accused of murder. of one answering to the court "no” to was tantamount *11 838, 5, Sept. 1991. p. § eff. eh. required special issue. The “deliberateness” tainted; capital committed any Art. For offense is likewise sentence of death before 1, 1991, 37.071(e) law at the time of September required an affirmative answer to find required an affirmative appellant’s a sentence the “deliberateness” issue before jury by the before the imposed. Appellant’s ing elev- of “deliberateness” of death could be to sentence the trial court was authorized enth of error is sustained. 1.14(a), Article accused to death.* Under remaining light holding, of our V.A.C.C.P., against whom a accused affecting points arising from and of error pen imposition of the deаth the State seeks stage appellant’s tri- only punishment of by system to alty permitted waive is not al, sufficiency challenge of none of which jury that a jury a trial. I take this to mean evidence, as moot.7 are dismissed assigns the finding every issue the law on 44.251, we the mandate of Article Under feature of the jury to decide is an absolute of death must vacate sentence parties. system, optional Marin with to the district court for further and remand (Tex.Cr.App.1993). proceeding in accordance with the dictates of requested to be tried appellant himself That 44.29(c). Article therefore, regime, punishment under the new a forfeiture or even an cannot serve as either McCORMICK, P.J., and MILLER requirement that a express waiver of the JJ, dissent. WHITE prerequi made finding of deliberateness be J., CAMPBELL, participаting. The law a sentence of death. site to lawful a appellant simply prohibits applicable to this CLINTON, Judge, concurring. judgment that includes a sentence of death cause, join opinion I in this the Court’s jury finding of a of “deliberate the absence qualification separately to add a to its write ness,” to enter such and the trial court erred point of treatment of eleventh pre judgment. need not be a Such error opinion frames the issue error. The Court’s State, supra. appeal. for Marin served of statutes as whether the “effective dates I requirements.” Op. p.at are absolute MALONEY, Judge, concurring. significant believe this to be subtle but join opinion with the I Court distortion of the true issue this cause. following note. statutory provision controls at What statutory at the time of the offense simply a matter of The law given time is terms, assess the death By legisla that before a court could construction. its the 1991 only penalty must have 37.071 was made tive amendment Article requir- to it for its answer an issue apply only after its submitted to offenses committed was “delib- ing them to find that the conduct September date. See Acts 1991 effective conviction, affecting precedent points tal murder 7. Some of the unaddressed —said punishment testimony pattern by of Dr. Coons as to troubling they in that reflect a issues. disregard court of for certain State and trial principles. constitutional Points one and basic legislative disregard for the We note that the two, lynch-mob example, complain of the for poignantly reflects the of Art. 37.071 mandates single entry atmosphere file into created escalating disregard constitutional pattern for eighty-five of about uniformed the court room part the trial court and the order on the police mourning with ribbon and armed officers appellant's is the rule-of-law case. Nowhere badges. particularly taped unset- over their It is courts, and our important than in our more apparently tling was the demonstration policing agencies. prosecuting and attorney give prosecuting orchestrated * closing argument. Appellant com- effect to his tried in November was closing argument V.A.C.C.P., 37.071, plains thus, the defense’s was the former Article sitting police controlling punishment provision. made over the head of a officer Had 1993, however, August of the crowded the floor within bar because tried after lant been 37.0711, V.A.C.C.P., Similarly apply. disturb- would Under сondition of the court room. disregard not autho- provision, the trial court was State's and trial court’s either was the to death sans Supreme to sentence legal precedent Court of the rized set finding prior capi- of "deliberateness.” reversing appellant's affirmative United States *12 required. statutorily Tex. erate.” This is 37.071(b)(1). art.
Code Crim.Proc.Ann. from waiv- prohibits The law a defendant by jury in a case where the seeking penalty. the death This too art. statutory. Tex.Code Crim.Proc.Ann. 1.14(a). require us
For us to hold otherwise would judges. legislators rather than to act as BASDEN, Appellant, Mark Texas, Appellee. The STATE of COLEMAN, Appellant, McArthur Texas, Appellee. The STATE of 0042-94, Nos. 0245-94. Texas, Appeals of Court of Criminal En Banc. Feb. Holmes, Huntsville,
Debbie S. lant in No. 42-94. Debottis, Sp. Prosecution M.
Gina Huttash, Unit/Huntsville, Robert Austin, 42-94. Atty., for State No.