Allen v. State

¶1dissenting.

¶2Capital murder is capital felony. V.T. C.A., Penal Code, Sec. 19.03(b). By definition, a capital felony is one which provides death as a possible punishment;1 in truth, it is the death penalty feature which distinguishes a capital felony from all other crimes. As the plurality said in Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2992, 49 L.Ed.2d 944 (1976), “the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two.”

¶3It follows that an indictment for capital murder is proper only where one of the possible penalties is death. Section 12.31(a), supra; Woodson v. North Carolina, supra. Yet the record in this case unequivocally shows that the State knew, before appellant was indicted, that he was sixteen years old at the time of the offense, and therefore too young to be subjected to the death penalty. V.T.C.A., Penal Code, Sec. 8.07(e).

¶4Thus, it had been established, well before appellant was indicted, that death was not a possible penalty for the offense. I would hold in such a case that capital murder was not an offense “liable to indictment” under Article 20.09, Vernon’s Ann.C.C.P., and, therefore, the grand jury did not have the power to inquire into a capital murder indictment in this case.2 Once it became evident that the appellant was not yet seventeen years old at the time of the offense, the grand jury was precluded from indicting him for capital murder. Similarly, the trial judge was required to dismiss any capital murder indictment against appellant as *848soon as appellant’s age made itself known. Ex Parte Davila, 530 S.W.2d 543 (Tex.Cr.App.1975).

¶5In Davila, the petitioner was imprisoned after having been convicted for the offense of statutory rape under our former Penal Code. However, his trial and conviction took place after the effective date of our present Penal Code, which lowers the age of consent — from eighteen to seventeen — for females engaging in sexual intercourse.3 In accord with Section 6(b) of the Savings Provisions of our new Code,4 we held that since the prosecutrix in Davila’s case was between seventeen and eighteen years old, the State did not have the power to prosecute Davila after the effective date of the new Code. We held that:

“As we held in our original opinion, this case is controlled by subsection 6(b) of the Savings Provision of our new Penal Code. Under that provision, the trial court was required to dismiss the indictment as soon as it became evident that the conduct alleged was no longer an offense. Once this lack of jurisdiction manifested itself, the sufficiency of the evidence ceased to be relevant, since the indictment should have been dismissed when the evidence was presented showing the complainant to have been over seventeen years of age. [footnote omitted]” Ex Parte Davila, supra at 546.

¶6In addition, I find the majority’s position cannot be reconciled with several decisions of this Court under our former Penal Code which held that a person under seventeen may never be denied bail in a murder case, since such a person may not be given the death penalty.5Ex Parte Enderli, 110 Tex.Cr.R. 629, 10 S.W.2d 543 (1928); Ex Parte Walker, 28 Tex.App. 246, 13 S.W. 861 (1889); Walker v. State, 28 Tex.App. 503, 13 S.W. 860 (1890); all of these cases were cited with approval in Ex Parte Contella, 485 S.W.2d 910 (Tex.Cr.App.1972), where we held that bail could not be denied in a capital case under our former law after the Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

¶7In Ex Parte Walker, supra, 28 Tex.App. at 247, 13 S.W. at 861, the court held:

“But a person who commits murder in the first degree before he arrives at the age of 17 years cannot, under our statute, be punished capitally; that is, with death. . As to him the punishment cannot be death, and his offense is not, therefore, a capital one; for an offense is not capital which may not be punished with death. This statute abolishes capital punishment in all cases where the offender has not, at the time of the commission of the offense, arrived at the age of 17 years.”

¶8And in Ex Parte Adams, 383 S.W.2d 596, 597 (Tex.Cr.App.1964), this Court held that “when proof was made that relator was under seventeen years of age when the offense was committed, the case pending against him was no longer a capital case and he could waive a trial by jury and enter his plea of guilty before the court.”

¶9It follows that the grand jury in this case did not have the power to present, and the trial court did not have the power to try, this capital murder indictment against appellant. Accordingly, I would hold that the grand jury, and subsequently the trial court, erred by entertaining this indictment for capital murder.

¶10This error was compounded when appellant was denied his statutory right to trial by jury on the issue of his punishment. See Art. 37.07, Vernon’s Ann.C.C.P. Of course, had appellant been indicted for a non-capital felony, he could not have been deprived *849of this right, since he filed a timely and proper motion requesting that the jury assess punishment. Art. 37.07, supra; Gibson v. State, 549 S.W.2d 741, 742 (Tex.Cr.App.1977), and authorities there cited.

¶11I would therefore reverse the judgment and order that the prosecution under this indictment be dismissed.