Fearance v. State

¶1dissenting.

¶2I respectfully file this dissenting opinion. For reasons that I will give, John Fearance, Jr.’s conviction for capital murder and death sentence should be set aside, and not affirmed. Henceforth, I will refer to Fearance as appellant.

¶3I find that the majority opinion erroneously disposes of appellant’s point of error *515numbered seven, which asserts the following: “The trial court erred in overruling appellant’s timely motion to quash the second paragraph of the indictment, which used murder twice to create a capital offense,” and his point of error numbered eight, which asserts the following: “The conviction violates due process because it was predicated on an indictment which permitted a double use of the alleged murder to bootstrap the offense into a capital murder.” The majority opinion correctly sets out in its footnote 1 on page 492 of its opinion paragraphs one and two of the indictment.

¶4The record reflects that the trial judge denied appellant’s motion to quash the second paragraph of the indictment and also, over objection, instructed the jury on paragraph two of the indictment. The jury returned a general verdict finding appellant guilty of capital murder, without specifying under which paragraph of the indictment it found appellant guilty of capital murder. Thus, if the second paragraph of the indictment is insufficient to sustain a conviction for capital murder, neither appellant’s conviction for capital murder nor his death sentence can stand.

¶5Contrary to what the majority opinion might imply, the issues that appellant actually presents have never before been presented to or resolved by this Court.

¶6It is perhaps true that because appellant’s attorney on appeal combined in his brief his points of error for discussion, and relied upon multiple theories in support of his points of error, which is understandable given the fact that the issues he presents, or attempts to urge, as far as my research at this time reveals, have never before been presented to this Court for resolution, this causes the majority opinion of the Court not to understand the real arguments that he makes in his brief.

¶7However, a clear reading of counsel’s arguments makes it obvious to me that what counsel is actually contending is that, if the second paragraph of the indictment is defective in the sense that it will not support a conviction for capital murder under Y.T.C.A., Penal Code, § 19.03(a)(2), and the evidence is sufficient to support a finding on that count of the indictment, then, because the jury returned a general verdict, which means in this instance that its verdict could have been based on either the first or second paragraph of the indictment, appellant’s conviction for capital murder and death sentence should not be permitted to stand. Furthermore, it is also clear to me that counsel for appellant correctly contends that one should not be convicted of the offense of capital murder under § 19.03(a)(2) if the underlying offense has the element of murder which is the same murder that is alleged as the primary murder.

¶8The majority opinion on page 495 of its opinion states that “The Texas capital murder statute narrows the class of death-eligible murderers.” It is true that, as a matter of federal constitutional law, the narrowing of individuals who are subject to being put to death after being convicted for committing capital murder first occurs at the guilt stage of the trial and not at the punishment stage of the trial. However, that does not answer appellant’s counsel’s assertion that in this instance paragraph two of the indictment did not perform that narrowing function because when the jury was permitted to find appellant guilty of “burglary by murder”, which was a first degree felony, it automatically found him guilty of capital murder.

¶9The Texas capital murder scheme has been approved by the Supreme Court of the United States. See Barefoot v. Estelle, 463 U.S. 880, 896-97, 103 S.Ct. 3383, 3396, 77 L.Ed.2d 1090 (1983); Jurek v. Texas, 428 U.S. 262, 268-274, 96 S.Ct. 2950, 2954-57, 49 L.Ed.2d 929 (1976). Also see Franklin v. Lynaugh,-U.S. -, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988); Thompson v. Lynaugh, 821 F.2d 1054, 1059 (5th Cir.1987). In Barefoot, supra, the Supreme Court upheld V.T.C.A., Penal Code § 19.03(a)(2) after finding that it sufficiently narrows the class of persons who are subject to being convicted of capital murder, by requiring the pleader to allege and prove at least one independent aggravating specification *516which causes the offense of murder to be elevated to capital murder.

¶10In paragraph one of the indictment in this cause the State clearly satisfied its burden of pleading a capital murder offense under § 19.03(a)(2). However, in pleading the second paragraph the way it did, the State actually “spent” the murder that it needed to establish the primary offense of murder, and because the jury’s verdict could have been based upon this paragraph of the indictment appellant’s conviction for capital murder should not be permitted to stand.

¶11What also causes the majority opinion to be extremely flawed is that it fails to comprehend that § 19.03(a)(2) only narrows the class of persons who subject themselves to being tried for capital murder. In Texas, a further narrowing of those persons who should actually be put to death occurs at the punishment stage of the trial when the jury is called upon to answer the special issues submitted to it pursuant to Art. 37.-071, supra.

¶12I find that to really appreciate appellant’s complaint about the second paragraph of the indictment it is first necessary to acknowledge and understand the well established principle of law that if a charging instrument contains multiple counts as to how the offense occurred, and one of the counts is defective, and the evidence tends to support both counts, and a general verdict is returned by the jury, a judgment of conviction must be set aside. See, for example, Mc Clain v. State, 153 Tex.Cr.R. 428, 220 S.W.2d 896, 897 (1949); Martin v. State, 142 Tex.Cr.R. 623, 156 S.W.2d 144 (1941). Also see Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931).

¶13To further appreciate appellant’s points of error and his attorney’s arguments thereunder, it is necessary to understand and appreciate the fact that counsel is not claiming under these points of error that the evidence is insufficient to support an affirmative finding on either paragraph one or paragraph two of the indictment. Of course, had counsel only asserted under these points of error that the evidence was insufficient on one count of the indictment, and did not make such claim as to the other count of the indictment, then the issue would be controlled by this Court’s decision of Pinkerton v. State, 660 S.W.2d 58 (Tex.Cr.App.1983). In Pinkerton, supra, the defendant did not claim on appeal that one of the counts of the indictment was defective; he only claimed on appeal that the evidence was insufficient to support a finding of guilt on one of the counts of the indictment. He did not challenge the sufficiency of the evidence as to the other count of the indictment. This Court rejected his contention after it found that the evidence that went to the other count of the indictment, about which the defendant made no complaint, was sufficient to sustain the jury’s general verdict. Thus, it was unnecessary for this Court to determine the correctness of appellant’s contention that the evidence was insufficient on the count about which he complained.

¶14The indictment in this cause alleges in the first paragraph, for purposes of elevating the offense of murder to capital murder, that appellant murdered Faircloth in the course of committing the offense of burglary of a habitation with intent to commit theft, i.e., that appellant entered Faircloth’s residence or habitation without Faircloth’s effective consent, with intent to commit the offense of theft, and in the commission of the offense of burglary committed the murder of Faircloth. This clearly alleged both the offense of intentional murder, see Y.T.C.A., Penal Code § 19.03(a)(2), and the underlying offense of burglary, see V.T.C.A., Penal Code § 30.02(a)(1), thus causing the offense of murder to be elevated to capital murder. Under § 19.03(a)(2) capital murder is committed when the individual intentionally murders another individual, see § 19.02(a)(1), in the course of committing or attempting to commit the offense of burglary. The State pled in the first paragraph of the indictment an intentional murder and also pled the elements of the offense of burglary pursuant to § 30.02(a)(1), which provides that an individual, without the effective consent of the owner, enters a habitation with intent to commit a felony *517or theft. Murder, however, is not a necessary element of this kind of burglary offense.

¶15The second paragraph of the indictment, however, alleges, for purposes of elevating the offense of murder to capital murder, that appellant murdered Faircloth and that the murder occurred in the course of committing the offense of burglary by murder of Faircloth. See V.T.C.A., Penal Code § 19.02(a)(1) and § 30.02(a)(2).1

¶16Thus, in this instance, the State alleged in the second paragraph, as an element of the offense of burglary, the same murder that it alleged as the primary offense of murder. Thus, as to the second paragraph of the indictment, the allegations effectively allege that appellant committed the offense of capital murder of Faircloth by committing the offense of murder of Fair-cloth while in the course of committing the murder of Faircloth when he committed the burglary of Faircloth’s residence.

¶17Was the second paragraph of the indictment insufficient to allege capital murder, as appellant’s counsel asserts; i.e., was it insufficient to establish capital murder because in alleging that appellant committed the underlying offense of burglary by murder the State “spent” the murder that it needed to establish that the murder was a § 19.03(a)(2), supra, or a capital murder offense?

¶18The record reflects that the jury in this cause was instructed on both paragraphs of the indictment. In finding appellant guilty of capital murder, the jury returned a general verdict. See Art. 37.07, Sec. 1(a), Y.A.C.C.P. The jury’s verdict actually reads: “We, the jury, find the defendant guilty of capital murder, as charged in the indictment.” Because the jury did not specify in its verdict, nor was it requested to do so, under which paragraph it found appellant guilty of capital murder, and because there is nothing in the record that might reflect or indicate on which paragraph the jury found appellant guilty of capital murder, it is impossible to state that the jury did not base its verdict on paragraph two.

¶19As I previously pointed out, this Court has long subscribed to the rule “that, where an information [or indictment] contains several counts, one of which is fatally defective, and all counts are submitted to the jury, and the evidence tends to support the offense charged in the defective count, and a general verdict is returned by the jury, a judgment of conviction will, under such circumstances, be set aside. (Citations omitted.) (Emphasis supplied.) McClain v. State, supra, 220 S.W.2d at 897. Also see Martin, supra, and Stromberg, supra. In this instance, the evidence is clearly sufficient to support a finding of guilt on both paragraphs of the indictment.

¶20In responding to appellant’s contention that the second paragraph of the indictment was insufficient to allege the offense of capital murder, and was thus defective to plead capital murder because it alleged the same murder twice, both as an element of the primary offense of murder and as an element of the underlying offense of burglary by murder, the State relies upon this Court’s decision of Pinkerton v. State, supra. However, the issues presented in this cause and the issue that was presented in Pinkerton, supra, are, as I have previously pointed out, not the same. The State’s reliance upon Pinkerton, supra, as authority is clearly misplaced.

¶21In Pinkerton, supra, it was alleged in one paragraph of the indictment that the defendant committed the primary offense of murder of Sarah Donn Lawrence and alleged in the same paragraph the underlying offense of robbery of Sarah Donn Lawrence. In another paragraph of the indictment it was alleged that the defendant committed the offense of murder of Lawrence, and it was also alleged in the same paragraph the underlying offense of burglary of a habitation owned by David Lawrence, her husband, with the intent to rape Sarah Donn Lawrence. As easily seen, the State in that cause only alleged *518one primary murder offense and alleged two different underlying offenses, neither of which alleged the same murder was an element thereof.

¶22On appeal, the defendant in Pinkerton, supra, did not complain about the wording of the indictment. The defendant challenged the sufficiency of the evidence as to the underlying robbery offense. He did not assert that the evidence was insufficient on the underlying burglary offense. This Court rejected his contention, finding that, because the State had proved that the offense of murder occurred while in the course of committing the offense of burglary there was no necessity to make the determination whether the State also proved that the offense of murder was committed in the course of committing the offense of robbery. The issue here, however, is not whether the evidence is sufficient to sustain the allegations in the first paragraph of the indictment. The issue instead is whether the State may allege in one paragraph of the indictment the same murder in order to establish both the primary offense of murder and the underlying offense.

¶23As its authority for overruling appellant’s counsel’s contention that the second paragraph of the indictment was insufficient or defective to correctly allege the offense of capital murder, the majority opinion relies heavily upon Barnard v. State, 730 S.W.2d 703 (Tex.Cr.App.1987). Its reliance upon Barnard, supra, however, is clearly misplaced.

¶24In Barnard, supra, the indictment alleged that the defendant murdered TUAN NGUYEN by shooting him with a rifle and that such occurred in the course of committing the offense of robbery of NGUYEN NGUYEN, thus clearly alleging different victims. Contrary to the offense of burglary by murder, the element of murder is not an element of the offense of robbery. The defendant asserted on appeal that “The indictment is defective as a capital murder indictment in that it uses the act constituting the murder as an element that converted a theft into a robbery and then uses the robbery as the aggravating factor that converted the murder into a capital murder.” The indictment, however, did no such thing because it alleged that the defendant murdered one individual and that the murder occurred in the course of the defendant robbing another individual. The alleged underlying offense of robbery, however, did not have as an element thereof the same murder, and the State did not allege in the indictment that it was an element of that offense, as occurred here. Therefore, in Barnard, supra, the State never “spent” the primary murder when it alleged the underlying felony offense of robbery.

¶25The State in this cause, in alleging in the underlying felony offense of burglary by murder the element of murder, which is the same murder that it alleged “was the murder committed in the course of committing the underlying offense”, actually “spent” the murder that it needed to establish the offense of capital murder. The second paragraph of the indictment was clearly subject to appellant’s motion to quash, because it did not allege the offense of capital murder; it only alleged the first degree felony offense of burglary by murder, and because it “spent” the murder in that cause, that element could not also be used to establish the offense of capital murder.

¶26Although I cannot agree with the majority opinion that Aguirre v. State, 732 S.W.2d 320 (Tex.Cr.App.1987), is authority for rejecting appellant’s attorney’s theory that the doctrine of merger applies, I am compelled to agree with its conclusion that neither the Common Law doctrine of merger nor the felony murder statute, see V.T. C.A., Penal Code § 19.02(a)(3), is applicable to this cause. In this instance, there never was any merger of offenses; there was simply an attempt by the State to plead and use the same element in the underlying offense, which was murder, that was the same murder that it used to elevate the offense of murder to capital murder. However, “when the general verdict of the jury might rest upon an ‘untenable’ theory of the way the offense was committed ..., then a general verdict of guilt cannot be sustained.” Aguirre, supra, at page 328 (Teague, J., dissenting opinion.)

¶27*519The majority opinion appears to overrule appellant’s points of error numbered seven and eight because it finds that the evidence is sufficient to sustain a capital murder conviction under either the first or the second paragraphs of the indictment. As previously pointed out, that, however, is not the issue that this Court should be resolving in this cause.

¶28The majority opinion next relies upon Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988), as authority to overrule appellant’s above two points of error. Its reliance upon Lowenfield, supra, is also clearly misplaced.

¶29In Lowenfield, supra, the defendant was charged in Louisiana by indictment with committing five counts of first degree murder. The indictment alleged that he murdered his girlfriend, her four year old daughter, the natural father of the daughter, his girlfriend’s stepfather, and the stepfather’s wife, in the same “criminal episode” or the same “criminal transaction.” The indictment alleged, as an “aggravating specification”, that in killing his victims the defendant had the specific intent to kill or inflict great bodily injury upon more than one individual, which under Louisiana law was a necessary element of the offense of first degree murder. Three times the jury found the defendant guilty of first degree murder. Under Louisiana law, he then became a member of that class of individuals eligible to receive the death penalty.

¶30In deciding whether the defendant Low-enfield should live or die, Louisiana law, contrary to Texas law, requires the jury to find in the affirmative at least one of ten statutory aggravating circumstances. The jury in that cause found in the affirmative two of the ten statutory aggravating circumstances. Under Louisiana law, although it was necessary for the jury to find the aggravating element that caused the offense of murder to be aggravated, in order for the jury to convict the defendant of the offense of first degree murder, the jury was not bound by that finding at the punishment stage of the trial when it came to making the decision whether any aggravating circumstances existed. The jury found it was an aggravating circumstance and the Louisiana Supreme Court found that the evidence was sufficient to sustain that finding. This finding actually comports with our law that provides that in answering the submitted special issues the jury may consider all of the evidence adduced at the guilt stage of the trial. See, for example, O’Bryan v. State, 591 S.W.2d 464, 480 (Tex.Cr.App.1979).

¶31On direct appeal to the Louisiana Supreme Court the defendant Lowenfield did not claim that his indictment was faulty or defective, nor did he claim that the evidence was insufficient to sustain the jury’s verdict that he was three times guilty of first degree murder. He asserted that his sentence of death could not validly rest upon an aggravating circumstance that was also a necessary element of the alleged offenses of first degree murder. The Louisiana Supreme Court considered and rejected this contention under its supervisory powers in death penalty cases, i.e., “[That] court [unlike the Texas Court of Criminal Appeals] reviews every death sentence to determine if it is excessive.” State v. Lowenfield, 495 So.2d 1245, 1256 (La.1985). In making the determination whether the death penalty was excessive, according to its Supreme Court Rule 28, § 1, the Louisiana Supreme Court found that the evidence was insufficient to support the jury’s finding on the non-element aggravating circumstance, but also found that the evidence was sufficient to sustain the jury’s finding on the aggravating circumstance that was alleged as an element of the offense. However, based on past case law, the Court held that this finding would not invalidate the other non-element aggravating circumstance unless it found that this caused “an arbitrary factor to be introduced into the proceedings.” The Court then considered whether evidence of an extraneous conviction and extraneous offenses, which apparently were the basis of the non-element aggravating circumstance, “introduced an arbitrary factor into these proceedings.” It found, as to the extraneous offenses, that, given the facts of the case, such had no impact on the aggravat*520ing circumstance that the Court found was supported by the evidence. As to the extraneous conviction, the Court found that, because the defendant had agreed to this historical fact at the guilt stage of the trial, and because such was admissible at the punishment stage of the trial, it had no impact on the jury’s affirmative finding on the aggravating circumstance that the Court had sustained.

¶32The United States District Court rejected the defendant Lowenfield’s same contention and denied him any relief.

¶33The defendant Lowenfield appealed to the Fifth Circuit Court of Appeals. A panel of the Fifth Circuit Court of Appeals rejected Lowenfield’s contention that “this aggravating circumstance [the same one that was an element of the alleged primary offenses of first degree murder] fails to narrow the class of persons eligible for the death penalty because it does nothing more than duplicate an element of the crime.” Lowenfield v. Phelps, 817 F.2d 285, 288-289 (5th Cir.1987). In rejecting the defendant’s contention, the panel opinion states the following:

Petitioner relies primarily on Collins v. Lockhart, 754 F.2d 258 (8th Cir.), cert. denied, 474 U.S. 1013, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985). In Collins, the Eighth Circuit concluded that there is ‘no escape from the conclusion that an aggravating circumstance which merely repeats an element of the underlying crime cannot perform the narrowing function [required by the Supreme Court.’ Id. at 264. But, we expressly rejected this analysis in Wingo v. Blackburn, 783 F.2d 1046, 1051 (5th Cir.1986), where we stated ‘we fail to see why aggravating circumstances narrow the sentencing discretion any less by being made a constituent element of the crime. The State of Louisiana is entitled to authorize capital punishment for persons guilty of these aggravated acts where the jury does not find that mitigating circumstances justify less than the death penalty.’ See also Evans v. Thigpen, 809 F.2d 239 (5th Cir.1987); Wilson v. Butlers, 813 F.2d 664 (5th Cir.1987). Thus, based upon clear precedent from this circuit, we reject petitioner’s arguments presented in this claim. (289).

¶34The Supreme Court of the United States granted certiorari to the Louisiana Supreme Court in Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988), and held that “the Louisiana scheme narrows the class of death-eligible murderers and then at the sentencing phase allows for the consideration of mitigating circumstances and the exercise of discretion. The Constitution requires no more.”2

¶35One main distinction between the issues presented in this cause and the issue that was presented in Lowenfield, supra, is that the issues in this cause pertain to the guilt stage of the trial whereas the issue there was restricted to the use of an element of the primary offense as an aggravating circumstance at the punishment stage of the trial. The issue here, however, only concerns the guilt stage of the trial, and is whether the State can plead the same murder both to establish the primary offense of murder and the underlying offense of burglary by murder. The issues are obviously poles apart.

¶36Another reason that the majority opinion of this Court is extremely flawed is because it has gotten “aggravating specifications” mixed up with “aggravating circumstances.” Other courts of this Nation have also made this same mistake, however. “Of greater concern is the blurring, by the majority, beyond recognition of the difference between ‘aggravating specifications’ and ‘aggravating circumstances’....” State v. Davis, 38 Ohio St.3d 361, 528 N.E.2d 925 (1988) (Douglas, J., dissenting opinion).

¶37*521Texas, however, does not use the weighing of aggravating circumstances against mitigating circumstances test in deciding whether a defendant convicted of capital murder must live or die. In Texas, whether a defendant might live or die after he has been convicted of capital murder first depends upon whether the jury answers all of the submitted special issues in the affirmative.

¶38Under Texas law, before an individual may be charged with committing capital murder, as applied here, he must commit the offense of murder in the course of committing or attempting to commit the offense of burglary. The statutory underlying offense of burglary thus represents an “aggravating specification” of the offense of capital murder, which, if both the offense of murder and the underlying offense are proved beyond a reasonable doubt, causes the offense of murder to be elevated to capital murder. Under § 19.03(a)(2), the offense of “burglary by murder” is not listed as one of the underlying offenses that can be used to elevate the offense of murder to capital murder.

¶39History teaches us that, after the Supreme Court of the United States struck down the Texas capital murder scheme in Branch v. Texas, decided with Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the Texas Legislature thereafter narrowed the scope of its laws relating to capital crimes and the punishment therefor. Presently, Y.T.C.A., Penal Code § 19.03 narrows the class of persons who may be charged, tried, and convicted of capital murder. Even where the defendant is found guilty of capital murder, this does not mean that he will die. Whether he will live or die in that instance is first determined by the answers that the jury gives to the special issues submitted pursuant to Art. 37.071, V.A.C.C.P. Thus, in Texas, we have a narrowing and then a further narrowing. Art. 37.071, surpa, commences where § 19.03 ends. Art. 37.-071, supra, expressly provides that it is only when the jury answers the submitted special issues in the affirmative that the trial court must impose the death sentence.

¶40I find nothing in the Supreme Court’s decision of Lowenfield, supra, that might reflect or indicate that that Court deviated or intends to deviate from its past holdings that, in order for a state capital murder statute to pass federal constitutional muster, it must “genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder”, Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983), and that “[I]t is constitutionally required that the sentencing authority have information sufficient to enable it to consider the character and individual circumstances of a defendant prior to imposition of the death sentence.” Gregg v. Georgia, 428 U.S. 153, at 189, n. 38, 96 S.Ct. 2909, at 2933, n. 38, 49 L.Ed.2d 859 (1976) (emphasis added.) Also see Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976); Sumner v. Schuman, 483 U.S. 66, 107 S.Ct. 2716, 2720, 97 L.Ed.2d 56 (1987); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978); Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Franklin v. Lynaugh, — U.S. -, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988).

¶41The Supreme Court has held that this narrowing function may constitutionally be provided in either of two ways: the legislature may broadly define capital offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty stage of the trial, or the legislature may itself narrow the definition of capital offenses so that the jury finding at the guilt stage of the trial responds to this concern. Jurek v. Texas, supra. In Lowenfield, supra, the Supreme Court held that the dupli-cative nature of the statutory aggravating specification did not render that defendant’s sentence of death infirm, since the constitutionally mandated narrowing function was performed at the guilt stage of the trial and the federal constitution does not require an additional aggravating circumstance finding at the penalty phase. *522That, however, is not the issue in this cause, mainly because the issues that appellant presents in this cause do not concern the punishment stage of his trial; they only concern the guilt stage of the trial. The main question here is whether the State may use the element of murder in the underlying offense, and then use that same murder to establish the alleged primary offense of murder. This is “double dipping” and not the “duplication” which occurred in Lowenfield, supra.

¶42Furthermore, in Batten v. State, 533 S.W.2d 788, 793 (Tex.Cr.App.1976), this Court ruled that “in the wake of Furmanthe Legislature has adopted a ‘category of cases’ view and has adopted a mandatory procedure to be followed in capital cases where the extreme penalties of death or life imprisonment are involved....”

¶43It is clear to me, if no one else, that where the underlying offense has the element of murder the Legislature did not intend that that same murder could be used to establish the primary offense of murder, for fear that it would run afoul of what the Supreme Court had stated and held in Furman, supra. E.g., Collins v. Lockhart, supra.

¶44Statutory crimes are comprised of elements. A crime is identified by the sum of its elements. When the statutory definition of a crime contains two or more identical elements, the definition is redundant; all but one of the identical elements can be deleted without changing the meaning of the statute. Redundancy is a “useless thing.” It is a settled rule of statutory construction not to interpret laws in such a way as to render an act of the legislature useless. Of course, this Court always presumes that, in enacting legislation, the legislature did not do a “useless thing.” E.g., Heckert v. State, 612 S.W.2d 549, 553 (Tex.Cr.App.1981).

¶45Therefore, when confronted with a statute comprised of elements, two or more of which can be construed either as different or as identical, this Court should generally construe the elements as different. To do otherwise would assume that the legislature did a “useless thing”, i.e., drafted a redundant statute. To avoid such a construction it should always be assumed, in the absence of some compelling reason to the contrary, that all statutory crimes are comprised of unique elements.

¶46In this instance, unless the two murder elements are construed to be different, the statutory offense of capital murder is a redundancy in this variation and produces two anomalies which should be disfavored by sound rules of statutory construction: (1) that the offense of capital murder is sometimes identical with the underlying offense of burglary, and (2) that murder committed during the course of committing criminal trespass is always a capital offense, which appears to be what the majority opinion holds. See page 9 of its slip opinion. However, in the absence of some compelling reason, such as a clear expression of legislative intent, it is unwise to construe the pertinent statutes in this way, not even when one has the “muscle” to do so.

¶47Lastly, I find a great deal of merit in appellant’s counsel’s theory that what occurred in this cause falls under this Court’s principle of law that where the State uses a defendant’s prior conviction to establish an essential element of the primary offense, the State is thereafter barred from using that same conviction to enhance the punishment for the primary offense. See, for example, Wisdom v. State, 708 S.W.2d 840, 845 (Tex.Cr.App.1986); Ramirez v. State, 527 S.W.2d 542 (Tex.Cr.App.1975); and Fletcher v. State, 169 Tex.Cr.R. 506, 335 S.W.2d 613 (Tex.Cr.App.1960). Although in this instance the State did not allege in the second paragraph a prior conviction to enhance punishment, the fact of the matter is that in principle it alleged the equivalent; i.e., in alleging the underlying offense of burglary by murder, it used the same element of murder to elevate the offense of murder to capital murder.

¶48In conclusion, I am compelled to repeat what Justice Blackmun stated in the dissenting opinion that he filed in Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 3446, 77 L.Ed.2d 1134 (1983):

*523The end does not justify the means even in what may be deemed to be a ‘deserving’ capital punishment situation.

¶49The majority opinion’s efforts to engraft an exception onto § 19.03(a)(2), and permit the State to use the same murder element in the underlying offense that is in the primary offense, should cause this Court’s members to be concerned about the validity of Texas’ capital murder statute, especially given the Fifth Circuit’s recent expressions of concern about its validity that it announced in its panel opinion of Penry v. Lynaugh, 832 F.2d 915 (5th Cir.1987), cert. granted in part — U.S. -, 108 S.Ct. 2896, 101 L.Ed.2d 930 (1988). It is majority opinions like the one in this cause that may someday cause the Supreme Court to once again hold that this State’s capital murder statute is, as a matter of federal constitutional law, unconstitutional.

¶50For all of the reasons that I have given, I respectfully dissent to the manner in which the majority opinion overrules appellant’s points of error numbered seven and eight.