916 SW2D 506 - Monterrubio v. State

¶1DISSENTING OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

KELLER, Judge,

¶2dissenting.

¶3The majority opinion1 assumes that the law requires proof of corpus delicti for the underlying felony offense in a capital murder prosecution. It is fairly apparent to me, though, that the instances in which this Court has held that there is such a requirement are the result of an oversight.

¶4The proposition that the State must establish the corpus delicti of the underlying felony in a capital murder prosecution was first announced in Gribble v. State, 808 S.W.2d 65, 71 (Tex.Crim.App.1990), but that proposition did not receive a majority of the votes. Three judges dissented, one judge concurred in the result, and two judges specifically “concurred only” with the resolution of the point of error involving corpus delicti. In other words, the above proposition received the approval of only three judges.

¶5Two majority opinions by this Court cite Gribblefor the proposition that the law requires proof of the corpus delicti of the underlying felony, but neither of those opinions acknowledged that Gribblewas a plurality opinion as to that issue. Emery v. State, 881 S.W.2d 702, 705 (Tex.Crim.App.1994).2Chambers v. State, 866 S.W.2d 9,15-16 (Tex.Crim.App.1993). In both Emeryand Chamberswe held that the evidence was sufficient to establish the corpus delicti of the underlying felony. It is evident to me that because the evidence was sufficient, the omission in the citation to Gribblesimply went unnoticed. Had the Court intended to establish a new requirement of proof, I believe that it would have said so rather than merely citing Gribbleincorrectly.3

¶6This Court may on its own motion order review of an issue not presented by a petition for discretionary review. Tex.R.App.P. 200(a) and 201. I believe that the Court should do so in this case and confront the issue of whether the plurality holding in Gribbleshould be the law of this state. Because a majority of this Court declines to do so at this time, I respectfully dissent.

MANSFIELD, J., joins.

¶7. The Court of Appeals reformed appellant's conviction for capital murder to a conviction for murder after finding the evidence insufficient to establish the corpus delicti of the underlying felony. The majority remands the cause to the Court of Appeals to reconsider that determination for reasons not here relevant.

¶8. The author of Emeryhas submitted a correction that would indicate that Gribblewas a plurality decision.

¶9. The concurring opinion says that this Court in Fisher v. State, 851 S.W.2d 298 (Tex.Crim.App. 1993), "followed Gribbleas controlling authority on the corpus delicti rule, identifying Gribbleas a plurality opinion.” True, but Fisher, as a non-capital case, cited Gribble only for the general corpus delicti rule, i.e., that a defendant’s confession must be corroborated by independent evidence that a crime was committed. Fisherdid not cite Gribblefor the proposition that is the subject of the present debate, i.e., whether the corpus delicti of the underlying felony must be established in a capital murder case.