             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. AP-74,391



                         PERRY EUGENE WILLIAMS, Appellant

                                                  v.

                                    THE STATE OF TEXAS

                                    ON DIRECT APPEAL
                                  FROM HARRIS COUNTY

       J OHNSON, J., filed a concurring and dissenting opinion.

            C O N C U R R I N G AND D I S S E N T I N G O P I N I O N


       The articles of the Texas Code of Criminal Procedure that deal with trials are very specific

as to the duties of the participants and the rights of the parties. Many articles contains mandatory

language, followed by a condition. Article 33.03 commands that a defendant must be personally

present at trial, but allows the defendant to choose to be absent after the commencement of trial. See

also Garcia v. State, 919 S.W.2d 370 (Tex. Crim. App. 1996). Likewise, the defendant must be

present at sentencing on a felony offense, unless the defendant voluntarily absents himself. TEX .

CODE CRIM . PROC. art. 37.06. Article 36.15 requires the trial court to allow counsel for the state and
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the defendant a reasonable time to present written instructions to be included within the jury charge.

The statute mandates opportunity, but does not require a request from either counsel or require the

trial court to grant any such request. Article 20.03 says that an attorney representing the state is

entitled to appear before the grand jury and present evidence, but does not mandate the presence of

state’s counsel and bars it during grand-jury deliberations. Article 26.052(g) says that the trial court

shall grant a request for advance payment of certain expenses, if the trial court deems the request is

reasonable.    The United States Constitution guarantees the right to counsel, but even that

constitutional right may be waived by the defendant if certain prerequisites are met. See Faretta v.

California, 422 U.S. 806 (1975). The defendant may introduce evidence in his defense or may sit

silent, just as a capital defendant may introduce mitigating evidence or remain silent. Each of these

conditional duties or rights is parceled out to the court, the state, or the defendant. Each condition

that negates a duty and each decision to waive a right can be invoked only by the person whose duty

or right it is. The trial court cannot force a defendant to waive his right to counsel or dismiss a case

before trial without the state’s consent. The prosecutor cannot deny a request from defense counsel

for advance payment, a defendant cannot forbid a prosecutor to present evidence to a grand jury, and

neither can dictate to the trial court the contents of the court’s charge.

        While some rights and duties are conditional and others waivable, some statutes create an

unavoidable duty. The state must produce evidence of guilt. TEX . CODE CRIM . PROC. art. 1.15. Writ

“counsel shall investigate . . . the factual and legal grounds for the filing of an application for a writ

of habeas corpus.” TEX . CODE CRIM . PROC. art. 11.071, § 3(a). The state shall answer the

defendant’s application for writ of habeas corpus. TEX . CODE CRIM . PROC. art. 11.071, § 7. A

defendant in a capital case may not waive indictment in favor of an information, even if the state is
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not seeking the death penalty. TEX . CODE CRIM . PROC. art. 1.141. In a capital trial, the defendant

cannot waive a jury trial if the state is seeking death. TEX . CODE CRIM . PROC. art. 1.13(a). Our case

law permits a capital defendant to waive the guilt phase and plead guilty to the jury, but it is always

and only for the jury to decide what punishment will be assessed. Williams v. State, 674 S.W.2d 315

(Tex. Crim. App. 1984).

         Many of the provisions that govern the trial of capital murder place upon the trial court an

unconditional duty; the trial court shall conduct a jury trial (TEX . CODE CRIM . PROC. art. 1.13), shall

hold a separate punishment hearing with the trial jury if death is sought (TEX . CODE CRIM . PROC .

art. 37.071, §(3)(a)(1)), and shall sentence the defendant to either life without parole or to death

(TEX . CODE CRIM . PROC. art 37.071, § (2)(g). A general provision states that the trial court shall

deliver to the jury the court’s charge.1 TEX . CODE CRIM . PROC. art. 36.14. The article specific to

the court’s charge in capital-murder trials, article 37.071, explicitly mandates two issues that the jury

must always answer and a third instruction that, if the jury answers “Yes” to each of the first two

mandatory issues, must also be answered by the jury.

         Article 37.071 Procedure in Capital Case

                                                       ***

         Sce. 2(b) On conclusion of the presentation of the evidence, the court shall submit
         the following issues to the jury:
                 (1) whether there is a probability that the defendant would commit criminal
                 acts of violence that would constitute a continuing threat to society; and
                 (2) in cases in which the jury charge at the guilt or innocence stage permitted
                 the jury to find the defendant guilty as a party under Sections 7.01 and 7.02,
                 Penal Code, whether the defendant actually caused the death of the deceased
                 or did not actually cause the death of the deceased but intended to kill the


         1
           Article 36.14 mandates that the defendant or defense counsel shall have reasonable time to examine the
court’s charge and submit written objections to it. Curiously, the prosecution is not accorded the same opportunity.
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                deceased or another or anticipated that a human life would be taken.

                                                 ***

        Sec. 2(e)(1) The court shall instruct the jury that if the jury returns an affirmative
        finding to each issue submitted under Subsection (b), it shall answer the following
        issue:
               Whether, taking into consideration all of the evidence, including the
               circumstances of the offense, the defendant’s character and background, and
               the personal moral culpability of the defendant, there is a sufficient mitigating
               circumstance or circumstances to warrant that a sentence of life imprisonment
               without parole rather than a death sentence be imposed.

To my knowledge, no one has ever suggested that either or both of the first two issues may be

waived. They are clearly necessary to the decision on the sentence to be assessed. Why is it, then,

that the third mandated issue, also necessary to the decision on the sentence to be assessed, can be

waived?

        The answer frequently given is that the first two issue “belong to the state,” which has a

burden of proof, while the mitigation issue is “the defendant’s issue.” By waiving the giving of the

mitigation instruction, the reasoning says, a defendant may forestall presentation of victim-impact

and victim-character evidence by the state; a defendant gives up the instruction and the mitigating

evidence, and the state may not then “rebut” that evidence with victim-impact and -character

evidence. We have said so ourselves. See, e.g., Ripkowski v. State, 61 S.W.3d 378, 390 (Tex. Crim.

App. 2001). I might be persuaded of the validity of that position if that were the way things worked

in the real world, but it is not. In the real world, capital defendants waive the mitigation instruction

only to find that, by asserting that the victim-impact and -character evidence is admissible under

some other legal theory, the state introduces the very evidence that the defendant waived the

instruction to keep out. The state benefits from the waiver, but the defendant loses two ways–no
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instruction, no evidence.

       I see two possible resolutions. The first is for this Court to rule that the mere giving of the

legislatively mandated instruction does not “open the door” to presentation of victim-impact and

victim-character evidence by the state; admissibility of that evidence, like all other evidence, would

be governed by Rules of Evidence 403 and 404. The second is that, if the instruction is waived,

victim-impact and victim-character evidence may not be admitted. The first applies limits to the

nature and extent of victim-impact and victim-character evidence. The second ensures that the

defendant gets some benefit from his bargain.

       I dissent as to point of error one and otherwise concur in the judgment of the Court.




Filed: June 11, 2008
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