Ex Parte Jackson

606 S.W.2d 934, 1980 Tex. Crim. App. LEXIS 1431

Opinions

OPINION

ONION, Presiding Judge.

This is a post-conviction habeas corpus proceeding brought under the provisions of Article 11.07, V.A.C.C.P.

Petitioner first filed his application for habeas corpus with the convicting court where the court without a hearing denied the application in a written order without findings, except that allegations of the application, if true, would not render petitioner’s confinement illegal.

Appellant contends that he was charged by the grand jury with capital murder during the course of an attempted robbery on or about July 15,1973; that he was illegally convicted of said offense on his guilty plea when the State was allowed to waive the death penalty and he was allowed to waive trial by jury.

The record reflects that on October 25, 1973 the State announced it would not seek the death penalty and the petitioner then waived trial by jury and entered a guilty plea to the indictment charging capital murder. Life imprisonment was imposed.

In Ex parte Dowden, 580 S.W.2d 364 (Tex.Cr.App.1979), it was held that the State cannot waive the death penalty in a capital murder case and that a defendant cannot waive the right of trial by jury.

We find Dowden dispositive of the question before us. The only difference between Dowden and the instant case is that in Dowden V.T.C.A., Penal Code, § 19.03, was in effect and in the instant case the 1973 amendment of Article 1257(b)(2), V.A.P.C., 1925 (Acts 1973, 63rd Leg., p. 1122, ch. 426, Art. 1, § 1, eff. June 14, 1973), was in effect. The 1973 amendment to Article 1.14, V.A.C.C.P. (Acts 1973, 63rd Leg., p. 1127, ch. 426, Art. 3, § 5, eff. June 14,1973), was and is applicable in both cases.

This was not a case where the offense of capital murder was reduced to the lesser included offense of murder prior to the guilty plea and waiver of trial by jury. See Ex parte McClelland, 588 S.W.2d 957 (Tex.Cr.App.1979).¹

The relief prayed for is granted, and the petitioner is remanded to the custody of the Sheriff of Travis County to answer the indictment in Cause No. 45,576 in the 167th District Court.

It is so ordered.

1 . The concurring opinion expresses concern about the lack of “plea bargaining” in capital murder cases and need for legislative action. It should be noted that while trial by jury cannot be waived by one charged with capital murder if the plea bargain is for a recommended punishment of life imprisonment, the State may reduce the capital murder charge to the lesser included offense of murder (V.T.C.A., Penal Code, § 19.02) and then the defendant may waive trial by jury and a life sentence can be imposed (V.T.C.A., Penal Code, § 12.32).