Hicks v. State

664 S.W.2d 329, 1984 Tex. Crim. App. LEXIS 563

• Court: Court of Criminal Appeals of Texas
• Decided: January 4, 1984
• Docket: 064-82
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

Appellant¹ was indicted for capital murder. He was convicted of the lesser included offense of criminally negligent homicide, a misdemeanor. The court assessed punishment at one year’s confinement.

The cause was reversed by the 13th Court of Appeals (Corpus Christi) in an unpublished opinion delivered November 30,1981, for fundamental error in allowing the State to waive the death penalty.

The Court of Appeals relied upon our opinions in Batten v. State, 533 S.W.2d 788 (Tex.Cr.App.1976); Ex Parte Dowden, 580 S.W.2d 364 (Tex.Cr.App.1979), and Ex Parte Jackson, 606 S.W.2d 934 (Tex.Cr.App.1980).

In each of those cases we held that the State may not waive the death penalty in a capital murder case, but relief was granted in Dowden and Jackson because the defendants had waived their right to jury trials upon the State’s (ineffective) waiver of the death penalty; Batten was reversed, not because it was error per se to allow the State to purport to abandon the death penalty, but because such “abandonment” did not authorize the court to abrogate the appellant’s rights to 15 peremptory challenges and individual voir dire in a capital case.

In the instant case, unlike Batten, the court permitted appellant to make 15 challenges; no individual voir dire was sought.

Where, as here, no right granted a capital defendant is abrogated upon the State’s purported abandonment of the death penalty, we perceive no harm in the abandonment itself.

The judgment of the Court of Appeals is reversed and the cause remanded for that court’s consideration of appellant’s remaining grounds of error.

ONION, P.J., dissents. MILLER, J., not participating.

1 . Because of the result below, the State is before us as petitioner and Hicks as respondent For convenience, however, we shall refer to the parties as they were denominated in the Court of Appeals: appellant and the State.