Turner v. State

485 S.W.2d 282, 1972 Tex. Crim. App. LEXIS 2357

Opinions

OPINION

ODOM, Judge.

Appellant was convicted for the offense of murder. Punishment was assessed at death. This court affirmed the conviction on March 4, 1970. Turner v. State, 462 S.W.2d 9. The Supreme Court of the United States granted appellant’s petition for certiorari and, in a memorandum opinion, ordered that “Judgment, insofar as it imposes the death sentence, reversed and case remanded to the Court of Criminal Appeals of Texas for further proceedings.” Turner v. Texas, 403 U.S. 947, 91 S.Ct. 2289, 29 L.Ed.2d 858 (1971). The decision by the Supreme Court was predicated upon its prior holdings in Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970); Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969), and Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

The question now before this court is the proper disposition of this case in light of the Supreme Court’s order and Texas law. A commutation of appellant’s sentence by the Governor would have satisfied the mandate of the Supreme Court. Whan v. State, 485 S.W.2d 275 (1972). However, commutation has not been sought or granted in the instant case.

The options available to this court in a case where a sentence is defective are quite limited. We may reform: (1) a sentence so as to conform to the judgment¹; (2) a judgment to conform to the jury’s verdict²; (3) a sentence which fails to apply the penalty fixed by law³; or (4) a sentence which fails to apply the indeterminate sentence law (Article 42.09, Vernon’s Ann.C.C.P.).⁴

However, this court is without authority to either pass sentence or reduce the punishment assessed by a jury. Ocker v. State, Tex.Cr.App., 477 S.W.2d 288. And, while we may remand solely on the issue of punishment where punishment was originally assessed by the court,⁵ we may not do so where punishment was assessed by the jury.⁶

The Supreme Court having found that punishment was erroneously assessed in the instant case, its status is the same as if the jury had been unable to agree on a verdict. See Ocker v. State, supra.

The judgment is reversed and the cause remanded.

DOUGLAS, J., not participating.

1 . e. g. Vasquez v. State, Tex.Cr.App., 477 S.W.2d 629 (1972) ; Miller v. State, Tex.Cr.App., 427 S.W.2d 892.

2 . Fail v. State, Tex.Cr.App., 362 S.W.2d 862; Kuhn v. State, 142 Tex.Cr.R. 40, 151 S.W.2d 208.

3 . Vasquez v. State, supra; Golden v. State, Tex.Cr.App., 434 S.W.2d 870; Abel v. State, Tex.Cr.App., 395 S.W.2d 641, cert. denied, 386 U.S. 928, 87 S.Ct. 871, 17 L.Ed.2d 800; Stevenson v. State, Tex.Cr.App., 395 S.W.2d 626.

4 . e. g. Asay v. State, Tex.Cr.App., 456 S.W.2d 903; Bell v. State, Tex.Cr.App., 434 S.W.2d 684.

5 . e. g. Miller v. State, Tex.Cr.App., 472 S.W.2d 269.

6 . Ellison v. State, Tex.Cr.App., 432 S.W.2d 955.