Whan v. State

485 S.W.2d 275, 1972 Tex. Crim. App. LEXIS 2355

• Court: Court of Criminal Appeals of Texas
• Decided: June 28, 1972
• Docket: 41789
• Status: Published

Opinions

OPINION

ROBERTS, Judge.

Appellant was convicted of murder with malice aforethought and his punishment was assessed at death. On appeal, this Court affirmed the conviction on February 26, 1969. Whan v. State, 438 S.W.2d 918 (Tex.Cr.App.1969). The United States Supreme Court granted appellant’s petition for certiorari, and on June 28, 1971, ordered that “The judgment of the Court of Criminal Appeals of Texas, insofar as it imposes the death sentence, be reversed, and that this cause be remanded to the Court of Criminal Appeals of Texas for further proceedings.” Whan v. Texas, 403 U.S. 946, 91 S.Ct. 2281, 29 L.Ed.2d 856 (1971).

The mandate of this Court affirming the judgment of the trial court was issued on April 25, 1969. Subsequently, on May 28,' 1969, appellant was sentenced to death, sentence not having been passed prior to the disposition of appellant’s appeal, pursuant to Art. 42.04, Vernon’s Ann.C.C.P.

On December 28, 1971, Governor Preston Smith, acting upon the recommendation of the Board of Pardons and Paroles, granted appellant a commutation of sentence, from death to life imprisonment.

The question before the Court is the disposition to be made of the case at this point. It has been recently decided that this Court does not have the power to assess punishment at life imprisonment in cases where the death penalty has been assessed illegally by a jury, nor may this Court remand the case for assessment of punishment only, where the punishment was originally set by a jury. Ocker v. State, 477 S.W.2d 288 (Tex.Cr.App.1972). Therefore, it would not be proper for this Court to reverse the judgment of the trial court, insofar as it imposes the death penalty, and to reform the judgment so that punishment is assessed at life imprisonment.

We are also of the opinion that the Governor’s commutation is valid, notwithstanding that the case is still pending before this Court. Art. IV, Sec. 11 of the Texas Constitution, Vernon’s Ann.St. and Art. 48.01, V.A.C.C.P., provide:

“In all criminal cases, except treason and impeachment, the Governor shall have power, after conviction, on the written signed recommendation and advice of the Board of Pardons and Paroles, or a majority thereof, to grant reprieves and commutations of punishments and pardons . . . . ”

In construing the meaning of the term after conviction, as used in the above provision, this Court stated, in the case of Snodgrass v. State, 67 Tex.Cr.R. 615, 150 S.W. 162 (1912):

“Under the common law, a person was said to be convicted of the crime when verdict was rendered thereon adjudging him guilty . . . . ” at 172.

“The foregoing references show that the ordinary meaning of the word ‘conviction’ is the verdict of guilty pronounced by a jury.” at 173.

“Thus it is seen that the terms ‘after conviction’ in our Constitution do not embrace the sentence, but simply mean the determination of guilt or innocence of a defendant, and the person becomes subject to pardon whenever that issue is finally determined.” at 174.

Likewise, in Goss v. State, 107 Tex.Cr.R. 659, 298 S.W. 585 (1927), this Court stated:

“While in some sense the term ‘conviction’ applies to a final judgment of guilty, that term, as used in our Constitution, means a verdict ‘of guilty,’ and a pardon granted pending appeal is valid.”

In addition, Art. 42.07, V.A.C.C.P., provides, in part:

“Before pronouncing sentence, the defendant shall be asked whether he has anything to say why the sentence should not be pronounced against him. The only reasons which can be shown, on account of which sentence cannot be pronounced are:

“1. That the defendant has received a pardon from the proper authority, on the presentation of which, legally authenticated, he shall be discharged. * *

This Article indicates that a pardon is valid even if granted before sentence is pronounced. The Governor’s authority to grant commutations arises from the same Article of the Constitution as does his authority to grant pardons. It follows that a commutation under the same circumstances would likewise be valid, the punishment having been assessed before sentence is pronounced, and therefore subject to commutation.

We note that the United States Supreme Court ordered that the judgment of this Court be reversed “insofar as it imposes the death sentence.” However, in light of our State procedure, we construe the order as reversing the affirmance, by this Court, of the judgment of trial court (the sentence not having been imposed at the time of affirmance), and remanding the cause for further proceedings. In light of the Governor’s commutation, we conclude that the proper course to follow is to again affirm the judgment of the trial court. The imposition of the death penalty is no longer possible by virtue of the commutation. However, a commutation does not affect the judgment, but merely mitigates the punishment which can be given. See Young v. Young, 61 Tex. 191 (1884). That being the case, no change in the original judgment is necessary. The Supreme Court reversed our affirmance only in regard to the death penalty. The Governor’s commutation has rendered the death penalty portion of the trial court’s judgment and subsequent sentence a nullity. Therefore, the proper course for this Court to follow is to again affirm the judgment of the trial court. By so doing, the order of the Supreme Court is satisfied.

The judgment is affirmed.

DOUGLAS, J., not participating.