Douthit, Ex Parte Shannon Mark ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-75,267

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EX PARTE SHANNON MARK DOUTHIT, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM CAUSE NUMBER 2076-A

IN THE 83RD JUDICIAL DISTRICT COURT OF PRESIDIO COUNTY

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   Johnson, J., filed a dissenting opinion.

D I S S E N T I N G O P I N I O N

Applicant was charged with a capital murder committed in 1986. He accepted the state's offer of a plea of guilty in exchange for a life sentence. He now seeks relief from that sentence and complains that the law at the time of his plea barred waiver of a jury trial in a capital case.

A comparison of the current procedural rules with the procedural rules in effect at the time of applicant's plea indicates that, perhaps in response to complaints such as this one, the legislature has clarified what it means by "capital case" by inserting the phrase "in which state seeks the death penalty" or "in which the state does not seek the death penalty," or similar phrases expressing the

same narrowing of application, into at least 15 sections of the Code of Criminal Procedure. ⁽¹⁾ In Sisk v. State, 131 S.W.3d 492 (Tex. Crim. App. 2004), we held that the insertion of those phrases indicated that the term "capital case" should be limited to a case in which the death penalty was sought or sought and assessed, according to the posture of the case before us. Sisk was an appeal of denial of a DNA test pursuant to Chapter 64 while Sisk was confined on a life sentence stemming from an indictment for capital murder. We held that, because Sisk's sentence was life imprisonment, his case was not a "capital case" as that term was used in the statutes and that he must, therefore, appeal first to the appropriate court of appeals. The logic of Sisk applies in this case also. Applicant was indicted for capital murder, but the state evinced its decision not to seek the death penalty by offering a plea bargain for a life sentence. The case then ceased to be a "capital case," and applicant was free to waive a jury trial. There is no error shown, and applicant is not entitled to relief as to that issue.

Applicant also raised four additional claims: ineffective assistance of counsel on appeal; fundamentally defective information; involuntary guilty plea; and involuntary confession. Those issues have not been investigated and addressed. I would remand those issues to the trial court for a hearing. Because the Court does not do so, I respectfully dissent.

Filed: May 23, 2007

Publish

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See, Tex. Code. Crim. Proc. arts. 1.13, 26.04, 26.052, 34.04, 35.13, 35.15, 35.16(b)(1), 35.17(2), 35.25, 35.26(b), 36.29(b), 37.071 § 1, 37.071 § 2(a)(1), 37.0711, §§ 2, 3(a)(1).