Stanley v. State , 490 S.W.2d 828 ( 1972 )

OPINION

ROBERTS, Judge.

These cases come to us on remand from the United States Supreme Court. All appellants were convicted of murder with malice except for Smith and Branch, who were convicted of rape, and punishment was assessed at death. These convictions have all been affirmed by this Court.¹ In Furman v. Georgia (Branch v. Texas), 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the United States Supreme Court held that the death penalty, as currently imposed, is unconstitutional.

Subsequently, Governor Preston Smith, acting upon the recommendation of the Board of Pardons and Paroles, has granted each appellant a commutation of sentence, from death to life imprisonment.

Appellants now contend that since the judgment was vacated by the United States Supreme Court, there exists no procedure to validly sentence them and, therefore, we should either grant them a new trial, permit them to be re-sentenced by a jury, or release them from custody.

We disagree. The Governor’s commutation is valid. We are cognizant of the due process argument raised by appellants. The contention is that appellants have been deprived of their right to have a jury assess the punishment. We are not swayed by the out-of-state cases cited by appellants in support of their argument. See Anderson v. State, 267 So.2d 8 (Fla., 1972); In re Baker, 267 So.2d 331 (Fla.,1972); Huggins v. Commonwealth, Va., 191 S.E.2d 734 (1972); Beaver v. State, 475 S.W.2d 557 (Tenn.Sup.Ct.1971). We are further aware of appellants’ argument that when the Governor and Board of Pardons and Paroles acted to commute the sentences, they did so without notifying appellants or their attorneys and thus denied them the right to be heard. Such a notification procedure is not necessary to effectuate either the Governor’s or the Board’s powers.

There is no reason to conclude that the Governor’s constitutionally granted commutation powers are rendered invalid in such cases. This Court only recently dealt with this problem and we see no reason to depart from that holding. See Whan v. State, 485 S.W.2d 275 (Tex.Cr.App.1972).

The order of the Supreme Court is satisfied.

The judgments are affirmed.

ODOM, J., not participating in David and Tea. DOUGLAS, J., not participating in Branch, Wright and Smith.

1 . See Stanley v. State, 471 S.W.2d 72 (Tex.Cr.App.1971); Thames v. State, 453 S.W.2d 495 (Tex.Cr.App.1970); Curry v. State, 468 S.W.2d 455 (Tex.Cr.App.1971); David v. State, 453 S.W.2d 172 (Tex.Cr.App.1970); Wright v. State, 422 S.W.2d 184 (Tex.Cr.App.1967); Smith v. State, 437 S.W.2d 835 (Tex.Cr.App.1969); Tea v. State, 453 S.W.2d 179 (Tex.Cr.App.1970); Branch v. State, 447 S.W.2d 932 (Tex.Cr.App.1969); Matthews v. State, 471 S.W.2d 834 (Tex.Cr.App.1971); Morales v. State, 458 S.W.2d 56 (Tex.Cr.App.1970); and Huffman v. State, 450 S.W.2d 858 (Tex.Cr.App.1970).