Harbin, James Berkeley Ii ( 2021 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD–0059–20
JAMES BERKELEY HARBIN II, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS
DALLAS COUNTY
KEEL, J., delivered the opinion for a unanimous Court.
OPINION
This is an appeal from a second punishment hearing that was granted pursuant to a
writ of habeas corpus. The court of appeals reversed the trial court’s judgment and
remanded the case for a third punishment hearing. Harbin v. State, No. 05-18-00098-CR,
2019 Tex. App. LEXIS 9837 (Tex. App.—Dallas Nov. 12, 2019) (mem. op., not
designated for publication). We granted the State Prosecuting Attorney’s petition for
discretionary review to determine whether the court of appeals erred to apply a 1994
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statute to an offense committed in 1991. We hold that the court of appeals erred, and we
reverse its judgment.
I. Background
Appellant was eighteen years old when he shot and killed his father, James Harbin,
Sr., (James) in 1991. Appellant’s identity as the killer was not an issue. Rather, the issue
was his emotional state: did he kill under the immediate influence of sudden passion
arising from an adequate cause? In the guilt phase of Appellant’s first trial, the jury
charge defined “sudden passion” and “adequate cause” and instructed the jury that if it
had a reasonable doubt about murder, it would “next consider whether the defendant is
guilty of the lesser offense of voluntary manslaughter.” These instructions accorded with
the statute then in effect. See Wooten v. State, 400 S.W.3d 601, 604-05 (Tex. Crim. App.
2013). The jury found Appellant guilty of murder and sentenced him to life in prison.
Twenty-three years later, Appellant sought a new punishment hearing for the
State’s failure to disclose favorable information about James’s psychiatric history and for
defense counsel’s ineffective investigation and presentation of mitigating evidence. We
followed the trial court’s recommendation and granted the relief Appellant requested: a
new punishment hearing. Ex parte Harbin, No. WR-82,672-01, 2015 Tex. Crim. App.
Unpub. LEXIS 387 (Tex. Crim. App. June 3, 2015) (per curiam). The jury’s
determination of guilt was undisturbed. Id. at *1-2.
Meanwhile, the law had changed. Effective for offenses committed on or after
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September 1, 1994, voluntary manslaughter was repealed, and sudden passion became a
punishment-phase issue. Acts 1993, 73rd Leg., R.S., ch. 900, §§ 1.01, 1.19(a). Under the
new law, a defendant who is convicted of murder is subject to a second-degree
punishment range instead of a first-degree range if his jury finds that he killed under the
influence of sudden passion arising from an adequate cause. TEX. PENAL CODE §
19.02(d). An offense committed before September 1, 1994, is governed by the law in
effect at the time of the offense. Acts 1993, 73rd Leg., R.S., ch. 900, § 1.18(b).
Although he committed murder in 1991, Appellant requested at his second
punishment hearing a jury instruction on sudden passion under the 1994 law. The trial
court denied the request. Appellant claimed on appeal that the trial court erred in refusing
to instruct the jury on sudden passion. The court of appeals agreed with him and reversed
the trial court’s judgment and remanded for a third punishment hearing. Harbin, 2019
Tex. App. LEXIS 9837 at *20.
The court of appeals reasoned that, since Appellant had been granted a new
punishment hearing for the failure to produce mitigating evidence, the second punishment
hearing was unfair because that jury did not have the opportunity to consider the sudden
passion issue in light of the new mitigating evidence. Id. at *16. The court of appeals
held that Appellant was harmed by the failure to give the sudden passion instruction
because the jury was not guided in how to consider the mitigating evidence. Id. at *18-
19. For example, the jury might have considered Appellant’s probation request more
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favorably had it been instructed that a sudden passion finding lowers the maximum
available punishment to 20 years. Id. at *18 n.5.
II. Analysis
A jury charge must set forth the law applicable to the case. See TEX CODE CRIM.
PROC. art. 36.14 (in felony cases “the judge shall, before the argument begins, deliver to
the jury . . . a written charge distinctly setting forth the law applicable to the case”). The
Legislature determines the law applicable to a case because it has “the power to make,
alter, and repeal laws, in accordance with other provisions of the Constitution” and “the
sole authority to establish criminal offenses and prescribe punishments.” Vandyke v.
State, 538 S.W.3d 561, 573 (Tex. Crim. App. 2017).
The Legislature amended the law of sudden passion to apply prospectively. The
court of appeals erred to apply it retrospectively. See Buntion v. State, 482 S.W.3d 58,
105 (Tex. Crim. App. 2016) (holding that trial court did not err in refusing to instruct on
life without parole because that sentencing option was not in effect when the defendant
committed his capital murder); Smith v. State, 907 S.W.2d 522, 534 (Tex. Crim. App.
1995) (holding that changes to the Code of Criminal Procedure made effective after the
date of the offense did not apply to the appellant’s trial even though the trial commenced
after the effective date of the changes). Furthermore, applying the law in effect at the
time of his offense did not make Appellant’s second punishment hearing unfair. The jury
was able to consider and give effect to the mitigating evidence by assessing punishment
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within the range applicable to murder.
The court of appeals deemed the second punishment hearing unfair because, in its
view, the mitigating evidence developed at the habeas stage was relevant to sudden
passion. But Appellant never claimed that in his habeas applications. Such a claim
would have meant a whole new trial. Instead, he only sought a new punishment hearing,
and he got it. He was not entitled to more than that, and the court of appeals erred to, in
effect, grant more habeas relief on direct appeal by applying the 1994 statute to
Appellant’s 1991 case.
Appellant contends that the 1994 statute should be applied retroactively because it
allows consideration of mitigating factors like sudden passion and adequate cause at the
punishment phase, but the previous statute did not. He relies on the Supreme Court’s
injunction against imposing mandatory life without parole on juvenile offenders and our
retroactive application of that injunction. See Miller v. Alabama, 567 U.S. 460, 479
(2012); Ex parte Maxwell, 424 S.W.3d 66, 75 (Tex. Crim. App. 2014).
In Miller, the Supreme Court ruled out mandatory life without parole for juvenile
offenders because it makes “youth (and all that accompanies it) irrelevant to imposition of
that harshest prison sentence” and “poses too great a risk of disproportionate
punishment.” Miller, 567 U.S. at 479. We determined in Maxwell that this new rule
would be applied retroactively on habeas because it was a substantive rule. Maxwell, 424
S.W.3d at 75. A “new rule” applies retroactively in a collateral proceeding if it is either
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substantive or a “watershed” rule of criminal procedure. Id. at 70. That retroactivity
framework comes from Teague v. Lane, 489 U.S. 288, 316 (1989), and we adhere to it “as
a general matter of state habeas practice[.]” Maxwell, 424 S.W.3d at 71.
But this is not a habeas case. And the issue before us does not involve a Supreme
Court decision announcing a new constitutional rule. Instead, it involves a statutory
change with an effective date. If the change and its effective date are constitutional,
courts must adhere to them. Appellant does not argue, and the court of appeals did not
hold, that the statutory change or its effective date was unconstitutional. Consequently,
the court of appeals erred to apply the statutory change to an offense that was committed
before the statute’s effective date.
Appellant also contends that we cannot consider the State’s arguments because it
did not present them to the court of appeals until it filed its motion for rehearing.
Appellant points out that we consider only the decisions of the lower court, and because
the merits of the State’s position have not been addressed by the court of appeals, we
have no “decision” to review. But the winning party at trial “who complains about a
decision of the court of appeals need only address the holding of the court of appeals.”
Rhodes v. State, 240 S.W.3d 882, 886 n.9 (Tex. Crim. App. 2007). “[B]ecause the State
prevailed at trial, we may in our discretion address subsidiary arguments that support the
trial court’s ruling that were not presented to the court of appeals.” Id. The State’s
argument here resulted from the court of appeals’ incorrect application of the law, and the
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State is not precluded from raising it for the first time on discretionary review. See
McClintock v. State, 444 S.W.3d 15, 20 (Tex. Crim. App. 2014).
III. Conclusion
The trial court did not err in refusing to give a sudden passion instruction at
Appellant’s new punishment hearing. The law applicable to the case was the law in
effect when the offense occurred. The court of appeals erred to apply the 1994 statute to
Appellant’s 1991 murder case. We reverse the judgment of the court of appeals and
affirm the judgment of the trial court.
Delivered: March 17, 2021
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