IN THE COURT OF CRIMINAL APPEALS

OF TEXAS


NO. 906-99

MARY LUCIA SANCHEZ, Appellant

v.

THE STATE OF TEXAS


ON THE STATE'S PETITION FOR DISCRETIONARY

REVIEW FROM THE FIFTH COURT OF APPEALS

DALLAS COUNTY

MANSFIELD, J., delivered the opinion of the Court, in which MEYERS, PRICE, HOLLAND, WOMACK, and JOHNSON, JJ., joined. McCORMICK, P.J. filed a concurring opinion. KELLER, J., filed a concurring opinion, in which KEASLER, J., joined.

O P I N I O N



The question presented is whether the Fifth Court of Appeals erred in holding that the trial court erred in its instructions to the jury at the punishment stage of trial. We hold that the Court of Appeals did not err.



The Relevant Facts





A Dallas County grand jury indicted appellant, Mary Lucia Sanchez, for the murder of Judy Lynn Green. See Tex. Pen. Code 19.02(b)(1) & (2). The case went to trial before a jury. At the guilt/innocence stage of trial, the State presented evidence that on the evening of October 2, 1996, appellant shot and killed Green, her former lover, in Green's home in Dallas. The State's evidence included a written statement appellant gave to police shortly after the shooting. In the statement, appellant admitted shooting Green but claimed she did so only after Green attacked her:

She ... had me by the neck. I felt stinging, I thought, from her rings or fingernails. I got mad because she was being cruel. I reached out and got the gun [which Green kept on a night stand]. I pushed her toward the door and I just shot. She came at me and we fought over the gun. It went off and I felt a burning sensation in my leg.[ (1)] I was so mad, I started pulling the trigger.



Appellant took the witness stand in her defense and testified that she shot Green because she believed Green was trying to kill her. The jury rejected appellant's claim of self-defense and found her guilty of murder, as charged in the indictment.

At the punishment stage of trial, appellant attempted to prove that she shot Green under the immediate influence of sudden passion arising from an adequate cause, which would reduce her offense from a first-degree felony to a second-degree felony (2) and reduce the range of punishment. (3) Appellant's evidence included the testimony of a clinical psychologist, who testified that she examined appellant and that, in her professional opinion, appellant "was just overwhelmed by her emotions" at the time she shot Green.

The trial court instructed the jurors that they could find in appellant's favor on the issue of sudden passion only if they were unanimous, and that otherwise they would have to find against appellant on the issue. After deliberating, the jurors assessed appellant's punishment at imprisonment for twenty-five years, a punishment beyond the maximum allowed for a second-degree felony. See footnote three, supra. When asked by the trial court whether their decision was unanimous, the jurors answered that it was not. Three jurors wanted to find in appellant's favor on the issue of sudden passion, but because of the trial court's instructions, they had to find against appellant on the issue.

On direct appeal, appellant argued, for the first time, that the trial court fundamentally erred in its instructions to the jury on the issue of sudden passion. Appellant argued that the trial court's instructions allowed the jury to return a non-unanimous decision adverse to her, and that Texas Constitution article V, 13, requires that jury decisions adverse to a defendant be unanimous. See Molandes v. State, 571 S.W.2d 3, 4 (Tex.Crim.App. 1978). Appellant also argued that the trial court's error caused her egregious harm, "demonstrated by the fact that the jury assessed 25 years where the statutory maximum for a second-degree felony is 20 years."

The Fifth Court of Appeals agreed with appellant that the trial court fundamentally erred in its punishment charge, but the Court of Appeals did not reach appellant's constitutional claim, preferring instead to decide the point of error on the basis of Article 37.07, 3(c), of the Texas Code of Criminal Procedure:

Article 37.07 [ 3(c)] provides that:



In cases where the matter of punishment is referred to the jury, the verdict shall not be complete until the jury has rendered a verdict on the guilt or innocence of the defendant and the amount of punishment, where the jury finds the defendant guilty. In the event the jury shall fail to agree, a mistrial shall be declared, the jury shall be discharged, and no jeopardy shall attach.



([E]mphasis added.) Thus, by its express language, section [sic] 37.07 requires the jury to "agree" on punishment. To "agree" on punishment means a unanimous vote. The special issue on sudden passion determines the applicable punishment range. We discern no significant distinction between "punishment" and "punishment range." Thus, we conclude that if the jury's answer is not unanimous on the issue of sudden passion, the jury has not "agreed" on punishment. To allow a charge such as the one given in this case would, in theory, allow a single juror to determine the range of punishment. We conclude that such a proposition is without any basis in law.



Sanchez v. State, No. 05-97-01389, slip. op. at 12-14 (Tex.App.--Dallas 1999) (not designated for publication)( emphasis in original; citations and some punctuation omitted). Having determined that the trial court's charge on punishment was erroneous, the Court of Appeals went on to hold that the error caused appellant egregious harm, requiring reversal of the trial court's judgment with respect to punishment and a new punishment hearing. Ibid. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1986); Tex. Code Crim. Proc. art. 44.29(b).

We subsequently granted the State's petition for discretionary review to determine whether the Court of Appeals erred in concluding that the trial court erred in its punishment charge. See Tex. R. App. Proc. 66.3(b). In its brief to this Court, the State argues that Article 37.07, 3(c), requires jury unanimity with respect to the "amount of punishment" ultimately assessed, but not with respect to the jury's preliminary vote on the issue of sudden passion.



Analysis





The trial court's punishment charge allowed the jury to return a non-unanimous decision adverse to appellant on the issue of sudden passion. We must determine whether allowing the jury to do that conflicted with Article 37.07, 3(c).

Article 37.07, 3(c), which became effective January 1, 1966, requires the jury to "agree," i.e., agree unanimously, on "the guilt or innocence of the defendant and the amount of punishment, where the jury finds the defendant guilty." If the jury does not agree unanimously, then the trial court must declare a mistrial. See Henderson v. State, 593 S.W.2d 954, 956 (Tex.Crim.App. 1980); Stanton v. State, 535 S.W.2d 182, 183 (Tex.Crim.App. 1976); Brown v. State, 508 S.W.2d 91, 93 (Tex.Crim.App. 1974); see also Tex. Code Crim. Proc. art. 36.29(a) (requiring jury unanimity on all felony verdicts). The evident purpose of the statute is to ensure that thorough jury deliberation does not cease once a simple majority is achieved, thereby increasing the reliability of the verdicts ultimately reached. See United States v. Lopez, 581 F.2d 1338, 1341 (9th Cir. 1978).

Before September 1, 1994, the existence of sudden passion was an element of the offense of voluntary manslaughter (a lesser-included offense of murder), to be determined by the jury at the guilt/innocence stage. See Bradley v. State, 688 S.W.2d 847, 849 (Tex.Crim.App. 1985) (plurality op.). Effective September 1, 1994, the existence of sudden passion became a punishment stage issue. See footnote two, supra. Article 37.07, 3(c), however, was left unchanged in 1994, and it is now unclear whether that statute applies to a jury's preliminary vote on sudden passion.

When we interpret statutes, we seek always to effectuate the collective legislative intent or purpose. Boykin v. State, 818 S.W.2d 782, 785-786 (Tex.Crim.App. 1991). When we interpret ambiguous statutes like Article 37.07, 3(c), we may, in seeking a proper interpretation, consider extratextual factors. Ibid. Consideration of two such factors leads us to conclude that Article 37.07, 3(c), requires unanimity with respect to the jury's preliminary vote on sudden passion.

First, we think the evident purpose of the statute -- to increase the reliability of jury verdicts -- is best achieved if the statute is interpreted to apply to the jury's preliminary vote on sudden passion. If the statute were interpreted not to apply, then a situation could arise in which, as in the instant case, the range of punishment is determined by less (perhaps much less) than all the jurors. In such a situation, the reliability of the punishment verdict would tend to be decreased, rather than increased, and that would be at odds with the evident purpose of the statute. Second, we think that if the Legislature intended to exempt the jury's decision on the sudden passion issue from the statutory unanimity requirement, it would have stated its intention expressly.

In summary, we agree with the Fifth Court of Appeals that the trial court erred in its punishment charge. We affirm the judgment of the Court of Appeals. (4)

DELIVERED JUNE 21, 2000

PUBLISH

1. The State's evidence also established that, at the time in question, appellant was shot in her left thigh.

2. Texas Penal Code 19.02, the penal provision applicable to this case, provides in relevant part:



(c) Except as provided in Subsection (d), an offense under this section is a felony of the first degree.

(d) At the punishment stage of a trial, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree.

3. Texas Penal Code 12.32 provides that punishment for a first-degree felony is imprisonment for five to 99 years or life, plus a fine of up to $10,000. Texas Penal Code 12.33 provides that punishment for a second-degree felony is imprisonment for two to twenty years, plus a fine of up to $10,000.

4. We note that, because the error of which appellant complains affected just the punishment phase of her trial, she is entitled only to a new punishment hearing. See Tex. Code Crim. Proc. art. 44.29(b).