Opinion
NO. WR-38,198-04
09-20-2017
EX PARTE JULIUS JEROME MURPHY, Applicant
ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS IN CAUSE NO. 97-F-462-102 IN THE 102ND JUDICIAL DISTRICT COURT BOWIE COUNTY Per curiam. ALCALA, J., filed a concurring opinion. ORDER
This is a subsequent application for a writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071 § 5.
Unless otherwise indicated, all references to Articles refer to the Code of Criminal Procedure.
In August 1998, a jury found applicant guilty of the offense of capital murder. The jury answered the special issues submitted pursuant to Article 37.071, and the trial court, accordingly, set applicant's punishment at death.
This Court affirmed applicant's conviction and sentence on direct appeal. Murphy v. State, No. AP-73,194 (Tex. Crim. App. May 24, 2000)(not designated for publication). This Court denied relief on applicant's initial post-conviction application for a writ of habeas corpus. Ex parte Murphy, No. WR-38,198-02 (Tex. Crim. App. Apr. 10, 2002) (not designated for publication).
On July 15, 1998, applicant filed with this Court an application for a writ of prohibition requesting this Court to prohibit the trial court from ordering him to submit to a psychiatric exam. The Court denied him leave to file that application on July 16, 1998. See Ex parte Murphy, No. WR-38,198-01 (no written order issued). --------
On January 17, 2006, applicant filed in the trial court a subsequent application for a writ of habeas corpus. In the subsequent application, applicant asserted that he was intellectually disabled and, therefore, exempt from execution. We remanded the issue to the trial court, and that court determined that applicant should be denied relief. We agreed. Ex parte Murphy, No. WR-38,198-03 (Tex. Crim. App. Nov. 19, 2014) (not designated for publication).
On September 24, 2015, applicant filed a second subsequent application in the trial court. In this application, applicant asserted that (1) the district attorney's office failed to disclose threats of prosecution and promises of leniency to the State's two main witnesses as required by Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972); (2) the State unknowingly presented false testimony through one of these witnesses in violation of Ex parte Chabot, 300 S.W.3d 768 (Tex. Crim. App. 2009); and (3) evolving standards of decency dictate that the death penalty is no longer constitutional.
In October 2015, this Court stayed applicant's execution. Ex parte Murphy, No. WR-38,198-04 (Tex. Crim. App. Oct. 12, 2015) (not designated for publication). And in June 2016, we held that applicant's first and second claims satisfied the requirements of Article 11.071 § 5 and remanded them to the trial court for resolution. Ex parte Murphy, No. WR-38,198-04 (Tex. Crim. App. June 15, 2016) (not designated for publication).
However, the supplemental record we received on June 9, 2017 did not show that the remanded issues had been resolved or that the trial court had made a recommendation on the merits of those claims. Rather, the record indicated that, pursuant to a plea bargain, applicant pled to the underlying murder and accepted a life sentence. The State then moved to dismiss the already adjudicated capital murder indictment in its entirety pursuant to Article 32.02. The trial court granted the State's motion and recommended that this Court dismiss the Article 11.071 writ application because it had been rendered moot.
But the trial court did not have the authority to dismiss the already adjudicated capital murder case in its entirety. Article 32.02 states:
The attorney representing the State may, by permission of the court, dismiss a criminal action at any time upon filing a written statement with the papers in the case setting out his reasons for such dismissal, which shall be incorporated in the judgment of dismissal. No case shall be dismissed without the consent of the presiding judge.Although the plain language of this statute seems to support the events of this case, the statute must be read in context. As the First Court of Appeals explained in Satterwhite v. State:
Article 32.02, with its language permitting the prosecutor to move the trial court to "dismiss a criminal action at any time," must be construed in its context. Entitled "Dismissal by State's Attorney," article 32.02 is part of "Chapter Thirty-Two-Dismissing Prosecutions," a subsection of the Code's section entitled "Trial and Its Incidents." This grouping begins with Chapter 32 ("Dismissing Prosecutions"), and is followed in the chronology of trial activities by, among others, Chapter 33 ("The Mode of Trial"), Chapter 35 ("Formation of the Jury"), and Chapter 37 ("The Verdict"). See TEX.CODE CRIM.P.ANN. Chapters 23, 33, 35, & 37. This context shows that article 32.02 provides a mode of pre-trial dismissal of a pending criminal action; it does not purport to deal with a case already reduced to final judgment.Satterwhite v. State, 36 S.W.3d 145, 147-49 (Tex. App.-Hous. (1 Dist.) 2000)(op. on reh'g). Because the trial court had no authority to dismiss the capital murder indictment, the claims raised in the writ application have not been rendered moot. Thus, we instruct the trial court to comply with our remand order dated June 15, 2016 and have the clerk return the completed record to this Court within 60 days of the date of this order.
To construe article 32.02 to authorize dismissal of final judgment would allow at least two unacceptable consequences. First, it would effectively give trial courts plenary power they now lack to vacate or modify judgments in criminal cases after the time for ruling upon motions for new trial had expired. [Citation omitted.] Second, such an authorization of dismissal would effectively and unconstitutionally allow judges and prosecutors-judicial officers-to exercise the power of commutation, a form of executive clemency vested exclusively in the executive branch of government. [Footnote omitted.] We hold that article 32.02 does not authorize a trial court, upon a State's attorney's motion, to dismiss a case already reduced to final judgment.
Because the trial court had no authority to dismiss the case in its entirety following the 1996 setting of the first motion to revoke, we need not reform and correct the Order of May 28, 1996 to avoid dismissal.
IT IS SO ORDERED THIS THE 20th DAY OF SEPTEMBER, 2017. Do Not Publish