Opinion
No. 04-04-00267-CR
Delivered and Filed: July 13, 2005. DO NOT PUBLISH.
Appeal from the 187th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CR-8055, Honorable Raymond Angelini, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Sarah B. DUNCAN, Justice.
MEMORANDUM OPINION
After the trial court denied his motion to preclude death as a sentencing option, Amed Jasaad Boyce, who was originally indicted for capital murder, agreed to plead nolo contendere to murder in exchange for the State's recommendation that Boyce receive a life sentence. The trial court accepted Boyce's plea, found him guilty, and sentenced him to life imprisonment. Boyce appeals, arguing the trial court should have granted his motion to preclude the State from seeking the death penalty because the indictment did not plead aggravating factors that would allow the imposition of the death penalty. This argument has been rejected repeatedly by the Texas Court of Criminal Appeals. See Kerr v. State, No. AP-74,637 (Tex.Crim.App. Jan. 12, 2005) (not designated for publication); Threadgill v. State, 146 S.W.3d 654, 672 (Tex.Crim.App. 2004); McCarthy v. State, No. AP-74,590, 2004 WL 3093230, at *4 (Tex.Crim.App. Sept. 22, 2004) (not designated for publication), cert. denied, 73 U.S.L.W. 3718, 2005 WL 696898 (Jun. 13, 2005); Rayford v. State, 125 S.W.3d 521, 533 (Tex.Crim.App. 2003), cert. denied, ___ U.S. ___, 125 S.Ct. 39 (2004). Accordingly, we affirm the trial court's judgment.
CONCURRING OPINION
I concur in the opinion of the majority; however I write separately because I do not believe the discrete issue raised by appellant has been fully addressed by the Court of Criminal Appeals. Ultimately, the issue presented in this case is whether, in a capital murder case, the indictment must plead the aggravating factors that would allow imposition of the death penalty. As the majority correctly notes, the Texas Court of Criminal Appeals has answered this question in the negative, holding that specific pleading of the aggravating factors is not necessary because "[a]ll capital murder cases (except those in which the State has given notice that it will not seek the death penalty) include the future dangerousness special issue, so an indictment for the crime necessarily places the defendant on notice that the future dangerousness issue will be litigated." Kerr v. State, No. AP-74,637 (Tex. Crim App. Jan. 12, 2005) (not designated for publication). As appellant notes, however, the Kerr opinion fails to mention the Supreme Court's opinion in Blakely v. Washington, 124 S. Ct. 2531 (2004). In Blakely the Supreme Court further expounded on its decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). In so doing, the court expressed its approval of the principles that "'every fact which is legally essential to the punishment' must be charged in the indictment and proved to a jury," and that "'an accusation which lacks any particular fact which the law makes essential to the punishment is . . . no accusation within the requirements of the common law, and it is no accusation in reason.'" Blakely, 124 S.Ct. at 2536 (quoting 1 J. Bishop, Criminal Procedure § 87, p. 55 ch. 6, pp. 50-56 (2d ed. 1872)). In the absence of an opinion from the Court of Criminal Appeals addressing the concerns and principles discussed in Blakely, the issue remains one of uncertainty.