I concur only in the Court's judgment. The issue in this case is whether the trial court erred in instructing the jury at the punishment phase that, if it was split or nonunanimous on the sudden passion issue, then it had to find against appellant on the issue. The Court's decision rests on an interpretation of Article 37.07, Section 3(c), V.A.C.C.P., when it should rest on an interpretation of Section 19.02(d), Texas Penal Code. Article 37.07, Section 3(c), has nothing to do with this case.

The Court decides that Article 37.07, Section 3(c), should be "interpreted to apply to the jury's preliminary vote on sudden passion" under Section 19.02(d). Section 19.02(d), however, says nothing about a "preliminary vote" on sudden passion for purposes of Article 37.07, Section 3(c). Section 19.02(d) actually says that a defendant must prove the sudden passion issue at the punishment phase of trial.

The "plain" language of Article 37.07, Section 3(c), also does not support the Court's decision in this case. Article 37.07, Section 3(c), says what happens when "the jury shall fail to agree" on the "amount of punishment." It says nothing about what happens when the jury shall fail to agree on the sudden passion issue or the "punishment range."

The problem here is not that the jury was split or nonunanimous on the "amount of punishment" which is the problem addressed by Article 37.07, Section 3(c). The jury unanimously agreed on the amount of appellant's punishment as required by the "plain" language of Article 37.07, Section 3(c). Equating "punishment" with "punishment range," as the Court's opinion does here, is inconsistent with the "plain" language of Article 37.07, Section 3(c). And, the Court apparently recognizes this since it concludes that Article 37.07, Section 3(c), is ambiguous, which it is not, and then resorts to extratextual considerations to say that Article 37.07, Section 3(c), also applies when a jury is split on the sudden passion issue.

Before the Legislature added Section 19.02(d), the prosecution had to disprove the sudden passion issue at guilt/innocence if the issue was raised by the evidence. And, if, as here, a jury was split or nonunanimous on the sudden passion issue, the jury could not nor was it instructed that it should find against the defendant on the sudden passion issue.

It is clear that the Legislature by adding Section 19.02(d) intended to change former law only to the extent of putting the burden on the defendant to prove the sudden passion issue at the punishment phase. The Legislature clearly did not intend to change former law by authorizing or requiring a jury to find against a defendant on the sudden passion issue if the jury was nonunanimous or split on the issue.

It is not Article 37.07, Section 3(c), that supports this. It is a sensible and common-sense interpretation of Section 19.02(d) that supports this. This interpretation of Section 19.02(d) is based on former law, the circumstances under which the Legislature enacted Section 19.02(d), together with a consideration of its history and purpose. See Tex. Gov't Cd., Section 311.023 (1), (2), (3), and (4).

Since the Court does rely on extratextual considerations and in particular some consequences of deciding this case otherwise, then it should also consider some other consequences of deciding this case under Article 37.07, Section 3(c). By deciding this case under Article 37.07, Section 3(c), the Court's opinion would require a trial court to declare a mistrial as to the entire case when a jury is split on the sudden passion issue at the punishment phase. See Article 37.07, Section 3(c)(requiring trial court to declare mistrial if "the jury shall fail to agree"). On the other hand, an appellate court may remand an identical case for only a new punishment hearing if a trial court does what the trial court did in this case and lets an appellate court grant relief on appeal. See Article 44.29(b), V.A.C.C.P.

It is doubtful that the Legislature intended for these things to happen when it added Section 19.02(d). See Texas Government Code, Section 311.023 (5) (in construing ambiguous or nonambiguous statute, courts should consider consequences of a particular construction). It is more likely that the Legislature by adding Section 19.02(d) intended the same consequences that existed under former law when the jury is split on the sudden passion issue which is a mistrial only as to the phase of the trial affected by the jury's split. Under former law, it was a mistrial as to guilt/innocence. Under current law, it should be a mistrial as to punishment only.

Deciding this case under Article 37.07, Section 3(c), results in an undeserved windfall to guilty criminal defendants. Echoing the terminology of the various opinions filed in this case, if the Legislature intended for this to happen, then surely it would have expressly said so.

With these comments, I concur only in the Court's judgment.

McCormick, Presiding Judge

(Delivered June 21, 2000)

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