Amed Jasaad Boyce v. The State of Texas--Appeal from 187th Judicial District Court of Bexar County

CONCURRING OPINION

No. 04-04-00267-CR

Amed Jasaad BOYCE,

Appellant

v.

The STATE of Texas,

Appellee

From the 187th District Court, Bexar County, Texas

Trial Court No. 2003-CR-8055

Honorable Raymond Angelini, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Concurring opinion by: Catherine Stone, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: July 13, 2005

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.

Catherine Stone, Justice

Do Not Publish