In 1976, in Jurek v. Texas, the Supreme Court upheld the constitutionality of an earlier version of the Texas death penalty statute. 428 U.S. 262, 269, 276, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976) (plurality opinion) (citing TEX. CODE CRIM. PROC. art. 37.071 (Vernon Supp. 1975-76)). Under that statute, the jury considered: (1) whether the conduct of the defendant was committed deliberately and with the reasonable expectation death would result; (2) whether the probability of future violence [*16] and a continuing threat to society existed (future dangerousness); and (3) whether defendant was unreasonably provoked.

Judge Alcala wrote separately to address the possibility of the legislature adopting a provision to address the inequity of the current punishment and sentencing scheme when compared to the punishment of defendants convicted under the Tex. Code. Crim. Proc. art. 37.0711. Judge Alcala agreed with the appellant that defendants sentenced under the current provision set forth in Tex. Code. Crim. Proc. art 37.071 received the benefit of a jury instruction as to the current scheme's death or life with no possibility of parole options, as well as the actual benefits that might occur as to the jury feeling less confined by the sentencing options. Appellant argued that the jury might feel that its “only alternative to a death sentence was a life sentence with the possibility of parole,” which might make it more likely that the jury would answer the question affirmatively as to the death sentence.

"Larry McKay v. State,2010 Tenn. Crim. App. LEXIS 491 (Tenn. Crim. App. 6/15/2010) Relief denied on whether "the post-conviction court erred when it dismissed his petition because he proved that the State improperly suppressed multiple pieces of material evidence."United States v. Len Davis, 2010 U.S. App. LEXIS 12370 (5th Cir 6/16/2010) More next edition.State v. Christopher Allen Hargrave, 2010 Ariz. LEXIS 22 (Az 6/14/2010) More next edition.Selwyn Davis v. State, 2010 Tex. Crim. App. LEXIS 723 (Tex. Crim. App 6/16/2010) More next edition, however, Lexis notes, "[t]rial court did not abuse its discretion under Tex. R. Evid. 403 in admitting evidence in appellant's capital murder case that he killed the victim's cat, which suffered wounds similar to the victim's; for purposes of Tex. Code Crim. Proc. Ann. art. 37.071, § 2(a)(1) and Tex. R. Evid. 401, the evidence clearly proved that appellant killed the cat."Week ofJune 6, 2010:In Favor of the Accused or CondemnedEx parte Jose Garcia Briseno, No.

WR-73,586-01 (Tex. Crim. App. 4/28/2010) (unpublished) Summary denial of postconviction claims.Ex parte Bustamante, NO. WR-58,927-02 (Tex. Crim. App. 4/28/2010) (unpublished) Summary denial of mental retardation claim.Frederick Bell v. Epps, No.08-70031(5th Cir 4/30/2010) Motion to expand COA denied on issues relating to "that the trial court erroneously denied his challenges for cause as to four jurors, which required him to use four of his peremptory challenges to keep them off the jury," IAC for failing "to challenge the state’s allegedly discriminatory use of peremptory challenges, as was his right under Batson v. Kentucky," and IAC for trial counsel's procedural default of certain jury selection issues.Randall Wayne Mays v. State, 2010 Tex. Crim. App. LEXIS 480 (Tex. Crim. App. 4/28/2010) "For purposes of Tex. Code Crim. Proc. Ann. art. 37.071, defendant failed to show egregious harm regarding the omission of the non-unanimity instruction, as the prosecutor never suggested or implied that the jury had to unanimously decide which defensive theory it chose to believe; the court affirmed defendant's capital murder conviction." [via Lexisone]Kosul Chanthakoummane v. State,No.

WR-73,586-01 (Tex. Crim. App. 4/28/2010) (unpublished) Summary denial of postconviction claims.Ex parte Bustamante, NO. WR-58,927-02 (Tex. Crim. App. 4/28/2010) (unpublished) Summary denial of mental retardation claim.Frederick Bell v. Epps, No.08-70031(5th Cir 4/30/2010) Motion to expand COA denied on issues relating to "that the trial court erroneously denied his challenges for cause as to four jurors, which required him to use four of his peremptory challenges to keep them off the jury," IAC for failing "to challenge the state’s allegedly discriminatory use of peremptory challenges, as was his right under Batson v. Kentucky," and IAC for trial counsel's procedural default of certain jury selection issues.Randall Wayne Mays v. State, 2010 Tex. Crim. App. LEXIS 480 (Tex. Crim. App. 4/28/2010) "For purposes of Tex. Code Crim. Proc. Ann. art. 37.071, defendant failed to show egregious harm regarding the omission of the non-unanimity instruction, as the prosecutor never suggested or implied that the jury had to unanimously decide which defensive theory it chose to believe; the court affirmed defendant's capital murder conviction." [via Lexisone]Kosul Chanthakoummane v. State,No.

The Texas Court of Criminal Appeals was not required to pass on any federal question in deciding whether “clear and convincing evidence” showed that “but for a violation of the United States Con-stitution no rational juror would have answered in the state’s favor one or more of the special issues that were submitted to the jury.” The Eighth Amendment violation that applicants have alleged (failure to exempt the men-tally retarded from the death penalty) could not possibly have caused any rational juror to give a different answer to the special issues—viz., whether there is a probability that the defendant would commit criminal acts of violence in the future, Tex. Code Crim. Proc. Ann., Art. 37.071, §§2(b)(1), 3(b)(2) (Vernon Supp. 2001), and (in Moore’s case only) whether “mitigating circumstances” outweigh aggravating factors, §2(e)(1). Not only is the constitu-tional point irrelevant to those issues, but the jury had no cause to think that either applicant was retarded, since neither had asserted mental retardation at trial or in the penalty phase.The decisions of the Texas Court of Criminal Appeals, then, clearly rest on adequate and independent state grounds.

The Texas sentencing statute provides that if a capital sentencing jury answers "yes" to each of the punishment questions submitted, the defendant will be sentened to death, but if ten or more jurors answer one or more of the issues "no," or if the jury is unable to agree on an answer to any issue, the defendant will be sentenced to life imprisonment. Texas Code Crim. Proc. Ann. 37.071(d)(2),f(2), &(g) (Vernon Supp. 1999). The statute, however, prohibits the court or the attorneys for the state or the defendant from informing the jury of the effect of the failure to agree on an issue.During jury deliberations at the punishment phase of Alexander's trial, the jury sent the following note to the court:If jury deliberation does not produce a 12-0 "yes" vote, or a 10-2 "no" vote, on a special issue, what other recourse does the jury have?