St. Mary's Law Journal


When the State of Texas seeks the death penalty against a defendant, the trial court conducts a sentencing proceeding under Article 37.071 of the Texas Code of Criminal Procedure. This proceeding determines whether the defendant will receive the death penalty. During deliberation, the jury must consider all mitigating evidence. The defendant may claim his voluntary intoxication as a mitigating factor. Under Tex. Pen. Code § 8.04(b), the court instructs the jury to consider evidence of voluntary intoxication only if it rendered the defendant temporarily insane. Although Article 37.071 calls upon juries to consider “all” mitigating evidence, a Section 8.04 instruction actually impairs the jury’s prerogative to consider non-insane intoxication. By restricting a jury’s ability to hear relevant evidence of non-insane intoxication, Section 8.04 undermines the fairness of the current sentencing scheme, produces inconsistent results, and is not consistently available. The unpredictable applications of Section 8.04(b) in these two cases illustrate the uncertainty capital defendants face in determining whether and how courts will instruct the jury during the sentencing phase regarding the mitigating factor of voluntary intoxication. Critics of Section 8.04(b) assert Texas has virtually removed the role of voluntary intoxication as mitigation for sentencing purposes. The Eighth Amendment requires the court to allow the defendant to present relevant mitigating evidence. Texas appears to comply with this mandate; yet, Section 8.04(b) requires jury instructions stating they cannot consider this evidence unless it rises to the level of temporary insanity. Article 37.071 is not curative of the limiting effects of Section 8.04(b); thus, the Texas intoxication statute unconstitutionally restricts the sentencer in a capital trial from considering relevant mitigating evidence. This restriction has the potential of resulting in erroneous verdicts and a deprivation of justice. The long-term fairness of the Texas death penalty scheme depends upon reform.


St. Mary's University School of Law