Does anyone have a voir dire on a sexual assault of a child case with auto life. Defense attorney wants to go to jury for punishment even though it is an auto life case.
Pretty sure that's not how that works, is it? Isn't the sentence a ministerial act after conviction in those cases? Like in a non-death capital murder?
Posts: 2434 | Location: TDCAA | Registered: March 08, 2002
It seems to me that the jury would have to find the enhancement true and then be instructed if true you sentence the defendant to life--unless I am missing something.
I don't have a voir dire for you, but I did want to chime in that James is correct -- it is a punishment enhancement just like any other and thus the defendant can choose to go to the jury and have them decide if the enhancement is proven BARD and if so they don't have any leeway in the punishment.
But see Bevill v. State (573 S.W.2d 781): where there is a provision for a mandatory life sentence if certain enhancements are true, neither the prosecution nor the defense get to voir dire on it.
The auto-life provision differs from 25-life because the jury still has some discretion and you can disqualify any venire member who can't consider life on a third-degree if the enhancements are true. Going to the jury for punishment just means that the jury decides if the prior is proven BRD; once they find the enhancement true, they don't have any discretion about the sentence.
