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Criminal Law No. 74-140, 6/11/2003 Click here for the full text of this decision FACTS:The appellant was convicted of capital murder and sentenced to death. HOLDING:Affirmed. The appellant contends that his death sentence was arbitrarily imposed, in violation of the Eighth and 14th Amendments, because the death penalty is disparately applied in similar cases depending on the county in which a particular capital murder is prosecuted. The appellant alleges that large counties with large budgets, such as Harris County, are able to seek the death penalty more frequently than smaller or poorer counties. Thus, “[a] defendant in a county with a large budget is likely to receive the death penalty, whereas a similarly situated defendant in one of the remaining counties will not be at risk to receive the death penalty.” This argument was previously raised before this Court in Bell v. State, 938 S.W.2d 35 (Tex. Crim. App. 1996), and King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997). In each case the court declined to reach the merits of the claim, holding that because the appellant provided no “empirical data, case law, or other factual basis” to support his claim, there was no foundation upon which the court could have made a determination regarding the merits of the claim. The appellant attempts to provide a factual basis in support of his claim. He points to tables from the Texas Department of Criminal Justice’s Website showing the number of offenders sentenced to death and the number of offenders executed from each county in Texas. These tables indicate higher numbers for Harris County than any other county. The appellant also relies on a press release that states that a death penalty case in Texas costs taxpayers an average of $2.3 million and that “[r]ural counties cannot always afford to try a death penalty case.” Press Release, Office of State Senator Eddie Lucio Jr., District 27, Landmark Bill Adding Life Without Parole as Sentencing Option in Capital Cases Passes in Senate Committee on Criminal Justice, April 19, 2001. The appellant next claims that two articles from the Houston Chronicle demonstrate that “[f]inancial constraints mean that similar capital murders committed by similarly situated defendants will be treated differently, based solely on which county has jurisdiction of the offense.” The appellant asserts: “Financial constraints in each of the 254 counties control the decision whether to seek the death penalty. The risk of facing the death penalty has been greater, substantially, in Texas counties with bigger budgets than in all the remaining counties.” The appellant provided information regarding the number of offenders sentenced to death and the number of offenders executed from each county in Texas, but he failed to provide budgetary data for each of these counties. The fact that Harris County, a large county with a large budget, sentences more offenders to death than any other county in Texas, does not in and of itself establish disparate treatment among similarly situated defendants. In fact, one of the articles cited by appellant states that the “history of ample budgets” is only one of several factors that contribute to the higher number of death penalty convictions in Harris County. The appellant has made no threshold showing of disparate treatment between himself and other similarly situated defendants. OPINION:Holcomb, J.; Keller, P.J., Price, Johnson, Keasler, Hervey and Cochran, JJ., join. CONCURRENCE:Meyers, J. “In point of error thirteen, appellant argues that the Texas capital murder sentencing scheme is unconstitutional because there is no meaningful review of the special issues. The majority is correct that this Court has previously rejected this argument and has held that it is not necessary to conduct a factual sufficiency review of the jury’s answers to the future dangerousness and mitigation special issues. McGinn v. State, 961 S.W.2d 161, 169 (Tex. Crim. App. 1998). However, in light of the Supreme Court’s decision in Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002), holding that the execution of mentally retarded individuals is cruel and unusual punishment, the Court will be forced to conduct both legal and factual sufficiency reviews for the mitigation special issue. Prior to Atkins, the weight that was given to a particular piece of evidence depended upon the influence it had on each juror. Now, however, jurors are required to consider evidence of mental retardation offered in mitigation of punishment. The Court can no longer summarily dismiss requests to review the sufficiency of the evidence in support of the jury’s answers to the special issues.” CONCURRENCE:Womack, J. “Like Judge Meyers’s, see ante, my view is that we should review the evidence of future dangerousness for factual sufficiency. See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Cr. App. 1999) (opinion of Womack, J., concurring); Whitaker v. State, 977 S.W.2d 595 (Tex. Cr. App. 1998) (Womack, J., concurred in judgment as to point two); McGinn v. State, 961 S.W.2d 161, 171 (Tex. Cr. App. 1998) (opinion of Mansfield, J., concurring, in which Womack, J., joined). For this reason and others, I join only the judgment of the Court.”

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