NO. AP-75,363 IN THE COURT OF CRIMINAL APPEALS OF TEXAS ...

element of a greater offense.” Ring v. Arizona, 536 U.S. 584, 609 (2002) (internal
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quotation marks omitted). In Ring, the Court held that statutory aggravating factors
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making a defendant death eligible are elements of the charged capital offense. See also
State v. Fortin, 843 A.2d 974, 1033-35 (N.J. 2004) (holding that New Jersey Constitution
requires aggravating factors to be submitted to a grand jury in a capital case).
This Court must remand this case for imposition of a life sentence because the
State’s error in failing to obtain an indictment charging the special issues cannot be subject
to harmless error analysis and, even if it can be, the State cannot prove the error harmless
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beyond a reasonable doubt. See United States v. Resendiz-Ponce, 425 F.3d 729 (9 Cir.
2005), rev’d on other grounds, __ U.S. __, 127 S. Ct. 782 (2007). Alternatively, this
Court should remand to allow the State to attempt to obtain a grand jury indictment
charging the requisite special issues. If the State were to obtain such an indictment, then
the Appellant would be subject to another punishment trial.
(f) The trial court committed reversible error by charging the jury on special issue
three (i.e., future dangerousness).
The trial court committed reversible error by overruling Appellant’s objection to
charging the jury that it had to find beyond a reasonable doubt a “reasonable probability
that the defendant would commit criminal acts of violence that would constitute a threat to
society.” TEX. CODE CRIM. PROC. Art. 37.0711 (3)(b)(2). See (1 CR 250-63; 6 CR 117-20;
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Because of Ring, federal courts now agree that aggravating circumstances must be found by a grand jury under
the Fifth Amendment. See, e.g., United States v. Allen, 406 F.3d 940, 943 (8th Cir. 2005) (en banc).
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In Sattazahn v. Pennsylvania, 537 U.S. 101, 111 (2003), the Court ruled that “if the existence of any fact (other
than a prior conviction) increases the maximum punishment that may be imposed on a defendant, that fact – no
matter how the State labels it – constitutes an element, and must be found by a jury beyond a reasonable doubt.”
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