493 U.S. 1005 (1989)

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U.S. Supreme Court

SOROLA v. TEXAS , 493 U.S. 1005 (1989)

493 U.S. 1005

Joe L. SOROLA, petitioner,
TEXAS. No. 88-7384.

Supreme Court of the United States

December 11, 1989

Petition for writ of certiorari to the Court of Criminal Appeals of Texas.


Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

Petitioner, Joe Sorola, was indicted for capital murder under Tex. Penal Code Ann. 19.03(a)(2) (Supp.1988-1989). At trial, the State announced in open court that it would not seek the death penalty and jury selection proceeded as if the death penalty was not at issue. [Footnote 1] As the lower court explained:

Page 493 U.S. 1005 , 1006

"The record reflects that following the jury's decision that [ Sorola] was guilty of capital murder, the jury was sent back to the jury room. Outside the presence of the jury, the trial court, the State, and [Sorola] agreed that because the State had waived the death penalty in this case, the proper procedure was to have the court assess punishment. The trial court then found [Sorola] guilty of capital murder and sentenced him to life imprisonment in the Texas Department of Corrections. Thereafter without objection, the court informed the parties he was going to release the jury panel." 674 S. W.2d 809, 810 (Tex.App.1984).

Petitioner appealed his conviction and sentence. The Texas Court of Criminal Appeals found that under state law, the State cannot waive its right to seek the death penalty, and a defendant cannot waive the right to a jury's assessment of punishment. 693 S.W.2d 417, 419 (1985). Upon remand for a new trial, petitioner filed an application for writ of habeas corpus arguing that the Double Jeopardy Clause barred the State from seeking the death penalty if he were once again found guilty of capital murder on retrial. [Footnote 2] The Texas courts rejected his claim and he now seeks certiorari. [Footnote 3] 769 S.W.2d 920, 926-928 (Tex.Crim.App.1989). Because I believe the Double Jeopardy Clause bars the State from subjecting petitioner to the death penalty on retrial, I would grant the petition and reverse the Texas Court of Criminal Appeals.


In Bullington v. Missouri, 451 U.S. 430 (1981), this Court held that the Double Jeopardy Clause prohibits the State from subjecting a defendant who received a life sentence in his first sentencing proceeding to the possibility of a death sentence on retrial after reversal of his conviction or sentence. The Court concluded that because the capital sentencing proceeding "in all relevant respects was like the immediately preceding trial on the issue of guilt or in- [493 U.S. 1005 , 1007]

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