354
Opinion of the Court
and the murder was carried out in the course of committing a robbery. Tex. Penal Code Ann. §§ 19.02(a)(1), 19.03(a)(2) (1989).
After the jury determined that petitioner was guilty of capital murder, a separate punishment phase of the proceedings was conducted in which petitioner's sentence was determined. In conformity with the Texas capital sentencing statute then in effect, see Tex. Code Crim. Proc. Ann., Art. 37.071(b) (Vernon 1981),1 the trial court instructed the jury that it was to answer two special issues:
"[(1)] Was the conduct of the Defendant, Dorsie Lee Johnson, Jr., that caused the death of the deceased, committed deliberately and with the reasonable expectation that the death of the deceased or another would result?
. . . . . "[(2)] Is there a probability that the Defendant, Dorsie Lee Johnson, Jr., would commit criminal acts of violence that would constitute a continuing threat to society?" 2 App. 148-149.
The trial court made clear to the jury the consequences of its answers to the special issues:
"You are further instructed that if the jury returns affirmative or 'yes' answer [sic] to all the Issues submitted, this Court shall sentence the Defendant to death. If the jury returns a negative or 'no' answer to any Issue submitted, the Court shall sentence the Defendant to life in prison." Id., at 146.
1 The Texas Legislature amended the statute in 1991. See Art. 37.071(2) (Vernon Supp. 1992-1993).
2 The statute also required that a third special issue, asking whether the defendant's act was "unreasonable in response to the provocation, if any, by the deceased," be submitted to the jury "if raised by the evidence." Art. 37.071(b)(3) (Vernon 1981). Petitioner does not contest the trial court's decision not to submit the third special issue in this case.
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