# Nelson v. State

> Court of Criminal Appeals of Texas · November 25, 1992 · 848 S.W.2d 126

URL: https://www.frixlaw.com/law-library/cases/9645832

## Case

- **Full name:** Marlin Enos NELSON, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** November 25, 1992
- **Citations:** 848 S.W.2d 126; 1992 Tex. Crim. App. LEXIS 220; 1992 WL 358404
- **Precedential status:** Published
- **Opinion:** Concurrence by Baird
- **Judges:** Benavides, Baird, Clinton, Miller, Overstreet, Maloney
- **Cited by:** 116 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9645832

## How later opinions describe it (automated extraction)

- holding that even if jury believed that defendant killed the complainant because the complainant looked at him with desire, the jury could also believe that defendant killed the complainant in the course of committing robbery
- concluding evidence supported a murder in the course of committing robbery when the defendant was in financial difficulties, which indicated a possible motive for the crime, and likely took valuables to support a drug habit
- holding no preservation of error because trial court did not deny request for additional peremptory challenge and defendant did not identify objectionable juror

## Opinion text

BAIRD, Judge,
concurring.
In his ninth point of error, appellant contends Tex.Code Crim.Proc.Ann. art. 37.071, as applied, violated the Eighth and Fourteenth Amendments of the United States Constitution, in failing to provide a vehicle for the jury to give effect to appellant’s mitigating evidence. The State responds:
Appellant failed to identify the mitigating evidence and to argue how the special issues failed to allow consideration of the mitigating evidence. Therefore, nothing is presented for review. His ninth point of error should be overruled for its failure to meet the requirements of Tex.R.App.P. 74(d).
State’s brief, pg. 66.
I agree. Appellant’s brief wholly fails to identify what he believes to be mitigating evidence. Further, appellant fails to show how such evidence, if any, was “not relevant to” and/or “beyond the scope” of the punishment issues as required by Penry v. Lynaugh, 492 U.S. 302, 320 , 109 S.Ct. 2934, 2948 , 106 L.Ed.2d 256 (1989) (Quoting Franklin v. Lynaugh, 487 U.S. 164, 184 , 108 S.Ct. 2320, 2333 , 101 L.Ed.2d 155 (1988)). Clearly, not all mitigating evidence requires a vehicle; some mitigating evidence can be given full effect within the issues submitted under art. 37.071. See Boyd v. State, 811 S.W.2d 105, 112 (Tex.Cr.App.1991) (“Appellant’s evidence, which does not rise to the level of anything more than common courtesy, was given full effect within the second special issue [footnote omitted]”). Accordingly, I would summarily overrule the ninth point of error.
However, I write separately to briefly address the majority’s incorrect application Penry . The majority states:
... Nor do we think it is necessary to submit the question of extra-statutory moral culpability without a substantial showing that some significant circumstance has actually disabled the conscience of a defendant to a degree recognized as mitigating by a representative segment of our society, [citations omitted]
* * * * * *
... Without some further evidence of significant moral dysfunction attributable to the experience, we are unwilling to conclude that an isolated and unexplained event producing irrational hatred for a whole class of people is quite the kind of mitigating circumstance envisaged by the United States Supreme Court in Penry . 1
Maj. op. at 137.
Simply stated, such statements are erroneous. There is no requirement under the Eighth Amendment of a “substantial showing” of a “disabled conscience.” Moreover, Penry should not be limited to situations of a “significant moral dysfunction attributable to [a childhood] experience.” Because the majority continues to read Penry far too narrowly, I concur in the result only.
. Unless otherwise indicated, all emphasis herein is supplied.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9645832. Public record. Not legal advice.