# Penry v. State

> Court of Criminal Appeals of Texas · January 9, 1985 · 691 S.W.2d 636

URL: https://www.frixlaw.com/law-library/cases/9653170

## Case

- **Full name:** Johnny Paul PENRY, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** January 9, 1985
- **Citations:** 691 S.W.2d 636; 1985 Tex. Crim. App. LEXIS 1198
- **Precedential status:** Published
- **Opinion:** Concurrence by Clinton
- **Judges:** Tom G. Davis
- **Cited by:** 140 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Penry v. Lynaugh, 492 U.S. 302 (1989).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9653170

## How later opinions describe it (automated extraction)

- holding that the appellant fatally deviated from the long standing rules on preserving error by moving for mistrial without first objecting

## Opinion text

CLINTON, Judge,
concurring.
For the reasons stated in the dissenting opinion in Russell v. State, 665 S.W.2d 771 (Tex.Cr.App.1983), I remain convinced that the observation made in King v. State, 553 S.W.2d 105 (Tex.Cr.App.1977) 1 and relied on by the majority today, 2 has over the intervening years proven to be unsound as regards the term “deliberately.”
As used in the first special issue, the word “deliberately” is not “simple in meaning,” as the continuing debate between lawyers, scholars and judges 3 over its meaning and import well attests.
It is inconceivable to me that the Court has acknowledged the jury’s failure to differentiate “deliberately” from “intentionally” would constitute a denial of due process, see Heckert v. State, 612 S.W.2d 549 (Tex.Cr.App.1981), yet continues to refuse to require as a matter of course that the jury be informed “distinctly [of] the law applicable to the case,” Article 36.14, V.A.C.C.P., in this regard.
Thus, it is clear to me that appellant’s objection to the charge on the ground that it failed to guide the jurors’ deliberations as to the meaning of “deliberately” in the punishment phase, constituted error.
However, due to the fact that the evidence of “deliberateness” was uncontested, overwhelming and in large part gleaned from appellant’s written admissions, I cannot see that the error, under the facts of this ease, was “calculated to injure the rights of the defendant.” Article 36.19, V.A.C.C.P.
Accordingly, I concur in the result only of the Court’s opinion which overrules grounds of error 30 through 34. Otherwise, I join in the opinion and judgment of the Court.
."Where terms used are words simple in themselves, and are used in their ordinary meaning, jurors are supposed to know such common meaning and terms and under such circumstances such common words are not necessarily to be defined in the charge to the jury.”
553 S.W.2d at 107 .
. In overruling grounds of error 30 through 34.
. See Russell, supra, at 783, n. 8 (Opinion dissenting).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9653170. Public record. Not legal advice.