stating that, after finding constitutional error in the jury charge, "[u]nder Code of Criminal Procedure Article 36.19, we will not reverse a conviction or sentence on the basis of jury charge error `unless the error appearing from the record was calculated to injure the rights of the defendant, or unless it appears that the defendant has not had a fair and impartial trial.'"; finding "some harm" under Almanza to objected-to jury charge error
How later courts described this case
- stating that, after finding constitutional error in the jury charge, "[u]nder Code of Criminal Procedure Article 36.19, we will not reverse a conviction or sentence on the basis of jury charge error `unless the error appearing from the record was calculated to injure the rights of the defendant, or unless it appears that the defendant has not had a fair and impartial trial.'"; finding "some harm" under Almanza to objected-to jury charge error
- stating that, after finding constitutional error in the jury charge, "[ujnder Code of Criminal Procedure Article 36.19, we will not reverse a conviction or sentence on the basis of jury charge error 'unless the error appearing from the record was calculated to injure the rights of the defendant, or unless it appears that the defendant has not had a fair and impartial trial.' finding "some harm” under Almanza to objected-to jury charge error
- applying Almanza harmless error analysis to constitutionally erroneous jury instruction concerning use of mental impairment evidence that did not rise to level of mental retardation
- ABecause we have already concluded that there is a reasonable likelihood that the jury believed that it was not permitted to consider evidence of mental impairment outside of determining whether the appellant is mentally retarded, we cannot conclude that the error is harmless.@
Written by the judges who cited it.
The opinion
COCHRAN, J.,
filed a dissenting opinion, in which KELLER, P.J., and KEASLER and HERVEY, JJ., joined.
Appendix
This is cause No. 10,222, the State of Texas versus Johnny Paul Penry. In the District Court of Polk County Texas, 258th Judicial District.
Charge of the Court.
Members of the jury, the Defendant, Johnny Paul Penry, has previously been found guilty of the offense of the capital murder of Pamela Carpenter, which was committed by him on or about October 25, 1979, in Polk County, Texas. It is necessary now for you to determine from all the evidence in the case the answers to certain questions called Special Issues in this Charge. The Court instructs you further, however, as follows.
Roman Numeral One, range of punishment. The mandatory punishment for capital murder is death or confinement in the Institutional Division of the Texas Department of Criminal Justice for life.
Roman Numeral Two, consideration of evidence. In determining the answer to the Special Issues you shall consider all of the evidence submitted to you in this trial. Further, you shall consider all evidence submitted to you during the trial as to the character or background of the Defendant or the circumstances of the offense that militates for or mitigates against the imposition of the death penalty.
You are instructed that when you deliberate on the Special Issues, you are to consider all relevant mitigating circumstances, if any, supported by the evidence presented in the trial. A mitigating circumstance may include, but is not limited to, any aspect of the Defendant’s character, background, or circumstances of the crime which you believe could make a death sentence inappropriate in this case, if any. If you find that there are mitigating circumstances in this case, you must decide how much weight they deserve, if any, and thereafter give effect to them in assessing the defendant’s personal culpability at the time you answer the Special Issues.
Roman Numeral Three, Special Issues Number 1, 2 and 3. The Jury is instructed to return a special verdict of “yes” or “no” to Special Issues No. 1, No. 2, and No. 3.
The word “deliberately,” as used in Special Issue No. 1, means a manner of doing an act characterized by or resulting from careful consideration, a conscious decision involving a thought process which embraces more than mere will to engage in the conduct.
The burden of proof as to Special Issue No. 1, No. 2 and No. 3, rests upon the State and never shifts to the Defendant. The State must prove beyond a reasonable doubt that the answers to each of these Special Issues should be “yes.” However, it is not required that the State prove an affirmative answer to these issues beyond all doubt. It is required that the State’s proof excludes all reasonable doubt concerning an affirmative answer to each of these three issues. In the event you have a reasonable doubt as to an affirmative answer to one or more of these after considering all of the evidence before you and *790 these instructions, you will answer the issue or issues “no.”
You are therefore instructed that you may not answer Special Issue No. 1, No. 2 or No. 3 “yes” unless all jurors unanimously agree beyond a reasonable doubt. Further, you may not answer any of these three special issues “no” unless ten or more jurors agree.
Roman Numeral Four, Special Issue No. 4. You are further instructed that if the jury answers Special Issue No. 1, No. 2, and No. 3 “yes” then, and only then, the jury shall answer Special Issue No. 4. The jury will answer Special Issue No. 4 either “yes” or “no.” There is no burden of proof upon the State or the Defendant regarding Special Issue No. 4. The jury shall consider mitigating evidence, if any, that a juror might regard as reducing the Defendant’s moral blameworthiness.
You are instructed that mental retardation is a mitigating factor as a matter of law. Mental retardation is defined as, (A), significantly subaverage intellectual functioning, an IQ of approximately 70 or below on an individually administered IQ test; (B), concurrent deficits or impairments in present adaptive functioning, i.e., the person’s effectiveness in meeting the standards expected for his or her age by his or her cultural group in at least two of the following areas: Communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety; and (C), the onset is before 18 years.
Therefore, you are instructed that if you believe from all the evidence that the Defendant is a person with mental retardation, then you are instructed to answer Special Issue No. 4 “yes.” However, if you do not believe from all the evidence that the person is — that the Defendant is a person with mental retardation, then you shall follow the Court’s instructions previously given herein concerning the appropriate answer to Special Issue No. 4 and consider whether any other mitigating circumstance or circumstances exist as defined herein.
The jury may not answer Special Issue No. 4 “no” unless all jurors agree unanimously. The jury may not answer “yes” to this issue unless ten or more jurors agree.
Roman Numeral Five, effect of answers to Special Issues. You are instructed that if you answer Special Issues No. 1, No. 2, and No. 3 “yes,” and you answer Special issue No. 4 “no,” then the Court shall sentence the Defendant to death.
You. are further instructed that if you answer Special Issues No. 1, No. 2, No. 3 and No. 4 “yes,” then the Court shall sentence the defendant to' confinement in the Institutional Division of the Texas Department of Criminal Justice for life.
Furthermore, you are instructed that if you answer Special Issues No. 1, No. 2, No. 3 in the negative, that is, an answer of “no” to one or more of these issues, then the Court shall sentence the defendant to confinement in the Institutional Division for the Texas Department of Criminal Justice for life.
Roman Numeral Six, special instructions. During your deliberations you are not to consider nor discuss any possible action of the Board of Pardons and Paroles division of the Texas Department of Criminal Justice or the Governor or how long a Defendant will be required to serve to satisfy a sentence of life imprisonment.
You are further instructed that you are not to be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling.
*791 You are instructed that a Defendant may testify in his own behalf if he chooses to do so. This, however, is a privilege accorded to the Defendant, and in the event he elects not to do so, that fact will not be taken by you as a- circumstance against him nor prejudice him in any way. In this case the Defendant has elected not to testify and you are instructed that you cannot and must not refer to or allude to that fact throughout your deliberations nor take it into consideration for any purpose whatsoever as a circumstance against the Defendant.
Your are further instructed that if there is any evidence before you in this case regarding the Defendant having committed an offense or offenses, if any, other than the offense for which he has been convicted, to-wit, the capital murder of Pamela Carpenter, you cannot consider this evidence for any purpose unless you find and believe there is clear proof that the Defendant committed such other offense or offenses, if any were committed, and even then you may only consider the same in determining the answers to the Special Issues.
Your are instructed that if you heard testimony from expert witnesses that was not supported by the evidence admitted before you during the course of this trial, those facts shall only be considered for the purpose of explanation or support for any such expert’s opinions or conclusions and they shall not be considered for the truth of the matter asserted.
You are the exclusive judges of the facts proved, of the credibility of the witnesses and the weight to be given their testimony. But it is the law you shall receive in these written instructions and you will be governed thereby.
Occasionally during jury deliberations a dispute arises as to the testimony presented. If this should occur in this case, you shall inform the Court and request that the Court read the portion of the disputed testimony to you from the official transcript.
Roman Numeral Seven. After you retire to the jury room, you shall select one of your members as your foreperson. It is his or her duty to deliberate — to preside at your deliberations, vote with you, and to certify to your verdict by using the appropriate forms included herein, and signing the same as foreperson.
No one has any authority to communicate with you except the officer who has you in charge. During your deliberations in this case, you must not consider, discuss, nor relate any matters not in evidence before you. You should not consider nor mention any personal knowledge or information that you may have about any person or fact connected with this case which is not shown by the evidence before you.
It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement, if you can so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your views and change your opinion if convinced it is erroneous, but do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict.
After you have retired, you may communicate with this Court in writing through the officer who has you in charge. Do not attempt to talk to the officer who has you in charge, or the attorneys or the Court, or *792 anyone else concerning any questions you may have. Following the arguments of the counsel, you will retire to consider your verdict.
Verdict form, Special Issues. Special Issue verdict forms. The Special Issues, with forms for your answers are as follows: Special Issue No. 1: Was the conduct of the Defendant, Johnny Paul Penry, that caused the death of Pamela Carpenter, the deceased,- committed deliberately and with the reasonable expectation that the death of the deceased would result? Answer: We, the jury, unanimously find and determine beyond a reasonable doubt that the answer to this Special Issue is “yes.” An a line provided for the foreperson to sign. Or, we, the jury, because at least ten jurors have a reasonable doubt as to the matters inquired about in this Special Issue, find and determine that the answer to this Special Issue is “no.” And a line provided for the foreperson to sign.
Special Issue No. 2: Is there a probability that the Defendant, Johnny Paul Pen-ry, would commit criminal acts of violence that would constitute a continuing threat to society? Answer: We, the jury, unanimously find and determine beyond a reasonable doubt that the answer to this Special Issue is “yes.” And a line provided for the foreperson to sign. Or, we, the jury, because at least ten jurors have a reasonable doubt as to the matter inquired by in this Special Issue, find and determine that the answer to this Special Issue is “no.” And a line provided for the presiding juror to sign.
Special Issue No. 3: Was the conduct of the Defendant, Johnny Paul Penry, in killing Pamela Carpenter, the deceased, unreasonable in response to provocation, if any, by the deceased? Answer: We, the jury, unanimously find and determine beyond a reasonable doubt that the answer to this Special Issue is “yes.” And a line provided for the foreperson to sign. Or, we, the jury, because at least ten jurors have a reasonable doubt as to the matters inquired about in this Special Issue, find and determine that the answer to this Special Issue is “no.” And a line provided for the foreperson to sign.
In the event that the jury has answered Special Issue No. 1, Special Issue No. 2 and Special Issue No. 3 in the affirmative, then, and only then, does the jury answer Special Issue No. 3 that follows. Special Issue No. 4: Do you find from the evidence, taking into consideration all of the evidence, including the circumstances of the offense the Defendant’s character and background, and the personal moral culpability of the Defendant, Johnny Paul Pen-ry, that, these is a sufficient mitigating circumstance or circumstances to warrant that a life — that a sentence of life imprisonment rather than a death sentence be imposed. Answer: We, the jury, unanimously find that the answer to this Special Issue is “no.” And a line provided for the foreperson to sign. Or, we, the jury, find because at least ten jurors find that there is sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed, find that the answer to this Special Issue is “yes.” And a line provided for the foreperson to sign.
After this jury has answered each of the Special Issues under the conditions and instructions outlined above, the foreperson shall sign the verdict for below.
Verdict: We, the jury, return in open Court the above answers to the Special Issues submitted to us, and the same is our verdict in this case. And a line provided for the foreperson to sign.