# Lackey v. State

> Court of Criminal Appeals of Texas · May 29, 1991 · 819 S.W.2d 111

URL: https://www.frixlaw.com/law-library/cases/9666100

## Case

- **Full name:** Clarence Allen LACKEY, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** May 29, 1991
- **Citations:** 819 S.W.2d 111; 1991 Tex. Crim. App. LEXIS 107; 1989 WL 62563
- **Precedential status:** Published
- **Opinion:** Dissent by Clinton
- **Judges:** White, Teague, Miller, Campbell, Clinton, Baird, Duncan, Maloney
- **Cited by:** 69 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/9666100

## How later opinions describe it (automated extraction)

- describing as a mitigating circumstance "youthful age (23) at the time of the offense"

## Opinion text

CLINTON, Judge,
dissenting.
The majority opinion could find support on one or another theory of review previously espoused by some other majority of the Court. See, e.g., Burns v. State, 761 S.W.2d 353 (Tex.Cr.App.1988). But to the extent this majority relies on the explication of Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979), found in Moreno v. State, 755 S.W.2d 866 (Tex.Cr.App.1988), I must dissent, for reasons stated in my concurring opinion there, and in dissent in Nevarez v. State, 767 S.W.2d 766 (Tex.Cr.App.1989).
More disturbing, however, is the majority’s reliance upon Franklin v. Lynaugh, 487 U.S. 164 , 108 S.Ct. 2320 , 101 L.Ed.2d 155 (1988), in its resolution of appellant’s points of error four and five. The majority seems to find dispositive language from the plurality opinion in Franklin, supra, that was not ratified by a majority of justices of the United States Supreme Court. * What a “majority” found in Franklin was that the evidence proffered at the punishment phase in that case had no mitigating impact aside from its tendency to support a negative answer to the second special issue.
“If, however, petitioner had introduced mitigating evidence about his background or character or the circumstances of the crime that was not relevant to the special verdict questions, or that had relevance to the defendant’s moral culpability beyond the scope of the special verdict questions, the jury instructions would have provided the jury with no vehicle for expressing its ‘reasoned moral response’ to that evidence. If this were such a case, then we would have to decide whether the jury’s inability to give effect to that evidence amounted to an Eighth Amendment violation. In my view, however, this is not such a case.”
487 U.S. at 188 , 108 S.Ct. at 2333, 101 L.Ed.2d at 173 . (O’Connor, J., Concurring).
Manifestly, appellant in this cause presented evidence in mitigation, Op. at pp. 120-121, which would have no particular relevance to special issues, except inasmuch as it may have the paradoxical tendency to support, rather than undermine, a finding of future dangerousness. See Stewart v. State, 686 S.W.2d 118, 125 (Tex.Cr.App.1984) (Clinton, J., dissenting). Thus, like Penry v. Lynaugh, 832 F.2d 915 (CA5 1987), cert. granted, 487 U.S. 1233 , 108 S.Ct. 2896 , 101 L.Ed.2d 930 (1988), appellant’s is a case a majority of the Supreme Court apparently would agree squarely presents the asserted Eighth Amendment issue. It simply cannot be said, in view of the concurring and dissent ing opinions in Franklin, supra, that appellant’s argument “has been resolved adversely to” him by a majority of the United States Supreme Court. See n. *, ante.
The majority notes that it is not appellant’s contention that mitigating evidence was excluded. In its recitation of the facts the majority excerpts that portion of the court’s charge which authorized the jury to consider all the evidence, both at guilt and punishment stages of trial, in answering *123 the special issues. The implication seems to be that such an instruction suffices to inform the jury that in that endeavor it may consider appellant’s proffered evidence in mitigation. The deficiency in such a charge, it seems obvious to me, is that it does not inform a jury how it may regard evidence which, though it may in a broad sense tend to “moderate blameworthiness,” Stewart v. State, supra, 686 S.W.2d at 126 , nevertheless has no “logical relevance” to the issues in Article 37.071(b). See Burns v. State, supra, 761 S.W.2d at 358, n. 5 . A majority of the Supreme Court may yet hold that the State can constitutionally limit “mitigation” to only that evidence which does in logic tend to negate one of the special issues. I do not expect such a holding; I certainly would not presume it.
In short, I regard today’s opinion of the Court as a feint, in anticipation that the Supreme Court will presently deliver the knockout punch. But, at the risk of mixing sports metaphors, I do not think a capital appeal should be treated as a tag team event. Appellant is entitled to a full review of his conviction in this Court. Because he has not received it, I respectfully dissent.
Todays majority opinion reproduces two portions of the plurality opinion of Franklin, supra, in support of its holding. Op. at p. 119. The first excerpt is merely expository in nature, to explain that in Franklin, supra, as in this case, the petitioner did not claim he had been denied the opportunity to present mitigating evidence at trial. Writing for the plurality, Justice White had not yet even begun his analysis with respect to the asserted deficiency in the jury charge. The second excerpt is drawn from the latter part of the plurality opinion, wherein it is opined, in essence, that evidence relevant to negative findings on special issues is all the “mitigation" constitutionally required. This is a view at least three members of the Court expressly rejected, 487 U.S. at 199-200, 108 S.Ct. at 2340, 101 L.Ed.2d at 182 (Stevens, J., dissenting, joined by Brennan and Marshall, JJ.), and about which two others expressed grave "doubts[J” 487 U.S. at 184-186, 108 S.Ct. at 2332, 101 L.Ed.2d at 172 (O’Connor, J., concurring, joined by Blackmun, J.).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9666100. Public record. Not legal advice.