Lackey v. State

CLINTON, Judge,

dissenting.

In Black v. State, 816 S.W.2d 350 (Tex.Cr.App., delivered this day) (Campbell, J., concurring), a majority of judges today agree that error predicated upon Penry v. Lynaugh, 492 U.S. 302 , 109 S.Ct. 2934 , 106 L.Ed.2d 256 (1989), may be raised for the first time on direct appeal or collateral attack, at least so long as trial occurred prior to the date of that decision. This is so because before that date a Penry claim was a “right not recognized” in this Court. Ex parte Chambers, 688 S.W.2d 483 (Tex.Cr.App.1984) (Campbell, J., concurring). This Court’s obduracy in the last dozen years in refusing to accept the necessary implications of Woodson v. North Carolina, 428 U.S. 280 , 96 S.Ct. 2978 , 49 L.Ed.2d 944 (1976), Lockett v. Ohio, 438 U.S. 586, at 604 , 98 S.Ct. 2954, at 2965 , 57 L.Ed.2d 973, at 990 (1978) (Plurality opinion), and their progeny, led directly to that conclusion. See Stewart v. State, 686 S.W.2d 118 (Tex.Cr.App.1984) (Clinton, J., dissenting). How ironic, then, that in the instant cause the Court continues to ignore the impact of those earlier cases in construing the reach of the substantive holding in Penry v. Lynaugh, supra.

The United States Supreme Court has told us beyond peradventure that “the Constitution limits a State’s ability to narrow a sentencer’s discretion to consider relevant evidence that might cause it to decline to impose the death sentence.” McCleskey v. Kemp, 481 U.S. 279, at 304 , 107 S.Ct. 1756, at 1773 , 95 L.Ed.2d 262, at 286 (1987) (emphasis in the original). See also Hitchcock v. Dugger, 481 U.S. 393 , 107 S.Ct. 1821 , 95 L.Ed.2d 347 (1987). “[A]ny aspect of a defendant’s character or record and any of the circumstances of the offense” that in reason could persuade a jury to impose a penalty less than death may be said in this context to be “relevant” mitigating evidence. Lockett v. Ohio, supra, 438 U.S. at 604 , 98 S.Ct. at 2965 , 57 L.Ed.2d at 990 ; Eddings v. Oklahoma, 455 U.S. 104, at 110 , 102 S.Ct. 869, at 874 , 71 L.Ed.2d 1, at 8 (1982). 1

In Lockett v. Ohio, supra, a plurality of the Supreme Court invalidated the death sentence of a 21 year old defendant. Under the Ohio statute then governing capital sentencing, the trial judge was to impose a sentence of death unless he found one of three statutorily defined mitigating circumstances, viz: 1) that the deceased “induced or facilitated” the offense; 2) that the accused acted under “duress, coercion or strong provocation^]” or 3) that the accused’s conduct was a product of his “psychosis or mental deficiency[.]” Id., 438 U.S. at 607 , 98 S.Ct. at 2966 , 57 L.Ed.2d at 991-92 . Although such factors as Lock-ett’s age and criminal record could be considered in the determination whether any *137 of the statutory mitigating circumstances existed, they could not be regarded as justifications in their own right for a sentence less than death. Nor could factors such as the accused’s relatively minor role in the events leading up to the murder, or absence of an intent to kill on her part. A plurality of the Supreme Court held that this limitation of the range of mitigating circumstances was incompatible with its recent Eighth Amendment jurisprudence, most notably Woodson v. North Carolina, supra. In a companion case to Lockett, Bell v. Ohio, 438 U.S. 637 , 98 S.Ct. 2977 , 57 L.Ed.2d 1010 (1978), the same plurality overturned the death penalty of a defendant who had been sixteen years old, high on mescaline, and possibly only an accomplice at the time of his offense.

In Eddings v. Oklahoma, supra, a majority of the Supreme Court adopted the holding of Lockett . There, even though the trial judge had taken account of Eddings’ youth as a mitigating factor per se, he had refused to consider within Oklahoma’s open-ended mitigation statute the troubled circumstances of Eddings' upbringing. After recounting Eddings’ “neglectful, sometimes even violent family background^]” and his circumstantially retarded mental and emotional development, the Supreme Court went on to observe:

“All this does not suggest an absence of responsibility for the crime of murder, deliberately committed in this case. Rather, it is to say that just as the chronological age of a minor is itself a relevant mitigating factor of great weight, so must background and emotional development of a youthful defendant be duly considered in sentencing.”

455 U.S. at 116 , 102 S.Ct. at 877 , 71 L.Ed.2d at 12 . There is no suggestion in Eddings that a capital accused’s crime must be directly attributable to the circumstances of his youth before those circumstances will have mitigating impact under the Eighth Amendment. On the strength of Lockett , the Supreme Court vacated Eddings’ sentence of death.

In Skipper v. South Carolina, 476 U.S. 1 , 106 S.Ct. 1669 , 90 L.Ed.2d 1 (1986), although allowing such mitigating evidence as “the difficult circumstances of [Skipper’s] upbringing[,]” the trial court refused to admit testimony regarding his good behavior and adjustment during incarceration pending his trial. The Supreme Court recognized that “any [favorable] inferences” deriving from this evidence “would not relate specifically to petitioner’s culpability for the crime he committed[.]” Nevertheless, citing Lockett, supra, the Court opined that “there is no question but that such inferences would be ‘mitigating’ in the sense that they might serve ‘as a basis for a sentence less than death.’ ” 476 U.S. at 4-5 , 106 S.Ct. at 1671 , 90 L.Ed.2d at 7 . Because this evidence was not considered, Skipper’s death sentence was vacated. It is true that in Franklin v. Lynaugh, 487 U.S. 164 , 108 S.Ct. 2320 , 101 L.Ed.2d 155 (1988), a majority of the Supreme Court concluded that, in the particular context of Article 37.071(b), V.A.C.C.P., special issues, the mitigating significance of good behavior in jail pending trial could be fully accommodated within the second special issue, regarding future dangerousness. The principle of Skipper remains intact, however, and applies beyond the context of good conduct in jail. Proffered evidence does not necessarily have to relate specifically to culpability for the charged crime to be “relevant” to serve as a valid basis for a sentence less than death. Accordingly, Justice O’Connor conceded in her concurring opinion in Franklin that "evidence of voluntary service, kindness to others, or of religious devotion” could well serve as relevant mitigating circumstances inasmuch as it "might demonstrate positive character traits that might mitigate against the death penalty.” 487 U.S. at 186 , 108 S.Ct. at 2333 , 101 L.Ed.2d at 173 .

Thus the stage was set for Penry v. Lynaugh, 492 U.S. 302 , 109 S.Ct. 2934 , 106 L.Ed.2d 256 (1989). There the Supreme Court decided that there was an Eighth Amendment violation under circumstances left open in Franklin, viz: where there is:

“mitigating evidence about ... background or character or the circumstances of the crime that was not relevant to the special verdict questions, or that had rel *138 evance to the defendant’s moral culpability beyond the scope of the special verdict questions, [and] the jury instructions would have provided the jury with no vehicle for expressing its ‘reasoned moral response’ to that evidence.”

492 U.S. at 322 , 109 S.Ct. at 2948 , 106 L.Ed.2d at 280 , quoting Franklin v. Lynaugh, supra, which in turn quotes California v. Brown, supra. Penry presented evidence of his mental retardation and of some childhood abuse. The Supreme Court held that although such evidence may have mitigating relevance to the statutory special issues, the special issues were insufficient to accommodate its full mitigating relevance.

This holding cannot be limited to the particular facts presented in Penry . Whenever evidence is proffered which is “relevant” as mitigating evidence, but its mitigating significance is either quite apart from, or goes beyond, any bearing it has on one of the statutory special issues, the failure to provide the sentencer with some mechanism by which to account for that evidence, and, in its reasoned moral response, assess a sentence of less than death, will invalidate any sentence of death imposed. This principle applies equally to any evidence the Supreme Court has recognized as constitutionally mitigating that has significance apart from, or beyond, the special issues, whether or not the evidence relates specifically to the accused’s culpability for the crime he committed. Skipper v. South Carolina, supra.

In the instant cause appellant presented evidence of a disadvantaged and abused childhood. He also established a limited intelligence which at least at one time tested on the borderline of mild retardation. This, of course, represents “classic” Penry evidence. The majority’s attempt to downplay the mitigating impact of this evidence beyond the scope of special issues is unconvincing. It seems to boil down to the observation that “there is little or no connection between [appellant’s] background and character evidence and the facts and circumstances of his criminal acts in the instant case.” At 118. But as even the majority acknowledges, there is no “nexus” requirement to be derived from Penry, supra. And any such requirement the majority might wish to impose would be inconsistent with the holding in Skipper v. South Carolina, supra. At any rate, the jury would be free to conclude that appellant’s mental and emotional problems had an adverse impact upon his impulse control in a way not relevant to special issues without necessarily hearing direct or expert testimony to that effect.

There is also evidence appellant was intoxicated at the time of the offense. See Bell v. Ohio, supra. It seems to me intolerably grudging that the majority refuses to even consider this mitigating fact because it is not specifically addressed in appellant’s motion for rehearing. 2 It is true that intoxication will be a relevant consideration in answering the first special issue pertaining to deliberateness. But what the Supreme Court observed in Penry as to mental retardation has application as well in context of intoxication:

“Penry’s mental retardation was relevant to the question whether he was capable of acting ‘deliberately,’ but it also ‘had relevance to [his] moral culpability beyond the scope of the special verdict questio[n].’ Franklin, 487 U.S., at 185 , 101 L.Ed.2d 155 , 108 S.Ct. 2320 [at 2332]. Personal culpability is not solely a function of a defendant’s capacity to act ‘deliberately.’ A rational juror at the punishment phase of the trial could have concluded, in light of Penry’s confession, that he deliberately' killed Pamela Carpenter to escape detection. Because Penry was mentally retarded, however, and thus less able than a normal adult to control his impulses or to evaluate the consequences of his conduct, ... the same juror could also conclude that Pen-ry was less morally ‘culpable than defen *139 dants who have no such excuse/ but who acted ‘deliberately’ as that term is commonly understood. California v. Brown, 479 U.S., at 545, 93 L.Ed.2d 934 , 107 S.Ct. 837 [, at 841] (concurring opinion).”

492 U.S. at 322-23 , 109 S.Ct. at 2949 , 106 L.Ed.2d at 280-81 . Similarly, all “deliberateness” aside, jurors might rationally believe that the impairment of judgment and impulse control that accompanies intoxication might render an intoxicated defendant less deserving of a sentence of death than a sober man would have been. A jury that has sworn to answer special issues strictly in accordance with the facts, however, has no mechanism for considering intoxication in mitigation, other than to answer the deliberateness question “no.” A juror might believe that in spite of his intoxication, a capital accused acted deliberately. The same juror might also believe that the accused was nevertheless less morally culpable than would have been a sober man committing the same offense. That juror would have no way of effectuating this last belief under the instruction given. See Penry v. Lynaugh, supra, 492 U.S. 302, at 323-24 , 109 S.Ct. 2934, at 2949 , 106 L.Ed.2d 256, at 280-81 (1989).

The majority complains that:

“If we were to require a special issue on mitigation on the facts of the instant case, we do not believe that the special issues of article 37.071 would, in the future, continue to serve any useful purpose in arriving at an individualized assessment of the appropriateness of the death penalty.”

At 401. Of course Article 37.071(b) continues to serve a legitimate, if constitutionally superfluous, function of narrowing the class of death-eligible defendants beyond the narrowing that already occurs under V.T.C.A. Penal Code, § 19.03. See Lowenfield v. Phelps, 484 U.S. 231 , 108 S.Ct. 546 , 98 L.Ed.2d 568 (1988). But if Penry stands for anything, it is that Article 37.071, by itself, is a constitutionally unreliable mechanism for determining that death is an appropriate penalty whenever evidence is proffered having mitigating potential that transcends its logical relevance to the special issues. That in its current form the statute fails to function adequately as a conduit for much of what the Supreme Court has identified as mitigating evidence, thus rendering it unconstitutional in application in many cases under Lockett and its progeny, including Penry , necessarily means it has only a limited utility. There is no escaping that.

The majority today discounts the mitigating relevance of appellant’s evidence in order to salvage something of Article 37.071, supra. But when the Supreme Court has defined evidence as “relevant” for Eighth Amendment purposes, this Court is not at liberty to regard it otherwise, even to resuscitate a statute. Because the majority embraces such a crabbed interpretation of Penry , in derogation of its precursors, Woodson, Lockett and Skipper , all supra, I respectfully dissent.

MALONEY, J., joins.

. In truth, the concept of "relevancy’ in this context seems odd to me. The only material issue, or "fact of consequence,” is whether an accused found guilty of a capital crime deserves a sentence less than death. As is the case at the punishment phase of a non-capital prosecution, where the issue is simply "what punishment to assess,” this is "a normative process, not intrinsically factbound.” Murphy v. State, 777 S.W.2d 44, at 63 (Tex.Cr.App.1989) (Plurality opinion on State's motion for rehearing). That being the case, it seems to me that “what is ‘relevant’ to determining proper punishment is more a question of policy than of logic.” Id.. Because it is a question of Eighth Amendment proportions, however, that policy call is ultimately for the United States Supreme Court to make.

. After today’s decisions in Black v. State, supra, and in Ex parte Goodman, 816 S.W.2d 383 (Tex.Cr.App., delivered this day), appellant can still complain of the failure of the jury charge to account for his voluntary intoxication for the first time by way of post-conviction application for writ of habeas corpus pursuant to Article 11.07, V.A.C.C.P. Why not address it now?