explaining, under Aright not recognized@ exception, a defendant is excused from objecting if (1) a claim was so novel that the basis of the claim was not reasonably available at the time of trial, or (2) the law was so well settled by the Court of Criminal Appeals that an objection at the time of trial would have been futile
How later courts described this case
- explaining, under Aright not recognized@ exception, a defendant is excused from objecting if (1) a claim was so novel that the basis of the claim was not reasonably available at the time of trial, or (2) the law was so well settled by the Court of Criminal Appeals that an objection at the time of trial would have been futile
- explaining, under "right not recognized” exception, that defendant is excused from objecting if (1) claim was so novel that basis of claim was not reasonably available at time of trial, or (2) law-was so well settled by Court of Criminal Appeals that objection at time of trial would' have been futile
- determining that the future-dangerousness special issue was adequate for the jury to consider the evidence that was presented, which did not include allegations of child abuse or trauma
- holding that defendant, who was tried in 1986, could not be faulted for not objecting because the law changed three years later in 1989 with the decision in Penry
Written by the judges who cited it.
The opinion
BAIRD, Judge,
concurring in part and dissenting in part.
Judge Miller is correct, it was futile for defense counsel to request the trial court to provide the jury with a vehicle to express its reasoned moral response to the mitigating evidence “not relevant to” *375 and/or “beyond the scope of” the special issues submitted pursuant to Tex.Code Crim.Proc.Ann. art. 37.071. See, Stewart v. State, 686 S.W.2d 118, 125 (Tex.Cr.App.1984) (Clinton, J., joined by Teague and Miller, JJ., dissenting); Lackey v. State, 819 S.W.2d 111 (Tex.Cr.App.1989) (Miller, J., dissenting) (opinion on original submission), aff’d at 128 (Tex.Cr.App. delivered this day) (opinion on motion for rehearing). Therefore, I join Part IIA of the majority opinion.
I dissent, however, to Part IIB of the opinion holding no additional instruction was necessary for the jury to express its reasoned moral response to appellant’s mitigating evidence. Majority opinion, page 353. Appellant’s mitigating evidence establishes the three positive character traits mentioned by Justice O’Connor in her concurring opinion in Franklin v. Lynaugh, 487 U.S. 164, 186-88 , 108 S.Ct. 2320, 2333 , 101 L.Ed.2d 155 (1988) (O’Connor, J., joined by Blackmun, J., concurring): Religious devotion (Bl ack, Maj. op. IA at 354), kindness to others (Black, Maj. op. IA at 354) and voluntary service (Black, Maj. op. IA at 354). Because no additional instruction was submitted, a reasonable juror could well have believed that there was no vehicle for expressing the view that appellant did not deserve to be sentenced to death based upon his mitigating evidence. Penry v. Lynaugh, 492 U.S. 302, 324-26 , 109 S.Ct. 2934, 2950 , 106 L.Ed.2d 256 (1989). Accordingly, I believe our capital sentencing scheme operated in an unconstitutional manner as applied to appellant. See, Ex parte Baldree, 810 S.W.2d 213, 217 (Tex.Cr.App.1991 delivered this date) (Baird, J., dissenting); Boggess v. State, 1991 WL 87597 (Tex.Cr.App. No. 69,990, delivered this date) (Baird, J., dissenting).
As the majority notes, appellant’s evidence is “qualitatively different” than the mitigating evidence in Penry , which demonstrated mental retardation and an abusive childhood. If the protections of the Eighth and Fourteenth Amendments are limited to such an extreme situation as Penry , then the majority is correct. However, for the reasons stated this date in my dissenting opinion in Baldree, 810 S.W.2d at 217 (Baird, J., dissenting), I do not feel Penry should be so narrowly construed.