Black v. State

CLINTON, Judge,

dissenting.

The plurality opinion would reach the merits of appellant’s claim under Penry v. Lynaugh, 492 U.S. 302 , 109 S.Ct. 2934 , 106 L.Ed.2d 256 (1989), despite lack of an objection or request in the trial court, on the basis that such an objection or request would have been futile at the time. The plurality cites-no authority for this proposition. In his concurring opinion, Judge Campbell agrees the Court should reach the merits, but on a different basis: that at the time of appellant’s trial, anything we would now recognize as a valid Penry claim was “a right not recognized.” Under Judge Campbell’s majority concurrence in Ex parte Chambers, 688 S.W.2d 483 (Tex.Cr.App.1984), such a claim is cognizable when raised for the first time on appeal or on post-conviction writ of habeas corpus brought pursuant to Article 11.07, V.A.C.C.P., whether or not it was preserved in the trial court. Reasoning that Penry “point[ed] to a marked change from long-held positions by this Court on issues of extreme constitutional importance to capital defendants,” Judge Campbell concludes it was indeed a right not recognized at the time of appellant’s trial. He has thus declared that for any capital case tried before the Supreme Court’s decision was handed down, on June 26, 1989, a Penry claim will be entertained by this Court irrespective of any procedural default at trial or on appeal.

I agree with Judge Campbell that any forfeiture of Penry error is excusable under the holding in Ex parte Chambers, supra, and to the extent it so holds, I join his opinion. I write further, however, because I am not at all sure we are correct to assume that Penry error can be forfeited in the first place. This depends upon the nature of the Eighth Amendment claim itself, a question that has received little attention in either this Court or, as yet, the *376 United States Supreme Court. If Penry error is of such a nature that it cannot be forfeited, the Court need not invoke its doctrine of excuses, embodied in Chambers’ “right not recognized” test, in order to reach a Penry claim raised for the first time on appeal or on collateral attack.

I.

The Court has frequently said “that even constitutional guarantees can be waived by failure to object properly at trial.” Gibson v. State, 516 S.W.2d 406, 409 (Tex.Cr.App.1974). But surely by this the Court means some constitutional rights, not all. For when the Court says “waived” in this context, it does not mean “waiver” in the sense of Johnson v. Zerbst, 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938), which is to say, the “intentional relinquishment or abandonment of a known right.” What the Court means is that even constitutional guarantees can be forfeited. We know, however, that not all constitutional guarantees can be lost by simple forfeiture. Nevertheless, both the plurality and concurring opinions in this cause assume that Penry error can indeed be forfeited. Hence, they proceed to a Chambers analysis, to determine whether there is a valid excuse for the forfeiture. Lost in the analysis is the threshold inquiry whether Penry error is of such a nature that it can be procedurally defaulted by failure to raise it in the trial court.

The Supreme Court has held that the Texas capital sentencing scheme sometimes operates in a manner inconsistent with requirements of the Eighth Amendment to the United States Constitution. Penry v. Lynaugh, supra. The sentencing scheme is not unconstitutional on its face. Franklin v. Lynaugh, 487 U.S. 164 , 108 S.Ct. 2320 , 101 L.Ed.2d 155 (1988); Jurek v. Texas, 428 U.S. 262 , 96 S.Ct. 2950 , 49 L.Ed.2d 929 (1976). It does violate the Eighth Amendment, however, at least insofar as this Court understands the matter, under the following circumstances:

“[Wjhenever a capital defendant produces evidence of his own character, background, or the circumstances surrounding his offense which, according to contemporary social standards, has a tendency to reduce his moral culpability in a way not exclusively related to the deliberateness of his criminal conduct, the provocative behavior of his victim, or the probability of his future dangerousness, the United States Constitution forbids imposition of the death penalty upon him by a sentencer given no means to prescribe, based on such mitigating evidence, a less severe punishment.”

Gribble v. State, 808 S.W.2d 65, 75 (Tex.Cr.App.1990). From this it is apparent that we do not necessarily understand the Eighth Amendment to guarantee jury instructions of a particular kind in death penalty cases. Because it is only the sentence of death which even arguably offends the Eighth Amendment, one cannot determine whether the Constitution required a jury instruction until after a sentence of death is imposed. This circumstance alone suggests that the essence of Penry may not be the right to a jury instruction. At best, a jury instruction of the kind requested by Penry would, if given, prevent an unconstitutional result.

Thus, we may err to assume that a Pen-ry claim must be preserved by way of request for or objection to the absence of a particular instruction. The mistake occurs when we think of Penry v. Lynaugh, supra, as holding that a capital accused has a right to an instruction whenever evidence of mitigating value beyond the scope of special issues is presented. The more accurate view may be that Penry holds that the Eighth Amendment forbids the imposition of the death penalty by the State whenever the capital sentencer has been precluded from taking all “relevant” mitigating evidence into account in making a reasoned moral judgment whether the accused should live despite the nature of his crime. In short, Penry may not represent a right of the accused so much as a fundamental feature of the system.

The point may be illustrated as follows. Suppose an accused is found guilty of capital murder. At the punishment phase he proffers evidence which all can agree has *377 mitigating significance not cognizable within the statutory special issues. The trial court admits the evidence, then fails to submit to the jury the accused’s requested Penry instruction. The jury is therefore not equipped to give effect to the mitigating evidence. However, the jury answers one of the special issues ‘no,’ thus mandating a life sentence under Article 37.071(e), V.A.C.C.P. One interpretation of this scenario is that the accused was entitled to his requested instruction under the Eighth Amendment, the trial court erred to refuse it, but in view of the jury’s disposition of the special issues, the error in not giving the instruction was harmless beyond a reasonable doubt (or indeed, beyond all doubt). Another interpretation, however, is that no Eighth Amendment violation has occurred because the State, by due operation of its mechanism for assessing sentence in capital cases, viz: Article 37.071, supra, does not propose to carry out the death penalty. Until Article 37.071 does operate to impose the death sentence in spite of factors not presented to the jury that might counsel in favor of a lesser sentence, it has not been unconstitutionally applied. The State has done nothing to controvert the Eighth Amendment. No Penry error has occurred.

Which of these perspectives we embrace has a critical impact upon the question of procedural default. For if we perceive Penry to hold that an accused has a right to an instruction upon introduction of mitigating evidence beyond the scope of special issues, then it is appropriate to ask whether he can assert that right on appeal or on collateral attack sans any request for or objection to the absence of such an instruction — i.e., whether his right may be procedurally defaulted. On the other hand, if what the Eighth Amendment does is not simply to vest an accused with the right to a jury instruction, but rather to forbid the State from giving effect to its death penalty statute whenever it operates to impose death upon less than all the constitutionally “relevant” criteria, the procedural default question takes on a completely different slant. 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. Viewed in this latter light, the State is actually the beneficiary of a Penry instruction. For it is the State, not the accused, that stands to gain from operation of Article 37.071, supra. A Penry instruction ensures that the statute will not operate under any circumstances to violate the Eighth Amendment, irrespective of whether the jury assesses a life or death sentence. Viewing the State as the beneficiary of a Penry instruction, surely it makes no sense to reason that an accused forfeits a claim that he has been sentenced to death in violation of the Eighth Amendment because he failed to request the instruction at trial. If either party should have a burden to request a Penry instruction, it would more appropriately fall to the State. 1

That Penry itself arose in context of a requested jury instruction, refused by a trial judge, does not necessarily mean that the Eighth Amendment doctrine with which the Supreme Court was there concerned is merely the right to a particular jury in *378 struction. That is just the posture in which the issue manifested itself given the peculiar nature of our capital sentencing scheme. We cannot tell from the face of the Penry opinion whether what it recognizes is a fundamental requirement of the system, a federal constitutional right, but one which is subject to waiver only — i.e., the “voluntary relinquishment of a known right[,]” or instead, merely one of a legion of federal constitutional rights which, though important, as all such rights are, must nevertheless be invoked by the accused at trial before he can complain of its violation on appeal or on collateral attack. Until this question is addressed, it seems to me premature to engage in any inquiry whether, under Ex parte Chambers, supra, there is a valid excuse for appellant’s failure to object at trial.

Nevertheless, assuming that Penry error is forfeitable, I agree with Judge Campbell that such forfeiture may be excused under Ex parte Chambers, supra. Therefore, I join his concurring opinion to that extent.

II.

Turning to the merits of appellant’s Pen-ry claim, I must dissent to the Court’s holding that “no constitutional violation is presented.” In the first place, the majority tacitly assumes that as long as it can identify some sense in which that evidence might be said to militate in favor of a “no” answer to one of the special issues, then it is not confronted with Penry error. This assumption misses the very essence of the Supreme Court’s holding. It may well be that the jury had the opportunity to give effect to a particular item of mitigating evidence within the parameters of special issues. But should that evidence also have some potentially mitigating aspect not accountable under the special issues, we cannot say that special issues enable the jury to give it full consideration and effect. The jury must be empowered to give mitigating evidence all the effect to which it is susceptible before we can say the Eighth Amendment has been satisfied, consonant with the holding in Penry . To the extent it suggests otherwise, the majority errs.

The Supreme Court has told us 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). 2 “[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. 3 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); Eddings v. Oklahoma, 455 U.S. 104, at 110 , 102 S.Ct. 869, at 874 , 71 L.Ed.2d 1, at 8 (1982).

“Lockett and Eddings reflect the belief that punishment should be directly related to the personal culpability of the criminal defendant. Thus, the sentence imposed should reflect a reasoned moral response to the defendant’s background, character, and crime rather than mere sympathy or emotion.”

California v. Brown, 479 U.S. 538, at 545 , 107 S.Ct. 837, at 841 , 93 L.Ed.2d 934, at 942 (1987) (O’Connor, J., concurring). Evidence invoking a purely sympathetic or emotional response is probably not “relevant.” See Saffle v. Parks, 494 U.S. 484 , 110 S.Ct. 1257 , 108 L.Ed.2d 415 (1990).

Evidence of the type appellant proffered is not squarely covered in Penry v. Ly- *379 naugh, supra. Nevertheless, it is not plain to me that jurors would find these facets of appellant’s character insignificant in making the normative evaluation whether he deserves to live in spite of his crime. The Supreme Court has not expressly limited its view of “relevant” mitigating evidence to those circumstances necessarily bearing on personal culpability for the particular offense committed or those aspects of the defendant’s background or makeup to which his crime may be, at least in part, attributable. 4 See Skipper v. South Carolina, 476 U.S. 1, at 4-5 , 106 S.Ct. 1669, at 1671 , 90 L.Ed.2d 1, at 7 (1986). To the contrary, there is every indication a majority of the Supreme Court believes “[e]vi-denee of voluntary service, kindness to others, or of religious devotion” to be relevant inasmuch as it “might demonstrate positive character traits that might mitigate against the death penalty.” Franklin v. Lynaugh, 487 U.S. 164, at 186 , 108 S.Ct. 2820 , at 2333, 101 L.Ed.2d 155, at 173 (1988) (O’Connor, J., concurring). When the Supreme Court defines evidence as “relevant” for Eighth Amendment purposes, this Court is not at liberty to regard it otherwise.

It avails appellant little that this Court should reach the merits of his Penry claim and then give it such short shrift. I respectfully dissent.

. A capital accused might reasonably be expected to object at the point at which a trial court purports to pronounce sentence upon affirmative answers to special issues from a jury that has not received a Penry instruction. The function of contemporaneous objection, however, is to afford the trial court an opportunity, perhaps to cure, but at least to rule upon a claimed defect at the time it arises. Zillender v. State, 557 S.W.2d 515 (Tex.Cr.App.1977). Once a jury has answered ‘yes’ to special issues in the absence of a Penry instruction, the trial judge is in a bind. He cannot cure the defect. Any ruling he makes will be wholly unsatisfactory. If he imposes the death penalty pursuant to Article 37.071(e), supra, he violates the Eighth Amendment. He cannot impose a life sentence because, although it would not offend the Eighth Amendment to do so, it would violate Article 37.071(e), supra. To impose no sentence at all likewise violates the mandate of the statute. He could declare a mistrial, but that raises jeopardy questions of enormous complexity. In short, the trial court is in no better position to remedy the situation than an appellate or habeas court would be. An objection at this juncture serves no useful purpose to the system. To require it would truly elevate form over substance.

. Emphasis here and throughout is in the original.

. 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.

. Certainly the probability — or, for that matter, the improbability — that a capital defendant would commit future acts of violence that would constitute a continuing threat to society is not a question bearing on his personal culpability for the particular offense on trial. Yet we know that our second special issue provides at least a partial mechanism for jury consideration of what is, in contemplation of the Supreme Court, relevant "mitigating” evidence under the Eighth Amendment. Jurek v. Texas, 428 U.S. 262 , 96 S.Ct. 2950 , 49 L.Ed.2d 929 (1976); Franklin v. Lynaugh, 487 U.S. 164 , 108 S.Ct. 2320 , 101 L.Ed.2d 155 (1988).