# McGinn v. State

> Court of Criminal Appeals of Texas · January 21, 1998 · 961 S.W.2d 161

URL: https://www.frixlaw.com/law-library/cases/9678873

## Case

- **Full name:** Ricky Nolen McGINN, Appellant, v. STATE of Texas
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** January 21, 1998
- **Citations:** 961 S.W.2d 161; 1998 Tex. Crim. App. LEXIS 8; 1998 WL 75073
- **Precedential status:** Published
- **Opinion:** Concurrence by McCORMICK
- **Judges:** Keller, Mecormick, Meyers, Mansfield, Price, Holland, Womack, Baird, Overstreet
- **Cited by:** 194 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/9678873

## How later opinions describe it (automated extraction)

- holding that defendant waived any objection regarding a child’s incompetence to testify at trial by not requesting a hearing on competency to testify
- holding that defendant preserved nothing for review because he had failed to request a hearing challenging pretrial identification procedures
- holding that future-dangerousness punishment issue in capital case is not subject to factual-sufficiency review because, among other reasons, that issue is one of prediction, not historical fact, and is thus highly subjective
- recognizing that if “the prejudice arising from an erroneous jury argument were incurable, a defendant would be required to request a mistrial to preserve error on appeal because a mistrial would be the appropriate remedy”
- stating that, once the rationality MUHAMMAD –9 of the future-dangerousness prediction is established, it is impossible to determine whether the prediction is nevertheless wrong or unjust because of countervailing evidence

## Opinion text

*170 McCORMICK, Presiding Judge,
concurring.
I join the Court’s opinion. I write separately to respond to the misrepresentations contained in Judge Baird’s concurring and dissenting opinion.
The issue in point of error one is whether this Court will apply a factual (as opposed to legal) sufficiency review to the “future dangerousness” special issue. Relying primarily on the United States Supreme Court’s decision in Clemons v. Mississippi, 494 U.S. 738 , 110 S.Ct. 1441 , 108 L.Ed.2d 725 (1990), Judge Baird’s concurring and dissenting opinion asserts that our declining to apply a factual sufficiency review to the “future dangerousness” special issue (point of error one) and our declining to apply any sufficiency review to the mitigating evidence special issue (point of error seven) “now provides no meaningful appellate review” of the punishment issues in violation of the Eighth Amendment to the United States Constitution. This is incorrect.
We have decided in McFarland v. State as well as in several other cases that we are not constitutionally required to review the sufficiency of the evidence to support the jury’s answer to the mitigating evidence special issue. See McFarland v. State, 928 S.W.2d 482, 498-99 (Tex.Cr.App.1996), cert.denied, — U.S. -, 117 S.Ct. 966 , 136 L.Ed.2d 851 (1997) (constitutionality of Article 37.071, V.A.C.C.P., is not contingent upon appellate review of the mitigation issue). This is because Texas’ capital sentencing scheme leaves it solely to the jury to decide whether certain evidence is mitigating or aggravating which Texas is not constitutionally prohibited from doing. See McFarland, 928 S.W.2d at 499 (we have abandoned any pretense of balancing mitigating evidence against aggravating evidence as a matter of appellate review of the punishment issues); Heiselbetz v. State, 906 S.W.2d 500, 508-09 (Tex.Cr.App.1995) (weight that each juror gives to particular “mitigating” evidence is left to the individual juror’s discretion); see also Franklin v. Lynaugh, 487 U.S. 164, 178-80 , 108 S.Ct. 2320, 2330 , 101 L.Ed.2d 155 (1988) (Eighth Amendment does not require a state to ascribe any specific weight to any particular factors to be considered by the jury, either aggravating or mitigating); Pulley v. Harris, 465 U.S. 37 , 104 S.Ct. 871 , 79 L.Ed.2d 29 (1984). Texas is not a “weighing” state in the sense that the reviewing court reweighs mitigating and aggravating factors on appeal. See McFarland, 928 S.W.2d at 499 .
But, relying on Clemons , Judge Baird’s concurring and dissenting opinion states the United States Supreme Court has “noted that the process of appellate courts reweighing of evidence was consistent with the pursuit of the Eighth Amendment’s twin objectives of measured, consistent application of the death penalty and fairness to the accused.” However, the concurring and dissenting opinion fails to mention that Clemons also says such a scheme is not constitutionally required. See Clemons, 494 U.S. at 753-54 , 110 S.Ct. at 1451 (nothing in this opinion is intended to convey the impression that state appellate courts are required to or necessarily should engage in reweighing); see also Morgan v. Illinois, 504 U.S. 719, 725-27 , 112 S.Ct. 2222, 2228 , 119 L.Ed.2d 492 (1992) (there is not any one right way for a state to set up its capital sentencing scheme).
The concurring and dissenting opinion then disingenuously characterizes Clemons as saying that “failure to perform meanmgful appellate review 1 would result in an automatic rule of affirmance that would be invalid under” the Eighth Amendment. Citing Clemons, 494 U.S. at 751-53 , 110 S.Ct. at 1450 . However, the concurring and dissenting opinion leaves out a critical prepositional phrase from the quote it relies on from Clemons for this statement. What Clemons actually says is:
“An automatic rule of affirmance in a weighing State would be invalid under (citations omitted), for it would not give defendants the individualized treatment that would result from actual reweighing of the *171 mix of mitigating factors and aggravating circumstances.” Id. (Emphasis Supplied).
Texas is not a “weighing” state. See McFarland, 928 S.W.2d at 499 . Therefore, Clemons has no application to Texas’ capital sentencing scheme and Texas is not constitutionally prohibited from declining to review the sufficiency of the evidence to support the jury’s answer to the mitigating evidence special issue. See id. 2 And, for much the same reasons, which also are set out in the court’s opinion, Texas is not constitutionally prohibited from declining to conduct a factual sufficiency review of the “future dangerousness” special issue as such a review would require this Court to reweigh mitigating and aggravating factors on appeal. See Clewis v. State, 922 S.W.2d 126, 135 (Tex.Cr.App.1996), and at 151-55 (McCormick, P.J., dissenting).
And, Texas’ capital sentencing scheme does provide for “meaningful appellate review” of death sentences. Texas applies the Jackson v. Virginia “rationality” standard of reviewing the sufficiency of the evidence to support the jury’s answer to the “future dangerousness” special issue. See Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560 (1979); Barnes v. State, 876 S.W.2d 316, 322 (Tex.Cr.App.), cert.denied, 513 U.S. 861 , 115 S.Ct. 174 , 130 L.Ed.2d 110 (1994). 3 This Court also can reverse a death sentence if a defendant has not had an opportunity to present “relevant mitigating evidence” or if the jury has not had a vehicle to consider and give effect to “relevant mitigating evidence.” See McFarland, 928 S.W.2d at 499 ; Alba, 905 S.W.2d at 588-89 fn. 10; see also Penry v. Lynaugh, 492 U.S. 302 , 109 S.Ct. 2934 , 106 L.Ed.2d 256 (1989).
With these comments I join the Court’s opinion.
. By “meanmgful appellate review,” the concurring and dissenting opinion means reweighing mitigating and aggravating factors on appeal.
. Clemons basically stands for the proposition that if a state is going to reweigh mitigating and aggravating factors on appeal, which Texas does not do, then it must engage in a “meaningful appellate review” of those factors instead of applying an "automatic rule of affirmance." See Clemons, 494 U.S. at 752 , 110 S.Ct. at 1450 . But, such a scheme is not constitutionally required. See Clemons, 494 U.S. at 753-754 , 110 S.Ct. at 1451 .
. In applying this standard, this Court has even decided in some cases that the capital murder was not "so heinous or shocking as to evince a particularly dangerous aberration of character probative of future dangerousness." See Alba v. State, 905 S.W.2d 581 , 588-89 fit. 10 (Tex.Cr.App.1995) (plurality op.), cert. denied, — U.S. -, 116 S.Ct. 783 , 133 L.Ed.2d 734 (1996).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9678873. Public record. Not legal advice.