Martinez v. State

BAIRD, Judge,

concurring in part and dissenting in part.

I agree that no error at the guilt/innocence phase of trial was sufficient to warrant reversal of appellant’s conviction. However, I disagree with the resolution of appellant’s first point of error which relates to the punishment phase of his trial. Accordingly, I would affirm appellant’s conviction, but reform his punishment from death to life imprisonment.

I.

A.

The “cruel and unusual” punishment clause of the Eighth Amendment prohibits death sentences assessed by juries whose discretion is not guided by legislatively defined standards. Furman v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972). Justice Douglas explained that punishment statutes which neither regulate nor guide the jury in the determination of punishment are unconstitutional.

... The high service rendered by the “cruel and unusual” punishment clause of the Eighth Amendment is to require legislatures to write penal laws that are evenhanded, nonselective, and nonarbitrary, and to require judges to see to it that general laws are not applied sparsely, selectively, and spottily to unpopular groups. ⅜ ‡ * ⅜ ⅜ ⅝

... discretionary statutes are unconstitutional in their operation. They are pregnant with discrimination and discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on “cruel and unusual” punishments.

Id., 408 U.S. at 256-257 , 92 S.Ct. at 2735 (Douglas, J., concurring).

In Jurek v. Texas, 428 U.S. 262 , 96 S.Ct. 2950 , 49 L.Ed.2d 929 (1976), the United States Supreme Court reviewed the constitutionality of the Texas capital sentencing scheme enacted following Branch v. Texas, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972). In holding our scheme passed constitutional muster, the Supreme Court stated:

... By providing prompt judicial review of the jury’s decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law. Because this system serves to assure that sentences of death will not be “wantonly” or “freakishly” imposed, it does not violate the Constitution. Furman v. Georgia, 408 U.S., at 310 , 92 S.Ct., at 2762 (Stewart, J., concurring). 1

Jurek, 428 U.S. at 276 , 96 S.Ct. at 2958 (citing Furman, 408 U.S. at 310 , 92 S.Ct. at 2762 ).

B.

It is the responsibility of this Court to review a jury’s verdict to ensure the death penalty was not arbitrarily or capriciously imposed. 2 In so doing,

*700 ... we must remember that “death is a punishment different from all other sanctions in kind rather than degree.” Woodson v. North Carolina, 428 U.S. 280, 303-304 , 96 S.Ct. 2978, 2991 , 49 L.Ed.2d 944 (1976). Because of the uniqueness of the death penalty, fundamental respect for humanity underlying the Eighth Amendment ... requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death. Id., 428 U.S. at 304, 96 S.Ct. at 2991. The constitutionality of our capital sentencing scheme depends upon the sen-tencer’s ability to consider both the aggravating and the mitigating circumstances of a crime. Penry v. Lynaugh, 492 U.S. 302, 316 , 109 S.Ct. 2934, 2945 , 106 L.Ed.2d 256 (1989); California v. Brown, 479 U.S. 538, 541 , 107 S.Ct. 837, 839 , 93 L.Ed.2d 934 (1987); Jurek v. Texas, 428 U.S. 262, 271 , 96 S.Ct. 2950, 2956 , 49 L.Ed.2d 929 (1976).

Wilkerson v. State, 881 S.W.2d 321, 329 (Tex.Cr.App.1994). (Emphasis omitted.)

When reviewing the sufficiency of the evidence to sustain the death penalty, we employ the standard announced in Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560 (1979); we determine if the evidence, when viewed in the light most favorable to the verdict, would persuade any rational trier of fact to answer the punishment issues in such a way as to impose the death penalty. Joiner v. State, 825 S.W.2d 701, 703 (Tex.Cr.App.1992). If the evidence is insufficient to persuade a rational fact finder, the fact finder necessarily acted arbitrarily and capriciously.

Generally, challenges to the sufficiency of the evidence to support the death penalty are couched in challenges to the punishment issue asking whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. 3 In Keeton v. State, 724 S.W.2d 58, 61 (Tex.Cr.App.1987), we adopted a non-exclusive list of factors to consider when the defendant challenges the sufficiency of the evidence to support an affirmative answer to the “future dangerousness” punishment issue.

1. the circumstances of the capital offense, including the defendant’s state of mind and whether he was working alone or with other parties;

2. the calculated nature of the defendant’s acts;

3. the forethought and deliberateness exhibited by the crime’s execution;

4. the existence of a prior criminal record, and the severity of the prior crimes;

5. the defendant’s age and personal circumstances at the time of the offense;

6. whether the defendant was acting under duress or the domination of another at the time of the commission of the offense;

7. psychiatric evidence; and,

8. character evidence.

*701 Keeton, 724 S.W.2d at 61 ; Dinkins v. State, 894 S.W.2d 330, 358 (Tex.Cr.App.1995); and, Vuong v. State, 830 S.W.2d 929, 934-935 (Tex.Cr.App.1992). While the absence of certain aggravating factors might not render the evidence insufficient to support an affirmative answer to the “future dangerousness” punishment issue, the overwhelming presence of mitigating evidence may. Barley v. State, 906 S.W.2d 27, 38 (Tex.Cr.App.1995) (Baird, Overstreet and Maloney, JJ., concurring) (citing Wilkerson v. State, 881 S.W.2d 321, 336 (Baird, J., dissenting)). In other words, our review of the factors which are present in the ease under review and their mitigating/aggravating value determines whether the jury acted arbitrarily or capriciously.

II.

The majority holds five of the Keeton factors support a rational finding of “future dangerousness.” Ante, 924 S.W.2d at 697. First, the majority holds a rational jury could have inferred appellant was reconnoitering the convenience store looking for a place to commit a robbery. Second, appellant discussed committing the robbery with an accomplice. Third, appellant entered the convenience store to commit the robbery. Fourth, appellant failed to explain why the victim was repeatedly stabbed. Finally, the majority argues appellant habitually and blatantly disobeyed the law, and is, therefore, dangerous.

The majority’s Keeton analysis is directly contradicted by our decisional authority. First, the majority argues a rational, jury could have inferred the appellant was reconnoitering the convenience store to commit the crime. We have held such evidence insufficient to support a finding of future dangerousness. In Smith v. State, 779 S.W.2d 417, 421 (Tex.Cr.App.1989), we discussed the relevance of the defendant’s “looking around” an area in anticipation of a crime and its effect on future dangerousness. Id.

It is true that [defendant's hot-blooded nature, coupled with the presumption [defendant] did eventually commit the instant offense, supports an inference that on the day [defendant] returned to the residence he was reconnoitering for potential victims. We note, however, that in Hawkins v. State, 660 S.W.2d 65, 82 (Tex.Cr.App.1983) there was substantial other evidence of future dangerousness.

Smith, 779 S.W.2d at 421 . Therefore, the act of reconnoitering the store must be supported by “substantial other evidence of future dangerousness.” Ibid.

Second, the majority finds appellant’s discussion of the robbery with the accomplice, Ernest Wortmann, as indicative of future dangerousness. In Smith , the defendant, in a conversation with a bystander, discussed having sex with an apartment resident prior to the rape and murder. Smith, 779 S.W.2d at 421 . We determined a rational jury needed more than just the discussion of a “hotblooded” act to warrant a finding of future dangerousness. Id.

Third, the majority argues appellant’s entering the store with the intention of committing robbery supports a finding of future dangerousness. However, the majority does not argue appellant entered the store to murder the victim. The uncontroverted testimony established that appellant’s only intent was to rob the victim; upon entering the convenience store, appellant had no desire to harm the victim. As we stated in Smith :

Moreover, whatever forethought may have gone into this offense evidently did not include murder, since [the defendant’s] confession shows he only decided to kill his victim after the rape was completed, and there are no contrary indicia in the record.

Smith, 779 S.W.2d at 421 (citing Huffman v. State, 746 S.W.2d 212, 225 (Tex.Cr.App.1988)).

Fourth, the majority argues appellant presented no evidence to explain the multiple stabbing of the victim. The majority argues the very circumstances of this offense are gruesome and indicative of a cold-blooded disregard for human life. In Smith , we stated:

... That a killing was senseless, unnecessary and cold-blooded does not invariably justify affirmative answer to the second special issue.

*702 Smith, 779 S.W.2d at 421 (citing Keeton, 724 S.W.2d at 63-64 ).

In Roney v. State, 632 S.W.2d 598, 603 (Tex.Cr.App.1982), we held the purpose of the punishment stage in capital murder cases is to provide a reasonable and controlled decision on whether the death penalty should be imposed, and to guard against its capricious and arbitrary imposition. Ibid.

... To hold that the facts of this offense, standing alone, would support such a verdict, would mean that virtually every murder in the course of a robbery would warrant the death penalty. Such a construction would destroy the purpose of the punishment stage in capital murder cases, which is to provide a reasonable and controlled decision on whether the death penalty should be imposed, and to guard against its capricious and arbitrary imposition.

Ibid. (Emphasis in original.) Though the instant murder was senseless, that fact is true of every murder in the course of a robbery. The facts of this offense, standing alone, do not carry the marks of a calculated and cold-blooded crime, which are vital to the imposition of the death penalty. Jurek, 428 U.S. at 262 , 96 S.Ct. at 2950 ; and, Roney, 632 S.W.2d at 603 ; O’Bryan v. State, 591 S.W.2d 464, 480 (Tex.Cr.App.1979). Consequently, the majority’s reliance upon this factor is misplaced.

Finally, the majority argues appellant habitually and blatantly disobeyed the law. However, the State introduced no evidence of any prior criminal convictions of appellant. The habitual and blatant violations the majority refers to are appellant’s underage drinking and shoplifting; such misdemeanor offenses are not violent in nature nor do they constitute a trend toward violence on the part of appellant. Barley, 906 S.W.2d at 39 (Baird, Overstreet and Maloney, JJ., concurring) (Offenses listed at ibid., n. 1, were not indicative that defendant would constitute a future danger to society.).

III.

The majority’s analysis fails to consider all the Keeton factors. Furthermore, those factors considered by the majority are contradicted by controlling precedent. Because the majority fails to conduct a proper Keeton analysis, I shall.

As noted earlier we must review the evidence in the .light most favorable to the verdict to determine whether any rational trier of fact could have affirmatively answered the “future dangerousness” punishment issue beyond a reasonable doubt. Joiner, 825 S.W.2d at 703 . We must review each Keeton factor to ensure the sentence was not arbitrary or capricious. 4 To assist in determining whether the facts in the instant case were sufficient we may also look to other cases where the State failed to present sufficient evidence. Keeton, 724 S.W.2d at 61 .

A. Circumstances of the Offense, Calculated Acts and Forethought

The first, second and third Keeton factors require consideration of the circumstances of the capital offense, the calculated nature of the defendant’s acts and the forethought and deliberateness exhibited in the crime’s execution.

1.

On July 15, 1993, appellant while drinking at several bars in Nueces County met Wort-mann, who drove appellant to a convenience store. Appellant had nothing to eat that evening and had consumed in excess of thirteen alcoholic beverages. While at the store Wortmann discussed his need for money, his drug addiction and his prior criminal record for robbery. Both Wortmann and appellant discussed robbing the victim and how easy it could be. After this conversation appellant entered the store and committed the robbery.

The evidence shows that appellant possessed a small pocket knife with which he intended to scare the victim into surrendering the money. However, in the course of the robbery, the victim was stabbed eight times with appellant’s knife; four non-fatal *703 wounds were located in the back, and the fatal wounds were located in the neck which caused the victim to bleed to death.

Soon after the murder appellant telephoned the police to surrender. Hotel security testified appellant appeared “tired and drunk.” On the way to the police station, appellant asked officers to pull over so he could vomit. The arresting officer described appellant as “very cooperative” and “concerned about what happened.” Officers described appellant as “very upset” and “remorseful” as he confessed. Appellant further assisted police efforts to recover the murder weapon.

2.

The evidence does not indicate the crime was one calculated to cause the death of the victim. The uncontroverted evidence demonstrated appellant entered the store with the intent to rob the victim, not to kill him. When asked why he stabbed the victim appellant expressed remorse for the killing and stated: “I don’t know. That’s a question I will never be able to answer.” Additionally, appellant voluntarily surrendered himself to authorities and attempted to aid them in finding the murder weapon; all of which militates against a finding of future dangerousness.

In Smith, 779 S.W.2d at 421 , the defendant entered an apartment complex to spray the apartments with insecticide and in the course of doing so attacked, raped and repeatedly stabbed the victim in her apartment. The defendant confessed and admitted: “After I raped her I decided to kill her and kind of went crazy for a few minutes.” The defendant was unable to explain why he brutally stabbed the victim to death. The defendant untied the victim from the bed where she had been raped and then proceeded to stab her fourteen times before fleeing the scene. We held multiple stabbings by themselves are inadequate to demonstrate future dangerousness. Smith, 779 S.W.2d at 419 . We stated:

... the offense for which appellant was convicted was not shocking or otherwise extraordinary even with respect to the multiple stabbing. We cannot conclude the circumstances of the offense are so heinous or evince an “aberration of character” so peculiarly “dangerous” as alone to justify an affirmative response to the second special issue.

Ibid. (Internal cites omitted.) We held such evidence insufficient to warrant the death penalty. Ibid.

In light of our holding in Smith , the first, second and third Keeton factors militate against a finding of future dangerousness.

B. Prior Criminal, Psychiatric and Character Evidence

The fourth, seventh and eighth Keeton factors require consideration of appellant’s prior criminal record and its severity, and any psychiatric or character evidence.

1.

Evidence presented at trial show appellant had no prior criminal convictions. Appellant’s testimony at trial indicates his youthful drinking and shoplifting prior to the offense. The county jail coordinator testified appellant caused no significant problems at the jail, though he did have three minor infractions. The first infraction was for possession of a lighter in his cell, the second for being in an unauthorized location and the third for a disagreement with a guard.

During punishment the State re-offered all evidence from the guilt/innoeence phase of the trial, and presented no further evidence. Neither the State nor appellant presented psychiatric evidence during the trial. Additionally, the State failed to introduce any character evidence during punishment, nor did the State introduce any character evidence dealing with violence dining guilt/innocence. The appellant introduced character evidence of his non-violent nature. The State, during cross-examination, did elicit testimony of a physical confrontation appellant was involved in during high school. No other evidence was introduced regarding appellant’s future dangerousness.

2.

Appellant had no prior criminal record nor do the infractions rise to the level of severity *704 to indicate a propensity for violence. 5 In Beltran v. State, 728 S.W.2d 382 (Tex.Cr.App.1987), the State presented evidence that the defendant had a bad reputation as a law-abiding citizen, that he had a series of mostly non-violent prior offenses and that he was on probation at the time he committed the offense. Id., 728 S.W.2d at 389 . However, neither the State nor the defendant offered psychiatric testimony. In reforming the death sentence, we noted the absence of psychiatric evidence presented by the State. Id., 728 S.W.2d at 390 .

In Warren v. State, 562 S.W.2d 474 (Tex.Cr.App.1978), we specifically noted: “There was no qualified psychiatric testimony as to appellant’s psychiatric makeup, which has been held to have probative value as to the “future dangerousness” punishment issue. Id., 562 S.W.2d at 476 . (Citations omitted.)

The only character evidence established appellant to be non-violent and his reputation for non-violence to be good. Appellant’s family testified as to his non-violent and non-confrontational nature. Such evidence does not support a conclusion that appellant will be a continuing threat to society.

Considering the lack of prior criminal history, there being no psychiatric evidence, and the uneontested testimony of appellant’s nonviolent character, the fourth, seventh and eighth Keeton factors militate against a finding of future dangerousness.

C. Personal Circumstances and Duress

Finally, the fifth and sixth Keeton factors require consideration of appellant’s age and personal circumstances, and whether he was acting under duress.

1.

At the time of the offense, appellant was twenty years old, had a 10th grade education and was attempting to graduate from a technical school. The evidence shows appellant had not eaten but had consumed thirteen alcoholic beverages in the course of the evening. Appellant vomited soon after his arrest and several witnesses testified to his intoxicated appearance several hours after the instant offense. Additionally, appellant testified he did not recall the events surrounding the actual stabbing.

Appellant testified he was afraid of Wort-mann. Appellant and Wortmann had very little money prior to the offense. Wortmann told appellant if he wanted to go to North Beach to rejoin his friends they needed money for gas. It was at this point appellant and Wortmann discussed the robbery.

2.

The appellant’s age at the time of the offense is a significant factor toward whether he poses a continuing threat to society. 6 In Graham v. Collins, 506 U.S. 461 , 113 S.Ct. 892 , 122 L.Ed.2d 260 (1993), Justice Souter explained the dual nature of youth as a mitigating factor:

... Youth may be understood to mitigate by reducing a defendant’s moral culpability for the crime, for which emotional and cognitive immaturity and inexperience with life render him less responsible ... and youthfulness may also be seen as mitigating just because it is transitory, indicating that the defendant is less likely to be dangerous in the future.

Id., 506 U.S. at 518 , 113 S.Ct. at 924 (Souter, J., dissenting). (Citation omitted.) See also, Eddings v. Oklahoma, 455 U.S. 104, 115-116 , 102 S.Ct. 869, 877 , 71 L.Ed.2d 1 (1982).

Youth as a mitigating factor is particularly important in capital cases where a sentence of death is imposed. In Johnson v. Texas, the Supreme Court approved of our inclusion of youth as a consideration in our review of whether the evidence supports an affirmative finding of the “future dangerousness” punishment issue. Id., 509 U.S. at 371, 113 S.Ct. at 2671 (citing Ellason v. State, 815 S.W.2d 656, *705 660 (Tex.Cr.App.1991); and, Brasfield v. State, 600 S.W.2d 288 (Tex.Cr.App.1980)). The Supreme Court emphasized the significance of youth as a relevant mitigating factor:

There is no dispute that a defendant’s youth is a relevant mitigating circumstance that must be within the effective reach of a capital sentencing jury if a death sentence is to meet the [constitutional] requirements. Our cases recognize that “youth is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and psychological damage” ... A lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions. A senteneer in a capital ease must be allowed to consider the mitigating qualities of youth in the course of its deliberations over the appropriate sentence.

Johnson, 509 U.S. at 365-368, 113 S.Ct. at 2668-2669 . (Citations omitted.)

In Ellason , we acknowledged that while a defendant’s age “at the time of offense is insufficient, standing alone to prevent imposing the death penalty, youth by its very nature is a mitigating factor to be noted and considered.” Id., 815 S.W.2d at 663 .

As noted above, appellant was twenty years old when he committed the instant offense. The recklessness and violence of appellant’s actions are undoubtedly a derivative of his youth. While this, at first glance, appears to be an aggravating circumstance, appellant’s reckless violence may be aberrational because “the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside.” Id., 509 U.S. at 367-69, 113 S.Ct. at 2669 .

Appellant’s age at the time he committed the instant offense falls within a range we have considered to be mitigating. See, Beltran, Huffman, and, Warren, all supra. Moreover, we have not limited our consideration of a defendant’s youth to his teenage years. In Huffman , we held the defendant’s youth mitigated towards reforming his sentence even though he was twenty-two when he committed the offense. In Beltran and Warren , the Court considered each defendant’s youth despite the fact that each was twenty-five when the offenses were committed. Comparing appellant’s case to these other cases, it is worthy of note that appellant, at the time of the instant offense, was two years younger than Huffman, and five years younger than Beltran and Warren.

This Court also considers the part that appellant’s alcohol consumption played in the commission of the instant offense. Keeton, 724 S.W.2d at 61 . A rational jury could conclude appellant was intoxicated at the time of the offense. Appellant had consumed thirteen different types of alcoholic beverages in a short period of time on an empty stomach. This Court has held that a defendant’s intoxication at the time of the offense may be a mitigating factor with regard to punishment. Tucker v. State, 771 S.W.2d 523, 534 (Tex.Cr.App.1988); Wilkerson, 881 S.W.2d at 324 .

In Huffman , the defendant strangled the victim in the course of robbing her. Id., 746 S.W.2d at 216 . The defendant stated he had been using drugs and drinking and that he suffered a “blackout” and could not remember committing the crime. Ibid. The defendant had a history of alcohol and drug abuse and it was possible that the defendant’s alcohol and drug use on the night of the offense caused the blackout. We held the evidence was insufficient to prove future dangerousness. Id., 746 S.W.2d at 225 .

Whether the defendant was acting under the influence or duress of another at the time the offense is an additional factor to be considered. Keeton, 724 S.W.2d at 61 . In the instant case, appellant had no prior record for any criminal acts, nor any history of violence. Appellant was informed of Wort-mann history of violence and robbery. Additionally, it was Wortmann who told appellant how easy it was to commit the robbery and that there was little chance of discovery. Finally, it was Wortmann who told appellant if he was to rejoin his friends appellant would have to come up with some money for gas. *706 Appellant testified to being afraid of Wort-man.

In Thompson v. Oklahoma, 487 U.S. 815, 835 , 108 S.Ct. 2687, 2698 , 101 L.Ed.2d 702 (1988), the Supreme Court endorsed the principle that:

... [L]ess culpability should attach to a crime committed by a juvenile than to a comparable crime committed by an adult ... Inexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of his or her conduct while at the same time he or she is much more apt to he motivated by mere emotion or peer pressure than is an adult. The reasons why juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult.

The Supreme Court recognized the combination of youth, peer pressure and inexperience can heavily influence a defendant to do things which he normally would otherwise not do. Ibid.

Appellant’s youth, his intoxication and his fear of Wortmann establish that appellant was acting under the influence or duress of Wortmann. While peer pressure does not excuse a defendant’s culpability for criminal acts, one so influenced is less blameworthy than if he had initiated and participated in this crime entirely on his own. Wilkerson, 881 S.W.2d at 342 (Baird, J. dissenting). Consequently, the fifth and sixth Keeton factors militate against a finding of future dangerousness.

D.

As noted in part II, the majority’s Keeton analysis is flawed and incomplete. Furthermore, the majority refuses to follow our holding in Smith , a case directly on point which, under the doctrine of stare decisis, mandates a reformation of appellant’s sentence. When a thorough Keeton analysis is conducted and our precedent consulted, it is clear the evidence is insufficient to support a finding of future dangerousness. Therefore, I would sustain appellant’s first point of error.

IV.

Because the Eighth Amendment forbids punishment assessed arbitrarily or capriciously, we have the duty of ensuring death sentences are imposed in an evenhanded, rational and consistent manner. We discharge this duty by reviewing the jury’s answers to the punishment issues in light of the factors adopted in Keeton, supra. Today, the majority shirks that responsibility and issues an opinion that insulates jury verdicts from meaningful appellate review. The majority opinion will only serve to encourage the sparse, selective and spotty application of capital punishment in Texas. In light of the majority opinion, there is no longer any assurance that the death penalty will not be wantonly or freakishly imposed.

With these comments, I join that portion of our judgment affirming appellant’s conviction but dissent to the majority’s failure to reform appellant’s punishment from death to life imprisonment.

. All emphasis is supplied unlesg otherwise indicated.

Every death penalty case is directly reviewed by this Court. See, Tex. Const. art. V, § 5; and, Tex.Code Crim.Proc.Ann. art. 4.04, § 2; art. 37.071, § 2, (h).

. Arbitrary is defined as:

Depending on individual discretion and not fixed by law; marked by or resulting from the unrestrained and often tyrannical exercise of power; existing or coming about seemingly at *700 random or by chance or as a capricious and unreasonable act of will.

Merriam-Webster Dictionary 59 (10th ed. 1993). Capricious is defined as:

A sudden, impulsive, and seemingly unmotivated notion or action; a sudden unpredictable condition change a disposition to do things impulsively.

Webster, at 169.

. Tex.Code Crim.Proc.Ann. art. 37.071, § 2 provides:

(b) On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:

(1) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and

(2) in cases in which the jury charge at the guilt or innocence stage permitted the jury to find the defendant guilty as a party under [Tex.Penal Code Ann. §§ 7.01 and 7.02], whether the defendant actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken.

If the jury returns an affirmative finding to each issue submitted under subsection (b) it shall answer the following issue:

Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant’s character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.

. In the interest of economy and organization I have grouped several of the Keeton factors.

. The majority argues appellant's future dangerousness is indicated by his underage drinking. While not to be condoned, underage drinking should not be considered a serious offense. Moreover, it is a crime limited exclusively to youth in that upon reaching twenty-one a defendant cannot be punished for this offense. Therefore it cannot indicate future dangerousness.

. I discussed the following line of cases in Wilkerson v. State, 881 S.W.2d 321, 340 (Tex.Cr.App.1994) (Baird, J. dissenting).