Opposition Brief — Brian Suniga, Petitioner v. Texas
Supreme Court briefSep 6, 2019
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No. 18-9564
IN THE
Supreme Court of the United States
BRIAN SUNIGA,
v.
Petitioner,
STATE OF TEXAS,
Respondent.
On Petition for a Writ of Certiorari
to the Texas Court of Criminal Appeals
BRIEF IN OPPOSITION
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
LISA TANNER
Acting Deputy Attorney General
For Criminal Justice
JENNIFER MORRIS
Assistant Attorney General
Counsel of Record
P.O. Box 12548, Capitol Station
Austin, Texas 78711
(512) 936-1400
Jennifer.morris@oag.texas.gov
EDWARD L. MARSHALL
Chief, Criminal Appeals Division
Counsel for Respondent
CAPITAL CASE
QUESTIONS PRESENTED
A jury found Brian Suniga guilty of capital murder for killing David
Rowser during the course of a robbery or an attempted robbery. In a separate
sentencing proceeding, Suniga called eight witnesses to testify to his character
and background. Then, in their closing arguments, the prosecutor and defense
counsel reminded the jury to consider that evidence when answering the
mitigation special issue, a catchall instruction on mitigating evidence. Finally,
the trial court instructed the jury to consider “all the evidence,” including that
of Suniga’s “character and background.” The jury found insufficient mitigating
circumstances to warrant a sentence less than death, and Suniga was
sentenced to death.
Suniga now claims that the mitigation special issue improperly excludes
consideration of character and background evidence and misleads jurors
because it does not inform them of the consequences of deadlock.
The questions before the Court are thus:
1.
Does Texas’s mitigation special issue, instructing jurors to consider
evidence of “the defendant’s character and background,” violate the
Eighth Amendment for its exclusion of same?
2.
Does Texas’s capital sentencing scheme violate the Eighth Amendment
where it, like its constitutionally affirmed federal counterpart, does not
instruct jurors on the consequences of deadlock?
i
TABLE OF CONTENTS
QUESTIONS PRESENTED ................................................................................. i
TABLE OF CONTENTS ...................................................................................... ii
TABLE OF AUTHORITIES ............................................................................... iv
BRIEF IN OPPOSITION..................................................................................... 1
STATEMENT OF JURISDICTION .................................................................... 2
STATEMENT OF THE CASE ............................................................................ 2
I. Facts of the Crime ........................................................................................... 2
II. Evidence Relating to Punishment ................................................................. 4
A.
The State’s case .................................................................................4
B.
The defense’s case in mitigation ......................................................4
C.
III.
1.
Eric Suniga ............................................................................. 4
2.
Rosalinda Davis ..................................................................... 6
3.
Delores Garcia ........................................................................ 9
4.
Michael Suniga .................................................................... 10
5.
Albert Trevino ...................................................................... 14
6.
Maria Suniga........................................................................ 14
7.
Rebecca Garcia ..................................................................... 14
8.
Bruce Castro ......................................................................... 15
The jury’s answers to the special issues ....................................... 16
Direct Appeal ........................................................................................... 16
REASONS FOR DENYING THE WRIT .......................................................... 17
I. Suniga Fails to Justify a Grant of Writ of Certiorari. ................................ 17
II. Texas’s Statutory Mitigation Instruction Is Constitutional. ...................... 18
A.
Texas’s statutory mitigation instruction has been repeatedly
upheld. ............................................................................................ 19
B.
Texas’s statutory mitigation instruction does not require
jurors to give effect only to mitigating evidence that has a
nexus to the capital murder. ......................................................... 25
ii
III.
Texas’s “Selection Stage” Jury Instructions Are Not Misleading
and Are, in All Things, Constitutional. .................................................. 27
A.
A good portion of Suniga’s argument was not fairly presented
to the state court. ........................................................................... 28
C.
As this Court has already effectively decided, there is
nothing misleading about Texas’s “selection stage” jury
instructions and no constitutional infirmity present. ................. 29
CONCLUSION ................................................................................................... 35
iii
TABLE OF AUTHORITIES
Cases
Allen v. United States, 164 U.S. 492 (1896) ..................................................... 35
Arave v. Creech, 507 U.S. 463 (1993) ................................................................ 31
Ayers v. Belmontes, 549 U.S. 7 (2006) ............................................................... 22
Beazley v. Johnson, 242 F.3d 248 (5th Cir. 2001) ............................................ 21
Blue v. Thaler, 665 F.3d 647 (5th Cir. 2011) .................................................... 21
Boyde v. California, 494 U.S. 370 (1990) .................................................... 22, 23
Buchanan v. Angelone, 522 U.S. 269 (1998) ..................................................... 34
Cantu v. State, 939 S.W.2d 627 (Tex. Crim. App. 1997) ............................ 20, 21
Cavazos v. Smith, 565 U.S. 1 (2011) ................................................................. 18
Coble v. State, 330 S.W.3d 253 (Tex. Crim. App. 2010) ............................passim
Davis v. State, 2016 WL 6520209 (Tex. Crim. App. 2016) .............................. 26
Illinois v. Gates, 462 U.S. 213 (1983) ................................................................ 28
Jones v. United States, 527 U.S. 373 (1999) ..................................... 1, 27, 33, 34
Jurek v. Texas, 428 U.S. 262 (1976) ............................................................ 30, 31
Lowenfield v. Phelps, 484 U.S. 231 (1988)...................................... 30, 31, 32, 35
McFarland v. State, 928 S.W.2d 482 (Tex. Crim. App. 1996) ......................... 21
Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998) ................................. 21
Penry v. Lynaugh, 492 U.S. 302 (1989) ............................................................ 21
Penry v. Johnson, 532 U.S. 782 (2001) ................................................... 1, 21, 30
Perry v. State, 158 S.W.3d 438 (Tex. Crim. App. 2004) ............................. 25, 26
Preyor v. State, 2008 WL 217974 (Tex. Crim. App. 2008) ............................... 25
Prystash v. State, 3 S.W.3d 522 (Tex. Crim. App. 1999)............................ 17, 21
Roberts v. State, 220 S.W.3d 521 (Tex. Crim. App. 2007).......................... 26, 27
Romano v. Oklahoma, 512 U.S. 1 (1994) .......................................................... 34
Shannon v. State, 942 S.W.2d 591 (Tex. Crim. App. 1996) ............................. 19
Sprouse v. Stephens, 748 F.3d 609 (5th Cir. 2014) ...................................... 1, 21
Tabler v. State, 2009 WL 4931882 (Tex. Crim. App. 2009) ............................. 26
Tennard v. Dretke, 549 U.S. 274 (2004) ...................................................... 25, 26
Thuesen v. State, 2014 WL 792038, at*49–50 (Tex. Crim. App. 2014) ........... 21
Tuilaepa v. California, 512 U.S. 967 (1994) ......................................... 29, 30, 31
Yee v. City of Escondido, 503 U.S. 519 (1992) .................................................. 29
Statutes
28 U.S.C. § 1257 ............................................................................................. 2, 29
Ariz. Rev. Stat. Ann. § 13-7552 ......................................................................... 33
Cal. Penal Code § 190.4 ..................................................................................... 33
Tex. Penal Code § 19.03 ..................................................................................... 29
iv
Other Authorities
Federal Death Penalty Act ................................................................................ 33
v
BRIEF IN OPPOSITION
This is an appeal from the Texas Court of Criminal Appeals’ (CCA)
affirmance of the trial court’s judgment. Suniga petitions this Court for a writ
of certiorari based on Texas’s mitigation special issue. He complains that the
mitigation instruction improperly excludes character and background evidence
and misleads jurors because it does not inform them of the consequences of
deadlock. Two decades ago, this Court rejected the contention that the Eighth
Amendment requires jurors to be instructed on the consequences of deadlock
on a sentencing issue. See Jones v. United States, 527 U.S. 373 (1999). And two
years after that, this Court indicated its approval of Texas’s mitigation special
issue. See Penry v. Johnson, 532 U.S. 782, 803 (2001) (Penry II). Since then,
the CCA and the Fifth Circuit have repeatedly found that the instruction does
not limit the scope of mitigation evidence as Suniga claims. E.g., Coble v. State,
330 S.W.3d 253, 296 (Tex. Crim. App. 2010); Sprouse v. Stephens, 748 F.3d 609,
622 (5th Cir. 2014). This case confirms the last two decades of precedent:
During the sentencing phase of his trial, Suniga presented significant evidence
of his troubled upbringing, while highlighting his goodwill throughout. The
jury was then instructed by defense counsel, the prosecutor, and the trial court
to consider that evidence. No jury could have interpreted the mitigation special
issue to exclude the evidence that it was thrice instructed to consider.
1
STATEMENT OF JURISDICTION
The Court has jurisdiction under 28 U.S.C. § 1257 (a).
STATEMENT OF THE CASE
I.
Facts of the Crime
The CCA summarized the facts as follows:
The record reflects that David [Rowser] and his younger brother,
Jonathan [Rowser], both worked at a pizza restaurant in Lubbock.
At around 10:00 p.m. on [December 26, 2011], they were preparing
to close the restaurant. David was cleaning the bathrooms, while
Jonathan was manning the cash register. The last three customers
were sitting at a table. Their server was refilling their drinks at a
soda fountain near the cash register. Other servers were cleaning
the restaurant or talking with Jonathan as they waited for the
customers to leave.
Two men entered the restaurant through the front door and
approached Jonathan at the cash register. Jonathan and other
witnesses believed that the men were there to place a last-minute
take-out order until both men pointed guns at Jonathan and
shouted at him, demanding money from the cash register. One
man was Hispanic, had tattoos on his arms and neck, and was
wearing “whiteout” contact lenses that blocked out all the color of
his irises. The other man was also Hispanic and had some facial
hair as well as a star-shaped tattoo on his face. He was shorter,
heavier-set, and darker-complected than the first man. Both men
wore “hoodies” and baggy pants.
When Jonathan did not immediately open the cash register, one of
the men grabbed the tip jar that was sitting on the counter near
the register and both of them headed toward the door. David then
emerged from cleaning the men’s bathroom. The man wearing the
whiteout contacts yelled, “That’s what you get,” as he shot David
three times. David fell to the floor.
Jonathan ran to David, who was bleeding profusely and coughing
up blood. David asked Jonathan to help him. Jonathan applied
2
pressure to two gunshot wounds on David’s chest. He yelled at
David, trying to keep him awake, but David soon lost
consciousness. Jonathan kept David’s head and torso elevated,
trying to help him breathe until first responders arrived.
Paramedics loaded David into an ambulance and took him to
University Medical Center. In the ambulance, they suctioned blood
from David’s lungs and inserted an endotracheal tube to keep his
airway open. They placed David on a cardiac monitor, performed
chest compressions, and “started an IV.” However, David had no
breath, pulse, or heart activity. He was pronounced dead in the
hospital’s trauma care center.
The Lubbock Police Department published descriptions of the
suspects based on witness interviews. On the morning of December
27, a woman who worked at the front desk of a motel where
[Suniga] and his accomplice Sesilio Lopez, Jr., had been staying,
heard a news story about the robbery-murder. Based on the
suspects’ descriptions, she believed that [Suniga] and Lopez were
the culprits. She called the motel manager, who then called the
“Crime Line” number and provided police with [Suniga’s] and
Lopez’s names and a description of their vehicle.
Based on this information and details provided in other calls to the
“Crime Line,” the Lubbock Police Department released a statewide
“attempt to locate” bulletin describing the suspects and their
vehicle and identifying [Suniga] and Lopez by name. About
twenty-four hours after the offense, Taylor County sheriff’s
deputies stopped [Suniga] and Lopez because their vehicle
matched the details provided in the bulletin. Upon confirming
their identities and the capital murder warrants from Lubbock
County, deputies arrested them and seized the vehicle.
Suniga v. State, No. 77,041, 2019 WL 1051548 (Tex. Crim. App. 2019).
3
II.
Evidence Relating to Punishment
A. The State’s case
During the punishment phase of trial, the State presented evidence of
Suniga’s criminal history, including convictions for possession of a prohibited
weapon, unlawful carrying of weapons, assault causing bodily injury, and
possession of methamphetamine. 32 RR 158–61; 43 RR. It also presented
evidence of an unadjudicated act of domestic violence, 33 RR 23–26, 1 and of
Suniga’s gang membership, 32 RR 120–21, 141–43, and disciplinary
infractions in prison, 32 RR 33–35, 38–39, 43–46, 109–11; 33 RR 32, 38–41.
B. The defense’s case in mitigation
In his opening argument, defense counsel told the jury: “[Suniga] is a
son. He is a brother. He is a grandson. He is a father. And he’s also a husband
. . . .” 33 RR 97. “[W]hat I’m asking you to do is give us enough room for you to
hear the story about [Suniga]’s life.” 33 RR 100. “You will be hearing evidence
about his life, about who he is.” 33 RR 102. Defense counsel then called eight
witnesses to the stand to tell that story.
1. Eric Suniga
Suniga’s eldest brother, Eric, testified that Suniga was a happy-go-lucky
child. 33 RR 117. But their father, Augustine, was a “chronic alcoholic,” 33 RR
1
See also 33 RR 46–52.
4
115, and their parents divorced when Suniga was about three years old, 33 RR
106. Thereafter, the boys lived with their mother, Rosalinda. 33 RR 106.
Rosalinda remarried when Suniga was five or six. 33 RR 106–07. The boys’
stepfather, Albert, was a great father figure to them. 33 RR 107–08. But Albert
was in the boys’ lives for only about four or five years before he separated from
their mother. 33 RR 107–09, 124. The boys saw Albert very rarely after that.
33 RR 108–09.
When Albert moved away, the boys continued living with Rosalinda. 3
RR 109. She left them generally unsupervised while she worked long hours
and attended GED classes. 33 RR 109, 125. Eric testified that, while he did not
pay much attention to Suniga at that time, he noticed that Suniga became
more introverted then. 33 RR 118.
When Eric graduated from high school, he moved out of Rosalinda’s
house, and, around that time, Sesilio Lopez, Sr. moved in. 33 RR 115. Sesilio
had issues with drugs and alcohol and made his living from narcotics
trafficking. 33 RR 116, 120. Eric testified that he had not seen Suniga much
since he moved out. 33 RR 114, 118.
Eric denied being an alcoholic but acknowledged that he liked to drink,
saying that he would have a drink before going to bed. 33 RR 115. Eric stated
that several of his maternal aunts and uncles had been to the penitentiary;
among his uncles, only the youngest, Larry, had avoided prison. 33 RR 116.
5
Eric recalled that most of his family members’ offenses were narcotics-related.
33 RR 117. Eric also testified that his brother Michael had issues with drugs
and alcohol. 33 RR 117. At the time of Suniga’s trial, Michael was in a
correctional facility for a parole violation because of alcohol. 33 RR 117.
During cross-examination, Eric stated that he had been married and had
a little girl for whom he helped provide. 33 RR 125–26. Eric stated that Suniga
had seven children. 33 RR 126. When the prosecutor asked if Suniga took care
of and provided for those children, Eric stated that he did not know specifically,
“but [he] would doubt it.” 33 RR 126. Eric also acknowledged that his mother
had modeled a good work ethic for her sons. 33 RR 125.
2. Rosalinda Davis
Suniga’s mother, Rosalinda, testified that her parents moved around a
lot in West Texas when she was a child. 33 RR 129–30. Her mother was a
homemaker and her father was a farm worker. 33 RR 130. Rosalinda was one
of ten children. 33 RR 130. She and her siblings worked on the farms with their
father. 33 RR 137. Rosalinda recalled that she married Augustine when she
was nineteen and he was twenty. 33 RR 137–38. She gave birth to Brian in
Austin, Texas on December 27th, 1979. 33 RR 136, 139. The defense admitted
several photographs of Suniga as an infant and a child. 33 RR 131–132.
Rosalinda described each photograph to the jury, which included Suniga’s first
fishing experience as well as family trips to the zoo, lake, and caverns. 33 RR
6
146–50. Augustine was in the Air Force at the time shown in the photographs.
33 RR 138.
Augustine stayed in the service for twelve years, but when he got out, he
became an alcoholic and didn’t work anymore. 33 RR 138. Alcohol took over his
life. 33 RR 143. Rosalinda recalled that Augustine was not a “mean drunk,”
but he liked to argue. 33 RR 143. They divorced in 1983, when Suniga was
three or four years old. 33 RR 143–44.
Rosalinda further testified that Suniga had seven children. 33 RR 140.
The defense admitted several photographs of Suniga with his children, and
Rosalinda told the jury about them. 33 RR 153–55. She stated that she spent
a lot of time with some of the children but never saw others. 33 RR 141.
Suniga’s oldest child, Aaron, was autistic and had birth defects. 33 RR 141–42.
Rosalinda acknowledged that Suniga neither provided for his children nor
fulfilled the role of a father for them. 33 RR 156-57. She stated that he was a
good father when he spent time with his children, but he spent very little time
with them. 33 RR 158.
Rosalinda testified that she considered Eric to be an alcoholic because he
drank every day. 33 RR 159. Eric lived with her periodically, most recently
from 2009 to 2011. 33 RR 159–60. Rosalinda also testified that Michael was in
prison at the time of trial because of DWIs and a probation revocation. 33 RR
7
160. Rosalinda confirmed that alcohol had “caused problems for Michael in his
life,” such as “[j]ail, prison, [and] accidents. 33 RR 160–61.
Rosalinda testified that her father also had issues with alcohol while she
was growing up. 33 RR 162. She described him as a “weekend drinker.” 33 RR
162. Every Friday when he finished working, her father and the family would
drive to Lubbock to get beer. 33 RR 162. They would bring it home and her
father would drink all weekend. 33 RR 162. When Rosalinda was a young
woman, her father was killed in a card game. 33 RR 163. Rosalinda testified
that all of her siblings “drank,” but she was not sure if they had “problems”
with alcohol because she did not see them very often. 33 RR 163. She
acknowledged that many of them had been to prison. 33 RR 164–65. Her
brothers had gone to prison for drug offenses, and her sister Alma had gone to
prison for shoplifting. 33 RR 164–65.
Rosalinda testified that she met her second husband, Albert, when they
worked for the same company in Austin. 33 RR 165. She recalled that he was
“a great father to” her children. 33 RR 165. They married in 1986. 33 RR 166.
Albert joined the military, and when he was transferred to Massachusetts, the
family moved there with him. 33 RR 167. Later, when Albert was transferred
to California, Rosalinda and Albert separated. 33 RR 168. Rosalinda moved
with her sons to Copperas Cove, Texas. 33 RR 169. Suniga was in the fifth
grade then. 33 RR 169. Suniga began skipping school because Rosalinda was
8
“working nights” and not around to supervise him. 33 RR 170. He stopped
going to school altogether when he was fifteen. 33 RR 170. Rosalinda and
Albert finally divorced in the late 1990s. 33 RR 192.
Rosalinda acknowledged that Sesilio was a drug dealer who had been
married to her sister when he and Rosalinda began having a romantic
relationship. 33 RR 171. At the time of trial, Sesilio was in prison for drug
dealing. 33 RR 172.
On cross-examination, Rosalinda stated that Suniga had issues with
alcohol and drugs. 33 RR 178. She stated that he had a good relationship with
his father, Augustine. 33 RR 180. She and Augustine taught Suniga right from
wrong. 33 RR 180. Rosalinda acknowledged that, while all three of her sons
had alcohol problems, only Suniga had killed someone. 33 RR 177. When the
prosecutor asked Rosalinda if she took better care of Suniga’s children than he
did, she acknowledged that that was true. 33 RR 183.
3. Delores Garcia
Suniga’s maternal aunt Delores Garcia testified that when she was
growing up, she and her siblings worked in the fields with their father. 33 RR
302–03. Her father treated “the boys and girls” differently. 33 RR 204. Despite
being younger than Rosalinda, Delores stated that she took on the role of
protector because her father got violent when he drank. 33 RR 204.
9
Delores identified her siblings in a photograph that defense counsel
showed her. 33 RR 211. She stated that four of her brothers had been to the
penitentiary for drug offenses or DWIs. 33 RR 218. Her sister Alma also had
been to prison, but Delores and her other sisters had not. 33 RR 218. Sesilio
had been married to Delores’s sister Mary at one time and later moved in with
Rosalinda. 33 RR 212. Delores recalled that Rosalinda divorced Augustine over
his alcohol abuse. 33 RR 215. After Rosalinda separated from her second
husband, Albert, she worked very hard and did not spend time with her sons.
33 RR 218. She had little free time, and she spent any free time that she did
have “partying.” 33 RR 218. Rosalinda sent Michael to live with Delores in Fort
Worth because he was getting into fights at school. 33 RR 223–24. He lived
with Delores for a year while he finished high school, and then he “went back
to living with Rosa” after Rosalinda and Suniga moved to Fort Worth. 33 RR
217.
4. Michael Suniga
Suniga’s brother, Michael, testified that he was serving a prison sentence
for his fourth DWI, after his probation was revoked. 34 RR 73. He had also
served time for a federal charge of conspiracy to possess marijuana with intent
to deliver. 34 RR 74. He recalled that his parents divorced when he was about
six years old. 34 RR 76. He testified that his stepfather, Albert, was a good
provider and a good man, but he was “hands-off” as a father figure; he did not
10
play games with the boys and he left their discipline up to their mother. 34 RR
79. The boys did not see Albert after they moved with their mother to Copperas
Cove. 34 RR 80. Michael recalled that they did not have much contact with
their father Augustine because he “was suffering from his own addiction.” 34
RR 80–81.
Michael testified that Rosalinda worked a lot and was not around much
when they lived in Copperas Cove. 34 RR 81. Eric then graduated from high
school and left home. 34 RR 81. Michael started spending time with the guys
who were skipping school and partying on the weekends. 34 RR 81–82. He also
“loved women,” and his interactions with them led to him getting into fights
with other men. 34 RR 82. Suniga witnessed a lot of that conflict. 34 RR 82-83.
One time, a group of guys who were mad at Michael threatened the whole
family. 34 RR 82. They showed up outside the house, and one of them threw a
manhole cover through Suniga’s bedroom window. 34 RR 82. Suniga was home
when that happened. 34 RR 82.
After the manhole cover incident, Rosalinda sent Michael to live with
Delores in Fort Worth. 34 RR 83. Michael graduated from high school in Fort
Worth and then joined the Army. 34 RR 84. Nine months later, he was
discharged because of his drinking and fraternizing with enlisted women. 34
RR 84. By then, Rosalinda was living in Fort Worth, and Michael moved into
her house. 34 RR 85. Suniga still lived with Rosalinda at that time. 34 RR 85.
11
Sesilio was also spending time there. 34 RR 86. Michael lived there for several
months while he looked for work. 34 RR 87. Eventually, he moved to Eldorado,
where he worked for a while. 34 RR 87.
Michael further testified that he returned to Fort Worth after he left that
job, and he supported himself by selling marijuana. 34 RR 89. He worked for
Sesilio, selling methamphetamine, cocaine, or acid. 34 RR 89. Michael stated
that he has “always been an alcoholic,” and his memory is sketchy as a result.
34 RR 88. He started drinking in high school and was an alcoholic by the time
he was fifteen or sixteen. 34 RR 89. Michael testified that his father, uncles,
and cousins were also alcoholics. 34 RR 89. He recalled that alcohol was the
center of family get-togethers. 34 RR 89. Michael also recalled that Suniga
used drugs, including methamphetamine, from around the time he was sixteen
years old. 34 RR 89.
Michael testified that, while his mother and Sesilio were living together,
one of Sesilio’s son’s, Jonathan, shot and wounded a family friend who owed
Jonathan money. 34 RR 90–92. Jonathan left the area, but Michael feared for
Rosalinda’s safety because “everyone” associated Rosalinda’s house with
Jonathan, making it a likely target for retaliation. 34 RR 92. Michael told
Rosalinda to leave town for the weekend, and she did. 34 RR 92. Michael was
living in his own apartment by then, but he and Suniga armed themselves with
guns and spent the night at Rosalinda’s house to guard it. 34 RR 92.
12
Michael testified that while he and Suniga were drinking in the living
room that night, their dog growled and they heard gunshots. 34 RR 93. Michael
saw “a big ball of flame coming through the hallway enveloping the living
room.” 34 RR 93. The gunshots kept coming, the windows were shattering, and
it sounded like someone was kicking in the front door. “It sounded like a war.”
34 RR 94. Michael and Suniga fled to the kitchen and then they moved into the
garage. 34 RR 94. They planned to “return fire,” but when they opened the
garage door, no one was there. 34 RR 94–95. They surveyed the damage and
called 9-1-1. 34 RR 95. The police investigation revealed that gasoline had been
poured on the front of the house. 34 RR 95. “[T]he gunshot patterns” indicated
that there had been five shooters, with “[t]hree firing 12 gauge shotgun[s],”
and “[t]wo firing 9mm. There [were] 60 rounds expended from the 9mm.” 34
RR 95. Michael testified that, after that incident, Suniga became “much more
apprehensive, much more vigilant. Maybe didn’t trust people as much.” 34 RR
96.
The State cross-examined Michael about prison conditions and his
experiences with other inmates. 34 RR 103–04. Michael stated that he had
been housed in sixty-man dormitories and that prison is a very violent place.
34 RR 105. He affirmed that prison inmates are not generally aware of other
inmates’ offenses of conviction. 34 RR 106. At the time of trial, Michael was
13
housed in an in-prison therapeutic community designed to modify negative
behaviors and help him address his “issues.” 34 RR 105–06.
5. Albert Trevino
Suniga’s stepfather, Albert Trevino, testified he was in Eric’s, Michael’s,
and Suniga’s lives in a “day-to-day way” for about four years. 33 RR 193.
Although he was not their biological father, he tried to fulfil that role for them.
33 RR 195. Albert described Suniga and his brothers as “fun loving kids” and
said that “[n]one had a mean bone in their body.” 33 RR 193. He testified that
the boys respected him, 35 RR 194, and that their mother was a very “strong
factor in their lives.” She was “loving, . . . firm, and . . . strict.” 33 RR 193.
6. Maria Suniga
Suniga’s step grandmother, Maria Suniga, testified that Suniga called
her “Abuelita” and “treated her real nice.” 33 RR 233. She told the jury about
a time a few years back when Suniga chased her van down the street so that
he could give her a hug. 33 RR 234.
7. Rebecca Garcia
Suniga’s cousin, Rebecca Garcia, testified that she would spend time
with Suniga and his family during holiday gatherings that centered around
eating and drinking. 33 RR 138, 242, 246. She admitted that she had issues
with alcohol and that it had caused her to have a miscarriage. 33 RR 144. She
that testified Suniga was not a drinker but struggled with drugs. 33 RR 244–
14
45. That said, Suniga “would stay away when he was doing [drugs]” because
he knew she “didn’t like it.” 33 RR 245. As Suniga got older, Rebecca noticed
that he started “holding everything in” and became “more closed.” 33 RR 259.
Rebecca testified that Rosalinda loved Suniga but was “distant with him
growing up.” 33 RR 246. While Rebecca believed Rosalinda “loved her kids,”
she did not think Rosalinda was “there a lot of the time when . . . a kid would
need their mother.” 33 RR 246. When the prosecutor asked Rebecca if
Rosalinda had a “work and go out and party” mentality, Rebecca answered,
“Yes.” 33 RR 259–60.
Rebecca confirmed that Suniga had been “involved in” domestic violence
on more than one occasion. 33 RR 256. She also testified that Suniga’s father,
Augustine, died “from drinking.” Rebecca believed that Augustine’s liver failed
him and described him as “very skinny and weak” before his death. 33 RR 256.
She told the jury that Suniga took care of Augustine at the end of his life. 33
RR 257.
8. Bruce Castro
Suniga’s friend, Bruce Castro, testified that he met Suniga in 1995 or
1996 through his wife, Rebecca Garcia. 33 RR 270–72. Bruce told the jury that
he was “raised by a single mother, . . . never kn[ew] his father, and . . . [had] to
fend for [him]self.” 33 RR 272. He used drugs and alcohol to cope with his
difficulties. 33 RR 272. Bruce and Suniga used drugs together. 33 RR 272. But
15
when Bruce became depressed and paranoid, he turned to his wife for support
and was able to quit using drugs. Bruce testified that he believed drugs led
Suniga to a similar place, but Suniga did not have the same family support
system he had. 33 RR 274–75.
C. The jury’s answers to the special issues
The jury was given the traditional future-dangerousness and mitigatingcircumstances special issues. See Tex. Code Crim. Proc. Ann. art. 37.071
§ 2(b)(1), (d)(1); 35 RR 44; CR 2076–82. From the evidence, the jury found a
“probability that Suniga would commit criminal acts of violence that would
constitute a continuing threat to society.” CR 2083. It further found that “all of
the evidence . . . including . . . [that of Suniga’s] character and background” did
not demonstrate sufficient mitigating circumstances to warrant a sentence
other than death. CR 2085. Based on their answers to the special issues, the
trial court sentenced Suniga to death. 35 RR 46–47.
III.
Direct Appeal
On direct appeal, Suniga challenged the trial court’s rulings concerning
the constitutionality of Article 37.071. Specifically, he asserted that (1) Article
37.071, §2(f)(4) is unconstitutional for limiting the definition of mitigating
evidence to that which reduces the defendant’s “moral blameworthiness” and
(2) the statutory definition of mitigating evidence is unconstitutional because
it imposes a “nexus” limitation. Brief for Appellant at 154–57, Suniga v. State,
16
No. AP-77,041, 2019 WL 1051548. He also challenged that the trial court’s
ruling on his objection to Texas’s “10-12 Rule.” He argued that Article 37.071,
§§ 2(d)(2) and 2(f)(2) unconstitutionally misled jurors concerning the effect of
their failure to agree on a sentence. Brief for Appellant at 157–60, Suniga v.
State, No. AP-77,041, 2019 WL 1051548. The CCA rejected both claims,
explaining that it had previously rejected the same arguments and was not
persuaded to revisit the issue. Pet. Appx. A at 44 (citing Coble, 330 S.W.3d at
296, and Prystash v. State, 3 S.W.3d 522, 536 (Tex. Crim. App. 1999)).
REASONS FOR DENYING THE WRIT
I.
Suniga Fails to Justify a Grant of Writ of Certiorari.
At the outset, Suniga fails to provide justification for granting a writ of
certiorari—no allegation of a circuit split, a direct conflict between the state
court and this one, or even an issue that is particularly important. See Sup. Ct.
R. 10(a)–(c). That absence lays bare Suniga’s true request—for this Court to
correct the CCA’s application of a properly stated rule of law. That, however,
is hardly an adequate justification for expending limited judicial resources on
two ubiquitous claims that are no more important today than they were over
the last nearly three decades of rejection. See Sup. Ct. R. 10 (“A petition for a
writ of certiorari is rarely granted when the asserted error consists of . . . the
misapplication of a properly stated rule of law.”). And that is because “[e]rror
correction is ‘outside the mainstream of the Court’s functions.’” Cavazos v.
17
Smith, 565 U.S. 1, 11 (2011) (Ginsburg, J.) (quoting Eugene Gressman et al.,
Supreme Court Practice 351 (9th ed. 2007)). Suniga’s petition should be denied
for this reason alone. Cf. Sup. Ct. R. 14(h) (a petition for writ of certiorari
should contain a “concise argument amplifying the reasons relied on for
allowance of the writ” (emphasis added)).
II.
Texas’s Statutory Mitigation Instruction Is Constitutional.
Suniga argues the Court should grant his petition to review the
constitutionality of Texas’s statutory mitigation instruction, codified in Texas
Code of Criminal Procedure Article 37.071, §§ 2(e)(1) and (f). He asserts that
the statutory instruction 2 impermissibly restricts the scope of evidence a juror
can consider as mitigating to that which reduces the defendant’s moral
blameworthiness to the exclusion of evidence of character and background. Pet.
Cert. 12–19. He also asserts that the instruction implicitly requires a juror to
find a nexus between the mitigating evidence and the capital murder for which
the defendant is on trial. Pet. Cert. 17. Suniga’s challenge is primarily a facial
challenge to the constitutionality of Article 37.071 Section 2(e) and (f). But he
also makes an as-applied challenge, arguing that his jury was not able to give
effect to evidence that he cared for his sick father and once spontaneously
hugged his grandmother. Pet. Cert. 17.
2
3 CR 2076–82; 35 RR 9.
18
A.
Texas’s statutory mitigation instruction has been repeatedly
upheld.
Texas’s statutory mitigation instruction was codified in 1991. That
instruction, which Suniga’s jury received, requires a capital jury to decide:
[w]hether, 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 without parole rather
than a death sentence be imposed.
Tex. Code Crim. Proc. Article 37.071 § 2(e)(1). The statute then requires that
the jury be instructed that it “shall consider mitigating evidence to be evidence
that a juror might regard as reducing the defendant’s moral blameworthiness.”
Tex. Code Crim. Proc. Article 37.071 § 2(f)(4). The jury is also instructed that
jurors “need not agree on what particular evidence supports an affirmative
finding on the issue.” Tex. Code Crim. Proc. Article 37.071 § 2(f)(3).
Texas’s statutory mitigation instruction has been challenged on
numerous occasions, none successful. See, e.g., Coble, 330 S.W.3d at 296.
Indeed, the very challenges Suniga raises—that the statutory mitigation
instruction impermissibly limits the scope of evidence and that the instruction
implies a causal nexus between the capital murder and the mitigating
evidence—were rejected by the CCA in Coble almost a decade ago. Id.; see
Shannon v. State, 942 S.W.2d 591, 597 (Tex. Crim. App. 1996) (“There is no
evidence that must be viewed by a juror as being per se mitigating. . . . Because
19
the consideration and weighing of mitigating evidence is an open-ended,
subjective determination engaged in by each individual juror, we conclude that
Article 37.071 § 2(f)(4) does not unconstitutionally narrow the jury’s discretion
to factors concerning only moral blameworthiness as appellant alleges.”). And
at that time, the court noted that the challenge had been repeatedly rejected.
Coble, 330 S.W.3d at 296. For example, in Cantu v. State, the CCA held that
the statutory mitigation instruction does not impermissibly limit the scope of
mitigating evidence “[b]ecause the consideration and weighing of mitigating
evidence is an open-ended, subjective determination engaged in by each
individual juror.” 939 S.W.2d 627, 649 (Tex. Crim. App. 1997).
Nonetheless, Suniga argues that a juror is likely to interpret the
statutory mitigation instruction’s definition of the scope of mitigating evidence
to exclude evidence of character and background, because such evidence might
not bear on his moral blameworthiness. Pet. Cert. at 16. But Suniga identifies
no support for his constrained reading of the statute. And it is difficult to
reconcile his reading of the statute with the statute itself, which, again,
requires the jury to consider “all of the evidence,” including that of “the
defendant’s character and background.” Tex. Code Crim. Proc. Article 37.071
§ 2(e)(1). Indeed, the CCA has explained that the mitigation instruction does
not “force the jury to disregard” the evidence it explicitly instructs the jury to
consider. See Thuesen v. State, 2014 WL 792038, at*49–50 (Tex. Crim. App.
20
2014) (explaining that the statutory mitigation instruction does not force the
jury to disregard good character evidence and evidence of good deeds). The
expansive mitigation instruction contained in “[S]ection 2(e) solves any
potential narrowing problem in Section 2(f).” Prystash v. State, 3 S.W.3d 522,
534 (Tex. Crim. App. 1999). And Section 2(e) provides “the jury with a vehicle
to respond to a broader range of mitigating evidence.” Id.; see Cantu, 939
S.W.2d at 648–49.
Importantly, this Court has indicated its approval of Texas’s current
statutory mitigation instruction. Penry II, 532 U.S. at 803. In Penry II, this
Court described the instruction as a “catchall”, which implies—or asserts,
even—that the special issue “catches all” mitigating evidence, not just evidence
related to the crime. It further noted the instruction for its “brevity and
clarity.” Id. The CCA has also recognized that the current statutory mitigation
instruction is simply “a codification of the dictates of Penry [v. Lynaugh, 492
U.S. 302 (1989) (Penry I)].” McFarland v. State, 928 S.W.2d 482, 525 (Tex.
Crim. App. 1996), abrogated on other grounds by Mosley v. State, 983 S.W.2d
249, 264 (Tex. Crim. App. 1998). Similarly, the Fifth Circuit has held that
Texas’s statutory mitigation instruction does not impermissibly limit the scope
of mitigating evidence. Sprouse v. Stephens, 748 F.3d 609, 622 (5th Cir. 2014);
Blue v. Thaler, 665 F.3d 647, 667–68 (5th Cir. 2011); Beazley v. Johnson, 242
F.3d 248, 259 (5th Cir. 2001). Suniga fails to identify any constitutional
21
infirmity in the mitigation instruction in the face of more than a decade of
precedent affirming it.
Moreover, this Court has upheld comparable punishment-phase
instructions in other cases. See, e.g., Boyde v. California, 494 U.S. 370, 380
(1990), and Ayers v. Belmontes, 549 U.S. 7, 15–16 (2006). In so doing, it has
explained that “[j]urors do not pars[e] instructions for subtle shades of meaning
in the same way lawyers might.” 494 U.S. at 380–81. When it comes to jury
instructions, jurors’ “common sense understanding” is likely to “prevail over
technical hairsplitting.” Id. Considering as much, this Court has declined
defendants’ invitations review a single part of an instruction “in artificial
isolation,” Boyde, 494 U.S. at 378, and to speculate about possible
interpretations that might flow therefrom, id. at 380. Instead, it reviews an
instruction in “the context of the overall charge,” Boyde, 494 U.S. at 378, and
requires a defendant to show “a reasonable likelihood that the jury . . . applied
the . . . instruction in a way that prevents consideration of constitutionally
relevant evidence.” Boyde, 494 U.S. at 378.
Boyde complained that California’s instruction requiring the jury to
consider “[a]ny . . . circumstance [that excused] the gravity of the crime”
prevented consideration of his background and character, in that it implicitly
limited the circumstances to those surrounding the crime. Id. This Court
rejected Boyd’s claim. Id. at 382. Crucial to its holding was that Boyd was
22
permitted to—and did—present background and character evidence during the
punishment proceeding and that his counsel argued in closing that such
evidence warranted a sentence less than death. Id. at 383–84.
As in Boyde, Suniga was allowed to—and did—present significant
character and background evidence during the punishment phase. 33 RR 105–
276; 34 RR 73–102. Suniga presented evidence that his parents divorced at an
early age due to his father’s alcoholism, and, while his mother remarried, his
stepfather was only in his life for a short time. Suniga presented evidence that
his mother neglected him and developed a romantic relationship with his drugdealing uncle. He observed significant conflict and violence that affected him
in his adolescence. In that environment, Suniga developed a drug problem but
was without support to overcome it. He presented childhood pictures and
pictures of him with his children. His step grandmother told the jury about a
time when he spontaneously hugged her. And his cousin told the jury about
how he cared for his alcoholic father on his deathbed.
Both the prosecutor and the defense assumed this evidence was relevant
in their closing arguments. In fact, the prosecutor told the jury that in deciding
the mitigation issue, it was to consider “everything [it knew] about” Suniga:
“It’s about character, it’s about upbringing, it’s about what we know about his
history.” 35 RR 16. The prosecutor went on to argue that the evidence showed
that Suniga came from a supportive and privileged background and that his
23
character was bad. 35 RR at 16–18, 37–38. And at the end of his argument, the
prosecutor referred the jury back to moral blameworthiness: it’s about “moral
character, . . . moral trustworthiness and all those things”—to include
“remorse, morals, [and] character.” 35 RR 38. Along the same lines, Suniga’s
counsel reiterated to the jury in closing:
Mitigation is . . . what you think is sufficient. Each of you will make
your individual moral judgments. The mitigation does not have to
be connected to the crime. . . . This is, in fact, where each juror
considers the good, the bad and the ugly.
35 RR 32–33. Defense counsel reminded the jury of the violence, drugs and
alcohol, and insecurity that surrounded Suniga as a child and adolescent. 35
RR 19–27, 33–34. He argued that Suniga’s upbringing warranted a sentence
less than death. 35 RR 34. And when the defense rested, the jury was explicitly
instructed to consider “all the evidence” including that relating to Suniga’s
“character and background.” CR 2078.
The CCA’s interpretation of the mitigation instruction in this case is the
one most consistent with the evidence presented to the jury, the parties’ closing
arguments, and the instructions provided by the trial court. There is no
reasonable likelihood that Suniga’s jurors interpreted the instruction in the
hairsplitting way that he does today. Accordingly, this Court should deny
Suniga’s petition.
24
B.
Texas’s statutory mitigation instruction does not require
jurors to give effect only to mitigating evidence that has a
nexus to the capital murder.
The CCA has also rejected the argument that the statutory mitigation
instruction impermissibly requires a nexus between the capital murder and
the mitigating evidence. Coble, 330 S.W.3d at 296; Perry v. State, 158 S.W.3d
438, 449 (Tex. Crim. App. 2004). Suniga proffers no valid reason to doubt the
CCA’s conclusion that a Texas capital jury need not be instructed that no nexus
is required because the jury would not “be reasonably likely to infer a nexus
requirement from the statutory words.” Coble, 330 S.W.3d at 296.
Suniga relies heavily on this Court’s opinion in Tennard v. Dretke, 549
U.S. 274 (2004), for his proposition that the statutory mitigation instruction
impermissibly requires a nexus between the capital murder and the mitigating
evidence. Pet. Cert. at 15. But this Court’s opinion in Tennard addressed
Texas’s prior punishment-phase jury instructions, which did not include a
mitigation instruction. See Preyor v. State, 2008 WL 217974, at *6 (Tex. Crim.
App. 2008) (noting that the court had held “the Supreme Court’s Tennard
decision—which was decided under another statutory scheme that did not
include the mitigation special issue”—did not indicate the statutory mitigation
instruction impermissibly narrowed the scope of mitigating evidence). Rather,
the Court in Tennard rejected the Fifth Circuit’s requirement that a federal
habeas petitioner establish a nexus between the capital murder and the
25
mitigating evidence to show that he or she was entitled to a mitigation
instruction so that the jury could give effect to that evidence. 542 U.S. at 285.
The CCA has correctly recognized that Tennard does not stand for the
proposition
that
Texas’s
current
statutory
mitigation
instruction
is
constitutionally infirm. Perry, 158 S.W.3d at 449.
Moreover, the current statutory mitigation instruction does not require
any such nexus for a juror to give effect to mitigating evidence. See Roberts v.
State, 220 S.W.3d 521, 534 (Tex. Crim. App. 2007) (“[A]ppellant does not
explain how the jury instructions that were given prevented the jury from
giving effect to any of his alleged mitigating evidence, and we perceive no
barrier to the jury doing so.”); Davis v. State, 2016 WL 6520209, at *48 (Tex.
Crim. App. 2016); cf. Tabler v. State, 2009 WL 4931882, at *3 (Tex. Crim. App.
2009) (declining to find trial counsel ineffective for failing to object to the
prosecutor’s closing argument that a nexus must exist between the offense and
the mitigating evidence because, inter alia, “the mitigation instruction
provided by the trial court expressly commanded the jury to consider all of the
evidence, including evidence of the defendant’s background and character”).
Suniga asserts that the statutory mitigation instruction did not permit
his jury to give effect to evidence that he cared for his sick father and once
spontaneously hugged his grandmother. Pet. Cert. at 17. But he identifies no
support for his argument that his jury could not give effect to such evidence.
26
And the CCA has recognized that the statutory mitigation instruction permits
a juror to give effect to evidence of a defendant’s “good qualities as a father,
family member, and worker.” Roberts, 220 S.W.3d at 534. Under the same
impression, the prosecutor and defense counsel in this case repeatedly told the
jury as much. 35 RR 16, 32 (“The mitigation does not have to be connected to
the crime.”), 33, 38. Suniga’s speculation that a juror might misunderstand the
instruction—by disregarding its plain language requiring consideration of “all
the evidence . . . including [that of] the defendant’s character and background”
and
by
disregarding
counsel’s
closing
arguments—is
insufficient
to
substantiate either a facial or as-applied challenge to the statute. See Jones,
527 U.S. at 390 (“We have considered similar claims that allegedly ambiguous
instructions caused jury confusion. The proper standard for reviewing such
claims is whether there is a reasonable likelihood that the jury has applied the
challenged instruction in a way that violates the Constitution.”) (internal
citations and quotation omitted). Consequently, Suniga’s petition should be
denied.
III.
Texas’s “Selection Stage” Jury Instructions Are Not Misleading
and Are, in All Things, Constitutional.
Suniga raises an oft-repeated complaint about Texas’s “selection stage”
jury instructions—that they are misleading because jurors are not told about
the effect of a deadlock. Pet. Cert. 19–40. As often as this claim is raised, id. at
27
34 (“Suniga’s challenge, like that of many before him”), it is denied because it
lacks footing in the Constitution.
A.
A good portion of Suniga’s argument was not fairly presented
to the state court.
This case also presents a poor vehicle for resolution—some of the present
argument was not fairly presented in state court. Here, Suniga focuses much
of his complaint on proving that jurors are confused or coerced by Texas’s
“selection stage” jury instructions. See Cert. Pet. 25–26 (citing several law
review articles), 29 (citing a law review article), 34–38 (citing several law
review articles, “anecdotal evidence,” and legislative activity). Seemingly,
Suniga tries to convert a facial challenge into an as-applied one. However, but
for a single footnote citing a single law review article, no such argument was
made in the court below. Brief for Appellant 167 n.43, Suniga v. State, No. AP77,041, 2019 WL 1051548 (Tex. Crim. App. Feb. 22, 2016) (citing Stephen P.
Garvey et al., Correcting Deadly Confusion: Responding to Jury Inquires in
Capital Cases, 85 Cornell L. Rev. 627 (2000)).
The failure to present an argument in a state case, coming to this Court
off direct review, implicates jurisdiction. This is because, if Suniga’s claim is
now an as-applied challenge, it was “‘not pressed nor passed upon’ in state
court.” Illinois v. Gates, 462 U.S. 213, 219 (1983). And that means it was not
part of the “[f]inal judgment[] or decree[] rendered by the highest court of”
28
Texas necessary to give the Court jurisdiction over the issue. 28 U.S.C.
§ 1257(a). But even if Suniga’s lack of fair presentation is not jurisdictional, see
id. at 219 (noting a “lack of clarity as to the character of the ‘not pressed or
passed upon rule’”), “the Court has, with very rare exceptions, refused to
consider petitioners’ claims that were not raised or addressed below,” Yee v.
City of Escondido, 503 U.S. 519, 533 (1992). To the extent that Suniga has
moved from making a facial challenge to using evidence to prove his point, the
Court should not consider it either because it cannot or should not.
C.
As this Court has already effectively decided, there is nothing
misleading about Texas’s “selection stage” jury instructions
and no constitutional infirmity present.
This Court’s death penalty sentencing jurisprudence “address[es] two
different aspects of the capital decisionmaking process: the eligibility and the
selection decision.” Tuilaepa v. California, 512 U.S. 967, 971 (1994). To be
eligible for a death sentence, “the trier of fact must convict the defendant of
murder and find one ‘aggravating circumstance’ (or its equivalent) at either
the guilt or penalty phase.” Id. at 971–72. Texas accomplishes this feat in the
guilt phase by defining capital murder as an intentional or knowing 3 killing
plus an aggravating factor. Tex. Penal Code § 19.03(a); see Lowenfield v.
For the felony murder “aggravator” utilized here, a killing occurring during the
course of a robbery, the mens rea for murder is only intentionally, not knowingly.
Tex. Penal Code § 19.03(a)(2). For the other “aggravators,” both mentes reae apply.
See, e.g., id. at § 19.03(a)(1), (3)–(9).
3
29
Phelps, 484 U.S. 231, 246 (1988) (“The legislature may itself narrow the
definition of capital offenses, as Texas and Louisiana have done, so that the
jury finding of guilt responds to this concern.”).
To select a death sentence as appropriate punishment, the jury must
make an individualized determination accomplished by “consider[ing] relevant
mitigating evidence of the character and record of the defendant and the
circumstances of the crime.” Tuilaepa, 512 U.S. at 972. As discussed above,
Texas does this during the sentencing phase of trial by providing the jury a
catchall mitigation instruction, Tex. Code Crim. Proc. art. 37.071, § 2(e)(1), one
noted for its “brevity and clarity,” Penry II, 532 U.S. at 803 (citing Tex. Code
Crim. Proc. art. 37.071, § 2(e)(1)).
Both these processes were accomplished in Suniga’s case via jury
instruction.
3.CR.2017–18
(defining
capital
murder
as
“intentionally
commit[ing a] murder in the course of committing or attempting to
commit . . . [a] robbery”), 2078–79 (utilizing the mitigation instruction cited in
Penry). And both processes have been found facially constitutional. See
Lowenfield, 484 U.S. at 246; Jurek v. Texas, 428 U.S. 262, 273–74 (1976)
(plurality op.). Beyond these broad limits, states are permitted wide latitude
in structuring their capital sentencing schemes. See Tuilaepa, 512 U.S. at 977
(“Both a backward-looking and a forward-looking inquiry are a permissible
30
part of the sentencing process, however, and States have considerable latitude
in determining how to guide the sentencer’s decision in this respect.”).
Texas has exercised this discretion in a constitutional manner. In 1991,
Texas added the “12-10” rule to its capital sentencing scheme. 4 Act of June 16,
1991, 72d Leg., R.S., ch. 838, § 1, 1991 Tex. Sess. Law Serv. Ch. 838. The
process, as relevant to Suniga’s challenge, has not substantively changed since.
Then, and at the time of Suniga’s trial, if a defendant has been found guilty of
capital murder and the jury has determined him or her to be a future danger,
The 12-10 rule also applies to the future dangerousness “aggravator.” Tex.
Code Crim. Proc. art. 37.071 § 2(d)(2). That was added in 1973, post-Furman (and the
lesser-known Branch). Act of June 14, 1973, 63d Leg., R.S., p. 1125, ch. 426, art. 3,
§ 1. But this “aggravator” has no constitutional significance in the eligibility process.
See Lowenfield, 484 U.S. at 246 (“The fact that the sentencing jury is also required to
find the existence of an aggravating circumstance in addition is no part of the
constitutionally required narrowing process.”). Nor does it have constitutional
significance in the selection process as that determination is accomplished solely
through the mitigation question. See Tuilaepa, 512 U.S. at 972. As such, the only
constitutional problems arising from aggravator jury instructions is if they utilize
vague or overbroad definitions of aggravating circumstances. See, e.g., id. at 973–74;
Arave v. Creech, 507 U.S. 463, 474 (1993). But future dangerousness passes muster
under this review. See Tuilaepa, 512 U.S. at 976–77. Indeed, the 12-10 rule was
specifically mentioned in Jurek, wherein the Court found Texas’s capital sentencing
scheme facially constitutional. Jurek, 428 U.S. at 269 n.5, 274–75. Thus, Suniga’s
implicit suggestion is that the Court simply overlooked the constitutional significance
of the 12-10 rule in finding that Texas’s death penalty process was constitutional on
its face. Nothing supports this argument.
In any event, no confusion or harm arises from the 12-10 rule vis-à-vis the
future danger question—the jury must unanimously agree on it before moving to the
mitigation question. See Tex. Code Crim. Proc. art. 37.071 § 2(d)(2). So, if the 12-10
rule is constitutionally problematic, and it is not, it is only in relation to the
mitigation question—the constitutionally mandated selection process. Nonetheless,
the argument below—that the 12-10 rule is constitutional as it concerns the
mitigation question—applies equally to the future danger 12-10 rule.
4
31
the jury is then asked to answer whether there are sufficient mitigating
circumstances to warrant a sentence less than death. Tex. Code Crim. Proc.
art. 37.071 § 2(e)(1). Jurors are told that they are to answer the question either
“yes” or “no,” that they may not answer “no”—thereby effectively sentencing
the defendant to death—unless they agree unanimously, and that they may
not answer “yes”—thereby sparing the defendant a death sentence—unless at
least ten jurors agree. Id. at art. 37.071 § 2(f). Jurors are also told that they
“need not agree on what particular evidence supports an affirmative finding
on” the mitigation question. Id. at art. 37.071 § 2(f)(3).
The component of this scheme that Suniga most vigorously challenges is
the fact that jurors are not told that if any one of them cannot agree on a
negative mitigation finding—if the jury deadlocks on effectively sentencing a
defendant to death—then, by law, a life sentence is imposed. Id. at art. 37.071
§ 2(g). This challenge is curious.
Jurors are not generally told what happens if they cannot come to
agreement on any particular matter, at least as a matter of initial instructions.
Indeed, if there are indications of verdict disagreement by jurors, it is normally
only then that the consequences of deadlock are explained—an Allen charge.
See, e.g., Lowenfield, 484 U.S. at 237–38. But the problem there is that such a
supplemental instruction can be improperly coercive, forcing agreement by
browbeating instead of by respectful encouragement. Id. at 237. Suniga
32
provides no legitimate reason for why coercion should be baked into jury
instructions at the outset of deliberations, before there is any indication of
juror disagreement.
The only difference here is the legal consequence of a deadlock in Texas—
it favors Suniga. But that outcome is a state’s prerogative, not a constitutional
issue. For example, several states permit retrials on sentence if the jury
deadlocks on punishment. See, e.g., Ariz. Rev. Stat. Ann. § 13-7552(k) (“At the
penalty phase, if . . . the jury is unable to reach a verdict, the court shall
dismiss the jury and shall impanel a new jury.”); Cal. Penal Code § 190.4(b)
(“If the . . . jury . . . has been unable to reach a unanimous verdict as to what
the penalty shall be, the court shall dismiss the jury and shall order a new jury
impaneled to try the issue as to what the penalty shall be.”). Do those states
violate the Constitution because they do not immediately tell jurors that the
failure to agree on punishment will result in another jury deciding the matter?
Of course not, the Constitution is not so capricious.
The Court has already effectively decided this matter. Under the Federal
Death Penalty Act, the failure of a sentencing jury to unanimously recommend
a sentence of death leads to the imposition of a life sentence. Jones, 527 U.S.
at 380–81. The same is true in Texas. Tex. Code Crim. Proc. art. 37.071 § 2(g).
Nonetheless, jurors do not need to “be instructed as to the consequences of their
failure to agree.” Jones, 527 U.S. at 381. This is because all that is
33
constitutionally required at the selection phase is “a ‘broad inquiry’ into all
‘constitutionally relevant mitigating evidence.’” Id. (quoting Buchanan v.
Angelone, 522 U.S. 269, 275 (1998)). Suniga “does not argue, nor could he, that
the [state court’s] failure to give [a deadlock] instruction prevented the jury
from considering such evidence.” Id. As explained above, the mitigation
instruction provided Suniga’s jury fulfilled this constitutional requirement,
and jurors were further told they may make individualized determinations as
to what evidence constituted mitigation. There is simply no basis to suggest
that omission of a deadlock instruction misled Suniga’s jurors from considering
whatever evidence they thought mitigating.
The only other question, then, is whether the absence of a deadlock
instruction “affirmatively misled” Suniga’s jury “regarding its role in the
sentencing process.” Jones, 527 U.S. at 381–82 (quoting Romano v. Oklahoma,
512 U.S. 1, 9 (1994)). Again, the Court has addressed the matter:
In no way, however, was the jury affirmatively misled by the [state
court’s] refusal to give [Suniga’s deadlock] instruction. The truth
of the matter is that the [deadlock] instruction has no bearing on
the jury’s role in the sentencing process. Rather, it speaks to what
happens in the event that the jury is unable to fulfill its role—
when deliberations break down and the jury is unable to produce
a unanimous sentence recommendation. [Suniga’s] argument,
although less than clear, appears to be that a death sentence is
arbitrary within the meaning of the Eighth Amendment if the jury
is not given any bit of information that might possibly influence an
individual juror’s voting behavior. That contention has no merit.
We have never suggested, for example, that the Eighth
Amendment requires a jury to be instructed as to the consequences
34
of a breakdown in the deliberative process. On the contrary, we
have long been of the view that “[t]he very object of the jury system
is to secure unanimity by a comparison of views, and by arguments
among the jurors themselves.” We further have recognized that in
a capital sentencing proceeding, the [g]overnment has “a strong
interest in having the jury express the conscience of the
community on the ultimate question of life or death.” We are of the
view that a [deadlock] charge to the jury . . . might well have the
effect of undermining this strong governmental interest.
Id. at 382 (fourth alteration in original) (footnotes omitted) (quoting Allen v.
United States, 164 U.S. 492, 501 (1896); Lowenfield, 484 U.S. at 238). Indeed,
the Court has rejected the requirement of a deadlock instruction in federal
death penalty cases, where the Court is exercising its supervisory powers. Id.
at 384. The CCA’s decision should be given no less respect. It was a correct
decision and Suniga’s petition should be denied.
CONCLUSION
For the foregoing reasons, the petition for a writ of certiorari should be
denied.
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
LISA TANNER
Acting Deputy Attorney General
For Criminal Justice
EDWARD L. MARSHALL
Chief, Criminal Appeals Division
35
s/ Jennifer Morris
JENNIFER MORRIS
Assistant Attorney General
Counsel of Record
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
(512) 936-1400
Jennifer.morris@oag.texas.gov
Counsel for Respondent
36
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.