Opposition Brief — Isidro Miguel Delacruz, Petitioner v. Texas

Supreme Court briefOct 17, 2023

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No. 23-5375

IN THE

Supreme Court of the United States

ISIDRO DELACRUZ,

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

BRENT WEBSTER

First Assistant Attorney General

JOSH RENO

Deputy Attorney General

For Criminal Justice

EDWARD L. MARSHALL

Chief, Criminal Appeals Division

JEFFERSON CLENDENIN

Assistant Attorney General

Counsel of Record

KATIE ABELL

Assistant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 936-1400

Katie.abell@oag.texas.gov

Counsel for Respondent

CAPITAL CASE

QUESTION PRESENTED

A jury found Isidro Delacruz guilty of capital murder of a child younger

than ten years of age. During sentencing, Delacruz called seventeen witnesses

to testify to his character and background. Then, in closing arguments, the

prosecutor and defense counsel reminded the jury to consider all the 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 Delacruz’s “character and background.” The

jury found insufficient mitigating circumstances to warrant a sentence less

than death, and Delacruz was sentenced to death.

The question before the Court is thus:

Does Texas’s mitigation special issue, instructing jurors to consider

evidence of “the circumstances of the offense, the defendant’s character

and background, and the personal moral culpability of the defendant”

violate the Eighth Amendment when it also limits the scope of the

evidence that jurors consider mitigating to “evidence that a juror might

regard as reducing the defendant’s moral blameworthiness?”

TABLE OF CONTENTS

QUESTION PRESENTED……………………………………...……………………..i

TABLE OF CONTENTS………………………………………………………………ii

TABLE OF AUTHORITIES………………………………………………………….iii

BRIEF IN OPPOSITION……………………………………………………………...1

STATEMENT OF JURISDICTION………………………………………………….2

STATEMENT OF THE CASE………………………………………………………..2

Facts of the Crime…………………………………………………………...2

II.

Evidence Relating to Punishment………………………………………...5

III.

The State’s case…………………………………………………..…..5

The defense’s case…………………………………………..………..6

The jury’s answers to the special issues……………….………..27

Direct Appeal……………………………………………………………….27

REASONS FOR DENYING THE WRIT…………………………………………...28

Delacruz Fails to Justify a Grant of Writ of Certiorari……………….28

II.

Texas’s Statutory Mitigation Instruction Is Constitutional…………29

Texas’s statutory mitigation instruction has been repeatedly

upheld………………………………………………..………………30

Texas’s statutory mitigation instruction does not require jurors

to give effect only to mitigating evidence that a has a nexus to

the capital murder………………………………………………….37

CONCLUSION………………………………………………………………………..40

TABLE OF AUTHORITIES

Cases

Pages

Ayers v. Belmontes, 549 U.S. 7 (2006) ............................................................... 34

Beazley v. Johnson, 242 F.3d 248 (5th Cir. 2001) ............................................ 33

Blue v. Thaler, 665 F.3d 647 (5th Cir. 2011) .................................................... 32

Boyde v. California, 494 U.S. 370 (1990) .............................................. 33, 34, 35

Brooks v. State, 990 S.W.2d 278 (Tex. Crim. App. 1999) ................................. 28

Camacho v. State, 864 S.W.2d 524 (Tex. Crim. App. 1993)............................. 28

Cantu v. State, 939 S.W.2d 627 (Tex. Crim. App. 1997) ............................ 31, 32

Cavazos v. Smith, 565 U.S. 1 (2011) ................................................................. 28

Coble v. State, 330 S.W.3d 253 (Tex. Crim. App. 2010)……..….1, 28, 30, 31, 37

Davis v. State, 313 S.W.3d 317 (Tex. Crim. App. 2010)................................... 28

Delacruz v. State, No. AP-77,079, 2023 WL 2290863 (Tex. Crim. App. Mar. 1,

2023)......................................................................................................5, 28, 37

Delacruz v. State, No. AP-77,079 (Tex. Crim. App. Mar. 29, 2021)…………...27

Jenkins v. State, 493 S.W.3d 583 (Tex. Crim. App. 2016) ............................... 28

Jones v. United States, 527 U.S. 373 (1999) ..................................................... 39

McFarland v. State, 928 S.W.2d 482 (Tex. Crim. App. 1996) ......................... 32

Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998)……………………….32

Penry v. Lynaugh, 492 U.S. 302 (1989)……………………………………………32

Penry v. Johnson, 532 U.S. 782 (2001) ......................................................... 1, 32

Perry v. State, 158 S.W.3d 438 (Tex. Crim. App. 2004) ............................. 37, 38

Preyor v. State, No. AP-75,119, 2008 WL 217974 (Tex. Crim. App. Jan. 23,

2008) ................................................................................................................ 38

Prystash v. State, 3 S.W.3d 522 (Tex. Crim. App. 1999).................................. 32

Rhoades v. Davis, 914 F.3d 357 (5th Cir. 2019) ......................................... 33, 34

iii

Roberts v. State, 220 S.W.3d 521 (Tex. Crim. App. 2007).......................... 38, 39

Shannon v. State, 942 S.W.2d 591 (Tex. Crim. App. 1996) ............................. 31

Sorto v. State, 173 S.W.3d 469 (Tex. Crim. App. 2005) ................................... 28

Sprouse v. Stephens, 748 F.3d 609 (5th Cir. 2014) ...................................... 1, 32

Suniga v. Texas, 140 S. Ct. 375 (2019) ......................................................... 1, 31

Tennard v. Dretke, 542 U.S. 274 (2004) ...................................................... 37, 38

Thuesen v. State, No. AP-76,375, 2014 WL 792038 (Tex. Crim. App. Feb. 26,

2014) ................................................................................................................ 32

Statutes

28 U.S.C. § 1257 (a) ............................................................................................. 2

Tex. Code Crim. Proc. Art. 37.071 § 2 (b)(1), (d)(1) .......................................... 27

Tex. Code Crim. Proc. Art. 37.071 § 2(e) .................................................... 29, 32

Tex. Code Crim. Proc. Art. 37.071 § 2(e)(1)…………………………………..30, 31

Tex. Code Crim. Proc. Art. 37.071 § 2(f) ..................................................... 29, 32

Tex. Code Crim. Proc. Art. 37.071 § 2(f)(3)....................................................... 30

Tex. Code Crim. Proc. Art. 37.071 § 2(f)(4)........................................... 27, 30, 31

Rules

Sup. Ct. R. 10………...………………………………………………………………..28

Sup. Ct. R. 10 (a)(b)(c)………………………………………………………………..28

Sup. Ct. R. 14 (h)……………………………………………………………………...29

BRIEF IN OPPOSITION

This is an appeal from a Texas Court of Criminal Appeals (CCA) opinion

affirming the trial court’s judgment. Delacruz 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 limits the scope of the mitigating evidence that jurors may consider to that

evidence which might be regarded as reducing a defendant’s “moral

blameworthiness.” Two decades ago, 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 Delacruz

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). And this Court recently

denied a petition for writ of certiorari raising this same claim. See Suniga v.

Texas, 140 S. Ct. 375 (2019). This case confirms the last two decades of

precedent: During the sentencing phase of trial, Delacruz 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 all the evidence. No jury could have interpreted

the mitigation special issue to exclude the evidence that it was thrice

instructed to consider.

STATEMENT OF JURISDICTION

The Court has jurisdiction under 28 U.S.C. § 1257 (a).

STATEMENT OF THE CASE

Facts of the Crime

The CCA summarized the facts as follows:

[Delacruz] and Tanya Bermea had an “on again, off again”

relationship that was described at trial as turbulent and

dysfunctional. On the night of September 1, 2014, Tanya put her

five-year-old daughter, N.V., to bed. Tanya later received several

phone calls from a number she did not recognize, but she suspected

the calls were from [Delacruz]. The two had argued a few hours

earlier when [Delacruz] did not give Tanya money that he had

promised her. In the early morning hours of September 2, Tanya

heard a noise in the back of the house, just outside of the bathroom

window, which was partially broken and patched with duct tape.

Tanya saw [Delacruz] entering through the bathroom window. She

ran out the front door, leaving N.V. asleep in her bed.

Surveillance cameras mounted outside of a business across

the street from Tanya’s house captured Tanya after she left the

house and headed down the street. The security video was

admitted into evidence and played for the jury during Tanya’s

testimony. The video shows Tanya passing by on the street and,

about a minute and a half later, [Delacruz] following. Then, about

four and a half minutes after that, the video shows [Delacruz]

running back towards Tanya’s house.

Tanya testified that after she fled the house, she called her

mother, Jesusita Bermea, and asked her to pick her up. Jesusita

picked Tanya up within minutes and they returned to the house.

Tanya testified that when they got back to the house, the front door

was locked, but [Delacruz] came out, knocked Jesusita to the

ground, and punched Tanya. Jesusita ran down the street and

called the police. Dispatch received Jesusita’s call at 2:30 a.m.

In the meantime, Tanya drove to [Delacruz]’s parents’ house

down the street to try to persuade them to get [Delacruz] out of

Tanya’s house. Tanya returned to her house six to eight minutes

later, unsuccessful in recruiting their assistance. Tanya testified

that the front door was open when she got back, and she saw N.V.

on the living room floor with bloody paper towels on her neck.

[Delacruz] shoved Tanya out the door and slammed her to the

ground.

A neighbor testified to being awakened around 2:35 a.m. by

a woman she later recognized as Tanya banging on the front door

of Tanya’s house and yelling to be let in. She then saw Tanya

wrestling with a man in the front yard. The neighbor called 911.

Officer Marcus Rodriguez was the first officer to arrive at

2:37 a.m. The security video captures his arrival about fifteen

minutes after Tanya initially fled the house and almost ten

minutes after [Delacruz] ran back to the house. Rodriguez found

N.V. lying on the floor with blood around her neck. Rodriguez

asked [Delacruz] what happened, and [Delacruz] responded that

“she slit her throat” and he “didn’t do anything.” Other officers

arrived and began attending to N.V., who was alive but “barely

breathing.” When [Delacruz] became angry and violent with the

officers attending to N.V., he was handcuffed and placed in a patrol

car. An ambulance and paramedics arrived at 2:45 a.m. N.V. was

transported to the hospital where doctors pronounced her dead

shortly after her arrival.

Officers found [Delacruz]’s blood throughout Tanya’s house,

including around the bathroom window and sill, in the bathtub

and sink, on walls, blinds, light switches, doorknobs and doors,

closet doors, counters, furniture, and floors.1 The bloody trail went

1 There was a three to five inch laceration on the back of [Delacruz]’s left arm. In his

statement to police, [Delacruz] suggested that Tanya cut his arm with a knife. The

paramedic who treated the injury at the scene testified that the cut was smooth, not

jagged, and was consistent with having been caused by glass or by a knife. Detective

Carlton Kolbe testified that when he was working on the case, he made an inquiry to

“the medical examiner” as to the likely cause of the cut to [Delacruz]’s arm, and

received an email reply that the wound was more consistent with being caused by a

knife than by glass. It is not clear whether this was the same medical examiner who

conducted N.V.’s autopsy. However, the medical examiner who conducted N.V.’s

into N.V.’s bedroom where her bedding was saturated with her

own blood. The wall by N.V.’s bed showed two “path[s]” of blood,

one originating from N.V. and the other from [Delacruz].

[Delacruz] was wet and bloody, as was the kitchen sink. The blood

in and around the kitchen sink was a mixture of [Delacruz]’s and

N.V.’s blood. Officers followed a trail of blood from Tanya’s

driveway across the street to a field where they found a bloody

knife. N.V.’s and [Delacruz]’s DNA were recovered from blood on

the knife.

The medical evidence showed that N.V. died from two knife

wounds to her neck. One of the cuts penetrated (and almost

severed) her jugular vein. The other cut nearly reached the floor of

her mouth. Bruising and a cut to N.V.’s chin suggested that her

head was positioned and held still as her throat was sliced. The

medical examiner testified that without medical intervention, N.V.

would have died from her injuries within three to seven minutes.

With the application of immediate and consistent pressure to the

injuries, N.V. might have survived as long as fifteen to twenty

minutes.

After his arrest, [Delacruz] gave a video-recorded statement

to Detective Carlton Kolbe, an excerpt of which was published to

the jury. In the video statement, [Delacruz] said that he went to

Tanya’s house and she let him in the front door. He said that they

had both been drinking and they argued in the living room. He was

about to leave but went into N.V.’s room to kiss her goodnight. He

said, “I was just going to give a hug and kiss to [N.V.] and the next

thing I know I just felt something sharp on my arm and back and

the next thing I know there’s blood everywhere.” He said Tanya

then ran from the house and he tried to run after her, but returned

to the house “to check myself and see what happened.” He said he

saw that he had a cut, saw a knife and picked it up, and saw N.V.

covered in blood. He carried N.V. to the living room where he tried

to stop the bleeding with paper towels. When Tanya and her

mother came back and yelled at him, he told them “I didn’t do

autopsy testified that the injury to [Delacruz]’s arm could have been caused by a

knife, a piece of glass, or “anything sharp.” [Delacruz]’s blood was found on the side

of the house outside of the bathroom window where he entered and on the floor below

the window.

nothing.” He said he pushed Tanya’s mother and slapped Tanya

and threw the knife at her and asked her “what the fuck is wrong

with her.” He ran back inside to continue trying to stop N.V.’s

bleeding. [Delacruz] said that people were blaming him, but he

insisted that he “didn’t do nothing.”

When Detective Kolbe reviewed the details of the story with

[Delacruz], he asked, “Are you saying Tanya grabbed that knife

and cut you with it?” [Delacruz] responded, “I don’t know what she

did, all I know is that there’s . . . it’s a knife on [N.V.]’s bed, I’m

bleeding. That’s when I turned on the light and I saw all of that.”

[Delacruz] said he turned around and saw Tanya running from the

house so he chased her, but then went back to the house. He went

into N.V.’s room, turned on the light, and saw that “there was so

much blood.”

Later, in an interview with a reporter while he was in jail,

[Delacruz] said that he had told the police what had happened,

that they did not believe him, that they had the evidence, and that

“it was all an accident.”

Delacruz v. State, No. AP-77,079, 2023 WL 2290863, at *1–3 (Tex. Crim. App.

Mar. 1, 2023), reh’g denied (May 17, 2023).

II.

Evidence Relating to Punishment

The State’s case

The State presented evidence of Delacruz’s juvenile and adult criminal

history, including convictions for assault, evading arrest or detention, driving

while intoxicated, possession or delivery of drug paraphernalia, possession of

marijuana, driving under the influence as a minor, consumption of alcohol as

a minor, failure to attend school, and contempt of court. 66 RR 192–94, 198–

203, 208–11, 239–49.2 It also presented evidence of an unadjudicated act of

domestic violence against Tanya, 66 RR 82–95; Delacruz’s failure to comply

with felony and misdemeanor probation requirements, 66 RR 35–46; 69 RR

124–47; and Delacruz’s in-custody contraband possession and disciplinary

infractions, 67 RR 202–03, 230; 69 RR 203–04, 213–17, 226–29, 254–60, 280–

88; 71 RR 15–17, 22–27, 33–34, 48, 52, 61–62, 67–72, 89–91, 117–18, 149–52.

The defense’s case

In opening argument, defense counsel told the jury: “[T]he evidence is

going to show you that [Delacruz] was not a model citizen. . . . And when he

was locked up, he was not a model prisoner.” 66 RR 22. “I think the evidence

is going to show that Mr. Delacruz has -- has some impulse issues, and that he

doesn’t function like the rest of us do.” Id. at 23. And counsel explained that

“[m]itigation . . . is an explanation for who a person is,” “[w]ho they are as a

human being[, w]ho [Delacruz] is as a man.” Id. Defense counsel then called

seventeen witnesses to demonstrate who Delacruz is.

Tyler Cooper

Tyler Cooper testified that he went to school with Delacruz. 72 RR 10.

They would hang out—mostly skateboard—and Delacruz stuck up for and

2 “RR” refers to the Reporter’s Record of transcribed trial court proceedings in cause

number B-14-1134-SA. “CR” refers to the Clerk’s Record of pleadings and documents

filed with the trial court in cause number B-14-1134-SA. The citations are preceded

by volume number and followed by the relevant page numbers.

protected Cooper from bullies. Id. at 11–12. One time, Cooper, Delacruz, and

another friend went skateboarding; after Delacruz left, he was pulled over by

police and arrested for possession of marijuana. Id. at 13–14, 28.

Cooper described Delacruz as “hype,” “fun to be around,” and his “best

friend.” 72 RR 15–16. But when Delacruz drank, he was “wild,” “out of control,”

“belligerent,” and emotional. Id. at 16–17. Cooper described that once, at a

party, Delacruz almost got into a fight with another man over a girl and Cooper

had to intervene. Id. at 22. But he and Delacruz also “had very intimate talks

. . . about childhood, past things,” because they had experienced similar

childhoods. Id. at 17. Cooper was a survivor of sexual abuse. Id.

Cooper stated that he did not like to go to the Delacruz family’s house

because “it gets pretty crazy over there sometimes.” 72 RR 19–20. Once, Cooper

saw Delacruz’s mother throw trophies at Delacruz. Id. at 20. Cooper testified

that Delacruz’s older brother Chris was similar to Delacruz in a lot of ways,

but his younger brother Lorenzo was the golden child—he got in less trouble.

Id. at 20–21, 95. Cooper never met Tanya, but he met N.V. once. Id. at 18–19.

Cooper described Delacruz as “happier” and “more complete” when N.V. was

around. Id. at 19.

Crystal Bingham

Crystal Bingham met Delacruz while working at Cheddar’s in 2013. 72

RR 32. Delacruz was hired while completing the Substance Abuse Treatment

Facility’s work release program; and Bingham described Delacruz as “great,”

“always there, always happy,” and “made it fun to work with.” Id. at 32–34.

Delacruz continued working for Cheddar’s after he completed the work release

program. Id. at 37–38. Bingham never had any complaints while working with

Delacruz. Id. at 39. She described him as “happy,” “a great person . . . [and]

friend,” and “a good guy all around.” Id. Sometimes, they would hang out

outside of work, and Delacruz drank, but she never saw him intoxicated. Id. at

40, 43. Ultimately, Delacruz was fired for buying or selling marijuana, but

Bingham was not concerned about his drug or alcohol use. Id. at 35–36.

Bingham met Tanya and N.V. when they would visit Delacruz at work.

72 RR 41. She described their interactions as “very good;” she “never saw him

angry, mad, nothing.” Id. at 42–43. But on cross-examination, the State asked

Bingham if she remembered telling an investigator that after he completed the

work release program, Delacruz gave attitude, got in more fights and

arguments with Tanya, and started to show signs of anger and drug use. Id. at

46–47. Bingham stated that Delacruz had to behave when he was in the

program and when released from the program, “you do whatever you want.”

Id. at 46–50. Bingham also knew Delacruz used marijuana, but she never saw

him use anything stronger. Id. at 48.

Matthew Mendel

Matthew Mendel, a clinical psychologist, met with Delacruz twice before

trial. 72 RR 86–89. Dr. Mendel reviewed Delacruz’s school records, medical

records, juvenile and adult criminal history, Child Protective Services (“CPS”)

reports, counseling records, and probation and substance abuse treatment

records. Id. at 90. He also reviewed many of the records pertaining to the

instant offense and N.V.’s death. Id. at 91. When first meeting Delacruz,

Dr. Mendel felt like he was speaking with a young child, or someone who had

intellectual limitations. Id. at 91–92. But Delacruz is not intellectually

disabled. Id. at 129.

Delacruz described his parents as “pretty perfect.” 72 RR 94. But

Dr. Mendel noted that there were multiple complaints and reports made to

CPS, and on at least one—but maybe three—occasions, Delacruz and his

brothers were taken from their parents and placed in foster care or a group

home setting. Id. at 95, 133–34. Dr. Mendel testified that the boys were

subjected to severe physical abuse. Id. at 96. During one incident, their mother

attempted to break his brother Chris’s arms. Id. During another, she

reportedly threw nineteen-month-old Delacruz against a wall, bruising and

cutting up his face. Id. at 97. There were multiple reports by CPS, and Delacruz

confirmed during the interview, that he was subject to a lot of “beatings with

belts and paddles and electrical cords.” Id. at 98.

Dr. Mendel also learned that while Delacruz downplayed and defended

his educational history, he struggled in school. 72 RR 99. Delacruz was

diagnosed with a learning disability and was not a good student. Id. Dr. Mendel

said Delacruz has “reaction formation,” “a very severe defense mechanism”

that is common with very young children in which they respond to situations

in the opposite or create a “fantasy life.” Id. at 102–03.

Dr. Mendel testified that Delacruz had once been sexually abused. 72 RR

108. His cousin’s boyfriend started to undress and touch his little brother, and

Delacruz intervened saying “don’t do it to him, do it to me.” Id. at 109. The man

undressed and started masturbating until the doorbell rang when he quickly

dressed and left the room. Id. at 109–10. But Dr. Mendel explained that he did

not believe “there was a huge amount of sexual abuse” or that this incident

“was the major formative influence in [Delacruz’s] life.” Id. at 110.

Delacruz’s mother, Lisa, also experienced sexual abuse as a child. 72 RR

111–12. She was “pimped out” by her parents, “sold” to a guy named Ringo,

raped, and impregnated with Delacruz’s oldest brother. Id. at 112–14. Dr.

Mendel described Lisa as a “mercurial, emotional, explosive person.” Id. at 115.

On the other hand, Delacruz’s father, Juan, seemed to Dr. Mendel a

“pretty sound, pretty stable, decent guy overall.” 72 RR 115. Juan “worked

tremendously hard and always was able to provide for them.” Id. And he

treated Chris, Delacruz’s oldest brother, as his own son, even though he was

not biologically Juan’s. Id. Dr. Mendel testified that it was important to

Delacruz to raise N.V. like she was his biological child, just like Juan raised

Chris. Id. at 118. There were a lot of problems between Tanya and Delacruz,

but Delacruz stayed with Tanya largely because of N.V. Id.

Felipe Cortez

Felipe Cortez grew up with Delacruz, and Delacruz dated Cortez’s sister.

73 RR 10–11, 16. Delacruz was “the best friend,” “loyal,” and always there for

Cortez. Id. at 13. In high school, Cortez and Delacruz hung out with the

“rebels”—the kids who were “not doing much of anything but listening to

music.” Id. at 14. They got in trouble for pulling pranks, messing with the

janitor, and drinking alcohol whenever they could. Id. at 15. Sometimes they

would skip school together. Id. at 28. Towards the end of high school, Delacruz

became distant, and they stopped talking and hanging out. Id. at 16.

Lupe Muniz

Lupe Muniz is the maternal great-grandmother of Delacruz’s son. 73 RR

34, 42. Muniz testified that Delacruz was a very talented artist and chef. Id. at

38. Muniz stated that she did not know whether Delacruz drank a lot, but

Muniz had only seen Delacruz drunk one time. Id. at 36. Delacruz showed up

to her house belligerent and hard to understand; Muniz tried talking to

Delacruz and sat him on the couch. Id. at 36–38.

Daniel Delacruz

Daniel Delacruz, Delacruz’s paternal cousin, hung out with Delacruz

almost every day when he moved to San Angelo and lived in the Delacruz’s

home. 73 RR 47–48. Daniel and Delacruz drank and smoked weed together,

and Delacruz was generally the same as normal—happy and carefree. Id. at

51–52. He did not believe Delacruz to have a drinking problem, because

although they drank often, Delacruz did not usually drink to excess. Id. at 56.

Daniel testified that he saw the Delacruz family kill goats at their home

by using a sharp knife to sever the goat’s jugular vein. 73 RR 62–63. But Daniel

testified that Delacruz never killed one of the goats—he wanted to keep one as

a pet. Id. Daniel also testified that he knew Tanya and N.V. Id. at 52. Delacruz

“took care of” N.V. and treated her “like one of his own.” Id. at 52–53.

Ruby Cortez

Ruby Cortez testified that Delacruz was friends with her children and

became like her son. 73 RR 70. He went on vacations with the Cortez family

and even called her “mom.” Id. at 74. Cortez testified that Delacruz drank, but

she did not know him to drink often or too much. 73 RR 75. Once, Delacruz

brought Tanya and N.V. over to Cortez’s home. 73 RR 76. Delacruz wanted

Cortez’s opinion about Tanya; and Cortez told him to “get away from her,”

“[s]he’s going to ruin your life.” Id.

Michael Castro

Michael Castro grew up with Delacruz. 73 RR 86–87. Castro would hang

out with Delacruz after school and on weekends—they only lived two- or threeminutes walking distance from each other. Id. at 88–89. Castro described

Delacruz as “[f]un, easygoing, easy to talk to.” Id. at 90. Delacruz stuck up for

Castro when kids bullied him and taught Castro how to skate. Id. at 91–92.

Castro described Juan as laid back and Lisa as strict. Id. at 94–95.

In high school, Castro and Delacruz got in trouble for graffitiing around

the neighborhood—they spray-painted cars and fences. 73 RR 96, 103. The

police came, and they went to jail and served time on probation. Id. at 96–98.

Castro never drank with Delacruz as teenagers, but they smoked weed

together. Id. at 99. After high school, Castro saw Delacruz drinking but did not

know how often or how much because they lost touch. Id. at 99–100.

Juan Delacruz

Juan, Delacruz’s father, testified that he is married to Elizabeth “Lisa”

Delacruz and has four children—Juan Jr., Chris, Isidro, and Lorenzo. 73 RR

108–10. Juan said that Chris, Isidro, and Lorenzo were removed from the home

when Delacruz was under two years old and placed together into a foster home

for six or seven months. Id. at 111. The boys were taken “[o]ver a lie.” Id. at

112. Their aunt was upset with Lisa, and Juan was talking to her in the street

when she saw Delacruz had a bloodied nose and scraped lip. Id. The aunt took

Delacruz to the hospital, where she told hospital staff that she had seen Lisa

throw Delacruz against the wall. Id. at 112–13. CPS required Juan to attend

parenting and anger management classes. Id. at 112. And when the boys

returned, Juan’s mother lived with them per CPS requirements. Id. at 114.

The boys were only removed from the home by CPS that one time. Id. at 140.

For fun, the Delacruz family went camping, fishing, and to the park. 73

RR 114. Juan barbecued goats; he would cut the goat’s throat with a knife

before skinning and barbecuing it overnight. Id. at 118–19. Juan remembered

Delacruz getting in trouble as a kid for jumping the fence, throwing rocks,

spray-painting, and “stuff like that.” Id. at 117. If Delacruz “was real bad,” he

received a spanking. Id. at 118. Once he got older, Delacruz started drinking

and smoking marijuana. Id. at 121. Juan’s father was an alcoholic, so he knew

drinking and smoking weed would get Delacruz in trouble. Id. at 122. Juan

also knew that Delacruz had gotten in trouble for breaking a young man’s

glasses, vandalizing a camera at school, and fighting with Tanya, and that

Delacruz had been arrested for possession of marijuana, criminal mischief, and

driving while intoxicated. Id. at 123–24.

Juan testified that Delacruz was popular with kids in school but did not

have very good grades. 73 RR 131–32. Delacruz was very good at skating,

cooking, and art. Id. at 133. Once Delacruz went through puberty, he wanted

to go out partying more and stay out late. Id. at 134.

Juan met Tanya before she started dating Delacruz. 73 RR 129. He saw

Tanya occasionally, but Delacruz was mostly over at her house. Id. at 130.

Juan worried about Delacruz dating Tanya because when Juan first met

Tanya, she partied and was “hooked on drugs or whatever.” Id. at 131. At the

beginning of the relationship, Juan said Tanya and Delacruz were not fighting.

Id. at 130. But towards the end, Juan “told [Delacruz] to stay away from her,

that she was crazy.” Id. And after Delacruz was released from jail just before

N.V.’s death, Juan told Delacruz not to go over to Tanya’s or talk to her and to

stay away from her. Id. at 146. The night that N.V. died, Tanya banged on the

door to Juan’s house in the middle of the night saying that Delacruz was at her

house and had pushed her mom. Id. at 147. Juan told Tanya to “call the cops.

Lock him up.” Id.

10.

Lorenzo Delacruz

Lorenzo, Delacruz’s brother, testified that Delacruz is his best friend and

people considered them twins. 73 RR 154. Their childhood home life “was kind

of normal.” Id. at 200. As kids, they would “go skateboard, go fishing, go shoot

BB guns. . . . Play video games.” Id. at 155. They got in trouble in middle school

for “jumping” another kid and “his glasses got broke.” Id. at 159. They were

“arrested at school, taken to the juvenile center,” and “put on probation” for

about six months. Id. at 160. They got in trouble again in high school for spraypainting, and Lorenzo spent a few weeks in the juvenile detention center which

made a big impact on him. Id. at 161–62. But that experience did not have the

same impact on Delacruz; he was still “a carefree kid.” Id. at 162.

At home, Lisa took care of disciplining the boys. 73 RR 163. They were

usually hit with a paddle—sometimes a belt or extension cord—and one time

Lorenzo recalled being burned on the hand with a curling iron. Id. There were

times he was scared to get in trouble, but “most kids get scared when they’re

going to get punished.” Id. at 197. Lorenzo is closer with Juan and Juan’s

family than Lisa because Juan was always there when Lorenzo needed him.

Id. at 165–66. Lorenzo explained that Delacruz “likes to cook, and [his] mom

loves to cook and bake,” so Delacruz “took to [Lisa] more than” Juan. Id. at 166.

Lorenzo only met Tanya one time at his twenty-first birthday party. 73

RR 168. He also met N.V. one time when Delacruz came by the house for gas

money and N.V. was sitting in his truck. Id. at 169. Delacruz did not seem

happy while he was with Tanya, but he loved N.V. and always seemed happy

when he talked about her. Id. at 169.

Lorenzo testified that Delacruz drank a lot and smoked weed, more than

Lorenzo. 73 RR 170. Delacruz “didn’t have somebody looking out for him as

much” as Lorenzo. Id. at 171. Delacruz is emotional, “he gets mad about things

that are kind of small,” but he is also a very caring and loving person. Id. at

171–73, 175. Delacruz did not plan too much for anything. Id. at 174.

On cross-examination, the State asked Lorenzo about a Facebook

Messenger conversation he had with Chris the day after N.V.’s death. 73 RR

188–90. In it, Chris said that during a fight Delacruz told Chris that he “would

hurt Marilyn,” Chris’s daughter. Id. at 189. Chris told Lorenzo that Delacruz

said “he could do something like this that he would have no regrets to and that

if he did do it he would want the death penalty.” Id. at 190. Lorenzo responded

to Chris’s message saying “. . . [Delacruz] would never have done this unless

there was another element involved like drugs.” Id. at 192. Lorenzo denied

remembering the details of that conversation but agreed that it appeared to be

the conversation he had with Chris. Id. at 188, 190–91.

11.

Edith Koen

While Delacruz was in junior high, Edith Koen, an educational

diagnostician and certified special education and general education teacher,

reviewed his educational diagnostic assessments and compiled a report. 73 RR

205–06, 208–09. Delacruz was assessed for general intelligence using the

Wechsler Individual Scale for Children, Fourth Edition (“WISC”) and assessed

for general functioning using the Wechsler Individual Achievement Test,

Second Edition (“WIAT”). Id. at 208, 211–13. The two tests are compared to

determine if any cognitive weaknesses exist, where the individual needs help

building up general functioning skills. Id. at 213–14.

Koen’s report noted that, in 2005, Delacruz “qualif[ied] as a student with

a specific learning disability in the area of written expression.” 73 RR 219. On

the WISC, he scored “just a little below” the mean. Id. at 223. Delacruz had

high scores for perceptual and fluid reasoning and for visual processing, an

average score for verbal comprehension, and a low score for working memory.

Id. at 228–31. On the WIAT, Delacruz had “good” scores for the basic reading

and comprehension tests and for the calculation and problem-solving math

tests, but he scored in the “risk-area” on the writing test. Id. at 233–40. Based

on these findings, Koen recommended that special education accommodations

be made for Delacruz within the general education classroom. Id. at 242, 250.

While in the special education program, several manifestation

determinations were made for Delacruz’s behavioral concerns. 73 RR 255–56.

“The manifestations were for vandalism, inappropriate language, cutting class,

things like that.” Id. at 256. Koen determined the manifestations did not

constitute a pattern, so the behavioral concerns were not due to Delacruz’s

learning disability or the school’s failure to provide the appropriate services.

Id. at 256–57. As a result, Delacruz was sent to a disciplinary alternative

education program. Id. at 257–58.

After three years, a student must be reevaluated. 73 RR 261. In 2008,

Delacruz was seventeen years old, so he was assessed on the Wechsler Adult

Scale of Intelligence and the WIAT. Id. This time, Delacruz had low scores in

both writing and math tests, and the committee recommended Delacruz

remain in the general education classroom with the same accommodations and

the addition of extra time. Id. at 263–64. Eventually, Delacruz completed the

required credits to graduate. Id. at 267.

12.

Tarayla Guthrie

Tarayla Guthrie, an elementary and middle school English teacher,

participated

Delacruz’s

2005

evaluation

and

special

education

determination. 73 RR 274, 280–81. Delacruz received several accommodations

while in Guthrie’s seventh grade English class. Id. at 283–87, 291. Guthrie

noted that prior to receiving accommodations, Delacruz had difficulty

producing written work, staying on task, or following directions, poor attention

and concentration, and noncompliance with teacher directives. Id. at 289. The

accommodations helped Delacruz produce better work. Id. at 288, 290.

13.

Wilkie Andrew Wilson, Jr.

Wilkie Wilson, Jr. is a neuropharmacologist who studies the effects of

drugs on the nervous system and a professor at Duke University. 74 RR 44.

Dr. Wilson reviewed all the relevant medical records and met with Delacruz in

the county jail before trial. Id. at 52–53. Based on Delacruz’s weight,

alcoholism, and the times of both the crime and blood draw following his arrest,

Dr. Wilson was able to reverse (or retrograde) extrapolate3 to determine what

Delacruz’s blood alcohol level was at the time of N.V.’s death. Id. at 57–61. He

concluded that Delacruz had a blood alcohol level of approximately .27 at the

time of the crime, about three times the legal intoxication limit. Id. at 58–60.

Dr. Wilson also testified that Delacruz’s marijuana use might have impaired

him, specifically his ability to move or think clearly, but the alcohol is the

dominant impairment in this case. Id. at 78–79.

14.

Renata Hernandez

Renata Hernandez, Delacruz’s maternal cousin, spent a lot of time at the

Delacruz house when she was a teenager and Delacruz was a child. 74 RR 83,

86. Hernandez’s mother and Lisa, who are sisters, do not get along and their

family does not get along. Id. at 86. Hernandez described Lisa and Juan as

loving parents but said that they mistreated Chris and Delacruz and treated

Lorenzo much better. Id. at 87. She was not aware of any abuse in the Delacruz

household and believes Delacruz to be a loving person who was just raised in

a chaotic family. Id. at 89–92.

3 A reverse extrapolate refers to taking a known blood alcohol level at a certain time

and predicting the blood alcohol level at a previous time based on various factors and

data points. 74 RR 54–57.

15.

Elizabeth “Lisa” Delacruz

Lisa Delacruz, Delacruz’s mother, testified that as a baby, Delacruz was

a chubby little kid who was loving, playful, and adventurous. 74 RR 102–03,

120. He frequently got in trouble, and as punishment, the school made him

stand by the fence where he could not play with other kids. Id. at 120. He

continued to get in trouble in middle school for talking or playing rather than

paying attention. Id. at 120–21. The first time Delacruz got in “big trouble”

was in junior high when he got sent to the Juvenile Justice Center for a couple

of weeks. Id. at 122. And Delacruz was twice sent to the Carver Learning

Center.4 Id. at 124–25.

Lisa testified that Delacruz had trouble in school. 74 RR 126. She

referred him to a special education assessment in seventh grade but noticed

his learning issues as young as four years old. Id. at 126–27. Delacruz was held

back because he could not keep up with the schoolwork and ended up in the

same grade as Lorenzo. Id. at 127–28. Delacruz graduated from high school at

twenty years old. Id. at 163–64.

When Delacruz was older, he got in trouble for criminal mischief and

possession of marijuana, but she did not know whether he had been arrested

for driving while intoxicated. 74 RR 133–34. As discipline, Juan spanked the

4 Carver Learning Center was the Disciplinary Alternative Education Program. 73

RR 258.

children, and Lisa would usually take things away from them, ground them,

and—if there was a good reason—spank them with a paddle. Id. at 134–35.

Lisa noticed that Delacruz started drinking and smoking marijuana when he

was a teenager, but she never saw Delacruz drunk. Id. at 142–43.

Lisa testified that when the boys were removed by CPS it was because

CPS believed she had abused one of her sons, but she had not. 74 RR 118. She

and Juan had to attend parenting classes at a church. Id. The boys eventually

came home under the condition that another relative live with them, so Juan’s

mother moved in. Id. at 119. CPS came to the Delacruz house another time

when Lisa’s sister Irene moved in; they had a disagreement, and Lisa called

the police to have Irene removed. Id. at 122–23. CPS was concerned because

Irene and her family were alcoholics, and CPS did not think they should be

living in the home with the Delacruz children. Id.

Lisa is one of eleven children; CPS came to her childhood home when she

was about two years old because one of her siblings reported that their mother

had abandoned them. Id. at 128–30. Lisa’s mother was an alcoholic, and her

dad was always working. Id. at 131. Lisa described the Delacruz family as a

“happy family;” she took care of her children, cleaned, did all the laundry, and

cooked. Id. at 157. Delacruz did not have a horrible or violent childhood home.

Id. at 156–57. Lisa further explained that she met Chris’s father, Ringo, while

he was helping her move from one house to another, and he “violated” her. 74

RR 158–59. But she denied that anyone sold her to Ringo. Id. at 159.

When Delacruz started dating Tanya, he did not bring her around. 74

RR 146. Lisa thought Delacruz and Tanya were bad together; they had a lot of

troubles, and Tanya was too old for Delacruz. Id. at 147–48. Lisa only met N.V.

one time, when she was about four years old. Id. Lisa knew that Delacruz was

on probation while he was dating Tanya, and that although he was not

supposed to be drinking or contacting Tanya, he did. Id. at 147–48.

The night that N.V. died, Tanya called to tell Lisa and Juan that

Delacruz was calling her from an unknown number. 74 RR 165. Lisa said

Delacruz was supposed to be at home in bed, hung up, and turned off the phone

because it kept ringing. Id. Later, Tanya came to the Delacruz’s house and

“basically, said that [Delacruz] had broke into her home and that she -- he had

assaulted her and her mother and that she had called the police.” Id. at 149.

Lisa got dressed, went to Tanya’s, and ran inside; she described the scene as

“horrible,” and she yelled, “Isidro, what did you do?” Id. at 149–50.

16.

Esperanza “Hope” Cline

Hope Cline, Delacruz’s maternal cousin, moved down the street from

Delacruz when she was about thirteen years old, and Delacruz was seven or

eight. 74 RR 179–80, 182. Delacruz “was nice. Really quiet. He was always

skateboarding, bicycling, just -- just an outside kid.” Id. Her mom’s side of the

family did not get together often because there was a lot of bickering. Id. at

183. Juan was always outside working in the garage, Lisa dealt with the house

and the children. Id. at 185. Lisa would get aggravated if the boys did not clean

their rooms and would yell at them. Id. But Hope never saw any physical

violence in the Delacruz household, only ugly words. Id. at 191.

17.

John

John Fabian

Fabian,

board-certified

forensic

psychologist

and

neuropsychologist, testified that he examined Delacruz before trial to

determine “potential mitigating factors that a jury could consider when [they]

are deliberating as to punishment.” 75 RR 39, 42, 56–57. Dr. Fabian described

mitigation as “looking at the person’s character, background, their history, the

nature of -- of the offense, and really looking at . . . moral culpability . . . what

penalty is he really worth in this case looking at this person, you know, as a

human . . .” Id. at 58.

Dr. Fabian met with Delacruz two times, approximately ten or more

hours in total. 75 RR 59–60. He met with Lisa, Juan, and one of Delacruz’s

brothers. Id. at 60. And he reviewed Delacruz’s criminal history, medical,

education, mental health, offense reports, and jail records, as well as letters,

notes, witness statements, and crime scene pictures. Id. at 60–61.

Dr. Fabian testified that Delacruz “has some mental health issues and

conditions.” 75 RR 61. He has “some mild depression and a pretty significant

addiction to alcohol and cannabis.” Id. at 61–62, 66. And he has “difficulties in

reasoning and problem solving.” Id. at 62. Some important factors that Dr.

Fabian noted about Delacruz’s life include: CPS involvement in early life and

removal from the family home, potential abuse by his mother, sexual abuse on

at least one or two occasions, paternal detachment, a lack of emotional

processing within the family, and learning disabilities. Id. at 62–64.

Dr. Fabian testified that Delacruz self-reported using about an ounce of

marijuana a week for the three months leading up to N.V.’s death. 75 RR 67.

Delacruz developed a high tolerance for alcohol. Id. at 67. And he had

symptoms of ADHD, mild depressive disorder, PTSD, amnesia, alcohol-use

disorder, cannabis-use disorder, and antisocial traits or personality disorder.

Id. at 69–70, 87–89. Delacruz suffered a concussion around age five, but that

may not have had any real impact on him. Id. at 70–71. And Delacruz is not

intellectually disabled. Id. at 95.

Dr. Fabian conducted various cognitive assessments on Delacruz to

determine his brain and behavior functioning. 75 RR 72–74. He concluded:

Delacruz has “some mild, subtle deficits academically” based on how far he

went in school. Id. at 74, 88. Delacruz scored an 83 on the full IQ scale, but “his

verbal intelligence and comprehension was significantly more deficient than

non-verbal.” Id. at 75. He has “some attentional executive functioning deficits

. . . some problems, really, with working memory.” Id. at 76–77. His “[a]uditory

comprehension was severely impaired.” Id. at 81. And while “his verbal and

memory skills were intact,” he “has significant verbal abstract reasoning skill

deficits,” which affect how he interacts with people or how he reasons, judges,

and communicates with others. Id. at 82–84. Overall, Dr. Fabian concluded

that Delacruz has neurodevelopmental disorders that affect “his executive

functioning; problem solving, [and] planning, especially in chaotic situations,

especially when under the influence of alcohol.” Id. at 92. Further, Delacruz

“had low self-esteem,” “was not likely in a good place, feeling good and

confident and healthy in that relationship with Tanya,” and had “a lack of

ability to process emotions.” Id. at 92–93. These factors created a “perfect

storm” for a “horrific situation.” Id. at 94.

Dr. Fabian testified that there were at least two prior domestic violence

incidents with Tanya during which the police were called. 75 RR 126–29.

During the first, Tanya was the aggressor, Delacruz was the victim; during the

second, Delacruz was the aggressor, Tanya was the victim. Id. Delacruz was

arrested for choking Tanya, a felony in Texas, and was released under a

temporary protective order not to have contact with her. Id. at 126–28. This

was about five days before N.V.’s death. Id. at 128–29. But the night before

N.V. died, Tanya and Delacruz spoke on the phone. Id. at 129. Despite the

protective order, they were together over the weekend and “still having

difficulties.” Id. at 129–30. Dr. Fabian described the relationship as “toxic,

dysfunctional,” and “tumultuous;” both Tanya and Delacruz “perpetrated

verbal and physical fights with each other.” Id. at 131.

The jury’s answers to the special issues

The jury was given the statutory future-dangerousness and mitigatingcircumstances special issues. See Tex. Code Crim. Proc. Art. 37.071 § 2 (b)(1),

(d)(1); 76 RR 6–9; 14 CR 6386–88. From the evidence, the jury found a

“probability that [Delacruz] would commit criminal acts of violence that would

constitute a continuing threat to society.” 14 CR 6389; 76 RR 83. And that “all

of the evidence . . . including . . . [that of Delacruz’s] character and background”

did not demonstrate sufficient mitigating circumstances to warrant a sentence

other than death. 14 CR 6390; 76 RR 83–84. Based on the jury’s answers to the

special issues, the trial court sentenced Delacruz to death. 76 RR 87.

III.

Direct Appeal

On direct appeal, Delacruz raised twelve points of error. Relevant to the

instant petition, Delacruz asserted that (1) Texas Code of Criminal Procedure

Article 37.071 § 2(f)(4) is unconstitutional for limiting the definition of

mitigating

evidence

that

which

reduces

the

defendant’s

“moral

blameworthiness,” and (2) the statutory definition of mitigating evidence is

unconstitutional because it imposes a “nexus” limitation. Br. for Appellant

147–59, Delacruz v. State, No. AP-77,079 (Tex. Crim. App. Mar. 29, 2021). He

also argued that Article 37.071 § 2 is unconstitutional because (1) the “10-12

Rule” created by subsections 2(d)(2) and 2(f)(2) unconstitutionally misleads

and confuses the jury, and correcting that confusion is prohibited by subsection

2(a)(1), and (2) it provides no definition of critical terms. Id. at 121–46, 159–

76. The CCA rejected these claims, explaining that it had repeatedly

considered and rejected such arguments. Delacruz, 2023 WL 2290863, at *24–

25 (citing Coble, 330 S.W.3d at 296–97; Sorto v. State, 173 S.W.3d 469, 492

(Tex. Crim. App. 2005); Camacho v. State, 864 S.W.2d 524, 536 (Tex. Crim.

App. 1993); Jenkins v. State, 493 S.W.3d 583, 613–18 (Tex. Crim. App. 2016);

Davis v. State, 313 S.W.3d 317, 354–55 (Tex. Crim. App. 2010); Brooks v. State,

990 S.W.2d 278, 287 (Tex. Crim. App. 1999)).

REASONS FOR DENYING THE WRIT

Delacruz Fails to Justify a Grant of Writ of Certiorari.

At the outset, Delacruz 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 Delacruz’s true intent—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

a single claim which is not more important today than it has been the last three

decades of rejection. See Sup. Ct. R. 10 (“A petition for 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. Smith, 565 U.S. 1, 11 (2011)

(Ginsburg, J.) (quoting Eugene Gressman et al., Supreme Court Practice 351

(9th ed. 2007)). Delacruz’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”).

II.

Texas’s Statutory Mitigation Instruction Is Constitutional.

Delacruz 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) and (f). He asserts that the

statutory instruction 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. 20–29. 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. 25–26. Delacruz’s challenge is primarily a

facial challenge to the constitutionality of Article 37.071 §§ 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 was viewed with affection, was a good work colleague,

and had a strong attachment to N.V. or to the evidence of his dysfunctional

and unstable family background. Pet. Cert. 26.

Texas’s statutory

repeatedly upheld.

mitigation

instruction

has

been

Texas’s statutory mitigation instruction was codified in 1991. That

instruction, which Delacruz’s jury received,5 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. Art. 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. Art. 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. Art. 37.071 § 2(f)(3).

Texas’s statutory mitigation instruction has been challenged on

numerous occasions, never successfully. See, e.g., Coble, 330 S.W.3d at 296.

Indeed, the very challenge Delacruz raises—that the statutory mitigation

instruction impermissibly limits the scope of evidence considered and that the

instruction implies a causal nexus between the capital murder and the

mitigating evidence—was rejected by the CCA in Coble over a decade ago. Id.;

5 76 RR 6–9; 14 CR 6386–88.

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

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 CCA noted that the challenge had been repeatedly rejected.

Coble, 330 S.W.3d at 296; see, e.g., Cantu v. State, 939 S.W.2d 627, 649 (Tex.

Crim. App. 1997). Furthermore, this Court, even more recently, declined the

opportunity to consider the exact issue Delacruz raises. See Petition for Writ

of Certiorari, Suniga, 140 S. Ct. 375 (No. 18-9564).

Nonetheless, Delacruz 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. 24–25. But Delacruz

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. art. 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, No. AP-76,375, 2014 WL 792038, at *49–50

(Tex. Crim. App. Feb. 26, 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. Id. 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, 748 F.3d at 622; Blue v. Thaler, 665 F.3d 647, 667–68 (5th Cir. 2011);

Beazley v. Johnson, 242 F.3d 248, 259 (5th Cir. 2001). Delacruz claims that the

Fifth Circuit’s decision in Rhoades demonstrates that there is a reasonable

likelihood that a capital murder jury could apply the challenged statutory

mitigation

instruction

way

that

prevented

consideration

constitutionally relevant evidence. See Pet. Cert. 27–28 (citing Boyde v.

California, 494 U.S. 370, 380 (1990)); Rhoades v. Davis, 914 F.3d 357 (5th Cir.

2019). But Delacruz’s reliance on Rhoades is misplaced.

In Rhoades, the Fifth Circuit held that a Texas trial court’s exclusion of

childhood photographs offered as mitigation evidence was improper, because

the trial court too narrowly defined the universe of evidence relevant to moral

blameworthiness. Rhoades, 914 F.3d at 363–67. The Fifth Circuit explained

that although the photos “do not relate specifically to [Rhoades’s] culpability

for the crime he committed, they are mitigating in the sense that they might

serve as a basis for a sentence less than death.” Id. at 366–67 (internal

quotation marks omitted). And the court in that case could not “reconcile the

mandate that a sentencing court may not preclude the jury from considering,

as a mitigating factor, any aspect of the defendant’s character that the

defendant proffers as a basis for a sentence less than death with the exclusion

of the childhood photos by the trial court.” Id. at 367. Ultimately, the Fifth

Circuit held that the exclusion of the photos was harmless error. Id. at 368.

Notably, the Fifth Circuit found no error with the statutory mitigation

instruction, nor did it have occasion to do so. Rhoades, 914 F.3d at 368 n.39.

Rather, the issue in Rhoades was whether certain evidence should have been

admitted for the jury to consider, and whether that evidence was, in fact,

mitigating. Id. at 363–67. Delacruz’s claim that the jury’s possible

interpretation of the statutory mitigation instruction too narrowly limits the

scope of mitigating evidence that was presented is distinguishable, indeed

“qualitatively different.” Id. at 368 n.39. Here, Delacruz raises no issue with

the mitigating evidence that was or was not presented to his jury, he merely

argues that the instruction itself—rather than the trial court—too narrowly

defines the scope. But Delacruz fails to identify any constitutional infirmity in

the 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, 494 U.S. at 380; 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.” Boyde, 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 to review a single part of an instruction “in artificial isolation,” and

to speculate about possible interpretations that might flow therefrom. Id. at

378, 380. Instead, it reviews an instruction in “the context of the overall

charge,” 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.” Id. 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. Boyde, 494 U.S. at

378. This Court rejected Boyde’s claim. Id. at 382. Crucial to its holding was

that Boyde was permitted to—and did—present background and character

evidence during punishment and that his counsel argued in closing that such

evidence warranted a sentence less than death. Id. at 383–84.

As in Boyde, Delacruz was allowed to—and did—present significant

character and background evidence during the punishment phase. Delacruz

presented evidence that he was raised in a chaotic home where his father was

absent, his mother was abusive, and conflict and substance-abuse issues were

prevalent throughout the extended family. See supra Statement of the Case

Section II(B). Delacruz was taken from his family by CPS and placed in a foster

home at a very young age. Id. He was subject to at least one sexual abuse

incident. Id. And he suffered from learning disabilities which affected his

performance in school. Id. Due to these factors, Delacruz presented evidence

that he developed an addiction to alcohol and marijuana and engaged in

criminal activity throughout his life. Id. Delacruz also presented evidence that

he had mild depressive disorder, ADHD, and PTSD, among other mental

health concerns. Id. Even considering all of this evidence, Delacruz was

described as loving, caring, and a hard worker. Id.

Both the prosecutor and the defense assumed this evidence was relevant

in their closing arguments. In fact, the prosecutor told the jury more than once

that in considering the special issues, it was to “consider all the evidence

[they’ve] heard in trial.” 76 RR 13, 14. Delacruz’s counsel “agree[d] with the

[State]” and instructed the jury “to go back and consider all that evidence,” the

“explanation of who [Delacruz] is.” Id. at 17, 19. Defense counsel then argued

to the jury that at the time of N.V.’s death, Delacruz was a “young man, with

low-functioning intelligence, ADHD and executive function issues, an alcohol

addiction, and . . . in a toxic relationship.” Id. at 43. While Delacruz was

physically and sexually abused, taken away from home at a young age, and

experienced intellectual shortcomings, he “still cried for remorse” after N.V.’s

death. Id. at 45–46. And “while there was a perfect storm of events . . . that

happened on that night, [Delacruz] has mourned what happened.” Id. at 46.

Defense counsel urged the jurors to “sentence [Delacruz] to life without the

possibility of parole.” Id. at 50. The State rebutted defense counsel’s closing by

arguing that Delacruz had plenty of opportunities and resources enabling him

to make better life decisions that should not have resulted in N.V.’s death. Id.

at 50, 57–58, 61–62, 67–70. And in conclusion, the prosecutor told the jury that

whether there is “sufficient mitigation, will be your decision.” Id. at 70.

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. Delacruz, 2023 WL

2290863, at *25. There is no reasonable likelihood that Delacruz’s jurors

interpreted the instruction in the hairsplitting way that he claims.

Accordingly, this Court should deny Delacruz’s petition.

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). Delacruz offers 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.

Delacruz relies heavily on this Court’s opinion in Tennard v. Dretke, 542

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. 24–26. 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, No. AP-75,119, 2008 WL 217974, at

*6 (Tex. Crim. App. Jan. 23, 2008) (noting that the court had held “the Supreme

Court’s Tennard decision—which was decided under another statutory scheme

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 a Fifth Circuit requirement

that a federal habeas petitioner establish a nexus between the capital murder

and the 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

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.”).

Delacruz asserts that the statutory mitigation instruction did not permit

his jury to give full effect to evidence that he was viewed with affection, was a

good work colleague, and had a strong attachment to N.V., or to the evidence

of his dysfunctional and unstable family background. Pet. Cert. 26. But he

identifies no support for his argument that his jury could not give effect to such

evidence. 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 to consider as much. 76 RR 13 (“think[] back through

all the evidence and decid[e] if you believe there’s sufficient mitigation”), 17

(“go back and consider all that evidence”). Delacruz’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 v. United States, 527 U.S. 373, 390 (1999)

(“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 marks omitted). Consequently, Delacruz’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

BRENT WEBSTER

First Assistant Attorney General

JOSH RENO

Deputy Attorney General

For Criminal Justice

EDWARD L. MARSHALL

Chief, Criminal Appeals Division

s/ Jefferson Clendenin

JEFFERSON CLENDENIN

Assistant Attorney General

Criminal Appeals Division

Counsel of Record

KATIE ABELL6

Assistant Attorney General

Criminal Appeals Division

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

(512) 936-1400

katie.abell@oag.texas.gov

Counsel for Respondent

6 Undersigned counsel has not yet been admitted to practice before the Court but has

applied for admission.

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.