Opposition — Evans v. Texas

— _s _ —— |

FFR 27 1984

ALEXANDER L. STEVAS

CLERK

NO. 83-5965

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1983

MICHAEL WAYNE EVANS,

Petitioner

V.

THE STATE OF TEXAS,

Respondent

On Petition For Writ Of Certiorari

To The Texas Court Of Criminal Appeals

RESPONDENT'S BRIEF IN OPPOSITION

JIM MATTOX LESLIE A. BENITEZ2*

Attorney General of Texas Assistant Attorney General

Chief, Enforcement Division

DAVID R. RICHARDS PAULA C. OFFENHAUSER

Executive Assistant Assistant Attorney General

Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 475-3281

ATTORNEYS FOR RESPONDENT

* Attorney of Record .

IIl.

QUESTIONS PRESENTED

WHETHER THIS COURT SHOULD CONSIDER GROUNDS

NOT PRESENTED TO THE COURT BELOW?

WHETHER THE STATE SYSTEMATICALLY EXCLUDED

BLACKS, MEXICAN-AMERICANS AND PERSONS BETWEEN

THE AGES OF EIGHTEEN AND TWENTY-ONE FROM

SERVING AS GRAND JURY COMMISSIONERS?

WHETHER THE STATE SYSTEMATICALLY EXCLUDED

BLACKS FROM SERVING ON THE GRAND JURY?

WHETHER THE TRIAL COURT ERRED IN REFUSING TO

PERMIT PETITIONER TO IMPEACH HIS OWN WITNESS

WITH EVIDENCE OF BAD CHARACTER?

WHETHER THE TRIAL COURT'S DENIAL OF

PETITIONER'S REQUEST AT THE PUNISHMENT PHASE

TO PUT INTO EVIDENCE THE FACT THAT PETITIONER

WAS CONVICTED AND SENTENCED TO LIFE

IMPRISONMENT IN A SEPARATE CAPITAL MURDER

CHARGE PRECLUDED PETITIONER FROM PRESENTING

MITIGATING EVIDENCE?

TABLE OF CONTENTS

Page

DERE BPUEGIENUEED « «© oc ec eo ee eee eet hhehlUl tl i

OPINION BELOW . . .* . . . . . . . . . . . . . . o . . . l

JURISDICTION, . . . . . . . . . . . . . . . .* . . . . .* l

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED .... 2

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

SUMMARY OF ARGUMENT . . . . . . . . . . . . * . . . . . 2

REASONS FOR DENYING THE WRIT. .. +. © © © e ee we ee 4

Es THE QUESTIONS PRESENTED FOR REVIEW

ARE UNWORTHY OF THIS COURT'S

ATTENTION * . . . . . . . . . . . . . . . . . 4

II. THIS COURT IS WITHOUT JURISDICTION TO

CONSIDER PETITIONER'S PROPORTIONALITY

CLAIM AND HIS CLAIM THAT THE DEATH

PENALTY AS APPLIED DISCRIMINATES ON

ACCOUNT OF RACE BECAUSE THEY WERE NOT

PRESENTED TO THE TEXAS COURT OF

CRIMINAL APPEALS. . . . .* . * . . . . * . . . 4

III. REVIEW OF PETITIONER'S CLAIMS OF

INTENTIONAL AND SYSTEMATIC EXCLUSION

OF BLACKS, MEXICAN-AMERICANS, AND

PERSONS BETWEN THE AGES OF EIGHTEEN

AND TWENTY-ONE SHOULD BE DENIED AS

ONLY QUESTIONS OF EVIDENCE AND FACTUAL

FINDINGS ARE INVOLVED, . . . . . . . .* . . . . 5

IV. PETITIONER'S CLAIM THAT THE TRIAL COURT

ERRED IN REFUSING TO PERMIT PETITIONER

TO IMPEACH HIS OWN WITNESS FAILS TO

STATE A CLAIM OF CONSTITUTIONAL DIMENSION .. 6

v. THE COURT BELOW CORRECTLY DETERMINED THAT

PETITIONER WAS NOT PRECLUDED FROM PRE-

SENTING RELEVANT MITIGATING EVIDENCE AT

a Sees. Ps « © 6 & 6 ie 6 *~ es = & 7

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . 8

INDEX OF AUTHORITIES

Cases

Beck v. Washington, 369 U.S. 541 (1962) ... .

Cardinale v. Louisiana, 394 U.S. 437 (1969) ..

Castenada v. Partida, 430 U.S. 482 (1977) ...

Chambers v. Mississippi, 410 U.S. 284 (1973). .

Crowell v. Randell, 10 Pet. 368 (1836). ... .»

Eddings v. Oklahoma, 455 U.S. 104 (1982)... .

Evans v. State, 656 S.W.2d 65

(Tex.Crim.App. 1983)(en banc). « « « «+ « «

Godchaux Co., Inc. v. Estopinal,

251 UeS-e 179 (1919). . . . . . . . . . . .

Hill v. California,. 401 U.S. 797 (1971) ....

Illinois v. Gates, 103 S.Ct. 2317 (1983)... .

Lockett v. Ohio, 438 U.S. 586 (1978). .....

Owings v. Norwood's Lessee, 5 Cranch 344 (1809)

Pulley v. Harris, 52 L.W. 414

(Jan. 23, 1984). . . . . . . . . * . . . .

2GC0R Ve. AriBenes 4210 GsBs 351. C1973) «6 © ©

Statutes

28 U.S.C. Sl2ZS7(3S)e. we ws evo een eveevneves

Tex. Code Crim. Proc. Ann. art. 37.071 (Vernon)

Tex. Code Crim. Proc. Ann. art. 38.28 (Vernon).

Rule 17, Rules of the Supreme Court ....«.-.

- iii -

NO. 83-5965

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1983

MICHAEL WAYNE EVANS,

Petitioner

Vv.

THE STATE OF TEXAS,

Respondent

On Petition For Writ Of Certiorari

To The Texas Court Of Criminal Appeals

RESPONDENT'S BRIEF IN OPPOSITION

TO THE HONORABLE JUSTICES OF THE SUPREME COURT:

NOW COMES the State of Texas, Respondent herein, by and

through its attorney, the Attorney General of Texas, and files

this Brief in Opposition.

OPINION BELOW

The opinion of the court of Criminal Appeals of Texas, which

is reported at 656 S.W.2d 65 (Tex.Crim.App. 1983)(en banc), is

reproduced in Appendix A to the Petition for Writ of Certiorari.

The Texas Court of Criminal Appeals denied the Motion for leave

to file Petitioner's Motion for Rehearing without written order

on September 21, 1983.

JURISDICTION

Petitioner seeks to invoke the jurisdiction of this Court

under the provisions of 28 U.S.C. §1257(3).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves the Sixth, Eighth and Fourteenth

Amendments to the Constitution of the United States.

STATEMENT OF THE CASE

The record reflects that Petitioner was indicted on August

22, 1977, in.Dallas County, Texas, for the murder of Elvira

Guerrero, while in the course of committing and attempting to

commit the offense of robbery. Petitioner was initially tried on

October of 1977 in the 103rd Judicial District Court of Dallas

County, Texas and was found guilty of the capital offense. His

conviction was reversed by the Texas Court of Criminal Appeals on

September 10, 1980,.and the cause remanded for new trial.

Petitioner's new trial began on September 28, 1981, and on

October 1, 1981, the jury found Petitioner guilty of the capital

offense. On October 8, 1981, after a punishment hearing, the

jury answered affirmatively the special issues suDmitted pursuant

to Article 37.071, V.A.C.C.P. Accordingly, punishment was

assessed at death. Petitioner appealed this conviction and

sentence to the Court of Criminal Appeals of Texas, which, on May

25, 1983, affirmed the conviction and sentence. Rehearing was

denied on September 21, 1983.

SUMMARY OF ARGUMENT

There are no special or important reasons to review this

case. The issues presented involve only the application of well

settled constitutional principles to the facts involved herein.

This Court is without jurisdiction to consider Petitioner's

proportionality claim and his claim that the death penalty as

applied discriminates on the basis of race because Petitioner has

not presented the precise issues raised herein to the Texas Court

of Criminal Appeals.

Petitioner's claims of intentional and systematic exclusion

of Blacks, Mexican-Americans and persons between the ages of

eighteen and twenty-one should be denied as only questions of

evidence and factual findings are involved. The court below,

correctly applying the test established by this Court in

Castenada v. Partida, 430 U.S. 482 (1977), held that Petitioner

failed to present sufficient evidence to demonstrate a prima

facie case of underrepresentation.

Petitioner has failed to demonstrate a claim of

constitutional dimension with his contentions that the trial

court committed fundamental error in refusing to _ permit

Petitioner to impeach his own witness with evidence of prior

convictions. Texas law expressly excludes the use of bad

character to impeach a party's own witness. Further, the facts

and circumstances of the present case are significantly different

than those presented to this Court in Chambers v. Mississippi,

410 U.S. 284 (1973).

Petitioner's claim that he was prevented from presenting

mitigating evidence relevant to the special issues is wholly

conclusory. The court below correctly held that Petitioner

failed to demonstrate the exclusion of any relevant mitigating

evidence at the punishment phase.

This Court had held that proportionality review is not

constitutionally required in every death penalty case. In so

doing, the Court expressly reaffirmed the Texas’ capital

sentencing statute. Further, Petitioner's conclusory allegations

fail to demonstrate any discrimination on the basis of race in

the application of the death penalty in Texas.

_— = —

REASONS FOR DENYING THE WRIT

I. THE QUESTIONS PRESENTED FOR REVIEW ARE

UNWORTHY OF THIS COURT'S ATTENTION.

Rule 17 of the Rules of the Supreme Court provides that

review on writ of certiorari is not a matter of right but of

judicial discretion, and will be granted only when there are

special and important reasons therefore. Petitioner has advanced

no special or important reason in this case and none exists.

Further, this case presents only the question of whether

well-settled constitutional principles were correctly applied to

the facts of this case. Thus, no important question of law is

presented here.

II. THIS COURT IS WITHOUT JURISDICTION TO

CONSIDER PETITIONER'S PROPORTIONALITY CLAIM

AND HIS CLAIM THAT THE DEATH PENALTY AS

APPLIED DISCRIMINATES ON ACCOUNT OF _ RACE

BECAUSE THEY WERE NOT PRESENTED TO THE TEXAS

COURT OF CRIMINAL APPEALS.

The cases are legion that this Court will not decide issues

raised for the first time on petition for writ of certiorari or

on appeal, and that the Court will not decide federal questions

not raised and decided in the court Dlow. E.g., Illinois v.

Gates, 103 S.Ct. 2317, 2321-23 (1983): Tacon v. Arizona, 410 U.S.

351, 352 (1973); Hill v. California, 401 U.S. 797, 805-06 (1971);

Cardinale v. Louisiana, 394 U.S. 437, 438 (1969). In

articulating this requirement, the Court has_ stressed _ the

long-standing nature of the rule: "“[I]n Crowell v. Randell, 10

Pet. 368 (1836), Justice Story reviewed the earlier cases

commencing with Owings v. Norwood's Lessee, 5 Cranch 344 (1809),

and come to the conclusion that the Judiciary Act of 1789, 20,

Section 25, 1 Stat. 85, vested this Court with no jurisdiction

unless a federal question was raised and decided in the state

court below. ‘If both of these do not appear on the record, the

appellate jurisdiction fails.' 10 Pet. 368, 391." Cardinale v.

Louisiana, 394 U.S. at 439. To properly invoke the jurisdiction

_ ——

ws

of the Court, it is crucial that the federal question not only be

raised in the state proceedings, Dut that it be raised at the

proper point. Beck v. Washington, 369 U.S. 541, 550 (1962);

Godchaux Co., Inc. v. Estopinal, 251 U.S. 179, 181 (1919).

Petitioner‘s contentions that the Texas death penalty

scheme is constitutionally invalid because it fails to provide a

procedures for proportionality review and that the death penalty

as applied in Texas discriminates on the basis of race were not

raised in the court Delow. Thus, Petitioner's claims were not

adequately presented to and decided by the state court Delow.

Respondent submits that in view of Petitioner's failure to

sufficiently and properly raise the issues presented here below,

the failure of the state court to pass on these issues, the

desirability of giving the state the first opportunity to address

the issues, the application for certiorari should be denied for

want of jurisdiction. Cardinale v. Louisiana, 394 U.S. at 439.

In any event, this Court held in Pulley v. Harris, 52 L.W.

414 (Jan. 23, 1984), that the comparative proportionality review

is not constitutionally required in every case in which the death

penalty is imposed ana the defendant requests it. Further,

Petitioner's allegations that the death penalty as applied in

Texas discriminates on account of race because more Blacks and

Hispanics are prosecuted and convicted of capital murder than are

Caucasians are self-serving, conclusory and totally unsupported

by any specific allegations.

III. REVIEW OF PETITIONER'S CLAIMS OF INTENTIONAL

AND SYSTEMATIC EXCLUSION OF BLACKS,

MEXICAN-AMERICANS, AND PERSONS BETWEEN THE

AGES OF EIGHTEEN AND TWENTY-ONE SHOULD BE

DENIED AS ONLY QUESTIONS OF EVIDENCE AND

FACTUAL FINDINGS ARE INVOLVED.

The questions presented for review relative to Petitioner's

claims that Blacks, Mexican-Americans, and persons between the

ages of eighteen and twenty-one were intentionally and

systematically excluded from serving on grand juries and from

By.

serving as grand jury commissioners do not present subDstantial

questions worthy of this Court's review. In Castenada v.

Partida, 430 U.S. 482, 494 (1977), this Court established the

test Dy which to determine whether an equal protection violation

has occurred in the context of grand jury selection:

{I]n order to show that an equal protection

violation has occurred in the context of

grand jury selection, the defendant must show

that the procedure employed resulted in

Substantial underrepresentation of his race

Or of the identifiable group to which he

belongs. The first step is to establish that

the group is one that is a recognizable,

distinct class, singled out for for different

treatment under the laws, as written or as

applied. Next, the Gegree of

underrepresentation must be proved, by

comparing. the proportion of the group in the

total population to the Proportion called to

serve as grand jurors, over a significant

period of time.

(Citations omitted). Applying the Castenada test, the Texas

Court of Criminal Appeals held that Petitioner failed to present

sufficient evidence to prove underrepresentation. Evans v.

State, 625 S.W.2d at 66. The issues presented involve nothing

more than the state appellate court's application of

well-established principles to a unique factual situation.

IV. PETITIONER'S CLAIM THAT THE TRIAL COURT ERRED

IN REFUSING TO PERMIT PETITIONER TO IMPEACH

HIS OWN WITNESS FAILS TO STATE A CLAIM OF

CONSTITUTIONAL DIMENSION,

Petitioner contends that he was denied a fundamentally fair

trial by the trial court's refusal at the guilt-innocence stage

to permit defense counsel to impeach a defense witness by

offering evidence of the witness’ prior convictions. He argues

that he had a right to such evidence under Texas law and that the

court's refusal to permit such evidence violated the principles

as established by this Court in Chambers v. Mississippi, 410 U.S.

284 (1973). Petitioner's claims are wholly without merit.

The court below expressly found that proof of prior

convictions is a form of impeachment by showing bad character.

Texas law expressly excludes evidence of a witness’ bad character

for impeachment. Evans v. State, 625 S.W.2d at 66. See Tex.

Code Crim. Proc. Ann. art. 38.28 (Vernon).

Further, the facts and circumstances of the present case are

Significantly different from those presented in Chambers.

Chambers involved the exclusion of hearsay evidence critical to

the accused's defense and bearing substantial Assurance of

trustworthiness. As Petitioner concedes in his petition: the

evidence excluded by the trial court was useful “to establish or

disestablish {sic} credibility" of the defense witness.

Respondent submits that Petitioner's claim of constitutional

error is meritless.

V. THE COURT BELOW CORRECTLY DETERMINED THAT

PETITIONER WAS NOT PRECLUDED FROM PRESENTING

RELEVANT MITIGATING EVIDENCE AT THE

PUNISHMENT PHASE.

In Lockett v. Ohio, 438 U.S. 586 (1978), this Court held

that the sentencer in a capital case must be permitted to

consider any relevant mitigating factors. In so holding,

however, this Court expressly noted that “nothing in [the

court's] opinion limits the traditional authority of a court to

exclude, as irrelevant, evidence not bearing on the defendant's

character, prior record, or the circumstances of his offense."

438 U.S. at 605 n.12.

Following the Lockett guidelines, the court below held that

Petitioner failed to demonstrate, other than by bare

conclusion, that evidence of his conviction and life sentence

for a separate and distinct murder, was relevant mitigating

evidence. In so holding the court below stated:

The next two grounds of error complain

of exclusion of evidence of appellant's

conviction and life sentence for another

murder. He again argues the evidence was

admissible under Art. 37.0171, supra, and

quotes from the opinion in Jurek v. State,

-7-

522 S.W.2d 934, and Jurek v. Texas, 428 U.S.

262, 96 S.Ct. 2950, 49 L.Ed.2d 929, to the

effect that the jury can consider the range

and severity of prior criminal conduct of the

accused and should have all relevant

information before it. The fact of

conviction and the decision of another jury

of the punishment appropriate for a different

murder are not evidence of appellant's

conduct. If the conviction and punishment

had occurred prior to the instant offense,

they would be relevant to show a lack of

rehabilitation, but that is not the situation

here. Although appellant makes the assertion

that this evidence “was relevant on all 3

[punishment stage] issues," he gives no

reasons to illustrate this bare conclusion.

We perceive no relevance under the facts of

this case and overrule the grounds of error.

Evans v. State, 625 S.W.2d at 67.

Petitioner again presents nothing more than his bare

conclusion that the evidence “was relevant to all three (3)

[punishment] issues." His claim that he was precluded from

presenting relevant mitigating evidence is thus, not worthy of

this Court's review. Compare, Eddings v. Oklahoma, 455 U.S. 104

(1982).

CONCLUSION

For these reasons, Respondent respectfully requests that the

petition for writ of certiorari be denied.

Respectfully submitted,

JIM MATTOX

Attorney General of Texas

DAVID R. RICHARDS

Executive Assistant Attorney General

LESLIE A. BENITEZ

Assistaf}t Attorney General

Chiefy Enforcement Division

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 475-3281

ATTORNEYS FOR RESPONDENT

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