Opposition Brief — Brewer v. Quarterman

% July [T,

No. 05-11287

IN THE SUPREME COURT OF THE UNITED STATES

BRENT RAY BREWER,

Petitioner,

Vv.

NATHANIEL QUARTERMAN, Director,

Texas Department of Criminal Justice,

Correctional Institutions Division,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

GREG ABBOTT GENA BUNN

Attorney General of Texas Chief, Postconviction

Litigation Division

KENT C. SULLIVAN

First Assistant Attorney Gencral *EDWARD L. MARSHALL

Deputy Chief, Postconviction

DON CLEMMER Litigation Division

Deputy Attorney General

For Criminal Justice P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

*Counsel of Record (512) 936-1400

ATTORNEYS FOR RESPONDENT

QUESTION PRESENTED

Whether the lower court correctly upheld the state court’s reasonable decision

that Brewer’s jury was not deprived of a constitutionally sufficient vehicle for

considering and giving effect to his mitigating evidence. 7

TABLE OF CONTENTS

Page

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eT EE a So scd dvcapedadesvdcrsbanacstecdostbiuteants 1

1. OE 25h. ce kS 52> eb ances base Gh paced ide onsen baaot 1

II. Direct Appeal and Postconviction Proceedings ................... 2

IE. kb 660-55 054s nb do deed Sadvah¥ebndueaneksoa> ki condacdbeane 6

I, The Question Presented for Review Is Unworthy of the Court’s

SY 5 bee sa.dn odin db bias rows senkass kes bed ovelwaeree 6

II. The Lower Court Correctly Determined That Brewer’s Jury Was

Able to Give Sufficient Effect to His Mitigating Evidence Within

the Scope of the Special Issues. ........ 2.0... 2... ccc cee eee 8

A. Penry I and Jurek: most types of mitigating evidence

can be considered in answering the former special

FE haw 5s CA eS us Edis ead eaek edd arevcleee comedadans 9

B. Tennard and constitutional relevance ..................... 12

C. Smith's “full effect” requirement means nothing more than

SMUIEEE wh ein CGdaE lun ds vakiecedunsteih ckoeeuca 13

D. The court below properly rejected Brewer’s Penry I

EEN. Soho h een tuen’s bee Picd ke due Coeds wbesédwetavenens 16

Ill. The State Court Reasonably Rejected Brewer’s Penry I Claim. ..... 22

NO, 0. fic FECES 6-055 Pack buN ad os Rech oRUR crab bk eeUede tei bioowebes 22

-ii-

TABLE OF AUTHORITIES, Continued

Cases Page

Bigby v. Dretke, 402 F.3d 551 (Sth Cir. 2005) 2.2.2... ccc cece cee eee eee passim

Booth v. Maryland, 462 US. 496 (1967) 2.0... ccc ccc ccccccccccccccccvescsseses 9

Daypae ve. Camperitia, GGUS. STOCIIID) once icc cc ceccccccccvcccvccveccss 10,14

California v. Brown, 479 U.S. 538 (1987) ............25-. ten tt ee eeeeeseeseeees )

Ce Oe Ce, Be Fer TOE oo viiceccciccccccccnctowavobdccvices 16

Coble v. Dretke, 444 F.3d 345 (Sth Cir. 2006) .......... 0... c cece eee eee passim

Cole v. Dredg, 416 F.36 G06 (Sta Ciz. 2005). occ cc ccc ccccccsvccccsceces 11,12

Demouchette v. Collins, 972 F.2d 651 (Sth Cir. 1992) .. 0... eee eee e eee e ee 19

_ Eddings v. Oklahoma, 455 U.S. 104 (1982) ......... 0. ccc cc cece een ecceees 3,9,22

Franklin v. Lynaugh, 487 U.S. 164 (1988) ... 2.2.2 eee cee cee cence eee passim

Se a ee Nee PO ID 6 0555.6 a dics teauaedcdinctiacdecssouve passim

Starris v. Cockrell, 313 F346 236 (Sila Cis. 2002) 2. ccc cciccccccsccccccccceecs 16

Hernandez v. Johnson, 248 F.3d 344 (Sth Cir. 2001) ............ 00020. c eee ee eee 19

OO Se ee ee SOME vik bis paedadics cvuckevabievaveuetdes 15

Jacobs v. Scott, 31 F.3d 1319 (Sth Cir. 1994) ......... Rai asekdses Cenwons 16,17,18

sees BCs, G7 Fe SAPO Ge. BONED nc sc ccvccccvccecscidecsctvicces 16

TN A TU, Se as SOI oo ov ce cb Ch edn vn vc cw wevdueee coatecwe 5,14

ek NN I os Fa cu as cb Gene ccubsecdacabecicease passim

Lachey v. Scott, 20 F.3d 406 (Sta Cis. 1994)... ccc ccc ccccccccccccccccccecs 17

Gg I 6.6 5 Wh hob bv twdivosn vavscciehdviews vase 3,22

OE Fs SEO Wi Oe COD 5b 0n 6 60 kbc ions 06u buwe Vee divecsces 10

Lucas v. Johnson, 132 F.3d 1069 (Sth Cir. 1998) .. 2.2.0... cece eee 19

Joiner v. State, 825 S.W.3d 701 (Tex. Crim. App. 1992) ...........cccecececece. 22

McKoy v. North Carolina, 494 U.S. 433 (1990) 2.2... ccc cee eens 13

Motley v. Collins, 18 F.3d 1223 (Sth Cir. 1994) ......... ccc ccc cece eee eens 17

-ili-

TABLE OF AUTHORITIES, Continued

Cases Page

Neal v. Puckett, 286 F.3d 230 (Sth Cir. 2002) ........000ccccecceeccceeeeeeeeees 8

Pe BOE Fie Gs SP EOO ED 6 b.0 obs emcccccocvectcdeccuscesanctes 9

PU M TAI, S58 TI. FOE CHOU 5 on cc ccc cesaascccssccescesevvcseess 13,14

Fa EE SS UB. FOr APOE knee cies triwbnovesncivcccicosducs passim

Robertson v. Cockrell, 325 F.3d 243 (Sth Cir. 2003) (en banc) ...........0 cece 17

Robison v. Johnson, 151 F.3d 256 (Sth Cir. 1998) ........ ccc ccccccccccccbdecces 19

Santellan v. Cockrell, 271 F.3d 190 (Sth Cir. 2001) 2.0... cee cc ccc eee cece 8

Skipper v. South Carolina, 476 U.S. 1 (1986) ...... 6... ccc cece cc eee ee eect eens 9

Smith v. Cockrell, 311 F.3d 661 (Sth Cir. 2002) ........ 2... c cece cee cee eee passim

Smith v. Texas, 543 U.S. 1 et EE AAT OEE E foe SMe SEG MRP EPS ERM ae SE se 13

Tennard v. Dretke, 542 U. 654) cs ules © ies 6 keeisnce dead o wack passim

es PO OD ook 5 chav beWbcccdeecobeddeens® veeeen 7

Woodford v. Visciotti, fa shies onubiikae Ab add ca oaene cos khbleeaes 7

Woodson v. North Carolina, 428 US. 280 (1976) ....0.0.cccccceceeeeencecues 8,9

Yarborough v. Alvarado, 541 U.S. 652 (2004) ........ 06. ccc cc cece eee eee eeees 8

Constitutions, Statutes and Rules

De eT ee ie si ade dah suede bathed biwedadde passim

28 U.S.C. § 2254 (West 2005) ............. exons S606 bbb ei Veaddaces cums passim

TEX. CODE Crim. Proc. Art. 37.071 (West 1991) ........... cece cee ee eee: 3

PT EE b nk b daixd 0b cK SURE Oaewedled bod bbeKed’s nb sbdime cee 6

Miscellaneous

Anti-Terrorism and Effective Death Penalty Act of 1996 (“the AEDPA”)............ 6

THE AMERICAN COLLEGE HERITAGE DICTIONARY 595 (3d ed. 2000) ....5.......... 20

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RESPONDENT?’S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

This is a federal habeas corpus proceeding in which Petitioner Brent Ray Brewer'

unsuccessfully challenged his presumptively valid state capital murder conviction and

sentence of death pursuant to 28 U.S.C. § 2254. In 2004, the district court below

conditionally granted the writ regarding the punishment phase of Brewer’s trial, but denied

relief as to all other claims. Brewer v. Dretke, No. 2:01-CV-112-J, 2004 WL 1732312 (N.D.

Tex. 2004) (unpublished order); PA:B1-11. The Director appealed and the United States

Court of Appeals for the Fifth Circuit reversed. /d., 442 F.3d 273 (Sth Cir. 2006); PA:A1-9.

In the instant petition, Brewer claims that the court of appeals erred when it held that the state

court did not unreasonably decide his mitigating evidence was within the reach of the jury

in answering the former Texas special issues. However, Brewer is wrong and this Court

should deny certiorari review.

STATEMENT OF THE CASE

I. Facts of the Crime

The Court of Criminal Appeals of Texas succinctly summarized the evidence proving

Brewer’s guilt in its direct appeal opinion:

The evidence adduced at trial shows that on April 26, 1990[, Brewer] and

Kristie Lynn Nystrom convinced the deceased to give them a ride in his truck.

[Brewer] rode in the back seat. After traveling approximately one block,

Respondent Nathaniel Quarterman will be referred to as “the Director.” The

following abbreviations are used herein: “PA” refers to the appendices to Brewer’s petition; “RR”

refers to the Reporter’s Record of transcribed trial proceedings; “CR” refers t to the Clerk’s Record

of pleadings and documents field with the court during trial; “SX” refers to the numbered exhibits

offered by the State and admitted into evidence at trial; “DX” refers to the numbered exhibits offered

by the defense and admitted into evidence at trial; “SHCR” and “SuppSHCR” refer to the Clerk’s

Record and Supplemental Record of pleadings and documents filed with the court during state

habeas corpus proceedings.

v : “—

[Brewer] stabbed the deceased several times in the neck while Nystrom held

the deceased’s right arm to prevent him from fighting back. The deceased’s

jeans were pulled down over his buttocks and a blood transfer stain from his

wallet was found on his underwear. Nystrom was later seen with the

deceased’s blood-soaked wallet and truck keys. Further, [Brewer] stated to

Skee Callan [sic] that he had killed a man for $140 — the same amount of

money that the deceased was believed to have at the time of his death.

Michelle Francis, [Brewer]’s and Nystrom’s roommate, testified that neither

[Brewer] nor Nystrom had any money earlier that day. However, both were

later able to purchase bus tickets to Dallas.

Brewer v. State, No. 71,307, slip op. at 2-3 (Tex. Crim. App. 1994) (unpublished opinion).

In addition, an FBI forensic serologist determined that DNA from blood found on the

steering wheel of the victim’s truck was consistent with Brewer’s DNA. 16 RR 342-60; SX

1B, 31, 40, 68A, 81A. More importantly, a bloodstained butterfly knife was found just

outside the front passenger door of the victim’s truck. 15 RR 24, 81, 135-38, 167, 170-71;

SX 1, 8-9, 30-31, 89B. DNA from blood found on the knife matched both Brewer and the

victim. 16 RR 359-60; SX 31. An FBI fingerprint expert also determined that Brewer’s

fingerprints and palm print were found on the right rear outside door handle as well as the

right rear door frame of the victim’s truck. 16 RR 400-03, 419-20; SX 4, 105-08. Brewer’s

bloody fingerprint was also found on the butterfly knife. 16 RR 408-09; SX 1, 31. Brewer

was seen after the murders with a cut on his hand. 16 SR 433-34, 440-41; 17 RR 456-57; SX

69, 85. Finally, both Brewer and Nystrom were seen soaked with blood the night of the

murder. 16 RR 433-35; 17 RR 454-55.

Il. Direct Appeal and Postconviction Proceedings

On direct appeal, the Court of Criminal Appeals applied the appropriate Supreme

Court authority to determine “whether the [deliberateness and future-dangerousness] issues

provided a vehicle for the jury to give effect to [Brewer’s mitigating] evidence.”’ Brewer

v. State, slip op. at 13-14 (citing Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry J), Franklin

v. Lynaugh, 487 U.S. 164 (1988) (plurality opinion), Eddings v Oklahoma, 455 U.S. 104

(1982), Lockett v. Ohio, 438 U.S. 586 (1978) (plurality opinion), and Jurek v. Texas, 428

U.S. 262 (1976) (plurality opinion)). The state court summarized Brewer’s three categories

of mitigating evidence as follows:

(1) [Brewer] was not mentally retarded,[*] but was involuntarily committed on

January |, 1990, for “major depression, single episode, without psychotic

features, polysubstance abuse.” The examining physician based his opinion

on a suicide note [Brewer] wrote to his mother. On January 25, [Brewer]

signed a request for voluntary admission to Big Springs [sic] State Hospital for

fourteen days.‘

. The trial court instructed the jury, pursuant to TEx. CODE CRIM. PROC. Art. 37.071

(West 1991), as follows:

CR 289-90. Special Issue No. | is referred to herein as the “deliberateness” i: sue, while Special

SPECIAL ISSUE NO. 1

Do you find from the evidence beyond a reasonable doubt that the conduct of the

defendant, BRENT RAY BREWER, that caused the death of the deceased, Robert

Doyle Laminack, was committed deliberately and with the reasonable expectation

that the death of the deceased would result?

SPECIAL ISSUE NO. 2

Do you find from the evidence beyond a reasonable doubt that there is a probability

that the defendant, BRENT RAY BREWER, would commit criminal acts of violence

that would constitute a continuing threat to society?

Issue No. 2 is referred to as the “future-dangerousness” issue.

. “Brewer has a tested IQ of 115, placing him in roughly the ninety-fourth percentile

of human intelligence.” PA:A9 n.25; 18 RR 652.

~

. ... [Brewer] chose not to enter the records from Big Spring State Hospital into

evidence. (Rather, Brewer called China Long, a justice of the peace in Howard County, Texas, to

-*

(2) [Brewer] came from an abused background where he was ignored by both

his father and step-father. He did not have a relationship or live with his real

father until after he was fifteen-years old.° [Brewer]’s father hit him on

several occasions, once with the butt of a pistol and once with a flashlight.

[Brewer]’s father frequently beat his mother. [Brewer]’s father had once told

him, “if you ever draw your hand back, you’d better kill me because I’1! kill

you.” .

(3) [Brewer] smoked marijuana when he was a teenager.[°]

Id. at 15. The state court concluded that the special issues provided an adequate vehicle for

the jurors to give effect to Brewer’s mitigating evidence. Jd. at 15-16. This Court denied

certiorari review. Brewer v. Texas, 514 U.S. 1020 (1995).

Brewer then obtained appointed counsel in state court and filed a habeas corpus

application on April 23, 1997.’ SHCR 15-24, 37-221. The trial court declined to hold an

evidentiary hearing and, on October 20, 2000, entered findings of fact and conclusions of law

recommending that relief be denied. /d. at 340; SuppSHCR 3-7. Thereafter, on January 31,

2001, the Court of Criminal Appeals adopted the trial court’s findings and denied habeas

testify that she signed the commitment order. 18 RR 755-59; DX 5.]

’ [Brewer] did see his biological father when he was five months old and for a short

period of time when he was five years old. There is no evidence of abuse during either of these

encounters.

. There was also evidence Brewer was obsessed with his co-defendant and girlfriend,

Nystrom, and allowed her to control him. 18 RR 791-92, 798, 816, 825-27, 838. As the court below

_ noted, “[t}his evidence was not medical and did not go to Brewer’s volition; it consists merely of lay

observations that the woman was the alpha partner in the relationship.” PA:A3 n.2.

. Brewer's initial attempt to obtain postconviction relief occurred in federal district

court, where he unsuccessfully requested federal funding to exhaust his state court remedies. After

the federal courts declined to intervene, the proceedings were dismissed without prejudice. Brewer

v. Johnson, No. 96-11188 (Sth Cir. 1996) (unpublished order); Brewer v. Scott, No. 2:95-CV-125

(N.D. Tex. 1997) (same); Brewer v. Johnson, 139 F.3d 491 (Sth Cir. 1998).

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¥

relief. Ex parte Brewer, No. 46,587-01 (Tex. Crim. App. 2001) (unpublished order).

Brewer filed a habeas corpus petition in the federal district court on May 7, 2001, and

the Director answered on June 28, 2001.* Ultimately, after the district court requested

additional briefing concerning Tennard v. Dretke, 542 U.S. 274 (2004), relief was partially

granted. PA:B3-5. As discussed supra, the Director appealed and the lower court reversed,

holding that the state court correctly determined Brewer’s mitigating evidence was not

beyond the effective reach of the jury when it answered the former Texas special issues.

PA:AS5-9.

The court of appeals first noted that, “although some relevant evidence may receive

constitutionally insufficient mitigating effect under the standard Texas special issues (e.g.,

evidence of mental retardation), other evidence is quite capable of being given mitigating

effect through that methodology.” PA:AS. “For the mitigating evidence to be within the

effective reach of the jury in answering the special issues, the special interrogatories must

be capable of giving relevant evidence constitutionally sufficient mitigating effect.” Jd. “To

determine whether a jury has sufficient vehicles for considering mitigating evidence, the

habeas court must determine whether ‘there is no reasonable likelihood that the jury would

have found itself foreclosed from considering the relevant aspects of the [mitigating

evidence].’” PA:A6 (quoting Johnson v. Texas, 509 U.S. 350, 368 (1993)).

The lower court held that Brewer’s “evidence of one hospitalization for a single

episode of non-psychotic major depression” was not beyond the reach of the jury because it

. Subsequently, Brewer unsuccessfully requested permission to raise additional claims.

Brewer filed an amended petition “under protest” on September 30, 2002, and appealed the district

court’s order denying leave to amend. The court of appeals dismissed the appeal for lack of

jurisdiction on February 5, 2003. Brewer v. Cockrell, No. 02-11310 (Sth Cir. 2003) (unpublished

order).

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was not “chronic and/or immutable.” PA:A7 (citing Bigby v. Dretke, 402 F.3d 551, 571 (Sth

Cir. 2005) (holding Bigby’s “chronic and severe” schizophrenia, which “cannot be

adequately controlled or treated,” made him unable “to conform his behavior” or “avoid

criminal behavior” and, thus, was beyond the scope of the special issues)). The court of

appeals also held that Brewer’s evidence of a “troubled childhood may, as a result of its

temporary character, fall sufficiently within the ambit of the special dangerousness

instruction.” PA:A6-7 & n.16 (citing Graham v. Collins, 506 U.S. 461, 475-76 (1993)).

Finally, the court below explained that “a jury can adequately incorporate evidence of

short-term mental illness and substance abuse into its decision calculus.” PA:A8.

The lower court denied rehearing on March 1, 2006. PA:A1.” The instant petition for

certiorari review followed.

f ARGUMENT

I. The Question Presented for Review Is Unworthy of the Court’s Attention.

The Rules of the Supreme Court provide that review on writ of certiorari is not a

matter of right, but of judicial discretion, and will be granted only for “compelling reasons.”

Sup. CT. R. 10 (West 2005). Brewer advances no compelling reason in this case, and none

exists. Moreover, this proceeding is governed by the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), which provides in relevant part that:

(d) An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect to

any claim that was adjudicated on the merits in State court proceedings unless

the adjudication of the claim —

(1) resulted in a decision that was contrary to, or involved an

"7 On rehearing, the court of appeals withdrew its earlier opinion, Brewer v. Dretke, 410

F.3d 773 (Sth Cir. 2005), and substituted the current opinion in its place. PA:A\1.

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~

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding.

(e)(1) In a proceeding initiated by an application for a writ of habeas corpus

by a person in custody pursuant to the judgment of a State court, a

determination of a factual issue made by a State court shall be presumed to be

correct. The applicant shall have the burden of rebutting the presumption of

correctness by clear and convincing evidence.

28 U.S.C. § 2254 (West 2005).

This Court has explained that a state court decision is “contrary” to established federal

law if the state court “applies a rule that contradicts the governing law set forth in [the

Court’s]} cases,” or confronts facts that are “materially indistinguishable” from a relevant

Supreme Court precedent, yet reaches an opposite result. Williams v. Taylor, 529 U.S. 362,

405-06 (2000). Alternatively, a state court “unreasonably applies” clearly established federal

law if it correctly identifies the governing precedent but unreasonably applies it to the facts

of a particular case. /d. at 407-09.

A federal habeas court’s inquiry into unreasonableness should be objective rather than

subjective, and a court should not issue the writ simply because that court concludes in its

independent judgment that the relevant state court decision applied clearly established federal

law erroneously or incorrectly. Williams, 529 U.S. at 409-11. Rather, federal habeas relief.

is only merited where the state court decision is both incorrect and objectively unreasonable,

“{w]hether or not [this Court] would reach the same conclusion.” Woodford v. Visciotti, 537

U.S. 19, 27 (2002); Williams, 529 U.S. at 411. As the Court recently explained:

[T]he range of reasonable judgment can depend in part on the nature of the

Te

relevant rule. Ifa legal rule is specific, the range may be narrow. Applications

of the rule may be plainly correct or incorrect. Other rules are more general,

and their meaning must emerge in application over the course of time.

Applying a general standard to a specific case can demand a substantial

element of judgment. As a result, evaluating whether a rule application was

unreasonable requires considering the rule’s specificity. The more general the

rule, the more leeway courts have in reaching outcomes in case by case

determinations.

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). —

Finally, it is the state court’s “ultimate decision” that is to be tested for

unreasonableness, “not every jot of its reasoning.” Santellan v. Cockrell, 271 F.3d 190, 193

(Sth Cir. 2001); see also Neal v. Puckett, 286 F.3d 230, 246 (Sth Cir. 2002) (en banc)

(holding that a federal court’s “focus on the ‘unreasonable application’ test under section

2254(d) should be on the ultimate legal conclusion that the state court reached and not on

whether the state court considered and discussed every angle of the evidence”).

Il. The Lower Court Correctly Determined That Brewer’s Jury Was Able to Give

Sufficient Effect to His Mitigating Evidence Within the Scope of the Special

Issues. ;

In Penry I, this Court was forced to reconcile its plurality opinions in Woodson v.

North Carolina, 428 U.S. 280, 303-04 (1976) (which requires that a capital-sentencing

authority be allowed to consider mitigating circumstances), Jurek, 428 U.S. at 276

(explaining that the pre-1991 Texas special issues — deliberateness and future

dangerousness —allowed Texas juries to consider mitigating circumstances), and the unique,

double-edged mitigating circumstances presented in Penry / itself (mental retardation, brain

damage, and severe child abuse). 492 U.S. at 320-25. The resultant decision was a carefully

crafted and, ultimately, case-specific compromise.

A. Penry I and Jurek: most types of mitigating evidence can be

considered in answering the former special issues.

At the root of Penry / are found the competing interests involved in capital sentencing:

the requirement for an individualized determination of moral culpability based on both

aggravating and mitigating factors, and the need to adequately guide and channel a jury’s

consideration of these factors. The Woodson line of cases first construed the Eighth

Amendment to require that a capital-sentencing jury not be precluded from consideration, as

a mitigating factor, of the character and record of the individual offender, as well as the

circumstances of the particular offense. Eddings, 455 U.S. at 111-12; Lockett, 438 U.S. at

604; Woodson, 428 U.S. at 303-04.

As the Court explained, “evidence about the defendant’s background and character

is relevant because of the belief, long held by this society, that defendants who commit

criminal acts that are attributable to a disadvantaged background, or to emotional and mental

problems, may be less culpable than defendants who have no such excuse.” Penry I, 492

U.S. at 319 (quoting California v. Brown, 479 U.S. 538, 545 (1987) (O’Connor, J.,

concurring)). However, not all evidence presented as mitigating must be considered as such.

Franklin, 487 U.S. at 174; Skipper v. South Carolina, 476 U.S. 1, 7 n.2 (1986). Nor is it

constitutionally required that consideration of mitigating evidence be structured or balanced

in any particular way. Franklin, 487 U.S. at 179; Booth v. Maryland, 482 U.S. 496, 502

(1987), overruled on other grounds, Payne v. Tennessee, 501 U.S. 808 (1991); Zant v.

Stephens, 462 U.S. 862, 875-76 (1983).

Prior to the development of the rule in Eddings, the Jurek plurality held that the Texas

special issues were constitutional because “the enumerated questions allow consideration of

particularized mitigating factors,” e.g., a defendant's criminal record (or lack thereof), the

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range of severity of such a record, his youth, the circumstances of the crime, duress and

mental or emotional disturbance, and remorse.'® 428 U.S. at 272-73. This conclusion was

reaffirmed in Lowenfield v. Phelps, 484 U.S. 231, 245 (1988), and in Franklin, 487 U.S. at

182. f

Thereafter, the Penry J Court held that the Texas special issues, as applied to Penry,

did not allow consideration of his specific evidence of mental retardation, brain damage, and

severe child abuse. 492 U.S. at 322. This was because the evidence, which suggested that

Penry was “less able ... to control his impulses or to evaluate the consequences of his

conduct,” did not necessarily suggest that his murderous actions were less than deliberate.

Id. Additionally, Penry’s evidence indicated that he was unable to “learn from his mistakes,”

and was relevant to the future-dangerousness special issue only as an aggravating factor. Id.

at 323. Thus, neither special issue provided a vehicle for the jury to give mitigating effect

to Penry’s “two-edged” evidence. /d. at 324. Yet the Court specifically noted that its Penry

J opinion did not negate the facial validity of the Texas special issues, nor did it change the

fact that other types of mitigating evidence could be considered under the plain language of

the special issues. /d. at 315-19.

During its next term, the Court acknowledged the “strong policy against retrials years

after the first trial where the claimed error amounts to no more than speculation.” Boyde v.

California, 494 U.S. 370, 380 (1990). Accuracy is importan’. but finality equally so. /d. As

a result, the Court crafted a legal standard for reviewing ambiguous jury instructions that

relies not on subjective and hypothetical hairsplitting but on objective and reasonable

analysis. /d. at 378-81. The Court held that a mere possibility that the jury was precluded

as Brewer fails to cite Jurek whatsoever or acknowledge that it remains controlling

authority. See Graham, 506 U.S. at 474-77 (explaining that Penry J is the exception to Jurek).

v -10-

from considering relevant mitigating evidence did not establish Eighth Amendment error. _

Id. at 380. Rather, such error éccurred only if there was a “reasonable likelihood” that the

jury applied its instructions in a way that prevented the consideration of such evidence. /d.

Indeed, the Court would continue to endorse Jurek and limit the application of Penry /

where the mitigating evidence presented was not solely aggravating when viewed through

the lens of the special issues. For example, in Graham, the Court declined to “read Penry

[/] to effect a sea change in the Court’s view of the constitutionality of the ... Texas death

penalty statute.” 506 U.S. at 474. Instead, the Court distinguished the thrust of Graham’s

mitigating evidence — “that his brief spel of criminal activity ... was properly viewed, in

light of his youth, his background, and his character, as an aberration that was not likely to

be repeated” — from Penry’s. /d. at 475. The “mitigating significance” of Graham’s

evidence did not compel affirmative answers to the special issues as did Penry’s evidence,

but instead suggested that Graham would not be a future danger. /d. at 475-76. Thus, as in

Boyde, the possibility that mitigating evidence might have “some arguable relevance beyond

the special issues” was immaterial as long as the jury was able to give effect to the evidence

in some meaningful way. /d. at 476 (emphasis in original). |

In Johnson, the Court concluded that “[iJt strains credulity to suppose that the jury

would have viewed the evidence of [Johnson]’s youth as outside its effective reach in

answering the [future-dangerousness] special issue.” 509 U.S. at 368. This is the case even

if the mitigating evidence could also be viewed as aggravating; constitutional error results

only if the evidence is unavoidably aggravating within the context of the special issues. /d.

at 368-69; cf. Coble v. Dretke, 444 F.3d 345, 361 (Sth Cir. 2006) (“The requirements of the

Eighth Amendment are satisfied even if evidence is aggravating, as long as the mitigating

aspect is within the effective reach of the jury”) (internal quotations omitted); Cole v. Dretke,

: ) -l-

418 F.3d 494, 507 n.54 (Sth Cir. 2005) (“[A] jury cannot give mitigating effect to evidence

that can be seen as aggravating only”) (emphasis in original). Few types of mitigating

evidence will have only aggravating relevance within the special issues. Indeed, this is

precisely what the lower court held. See PA:A8 (Penry J error results where “the only logical

manner in which [the] jury could have considered the [mitigating] evidence [} under the

future-dangerousness special issue was as an aggravating factor”).

Tennard and constitutional relevance

As the court below accurately explained:

In following Penry J, this [CJourt developed a two-part test for determining

whether the defendant’s evidence requires a special mitigation instruction: (1)

whether the proffered material was constitutionally relevant mitigating

evidence and (2) whether the proffered evidence was beyond the effective

reach of the jurors.'' We in turn defined “constitutionally relevant” evidence

as that which was “due to the uniquely severe permanent handicaps with which

the defendant was burdened through no fault of his own ....”"* In Tennard,

however, the Supreme Court flatly rejected that test of constitutional relevance

and instructed us instead that the definition of relevance in this context is no

different from the definition of relevance in most others: “any tendency to

make the existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without the

4 ”

evidence ....

PA:AS.

In essence, the Tennard Court chastised the Fifth Circuit for invoking “its own

restrictive gloss on Penry I’ — constitutional relevance — as a screening test. 542 U.S. at

283. The Court explained that this was “an improper legal standard.” /d. at 287. Instead,

Smith v. Cockrell, 31.1 F.3d 661 , 680 (Sth Cir. 2002) (internal citations and quotations

Graham v. Collins, 950 F.2d {at} 1029 (], aff'd, $06 U.S. 461 [} (1993).

id.

[T]he “meaning of relevance is no different in the context of mitigating

evidence introduced in a capital sentencing proceeding” than in any other

context, and thus the general evidentiary standard — “any tendency to make

the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence”

— applies.

Id. at 284 (quoting McKoy v. North Carolina, 494 U.S. 433, 440 (1990)). “Once this low

threshold for relevance is met, the Eighth Amendment requires that the jury be able to

consider and give effect to a capital defendant’s mitigating evidence.” Jd. at 285 (quotations

and citations omitted).

C. Smith’s “full effect” requirement means nothing more than

sufficient effect.

The Court’s opinion in Smith v. Texas, 543 U.S. 37 (2004), noted its ruling in Tennard

but focused on an entirely different issue: a nullification instruction similar to the one

addressed in Penry v. Johnson, 532 U.S. 782 (2001) (Penry II). This instruction “did not

provide the jury with an adequate vehicle for expressing a ‘reasoned moral response’ to all

of the evidence relevant to the defendant’s culpability.” Smith, 543 U.S. at 45-48 (quoting

Penry Il, 532 U.S. at 796) (emphasis in original). This is because the nullification instruction

“‘essentially instructed [the jury] to return a false answer to a special issue in order to avoid

a death sentence.” Jd. at 48 (quoting Penry JJ, 532 U.S. at 801). Importantly, no nullification

instruction was submitted in the instant case. In this sense, Smith — and Penry I] — are not

on point.

Brewer suggests, however, that Smith and Penry I] dramatically changed the meaning

of Penry 1. Relying on dicta in both opinions, he proposes that Eighth Amendment error

occurs if “full consideration and full effect” are not given to the mitigating evidence. Smith,

543 U.S. at 37 (citing Penry IJ, 532 U.S. at 797). Thus, Brewer argues that Smith implicitly

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overruled Johnson, Graham, and Boyde, converting the seasonable-likelihood harm analysis

of those cases into a presumed-harm standard. However, this is not the case, as the court

below explained:

For the mitigating evidence to be within the effective reach of the jury in

answering the special issues, the special interrogatories must be capable of

giving relevant evidence constitutionally sufficient mitigating effect. Whether

that sufficiency requires that the evidence be given “full,” or merely “some,”

mitigating effect has been the subject of considerable discussion in this court,

but ultimately the distinction is only one of semantics, because regardless of

what label is put on the word “effect,” it is indisputable that the effect must be

constitutionally “sufficient.” Even if the requirement is called “full,” it means

nothing more than “sufficient.”

PA:A5; cf Tennard v. Dretke, 442 F.3d 240, 256 (Sth Cir. 2006) (“The key inquiry ... is

whether the jury could give sufficient mitigating effect to Tennard’s evidence”) (emphasis

in original); Cole, 418 F.3d at 499 (special issues “must confer sufficient discretion on the

sentencing body to consider the character and record of the individual offender”) (internal _

quotations omitted); Bigby, 402 F.3d at 564 (same) (quoting Graham, 506 U.S. at 468).

The lower court’s reasoning is sage. The Smith Court certainly did not overrule Jurek

~ and hold that the former special issues were invariably inadequate for the consideration of

mitigating evidence. Rather, the Court merely held that Smith’s evidence, as presented, was

not all within the effective reach of the jury. The “full consideration” language in Smith is

quoted directly from Justice O’Connor’s dissent in Johnson, as quoted in Penry II. Smith,

543 U.S. at 38, 46 (quoting Penry //, 532 U.S. at 979 (quoting Johnson, 509 U.S. at 381)).

This language is merely dicta, because it would otherwise overrule Jurek. This Court

previously held that no such “sea change” occurred in light of Penry J. Graham, 506 U.S.

at 474. It should not so hold now. Cf Coble, 444 F.3d at 358 (“The Supreme Court’s rulings

in Penry II and Smith should not be read to disturb its earlier holdings affirming the

wv -14-

constitutionality of Texas’[s] statutory d penalty sentencing scheme”) (quoting Bigby,

402 F.3d at 570); Tennard, 442 F.3d at 253 n.17 (declining to interpret Smith and Tennard

as new rules); Cole, 418 F.3d at 508 (“Neither 7% denand nor Smith changes Johnson’s analysis

of Penry, or the result that we reach today”); Jn re Kunkle, 398 F.3d 683, 685 (Sth Cir. 2005)

(per curiam) (“We are not persuaded that the Court intended to undercut Jurek, Graham, and

Johnson without even citing them. Whether ... Smith sweep[s] so broadly as to create a

conflict with its own Jurek or Graham decisions is for the Supreme Court”).

As discussed above, the Court has recognized that, in most cases, the former special

issues remain constitutional because they “allow consideration of particularized mitigating

factors.” Jurek, 428 U.S. at 272-73. The fact that mitigating evidence might have “some

arguable relevance beyond the special issues” is immaterial because “virtually any mitigating

evidence is capable of being viewed as having some bearing on the defendant’s ‘moral

culpability’ apart from its relevance to the particular concerns embodied in the Texas special

issues.” Graham, 506 U.S. at 476 (citing Franklin, 487 U.S. at 190 (Stevens, J., dissenting))

(emphasis in Graham). To demonstrate Eighth Amendment error, there must exist more than

“the mere possibility” that the jury was prevented from giving effect to mitigating evidence.

Johnson, 509 U.S. at 367. A “full consideration” rule would fly in the face of this valid and

binding precedent. |

Thus, when Penry / and its progeny are viewed as a whole, the following Eighth

Amendment inquiry may be derived: (1) whether the mitigating evidence has met the low

threshold for relevance established in Tennard and, if so, (2) whether the evidence was

within the effective reach of the jury in answering the special issues. 542 U.S. at 284-85; of

Coble, 444 F.3d at 358; Bigby, 402 F.3d at 564-65. As the court of appeals explained, “[flor

the mitigating evidence to be within the effective reach of the jury in answering the special

i?

issues, the special interrogatories must be capable of giving relevant evidence

constitutionally sufficient mitigating effect.” PA:AS; cf Tennard, 442 F.3d at 257; Cole, 418

F.3d at 499; Bigby, 402 F.3d at 564. Of course, this inquiry is subject to the deferential

standard of 28 U.S.C. § 2554(d)(1). PA:A3-4; cf Tennard, 542 U.S. at 288-89; Coble, 444

F.3d at 349-50; Tennard, 442 F.3d at 254. Moreover, the lower court’s Penry jurisprudence

— addressing which kinds of mitigating evidence may be given sufficient effect within the

special issue framework — survived Smith and Tennard where it did not rely upon

constitutional relevance. PA:A6-7 nn.16-18.

D. The court below properly rejected Brewer’s Penry / claim.

Brewer’s mitigating evidence is relevant within the meaning of Tennard.'’ However,

there is no reasonable likelihood the jury was precluded from giving constitutionally

sufficient mitigating effect to it in answering the Texas future-dangerousness special issue.'*

Initially, the court below correctly held that Brewer's minimal evidence of child abuse was

within the purview of future dangerousness especially where, as here, the possibility of

rehabilitation was highlighted by the defense. PA:A6-8 & n.16 (citing Graham, 506 U.S. at

475, Jacobs v. Scott, 31 F.3d 1319, 1327 (Sth Cir. 1994), and Cole, 418 F.3d at 507); 19 RR

878, 884-85; of Clark v. Collins, 19 F.3d 959, 963 (Sth Cir. 1994) (applying Johnson — not

constitutional relevance — to hold child abuse within the scope of future dangerousness

Brewer’s evidence that his girlfriend was the dominant partner in their relationship

is not constitutionally relevant, because it is “unlikely to have any tendency to mitigate [his]

culpability,” and will not be discussed further. Tennard, $42 U.S. at 286.

* Brewer does challenge the lower court’ s decision with regard to his mitigating

evidence of marijuana use. Nonetheless, a reasonabie jury could easily conclude that Brewer did not

act deliberately due to intoxication, or would not be a future danger in prison without access to

drugs. Harris v. Cockrell, 313 F.3d 238, 242 (Sth Cir. 2002); James v. Collins, 987 F.2d 1116, 1121

(Sth Cir. 1993). Thus, such evidence was within the purview of the special issues.

? -16-

especially where possibility of rehabilitation exists).

Brewer was not even abused until he was fifteen years old, a fact that stands in marked

contrast to Smith and Penry II. There was no evidence that the abuse “in any way impaired

his cognitive abilities.” PA:A3 n.3. Thus, the evidence was certainly not aggravating within

the scope of the future-dangerousness issue. See, e.g., Robertson v. Cockrell, 325 F.3d 243,

254 (Sth Cir. 2003) (en banc); Lackey v. Scott, 28 F.3d 486, 490 (Sth Cir. 1994); Motley v.

Collins, 18 F.3d 1223, 1235 (Sth Cir. 1994). Importantly, neither Smith nor Penry dealt with

the issue in isolation. See Penry I, 492 U.S. at 322-23 (explaining that it was Penry’s lack

of impulse control and inability to learn from his mistakes that gave rise to error); Robertson,

325 F.3d at 253 (“Childhood abuse alone is not systematically discussed by Penry / in its

relation to the Texas special issues”). Brewer's evidence of child abuse — especially the

minimal amount of abuse suffered — is, without a doubt, within the scope of future

dangerousness. 7

The lower court has rejected post-Tennard Eighth Amendment claims based on very

similar evidence of a troubled childhood:

This [CJourt ... has also held that evidence of a defendant’s “unstable” and

“transient” childhood could be given effect under the special issues. Jacobs

v. Scott, 31 F.3d [at] 1327 [] (citing Graham v. Collins, 506 U.S. 461 []). In

Jacobs, we distinguished evidence of a troubled childhood offered by the

defendant from that in Penry /. Jd. Jacobs argued that:

evidence was presented showing that Mr. Jacobs had an

unstable, troubled childhood. He never knew his mother, and

has only vague memories of his father. His father left him to

live alone with strangers when he was a small boy, and Mr.

Jacobs never saw him again. Mr. Jacobs ended up living in

several foster homes as a child, separated from his sister,

parents, and all other family connections.

Id. Coble had a troubled childhood similar to that of Jacobs and Graham, “as

opposed to a childhood rife with harsh physical abuse like that of Penry.” Jd.

Coble’s evidence of his troubled childhood included: (1) the death of his father

before he was born; (2) poverty in childhood; (3) his stepfather's alcoholism

and conflicts with his mother; and (4) his mother’s nervous breakdown. His

evidence of his childhood is more “transient” and “unstable,” like the evidence

presented in Jacobs and Graham than it is similar to Penry’s evidence of

abuse.[{'*] Coble’s evidence is distinguishable from that in Penry.

Coble, 444 F.3d at 362. As in Coble, Jacobs, and Graham, Brewer’s childhood troubles —

a neglectful and briefly abusive father — were well within the reach of the jury in answering

the future-dangerousness special issue.

Similarly, the lower court properly reasoned that the evidence Brewer “had a bout

with depression three months before the murder” and “was briefly hospitalized for that

depression” was well within the scope:of the future-dangerousness issue. PA:A6-7 & nn.17-

18. While Brewer argues that he was involuntarily committed, the record reveals that Brewer

actually signed “voluntary papers statimg that he had signed a request for voluntary

admission” to Big Spring State Hospital. 18 RR 75®; Brewer v. State, slip op. at 1S. The

jury was fully aware that the initial “involuntary” commitment was initiated by Birewer’s

- Graham produced evidence of his childhood poverty, his parents’ separation, and his

mother’s “nervous condition.” Graham, 506 U.S. at 463-64. As this Court explained:

we are not convinced that Penry could be extended to cover the sorts of mitigating

evidence Graham suggests without a wholesale abamdionmment of /urek and perhaps

also of Franklin v. Lynaugh. As we ‘have noted, Jurek is reasonably read as holding

that the circumstance of youth is given constitutionally adequate consideration in

deciding the special issues. We see no reason to regard the circumstances of

Graham’s family background and positive character traits in a different light.

Graham’s evidence of transient upbringing and otherwise nonviolent character more

closely resembles Jurek’s evidence c f age, employment history, and (amilial ties than

it does Penry’s evidence of mental retardation and harsh physical abuse.

Id. at 475.

. -18-

family based upon a suicide note and nothing more. 18 RR 763. In fact, Brewer’s mother

testified that he “committed himself” because “he wanted to turn his life around” and “get

off of drugs.” Jd. at 825-26. Brewer later checked himself out of Big Spring State Hospital

to live with Nystrom in Amarillo. /d. at 826-27. Therefore, the record plainly refutes

Brewer’ s effort to characterize his depression as an incurable or untreated mental illness that

limited his impulse control. Indeed, Brewer presented no expert opinion on the matter.

PA:A2, 6 n.16.

Nevertheless, Brewer’s evidence was plainly within the jury’s reach because treatable

mental problems can be given sufficient mitigating effect in answering the future-

dangerousness inquiry. See Hernandez v. Johnson, 248 F.3d 344, 349 (5th Cir. 2001)

(holding “evidence of chronic schizophrenia could be considered by the jury in answering

the question of future dangerousness,” because “[w]ith medication and treatment, remission

can be sustained”); Robison v. Johnson, 151 F.3d 256, 265-67 (Sth Cir. 1998) (holding that

evidence of petitioner’s schizophrenia, including testimony that it was treatable and could

go into remission, could be given mitigating effect under the future-dangerousness special

issue); Lucas v. Johnson, 132 F.3d 1069, 1082-83 (Sth Cir. 1998) (finding evidence that a

defendant was psychotic and schizophrenic, but that his mental problems had responded to

antipsychotic drugs and was treatable, could be considered under the future-dangerousness

special issue); Demouchette v. Collins, 972 F.2d 651, 653 (Sth Cir. 1992) (holding that a jury

was able to consider the mitigating effect of evidence of personality disorder under first

special issue where major thrust of evidence was that the disorder caused defendant to act

impulsively rather than deliberately).

Recent, post-7ennard circuit precedent affirms the reasoning of these opinions. See

Coble, 444 F 3d at 361-62 (holding treatable bipolar and posttraumatic stress disorders within

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scope of future-dangerousness issue); Cole, 418 F.3d at 505-07 (holding organic neurological

deficiency including diminished impulse control within scope of future-dangerousness issue);

but see Tennard, 442 F.3d at 256 (finding Penry violation where evidence showed low IQ,

a “static trait” or “permanent physiological feature”); Bigby, 402 F.3d at 571 (paranoid

schizophrenia not amenable to treatment or control not within scope of future

dangerousness). A treatable mental disorder or an exceedingly ordinary problem like

depression is distinctly different from a chronic mental illness, like Penry’s, that prevents a

defendant from ever learning from his or her mistakes. Cole, 418 F.3d at 505-07; cf Bigby,

402 F.3d at 571 (“Even after being in the controlled environment of jail for some time, Bigby

irrationally tried to take the trial court judge hostage in the presence of armed bailiffs,”

demonstrating inability to conform conduct with law).

7 Brewer argues that the lower court’s decision runs afoul of Smith and Tennard by

attempting to revive the “severity” and “permanence” elements of the former constitutional

relevance test. Yet this Court noted that “gravity” has a place im the Penry / calculus “insofar

as evidence of a trivial feature of the defendant’s character oir the circumstances of the crime

is unlikely to have any tendency to mitigate the defendaet's culpability.” 542 U.S. at 28%

(citation omitted). Gravity is a synonym for severity, seriousness, or importance. “ME

AMERICAN HERITAGE COLLEGE DICTIONARY 595 (3d ed. 2000). Similarly, transient or

impermanent characteristics are less likely to mitigate culpability. Either concept certainly

bears whether the likelihood of Penry I error is reasonable. Any other interpretation would

lead to a per se-error analysis and overrule Jurek, Graham, and Johnson.

Moreover, Tennard and Smith do not support Brewer’s argument, because the

opinions deal only with the application of severity or permanence as a “screening test” which

might foreclose reaching “the heart of (a petitioner}’s Penry claims.” Tennard, 542 U.S. at

: -20-

282-86. Here, the court of appeals did reach the heart of Brewer’s Penry claim and discussed

each category of the evidence. In fact, Brewer reads far too much into Tennard and Smith

when he suggests that they dispense with any comparative analysis of the mitigating

evidence. Reasonableness can hardly be judged in the absence of such comparisons.

Finally, unlike Tennard, the prosecutor did not ask the jury to consider Brewer’s

mitigating evidence as aggravating. The prosecuting attorney certainly argued the State had

carried its burden of proof concerning Brewer’s probable future dangerousness. 19 RR 897-

98. But the prosecutor based this argument on the aggravating evidence presented by the

State, not Brewer’s mitigating evidence. For example, the State asked the jury, “What kind

of man can say that he loves a woman and slam her with this kind of force up against a——

locker?”"® Jd. at 897. The prosecuting attorney also pointed out that, “[b]y the time [Brewer]

is [fifteen] years of age, from that time on, he carries weapons, he carries knives ... [t}o hurt

people.”"’ Id. The State’s argument that Brewer would “never change,” 19 RR 898, was

merely a legitimate response to defense counsel’s suggestion that Brewer could be

rehabilitated if sentenced to life in prison. /d. at 878, 884-85. Importantly, however, the

prosecutor did not “press[] exactly the most problematic interpretation of the special issues,

suggesting that [Brewer’s mitigating evidence] was irrelevant in mitigation, but relevant to

the q@westion whether he posed a future danger.” Cole, 418 F.3d at 508 (quoting Tennard,

542 U.S. at 289).

ry The State presented evidence that Brewer assaulted his former girlfriend, Amy

Forrester, by picking her up and shoving her against the edge of a metal locker, thereby paralyzing

her right arm for nearly two years. 18 RR 592-97.

” There was testimony that Brewer was sent to an alternative school on more than one

occasion for threatening another child with a knife and for fighting, and that he was arrested carrying

a concealed knife in a neighborhood known for Gfug-activity. 18 RR 640-41, 657-61.

; -21-

9 Rae

III. The State Court Reasonably Rejected Brewer’s Penry I Claim.

On direct appeal, the Court of Criminal Appeals carefully considered Brewer’s Penry

claim and reasonably applied the appropriate Supreme Court precedent. Initially, the state

court’s explication of the Eighth Amendment’s evolution from Jurek to Penry via Lockett,

Eddings, and Franklin was a proper statement of the law. Brewer v. State, slip op. at 13-14,

The court then correctly explained that, in addressing a Penry J claim, it must determine:

(1) what mitigating evidence was presented to the jury; (2) whether the

[deliberateness and future-dangerousness] issues provided a vehicle for the

jury to give effect to that evidence and, if not, (3) whether the trial judge

provided, in its charge to the jury on punishment, a vehicle for the jury to

effectively consider the mitigating evidence.

Id. at 14 (citing Joiner v. State, 825 S.W.2d 701, 706 (Tex. Crim. App. 1992)).

Finally, the court “conclude{d] the { future-dangerousness] issue provided an adequate

vehicle for the jurors to give effect to [Brewer]’s mitigating evidence.” Jd at 15. The court

noted that “a stay in a mental hospital does not evidence a long term mental illness which

would affect [Brewer}’s ability to confirm to the requirements of society.” Jd. (internal

quotations omitted). The court also held that Brewer’s evidence of drug abuse and a troubled

childhood was within the scope of the future-dangerousness special issue. Jd. As explained

‘supra, this holding is not contrary to the Court’s precedent nor is it an unreasonable

application thereof

CONCLUSION

For the foregoing reasons, the Court should deny Brewer’s petition for writ of

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*Counsel or Record

Respectfully submitted,

GREG ABBOTT

Attorney General of Texas

KENT C. SULLIVAN

First Assistant Attorney General

DON CLEMMER

Deputy Attorney General

for Criminal Justice

GENA BUNN

Chief, Postconviction

Litigation Division

*EDWARD L. MARSHALL /

Deputy Chief, Postconviction

Litigation Division

P. O. Box 12548, Capitol Station

Austin, Texas 78711

Tel: (512) 936-1400

Fax: (512) 320-8132

Email: elm@oag.state.tx.us

ATTORNEYS FOR RESPONDENT

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