# Opposition Brief — Quartermanman v. Garcia (No. 07-1052)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2007

## Text

Cause No. 07-1052

\ re

IN THE UNITED STATES SUPREME COURT

De

NATHANIEL QUARTERMAN,

Director, Texas Department of Criminal Justice -
Correctional Institutions Division,

Petitioner

FERNANDO GARCIA,

Respondent

On Petition for Writ of Certioran to the United States Supreme Court

from the United States Fifth Circuit Court of Appeals

BRIEF IN OPPOSITION

Respectfully Submitted by

“Algeanider -: Cathount

3404 Northland De., Ste. 215

Anistin, Texas 78731
Tele: 512/ 420-8850
Fax: 512/ 233-5946
Cell: 512/731-3159

Email: alcalhounlawéesbdeplobal aet

Counsel for Femando Garcia
*Meimber of Supreme Court Bar

BEST AVAILABLE COPY

Um

QUESTIONS PRESENTED / RESTATED BY RESPONDENT
(Capital case)

l. Whether this Court should address whether Peary error is subject to harmless-error
analysis given that Petitioner waived the issue by not raising it until rebcaring before the
Court of Appeals, the issue involves a statue which was amended 17 years ago and affects
a minuscule number of inmates, the type of error caused by the Texas statute was unique in
capital sentencing, and the mitigating evidence that the jury was precluded fram considering
in this case — that the defendant was repeatedly subjected to sexual assault by family
members during his childhood, leaves no doubt that the error was harmful under any
standard?

- Whether this Court should address whether Penry error is subject to harmless-crror
review given that the subjective and normative basis of the evidence underlying the jurors
rcasoned moral judgment in death penalty cases is incompatible with an evaluation of
historical fact appropriate for harmless error review, and whether a finding of Penry error,

by virtue of the nature of this evidence, subsumes the issue of harm?

NATHANIEL OU4RTERMAN ¥ PERMANDO GARCIA: NO. 07-1052

RESPONDENT'S BRJEF IN OrrOsiTION TO PETITION FOR WRIT OF CERTIORARI i

PARTIES TO THE CASE
The parties to this case are Nathaniel Quarterman, Director of the ‘T'cxas Department
of Criminal Justice, Institutions Division, who ts the petitioner, and Fernando Garcia, the
respondent, who is an inmate in the Polunsky Unit of the Texas Department of Criminal

Justice, Institution:al Division

NATHANIEL QUARTERMAN © PERNANDO Garcia: No.0) 1082

RESPONVEN T'S BRIEF IN OPPOSITION TO PermiiiOoNn FOR Wait or CERTIORARI il

Questions Presented / Restated by Respondent
Parties to the Case
Table of Authorities... .........
Junsdiction..

Procedural Statement. .
Stotomncnt Of The Cees... cca s awn sccssnas

Reasons to Deny Petition for Writ of Certiorari

Conclusion and Prayer

TABLE OF CONTENTS

This Court Has Previously Denied a Petition for Writ of Certiorar
On this Same Ground in Nelson v. Quarterman, No. 06-1254
(2007), But Petitioner Has Presented No new Basis to Address the

The Issue Before this Court Lacks the Widespread Iinportance
Underlying this Court’s Decision to grant a Writ of Certiorari duc to
the uniqueness of the Texas Death Penalty Statute and Limited
Number of Texas Inmates Subject to the Statute........
A Harmless Error Standard is Inappropriate in the Context of
Penry Error Because The Unique Prejudice from The
Deprivation of an Adequate Vehicle to Consider Mitigating
Evidence is Impossible to Quanttatively Evaluate In Light of
the Jurors’ Obligations to Undertake a Reasoned moral
i riienapnennavseden band cas ielan

This Court’s Most Recent Penry Decision in Smith v. Texas (Smith
IT} Suggests that the Question of Harm From Penry Error is
Suhsumed into the Question of Error..

NATHANIBi QUARTERMAN V. FERNANDO Garcia. No. 07-1082

ReSPONDFENT’S BRIDE IN Opposition’ 10 Peviiion FOR Wart OF CERTIORARI

. iv

10

18

ul

TABLE OF AUTHORITIES

Case law:

Abdul-Kabir v. Quarterman, 550 U S.

No. 05-11284 (4/24/2007). 2.2.0... ee Re ane ee .. 9, 10, 11, 16, 20
es I I PER ss vc wasn cen sauskbaasdeseevedeas 21
Almanza v. State, 686 S.W.2d 157 Se ee er ere 22, 23
Arline v. State, 721 S.W.2d 348 (Tex.Cr.App. 1986). . eye er eT ee 23
Arizona v. Fulminante, 499 U.S.279 (1991)... 0000 cc ce ce cence 18
Ropes wm. Camnemas, SPS UWS. STO (ISI)... wc cane cnacnssceasess 24
es Sa SUE Ms MON 05s css o's dave dee dew ahe been Raa ee ek 18
Brecht v. Abrahamson, 507 U.S. 619 (1993)... 00 ee eee 10, 13,17, 19
Brewer v. Quarterman, SSOU.S. _, No. 05 1128? (4/24/2007). ..... 9,10, 11, 16, 20
Calderon v. Coleman, 525 U.S. 141 (1998).....000000 0.0 ....000.. 24
Cordova v. State, 733 S.W.2d $75 (Tex.Cr.App. 1987) ......0 0000022. ee
a Tt 413
Ex parte Hood, 211 §.W.3d 767 (Tex.Cr.App. 2007)... 0.00000 eee ees 17
Ex parte Smith, 185 S.W.3d 455 (Tex.Cr.App. 2006)............. aos 23
Grcia v. Dretke, 3:01-CV - 580 (N.D. Tex -Dallas, Oct. 6, 2003). ....000 0000000... 2
Garcia v. Quarterman, 456 F.3d 463 (Sth Cir. 2006). 20. 2
Garcia v. Quarterman, 03-) 1097 (Sth Cur. 10-18-2007). 00 2

NATHANIEL UARTERMAN V. FERNANDO GARCIA: NO. O7-1US2

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Garcia v. State, 887 S.W 2d 846 (Tex.Cr.App. 1994). ...........0.. 0.00 e eee eee |
ee a UE, RED Bk ERP NUR on Cee kads ccc. Si haeca ead aeaeeaeaeeeas |
eh Cae, Fee We OE GETTER bas oo dose cease be nasa ca sndeasanns enn 9
Se ©. GI RC US, TEP OIE ons i oc even che caedsestetescesenees 14
Hitchcock v. Dugger, 481 U.S. 393 (1987)... 0... cee cee ee as Henne
a ee. Pk FS Se. Fak ei ce hb a ee ne eae een 17
PN A FN, DR: BAP URTAOE: Sooo eas cea dy 54s es dana a oa nea seaks 5
eee i TE, SNS Fl Fe CORA AOOED, 0c kicces cad s cada andes ad cdexsvees 15
McFarland v. State, 928 S.W.2d 482 (Tex.Cr.App. 1996) .........-... ae
Nelson v. Quarterman, 472 F.3d 287

i 2 Se enn py errr 10, t1, 12, 13, 14, 15, 18, 19, 20, 25
Put SON, S42 S: FOE CIO)... oo cc ceca tedanececunweesa sues 9, 13,25
Penry v. Lynaugh, 492 U.S. 302 (1989). ...............40.- eet aies .... passim
Penry v. State, 178 S. W. 3d 782 (2005).......... Sein alae mah ee week Ra ee 24
ee ic COT tas FP CIN ik kbs wekdce be lbvaesa es 4dkneer sana een 18
meemers elim, S9S FAG STE (7 Cie. FOOSD. 5 one cece es enesaceanasecs 1§
pe a AE 2) a +B
meee. Teens Clee £); 345 U.S. 37 (2004). «2 ows ec i cs ckecaceaniveanc 9,22

Smith v. Texas (Smith 11,550 U.S. __, No. 05-11304 (4/25/2007). ... 9, 22, 24, 26

State v. Tucker, 315 Or. 321, 845 P.2d 904 (1993). .

NATHANIEL QUARTERMAN V. FERNANDO Ganci4: NO 07-1082

RESPONDENT'S BRIEF IN OPPOSITION £0 PETITION FOR Writ oF CERTIORARI V

State v. Wegner, 309 Or 5, 786 P2d 93 (1990)... . 2... ee ee 16
Sullivan v, Louisiana, 508 1i.S. 275 (1993) 18,21
Tennard v. Dretke, 542 U.S. 274 (2004). 9
United States v. Cacioppo, 460 F.3d 1012 (8° Cur. 2006) 15
United States v. Gonzalez-Lopez, 548 U.S. 163 (2006) 19
United States v. Vega Molina, 407 F.3d 511 (1° Cir. 2005) 14
Statutes and Rules:

a a a us cp bgldw awh eniananckecawanea dah tba tama ee eee 16
Fed.R.App.Pro., Local Rule 47.5.4 12
Tex.Code Crim.Pro. Art. 36.19 3
Tex.Code Crim.Pro. Art. 37.071. 1,7, 16
Tex Penal Code Sec. 19.03(a)(2) 2
Miscellaneous Authoritics

William R Long, “A Tortured Mini-history: The Oregon Supreme Court's Death

Penalty Jurisprudence in the 1990's” 39 Willamette 1. Rev. | 2003 .......... <a e
2 R. Hertz & J. Liebman, Fed. Habeas Corpus Pract. & Proc., (4th ed.2001)..... .. 15

NATHANIEL QUARTERMAN ¥. FERNanvO Garcia. NO. 07-1052

RESPONDENT'S BRIEF & Orrustion TO PETITION FOR Wait OF CERTIORARI

vi

Fernando Garcia, by and through his attorney Alexander Calhoun, files this Bnef
in Opposition to the Petition for Writ of Certioran file by the State of Texas in this case
aud respectfully requests this Court to decline certiorari review to the United States Fifth
Circuit Court of Appeals. The Court of Appeals’ unpublished decision correctly appiics
this Court’s Penry jurisprudence and presents no issue of compelling importance to
nationwide capital jurisprudence. The State’s Petition for Writ of Certiorari should be
denied.

JURISDICTION

The Fifth Circuit issued a decision on pane) rehearing in this case on October 15,
2007. Garcia v. Quarterman, 03-) 1097 (Sth Cir. 10-15-2007) (per curiam) (unpublished).
This Court therefore possesses jurisdiction under 28 U.S.C. 1254(1).

PROCEDURAI. STATEMENT

Mr. Garcia is among a diminishing number of Texas inmates who were convicted of
capita] murder and sentenced to death under the pre-1991 revisions to the Texas capital
sentencing statute, Tex.Code Crim.Pro. Art. 37.071, which this Court found in Peary v.
Lynaugh, 492.U.S. 302 (1989), to be constitutionally: prebleniatic. He was convicted of
capital murder and-sentenced-io death in Dallas County, Texas on December 9, 1989. His
conviction and sentence were affirmed by the Texas Court of Cnminal Appeals (“CCA”) in
a published decision. Garcia v. State, 887 S.W.2d 846 (Tex.Cr.App. 1994). This Court

denied his petition for wnt of certiorari. Garcia v. Texas, 115 S.Ct. 1317 (1995).

NATHANIEL QUARTERMAN ¥. FERNANDO GARCIA: NO. 07-1052
RESPONDENT'S Brine iN OPPOSITION TO PETITION POR Writ OF CERTIORARI l

Mr. Garcia pursued state post-conviction rehef, and was ultimately denied relief by

the CCA on February 28, 2001. Ex parte Fernando Garcia, No. 45,875-01 (Tex.Cr.App.
Feb. 28, 2001) (per cunum). He subsequently sought federal relief, but was denied by the
United States District Court for the Northern District of Texas on October 6, 2003. The
Court granted a certificate of appealability, however, on Mr. Garcia’s Peary claim. Garcia
v. Dretke, 3:0\1-CV - 580 (N.D. Tex —Dallas, Oct. 6, 2003).

A panel of the United States Fifth Circuit Court of Appeals, with one dissent, initially
denied relief on Mr. Garcia’s Penry claim. Garcia v. Quarterman, 456 F.3d 463 (Sth Cir.
2006). In response to Mr. Garcia’s petition for En Banc rehearing, however, the panel
reversed itself, and granted relief on the Penry claim in an unpublished, per curiam decision.

Garcia v. Quarterman, 03-11097 (5th Cir. 10-15-2007).
Petitioner, the State of Texas, has sought a petition for writ of certiorari.
STATEMENT OF THE CASE

Mr. Garcia was convicted of murder in the course of the commission of aggravated
assault. Tex. Penal Code Sec. 19.03(a)(2) (West 1987).

During the punishment-phase-of triat'both the State and Mr. Garcia produced
substantial evidence relating to Mr. Garcia’s his background, character and
circumstances. The State called Dr. Betty lou Schroeder, a psychologist who bad
psychologically evaluated Mr. Garcia following his 1981 conviction for sexual abuse of a

child.

NATHANIEL QUA RTERMAN ¥ FERNANDO Garcia: NO. 07-1052

RESPONDENT'S BRIPE IN OpPasMmiGN TO PETITION FOR WRIT OF CERTIORAR! 2

Dr. Schroeder's records reflected that Mr. Garcia’s mother abandoned bim at birth
and he had been raised by his 81-year old grandmother. the grandmother raised Mr
Garcia and his older brother; living on social security payments. [Vol 21 RR: 2785]

Mr. Garcia advanced as far as the 10° grade in school before dropping out. [Vol
21 RR: 2785]. Huis recorded academic performance reflected he was actually functioning
at an elementary or middle school level. [Vol. 21 RR: 2796). Dr. Schroeder believed
that be had likely advanced through school as the result of social promotion. [Vol. 21 RR
2798}.

Mr. Garcia's drug history included the use of marijuana and spray paiat. [Vol. 2!
RR: 2785]. Dr. Schroeder described the effect of alcohol and spray paint abuse upon the
abuser’s health, explaining that spray paint in particular “primarily attacks the
neurological system” “often” causing permanent damage. [Vol.21 RR: 2800] Sh
observed that it was important to determine the extent to whether substance abuse
contrituted to Mr. Garcia acting upon his sexual drive. | Vol. 21 RR: 2801) She also
expressed her opinion, based upon Mr. Garcia's past recorded behavior while
incarcerated; that Mr. Garcia would likely couform to a structured pnson environment
and would not present a future danger to prison society [Vol 2] RR: 2806-2807]

Schroeder administered psychological tests to Mr. Garcia, including the Rorschact
projective test to determine his perception of reality Mr. Garcia's response indicated a

“very pathological” outlook [Vol 2] RR: 2789

NATHANIFL QUART ERMAN © PEaNANOO Garcia NO. 07-105

ReSPONDENT’S BREE &¥ OPPOSITION TO PET miow Foe We beTiopes

Dr. Schroeder believed that Mr. Garcia suffered from pedophilia, which she
explained was a “personality disorder” consisting of “maladapted patterns of coping” a
‘pathological way that seems to help the person deal with thew problems.” [Vol. 21 R:
2783, 2789 - 2790}. She explained that Mr. Garcia's “psychiatric/psychological
pathology” related directly to a “basic primary human drive| |. . . sex” and for that
reasons was “very difficult to change.” [Vol. 21 RR: 2791]. She agreed with the
prosecutor's suggestion that pedophiles were “extremely high risk” to commit similar
offenses in the future, despite therapeutic intervention. {Vol. 21 RR. 2791}. She
explained that individuals suffering from pedophilia tended to “grow more violent, more
heinous as time goes on.” | Vol. 2] RR: 2792]

On cross-examination, Dr. Schroeder agreed that Mr. Garcia had experienced a
“psychologically deprived” background. [Vol. 21 RR: 2794]. He had had an abnormal
chiidhood marked by the absence of both nurturing and discipline from his parents.
[Vol. 21 RR. 2794 - 2995] In describing Mr. Garcia's background, Schroeder
explaimed that “often mes individuals such as this have also been sexually abused as
children, or had a great deal of abnormality in that area in their rearme.” [Vol. 2] RR.
2794 - 2995}

Dr. Robert Pownzky, a clinical psychologist specializing m sexual abuse, testified
on Mr. Garcia's behalf. [ Vol. 21) RR: 2863}. Mr. Garcia's reported life history reflected

that be had been abandoned by his mother at a very young age and raised by his elderly

NATHANIEL UUAPTERMAD +. FP EaR AYN C4aCia NO 07-1052

RESPONDENT'S Baer ty OrPOSimON TO PETITION POR Wait of Cer TIORAR

grandmother. [21 Vol. RR: 2861]. He grew up on a rough part of San Antonio’s west
side. [21 Vol. RR: 2863 - 2864]. In general, Mr. Garcia was neglected by his
grandmother, but in the course of raising him, he was exposed to witchcraft and other
“bizarre . . . experiences.” (21 Vol. RR: 2861].

Dr. Powitzky, like Dr. Schroeder, diagnosed Mr. Garcia as suffering from
pedophilta, which was defined as a “personality disorder.” [Vol. 21 RR: 2861]. Mr.
Garcia reported to Powitzky that had been sexually abused by both males and females
from an carly age. After she reappearing in Mr. Garcia's life, his mother began to
sexually abuse him during periods of visitation. On occasion, Mr. Garcia would be
forced to cngage in sexual intercourse with his mother and her partners. He was
oftentimes intoxicated during this abuse. At the age of five, Mr. Garcia was made to
perform fellatio on the friend of an older brother, and at the age of six, he was forced to
fellate bis older brother. When he was eight years old, Mr. Garcia was sexually abused
by a 14-year old cousin, being compelled by her to perform cunnilingus. When Mr.
Garcia was in the third grade, be was sexually abused by a nun on several occasions
[Vol. 21 RR: 2861 - 2862}

According to Dr. Powitzky, Mr. Garcia’s sexual abuse would have had a particular
psychological impact upon his development because of cultural factors growing up in a
Hispanic neighborbood in San Antonio. [Vol. 21 RR: 2863 - 2864}. Significantly, Mr

Garcta’s chiidhoed sexual abuse could likely have had a formative cffect upon Mr.

Varwamiel OuarTerMan ¥ FEANANDO Garcia: NO. 87-1052

Keseonpenr's Barer my Oprosition ro Pitrrion tor Writ OF CERTIORARI 5

Garcia’s own development of pedophilia. [Vol. 21 RR: 2866]. Dr. Powitzky explained
that sexual abuse often results in psyehological trauma and resulting issues which are
common to most people who have been sexually abused; these issues relate to questions
of anger in the abuse victim, a sense of powerlessness, and questions about one’s own
sexual identity. [Vol. 2 RR: 2866 - 2867}. Dr. Powitzky believed that an individual
experiencing “{t]he abandonment, the sexual abuse, the neglect that [Mr. Garcia] suffered
... would [lead to} some sort of problems in living.” (Vol. 21} RR: 2866).

Based pon his experience in treating pedophiles upon his review studies of
pedophiles tn structured environments, Dr. Powitzky believed that Mr. Garcia would
likely not constitute a danger within prison. [Vol. 21 RR: 2870 - 2871]. Mr. Gareta
primarily posed a problem of sexually abusing children when he was intoxicated --
substance abuse was clearly a precipitating factor to his behavior. [Vol. 21 RR: 2869,
2871}.

Mr. Garcia also presented testimony by, Estella Rangel, who knew Mr. Garcia
from the San Antonio housing project where they had lived. Rangel testified that on
several occasions, she had-obgerved Mr, Garcia-smeking-marijuana and sniffing aerosol
paint. [ Vol. 21 RR: 2852 -2854). It was after these incidents of pain sniffing, that Mr.
Garcia would sexually abuse his step-daughter, leading to bis 198i conviction for sexual
abuse. [Vol. 2] RR: 2853].

Mr. Garcia admitted medical records from the Eastern Maine Mcdical Center in

NATHANIEL UUARTERMAN V. FERNANDO Garcia: NU 07-1082

RESPONDENT'S BRIEF IN OPPOSITION TO Ptrrrion FOR WRIT OF CERTIORARI 6

Bangor, Maine, relating to a suicide attempt by Mr. Garcia on April 21, 1998. The notes

and social reports report Mr. Garcia had attempted suicide as a result of depression. [Vol.
21 RR: 2888; XXHIA}.

During the charge conference, Mr. Garcia objected to the jury charge, requesting a
“fourth specia} issuc” on the ground that the evidence presented at trial fell outside the
statutory punishment issues. [Vol. 23 RR: 2890 - 2891}. The trial court denied Mr.
Garcia’s request. [ Vol. 23 RR: 2895]. The trial court submitted two statutory punishment
issues pursuant to Tex.Code Crim.Pro. Art. 37.071(b){1) & (2) as well as a “nullification
instruction.” [Clerk's Record (“CR”). 199 - 201; Vol. 21 R: 2898}

Durning closing argument, the prosecutor urged the jurors to “follow the law” by
answenng the special punishment issues consistent with their view of the evidence as fit
within the punishment issues:

|Y lou told us you that you would follow that law. And third, you told us --

and, in essence, you told Ms. Little, you told Mr. Beach, and you told

myself that, if you people bring the kind of evidence that convinces me the

answer is yes, I'll answer the questions yes. Folks, let me tell you

something, whenever you told us that, if you had answered very faintly or if

you hesitated in that answer in any way, it was my job to make sure that you

did net make one-of the-12 jutors:inthis case. You told us verpclearly- and

very emphatically that: if you people right here bring the kisid of dase‘that

convinces me that those questions should be answered yes, I'll answer those

questions yes.

[Vol. 21 RR: 2902 - 2903}.

And throughout the prosecutor's closing argument, he argued that the evidence

NATHANIEL OUARCERMAN ¥. FERNANDO GaRCIA: NO. 07-1082
RESPONDENT'S Britt ik OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

BEST AVAILABLE COPY

presented at trial compelled an affirmative answer on both puntshment issues. [Vol. 21
RR: 2903 - 2912}.

Mr. Garcia's defense counsel, constrained by the special issues argued to the jury
the relevance of Mr. Garcia’s mitigation evidence largely within the confines of the
special issues themselves, attempting to convince the jury that Mr. Garcia would not pose
a future danger because he would be incarcerated, and that he had not acted deliberately.
{Vol. 21 RR: 2916 - 2917]. Counsel conceded that the jurors were obligated by their
oaths to answer Aonestly the questions posed by the special issues according to the
evidence presented. [Vol.2] RR: 2914]. But despite these limitations, counsel
nonetheless attempted to convey the fact that Mr. Garcia’s background bore some
miligating relevance apart from the mere questions posed by the special issues:

We vatue live. We value all buman life. You pcople especially value life. .

. If Fernando Garcia coliapsed with a heart attack at this instant, you would
not stand up and gloat. You would not say “Die, Fernanda, die, die ”

1 ask no sympathy for Fernando Garcia. Fernando lost all right to
our sympathy when he went from being:a victim to a predator. When
Femaxdo crossed that jine, 1 do notknow: ‘It's nowhere in the evidence.
Fwopsychologists can’t tell you, but he crossed that line. We
unfortunately, as lawyers, cannot bring you evidence as to when that line
was crossed.

Wc cannot bring you Fermmando’s father to tell you that my only
fatherly act began at conception and ended at conception. We cannot bring
you his mother whose only motherly love ended at birth.

NATHANIEL QUARTEKMAN V FERNANDO GARCIA: NO. 07-105?

RESPONDENT'S B&ikF IN OPPOSITION TO PET!TION FOR WRIT OF CERTIORARI 8

What do we have ? What is the sum total we can bring you about

this man? ... We do not have the luxury of having any exhibits showing

when Fernando was victimized. What did the neglect, the abuse. the

indifference, the poverty and the hate turn Fernando Garcia from a victim to

a predator? Only you can usc that in guiding your verdict and your answers

to the special issucs.

[Vol. 21 RR: 2915, 2920 - 2921].

Limited, as it was by the special punishment issues, and confronted with the trial
court’s ad hoc nullification instruction, the jurors returned affirmative responses to the
deliberateness and future dangerousness punishment issues, resulting in the trial court
imposing a seatence of death. [Vol. 21 RR: 2936 - 2937}.

REASONS TO DENY THE PETITION FOR WRIT OF CERTIORARI

When the ink was barely dry on this Court’s decision in Penry v. Lynaugh, Mr.
Garcia requested, but was denied, a specific instruction permitting the jurors 10 his trial to
consider his mitigation evidence apart from its relevance to the special issues -
“deliberatencss” and “future dangerousness.” Today, after nineteen years and nine Penry’
decisions, the State of Tcxas finally concedes that the tnstructions in Mr. Garcia's
punishment charge did indeed violate the Eighth Amendment. Petitioner’s Brief, p.32.

However, the State now contends that despite the absence of an adequate vehicle to give full

effect to Mr. Garcia’s evidence of extensive childhood sexual abuse, of his abandonment by

' These are: Penry v. Lymauyh, 492 U.S. 302 (1989); Graham v. Collins, 506 U S. 46!
(1993); Johnston v. Texas, 509 U.S. 350 (1993); Penry v. Johnston, 532 U.S. 782 (2001); Teanard v.
Dretke, 542.U.S 274 (2004); Sinith v. Texas (Smith 1), 543 U.S. 37 (2004); Abdul-Kabir v.
Quarterman, 5501S. , No. 05-11284 (4/24/2007); and, Brewer v. Quarterman, 5SOUS. — , No.
05-11287 (4/24/2007); Smith v. Texas (Smith 11), 550U.S.__, No. 05-11304 (4/25/2007).
NATHANIEL QUARTERMAN V. FERNANDO Gancla: NO. 07-1052
RESPONDENT'S BRiFF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI 9

his parents, of the cmotional neglect he experienced from his elderly caretaker, of his
impovenshment, of the severe psychological disorder arising from his own childhood sexual
victimization, of his chronic drug and alcohol dependency, and his intoxication at the time
of the offense, of his depression and suicide attempt, all thts evidence is subject to a
harmless error analysis under Brecht v. Abrahamson, 507 U.S. 619 (1993), and asks this
Court to adopt this new spin to its Penry jurisprudence. See, Petitioner's Brief, p.23. For
the reasons below, Mr. Garcia would contend that certiorari is unwarranted and should be
denied.
L. THIS CouRT HAS PREVIOUSLY DENILD A_ PETITION FOR WRIT OF
CERTIORARI ON TIS SAME GROUND IN NELSON V. OUARTERMAN, NO.

06-1254 (2007), BUT PETITIONER HAS PRESENTED NO NEW
BASIS TO ADDRESS CLAIM.

Through sceking a writ of certiorari on Mr. Garcia’s unpublished panel opinion,
Petitioner is essentially asking this Court to re-consider its denial of certiorari nine months
ago on the Fifth Circuit Court of Appeals’ En Banc decision in Nelson v. Quarterman, 472
F.3d 287 (5" Cir. 2006). See, Nelson v. Quarterman, 551 U.S. _, 06-1254 (June 18,
2007) (Order denying certiorari).

In Nelson, the En Banc Fifth Circuit granted rehearing on its earlier panel decision
following this Court's certioran grants in Addul-Kabir v. Quarterman,550 US. , No.
05-11284 (4/24/2007), and, Brewer.v. Quarterman, 550 U.S. __, No. 05-11287
(4/24/2007), and reversing its earlier denial of relief based on the Circun’s own application
of Penry jurisprudence, acknowledged that this Court's Penry jurisprudence requires jurors

NATHANIFL (DUARTERMAN ¥ FERNANDO Garcia. NO 97-1052

RESPONDENT'S BRIEF IN OPPOSITION TO PETITION FOR Wait OF CEKTIORAEI 10

be able to give full consideration and effect to the mitigation evidence presented at trial.
Nelson, 472 F.3d at 316. Concluding that the panel decision had violated this Court’s Penrp
jurisprudence, the En Banc Court remanded the case for a new punishment trial. The Court
did so without conducting a separate harm analysis, expressly rejecting the harmless-error
standard from Brecht v. Abrahamson to Penry error. Nelson, 472 F.3d at 314 - 315.
The State of Texas subsequently sought a petition for writ of certiorart challenging,
inter alia, the Fifth Circuit's rejection of a harmless error standard under Penry. See,

Qarterman v. Nelson, No. 06-1254, Petition for Writ of Certiorari, pp. 27 - 30. The

State’s challenge to Nelson was pending at the same time this Court was deciding Addul-
Kabir and Brewer, and the Court was clearly cognizant of Nelson and its import in the
context of Abdul-Kabdir and Brewer. During oral argument, counsel for Abdul-Kabir and
Brewer proposed vacating those cases in light of Nelson and members of this Court noted
the State’s assurances that it would seek certiorari in Nelson. Sec, Abdul-Kabir vy.

Quarterman, No. 05-11284, and Brewer v. Quarterman, 05-11287: Transcript of Oral

Argument, at 5,7 (January 17,2007). Certainly, this Court would not have mistaken the
topicality of Nelson’s harmless error ruling during the:Court’s own consideration of Abdul-
Kabir and Brewer, and file filing of 2 certtorari petition concurrent with these latter two
cases provided this Court a prime opportunity to conclusively resolve this issue, had the
Court concluded that the issue had any lingering import to the Court’s Penry jurisprudence.

Nevertheless, two months after this Court’s decisions in Abdul-Kabir and Brewer it denied

NaTiiANiel Quarreeuan ¥ Fernando Gakcta. NO. 07-1052

RESPONDENT'S Brutt IN OPPOSITION TO PETITION POR WRIT 0+ CERTIORARI 1]

certiorari in Nelson. See, Nelson v. Quarterman, 551 U.S. __, 06-1254 (June 18,
2007)(Order denying certioran). There were no dissents within this Court to the denial of
certiorari, despite Nelson’s governing rule —- complete with the rejection of a separate harm
analysis — to the Fifth Circuit’s application of Peary.

Petitioner now seeks to raise this same issue which this Court so recently determined
to be unworthy of certiorari. But there is nothing about Mr. isti’s cnet —an unpublished,
per curiam decision -- which would merit a grant of certiorari. Because it is unpublished,
the precedential value of Mr. Garcia’s case is marginal under the Fifth Circuit’s local rules.
See, Fed.R.App.Pro. Local Rule 47.5.4 (“Unpublished opinions issued on or after January
1, 1996 are not precedent, except under the doctrine of res judicata, collateral estoppel or law
of the case .... An unpublished opinion may, however, be persuasive.”). Even assuming
arguendo that thc panel’s resolution of Mr. Garcia's Penry claim without a Brecht harmless
error analysis was erroneous, the decision has neither nationwide or even circuit-wide
importance; it is not binding upon the Fifth Circuit asa whole, nor even upon other Fiith
Circuit panels or lower courts. The decision in Mr. Garcia’s applies to no one other than
Mr. Garcia himself.

Petitioner has provided no competing basis for this Court to revisit its recent denial
of certiorari on this issue. Petitioner cites no intervening decisions by this Court which
question the Fifth Circuit's holding in Nelson. Indeed, Petitioner raises tundamentally the

same argument in this case as it did in Nelson. See and compare, Quarterman v. Nelson,

NATHANIEL QUARTZRMAN V. FERNANDO GARCIA: NO. 07-1052
RESPONDENT'S BRIFE IN OPPOSITION TO PETITION FOR WRIT OF CER TIORAR: ]2

No. 06-1254 Petition for Wnt of Certioran, pp. 27 - 30, with Quarterman v. Garcia,

No.07-1052, Petition for Writ of Certiorani, pp. 23 - 30. Petitioner has cited no specific
portion of this Court’s Penry jurisprudence indicating that a separate harm analysis is
required, or even appropriate under Penry.’ To be sure, the Penry H decision suggests
precisely the opposite, that a separate harm analysis is not appropriate upon a finding of
Penry error. In Penry I/, while reversing John Paul Penry’s death sentence a second time
for Penry error, this Court also addressed a separate Estelle v. Smith, 451 U.S. 454 (1981)
error in the petition, but concluded the error was harmless under Brecht. Penry 11,532 U.S.
at 796. This Court’s contrast in treatment of these to errors is telling in the present casc.
Petitioner neither acknowledgcs Penry II, nor presents any recent Penry jurisprudence
indicating that Peary If is inconsistent with this Court’s previous or subsequent Peary
decisions. Penry IJ was not lost on the Fifth Circuit, however; in Nelson the Fifth Circuit
expressly cited to this Court’s Peary H decision as partial confirmation of its rejection of a
separate harm analysis for Pemry error. Nelson, 472 F.3d at 314.

In addition to the lack of merit to Petitioner’s grounds for certiorari, this Court is

presented with an equally weighty procedural impediment td granting certiorari: Petitioner's

* Petitioner suggests that this Court’s decision in Hitchcock v. Dugger, 481 U.S. 393 (1987),
and summary remand in Signictary v. Smith, 507 U.S. 1048 (1993), suggests that Penryp error
can be subject to harmless error. Petitioner's Brief, at 28. Petitioner reads more into these
cases, however, than the cases provide. In Hitchcock, this Court noted that the State had never
made any attempt to argue harmless error, and therefore did not address the issue. /d., at 399.
The Court’s resolution of Hitchcock, and its GVR in Smith does not establish the proposition on
which Petitioner seeks to rely.

NATHANIEL QUAKI ERMAN ¥ FERNANDO GARCIA: NO. 07-1052
RESPONDEN1’S BRIEF W OPPOSITION TO PETITION FOR WRiT OF CERTIORARI 13

11“ hour presentation of the harmless error defense before the Court of Appeals. Despite
extensive litigation of Mr. Garcia’s Peary claim in state and federal court, both on direct
appeal from his conviction and in post-conviction proceedings, Petitioner failed to raise a
harmless error argument until it raised the defease in a Supplemental Brief before the Court
of Appeals on rehearing, 13 years into the litigation in this case. See, Garcia v. Quarterman,

03-1109, Supplemental Brief of Respondent, p. 7-13. And even at this point, Petitioner’s

briefing on the issue was cursory, and devoid of any discussion of the specific evidence
presented in this case. As such, it provided the court of appeals no basis to determine how
the denial of a proper vehicle to consider Mr. Garcia’s mitigation might have been harmiess.
It was certainly not incumbent for the Court of Appeals in this case to determine without
Petitioner’s guidance why the jurors’ preclusion from giving effect to Mr. Garcia’s
mitigation evidence might have been harmless. See, United Siates v. Vega Molina, 407 F.3d
511, 524 (1" Cir. 2005) (Court declined to consider harmlessness of error in ight of
Government failure to brief issue, commenting “we choose not to do the government's
homework.”).

This. Court ‘has been critical of litigants withholding a defense until late in the
proceedings. Granberry v. Greer, 481 U.S. 129, 132 (1987) (“We have also expressed our
reluctance to adopt rules that aliow a party to withhold raising a defense until after the “main
event" in this case, the proceeding in the Distnct Court — ts over”). The federal courts

have routinely held that the harmless crror defense is subject to waiver if not tumely and

NATHANIEL QUARTERMAN ¥. FERNANDO Garcia No. 07-1052
RESPONDENT'S Brick IN Orposrrion TO PETITION FOR WRIT OF CER SIOKARI 14

properly presented. See, United States v. Cacioppo, 460 F.3d 1012, 1025 - 1026 (8" Cir.

2006) (“the Government did not argue that the alleged instructional error was harmless, and
the failure to do so waives any right to such review”); Sanders v. Cotton, 398 F.3d 572,
582 (7th Cir. 2005) (“The Respondent also argues that any error in the jury instructions was
harmicss .... However, the Respondent did not make this argument in the district court, so
itis waived.”); Lam v. Kelchner, 304 F.3d 256, 269 (3d Cir.2002) (“The first flaw in the
Commonwealth's harmless error argument is that it was never raised before the District Court
and was therefore waived.”); and, Nelson, 473 F.3d at 316 - 317 (Dennis, }., concurring op)
(“ 1am now convinced that the state waived any argument concerning harmless error by
failing to raise it in the district court.”). See also, 2 R. Hertz & J. Licbman, Fed. Habeas

Corpus Pract. & Proc., § 31.2, at 1373 - 1374 & n. | (4th ed.2001) (“Like other habeas

corpus relief, the “harmless error” obstacle does not arise until the state asserts it; the state’s
failure to do so in a timely and unequivocal fashion waives the defense. Indeed, the
“harmiess error rule is particularly susceptible to the types of abuse that have led the Supreme
Court to call for strict application of waiver rules to the state in habeas corpus proceedings.”).
Petitioner’s-delay in raising its harmless error defense until rehearing places Mr. Garcia’s
case in the same procedural posture as that in Nelson, 473 F.3d at 314, 316-317. As such,
Petitioner waived any harmless error defense for further revicw by raising it too late in the
proceedings. This Court should not excuse Petitioner’s thirteen year delay in raising its

defense until the twilight of this litigation.

NATHANIEL QUARTERMAN ¥. FERNANDO Garcia No 07-105?

RES?ONDENT’S BRIEF iN OPPOSITION TO Pesmion FOR WRIT OF CERTIORARI 15

i. THE ISSUE BEFORE THIS COURT LACKS THE WIDESPREAD IMPORTANCE
UNDERLYING THIS COURT’S DECISION TO GRANT _A WRIt OF
CERTIORARI DUE TO THE UNIQUENESS OF THE TEXAS DEATH PENALTY
STATUTE AND LIMITED NUMBER OF TEXAS INMATES SUBJECT TO THE
STATUTE.

Certainly, in this Court’s decision whether to allocate its scare judicial resources to
a wnit of certiorari, the widespread applicability of the Court’s ruling is of paramount
concern. In the present case, the Court is being called to address an issue of rapidly
dwindling importance since the issue focuses primarily upon the sui generis Texas death
penalty statute, f'cx.Code Crim.Pro. Art. 37.071. This statute is unlike any other State’s
death penalty statuic, save one,’ and therefore, the issue at hand would not, as a general
matter, affect death penalty junspradence outside of Texas itself.

The impact of this Court’s decision will be further limited within Texas, however, as
a result of the Texas Legislature’s amendment to the statue under which Mr. Garcia's death
sentence was assessed. In 1991, in response to this Court’s Penry decision, the Texas
Legislature amended Art. 37.071 to include the type of instruction mandated by Peary. In
contrast to the inmates sentenced under the pre-amended statute, Art 37.071, Sec. 2(c),

provides for a distinct special. punishment issue directing jurors to consider all mitigation

* Oregon’s death penalty statute, Or. Rev.Stat. 163.150, is worded similarly to Texas’s death
penaity statute, but in contrast to the State of Texas, Oregon courts recognized early~on aftcr Penry J the
necessity of providing a broadly worded mitigation insuuction. See, State v. Tucker, 315 Or. 321, 332,
845 P.2d 904 (1993); State v. Wagmer, 309 Or 5, 786 P2d 93 (1990). In fact, each Oregon death
sentence imposed prior to 199] was reversed on the basis of this Court’s Penry decision. See, William r.
Long, “A Tortured Mint-history: The Oregon Supreme Court’s Death Penalty Jurisprudence in the 1990's
39 Willamette L. Rev. 1, 5 (2003). Oregon’s early and consistent recognition of the breadth of Penry
removes Oregon’s death penalty junsprudence from the Court’s concerns in whether 4 grant of certiorari
will have widespread application outside of Texas
NATHANIEL QUARTERMAN ¥ FERNANDO GARCIA: NO. 07-1082
RESPONDENT'S BRIEE IN OPPOSITION TO PETITION FOR Wait OF CERTIORARI 16

evidence independent from the other (aggravating) punishment issue. See, Tex.Leg. Acts

1991, ch. 838, § 1, p. 2899, eff. Sept. 1, 1991. Due to the 17-year passage of time since the
statutory amendment, a decision by this Court would have limited applicability to pre 1991
death sentenced Texas inmates simply due to attrition. During oral argument before this
Court tn Abdul-Kabir and Brewer, the State of Texas advised the Court that there are only
an estimated 47 inmates remaining on Texas’ death row who were tned under the pre- 1991
Statute. See, Abdul-Kabir v. Quarterman, No. 05-11284, and Brewer v. Quarterman, 05-

11287: Transcript of Oral Argument, at 43 (January 17, 2007). Of this number, only 25

cases appear to be in active litigation in state or federal court, another nine having completed
federa) proceedings by the time of oral argument. Jbid. It is unclear among these
remaining 25 active cases which ones would even merit Penry relief. To put this small
number in context, as of the filung of this bricf in opposition, there are 369 inmates on Texas’
death row. See, http://www .tdc; .state.tx.us /stat/ offendersondrow htm. Clearly, the total
number of Texas inmates who could possibly be affected by any decision of this Court is

quite small.*

Simply stated, this Court's decision to grant certiorar? i this case would apply only

* Even among this small group, there is unlikely to be a flurry of new litigation among the
Current inmates tried under the pre-1991 statute whose cases arc complete. The Texas Court of Criminal
appeals has concluded that Texas’ statutory “abuse of the writ” doctrine will sometimes bar litigation of
Penry claims not previously raised. See, Ex parte Hood, 2\\ S.W 3d 767 (Tex.CrApp. 2007). The Fifth
Circuit bas similarly concluded that mmates sentenced under the pre-1991 statute who did aot prescat the
issue to an earlicr federal proceedings are precluded from domg so in a successive writ proceeding In re
Kunkle, 398 F 3d 683, 684 685 (S* Cir. 2005). Thus, the potential group of petitioners affected by a
decision would be quite small, indeed.
NATHAMEL QUARTFRM AN ¥. Feax anno Garcia NO. 07-1052

RESPONDENT'S Baiet iy Orrusrrnon TO PETITION FOR Wert OF Cerrioeani ' 17

to a few dozen mmatcs at most, who were tried under z statute amended nearly two decades
ago. A decision on this case would have no nationwide impact, and little state-wide impact

Ill A HARMLESS ERROR STANDARD IS INAPPROPRIATE IN THE

CONTEXT OF PENRY ERROR BECAUSE THE UNIQUE PREJUDICE
FROM THE DEPRIVATION OF AN ADEQUATE VEIICLE TO
CONSIDER MITIGATING EVIDENCE IS IMPOSSIBLE TO
QUANTITATIVELY EVALUATE IN LIGHT OF THE JURORS’
OBLIGATIONS TO UNDERTAKE A REASONED MORAL RESPONSE.

Although Petitioner contends Penry error is simply “garden variety trial error” subject
to a harmless error analysis under Brecht, Petitioner's Brief, p. 26, Petitioner misperceives
the nature of Penry error. The nature of error appropriate for a Brecht’s harm analysis arc
those types of errors which may be quantitatively assessed, Arizona v. Fulminante, 499 U.S.
279, 307 - 308 (1991), and there are several types of error which, due to their nature of
lending themselves to an objective assessment of historical fact, are amenable to a harmless
crrorreview. The effect of the admission of an illegally obtained confession, for example,
Fulminante, or even the effect of an erroneous jury charge on the burden of proof for a
statutory presumption, Rose v. Clark, 478 U.S. 570 (1986), are all questions of fact which
may be analyzed in context of the other evidence presented at trial to determme the probable
effect upon the jurors’ decision-making process. But certain errors, even ones relating to
bow jurors could have considered evidence adduced at trail, cannot be quantitatively
measured, sce, ¢.g., Sullivan v. Lowisiana, 508 U.S. 275 (1993) (erroneous instruction on

reasonable doubt); and, Beck v. Alabama, 447 U.S. 625, 642 (1980) (denial of instruction

on lesser-included offense). Errors which are not subject to quantitative measurement are

NATHANIEL QUaRTPRIMAN 7 FERNANDO GaRcia: NO. 07-1052
RESPONDENT'S Briet ty Orrasrmon 10 PETITION FOR Writ OF CERTIORARI 18

immune from a harm analysis. See, United States v. Gonzalez-Lopez, 548 U.S. 163 (2006)

(explaining that errors decmed “structural” and not subject to harm analysis are those which
are ““are necessarily unquantifiable and indeterminate.”).

The nature of Penry error is broader than the “garden variety trial error” which
Petitioner contends it to be. Petitioner's Brief, p. 26. The jury's preclusion of giving full
effect to the Mr. Garcia’s mitigation evidence — in contrast to questions of historical fact -
defies a quantitative analysis of the evidence precisely because the jurors’ role in Penry to
make an amorphous mora! judgment call. The Nelson Court correctly concluded as much
in its rejection of a Brecht analysis, explaining that jurors evaluation in Penry is particularly
unsuitable to a quantitative measure by an appellate court:

This reasoned mora! judgment that a jury must make in determining whether

death is the appropnate sentence differs from those fact-bound judgments

made in response to the special issues. It also differs from those at issue in

cases involving defective jury instructions in which the Court has found

harmless-error review to be appropriate. .. . . Given that the entire premise of

the Penry lime of cases rests on the possibility that the jury's reasoned moral

response might have been different from its answers to the special issues had

it been able to fully consider and give effect to the defendant's mitigating

evidence, it would be wholly inappropriate for an appellate court, in effect, to
substitute its-own morat judgment for the jury's in these cases.

Therefore, given the Supreme Court's refusalitoaliow an appellate court
to substitute its own moral judgment for a moral judgment that the jury was
unable to make in a Penry case, we decline to do so now.

Nelson, 274 F.3d at 315 (emphasis added )(citations omitted).
In a concurring decision, Judge Dennis, who had previously approved of a separate

harm analysis under Brecht in his concurring panel deciston, reversed himself and

NATHANIEL QUARTERMAN ¥. FERNANDO G4RCIA: NO. OF 1052

RESPONDENT'S Barrer ty OPPOSITION To PETITION FoR Writ OF CERTIORARI 19

specifically rejected his prior rcasoning, explaining that Pemry error it is not subject to
quantitative assessment in the context of the evidence presented at trial: “a Penry J violation
is not a ‘trial error’ because it is impossible for a reviewing court to ‘quantitatively’ assess
what affect the mitigating evidence would have had on the sentencing jury if it had not been
granted the discretion to choose between a life or a death sentence ...”). Nelson, 472 F.3d
at 335 - 336.

While vigorously disagreeing with the En Banc Court's Penrp asalysis, and despite
the specific discussion of the inappropriateness of harmless error standard by both the
majority and concurrence, none of the dissenters disagreed with the Court’s conclusion that
a harmless error analysis was appropriate to Pemry error. See, Nelson, 472 F.3d at 337 -
348 (Disseuting Op.of Jones, C.J, joined by Jolly, Smith, Barksdale, Garza and Clement);
id,, at 348 - 351 (Dissenting op. of Smith, J.); id., at 351 - 353 ( Dissenting op. of Clement,
joined by Jones, Joli, , smith, Barksdale and Garza): and, id., at 353 - 362 (Dissenting op.
of Owen, Jolly and Smith).

And as this Court recently reiterated, a quantitative assessment of the mitigating value
of a.defendant’s mitigation evidence and how it might have persuaded a jury ts incompatible
with a Penry analysis. See, Brewer, 550 U.S. at _, slip op. at 7 (“Nowhere in our Penry
line of cases have we suggested that the question whether mitigating evidence could have
been adequately considered by the jury is a matter purely of quantity, degree, or

uninutability.”); and, Abdul-Kabir, 550 U.S. at _, slip op. at 24 (rejecting lower court's

NATHANIFL QUAKTERMAN ¥. FERNANDO GARCIA: NO. U7 1052

RESPONDENT'S BRIEF IN OPPOSITION TO PETITION FOR Writ OF CERTIORARI 20

conclusion that Peary violation did not occur betause “even though Cole's mitigating

evidence may not have been as persuasive as Penry's, it was relevant to the question of Cole's
inoral culpability for precisely the same reason as Penry's.”).

Even a cursory review or Mr. Garcia's mitigation evidence demonstrates its lack of
susceptibility to 4 quantitative evaluation of how jurors, had they been permitted to give
effect to Mr. Garcia’s mitigating evidence, might have done so. Mr. Garcia’s history of
repeated sexual victimization as a child, his resulting psychological disorder, his parental
abandonment and childhood poverty, the emotional neglect experienced as a child, his
prolonged substance abuse, even his depression and suicide attempt -— all defy quantification
since the evidence in question is not mercly one of historical fact and how it fits in relation
to other evidence presented at trial. Rather, such evidence goes to the core of the jurors
inherently subjective, value-driven decision making in the context of an individualized
sentencing decision: whether each juror finds such evidence to be mitigating, and if so,
whether such evidence is sufficient, if mitigating, is sufficiently so to merit a life sentence
despite the jurors’ findings on the aggravating evidence. See, Cordova v. State, 733
S.W.2d 175, 189 {Tex.Cr.App. 1987) (“The amount of weight thatthe fact-finder might give
any particular piece of mitigating evidence is left to "the range of judgment and discretion”
exercised by cach juror. ... Under our capital punishment scheme and procedures, mitigation
is given cffect by whatever influence it might have on a juror in his deciding the answers to

the special issues.) (quoting Adams v. Texas, 448 U.S. 38, 46 (1980)); and, McFarland vy.

NaTHANIED OUARTERMAN ¥. FERNANDO GARCIA NO.07-1U5?

RESPONDENT'S BREF IN OPFOSITION TO PETITION FOR Wit UF CEKIIORARI 21

State, 928 S.W.2d 482, 498 (Tex.Cr.App. 1996) (“Because the weighing of "mitigating

evidence" is a subjective determination undertaken by each individual juror, we decline to
review that cvidence for "sufficiency." We defer to the jury's conclusion that the evidence
did not warrant a sentence of life impnsonment.”). Untike other errors which relate to
questions of fact, given the truly unique and subjective nature of the jurors’ evaluation of
mitigation evidence in the context of Texas’ death penalty statute, any attempt by an
appellate court to determine how the individual jurors might have been affected by the
evidence is purcly speculative. See and cf, Sullivan, 508 U.S. at 281 (“A reviewing court
can only engage in pure speculation --- its view of what a reasonable jury would have donc.
And when it does that, "the wrong entity judge{s] the defendant|‘s moral culpability].”
(citation omitted)). Any harm evaluation in the context of Penry crror would necessarily
require sccond-guessing by the appellate court, substituting its own opinion for that of the
jurors who were deprived of the opportunity to pass their own moral judgment upon the

evidence

IVs THIS CoURT’S MOST RECENT PENRY DECISION IN SMITH V. TEXAS
(SMITH IT) SUGGESTS THAT THE QUESTION OF HARM FROM PENRY
ERROR IS SUBSUMED INTO THE QUESTION OF ERROR.

The question raised by Petitioner appears to have already becn decided by this Court
in Smith U, a contention made by the State of Texas in its certiorari petition in Nelson.

See, Quarterman v. Nelson, No. 06-1254 Petition for Writ of Certioran, p. 30 (“the

applicability of the harmless-error review is directly at issue i Smith v. Texas, No. 05-11304

NATHANIEL QUARTERMAN ¥ FERNANDO GARCIA: NO O7-1052

RESPONDENT'S BRrikt (N Oveosirion fO PETITION FOR WRIT OF CERTIORARI 2?

and is currently pending before the Court.”) (emphasis added). Mr. Garcia would suggest

that Smith I] addresses Petitioner’s contentions in this matter, concluding that the question
of harm from Penry is subsumed into the question of error in itself.

Smith II addressed the CCA’s decision on remand following this Court’s reversal
for Penry error in Smith I. See, Smith 1,543 U.S. at 48 - 49 (bolding nullification
instruction did not cure underlying Peary error). On remand, the CCA subjected Smith’s
claim to the state harmiess error standard for jury charge error sct out by Tex.Code Crnm.-Pro.
Art. 36.19.° Construing this Court’s Peary J and H decisions to address distinct errors, the
CCA concluded that Smith had not properly preserved his objection to the punishment
charge, and subjected his claim to the more stringent harm analysis under the state harm
standard. Ex parte Smith, 185 S.W.3d 455, 463 - 464, 467 (Tex.Cr.App. 2006). The CCA
concluded that Smith had not been prejudiced because he had not demonstrated “*actual
harm’ much less ‘egregious harm’” from the Peary crror. Smith, 185 S.W.3d at 468 - 472.

This Court granted certiorari this time to address the CCA’s applied harm standard.

This Court rejected the CCA’s “egregious harm” standard to the constitutional question

* As explained in Alianza y. State, 686:8,W.2d 157 (Tex.CrApp. 1984), jury charge error is
reviewed for harm under two categories: the “some” barm standard, which applies fo preserved error,
and the “egregious harm” standard, which applies to “waived” charge error. [d., at 171. The CCA has
explained that following a tumely objection, reversal is required “if the error is ‘calculated to injure the
nights of defendant’ which means no more than that there must be some harm to the accused from the
error.” J6id. If not objection was made, reversal will not be made unless it was “egregious” and created
such barm that be “has not had a fair and impartial trial” Ibid.

In Arline v. State, 721 S.W.2d 348 (Tex.CrApp. 1986), the Court explained that “the presence
of any harm, regardless of degree, which results from pecscrved charging error, is sufficient to require a
reversal of the conviction. Cases involving preserved charging error will be affirmed only if no baru has
occurred,” Id., at 351.

NATHANIEL QUARTERMAN 7. FERNANDO GARCLA’ NO. 07-1052
RESPONDENT'S BRIEF IN OPPOSMMON 10 PETITION FOR Wart OF CERTIORAR! 23

before it. Instead, the Court cited with approval the CCA’s previously adopted review of
Penry crror in which a finding of error subsumed the question of harm:

Under Almanza, once Smith established the existence of instructional
error that was preserved by a proper objection, he needed only to show he
suffered "some harm" from that error. In other words relief should be granted
so long as the error was not harmless. 686 S. W. 2d, at 171. It would appear
this lower standard applies to Smith's preserved chailenge to the special issues.

The Coust of Criminal Appeals explained in its recent decision in Peary
v. State, 178 S. W. 3d 782 (2005), that once a state habeas petitioner
establishes “a reasonable likelihood that the jury believed that it was not
permitted to consider” some mitigating evidence, he has shown that the error
was not harmless and therefore is grounds for reversal. Id., at 786-788 (citing
Boyde v. California, 494 U. §. 370 (1990)). We note that the Court of Criminal
Appeals stated in dicta in this case that even assuming Smith had established
that there was a reasonable probability of error, hc had not shown " actual’
harm,” 185 S. W. 3d, at 468, and therefore would not even satisfy the lower
Almanza standard. We must assume that this departure from the clear rule of
Penry v. State resulted from the state court's confusion over our decision in
Smith I.

The Court of Criminal Appeals 1s, of course, required to defer to our
finding of Penry error, which is to say our finding that Smith has shown there
was a reasonable likelihood that the jury interpreted the special issues to
foreclose adequate consideration of his mitigating evidence. See Johnson v.
Texas, 509 U. S. 350, 367 (1993). Accordingly, it appears Smith is entitled
to relief under the state harmless-error framework.

Smith H,550US. , —_, 05-1134, slip.op.at 18 femphasis added). See.and. compare,
Calderon v. Coleman, 525 U.S. 141, 152 (4998) (Stevens, J., joined by Souter, Ginsberg &
Breyer, dissenting) (“a fair reading of the Chief Justice’s optmion for the Court in Boyde v.
California. . . indicates that the heightencd ‘reasonable likelihood’ standard endorsed in that

case was intended to determine whether an instructional error ‘requires reversal.'"(internal

NAVHANIEL QUARTERMAN V FERNANDO Garcia: No. 07-1052

RESPONDENT'S BRIRF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI 24

citations omitted).

This Court’s approval of the CCA’s harm analysis in Penry v. State 178 S. W. 3d 782,
a decision which construed a finding of charge error under Boyde as ipso facto containing
some harm, and therefore mandating relief, at a minimum suggests that a separate harm
anafysis is not a part of Penry. The mere fact that jurors were preciuded from giving effect
to a defendant’s mitigating evidence is sufficient to deprive the defendant of a fair trial
because the jurors were precluded from considering and giving their moral response to
evidence presented in mitigation, separate from simply rebutting the aggravating evidence
at trial. This conclusion is consistent with this Court’s previous Penry decisions, in
particular Penry /1, in which this Court reversed the sentence upon a finding of error, yet
subjected a separate claim to a separate harmless error review. Jd., 532 U.S. at 796.
Similarly, the Fifth Circuit panel’s treatment of Penry error tn Mr. Garcia’s case, as well as
the En Banc Court’s treatment of the error in Nelson, is consistent with this conclusion.
Insofar as Petitioner has conceded that there was a reasonable likelihood that the jurors were
precluded from giving full effect to all of Mr. Garcia’s mitigating evidence, Petitioner's
Brief, at 32, the basis for certiorari in this case is foreclosed by Smith J] since Mr. Garcia
would have experienced some harm from the jurors being able to give effect to his mitigation
evidence

CONCLUSION

Certioran is plainly not warranted in the instant case. This Court has recently rejected

NSTHABIEL UU4PTERMAN ¥. FERNANDO GARCIA. NO. 07-1052

RESPONDENT'S BRIEF IN OPPOSITION TO PETINICN FOR Writ oF CERTIORARI 25

this precise issue in Nelson and Petitioner has offered no new reason to address this issue,
or why this Court was even mistaken in its previous denial of certiorari in Nelson.

Further, due to the uniqueness of the Texas death penalty statue among death penalty
jurisdictions coupled with the amendment to the 1991 statute, and the declining number of
Texas inmates remaining who were convicted under the statute, the issue carries no
jurisprudental significance outside of a handful of Texas inmates.

Moreover, Penry crror is uniquely unsuitable to a harm analysis because the error
directly relates to the jurors subjective normative judgments regarding the evidence with
which they were unable to give effect. This type of evaluation — in contrast to typical “trial
error” is mnpossible to quantify. It is unnecessary for this Court to clarify this point in light
of its prior Perry jurisprudence, as wel! as the Fifth Circuit’s discussion of this point in
Nelson.

Finally, in light of this Court’s decision in Smith I, the question has been implicitly
resolved against Petitioner. A finding of Penry error satisfics a showing of sufficient harm
to require reversal of a death sentence because the preclusion of the jury from being able to
fully consider and give effect to a defendant’s mitigation evidence deprives the defendant of
a fair trial et punishment through depriving the jurors of a vehicle in giving effect to his
mitigating evidence which is either irrelevant to, or bears relevance beyond the scope of the
statutury punishment issues.

This Court should therefore deny certioran.

NATHANIEL QUARTERMAN #. FERNANDO GARCIA; NO. Q7.1052

RESPONDEN1'S BRIEF IN OprOSrriON TO PETITION FOR WRIT OF CER TIORAR! 26

Respectfully Submitted,

Law Office of Alexander L. Calhoun

3301 Northland Dr., Ste. 215

Austin, Texas 78731

Tele: 512/ 420-8850

Fax: 512/ 233-5946

Cell: 512/731-3159

Email: alcalhounlaw@sbcglobal.net
alcalhgufi@edrthlink net

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NATHANIEL QUARTERMAN ¥ FERNANDO GARCIA: NO. 07-1052

RESPONDENT'S BRIFF RV OPPOSITION TO PETITION FOR Writ OF CERTIORAR! <

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0621%3A3. Public record. Not legal advice.