Ex Parte Baldree

caught spun today. Applicant’s allegation logic[.]” a web of words and second Collins, J., May supra, (Reavley, also without merit. concurring). regard I do not Penry denied, Accordingly, sought the relief having right fashioned a to a instruc applicant’s sentence are conviction and prohibition tion so much as it reiterated a affirmed. against imposition penal state of the death ty empow unless the sentencer has been BENAVIDES, J., concurs in the result. ered to take all “relevant” criteria into (Tex.Cr.App., account. See Black v. State BAIRD, J., participating. 69,648, (Clinton, J., day) delivered this CLINTON, Judge, dissenting. dissenting). Applicant has shown that he has been sentenced to on the basis of majority tells us that the source of less constitutionally than all the unimportant; evidence is so 37.071, criteria. supra, It was Article long as it has judicial thereof, construction that forced special issues, an instruction is this state of affairs. Ergo, the statute necessary Penry Lynaugh, under operated in an unconstitutional manner as 106 L.Ed.2d 256 applied applicant. hold he is would (1989). Furthermore, majority assures Instead, entitled majority to relief. us, evidence does not have to fall into the applicant’s transforms claim into a “facial” categories of mental retardation or abusive attack, disposes of it on the basis family history Eighth to invoke the Amend- Franklin v. far, ment concerns addressed. So 2320, 101 L.Ed.2d 155 Frank good. my so dissenting opinion See purport lin did not to address the situation Lackey (Tex.Cr.App., 69,144, v. State before I respectfully us here. dissent. day). delivered this But then the “concludes,” simply without further elabo-

ration, produc- MALONEY, J., joins. applicant’s

ed at trial “does not rise to the

level of” Penry evidence. Without some

analysis, opinion the Court’s does not serve adequate guide

as an for future decision.

The majority brushes off sec

ond claim Eighth Amendment violation

based mitigating evidence he was con producing strained from at trial because parte Ex Earnest Orville BALDREE. could serve to harm him under Article 37.071(b), Op. V.A.C.C.P. & n. No. 71114. 6. I am aware that the Fifth Circuit has rejected such claims when raised under the Appeals Court of Criminal Eighth Collins, Amendment. May En Banc. (CA5 1990);

904 F.2d 228 Ly DeLuna v. (CA5 1990). naugh, 890 F.2d 720 It seems

hardly fair that a accused should claim, however,

lose such a when it was the

Eighth deficiency Amendment in the stat

ute, and this Court’s staunch refusal it,

acknowledge competent forced forego presenting

counsel’s decision to place. evidence in the first parte See Ex —

Herrera, S.W.2d -(Tex.Cr.App., No. (Clinton, day) delivered this dis

senting). Applicant has indeed “been Batchelor, Atty., C.

Patrick Dist. Carroll, H. John Jackson and Robert Asst. Corsicana, Huttash, Attys., Dist. Robert Atty., Austin, State’s for the State. OPINION MILLER, Judge. post application

This is a for conviction corpus pursuant to writ of habeas filed 11.07, provisions of Art. V.A.C.C.P. capital mur Applicant was convicted of 8, 1986, December sentenced der on 37.071(e), by the trial Art. judge. appli This V.A.C.C.P. Court affirmed cant’s convictions and on direct sentences State, appeal. Baldree v. 784 S.W.2d 676 (Tex.Cr.App.1989). petition Applicant’s for certiorari writ of was denied United 14, Court on States - U.S. -, Baldree allegations Applicant presents fourteen application challenging validity in this Sep- On of his convictions and sentences. 11, 1990, holding an eviden- without tember hearing, the tiary judge convicting applicant recommended be denied re- court September 17, lief. On Court cause for submis- ordered this filed and set allegation. on first sion granted stay of execu- We pending from this further orders Court.

In his allegation, first presented the issues to his sentenc claims 37.071(b)(1) jury pursuant Art. ing (2) considering precluded effect to the evidence he giving Applicant at trial. relies on both offered Lynaugh, Penry v. (1989), 106 L.Ed.2d 256 and Franklin (1988)(O’Connor, joined

101 L.Ed.2d Blackmun, J., concurring), for relief. charge did not Applicant object to on or raise this basis Baldree, Austin, appeal.1 Kemp Gorthey, appellant. W. on direct issue however, object, judge "deliberately” Applicant as that did to the failure the trial define 678, (no mining was the supplemental appellate appropriate whether death S.W.2d although original years punishment. filed be- Id. 109 S.Ct. at 2948. The brief brief agreed and this Court’s and stated a fore was decided thereafter). regard opinion rendered months instruction with Thus, necessary.3 application presents ap- this us with evidence was the plicant’s “Penry issue” for first time. The Court addressed the need for the Recently, this Court determined this claim light in of additional instruction the three cognizable corpus via a writ habeas 37.071(b)(1),(2), punishment issues. Art. & to despite applicant’s an failure raise this issue, special As to the first the Court appeal. parte on direct issue Ex Goodman opined that ju- without instruction “a (Tex.Cr.App. 70,887 May Penry’s ror who believed that retardation 1991), slip op. pp. 3-4.2 We therefore and diminished his moral cul- applicant’s the merits con- will address pability imposition and of the made tention. penalty unwarranted would be unable to Franklin, petition- give the if juror S.Ct. to that conclusion the contended, alia, Penry inter that his sentenc- er also believed that committed the ing jury adequately did not consider ‘deliberately’.” his crime prison good disciplinary record. recognized double-edged Id. 108 The Court the argued Penry’s mitigating S.Ct. 2328. Franklin this miti- sword characteristic evidence, gating special which the was such evidence under the second issue. introduced, is, very “had inde- That the evidence which dimin- pendent Special of its the relevance to Is- ish his also indicated blameworthiness ” a ‘character[,]’ probability sues—as reflection on his there was a that he a would be requested Thus, a jury continuing society. and instruction which threat to sec- impose allow the provide would to life sen- did not ond issue vehicle “yes” mitigating tence even if it answered to both for the to effect to punishment Penry’s “mitigating” submitted. Id. 108 S.Ct. evidence. Id. Like- wise, A plurality at 2329. of the the third Court found is- jury’s concluded the addressing provocation, giv- consideration of which sue was mitigating charge, Franklin’s im- in Penry’s jury evidence was not en failed to allow a properly Penry limited because free lacked juror who believed the moral give appropriate weight culpability to to this to to be sentenced death to ex- through its spe- juror consideration the second issue if press view this Thus, cial issue. Id. 108 at 2330. Penry’s S.Ct. concluded action was not a reason- provocation. Franklin was not response sentenced to death in to able Id. 109 Eighth Thus, applied violation Amendment. as Penry, S.Ct. at 2950. Art. 37.071 was unconstitutional. Franklin foreshadowed opinion Applicant Court’s asserts the circum following argued Penry presented during term. that his his trial fell stances into (1) categories, mitigat of mental retardation two distinct to-wit: ing child abuse had and relevance his moral evidence that was not relevant to the beyond (2) culpability verdict 37.071(b), under Art. argu and that the evidence and circumstances that are ably its express punishment unable to “reasoned relevant to the issues but response” to culpability that evidence deter- that have relevance to his moral 69,- (Tex.Cr.App. term is used in the first issue. He claim. See Black v. State objection preserve 1991) (Campbell, claims is sufficient 648 delivered Penry claim. Given our decisions Goodman H.B.). curring to Part Black, infra, we need address not this con- tention. type requested had of such an instruc- which, during punishment phase Also, applicant’s specifically object failure to course, was denied. procedurally basis on this would not bar his of the issues. As to his havior.6 Howard testified as to assertion, others, relies spe- first dicta kindness character and toward in cifically children, Justice O’Connor’s concurrence her parents, his her 2333,4 and Justice examples, ap- nieces. As Howard testified Penny, Scalia’s dissent father, plicant of his had took care who 2966,5 support his claim that our cancer, by giving changing him baths and murder scheme is unconstitu bags “just colostomy like a nurse” applied Applicant him. tional does they took her children were care of when indicate of his evi which young. Howard had never seen category, falls or the other dence into this hurt he anyone and stated had never been notes, category for He that matter. how prison a violent for crime. ever, Penry’s mitigating that evidence was sister, Nell Spainhour, another testified inquiries to factual under the the life, acts regarding “family [] special but had value be work, kindness, good voluntary ser- that, yond and that Franklin’s applicant vice.” too stated was a She was his evidence relevant to character loving helpful child and was her chil- with potential upon as it reflected his for future dren household. cared Applicant and her dangerousness, inquiry the factual encom Spainhour multi- for her children while had special the passed second issue. After ple operations hospitalized. and was She evidence, detailing his mitigating applicant in a also had never seen act vio- merely asserts that evi “[t]his “he lent manner and stated had never been kind of that precisely dence is the evidence charged hurting anybody.” with capital jury compelled ignore a sentencing phase undervalue the when in her concur- Justice O’Connor observed statutory Special confined to the Issues.” ring opinion “[ejvidence in Franklin that Thus, applicant’s mitigating we consider service, others, or voluntary kindness to together. and arguments might religious devotion demonstrate traits miti- might character Applicant mitigat- sets out his writ the gate against penalty.” 108 S.Ct. ing evidence which came from the testimo- added). (emphasis Applicant as- during ny of his sisters the language represents examples of serts this phase According of trial. to his sister Mar- un- Howard, mitigating evidence which is irrelevant gie one was of twelve issues, necessitating der the thus an family “always and was a children regarding miti- additional instruction good loving Applicant child child.” find, however, polio gation. that Justice deathly spinal ill with We became when old, mitigat- examples these years he was which Howard O’Connor cited thirteen ing comparison as a to show the personality said later affected his and be- sentencing procedure opined that: discussing 5. Justice Scalia 4. In our jury’s ability express regarding the its views available, as-ap- Of there remains in an course appropriate punishment, the Justice O’Connor statute, challenge plied the the con- Texas observed: particular mitigating a circum- tention that To the extent that any fact irrelevant to of the three stance is in by petitioner introduced was relevant to one questions poses, and not be hence could questions, verdict was here, But that is not the case nor considered. effect to that evidence re- free ground relies. is it which the Court turning negative question. answer to that If, however, petitioner had introduced miti- Applicant was convicted of the mur gating evidence about his or char- Howard, Nancy he ders of Homer and to whom acter or the circumstances crime that by marriage. Applicant also 44 was related ques- relevant to verdict years the time of this See Bal old at offense. tions, or relevance to the that had defendant’s dree, S.W.2d at 681. culpability beyond spe- verdict cial instructions any specific does not writ record contain provided with would have no vehicle regarding details than the this evidence other expressing response’ its 'reasoned moral evidence, added). opinion. testimony (emphasis have laid out in this we (Tex.Cr.App. No. v. Lackey miti- State probative value of Franklin’s limited day.) discipli- good prison gating evidence of a is, good pris- nary record. That Franklin’s MALONEY, J., dissents. probative no val- disciplinary record had on BAIRD, Judge, dissenting. character outside of the second

ue as to his speak- Justice O’Connorwas issue. Finding myself disagreement with and, hypothetically ing globally and Court, respectfully dis I majority of this such, if a defendant did not state that relief, majority deny applicant To sent. type evidence he or she would offered this reading of Jurek very narrow undertakes automatically entitled to an additional be 428 U.S. merely (1976); Franklin

jury instruction. Justice O’Connor 101 L.Ed.2d type “might,” indicates this (1988); Lynaugh, 492 case, be 106 L.Ed.2d special issue. of our second reasons, following For the believe applicant that the agree cannot with We interpretation is flawed. See such an mitigation in of his he offered 69,990, (Tex.Cr.App. No. Boggess State of punishment is relevant date) (Baird, J., dissenting); delivered this or irrelevant thereto. 69,144, (Tex.Cr.App. No. Lackey v. State kind, caring, Whether has been date) (Baird, J., dissenting). this past in the and nonviolent to others character and evidence reflective of his TRAITS CHARACTER I. POSITIVE thereof, propensity, his or lack ART. 37.071 bears UNDER committing future violent acts. We capital that the Texas Applicant contends mitigating presented by find the is unconstitutional as sentencing scheme directly special is- applicant is relevant to mitigating evi- applied to him because his jury sue two and no further instruction categories, to- “fell into two distinct dence give needed to effect to this evidence. (1) that was not mitigating evidence wit: special verdict relevant to the trial objection Because of his (2) evidence and circum- and “deliberately,” ap court’s failure to define arguably relevant to stances that are plicant argues the first issue that have relevance punishment issues but precluded “considering and culpability beyond to his moral crediting mitigating evidence.” do not Baldree, Op. We the issues.” agree. Applicant’s sisters testified he was majority concedes that The loving family. toward his Since kind “kindness to oth- both evidence establishes killing per applicant was convicted two service,” 216, ers,” “voluntary Op. at by marriage, he sons to whom was related though O’Connor Op. at 216. Justice Even he evidence went to whether charac- mentioned those expressly deliberately, and thus we find the acted Franklin, majority ter traits give adequately could consider and relying “upon dicta cludes through first to this evidence concurrence O’Connor’s Justice punishment issue. 2333, Franklin, and Justice 108 S.Ct. 2966, 109 S.Ct. dissent Scalia’s Accordingly, hold Art. 37.071 was not we capital that our murder support his claim to unconstitutionally applied applicant. as sentencing is unconstitutional scheme sought The relief is denied. (emphasis add- Op. him.” applied CLINTON, J., dissenting opin joins the ed). majority, “Justice According to the BAIRD; Judge further dissents hypo- ion of he speaking globally and O’Connor opinions such, if and, for the reasons his own not state that did thetically 69,993, he (Tex.Cr.App. type de Boyd v. State a defendant offered 8,1991), (Tex. automatically entitled Boggess v. State or she would be livered Op. at 216 day), additional instruction.” Cr.App. delivered this and an background or character added). to the defendant’s concludes: (emphasis the circumstances of the offense that presented or to find the “We against imposing penal- the death special mitigates directly relevant to by applicant is ty.” Penry, 492 U.S. at jury instruction two and no further issue added). (emphasis effect to this evidence.” was needed conclusion is Op. at 217. believe this FRANKLIN AND PENRY

erroneous. III. Jurek, Court did not After II. JUREK art. 37.071 until Franklin v. reconsider does not Our 487 U.S. Lynaugh, speak mitigating circum- explicitly (1988) stances; rather, to an- directs 302, 109 S.Ct. at 2947. 492 U.S. Jurek, In swer issues. explained: Justice O’Connor constitutionality constitutionally may not ... State [A] 37.071 Crim.Proc.Ann. art. Tex.Code giving sentencing body from prevent the ques- the enumerated on whether “turn[ed] the defen- to evidence relevant to effect dant’s particular- tions consideration allow[ed] or the background or character ized factors.” miti- of the offense that circumstances passed The statute Indeed, against penalty. gates muster because constitutional consider to have the sentencer right assurance Court’s mitigating evidence weigh relevant enough interpreted broadly would be meaningless unless the sen- would be all of sentencing juries to consider enable permitted give was also tencer effect mitigating evidence a defen- the relevant consideration. to its show, including a may dant be able to To the extent that ... record, age, and prior defendant’s criminal petitioner was by introduced evidence 272-273, mental or emotional state. Id. special verdict to one of the relevant 96 S.Ct. at 2956-2957. give jury free to ef questions, the was Jurek, held After neg returning a fect to that must not that a question. If, how to that ative answer considering preclude the sentencer from ever, miti had introduced petitioner evidence, sentencer any mitigating and the gating evidence about matter of may not refuse to consider “as a circumstances character or the Lockett v. any mitigating law” evidence. was not relevant the crime that 2954, 2967, Ohio, 586, 57 438 98 S.Ct. U.S. or that had questions, verdict Oklahoma, (1978); Eddings L.Ed.2d 973 cul moral relevance to defendant’s 104, 869, 877, 71 L.Ed.2d 455 U.S. pability “any as- Mitigating instructions verdict or record pect of a defendant’s character no provided the with would have the of- any of the circumstances of expressing its “reasoned vehicle for for a fense” that serve as a basis response” to that evidence. moral If Lockett, death. sentence less than case, we would such a then this were 604, 2964-65; Eddings, 98 S.Ct. at U.S. jury’s inabil whether the have to decide 110, 102 S.Ct. at 874. 455 U.S. to that ity give effect Eighth Amendment vio 1986, to an from Lockett and amounted By “it was clear however, lation.[1] view, my this is not, consistent that a State could Eddings only mitigating a case. The not such Eighth Amend- and Fourteenth with was the by petitioner introduced ments, from consid- prevent the sentencer of disci he had no record stipulation that ering giving to evidence effect specifically emphasized portion car- This was ried forward The sentencer must prison. It is the sentencer. plinary while violations give free to give undisputed that consider and be able to stitutional While it is true than the prison disciplinary violations is best illus- ter. ... vented ulation trated endangering jailers or fellow any other onstrates mitigating effect to this evidence swering the second cause the The stipulation to the limitation has no regarding future limited regarding ability to exist stipulation had no relevance to positive aspect giving mitigating effect to probative contrasting examples character traits other petitioner’s petitioner’s charac extent that it dem practical dangerousness. prison verdict my view be inmates, lack of without or con in an ques stip- pre posed should North Carolina ] Brown, character, and crime.” original). 944] response has treated the individual appropriate Hitchcock then can we be reliable determination that evidence (1987). “Thus, (concurring opinion) (emphasis in supra, 479 U.S. at ^[2978] human the defendant’s Dugger, sentence. Woodson [v. reflect a L.Ed.2d 347 defendant as a 2991, 2992, sure that the sentencer being” imposing 481 U.S. the sentence that death is reasoned and has California ^[280] (1987). Only background, [49 “uniquely sentence. 304, 305, 393, 107 made a im- suggested character evidence 492 U.S. at (Citation omitted.) by the dissent. Evi- majority concluded: service, voluntary dence of kindness “reliability in the In order to ensure others, religious might or of devotion appropri determination that death is the demonstrate traits character specific case” ate Wood might mitigate against son, 428 U.S. at 96 S.Ct. at penalty.... jury must be able to consider and 108 S.Ct. at background, to a defendant’s char (O’Connor,J., Blackmun, J., joined by effect acter, the circumstances of the crime. or added). concurring) (emphasis O’Connor,speaking In Penry, Justice for case, In in the absence of instruc this Court, majority Supreme specifical- a of the informing the that it could tions ly held: give mitigating the consider and effect to Underlying Eddings Lockett and is the Penry’s of mental retardation principle that should be di- background by declining to and abused rectly personal culpability related to the impose penalty, we conclude of If the criminal defendant. the sen- provided was not with a tencer is to make an as- individualized expressing its “reasoned mor vehicle for appropriateness the sessment of of the in render response” al to that evidence penalty, death the defen- “evidence about reasoning in ing its decision. Our Lock dant’s and character is rele- compels Eddings and thus a remand ett belief, long vant because of the held resentencing so that we do not “risk for society, that who commit defendants penalty imposed will that the death be criminal acts that are attributable to a may for a less spite of factors which call disadvantaged background, emo- or to Lockett, penalty.” 438 U.S. at severe problems, tional and mental be less 2965; Eddings, 455 U.S. at 605 S.Ct. at culpable than defendants who have no 119,102 (concurring opinion). S.Ct. at 879 Brown, such excuse.” v. 479 California life and “When the choice is between 538, 545, 837, 841, 107 93 U.S. death, unacceptable and in that risk is (1987) (concurring opinion). L.Ed.2d 934 compatible with the commands Moreover, it Eddings makes it clear that Eighth and Fourteenth Amendments.” enough simply is not to allow the defen- Lockett, present mitigating evidence to 438 U.S. at dant to 220 Franklin,

Id., In is both at 2951-52.2 Justice O’Connor U.S. and the de- the author of the concurrence capital sentencing Penry that our held ciding vote.3 In Justice O’Connor applied be- scheme was unconstitutional as majority While opinion. the author of the express its cause the was unable to today O’Con- it is not clear whether Justice of response to reasoned moral the evidence speaks majority Supreme nor a the of Penry’s childhood mental re- abusive and Court, Penry determining believe and tardation whether Franklin appropriate punishment. Penry, the the should not be “case I fear bound.”4 320-22, Pen- interpretation art. 37.- majority’s limited of ry’s mitigating evidence established made fails to fulfill assurance we organic brain his mental retardation State, Court Jurek him damage rendered unable to learn (Court (Tex.Cr.App,1975) 522 S.W.2d 934 Additionally, Penry experience. when interpret Appeals broadly Criminal will frequently Penry a child mother beat issues to allow consideration routinely a belt and over head with evidence). If treat Justice we Penry locked in his room without access global hypo- O’Connor’s comments long periods toilet for time. misread the thetical dicta we are bound to Clearly, U.S. directly ana- only cases to Penry’s more than mitigating evidence had capital sentencing lyze our within practical limited both a short, past if do years. fifteen we sense. and constitutional re- learn shall from our mistakes we State, peat Penry them. 691 S.W.2d IV. ANALYSIS rev’d, (Tex.Cr.App.1985), Court, ap- opinions From 109 S.Ct. 2934. virtually pears believes that From I draw all evidence can be If defen- following a criminal conclusion: provided by art. under issues offers relevant dant Essentially, majority perceives 37.071. (e.g., “not relevant to” to a criminal defendant is entitled traits) positive character evidence of vehicle to effect to his evi- “beyond of” the and/or 1) dence two instances: where there disadvantaged or (e.g., background, offense is evidence a nexus between the the mit- problems), or mental emotional problems and the mental and emotional practical igating evidence has and/or defendant, State, 808 S.W.2d Gribble to a defen- stitutional criminal 2) (Tex.Cr.App.1990), there where culpability, dant’s moral the Texas that the defendant suffers from would violate retardation, mental Goodman State Eighth and amendments unless Fourteenth (Tex.Cr.App. delivered this provided the trial court with date). I believe this narrow construction re- express its Supreme prece- in the vehicle reasoned flies face of sponse evidence.5 dent. However, Moreover, portions dissenting quoted Jus- Justices in Franklin. 2. as the demonstrate, sup- departure is leaves Justice O’Connor’s view from the Court tice Brennan’s pen- ported by litany by guessing Court death is held us as to whether this view alty jurisprudence. harmonized, Penry can be Franklin and Supreme Court. five the current members of Boggess, as set forth detail in (Baird, slip op. dissenting). at 2-5 say all "not rele 5. This is not to positive is vant to” the issues limited to opinion The lead authored "beyond the character or that all evidence traits White, garnered votes. Justice four is disad of’ the limited to vantaged background mental blush, or emotional or appears simple 4. At first mathematics not problems. Relevant shared tell us that Justice O'Connor's view is Court, easily pigeon-holed. Necessarily, two members of the five concurring three that is relevant to” Justices in Franklin and the “not Boyd (Tex.Cr.App. and contrast v. State 8,1991) (evidence Texas, Appellant, The STATE of amounting

of limited nothing more than courtesy common had practical or YOUNG, Horn, no constitutional Thomas R. Emma L. and was full Horn, effect within the second Ambus Curtis J. special issue. McKelvey, Appellees. No. 875-90.

Y. CONCLUSION Appeals Court of Criminal noted, previously As En Banc. cedes that mitigating evidence positive established the character traits of June “voluntary service” and “kindness to oth- Op. ers.” at 216. A might believe possesses positive

that one who such char- “deathworthy,”

acter traits is not just as a

jury might find that a defendant who suf-

fered childhood deprivation abuse and deathworthy.

not Lackey slip op. dissent (Baird, J.,

at 3-4 dissenting), citing Penry, 324-26, 109 S.Ct. at 2950. positive

Since those character traits necessarily be relevant to the and, fact, may fall issues, applicant was

entitled to provided have his with a express

vehicle to its reasoned moral re-

sponse to those character traits.

In the appropriate absence of an instruc-

tion, a juror reasonable could well have

believed that there was no vehicle for ex-

pressing the view that did not

deserve to be sentenced to death based

upon mitigating evidence. reasons,

For these believe

was entitled to jury provided have his with express vehicle to its reasoned moral

response to evidence demon-

strating “kindness to others” and “volun-

tary service.” Because art. 37.071 did not

provide vehicle, such the Texas

sentencing scheme operated in an unconsti-

tutional manner applied applicant.

With lodge these comments I respectfully

this dissent. "beyond issues will also be of’ issues.

Case Details

Case Name: Ex Parte Baldree

Court Name: Court of Criminal Appeals of Texas

Date Published: May 29, 1991

Citation: 810 S.W.2d 213

Docket Number: 71114

Court Abbreviation: Tex. Crim. App.