Ex parte Lester Leroy BOWER, Jr.
No. 70995 to 70998
Court of Criminal Appeals of Texas, En Banc.
Dec. 4, 1991.
Rehearing Denied Jan. 29, 1992.
In the case of Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), although the Court authorized the use of shackles under the most severe of circumstances, the Court stated:
But even to contemplate such a technique, much less see it, arouses a feeling that no person should be tried while shackled and gagged except as a last resort. Not only is it possible that the sight of shackles and gags might have a significant effect on the jury‘s feelings about the defendant, but the use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold.
And, Mr. Justice Brennan, concurring at page 363, pointed out that “no action against an unruly defendant is permissible except after he has been fully and firmly informed that his conduct is wrong and intolerable and warned of the possible consequences of continued misbehavior“.
In Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), the Supreme Court recognized that even the wearing of prison garb by the defendant during trial should not be compelled “because of the possible impairment of the presumption [of innocence] so basic to the adversary system ... that the constant reminder of the accused‘s condition ... may affect a juror‘s judgment ... [and that] an unacceptable risk is presented of impermissible factors coming into play.” Id. at 505, 96 S.Ct. at 1693, citing Turner v. Louisiana, 379 U.S. 466, 473, 85 S.Ct. 546, 550, 13 L.Ed.2d 424 (1965).
Placing the burden on the defendant to show that the jury could see the shackles and that the jury was influenced by that fact in order to present error, refutes the requirement of the harmless error doctrine that the State establish beyond reasonable doubt that the error was harmless.
It is to be emphasized that this is a capital murder trial where death was assessed and that a prerequisite of that assessment was that the jury answer in the affirmative:
whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.
What better evidence could there be to show dangerousness than to have the defendant shackled while being tried?
For the above reasons and because I believe that this case establishes an extremely unfair precedent, I respectfully dissent.
Robert Jarvis, C.A., Sherman, Robert Walt, Asst. Atty. Gen., Austin, Robert Huttash, State‘s Atty., Austin, for the State.
OPINION
BENAVIDES, Judge.
This is a post-conviction application for writ of habeas corpus.1 Lester Bower seeks to set aside his death sentence based on the claim that the sentencing jury was not allowed to consider and give effect to mitigating evidence of his good character, good deeds and lack of a criminal record. We will deny the requested relief.
On October 8, 1983, four men were murdered in a hangar near Sherman. Bobby Glen Tate, owner of the hangar and one of the victims, told his family that he was attempting to sell his ultralight aircraft. Tate and three others intended to meet a potential buyer at the hangar that afternoon. Telephone records indicated that Lester Bower spoke to one of the victims three times to set up a meeting. Bower had responded to an advertisement placed in Glider Rider, a magazine for ultralight enthusiasts. A search of his home produced various ultralight equipment, including two ultralight tires with Tate‘s name scratched on them. Police also discovered blood stained boots and a blood stained nylon bag. These discoveries led to Bower‘s arrest and subsequent indictments, which charged him with the capital murders of Tate and the three other victims. A jury convicted Lester Bower of four capital murders. The jury affirmatively answered the statutory special issues and punishment in each case was assessed at death. The convictions were affirmed on direct appeal.2 769 S.W.2d 887.
In the instant habeas corpus proceeding, Bower claims that his death sentences are unconstitutional because the capital sen
Bower did not, by way of pretrial motion or trial objection, challenge the Texas capital sentencing scheme on any of the grounds alleged in this application for post conviction habeas corpus relief. However, this Court recently held that a specially requested charge or a trial objection was not required to raise a Penry challenge on appeal for cases tried before the Penry decision.7 At the time of Bower‘s trial, a Penry claim was a “right not recognized” by this Court or by the Supreme Court.
Under the capital sentencing statute, a defendant may ask the jury to “consider whatever evidence of mitigating circumstances the defense can bring before it.”8 A jury considers this mitigating evidence and answers the issues under the capital sentencing statute. Yet, where evidence of a defendant‘s background, character, or circumstances of the offense has relevance to constitutionally mandated sentencing considerations beyond the scope of the special issues, the trial court must provide instructions which allow the jury to consider and give effect to this evidence.
We have reviewed the evidence presented at trial which Bower claims warrant a mitigating instruction.9 At the punishment phase of trial, Bower introduced evidence of his good and non-violent character, his good deeds, and the absence of a prior criminal record. Bower presented this evidence to convince the jury that he would not be a future threat to society. Even without a specific instruction, evidence of his non-violent nature and lack of a criminal record was plainly relevant to the future dangerousness special issue as a mitigating factor. Mitigating evidence under Penry encompasses those circumstances of “the defendant‘s background supporting a belief, long held by society, that defendants who commit criminal acts that are attributable to [such circumstances] may be less culpable than defendants who have no such excuse.”10
Unlike the mitigating evidence presented in Penry, Bower‘s positive character evidence did not reflect that he was less morally culpable for committing the four capital murders than the average citizen.11 If the jurors believed the character witnesses, they could have considered its mitigating effect in its determination of the special issue regarding future dangerousness.
Bower attempted to show through his devotion to family, friends and his religion that violence was inconsistent with his peaceful character. The second special issue clearly encompasses considerations such as these. Bower‘s love for family and friends and his religious devotion were not circumstances of his character which contributed to the four murders. Moreover, we perceive no long held belief by the American people that those lawfully convicted of murder who have strong devotion to family, friends and religion are less culpable or blameworthy than those who murder and have no such excuse.12 Therefore, the statutory special issues provided an adequate vehicle for the jury‘s consideration of his mitigating evidence and no instruction regarding the evidence was necessary.
Accordingly, we deny the requested relief.13
MILLER and MALONEY, JJ., concur in the result.
BAIRD, Judge, concurring.
I adhere to my position as stated in Ex parte Baldree, 810 S.W.2d 213 (Tex.Cr. App.1991) (Baird, J., dissenting):
From Penry and Franklin [v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155] (1988), I draw the following conclusion: If a criminal defendant offers relevant mitigating evidence ‘not relevant to’ the special issues (e.g., evidence of positive character traits) and/or “beyond the scope of” the special issues (e.g., disadvantaged background, or emotional or mental problems), and the mitigating evidence has a practical and/or constitutional significance to a criminal defendant‘s moral culpability, the Texas capital sentencing scheme would violate of the Eighth and Fourteenth amendments unless the trial court provided the jury with a vehicle to express its reasoned moral response to the mitigating evidence.
However, unless the United States Supreme Court agrees to consider this Court‘s interpretation of Penry and Franklin, I am in the minority. See, Black v. State, 816 S.W.2d 350, 374 (Tex.Cr.App. 1991) (Baird, J., dissenting); Boggess v. State, 1991 WL 87597 (Tex.Cr.App. No. 69,990, delivered May 29, 1991) (Baird, J., dissenting); Lackey v. State, 816 S.W.2d 392, 405 (Tex.Cr.App.1991) (opinion on reh‘g) (Baird, J., dissenting); and Baldree, supra.1
The doctrine of stare decisis provides the framework for the orderly administration of justice. In my view, regardless of how strongly a judge personally feels about the correctness of his/her position, if that position fails to garner a majority of the court, he/she should adopt the view held by the majority. Therefore, while I maintain my personal belief that this Court is construing Penry much too narrowly, under the doctrine of stare decisis I am constrained to concur in the result reached today by the majority.
OVERSTREET, Judge, concurring.
This Court‘s recent series of opinions regarding mitigating evidence dictates that on a case by case examination said evidence may or may not rise to the level that causes it to be beyond the scope of the special issues of the Texas capital murder sentencing scheme. I remain with the majority on this view. This opinion correctly analyzes the evidence admitted and correctly concludes that the statutory special issues provided an adequate vehicle for the jury‘s consideration of mitigating evidence in the appellant‘s case and no special instruction regarding the evidence was neces
CLINTON, Judge, dissenting.
“But stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable....” Helvering v. Hallock, 309 U.S. 106, 119, 60 S.Ct. 444, 451, 84 L.Ed. 604 (1940).
“The principle of stare decisis does not demand that we follow precedents which shipwreck justice.” Flagiello v. Pennsylvania Hospital, 417 Pa. 486, 208 A.2d 193, 205 (Pa.1965).1
Today, justice is foundering in a Sargasso sea of opinions by members of this Court interpreting Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).2
For example, in this cause, upon reading the ubiquitous passage in California v. Brown, the majority would have it mean:
“Mitigating evidence under Penry encompasses those circumstances of ‘the defendant‘s background supporting a belief, long held by society, that defendants who commit criminal acts that are attributable to [such circumstances] may be less culpable than defendants who have no such excuse.‘”
Opinion, at 287. That in turn seems to be but a paraphrase of a similar reading of the same passage, in Ex parte McGee, 817 S.W.2d 77 (Tex.Cr.App.1991), viz:
While Woodson held the mandatory death penalty invalid “because it permitted no consideration of ‘relevant facets of the character and record of the individual offender or the circumstances of the offense,‘” it did not attempt to indicate “which facets of an offender or his offense it deemed ‘relevant’ in capital sentencing or what degree of consideration of ‘relevant facets’ it would require.” Lockett, at 604, 90 S.Ct., at 2964, 57 L.Ed.2d, at 989-990 (first emphasis in original). Accordingly, the Supreme Court made that effort and concluded: “that the sentencer ... not be precluded from considering as a mitigating factor, any aspect of a defendant‘s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death,” id., at 604, 98 S.Ct., at 2964-2965, 57 L.Ed.2d, at 990, and be able to give “independent mitigating weight to aspects of the defendant‘s character and record and to circumstances of the offense proffered in mitigation[,]” id., at 605, 98 S.Ct., at 2965, 57 L.Ed.2d, at 990 (first emphasis in original). Because it found “[t]he limited range of mitigating factors which may be considered by the sentencer under the Ohio statute is incompatible with the Eighth and Fourteenth Amendments,” the Supreme Court reversed the judgment to the extent of imposition of the death penalty. Lockett, id., at 608-609, 98 S.Ct., at 2967, 57 L.Ed.2d at 992. It did the same, and also for like limitations, in Bell v. Ohio, 438 U.S. 637, 98 S.Ct. 2977, 57 L.Ed.2d 1010 (1978) (habitual drug use, emotional instability and youth—age 16). See also Burns v. State, 761 S.W.2d 353, at 357-358 (Tex. Cr.App.1988). On a similar review the Supreme Court determined in Penry what he was seeking is not a “new rule” nor relief which “imposes a new obligation” on this State, viz: “Thus, at the time Penry‘s conviction became final, it was clear from Lockett and Eddings [v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1] (1982) that a State could not, consistent with the Eighth and Fourteenth Amendments, prevent the sentencer from considering and giving effect to evidence relevant to the defendant‘s background or character or to the circumstances of the offense which mitigates against imposition of “... Justice O‘Connor, writing for the majority, described mitigating evidence as that of a ‘defendant‘s background and character ... [supporting a] belief, long held by society, that defendants who commit criminal acts that are attributable to [such circumstances] may be less culpable than defendants who have no such excuse.‘”
In the Penry context also, Justice O‘Connor wrote:
the death penalty. Moreover, the facial validity of the Texas Death penalty statute had been upheld in Jurek on the basis of assurances that the special issues would be interpreted broadly enough to enable sentencing juries to consider all of the relevant mitigating evidence a defendant might present. Penry argues that those assurances were not fulfilled in his particular case....”
Id., 492 U.S. at 308, 109 S.Ct., at 2946-2947, 106 L.Ed.2d, at 278.
Of course, precisely because the Supreme Court found such assurances were not accomplished, it went on to apply the principle underlying Lockett and Eddings specifically to mitigating evidence of mental retardation and abused childhood offered by Penry as a basis for sentence less than death. So, to construe Penry in a vacuum, in isolation from the principle at work, not only is likely to lead to an erroneous conclusion but also, in light of past experience, expose the Court to the risk of another round of reversals and remands.
“Underlying Lockett and Eddings is the principle that punishment should be directly related to the personal culpability of the criminal defendant. If the sentencer is to make an individualized assessment of the appropriateness of the death penalty, ‘evidence about the defendant‘s background and character is relevant because of the belief, long held by 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.’ California v. Brown, 479 U.S. 538, 545 [107 S.Ct. 837, 841, 93 L.Ed.2d 934] (1987) (concurring opinion).... Only [when the sentencer is able to consider and give effect to mitigating evidence] can we say that the sentencer has treated the defendant as a ‘uniquely individual human bein[g]’ and has made a reliable determination that death is the appropriate sentence. Woodson, 428 U.S., at 304, 305 [96 S.Ct., at 2991]. ‘Thus, the sentence imposed at the penalty stage should reflect a reasoned moral response to the defendant‘s background, character, and crime.’ California v. Brown, supra, [479 U.S.] at 545 [107 S.Ct. at 841] (concurring opinion) ([last] emphasis in original).”
Id., 492 U.S. at 319, 109 S.Ct., at 2947, 106 L.Ed.2d, at 278.4
Because the individualized assessment of the appropriateness of the death penalty is a moral inquiry into the culpability of the defendant, and not an emotional response to the mitigating evidence, * * * * the jury instructions—taken as a whole—must clearly inform the jury that they are to consider any relevant mitigating evidence about defendant‘s background and character, or about the circumstances of the offense. As Justice BRENNAN‘S dissent illustrates, however, at least one difficulty with attempts to remove emotion from capital sentencing through instructions such as those at issue in this case is that juries may be misled into believing that mitigating evidence about a defendant‘s background or character also must be ignored.” Id., 479 U.S., at 545-546, 107 S.Ct., at 841, 93 L.Ed.2d, at 942. Patently, Justice O‘Connor was addressing particular items of mitigating evidence shown by Brown from the standpoint of a broader context of a general moral inquiry into culpability of any defendant based on mitigating evidence about his background and character, or circumstances of the offense—that is, culpability in every case is not to be determined solely on whether defendant suffered “a disadvantaged background or emotional and mental problems.” “Sensib[ility] to the uniqueness of the individual” certainly embraces whatever mitigating factors pertaining to culpability of a given defendant may reasonably evoke considerations of fairness and mercy. Penry, 492 U.S. at 327-328, 109 S.Ct., at 2951, 106 L.Ed.2d, at 283-284.
Of course, the majority does not cite any external authority for its notions, and certainly they are inconsistent with dissenting and concurring views on this point in Franklin, see ante, n. 4, at 291. They are also at odds with the concept of individualized sentencing in criminal cases generally accepted in this country and this state, taking into account all mitigating and aggravated circumstances. See Lockett v. Ohio, 438 U.S., at 602-604, 98 S.Ct., at 2963-2964, 57 L.Ed.2d, at 988-989 (possession of fullest information possible concerning life and characteristics of defendant highly relevant, if not essential, to determining appropriate sentence);
“Mitigation” means “Alleviation; abatement or diminution of a penalty or punishment imposed by law.” Black‘s Law Dictionary (Rev.Fourth Ed.) 1153. What constitutes “mitigating circumstances” is commonly accepted hornbook law, viz:
“Such [circumstances] as do not constitute a justification or excuse of the offense in question, but which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability.”
Ibid. The Court has recognized this principle is “one of the fundamental traditions of our system of jurisprudence.”5
One purpose of our penal code is “to deal with conduct that unjustifiably and inexcusably causes or threatens harm to those individual or public interests for which
Lockett itself demonstrates the concept of individualized sentencing in criminal cases, including consideration of mitigating factors and dispensation of mercy, is virtually unrestrictive and broadly applicable. Id., 438 U.S. at 602-606, 98 S.Ct., at 2963-2965, 57 L.Ed.2d, at 988-991 (mitigating factor is any aspect of character or record and any circumstance of offense proffered as basis for sentence less than death; mercy dispensed on basis of intangible factors). See also Burns v. State, 761 S.W.2d 353, at 357-358 (Tex.Cr.App.1988). As Justice O‘Connor discerned in Penry: “[T]here is no constitutional infirmity in a procedure that allows a jury to recommend mercy based on the mitigating evidence introduced by a defendant,” Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); “[T]he Constitution limits a State‘s ability to narrow the sentencer‘s discretion to consider relevant evidence that might cause it to decline to impose the death sentence.’ (emphasis in original).” McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1986). Accordingly, for the Court, Justice O‘Connor concluded:
“... Indeed, it is precisely because the punishment should be directly related to the personal culpability of the defendant that the jury must be allowed to consider and give effect to mitigating evidence relevant to a defendant‘s character or record or the circumstances of the offense. Rather than creating the risk of an unguided emotional response, full consideration of evidence that mitigates against the death penalty is essential if the jury is to give a ‘reasoned moral response to the defendant‘s background, character, and crime.‘’ [citations omitted].”
Id., 492 U.S. at 327, 109 S.Ct., at 2951, 106 L.Ed.2d, at 284.
Personal culpability is thus a matter of consequence to the determination of capital punishment, and its components include all aspects of character, background, record and circumstances of the offense. That determination of personal culpability presupposes a finding of legal culpability for the offense, and thus requires that there be separately taken into account the circumstances of the offense “together with the character and propensities of the offender.” Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, at 55, 58 S.Ct. 59, at 61, 82 L.Ed. 43, at 46 (1937). Guilt of a capital offense having been found, “the fundamental respect for humanity underlying the Eighth Amendment ... requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” Woodson v. North Carolina, 428 U.S. 280, at 304, 96 S.Ct. 2978, at 2991, 49 L.Ed.2d 944, at 961. Sentencer must be allowed to give “independent weight to aspects of the defendant‘s character and record and to circumstances of the offense.” Lockett, supra, 438 U.S. at 605, 98 S.Ct., at 2965, 57 L.Ed.2d, at 990.
The Supreme Court has not defined character generally and has rarely undertaken to delineate and apply relevant traits of character in a capital case. Boyd v. State, 811 S.W.2d 105 (Tex.Cr.App.1991) (Clinton, J., dissenting, Opinion at 289, n. 3); but see Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986) (disposition to make well-behaved and peaceful adjustment to prison life is relevant aspect of character). The majority view gleaned
In noncapital cases those considerations of public policy enacted into statutes that account for wide acceptance of individualization of sentences “cannot be thought less important in capital cases;” indeed, “[t]he need for treating each defendant with that degree of respect due to the uniqueness of the individual is for more important than in noncapital cases.” Lockett, supra, 438 U.S. at 605, 98 S.Ct., at 2965, 57 L.Ed.2d, at 990.
The courts in this jurisdiction have dealt extensively with character evidence in noncapital cases, first under of the common law and then in light of legislative policy determinations reflected in enactments from suspended sentence laws through adult probation acts and bifurcation into two stages of most criminal trials before a jury on a plea of not guilty. See Murphy v. State, 777 S.W.2d 44, at 59-62 (Tex.Cr.App.1989). That they came to strikingly similar conclusions about character evidence as the Franklin majority did is, therefore, instructive regarding the function of character evidence in our own scheme for assessing punishment in capital cases.6
Drawing on the concurring opinion in Franklin, Penry contemplates that miti
“... To the extent that the mitigating evidence introduced by petitioner was relevant to one of the special verdict questions, the jury was free to give effect to that evidence by returning a negative answer to that question. If, however, petitioner had introduced mitigating evidence about his background or character or the circumstances of the crime that was not relevant to the special verdict questions, or that had relevance to the defendant‘s moral culpability beyond the scope of the special verdict questions, the jury instructions would have provided the jury with no vehicle for expressing its ‘reasoned moral response’ to that evidence.”
Franklin, 487 U.S. at 185, 108 S.Ct., at 2333, 101 L.Ed.2d, at 173; Penry, 492 U.S. at 321, 109 S.Ct., at 2948, 106 L.Ed.2d, at 230.
So far, however, a majority of this Court has dismissed the majority view in Franklin, with a variety of rationalizations, and takes the position that evidence of favorable background and positive character traits may be considered in mitigation only in answering the second special issue. See, e.g., Ex parte Baldree 810 S.W.2d 213 (Tex.Cr.App.1991) (“Justice O‘Connor was speaking globally and hypothetically,” not saying defendant “automatically entitled” to separate instruction, at 217); Black v. State, 816 S.W.2d 350 (Tex.Cr.App.1991) (positive mitigating evidence “qualitatively different from that in Penry” and directly relevant “within scope of second punishment issue,” 816 S.W.2d at 365); Boggess v. State, 1991 WL 87597 (Tex.Cr.App. No. 69,990, delivered May 29, 1991) (evidence presenting defendant in favorable light “may have indicated to the jury he was less deserving of a sentence of death,” but special issue two an adequate vehicle for jury “to consider and respond to [that] particular mitigating evidence,” slip opinion, at 3); Boyd, supra, 811 S.W.2d at 112; McGee, supra, 817 S.W.2d at 80; Opinion in instant cause, at 286-87. Such restrictive views are myopic. Compare Baldree v. State, supra, (Baird, J., dissenting).7
An inquiry whether there is a probability that defendant would commit criminal acts of violence that would constitute a continuing threat to society is an exercise in predictability. Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983); Jurek v. Texas, 428 U.S. 262, 274-276, 96 S.Ct. 2950, 2957-2958, 49 L.Ed.2d 929, 939-941 (1976). To predict probabilities that one would commit criminal acts of violence does not implicate one‘s moral culpability, and is analytically distinct from making a “reasoned moral response” to evidence reflecting a favorable background and positive character. See Penry, 492 U.S. at 355, 359, 109 S.Ct., at 2966, 2968, 106 L.Ed.2d, at 302, 304 (Scalia, J., concurring and dissenting). The prognosticator may analyze and weigh facts of the offense alone, Bower v. State, 769 S.W.2d 887, at 895 (Tex.Cr. App.1989), or with other relevant evidence of material indicia of past conduct, to predict future behavior, and nothing within the second special issue suggests to jurors that consideration of “moral culpability” is a relevant ingredient in predictability. On the other hand, the mitigator analyzes and weighs all “circumstances of the offender” to determine moral culpability in the premises.8
Even though the prognosticator may gratuitously take into account evidence of favorable background and positive character
Decisions of the Court “provide no guidance on how a jury might balance factors that mitigate the defendant‘s ethical blameworthiness with factors that suggest his continued dangerousness when the evidence indicates the presence of both types of factors.” Dix, Administration of the Texas death Penalty Statutes: Constitutional Infirmities Related to the Prediction of Dangerousness, 55 Tex.L.Rev. 1343, at 1372 (1977).
Nonetheless, the majority continues to assert that the second special issue “clearly encompasses” positive mitigating evidence, in that here the traits shown are not “circumstances of his character which contributed to the four murders.” Id., at 287. That notion is obviously part of a broader perception of “the central basis for ... Penry” suggested in a concurring opinion in Richardson v. State, 1991 WL 99949 *7, (Tex.Cr.App. No. 68,934, delivered June 12, 1991), slip opinion at 1-2; it smacks of a “nexus requirement” which this Court recognized and acknowledged in Lackey v. State, 819 S.W.2d 111 (Tex.Cr.App.1991) “would seem to conflict with Lockett [and] Eddings,” id., 819 S.W.2d at 135, n. 10, neither of which lay down any such requisite, see ante, 288-89, n. 2; 290-91, n. 4; 291. Moreover, the Court has not adopted that perception, unless it can be confidently said that the majority approved what otherwise appears to be pure obiter dictum in McGee, 817 S.W.2d at 80; see Baird, J., concurring.
As with the common law right to allocution, “before we decide to take a person‘s life in our society, our sense of humanity as well as our basic constitutional principles and our desire to reach correct results in serious capital cases, require that we take the time and effort to hear and consider what the person may want to place before us as a reason for not taking his or her life.” Benson, “Texas Capital Sentencing Procedure after Eddings: Some Questions Regarding Constitutional Validity,” 23 S.Tex.L.J. 315, 332 (1982). ”Lockett requires the sentencer to listen.” Eddings, 455 U.S. at 114-115, n. 10, 102 S.Ct. at 876-877, 71 L.Ed.2d at 10-11.
Accordingly, for all those reasons developed ante, as well as others presented by my separate opinions in Stewart, Boyd, Baldree, Black, Boggess, Richardson and others, I respectfully dissent to continued resistance by the majority against the current of holdings in, e.g., Lockett, Eddings, Skipper and Penry—now legislatively introduced into and confirmed as a matter of public policy by our own statutory law.9
Thus, in practically the same terms of pertinent holdings in Penry more than two years ago, the Legislature has shown this Court the way out of the morass in which justice in capital cases is still foundering.
Curtis Ray WHITE, Appellant, v. The STATE of Texas, Appellee.
No. 0063-91.
Court of Criminal Appeals of Texas, En Banc.
Jan. 8, 1992.
Rehearing Denied Feb. 12, 1992.
Notes
“Stare Decisis channels the law. It erects lighthouses and flys the signals of safety. The ship of jurisprudence must follow that well-defined channel, which over the years, has been proved to be secure and trustworthy. But it would not comport with wisdom to insist that, should shoals rise in a heretofore safe course and rocks emerge to encumber the passage, the ship should nonetheless pursue the original course, merely because it presented no hazard in the past. The principle of stare decisis does not demand that we follow precedents which shipwreck justice.”
Id., 208 A.2d at 205. Later, changing the metaphor, he added:
“There is nothing in the records of the courts, the biographies of great jurists, or the writings of eminent legal authorities which offers the slightest encouragement to the notion that time petrifies into unchanging jurisprudence a palpable fallacy. As years can give no sturdiness to a decayed tree, so the passing of decades can add no convincing flavor to the withered apple of sophistry clinging to the limb of demonstrated wrong.”
Id., 208 A.2d at 206. (All emphasis throughout is mine unless otherwise noted.)
“[T]he concept of individualized sentencing in criminal cases” gained wide acceptance in this country long before Furman v. Georgia, et al., 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), held unconstitutional imposition of and carrying out the death penalty under statutory schemes implicated in those cases, including our own Branch v. State, 447 S.W.2d 932 (Tex. Cr.App.1969). Lockett v. Ohio, 438 U.S. 586, at 602-604, 98 S.Ct. 2954, at 2963-2964, 57 L.Ed.2d 973, at 988-989 (1978). For a synthesis of the separate opinions in Furman v. Georgia, see Jurek v. State, 522 S.W.2d 934, at 937 (Tex.Cr. App.1975) (three concurring justices condemned “arbitrary, capricious and standardless manner [of imposition]“).
Various legislative responses to Furman were examined four years later in five cases, including Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App. 1975), and a joint opinion in each upheld constitutionality of statutes in three while holding two unconstitutional. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Roberts (Stanislaus) v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). Collectively those opinions stand for the proposition pertinent here, viz:
“.... [T]he sentencing process must permit consideration of the ‘character and record of the individual offender and the circumstances of the offense as a constitutionally indispensable part of the process in inflicting the penalty of death,’ Woodson v. North Carolina, 428 U.S., at 304, 96 S.Ct., at 2991, 49 L.Ed.2d, at 961, in order to ensure the reliability, under Eighth Amendment standards, of the determination that ‘death is the appropriate punishment in a specific case.’ Id., at 305, 96 S.Ct., at 2991, 49 L.Ed.2d, at 961; see Roberts (Harry) v. Louisiana, 431 U.S. 633, 637, 97 S.Ct. 1993, 1995, 52 L.Ed.2d 637, 642 (1977); Jurek v. Texas, 428 U.S. 262, 271-272, 96 S.Ct. 2950, 2956, 49 L.Ed.2d 929, 938 (1976).” Lockett v. Ohio, supra, 438 U.S. at 601, 98 S.Ct., at 2963, 57 L.Ed.2d, at 988.
“In my view, evidence about the defendant‘s background and character is relevant because of the belief, long held by 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. This emphasis on culpability in sentencing decisions has long been reflected in Anglo-American jurisprudence. As this Court observed in Eddings, the common law has struggled with the problem of developing a capital punishment system that is ‘sensible to the uniqueness of the individual.’ [citation omitted]. Lockett and Eddings reflect the belief that punishment should be directly related to the personal culpability of the criminal defendant. Thus, the sentence imposed at the penalty stage should reflect a reasoned moral response to the defendant‘s background, character, and crime rather than mere sympathy or emotion. [last emphasis in original].
In California v. Brown, supra, defendant presented extensive testimony in two categories, viz: one, from lay witnesses and a psychologist to the effect that he “possessed a gentle and nonviolent nature disturbed only by severe psychosexual problems resulting from a difficult childhood;” second, from friends and relatives indicating “affection for him.” 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934; see 479 U.S., at 539, 107 S.Ct., at 838, 93 L.Ed.2d, at 938-939 (psychiatric testimony that defendant killed victim “because of his shame and fear over sexual dysfunction;” other witnesses “recounted [his] peaceful nature“); id., at 560, 107 S.Ct., at 849, 93 L.Ed.2d, at 952 (Brennan, J., dissenting) (“defendant literally stakes his life on ... evidence of his psychological problems and harsh family background);” see also California v. Brown, 40 Cal.3d 512, 220 Cal.Rptr. 637, 709 P.2d 440, 453 (1985).
Manifestly, the first category is the evidence to which Justice O‘Connor alluded in her formulation of an accused with “a disadvantaged background or [] emotional and mental problems” being less culpable than defendants “who have no such excuse.” She made no mention of positive character traits.
Concurring in Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988), however, Justice O‘Connor agreed with the dissenters concerning “examples of probative evidence,” i.e., “voluntary service, kindness to others, or of religious devotion might demonstrate positive character traits that might mitigate against the death penalty.” Id., at 186, 108 S.Ct., at 2333, 101 L.Ed.2d, at 173. Together, those justices concurring and dissenting then constituted a majority of the Supreme Court. See Boyd v. State, 811 S.W.2d 105 (Tex.Cr.App.1991) (Clinton, J., dissenting).
Positive character traits mitigate against the penalty in the sense of extenuating or reducing the degree of moral culpability, not to “excuse” legal culpability for committing those acts constituting the offense. Thus “background and character unrelated to [the] crime should be considered by the sentencer[.]” Boyde v. California, 494 U.S. 370, at 399, 110 S.Ct. 1190, at 1208, 108 L.Ed.2d 316, at 341 (1990) (Marshall, J., dissenting, citing Penry, supra).
“Some discretion is inherent and desirable in any system of justice, from arrest to final judgment. * * * * To eliminate all discretion on the part of the jury would be to risk elimination of that valuable element which permits individualization based on consideration of all extenuating circumstances and would eliminate the element of mercy, one of the fundamental traditions of our system of criminal jurisprudence.”
Id., at 940 (notes citing law review articles omitted). See also Stewart v. State, 686 S.W.2d 118 (1984) (Clinton, J., dissenting at 126: Court should provide for jury consideration—independent of narrow special issues—of whatever mitigating circumstances are adduced to decide whether “mercy” is appropriate).
In unitary trials such testimony, particularly for being a peaceable and law abiding citizen, must be founded on reputation known prior to trial, Graham v. State, 29 Tex.App. 31, 13 S.W. 1013, at 1014 (1890), except where an issue of suspended sentence is in the case, Rosamond v. State, 97 Tex.Cr.R. 569, 263 S.W. 297, at 299 (1924), in which event the test is “present reputation,” Smith v. State, 94 Tex.Cr.R. 633, 252 S.W. 562 (1923). See generally Hamman v. State, 166 Tex.Crim. 349, 314 S.W.2d 301, at 303-305 (Tex.Cr.App.1958), and Murphy v. State, supra, at 58-60.
With advent of bifurcated trials under
Furthermore, in Allaben v. State, 418 S.W.2d 517 (Tex.Cr.App.1967), the Court recognized the more comprehensive nature and wider dimensions of a punishment hearing when it held that in addition to matters specified in
Under Lockett and progeny including Penry, if appropriate in an ordinary case, how “far more important” such circumstances become in capital cases.
“Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant‘s character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.”