Ex Parte Goodman

corpus of habeas petition this for writ set pur- address the ineffectiveness claim

and to the standards set forth

suant Strick- Washington, 466 U.S.

land v. (1984). See also

S.Ct.

Hernandez

(Tex.Cr.App.1986). Michael GOODMAN.

No. 70887. Texas, Appeals Criminal

En Banc.

May 29, 1991.

Rehearing July Overruled Mallett, A.

Alexander Bunin Edward Houston, appellant. Jr., Holmes, Atty.,

John B. Dist. Haseman, Atty., Roger A. Asst. Dist. 384

Houston, Huttash, and recommended that and Robert State’s State’s assertions Austin, relief be denied. Atty., the State. applicant essentially

We find has raised a Lynaugh, claim under v. 492 U.S. (1989), 2934, 109 106 L.Ed.2d 256 S.Ct. OPINION trial, although appeal, filing and his direct preceded the application this writ all MILLER, Judge. Supreme Penry. Court’s decision in application for post This is a conviction case, Penry that argued he was sentenced pursuant to the corpus filed writ of habeas Eighth to death violation of the Amend- provisions of Art. V.A.C.C.P. jury provided ment because his was not capital was convicted of mur- Applicant give mitigat- with a vehicle to effect to his September and sentenced der ing imposing evidence in its sentence. At 37.071(e), by judge. to death the trial Art. trial, Penry presented his evidence that he appli- This Court affirmed V.A.C.C.P. organic damage possibly suffered brain and sentence on direct cant’s conviction beatings multiple caused at birth or and State, appeal. v. retarded, Goodman injuries, mentally that he was and (Tex.Cr.App.1985). Applicant did not 850 he a child. Pen- that had been abused as petition Supreme the United States Court ry’s lodged numerous ob- defense counsel for a writ of certiorari. charge punishment, jections jury to the the which were overruled. Before Su- us, application In his before Court, preme Penry argued that his miti- prevented present- he contends “was gating evidence of mental retardation and consider, ing, having jury and from child abuse had relevance to his moral cul- mitigating evidence his blameworthiness special pability beyond scope militating against appropri- and otherwise 37.071(b), Art. and that the issues under penalty, ateness of a death and was denied express its jury was unable to “reasoned sentencing discre- exercise of informed response” to evidence in deter- that tion, compassion mercy, and violation of appropriate mining whether death was the and Fourteenth Amendments to punishment. 109 S.Ct. at 2948. Appli- the United States Constitution.”1 argues Supreme agreed application capi- cant in his that our The sentencing special miti- stated that a instruction with tal statute does not allow gating weight given regard mitigating evidence was nec- to be to evidence issue, first family background, poverty, essary. violent or cir- As to the opined instruction beyond cumstances a defendant’s control Court that without this juror Penry’s him who retarda- which have made “less able to control “a believed recognizes background diminished his moral Applicant his actions.” that evi- tion and imposition mitigating potential” culpability and made dence with “clear penalty un- may support jury’s affirmative an- death unwarranted would be also issues, give if the mandating the able to effect to that conclusion swers to the Penry committed juror also believed that penalty. death The State counters ” ‘deliberately.’ at 2949. The adversely decided the crime Id. this issue has been double-edged sword recognized applicant by both this Court and United Court Penry’s evi- judge’s The trial characteristic States Court.2 the second issue. That basically quoted dence under conclusions law State, (1976); allegations 691 Applicant L.Ed.2d 929 also raises eleven other 49 only granted application, (Tex.Cr.App.1985), in his but we review cert. denied 474 (1986). one contention. on this U.S. also held that an additional This Court has have held Article 37.071 is consti 2. Both courts re evidence is not instruction on presentation to and tutional as it allows sentencing quired scheme. Cordova under our mitigat of all relevant consideration (Tex.Cr.App.1987). S.W.2d ing provides discre evidence and sufficient Texas, S.Ct. tion. Jurek v. rights. of fundamental constitutional is, which diminish als very Banks, 540, and cases cited also indicated there his blameworthiness by applicant allegation raised therein. probability he would be a con- was a rights under implicates applicant’s Thus, the second tinuing society. threat to Amendments to be Eighth and Fourteenth a vehicle for provide issue did not punishment. free from cruel and unusual mitigating effect to Pen- jury give the to (issue cognizable Penry, See Likewise, Id. ry’s “mitigating” evidence. corpus). This via federal of habeas writ special issue ad- found the third Court Penry remarkably cause is similar to given dressing provocation, which was Penry, Appli case. See 109 S.Ct. at 2941. charge, juror allow a Penry’s jury failed to attorney timely requested an cant’s trial culpa- lacked the moral believed who jury regarding the additional instruction express bility be sentenced to death to to which denied mitigating evidence was juror in this issue if the conclud- that view allegation hold the judge.4 the trial We Penry’s action was not a reasonable ed corpus application cognizable a habeas via provocation. at 2950. response to the Id. raise the com despite applicant’s failure to Thus, applied Penry, to Art. 37.071 was as appeal. plaint on direct unconstitutional. appli in the As to the merits writ Before we address the merits of cation, applicant’s attorney cites to numer ap presented claim in this writ mitigat places in the trial record where ous plication, we must first decide whether this ing introduced.5 Prior to tri evidence was cognizable of habeas issue via writ al, applicant, Penry, competency like had a corpus presented where it is for the first hearing and of his mental retarda It is well-settled this that time.3 Court Testimony pun presented. tion was corpus not the writ of habeas should be stage applicant mild ishment revealed was litigate matters should have used to which moderately mentally retarded with an ly to appeal. been raised on direct IQ level of an of 56 and had the intellectual Banks, (Tex.Cr.App. year eight or nine old child. There was 1989). Traditionally, the writ is available testimony applicant that attended also grade and that he jurisdictional only to review or deni school to the sixth defects Although applicant directly did address whether 3. did not raise this not argued appeal, mitigating necessary cog- preserving issue on he his evi- error at trial was for Penry’s dence rendered insuffi- nizability of mental retardation reached the merits of but cient the evidence on issues one and objection. claim based on his Given the sim- two. The Court overruled these contentions. ap- objections, in the we therefore find ilarities Goodman, 701 S.W.2d at 866-867. preserve plicant's objection error in sufficient to however, Facially, does this case. attorney Specifically, applicant’s request- jury charge, 4. trial appear not to add much to the jury ed the trial to that “You instruct not be that such an instruction we note you may are further that consider in instructed jury provide a vehicle to to with sufficient deliberating on the issues submitted evi- response express to the miti- its reasoned circumstances, mitigating any.” dence of if gating evidence. Furthermore, regardless adequacy of trial, Penry's objected he to the failure of instruction, applicant’s claim would not be this charge jury "you the court’s to instruct the procedurally barred. See Black v. evidence, may take into consideration all of the day) (Tex.Cr.App. decided this nature, aggravating mitigating whether or if J., B.). concurring (Campbell, Part II. to any, case, you submitted to in the full trial of the you is all of the to evidence submitted Applicant's attorney also filed with this Court part in the trial of the first case wherein this addressing presubmission this memorandum you up guilt were called to determine the or was submitted claim. This memorandum of the evi- innocence of dence, Defendant and all Supreme Court delivered to the Court after the mitigating aggravating in na- whether directly Penry. By citing ture, its decision in any, permitted you second if as in the record, attorney applicant's notes the sim- you upon trial part of the trial wherein are called mitigating ilarity evidence in hereby between the this issues submitted to determine Penry. you.” case and in from

possibly damage.6 proverbial double-edged suffered brain sword on the sec punishment ond issue. While Applicant application asserts in his writ mental retardation tends to ameliorate his jury punishment instructions at crime, blameworthiness it simulta not inform “did that it could con- neously likely indicates he is to be a con sider defense evidence if even it society. tinuing threat to Penry, 109 S.Ct. not directly was related to deliberateness at 2949. Without a instruction re dangerousness actually future or if it garding this we cannot sure be supported danger- deliberateness or future give any was able to compelled agree ousness.” We are weight express its “reasoned moral precluded that his was response” answering punishment is giving mitigating punishment effect to his Thus, sues. we must conclude the sentenc mitigating evidence. We find that “his evi- ing procedure employed applicant’s trial beyond scope dence ... has relevance was violative of the and Fourteenth issues, of the and that [two] State, Amendments. Cf. Gribble v. 808 jury express was unable to its ‘reasoned (instruction (Tex.Cr.App.1990) response’ moral to that evidence in deter- required jury so that could consider and mining penalty whether the death was the give mitigating effect to evidence of trou appropriate punishment.” Penry, 109 childhood, bled abnormal mental and emo 5.Ct. at 2948. condition, aberrations). tional and sexual Applicant’s mildly evidence that he was sought granted. judg- The relief moderately mentally retarded was rele vacated, ment of the trial court vant to of both issues submitted applicant custody is remanded one, punishment. As to issue number County Sheriff of Harris to answer the question applicant, bore on the of whether indictment. victim, killing deliberately acted expectation with a reasonable of the vic BAIRD, MALONEY, OVERSTREET and this, however, Beyond tim’s death. issue JJ., agree do not the dicta contained in juror express one does not allow a his footnote 6. applicant’s belief that because of mental his culpability retardation is dimin CLINTON, Judge, concurring. 2949; ished. Penry, Ly Franklin v. 2320, 2332, caselaw, naugh, post-convic 487 U.S. 108 S.Ct. Under our current (1988) (plurality opinion). Ar tion collateral attack is available under Moreover, 11.07, V.A.C.C.P., mental Goodman’s retardation is ticle to raise errors of type presents parte of evidence which federal constitutional dimension. Ex Through ap- punish- an affidavit attached to this writ as it could have been introduced at the plication, applicant’s attorneys one of trial listed phase applicant’s ment of trial. We will not mitigating other evidence as to back- arguments addressing entertain evidence which ground development and mental of he which proffered would have been defense counsel strategically and co-counsel were aware but had trial allowed an additional present punishment given chose not to would, instruction on that evidence. To do so 37.071(b). logistics of Art. Trial counsel notes effect, applicant "post-con- allow to make a presentation in his affidavit that of this evidence exception,’’ procedure viction bill of a which only would have hurt since the comport contempora- does not with this Court’s consider, had no means to under Art. neous rule. enough whether this evidence was substantial as admissibility mitigating As to the of mitigating circumstance to call for a life sen- always we have held that such was findings tence in the face of affirmative on the and, thus, admissible we are disinclined to ex- argues issues. Trial counsel further in noncompliance introducing cuse in the area of precluded the affidavit that the finding was Consequently, evidence. absent a negated that such evidence the deliber- contemporaneous proof excep- or bill offer 37.071(b)(1). ateness Art. crime. Affida- detailing tion what evidence was family vits from members and friends were also appellant during TACTICALLYwithheld application. attached to the writ trial, we will not be heard to consider the same We refuse to consider in this writ this evi- now. provided by way dence to the Court of affidavit

387 dard, cognizability limit suggesting we Banks, (Tex.Cr.App.1989). 769 S.W.2d 539 claims: may be constitutional constitutional claims federal Some federal however, defaulted, and this procedurally constitutional defects so ‘exceptional’ “to a forfeit will not reach the merits of susceptible to as not to be ‘fundamental’ corpus. parte ed claim on habeas See harm, such as those determination (Tex.Cr.App. Crispen, 777 S.W.2d 103 Clark, 478 U.S. identified in Rose v. 1989). But, claim never a forfeitable L.Ed.2d 577-78, 106 S.Ct. if it cognizable on the merits theless be (1986). It is omitted.] [footnote excusing forfeiture artic meets the test for justify of this kind [that] ‘[e]rrors Chambers, parte 688 S.W.2d ulated in Ex long a relief no matter how collateral J., (Tex.Cr.App.1984) (Campbell, con may have been final and even judgment “right” upon if curring), which viz: pre- they may not have been though premised recognized” was “not as relief is original trial.’ properly in the served procedural default. I of the time of the [509,] Lundy, Rose v. Judge Campbell’s separate joined have [1198,] at 102 S.Ct. opinion in Black v. (Stevens, J., (1982) dis- [379,] at 404 [ ]. day), holding (Tex.Cr.App., delivered this omitted).” (footnotes senting) predicated upon Penry Ly that claims Dutchover, 779 Subsequently, in Ex 2934, 106 naugh, 492 U.S. (Clinton, J., (Tex.Cr.App.1989) (1989), L.Ed.2d 256 meet the Chambers concurring), proposed I further doctrine test, cognizable therefore even and are excuses, federal con- applicable to those time on direct when raised for the first meet the cri- claims that do not stitutional Thus, I attack. appeal or on collateral suggested Crispen: teria error agree that under our caselaw applicability of a consti- may “It be that 11.07, I cognizable supra. under Article is analysis prove too tutional harm would however, add, I separately write to cognizability to inflexible a criterion would reach the merits of claim judgment of the collective accommodate any irrespective here of whether forfeiture regarding which constitutional the Court I parte is excusable under Ex Chambers. grievous trump sufficiently claims are to lodge relatively also to minor wish several persuasive finality interests. otherwise objections majority opinion. to given applicant may A be able to show a con- of the Court both satisfaction I. and such attendant stitutional violation appealed time I to For some now have impugn fundamental fairness harm as to principled to construct a more the Court him. If proceeding against of the whole making standard for threshold determina- could have not one he the defect was cognizability tions of of federal constitu- ordinary diligence in the by raised due 11.07, supra. tional claims under Article review, the appellate course of require- There is no federal constitutional to hold that the State’s might well choose recognize any, ment that we much less finality judgments must interest every, constitutional claim in state federal give way.” corpus. post-conviction habeas Id., (Clinton, J., concurring). finality me now that supra at 79. It occurs to Crispen, further counsel these in the context of the law of contem- considerations Just as constitutional de- objection, analysis non-exceptional is federal poraneous what only be entertained on collat- cognizable attack should be fects should on collateral by eral attack if the basis for the claim was informed first and foremost the State’s recognized by fi- the courts at the time of the integrity in the legitimate interest say, non- pro- applicant’s trial. That to nality appellate convictions. The not should deciding exceptional constitutional claim past. Any standard for cess applied post-convic- pro- retroactively in state to entertain in a collateral be what claims Apart from corpus. I rigorous. Crispen, tion writ habeas ceeding should be claims, con- already-extant exceptional stan- proposed acceptable seemed an what stitutional claims such as ineffective assist- is of such character as to defeat the State’s appeal, finality purposes ance of counsel at trial or on interest in of deter- attack, exculpatory mining cognizability failure of the State to disclose on collateral no justification where a to denying record substantiate can exist for full re- claim, troactivity the claim by requiring could not have been made due to that or for an diligence objection in perfection point before of the record on the trial court or of error appeal. Finality appeal, cognizable is the common touch- should be on collateral “exceptional” stone. That an federal con- upshot non-excep- attack. The is that for cognizable claims, stitutional claim is at all under tional federal constitutional I would Article should mean definition “right recog- not entertain a not Chambers was, that we do not care whether analysis. nized” been, any point could have raised at below. contrast, By however we choose to define “exceptional” Supreme an federal constitutional de- definitively Court has not fect, one, subject once we have identified we said whether error is to a “exceptional” Jhould consider it pur- analysis. inquiry for all constitutional harm An poses. “right recognized” A analysis required not for harm was neither of nor con superfluous. pointless would be For it is upon ducted the Fifth Circuit remand. say cognizable post-convic- (CA5 a claim is Lynaugh, See 882 F.2d 141 1989). corpus tion habeas because it fits within an There are some indications “exceptional” category, but then decline to Court would consider a harm analysis appropriate.* treat it on the merits because of some See Hitchcock v. procedural appellate default at the trial or Dugger, U.S. 107 S.Ct. 1821, 1824, (1987); level. A federal constitutional violation at 353 magni- of sufficient Mississippi, be character or Clemons U.S. —, 1450-51, obliged say tude that we are that our 725, — (1990); in rectifying interest it overcomes other- L.Ed.2d at 741-42 Parker v. compelling finality U.S.-,-, 731, wise Dugger, interests. We 111 S.Ct. 738, 739, say premised (1991). therefore that a claim 112 L.Ed.2d 812 But irre upon violation, though spective such a it dc«s not affect ultimately proves of whether it court, jurisdiction convicting cog- susceptible analy is to a constitutional harm attack, sis, “exception nizable collateral without more. I would consider an Penry (Clinton, J., supra Crispen, con- al” federal constitutional claim. The State curring). An in finality overriding upholding interest is also has no interest in the undergirds governing finality what our rules under cir con- of a sentence of death temporaneous objection retroactivity. capital sentencing in cumstances which the say procedure Eighth Once we a federal constitutional claim does not meet threshold * Court, 1441, 738, capacity appellate Mississippi, That this in its as direct v. 494 U.S. 110 S.Ct. 108 cases, (1990), addressing capital meaningfully L.Ed.2d without other court 725 in can deter- instance, problems engender. that would For "beyond a mine reasonable doubt” that certainly capital force a would be unfair to error did or did not contribute to the assess- recog- put accused to on evidence itself penalty awfully ment of the death seems an "double-edged," con- nized to be thus himself unlikely prospect predict to me. How can we tributing jury’s to to the affirmative answers any jury, with level of confidence how a issues, Court, hope con- in the that this presented going evidence be- review, ducting appellate Penry ad- an would issues, yond special would answer the value- despite jury’s him fit live answers to to laden, non-fact-specific question of whether a Moreover, issues. assume we were capital spite offender deserves to live in of his persuaded by mitigating to be evidence that judgment simply pre- crime? Such a cannot be capital defendant who has been assessed "beyond dicted a reasonable doubt.” It seems penalty death in the trial court nevertheless simply substituting to me we could not avoid if we were to does not deserve to die. Even judgment our own normative that for which the nullify the death sentence as a matter of precluded making was —because dictates, su- Amendment neither Article error itself. 44.251, V.A.C.C.P, pra, nor Article authorizes sentence, any impose Nor could we declare ourselves the ultimate this Court to a life place. question, arbiter of that normative see Clemons other alternative in its

389 given, have had it been would “reliability.” requested, standards for Amendment error, 280, cure for it Carolina, Penny insufficient to 428 U.S. been v. North Woodson (1976). to consider 2978, have instructed That would 96 S.Ct. only pertains as it any mitigating evidence accorded full consideration be re Penny instructions. But sentencing proceeding capital in a empowered to as be quires that ultimately: the basis sentence less than death on sess a predicate on the that the squarely “rests scope of mitigation goes beyond that penalty qualitatively of death is different long ago This Court issues. imprisonment, sentence of how- from a mitigates that as to evidence observed Death, long. finality, in its differs ever spe strictly parameters within imprisonment than a 100- more from life issues, logical relevance would be cial one of year prison term differs from in apparent, special jury and no readily qualita- year or two. Because of that Quinones State, necessary. is struction difference, corresponding there is a tive 933, (Tex.Cr.App.1980), 592 S.W.2d reliability in difference in the need for 256, denied, 893,101 S.Ct. cert. ap- that death is the the determination 1027, 121, denied, 449 U.S. L.Ed.2d reh. propriate punishment specific in a case.” 600, 66 L.Ed.2d 490. See also 101 S.Ct. 306, 2991, Id., 428 U.S. at 96 S.Ct. at 353, 358, State, n. 5 Burns v. in L.Ed.2d at 961. The State’s “interest re (Tex.Cr.App.1988). That observation leaving litigation in a concluded state pertinent. specific instruction mains is, repose, reducing controversy requested by applicant at his trial was subject judgment a final not to further State, 805 properly denied. See James revision,” States, judicial Mackey v. United (Tex.Cr.App.1990) S.W.2d n. 3 U.S. (Opinionon remand from the United States (1971) (Separate at 415 Court). Harlan, J.), opinion by away must fall Penny the face of a claim. Because death event, any question of what consti- irrevocable, reliability procedure objection Pem~y tutes a sufficient invoke adjudging indispensable. Penny it is If addressed. Under the Court’s need not be anything, stands for it is that Article 37.- holding supra, request no Black v. itself, supra, by constitutionally is a necessary preservation determining unreliable mechanism for applicant’s Penny error. appropriate penalty death is an whenever Second, plurality judges a declares proffered having mitigating po- evidence is arguments ad that it “will not entertain logical tential that transcends its relevance dressing evidence which would have been special to the issues. Where the decision proffered counsel had the trial by defense to execute is made under circumstances so an additional instruction allowed Amendment, suspect Eighth under the Because the that evidence.” At n. 6. repose State’s interest in of its convictions grants relief without resort to justify repose cannot of the convicted. evidence, is also potential this observation gratuitous. As in Hammond II. 749-750, (Tex.Cr.App. n. 7 S.W.2d respects other I take three issue with 1990), day. left for another question First, majority opinion. opinion in applicant’s mitigat- Finally, it is true that Penny purport itself does not to decide ing in this cause fits the “double- Penny constitute a sufficient what would Nevertheless, mold, edged” having tendency to amelio- objection request. time that majority gratuitously “finds” rate blameworthiness at the same footnote attorney an affirmative answer to the made a sufficient counsel I do not understand preserved Penny special at trial to have second issue. error, this requested holding Penny to be limited to because his instruction is Any evidence requested Penny similar to that itself. kind of however. tendency to ameliorate blame- At n. 4. Yet the instruction that has a wholly apart worthiness

issues will invoke Amendment con-

cerns, happens whether the evidence also

to be relevant ato issue or not. See Lynaugh,

Franklin v. (1988) (O’Connor, J., (“... concurring)

If, however, petitioner had introduced miti-

gating background evidence about his

character or the circumstances of the crime

that was not relevant ver- questions,

dict or that had relevance to culpability beyond defendant’s scope questions, verdict provided instructions would have expressing with no vehicle for its response’

‘reasoned moral to that evi-

dence.”) (emphasis supplied). To the ex- otherwise, may suggest disagree

tent it I opinion majority.

with the observations, join judg-

With these I Court, opinion.

ment but not its Houston, Cunningham,

David Julius Chambers, Burr, III, George Richard H. Kendall, Hawkins, City, Steven New York petitioner. Henry SELVAGE, Petitioner, John Mattox, Jim Atty. Mary Former Gen. & Keller, F. Hodge Michael P. and Robert S. Walt, Gen., Attys. Austin, respon- Asst. COLLINS, Director, James A. Texas De- dent. partment Justice, of Criminal Insti- Division, Respondent. tutional Huttash, Austin, Atty., Robert State’s for the State.

No. 71024. Appeals Texas,

Court of Criminal

En Banc. QUESTION OPINION ON CERTIFIED May FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT PER CURIAM. ques-

This cause is before us on certified tion from the United Ap- States Court of Circuit, peals for the pursuant Fifth TEX.R.APP.P., 214; Tex.Const. art. 5 3-c. § capital

Petitioner was convicted of mur- February der on 1980. The re-

Case Details

Case Name: Ex Parte Goodman

Court Name: Court of Criminal Appeals of Texas

Date Published: Jul 3, 1991

Citation: 816 S.W.2d 383

Docket Number: 70887

Court Abbreviation: Tex. Crim. App.