Ex Parte Harris
825 S.W.2d 120
Tex. Crim. App.
1991
Check Treatment

*1 parte Ray David HARRIS. No. 71179. Texas, Appeals

Court Criminal

En Banc.

Dec.

Rehearing Denied Jan. Farrell, Roach, Jr., M. Thomas M.

Robert Clutterbuck, Kirkland, H. John Solace B. Austin, Crocker, for Phyllis Houston appellant. Maness, Atty., Fish-

Tom Dist. and R.W. er, Beaumont, Atty., Asst. Dist. and Robert Huttash, Austin, Atty., for the State’s State.

OPINION PER CURIAM. post application is a for

This conviction corpus pursuant filed writ habeas 11.07, article V.A.C.C.P. 29, 1986, applicant April was convict-

On Code, capital Penal ed of murder. V.T.C.A. affirmatively 19.03(a)(2). After the § issues un- submitted answered V.A.C.C.P., 37.071(e), the trial article der This punishment at death. court assessed on di- applicant’s conviction Court affirmed State, appeal. 784 S.W.2d rect Harris (Tex.Cr.App.1989). On November pro se motion denied we Supreme rehearing. The United States petition for ofwrit denied Court Tex- 1990. Harris v. April on certiorari 1837, 108 1090, 110 as, 494 U.S. L.Ed.2d (44) allega- forty-four presents validity his convic- challenging the tions This resulting sentence. tion and the set for cause filed and ordered the Court allegation first on submission stay applicant a granted only. We also *2 121 Franklin, A 108 S.Ct. at 2329. this record. pending orders from execution further Supreme determined plurality Court Court. in sentenced to death that Franklin was not Applicant contends that Eighth Amendment be- violation con him to death unable to sentenced was free to consider and jury was cause the mitigat give significant effect to sider and prison in in good behavior give effect to his evidence, eighth thereby violating the Id. special issue. considering the second fourteenth amendments to the United and 2330. relief, applicant For States Constitution.1 Penry Lynaugh, v. 492 U.S. upon relies Penry, Supreme determined In Court 2934, (1989); 302, 106 L.Ed.2d 256 109 S.Ct. 37.071, as issues of article special that the 164, Lynaugh, v. Franklin 487 U.S. 108 provide with applied, did 2320, (1988); and, 101 L.Ed.2d 155 give mitigating full effect to to vehicle (5th Mayo Lynaugh, v. 893 F.2d 683 Cir. and Penry’s mental retardation evidence of 1990). deny relief. We will Penry, 109 S.Ct. at 2952. childhood abuse. Penry of the Texas Code of Article 37.071 Crim- in was considered to The evidence inal sets forth the death Procedure in double-edged it diminished be crime, scheme as it existed for the but it also blameworthiness 37.071(b) provides: cant’s trial.2 Article dangerous- probability of future indicated a Id. presentation of the special On conclusion of the the second issue. ness under evidence, Thus, “informing the court shall submit the fol- an instruction lowing jury: three issues to consider and jury that it could declining

(1) by defen- evidence ... whether the conduct of the impose penalty” of the de- the death was neces- dant that caused the death to deliberately and Id. sary. ceased was committed at 2952. expectation the reasonable with that he enti contends the death of the deceased or another type instruction based on tled to a result; would following categories of four (2) probability there is a whether evidence: the defendant would commit criminal in (1) shooting, the circumstances of acts of violence that would constitute did not fire until after continuing society; threat to and it was shot him and after the victim evidence, (3) if raised whether apparent the victim would contin- killing the conduct the defendant shoot; ue to the deceased was in re- unreasonable (2) cooperation applicant’s remorse provocation, any, by sponse to the if police; with the the deceased. (3) youthfulness; his 37.071(b),

Article If the Y.A.C.C.P. (4) his of alcoholism. unanimously “yes” answers to each issue, (2) above, the trial court must sentence the (1) regard In to death; defendant otherwise the defen- differ- qualitatively is mitigating evidence Ar- imprisonment. dant is sentenced to life Penry. presented ent from 37.071(c), ticle V.A.C.C.P. shooting surrounding the circumstances cooperation remorse and Franklin, petitioner argued that ab- applicant is not police suggest that with the requested jury sent his instructions mitigat- person. This evidence give independent mitigating violent jury could not scope ing, directly within the weight good prison disciplinary but also statute, recently legislature amended Applicant raises this claim the first time in 2. The recently application. Su- September This Court to reflect the effective may this issue be raised for the first holding Penry Lynaugh, held that preme 492 Court’s corpus. parte time via a writ of habeas 106 L.Ed.2d 256 109 S.Ct. U.S. Goodman, (Tex.Cr.App. 1991). We will address the merits contentions. logical display the dou marked behav- the second issue. Unlike intoxication ble-edged presented Penry, changes. ioral person fairly A be given full effect sober, evidence could have been docile when but violent when intoxi- Frank within the submitted issues. See cated. *3 State, (Tex.Cr. lin; v. 811 105 Boyd S.W.2d applicant that Nelda Cox testified was (evidence remorse, of App.1991) appellant’s into her intoxicated when he broke mobile good record, rela employment good home and hit over the head with a her given full the sec tions was effect within rolling pin in 1977. issue). ond outset, important to At the it is note that also that contends his Penry claims are limited to con- evidence youth years at the time of the offense—24 in tained the Evidence outside of record. factor old—is an additional that wholly record is irrelevant to such the precluded fully consider was from Goodman, claim. See Parte 816 disagree. ing. We (Tex.Cr.App.1991); 383 Ex Parte precise age there is no limit for While Ellis, (Tex.Cr.App.1991). 810 S.W.2d 208 “youth,” to that de- several factors relate case, present undisputed In the it is termination, including life background and however, alcoholic, is an is applicant there long experience. Applicant has a criminal applicant no evidence the record including prior a term history prison was prior attempted robbery, for convictions Lackey also v. offense. See Ellis. See burglary, robbery, attempted armed bur- State, (Tex.Cr.App.1991). 816 S.W.2d 392 theft, prisoner possession of glary, a Ellis, judge found as a fact trial deadly weapon. At of the instant the time there was in the record from evidence offense, young he was not naive man. a applicant infer that which Penry youthfulness may While constitute a suffering drugs from from withdrawal was proper case, issue in the we hold that it arrest incarceration in the after his present does not in the case. county jail about one to two weeks after appli turn of We now to the issue However, killing. no there was evi- During cant’s alcoholism. applicant was in- dence the record that trial, punishment phase applicant’s sev offense. toxicated at time of the We eral witnesses testified as to showed that concluded the evidence to his history of alcoholism and its relation drug problem but that the defendant had a Powell, appli history. Evelyn criminal Penry “rise evi- it did not to the level counselor, abuse testified cant’s alcohol Ellis, at 211-12. dence.” 810 S.W.2d opinion “definitely that in her is Similarly, we find that an alcoholic.” She testified that he was a not rise level cant’s alcoholism does person She shy, introverted when sober. Applicant merely es- Penry evidence. under also testified was alcoholic; he he did was an tablished of alcohol he committed influence when affected behav- not show how that fact crime, prior except possession of each Therefore, time of offense. ior at the prisoner. Nancy Pet- deadly weapon necessary no additional instruction officer,

kovsek, parole also tes give effect to this jury to consider and “during of all tified that the commission evidence. under the criminal behavior ... he was sought Accordingly, is denied.3 the relief beverage.” intoxicating influence of an Gripon, psychiatrist, Edward Doctor MALONEY, dissenting. Judge, ingestion is of alcohol testified that Supreme Court has The United States related to commission of frequently as facts patho- mitigating circumstances with “defined persons crime. He stated that remaining allegations and conclusions of law. Applicant’s are denied findings of of the fact on the basis trial court’s

123 State, Lackey v. (Tex.Cr. or back- 816 S.W.2d 392 about the defendant’s character (Clinton, J., App.1991) dissenting). partic- ground, or the circumstances of the offense, ular call for a Evidence of alcoholism has Lynaugh, death.” Franklin v. than less qualities scope outside the 487 U.S. issues. At the time of trial (1988) (O’Connor, J., L.Ed.2d 155 concur- was, today, alcoholism as it defined (citations omitted). ring) Eighth “[T]he See and treated as a disease. American as- Amendment mandates an individualized Diagnostic and Association, Psychiatric appropriateness sessment of the Mental Disorders Statistical Manual of Lynaugh, penalty.” death 1980) (DSM-III).1 (3d 169-170 ed. *4 2934, 2946, U.S. 109 S.Ct. reasonably inferred The could have L.Ed.2d 256 must be “[T]he record, the from the evidence the as did give any able to consider and prosecutor, applicant had been drink- evidence relevant to a defen- ing During this the offense. character, background, dant’s or the cir- closing argument punishment, State’s at Penry, cumstances of the crime.” prosecutor jury, may the told the “alcohol at inhibitions, remove but it does not remove “background, Because the words charac responsibility.” individual Defense counsel ter, or circumstances of the crime” are said, responded, “[njobody ‘David is not disjunctive, used in the evi guilty, drinking,’ he and no- because always necessarily dence does not or have body Nobody you to used that excuse. told to relate to the circumstances of the of set him free he was an alcoholic. because only fense. It relate to the defen prosecu- He is still accountable.” Both the background dant’s or In this implied character. tor and the defense counsel regard, certainly drinking “there is no ‘nexus’ re the time of had been Penry.” quirement Further, majority to be derived from as the offense. Association, use; Psychiatric Diagnostic non-beverage 1. American alco- alcohol of (3d and Statistical Manual Mental Disorders hol. of 1980) (DSM-III). ed. occupational Impairment social or function- (3.05.0x) Alcohol Abuse ing e.g., due to alcohol use: violence while (3.03.9x) Dependence intoxicated, work, Alcohol "The essential job, absence from loss of Dependence features of Alcohol pattern are either a legal (e.g., difficulties arrest for intoxicated pathological impair- of alcohol use or behavior, intoxicated), traffic accidents while occupational functioning ment in social or due arguments family difficulties with or or alcohol, and either tolerance or withdrawal. friends because of excessive alcohol use. Dependence Alcohol has also been called alco- B. Either withdrawal: tolerance or holism_ Familial Pattern. Alcohol Abuse markedly Tolerance: need for increased Dependence among are more common fam- alcohol amounts of to achieve desired ily general population.” members than in the effect, markedly or diminished effect with DSM-III regular use the same amount. of Diagnostic Dependence criteria for Alcohol development Withdrawal: of Alcohol With- (DSM-III 170) p. (e.g., morning drawal "shakes” and malaise pattern pathological A. Either a of alcohol by drinking) relieved after cessation of or impairment occupational use or in social or 133). drinking (p. reduction in functioning due to alcohol use: psychoactive The Substance Use Disorders pathological Pattern alcohol use: need for of (Alcoholism, etc.) changes deal with behavioral daily adequate functioning; use of alcohol for affecting system. the central nervous DSM-III inability stop drinking; to cut down or re- at 170. peated efforts to control or reduce excess disorders In addition to alcoholism other drinking by “going wagon” (periods on the of dealing with alcohol abuse are: Alcohol Idio- abstinence) temporary restricting drinking or (291.40), syncratic Intoxication Alcohol With- day; binges (remaining to certain times (291.30), (291.80), Alcohol Hallucinosis drawal throughout day intoxicated for at least (291.10), Alcohol Amnestic Disorder Dementia days); consumption two occasional of a fifth (291.20), Associated with Alcoholism (or beer); spirits equivalent its in wine or (292.00, Organic Mental Disorders Substance etc.). periods occurring amnesic events while Association, Diag- Psychiatric (blackouts); American intoxicated continuation Manual Mental Disor- drinking despite physical nostic and Statistical a serious disorder (DSM-III-R). (3d 1987) is exacerbated ders 127 ed. revised the individual knows notes, culpability testified be Nancy Petkovsek that “dur- minished moral would give juror of all criminal behavior if commission unable to “no” answer [applicant] ... was under the influence of also acted believed unreason- intoxicating It is beverage.”2 an unclear ably provocation response as to whether she meant all criminal behav- any provocation if deceased there was. offense, ior before the instant or committed sentencing Consequently, procedure including all the instant criminal behavior employed trial violated the offense. Eighth Amendments. Fourteenth fully consider and Therefore, respectfully I dissent. give mitigating effect to the evidence scope alcoholism within BAIRD, join JJ. CLINTON issues. Absent a instruc- dissent. tion, a juror who believed that moral evidence of alcoholism diminished his

culpability would be unable to a “no” juror if

answer also believed that deliberately.

cant committed the crime

Penry, 109 S.Ct. at 2949.

The applicant’s evidence of alcoholism issue,

relevant to the second but only aggravating suggests as factor. It an TORRES, Wistong Appellant, Riascos “yes” question of answer to the future dangerousness. Id. Like evidence of Pen- Texas, Appellee. The STATE of retardation, ry's mental evidence history mitigat- cant’s is both alcoholism No. 1304-91. aggravating. juror A rational Texas, Appeals of Court of Criminal applicant’s might conclude evidence En Banc. morally culpa- renders him less alcoholism but, jury ble an instruc- absent additional 26, Feb. 1992. tion, only give could effect to its aggravating qualities. fully

Similarly, consid- applicant’s mitigating in an-

er evidence

swering third issue. Absent instruction, juror who believed di- applicant’s evidence alcoholism quite both application, applicant we had a few beers. We were writ documented had his very did not Then left and he through family drunk.” affida- his of alcoholism again night. The of- see by An vits and letters. affidavit written early morning hours fense occurred applicant began presented mother evidence only drink- September hours after the Ap- drinking when he was twelve or thirteen. ing episode. plicant’s became aware of this when she mother concludes, majority on deci based recent liquor empty around house found bottles Court, evidence sions from only belonged ap- knew could have to she not be the trial record will considered. outside plicant fa- neither she nor because case, However, At such evidence in this [ap- She also related that “[w]hen ther drank. argument punish by prosecutor’s obvious ment, plicant] was sixteen he was sent home from defen have harmful to the "would been She school because he was drunk.” also stated instructing the if offered at trial without dant applicant’s grandfathers were alco- both of that it could consider holics. declining impose the Swango, by Jay An an request affidavit such [a] death [and] friend, evening time states afternoon futile at the ”[o]n would have been instruction Herrera, August [applicant] together and I were Ex Parte 1986].” trial in [of (Malo (Tex.Cr.App.1991) my hanging We were out mother’s house. J., dissenting). evening By early ney, beer.... [and]