Ex Parte Lucas

the guilty APPELLANT’S PETITION of lesser included offense the OPINION ON Granger, FOR DISCRETIONARY REVIEW first See 850 S.W.2d at 519- trial. McCORMICK, Presiding Judge. 20. Appellant attempted capi- for was indicted trial, prosecution In a bench the is stipu- appellant murder. At a trial tal bench required to submit a included of not lesser necessary prove lated to all of the facts he to charge judge. to The trial the trial fense murder, therefore, attempted committed the appellant court authorized to find the is only issue to the trial court was guilty for which of lesser offense a peace whether the victim was officer required proof. Cunning provides State trial discharge lawful of his duties. The (Tex.Cr. State, ham v. S.W.2d

judge appellant guilty charged. found as App.1987); Mello v. S.W.2d Appeals The Houston of Dis [14th Court 1991). (Tex.App. finding - Eastland in upon trict] reversed the conviction based guilty attempted appellant capital of capital sufficient evidence element. murder, necessarily judge trial found the (Tex.App.— 1989 WL 14123 Shute appellant of evidence sufficient convict 1989) Dist.], Houston (nonpublished). [14th attempted included mur lesser offense of Appellant attempted was then indicted for der. with our decision Gran Consistent arising murder of victim of the same out ger, Jeopardy hold that Double we then pretrial incident. Appellant’s applica same prohibit for a Clause does a retrial lesser corpus tion for writ of habeas based included offense when the first trial was be jeopardy plea by double was denied the trial fore the court and there was sufficient evi appeal, court. On re Appeals of which dence on the trial court could have (Tex. versed. Shute v. guilty found of lesser of 1991). App. Dist.] [14th - Houston fense. Upon discretionary petition the State’s for judgment Appeals of The of the Court is review, this Court remanded to the Court affirmed. Appeals light reconsideration in holding parte Granger, in Ex CLINTON, J., concurs in result. (Tex.Cr.App.1993). The Appeals Court of then affirmed. Shute 21993). (Tex.App. [14th Dist.] - Houston granted petition discretionary

We Granger

review order to decide whether prosecution

allows for a of lesser included following appellate

fense reversal of trial

bench conviction due to insufficient dence when there was sufficient parte Henry Lee LUCAS. support a for the conviction lesser included impression offense. This is an issuе of first No. 71164. has not been settled this Court. Texas, Appeals Criminal 200(c)(2). Tex.R.App.Pro. We will affirm. En Banc. Appellant argues retrial should pros- allowed in the first trial be because June suggest failed to court ecution the trial proof might as to the element be lacking and this amounts the functional

equivalent failing seek a instruction Appellant,

aon lesser included offense.

therefore, Granger applica- contends

ble, put jeopardy. and he is twice Granger

focus of whether the trier

fact authorized to find the defendant of an unidenti-

the and sexual assault murder County. direct fied in Williamson On woman Court, appeal we affirmed. Lucas to this (Tex.Crim.App.1989). Applicant post-conviction applica- filed then corpus. denied tion for writ of habeas We Parte relief. Ex (Tex.Crim.App.1992). The United States Su- preme subsequently granted appli- certiorari, for vacated petition writ of cant’s for judgment, and this ease remanded light further consideration Johnson Tеxas, (1993). deny again will

L.Ed.2d 290 We relief. Johnson, Lee petitioner,

In Dorsie Johnson, capital murder guilty was found At the and sentenced death. trial, in- phase of Johnson’s one and On two.1 structed that, appeal, argued under Amendment, Eighth trial court should special jury at the have instruction allowed concerning potentially punishment phase youth. The Su- mitigating evidence of his preme trial court’s refus- held that the did not al to allow the instruction ‍​​​‌‌‌‌‌‌‌​‌‌​​‌‌‌​​‌‌​‌‌​‌​‌‌‌‌‌​​​‌‌​‌​​‌‌‌​‌‌‍Eighth prohibition Amendment’s offend the punishments. Alley, against Danny Fort cruel unusual D. Bums Richard Worth, appellant. Johnson decision The Court’s Anderson, Atty., Paul Ken Dist. Wom- Penry v. succeeded its earlier decision ack, Atty., Georgetown, Robert Asst. Dist. Lynaugh, 492 U.S. Huttash, Austin, Atty., for State. State’s Penry, petition L.Ed.2d 256 er, Penry, provided

Before the court en Johnny banc. Paul trial оf mental during capital murder his FROM OPINION ON REMAND childhood. and abusive retardation THE UNITED STATES special issues under the that the Court held SUPREME COURT sentencing insuf capital scheme were Texas CAMPBELL, Judge. instruction, ficient, without additional jury to to the relevant effect allow Henry Applicant Lee Lucas was convicted by Penry at his evidence offered capital to death murder sentenced 37.071(b) (2) trial, probability de- that the whether there is a Article 1. At the time of Johnson’s provid- of Criminal Procedure of vio- Texas Code would criminal acts fendant commit following special to consider the ed for issues continuing threat lence that constitute determining to assess the death whether society; and penally in a case: evidence, (3) by thе con- whether if raised (1)whether defendant that the conduct of the killing the deceased duct of death of the deceased commit- caused the provoca- was unreasonable in expec- deliberately ted and with the reasonable tion, any, the deceased. death deceased or anoth- tation that the result; er would held, that, specifically, trial. The Court with- holding Given the facts and we jury instruction, out an additional determination, original that our conclude Penry’s case was unable to amake “reasoned applicant’s potentially mitigating evidence response” Penry’s moral evi- did not merit an additional instruction at deciding dence in impose whether trial, punishment phаse of his is unaffect- penalty. death Therefore, by ed Johnson. we reaffirm our holding in our applicant’s initial review of Applicant introduced “mitigating” evidence post-conviction application for relief. at his testimony trial the form of from a psychologist psychiatrist. and a psy- The request The for relief is DENIED. chologist, Kubiszyn, Dr. Tom testified that CLINTON, OVERSTREET, BAIRD and applicant suffered from schizophre- “chronic JJ., majority pretends dissent because the type nia of a residual underlying with an Supreme Court remanded this cause to schizotypal personality disorder.” Dr. Ku- age, reconsider the matter of all the while biszyn also concerning applicant’s testified ignoring pointedly cautioned, “Penry childhood, stating aрplicant’s father was given remains the law and must be a fair bootlegger amputee and double who died -, reading.” 509 U.S. at S.Ct. applicant when young, was ap- still and that 2670, 125 L.Ed.2d at 307. plicant’s mother sexually promiscuous was MALONEY, J., not participating. physical and inflicted and emotional abuse upon applicant. Kubiszyn Dr. stated that he OVERSTREET, Judge, dissenting. believed the abuse applicant by inflicted adult, his mother applicant, caused as an post-conviction application This is a harbor strong feelings of resentment and corpus writ of pursuant habeas filed hostility Finally, toward females. Dr. Ku- provisions 11.07, of Article V.A.C.C.P. biszyn testified applicant was of “low- April applicant capi- was convicted of average” intelligеnce, I.Q. with an of 84. murder, tal alleged to have been committed on or about psychiatrist, The October 1979. He Jay Dr. was sen- Fogelman, cor- tenced to death. This roborated much Court affirmed the Kubiszyn’s of Dr. judgment and concerning appeal. sentence on direct applicant’s psychosis and child- Lucas v. Fogelman (Tex.Cr.App. hood. Dr. applicant testified that 1989). Applicant suffered from thereafter five schizophrenia,” “chronic allegations in challenged which he personality had two the validi schizotypal disorders —a ty of his personality resulting conviction and sentence. elements of sociopathic On personality. November 1990 this Fogelman Dr. Court ordered also testified that, the instant child, cause filed and set for applicant as a submission frequently wit- allegations. 8,1992 on one of April those On nessed his mother undress provoca- and act we tively application denied presence, for writ of and that Lucas, corpus. parte habeas periodically had seizures at school which (Tex.Cr.App.1992). Applicant caused him thereafter to be treated as an outcast. petitioned Supreme the United States Court In our initial post-conviction review of this for writ of certiorari. On June 1993 the relief, application for poten- we held that the Supreme granted such and ordered tially mitigating by appli- offered judgment vacated and remanded the cant did not Penry-typе warrant a instruc- cause to light us “for further consideration tion at stage of his trial. Ex Texas, of Johnson v. Lucas, Parte 834 S.W.2d at 342. We do not (1993).” 2658, 125 L.Ed.2d 290 Lucas v. believe that changes Johnson holding. Texas, The record years shows that was 43 L.Ed.2d 717 old when he committed the instant offense. petitioner contrast, supra, In Ex con- only 19 when he committed his offense. We cluded that the able consider and believe, therefore, not a factor appellant’s evidence of his men- in the instant case. tal and distressed childhood answering ically applicant’s indicates issues which confession that he 37.071, per age

were making submitted Article 46 in thus him June approximately V.A.C.C.P. Pursuant 42 in October of 1979 at the instructions, this Court Court’s must recon time of in the instant the offense сause.1 light sider “in hardly ages its conclusion Johnson v. Thus it can said that their be Texas, However, comparable analogous. 125 were (1993).” L.Ed.2d 290 We the Supreme should therefore since Court remanded this very closely examine Johnson. “for in light cause further consideration [,]” something ...

Johnson there must be I. age within aside from the “further which merits such eonsid- HOLDING OF JOHNSON eration[.]” 509 Johnson v. 113 S.Ct. Penny mitigation ‍​​​‌‌‌‌‌‌‌​‌‌​​‌‌‌​​‌‌​‌‌​‌​‌‌‌‌‌​​​‌‌​‌​​‌‌‌​‌‌‍compared evi (1993) 2658, 125 L.Ed.2d 290 involved Tex dence, prevented mental retardation as capital murder defendant claimed who learning mistakes, experience from and from special did the Texas not allow his jury youth. with Johnson’s “That the had a jury give adequate mitigating effect to meaningful basis to consider relevant youth, being years of his i.e. 19 youth mitigating qualities [Johnson’s] age at the time of the offense. After discuss distinguishes Penny.” what from [Johnson] ing development of recent constitutional Id., at -, 2669, at 509 U.S. 113 S.Ct. 125 jurisprudence regarding the consideration of youth at L.Ed.2d 307. It concluded that falls in mitigating circumstances sentencers ambit, ill Penny’s outside because the effects cases, including principle “[a] and, youth subject change are as a sentencer ... must be allowed to consider result, readily comprehended are as a miti qualities youth the mitigating in the course gating factor in of the consideration second of its the appropriate deliberations over sen Id., at -, special issue. 509 U.S. 113 S.Ct. tence[,]” Supreme Court determined 2670, any jurors at 125 at 307. “If L.Ed.2d “there no reasonable likelihood that the [wa]s qualities of believed that the transient [John have found itself from foreclosed youth culpable him less son’s] made for the considering aspects the relevant of [John murder, reasonable there is no likelihood Id., -, youth.” son’s] 509 U.S. at 113 jurors that those would have deemed them 2669, S.Ct. at at 125 L.Ed.2d 306. It “be considering selves from in foreclosed ample that there room in the lieve[d] [wa]s evaluating dangerousness.” future Id. [his] dangerousness of future for a assessment Also, Supreme stated in juror to take account of the difficulties of Johnson the trial court submitted a mitigating sentencing force in as a charge punishment concerning instruction at Id. determination.” concluded evidence, the consideration оf i.e. infirmity” in “[t]here was no constitutional instructing jury that it could into take Id., application special 509 issues. evidence, consideration all of the whether 2672, at -, U.S. 113 at 125 L.Ed.2d S.Ct. nature, aggravating mitigating in in an- at 310. Id., swering 509 special issues. U.S. at -, 2662, 2669, at 125 113 S.Ct. II. 297, L.Ed.2d at It also notes that the 306. ANALYSIS society” phrase “continuing threat used 19 the second issue “affords the While the defendant Johnson was years judgment reaching age independent at the time of the commission of room at -, offense, Id., appli- the record indicates that its decision.” 509 U.S. 2670, substantially cant older at at at 308. It concludes was the time of 125 L.Ed.2d offense; specif- instant of the second issue commission of the consideration confession, 46-year 1. which was also old Another identified еvidence, ap- introduced into indicated time in June at the he was examined of 1983. plicant on “08-23-36.” was bom There

319 comprehensive inquiry “is a background by declining impose is more the death Id., question penalty, than a provided of historical fact.” ... was not with a at -, 2671, expressing 113 S.Ct. at vehicle for its moral L.Ed.2d ‘reasoned response’ rendering at 308. to that evidence its Id., 328, sentencing decision.” 492 U.S. at Supreme pointed Court also out that at S.Ct. 106 L.Ed.2d at 284. capital punishment jurisprudence its has not Nevertheless, recently been construed to mean that a must be Penry effecting stated that was not read “as dispense mercy able to on the basis of a change” respect a sea to the constitu Id., sympathetic rеsponse to the defendant. tionality penalty of the Texas death statute 509 U.S. at at S.Ct. Penry broadly suggest nor does the invalidi rejected proposition L.Ed.2d at 308. It issues framework. Graham that a mitigat be able to Collins, U.S. -, -, every evidence in conceivable manner 122 L.Ed.2d This view Id., might which evidence be relevant. duly supra, noted 509 U.S. at -, 113 S.Ct. at 125 L.Ed.2d at -, 125 L.Ed.2d at appropriate It is for the State to recently 304-305. This Court has stated that structure the consideration of protections “whether or not the Id., dence via the 509 U.S. at required depends at all on whether evidence 2671-2672, 113 at S.Ct. 125 L.Ed.2d at presented jury to the which was shown 309-310. tendency to have a to reduce the moral cul Penry The evidence in Lynaugh, 492 pability of the U.S. 106 L.Ed.2d 256 exclusively special related to the issues.” (1989) which scope was outside the of the Satterwhite v. special mitigating issues was evidence of (Tex.Cr.App.1993), cert. mental retardation and childhood abuse. S.Ct. L.Ed.2d 387 sword, Such two-edged evidence was a i.e. “it may [Pernys] diminish blameworthiness for III. his crime even as indicates that there is a APPLICANT’S EVIDENCE probability that dangerous he will be Id., future.” remand, U.S. at 109 S.Ct. at his brief after asserts ‍​​​‌‌‌‌‌‌‌​‌‌​​‌‌‌​​‌‌​‌‌​‌​‌‌‌‌‌​​​‌‌​‌​​‌‌‌​‌‌‍2949, 106 L.Ed.2d at special jury 281. The give mitigating issues that “the could not effect regarding acting deliberately and unreason two-edged to [his] evidence that he suffers ably response provocation were schizophrenia also from chronic in its answers to jurors insufficient to express allow the ... “special issues” and that such reasoned moral Penny’s mitigat give issues did not allow the 322-324, evidence. 492 at mitigating evidence effect[.]” He insists that 2948-2950, at 106 L.Ed.2d at 280-282. Also his condition example “is the classic of evi- noting prosecutor’s jury argument at dence against which both militates for and punishment, urged penalty to answer guiding death without in- strictly issues “can, accordance with acknowledges structions.” He that he emotions, acting the evidence and without properly when the medication is monitored appropriate jury and the absence of given proper dosage, instruc and be sedated to the tions, juror it concluded that point “a reasonable in society[,]” he can function could well argues have believed that there was no that “[t]he could well hаve found expressing vehicle for the view that that the mental condition was such to war- did not deserve to mercy yet be sentenced to death rant and found that because of the Id., mitigating based his ‘relapse’ evidence.” which caused him to have the medi- 492 U.S. at changed, S.Ct. at 106 cation altered and that there was L.Ed.2d at 283. probability “[I]n absence of instruc- still a that he would commit acts informing tions that it could consid- of violence in the future.” He insists that Graham, mitigating er and reading” Penry, evidence “fair and Penry’s mental retardation and abused Johnson “distills to an minimum: irreducible impairment early develop- evidence of a chronic mental traumatic circumstances of his given two-edged mitigating history.” developеd and cannot be mental He that he adds personality effect under the restrictive of the for- “in marked disorder a home sexually mer issues.” He maintains that by physical while emotional abuse and behavior[,]” “[t]he [his] evidence of mental illness and inappropriate personali- thus the overwhelming^ of mind ...] defect superimposed psyche over a disorder “is ability mitigating to use that factor to lessen irreparably mother’s behav- scarred in light his sentence Thus it should be considered within ior[J” submitted is non-existent.” that mental claim.2 argues The State evidence As we noted was such that he suffered from a treatable 341, applicant guilt/innocence permanent mental illness rather than the jury expert Penry. points mental retardation of It out he suffered from chronic applicant’s psychosis could be controlled disorder, long- schizotypal personality anti-psychotic drugs, treated with which he defect, standing serious mental disease or jailed. had It received while insists personality plus schizophrenia, and antisocial permanence “[t]he difference between the that such was the most severe mental dis- mental retardation and the transience could have. In a bit that one ease/defect linchpin was the detail, I more observe that the record re- [supra].” Court’s decision following testimony: flects the concludes that “[t]h[e] given mental illness could have been effect profferеd by applicant: PSYCHOLOGIST within the ... [and terms of the second issue very strong feelings Applicant has of inad- believed, that] [i]f the or had a reason- equacy inferiority, very pervasive to, able doubt as evidence that sadness, rejection, guilt, feelings of [applicant] psychosis suffered from a that sense of inner turmoil. He also has ten- and was controllable institutionalization suggesting dencies some evasiveness and medication, they given could have effect misperceive suspiciousness. He tends to ” by answering the evidence the issue ‘no.’ difficulty aspects reality, com- of i.e. has complex prehending completely either or

Applicant’s brief after remand also asserts lengthy verbal instructiоns or directions sickening that “the of [his] circumstances spoken complexi- that are to him that have specifically youth[,]” that mother was a “[h]is length gaps are in his or to it. There prostitute regularly plied drunken who her perception ways dealing and of with and trade, multiple partners, in front with of world, viewing [him][,]” with a distortion routinely [him] [who] and beat left reality place. applicant taking He was aware de[e]p-seated “with hostilities and women, taking had been Thorazine for provided resentments toward and months, drug effective schizophrenia in which his several which was the fertile soil However, schizophrenic developed grew.” treating and he does not individual perceiving independent regarding helping organize thinking an and make claim childhood, reality accurately. rather includes He stated that schizo- distressed part phrenia was a “that waxes such as a of his mental disease/defect disease/disorder entirely possi- expert testimony that his and wanes” and that it was claim. He cites “probably developed from the ble that someone who suffers therefrom mental illness denied, 517, repeatedly rejected (Tex.Cr.App.1992), claims 843 S.W.2d 520 cert. I note that we have 3046, U.S. -, that evidence of a turbulent childhood and trau 125 L.Ed.2d 113 - upbringing comparable were matic State, 503, (1993); 731 Nobles v. 843 S.W.2d dence and outside the State, (Tex.Cr.App.1992); 505-506 Goss v. 826 See, e.g., S.W.2d 445- Gunter (Tex.Cr.App.1992), cert. de 166-167 - denied, (Tex.Cr.App.1993), cert. nied, 113 S.Ct. 125 L.Ed.2d (1993); 114 S.Ct. 126 L.Ed.2d 265 (1993); 815 S.W.2d Lewis (Tex.Cr.Apр.1992), Kemp v. 309-310 - (Tex.Cr.App.1991), cert. denied,- U.S. -, cert. 2361, 117 L.Ed.2d (1993); Jacobs v. L.Ed.2d relatively reality.” appli- “would He noted that be able to lead a normal what is many people symptoms existence.” While such cant had so individuals would situations, typically difficulty plain personality have in social old disorders do have, hallucinations, delusions, during they phases some of the less severe such as and speeeh-hallucinations-de- capacity would not exhibit that he has the belief symp- telepathy. schizophrenics lusions or He the other classical stated absorb, sponge, large toms associated like a with an acute exacer- almost applicant “ought antipsychotic bation. He stated that amounts of medication “be- provided be institutionalized and there with the cause their brain needs that because proper schizophrenics, opined land care.” He also are chemical defects in schizophrenia go away. genetic does not He add- chemical illness.” He also noted applicant’s family history being positive ed that childhood of extreme deprivation emotional and schizophrenia. economic and what sounded like He said neurotransmitters, growing up in a household where there little molecules important. feelings, was no help nurturance was He the brain that transmit behaviors, opined likely thoughts, also present ex- are passive aggressive resрonse schizophrenics. hibit a to an excess in He also stated authority figure. appli- schizophrenics’ He indicated that CAT scans of longstanding cant had a irregularities, serious mental brain have all kinds of spinal disease or defect. He also said that fluid ab- “[at- studies demonstrate taching diagnosis However, findings. like normal he had not diag- applicant. individual is the most severe kind conducted such tests on you nosis can attach and should be re- opined schizophrenic He that a is born only served for those individuals who do gene with a that unfold with chromosomes clearly diagnostic category.” fit into that schizophrenic symptoms; display thus Applicant’s history auditory and visual just being you “a victim of that are a likе important. hallucinations was also He tes- eyes victim of the color of have pres- tified that while the disorder remains your the color of skin or texture of hair.” chronically, goes through waxing ent schizophrenics He stated that some are so waning periods where it becomes acute catatonic, impaired they they i.e. bit, during and settles down a and that motionless, stay ambulato- while others are periods settled down such can individuals work, ry, though i.e. able to function and carry basically function and normal dai- perfectly normally. He also talked ly Applicant’s appeared tasks. condition blocking about how Thorazine worked in relatively to be well controlled as a result of mоlecules. He added excess level anti-psychotic medications, thus he schizophrenia that is “the most severe opined applicant point that was at that you that can have.” mental disease/defect mildly schizophrenic. stated, He “Once an applicant’s childhood He indicated that schizophrenia, individual suffers from background important. was He also noted virtually there is no chance that that indi- diagnosed applicant’s having been as autis- functioning.” vidual will return to normal tic. He talked about the four A’s of also ambivalence, proffered by applicant: schizophrenia: PSYCHIATRIST autistic chronic, associations, Applicant anything strange meaning thought, inappro- was lаsting years, schizophrenic. priate opinion over two He that affect. He was of the schizotypal personality applicant psychot- also had of a “float[ed] and ele- and out stated, sociopathic personal- my ments of antisocial or ic “From own inter- state.” He every symp- schizophrenia [applicant] virtually ities. He indicated that was has views psychiatric schizophrenia.” the most severe illness that tom of He also described patient suffering questions A that there is. from schizo- and answers which indicated phrenia applicant malingering. “cannot tell from was He also what’s real real, they what’s not so a that it is about whether if have whole noted debatablе very private thoughts person truly schizophrenic they headful [sic] is would life, feelings may that all all of their and mentioned a correlate at with be so grown book, that it would be out A and was not such I Never Promised You Rose Gar- den, (although it schizophrenia youth about a woman whose of as is the case with magically away; certainly arguable people do not apparently somehow went that some though qualities youth, a chron- necessarily grow he himself had never seen out of the just schizophrenic engage that had a sudden “young ic at heart” and i.e. remain life). throughout cure. Howev- youthful behavior er, ill testimony indicated that the effects applicant also had antiso- He added change subject to some cial/sociopathic personalities. He also stat- with and institutionalization via medication gene applicant was born with a ed agree applicant I proper care. Yet with episodes psy- that causes him to have a transient there is distinction between chosis, “[applicant] was not and noted potentially and the treata- condition of gene.” asked to be born with that He schizophrenia. chronic ble patients compared that to diabetics with leukemia who do not ask to be born does applicant’s I observe genes. opined that the so- with such He mental not indicate that his per- ciopathic part antisocial learning him from mistakes prevented from sonality “just drop in the was a small fact, as we noted experience. schizophrenic, compared th[e] with bucket there was psychosis that takes over and deter- th[e] functioning his intellectual added, He mines to him how to behave.” low-average range or low-normal words, [applicant] the slave to “In other IQ in that manner score of 84. Thus with suggested schizophrenia.” He also Penry. it differs from in, like, hospital applicant put “be jury charge included the punishment insane, up criminally locked forev- by Arti- provided for special issues that were er, strong with medication like treated V.A.C.C.P., 37.071(b)(l)(2), regarding cle Thorazine, doctoring.” opined He lots of committed applicant’s conduct was whether going to be in was never expectation deliberately and with reasonable released, position he kind of to be i.e. result, deceased would that the death of the up psychiatric in a to be locked “need[ed] probability that was a and whether there security hospital maximum forever.” acts vio- commit criminal applicant presented a undisputed It is continuing lence that would constitute great deal of evidence that he suffered from society. the follow- It also included threat thereof. The schizophrenia and the effects ing instruction: suggests that brief after remand State’s evidence of treatable mental illness “[his] further instructed that deter- You are rеjected mitigation as may take mining you of these issues each it outside the stage ... not because sub- into consideration all of the evidence issues, case, but because it was not you in full trial of this mitted to not, believed or is, believed.” Whether was submitted to all of the evidence whether such evi- you this Court must determine this case wherein part in the first sufficiently to guilt dence was or was not able be or upon were called to determine upon defendant, within the considered and acted and all of the innocence of the you of the before the second evidence admitted you were called part of the trial wherein

IV. to the is- upon the answers to determine you. hereby to sues submitted APPLICANT APPLICATION TO to thе is somewhat similar great deal of This instruction noted above there was a As supra, 509 U.S. quoted schizophrenia. This included one evidence about 125 L.Ed.2d at effectively 113 S.Ct. at testimony indicating that it was However, in the instant cause the instruction yet controllable via permanent, somewhat denoting phrase “whether not include the Applicant’s did indi- did medication. evidence as did mitigating in nature” go away aggravating or cate that would very to the the essence of the Johnson’s. is also similar view holding Penny only Court’s which was submitted in Richard instruction State, particular circumstances when evidence is (Tex.Cr.App.1992), v. inadequate proffered is relevant as evi- which we held to have been mitigating significance dence but its is either provide a sufficient vehicle for the from, goes beyond, quite apart or express response its reasoned moral to Pen- Nevertheless, trial ny issues is a death sentence invalid evidence. provide court some mecha- was instructed that it could consider the failed account for such evidence evidence which had been introduced at nism to guilt/innocence, and in its reasoned moral be able to which included the above-dis- punishment. As cussed evidence of mental assess a less severe stated disease/defect. “[Wjhether protections ‍​​​‌‌‌‌‌‌‌​‌‌​​‌‌‌​​‌‌​‌‌​‌​‌‌‌‌‌​​​‌‌​‌​​‌‌‌​‌‌‍previously, or not the My argu- review Penny required depends all opening point- ments reveals that the State’s presentеd whether evidence was applicant’s proffered expert ed out some of tendency re- which was shown to have a testimony that had indicated he was culpability duce the moral de- dangerous away and needed to be locked exclusively fendant related However, the rest of his life. it focused its at 426. issues.” Id. argument regarding dangerousness future upon evidence that he had committed several importance language in Of critical is the killings, including extraneous that of his Penny stating that if the sentencer is to mother, 15-year girl, 84-year old old make an individualized assessment of the woman, Applicant’s and two other women. propriety penalty, of the death argument experts’ did not mention the testi- background and char- about the defendant’s mony saying, disagree other than “I can’t belief, long acter is relevant because of the psychiatrists you with these and tell he’s not society, held that defendants who dangerous, any psychia- didn’t hear commit criminal acts that are attributable to say trist argument he deserves to die.” His problems may emotional and mental be less jury’s focused carefulness in the delib- culpable no than defendants who have such erations, impropriety penal- of the death Lynaugh, excuse. 492 U.S. at general context, in religious 109 S.Ct. at 106 L.Ed.2d at 278. As questionableness having actually of his above, discussed killings. committed the extraneous Howev- disease/defect, dence of mental i.e. emotional er, agreed he stated that he with one problems. and mental experts in placed needed to be interpreted Penny This has to re somewhere the rest of his life under quire showing of some “nexus” between the treatment as he was sick. trial, mitigating evidence and the offense on closing argument,

In its the State did re- i.e. the evidence must tend to excuse jurors they mind the explain had indicated dur- the criminal act so as to make that they See, voir dire selection that deserving e.g., defendant not death. - fairly honestly answer the Richardson depending upon the evidence. However it (Tex.Cr.App.1993); Satterwhite v. primarily challenged applicant’s 427; attacks on S.W.2d at Gunter v. 858 S.W.2d committing the evidence of his thе instant (Tex.Cr.App.1993), cert. killings. offense and extraneous It also U.S. 126 L.Ed.2d 265 talking (1993); mentioned that it was not about reha- and see Mines v.

bilitating applicant, nobody (Baird, J., as ever (Tex.Cr.App.1992) had been dis — that, remanded, U.S. -, able to do and that senting), there was no deter- upon sociopaths psychopaths rent effect and 126 L.Ed.2d 13 like him. Applicant argues that there was such a nexus, apparently are was a connec-

There differences and similarities to that there evidence, Penny mitigating both and Johnson. In Satterwhite v. tion between his hostility expressed deep-seeded at and resent- S.W.2d we created his 425 - triggered by society, ment toward females and was that defendants who commit hypersensitivity an acute to critiсism and criminal acts that are attributable emo- assault, physical and the murder of a problems may tional and mental be less cul- psychiatrist woman. The indicated that the pable than defendants who have no such may operat- mental have been disease/defect excuse, applicant may culpa- have been less 31, 1979, in on or about October ble based his emotional and mental “only [applicant] really but that God and problems may have attributed to the sure, know for but he floats in and out of [a] Penry, instant offense. As in such evidence psychotic every schizophrenic state like two-edged in might sword that it di- if applicant does.” He then indicated that applicant’s minish blamewоrthiness for his psychotic had been in a state at that time he crime even as it indicates there is a would not have known ‍​​​‌‌‌‌‌‌‌​‌‌​​‌‌‌​​‌‌​‌‌​‌​‌‌‌‌‌​​​‌‌​‌​​‌‌‌​‌‌‍the difference be- probability dangerous that he will be the right wrong, person tween and i.e. “[a] who’s Accordingly, future. I conclude that the psychotic in a nothing bag state is but a analogous facts of the instant offense are impulses, seething, primi- a caldron [sic] Penry. those in impulses.” tive “[t]he He added that defini- alone, Penry, special inAs issues with psychosis totally you’re tion of is that out of permitting ap out additional instructions eontrol[,]” “[s]trange things happen and that plication mitigating of such evidence which patients psychotic, when and one of the issues, scope was outside the [sic], characteristics are are out of provide did not with a vehicle for control[;] things you [a]ll the know about expressing response its reasoned moral right bad, wrong good these are applicant’s mental evidence disease/defect psychiatrist irrelevant.” The also testified rendering sentencing its decision.3 Rios v. offense, if applicant th[e] “did (Tex.Cr.App.1992), S.W.2d things whenever he did those like that cert. things happened, those that there is no (1993); 123 L.Ed.2d 661 Richard v. question my psychotic mind that he is stated, “Oh, (Tex.Cr.App.1992). As testifying insane.” He I’m Penry, [applicant] that[,] beyond scope that evidence was something has done like psychotic that he at the time of added, behavior like that.” He also “I’m Becausе the was not allowed to con- perfectly willing testify [applicant] evidence, sider and I am psychotic and insane at the time of the compelled by Penry and now Johnson to question No offense. about it.” conclude that conviction should be above, applicant presented As discussed McGee, parte set aside. Ex evidence of mental He also Goodman, disease/defeet. (Tex.Cr.App.1991); acting evidence that he was under Therefore, (Tex.Cr.App.1991). S.W.2d 383 committing influence of such when applicant’s application for writ of cor- habeas Penny’s instant offense. Like evidence of pus granted. majori- should be Because the abuse, history ap- mental retardatiоn and so, respectfully does not do I dissent. plicant’s may mental evidence

have diminished his blameworthiness for his J., BAIRD, joins dissent.

crime even as it indicates that there is a

probability dangerous that he will be

future. As the Court indicated belief,

Penry, pursuant long to the held instruction, quoted supra, op. guidance apply 3. The no a reasoned or vehicle answering which informed the that in response” beyond scope moral to evidence special issues it could take into consideration all pointed we issues. As out in Richard guilt/innocence of the evidence submitted (Tex.Cr.App. 280 n. 1 punishment, empower did not to assess 1992), telling such an instruction a sentence of less than death in may utilize evidence for whatever val beyond spe- may ue it have relevant to the simply cial issues. informed the that it not a instruction. evidence, provided could consider all of the

Case Details

Case Name: Ex Parte Lucas

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 8, 1994

Citation: 877 S.W.2d 315

Docket Number: 71164

Court Abbreviation: Tex. Crim. App.