Ex parte Patrick F. ROGERS
No. 71169
Court of Criminal Appeals of Texas, En Banc.
June 19, 1991
Rehearing Overruled Sept. 18, 1991.
816 S.W.2d 350 | 816 S.W.2d 383 | 816 S.W.2d 390
Miсhael V. Powell, William B. Steele, III, Susan L. Karamanian, Kurt A. Wimmer, A. Darby Dickerson and Thomas F. Loose Dallas, Eden E. Harrington, Austin, for appellant. Tom Wells, County Atty., and Kerye Ashmore, Asst. County Atty., Paris, Robert Huttash, State‘s Atty., Austin, for the State.
We have decided today that in the trials occurring before Penry, there is no procedural default in having failed to request, at the time of trial, a jury instruction on the Penry mitigation issue. Black v. State, 816 S.W.2d 350 (Tex.Cr.App.1991). See also Selvage v. Collins, 816 S.W.2d 390 (Tex.Cr.App.1991) (Opinion on Certified Question from the United States Court of Appeals for the Fifth Circuit). In Lackey v. State, 819 S.W.2d 111 (Tex.Cr.App.1989) also decided today, although without unanimity and completeness, we attempt to define Penry type evidence. In Ex parte Goodman, 816 S.W.2d 383 (Tex.Cr.App. No. 70,887), we held today that, because it implies a violation of the Eighth and Fourteenth Amendments, the failure to proрerly instruct the jury on Penry type evidence may be cognizable by way of post conviction writ of habeas corpus under
Where this court and the legislature have heretofore failed to give direction, we cannot fault the bar for failing to рerfect error or proffer evidence; and this is particularly true since neither we nor the Supreme Court of the United States have yet to fully define the extent, boundaries and limitations of Penry type evidence.
I would remand this case for an evidentiary hearing so that the applicant might be allowed to develop his Penry type evidence and so that it might be determined if in fact the evidence is that which should have been submitted to the jury with a proper instruction in accordance with the mandates of Penry v. Lynaugh, supra. Because the majority does not do so, I respectfully dissent.
OPINION
This is a post conviction aрplication for writ of habeas corpus filed pursuant to the provisions of
On January 9, 1986, applicant was found guilty of the offense of capital murder. After the jury returned affirmative answers to the special issues, punishment was assessed at death. This Court affirmed applicant‘s conviction on direct appeal. Rogers v. State, 774 S.W.2d 247 (Tex.Cr.App.1989).
On January 17, 1991, this Court ordered the instant cause filed and set on applicant‘s first allegation. In that allegation, it is urged the jury in applicant‘s capital murder trial was precluded from considering mitigating evidence regarding applicant‘s background and charаcter. The trial court has entered findings of fact and conclusions of law and recommended the relief sought be denied.
This Court has reviewed the record with respect to the allegation presented by applicant and finds that the findings and conclusions entered by the trial court arе supported by the record and upon such basis the relief sought is denied.1 The Stay of Execution entered by this Court on January 17, 1991, is vacated.
CLINTON, Judge, dissenting to denial of relief.
This is an application for post-conviction writ of habeas corpus brought pursuant to
Trial occurred in January of 1986. Applicant neither objected to the trial court‘s charge nor requested any special instruction to ameliorate the defeсt he now alleges. However, under the concurring opinion in Black v. State, 816 S.W.2d 350 (Tex.Cr.App.1991), in which a majority of five judges joined, applicant need not have preserved this error in order to raise it on collateral attack. See also Ex parte Goodman, 816 S.W.2d 383 (Tex.Cr.App.1991). We therefore proceed to the merits of his claim.
In the course of what may fairly be described as a crime spreе, applicant murdered a Paris police officer. Applicant and an accomplice stole a car in Oklahoma City in the early morning hours of September 21, 1985. From there they drove to Paris, stole a pistol from a pawn shop, and then robbed a Braum‘s ice cream shop. A short time later they were pulled over by Officer David Roberts. Applicant jumped out of the stolen car and shot Roberts through the windshield of the police cruiser. He then proceeded to the driver‘s side window and shot Roberts five more times. Applicant and his accomplice stole two more vehicles, assaulted a number of elderly people, and kidnapped one old man before they were eventually apprehended. See Rogers v. State, supra, at 251 & 257.
Evidence at both the guilt and punishment phases of trial shows applicant was an habitual user of drugs, primarily marijuanа and PCP. There are strong indica-
Pursuant to presenting a defense of insanity at the guilt phase of trial, applicant called Dr. Gary Byrd, a psychiatrist, to the stand. Among other things, Byrd testified as to the effects of PCP:
“Q. Can you tell us the characteristics of the drug? How does it make you feel?
A. It acts—part of the affect [sic] of it is to act as a tranquilizer and to provide a—some recreational lift of high. The other affect [sic] of it, whiсh is less predictable and not commonly known, is that it makes the user really nutso (sic) or real crazy. Their thinking apparatus comes all to pieces.
Q. Can you tell us what are the clinically observed effects of PCP on a human body?
A. In terms of the—beyond the tranquilization or the minor lift or high that is obtаined from the PCP will be—what we clinically observe in an individual is that an individual will behave or carry on their activities in an illogical manner and in a manner in which they are detached from reality and the person will act as if they are unaware of the consequences of what they do. And by that, I would exemplify that for example an aeronatuical [sic] engineer who got PCP by accident might well attempt to fly off the top of the Holiday Inn, he may take off to fly and if he survives the fall in the parking lot after the affects [sic] has [sic] worn off he would say that he logically knew that people don‘t fly but it just seem [sic] at the time that that was the thing to do because the roof was there and the sky was there and the cars looked nice or that he saw the house lights. Or the little lady who is a librarian gets PCP by accident, she thinks she‘s taking her heart medicine and she takes her son‘s PCP, she may get on a Harley Davidson and open it wide open and she doesn‘t even drive a car fast and she will say, ‘I don‘t know, it just seemed like the thing to do.’ And you say, ‘Well, do you feel that you would get harmed?’ And, ‘I was just going along and it was just part of the flow.’ * * * PCP can, to the person, have the effect of like throwing a handful of bolts or nuts into a motor. The motor is running—like the brain being the motor—just throw it in there and all kinds of things may happen. Or it may keep running.”
Answering a question that was posed pursuant to the insanity defense as to whether applicant likely understood that his conduct in killing Officer Roberts was wrong, Byrd answered, inter alia:
“THE WITNESS: I don‘t think he would know—I don‘t think he would have concluded one way or the other. I think that at the time of the shooting of the police car, as I understand it, that that was one in a series of, in my opinion, bizarre, detached behavourial [sic] events in which he wouldn‘t be aware of the consequences of the shoоting of the car and wouldn‘t be able to assess quality to it, either good or bad or any moral quality to it.”
Applicant had told Dr. Byrd during their interview that he had “shot the car.”
“Q. He shot the car?
A. He shot the car.
Q. Did he tell you where he shot the car?
A. In the front windshield.
Q. Did he tell you he was aiming at anybody or anything?
A. I don‘t think he was or wasn‘t. This is part of the scenario. That‘s what cops and robbers do.
Q. What did he tell you?
A. He shot—
Q. He said he shot the car?
A. That‘s right. * * *
Q. He never looked in the car? A. That‘s correct.
Q. That‘s what he told you?
A. Yes.”
Applicant himself testified at the punishment phasе of trial. He readily admitted to the shooting, but insisted he did not know why he had done it; that he did not “even have a reason for doing it.” A pervasive theme during his direct and extensive cross-examination was that he had simply not been “thinking.”
By its verdict at the guilt phase of trial, the jury rejected applicant‘s insanity defense. This is not at all surprising, inasmuch as the record established without contradiction that applicant‘s ingestion of the PCP was voluntary, and the jury was instructed in accordance with
In Bell v. Ohio, 438 U.S. 637, 98 S.Ct. 2977, 57 L.Ed.2d 1010 (1978) (Plurality Opinion), a companion case to Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (Plurality Opinion), the United States Supreme Court invalidated the death sentence of a caрital defendant on the basis that the Ohio capital sentencing statute then in effect did not allow independent mitigating significance to certain types of evidence proffered in those cases. One of the factors present in Bell but not given mitigating value under the Ohio statute was the fact that the accused “had allegedly been using mescaline on the night of the offense.” U.S. at 640, S.Ct. at 2980, 57 L.Ed.2d at 1015. The underpinnings of Lockett and Bell were adopted by a majority of the Supreme Court in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982).
It is true that intoxication will be a relevant consideration in answering the first special issue pertaining to deliberateness. But what the Supreme Court observed in Penry v. Lynaugh, 492 U.S. 302, at 322-23, 109 S.Ct. 2934, at 2949, 106 L.Ed.2d 256, at 280-81 (1989), vis-a-vis mental retardation, has apрlication as well in context of intoxication:
“Penry‘s mental retardation was relevant to the question whether he was capable of acting ‘deliberately,’ but it also ‘had relevance to [his] moral culpability beyond the scope of the special verdict questio[n].’ Franklin [v. Lynaugh], 487 U.S., [164] at 185, 101 L.Ed.2d 155, 108 S.Ct. 2320 [, 2332]. Personal culpability is not solely a function of a defendant‘s capacity to act ‘deliberately.’ A rational juror at the punishment phase of the trial could have concluded, in light of Penry‘s confession, that he deliberately killed Pamela Carpenter to escape deteсtion. Because Penry was mentally retarded, however, and thus less able than a normal adult to control his impulses or to evaluate the consequences of his conduct, the same juror could also conclude that Penry was less morally ‘culpable than defendants who have no suсh excuse,’ but who acted ‘deliberately’ as that term is commonly understood. California v. Brown, 479 U.S., at 545, 93 L.Ed.2d 934, 17 [107] S.Ct. 837 (concurring opinion).”
Similarly, all “deliberateness” aside, jurors might rationally believe that the impairment of judgment and impulse control that accompanies intoxication might render an intoxicated defendаnt less deserving of a sentence of death than a sober man would have been.
In the charge submitted to the jury at the conclusion of the punishment phase of trial the jury was instructed, pursuant to
Second, and perhaps more importantly, this instruction does not even purport to empower the jury to give mitigating effect to evidence of voluntary intoxication that does not rise to the level of temporary insanity. A juror who believed a capital accused was not so intoxicated as to be incapable of aрpreciating the wrongfulness of his action might nevertheless find him less morally culpable than would have been a sober man committing the same crime. Here the juror would have no way to effectuate this belief either. Cf. Tucker v. State, 771 S.W.2d 523, at 534 (Tex.Cr.App. 1988) (error in giving instruction under
In short, that applicant was under the influence of PCP when he committed this offense, while certainly relevant to the first special issue, also has mitigating value beyond the scope of the special issues. There is also the fact of applicant‘s relative youth. He was 21 years old, the same age as the defendant in Lockett v. Ohio, supra. One of the considerations that the constitutionally deficient Ohio capital sentencing statute failed to accommodate as independent mitigation was the age of the defendant. Also, applicant personally expressed a sense of remorse from the witness stand, viz: “I felt sorry, man, after I realized what I had done. I ain‘t—that ain‘t me, man.” While these facts are relevant to the second special issue, they, too, have other mitigating significance. Therefore, to impose the death penalty upon answers to the special issues alone would violate the Eighth Amendment. Penry v. Lynaugh, supra; Gribble v. State, 808 S.W.2d 65, 75 (Tex.Cr.App.1990).
Accordingly, the relief requested should be granted. The judgmеnt of the trial court should be set aside, and applicant be remanded to the custody of the sheriff of Collin County to answer to the indictment in this cause.
Therefore, I respectfully dissent.
BAIRD and MALONEY, JJ., join.