Ex Parte Smith

рerson’s health and place the would LaRoyce parte Lathair Ex

well-being danger.19 immediate SMITH, Applicant. motion, court denied the The district NO. AP-74228. Ap- The appellant appealed. Court peals appeal for want dismissed Texas. Appeals of of Criminal Court jurisdiction because the statutes did March 2006. authority, for provide, nor was there other appeal.20 an petitioned appellant

Now the discretionary Court

court review the Appeals’ appeal. decision in jurisdic-

parties have briefed the issue

tion. required register appellant reportable had a conviction.

because he requirement

That is related to the stan- case, a criminal in that

dard definition of requirements apply to the appellant guilty

because he was found assessed

a punishment.

Therefore we hold

Appeals’ attempted appeal decision on the case,

was a decision a criminal which jurisdiction to

this Court has review.

Exercising jurisdiction, we refuse appellant’s petition discretionary

review. (for- Burr, 13, 1997, (Tex.App.- supra Act of June note 15 Ex 62.07), repealed by 2004). mer Code Crim. Proc. art. Dallas 18, 2005, supra Act of June note Austin, Steiker,

Jordan for Appellant. Schaefer, Atty., Kim Asst. District Dal- las, Paul, Austin, Atty., Matthew State’s for State.

OPINION COCHRAN, J., opinion delivered the P.J., KELLER, the Court which PRICE, WOMACK, JOHNSON, JJ., joined.

This death-penalty corpus habeas case is remand the United States Su with her. at Taco Bell had worked opinion plicant held preme original Our Court.1 7,1991, January she was Penry2 jury evening nullification instruc On the case con and Travis Brown given “closing manager” tion (1) applicant’s waiting error for her stitutional because: He was working with her. mitigation not “constitution she paperwork evidence was her to finish office (2) relevant”; encom ally evidence was ride give to him a home. going was issues, statutory passed by special the two Meanwhile, other Lewis and two Nickles necessary; no instruction special thus Appli- house. came to friends (3) instruction was neces to rob going them that he cant told sary, nullification instruction sufficed.3 money he needed “some Taco Bell because this Court’s Court reversed youths appli- four left for court.” The issues; ar on the first and third decision foot, they were soon cant’s house on but approve of our resolution guably, it Kevin and one picked up by Shaw that, now hold of the second issue. We riding around friends who were Shaw’s statutory assuming They stopped at another car. Shaw’s wholly sufficient to allow the were not get gun, applicant house could so to consideration and effect to “full full said, T.B.” going to hit applicant “We’re circumstances,”4 applicant working be knew Jennifer would Applicant to harm” Al- “egregious failed show cohorts, “If told one night. He unobjected-to jury-charge manza5 for this face, her.” my I to kill she will have see[s] deny therefore relief. error. We containing parked Kevin car Shaw I. the street from youths the six across Shaw, Kevin Applicant, Taco Bell. 1991, applicant In convicted Smith, Devario group, third member of robbery-murder for the capital murder paced ear outside got out analysis of all of Jennifer Soto. Because an Bell, out waiting for Jennifer come Taco offered at trial is an essential minutes, They waited back door. component “egregious Almanza “things out. did not come When but she analysis, set harm” out that evidence got into the right,” they all back go didn’t detail. said, leave, applicant car and started First, we the evidence from the review man, got It to be “No, done. got evidence showed guilt stage. State’s They around and went turned donе.” 19-year-old girl Jennifer was a Soto back. hard worked Taco Bell. She was a who knocked p.m., applicant At 11:30 promoted shift about worker and had been to use front door and asked manager Ap- before her death. on the two weeks 2658, (1993) 37, 400, Texas, 113 S.Ct. 125 L.Ed.2d 543 U.S. 125 S.Ct. 1. Smith v. (2004) (O’Connor, J., dissenting)). (per 160 L.Ed.2d 303 curiam). 302, Penry Lynaugh, 492 U.S. v. State, (Tex. 686 S.W.2d 157 v. Almanza 2934, (1989). L.Ed.2d 256 (op. reh’g). See Crim.App.1984) 782, (Tex.Crim.App. Smith, 412- 3. Ex 2005) (applying anal harmless error Almanza (Tex.Crim.App.2004). constitutionally instruc ysis erroneous impairment concerning Johnson, 782, 797, use of mental tion 532 U.S. II) (2001) rise to level of mental that did not (Penry L.Ed.2d 9 retardation). (quoting Johnson v. U.S. phone because had his car broken down. gunshot Both the and the neck wound Travis, door, opening without fatal. said that were Bell appli- Taco was closed and that Applicant, carrying bloody knife, still cant could not in. Applicant come then out walked front. jumped Travis asked see Jennifer and when she came way, out of the I saying “Hey, don’t know door, to the he repeated request. Jen- your face. you. I’ve never seen I don’t nifer opened partway the door appli- know anything.” Applicant “Hey, replied, he, Kevin, cant hugged her as and Devario your you.” know face and I’ll kill After went inside. She showed left, applicant and cohorts Travis telephone and went back to the office called finish her up paperwork applicant’s while Applicant on testified his own behalf and companions stayed in the with front stated he nineteen old years was at Travis. robbery-murder the time of the and that was, trial, he the time the father of a pretended

After he to finish his tele- baby boy. He stated that when Kevin call, phone applicant camе back to the drove by January Shaw he “they front told go- and Travis and stopped applicant asked and his Travis, to the place.” rob Kevin told if applicant’s friends would “homeboy” let shut, “If you keep your you’ll get mouth a Kevin use gun. Applicant his went money.” back, cut of the Applicant went apartment friend’s and asked him Kevin himself, into the office where Jennifer buy gun. agreed could The friend and working. was gave applicant which in a gun, bag. was Shortly thereafter, yelling. Travis heard Nobody anything said going about investigate, When went appli- he he saw Taco Bell until car arrived there. holding cant Jennifer He headlock. Then, applicant, according Kevin sud- was her on with “pistol-whipping” the head announced, denly “I’m rob fixing to Taco gun. hitting the butt of a He kept her explained Bell.” Kevin to applicant, “Travis until gun’s fell off. Applicant handle going open back door can so rob safe, demanded the combination but Applicant it.” and two others waited screamed, Tina, Jennifer “Call call Tina.” while, around but Travis not She did know the combination. Travis outside, left, they come all Kevin so but back, applicant step point saw gun they According insisted that return. point Jennifer’s back and her shoot door, applicant, Kevin knocked on the Tra- cried, “God, range. blank please She don’t it, Kevin, Devario, vis opened let me die.” applicant entered. Jennifer came to never Applicant then went into kitchen Applicant stayed the front of the store. area, knife, grabbed shot, a butcher and came the front with until Travis he heard Jennifer, continuing back to to demand the then he back wеnt to the office and combination. He her hitting gun stabbed underneath saw Kevin Jennifer with her open left breast to make tell him the until it broke. told Kevin Jennifer combination, safe, give but when she did she didn’t know the combina- wanted, him the information picked up he he stabbed tion. Then Kevin a butcher thigh, abdomen, her in the stabbing Ap- then the then knife started Jennifer. grabbed head. The State these plicant bloody away characterized knife type as “torture Finally, wounds.” he from Kevin and out started of the store neck, severing said, “Damn, man, jugular sliced her vein. it. with Travis testified applicant’s teachers Applicant in it.” testified that Several wasn’t even One conduct school. Jen- about killing statement meant that Travis’s teacher, taught applicant economics who “plan” to rob the part nifer was math, applicant was testified in. Taco Bell that Travis was involved abrasive, ob- “taunting” in and used class Jennifer, Applicant said that he knew sometimes mean language. He was scene her, thought that “no one should liked high This school “docile.” and sometimes way According appli- die the she died.” “threat- applicant said that seemed teacher cant, witnesses, including all of the State’s if he hurt the teacher— ening” would —as night, who were with him that Mends him that the teacher he insisted when robbery-murder at Taco lied about in economics. The teach- passing grade He was a “Good Samaritan” who Bell. scared, part er by grabbing Kevin’s tried to save Jennifer had earlier stolen positive applicant knife. rims. his car’s tires and jury rejected applicant’s version of vice-principal school Applicant’s middlе capital him of the events and convicted suspended he had testified that murder. disruptive in the for behavior school violations, classroom, weapons possible During punishment phase, the State teachers, objects profani- at and throwing that, mur- days after offered reputation peaceful ty. had a bad He Jennifer, dering physically had applicant law-abiding activity respect and for Standmier, assaulted Chris former authority. toward girl- boyfriend applicant’s then-current Mend. Chris testified that he was home officer, a member of police A Dallas holidays Christmas from Prairie school, applicant’s high Youth Division at University. standing He was View in a that he found a Tech 9 locker testified apartment lot parking mother’s when two Lewis. by applicant and Nickles shared pulled Applicant out one up. got cars gun was the officer that the Nickles told them, and proceed- took out baseball bat his, bag in a had five bullets applicant but Applicant to it. hit ed beat Chris with the time. The officer carrying he was in two. Chris so hard bat broke also, he gun had but applicant thought lay applicant went ground, As Chris on it. unable to find car, pulled pistol out Tech 9 back to the called nineteen witnesses The defense car, Chris, from the cocked and told case. Fifteen during punishment “N-, I’m get going back from me. Appli- character witnesses. those were said, you. you.” kill I’ll kill Chris “You tes- principal school assistant cant’s middle applicant got back into the got me.” Then “8,000 problems he had tified that they off. Chris went to the car and drove them,” school, one of applicant wasn’t hospital. A applicаnt. he did not recall because family attends pastor applicant’s said that also offered evidence that two State church, murder, applicant always came with capital before the officers months always impres- been an outstanding mother. applicant “[H]e’s war- arrested respect He man.” showed walking young middle sive rants ‍‌​‌‌‌‌‌​​‌‌​​‌‌​‌​​‌​​‌​​‌​‌​​​‌​​​‌‌​​‌‌​‌​​​​​‍as he was down the to his mother. at church and people While high-crime of the street area. jail he applicant visited jail, pastor ten When the booking him into the officers found he death: for Jennifer’s in his un- showed remorse ziplock baggies of crack cocaine said, body.” “I her cry saw began derwear. thought applicant He was capable of reha- program because he then performed at grade bilitation. The level. pastor said that he was applicant’s aware that father stole from high A school classmate and football family to support his crack habit. He player applicant testified that once came to said that such things have an adverse ef- rescue group high when a from another upon “Family fect children: troubles defi- “jumped school him” and him. stabbed nitely Although affect the children.” said, He thanked applicant, who “That’s pastor had never been home what friends are for.” and had never applicant person- counseled fiancee, Applicant’s the mother of his ally, applicant think that would child, applicant testified that is not violent. be a danger society. future Applicant would advise her sisters about doing their homework and to make The custodian of records for the mistakes like he did. “Don’t what I do department education ISD Dallas did, know, you slack According off.” that applicant’s testified records showed her, applicant “just got with the wrong that he could not or do read numbers people, that’s According all.” to the fian- kindergarten. According kindergar- to his mother, applicant cee’s acted like a surro- teacher, ten applicant “is a little rough, but gate younger father to his “[H]e sister. enjoys friends; kept sepa- he must be appeared try guide keep her and her rate from a few he’s easily led into aware of society, people, boys, things, ten, trouble.” At the ’age help appropriate her young select men diagnosed learning disabled with a friends.” person He is “a who has been speech handicap. put spe- He was a into right taught wrong and respects who cial reading group6 given education and society people.” and He respects has an speech therapy. According to these school “average” intelligence person and a “is records, when in appli- he was eleven capable who has an of intelligence under- cant was standing learning.” and school, implicated in numerous thefts at Applicant’s best friend that he testified particularly speech clinician’s applicant had seen be to wom- abusive purse. School contact with parent brother, Applicant’s Myron, en. worked LaRoyee indicated that has also been applicant’s for UPS. He that testified when stealing believed to be at home.... motorcycle father went off and used on Family reported. stresses are La- crack, Myron figure acted as a father Royce’s behavior in class is exemplary applicant. brought Applicant’s mother her and it has personnel shocked school VCR, TV, microwave, Tupperware and LaRoyee has been involved in stealing. Myron’s over to so applicant’s house father He has admitted to theft and has cried steal and them couldn’t them sell when questioned about misbehavior. drugs. family problems ap- “affected” thirteen, I.Q. At of age his WISC-R plicant, Myron on elaborate testing I.Q. 75, per- showed a verbal A problems. ap- effect these friend of I.Q. I.Q. a full formance and scale of plicant’s mother testified the father’s 1986, applicant 78. At the end of drug family habits affected phased out of reading parents education had to act both and mother she trial, classes, In the 1991 the records tes- custodian involved with education 13,000 year tified each employed personnel over children in the district in that Independent department. the Dallas School District were one rebuttal, a called like In the State different pay go the bill out eat had “to principal who testi- middle-school assistant A legal to.” assistant and student we used numerous disci- fied that he had received UT-Arlington thought was “a applicant applicant. One of referrals about plinary a lot to big teddy bear” who had loveable read, “LaRoyce talks out class them willing “he society because is contribute to loud, around, laughs plays out daily. He 69-year-old A former help people.” I daily. cannot tolerate disrupts сlass applicant “has been neighbor testified teacher, told a different Applicant him.” good neighbor” played with a Another of your to kick ass.” going “I’m dated A woman who had grandchildren. teacher’s testified high school applicant’s testified that applicant’s older brother pre-Algebra applicant that he had baby no in- young when she had a class, “In physical-science class. one come, stay at his applicant invited them in one a m— f-7 times he called me He let her his bedroom with house. use On two occasions he period. 55 minute queen-sized slept while he waterbed he was to kill me. On one occasion tried Applicant told her living room sofa. put my m— going to bullet f— habit, drug he that because of his father’s out of this Applicant head.” was taken house, had to the man of the so he went after six weeks: “He teacher’s class about got joba or age out and fifteen sixteen. books, no prepara- in with no would come The mother of one of former tion, work, sideways never do and sit testified that never had a girlfriend’s she just portent act like a little seat and per- he a fun problem applicant; with prob- always big-time evil.... He was son, always kidding brought around. He lem. It was a constant conflict.” couple ivy plants; her a plant corn conference, At punishment-charge bought her some mirrors. Another an instruction on the applicant requested friend testified that nice out in objectives the Penal Code as set young type man: “He’s the wouldn’t 1.02; granted trial court Section having mind for a son.” He was never objected to the request. Applicant also disrespеctful violent. asked for an instruction and “anti-parties” Applicants testified that mother she find, requiring jury the instruction applicant thinks and value still worth applicant who “point-blank,” that was good a human being. Applicant “is a by his own con “directly” killed Jennifer learner, child. He was a but he’s slow that instruc The trial court refused duct. way [applicant] worthwhile. There’s no a judge gave jury also the tion. trial would have hurt Jennifer. He was too pur non-statutory nullification instruction crazy good and Supreme about Jennifer. She was suant to the Court’s then-recent sorry I’m so fami- in Penry Lynaugh.7 Applicant [her] decent child. v. decision object ins jury nullification ly.” Applicant’s appli- mother knew that nobody.” cant “would never hurt truction.8 jury mitigating not rele- evidence which is 7. 492 U.S. 106 L.Ed.2d of I). (1989) (Penry special to the issues.” vant or material Therefore, according applicant, the trial pretrial Applicant filed a to Declare "Motion any providing precluded in- from court 37.071 Un- Tex.Code Crim. Proc. Ann. Art. mitigating regarding structions constitutional,” claiming that the entire Texas to create scheme "For the trial court statutory death-penalty scheme was invalid permit jury respond De- would I, Penry provide after because "it does subsequent and use introduction upon

Based preme the evidence admitted at relief,14 Court 2001. We denied instructions, trial and judge’s the trial but the Court reversed our deci two special “yes,” answered the sion upon based its own opinion Ten judge applicant trial sentenced Dretke,15 to nard v. which was delivered sev death. eral months after our decision. direct appeal, applicant that, On claimed In opinion, our former we noted that I, Article 37.071 was uncon- applicant relied on evidence of stitutional was unable to (1) his limited capacity, specifi- mental give effect to mitigating evidence in cally that he was “slow learner” answering reject- issues.9 We school, I.Q. that he had an 78of that, ed this claim and held if appli- even possible disabilities, organic learning mitigation beyond cant’s evidence had dropped he out of scope issues, statutory the two grade age school the ninth at judge’s supplemental the trial instruction eighteen; provided a sufficient vehicle for the (2) youthful age at nineteen fully consider all that evidence.10 The time he capital committed this mur- Supreme Court declined appli- to review der; and appeal.11 cant’s claims on direct We dis- (3) in prison, his father’s time involve- petition missed first for writ of motorcycle ment with a gang, drug corpus habeas because it untimely use, stealing and alcohol filed, and any show excuse or family; his own exception for its late filing.12 The Su- support his claim he produced Pen- preme again denied certiorari.13 ry-type beyond scope then We allowed file a second statutory special issues.16 We held petition for corpus writ habeas which that applicant had failed to show that included, alia, inter a claim that the trial judge’s supplemental mitigating quality of family “nullification” in- background structions were unconstitutional under the evi- mental-limitations II standard fully announced the Su- could not encompassed by dence 71,333 fendant's slip op. evidence would contra- Smith No. 10-11 (not 1994) dict the current (Tex.Crim.App. designat- status of the law." June publication). ed for pre- The trial court denied this motion conference, gave applicant’s trial counsel copy punishment charge a draft Smith 514 U.S. stated, 1967, (1995). 131 L.Ed.2d 857 you something charge If see in that you’d you differently like worded or think Smith, (Tex.Crim. parte 12. Ex 977 S.W.2d 610 better, always could be made clearer I'm or App.1998). willing wording to entertain different or ways putting different idea. So if 1148, v. 13. Smith 525 U.S. 119 S.Ct. better, you up something just come with let 1047, (1999). 143 L.Ed.2d 53 me know look and I’ll at it. Applicant any objection did to the Smith, (Tex.Crim. 14. Ex 132 S.W.3d 407 specific wording punishment charge; App.2004). objection validity his went to the continued Penry the Texas statute after I. 274, 2562, 15. 542 U.S. 124 S.Ct. L.Ed.2d (2004). pretrial upon 9.This claim was based his mo- tion declare article 37.071 unconstitutional Smith, applied. as 132 S.W.3d at 413. There no evidence “exemplary.” statutory special Appli- issues. the two expe- to learn from applicant was unable surely rel- mental limitations were cant’s conduct, to control his or unable rience deliberately to whether he acted evant his disabilities.17 with or without robbery-murder committing in learning disability troubled his both not address our Supreme The Court to whether he were relevant background pro- special the two “that conclusion danger to soci- would constitute a future with a constitutional- vided Penry, ety. supported In the evidence to his effect ly sufficient vehicle was un- an inference that the defendant mitigating evidence.”18 his mistakes as able to learn from II. impairments, I.Q., low brain

result his Thus, childhood abuse. severe which we usual method The danger likely more to be a future instruction was purported assess out in Almanza permanent of his disabilities. charge errors is set Almanza standаrd Here, applies shows the reverse: State.19 evidence The appeal20 and diffi- and on the review despite applicant’s limitations on direct both Almanza culties, corpus applications.21 school was often of habeas behavior special this evidence. issues based on 17. Id. at 414-15. We footnoted Graham 892, Collins, 461, 475-76, jury plainly important, 113 S.Ct. could have 506 U.S. Most (1993), 122 L.Ed.2d 260 in which Su with its instructions. done so consistent stated, preme Court "We not read accept do jury was not forbidden effecting change view of sea in this Court’s lawyers suggestion that his of Graham’s constitutionality of the Texas death former May activity spasm brief of criminal statute; broadly suggest penalty it does not viewed, youth, light properly special invalidity issues frame character, background, as an and his 474, (emphasis in work." Id. at S.Ct. 892 likely to be re- that was not aberration original). explained evidence, peated. like Even if Graham's case, Gary Graham's scope significance beyond the Penry’s, had the rule that Graham is not com- seeks issue, apparent that it is of the first upon the cases which manded Penry’s evidence-—unlike Graham’s —had cases, rested. In those the constitutional mitigating relevance the second lay mitigat- defect in the fact that relevant concerning danger- likely future issue placed beyond evidence was the effec- Penry’s com- Whereas ousness. tive [v. reach of the sentencer. In Lockett inquiry, pelled answer to that an affirmative 2954, 586, Ohio, U.S. 98 S.Ct. significance, Gra- despite Oklahoma, (1978)], Eddings [v. L.Ed.2d 973 readily quite could have ham’s evidence 869, 455 U.S. 102 S.Ct. 71 L.Ed.2d 1 negative supported a answer. Carolina, (1982)], Skipper 476 U.S. [v.South 475-76, 113 S.Ct. 892. Id. at (1986)], and 90 L.Ed.2d 1 Dugger, U.S. [v. Hitсhcock Smith, at 415-16. 132 S.W.3d (1987)], the 95 L.Ed.2d 347 precluded consid- sentencer was from even (op. (Tex.Crim.App.1984) types ering mitigating evidence. certain reh’g). Penry, In defendant's placed before the sentencer but the sentenc- 675, State, See, e.g., 165 S.W.3d 20. Pickens giving mitigat- er had no reliable means of (Tex.Crim.App.2005) (unobjected-to jury case, ing In this effect to that evidence. analyzed "egregious charge is error however, mitigating evidence Graham’s Almanza). harm” under placed beyond jury’s effective was not indisputably permitted reach. Graham Maldonado, parte 688 S.W.2d 21. See Ex jury place to all of his evidence before (unobjected-to (Tex.Crim.App.1985) jury- lawyers and both of Graham's two defense analyzed charge vigorously urged jury to error Almanza’s to answer "no” applies federal constitutional con- errors tion evidence was outside the reach tained the jury charge.22 within Under issues, and, so, two exactly what standard, that familiar we must decide: beyond evidence was the ambit of those jury charge? 1. Was there error in the issues. so, step

2. If “the next is to an make Traditionally, this Court has looked to evidentiary ... review as well as a the factors set out in Keeton v. State26 review part other of the rec- (decided I) years before ord may as a whole which illuminate proven, determine whether State actual, just theoretical, not harm beyond doubt, a reasonable defen- to the accused.” If the defendant dant would probably commit criminal acts object failed to the charge, of violence that would constitute continu- he must show that the error caused society. threat Those factors in- him egregious such harm that he did clude, but not are limited to: not “a fair impartial tri- al.” (1) the of the of- capital circumstances will our apply analysis We usual Almanza fense, including the defendant’s state claim the jury charge working mind whether he was did ensure that the full could parties; alone ‍‌​‌‌‌‌‌​​‌‌​​‌‌​‌​​‌​​‌​​‌​‌​​​‌​​​‌‌​​‌‌​‌​​​​​‍with or other to mitigation effect (2) the calculated nature of defen- Therefore, first we re-examine whether acts; dant’s applicant’s mitigation fully evidence was (3) the forethought and deliberateness encompassed statutory spe within the two execution; cial issues.24 In our opinion, held exhibited the crime’s we fully could address this evi (4) the prior existence of a criminal rec- within spe dence confines the two ord, severity prior and the issues, analytical cial but we used an crimes; repudiated by framework that was later (5) the age personal defendant’s cir- Tennard.25 areWe uncertain whether the cumstances at the time of the of- Supreme Court also fense; concluded applicant’s mitiga that some of habeas). "egregious (Tex. on harm" standard 32 S.W.3d Jimenez Cf. Dutchover, Crim.App.2000). Ex 77-78 (Tex.Crim.App.1989); parte Crispen, Ex Almanza, (such 686 S.W.2d at 174 a funda- (Tex.Crim.App.1989), 104-05 id. "go very mental error must basis J., (Clinton, concurring) (arguing at 106-10 case,” "vitally theory”). affect defensive cognizability that court should limit of habeas "exceptional” claims to constitutional defects “ appeal, explicitly 24. On direct we susceptible so be 'fundamental' not to Smith, 71,333 question. slip address this No. harm”). determination op. at 10-11. Indeed, quite illogical employ would a lesser standard of review for constitutional Tennard, 284-88, See U.S. at on aрpeal. error habeas review on than direct (rejecting Fifth Circuit’s threshold stan- jury-charge Were to follow Almanza constitutionally dard for relevant appeal, adopt error on direct a lesser evidence); Smith v. 543 U.S. at habeas, standard of review natural and upon (rejecting S.Ct. 400 this Court's reliance logical jury charge result would be all standard). Fifth Circuit's person claims would be deferred filed until petition corpus. (Tex.Crim.App.1987). a for the writ of 724 58 habeas 26. S.W.2d evidence, essentially which (6) sive character acting whether the defendant State, established by the went unrebutted of duress or the domination under char- have violent appellant that offense; at the time of another an aberra- the offense was and that acter (7) evidence; psychiatric tion.” (8) character evidence.27 that, if appli- logically follow It would specific factors upon relied these We fit within evidence cant’s claim, ap- rejecting applicant’s on direct in assess- and was relevant Keeton factors insufficient to peal, that the evidence was sufficiency of the evidence legal doubt, prove, beyond a reasonable danger- of “future jury’s verdict support probably commit criminal applicant would ousness,” be encom- evidence would of that would constitute acts violence dangerousness” “future passed Indeed, society.28 threat continuing of applicant’s Evidence special issue. applicant relied appeal, his brief on direct encompassed under clearly be youth would con- very that he now evidence upon factor, Texas courts the fifth Keeton adequately could not ad- tends with the agreed sup- issues to special dress under the youth of mitigating value a defendant’s port argument that the evidence was dan- under the “future can considered future dan- legally insufficient show his Similarly, evi- gerousness” special issue.31 argued: “Appellant gerousness. There he generally “exemplary” applicant’s dence of of years old at the time was nineteen classes special-education in his behavior He that he produced offense. both the fourth be considered under could mentally being retarded and was close showing a eighth Keeton factors history learning very at the least had a gen- behavior relative lack criminal history His evidence showed disabilities. Evidence of erally good character. father, by his who from fam- family strain caused and theft drug father’s habit buy applicant’s family’s personal property ily may have “affected” sold the which way32 could be consid- According applicant, in some cocaine.”29 character Arguably, eighth factor.33 evidence, coupled exten- ered under “[ajppellant’s with Keeton, defendant to whether a relevant consideration 27. 724 S.W.2d at 61. society. danger to a future constitutes State, 71,333 slip op. at 28. Smith v. No. 2-5 repeatedly Supreme Court has United States 22, 1994) (not designat- (Tex.Crim.App. June of a defen- approved consideration publication). ed for youth time of the offense dant’s youth impetuous qualities with associated Appeal at on Direct 29. Brief maturity.”) age typically mollified are (citations omitted). Id. at 29. conduct possible It is 350, 368, 509 U.S. 31. See Johnson stealing teachers and his from his mother (1993) (miti- 125 L.Ed.2d S.Ct. knowledge of his might to his be connected capital youthful- gating value of defendant’s thievery, witness ever made but no father’s spe- encompassed Texas’s second ness was a connection. such issue; credulity suppose cial "It strains the evidence have viewed would Graham, S.Ct. See 506 U.S. petitioner’s youth its effective as outside background evi- (indicating family answering the second is- reach in 475-76, Graham, scope of sue.”); Texas's falls within U.S. at dence issues; up- 892; evidence of transient "Graham’s Barley v. character ("Evidence bringing otherwise nonviolent of a defen- (Tex.Crim.App.1995) closely Jurek’s resembles age at is also a more dant’s the time of offense evidence of applicant’s ability may somewhat limited be considered under both stat- (a utory special issues.34 capacity mental school record notation 78, I.Q. of a full scale of and another post-Smith, We also note numerous cursory note on same school form of post-Tennard Fifth Circuit cases held “possible organic learning cause for prob- mitigating of type evidence lems”) could not be fully considered under fully encompassed by the Texas “future the Keeton factors, although Texas cases dangerousness” special or “deliberation” have held Nonetheless, that evidence mental of limited issues.35 are un- because we age, employment I.Q., history, though spe- and ties familial defendant’s low relevant to Penry’s issues, preclude than does of finding evidence mental retar cial from abuse”); physical dation harsh deliberately making Zimmеr that he or acted from an State, 360, (Tex. man v. 881 S.W.2d finding dangerousness); 362-63 affirmative of future (defendant's Crim.App.1994) State, 850, mitigating evi Goodman v. 701 S.W.2d 866-67 " ‘very disruptive, (defendant's dence that he from came (Tex.Crim.App.1985) evidence of environment,’ family experienced uneven he mild mental retardation not make evi- occasions, parental abandonment on two jury’s findings support dence insufficient to ... he had suffered some abuse as a dangerousness), deliberateness future could special child” be considered under two grounds by overruled other v. Hernandez

issues). original opin corpus In our State, habeas (Tex.Crim.App.1988). S.W.2d ion, applicant's we stated that prison decisions, robbery, father had been in post-Tennard In most of motorcycle gang, involved with a consorted Fifth Circuit has defen- concluded women, drugs, with other used alcohol and fully mitigating dant's could be ad- family. and stole own This situa by spe- dressed under two Texas upset family applicant. See, tion Because the e.g., cial issues. money, applicant did not have lot of be Dretke, 861, (5th Summers v. 431 F.3d (cid:127) gan looking teen-ager. young for work as a (defendant's Cir.2005) good witnesses, According to defense good given character and be conduct could suffered because his father's thefts from statutory special effect under Texas's is- family money and from a lack sues); home. 286, Dretke, (cid:127) Draughon v. 427 F.3d 297-98 However, 132 S.W.3d at 413. no witness (5th Cir.2005) (defendant's evidence of applicant's trial described how conduct of "dysfunctional up abuse child as a did, have, might appli- father or "affected” bringing” given could be effect under future cant, except say got part-time job issue); dangerousness age at the of 15 Dretke, Gene) 269, (Roy Smith v. 422 F.3d (cid:127) See, Zimmerman, (5th Cir.2005) (defendant's e.g., S.W.2d evidence of (defendant’s evidence, including pover- and childhood addiction/intoxication I.Q. 80's,” testimony ty seemingly by spe- that his "in the covered both issues; spe be statutory arguably, expo- could cial considered evidence of his issues); State, might cial sure Gunter 858 S.W.2d to a crime-infested environment been; (Tex.Crim.App.1993) (mitigation grant- 445-46 evi not have COA on claim ed); dence that defendant was abandoned mother, Dretke, child, (5th subject abused as Cole v. 418 F.3d 500-11 (cid:127) Cir.2005) discipline adopted parents (statutory special strict sent who issues were punish enough encompass him to school broad unbathed and unfed as defendant’s ev- family ment could be considered under is idence back- "destructive overruled, sues), grounds by Riley ground,” fragmented organic personality, on other State, youth); (Tex.Crim.App.1994); neurological deficiency, State, Dretke, (5th (Tex. Goss v. 826 S.W.2d 166-67 Coble v. 522-27 F.3d (cid:127) (evidence Cir.2005) (defendant's Crim.App.1992) of troubled child evidence of troubled childhood, breakdown, adequately hood is considered within second mother's nervous issue); orphanage, post-Vietnam Williams v. mental insta- (evidence bility, (Tex.Crim.App.1988) 537-38 could con- mental illness that re- sufficient harm current defendant. Whether Supreme as to the Court’s certain assume, require to Penry charging will from the error II jurisprudence,36 we sulted at least whether the defen- argument, depends upon of for the sake reversal fully at objected evidence was to the error some of specifically dant Almanza, by special the issues. encompassed when there trial. Under Thus, trial, jury charge objection we shall assume that we timely made been a constitutionally contrast, case deficient By in this for harm.” only look “some Penry II. the first time urged error is where the for habeas application or an appeal

III. relief, “egregious we look corpus recently applied our harm.”37 We most jury constitutionally A deficient familiar Almanza standard of review however, result in auto charge, does not charge in jury Al- constitutional error of a conviction under matic reversal death-penalty the third sentence reversing manza. We must also assess the harm Penry.38 Paul charge Johnny jury this deficient caused II, medication, required by by petitioner’s jury was law well evidence trolled as well-respected that he was and liked a that made no mention answer verdict form issues; by statutory special all covered not- mitigation just And whatsoever of giv- ing supplemental II, that "the instruction Penry proof on as in burden special interroga- addition to the issue en in findings by deliberate- State was tied law to only tories is unconstitutional where the little, dangerousness that had ness and future special are issues themselves not broad mitigation anything, if to do with enough provide a for the vehicle ”). presented.’ petitioner mitigation effect to the evi- defendant's dence”; any giving supplemen- error Almanza, 171; supra, S.W.2d Arline tal instructions would be harmless and 348, State, (Tex.Crim.App. v. 721 S.W.2d relief); therefore not the basis for habeas 1986). Dretke, (5th Brewer v. 410 F.3d 777-78 (cid:127) Cir.2005) (special covered defen- State, Penry 178 S.W.3d 38. See v. dant’s evidence that he had a bout with that, (stating after (Tex.Crim.App.2005) find murder, illness mental three months before charge, еrror in the constitutional him, manipulated he was co-defendant "[ujnder Procedure Article Code Criminal father, by abused saw his father abuse 36.19, not reverse a conviction will mother, drugs). and he abused charge the basis error sentence on Dretke, Bigby 564-72 In F.3d appearing from the record the error 'unless however, (5th Cir.2005), the Fifth Circuit injure rights was calculated that the evidence that he found defendant’s defendant, appears that the defen or unless it paranoid untreatable suffered from chronic impartial trial.' dant has not had fair by encompassed schizophrenia was not to ob finding harm” under "some Almanza issues; thus, granted statutory habe- error); Ngo v. jected-to jury charge see also Bigby. as relief State, (Tex.Crim.App. 750-52 Fifth Circuit seems to share our uncer 36. The 2005) "egregious Al- (finding harm” under Dretke, See, Gene) e.g., (Roy tainty. Smith v. unobjected-to constitutional error in manza (5th Cir.2005) ("We 287 n. 8 F.3d jury charge). stated in As this Court Jimenez explic note Court has never (Tex.Crim.App.2000): itly cannot be extend stated that claims is, standard question in this case what beyond involving of 'men ed claims applies to error error times, of harmless impairment.’ tal In fact at it seems the to, objected charge that was not court's opposite.... The has said the exact is claimed to violate constitutional only of wheth mention the Smith Court made applicable provision? We hold er defendant's evidence outside provided 36.19 of article questions standard is issue was the reach judg- “the 'just Criminal Procedure: single as in the Code of Court’s sentence that In analyzing jury-eharge they “yes” error un change could answer “no” Almanza der judge instructed so upon we review the entire trial to do finding record, mitigating from sufficient evidence.39 voir dire through closing ar The Supreme specifically noted that guments stage, punishment the to de the nullification instruction “intensified the termine whether suffered “egre by jurors”40 dilemma faced ethical in this gious harm” from the deficient case. That is a possibility, indeed al- charge. though jurors served, neither the who nor dire, During voir both the State and parties the judge trial such noted a applicant questioned potential almost all potential expressed dilemma or a such con- jurors regarding ability their to consider cern, either during voir dire or later. Al- mitigating Both explained evidence. sides manza “actual, requires showing a not process allowing jurors the to change just theoretical, harm to the accused.”41 one of the special issue answer from a case, Given the record in this we cannot “yes” they “no” if mitigating found say that the discussion of the sufficient warrant a life sen- during the nullification instruction voir tence rather penalty. than the death harm, dire “actual” “egre- shows much less Overwhelmingly, jurors agreed gious” the that harm. ment shall not be ... capacity. reversed unless it ques- as mental The then court appears from the record that the defendant tioned him further: impartial had a fair and trial.” you everything, you And after heard party Id. at 233. "A is not from excused the well, thought special ques- [the answer to procedural requirements objecting at trial ought yes tion] one to be answer to [the merely because an error involves a constitu- special question] ought yes, to be but I right.” explained tional Id. at 235. We that something, think based on this man’s some- protection to invoke the of this federal rule him, thing past, something in his about casting prove, [of a burden on the State to die, ought you don't think he then would doubt, beyond a reasonable that constitu willing go change back and one of the tional error Chapman was harmless under die; answers to no to sure make he didn’t is California, U.S. S.Ct. right? (1967)] court, 17 L.Ed.2d 705 in a state juror said he able would be to do appellant complied must have with the state argued juror so. Defense counsel procedural preserving court’s rule for " evidence, mitigating could not consider presenting procedural princi error. 'No agreement questions posed that his with the ple is more familiar this Court than that by "simply pay- the court and the State right,’ right a constitutional or a ing lip actually really service to the idea of sort, 'may other be forfeited in criminal as giving any mitigating fair consideration to well civil cases the failure to make circumstances in the case.” When trial timely right assertion before tribu ” juror qualified, appli- court ruled having jurisdiction nal to determine it.' peremptory challenge cant used his final forfeitable, right are, rights If the as most ruling him. The court’s was within the appellant comply an who did not with the reasonableness; furthermore, bounds of preserving presenting rules error juror empaneled, appli- was not and therefore rely must on the forum's rules for consider by any potential preju- cant harmed unpreserved ation error. juror's inability dice caused to consider (footnote omitted). Id. at 238 and citations poor drug childhood or addiction as miti- (Mr. only gating exception juror

39.The was one Zimmermаn) who stated that he did not think 40. Smith U.S. at drug that evidence of a defendant's abuse or poverty mitigate childhood would a death However, sentence. he indicated that he could consider other evidence such 41. 686 S.W.2d at 174. no, and questions those answers guilt law Turning to can table painted only the evidence and the defense stage, State can, change those you, Taco if it markedly persuade portraits different questions. par- yes on those robbery-murder Bell no answers way If the law ticipation grisly in that deed. That’s works. Some evidence, applicant you’d only last the State’s use it as a you believed said that resort, and was who plotted robbery, only to commit the for habitual criminals pack. Applicant told possibly leader of be rehabilitated.... could not story. He no idea that track very different had his you You said would consider to the Taco planning go deep he record, person Kevin Shaw was of was the kind less a rob- night, Bell that much commit down inside. “a was Good

bery Applicant or murder. bloody knife Samaritan” who snatched the he a Continuing of violence. Is acts took the door. away from Kevin and it out society? voir continuing On threat sum, evidentiary In an painted the State dire, you you told us that almost all of Hyde; picture applicant presented of Mr. who had a looking for someone were portrait Jekyll. Dr. of these of Both record, of in and out long criminal that’s could not true. The be- versions be cannot be penitentiary, the someone who version, applicant’s the lieved State’s but boy spent This has not rehabilitated.... testimonial of the events did not version day penitentiary. in the one any acuity. of His betray lack mental late argued that “it’s too The defense clear, coherent, testimony concise and was to the fact that LaRoyce.” pointed It responded nimbly He and held consistent. that he was many had testified witnesses prosecutor his own when cross-exam- The or at home. problem” “no school him. ined family life: applicant’s defense mentioned arguments punish- closing The a fool to not think “I think it would take Jekyll stage ment carried the “Dr. out on in that things going that were that Hyde” again dichotomy. Mr. The State their daddy selling family when their was that Taco Bell emphasized fact going is not to have for crack appliances robbery-murder applicant’s idea. He fo- impact at The defense school.” Jennifer and he used his “charm” knew co- applicant’s on how much worse cused inside; get hugged he her. Her mur- then hort, Kevin, had a much was and how he He no re- premeditated. der was showed em- than He background applicant. worse murder, matter-of- morse: after he Travis, kill phasized told “we had to factly his Mends that if he so eyewitness, and the other girl,” only shoot a concern terrible, de- have done so. The he would jacket. bloody rid getting State spoke mitigating evidence: fense prior aggravated assault of referred you mitigating talk to about I want to continuing Chris Standmeir to show evidence is that Mitigating possession of ten prior violence and to reduces the defendant’s packets general to show his lack cocaine may culpability or moral personal conduct as well as his motive lawful to, include, аny aspect is not limited robbery. character, record, background, or of his may go It the offense. emphasized rela- circumstances of The defense not, issues, may one criminality possi- prior lack of tive you court tells State redemption and but the ble rehabilitation: you burden that if think that he should whelming evidence, that he die, you are to put “no” in one of the die, still needs to that there is nothing spaces, that the State has the burden of else we can do with him or to protect proof beyond a reasonable doubt to con- society, you have to exterminate vince each every you one of that he him you like stray dog would a or cat? should still die. spoke He of remorse: spoke He applicant’s I.Q.: Reasonable evidence, deduction from the have, evidence we medical diagno- he has learned and has Why remorse. sis, learner, slow may organic. Ob- cry would he in front of the minister jective data, I.Q. test eight He is when talked about girl? points from being mentally retarded.

Why do you think LaRoyee gets along ‍‌​‌‌‌‌‌​​‌‌​​‌‌​‌​​‌​​‌​​‌​‌​​​‌​​​‌‌​​‌‌​‌​​​​​‍The State of Texas prove you must

so well with kids? Because he’s like beyond a reasonable doubt one, why. that’s Because he’s like death sentence should imposed be de- one.... It shows he is not a leader [like spite the mitigating evidence. You shall Shaw], Kevin it shows he’s a follower. answer no to one of the issues to spoke He family problems: your effect to meaning. LaRoyce’s life Family problems. prosecutor] [The will your hands, is in question no about say, “Well, we’ve all problems had and that.... people These get up didn’t here many of us have by been raised single they because anything didn’t have to do parents.” true, That’s but many how and quick wanted to have a thrill in the us have had our daddies sell appli- our They courtroom. testified and came crack, ances for that we’ve had to take down here they wanted to tell V.C.R.’s, T.V.’s, hide our our our you there is something saving. worth freezers, so our own daddy go wouldn’t and sell it for Both the crack? You State and presented know that defense vi- that impact has an brant and compelling arguments on someone. It has for and an impact against on they how act in school. issues and the na- (and ture quality He noted prodigious number of de- aggravating) primary The fense witnesses: theme of the defensive evidence and clos- The numbers do mean something, how ing argument LaRoyee was that Smith was many of say us could if we in a young man whose life was worth saving. trouble that we could many have that He had triumphed over such disabilities as people say come and something good? being troubles, a slow family learner with These people know him. You have proven and had himself a role model to known him eight for days. They have family other members and friends. His known him for their They life. say he pastor spoke behalf, on his as did his should not die. He is not evil. That’s mother, brother, fiancee, and fiancee’s only not the thing you can do with him mother. All were certain that he would .... there is something good La- about pose a risk of in violence the future: Royee. There is something worth sav- LaRoyee “What needs ais controlled envi- ing. They you ... tell he can be rehabili- ronment.” tated. Is he the worst of the worst? Is he someone who can’t be rehabilitated? In its final argument, the State remind- Has the State proven beyond a reason- ed they knew able doubt spite of this over- no dummy. He noted: his remarks with why prosecutor we concluded I.Q. testing, The and that’s following: it shows we see records and when I.Q. we the rest of

his is introduce going I’m to be gentlemen, Ladies that and we packet we examine minutes. sitting just few down I.Q. close to 90 on other find is your hands. is When going case your testing within that file. That’s selection, you we on we talked consideration, judge you but I ask time you told at that you talked to —we by testimony, by him his street- to call going facts were what we felt the testimony smartness for, this an individual where Nobody LaRoyce is gave. going fool punishment is earned the ultimate mean, he brutality Smith the witness stand. years. him over alone, if bumbling standing case particular not a fool. He is an intelli- this absolutely nothing else about you knew No gent individual and he so testified. LaRoyce background, Smith and there, I think. argument would penal- for the death brutality alone calls closing argument with began The State So, please is the case. this ty this following: not for this compassion, time outlaw, individual, not for Now, you we talked to on voir when family. victim’s We’d the victim dire, you we talked about—and you that. ask to consider you to talking a lot of time spent fol- you determine whether or could Honor. you, Thank Your very us im- low the law. You told two suggested appli- that prosecutor never you. portant things when we talked ig- evidence should be mitigation cant’s all, you of in the First told us that (or not) nored, fit into the that it did you give the appropriate case that could issues, once the special or that said, Secondly, penalty. you “Mr. death issues, it truthfully the special answered [prosecutor], you Ms. [prosecutor], mitigation other ignore applicant’s should that to those prove me the answers evidence. yes, should be then I can special issues jury ultimately answered the Although wavered, if yes.” you answer them If way required in a special issues that, you hesitated one minute on then impose penal- the death judge the trial you, you going weren’t to be guarantee to conclude that ty, we are unable then, and jury. you on this We believed statutory and nullification special issues you we believe now. applicant “egregious instruction caused sug- never Significantly, prosecutor jury’s upon effect deliber- harm” gested fail ignore that the should mitigating Applicant of ation his of applicant’s mitigation consider any persuasive argument fails to provide deciding whether the answer evidence unable to consider “yes” or special issues should be those evi- totality his extensive course, prosecutor properly “no.” Of dence, punishment appreciate his upon sup- that would focused evidence theme, specific or to take into account issues, port “yes” special I.Q. a answer to both relatively test low evidence of in a just properly thirteen, participation as the defense had focused age and support a upon reading program that would evidence education family therapy, or his troubled speech answer to those issues. “no” background.42 The basic defense theme jury consider and evaluate all of his miti- was that had triumphed he over these gatiоn evidence that he receive a difficulties; youthful he did not succumb to “fundamentally All fair trial.”44 of his strategy them. That is the attor- admitted, mitigating evidence was defense neys chose, and this an approach that a job did a superb weaving counsel all of jury might persuasive. find that evidence into compelling theory case, attorneys presented and his Applicant’s defensive coherent, strong, very picture persuasive closing theme created a different argument punishment. than We and theme therefore Supreme concerned the in Penry. show, that applicant conclude has failed to case, In the latter Court was preponderance evidence, Penry’s “two-edged troubled sword” ev unobjected-to jury nullification instruc- fact that mentally idence—the he was re him tion caused harm.” “egregious We mitigating, tarded was the fact deny relief.

was, therefore, unlikely to learn incapable

mistakes rehabilitation or HERVEY, J., concurring opinion filed a reformation, Here, was aggravating.43 KEASLER, J., joined. which however, the defense was to weave able impairment, evidence of mental HOLCOMB, J., dissenting filed a youth, family background into dra opinion. matic account of his humanity triumph MEYERS, J., participating. adversity. provided

over It evidentiary support for defense counsel’s well-crafted HERVEY, J., concurring opinion filed a closing argument that “he has learned and KEASLER, J., joined. which remorse” thus he is sav “worth ing.” Applicant only unpre- has raised an served federal constitutional claim that the

It possible is the two issues statutory special two issues and the non- may fully completely not have encom- statutory “nullification” instruction at his passed every single applicant’s bit of miti- capital gation provide 1991 murder trial did not may evidence and he have suffered However, jury give with a appropriate “some” actual harm. we do vehicle to find to charge egre- applicant’s mitigating that the deficient was so effect giously injurious right to his have disposes unpreserved the This of this Court 638, 619, 1710, 42. Applicant’s position Pemy jury is that all 113 S.Ct. 123 L.Ed.2d 353 charge (1993)); Coleman, error is structural immune and thus see also v. Calderon 525 analysis. posi from harmless error This 141, 144-46, 500, 142 U.S. 119 S.Ct. L.Ed.2d tion conflicts with Texas law well-established (1998). 521 under It is with inconsistent our Almanza. State, Penry most recent decision in 178 v. I, 323-24, 492 U.S. at 2934 782, (Tex.Crim.App.2005). S.W.3d 788 It ("Peniy’s history mental retardation and that, appear would Court two-edged may is thus a sword: abuse it well, precedent subject error for his crime diminish blameworthiness Pay review for harmless error. See v. Brown probability is a even as indicates that there ton, 1432, 1452, 125 U.S. S.Ct. dangerous will that he be in future” be- (2005) (Souter, J., dissenting) L.Ed.2d 334 "one effect of his retardation is his cause (disagreeing plurality with which found no mistakes”). inability to learn from his error; Penry-type concluding the error was harmful under federal habeas standard Almanza, 686 S.W.2d at 172. Abrahamson, set v. out in Brecht U.S. jury to con- was unable argument un- independent ground claim on an state mitigat- “egregious totality der harm” stan- of his extensive our state-law sider the “unobjected-to er- jury-charge evidence, punishment dard appreciate ror.”1 v. See Jimenez theme, specific into account the or to take This es- (Tex.Cr.App.2000). 237-39 I.Q. test at relatively low evidence of unpre- sentially is the same review thirteen, age participation system. in the See served issues federal reading program and special education Jimenez, 238; at see also S.W.3d Unit- family troubled therapy, or his speech Olano, 730-32, ed States 507 U.S. background).3 (1993). S.Ct. L.Ed.2d decide, however, consistent with I would opinion appli- The Court’s asserts deci- Supreme Court’s the United States theoretically cant could have suffered Texas, that the Consti- sion Johnson harm “some” actual from the “deficient” only jury provid- that a be requires tution [statutory] special charge because “two meaningfully consider ed with a vehicle fully completely may not have not, as the Court’s mitigating evidence every bit encompassed single decide, “fully a vehicle to opinion seems to Smith, at mitigation op. evidence.” See evi- completely” mitigating consider 472.2 The Court nonetheless decides at Johnson v. 509 U.S. dence. See “egregious suffered no harm” 354, 368-72, 125 L.Ed.2d charge the “deficient” (1993) (Constitution requires only that meaningfully (though could still have “meaningful some basis” fully) any mitigating considered evi- mitigating not that give effect to dence within the context statu- “a be able to effect tory special issues under the circum- Smith, every conceivable manner op. of this case. 472 evidence stances See relevant”).4 (applicant provide any might the evidence persuasive fails which case, Smith, theory attorneys slip op. pelling and his 1. See Ex coherent, AP-74,228, strong, persua- (Tex.Cr.App. presented No. delivered date) closing argument punishment. We (op. Su- sive on remand from United States Court). preme applicant has failed therefore conclude that show, by preponderance of the evi- apparently 2. This is the con- reason dence, unobjected-to jury nullifica- deficient; i.e., charge siders to be "egregious tion caused him instruction charge provide jury did with a vehicle harm.” "fully” mitigating consider some opinion in 4 the Court's this 4.Footnote states, Smith, opinion slip 3. The Court’s also to former Justice O’Connor’s 5-4 case cites 472; op. at Johnson, Penry III-B decision in Part 782, 797, [statutory] possible 121 S.Ct. 150 It is that the two 532 U.S. II), (2001) (Penry quotes fully which may completely and L.Ed.2d 9 Johnson, opinion every dissenting in encompassed single from bit of her jury a mitigation may proposition that a must have vehi evidence and he have suf- However, give and effect cle to consideration fered "some” actual harm. “full full Smith, slip op. charge mitigating” was so evidence. See do not find that the deficient Penry originally II injurious right (emphasis in egregiously to his to have the at n. however, rule, Smith). mitiga- a would jury his and Such consider and evaluate all of signifi change” require a a a sea "effec[t] tion evidence that he not .receive capital Supreme "fundamentally Court’s omit- cant alteration in [Footnote fair trial.” ted], very thoroughly sentencing jurisprudence mitigating was All of his admitted, opin Kennedy's majority superb job defense discussed Justice counsel did Johnson, 509 U.S. 365- weaving into corn- ion for the Court in all that evidence Since statutory special HOLCOMB, J., the two issues pro- dissenting filed a applicant’s jury vided opinion. with a vehicle to meaningfully applicant’s mitigat- consider respectfully majority dissent. evidence, ing there was charge no deficient misapprehends plain directive of the error) (i.e., no consequently applicant Supreme United States rever- harm, could have no particularly suffered sal of court: precisеly, apply this a harm Court’s decision in Johnson analysis to Eighth Amendment error be- Smith, good is still law. See also parte Ex “the cause nullification instruction was (Tex.Cr.App.2004) S.W.3d 427-28 constitutionally inadequate Penry (Hervey, J., concurring). Under these cir- II”, effectively preventing jury from cumstances, additional, nonstatutory full giving effect to relevant Smith’s miti- “nullification” completely instruction was gating evidence.1 Smith gratuitous only and could have benefitted 37, 48-49, U.S. 160 L.Ed.2d applicant by providing with anoth- (2004) curiam). (per theWith follow- er vehicle to consider mitigating evi- comments, ing I dissent denial of fully dence more than what Johnson and corpus habeas relief. require. the Constitution See id. Procedural Default So, requires even if law Although I was persuaded once be provided be with “fully a vehicle to otherwise, lieve Smith’s federal constitu evidence,5 completely” consider mitigating tional claim that an he was denied effec instruction, the “nullification” particularly tive vehicle which could consider way with the carefully ex- effect to plained jurors dire, to the during voir ac- procedurally was not defaulted. See Ex Smith, complished this. See 132 S.W.3d at Smith, (Tex. S.W.3d J., (Hervey, 427-28 concurring). Since we (Holcomb, J., Crim.App.2004) concurring disposing are indepen- case on an dissenting). majority appears dent ground, state we are not bound that, although hold presented Smith three II, expressed view U.S. pre-trial Eighth written upon motions 801-02, jurors 121 S.Ct. 1910 that Texas objection, objection Amendment lacked incapable are remembering, understand- requisite specificity under our state- giving straightfor- effect to rules, preservation law error and there manageable

ward аnd in- “nullification” fore, claim procedurally defaulted. struction such as the one this case. See Maj. op. supra See & n. 9. at 462 And Smith, J., at 427 con- (Hervey, yet the fact II despite had curring). decided, majority holds

I concur in judgment the Court’s object precise Smith’s failure to under the deny corpus reasoning habeas relief. of Penry II is now fatal to his 73, Johnson, veiy 2658. It S.Ct. would be difficult ‍‌​‌‌‌‌‌​​‌‌​​‌‌​‌​​‌​​‌​​‌​‌​​​‌​​​‌‌​​‌‌​‌​​​​​‍5. But see 509 U.S. at Penry to conclude that II overruled all of this (Constitution require does that "a not lohnson,

jurisprudence, particularly without jury be able to effect to evi- expressly saying so. It would be even more every dence in conceivable manner in which Kennedy, difficult to conclude that Justice relevant”). might the evidence be joining Part III-B of O’Con- former Justice II, opinion Penry repudiated nor’s sub si- Johnson, 782, 798, Penry v. 532 U.S. position very thoroughly lentio the that he so II). (2001) (Penry S.Ct. L.Ed.2d 9 set out in Johnson. example, pre- For in two Maj. op. supra construing at it. constitutional claim. motions, argued majority Smith that: the faults trial Specifically, only applicable arguing Smith (cid:127) “statutory penalty the Texas death applied un unconstitutional as statute was may unconstitutional scheme become I2, thus, fur Penry his failure to der miti- offers applied the defendant in object to the verbal nullification ther background gating evidence about his the struction, when invited to do so of or character or the circumstances II Penry court, his claim. trial waived not the the crime are relevant Maj. op. supra at 462 & n. 9. See questions or rele- special verdict go saying It without that a defen should culpa- moral to the Defendant’s vance right not to assert dant does waive scope the bility beyond the of object by failing to constitutional violation I) (Clerk’s (citing Penry verdicts” trial, if, right at the time of at trial 73-74); Record Tay recognized. Ex Parte had not been (cid:127) Ann. Crim. Proc. is Art. “Tex.Code lor, (Tex.Crim.App. it 37.071 is unconstitutional because 1972) (citing United States explaining provide not for the introduction does (2d Liguori, 430 F.2d Cir. subsequent use the of 1970)). Penry II had not been Because not mitigating evidence which is rele- by the at the time Supreme decided the issues. vant or material to trial, it been a su of Smith’s would have provision Texas for the There is no object perhuman specifically feat indeed to appropriateness decide the it that the verbal nullification instruction into consid- penalty taking the death inadequate remedy self was personal culpability moral eration the (that why in his case and problem by mitigat- Defendant balanced nullification instruction creates situation ing directly which is not jurors whereby would face an intractable circumstantially probative answer- dilemma).3 be ethical Smith should not no special issues. There is failing anticipate faulted for action statutory in the provision current Court. See States United for the to render ver- scheme Thus, Liguori, 430 F.2d at 847. ma penalty dict that the death should jority’s pre reasoning Smith of mitigating inflicted because evi- countenanced, and serve error cannot be (Clerk’s type.” of this Record dence further, supported by is not record. 80). brought The record reflects that Smith unfairly majority characterizes Amendment error to the atten- Eighth court, objec- arguments as broad-based tion of the trial that the trial court Smith’s statutory and the objections, objec- tions scheme understood charge possible that no instruction requisite speci- with court’s tions were made cure, failing Rule and faults Smith ficity preserve error under Texas could court about suggestions to trial Appellate Procedure. and the cases offer 33.1 302, 328, similarly capital trial situated defendant’s Lynaugh, U.S. I) (1989) (Penry convicting 106 L.Ed.2d 256 the cause and remanded (remanding punishment hearing for new See Ex claim. court for consideration * harm). assessing without Robertson, AP-74,720 (Tex.Crim. (not 2005) designated for App. March recently Penry We II nullifica- held publication). problem recognized at the time tion was not view, how, in the is, nullification instruc error. preserve Smith That if least, tion say particular should be worded. To Smith had offered wording or a however, mitigation, concerning proposed charge the state the law and that disarray in issues was instruction was later declared to be inade- trial, arguments quate yet-to-be-decided time of and the under Penry Smith case, pertaining to II made Smith invited issues would have the error clearly apprise sufficient to court and no relief could subsequently the trial have been to him granted acquiescence of his federal constitutional claim under because of error. Penry declaring otherwise, Applicant’s Reply I. In to the See the ma Brief n.*; merely (Reporter’s on Remand at 3 jority splitting to avoid Record hairs 3^4).' puzzling Vol VI It is to applying beyond-a-reasonable- me that proper majority thinks the better course doubt to his standard meritorious federal was, unique trial counsel in State, this and diffi- claim. See Lankston v. 827 S.W.2d situation, an (“no cult to estoppel-type- сreate 909 (Tex.Crim.App.1992) techni problem by himself suggest- invited-error cal or considerations form of words” are ing, court, at the invitation of the trial review, required preserve error for changes further to the nullification instruc- straightforward in plain communication tion. See also PROC. Ann. Chim. English always Tex.Code will suffice it lets the art. 36.14.6 judge trial what party know wants and it); why he thinks himself entitled to Tex. Moreover, reflects, exchange as this R.App. require P. 33.1. Whatever trial court understood motions Smith’s as a lawyers in respect Texas with rules request a sufficient mechanism to allow of error preservation, we should not hold consider and effect to his they clairvoyant. Liguo must be See mitigating evidence. ri, II F.2d at 847. Because had Court: The two motions to declare not been decided and there no enact Texas Code Criminal Procedure Legislature ment in response Annotated, 37.071, Article Section I, exactly majority this is what the applied, 3701 unconstitutional as requires lawyer. record put read those and ... them in my reflects that counsel went above be mind together. anything Is there yond required preserve what of him you included in motions that those two Tex.R.App. error P. 33.1 and Tex. orally? supplement towish Code CRIM.PROC.Ann. art. 36.14.5 No, Counsel: Honor. Trial Your compelling argument

I also find Smith’s Trial Court: Those have to will be de- reply position to the State’s new nied. (Tex. governing objecting charge rule Beathard v. 6.The Crim.App.1989). provides required that Smith was not to do majority suggests what the he should have Providing part that "the defendant or his necessary "[A]nd done. in no it be event shall counsel shall have reasonable time exam- present counsel tо defendant for special requested charge] pres- [proposed ine the and he shall preseive charges to or main- objections writing, distinctly ent thereto assigned charge," tain error as here- to the specifying ground objection. each Said provided. Crim. See TexCode Proc. Ann.art objections embody may claimed to errors added). (emphasis 36.14 charge, have been committed in the as well as errors claimed to have been committed failing charge or in omissions therefrom upon arising from the facts.”

477 5). application § “Random or inconsistent potential further explained Smith will not Mitigation rules of default procedural error in his Motion Reveal of state “[sjince Charge, Penry Leg- independent ... the Texas and ‘adequate as regarded met in several sessions but islature has as to decision so bar grounds’ state law and issues problems failed to address the Gard review.” Ex federal habeas ... [and the] created decision ner, 189, (Tex.Crim.App. 193 959 S.W.2d Appeals has had numer- Court Criminal 1996) (Clinton, J., (citing John dissenting) problem opportunities ous to address the 587, 578, 486 U.S. Mississippi, son v. so in raised in has failed to do (1988)). Thus, 1981, 100 S.Ct. L.Ed.2d (Clerk’s opinion.” Record 87- any -written concurring judge’s reason contrary to 88). Thus, clearly reflects that record 472-73, op. ing, Concurring supra see court, trial arguments Smith’s before the by now avoid federal review cannot stating not that the nullification explicitly not error preserve that Smith did holding remedy inadequate instruction was an question of how “the when because they complaint, cure I were procedur compliance with state defaults court precise enough put the trial on court’s] con preclude [federal al can rules notice, no since there was stat- particularly question is of a federal itself sideration guidance. or law look to ute case Henry v. Missis question.” federal See 148, 154- Taylor See 447, 564, sippi, 379 U.S. 85 S.Ct. objec- (Tex.Crim.App.1996) (grounds (1965). L.Ed.2d tion, imprecise, apparent while from context). majority’s reasoning to Furthermore, ground procedural a state contrary, arbitrary utilizes an un- rule adequate procedural is unless analysis” fair consid- “hair-splitting bar Barr v. strictly regularly is followed. eration claim on the merits. of Smith’s Columbia, 146, 149, 84 City 378 U.S. (con- Lankston, See (1964). 12 L.Ed.2d 766 Barr S.Ct. it cluding that was clear from context that Barr, In point. on this instructive prosecutor both understood the judge invitation to Supreme Court declined the objection). defendant’s preserve did not er- hold that Petitioners preservation

Our of error laws state claims because ror on their constitutional may applied addressing not be avoid supreme pass court “refused state substantive in violation of federal claims taken objections” exceptions as “the Texas, See, e.g., Washington law. consid- general ‘too to be below were ” 22-23, 1920, 18 L.Ed.2d U.S. 87 S.Ct. reaching In its decision Id. ered[.]’ (1967). Nor do believe reviewing from state it was not barred may court to avoid reversal attempt decision, considered the the Court court’s error or cloaking federal constitutional similar treatment of state court’s recent “independent harm in ad- purportedly 149-50, id. at cases. See law Concur- equate grounds.” state See court had addressed Finding the state 472-73; Kunkle v. ring supra at op. cf. cases, either iden- in five wherе merits 1039, 125 543 U.S. objections be- tical were made or similar (2004) J., (Stevens, concur- L.Ed.2d 605 low, concluded was Supreme Court ring) (noting the claims reviewing prohibited jurisdiction have to consider Kunkle’s Pen- on merits. id. See ry claim it was barred an preservation of error application Our independent adequate ground, state late, applied capri- been i.e., 11.071, rules, Art. Ann., Tex.Code CRIm. Peoc. 478

ciously arbitrarily by court;7 holding this erroneous, the merits to be therefore, a self-proclaimed “adequate” may remedy problem not now by fail- procedural cannot majori- bar insulate the ing merits, instead, to address the ty’s holding from federal review. See decide that the complaint substantive Henry 447, v. Mississippi 379 at U.S. 85 preserved. Wells, See United States v. 564; Columbia, City Barr v. 378 482, 487-88, 921, 519 U.S. 117 S.Ct. 149, U.S. appears S.Ct. 1734. It (1997) L.Ed.2d 107 (acknowledging law of (and me that this court clearly has been doctrine); State, the case Granviel v. case) in this improperly applying procedur- 141, 147 (Tex.Crim.App.1986) al bars to granting avoid substantive relief (same).

to defendants perhaps guilty who are Obiter Support Dicta to Harmless Error are otherwise entitled to sought. the relief procedural The rule of default should not I disagree majority with the that it is be used as an hoc ad mechanism to avoid arguable Supreme Court did not “dis reaching the particular merits of a case. approve of’ this Court’s alternative hold ing “that special provided the two

And perhaps significantly, more applicant’s jury constitutionally with a suf already Court has addressed the merits of give ficient vehicle to mitigat effect to his Smith’s claim twice: once on direct appeal, Maj. 457, evidence.” See op. supra at LaRoyce Texas, 71, Lathair Smith v. No. Supreme believe the spoke Court (not 333 *10-11 (Tex.Crim.App.1994) des quite alia, clearly, holding, “just inter ignated publication), and also in our in Penny II ... findings of deliberate initial very resolution of this case. See Ex dangerousness ness and future ... Smith, had (declining S.W.3d at 416 little, if anything, mitigation to do with the impose procedural bar and addressing presented.” evidence claim); [Smith] See Smith v. merits of Maj. Smith’s see op. also 48, (“We 543 U.S. at supra S.Ct. 400.8 rejected at 462 & n. 10 Thus, there can be no reasonable conclu appeal] [Smith’s direct claim and held that sion that ... we were ordered to the trial address anew judge’s supplemental instruc whether there provided tion was error. See v. sufficient vehicle for the Johnson, fully evidence”); all 532 U.S. at 121 S.Ct. 1910 consider of that II) (“we I, (Penry Applicant’s Reply see made clear in (noting Brief at n.* that the State taken none of the mutually enough has issues is broad exclusive positions throughout provide regarding the case vehicle for the preservation). error mitigating Because our holding Penry’s effect to the court, higher abuse”); reversed a court mental retardation and childhood (Den- Johnson, which addressed the merits and found our Penry v. 215 F.3d example, 7. For indecency this court has become more elicited before trial court in awith case); State, willing apply procedural Reyna more bars to child complaints clearly pre- substantive (Tex.Crim.App.2005) (applying that were 176-77 a “less court, particularly preservation” served in the trial common where notion of error to in- case). decency the substantive claim had and the de- with a child merit fendant, accounts, by all unappealing was an See, recipient e.g., of relief. Keeter v. 8. Because the told us that (Tex.Crim.App.2005) (holding S.W.3d 756 Smith's had little or no issues, preserve Brady that Keeter did not error on a relation to the other the cases Maryland U.S. majority support contrary [373 cited (1963)] claim, though L.Ed.2d 215 proceeding. even ob- have no relevance to this See motion, jection, testimony Maj. op. written & 465-67 n. 34-37. apply our J., majority’s decision ‍‌​‌‌‌‌‌​​‌‌​​‌‌​‌​​‌​​‌​​‌​‌​​​‌​​​‌‌​​‌‌​‌​​​​​‍nis, evi dissenting) (Penry’s mitigating in the unpreserved error framework for and confined within dence was shackled issues). least two rea- charge wrong jury is the three scope the First, the manifesta- simply because may sons. initial conclusion not While our Eighth Amendment viola- Supreme tion Smith’s expressly been disavowed the the to include from failure Court, rejected. Re tion stemmed it was implicitly jury charge, in written v. Dre an instruction versed means reversed. Tennard Amendment not claim does tke, Eighth 159 that U.S. (2004). a lesser state-law claim therefore become L.Ed.2d 884 of under the less may dispose that we majority’s reasoning question the mere of review for stringent standard dictum, therefore, of error is obiter State, error. Beathard v. charge no it does precedential value. But v. (citing Chapman at 432 S.W.2d Califor- allowing the purpose serve the distinct 18, 21, nia, U.S. analysis into its harm majority to weave (1967) explaining that L.Ed.2d 705 spe- that conclusion the two disavowed rule of a state harmless-error application sufficiently cial submitted encom- only involves when it question is a state See passed Smith’s law); see or state procedure errors of state However, judi- Maj. supra at 472. our op. State, 236- also Jimenez v. S.W.3d power power cial does not include the (Tex.Crim.App.2000). Nor could advisory opinions ignore orders issue constitutional similarly, because the say, Ruiz, Supreme Ex Court.9 by an omission in the was created error (Tex.Crim.App.1988). 750 S.W.2d would be charge, proper review errors. for non-constitutional Proper Analysis Harm that reserved Tex.R.App. 44.2(b) (“any [non-consti- P. See majority its only overstep Not does the defect, error, or irregularity, vari- tutional] by deciding question bounds it is rights affect that does not substantial ance id., consider, it further authorized see Almanza, also disregarded.”); must be see non- applying commits error state-law (unpreserved 171-72 error 686 S.W.2d at analysis harm con constitutional federal jury charge egre- in the reviewed Specifically, stitutional error. because harm). gious majority suddenly now thinks that Smith Second, pre- the error was in the court— preserve error trial served, apply the harmless er- majority fact once we should despite the Tex.R.App. 44.2(a). P. See standard in rejected procedural argument default ror State, at 432 mer v. addressed his claim on the Beathard twice appellate procedure rule its, majority (noting our applies our burdensome the rule standard as the same “egregious analysis provides harm” state-law i.e., Chapman California, Eight Amendment claim. See enunciated Smith’s 468-64; constitutional error can be Maj. federal op. at Almanza before harmless, 157, 171 the court must able (Tex.Crim.App.1984). held jurors, the record for ethical Despite recognition, the dilemma party, juror, or the in- does not reflect conclusion that the nullification Court’s judge expressed this notion on record. confusing so struction here more to the however, This, assumed, does majority Maj. op. supra at 468. than the state court not occur in the mean confusion did explains possibility" it "indeed a while was likely happen. it was jury room where most instruction intensified the nullification declare a Similarly, belief that was harmless be- that Smith not suffer doubt). 44.2(a) yond a reasonable Rule egregious harm because of the well-pre- provides appellate that “If the record in a argument jury’s sented perception criminal case reveals constitutional error (whether aggravating, dou- subject that is review, to harmless error sword, ble-edged mitigating), is beside the court of must appeals reverse a judg- point because in absence of a vehi- punishment ment of conviction or unless proper mitigation question cle—a —the beyond the court determines a reasonable jury way express had no its reasoned doubt that the error did not contribute to response argument moral mitiga- to the the conviction or punishment.” Because tion and in mitigation. the evidence In the error here a violation was of the fed- words, jury persuad- other even if the eral constitution that not amount to a argument ed Jekyll” “Dr. and the defect, structural we must determine evidence, “Dr. Jekyll” Maj. see op. supra whether it beyond was harmless a rea- at give any could not consid- Jimenez, sonable doubt. See eration or it effect to because it had no majority 237. The errs in failing to do way to do so. this. Lastly, majority improperly places In finding no harm egregious under the the burden of proof Smith to show state-law standard Almanza for errors in Maj. supra harm. See op. (appli- the written charge, majority denies cant provide any persuasive argu- fails to Contrary analysis, relief. is of no ment that was unable to consider moment to conclude the two totality mitigating of his extensive evi- mitigat- embraced most Smith’s dence). As we Ovalle v. said evidence. The Court held (Tex.Crim.App.2000), nullification instruction “constitu- no tionally inadequate” allow that party evidence the burden prove should have charge be considered under the Smith error, harm from an as there way is no received. This is particularly true since prove “actual harm.” Burdens and re- the Supreme indicated that most of quirements of “actual facts” are proving mitigating was similar to evidence Pen- evidence, appropriate in the law ry’s mitigating evidence. Smith v. they meaning for the little “harmless- (“just 543 U.S. at S.Ct. 400 as in error decision.” II,” deliberateness and future dan- Conclusion gerousness had little to do with the miti- that, I proper would hold gating presented). In Smith oth- Tex.R.App. standard, harmless error P. words, er possible it is not 44.2(a), corpus we must order habeas re- issues adequately channeled Smith’s miti- lief. Based on quantity quality gating evidence to because the evidence, mitigating Smith’s to which the nullification itself instruction “intensified jury had no means to consider and give jurors,” the dilemma faced ethical effect, say I Eighth cannot as a off consequence, choked at the source beyond Amendment error was harmless any ability express reasoned moral response to Because reasonable doubt. the evidence. there was no distinction principled between respectfully dissent. Penry’s, Smith’s instruction and all of Smith’s was “shackled scope spe- confined” within the 47-48,

cial issues. See id. at 125 S.Ct. 400.

Case Details

Case Name: Ex Parte Smith

Court Name: Court of Criminal Appeals of Texas

Date Published: Mar 1, 2006

Citation: 185 S.W.3d 455

Docket Number: NO. AP-74228

Court Abbreviation: Tex. Crim. App.