Lackey v. State

m provides Rule 215.3 that sanction LACKEY, subject ap “shall be Appellant,

orders to review on Clarence Allen In peal judgment.” from the final other words, ap- “[discovery sanctions are not Texas, Appellee. The STATE of until court renders a pealable the district judgment.” Corp. City Bodnow final No. 69144. Hondo, (Tex.1986). A 721 S.W.2d Texas, Appeals Court of Criminal judgment generally considered En Banc. disposes par when it of all judgment final and all issues in a case. Hinde v. ties 14, 1989. June Hinde, (Tex.1985); May Rehearing Overruled Indep. East Dist. Al North School (Tex.1966). dridge, 400 S.W.2d case, judgment trial court’s dis

posed parties of all and all issues before it.

Therefore, right appeal Felderhoff’s order accrued when the trial court

sanction judgment. its

rendered waiver,

A nonsuit does not act as a adjudication precluding plaintiffs

bar complaining appeal monetary

from granted

sanctions before the nonsuit. If a plaintiffs preclude

nonsuit were

complaining appeal, plain of sanctions on

tiffs such as no Felderhoff would have litigation pro

choice but to continue the

cess, litigation appro whether further or not.

priate

Consequently, may while Felderhoff re subject

file his lawsuit to certain condi

tions, imposition monetary sanctions appealable. extent it To the conflicts holding disap our in this

prove Schein v. American Restaurant Inc.,

Group, (Tex.App.— denied).

Fort Worth writ Texas

Pursuant Rule 170 Rules Procedure, majority Appellate grants application for Felderhoff’s and, hearing error oral

writ of without judgment

argument, reverses the appeals remands the cause to

court of proceedings.

that court further Waldroup (court-appointed), L.

Richard Lubbock, appellant. Lubbock, Ware, Atty., Dist. S.

Travis Austin, Huttash, Atty., Robert State’s the State.

OPINION 14, 1989 June WHITE, Judge. capital mur- convicted of

Appellant was V.T.C.A., Penal 19.- Code Sec. der. See originated in 03(a)(2). This Lub- offense County. changed to Tom bock Venue County appellant’s first trial Green where The conviction was reversed place. took Lackey 638 S.W.2d 439 appeal. instant (Tex.Cr.App.1982). On remand the change of venue tried on a cause was made an County. After Midland spe- finding on both of the two affirmative Art. under 37.- cial issues submitted V.A.C.C.P., 071(b)(1) trial court (2), case of death. This imposed penalty appeal. us on direct before eight presents points of error Appellant them, Through he appeal. chal- sufficiency of the evidence to lenges the burglary prove that committed aggravated rape, commit intent to support sufficiency evidence to special issue num- an affirmative answer 37.071(b)(2), supra. A ber two. Article necessary. review of facts trial of cause is second The instant for this offense. reversed and remanded first conviction State, supra. Lackey v. this Court. opinion accu- summary The factual appel- proven facts rately reflects the H3 trial, ‘help ‘get me’ me’ and off rely on that and screams lant’s second will Kumph’s coming apartment. the faсts. review of Kumph was from her Diane abducted Johnson, roommate, Appellant’s Carrol apartment shortly before dawn Lubbock she had all testified that been work day, July that her on Later night of night the the murder. When body partially nude discovered be- was morning, home about she returned that Lubbock, dirt road outside of near side a home, a.m., appellant but 7:30 was Kumph appeared house. It appellant’s fresh all there was blood about raped. severely She had been had been return, appel- after her Shortly house. chest, neck, face, arms, Her beaten. said he was phoned lant Johnson and legs were covered with bruises. back He laundry at doing some a laundromat. This had been slashed. Her throat later at the house a half hour arrived her death. caused he had bedspread and sheets with neigh- policeman responded A who rug. Later He burned washed. throw report appeared testified it bor’s that day, as Johnson and were Kumph’s apart- door the front reports discussing radio of the murder kicked There open. ment had been were suspect, Kumph and the search for a struggle that a had indications violent ‘Baby, appellant admitted Johnson: apartment. in her occurred got you something tell I’ve —I’m expert fingerprint A that a testified looking they’re one for.’ ciga- fingerprint discovered on a latent incriminating evidence was More package found in the bed rette victim’s house appellant’s in a search seized belonged appellant. The brand was on truck. found and the white Leaves pack appel- as a found on the same brand very face were similar to leaves Kumph’s lant at the time of arrest. Blood truck, according expert found in the appellant’s matched found boots taken the truck testimony. Hair from type. Kumph’s analysis blood Secretor according Kumph’s, very similar was semen showed individual whose expert. Sweepings appel- from Kumph found a secretor and was was apartment revealed hair was lant’s type appel- had the same as did blood Kumph’s, according to very similar to expert lant. An testified that hairs expert testimony. Blood found more Kumph’s body found were similar appellant’s matсhed throughout home marks appellant’s and found on the door Kumph’s type, including that found blood Kumph’s apartment very similar were was on a soaked mattress. Blood blood print to the heel boot. porch on the exte- also found on person living apart- adjoining A appellant’s house. That blood rior of ment testified that was awakened Kumph’s Blood was type. matched morning, outside, early and saw went knife in the house. on a located found matching appellant’s de- physical a man pickup on the matched the Blood found driving away scription pickup. in a white type. Lackey, supra, 638 deceased’s slumped in the seat. A woman was over at 439-440. missing hubcap from The truck was error, points of Appellant, at the In his first and second right rear wheel. murder, disputes the evi- use of a white whether time of the missing hubcap proved trial that he committed pickup that was dence at apartment right Appellant Kumph’s rear burglary wheel. acquaintance having rape. specific aggravated commit identified intent to truck, driving in point appellant in this Lubbock states that been In the first morning 5:00 a.m. on the approximately for the trial court to overrule was error Kumph’s verdict, abduction. which was for instructed motion alleged failure to on the State’s adjoining based resident of Another aggravated prove intent to commit testified she was apartment point states the banging, rape. The second of error morning by loud awakened me”). Aside from (“Help me” and “Get off prove he com- insufficient to evidence was bedroom, there disarray in the victim’s to commit burglary with the intent mitted appeared to have that there rape. group will two was aggravated apartment, in the struggle a violent suffi- been together. If the evidence was points nothing stolen. though cient, in overrul- even court was correct the trial instructed appellant’s motion for an ing the of review on proper standard verdict. sufficiency of the evidence question of the Virginia: argued was set out Jackson attorney the State light must be viewed motion, upon the the evidence against relying evi- to determine in most favorable to verdict during the State’s case dence introduced of faсt could any rational trier court that whether recounted for the trial chief. He elements of the found the essential had been apartment door the victim’s beyond a reasonable doubt. Jack- the offense ajar, and that open kicked and left 99 S.Ct. Virginia, 443 U.S. appel- the son v. bootprint the door came from (1979); 2781, 2789, In re L.Ed.2d 560 attorney discussed boot. The State’s lant’s Winship, 397 U.S. ransacked apartment the had not been how (1970); Moreno dis- 25 L.Ed.2d purse had not been the victim’s and (Tex.Cr.App.1988). State, the 755 S.W.2d turbed, the motive for implying that must, review- after In the instant He stated entry was not to steal rob. weighted already ing the evidence as it was disarray, inwas that the victim’s bedroom verdict, any resolve whether jury’s struggle, by and that the if had been a there found could have be- trier of fact found on rational appellant’s fingerprints were the appellant doubt yond a reasonable in the vic- cigarette package left behind the apartment with into the victim’s pres- the broke He then talked about tim’s bed. rape. aggravated phosphate intent to commit in the acid spermatozoa ence victim, it was of and that test run on the rape in a case of to commit The intent also mentioned appellant’s type. He the facts of from the burglary may be inferred discovery foreign hairs found on the adduced and were the offense which victim, on her mouth and body of the one State, 610 trial. Prescott v. presented at area; pubic and other in her (Tex.Cr.App.1981); Ford S.W.2d by experts as identified hairs had been (Tex.Cr.App.1982); State, 632 S.W.2d 151 appellant’s hair. similar to (Tex. State, 699 S.W.2d 368 Williams 1985); and McGee v. App. appellant countered attorney for the [1st] The 1987). It is (Tex.App. stating by arguments [14th] of the State make this infer reasonable to especially rape did not occur showed the the evidence adduced at is no evidence ence when there if there had been apartment, in the victim’s Ortega inference. that a trial which rebuts suggestion made the rape. He (Tex.Cr.App.1982) on the ab- by relying rape did not occur Prescott, supra. region of the vic- sence of trauma to this responded vagina. The State tim’s case which were of the instant The facts telling court that by the trial statement last showed that by at trial proven the State vaginal trauma for did not have to be there into the victim’s savagely broke appellant rape. The trial court there to have been there, anything to steal apartment, declined appellant’s motion. overruled spite of her screams the victim seized her up and removed trial, protest, the victim beat other evidence There was residence, killed her there in his to his own attorney by the district recounted physical knife. The large blade motion, on with a reflected which argument in the vic- presence showed he commit- evidence when the intent of tied spermatozoa which was vagina of tim’s of the residents burglary. One ted status type and secretor apart- to the blood adjoining the victim’s apartment appellant were from the appellant. Hairs the vic- from the screams ment recalled vaginal mouth and in the victim’s found of the break-in at the time apartment tim’s

H5 from to ear across her physical implied This the knife wound ear region. neck, body victim’s bore evidence of appellant forced the victim to submit to beatings. during severe These facts with him trauma from sexual intercourse senseless, was not during reflect crime that episode. appellant, criminal prolonged trial, incident of stage but was also an bru- guilt did offer tality repeated violent assaults. rebut this. evidence to of- commission of instant After the We find the facts the instant fense, dumped body trier fact case that a rational could have property and made a victim on a farmer’s ap- beyond a found reasonable doubt attempt conceal hurried pellant requisite intent to commit offense, far to rush going even so aggravated rape he broke into the when laundry to clean clothes and sheets apartment. proper- victim’s trial court them of This behavior indicates blood. ly for in- appellant’s overruled motion appellant for his lack of remorse There structed verdict. was sufficient evi- attempt to de- It also shows an actions. dence of intent. Points of error of his and to stroy evidence actions evade are overruled. one two prosecution. point error, appellant In his sixth as- Appellant presented his to thеn case the sup- serts the evidence was insufficient to jury punishment. He called his first port finding an to affirmative issue testify. to She told mother to stand during penalty stage of his number two childhood, during jury appellant’s that Appellant argues trial. erred by physically he abused his father. was probability it when found there was a that his physically His father also abused moth- he commit would criminal acts of violence during appellant’s Appel- er childhood. continuing that constitute a to socie- threat explained appellant lant’s mother also that ty. during of dropped out school the tenth appellant Both the introduced State grade. trial, penalty stage evidence at the Modlin, Appellant also Dr. called Herbert though appellant testify. not chose to witness, expert to psychiatrist testi- proved appellant The State that first was expressed skepticism that a fy. Dr. Modlin 6, 1973, felony on September convicted of a for acts of violence could propensity future burglary when he was convicted of any explained predicted be case. He placed felony on probation. State also he the records of that reviewed appellant showed the that convict- was prior psychiatric and interviewed treatment January felony ed on of of- appellant separate on for one horn* two burglary fense with intent to commit occasions. rape from an incident at the habitation of Rita Featherston on 1974. His Ms. June that he was not able to Dr. Modlin stated previous felony probation on was revoked incompatibility between resolve 9, 1975, January burglary upon based ap- he type personality which found rape charge. Appel- with intent to commit crime. pellant and the actual facts lant sentenced to five was two concurrent could not explained appellant Modlin year Texas sentences to be served facts of the instant offense dur- recall the Department of Corrections. ing their Modlinattributed this interviews. appellant his was drunk to conclusion that also relied The State on facts during point blacking out to the appellant in crime itself. The the instant profes- episode. gave his entire Dr. Modlin victim, stranger to the who he case was a opinion likely it not sional that was he apparently chose at random when commit future acts vio- appellant would open apartment the door her kicked society. a threat lence that constitute pre-dawn July 1977. The hours rebuttal, Betty across began offense there and continued In the State recalled guilt stage testify. During Edge he town Lubbock to residence where trial, Edge ultimately In testified she had been with killed the victim. addition just sufficient to indicate a appellant until the hours before dawn before was appellant July by 31st. stated that growing propensity She for violent behavior they nightclub left a was intoxicated when appellant and that would constitute But, explained they at 2:00 a.m. she continuing ap- In society. threat to after drank a small amount alcohol that. placed probation pellant felony was appellant Edge last saw around 5:00 When In burglary. appellant was convicted a.m., not she said he was drunk. burglary rape, intent commit resolving sup- whether the evidence probation revoked. In the which ports jury’s affirmative answer burglarized the summer of 1977he home issue, review that second we must aggra- the intent to commit this victim with most light favorable to rape. raped He then and murdered vated If trier of fact could verdict. rational the victim. have found a reasonable doubt that Appellant attempted counter this evi- probably would commit criminal testimony dence with the of Dr. Modlin acts constitute a threat to that, professional opinion, in his not society, jury’s must verdict stand. probable commit crim- Moreno, Virginia, supra; Jackson only inal acts of violence. He was the supra. jury’s verdict should be re- during professional testify mental health only if find it to irrational or versed stage. The did offer penalty State unsupported by more than a “mere modi- Moreno, supra. expert opinion cum” to contradict Dr. Modlin. of evidence. However, the mere fact that Dr. Modlin begin considering the evidence expert testify does was the during guilt stage of the trial. admitted the discussion of this issue favor of close during stage first proven The facts the appellant. the properly jury pun were beforе the stage. .These facts can often ishment alone of jury The was the trier fact support find be sufficient affirmative and, such, jury the instant case the ings issues in the verdict credibility judge of the exclusive stage capital penalty murder trial. the of weight given their witnesses and the to be (Tex.Cr.App.1983), State, 771 Russell v. 665 S.W.2d State, testimony. Marroquin 746 v. denied, 1073, 104 t. 465 U.S. cer (Tex.Cr.App.1988). The 747 S.W.2d (1984). 1428, 79 L.Ed.2d 752 Carter S.Ct. of a accept reject part witness’ can State, (Tex.Cr.App.1986), v. 717 60 S.W.2d ‍​‌‌‌​‌​‌​‌‌‌​​​​​​​​​​​​​​‌‌‌​‌‌​‌​​‌​​​‌​‌​​‌‌‌‍testimony. Lafoon denied, 484 108 98 cert. U.S. S.Ct. (Tex.Cr.App.1976). 617 (1987);

L.Ed.2d Drew (Tex.Cr.App.1987). of Dr. testimony In the the instant go unchallenged. The State already reviewed the facts Modlin did not We have Appellant’s case. actions dur- appellant instant was not testimony admitted crime ing commission of this were prior the commission immediately drunk senseless, His actions savage and cruel. offense, Dr. appellant led of this following show a the murder the victim story, part to believe. As Modlin and an ab- lack of remorse for victim re- Dr. Modlin he could not appellant told regret his Those ac- sence of actions. facts of the crime. On cross-exami- call the only a desire to evade dis- tions indicate nation, following exchange occurred be- protect himself from conse- covery and Dr. attorney for the State and tween the his quences of actions. Modlin: stage, At State (State) surprise you to Q. Would it fel- proved appellant had been convicted of (the memory he had of it learn that is it true a bur- onies before. While crime) 3, 1977? August before on violence, a crime of glary necessarily is Yes, A. it would. prove facts and that the State did felonies, it in detail? Q. That he remembered the record appellant's prior

H7 in the conduct their A. hesitate to act Yeah.1 important personal af- more serious and during argument jury, Lastly, fairs. attorney ap- out pointed for the State Appellant Dr. pellant misled Modlin. told place in- trial refused to The court girlfriend, his “I Modlin that he told won- Instead, charge jury. struction its Appel- they looking if are for me?” der in- used a more common the trial court girlfriend appellant told lant’s testified that proof: struction the burden of evening that, “I’m her on the of murder In all criminal cases the burden they looking the one are for.” upon proof is the State. defendant verdict, apparent From their guilt presumed innocent until credibility testimony doubted the competent legal is established Modlin. The record indicates there was Dr. doubt; a reasonable justification a rational and sufficient reasonable doubt as to the you if have a that doubt. you acquit him and guilt, defendant’s will more record also reveals there was by your guilty.” “not say verdict sup- modicum than mere of evidence to authority provides us no Appellant port jury’s find verdict. We support requested instruction of fact could have found be- rational trier Instead, proof. burden of yond a reasonable doubt discusses view probably commit acts that consti- criminal guided narrowly trial must be dur murder society. tute a Point threat to stage, penalty citing of error six is “Woodson overruled. Carolina, 428 North [96 point three, appellant error com- (1976); 2978, 49 Lockett v. L.Ed.2d 944] plains request denial of his for a Ohio, 438 U.S. 98 S.Ct. special jury guilt stage instruction at the and, (1978); Eddings L.Ed.2d Okla appellant’s special requested his trial. The homa, proof: instruction concerned the burden of (1982).” Appellant then L.Ed.2d asserts “apply to corollary that a of this rule would guilt the trial on or innocence as well.” No recognizes The law three distinct bur- authority given support to this asser proof: dens of Also, explain appellant failed to how tion. by preponderance Proof a evi- the instruction, juxtaposed requested his which degree which is dence defined as a definition of the standard of “reasonable that, proof whole, when taken as a shows proof, with other standards doubt” two sought proved a more fact to be goal providing his ex accomplish would probable not. than Lastly, ap guidance jury. tra to by convincing Proof clear evi- justify support the defi pellant does not degree dence which is as that defined “beyond reasonable doubt” nition proof produce in jury’s which will the in his requested he included instruc which amind firm belief as to the truth of the tion. allegation sought to be established. This standard, constitutionally falling required is an intermediate be- burden of The preponderance of the the proof tween the in criminal cases is that State stan- standard and the reasonable doubt аll elements the offense be- establish dard. yond a Crocker v. reasonable doubt. (Tex.Cr.App.1978) State, beyond

Proof a reasonable doubt (on rehearing); and Hankins degree proof which defined (Tex.Cr.App.1983). In in- in the the S.W.2d that will erase mind case, instruction on person the trial court’s kind of doubt that would make a stant permit the fact that to The trial court ruled that 1. The trial court would not the State the crime four go any specific appellant's the events of into details of the recalled police August days was relevant. on afterwards oral confession proof complied jurors, option against re- recommend this to the burden with quirement. by instruction penalty trial court’s of death the answer that erroneous. you was not issue make to the on this matter. attempting, by If his re- appellant was law, you preclud- cannot be instruction, argue Under our to the trial quested considering as a specifically defined ed from court should have doubt”, reject aspect char- term “reasonable factor of a Defendant’s legislature defined argument. background has not acter or record doubt”. Because term “reasonable a sen- proffers Defendant as a basis for statute, by term has not been defined tence less than death. accept- in its term is to be understood usual Defendant, In this CLAR- language ance in common and need LACKEY, proffered has ENCE ALLEN Art. charge jury.2 defined in the to miti- following matters as evidence of 3.01, demon- Appellant has not Y.A.C.C.P. (1) gating facts or circumstances: Volun- “reason- strated a need define term time of of- tary intoxication he re- able doubt”. The instruction which fense, (2) relationship a turbulent quested probably confuse education, (4) father, (3) his lack of help its more than it would deliberations youthful age of Defendant. jury. Point of three is overruled. error You to consider such are instructed four, appellant states point of error you weight desire matters for whatever rejected the trial court erred when them, give if cir- any, trial, requested charge mitigation. At After case. present cumstances fail- appellant objected to the trial court’s them, you an- you have considered will charge ure include its As on this matter. Speciаl swer Issue “special charge” which he sub- requested already you, I have instructed the burden re- writing the court. That

mitted phase proof in this of the trial still quested charge reads as follows: and never shifts upon rests during this You are instructed Issue, in- Special the Defendant. Each trial, phase you consider must cluding Special Issue mitigating circumstances whatever circumstances, proved by the must be show, any, if has able to Defendant been beyond a reasonable doubt before State issue to answer order Therefore, it “Yes.” you can answer you on that will be submitted which Special Issue you answer this before matter. “Yes”, jurors convinced all must be recog- are instructed that the law You reasonable doubt the evidence facts or existence of certain nizes the issue should be that the answer such which, though justify- circumstances “Yes.” offense, ing excusing may proper- the or Appellant, part of the written instruc- determining in whether ly considered be tion, requested that a third issue be cir- sentence. Such impose death charge: included in the cumstances, may mercy, and fairness following in mind these Having extenuating or by you as be considered instructions, you now answer will reducing culpability of degree moral following special issue: Defendant, ap- may so that it be evidence, beyond youDo find from the reduce, diminish, lessen or propriate doubt, mitigating imposed, a reasonable because punishment to be proffered by the Defen- circumstances mitigating circumstances. Such of such dant, adequate an basis given you, fail to constitute mitigating circumstances (Tex.Cr.App.1977), King ruling S.W.2d 105 in deal trial. has the same 2. This Court made denied, S.Ct. ing requests to define for an instruction t. cer society" “continuing (1978). point threat error terms See 55 L.Ed.2d 793 instruc act of “criminal violence" eight. stage capital penalty of a murder tions at the charge. Relying reducing punishment the De- on Lockett court’s for 2954, 57 punish- Ohio, S.Ct. fendant from to a lesser (1978), ment? states that L.Ed.2d sentencing preclude statute could not from the evi- you unanimously If find He mitigating evidence. consideration doubt, dence, beyond a reasonable carefully the need for then asserts proffered circumstances instructions for consideration detailed by the Dеfendant fail to constitute stage repeatedly penalty evidence has been adequate reducing punish- basis emanating middle to a in cases from the ment of the Defendant from death voiced Georgia.3 you punishment, answer this northern federal districts of lesser will However, question “Yes.” Circuit decisions are these Court controlling appellate courts of However, (10) you if ten more of this State. agree exists as reasonable doubt circumstances whether implies argument If the this to consti- proffered by the Defendant fail Art. 37.071 unconstitutional because reducing the adequate tute an basis in- provide a detailed carefully it does not from death Defendant evi- struction on consideration punishment, you will answer to a lesser trial, one such as the he offered dence question “No.” instruc- the absence of such an and because _ ANSWER: mitigat- precludes the consideration tion you If have answered the above issue evidence, argument note that this “No,” and the vote is less than unani- appellant. adversely to has been resolved mous, jurors only, that event Recently, Supreme Court stated: voting must sign “No” their names be- practice to It is the established Texas low: of “whatever permit consideration overruling objections, After the defendant mitigating circumstances gave charge jury. its the trial court capital sen might able to show” charge, In that the trial court instructed re practice tencing which this —a it at the evidence before in Lockett v. upon lied when concluded stage penalty as follows: 2954, 57 Ohio, U.S. 586 [98 further that in de- You are instructed (1978), that our decision L.Ed.2d 973] termining Issues Special each these require of our case did not reversal may take into all of the you consideration Special Is approval the Texas earlier you submitted to in the full trial State, 428 U.S. in Jurek sue scheme [v. is, case, that the evidence of this all of 49 L.Ed.2d 929 you part first of this submitted Ohio, supra, (1976)]. Lockett v. [438 you upon to case wherein called were at 606-607 S.Ct. at 2965-2966] [98 U.S.] guilt innocence of determine Burger, C.J.). In the decade (opinion on defendant, evidence, any, if and all of the followed, courts has the Texas which you part in the second admitted before expressed adherence resolute you upon to wherein called the trial were cap Lockett, declaring that under Texas’ Special Issues determine answers sentencing procedures the defense ital you. to hereby submitted jury “the to consider free to ask ... gave jury special the The trial court the mitigating circum evidence of whatever (2), 37.071(b)(1) in Art. set out issues bring before it. defense can stances the

V.A.C.C.P. 933, State, 947 Quinones v. 592 S.W.2d Ly v. (Tex.Cr.App.1980). in- Franklin argues requested his Appellant 101 108 S.Ct. naugh, issue should struction (1988). trial 155 jury part the L.Ed.2d given to been (11th Zant, Cir.1981) 1978); Zant, (5th v. 704 F.2d 1487 Westbrook Spivey 661 464 v. F.2d 3. (11th Zant, Cir.1983); denied, 1982); Finney v. 709 F.2d 643 (reh. en banc Chenault and reh. Cir.1983). (5th Cir. Stynchcombe, 581 448 F.2d v. 120 which could and should be con-

Contrary appellant’s argument, of evidence mitigation precisely be- be relevant Texas statute constitutional sidered Appellant allow for consideration of cause it does issue number two.” Ohio, mitigating then, again, Lockett v. su- evidence. relies pra, prohibition Simply put, previously recog when asserts we have mitigating circum- Special consideration nized that the Texas Issues ade quately Appellant ar- “allow the consider stances is unconstitutional. 37.071, V.A.C.C.P., mitigating aspects prevents of the crime and the gues that Art. unique perpetrator, considering mitigating capital jury characteristics sufficiently provide and, therefore, and therefore evidence, violates v. jury discretion.” See Amendments Eighth and Fourteenth Lowenfield Phelps, United States Constitution. (1988). 555, 98 L.Ed.2d 568 We adhere the unconstitu Appellant explains Ly conclusion. Franklin v. prior to this from re tionality of the statute is evident White, J.). naugh, supra (opinion of suppression peated instances where point Appellant argues this also upheld. mitigating has been some evidence capricious application error that the (Tex.Cr. v. Hovila In 562 S.W.2d instant case was unconstitu- statute up App.1978), states this Appellant tional. states that this Court of evidence because held the exclusion require mitigating an instruction on should Special Ap relevant to the Issues. was not punish- like his death is a evidence because State, Duffy pellant also cites ment different from all other sanctions. Demou (Tex.Cr.App.1978); S.W.2d requires This difference additional (Tex.Cr. chette v. if our stat- more detailed instruction. Even State, App.1979); and Russell v. of miti- preclude ute consideration does being (Tex.Cr.App.1980) as sim evidence, in- according appellant, gating ilar to Hovila. they He claims demon in- guidance sufficient mitigating exclusion of some strate that imposition of the stant case renders the constitutes a from consideration penalty unconstitutional. Fourteenth violation disagree assertion Amendments. applied by capriciously law appellant does not Initially, we note that presented Appellant freely the trial court. show, record argue, nor does the stage penalty he had to offer evidence which The trial court’s instruction of the trial. case In the instant at trial was excluded. guidance for jury provided sufficient suppression of evi- issue of conscientiously consider evi- them to stage penalty of a dence issues in the context of dence is not before Court. murder trial error four given them at trial.4 Point of is overruled. argument disagree with We also from consider- prevents Art. 37.071 states point error five mitigation brought forward ing evidence prohibits the statute penalty Texas death Ohio, appellant at trial. Lockett by the of miti- consideration type of individualized 606-607; and Franklin supra, S.Ct. at Eighth and required gating factors such, it does not supra. As to the United Amendments Fourteenth Amend- Eighth and Fourteenth violate appears This to be States Constitution. Appellant’s ments Constitution. repeat point of error of a somewhat point of error overruled. great fifth that “a deal Appellant four. states unconstitutionally jury’s dis- Lynaugh limited the opinion wise reached in Franklin here, reject Eighth petitioner’s similar cretion conclusion: challenge sentence. jury to his death Amendment believe that the we do not Because White, Special pre- (opinion supra Issues v. or the Texas Franklin J.). instructions any jury mit- relevant consideration cluded igating case, or this other- in circumstances predict. error, dangerousness is difficult ture point of In his seventh (Tex.Cr. State, penalty stat- 683 S.W.2d the Texas death Smith v. argues that 1985). imposition (reh. capricious for a denied provides App.1984) ute probability penalty the death because in his nothing new Appellant advances dangerousness impossible future justify overturn- of error that would point Appellant states this violates predict. cites no Appellant precedents. these Fourteenth Amendments Eighth and of error. support point authority to States Constitution. United seven is overruled. Point of error number brief, argu- appellant explains In his error, appellant eighth point of In his Modlin, testi- refers to Dr. who ment. He 37.071(b)(2) terms in Art. claims that the nearly impossi- it would be fied at trial that vague. Appellant unconstitutionally are commit predict if an individual would ble him to death under to sentence states that Appellant also future crimes of violence. unusual constitutes a cruel and this statute experts opinions relies on the Eighth proscribed by the punishment as psychology who psychiatry fields of of the United Amendments and Fourteenth argues Appellant Modlin. agree with Dr. directly Appellant States Constitution. training jury laymen, without that a vagueness of the follow- complains of the compe- experts, are not experience of “criminal “probability”; ing four terms: of future this determination tent to make threat”; violence”; “continuing acts of Therefore, dangerousness. are de- of these terms “society”. None penalty of the death imposition states the Code of in Penal Code or the fined upon this determination constitutes based Criminal Procedure. penalty capricious “infliction” of the death attempts to establish that Appellant and is unconstitutional under the confusing jurors Amendments to the United and Fourteenth these terms are both past apply by relying States Constitution. and difficult expressed their people have cases where previously reject Supreme Court has dealing these terms.5 in problems Texas, argument v. ed this Jurek attempt However, appellant does not 49 L.Ed.2d instant case ex- jury show that the (1976), four about pressed any confusion course, is, easy predict It not cite Appellant also does terms. that such a future behavior. The fact point of error. authority support of this difficult, however, does determination is In- not mean that it cannot be made. Texas, Supreme supra, In Jurek deed, con- prediction of future criminal argument that Art. 37. rejected many duct is an essential element V.A.C.C.P., 071(b)(2), unconstitutional throughout our rendered the decisions State, 553 S.W.2d ly vague. King In system_ What is es- justice criminal held that a this Court (Tex.Cr.App.1977), it all sential is that the have before specifically required to was not trial court possible relevant information about acts of vio “criminal “probability”, define fate it must defendant whose individual “continuing society” lence”, threat to clearly assures Texas law determine. stage penalty charge at the its will be adduced. that all such evidence These terms are capital murder trial. Jurek, at 2957-2958. supra, 96 S.Ct. As a re by statute. specifically defined sult, and understood they are to be taken Jurek, Court, has also relying on This in common lan 37.071, acceptation “their usual Art. argument rejected the 107; 553 S.W.2d at guage.” King, supra, V.A.C.C.P., fu because is unconstitutional (Tex.Cr. (Tex.Cr.App.1976),a sent out a S.W.2d 655 Shippy 556 S.W.2d In requesting of "criminal App.1977), psychiatrist question witness was unable a definition "probability". specifically State, In define Muniz acts of violence”. (Tex.Cr.App.1978), the by appellant held cited of these cases None requesting question a definition out a sent unconstitutionally vague. that Art. 37.071 Livingston v. "probability". 122 3.01, questions, or that had rel- special This decision was verdict

Art. V.A.C.C.P. State, culpabili- moral Sanne approval in 609 evance to the defendant’s cited with 762, scope (Tex.Cr.App.1980), ty at verdict S.W.2d 775 State, (Tex.Cr. DeLuna v. questions, 711 44 instructions would S.W.2d provided vehicle App.1986). Appellant’s eighth point er with no expressing its ‘reasoned moral re- ror is overruled. If sponse’ to that evidence. this were judgment The is affirmed. of conviction case, then would have to de- such a give jury’s inability to cide whether the J., DUNCAN, participating. not effect to that evidence amounted my Eighth Amendment violation. CLINTON, Judge, dissenting. view, however, this is not such a case.” support find majority opinion The could 2333, 188, at 101 487 U.S. at 108 S.Ct. theory previ on one another review (O’Connor,J., Concurring). L.Ed.2d at 173. majority ously espoused by some other Burns v. See, e.g., 761 Court. Manifestly, appellant in this cause to the (Tex.Cr.App.1988). S.W.2d 353 But mitigation, ‍​‌‌‌​‌​‌​‌‌‌​​​​​​​​​​​​​​‌‌‌​‌‌​‌​​‌​​​‌​‌​​‌‌‌‍at presented Op. pp. evidence in explica majority extent this relies on the 120-121, particular have no which would 307, Virginia, Jackson v. tion of 443 U.S. issues, except inas relevance to 2781, (1979),found 99 S.Ct. 61 L.Ed.2d 560 paradoxical tend may as it have the much (Tex. in Moreno v. 755 S.W.2d 866 undermine, a ency support, rather than dissent, I Cr.App.1988), must reasons dangerousness. finding See of future there, my concurring opinion in stated 118, State, (Tex. Stewart v. 125 State, 767 dissent Nevarez in in (Clinton, J., dissenting). Cr.App.1984) (Tex.Cr.App.1989). Thus, Penry Lynaugh, 832 F.2d 915 like granted, (CA5 1987), cert. however, majori disturbing, is the More (1988), ap 101 L.Ed.2d 930 108 S.Ct. Franklin ty’s upon reliance majority of the is pellant’s a case a Su 101 L.Ed.2d U.S. 108 S.Ct. agree preme apparently would (1988), in its resolution of presents the asserted squarely points majority four and five. error simply It cannot be Amendment issue. language dispositive seems to find said, concurring dissent in view Franklin, supra, plurality opinion in Franklin, supra, appel in ing opinions majority justices by was not ratified argument “has been resolved ad lant’s Supreme States Court.* What United versely by majority him a of the United to” “majority” found in Franklin was that *, ante. n. Supreme Court. See States proffered at the the evidence impact phase in that case had no appel majority notes that it not nega support tendency from its aside mitigating evidence lant’s contention that special issue. to the second tive answer facts In its recitation was excluded. majority excerpts portion “If, however, petitioner had introduced jury to charge authorized the back- court’s which about his evidence, guilt at consider all both ground or the circumstances or character trial, answering punishment stages of that was relevant of the crime essence, negative por relevant to find reproduces that evidence *Todays majority opinion two Franklin, supra, “mitigation" plurality opinion ings issues is all the tions of the Op. p. holding. at 119. The support of its constitutionally required. This is a view at least nature, merely expository excerpt first expressly rejected, of the Court three members Franklin, supra, explain 199-200, 487 U.S. at denied petitioner opportunity not claim had been did J., (Stevens, dissenting, joined by L.Ed.2d at present Marshall, JJ.), and about which Brennan and Writing plurality, Justice White for the trial. had to the asserted expressed grave "doubts[J” two others respect yet begun analysis even 184-186, L.Ed.2d at 172 S.Ct. at at (O’Connor, jury charge. deficiency in the Blackmun, J., concurring, joined part excerpt the latter is drawn from The second of the J.). opined, plurality opinion, it is wherein

123 implication the inflict- special seems that would authorize the issues. case State premature a death? that such instruction suffices to to be an it in that endeavor inform supreme of this Contrary to most courts proffered may consider evi Nation, however, this Court does not make mitigation. in such deficiency in dence re- comparison proportionality a either me, it charge, it seems is that a obvious sentences, not does of death also view may regard it does not inform a how independent its own make an review which, may though it in a broad If the issue death sentence. particular blameworthiness,” tend to “moderate sense sufficiency the evidence to sustain State, supra, v. Stewart S.W.2d special jury’s affirmative answer to “logical no nevertheless has relevance” presented number 2 is to this Court issue 37.071(b). Burns in the issues Article See defendant, re- then this will by the Court State, v. supra, A n. 5. same; otherwise, although do it can view majority Supreme may yet of the Court so, and, so, required it is not to do accord- constitutionally can lim hold that State date, ing my has never done research “mitigation” that evidence which State, Banda past. in so See logic negate does in tend to one of (Tex.Cr.App.1989), fn. 2. S.W.2d expect special issues. I do not such issue is Thus, raised, this Court when the holding; not it. certainly presume I case-by-case the issue on a basis. resolves However, re cases which this Court has short, regard today’s opinion In I evidence, as insufficiency for versed feint, anticipation as a in Court issue, used to the second should be Supreme presently Court deliver the will resolving the See guidance issue. But, mixing punch. at the knockout risk of State, (Tex.Cr. Kunkle 771 S.W.2d 435 think sports metaphors, I do instance, appellant App.1986). In this appeal tag should team be treated issue, majority opinion presents the but the Appellant is entitled full re- event. to a rejects his contention that of his in this Be- view conviction Court. jury’s affirma insufficient sustain it, has I respectfully cause he not received In second issue. tive answer dissent. has in several light of what this Court done cases, setting jury’s af aside the other TEAGUE, Judge, dissenting. issue number firmative answer respectfully I dissent to this ma- Court’s disagree. I

jority opinion’s overruling point sixth Burns recently in Just presented error that on behalf of Clar- (Tex.Cr.App.1988), Court S.W.2d Lackey, appellant, Allen henceforth ence judgment con court’s reversed trial support that the evidence is insufficient to and sentence of because viction finding jury’s there affirmative “[that] judge to admit into evidence trial refused probability is a that the defendant would deemed to be certain evidence that was criminal acts of violence that would commit This ob “mitigating” evidence. society.” threat of constitute following: served 37.071(b)(2), Art. V.A.C.C.P. See has past years this Court Over the dozen sufficient, appellate re standard evidence is articulated its ruling sup sufficiency of evidence to opinion expla- view majority owe does special is County port an affirmative answer to of Lubbock nation to citizens ways. Huff- two a number ruled that Jim David sue why this Court County, consistently we view the evidence man, said a former resident of Lubbock light jury’s most favorable to not die now rules that Clarence should but Starvaggi answer, e.g., Lackey, former resident another Allen (foot (Tex.Cr.App.1979) die, giv- County, especially should Lubbock deleted), clearly explicating are without facts of this cause note the fact that the en view of the evidence would found Huffman’s what than those weaker light con jury’s most favorable dence ... would lead rational trier weigh any prof ...'). finding stitutional function to to make Thus has fact the mitigation. In other fered evidence appeal its the Court narrowed focus on instances, seemingly more mindful of trier of could to ‘whether a rational facts function, evi that we have held that the have found the elements of Art. 37.- justi dence such that ‘the was 071(b)(2), supra, beyond a reasonable finding aggravating fied that State, 58, v. Keeton doubt[,]’ 724 S.W.2d outweighed factors opining (Tex.Cr.App.1987), 61 this State, Duffy e.g., v. factors[,]’ 567 appellate adequately standard will serve 197, De (Tex.Cr.App.1978); S.W.2d 209 to ‘make certain that the death sentence State, 488, v. mouchette 591 492 S.W.2d ‘wantonly freakishly’ imposed[.]’ suggesting (Tex.Cr.App.1979); ‘a thus Id., (footnote deleted). at 63. See also had been more substance review’ than State, v. 382, Beltran 728 389-90 S.W.2d Dix, Ap conducted other cases. See State, v. Cockrum (Tex.Cr.App.1987); pellate to Impose Review of the Decision 1988). (Tex.Cr.App., 758 S.W.2d 577 Death, 97, (1979). 151 As if 68 Geo.L.J. (Pages opinion.) 355-56 of notion, however, disown opinion, In 4 of the the follow- footnote on one occasion com Court has least ing was also stated: pronouncements, finding bined these two Thus, also, pre- have we abandoned evidence, light that ‘the viewed in a most balancing mitigating tense of this Court verdict, is sufficient for favorable aggravating evidence so to deter- mitigat found to have mine, verdict, independently jury's of the by appellant factors introduced did ‘appropriateness’ ‘justness’ im- outweigh aggravating factors given position of the death sentence in a probability appel and that there is a 150-51_ Dix, supra at case. See commit lant would acts violence that would constitute threat Bums, general the Court used the State, ” v. Green society.’ S.W.2d Virginia “Jackson standard of review (footnote 271, (Tex.Cr.App.1984) 289-90 suffi- and concluded that the evidence was deleted). aban Recent decisions have affirmative an- jury’s cient sustain altogether inquiry doned whether the issue swer to number finding justify jury evidence would not so sure what to make personally I am outweighed mitigat aggravating factors above, given of the the fact that out Instead, begun ing. the Court has Bums, joined judges four this Court Virgi apply an unadulterated Jackson v. down on supra, opinion, which was handed nia, 19, 1988, and the fact that five October (1979), standard, beginning L.Ed.2d 560 recently judges just joined of this all State, Fierro v. 706 S.W.2d State, of Lane v. opinion 743 S.W.2d (Tex.Cr.App.1986). typical A articulation majori- (Tex.Cr.App.1987),in which the in Harris v. appears standard cause, ty rejecting opinion in that State, (Tex.Cr. at 225-26 738 S.W.2d the evidence defendant’s contention that App.1986): jury’s af- was insufficient sustain facts, we we must ‘When view is- finding to the second firmative light the evidence most evaluate sue, following, implicitly albeit stated determine to the verdict and favorable “Jackson general giving lip service to the could any rational trier of fact whether ” standard, see footnote Virginia finding beyond a rea- have made the page 629: sonable doubt.’ on both sides balanced the evidence State, See also Alexander considering sufficiency question, (‘... apply- (Tex.Cr.App.1987). stages of the trial. test....’); evidence at both trier of fact’ ing the ‘rational (Tex.Cr. Fierro v. 706 S.W.2d 310 Livingston (‘... App.1986). evi- (Tex.Cr.App.1987) whether the basis, issue, but de- decided on a case case appellant’s side

On shooting pending on which test the author was accidental testified pull trigger’ opinion decides to “cheat as a of the ‘hair result gov- the test that eye-witnesses sheets” will determine firearm. The State’s dis- erns issue in that cause? puted appellant’s his actions in version firearm shooting the victim. State’s Judge use This White has decided to time weapon expert proved “The following jury’s verdict test: too stable to be considered as far only if find it reversed to be should be having trigger.’ ‘hair a more a unsupported by or than irrational case, the side of the there was On State’s (Page of ‘mere evidence.” 116 modicum’ of to testimony eye-witnesses of the the the But, deciding it comes to opinion.) when addition, the shooting. In there was tes sufficiency the evidence as to the the timony appellant’s the cellmate. The finding jury’s on the second affirmative reported statements made cellmate the issue, mean? If this special what does this Considering jail. the appellant in all nothing, much more means more than how evidence, the it reached the level of enough? nothing is than sufficiency in which was described opinion “We majority concludes: (Tex. State, 315 v. 674 S.W.2d Williams could find trier fact that rational State, Cr.App.1984), 540 and Smith v. appellant found a reasonable doubt (footnote (Tex.Cr.App.1976) S.W.2d 693 criminal acts that probably would commit deleted). We overrule the fif continuing society.” to constitute a threat (630). ty-first point error. (Page Apparently, what opinion). 116 me, is puzzling, What is at least to the that the evidence majority the found was White, Judge fact that who authors this evidence, any and that was more than no majority opinion, also authored the Lane have also an- trier of fact could rational opin- majority opinion, but nowhere in this in the af- swered the second issue balancing ion does he mention the test that unable, however, say I to am firmative. consistent, to he used in Lane. If one is be carefully trier fact any that if rational to shouldn’t one continue to subscribe to evidence that went considered same test? appel- probability that whether there is in criminal jurisdictions lant the future commit Contrary many to whose would him in would cause to be require statutes to find acts of violence that continuing society, threat would affirmative at least one of several enumer- see, in circumstances, special issue the affirmative. aggravating ated answer the example, Phelps, v. U.S. Lowenfield majority opinion agree I with the (1988), L.Ed.2d But isn’t that facts this cause are bad. neighboring concerned our sister which capital every single murder case? true of statute, capital State Louisiana’s murder (Tex.Cr. State, Roney In permit use jurors Texas not does clear, App.1982), this made it didn’t mitigating circum- aggravating versus the it, facts of this “To hold that the test; it uses issues stances instead alone, offense, standing support would deciding the issue whether the defendant verdict, virtually such a would mean 37.071, or See Art. should live die. robbery every course of a murder [or Also see Fearance V.A.C.C.P. underlying designated some other offense] (Teague, (Tex.Cr.App.1988) S.W.2d 486 penalty. Such would warrant J., dissenting opinion.) destroy purpose of would construction stage murder

However, punishment out in the Judge pointed Clinton cases, provide a reasonable and Bums, always use the which this Court does the death decision on whether judging sufficiency of the controlled same test guard imposed, and penalty should be issue num- evidence as relates arbitrary capricious imposi Court, however, against reached its this ber Has 934; State, 522 Ju tion. only is issue Jurek point where Texas, present reputation 49 the any rek trial “bad” testi- 603). (Page mony or Nor did L.Ed.2d 929 evidence. the State [1976].” present any psychiatric psycho- “bad” Thus, Roney, under it was incumbent logical testimony evidence. upon addition to facts of case, present additional To counter what the State did introduce trial, sustaining punishment stage would warrant this Court at the on the upon appellant a probability State’s wishes inflict issue of whether there was So, premature death. commit criminal acts besides facts present what else did the State of violence the future that would consti- punishment appel- stage society, of the trial? tute a threat to testify; lant had mother had a United instance, stage testify; had a States Probation Officer trial, the State did not introduce high teacher, taught also school who prior criminal convictions that County, Attorney of then District Lubbock presumptively sustained were vio Modlin, testify; a and Dr. Herbert did, however, lent crimes. It introduce sev distinguished psychiatrist and known well prior burglary appel eral convictions that world who is on staff of the renowned However, lant had sustained. without Kansas, Menninger Topeka, Clinic in testi- more, burglary these convictions are not fy, testimony was neither rebutted whose prima facie crimes of violence. See Tew v. by nor I find refuted the State. Because State, (Tex.Cr.App. 551 S.W.2d 378 testimony, probation mother’s that the State, 1977); 617 Powell v. 538 S.W.2d and the school teach- testimony, officer’s State, (Tex.Cr.App.1976). Cf. Mendoza v. testimony er’s amount to little more than (Tex.Cr.App.1970); 460 145 S.W.2d Waffer testimony, kill him” I not type “don’t will State, (Tex.Cr.App.1970); v. 460 S.W.2d 147 testimony, but will Dr. discuss their detail State, (Tex.Cr. v. S.W.2d 840 Wisdom 708 testimony. Modlin’s App.1986). course, Of a violent act occurs depth study, If in through both and the act Dr. Modlin did an intent itself. burgla through personal and one is convicted a crime such as interviews the obtain- rape, psychological ry psychiatric intent commit he has records with the to and technically on which appellant, committed a violent crime. that existed are volumi- conviction, alone, nous, appellant whether standing only repre in order decide might criminal acts of sents that he had the intent commit a the future commit crime, him to that cause be a con- represent, violent but does violence would alone, society. he Dr. Modlin con- standing tinuing the fact that committed threat State, appellant com- crime. cluded that the crimes that a violent See Hamilton v. night com- (Tex.Cr.App.1984), question 120 on the were 676 and mitted S.W.2d State, light (Tex.Cr. pletely out of character v. 646 S.W.2d Schutz observes, make-up. “It doesn’t App.1983). carefully psychological If one see of his any Dr. Modlinfurther page majority opinion, some sort make sense all.” 116 of appellant paranoid, was not made somehow concluded that of effort is make psychotic, or dis- burglary crimes vio to be clever prior convictions unable facts, problems appel- showing any facts lence of this semble had, drinking, burglarized as were curable appellant lant such cause show deceased, ones. and thereafter treatable residence Judge raped murdered her. Come on punishment stage purpose If that,

White, do than can’t you can better provide is to murder case you? and controlled decision reasonable should be forced burglary convic- whether a defendant prior Other than death, guard undergo premature and to tions, present any did not other the State arbitrary imposi- against capricious its go spe- to the second evidence that would tion, then Roney, this Court held pause emphasize I cial issue. record, in this out- punishment stage of what evidence there not at the State did itself, also demonstrated remorsefulness side of the facts of the crime He rational, victim, fact to did to the deceased. warrant trier of what proba- conclude that there is a reasonable compares facts of this cause If one bility might future presented at the and the evidence that was of violence that would commit criminal acts stage the trial those continuing him to cause become a threat has reversed for cases which this Court society? “probability” on the insufficient evidence Modlin, witness, expert Dr. true see, who example, question, v. Huffman psychiatrists not like some this Court State, (Tex.Cr.App.1988), 746 S.W.2d profess they is familiar can with who County case which this Court Lubbock at the of a tell stand end football field and insufficient to held that evidence was defendant, standing who whether jury’s to the second sustain answer field, will in the other end of football issue, guilt which had facts both criminal the future commit acts of violence bad, if not worse punishment just and that he become a threat will cause; Roney, those found in this than society, study depth testified after an in (Tex.Cr. State, 618 S.W.2d Wallace on the issue that what did on State, App.1981); 600 S.W.2d Brasfield character, question night in was out of his State, (Tex.Cr.App.1980); Warren v. appellant probably and that committed (Tex.Cr.App.1978); Garcia those acts he had consumed a because (Tex.Cr.App.1982); large spirits. quantity of the Dr. Modlin (Tex.Cr. 724 S.W.2d 58 Keeton appellant paranoid also testified that is not App.1987); and Beltran psychotic; any drinking problem that (Tex.Cr.App.1987), S.W.2d 382 as well might curable; he that that have was and present in for those cases which our and expert in opinion appellant in his would not death commuted sentences mer Governors the future commit acts criminal violence I he will imprisonment, life believe that might that him to continu- cause become a me this Court’s decision agree with burglary society, threat to and today jury’s to sustain the affirmative an appellant murder and committed were issue is to the second neither swer acts, spur-of-the-moment, spontaneous nor a one. logical rational planned were not acts of vio- calculated opinion’s majority at- I find that lence. There is no in record from Mod- tempts selectively pluck Dr. approximately hours two testimony might facially appear lin’s what ap- period consumed the time which damaging is an to be effort with- pellant he committed offense for which meaning, unless one cares overlook out appellant has been convicted committed testimony. totality of Dr. Modlin’s any ap- From wrongs. unrelated criminal opin- majority is true as to same what pellant’s records we learn that al- school girlfriend’s tes- plucks ion student, good though very he not a he timony. grades good in citizen- nevertheless made County Perhaps the citizens Lubbock encompasses adhering rules ship, which given the of this why, understand facts will regulations. are informed also Huffman, this Court cause and facts of attending from this record that while Huffman, of its that Jim David one decided appellant any not have school did behavior- live, residents, today should but former also problems. al or attitude The record Lackey, Allen anoth- decides that Clarence might be appellant indicates that what resident, facts no than former on worse er described as an unenviable childhood. best must Huffman, suffer those found appellant The record reflects that when one, I, don’t. death. premature only 23 offense he committed the given fact that on Perhaps “Studies sufficiently age for age, early years are Furthermore, prediction of violence consistent: con- rehabilitation. often demonstrating wrong are at least twice as thus clinicians girlfriend, to his fessed Ziskin, correct,” Faust they are repenting conscience. an awakened and Expert Psychology Dissenting), join disposi “The I Witness his dissent Science, July, point of Psychiatry”, it would tion of error number four. We proper stopped dissenting majority’s for the only foreman penalty jury, deciding jury require refusal an in whether steadfast such should answer issue number 2 in continue so was struction because to to do coin, flip or negative, “futile”. See Johnson the affirmative and, heads, (Clinton, if up (Tex.Cr.App.1984) the coin turns the defen- 619 joined J. lives, or, tails, up Miller, J., dant if it must Dissenting). turns premature deciding suffer a death. jury correctly spe-

whether the answered ON MOTION OPINION APPELLANT’S Presiding Judge cial issue number FOR REHEARING Court, members, could behalf of its 29, 1991 May and, coin, flip up also coin if the turns tails, aside, jury’s verdict be set but will CAMPBELL, Judge. up heads, jury's if the coin turns ver- Appeal was from a taken conviction dict This would will be affirmed. at least 19.- murder. TEX.PENAL CODE § comport with the scientific method that the 03(a)(2). finding appellant guilty, After tyrannical An- Mexican Government under findings affirmative returned ‍​‌‌‌​‌​‌​‌‌‌​​​​​​​​​​​​​​‌‌‌​‌‌​‌​​‌​​​‌​‌​​‌‌‌‍Lopez deciding tonio de Anna used Santa issues under TEX.CRIM.PROC. which of the 176 Texians of the ill fated as- CODE art. 37.071. Punishment was Mier executed Expedition would be in Feb- death.1 sessed at ruary, Salado, Every Mexico. fifth appeal, On direct in his fourth and tenth man who drew a black bean was error, points argued the Mexican Apparently, executed. give trial court erred it refused to when superstitious Government was about requested charge rounding off numbers 17 Te- because phase of his evidence at By xians were executed. and this trial, prohibits indi- and that 37.071 article using flipping the scientific coin mitigating of evi- vidualized consideration method, easily at we would least know how in the and Four- dence violation of Huffman, why resident of one Lubbock to the United States teenth Amendments bad, County, just if not worse who Constitution. appellant, than another resident of Lub- submission, live, ap- gets original rejected On we County, appellant bock to but con- pellant’s arguments and affirmed his gets premature to death. die a regard of point In his fourth viction. respectfully overruling appel- I dissent to in- error, trial we found that the court’s point of lant’s sixth error. provided guidance sufficient struction “conscientiously the jury consider” MILLER, Judge, dissenting. “in the context of mitigating evidence 120. further special page In issues.” We Judge as much as Clinton’s dissent See in articlе is not unconstitu- jurors noted that 37.071 continues the belief that though provide it does not special need a instruction on tional even murder case evidence, mitigating aptly set in on of mitigating out instruction consideration (Tex.Cr. beyond scope special of the evidence Stewart S.W.2d Miller, J., regard appellant’s point (Clinton, by In fifth App.1984) joined J. issues.2 Lynaugh, support in 2. we cited Franklin in the instant cause occurred 1. murder 101 L.Ed.2d 155 changed 108 S.Ct. County. Tom Venue was Lubbock (1988): convicted, County. Appellant but his Green previously recognized Simply put, we have appeal. Lackey v. was reversed on conviction State, adequately "al- Special Texas Issues that the (Tex.Cr.App.1982). On mitigating aspects jury to consider the low remand, change tried on the instant cause was unique crime and the characteristics County. in Midland venue pro- sufficiently perpetrator, and therefore jury See for vide discretion.” Lowenfield error, might culpa- did “that be less found that article 37.071 claims shows who no prevent jury con- than defendants prohibit not ble [other] Appellant’s Brief Re- sidering mitigating evidence. similar excuse.” appellant’s Furthermore, hearing, at he claims that rehearing, appellant In his motion give could not effect such evi- mitigating argues that the evidence admit answering in issues special dence under punishment phase during of his ted sentencing procedure of the death article presented trial is similar evidence 37.071. Penry (1989).3 potentially Appellant 106 L.Ed.2d 256 The record reveals relevant 1) mitigating including: a low lev- argues charge that in the absence of a that evidence intelligence, extremely by el of shown sub- apply mitigating instructs the IQ very poor standard test scores and answering special issues evidence 2) record; school a turbulent childhood 37.071, special deal article another issue 3) relationship father; with his evidence, troubled ing specifically mitigating with age (23) of- youthful at the time vehicle, required is left without a 4) fense; voluntary intoxication and “alco- mor Penry, expressing a “reasoned offense; the time of the holic black-out” at regard their response” al decision 5) drinking,” pattern “periodic punishment. Appellant submits that drinking inability to control mitigating jury could not aсt on the evi Although appellant once initiated. avers answering them in dence before Penry facts that is limited to the of that ensuring issues—thus a sentence of death. case, he contends the evidence offered granted appellant’s motion for re- regarding his trial childhood abuse and at whether, hearing in order to determine problems school is similar to evidence light evidence offered Penry. trial, rejecting ap- the trial court erred in mother, Lackey, appellant’s Annabelle pellant’s proffered special instruction appellant testified that was moved around punishment phase of his trial. We now child, as a to several cities hold that charac- school, appellant’s poorly did father background ter and offered at trial was lot, and he drank a father “fussed relevant to issue two article 37.- lot,” him his father “hit some.” She also testified did culpability” relevant to “moral her, and did not think drink around she scope issues drinking problem. a appellant that 37.071, article that trial not court did refusing appellant’s err in re- submit she Betty Edge testified that was with quested instruction on such evidence to the appellant prior for several hours to the appellant’s and re- jury, that the denial of Kumpf. Edge testified that at murder quested prevent instruction did not murder, she had known the time making an individualized assessment six months. appellant for almost On a appellant and “reasoned moral re- night July Edge and friends sponse” appropriateness about Appel- club in were at small Lubbock. penalty in the instant case. midnight, at which time lant arrived around him Edge considered to be intoxicated. I. MITIGATING EVIDENCE Appellant beer at another table until drank trial, Edge, appellant at 2 a.m. At that time At offered evidence the bar closed persons other continued “disadvantaged background appellant, and and four emotion- club, appellant problems" an after hours where or mental which he now on to al [231, granted naugh 26. We Phelps, was decided on June (1988). prior rehearing appellant’s September L.Ed.2d We adhere on 568] for motion conclusion. 1989. Lackey, at 120. original opinion the instant cause was 3. The Penry Ly on June handed down impulsive para- group categоry psychotic, such as

drank at most one more beer. noid, stayed Edge personality. there less than an hour. and or anti-social appellant the mobile home were invited to Modlin,however, as a appellant classified They of their friends. were at the mobile Although did “periodic appellant drinker.” hour, Edge for almost an when left home alcohol, daily need for not have a “[t]he home, group appel- to take one of and problem he often too that drank [was] They lant left to check a friend. ran hand, got and he would much and out again into each other outside the after testi- alcoholic blackouts.”4 Modlin club, hours and returned mobile the events appellant’s fied that version of later, appellant home. removed Sometime morning Kumpf s murder was clothing, Edge all of his and removed most blackout at consistent with an alcoholic sex, engage in Edge of hers. refused to that Modlin testified time of the murder. appellant lady”, and told her she was “a recognized problems, appellant alcohol home, going go “to and not to bars and be probably not con- appellant and that anymore.” Appellant appear angry did society. threat stitute shortly after and left 5 a.m. refute presented evidence to The State

Edge appellant was still and his appellant’s mitigating testified that a.m., appeared around John- intoxicated but claim of alcoholic blackout. Carroll Holmes, girlfriend and though he “sobering up” appellant’s even continued son murder, testi- midnight till after 4 a.m. at the time of to drink from roommate saw news cov- appellant how when She testified that she could tell fied that murder, he to her Kumpf’s turned many appellant erage had consumed be- drinks said, got you some- a.m., appel- “Baby, I’ve tell midnight and but that and tween they’re looking for.” might thing. at the I’m the one lant have had one beer after appellant’s prior bar, also introduced possibly hours and two three beers State intoxicated, burglary, revocation Appellant but conviction after that. offense, and his convic- probation for that at all times coherent and conversational. the intent burglary committed with tion for Modlin, general psychia- Dr. Herbert rape. to commit trist, psychoanalyst, and board certified neurologist, testified he had examined EVIDENCE? II. PENRY appel- had read appellant for two hours and must determine whether past psycho- and psychiatric medical lant’s to raise presented evidence sufficient records. logical reports, and educational supra.5 Penry v. claim under had been Modlin testified damage adult, presented brain Penry as an psychologically tested result or as a 14; occurred either at birth 7, 11, appellant’s school ages multiple injuries to beatings poor, of extremely record in academics was in an “or- age, resulting early at an citizenship brain good marks but he had at the time age ganic disorder art; IQ was 75 at brain him to impossible for 14, which made it 11, which was offense 7, age age 67 at 80 at wrongfulness of his conduct retardation, appreciate an adult was and as mental the law.” his conduct to ap- or to conform range; and that in the 70-80 probably psy- 2941. The State’s Penry, 109 S.Ct. at and “some- controlled” pellant “over Penry acknowledged experts that emotionally.” In Modlin’s chiatric what inh[i]bited ability, and “extremely limited mental particular fit did not opinion, appellant penalty mitigating circum- person a based must have death 4. Dr. Modlin testified that a instruction, requested a or above to enter level of .20% For text of blood alcohol state stances. opinion Although express op. of blackout. we no alcoholic 118. see at requested instruc- merits of on the tion, trial, phase his 5. At adequate to "call find it was we do that mitigating special instruction a requested charge." error in the court’s attention to trial issue, evidence, including special ostensi- a third art. 36.15. TEX.CRIM.PROC.CODE against jury bly designed to vote to allow the enough clear it is not (1982),] from his makes unable to learn seemed present allow the defendant simply to at mistakes.” Id. 2942. and two of article rendering its background (O’Connor, Franklin v. allow a sentence less than death. vide the S.Ct. cluded ed with a vehicle informing the soned moral S.Ct. mental scope der, ground “personal ized defendant’s If of the death “reasoned Penry’s give the sentencer is make an individual jury while relevant at that, assessment issues of аrticle 37.071 did not problems evidence, effect Penry, found culpability” for the J. “moral evidence somehow reduced 2333, in the absence of response’ sentencing moral awith vehicle for background concurring). penalty, jury to Penry’s “the 37.071, culpability that it response” evidence Supreme jury organic expressing “evidence Penry’s mitigating L.Ed.2d to that evidence special decision.” Id. 109 [issues].”6 and character is ment. appropriateness was not could consider Thus, also brain disor instructions beyond the issues one expressing Court con crime, about the 164, 108 relevant its ‘rea Penry’s even if provid (1988) back pro See Penry, 109 S.Ct. at 2947. Penry, to that evidence the defendant’s ized assessment be able to to consider circumstances ger, 481 the defendant S.Ct. 2978 at [107 (emphasis in background, ifornia soned moral ate human (1976) sider and imposing sentence. Hitchcock v. mitigating evidence to determination L.Ed.2d 347] olina], 428 U.S. sure sentence. Woodson penalty sentencer S.Ct. ]. bein[g]” make a reasoned relevant “Thus, U.S. give effect to that evidence Brown, stage character, and crime.” response to the defendant’s original). 2991, 2992, 49 L.Ed.2d 944 (1987). Only then background, character and the sentencer must be allowed not must also be 841] arriving and has made the sentence ^[280] supra, should offense, [107 (concurring opinion) “uniquely appropriate punish- at an individual- [v. is the moral 479 U.S. at 545 the sentencer. S.Ct. reflect a rea 304, 305 Thus, it able to con North has imposed at must individual appropri response 1821, reliable can treated under Dug Car Cal also [96 belief, long relevant because held “Relevance” Mitigation A. society, that who com defendants Supreme has Although the made mit criminal acts that are attributable to may mitigating evidence disadvantaged background, or to emo clear that relevant sentencing problems, may tional mental be less not be excluded exactly parameters culpable process, no which than defendants who have Brown, mitigating and “relevant” such 479 evidence is both excuse.” California plurality example, For 93 are less clear. U.S. [107 (1987) (concurring opinion). opinion in Franklin concludes that State L.Ed.2d 934] Moreover, Oklahoma, legislatures may enact some “framework” Eddings [v. of relevаnt 71 L.Ed.2d for the use dangerousness, culpability Penry’s but reduced Supreme also to 6. The Court found that limited inability such capacity and his to learn from The Court concluded that mental the crime. apparently preclude edged did “two sword” evidence directed mistakes ability “deliberately finding term as that is com- to act affirmative make an understood," monly society, resulting issue one. usually under in a death threat to Penry’s background sentence, evidence was relevant be- that tended to ab- based evidence one, jury yond scope of issue since the could culpa- personal or moral solve defendant Penry morally ‘culpable "conclude that was less bility Penry’s case mental his crime. In than who have no such excuse[.]”’ defendants likely extremely problems he made it Penry, S.Ct. at 2949. danger. to be a would continue acts, Penry’s “culpability” for his found that being respect With a threat however, by two, be reduced special could somehow society such evidence under issue origin problems. finding Id. only of his mental pointed toward a future not view, capital sentencing procedure, my principle underlying but Lockett, important ques- Eddings, and Hitchcock is that does not answer most directly posed: mitigating punishment is should be related to tion What procedure? culpability personal to that of the criminal relevant framework for least questions of the defendant's relevant for a State to “record,” State cannot take out vant power L.Ed.2d 438 U.S. offense”—Lockett State shape cise leaves unanswered the land, [T]he cluded from in a (1977)] has [482 sentencing that a what? 440] capital part making sentencing no or the “circumstances of factors. See U.S. evidence. jury’s role in (1987). — answers sentencing jury provide 98 S.Ct. considering discharging these case, While Lockett 496], 107 S.Ct. 2529 does not hold that consideration of structuring Given it considerations may may of the realm of it This statement Booth question: clear “character,” be advisable question at not be 57 L.Ed.2d must [v. awesome or relevant respon that a giving Mary Ohio, these some exer rele pre [96 scope of the tice O’Connor’s Franklin, 108 “moral defendant. mitigation jury with no vehicle for relevance to the defendant’s the crime that was not relevant structions would have special culpability dence. gating evidence about his or If “reasoned moral character or culpability,” ... given mitigating ^[******] petitioner verdict verdict (emphasis presented S.Ct. view, required beyond the questions, question, and that evidence issues. response” to that evi- had separate added) is of relevance when effect within circumstances introduced expressing its provided the scope Thus, or background instruction mitigat- in Jus- moral to the miti- can- in- sibilities. an Individu- Culpability B. Moral —or 164, 108 alized Assessment? Franklin 2320, 2330, (1988) 101 L.Ed.2d 155 Supreme first note that omitted). (citations (plurality opinion) “personal” not defined “moral Court has

Although Supreme Court believes the terms We believe that culpability.” article 37.071 are culpability,” issues of used “personal” and “moral “personal” culpabili- or “moral” Penny, might lead to the by relevant the Court ty, Penny guilt makes clear capital the Court defendant’s conclusion aspects “culpability” for possible by all diminished the introduction is somehow particular crime can be addressed evidence.7 forms of of certain questions. Whether these two three appropriate analysis a more We think relevance, specific as defined Rule phase to focus the would be TEX.R.CRIM.EVID., “personal” or assessment the trial on individualized less culpability required is even “moral” defendant for “deathworthi capital clear. all, defendant ness.” Above Franklin, “particularized consid must be afforded a concurring opinion In her charac aspects of O’Connor, pro- eration of relevant Penny, the author of [his] Justice imposition record ... before answer to the ter and cryptic vides a somewhat of death.” Wood plurali- upon him of sentence question the Franklin lingering 280, 303, Carolina, mitigat- concerning son North ty opinion relevance (1976). 49 L.Ed.2d ing evidence. home, abuse, unhappy parental and an mar- system, culpability for the 7. Under bifurcated "morally culpable” riage, percent normally be re- is an that should crime issue per- other 30 phase for the crime committed—the guilt/innocence the trial. at the solved being back- to his unfortunate hypothetical that a cent ground. attributable might in a surmise One product of а broken defendant who 272, 96 at at S.Ct. process significance accords factors.” Id. A no of relevant facets the character and 2956.

This Court has tences, justice generally requires consid- record factors ‍​‌‌‌​‌​‌​‌‌‌​​​​​​​​​​​​​​‌‌‌​‌‌​‌​​‌​​​‌​‌​​‌‌‌‍ties of humankind. ultimate excludes from bility circumstances ^[******] “[f]or of the individual offender stemming punishment compassionate the determination consideration previously from the particular death diverse frail- recognized fixing offense or.the possi- sen- the Id. The hearing whatever sentencing function. dant fore the By authorizing quate guidance to enable it to stances at Supreme can be relating to the individual sentencing adduced, S.Ct. at the Court the defense to separate mitigating circum- Texas Jurek will have ade- has ensured perform its sentencing required bring defen- be- reading 37.071to broad of article allow particular eration of more than acts relevant circumstances by crime which the was committed and Court, in capital individual offender. that there taken into account the cir- fact, together mitigating factors cumstances of the offense enumerated several propensities concep- of the of- potentially the character relevant under a broad Pennsylvania 272-73, fender.” rel. ex Sullivan tion of 37.071. Id. article Ashe, 59, 61, however, 302 U.S. S.Ct. Penry, de- [58 S.Ct. at 2956-57. (1937). 82 L.Ed. illusion issues stroyed 43] ^[******] mandated by article 37.071 can handle all and offenses. offenders While capital cases the fundamental re- [I]n cul- Penry focused on the “moral Court in humanity spect underlying the for damaged, sociopathic, pability” of a brain Amendment, Dulles, Troy v. see offender, true mentally retarded 590, 597, [86], at 100 S.Ct. [78 problem, Penry, read with the Texas as we (1957)] opinion), (plurality L.Ed.2d 630 system applied in that requires consideration of the character procedure indi- inability of the to allow an and record of the individual offender and appropriate- vidualized assessment of the circumstances of the offense as a given the of- penalty, ness of the death constitutionally indispensable part of the fense offender. and the inflicting process penalty death. squarely This on the conclusion rests concept of “moral We believe penalty predicate that of death (or in view deathworthi- culpability” our qualitatively different from a sentence of ness), Supreme as used Court long_ imprisonment, however Be- Penry Eighth Amendment cases and other qualitative there cause difference sentencing process as it relevant corresponding is a difference need insight into an overall provides additional reliability the determination that example, For of the offender. assessment appropriate in a death is the cer- insight obtained from evidence of specific case. merits consid- positive tain character traits 304-305, 96 S.Ct. at 2991-2992. Id. at con- reasons unrelated eration for Positive char- cerns issues.8 Texas, 428 S.Ct. Jurek traits, ser- such as artistic talent or acter (1976), 49 L.Ed.2d 929 decided others, arguably while relevant Woodson, vice Supreme day same two, likely more serve special issue system. capital murder upheld the Texas less death for a sentence than proce- as a basis constitutionality Texas scope of the special issues reasons turned on whether the dure are, how- character traits particularized issues. Positive allowed “consideration service, gate penalty." voluntary against Franklin kindness to 8. "Evidence of others, might religious demon- devotion at 2333. might positive miti- character traits that strate ever, capability, mental clearly conception relevant to our limited intellectual and father, relationship an individualized assessment deathwor- his problematic with his Thus, deathworthiness, thiness. as raised father, physical by age his his at abuse evidence, by ap- relevant an of the offense is to a time relevant factor, propriate, not to be but exclusive special proper resolution of concerns evaluating used in alterna- issue two. tives for the individual offender. argued his miti- Appellant offered and gating evidence to show that he would C. An Individualized Assessment Un- Thus, continuing society. threat to a Special Issue Two der by such could been used evidence Appellant offered of his evidence back- special negatively, jury to answer issue two ground support theory and character to his requirement of even absent Jurek continuing to that he was not threat admissibility. broad society, direct the to- and therefore negative finding to the second wards a agree enti We was trial, appellant At called Dr. special issue. ef- tled a vehicle for consideration and Modlin, testified that his examination who his fectuation of evidence. appellant’s psychiatric history to his led case, however, we find that instant opinion appellant’s brutal murder an special provided issue two with Kumpf incompatible with his life histo- was evaluating vehicle for and act appropriate ry. further that at the Modlin testified ing upon appellant’s mitigating evidence. appellant’s time of overall situ- the offense ation about it had ever been. was best Ar- Mitigation Beyond Scope D. employed, Appellant steadily had had been 37.071 and an Individualized ticle good relationship social and sexual with Assessment girlfriend, good relationship his had background Although appellant’s mother, and had social contacts. other is relevant to the and character evidence murdering Kumpf His violence was two, special issue conclude summation, concerns of largely appel- inexplicable. In instant mitigating evidence testimony, plus psy- Modlin’s lant used educational, chiatric, overall life histo- irrelevant to an individu case is otherwise finding ry, argue against affirmative of the deathworthiness alized assessment pose threat to background evi appellant. Appellant’s society issue two. As under explain not tend to excuse or dence does trial, argued appellant’s presented and at act, did evidence his criminal comparable the “two evidence was Appellant did not presented Penry. organic edged evidence of brain sword” mitigating positive present any evidence of damage and mental retardation found Furthermore, is lit traits. there character Penry. note 6. See his back tle no connection between ground evidence and and character requires a Amendment of his criminal acts circumstances facts and reading of issue two article broad expert, Dr. Appellant’s in the instant case. 37.071, “mitigating circum include Modlin, appellant’s record testified that relating to individual defen stances explаin the brutal crime could not Jurek, 428 U.S. at dant.” showing Appellant made no committed.9 appellant’s 2958. find given, Dr. Modlin would appellant’s been fact that instruction focuses on the dissent that, reflection, argument per- appel- "only remaining was viable on further have testified give danger society, effect suade the consider really lant future issue,” through [im- the second evidence plying really entirely predictable, given the crime appellant's requested since instruc- history, background but mental refused, appellant’s only avenue was tion was mercy should be extended because that he through special "funnel” his misfortunes. these Baird, J., dissenting. Op. issue #2]. argu- Conceding point for the sake of ment, appellant’s special mean that if does this

135 his charac III. CONCLUSION mitigating evidence of ter, background and mental status some did not find that article 37.071 We reduced his blameworthi specifically how Eighth Amendment appellant’s violate Kumpf way in a murder of ness for the assessment of right to an individualized adequately addressed could not be penalty. The of the death appropriateness through special issues. to his give and effect could consider jury appellant’s mitigating If evidence of background and on mitigating evidence character, background, or circumstances special scope of the within character given effect under arti- offense can be having “Yes” jury, returned issues.11 37.071, is not enti- then the defendant cle issues, then special was not to the answers special instruction on to an additional tled vote ‘independent’ an “to cast entitled mitigating juryA instruc- evidence. Franklin, 108 penalty.” against the death mitigating about back- tion on evidence at 2330. Jurek affirmed the constitu S.Ct. ground, or circumstances of character special practice, issue tionality of the Texas may required unless offense not be Penry holding. not overrule that and did to the mitigating evidence is “not relevant Thus, duly constrained consider we are rele- questions, or special verdict ... [has] light of these 37.071 in challenges to article culpa- vance [“Jmoral defendant’s special require decisions. If we were bilityff] special scope of the the facts of mitigation issue on Lynaugh, Franklin v. questions.” verdict case, not believe that we do instant 2320, 2333, 164, 101 108 487 U.S. S.Ct. would, in the 37.071 special issues of article (O'Connor concurring) (1988) L.Ed.2d 155 pur- future, any useful added).10 continue to serve (emphasis to emotional value, ground, the offense must working was, by all relevant Brown, when the criminal placed "attributable mother tended sexual abuse issue #2. somehow ness of the death sion of the offense lant’s en. some nexus individualized assessment L.Ed.2d 934 moral or and mental combined with true Gribble ment would 1990) (Evidence If Justice culpability for the crime. See disadvantaged background, Appellant psychosis intermittent acts recognize, even 479 U.S. mental accept 492 U.S. at help personal culpability O’Connor seems to further appellant, Id. commission problems,” accounts, seem to be to a conceding this case was able to "make the defendant's between the (1987) and mental polite, drugs Dr; resulting to ameliorate fault condition, however, explain of either disadvantaged background, or penalty” pursuant act also be connected with by Modlin’s thought (concurring opinion). or alcohol but his aberrational. this defendant. of violence (murder) then 107 S.Ct. in conflict with of the crime was opined, or excuse the commis in violent that a nexus problems," or circumstances mitigating of the actual or strategy testimony S.Ct. at character, sexual fantasies early or to emotional is "attributable developed reduced against 837, 841, California (Tex.Cr.App. stable, appropriate- effect, Therefore, age by behavior.) limitation imagined evidence Penry See require- require Lockett at face appel wom back hard only into e.g., but an If 11. The viable, Lockett, Hitchcock used dence. sentencer law, evaluate cial Issue the at 2329. evidence. 973 v. 104, severe kind of quire of the defendant offense considering, as a spite of factors which risk that the death capital cases from ing weight acter and record less [A] [The] Ohio, likely (1978) a defendant’s character by Eddings, supra, 102 S.Ct. statute that than death. Supreme and the issue 438 U.S. 438 U.S. at [evidence penalty. circumstances of the L.Ed.2d 347 future behavior.” may proffered in ^[******] "In considering practice proffers Dugger, 869, resolving not be and Fourteenth second Eddings aspects sentencer, Court has for consideration 586, prevents of character] [is] mitigating factor, and to circumstances 71 L.Ed.2d giving independent penalty under article 37.071 the Court as a precluded, 98 (1987). surely relevant of the defendant's not be mitigation creates the v. the second may call for a less found that the basis for a sentence in all the sentencer Oklahoma, Franklin, 108 S.Ct. will or record and S.Ct. at free to issue 2954, Amendments offense that precluded as measured found that the but the rarest (1982). a matter of can still be imposed Texas 57 L.Ed.2d weigh any aspect 2965; 455 U.S. mitigat- is still Texas in all char- from Spe- evi- see re- (Clinton, J., arriving (Tex.Cr.App.1984) assess- pose in at an individualized then, ironic, appropriateness ment of the death dissenting). How penalty. ignore instant cause the Court continues to impact those cases in constru earlier proffered by appellant holding in ing the reach substantive to his arguably that could be relevant supra. v. Penry culpability” for the murder of “moral voluntary in- Kumpf was the evidence of Supreme Court has United States possibility toxication and the of alcoholic peradventure that beyond told us “the Con at the of the offense. On blackout time ability to a limits a State’s narrow stitution however, not ar- rehearing, appellant does discretion to consider relevant sentencer’s regarding gue presented evidence might to cause it decline to evidence that voluntary at of his intoxication the time McCleskey v. impose the death sentence.” his alcoholic blackout offense and claim of 279, 304, 1756, Kemp, 107 S.Ct. 481 U.S. at culpability is his relevant to moral 1773, (1987)(em 262, L.Ed.2d at 286 at 95 Thus, scope of the issues. original). See also Hitchcock phasis will not address whether such 1821, 393, 95 Dugger, 481 U.S. 107 S.Ct. v. re- presented appellant’s special need a for (1987). “[A]ny aspect of a L.Ed.2d 347 quested instruction. any record and defendant’s character or rehearing is over- Appellant’s motion for of the offense” that the circumstances judgment ruled trial court is a persuade impose a reason could affirmed. in this may than death be said penalty less mitigating evi context to be “relevant” CLINTON, Judge, dissenting. Ohio, supra, 438 U.S. at dence. Lockett (Tex. State, In 350 816 S.W.2d Black 990; 2965, 604, at 98 at 57 L.Ed.2d S.Ct. J., day) (Campbell, Cr.App., delivered this 104, Oklahoma, at Eddings 455 U.S. today concurring), majority judges a 869, 1, 110, 102 874, at 71 L.Ed.2d at 8 S.Ct. agree Penry predicated upon error (1982).1 2934, 302, 109 Lynaugh, 492 S.Ct. 106 U.S. Ohio, plurality of supra, Lockett v. (1989), may for the L.Ed.2d 256 be raised Supreme Court invalidated the appeal first on direct or collateral time year 21 old defendant. Un- sentence of a attack, long as occurred at least so trial governing capital der the Ohio statute then This date decision. prior to the of that judge impose trial sentencing, the claim Penry date a so because before that he found one of death unless sentence of Court. “right recognized” was a mitigating circum- statutorily defined three (Tex. Chambers, parte 688 S.W.2d 483 Ex stances, 1) “induced deceased viz: J., concurring). (Campbell, Cr.App.1984) 2) offense; ac- or facilitated” last dozen obduracy This Court’s “duress, or under coercion cused acted necessary refusing accept years in 3) ac- strong provocation^]” or implications of v. North Car Woodson “psy- product cused’s conduct 2978, 280, olina, Id., 438 deficiency[.]” or mental chosis Ohio, (1976), Lockett v. L.Ed.2d 2966, at 607, 57 L.Ed.2d at 98 S.Ct. at U.S. at at Although factors as Lock- such 991-92. (1978) (Plurality opin at 990 L.Ed.2d con- age record could be criminal ion), directly ett’s progeny, led to that their whether determination sidered in the conclusion. See Stewart v. opinion (Tex.Cr.App.1989) (Plurality truth, "relevancy’ concept in this 1. In being rehearing). material for That odd to me. The motion context seems on State's issue, consequence,” "fact of is whether “what is ‘relevant’ seems to me that it guilty deserves found of a crime accused determining proper punishment is more As is the case less than death. sentence logic.” Because question policy than Id.. non-capital phase prosecution, punishment of a Eighth propor- Amendment question is a simply issue is "what where the tions, however, ultimately policy for call assess,” process, not intrin- this is "a normative Supreme Court make. States United Murphy v. sically factbound.” though allowing such statutory mitigating circumstances [Skip- justi- as “the difficult circumstances existed, they regarded could per’s] upbringing[,]” the trial court refused right a sentence fications in their own regarding good testimony be- admit such less than death. Nor could factors adjustment during incarcerаtion havior and relatively the accused’s minor role Supreme pending Court rec- his trial. leading murder, up events ab- ognized “any inferences” [favorable] part. kill A sence of an intent to on her re- deriving from this evidence “would not plurality Supreme held that petitioner’s culpability specifically late range this limitation of the Neverthe- crime he committed[.]” incompatible its re- circumstances was less, Lockett, supra, citing the Court jurisprudence, cent Amendment question no but that opined “there is Carolina, notably most Woodson v. North ‘mitigating’ in the such inferences would be Lockett, supra. companion In a case they ‘as a basis for might serve sense 637, Ohio, 2977, Bell 438 98 57 v. U.S. S.Ct. ” less 476 at a sentence than death.’ U.S. (1978), plurality L.Ed.2d 1010 the same 1671, 4-5, S.Ct. at 90 L.Ed.2d at 106 of a defen- penalty overturned the death considered, this evidence was not Because old, high years dant had been sixteen who It Skipper’s death sentence was vacated. mescaline, possibly only an accom- in Lynaugh, is Franklin 487 true that v. plice at the time of his offense. 2320, 164, 108 155 U.S. S.Ct. 101 L.Ed.2d Oklahoma, In Eddings supra, major- (1988), Supreme majority Court ity Supreme adopted Court hold- that, particular context of concluded There, though of Lockett. even issues, 37.071(b),V.A.C.C.P.,special Article judge Eddings’ trial had taken account good mitigating significance behav- se, he youth mitigating per as a factor jail pending fully trial could be ac- ior in within Oklahoma’s refused to consider special is- within the second commodated open-ended mitigation statute the troubled sue, dangerousness. The regarding future Eddings' Af- upbringing. circumstances intact, how- principle Skipper remains recounting Eddings’ “neglectful, ter some- ever, applies beyond context of family background^]” times even violent good evidence jail. conduct in Proffered circumstantially and his retarded mental specifi- necessarily does have to relate development, Supreme and emotional charged cally culpability for the crime observe: went to serve as valid basis for a be “relevant” suggest “All this does not an absence of Accordingly, less than death. sentence murder, responsibility for the crime conceded in her concur- Justice O’Connor deliberately in this committed case. ring opinion Franklin that "evidence Rather, say just it is to as the chron- others, service, voluntary kindness to or age ological of a minor itself a relevant religious could serve rele- devotion” well great weight, mitigating factor of so inasmuch as vant circumstances background develop- must and emotional positive "might demonstrate character youthful duly ment of a defendant be might mitigate against the death traits that sentencing.” considered 186, 108 at 487 U.S. at S.Ct. penalty.” 2333, at 173. 101 L.Ed.2d 116, 102 455 U.S. at S.Ct. L.Ed.2d suggestion in Eddings at 12. There no stage Penry was set for Thus the crime must be di that a accused’s U.S. 109 S.Ct. rectly the circumstances of attributable to (1989). Supreme There the L.Ed.2d youth before those circumstances will Eighth there Court decided that mitigating impact have under violation under circumstances Amendment Lockett, strength On the Amendment. Franklin, viz: there is: open left where Eddings’ sen Supreme Court vacated ... “mitigating evidence about back- death. tence of ground circumstances or character Carolina, relevant to the of the crime that was not Skipper South (1986), questions, or that had rel- al- verdict 90 L.Ed.2d background [appellant’s] culpabili- tion defendant’s moral between evance to the and the facts and cir- character evidence ty scope verdict in- of his criminal acts cumstances instructions questions, [and] At 118. But as even stant case.” provided with no have no “nexus” acknowledges, there is majority expressing its ‘reasoned mor- vehicle for Penry, su- requirement to be derived response’ to that evidence.” al majori- pra. any requirement And such 322, 109 492 U.S. at inconsist- might impose would be ty wish Ly Franklin v. 280, quoting L.Ed.2d at Skipper v. South holding ent with the Cali quotes naugh, supra, turn which Carolina, rate, supra. At Brown, supra. Penry presented fornia conclude that would be free to retardation and of of his mental problems had an ad- and emotional mental Supreme Court childhood abuse. The some impulse control in a impact upon his verse may although such held that special issues without way not relevant to spe statutory relevance to the necessarily hearing expert testi- direct issues, special issues were insuffi cial mony to that effect. its full cient to accommodate in- appellant was is also evidence There relevаnce. See at the time of the offense. toxicated holding be limited to This cannot Ohio, me into- Bell v. It seems to supra. Penry. in presented particular facts majority refuses lerably grudging is proffered which Whenever evidence mitigating fact be- consider this to even evidence, but its “relevant” as in addressed specifically it is not cause apart quite is either mitigating significance rehearing.2 It appellant’s motion for from, any bearing it has on goes beyond, a relevant intoxication will be true that issues, the fail- statutory special one of the answering the first in consideration with some provide to the sentencer ure But to deliberateness. pertaining issue for that to account mechanism which Penry in Supreme Court observed what and, evidence, reasoned moral re- in its application as has as to mental retardation less than sponse, a sentence of assess intoxication: in context of well death, any sentence of death invalidate will was relevant “Penry’s mental retardation equally to principle applies imposed. This capable he was question whether to recog- Supreme Court has any evidence the ‘deliberately,’ it also ‘had acting but mitigating that constitutionally nized as culpability moral be to relevance [his] from, beyond, the apart significance has special verdict scope of the yond the issues, or not the evidence whether Franklin, U.S., at questio[n].’ culpa- accused’s specifically to the relates 155, 108 S.Ct. 101 L.Ed.2d [at 2332]. Skipper he committed. bility for the crime solely a func culpability is not Personal Carolina, supra. v. South capacity to act ‘de a defendant’s tion of presented pun juror In the instant cause at the liberately.’ A rational disadvantaged and abused could have phase of a of the trial evidence ishment confession, limited concluded, Penry’s light He also established in childhood. test- Car deliberately' least at one time killed Pamela intelligence which at that he Because penter escape of mild retardation. detection. borderline ed on the however, retarded, Penry mentally This, course, represents Penry “classic” normal adult attempt down- less able than a majority’s and thus evidence. impulses or to evaluate this control his mitigating impact of play the conduct, ... consequences of his is uncon- special issues scope beyond Pen- conclude that juror could also the ob- same down to vincing. It seems to boil defen morally ‘culpable than less ry was or no connec- is little that “there servation voluntary for the intoxication supra, for his account 2. After today’s in Black v. decisions application (Tex. by way post-conviction Goodman, time parte 816 S.W.2d 383 and in Ex first for writ of pursuant Article corpus habeas day), appellant can still Cr.App., delivered 11.07, now? Why address it jury charge V.A.C.C.P. complain of the failure logical spe relevance to the no such who transcends its dants who have but excuse/ That in its form the cial issues. current ‘deliberately’ as term is com acted adequately function statute fails to monly understood. California Supreme for much of what the U.S., conduit Brown, at 93 L.Ed.2d evidence, has identified as [, (concurring opin at 107 S.Ct. 837 841] appli rendering it thus unconstitutional ion).” many under and its cation cases Lockett 322-23, at including Penry, necessarily progeny, Similarly, all L.Ed.2d at 280-81. “deliber- utility. means it has limited There aside, jurors might rationally ateness” be- escaping is no that. judgment and impairment lieve that the mitigat- majority today discounts the impulse accompanies intoxi- control that or- relevance of might defen- cation render an intoxicated 37.071, something salvage of Article der deserving of a dant less sentence of Supreme supra. Court has But when A than a sober man have been. as “relevant” defined evidence that has sworn to answer issues is not purposes, this Court Amendment facts, in accordance how- strictly otherwise, liberty regard even re- considering ever, no has mechanism for majority Because suscitate a statute. mitigation, an- intoxication other than to interpretation of embraces such a crabbed A question swer the “no.” deliberateness derogation precursors, of its Penry, juror might spite believe that Woodson, Skipper, supra, all I Lockett intoxication, capital accused acted deliber- respectfully dissent. ately. juror might The same also believe mor- the accused was nevertheless less J., MALONEY, joins. ally culpable than would have been a sober BAIRD, Judge, dissenting. committing man offense. That the same effectuating juror way would have no respectfully to I dissent the result given. this last belief under instruction by majority of this honorable reached Penry Lynaugh, supra, See U.S. 492 presented central issue this Court. The 302, 323-24, 2934, 2949, 109 S.Ct. at 106 sentenc- cause whether the Texas 256, (1989). L.Ed.2d at 280-81 scheme, art. Tex.Code Crim.Proc.Ann. 37.071, in a manner consistent operated majority complains that: guaranteed by the protections with require special “If we were to issue Amendments of the and Fourteenth mitigation on the of the instant facts majority United States Constitution. case, do the special we not believe that concludes: would, fu- issues of article 37.071 “appellant was entitled to a vehicle for ture, any pur- to continue serve useful his consideration and effectuation of mit- pose arriving as- at an individualized igating evidence. In the instant appropriateness sessment however, special find issue two penalty.” jury appropriate provided the with 37.071(b) At 401. Of course contin Article acting upon evaluating and vehicle for constitutionally legitimate, ues to serve a if mitigating appellant’s evidence.” superfluous, narrowing the function of rehearing at 115. Lackey, op. on death-eligible class beyond defendants narrowing appellant’s I already occurs under believe Code, background disadvantaged and mental Penal See V.T.C.A. 19.03. Lowen § problems beyond fell Phelps, 484 U.S. 108 S.Ct. and emotional field Therefore, (1988). special issues. art. Penry scope But if stands L.Ed.2d 37.071, operated in an man by unconstitutional anything, it is that Article 37.071 appellant by providing applied to itself, constitutionally unreliable mech ner as is a express its rea determining is an with a vehicle anism for that death response appellant’s miti penalty whenever evidence soned moral appropriate might as a basis potential gating evidence serve proffered having mitigating also, give mitigating effect to Franklin’s evi- for a less than death. See sentence 69,990, (Tex.Cr.App. answering special No. second is- Boggess v. State dence date) J., (Baird, dissenting); Specifically, delivered Justice sue. O’Connor stated: (Tex.Cr. Baldree, parte Ex While it is true thаt the ... date) (Baird, J., App. delivered this dissent giving prevented from effect ing). stipulation the extent that it positive character traits demonstrated my The reason for belief stems ability prison than to exist other reading Lynaugh, of Franklin v. careful or in- endangering jailers without fellow 2320, 101 L.Ed.2d 487 U.S. mates, practical had that limitation no (1988), Penry (1989). 302, 109 2934, 106 significance my view be- L.Ed.2d 256 constitutional S.Ct. concurring no opinion stipulation cause the relevance Justice O’Connor’s Franklin, aspect petitioner’s states:. other charac- ter. sentencing procedure fol

Under express lowed in this case the could Id., 108 S.Ct. at 2333. 487 U.S. punish appropriate its views about the Today, majority appel- concludes that ver only by answering special ment consisting mitigating evidence lant’s regarding the deliberate questions dict proble- capacity, his “limited intellectual ness of the murder and the defendant’s father, relationship matic [and] dangerousness.[1] To the extent future father”, by his to the extent physical abuse mitigating evidence introduced appellant’s moral cul- that it is relevant petitioner to one of the hy was relevant given mitigating ef- pability, could full special questions, jury was verdict issue. through fect the second give free to effect rehearing at In other op. on Lackey, returning negative answer to that words, believes that evidence majority If, however, had in question. petitioner background disadvantaged troduced evidence about problems practical “no and mental background or the circum or character significance” the sec- constitutional was not rele stances of the crime that disagree. I ond issue. questions, or vant verdict Penry, the defendant’s that had relevance to O’Connor, speaking majority for a Justice scope of culpability moral Court, of the stated: questions, jury in special verdict jury provided have is Underlying Eddings structions would Lockett and expressing its “rea with vehicle for no should be di- principle that that evidence. response” moral to culpability soned personal rectly related to the case, a then would If this were such we defendant. If sen- of the criminal jury’s inabili have decide whether to as- is make individualized tencer to an to to that evidence amount ty give effect of the apprоpriateness of the sessment Eighth Amendment ed to an violation. about the defen- penalty, “evidence is rele- character Id., background S.Ct. at 2333 dant’s and at U.S. J., belief, J., Blackmun, long con held joined by (O’Connor, ‍​‌‌‌​‌​‌​‌‌‌​​​​​​​​​​​​​​‌‌‌​‌‌​‌​​‌​​​‌​‌​​‌‌‌‍vant because commit curring). society, that defendants who ato that are attributable criminal acts Franklin mitigating evidence only to background, or emo- disadvantaged discipli- stipulation a that his presented was problems, may less tional and mental record, 1971- nary incarcerated from while have no defendants who culpable than 1976-1980, was without incident. 1974 and More- excuse.” omitted.] such [Citation M, S.Ct. at 2324. at U.S. over, it clear that it Eddings makes concurring According plurality and to the defendant enough simply to allow the Franklin, free to jury opinions in Only two sub- trial. special one and were issues 1. appellant’s punishment phase of mitted at majority un- Finally, places sen- I believe the present mitigating evidence to the able emphasis

tencer. The sentencer must also be on defense counsel’s warranted give to consider and effect to that evi- argument. The notes: closing majority in imposing dence sentence. [Citation summation, appellant “In used Mod- can Only then we be sure omitted.] psychiatric, edu- testimony, plus lin’s has treated the defendant sentencer cational, argue history, and life overall “uniquely being” a individual human against finding an that he affirmative and has reliable made a determination society pose threat to appropriate that death is the sentence. presented As at under issue two. “Thus, the sentence [Citation omitted.] trial, appellant’s compa- evidence was not imposed should reflect a moral reasoned edged sword” evidence rable “two background, response to the defendant’s damage and re- organic mental brain character, crime.” omit- [Citation Penry. tardation found [Citation ted.] omitted.]” Id., at 2947. op. rehearing at 131. Lackey, My reading Penry of Franklin and his summation Appellant made after If has a follows: appellant’s request- had trial court refused significance to practical and constitutional punish- mitigating instruction and the ed criminal culpability, defendant’s moral charge jury. been read ment providе jury the court should independent did not have Since give Ap- effect to that vehicle evidence. give appellant’s mitigat- effect to vehicle pellant’s mitigating prac- evidence has such evidence, remaining vi- appellant’s significance tical and and art. constitutional argument persuade able provide 37.071 failed to give effect to the evidence consider express its with vehicle to reasoned moral Surely, through the second issue.3 response fact, Penry that evidence. In argument made cannot now utilize the is- specifically discussed how the as a means for by appellant’s trial counsel jury to sues were insufficient vehicles for a excusing a violation give mitigating effect to evidence demon- Fourteenth Amendments. strating disadvantaged background and problems.2 Penry, mental reasons, ap- I foregoing believe For jury provid- pellant to have was entitled express a vehicle to its reasoned ed with particular Under the facts of this response to the moral thought jury might demonstrating disadvantaged back- “deathworthy” was not because of his dis- prob- ground, and mental and emotional advantaged background, and mental provide did 37.071 lems. Because art. problems, no vehicle to emotional but had vehicle, sentencing the Texas such express response. that reasoned moral instruction, operated in an unconstitutional scheme appropriate the absence of an applied appellant. these With juror manner reasonable could well have believed lodge I this dissent. expressing respectfully comments that there was not a vehicle for view did not deserve upon his miti- sentenced to death based Id., 492 gating evidence. U.S. at at 2950. (sic) Jury damage Penry organic have ask Certain members

2. suffered from brain mentally Peltry's Society brain dam- and was retarded. defined as contained to have the word birth, may age probably caused at but Special Issue No. 2. injuries by beatings multiple been caused specifically, should consider More frequently early age. Penry the brain (sic) regards prison life is relivent fact he was beaten over the head with belt when to “... our consideration as child. you society?”, have defined above. threat deliberations, During jury foreperson sent following to the court: note

Case Details

Case Name: Lackey v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: May 29, 1991

Citation: 819 S.W.2d 111

Docket Number: 69144

Court Abbreviation: Tex. Crim. App.