Penry v. State

782 Atwood, LLP, Austin,

Mullen & and Ste- Gonzalez, Johnny PENRY, Gaytan Appellant, ven M. Gonzales Garza Paul Castillo, LLP,- McAllen, & for Relator. Christopher A. Prine and Eliza- Sarah Patel, James, PC, STATE Texas.

beth Crain Catón & Houston, Solis, Santiago Harlingen, Jose No. AP-74445. Tracey, Depew Sean Patrick Clark & Tra- Houston, cey,L.L.P., Respondent. Appeals Court of Criminal Texas. PER CURIAM. 5,Oct. Inc., Energy, Gonzalez v. Reliant 159 Rehearing Denied Dec. (Tex.2005)

S.W.3d 621-22 and in In re Inc., Energy, Reliant S.W.3d

(Tex.2005), we held that section 15.007 of the Texas Civil Practice and Remedies directs that in a wrongful

Code death or case, personal injury provisions the venue Chapter precedence take over the provisions venue of the Texas Probate Code.

Both the parties relator and the real proceeding interest to this mandamus they opin- informed us that believe these ions control they this case and therefore

“agree that the should Court issue the writ the [Hidalgo mandamus direct

County its Probate vacate order Court] that transferred the from underlying case County

the District Court of Travis Probate No. of Hidalgo One Coun- ty.” agree. We Appellate

Pursuant to Texas Rule of 52.8(c), grant petition Procedure we opin- for writ of mandamus and issue this hearing argument. ion without oral We conditionally grant mandamus relief and Hidalgo County

direct the Probate Court granting to vacate its order the motion only transfer. Our writ will issue if the court act in probate fails to accord with opinion. Austin, Appellant.

Gary Taylor, A. Hon, Asst. Criminal Dis- William Lee Paul, Atty., Livingston, Matthew trict Austin, of Texas. Atty., State’s for State

OPINION J.,

PRICE, opinion delivered the WOMACK, MEYERS, Court, in which JOHNSON, HOLCOMB, JJ., joined. appellant capital convicted of was reversed twice murder. His sentence was Supreme Court be- the United States pro- failed to cause the instructions give vehicle to effect to adequate vide an retarda- appellant’s evidence mental retrial, the During tion. the most recent instructions and a trial court submitted special issue that asked the mitigation appellant mentally to decide whether retarded, not, to “consider whether mitigating circumstance or cir- any other as defined herein.” cumstances exist error, point appel- his fifteenth instruction, giv- as complains lant en, jury’s giving effect to the precluded the impairment evidence of mental appellant’s to mental retarda- might not amount conclude that there is tion. Because we reasonable likelihood that II. Relevant Facts precluded from considering this circum- hearing appel- After evidence about the stance as of showing outside abuse, lant’s mental impairment, childhood retardation, we will reverse and life, background, home educational and the remand for a punishment. new trial on offense, jury circumstances of the the in

this case was to instructed consider four special issues.6 The trial court submitted I. History Procedural special the first three in issues accordance appellant was convicted of the 1979 with Code Criminal Procedure Article capital Carpenter murder of Pamela issue, 37.0711.7 In special the first the sentenced to death. affirmed We the con- jury appellant was asked whether the act- deliberately viction and sentence.1 ed The United States when he caused the vic- issue, tim’s death. In the Supreme special second appellant’s Court reversed the jury the was asked whether there is a jury sentence on the that the basis was not probability appellant that the would com- provided expressing with a vehicle for its mit criminal acts of violence that would response appellant’s reasoned moral to the continuing society. constitute threat mitigating rendering its sen- issue, special jury In the third the retrial, tencing appellant decision.2 On the asked the appellant’s whether conduct was convicted and sentenced to death killing the victim was unreasonable re- again.3 appellant’s We affirmed the sec- sponse provocation, any, by if the vic- ond conviction and sentence.4 The United jury tim. The answered these three issues Supreme States Court then reversed the yes. appellant’s sentence on the basis that the The trial court submitted the current trial court’s nullification instruction was statutory mitigation issue from Article internally inconsistent and still did not special 37.0711 as the fourth issue.8 In the provide jury give the with a vehicle to issue, special jury fourth was asked effect to its reasoned response moral whether, into all taking consideration appellant’s mitigating evidence.5 evidence, including the circumstances appellant punish- was retried on offense, appellant’s character and and, only, pursuant ment jury’s background, personal culpa- and the moral issues, special answers to the the trial bility appellant, there is a sufficient again appellant court sentenced the to mitigating circumstance or circumstances death. to warrant a life sentence instead death. State, (1985). R.S., 838, 2, Penry § 1. v. 691 S.W.2d 636 ch. 1991 Tex. Gen. Laws 2900. 302, 328, Penry Lynaugh, v. 492 U.S. 2. State, (1995). Penry 4. v. 903 S.W.2d 715 (1989) I). (Penry S.Ct. 106 L.Ed.2d 256 Johnson, 782, 804, 532 U.S. 1, 1991, September capital 3. Before mur- (2001) II). (Penry S.Ct. 150 L.Ed.2d 9 der cases that were reversed on basis of during punishment only, the cases were error copy special 6. A of the instructions and issues guilt punish- remanded for a new trial on that were is attached as an read legislature ment. The amended Code of appendix. Criminal Procedure Article 44.29 in 1991 to provide punishment only for a remand on 37.0711, 3(b). § 7. See Tex.Code Crim. Proc. Art. during pun- when reversible error occurred 17, 1991, 37.0711, 3(e). § May Leg., ishment. Act of 72nd Crim. Proc Art. SeeTEX.CoDE exist as defined regarding In its instructions the fourth stance or circumstances issue, lan- argues specific the trial court told the herein.” He that this party proof that neither had the likelihood that guage burden created a reasonable on the fourth and that jury applied issue the instruction such evidence, mitigating way appropriate should “consider consid- prevented any, juror constitutionally might regard appellant’s that a as reduc- eration of the im- [appellant’s] moral blameworthi- evidence of mental relevant ness.” The trial court then told the to the level of pairment did rise that mental retardation is a fac- retardation. establishing mental law, tor as a matter of and it defined argues statutory defi- The State jury retardation. The was in- evidence, read in mitigating nition when that, if it appel- structed believed that the tandem with the instruction to consider all retarded, mentally lant it should answer deciding when whether sufficient evidence yes. jury the fourth issue If the mitigating circumstances exist to warrant appellant mentally not found was sentence, a life was sufficient. For this retarded, jury to “fol- the was instructed proposition, the State cites Shannon v. previously giv- low the Court’s instructions State,10 statutory we held that the which concerning appropriate en herein the an- out mitigating definition of evidence as laid swer to Issue No. 4 and consider in Code of Criminal Procedure Article any other mitigating whether circumstance unconstitutionally 37.071 does not narrow or circumstances exist as defined herein.”9 jury’s mitigating consideration of evi- dence. But Shannon deals with the appellant objections spe- made several to generally cial not the jury charge, including objection specific an issues that, of this case. jury appel- if the concluded that the facts retarded, lant mentally jury was not Analysis IV. Law and could then mitigating consider as only circumstances other than mental im- juryA in a must be capital case pairment and mental deficiencies. given give appel to a vehicle effect constitutionally mitigating lant’s relevant The trial court overruled the appellant’s evidence.11 The states have discretion objection. deliberations, During its miti jury’s structure the consideration of jury answered the fourth issue no. evidence, off in gating “may but not cut presentation an absolute manner III. Arguments Parties’ evidence, by either statute or appellant complains that instruction, judicial by limiting the in jury considering was foreclosed from his quiries severely to which it is relevant so impairment evidence of mental that did not part that the evidence could never be jury establish mental retardation. The sentencing decision at all.”12 instructed, if appel it found that the retarded, mentally lant A cannot capital was not to “consid defendant estab simply by er violation whether circum- lish constitutional Texas, 350, 362, Emphasis 113 9. added. 12.Johnson v. 509 U.S. 2658, (1993) (quoting S.Ct. 125 L.Ed.2d 290 Carolina, 433, 456, (Tex.Crim.App.1996). McKoy U.S. 942 S.W.2d v. North (1990) (Ken- 110 S.Ct. 108 L.Ed.2d 369 I, J., concurring)). nedy, 492 U.S. at 109 S.Ct. 2934. demonstrating allegedly solitary erroneous do not sit isolation booths have or might instruction could parsing instructions for subtle shades of jury.. The hypothetical affected some Su- meaning way in the same lawyers Boyde preme explained Cali- might. among Differences them in in- that a must show that defendant terpretation fornia instructions there is a reasonable likelihood that the process, thrashed out in the deliberative applied challenged has instruc- understanding with commonsense way prevents tion in a the consider- light instructions in the of all that has constitutionally ation of relevant evi- place likely prevail trial taken at the Although dence. a defendant need not hairsplitting.13 over technical likely establish that was more Boyde, Supreme Court considered than in- impermissibly 'have been mitigat whether California’s “unadorned” instruction, capital hibited sen- (k) give factor permitted tencing proceeding is not inconsistent effect to the defendant’s evidence of his Eighth with the Amendment if there is mitigat This background and character.14 only possibility of such an inhibition. n juries ing factor asked California to deter standard, This “reasonable likelihood” “Any mine whether other circumstance think, we better accommodates the con- gravity which extenuates the of the crime finality accuracy cerns of than does though legal it not a for the even excuse inquiry a standard de- which makes Applying crime.”15 the standard above to pendent single hypothetical on how factor, Supreme the unadorned juror might “reasonable” could or interpreted the instruction.... Jurors held that the defendant 380-81, 370, (e) Boyde California, partici- 494 U.S. Whether not the victim was or (1990). pant in the defendant's homicidal conduct 110 S.Ct. 108 L.Ed.2d 316 or consented to the homicidal act. (f) Whether or not the offense was commit- Boyde 14. The trial court in submitted the fol- ted the defen- under circumstances which lowing jury: instruction to the reasonably jus- dant believed to be moral determining penalty In which is to be im- conduct. tification or extenuation for his defendant, posed' you [each] on shall con- (g) acted un- Whether or not the defendant sider all of the evidence which has been der extreme duress or under the substantial domination, during any part received of the trial of this person. of another case, [except you may as be hereafter in- (h) or at the of the of- Whether not time consider, You shall take into ac- structed]. capacity ap- fense the of the defendant to following guided fac- count and be criminality preciate the conduct or to his tors, applicable: requirements of conform his conduct to the (a) circumstances of the crime of The impaired mental law was as a result of which the defendant was convicted in the or or the affects of intoxi- disease defect any present proceeding existence of and the cation. to be true. circumstance[s] found (i) age. at the time of The of the defendant (b) presence The or absence of criminal the crime. activity by the defendant which involved the (j) was an Whether or not the defendant attempted use or use of force or violence or accomplice partic- and his to the offense expressed implied or threat to use force ipation in the of the offense commission or violence. relatively was minor. (c) presence any prior or absence of (k) Any which extenu- other circumstance felony conviction. though gravity even it ates the of the crime (d) Whether or was commit- not offense legal excuse for the crime. ted was under the in- while the defendant Id. at 373 n. 110 S.Ct. 1190. fluence of extreme mental or emotional dis- at 110 S.Ct. 1190. 15.Id. turbance. (k) case and decide whether through factor dence opportunity had an argue background any and character there are other kinds that his you serious- believe reduces “extenuated” “excused” the this case there crime, culpability ness of the and we see no reason moral for commis- this man’s jurors crimes, to believe that reasonable would whether it’s child sion of these view, “long by society,” abuse, illness, resist the held whatever.” such evi- appropriate case evidence, victim-impact the context imposition dence would counsel of a sen- jury, impor- “And that’s the State told the tence less than death. The instruction mitigation question, tant to that because not, petitioner suggest, did as seems to question you asks to con- mitigation jury’s “any limit the consideration sider all the evidence and also asks other circumstance of the crime which of- to consider the circumstances of the gravity extenuates the of the crime.” Defendant.” fense and the character any was directed to consider might other circumstance that excuse explain- Defense counsel came close to crime, certainly which includes a jury should consider the evi- ing how the background defendant’s and character.16 dence, of the trial court’s in- light but argument, structions and the State’s this is (k) glance, Boyde At first factor problem. not sufficient to correct the very given seems similar to the instruction Here, appellant’s in the case. suggest you, respectfully, But also we instructed to consider that there are circumstances circumstance or circumstances when an- in this case that reduce his moral blame- swering the fourth issue de- after deficiencies, His mental call worthiness. termining appellant that the was not men- want, you it whatever mental retarda- tally This retarded. situation is different tion, borderline, everyone agrees, even Boyde from because the instruction to con- witnesses, very is a the State’s this slow “any sider other circumstance or circum- not simply man. His brain does work jury stances” excludes what the had al- way yours and mine do. ready impairment considered: mental arguments explicitly not parties’ The did not to did rise the level of mental retarda- jury inform the that it should reconsider circumstance, tion. jury This even if the appellant’s impairment when concluded that the appellant is not mental- considering the fourth issue if it retarded, ly double-edged is the kind of appellant that the was not men- concluded jury circumstance should be able tally retarded. to consider within the context of miti- gation special issue.17 Because there is a reasonable likelihood parties’ arguments jury

The to the did jury give believed that it could not up not clear this told confusion. State impairment, outside of effect to mental jury tending appellant to that the is men- show retarded, in in- mentally tally “If don’t re- the trial court erred believe he’s tarded, job your complete structing is not on that to “consider whether discussed, or cir- fourth issue. As we circumstance as herein.” you still have to look at the other evi- cumstances exist defined I, 17. See 492 U.S. at 109 S.Ct. Id. at 110 S.Ct. 1190. appreciate objection We that the trial court had first to used a timely when is be once found itself in a difficult again posi- charge; made to the the second to be used trial, tion. During Supreme this objection when no such appears opinion Virgi- handed down its Atkins v. record.21 nia, holding that executing people who mentally Eighth are retarded violates the The first standard dictates -that Amendment to the United States Constitu- reversal should occur if the defendant legislature tion. The has not modified the timely objection made a and if the error is statutory special issues within Articles injure rights to “calculated of the de 37.071 and a special 37.0711 include fendant.” have interpreted We issue on mental retardation. The trial mean that there must be some harm to the might court it not have believed that was defendant from the error.22 Properly pre permitted separate special is- submit jury-charge requires served error reversal solely sue on mental retardation.19 unless is harmless. Although may sympathy we for the timely If the not defendant has made position, trial court’s we conclude that standard, objection, apply we the second there is a reasonable likelihood that permitted believed that it was not required and reversal unless he has impairment consider mental outside of de- not had fair trial.23 termining appellant whether the is mental- appellant in this case did make a result, ly retarded. As a the instructions timely objection charge, to the so we will in this case fell short of the constitutional apply the first standard and reverse unless requirement provided the error is harmless. Because we have give vehicle to effect to its reasoned moral already concluded that there is a reason- response appellant’s cir- able likelihood that the believed cumstances. permitted it was not to consider evidence Analysis Y. Harm impairment of mental outside of determin- mentally whether the re- appellant Under Code of Criminal Procedure Arti- tarded, 36.19, the error we cannot conclude that cle we will not reverse conviction jury charge result, of or sentence on the basis was harmless. As a the error is appearing error “unless the error from the reversible. injure rights

record was calculated to defendant, appears or unless VI. Conclusion the defendant has not had a fair and im- trial court erred in We conclude that the State, partial trial.”20 Almanza v. we mitigation spe- instructing on the language created have concluded this separate harm-analysis two standards: cial issue and the error was not harm- 304, 321, 2242, 18. 536 U.S. S.Ct. 153 20. 122 Tex.Code Crim. Proc. Art. 36.19. (2002). L.Ed.2d 335 State, 157, v. 686 S.W.2d 21. Almanza McPherson, 19. But see State 851 S.W.2d (Tex.Crim.App.1984) reh'g). (op. on 846, (Tex.Crim.App.1992) (noting 849-50 "grappled application this Court had with the ” Ibid. time; upholding for some the sub- extra-statutory special mitiga- mission of an Ibid. issue). tion appellant’s sentence less. We reverse punishment for a trial.24

and remand new delib- you that when You are instructed Issues, you are to Special

erate on the KELLER, J., dissenting P. filed a circum- all relevant consider COCHRAN, J., joined. stances, by in the evidence opinion any, supported which if A cir- in the trial. presented COCHRAN, J., dissenting filed include, limited is not cumstance but KELLER, P.J., in opinion, which to, charac- of the Defendant’s any aspect HERVEY, JJ., joined. KEASLER ter, or circumstances background, you could make a crime which believe case, in inappropriate this Appendix death sentence you mitigat- if If find that there are any. 10,222, This is cause No. the State case, you must ing circumstances this Johnny Penry. Texas versus Paul In the deserve, they weight decide much how Texas, County Polk District Court of 258th to them in any, give and thereafter effect Judicial District. culpa- assessing personal the defendant’s Charge of the Court. you Special bility at the time answer Issues. Defendant, jury, Members of the

Johnny Penry, previously Paul has been Three, Special Roman Numeral Issues guilty capital found of the offense of the 1, Jury is instructed Number and 3. The Carpenter, “yes” murder of Pamela which was verdict of or “no” return 1, 2, 25, Issues No. No. and No. 3. by Special committed him on or October about 1979, County, in Polk Texas. It is neces- “deliberately,” Spe- as used in The word sary now for to determine from all the doing cial No. means a manner of Issue the case the answers to certain resulting or from an act characterized questions called Special Issues consideration, a conscious decision careful you further, Charge. The Court instructs thought process which em- involving however, as follows. engage than mere will to braces more conduct. One, Roman range punish- Numeral proof as to Issue The burden of mandatory punishment ment. The upon 2 and No. rests No. No. capital murder is death confinement never shifts to the Defendant. State and the Institutional Division of the Texas De- beyond a prove must reasonable State partment of Criminal Justice for life. of these doubt that the answers to each Two, Roman Numeral consideration of However, “yes.” Special Issues should be determining evidence. In the answer an required prove not that the State Special you Issues shall consider all of beyond to these issues affirmative answer you the evidence submitted to this trial. that the required all doubt. It is State’s Further, you shall consider all evidence con- all reasonable doubt proof excludes you during submitted to the trial as to the of cerning an affirmative answer to each background character or of the Defendant you these three issues. the event or the of the offense that circumstances an affirmative a reasonable doubt as to impo- or after con- mitigates against militates for to one or more these answer you before and sidering all of the evidence penalty. sition of the death error,, appellant's appellant's not address we we need Because have reversed points point of error. sentence on the basis of his fifteenth other nineteen 790 instructions, you

these person will answer the is- is—that the Defendant is a retardation, person you or with mental then sue issues “no.” shall follow the previ- Court’s instructions you You are therefore instructed that ously given concerning appro- herein 1, Special not answer Issue No. No. 2 priate Special answer to 4 Issue No. and “yes” or No. jurors 3 unless all unanimous- any consider whether cir- ly agree beyond a reasonable doubt. Fur- cumstance or circumstances exist as de- ther, you may not answer of these fined herein. three issues “no” unless ten jury may Special not answer Issue jurors agree. more jurors No. 4 “no” all agree unless unani- Four, Roman Special Numeral Issue No. mously. jury may “yes” answer 4. You are further instructed that if the jurors to this issue unless ten or more 1, 2, Special answers Issue No. No. agree. then, then, “yes” and No. only and Five, Roman Numeral effect of answers Special shall answer Issue No. 4. The Special Issues. You are instructed that Special will answer Issue No. 4 either you 1, 2, if Special answer Issues No. No. “yes” or “no.” There is no burden of proof “yes,” you and No. 3 answer Special upon the State or the regarding Defendant “no,” issue No. then the shall Special Issue No. 4. The shall consid- sentence the Defendant to death. evidence, er mitigating any, juror if that a you You. are further that if instructed might regard reducing as the Defendant’s 2, Special answer Issues No. No. No. 3 moral blameworthiness. “yes,” and No. then the Court shall You are instructed that mental retarda- sentence the defendant to' confinement in tion is mitigating factor as a matter of the Institutional Division of the Texas De- as, (A), law. Mental retardation is defined partment of Criminal Justice for life. significantly subaverage intellectual func- Furthermore, you are instructed that tioning, IQan of approximately 70 or be- you answer Issues No. No. on individually IQ low administered is, negative, No. 3 an answer of test; (B), impair- concurrent deficits or issues, “no” to one or more of these then i.e., ments in present adaptive functioning, the Court shall sentence defendant to person’s effectiveness in meeting the confinement the Institutional Division expected standards age by his or her for the Texas Department Criminal Jus- group his or her cultural in at least two of tice for life. Communication, following areas: self- Six, special Roman Numeral instruc- care, living, social/interpersonal home During your you tions. are deliberations skills, resources, community use self- any possible not to nor discuss consider direction, skills, work, functional academic Paroles action of the Board of Pardons and leisure, health, (C), safety; Department division of of Crimi- the Texas years. onset is before 18 long nal Justice or the Governor or how required Defendant will to serve to

Therefore, you are instructed that if satisfy imprisonment. of life sentence believe from all the evidence that the De- person fendant is a with mental retarda- you You are further instructed that are tion, you then are instructed to answer sentiment, by not to con- swayed be mere However, “yes.” Issue No. if jecture, pub- sympathy, passion, prejudice, you opinion public feeling. do not believe from all the evidence lic or Occasionally during deliberations You are instructed that a Defendant testimony present- dispute arises as to testify in own if he chooses may his behalf case, you occur in this ed. If this should This, however, privilege is a to do so. request and inform the Court shall Defendant, and in the accorded to the disputed of portion read the the Court so, not to do that fact will event he elects tran- from the official testimony you by you a- circumstance not be taken as script. any way. in prejudice him nor him against you After re- Roman Numeral Seven. not the Defendant has elected this case room, one you shall select tire to the you are testify you and instructed your foreperson. It is your of members as not to or allude to cannot and must refer at preside duty his or her to deliberate —to throughout your deliberations nor that fact deliberations, you, with and to your vote any purpose it into consideration for take by using appro- verdict certify your against a circumstance whatsoever as herein, signing included priate forms Defendant. foreperson. the same as that if there Your are further instructed any authority to communi- No one has any you before in this case you except evidence the officer who has cate with During your you charge. deliberations having commit- regarding the Defendant consider, case, you must not dis- in this offenses, any, an offense or if ted cuss, any nor matters not evi- relate than the offense for which he has been not consid- you. You should dence before to-wit, convicted, capital murder knowledge or any personal er nor mention Carpenter, you Pamela cannot consider you may any have about information you any purpose this evidence for unless connected with this case person or fact proof find and believe there is clear by not shown the evidence before which is the Defendant committed such other of- you. offenses, committed, any or if fense were jurors to consult with your duty It is as you may only and even then consider the to deliberate with a view one another and determining same in the answers to the agreement, you if can so reaching Special Issues. judgment. to individual without violence the case for you Each of must decide you Your are instructed that if heard only impartial so after an yourself, but do testimony expert from that was witnesses your with of the evidence consideration not admitted supported delib- jurors. your In the course of fellow trial, of this you during before the course erations, not hesitate to re-examine do only considered for the those facts shall change your opinion your views purpose explanation support erroneous, but do not sur- it is convinced opinions or conclusions expert’s such as to the your honest conviction render the truth they not be considered for shall solely because weight or effect of evidence of the matter asserted. jurors or for your fellow opinion of the returning a verdict. purpose the mere facts judges the exclusive You are credibility of witnesses proved, of the retired, you commu- you After testimony. weight given and the to be their through writing nicate with this Court in these you But it is the law shall receive you charge. Do the officer who has gov- you instructions and will be to the officer who has attempt written to talk Court, or attorneys or the thereby. charge, or the erned anyone concerning any questions you else to Special “yes.” this Issue is And a line Following arguments have. the of provided Or, for foreperson sign. the to counsel, the you will retire to consider we, jury, jurors the because at least ten your verdict. have a doubt toas the reasonable matters inquired Issue, about in this Special find form, Special

Verdict Special Issues. and determine that the answer to this Issues, Issue verdict forms. Special Special Issue provided is “no.” And a line your with forms for answers are as follows: foreperson for the sign. to Special Issue No. 1: Was the conduct of Defendant, the Johnny Penry, Paul the event that the has answered caused Carpenter, the death of Pamela the Special Issue No. Special Issue No. 2 deceased,- deliberately committed and with Special affirmative, Issue No. 3 in the the expectation reasonable that the death then, then, only does the answer of the deceased would result? Answer: Special Issue No. 3 that Special follows. We, jury, unanimously the find and deter- Issue No. 4: Do find from the evi- beyond mine a reasonable doubt the dence, taking into consideration all of the answer to this Special “yes.” Issue is An a evidence, including the circumstances of provided line for foreperson sign. the to the offense the Defendant’s character and Or, we, jury, ju- the because at least ten background, personal and the moral culpa- rors have a reasonable doubt as to the Defendant, bility Johnny Paul Pen- inquired matters in this Special about Is- that, ry, these is sufficient sue, find and determine that the answer to circumstance or circumstances to warrant this Special Issue is “no.” And line that a life—that a sentence of impris- life provided foreperson sign. for the to onment rather than a death sentence be Special probabil- Issue No. 2: Is there a We, imposed. jury, Answer: the unani- Defendant, ity Johnny Paul Pen- mously find that the to Special answer this ry, would commit criminal acts of violence Issue is provided “no.” And line for the that would constitute a continuing threat Or, we, foreperson to sign. jury, find We, society? to jury, Answer: unani- jurors because at least ten find that there mously find beyond and determine a rea- sufficient circumstance or cir- sonable doubt that the to this Spe- answer cumstances to warrant that a sentence of cial “yes.” Issue is And a provided line life imprisonment rather than a death sen- Or, we, foreperson sign. to jury, tence imposed, find that the answer to jurors because at least ten reason- Special “yes.” this And a line Issue inquired by able doubt as to the matter provided foreperson sign. for the to Issue, Special this find and determine that Special answer Issue is “no.” After this each of the has answered provided presiding juror And a line for the Special under Issues the conditions sign. above, foreperson instructions outlined Special Issue No. 3: Was the conduct of sign shall the verdict for below. Defendant, Johnny Penry, Paul in kill- We, jury, open Verdict: return in deceased, Carpenter, Pamela un- above answers in response provocation, reasonable us, Issues submitted to and the same is We, any, by the deceased? Answer: provid- our verdict this case. And a line jury, unanimously find and determine be- foreperson sign. ed for the yond a reasonable doubt that the answer

793 KELLER, Penry progeny. in I1 and its P.J., dissenting lished filed contention, cites COCHRAN, J., of this the Court joined. support in opinion which the Boyde v. and discusses California2 case, issue mitigation special In this the ambiguous that an instruction proposition jury language to the tracked the submitted his constitutional a defendant of deprives statutory That broad- of the statute. issue likeli if there exists reasonable rights any mitigating circum- ly encompasses the jury applied instruction hood might stance that reduce a defendant’s mann constitutionally impermissible in a in- including moral low blameworthiness — er.3 not sink of telligence that does to the level particular passage opin- that I find in- court’s mental retardation. trial here, relevant and while is ion to be concerning the issue did structions I quotations, in one of the Court’s included the suggest regard not otherwise. With to apprehend the Court has failed believe us, question before those instructions sim- significance to the case at bar: its First, jury of two ply apprised things. the solitary jury informed that do not sit in isolation the instructions the Jurors automatically parsing mental satisfied booths instructions for subtle retardation requirements way in the same that mitigation meaning the shades Second, lawyers might. among issue. the instructions informed Differences that, jury interpretation if mental retardation were them instructions found, jury should be thrashed out the deliberative consider other re- understand- process, circumstance believed with commonsense light duced a moral all that ing defendant’s blameworthi- instructions give place likely ness and it whatever taken at the trial weight the has intelligence deemed Low over appropriate. prevail hairsplitting.4 technical that does not sink level of mental people Most understand differences de- retardation other than circumstance that such differences gree impact trial mental retardation. Under have on whether a certain action is manda- instructions, have, court’s could subject tory or to discretion. When to, required but was not that this decide says instruction that mental retardation circumstance had value suffi- automatically but circum- by itself, cient or in combination with other discretion, can, in jury’s stances factors, imposition to warrant the of a life mitigating, sug- common considered sense sentence rather than the penalty. death that other circumstances in- gests would intelligence clude deficits are less se-

The trial court’s did not instructions vere than retardation. (statutory misstate the law constitution- al), sug- interprets does not The Court the instruction Court seem Rather, indi- “other” circumstances as direct- gest otherwise. the Court consider ambiguous jury away from the matter of cates the instructions were does way reasonably likely intelligence altogether. in a to have that was jurors something believing by concluding misled the into so would requirements exclude inconsistent with the estab- reason “other” circumstances 380, 302, Lynaugh, U.S. S.Ct. id. at S.Ct. 1190. 492 109 3. See 110 (1989). 106 256 L.Ed.2d 380-381, at S.Ct. 1190. Id. 2. 494 U.S. 110 S.Ct. 108 L.Ed.2d (1990).

those based on the same evidence as a splitting upon cir- distinctions based most the they already cumstance fragile have considered. grammatical the foundations. As But approach the Court’s tends to confuse Supreme has explained,5 Court such con- “circumstances” with “evidence.” Those by duct jury likely the is not to reasonably two terms are not the same and there is have occurred. jurors no reasonable that likelihood the I think the trial court’s instruction rea- equate would The fact them. is that the sonably conveyed jury to the finding that a charge jury instructed the to consider all of mental required retardation an automat- the in determining the issue of “yes” ic mitigation answer to the mental If the jury retardation. followed circumstances, issue but that other includ- then, that instruction in accordance ing low that intelligence qualify did not as with the reasoning by attributed to it the retardation, mental con- were available for Court, upon excluded circumstances based pas- sideration. I would reference another evidence, the same it then would necessar- sage in Boyde opinion espe- the that seems ily circumstances, regardless all exclude cially appropriate the case at bar: of whether those circumstances related to is, course, “There strong in policy intelligence, already as it had been in- favor of ap- accurate determination of the structed to consider all the evidence in propriate case, in a capital sentence but connection with its earlier mental retarda- there is an equally strong policy against tion Obviously, determination. the jury years retrials after first trial where can expected be understand that may to claimed error amounts to no more than well be called upon particu- to consider a speculation.”6 Appellant already has been at multiple points lar item of evidence sentenced to three death times the same its That understanding deliberations. case, time, abundantly and the third it is surely charge buttressed the fact that every clear that court made the trial effort jury instructed the consider all to the evi- comply to scrupulously with all of the Su- dence connection with all the preme pronouncements. The Court’s n issues. reversal, sending Court’s the case for suggesting that the punishment upon hearing, is based fourth “other language circumstances” would lead speculation jury might read that the have to look for the evidence that was something charge into the predominantly relevant the issue of there.

mental retardation and exclude consider- I respectfully dissent. ation other issues which that same predominantly evidence was relevant. Or COCHRAN, J., filed a dissenting perhaps suggesting Court is KELLER, P.J., opinion in which jurors would look to the nature of the issue KEASLER, HERVEY, JJ., joined. intelligence and decide that various issues enough join Judge all I Presiding were similar constitute a Keller’s dissent- single ing opinion to be I do not “circumstance” considered because think solely probability within the umbrella of the there is a reasonable However, trial, spe- inquiry. types particular given retardation those this suggestions to the cific these attribute will- evidence and advocates’ excel- ingness engage closing arguments, “applied in technical and hair- lent chal- at380, supra. See llOS.Ct. 1190. footnote 494U.S. understand would —with a ‘common-sense way prevents instruction in a lenged constitutionally of all light consideration of rele- of the instructions ”5 Thus, vant evidence.”1 at the place that has taken trial.’ beyond must four corners we look so, jurors have certainly could done themselves instructions would they but I cannot conclude that content conduct of trial. actually And done so or did do so. it is “could,” “would,” distinction this between solely to answer jury This was selected that is heart of and “did” at the the Su issues in a death punishment the Boyde.2 preme Court’s discussion jury more than penalty case. The heard jury possibility is a that the felt There fifty during the course of the witnesses considering appel from precluded itself of that primary four week trial. The focus of as being lant’s evidence mental slowness trial was the character and conduct the “other” circumstances that among his life. Johnny throughout Paul his mitigate culpability. would moral But one and ver- presented The State vision Boyde requires showing the of “a reason a who sion him: he was bad seed able likelihood” that the felt so res sprouted He was poisonous apple. into a are confronted "with a claim trained.3 We not, witnesses, the according to State’s instruction, though a that errone mentally mentally defective. retarded ous, sufficiently to be ambiguous “sub 4 did He was a “slow learner” he because ject interpretation.” to an To erroneous He not want to learn. had a “difficult instruction, evaluate this we should not imperfect raised by childhood” and was in a engage parsing technical its lan But, instead, mentally accord- mother who was ill. guage; “approach we must the State, very way in that that “she had a instructions same the also 370, 380, California, Boyde legal 1. question.” v. 494 U.S. 110 federal Id. formulation 1190, (1990). a upon settled was: "whether there is reason- S.Ct. 108 L.Ed.2d 316 jury applied chal- able that the likelihood lenged way prevents in a that 379-80, instruction 2. Id. at S.Ct. 1190. Su- 110 constitutionally relevant evi- consideration of "[tjhe preme forthrightly Court admitted 380, dence.” at 110 S.Ct. Id. 1190. legal reviewing jury for standard instructions jury’s impermissibly to restrict a claimed con- 225, 236, Angelone, 120 3. Weeks 528 U.S. v. sideration relevant evidence less than 727, (2000) 378, (citing S.Ct. 145 L.Ed.2d 727 our at 110 clear from cases.” Id. S.Ct. mitigat- Boyde, holding death-penalty and The Court stated that in one 1190. case "[tjhe ing-evidence instructions were constitutional- question ... is ... had said what McGuire, adequate); ly also 502 see Estelle juror reasonable could have understood the 62, 475, 74-75, S.Ct. L.Ed.2d (citation omitted). U.S. 112 116 meaning.” charge as Id. "[wjhile (1991) (stating that the instruc- 385 another case it had referred to both But in " been, might tion as clear as it was not juror a reasonable “could have done what ” not a likeli- 379, we find that there is 'reasonable and what he "would have done. Id. at hood’ would have concluded that (citation omitted). 110 S.Ct. 1190 In still instruction, read in the of other context case, phrased Court matter as another instructions, propensity authorized the use of probable whether it is that “reasonable men simple”). pure and meaning might derive a from the instructions meaning.” given proper other than Id. Weeks, (Ste- omitted). at 727 (citation 528 U.S. 120 S.Ct. Boyde, Supreme vens, J., dissenting). "[ajlthough concluded that there great among these not be differences various Texas, 350, 368, upon 113 phrasings, important it is to settle 509 U.S. Johnson v. (1993) (quoting L.Ed.2d single formulation this Court other S.Ct. 125 290 1190). deciding Boyde, employ U.S. at 110 S.Ct. this kind of 494 courts Therefore, problem very early you child here at age, are that if instructed young capital growing you murderer was from believe all the evidence that up educationally her midst.” He person is a with Defendant are, socially child, deprived but as a he was retardation, you then instructed to “faker,” also a a “manipulator” with “an “yes.” Special answer Issue How- No. personality”. anti-social He had unrepent- ever, do not from you believe all the before, edly sent to raped prison and was is a person evidence that Defendant because his victim—left alive—could iden- retardation, with mental then shall tify again, him. When he raped he was previous- follow Court’s instructions enough shrewd to kill his victim so she ly given concerning appropri- herein identify could not him and have him sent answer Issue No. ate prison. back to Whatever his educational consider whether deficiencies, enough he was smart” “street circumstance circumstances exist as fully morally to be and culpa- accountable defined herein. capital ble his for crime. potential ambiguity The is then whether presented entirely The defense an dif- that, there is a reasonable likelihood once Johnny ferent version of him: Paul jurors unanimously concluded that pitiable man with severe mental Penry “mentally wad'not retarded” as that “history of impairments and a severe and (erro- defined, legally they term had been and sustained child serious abuse and tor- neously) they that could not con- believed ture.” He was at an diagnosed early age any concerning sider of his placed with mental retardation and in a is, ju- mental did “slowness.” That these class mentally for the retarded. they rors think prohibited that were from of receiving support Instead and love of continuing to consider the evidence his deficiencies, his mental his mother treated progress, lack of educational his indisput- him, him up “like animal.” locked She ably I.Q., low and the wealth of evidence room, him, in beat repeatedly his threat- concerning impairments “deficits or knife, ened him with a butcher and made present adaptive functioning” the areas him his eat own feces he because had “[cjommunication, self-care, of living, home According brain.” “broken defense skills, of communi- social/interpersonal use bad, counsel, just “He’s not mean and ty resources, self-direction, functional aca- through. and He through wants to im- skills, work, leisure, health, demic prove himself. He have much doesn’t age safety” eigh- before the of existed

work But he to.” These with. wants were so, If fourth answering spe- teen? “mitigating circumstances this case that issue, jurors ignored cial have would reduce moral blameworthiness.” majority the vast of admitted the evidence during lengthy this trial. testimony weeks Four of trial circled Johnny around the Paul intersection unlikely It manifestly seems Penry’s culpa- mental and moral abilities said, single juror protested and would have bility to what his mental extent “slow- “Wait, that same surely we consider deplorable ness” was related to his child- deficiency evidence of level of mental some hood. Johnny Penry’s Paul slow how character, potential ambiguity upbringing, in- ness his affected word, single conduct, At least culpability?” struction caused “oth- and moral er,” been ex application jurors might reasonably within in- have contained judge pected for the fourth issue: out a note to struction send they had requesting ques clarification Christopher Ex SMITH. Parte Jason concerning meaning word

tions in this “other” context.6 No. PD-0616-04 any of such a note or absence Appeals Texas. Court of Criminal jurors sign they did not from the Oct. expected of them understand what was 7, 2005. Rehearing Denied Dec. happened: suggests things that one two agreed all that “other” did exclude they of all

consideration mental-slowness evi- all they agreed that did not. dence or they ig- But to conclude that would have nored the mental-slowness evidence would them required ignore content every in the in-

and tenor of word except structions “other.” The word gist common-sense Issue Num- simply ber “If Four is this: believe why reason there credible executed, you man should not be must vote imprisonment.” To conclude that it life likely” “reasonably that this did get message one to assume requires they mentally all were slow.

Instead, it is a reasonable likelihood that juries, jury, previous like two be- lieved that State’s version vision of Johnny culpabili- Paul his moral ty a more one than that compelling was

presented by the defense. And right their to reach that conclusion based upon all of evidence and common- reading

sense instructions. would, information, Toler, they might, Armstrong probably 24 U.S. See (1826) Court."). (opinion of Wheat. 6 L.Ed. 468 desire signified their Marshall, J.) (“Had juiy desired C further

Case Details

Case Name: Penry v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Oct 5, 2005

Citation: 178 S.W.3d 782

Docket Number: AP-74445

Court Abbreviation: Tex. Crim. App.