Richardson v. State
886 S.W.2d 769
Tex. Crim. App.
1991
Check Treatment

*1 rulings tunity which reconsider independent of action for An cause proceeding light complains this negligent with the familial rela relator interference Accordingly, addressing the tionship employer an held allow of R.K. without conduct, prejudice employee’s petition and without responsible for an even merits of the again from though employee respon requesting is shielded from relief party to either sibility conduct 4.06. Ex after the appeals for that section and this Court the court of liability posing employers opportunity this form had an to recon- trial court has grant Ac conditionally would be inconsistent with section 4.06. rulings, we sider its majority grants cordingly, a of this Court appeals to vacate writ court and direct error, application for writ of order, Petitioner’s trial and the court its pursuant Appellate Texas Rule of Proce Tex. 1994. vacate order March its R.App.P. argument, hearing dure oral without mandamus will 122. The writ of appeals reverses the of the court of unlikely they only in the event do issue summary judg the trial and affirms court’s do so.

ment of Helena Labs. favor Appellant, Miguel RICHARDSON, A.

J.P., M.D., Relator, Texas, Appellee. STATE APPEALS, COURT OF FIRST Chambers, Eugene Judge the Honorable No. 68934. Court, of the 215th District Harris Coun Texas, ty, Appeals of Respondents. Court of Criminal En Banc. No. 94-0246. 12, 1991. June

Supreme Court of Texas. Rehearing Sept. Denied 1991. Nov. (Pemberton), Austin, Margare Uhlig

relator. Pullara, Gallagher, A. Michael A.

Kathleen Riedmueller, Dubanevich,

Norman Keith S.

Houston, Patterson, Worth, Fort Rod

respondents.

PER CURIAM. original proceeding rela mandamus protecting of an men

tor seeks review order discovery.

tal health from Both records appeals

trial court and the court of rendered writing in R.K. v. prior to our decisions — (Tex.1994).

Ramirez, S.W.2d - oppor-

believe trial court should have *2 special verdict issues or to the Texas

vant to the defendant’s moral that had relevance beyond questions. Penry, 492 verdict of instruc- 2949. In the absence 109 S.Ct. at *3 juiy informing the that it could consid- tions give mitigating evidence to the er effect Penry’s and abused of mental retardation by declining impose the death background Supreme that penalty, Court concluded the express its jury not have a vehicle the did sentencing response” moral its “reasoned Antonio, Cazier, B. Ro- Steven Allen San 326, Penry, 109 492 U.S. S.Ct. decision. senfeld, City, appellant. for New York writing for the at 2951. Justice O’Connor Atty., Rodriguez, Former Dist. Fred G. that: majority emphasized III, Burris, Shaughnessy, F. Keith Edward precisely is the “[I]t because Bruner, Hilbig, Daniel James L. Steve directly personal related the should be Antonio, Thomberry, Attys., Dist. San Asst. the of defendant that Huttash, Austin, Atty., for the Robert State’s give consider and effect must be allowed to State. to a mitigating evidence relevant defen- record or the circum-

dant’s character or than creat- stances of offense. Rather ing unguided of an re- risk emotional FROM THE OPINION ON REMAND sponse, of full consideration evidence THE SUPREME COURT OF mitigates against penalty the death es- STATES UNITED give a ‘reasoned sential if the MeCORMICK, Judge. Presiding defendant’s back- response moral ” Richardson, character, (empha- A. con- Appellant, Miguel ground, and crime.’ was (citations omitted) Penry, capital penal- original) the death in victed of murder and sis ty This assessed. Court affirmed 109 at 2951. S.Ct. holding part in conviction Franklin v. analysis will also consider Our trial in refus- contention that the court erred 2320, 164, 108 101 Lynaugh, 487 U.S. S.Ct. mitigation

ing requested charges (1988) (plurality opinion) and L.Ed.2d 155 State, v. 744 merit. Richardson S.W.2d Carolina, 1, 106 Skipper v. 476 U.S. South 65, (Tex.Cr.App.1987). (1986). think it 90 L.Ed.2d We S.Ct. challenged Appellant holding in our the time appropriate to consideration to Supreme That Court of the United States. been “miti- has termed when evidence Court, 3235, 106 109 S.Ct. White, writing for gating” occurred. Justice summarily granted appellant’s Franklin, specifically in re- plurality certiorari, petition of vacated writ discussing Skipper the rele- ferred when of remanded the this Court and disciplinary record. He prison vance appellant’s allegations case to us consider wrote: light Penry in 492 U.S. “Indeed, in Skipper discussion our 106 L.Ed.2d 256 disciplinary relevancy of such record evi again affirm the conviction.1 sentencing decisions dealt dence in how such exclusively with the Supreme the United States likely on a defendant’s petitioner’s mental retar- evidence reflects Court held that [S]kipper’s discussion history abuse future behavior.... dation and of child constituted prison proper use of a defendant’s was not rele- either point order. Court’s remand 1. We review second will It is outside the error.

disciplinary jury’s record in sentencing Nevertheless, incarceration. the character precisely quality focused way testimony decision on the remotely is not encompassed which related to kind of prompted such evidence is dangerousness question, Texas reversal case. fixture has posture attempted to previous testimony the Cowart the Court’s decision Jurek.” Franklin, lifelong qualities indicative of some U.S. at 108 S.Ct. at Penry charge. how him entitle to a We do agree and see Cowart’s We will now consider whether the than an appeal “sympathy more lant is correct his contention that or emotion.” See presents is, fact, evidence he evi- 837, 841, 93 L.Ed.2d 934 dence and whether a instruction (1987) (O’Connor, J., concurring). Appellant *4 granted should have been that so point also fails to out that Cowart asked could have made a “reasoned moral re- disposition about appellant. Cowart sponse” answering our issues. The testified: appellant’s that evidence falls “Q. you Have ever him known to abe is Franklin evi- under ambit of violent individual? dence, or has no value at all in the No, “A. sir. context of his murder “Q. you him Have ever to observed phase. temper? an uncontrollable Appellant has grouped he what wishes us Any “A. No. time I’ve been around him “mitigating consider evidence” into five always happy go he’s been of a kind categories for our consideration. The cate- lucky person. I’ve never seen him gories are: down. I’ve never him seen even (1) Voluntary service and kindness to oth- perturbed slightly anything.” about ers; Considering testimony Cowart’s as a whole (2) devotion; Religious disregarding patent and appeals sym- (3) talent; poetic and Artistic pathy and emotion based on the witness’ (4) ties; Family and alleged disability, we hold that had (5) abuse; opportunity Childhood mental and emotion- effect Cowart’s impairment. testimony through special al number issue two regarding dangerousness. See willWe now examine the evidence under Franklin, 487 U.S. at category light each and Frank- lin. Cynthia Lee took the stand and relat Denver, ed that she awas resident of Colora

VOLUNTARY AND SERVICE appellant do who known had four or five KINDNESS TO OTHERS years. appellant lounge Lee met in a after Linda Cowart bumping testified that she met into him. Lee testified that she appellant at a Sambo’s restaurant appellant they had never gone dated but Denver, outings Colorado. Cowart on characterized to the mountains. fo relationship their “friendship” as a and portion testimony that cuses on the of Lee’s they “people going by, talked about appellant’s relationship cars describes with Karen going Cracken, up down and the street.” This Craeken. rela Lee described a fourteen old, tionship appellant year coming continued after was incar from a troubled back ground cerated in Denver. suffering Cowart also testified and as from mental and physical problems. appel she suffered from diabetes and Lee stated losing calls, letters, eyesight. phone drawings result was her poet She com lant’s and appellant expressed ry gave mented perspective concern on Craeken different over appellant her medical condition letters life. and What the brief does not point appellant conversation. record is not clear on out is that never met Cracken appellant’s relationship whether concern for face to Cowart’s vi face and the that is de problems sion occurred before or after scribed place his took within the time frame of Richardson, Paquita appellant’s ability. sis- We have several appellant’s incarceration. ter, poet. was a Ka- testimony. testified that on of Lee’s thoughts the value minister, belitz, boyhood also of- appellant’s physi- focus appellant’s consider We artistic abilities of fered friend” as cal mental condition “his and appellant. Kabelitz testified attempt transparent more than ability on occasion would lant had artistic pur- “sympathy” bring evidence under drawings of a appellant’s which were receive purposes Amendment for view Cowart, friend religious nature. also a Penry charge. appellant, that she had received mentioned damaging Even asser- more envelopes drawings small outside of testimony him tion entitles to a that Lee’s by appellant. poetry” “some had read charge testimony is the from Lee that minister, Bernard, also testified that another person. a nonviolent On direct appellant was appellant could draw. exchange following examination the occurred: reject appellant’s contention personality Miguel “Q. type of does What establishes offered have? “significant poet. Pen worth” as an artist just jolly. Very real pleasant “A. least, appears to demand ry, at the know, You he to know what is wants lifelong arts demonstrating dedication *5 him. going on around gain status as poetry order “Q. you him to a Have ever observed be mitigating Amendment evidence. violent individual? (discussing 109 S.Ct. at 2950 U.S. at “A. Not at all. No. afflictions). petitioner’s severity of If we ac “Q. you ever him to Have observed cept appellant’s kind of contention peo- mean or towards other vicious a reversal based on evidence deserves ple? than then itself more an ques “A. brings Never.” rule into automatic reversal and validity tion the facial of our murder whole, testimony, goes a Lee’s taken as di- sentencing Penry implicitly reaf scheme. dangerous- rectly to the of future constitutionality the facial Tex firmed opportunity and the ness penalty statute. 492 U.S. at 317- death testimony through effect to her (Supreme Court 109 S.Ct. at 2946-2947 Franklin, special issue number See two. validity of noting that “the facial the Texas at 2330. S.Ct. upheld in penalty statute had been death TALENT ARTISTIC AND POETIC of assurances that Jurek the basis special interpreted broadly issues would be ap We next confront Penry argues enough ... that] [and pellant’s and and its poetic artistic talent not fulfilled in his assurances were those Eighth Amendment value the context of particular [emphasis origi ...” in the Penry. contends that brief ). nal] presented of Richard the defense society “significant worth” to as an son’s attempt Rather than to shoehorn Cynthia Lee, poet. artist a friend of poetic into abilities lant’s artistic literally gushed descrip appellant, forth with special issue, choose ambit of the second we appellant’s She stated when tions of talents. directly and hold that to confront this issue “It describing picture had drawn: he was ability pictures draw appellant’s poetry intensifying.” real As to has no poems in the context of this case write (sic) pickup stated: “You can’t book Lee it was mitigating value the sense that poetry good a lot of and read is as jury making a “reasoned mor- relevant to the of them are this. Some are short and some voting issues response” al four, three, long. them a pages Some of five any particular nor abilities have do those longer They gorgeous.” lot than that. are appellant’s moral relevance particular In this gave passing as- outside the issues. other witnesses Several case, talents poetic think that artistic appellant’s artistic and sessments of do no more than normally strike an emotional “A. chord As well behaved jury’s that would cloud the my youth deliberations in others. Yes. Part Parks, reaching a decision. See group, support group Saffle 1257, 1264, played acolyte church. He role an church, 415, 429 also communion. See Some- wanting go 479 U.S. at 107 S.Ct. at times to church J., (O’Connor, do, etcetera, concurring). like some kids but he

was there. “Q. disciplinarian? Was his father a strict ABUSE; CHILDHOOD MENTAL AND EMOTIONAL IMPAIRMENT “A. Yes. asserts the “Q. you Did occasion visit in the Richardson, sister, supports

Ms. his con home? tention he came from an abused back Yes, “A. often. ground. contrary, Richardson, To Ms. “Q. Okay. space payload specialist Boeing shuttle Aircraft, They “A. testified as meant the best for their chil- follows: family Miguel dren. from which “Q- [by appellant’s counsel] Let me ask together put family, is a comes well you your this. Was father strict at very strong image. father A mother home? who tried to best do the for their “A. Yes. He was. you might children. Middle class call “Q. Miguel very he young, Was when was them, working. hard He’s at Tinker your very, very father a strict Air Force Base. The mother a disciplinarian? working homemaker and now for a us,

“A. He was strict to being of course *6 Transportation National Compa- we getting whip- child never liked ny....” do, pings being or told what to how- testimony This ap- does not indicate that ever, he was understanding, but if he pellant anything received than a other middle something said he meant it.” class upbringing. point reject any At this disagree appellant’s with characterization claim that testimony brings appel- Kabelitz’ testimony of this of an indicative abused lant Penry within the based on background. Ms. testimony Richardson’s childhood abuse. does nothing appellant more than indicate testimony Kabelitz also offered con came background. from a normal Not one cerning the racial strife in testimony abuse, that occurred shred of her mentions beat- in City appar Oklahoma ings, 1960’s and or other familial situations even remote- appellant. implied ent effect on ly Kabelitz analogous to present the mistreatment in period the social turmoil of that Penry. stunted appellant’s development. educational He Kabelitz, Pastor Norb a Lutheran minister appellant’s “put also testified that teachers City, from Oklahoma also testified about the class, him in publicly down called [him] general background special and talents of names and [used] innuendos.” Richardson appellant. Appellant points por- to selected pointed testimony has also to the of Lillie tions of the record which if taken out of problems Rex and her references racial in context could lead one to believe that City supportive Oklahoma point. lant variety worthy suffered a of abuses We do not or Rex’ believe Kabelitz’ Penry charge. scrutiny Close the record testimony about societal conditions in the reveals otherwise. calling allegations 1960’s and the name have Kabelitz testified as follows: any significance appellant’s to the moral cul Pastor, “Q. you pability beyond any let me In ask this. issues or days Miguel was

earlier well be- relevance to the first two issues. Franklin, child? haved 487 U.S. at S.Ct. at 2330. plethora problems Appellant attempted has also to establish suffer from Penry Difficulty reading back- in the alleged connection between his abusive with did. ground purported mental and emotional and case does not reach context of multiple impairment Appellant’s as an adult. instruction. threshold that mandates Bearden, regarding references to the record Dunow, Seiver, Franklin, Laursen, and DEVOTION RELIGIOUS any closing argument State’s fail to establish than ministers other Kabelitz Several alleged connection between childhood abuse religious of appel devotion testified as subsequent appellant. and on its effect Griswold, minister, laya lant. Doctor simply presented There is appellant during his occasion to visit incar by argument. This nexus in Denver. Griswold testified that ceration engage analysis theory Court will not in appellant deep understanding of “came to a illogical supported its face on life is what the Christian about.”

by record. educator, Holston, minister and Herbert attempted has also to char appellant had made at- also testified that Rast, testimony of a clini acterize the Robert tempts bring persons to other Christ. psychologist, cal as indicative of Richardson’s appellant’s evangeli- reflects that record mental illness that had its roots his child place cal zeal took while incarcerated San Rast, however, hood. presented Antonio. hypothetical on the instant based facts Bernard, Wayne Randolph minister of the opinion case and asked his as to dan City, testified Church of Christ Universal gerousness. that in Rast testified of God had studied the word direct cross examination that for seven months. noted that he Bernard hypothetical “personality” in this Miguel, had seen a “real conversion within likely to commit future acts violence. I that is and think evidenced fact closing argument punishment, defense violence, I have never seen acts of verbal again emphasized counsel Rast’s I physical from him in the months seven jury’s deciding potential for its value Again, appellant’s him.” conver- known dangerousness. of future Coun during his place sion took incarceration sel seated: Antonio. San right. “All had an hear opportunity You professional’ *7 listen a ‘mental health sheriff, Ralph Vickery, deputy testified morning, I Doctor Rast. assume forcibly that Richardson had a cross removed you your that’s what will on as base verdict argues his from around neck. probability to of conduct.” religious forced is of devo- removal tion; however, Vickery the cross testified Defense counsel’s cross examination of Rast general of a rule was removed because never established connection between allowing prisoners against to wear necklaces diagnosis sociopath of ex- and childhood jail Appellant has of- in certain areas. also periences testimony of Richardson. Rast’s his testimony of Rex child- fered the Lillie directly to went of future dan- Sunday Rex School stated hood teacher. gerousness properly that could be considered coming faithful that Richardson was about under issue number two. Sunday school. Appellant also that Kabelitz’ asserts reading appellant’s religious of devo- problems of The evidence Penry. prop- tion Franklin puts equal footing is and could be him on with answering reject by jury issue appellant’s argument. Difficulty erly addressed with jail read, itself, house learning Appellant’s cannot number two. conver- and of nothing Penry Penry diag more than his claim. sions demonstrate establish retarded, ability prison mentally adapt out of to a structured envi- nosed as schools, finished first also note that the childhood state and never ronment. We Kabelitz, grade. appellant, did at minister of Pastor 492 U.S. at hand, religious testify any significant de- Appellant, on the other did about votion, quality, categories suggested by character and appellant meets this criterion, Penry would entitle reasonably to a instruc- for it seems clear to me jury ample opportunity persons history tion. with a of or selflessness service, any mitigating community religious family effect to value of or alle artistic, giance, religious they literary zeal when deliberated on the scientific or tal ent, thought blameworthy dangerousness. issue of future See are not less for Frank- lin, by any seg significant 487 U.S. at their criminal conduct 108 S.Ct. 2329-30. State, society. ment of our See Lewis v. is affirmed. Rather, (Tex.Cr.App.1991). S.W.2d 560 if so ciety regard does such as mit characteristics CAMPBELL, J., concurs in the result. igating, necessarily per it must be because

BAIRD, J., dissents. possessing thought sons them are to be more not, valuable than are those who do or some WHITE, J., not participating. deserving greater how consideration BENAVIDES, account their Judge, important contributions. concurring. Whatever other social political interest join I opinion, am unable to the Court’s but serve, personal such a cul belief moral judgment. concur its This ease comes to pability plainly has to do with this us remand from the States United Su- mitigation. sense of preme might Court so that we reconsider our course, disposition light might earlier it it in Of be noticed “dan gerousness” culpability, also irrelevant to 109 S.Ct. (1989). though probability L.Ed.2d 256 even a low Accordingly, we once of it has been whether, again significant decide held to have as a under effect Amendment, appellant Skipper matter of constitutional law. was entitled See Carolina, mitigating signifi- South determine the cance, beyond contemplated spe- Restricting un one’s issues, punishment derstanding “mitigation” only cial evi of certain evidence to that would, proffered by him imposition as a dence which affects reason for there fore, less than tightly. sentence death. This evidence draw constitutional net too But, kinds, was of several different extent that and has been evidence has ten grouped purposes analysis dency prove dangerous into an accused less (1) offenders, following categories: voluntary given than other full service (2) others; religious authority statutory and kindness to under Texas ex devo- law (3) (4) tion; talent; poetic press judgment by family answering artistic and its second (5) ties; abuse, together negatively. childhood issue See 37.071(b)(2), Art. impairment. mental and emotional V.A.C.C.P. it, perceive Unquestionably, reading

As I central basis further careful precedent Court’s was that constitutional this context also *8 mitigating punish- imply “culpability” circumstances relevant seems to and “dan meaning Eighth ment the gerousness” only mitigation within of the are not the crite are of required by Eighth Amendment those circumstances “the ria the Amendment. See background Lynaugh, 164, 186, [which defendant’s and character Franklin v. 108 belief, support long by 2320, 2332-2333, a] will this held soci- S.Ct. 101 L.Ed.2d 155 (1988) ety, (O’Connor, commit J., that defendants who criminal Certainly, concurring). are acts that attributable to circum- I [such have no reason to suppose that the Su culpable preme be less stances] than defen- Court has come to the of its end have mitigation exegesis. any dants who no such excuse.” 492 U.S. at But I neither have 2947, 278, exegesis S.Ct. at picture 106 L.Ed.2d clear of the direction that is quoting likely my judgment, v. in 479 U.S. to take the future. In (con- 837, 841, Supreme yet provided 107 S.Ct. 93 L.Ed.2d 934 Court has not a the J.). O’Connor, theory sufficiently curring my mitigation of constitutional of view, general scope none of of it application the evidence in the first four in to enable reasons, deliberately to criminal acts specifically on commit does evidence which not bear in future. of violence the dangerousness. of Ac- culpability issues or cordingly, prudent seems under circum- it appellant produced sufficient evidence Had they presently exist this Court stances as that his conscience was to raise the issue current fully to the doctrine’s effectuate betrayed or because he was abused impaired regions yet it to extending without child, be somewhat might therefore as a by highest the unexplored Constitution’s criminal an his behavior as culpable for less court. adult, hold that he I be inclined to consistently put to death could not be by only I do not mean this that prohibitions Amendment ab- by Penry identical that raised himself requested, kind instruction sent existing within the ambit constitutional But, in equivalent. spite of or its functional State, pointed As out in law. Gribble appellant pro- protestations appeal, his accept (Tex.Cr.App.1990), S.W.2d I no evidence at trial. discern duced such that, fact he appellate implication that record no capital produces evi- whenever a defendant fairly any manner that could was treated character, background, his or dence of own deceitful, cruel, con- or be characterized surrounding his offense circumstances Instead, in his temptuous. what he identifies which, according contemporary social proof really nothing more of abuse is brief standards, tendency his has a to reduce strictly rule-governed up- than evidence way exclusively culpability moral in a any I bringing. am unaware of Because crimi- related to the deliberateness his among peo- the American conspicuous belief conduct, provocative his nal behavior of upbringing mitigates moral ple that such an victim, probability of his dan- or misconduct, responsibility I can- for mature gerousness, the United Constitution States appellant’s death sentence not conclude that imposition penalty forbids of the death Eighth Amendment is offensive to the within upon by given him a means to sentencer meaning Lynaugh. prescribe, based on evi- such I, therefore, of the concur dence, punishment. a less severe Court. Clearly, and childhood mental retardation CLINTON, Judge, dissenting. only abuse not the circumstances which are only But itself meet this test. the test majority opinion two demonstrates apply I in Texas until further one would misunderstandings very fundamental interpretation its modi- constitutional makes prompted Court necessary. fication summarily to remand this the United States reconsideration, Penry v. viz: cause our reason, category For last of evi- by me suggested dence seems of its crabbed Because only plausible candidate for claim majority yet has interpretation of personal his moral was at issue satisfy this mandate. statutory way contemplated by First, majority I has not assimilat- questions. has fear the When child by holding that a parents other the basic abused some ed been obligation jury empowered must to effectuate position trust or person in a tendency mitigating potential him, may greater that has he toward *9 the within normally develop fully to an cannot be accommodated than reared children response special Arti- my experience, jury’s to issues under impaired In soci- conscience. Early 37.071(b), on the ma- V.AC.C.P. ety regard does have an inclination to such cle holding adults, when, jority Supreme the Court’s persons blameworthy describes as less and proof It that of mental retardation they social norms and standards. to be offend mitigating willing this “constituted evidence society also that to take child abuse seems not to the Texas probability that that either was relevant position irrespective of the to continue, or special issues that relevance will for the same verdict such offenders beyond otherwise, the moral culpability ry,2 defendant’s the the suggests To extent it the scope special majority opinion of questions.” the verdict At errs. far, good. However, coming 774. So so in to Secondly, it, as I majority understand the address the whether evidence the rejects categorically the view evidence of proffered mitigation in this cause necessi- appellant’s voluntary service and kindness to giving tated of one of the or more his re- others, talent, poetic artistic and and his instructions, quested majority tacitly the as- religious any mitigating devotion can have throughout long sumes that as it can potential beyond scope special the of issues.3

identify some sense which that evidence By large, majority the believes such might to of a be said militate favor “no” “sympathetic” only evidence evokes a or issues, special answer to of the then it one response, “emotional” not a “reasoned moral “Penry not with it response.” majori- confronted what calls evi- It is evident to me that a assumption very ty dence.” Supreme This misses the of the United Court States would Supreme holding. disagree. essence of the It Court’s may jury opportuni- well be that the “had the Supreme The Court has told us that “the ty give to particular effect” to a item of ability Constitution limits a to State’s narrow mitigating within parameters evidence the a sentencer’s discretion consider relevant special 775, 776 & 778.1 E.g., issues. at But to decline to might it evidence cause poten- should that evidence also have some impose McCleskey v. the death sentence.”

tially aspect mitigating un- accountable 279, 304, 107 1756, Kemp, at S.Ct. at issues, say special der the (1987).4 cannot 1773, 262, “[A]ny 95 L.Ed.2d at 286 special jury issues the it enable aspect a or defendant’s character record full jury consideration effect. must The be any of the circumstances offense” empowered give mitigating all persuade im in reason could susceptible it is pose penalty effect to which before we less than death be said in Eighth say can mitigating Amendment has been this context be “relevant” evid Ohio, satisfied, 586, Pen- Lockett v. holding 604, consonant at ence.5 Telling 1. context is in this the treatment down” one of a handful of black students in a school, predominantly lant’s admittedly claim that evidence of his “artistic and white neb- poetic requested general entitled abilities” him to the ulous of the effect of racial attempt than during days, instruction. “Rather shoe- turbulence his school and evidence special tend, least, horn” issue,” the ambit reading these “into of the second disability, of a at all to show majority simply announces these disadvantaged background," ap- "a and to show qualities signifi- mitigating might of character have no certainly pellant "emotion- have cause for whatsoever, scope cance special either problems.” within the al 318-319, U.S. at Slip. op. 278, issues or otherwise. at 6. 109 S.Ct. at L.Ed.2d at Again, tacitly approach this that had the quoting assumes 479 U.S. at prof- majority been thus to able "shoehorn” at evidence, analysis (1987) (O'Connor, J., concurring). fered majority apparently end. would ma- concludes, dixit, jority continues to subscribe ipse that evidence of long mitigating view name-calling that as as some effect can racial and the effect of unrest has issues, given bearing be culpability. Similarly, within on his moral essence, Amendment is Distilled majority opines reading satisfied. to its that evidence of a precisely put disability this is the view the Court “does not reach threshold that Penry. rest in majori- Until mandates instruction.” lies, ty where identifies that "threshold” howev- 2. Of course I do mean to intimate that a er, pronouncements carry more such rhetorical penalty must less than assess death in weight. than authoritative going beyond in which presented. issues is where But Emphasis throughout origi- 4. here and is in the presented jurors such evidence is not be must nal. precluded assessing penalty less from than requested death of a omission instruction truth, "relevancy” concept 5. empower them to do so. only context seems odd to me. The material issue, agree majority consequence,” I evi- "fact of is whether an with the history family guilty dence he establishes a found crime deserves claims accused reasonably abuse to do so. less than is the case at the cannot construed a sentence death. As *10 hand, "put phase non-capital prosecution, punishment On the other evidence that he of a

779 973, making 2954, 2965, insignificant in the norma L.Ed.2d at 990 character 98 S.Ct. at 57 (1978) Eddings (Plurality opinion); v. he deserves live Okla tive evaluation whether homa, 104, 110, 869, Supreme at has spite 102 of his Court 455 U.S. at S.Ct. crime. 1, (1982). 874, expressly limited its of “relevant” 71 L.Ed.2d at 8 view circumstances mitigating evidence those Eddings belief reflect the “Lockett necessarily bearing personal culpability on punishment directly related should be particular offense or those for the committed criminal personal culpability the background or defendant’s Thus, aspects the imposed the sentence defendant. be, makeup to his crime at least which response a moral should reflect reasoned character, Skipper v. See South background, part, attributable.7 to the defendant’s Carolina, 1, 1669, 4-5, at 106 sympathy or 476 U.S. S.Ct. and crime rather than mere (1986). 1, 1671, 7 To the con 90 L.Ed.2d emotion.” every majority trary, there indication a is 545, 538, at v. 479 U.S. Supreme “[e]vidence the Court believes 841, 934, 837, L.Ed.2d at 942 107 S.Ct. at 93 service, others, voluntary or of kindness to (1987) (O’Connor, J., concurring). Evidence religious relevant inasmuch devotion” be invoking purely sympathetic or a emotional “might positive character as it demonstrate response probably is not “relevant.” See mitigate might against death traits Parks, 484, 1257, v. 494 110 Saffle penalty.” Lynaugh, Franklin v. 487 U.S. (1990). 108 415 L.Ed.2d 2333, 164, 186, 2320, at 101 at 108 S.Ct. majoriiy describes evidence of (1988) (O’Connor, J., 155, L.Ed.2d at relationship lant’s Karen Cracken concurring). Supreme Court de When “transparent” ploy than for more a Eighth for fines evidence “relevant” rejects sympathy. outright possibility It is not at purposes, Amendment this Court of his could that evidence artistic sensibilities it liberty regard otherwise. legitimate component jury’s rea- impose soned moral whether Today’s majority to resist continues penalty. majority Lockett, Nor itself Skipper, death does holdings Eddings, during “believe” his evidence of racial strife Lynaugh, supra, now v. foxhole years foxhole, his school can inform that decision.6 last bunker. See Stewart Finally, majority opines religious State, (Tex.Cr.App.1984) S.W.2d (Clinton, J., dissenting). Declining join devotion is consideration is covered issue; apparently skirmish, under the second I respectfully latest dissent. majority believes it either has no other value, or miti- need have other J., MALONEY, joins. long gating so can it value

some, full, mitigating effect. albeit precisely this kind is not

Evidence

squarely su covered Nevertheless, plain

pra. it is not to me that

jurors of appellant’s find these facets would matter, Certainly punishment probability or, for that simply "what 7. where the issue — improbability assess,” defendant process, this is "a normative not intrinsi- —that acts of violence that State, would commit cally Murphy v. 777 S.W.2d factbound.” society continuing threat to is not constitute a question (Tex.Cr.App.1989)(Plurality opinion bearing personal culpability on his rehearing). being State's motion That particular Yet know that offense trial. case, to me "what is 'relevant' to it seems par provides at second issue least our ques- determining proper amore is, of what tial mechanism for consideration policy logic." is a tion of than of Id. Because it Court, contemplation Supreme relevant Eighth proportions, Amendment "mitigating" evidence under the Amend however, policy ultimately call is for the Texas, 428 U.S. 96 S.Ct. ment. Jurek v. United Court to make. States (1976); Ly Franklin v. 49 L.Ed.2d naugh, See n. ante.