Smith v. State

SMITH, a.k.a., Robert Robert Johnson, Appellant,

Lee Texas, Appellee.

The STATE of

No. 71433. Texas, Appeals

Court of Criminal

En Banc.

March Holmes, Jr., Atty.,

John B. Dist. and Kar- Vinson, en A. Clark and Mark Asst. Dist. Houston, Attys., Huttash, Robert State’s Austin, Atty., for State.

OPINION MEYERS, Judge.

Appellant guilty was found for the murder of James Wilcox in the course of 19.03(a)(2). robbery. Tex.Penal Code Ann. jury affirmatively After the answered the issues, statutory special submitted the trial court sentenced to death. Tex. 37.071(b). Code Appeal Crim.Proc.Ann. art. to this Court is automatic. Tex.Code Grim. 37.071(h). Proc.Ann. art. We will affirm. I. EVIDENTIARY ISSUES Because appellant’s complaints several of appeal on concern the underlying facts of the crime, necessary. a recitation of the facts is Appellant accomplice and his entered the Fayco clothing Menswear store Houston closing. fifteen minutes before The two new store, throughout “customers” wandered appellant finally settling upon high several priced goods. Because of his behavior and try his purchases, failure of his Kim, saleslady, suspicious. Ms. became She signaled a friend at another store that she was in picked up trouble. Ms. Kim also phone operator help. and called the Be- speak fore Ms. Kim could operator, appellant pointed gun at her head and told hang up phone her to lay and to on the ground. complied. She Ms. Kim’s friend arrived by appellant’s and was maced accom- plice when he entered.

Appellant, open regis- unable to the cash ter, ordered Ms. Kim to stand and retrieve money register. stood, from the When she Kim keys Ms. moved car which he placed purchases had with his on the counter. moved, Appellant, keys unaware his had been Moran, Stanley money fled G. Schneider and Tom the store with and merchandise Houston, appellant. along accomplice. with his When had started, on, left, engine lights went police in- A truck its called the and also Ms. Kim began heading in Mr. Griffith’s security guards the truck local rob- formed the warning, Griffith fired bery. As Mr. direction. stopped, truck shots into air. The four Appellant in the a KMart fled direction of occupants and fled on foot. and its exited away buildings Fayco Menswear. two Mr. Griffith police requested arrived and The Griffith, car, appellant approached As his Mr. Kmart security guard to and the return security supervisor, approach- a KMart police the abandoned vehicle. The watch ing Appellant his auto. asked Mr. Griffith pursuit. then continued building was on call an ambulance because a brought fire, Fay- police in a K-9 unit and be- pointing general direction using Belgian gan tracking the eo Mr. Griffith no fire and robbers Menswear. saw Malinois, to dog appearance a thought strange an a similar ambulance should called, nevertheless, dog and began get compact Shepard. his The his he to into German later, appellant a tracked into wooded area car. A few moments Mr. Griffith handler dog caught say, fucking dog “I was The appellant heard can’t find the where the released. keys appellant, handler arrested keys. fucking up I find the now.” and his can’t with dog attempting pull to as the Appellant accomplice appellant and his then exited some appellant their from brush. car and fled. fled, approached they officer the abandoned

Soon after had Mr. Griffith was Another truck, a robbery by proximity local In close tent informed of the one of the truck. collapsed. partially part of the tent security guards. Mr. Griffith and the securi- had On male, ty guard pur- discovered a dead subse- got Mr. Griffith’s car and the officer Appel- quently and the identified James Wilcox. sued the two robbers. Mr. Griffith to guard appellant accomplice jump and confessed the murder Wilcox.1 saw his lant later nearby park. trailer fence into abandoned points They appellant’s first three gate to an entrance had drove where error, complains court erred in Approximately 12 to 15 he the trial been knocked down. admitting appellant’s robbery elapsed between time the rob- the evidence of seconds the clothing during guilt the pur- to jumped bers the fence the time the of the men’s store properly they phase failing trial to got suers the As were and entrance. car, evid gunshot. jury’s of such exiting Mr. Griffith limit the consideration the heard “[ejvidence Generally, of other Each ran behind a tree for cover. man ence.2 tree, crimes, wrongs, or not admissible to From his Mr. could hear acts is behind Griffith in order to park. prove person the character of a two frantic voices inside the conformity However, only acted therewith.” he could shadows. show that he see part, towards his truck that Appellant and the man started confessed police up Larry Larry pulled and was in. The building the around the into [KMart] We ran By parked up. time pulled the truck back the We ran into a truck that was woods. got laying Larry Larry down grabbed by I saw a man under a tree. white the neck. man ground. top The man was of a tent. on the grabbed him. The man me loose from up jumped and we were The man asked what leg him arm. I asked the and I shot in the Larry your keys doing. give told man me okay.” you He stated times man four "is “my up." the man said front end messed (sic) "yes.” I started run and I throwed wressling Larry hit the man started ground. Larry stopped pistol down on (sic). pulled man looked at me and I over up split pistol "Let’s picked and stated gun. politely give us the I asked him up money we money up.” split As we went grabbed my hand and started truck. The man ways. separate our truck The man ran back to the wrestle. Larry up was. As I on the truck where walked Appellant murder of James was indicted for the you telling we do to hurt the man not want committing in the while course Wilcox police just need a behind us. We because robbery attempting of Wilcox. to commit the grabbed my By arm ride. this time man backing up again got loose. I and I started 404(b); Montgomery intent, Tex.R.Crim.Evid. lant’s motive and the trial court did (Tex.Crim.App. S.W.2d admitting not err in that evidence. Tex. 1991) (on 404(b), rehearing). however, 404(b); Rule R.Crim.Evid. see Peterson v. lists exceptions a number of to this rule. (TexApp.—El 762-763 Paso instance, d) (Evidence For the evidence pet. be admissible appellant’s pos ref prove motive, intent, opportunity, prepara- marijuana, pistol session of and ammunition tion, plan knowledge, identity or absence of indicated defendant’s motive and intent for officer).3 mistake or Montgomery, aggravated accident. peace 810 his assault on 387; 404(b). S.W.2d at Tex.R.Crim.Evid.

This list is neither exclusive nor exhaustive. point second and third McCormick, (4th 1992); error, § Evidence complains ed. the trial court erred Goode, Sharlot, Wellborn overruling objection & Texas charge Practice his to the court’s 404.6.3, (2nd 1993). at 173 ed. falling jury’s and in to limit the consideration robbery of the initial proper purpose. to a Appellant suppress filed a motion to conference, During charge ob evidence of his extraneous offenses with the jected to the inclusion of the court’s instruc trial court. The court denied the motion limiting tion consideration of the noting that the “State has burden [the] Appellant objected extraneous offense. prove intent During and other elements.” any limiting being given at trial. conference, charge again the trial court fact, only limiting reason the instruc stated that the evidence was admissible to tion appellant requested remained after it be appellant’s show Appel- motive and intent. requested removed was because the State lant appeal contends on the evidence remain, doing protect so “to the defendant’s background was admitted as only, evidence rights.” Montgomery, See “necessary” is not admissible unless it is object 388. Because did not or jury’s understanding to the of the offense at request instruction, a different more limited Rogers trial. See 853 S.W.2d complain he cannot now of that failure. See (Tex.Crim.App.1993). Appellant argues fur- 36.14; Tex.Code Crim.Proe.Ann. art. Tex. only ther that the issue at trial was whether 52(a). R.App.Proc. Appellant’s first three appellant intentionally killed Wilcox and the points of error are overruled. aggravated evidence at robbery the first does any bearing not have on that issue. error, point sixteenth argues the State’s offer of a life disagree. appel The evidence of We imprisonment guilty plea return for a aggravated robbery lant’s establishes his mo mitigating should be admissible as evidence helps prove tive and his intent to kill Wilcox during punishment phase of the trial. Appellant’s and steal flight Wilcox’s truck. Specifically he avers that “his refusal to ac offense, from the first the fact that his car cept proffered life sentence was due to left, keys had been and his need of an auto complainant the fact that he did not kill the mobile escape to effectuate his from the rob deliberately intentionally or and was there bery clothing help men’s store crime mitigating.” argues fore The State evidence explain appellant’s intentions when he came plea offers is Rule inadmissible under upon arguable appellant the victim. It is of the Texas Rules of Criminal Evidence. robbery knew that his reported had been See Moss 196-197 police that the Fayco were en route to Mens- (Tex.App.—Texarkana pet.).4 no we'ar. aggravat Because the evidence of the robbery ed appel provides: was relevant to illustrate Rule 408 Appellant’s complaint appeal only Generally, plea on guilty is that the evidence of or nolo argument evidence is not relevant. There is no subsequently contendere which is withdrawn or probative that the evidence’s value is substantial- dining plea negotia- evidence of statements made ly outweighed by danger prejudice. of unfair against tions are not admissible a defendant. Tex.R.Crim.Evid. 403. (1) dence, applies set- Rule to criminal furnishing offering or then the or Evidence (2) agree that furnish, as well. promising accepting agreements or tlement We or in criminal cases be- promising accept, applicable offering or valuable Rule is Rules of attempt- or in the Criminal compromising presence cause of its consideration Evidence, agree applies compromise dis- that it ing to a claim which was we do not but puted validity negotiations. Hays, either or amount is su- plea as to criminal See prove Gonzalez, liability in- not admissible or 748 F.2d pra; United States Cir.1984) (“In validity (2nd Evi- prosecu- claim or its amount. this criminal of conduct statements made tion, dence or statements were admitted Gonzalez’s negotiations crime, likewise ad- compromise is not committed establish that Gonzalez require This not missible. rule does not their to that issue does relevance exclusion of evidence otherwise discov- had a depend Bank] on inference [the an merely presented because it is Gonzalez”) erable rule is against claim valid negotiations. compromise the course pre- limited on face to evidence which its require This rule also does not exclusion validity invalidity prove sented to “the for or the evidence offered for another when Nothing amount.” [a] claim or its proving prejudice or purpose, such bias plea during life its offer of State’s party, negativ- or a or interest witness or a negotiations validity invalidi- concerns or delay, ing proving a contention of or undue Rule 408 ty of a claim or its amount. While investiga- an a criminal effort obstruct proceedings, it does applicable in criminal prosecution. tion apply plea to a offer. State’s added.) (Emphasis The U.S. Second Circuit Nevertheless, trial if the court’s decision Appeals Court of noted that reference in the any theory applicable correct of law disputed Rules to “a Federal claim which was case, it will be sustained. McFarland validity as to either or amount” does not (Tex.Crim. State, 824, 846 v. n. 15 generally plea to bargains. refer criminal denied, -, App.1992), cert. Baker, United States v. 926 F.2d (1993); 2937, 124 L.Ed.2d 686 Romero (2nd Cir.1991).5 Baker further held that State, (Tex.Crim.App. v. 800 S.W.2d 408 applies Federal Rule to civil matters State, 1990); Calloway v. 743 S.W.2d Id.; only. compare Hays, United States (Tex.Crim.App.1988). The offer State’s (5th Cir.1989) (Evi- 872 F.2d 588-589 capital to excludable of life a defendant was agreement dence of a civil settlement is grounds. other that the State on Evidence proceeding), admissible a criminal may capital plea offered a of life a Prewitt, United States 34 F.3d to District minimally relevant a State (7th Cir.1994) (clear reading of rule is Attorney’s the defendant office belief that applies proceedings” only). “civil danger. was not a future Tex.R.Crim.Evid. interpretation of This Rule 408 buttressed 402; Montgomery, 401 and 810 S.W.2d by presence prohibits the Rule which However, substantially 386. such evidence is introducing plea from evidence of State danger outweighed by both unfair during plea negotiations or made statements misleading jury. Tex. prejudice and of against a defendant. Tex.R.Crim.Evid. 410. rea There numerous R.Crim.Evid. 403. are plea capital life offer sons State The State cites to Moss su defendant, including the availabil pra, to a support proposition because resources, ity county quality of evi 408 is in the Rules of Evi- Rule Criminal However, right; To as one’s own or as one’s in this instance demand Tex.R.Crim.Evid. assert; sought urge; of action. it was not the State to insist. Cause plea through admission of the terms of the State's offer. by obtains Means or which claimant thing. enjoyment possession privilege or or e.g. money property, Dictionary or insurance by Demand for "Claim” is defined Black’s Law (5th as, 1983) Ed. claim. witnesses, policies dence or internal within a at about 12 to fifteen seconds later he office, attorney’s district pre single gunshot. or a desire to hears family vent victim’s suffering [Appellant] you wants believe he trauma of a trial. These various rea negotiated with Mr. Wilcox. That all this independently sons could or in combination okay? okay? as he said: Is he Is he encourage the attorney district to make the How much time? 12 to 15 seconds. offer of probative life. The limited going through What’s on his mind at the plea value of the concerning offer a district know, you time? And when he left that attorney’s views of a defendant’s future dan Fayco Department forgot Men’s Store he gerousness substantially outweighed keys. [you] his But know what he didn’t danger prejudice, of “unfair confusion of forget gun, forget. was his that he didn’t issues, misleading jury.” Tex.R.Crim. forgot keys He his gun. but not the This Therefore, Evid. 403.6 the trial court did not gun jacketed loaded with a .32 [caliber] refusing err in appellant’s request to intro going bullet that he’s not forget that. duce plea evidence of the Ap State’s offer. Now, trying get away. he’s He knows pellant’s point sixteenth of error is overruled. security guards coming are and he police knows the coming. are And at that appellant’s point seventeenth of er point he’s in the field. There aren’t ror, complains the trial court erred in except witnesses for Mr. Wilcox. No wit- admitting appellant’s fingerprints into evi get away nesses. And he needs to be- dence prints forcibly as those were taken in cause, you know, people there’s that are violation right against self-in- after him department at the men’s store I, erimination under Article section 10 of the nobody going where knew what was on. objection Texas Appellant’s Constitution. Now, people he knows him are after appeal comport objection does not with his [sic] heeds the truck. solely trial which upon was based Fifth grounds. Amendment Tex.R.App.Proc. Now, portions that are redacted un- 52(a); Rezac v. law, der the provides as the law me that I (Tex.Crim.App.1990). Appellant’s so, seven to do have what do I leave out? He point teenth of error is overruled. says man top was on of a tent. How

convenient. Man is found. Mr. Wilcox top found on of a tent. That’s where he II. CLOSING ARGUMENTS got shot. I He fell on it. excised and I appellant’s points fourth and fifth politely, him I politely asked excise now error, prosecutor he contends the committed you order for to be able to find the defen- intentionally engaged fundamental error and guilty dant not you got murder during misconduct closing argument. his got to be able believe him. You to be alleged improper The argument occurred as say, [appellant,] you’re telling able to follows: got truth. You’ve to be able to believe him. [STATE’S Mr. ARGUMENT:] Griffith you jumped

tells that he along the fence Now, you do think that in the course guy Larry. with this you named And trying get away got and he’s a loaded significant know what’s so about Mr. Grif- gun, you please he asks Mr. Wilcox can testimony says [appel- fith’s is that he give your keys your that me truck? You fence, somebody jumped lant] really happened? else think that Moss, 197; separate policy 6. There also a exists reason to tice in America. 860 S.W.2d at see York, discourage plea the admission of those offers. If Santobello New 495, (1971); permit we were to the admission of such evi- United States v. dence, Verdoom, (8th Cir.1976); ably discouraged the State would be 528 F.2d future, State, (Tex. making plea such offers in the bar- Richardson S.W.2d gaining ref'd). jus- App. pet. is essential to the administration of —Texarkana Mr. from where the distance everything most twice you to believe in order So voices, twice he heard the said that says, you’ve got able to believe Griffith to be by an offi- photograph distance on this him. scene. stakes out the cer who Your Hon- COUNSEL:] [APPELLANT’S Now, person who I know how a or, in that don’t object I for the record would frantically acting seated shadows proof in this describes a transfer of burden of that is here, basically dancing in the cab shadows person— case. That is where area, person in this how of a vehicle Honor, I have Your can STATE:] [THE that headlights of when the determines objection opposed to a narrative an coming supposedly to- on and vehicle are objection? direction, person how a him in this wards Objection? THE COURT: only many people how can determine truck, the races cab of that but are Objection, COUNSEL:] [APPELLANT’S heard, unless he of voices and the number contrary proof it’s transfer of burden of obviously and he afterwards finds out Charge. as stated the Court’s law people two chased that there were knew extent, THE To that to the ex- COURT: get suspects. trying to both into the woods for, objection is might tent that call I don’t if it makes sense. I don’t know instructed to sustained. The will be your logic. But it’s up to the think bears rely upon Charge puts that the full (sic) to believed If Griffith is decision. proof upon burden State. him, testimony beyond a you his if believe doubt, [appellant] then reasonable argument. Proceed with the testimony. He said wrong, [appellant’s] burden, accept I but [THE STATE:] hey, Larry was inside the vehicle. (Em- you’ve got to be able to believe him. added). phasis arguments by counsel indicate credibility appel put the did prosecu Appellant contends that the testimony into lant’s confession and Griffith’s argument tor’s amounted to fundamental er issue, they forcing jury to decide whom ror, objection necessary and therefore no properly notes that The State believed. appro preserve To error.7 be considered argument is not a shift the burden their priate, jury argument to a must be limited challenge credibility proof but rather evidence, de summation of the reasonable in his exculpatory statements evidence, from the an answer to an ductions ar appellant’s counsel confession. Because counsel, by opposing plea argument had to decide gued to the Hughes v. law enforcement. believe, was also free the State whom (Tex.Crim.App.1992) 157-158 ap argument and contend answer this (opinion rehearing); Moody telling the truth. pellant was not (Tex.Crim.App.), cert. de 894 S.W.2d nied, -, 121 U.S. 118 S.Ct. error, appellant point In the fifth of (1992). contends that L.Ed.2d 75 The State prosecutorial committed contends the State was an an argument their in this instance continuing argue after the misconduct by opposing counsel. argument to an swer objection “I appellant’s Court sustained argument immediately before During closing burden, you’ve got to be able accept the but ap alleged improper argument, the State’s argument Appellant’s him.” to believe pellant following argument: the made ruling trial court’s on a belief that the based prevent the State from cause was to that this was the this said Officer Williams However, (sic) credibility. truck, appellant’s attacking al- found a location where the improper alleged in the burden. upon shift Appellant's complaint fundamen- State's is based 7. object again to failed to the tal error because he State, ruling. concerning parole. such was not the court’s The trial Jones v. ruling (Tex.Crim.App.1992). court’s was limited on its face to an Tra S.W.2d Texas, improper during shift in argu- ditionally, the burden matter for is not a ments, appel- and not the State’s attack consideration in a murder Id.; State, credibility.8 prosecutor’s lant’s Because the trial. Ellason v. 815 S.W.2d arguments response (Tex.Crim.App.1991); additional were in Stoker v. n. counsel, State, arguments (Tex.Crim.App.1989), of defense the trial 788 S.W.2d denied, ruling Appel- limited court’s was correct. cert. (1990). subject fourth points prop

lant’s and fifth of error are is not L.Ed.2d special overruled. er the context of even the second considering issue because when a represents continuing whether III. PAROLE LAW “society” society, the term threat to includes appellant’s through points In sixth twelfth prison non-prison populations. both the error, complains inability of he of his Jones, 495; Boyd 843 S.W.2d at jury, through testimony inform the or an (Tex.Crim.App.1991). 118 n. 12 instruction, application of the laws of Therefore, appellant’s points error of have error, appellant’s point In of Texas. sixth previously rejected, raised and his sixth been complains prevent- the trial court erred point error is overruled. ing introducing testimony from him Fason that Dr. would serve 15 Challenges A. Texas Constitutional years becoming eligi- of his sentence before through In ble for his seventh tenth, eighth, appellant’s twelfth points error, appellant argues twelfth inability points of error he contends his 87.071 of the article Texas Code Criminal jury concerning parole inform violates Equal Procedure is violative of Protec- Clause, Due Equal Protection Course Amendment; tion of the Clause Fourteenth Clause, and the Unusual Law Cruel or I, Equal Protection article Clause of sec- provisions, respectively, of the Texas Consti- Constitution; and 3a of the tions 3 Texas Appellant general recognizes tution. our Process Fourteenth Due Clause of the ability interpret our State Constitutional Amendment; provi- the Due Law Course of guarantees as broader than the Con- Federal I, article 19 of sion of sections 13 and stitution. See Heitman v. Constitution; and Unusual Texas the Cruel (Tex.Crim.App.1991). provisions Eighth

Punishment Amend- ment; and the Cruel and Unusual Punish- Equal Texas Clause Protection I, provision ment of article section 13 of the Constitution, respectively. Appellant Leg Texas contends that the keep parole decision to information

islature’s juries yet non-capital inform We have addressed juries point previ Equal in his sixth Protec contention of error same violates the and held that it not error for a tion of the Texas ous cases Clause Constitution.9 determining vio- testimony be admitted whether a criminal statute trial court refuse evidence, Nothing opinion trary to limit the the State's it is not reversible is intended rights during closing argument prosecutor veracily to attack State's to attack the error for veracity defendant.) of a defendant who takes stand veracity exculpatory the of a defendant's or of in a at trial. statement confession that is admitted men, social com- 9. "All free when form a 412, State, See Satterwhite v. 858 S.W.2d 424-425 man, pact, equal rights, or set of have and no (state argue (Tex.Crim.App.1993) that wit- men, separate public entitled to exclusive belief); worthy for defense are not nesses emoluments, privileges, or but in consideration State, (Tex. 687, v. 523 S.W.2d 690-691 Greer Const, I, § public 3. services.” Tex. art. (Where Crim.App.1975) a defendant takes the "Equality denied or under the law shall not be clearly testimony stand and con- witness his

847 sentencing I, (capital (Tex.Crim.App.1994) Equal article the Protection Clause of lates permits jury Constitution, begin consideration the we scheme 3 of Texas section unadjudieated which differs purpose of the offenses presumption with non-capital does punishment cases Corp. HL v. scheme is constitutional. Farm Statute (Tex.1994); protection); 288, equal Janec not violate federal Self, 877 S.W.2d 290 Whit (Tex.Crim. (Tex. State, 813, 194, Bynum, 196 739 833 v. 699 S.W.2d ka v. S.W.2d worth State, 625, 1985); jury voir (differing procedures v. 630 App.1987) Faulk 608 S.W.2d State, (Tex.Crim.App.1980); Ely non-capital v. 582 does capital cases dire (on 416, (Tex.Crim.App.1979) Appellant’s re equal protection). 419 violate federal S.W.2d Light hearing); v. Texas Power & eighth point Middleton of error is overruled. 556, (1916);

Co., 96, 108 Tex. 185 S.W. 561 Building Authority Public v. Mat see Texas Challenges 2. Other Texas tox, (Tex.1985); 686 S.W.2d 927 Sax (Tex.1983). Votteler, points and twelfth appellant’s 664 In tenth 648 S.W.2d error, to challenging equal argues on that failure instruct party statute he grounds the due course of law protection has the burden to show violates statutory not ration Constitution and that the classification is clause of Texas legitimate against interest or Unusual Punish- ally prohibition related state Cruel However, than where interests other fundamental ment in the Texas Constitution. entirely rights suspect arguments affected. are appellant’s or classification are based 290; Corp., Appellant upon Farm Whit- federal constitution.12 HL 877 S.W.2d worth, 196; argument authority of how the proffers 699 S.W.2d at Sullivan v. Uni no or League, Texas versity offered Constitution protection Interscholastic (Tex.1981).10 guaranteed by the protection 172 differs from State, 853 Constitution. Johnson

U.S. (Tex.Crim.App.1992), cert. However, 533 dis S.W.2d the classification must -, denied, 114 126 S.Ct. against similarly U.S. criminate situated individ (1993). 115 are not inclined parte L.Ed.2d We Spring, Ex uals. See S.W.2d Id.; for him. appellant’s arguments (comparison class make (Tex.Crim.App.1979) Tex.R.App.Proc. Appellant’s 210. 74 and cases filed C misdemeanor defendants whose points of error are over- municipal and twelfth court and those whose cases tenth court). justice instance ruled. were filed this equal protection complaint is not

appellant’s is, individuals, similarly among situated Challenges B. Federal Constitutional capital is treated same as all defend he ants.11 See Knox S.W.2d Equal Protection Clause denied, (Tex.Crim.App.1987), cert. error, point seventh L.Ed.2d (1988) (entire differing punishment complains instructions scheme in Texas non-capital non-capital defendants punishment than different scheme); Equal Protection Clauses Butler v. violates race, sex, creed, applicable non-capital defen- abridged national 11. If the statute because of Const, clause, equal protection I, dants did violate the remedy origin.” Tex. art. 3a. appear be that would no statute. It would not would benefit from the 10.Appellant’s some concern- brief includes cases statute, legislative duty expand a Court’s infringement right,” ing an of a “fundamental rather, completely. the statute but strike scrutiny requiring a strict review. Howev- thus er, argument, see makes no and we can Tex- Appellant that he believes the does assert none, that would indicate that defendants concerning provision Cruel or as Constitutional “suspect class.” constitute broader than the federal Unusual Punishment is argument, though, there. ends His constitution. disagree. U.S. Constitutions.13 In people We Knox lot of in their twenties with this sentencing we noted that the “entire diagnosis. Anyone justice in the criminal punishment capital system structure and scheme in who has been here a an while sees always cases has been people different from the awful lot of who are 18 to 29 that sentencing procedure non-capital would fall category. peo- into that When cases-” 744 S.W.2d at ple get past age you 63. This Court of 30 don’t see further differing held Knox that many justice these system. the criminal procedures concerning parole past age you rarely instructions do And ever see some- Equal Id.; not violate the Protection Clause. one diagnosis past age with this of 40. Butler, supra; see supra.14 Janecka v. Appellant argues Supreme the recent Appellant’s point seventh of error is over- plurality Court decision Simmons v. South ruled. — Carolina, U.S. -, 114 (1994) L.Ed.2d 133 and their action in Price

2. Due Process — Carolina, U.S. -, v. North (1994), indicate that a point, In the ninth appellant asserts concerning formal instruction a defendant’s jury failure to inform the of the nature parole eligibility may required under the defendants violates the Due Process Clause of the Fourteenth Due Process Clause of the U.S. Constitution. Amendment of the United States Constitu During appellant’s Fason, expert, trial Dr. Carolina, supra, tion. In Simmons v. South concerning appellant’s testified mental condi plurality Supreme Court held that tion. In opinion appellant Dr. Fason’s suf [capital] “where the defendant’s future dan fered from an Appel antisocial reaction. issue, gerousness prohib is at and state law prognosis lant’s was also discussed. Dr. Fa- its parole, the defendant’s release on due follows, son testified as process requires jury sentencing that the prognosis The interesting is kind of be- informed that parole ineligi the defendant is psychiatric treating cause the records and at-, ble.” S.Ct. at 2190. by large individuals’ records and has been Price, reversed, Supreme vacated, Court very, very poor. They don’t fit into the and remanded Price’s ease to the North Car psychiatric They mode. don’t have a re- Supreme olina Court for further action not spect for the truth that necessary when Price, inconsistent with Simmons. unlike you depend upon words for communication Simmons, parole eligible twenty years. thereby enlarge just using words to manipulate people Initially, rather than we must address communi- con- ordinary cate. techniques Supreme And so it’s the tention that the Court’s action psychiatry very methods are not Price indicates that Simmons has been ex- helpful. prognosis As far as the con- parole eligible tended to defendants. We cerned, it, interesting thing absolutely reject the most premise. Supreme about though psychiatry even by has not and Court’s action in Price does hold large excep- precedential been affected there are some “signal” value or send a as to you tions to that. It proper disposition has been that see a of Price’s ease. Texas, punishment 13. In Compare which assesses ment. Tex.Code Crim.Proc. ann. art. non-capital 37.07, 4(a) (“In defendant's case informed penalty phase § of the trial of “good effect of conduct time" to the sentence felony punishment case in which the is to be potential early and the release due to ...”) assessed rather than the court 37.07, Tex.Code Crim.Proc. ann. art. 37.071(e) ("If appro- to art. returns [the issues,] priate findings special the court While, Equal it is unclear whether the Protec- death.”) shall sentence the defendant to There- differing tion Clause is even relevant to sentenc- fore, Equal even if the Protection Clauses were to crimes, ing procedures for different there is a apply, treating there is a rational basis for rational basis for the difference between differently. two classes of defendant's non-capital cases. In a crime the whereas, punishment, does not assess ain non-capital punish- crime the does assess

849 Sim a to the States. See fact, determination left Supreme the of North Carolina Court — (“It mons, at -, 114 S.Ct. at 2196 recently U.S. again Price’s case has reaffirmed Ramos[, Price, 463 U.S. light v.] N.C. of Simmons. State v. 337 is true that [California (1983),] (N.C.1994). 756, 992, 3446, do 77 L.Ed.2d 1171 448 S.E.2d 827 We 103 S.Ct. we agree proposition indicates that with that Simmons for the stands broad jury may be re- generally in some instances a to a State’s determina will defer quired of a defendant’s not jury to be informed should as to what a should and tion However, gener- in Texas eligibility.15 sentencing. In a about State be told available, ally case. not the the parole is how which parole availability affect knowledge of will impose the or not to the decision whether Initially, Texas we note the not penalty speculative, and we shall death prohibits, ac legislative without Constitution second-guess or lightly a decision whether tion, jury any to man the consider regarding jury inform a of information not to a considering ner whether de when — at-, at 2200 parole.”); S.Ct. to should be sentenced life or death. fendant (O’Connor, J., concurring); Ra v. State, n. 7 v. S.W.2d Elliott California mos, 1013, n. 463 U.S. at 103 S.Ct. denied, U.S. -, (Tex.Crim.App.), cert. (1983) (“Many have state courts n. 30 (1993); Boyd jury to improper the to consider or for held (Tex.Crim.App. S.W.2d through argument instruc 1991). or be a Absent federal constitutional re informed — commutation, possibility par the tion —of quirement contrary, to the it will remain Collins, don, F.2d parole.”); Knox v. or policy officially jurors of Texas not to inform (5th Cir.1991) (Constitution does consequences the actual a life sent Simmons, Ly parole.); King v. compel instruction on Supreme Prior ence.16 to (5th Cir. naugh, 850 1059-1061 Court had indicated that whether a F.2d 1988) (en banc), denied, traditionally concerning parole was cert. 489 U.S. informed allowing problems During punishment the trial instructed Marshall indicated the with court negative concepts [jury] juries in their that "if the to consider retum[s] finding any special [the on issue submitted to deliberations. jury,] to the court sentence defendant shall assessing jury simply no basis for A has Department the institutional division of Texas particular defendant likelihood that a They Criminal Justice for life." were instruct- eventually he is be released if not sentenced sentiment, by conjec- swayed ed "not be mere indulge such To death. invite ture, passion, opin- sympathy, prejudice, public speculation is ask it to foretell numerous public feeling considering or all the evi- ion may imponderables: policies you special answering dence before and in adopted and unnamed future Governors that, was further issues.” during instructed officials, change parole character, any in the defendant's "deliberations, you con- their are not to as well as other factors any possible sider or discuss action of the Board might be relevant to the commutation deemed and of Pardons Paroles division of the Texas parole decisions. Department of Criminal Justice or of the Gover- 992, 1020-1021, 3446, 3463 nor, long required how defendant will be (Marshall, Teague (1983) dissenting). Judge J. imprison- satisfy to serve to a sentence life concurring concern in his indicated another ment.” opinion in Andrade fact, penalty advising jurors that a life may sympathetic to notion of 16. While we "final," modifiable, theoretically and thus not having jury provisions for of the State informed approach find- might their fact incline them legisla- parole, left such decision has been gravity ing duty appreciation Const, with less recognize, Tex. 11. We ture. art. questions the submitted of the answers to however, may problems if a that other surface reposed responsibility in them moral for the number of were informed of the minimum short, dis- such an instruction fact finders. being years capital must serve before power closing commute the Governor’s quite could Our trials might operate to a defendant’s life sentence prison space possibly into turn mini-trials preju- disadvantage and to his extreme severe parole policies legislature and whether year dice. future reduce the minimum number in a (Tex.Crim.App.1985) prior years In his dis- 700 (Teague, consideration. Ramos, concurring). senting opinion J. Justice to California 1568, (1989) (Fed 109 Lane, S.Ct. 108 L.Ed.2d 930 Teague 288, the bar of v. 489 109 U.S. eral Constitution require 1060, does not voir (1989), dire S.Ct. we would inquiry concerning potential jurors views beyond not extend Simmons cases in which parole.); McCotter, Andrade v. 805 F.2d sentencing alternative to death is life 1190, (5th Cir.1986) (No 1192-1193 constitu Zant, parole.”); Ingram without v. 26 F.3d tional violation to parole the denial of a in 1047, 1054 (11th Cir.1994) (Simmons n. 5 was struction under the Cruel and Unusual Pun applicable Georgia prior “because ishment Eight Clause of the Amendment and 1, 1993, May Georgia provide law did not for the Due Process Clause of the Fourteenth imprisonment parole.”); life without State Amendment.); Estelle, O’Bryan v. 714 F.2d (1994) Skipper, 337 N.C. 446 252 S.E.2d (5th Cir.1983) (An 365, 388-389 instruction on (Simmons inapplicable because was parole required is not under the Due Process parole); for Ramdass v. Common Amendment). Clause of the Fourteenth wealth, 248 Va. 450 S.E.2d 361

(1994) (Simmons only applicable if Radmass question The then becomes when ineligible at time of convic does the require jury Due Process Clause tion.); Commonwealth, Wright v. 248 Va. to be parole eligi informed of a defendant’s (1994) (same); 450 S.E.2d see bility in contravention of our State Constitu Southerland, also State v. 447 S.E.2d 862 tion. opinion We note that the Simmons on (S.C.1994) (trial required courts are now its face seems to be limited to states which jury, counsel, upon request inform the have life without and not to states parole ineligibility following defendant’s Sim which parole eligibility.17 have life with Sim ); mons. but Tansy, see Clark v. 118 N.M. —mons, at -, U.S. 114 S.Ct. at 2200 486, (1994) (Simmons 882 P.2d 527 was held (O’Connor, (“In J., concurring) State applicable). However, only this is not the available, which is the Constitution distinction that can be drawn between the (or require preclude) jury does not consider sentencing system Texas and Simmons. fact.”); Scott, ation of Allridge see In (5th Cir.1994) (“We Supreme Simmons the Court relied F.3d 220-222 there upon plurality opinion their earlier fore read process Simmons to mean that Gard- due Florida, requires ner U.S. sentencing state to inform a (1977) jury holding L.Ed.2d 393 about a the South ineligibility defendant’s Car- when, (1) when, only procedure olina argues process. and violated due the state Sim- —mons, at-, represents that a danger defendant U.S. at 2192. future S.Ct. (2) society, In plurality [free] and Gardner a the defendant is the Court held that legally ineligible parole.” a defendant [footnotes could not be executed “on the omitted.]); Scott, Kinnamon v. basis of oppor- F.3d information which had no (5th Cir.1994) (“If ignore tunity deny we were to explain.” or 430 U.S. at contemporaneous objection absence of a 97 S.Ct. at 1207. There the trial court or- "Judge at-, Clinton's dissent contends that Sim- U.S. 114 S.Ct. at 2190. Justice O'Con- interpolated mons should be to read that when- agreed similarly nor narrowed what she argues dangerousness, ever the pa- State future hold, asserting process requires would that "due jury role is an issue of which the must be in- that the defendant be allowed to [inform the Op. proposition sup- formed. at 870. This parole] only in cases in which the available ported greater part by Justice Scalia's dissent imprisonment alternative sentence to death is life plurality concurring opinions than the of the possibility parole” prose- without the and the broadly Court. In fact to read Simmons so Simmons, argues dangerousness. cution future n — n ignore holding would be to the basic at-, (O'Connor, J. plurality opinion and Justice O'Connor's concur- concurring). ring opinion. plurality opines, The "We hold distinguishable While we believe Simmons is dangerousness that where the defendant’s future alone, issue, upon prohibits based is at fact we also believe the state law the defen- parole, process underlying Supreme requires dant’s release on rationale for the due Court in Gardner, sentencing jury upon supra, inappli- that the be informed that the Simmons based - Simmons, parole ineligible.” jurisprudence. cable to Texas Carolina, determines investigation report presentence South dered a be sentenced to a defendant should was deliberat- whether be conducted while (Law. 16-3-20(0 352-353, Ann. 1201- death. S.C.Code ing.18 97 S.Ct. at 1976). prosecution advisory Co-op. Simmons 02. The an verdict returned penalty later, the death urged the to vote for weeks the trial court life. Some three would be released and sentenced because Simmons disregarded the advise prosecu- part prison.19 noted This sentence was Court Gardner death. dangerous- “future argued tor that Simmons’ upon based the factual information contained jury for to consider report, ness a factor the presentence investigation in a was the fixing appropriate punish- when the portion of which was confidential not — at-, 114 S.Ct. at 2190. to counsel. ment.” U.S. disclosed Gardner’s defense case, reasonably may jury have “In the process Gardner was denied due because the this petitioner on upon that could be released trial relied relevant evidence believed court deny the ex- no or if he were not executed. To opportunity which Gardner had to misunderstanding pervaded 362, the explain. 430 at 97 S.Ct. at 1206-07. tent this U.S. deliberations, the effect of creat- Clearly it cannot be that Due Pro- had true the sentencing peti- ing a cess a trial or an false choice between Clause commands court sentencing him to community tioner to death and a attorney to correct misunder- — standings concerning judicial system, period un- of incarceration.” U.S. at the limited — -, 2193; at-, misunderstandings less those somehow 114 S.Ct. at see U.S. are J., concurring) injected by parties. (Ginsburg, 114 at into the trial one of the S.Ct. 2199 (“When Gardner, therefore, a jury prosecution urges the defendant’s indicates that a or for death judge dangerousness as cause the cannot determine a defendant’s sen- future sentence, right to or the be heard upon tence based evidence information defendant’s opportu- presented at he must be afforded an trial which the defendant has means that — nity argument.”); at given opportunity an or rebut the U.S. been to rebut to (O’Connor, -, J., explain. question becomes, The critical 114 at 2200 concur- thus S.Ct. (“But prosecution injected by ring) specifical- the prosecution what information the ‘where ly prediction dangerous- a future South Carolina did Simmons not have the relies on ’ ”). ... opportunity asking penalty or the explain. rebut ness in death Florida, punishment probability is that the 18. In verdict at asks "whether there a merely trial commit criminal acts of vio advises the court defendant's defendant would Gardner, 352, continuing a threat to sentence. 430 U.S. at 97 S.Ct. at lence that would constitute ann. society.” Tex.Code Crim.Proc. art. 37.071 1201-02. 2(b)(1) 3(b)(2). "Society” § has and 37.0711 prison include and non- been defined to both through- concept dangerousness 19. future The State, prison populations. 843 S.W.2d Jones opinion out than in Simmons is different that - denied, 487, (Tex.Crim.App.1991), cert. important respect. Texas one In South -, 1858, 123 L.Ed.2d 479 U.S. 113 S.Ct. Carolina, urging prosecutor State, 105, (1993); Boyd v. 811 denied, 118 n. 12 S.W.2d an individual to death because he will sentence (Tex.Crim.App.), cert. 502 U.S. prison. date be some future released from (1991). argu The 116 L.Ed.2d 466 S.Ct. plurality opinion complained prosecu- that prosecutor is that the defen ment in Texas “urge South Carolina to sentence tors in acts violence dant will commit criminal to death not be a so that prison. prison out of This whether he prison." danger public if released from question that asked is much more abstract than Simmons,-U.S. 114 S.Ct. at 2193. In at-> argument urged in South Carolina. See in the concurring opinion. her Justice O’Connor char- (5th Scott, Allridge 41 F.3d n. attempt- argument as acterized South Carolina's ("We Cir.1994) particularly that note Simmons ing pre- [Simmons was] to “show that vicious argues applies to those cases which state continuing pose a dator who would threat danger is a to free that the defendant future - -, community.” U.S. at S.Ct. at argues the de society. But the state when everybody, poses danger to fel fendant a future included, Texas, inappli urging prosecutor then Simmons is low inmates specific question, whether the defendant is answer a called "future dan cable because omitted.]). question gerousness,” [cite is irrelevant.” in the affirmative. The fact very deliberations, argument was Simmons’ ation their Supreme that, jurors “argued Court. He set unable to aside from their public’s apparent view the misunderstand- challengea- consideration of the sentence are ing about the meaning imprisonment’ State, ‘life ble for cause. Jackson v. 822 S.W.2d — Carolina, in South denied, there was a (Tex.Crim.App.1991), reasonable cert. jurors likelihood U.S. -, would vote for 113 S.Ct. 125 L.Ed.2d 722 simply they believed, (1993); State, death because mistak- Felder v. 758 S.W.2d 762- enly, eventually [he] would be released 67 (Tex.Crim.App.1988); Ellason v. parole.” at-, (Tex.Crim.App. 665-666 1991); Mays v. denied, (Tex.Crim.App.1987), cert. troubling More in South Carolina (1988). apparent procedural pro absence Additionally, permitted the State is not prevent jury’s misunderstanding tections to argue a defendant should be parole. trial, of In Simmons’ “defense coun sentenced to death because he bewill re sel was forbidden even to mention the sub prison parole.20 leased from on Franklin v. ject parole, of expressly prohibited and was State, 420, 693 (Tex.Crim.App. S.W.2d 429 questioning prospective jurors from as to 1985), denied, 1031, cert. 475 U.S. S.Ct. 106 they whether meaning understood the of a 1238, (1986).21 89 346 finally, L.Ed.2d And ‘ ’ “life” sentence under South Carolina jury parole were a to consider in its delibera — at-, law.” 114 U.S. S.Ct. at 2190. may tions a defendant a entitled to new inquiring Simmons was barred from even 30(b)(7); trial. Tex.R.App.Proc. v. Buentello potential jurors disregard whether could the State, 610, (Tex.Crim. 826 S.W.2d 610-614 subject parole of in determining appropri- his Welborn, App.1992); parte Ex S.W.2d 785 — Simmons, punishment. at-, ate U.S. 391, (Tex.Crim.App.1990); 395 Callins v. Texas, however, 114 at S.Ct. 2190. In we State, 176, (Tex.Crim.App. 780 S.W.2d 191 provided safety have numerous measures to 1986), denied, 1011, cert. 497 U.S. prevent misunderstanding. such a While our 3256, (1990); State, Sneed v. juries meaning are not of a informed of a life 262, 670 266 (Tex.Crim.App.1984).22 S.W.2d sentence, Boyd, 118-119, 811 S.W.2d coun- permitted prospective case, sel to examine each In the instant issue of the juror extensively they about whether appellant’s potential early can pris release from obey an forbidding upon pardon their consider- on based parole, or commuta- cases, non-capital State, prior 20. argument); to the Moody constitution- ble answer to 827 v. amendment, 875, traditionally 1992) al (Tex.Crim.App. (parole has been error for S.W.2d 894 prosecutor urge jury parole a a by appellant's expert consider discussed on cross-exami- they determining appropriate when are objection). sen- nation without State, of tence a defendant. See Roberts v. 800 536, recognize prosecutor, 22.We also were a (Tex.Crim.App.1990); S.W.2d 538 Johnson State, arguments concerning special or his issue, her the new 1990); (Tex.Crim.App. v. 797 S.W.2d 658 urge give State, not to (Tex.Crim. a defendant Rose v. App.1987) 752 S.W.2d 532 (on life sentence he would limited State, because serve a rehearing); Clark v. 643 years prison, number of then Simmons 1983) (Tex.Crim.App. (panel S.W.2d 725 State, command that the be informed mini- of the opinion); Woemerv. 576 S.W.2d 86-87 prison prisoners. mum State, terms life See 1979); (Tex.Crim.App. 718, Jones v. 564 S.W.2d 2(e) (jury Tex.Code Crim.Proc.Ann. art. 37.071 1978); (Tex.Crim.App. 720-721 Clanton v. asked, “whether, taking State, into consideration all (Tex.Crim.App.1975); 528 S.W.2d 250 evidence, including of the State, circumstances (Tex. Marshbum v. S.W.2d 522 901 offense, State, defendant's character and back- Crim.App.1975); Hughes v. 493 S.W.2d ground, personal culpability moral State, (Tex.Crim.App.1973); v. Graham defendant, there is sufficient circumstance or (Tex.Crim.App.1968). 422 S.W.2d circumstances to warrant that a of life sentence occasionally imprisonment 21. This Court has found no error than a rather death sentence be parole interjected imposed.”); Tansy, where was into trial when the v. Clark 118 N.M. subject appellant (1994) by (prosecutor was argued initiated himself P.2d 527 or it was answering argument by get where the State was an not a matter of whether defendant would out State, when, e.g., defense counsel. See Coleman v. but down the there somewhere road victims). (Tex.Crim.App.1994) (permissi- S.W.2d would be more tion, rejected in Elliott placed not before the either was (Tex.Crim.App.1993). Simmons Therefore, 489-490 argument or through evidence.23 analysis only, to Due Process confined process require not due did expressly stated that Court meaning permitted to inform the of the addressing Eighth not Amendment were imprisonment. Because Texas does “life” at-, 114 S.Ct. at claims. not information to enter allow however, note, concept n. We deliberations, sen- relationship no eligibility “bears has upon tenced based information which he or the character nature of the offense opportunity explain.24 had no to rebut or Andrade offender.” Appellant process was not due of law denied J., concurring); see also Cali (Teague, instruct when the trial court refused to 992, 1021, Ramos, fornia properly trial court (1983) 3446, 3464, L.Ed.2d 1171 commands followed the Texas Constitutional (“[The (Marshall, dissenting) possibility J. prohibiting being considered no relation to commutation] or bears jury. Appellant’s points error the nature of character or the defendant’s are overruled. crime, justi any generally accepted penalty.”)25 Appel fication for death Eighth Amendment point of is overruled. lant’s error twelfth point er appellant’s eleventh CHARGE ISSUES IV. ror, contends that failure to inform the jury Eighth through parole about violated the thirteenth fif error, points complains the trial of Amendment. This contention was raised and teenth State, Collins, 304, repre- (5th the the defendant that 23. See Madden v. 18 F.3d 310 crime and Cir.1994) particularly senting organized society, (Argument by prosecutor, deems rel- "[a]nd if we decision.") sentencing by permanently the don’t take him off the streets evant to answering questions yes, will be next these who that this evidence is The dissent also contends path?" judge jury by in that and instruction to jury mitigating the be instructed and thus should parole possibility not to consider of were held concerning terms for the minimum incarceration improper parole.) not to be references to however, evidence, prisoners. capital life This "the and record of does not concern character years 24. The number of before a defendant is the individual offender” the “circumstances of is not relevant to this due particular v. North the offense.” See Woodson process analysis. only question is whether 2978, 280, 304, 2991, Carolina, S.Ct. 428 U.S. available, interjects the is whether State Ramos, (1978); v. 49 L.Ed.2d California trial, subject the of into the and whether 1006, ("As with 103 S.Ct. at 3456 the safeguards prevent exist in the State to such scheme, sentencing system California Texas the becoming part information from of the sentenc- jury ensures the will have before it informa- that ing process. regarding the individual characteristics of tion offense, including the na- the defendant and his dissent, Judge Maloney of the crime and the In his directs our at- ture and circumstances character, history, attempts public background, men- Legislative tention to and move- defendant’s condition, condition.”) physical Sentencing.” Op. urging "Truth tal and ments in Ramos, Supreme poli- He contends a State As the Court noted 884-886. further that informing cy jurors informing the Our an instruction [that the cases of conclusion of power governor’s of eligibility jury the of a commutation would facilitate minimum Eighth and Sentencing.” Judge Maloney’s does the Fourteenth not violate "Truth in persuasive, argument strongly legis- Amendments] not intended to override the is we were is if judgment legislatures determining contrary jurists. state lators and not The choice of capital sentencing juries jury generally legisla- in their states should what should consider Ramos, permitted the to consider Governor’s 463 U.S. tive. See California 3446, 3460, power It elementa- to commute a sentence. 77 L.Ed.2d 1171 S.Ct. pro- (1983) ("We provide greater ry judges, legislators, States are free to not as sit justice system permit juror criminal than the con- tections their wisdom of decision requires. possible the Federal Constitution commutation is best left sideration 1013-1014, States.”) Judge Gregg Georgia, S.Ct. at 3460. 463 U.S. at 428 U.S. 2909, 2934, (1976) compelling properly Maloney’s dissent should 49 L.Ed.2d However, body (“It channeling problem and considered. reviewed [of seems clear that the argument Legislature and such an is the will be alleviated if consider discretion] public given guidance regarding and not ourselves. the factors about overruling proposed court conflicting erred Ms in court submitted instructions concerning evidence, mitigating jury. struction The court first instructed the overruling objection they his to the instruction cannot consider the extraneous of- given, refusing his purposes include fourth fenses for of answering special issue, special respectively. Appellant’s they re issues unless find the extraneous of- quest mitigating for a instruction is appellant beyond based fenses were committed upon Penry Lynaugh, 109 reasonable doubt. The court then instructed (1989).26 only Be could consider the previously cause we have approved passing upon extraneous offenses when given identical nullification weight testimony” tMs of “said and for no other case, appellant’s thirteenth purpose.28 and fourteenth arguments, began After points deliberations, of error are overruled. Riddle v. and one hour later recessed for State, (Tex.Crim.App.1994); 888 S.W.2d point lunch. At that the trial court removed State, Goynes v. (Tex.Crim.App. conflicting No. 71387 ap- the second instruction. On 1994).27 peal, delivered Dec. appellant object We have also does not to the content previously trial, held that a trial does charge. appellant court not err At the corrected in submitting object a “nullification charge being instruction” did not altered separate special rather issue. Robert begun. than arguments Appellant after had men- (Tex.Crim. son v. possible objections, tioned that there were App.1994). Appellant’s point any.29 fifteenth but er he failed to make ror is overruled. Article 36.16 of the Texas Code Criminal error, eighteenth point interpreted permit Procedure has been argues correcting the trial court erred in an trial court to charge withdraw correct its charge began erroneous after if deliberations convinced an erroneous has charge been prior but Bustillos v. given.30 verdict. The trial Appellant removed, February in following page, was tried of 1992. In Be- the which was the 1, September jury cause his trial occurred before was further instructed: 1993, appellant special did not receive new the You are instructed that certain evidence was concerning mitigation. Tex.Crim.App. issue See you regards admitted before to defendant 2(e) (for § art. 37.071 offenses committed on or having charged been and convicted of an of- 1, 1991) September 3(e) (for after and 37.0711 or other [sic] fense than the one for which he is 1, 1991). September offense committed before now on trial. you Said evidence was admitted before for proper 27. As received a nullification purposes you you aiding of if it does aid instruction, we need not reach the issue of passing upon weight you give the proffered whether he sufficient evidence to raise testimony you and will not consider the same Penry issue sufficient warrant an instruction. any purposes. for other State, 473, See Robison 888 S.W.2d 486-487 329, (Tex.Crim.App.1994); Penry, 492 U.S. at attorney Appellant’s stated: 2952; Dugger, 109 S.Ct. at Hitchcock v. give are a of There number issues Mat rise to (1987). possible objection perhaps to increase if in fact deliberating if started had made a deci- problem 28. The in this instance concerns two any particular aspect sion on of this case. conflicting presented jury. instructions to the instance, impact, might theWith be on charge instructed the that: concerning argument offenses re- extraneous any You are further instructed that if there is any particular lated to issue or whether testimony you regarding in this before case the type jeopardy some of has attached. having defendant’s committed offenses other alleged against than the offense him in the provides, part: 30. Article 36.16 of the Code indictment, you testimony cannot consider said argument begins charge any purpose you After the no further and unless find believe given required by beyond shall be doubt that the unless the reasonable defendant offenses, improper argument any request of committed such other if counsel or the were committed, shall, jury, you may only judge and even then of the or unless the in his con- discretion, permit determining the sider same in answers the of introduction other testimony. special issues. State, ing); Murray v. (Tex.Crim.App.1964); see Nowlin 125-126 1993, no (Tex.App. Worth 1072 808-809 175 S.W. 76 Tex.Cr.R. —Fort (late charge, of over (1915). pet.) supplementation Appellant argues these cases should de- objection, undercut defendant’s which permit the revision be abandoned because to jury argument denied fense and argument begun is charge has of the after trial); fair Moore lawyering. permit sloppy also 1993, pet (Tex.App. [1st Dist.] —Houston refd) (not amended permissible where Legislature In the Texas and detriment charge was to defendant’s relating procedures amended objection). urging In this Court over his charges enacting of article 737a the Code decisis, appellant argues that stare (1913). abandon Tex.S.B. 166 Criminal Procedure. correcting errone- continuing practice inter recognized that if this Court arguments after are ous instructions literally, have “no preted the court would lawyering. encourage “sloppy” concluded will change right appellant’s objection his over However, empirically concern charge give any charge, or additional unfounded, by few cases as is illustrated contingency argument has been after of an complaining of a trial court’s correction concluded, except those mentioned” charge. We are not inclined to erroneous Nowlin, 175 at 1072. Never article. S.W. appel- upon based precedents overrule these that, theless, the held Court Appellant’s arguments this case. lant’s previous taking all of our statutes and point over- eighteenth final of error is consideration, pur- decisions into ruled. pose object legislature in mak- judgment and the Appellant’s conviction ing changes said act said court are affirmed. trial 737a be construed to article should not prohibit absolutely all cir- court under adding changing to his cumstances BAIRD, concurring. Judge, charge. stated this case can be The central issue has the law in Texas.

Id. This remained light of Simmons v. South as follows: (“In Bustillos, See 464 S.W.2d at 125-126 Carolina, U.S. -, light purpose the court [art. 36.16] (1994), does the Due Process L.Ed.2d before verdict withdraw and correct its States Constitution re Clause of United charge charge if convinced an erroneous has long quire be informed how State, given.”); S.W.2d been Chambers v. 379 confined capital murder defendant will be (“If 907, (Tex.Crim.App.1964) the matter 908 eligible in the is being parole event before us, find no the court’s is before we error for life rather than sentenced to confinement correctly amending charge his in order to death. State, law.”); Hill v. 92 Tex.Crim. state the (“... 312, 982, (App.1922) 243 S.W. 983 we I. right open question as think it not charge clear, court to his after of the trial withdraw our law was to Simmons Prior ”); .. Jacobs argument parole conclusion or a release of defendant’s matter (Tex.Crim. 628, State, 213 proper v. 628-629 a consider- S.W. was not for thereon (appellant right capital to com- App.1919) may waive trial and a a murder ation in charge after to a plain agreed alteration in was not entitled of murder State, 630, Stok- arguments); parole v. 710 laws. explaining Gaines S.W.2d our State, pet. (Tex.Cr.App. (Tex.App. Corpus Christi er v. 788 S.W.2d 632-633 — State, State, refd); 1989); O’Bryan v. 591 S.W.2d 656 S.W.2d Morlett v. State, and, pet.); (Tex.Cr.App.1979); Andrade no (Tex.App. Corpus Christi (Tex.Cr.App.1985). n. 1 700 S.W.2d Smith subject (on holdings to federal were not pet.) no rehear- These (Tex.App. —Dallas available, attack power because the States have is the Constitution does not require (or justice preclude) jury sys- determine whether their criminal [parole consideration of Id., instruction; eligibility].” at-, tem will allow such an Due Pro- S.Ct. at 2200 J., (O’Connor, compels, prohibits, concurring). cess neither nor a parole instruction on state laws. California interpretation Under the instant of Sim- Ramos, 992, 1013-1014, mons, will a there never be Due Process (1983). 3460, 77 L.Ed.2d 1171 Appel- long possibility violation as parole questions lant viability the continued of these exists, regardless of how remote. in light of Simmons. cases III. II. Today, a Texas murder defendant Simmons is composed separate five years life sentenced to must serve 40 before opinions; opinion, the lead authored Jus- being eligible parole. might for ques- One Blackmun, tice garner failed to a majority of meaningful tion whether there is a distinction provides Court. Such resolution little possibility between without life guidance Moreover, to the bench bar. being eligible after serving 40 the future of the area affected of the law years in process confinement. Would due remains uncertain. When the law is uncer- provided if our violated law that a capital tain, appellate judges court have little confi- murder years defendant must serve 100 proceed dence how when confronted before being parole eligible? confinement Or situations, with issues. In similar these Simmons, 1,000 years? my reading From opted Court Supreme has to read Court Supreme perceives Court a distinction. opinions in light.1 their most narrow argue While the dissenters such substance, promotes distinction form over light, plurality this narrow holds is nevertheless distinction Constitutional Simmons because, application no has unlike magnitude in the mind of the Simmons Carolina, South a Texas murder de- Court. fendant sentenced to for confinement life is eligible parole. for reading This narrow is supported by Sim- opinions two of IV.

mons. plurality opinion his Justice Black- upon Based Supreme Court’s treat- mun stated: decisions, believe Simmons ment of its I own available, ... In a State which is See, Mines v. opinion. is a fact bound jury's

how knowledge avail- (Tex.Cr.App.1994) (op. ability affect the decision whether or Supreme remand United States Court) impose (Baird, J., not to penalty specula- death concurring). Because Sim- tive, shall mons is limited to cases where the defendant lightly second-guess and we ineligible parole, decision whether not to inform a and because parole, regarding process is no information there due violation.2 — Simmons, -, U.S. at S.Ct. at opinion, 2196. concurring comments, her join only Justice judg- With these I the in O’Connor stated: “In a which State ment of Court. the interpretation prac 1. This Eighth nanrow has had the which finds violation of the Amend- However, overruling Supreme tical only affect of the Court ment. of the two Justices in See, opinion. Eighth Robison v. Simmons addressed the Amendment. (Tex.Cr.App.1994) Judge 485-489 Consequently, Maloney's holding appears sub silentio overrul ing Penry Lynaugh, 109 S.Ct. finding to more be even tenuous than a due (1989). Therefore, 106 L.Ed.2d 256 process I violation. believe it more prudent Supreme the to for Court resolve the agreement Judge general Eighth Hopefully, I am in with Amendment Malo- issue. reso- ney’s plurality gamer well written and well reasoned dissent lution will more than a of Court. MANSFIELD, penitentiary in Judge, concurring. years confinement teen eligible pa- to be before he would even light of Simmons argues that in Appellant and Paroles. the Board of Pardons roled — Carolina, U.S. -, v. South rejects on the plurality this contention The (1994), Pro 129 L.Ed.2d 138 the Due First, the cites following reasoning. plurality cess Clause of the Fourteenth Amendment state, grounded princi- in “policy” of this States Constitution mandates United separation powers, prohibit ples of capital jury in a murder told how case be cases, capital deliberation required much time defendant jurors officially inform of the actual “not to in the event is to life serve sentenced consequences Op. of a life sentence.” prison rather than to death. Second, notwithstanding the of the opinion Simmons important to note that is a It is Simmons Supreme Court in United States separate opinions of five there collection Carolina, -, South S.Ct. such, is no majority prece- opinion. As (1994), plurality limited, though Simmons value of dential that the Due Process Clause concludes apply that it it is fair to conclude would in- require Amendment does not Fourteenth if the Texas alternative to death sentence forming requested as capital here life in murder case were cause, trump not our own this thus does parole. prison without is not true Since that against it. state-eonstitutionally-based policy law, Simmons, my current under Texas opinion, applicable. is not consideration, I must careful I find After disagree plurality with its conclu- both Legislature Texas has The established First, I we mistak- sions. believe have been procedure to be once an followed individual twenty years over the to conclude en last capital convicted of minder. Crim. Tex.Code principles separation powers some- (as amended, 37.071 for Proc.Art. effective (we prohibit expressly never ex- how have September offenses committed on or after how) jurors informing capital plained in a 1991). Legislature has also determined capital life that a defendant sentenced to case is that the in a case to be imprisonment serve a minimal must certain charged relating the law length he becomes sentence before good time in case in which the and/or Second, They do not. has been convicted of a 37.07, § felony. to serve a Tex.Code Crim.Proc.Art. that a defendant sentenced (1994). expression legisla- Given actually this clear must serve a certain life sentence intent, it my opinion tive that it would be length be- minimum of that sentence before inappropriate for this Court to its substitute coming eligible to be seems to me 37.07, 4,§ judgment own and overrule Art. “indisputably to the determination relevant” Supreme absent clear direction from the criminal acts he will “commit whether my opinion, that we so. Court must do continuing that would constitute violence Simmons is not that clear direction. society” Article under former threat Simmons, 37.071(b)(2), su- See V.A.C.C.P. above, Subject join to the comments I at-, 129 L.Ed.2d pra, only opinion of the Court but concur with the Extrapolating principles from the at 142. point disposition of of error number nine. in Sim- plurality opinion announced mons, inescapable to the conclusion seems CLINTON, Judge, dissenting. to avail the me that failure violates “indisputably relevant” information argues point in his ninth of error Appellant where, here, there process least as due him failing trial court erred to let that the —at has by that the time evidence jury, request, per explicit his inform statutory penitentiary minimum sentence, served that if assessed a life he would large time, society” by potential fif- his “threat required to serve a minimum of law greatly view, then, my will be reduced. A There are somewhat different theories. separation powers state prevent, try does not I explain will it to the best I that * * * process and federal due positively requires, can. thing first [T]he about the upon request, least that sociopathie be in- personality disorder or an- of, formed and allowed to consider for its tisocial individual has to do with what oc- relevance to dangerousness, future mini- relatively early age curs at an develop- length mum of time a defendant sen- get ment. Most of us when we to—those tenced to life becoming children, must serve before of us who have remember when parole-eligible. year our children were a and a half or two

years two, age old. Before the children age prone very are that are to be I. by narcissistic. And what I mean I Appellant committed the instant offense on they mean view the world their whole 15,1990. May An accused convicted of com- they cry life as when and vomit and mama mitting murder on that date is appears they and fees them. If [sic] are required by statute to serve a minimum of cold, they cry and appears mama and cov- years fifteen penitentiary, exclusive of Now, ers up, them etcetera. their views credits, good time becoming eligible before prone are to see the mother as kind of a 42.18, 8(b), for See former Article light, genie lamp. from Aladdin’s And V.A.C.C.P., prior by to its amendment Acts age around the of two and a half or some- Leg., 15(b), §§ 72nd ch. pp. 10 & where there the child becomes aware 2396-97, Sept. eff. 1991. This means that that mother looks him after because she appellant would not even become him, loves not because she has to. And it’s release on upper until well into his game. a whole new ball Mother with chil- thirties. experience dren They say this. that this is when the terrible twos become the terrific punishment phase At the of trial appellant threes and the child understands now that Fason, called Dr. Fred a board psy- certified looking Mother is after him not because he chiatrist, testify. Fason had examined makes her do that but because she loves appellant prior to trial purposes of deter- him game. and it’s a whole new ball mining sanity his at the time of the offense Now, the narcissistic individual is left competency and his to stand trial. In the year baby sense like the and a half old course of this examination Fason concluded that he feels entitled to whatever he wants. “suffering antisocial, people get And stage started at this what is now referred to as antisocial reae- development they self-centered, become tion[,]” formerly “sociopathie known as dis- really don’t peo- [sic] are about other turbance.” Fason elaborated that antisocial ple. And this is a sense almost of the reaction: sociopath psychopath. There is an ad- rebelliousness, “is characterized ... gets superimposed ditional factor that self-centeredness, concern for oneself and hope I being disrup- without —and I’m not with difficulties the law of antisocial behav- tive for gentle- the Court or the ladies and essence, ior. person’s it’s the mental jury. men quote I will have to what problems manifested in their behavior goes psychopath on inside the mind of the thinking rather than their or their feel- expe- to relieve the stress that others of us ings. rience. And it is an attitude that is ex- Q person How does a in effect become pressed by people say what to themselves way? Again for want of a better phrase upon this is based —and phrase, something person that a examination of hundreds of individuals who something born with or is it per- that the diagnostic category. have fallen into the develops during son develop- Again you an individual if pardon expression, it’s it, ment being? as a human fuck I don’t care. And this is what the like people normal think most things I don’t but says himself about individual And I something. guilty about to feel And in normally to him. stressful that are things make me feel that like to do don’t to act like it it he has to make work order ** * guilty. that, Mr. as with many individuals I him if he remembers when asked Smith normally that we control The third drive saying to himself and that when he started consequences. concern about use is was a it. And it clearly remembered * * * types you have those three that So way avoiding discounting. It’s a way of to fit people that use control of drive ordinary way avoiding the It’s a shame. society. this to control our that we use drive control sorry. I’m ahead. Q right. All Go impulses. ^{[*] [*]} n ^{[*] [*] [*]} A using those Mr. Smith doesn’t long time have those. ago. He quit sociopathic personality at some The understand, has been that Q as I And only is start- development point three areas for those replaced, the concern adopts as a but the narcissistic level ed at basically either have been or drive controls that phrase to himself enables life-style the my again up replaced or covered with — you say And if the rules. him to discount attitude apologies to the —the that, you get well, you aren’t ashamed it, I don’t care? phrase fuck that it response. you Are concerned that his conscience right. When A That again it’s that same person, hurts years years and speak to him started sociopathic phrase. And this frees the says you voice inside ago the little struggle having to with personality from saying started do that. But he shouldn’t struggle with in most of us conflicts that many years ago so his conscience that to out in their behavior. It comes life. quit listening it and quit that he even myself. You Q clarify that for Let me hearing it.” the term drive controls— used be, “prognosis” would Asked what A Yes. replied: Fason indi- Q place are in for the normal —that in their people “... see a lot [Y]ou people on a interact with other viduals who Anyone in diagnosis. with this twenties society; right? daily in our is that basis justice system has been who the criminal people lot of an awful here a while sees A Yes. into that would fall 18 to 29 that who are Q would be shame? Those drive controls get past age people category. When many in the criminal you see that don’t The three drive controls A Yeah. age you rare- past And justice system. are, impulses to control our most of us use diagnosis with ly ever see someone one, says is what it shame. That number age of 40. past the might get impulse an to do us. I about pulse, as Freud something and it said, might but I might a natural think I’m im- n ^[*] n n n n get I want to be into late twen- person. [Sociopaths] kind of don’t their not that ... mid- person early do some- or sometimes kind of would thirties ties or realizing they do they I if I that would start thing like that. And did thirties and care they don’t telling I themselves doing that and wouldn’t care be ashamed keep anymore. And when way and that would doesn’t work to feel that want Now, they have anymore then impulse. work acting doesn’t me from lifestyle. changing their whole start one. that’s when happens to them ... guilt. I don’t What second one would Occasionally you will forties? you get to their guilty. I don’t know about like to feel relatively you see one but it is rare or by at least assure the time the bus from in comparison Department uncommon to drops the number of Texas him Corrections diagnostic stop individuals that fall into this off at cat- the bus most of us won’t be egory any in objection their twenties. around more.” The State’s to sustained, argument jury and the appellant attempted When next to ask Dr. disregard instructed to it. long appellant required Fason how would be penitentiary to serve in the before he would II. parole, object- become the State ed, lengthy and a bench conference ensued. plurality jury observes that the in a Ultimately the trial court ruled that the an- capital parole any ease not “consider question swer to this was inadmissible be- considering manner capital when whether a jurors disregard cause would invite defendant should be sentenced to life or jury charging conventional instruction them Op. death.” at 849. It is true that we have not to consider action the Board of Par- consistently judicial held consideration might dons and Paroles take on some future sentencing improper would be ultimately occasion. Dr. Fason was allowed capital non-capital as well as cases. We have testify response questioning by ap- State, early said so as as Freeman v. however, pellant, length that “the of time (Tex.Cr.App.1977), S.W.2d and as person up might that a is locked be a factor State, late as Garcia v. 887 S.W.2d determining person whether or not that (Tex.Cr.App.1994). general proposition As a danger community!)]”1 to this undoubtedly this is correct. “The evil be by avoided is the consideration Later, conference, jury charge ap- at the assessing punishment.” Rose v. pellant requested “that the State, (Tex.Cr.App. at 535 be per- withdrawn and that the defendant be 1987) submission), (Opinion original citing through mitted counsel to instruct the (Tex. Clark v. 643 S.W.2d at 725 length and tell the as to the of time the Cr.App.1982). probability in all will be forced to spend ... years.” it would [t]hat be This Texas, however, capital ease in request was denied. The trial court instruct- punishment.” does not “assess See jury: ed the (Tex. Boyd v. at 120 Indeed, Cr.App.1991). ap- as of the time of deliberations, your “During you are not trial, pellant’s capital juries did not even any possible

to consider or discuss action decide “whether a defendant should of the Board of Pardons and Divi- Paroles They simply be sentenced to life death.” Department sion of the Texas of Criminal issues, special questions answered of fact Governor, long Justice or of the or how relating to the deliberateness with which the required defendant would be to serve to defendant acted to cause the death of the satisfy imprisonment.” a sentence of life deceased, probability he would a con- be summation, during On one occasion his final tinuing society, threat and whether his attempted oblique counsel an rhe- killing of the deceased was a reasonable re- torical appellant allusion to the fact sponse provocation, any. if See former 37.071(b), danger general public would not Article That V.A.C.C.P. might paroled, capital punishment the time he “I in a proceeding might viz: Appellant attempted personal knowledge also to elicit Fa- from Dr. murderers sen- serving son that convicted murderers life necessarily tenced to life would serve those sen- security sentences in maximum generally proven units have not short, security tences in maximum units. ques- to be violent. Counsel’s establishing counsel was less than successful in inartful, tions were however. The most he estab- pose would not a threat of future vio- lished was that Fason was "familiar with studies on that.” Fason did not prison "society” given lence to the if a life sen- say whether he believed tence. those studies were accurate. Nor did he have length capi- the manner which the consider the minimum of time a to consider particular defen- serving may applied tal a life must be to this defendant sentence law Nevertheless, actually becoming eligible statutory for instruc- serve before dant.” parole, assessing probability jury unspeci- relevant to in some tion did authorize dangerousness, of not mean it his future does fied sense to “consider the existence considering parole assessing punish- “in parole good conduct time.” We law 4(a) ment.” § of Article 37.07 un- therefore declared alia, constitutional, basis, it inter that on the separation powers under Article violated A State, II, 1, supra, supra. § Rose v. at 535. non-capital in long The Court has held approved an amend- The voters Texas jury cases that consideration of when the IV, § 11 of the Texas Consti- ment to Article might Board of Pardons and Paroles release in that for the first time autho- tution parole judicial a convict on would constitute a Legislature to enact “laws that rized the upon manifestly encroachment a executive juries require permit courts to inform function, II, § in violation of Article 1 of the parole eligibility of ... for about the effect surely Texas Constitution. This is correct. period ... on the of incarceration served 349, at 351 Sawders 580 S.W.2d a convicted of a criminal offense.” (Tex.Cr.App.1978), explained: we 1989, 4, 1, Leg., p. § Acts 71st S.J.R. See improper punishment would “[i]t be to 6414, 7, approved Nov. 1989. At the same expectation clemency on an based that 4 of Legislature time the reenacted Section exercised, powers would be and it would be 37.07, supra, reinstating jury Article thus delay attempt unconstitutional to exer- in charge provisions we had struck down clemency powers cise of the or to avoid the 1, 1989, 103, § Leg., Rose. See Acts 71st ch. possible granting parole by increasing p. upon approval effective of the consti- punishment anticipation in thereof.” amendment, Nov. 1989. This tutional that, notwithstanding, Court later held Rose State, supra, See also Rose v. at 532. It is jury given pursuant to the reen- a for this reason consideration of provision separation of acted did not violate parole non-capital in a is considered case powers. Oakley at always to constitute misconduct under (Tex.Cr.App.1992). 40.03(8),V.A.C.C.P., now, former Article 30(b)(8). Tex.RApp.Pro., Rule Sanders 37.07, terms, § Article By its reenacted State, supra, at 352. op- expressly exempts capital cases from its Thus, Legislature has not ex- eration. Legislature In 1985 the added 4 to Section any permits or 37.07, pressly provided law that Article V.A.C.C.P. See Acts juries requires courts to inform of the effect Leg., § p. Sept. 69th ch. eff. period of incar- eligibility on the provision 1985. This for the first time re- capital a defendant sentenced quired juries in ceration that trial courts to instruct non- IV, imprisonment must serve.2 Article capital felony generally law life trials about the accordingly “[y]ou supra. may argued § It parole, specifically but are not 37.071, provision concurring opinion Judge That neither Mansfield Article V.A.C.C.P. his expressly prohibits by providing particular expressly in- opines in- authorizes nor 37.07, parole eligibility. forming jury § to minimum in Article not to be a structions are cases, (a) given capital Legislature of 37.071 does authorize in has “also But subsection any capital it “deems rele- case is not trial court to admit evidence determined that eligibility charged relating Minimum to be as to the law vant to sentence." "indisputably future good any relevant" to the issue of time in case in which the defen- and/or dant IIC, Moreover, felony.” dangerousness. post. capital See Part been convicted of a has 37.07, prohibit Op. Legislature Article 4 to has made no such were we to construe 857. The eligi- capital jury informing of minimum does not broad determination. Article 37.07 purport punishment proceedings cap- bility any in which the defendant is able case to cover present significantly proceedings governed by present are evidence he ital cases. Such that, in express provi- jury’s the absence of such an consideration for a deliberations on sion, separation powers punishment.” explication, principle Id. Without prevails, preventing Sanders and Rose still Court then concluded: “This is also true in a case the trial court case from instruct- where the task at the punishment stage special ing punishment is to answer the manner necessarily issues.” But is this so? other than as the this cause was in instructed, fact viz: that not consider The earliest case which a defen- any possible action of the Board of Pardons expressly requested dant an instruction edu- long may and Paroles or how the defendant cating jury as to the minimum time he actually satisfy have to serve to a life sen- becoming eligible would have to serve before tence. State, parole for is Franklin v. 693 S.W.2d (Tex.Cr.App.1985). There the defendant however, argument presupposes, This requested jury that the be instructed that: any jury regarding parole instruction in a capital separation powers case will violate “you are not to consider much of his how way perceived in the same we it would in required sentence the defendant would be presumes jury It Sanders. that a instruction being if parole, to serve before released on parole capital about the in a law case will punishment imprison- his is assessed at life jury upon invite the to encroach the execu- instructed, however, ment. You are prerogative grant parole tive much the law, person serving under the a a who is way jury same we feared that a so instructed imprisonment sentence of life for the of- me, in non-capital It ease would. seems to capital fense of murder not be consid- however, presumption great- that that merits parole ered for release on until his actual scrutiny, er and to that I now turn. served, calendar time without consider- (20) time, good twenty

ation of conduct years.” B. instruction, The trial court refused this body culminating of caselaw in Sand- complained appeal. Franklin it on This incorporated uncritically ers has since been simply quoted language Court the above capital jurisprudence. stop- into our Without State, O’Bryan supra, if as it were whether, extent, ping to ask and if so to what self-evidently dispositive con- of Franklin’s

jury punish- consideration of in the tention, ground and overruled this of error. phase really ment of a case would O’Bryan purport But did not to address the function, upon encroach the executive question specific whether a instruction would, simply Court has assumed that it parole eligibility might ap- on minimum be State, accordingly. O’Bryan ruled jury’s propriate insofar as it relates to the (Tex.Cr.App.1979), example, S.W.2d 464 question resolution of the whether the ac- requested the defendant probably continuing will cused constitute explained parole process, and func- society. respect, threat to With all due Paroles, tion of the Board of Pardons and simple thought matter is not as we and then admonished “not to consid- Franklin. er their deliberations or whether might paroled [the be at some defendant] in Andrade v. Likewise Id., holding date the future.” at 478. In (Tex.Cr.App.1985), argued the defendant fading the trial did not abuse its discretion failing the trial court erred in to instruct the instruction, that, give requested imprisonment, the Court if sentenced to life first observed that matter of not become until “[t]he he would proper serving twenty years. a defendant’s release thereon is not a at least calendar This then, III, society by oper- post. potentially reduced threat to it would See Part We should eschew deprive right present ate to complete him of his interpretations unconstitutional of a statute. defense, process. in violation of due special issues with- only answering the authority of rejected on this contention Court will ulti- sentence that regard out to the decision in Williams v. its earlier mately imposed.” But (Tex.Cr.App.1983). question the Court had a different Williams Id., original). It is of (emphasis in the at 64 objected had There the defendant before it. jury should focus true that course an instruction that was submitted punish- special issues at the resolving the long cautioning it consider “how not to case, that is its of a since phase ment required to serve this defendant would juncture. equally It is only at that function satisfy imprisonment.” of life We a sentence special jury should answer true that the not erroneous. this instruction was held regard for the outcome. issues without jury may properly be admon- That a short, facts. simply to find role length of time speculate as to the ished not however, out, hardly suffi- point this To actually he is serve before a defendant He ar- Knox’s contention. cient to answer however, necessarily mean paroled, does not requested instruction should gued that his jury may told that he that same not also be parole minimum given because have been certain actual calendar have to serve a will jury’s to fact- eligibility is in fact relevant the eligible for becomes time before he even it finding function insofar as relates not mutual- parole. The two instructions are did not dangerousness. future We issue of exclusive, ly propriety of the former does contention. We agree disagree or with this impropriety the lat- logically establish apparently ignored it. distinction, my ter. In view this is a critical yet has examined the but one which a again confronted with We were once support the hold- does not Court. Williams State, claim, at in Jones v. 843 S.W.2d any O’Bryan sup- ing in Andrade more than capital defen- (Tex.Cr.App.1992), that ported holding in the Franklin. inform the have been allowed to dant should minimum be confined a that “he would (Tex.Cr. State, Knox v. 744 S.W.2d years” in the event he were sentenced of 20 in- App.1987), requested an the defendant O’Bryan Citing and its imprisonment. to life like the one we held Andrade was struction not-dispositive familiar but progeny for the request On not entitled to. His was denied. general is not a proposition appeal to “revisit” its he invited this Court juries, capital we proper consideration for holding promul- in Andrade in view again we failed claim. Once overruled Jones’ 37.07, 4, supra. right- § gation of Article We contention that squarely to address the ly provision on its face observed that parole eligibility knowledge of the minimum capital But Knox apply does not eases. the resolu- be relevant to date would argued that an instruction on the further special issue. In other the second tion of period capital minimum convict sentenced rejected generic claims cases we have imprisonment be- to life must serve before juries capital should have been instructed necessary coming eligible for “is State, E.g., Stoker v. “the laws.” answering dan- guide [future the the (Tex.Cr.App.1989); Elliott v. at 16 S.W.2d re- gerousness] special issue.” The Court’s (Tex.Cr. 478, at 489-490 puzzle. sponse argument to this is a We State, supra. have App.1993); We Garcia said: however, explanation yet, to offer a coherent capital convict 37.07, 4(a), period minimum why § it is clear that Article “[I]f felonies, life sentence must serve it is assessed a apply then is who does not not be rele- should jurors cases become clear that also dangerousness. the issue of future solely special issues vant to should focus on the precisely how an explained during punishment Nor have we to them submitted * * * parole eligibility actually minimum jurors instruction on phase. do not Since II, my supra. Article capital would violate a defendant in Texas ‘sentence’ relevant, and inform- cases, information is directed view the their attention should be Sometimes, ing separation prison population. as in in- of it would not violate case, powers. stant there is evidence that in time the present accused will not much of a threat to prison population general either the or the c. also, public. e.g., See Matson (Tex.Cr.App.1991). In combina- Relevance evidence, knowing tion with this kind of accused, sentence, if a life relevant, assessed Evidence is under Tex.R.Cr. spend period at least a certain minimum Evid., “any tendency if it Rule has helps time incarcerated to decide any make fact that is of the existence probability continuing that he will be a consequence to the determination of the ac- society, helps jurors threat to because probable probable tion more or less than it identify Thus can tell where he will be. Moreover, would be without the evidence.” portion society may may not what admissible,” except relevant “[a]ll evidence spend If risk. the defendant must least alia, by, provided as otherwise inter years prison satisfy fifteen Tex.R.Cr.Evid., state constitution. Rule 402. imprisonment, of life must sentence If the fact that must serve at least pose probability decide the he will a threat to years fifteen of a life sentence has ten- prison population long, at least dency probable to make more or less that he then, probability he will threaten the will commit future acts of violence so as to Moreover, if general public after that. there society, continuing constitute a threat to then evidence, here, years that in fifteen jury’s that fact cannot be excluded from the significant a accused will not constitute dan- consideration, at least not on the basis that it walls, ger prison either inside or outside lacks relevance. will until then fact that he be incarcerated parole eligibility minimum in Is relevant possibility tends to minimize the of his ever that, threat, this sense? It seems to me at least constituting public a at at least to the evidence, location, short, large. combination with other it often is. In to the consistently “society” it can foretold relative certain- We have held extent be with evidentiary ty, is an fact from which the acceptation understood in its common fact, such, elemental whether he will be a continu- ordinary English, and that as its mean- be, ing “society,” may part, threat to de- “society” ing is not limited either to the evidentiary “indisputably This fact is rived. existing outside the walls of the Texas De- provisions relevant” even under the of our Justice, partment of Institutional Criminal rules of criminal evidence. Division, “society” or to that that exists with- “society” in those walls. have construed We See, State, e.g., Sterling v. to embrace both. Separation Powers of (Tex.Cr.App. at n. 5 S.W.2d evidentiary imparting this relevant Unless 1992); State, Caldwell v. at S.W.2d separation of fact to the would violate State, Boyd (Tex.Cr.App.1991); 798-99 su- Sanders, then, ought powers under it to be 12; State, pra, Rougeau at n. view, my accessible to the factfinder. (Tex.Cr.App.1987). at 660 simply not danger we noted Sanders does consequence,” predicting “the fact of viz: question capital jury pertain to the whether a particular capital whether a defendant will long informed how a defendant should be “society,” it continuing a threat to constitute imprisonment will who is sentenced to life undoubtedly to know

would aid eligible for have to serve before he becomes to, aspect society exposed of which he will Jury of the minimum consideration and when. parole eligibility as it relates to the date evidence, example, manifestly that a dangerousness We often see issue of future capital presents greater judicial upon a much It not encroach function. does prerogative “society” large executive at all. threat than to they a life punishment phase non-capital At cannot assess death instead of case, not, prevent the eventual jury’s sentence order criminal function is case, parole. Capital accused on findings release of the to make discrete jurors just They weigh relevant Instead, find facts. fact. decides what term special accord- information and answer issues appropriate punishment is within the statuto- Thus, ingly. capital jurors consider when rily prescribed range. “Deciding pun- what capi- parole eligibility minimum date of a process, ishment to assess is a normative not sentence, they serving a life tal defendant intrinsically Murphy factbound.” accurately (Plu- only that information to more use (Tex.Cr.App.1988) danger- gauge probability of his future rality opinion on State’s motion for rehear- judicial manifestly function. ing). always danger in There is a non- ousness— They try predict when he will do capital punishment proceeding jury, that the Indeed, actually parole.4 they be released on law, cognizant will abuse its pretermit, second-guess or otherwise do not punishment wide discretion decide what any power prerogative with interfere appropriate by imposing a sentence any way. It there- the executive branch account, possibility takes the into fore cannot be said that violate the adjust and tries to for it.3 This encroaches separation principle powers articulated unconstitutionally upon the executive func- in Sanders. attempts anticipate tion in that it circumscribe exercise of au- the executive

thority grant parole. Sanders v. D. supra, at 351. parole eligibili- An on minimum capital punishment proceeding In a II, ty in a case does not offend Article role is more limited. The 1, supra. tacitly § Our handful of cases as- Rather, punishment.” does not “assess Franklin, does, suming that it such as An- facts, determines the existence of discrete Knox, drade, supra, ought to all be dis- probability such as the the accused com- Moreover, 37.07, approved. that Article mit criminal acts of violence that would con- parole supra, expressly does not authorize a continuing society. stitute a threat to Pun- capital instruction in a case does not mean a according ishment is assessed capital jury to mini- cannot be informed as resolution of these fact former issues. See parole eligibility. provision, mum That 37.071(e), Capital jurors IV, Article V.A.C.C.P. to Article tandem with the amendment anticipate parole § have no occasion to and circum- supra, was meant to authorize authority. parole notwithstanding any scribe the executive Be- instructions violation of all, punishment” separation powers. informing cause do not “assess of Because course, 37.07, 4(a), is, course, § 3. Of under that actual current Article tion. The difference of supra, only contingent upon this would be an abuse of discretion parole and date is future facts jury anticipate Paroles, if the tried to "the manner in actions of the Board of Pardons and and may parole applied [the] which the law be certainty be determined with as can the cannot particular defendant" on trial. It is not now an parole eligibility minimum date. That the actual jury generally abuse of discretion for the to “con- parole speculative mean it is not date is does not parole sider existence of the law." relevant, however, jury or that consideration separation powers. same would violate case, any jury it is not clear to me that speculativeness enterprise might reason be capital might consideration of when a date, parole of actual while to hold that evidence actually paroled separa- would itself violate separation pow- relevant and not violative ers, powers. tion of The actual date a life-sentenced it is more is nevertheless excludable because paroled undoubtedly relevant to the inmate is is Tex.R.Cr.Evid., prejudicial probative. than See dangerousness way future issue in the same 403. We need not reach these issues in Rule parole to at least the same extent that minimum however, case, only present appellant re- since eligibility capital punishment jury is. A consid- quested jury the mini- ering parole simply that the be informed of actual date would thus be role, performing judicial factfinding parole eligibility not mum date. attempting to an executive func- circumscribe provision for parole eligibility minimum into the case. We have no life- on Nevertheless, scms-parole logically separation powers in the Texas. does violate instance, principle express legislative extending process the due an- first authoriza- instruction, inexorably to Simmons pursuant leads me tion for an to Article nounced IV, failing unnecessary. trial court erred in supra, is conclude that the to allow to inform the Thus, there is no constitutional or statuto- requested to do this case. ry impediment informing capital in Texas to Simmons, jurors period Speaking plurality in Jus- of the minimum of time an for a at the outset: imprisonment accused sentenced to life for a tice Blackmun announced must serve to become offense danger- “that where the defendant’s future parole.5 “policy” against no real There is issue, prohibits ousness is at and state law it, plurality perceives. pa- Minimum as the pro- parole, release on due the defendant’s relevant, eligibility certainly role is under sentencing jury requires cess that the Rules and 402 of the Rules Criminal is ineli- informed that the defendant Evidence, or instruction evidence gible.” informing ought permit- of it to be -, 114 S.Ct. at reason, simple if other. ted for that no legislature our has L.Ed.2d at 138. Because Moreover, process require due federal dangerousness made future one of the statu- Carolina, supra. it, v. South Simmons under pen- tory imposition criteria for of the death so, If is no conflict with Texas law. there alty, every capital punish- it is “at issue” seeks a proceeding ment which the State III. Thus, appears that the sentence of death. of the Simmons due process test Appellant prong in fact such a first contends there is However, requirement. always in Texas. under process due It is less met federal face, evident, sen- Simmons reading Texas law murder defendants than its ineligible process requires informing capital imprisonment tenced to life are not that due O’Connor, in her concur- statutory period minimum of ser- Justice ring opinion, strongly suggests that the due on a before becomes vice life sentence only available under the law. On its face Sim- process principle extends when juris- mons seems only require informing not an available alternative.6 Several Simmons already interpreted dictions have is unavailable whenever in this fashion.7 In the instant true as a matter of state law and the issue to be limited case, injected any analysis, plurality does dangerousness without of future has been "[D]espite general supra, jury deference to state deci- we held that a our In Rose v. also authorizing exis- regarding jury consideration of the told sions what the should be non-capital due tence of in a case violates process sentencing, agree I that due about I, §§ course of under Article 13 and 19 of the law requires that the defendant be allowed to We found intolerable "the Texas Constitution. parole ineligibility jury’s [bring atten- his punishment extraneous risk that will be based on only alter- in cases in which the available tion] Id., at 537. No such risk ex- considerations.” imprisonment life native sentence to death is ists, however, capital punish- jurors in a when possibility prosecu- and the without proceeding are informed of the minimum ment pose argues that the defendant will tion years number of a life-sentenced convict society the future." threat to in parole. eligible Mini- must serve to become at-, 114 S.Ct. at 129 L.Ed.2d -U.S. parole eligibility “extraneous" mum is not an at 151. determining in the issue of future consideration Indeed, hope dangerousness. have demon- as I I 1994); Scott, (CA5 Allridge E.g., F.3d 213 41 IIC, ante, "indisputably in it is rele- strated Part Price, 827 N.C. 448 S.E.2d State v. 337 reason, to that determination. For this vant” Commonwealth, (1994); 248 Va. Ramdass v. requested informing jury as (1994). 450 S.E.2d 360 due course of law cause does not violate powers. separation it violates more than opined 6. Justice O'Connor that:

867 indisputably Holding plurality sentence is relevant. Op. at-. On that basis the too. constant, Simmons holding entirely has concludes that the all factors it is other view, my application no in Texas. In howev- jury sentencing for a to view a reasonable principle of Simmons transcends its er, defendant who context, apply factual and does in Texas society greater than a defendant threat some instances. Indeed, no who is not. there future

greater assurance of a defendant’s A public than the nondangerousness to the that he never will be released fact automatically dangerousness Future apprise trial court’s refusal to as it is in Texas. at issue South Carolina jury information so crucial to its Simmons, however, prosecutor had determination, sentencing particularly closing argu- expressly invited the in his prosecution alluded to the defen- when the danger- ment to factor the defendant’s future dangerousness argu- in its dant’s future into its decision whether to assess ousness jury, with ment to the cannot be reconciled — Id., at-, 114 life or death. U.S. S.Ct. interpret- precedents our well established 2190-2191, at 139.8 The de- at 129 L.Ed.2d ing the Due Process Clause.” proffered evidence that he was fendant had women, elderly only a threat a class of — Id., at-, S.Ct. at U.S. peni- people he would not encounter Accordingly, plurali- L.Ed.2d at 142-43. — Id., at-, tentiary. at U.S. S.Ct. straight ty denying “a held 129 L.Ed.2d at 139. Out of the regarding availability parole im- answer” presence presented public-opinion evi- ability “deny explain” paired Simmons’ jury-eligible dence that adults in South Car- showing dangerous- of his future the State’s largely olina assumed a life-sentenced mur- ness, thereby right violated his to due Id., paroled point. derer would be at some — Id., at-, process of law. U.S. -, U.S. at S.Ct. at at 2195 & 129 L.Ed.2d at & S.Ct. Nevertheless, L.Ed.2d at 140. Simmons’ Florida, 145-46, quoting Gardner diring prevented counsel was from voir 349, 362, at 51 L.Ed.2d at jury panel parole eligibility. on the issue of (1977). 393, at 404r405 Arguing public misperception that the about parole eligibility dispelled needed to be in his Simmons thus stands proposition for the cause, requested jury Simmons instructions dangerousness future whenever that would inform the of the law. The capital punishment proceeding “the issue refused, instructing trial court in- prison sen- actual duration of the defendant’s disregard parole stead that it should Id.,-U.S. indisputably tence is relevant.” parole eligibility, and that it should construe at-, at L.Ed.2d at S.Ct. imprisonment” according ordinary “life to its all, option is not an 142. When — Id., at-, meaning. fact is relevant in the sense that it tells the 2192, 129 L.Ed.2d at 140. spend jurors defendant will where holding trial court violated due life, they may of his natural so that the rest failing process in to inform the danger- deliberations on future confine their Sim- unavailability parole, plurality in the society. poses prison to ousness to the risk he mons observed: probable It to make less that he will be tends general the continuing a threat at least to assessing dangerousness,

“In future the Moreover, capital public. to the extent the prison of the actual duration defendant’s having dangerousness plurality prosecutor prosecutor's raised future contends that the in The "urged jury ponder the to vote for the death jury Simmons penalty whether the no doubt led the to would be released because Simmons prison, be released from and if defendant would Literally prison." Op. at 851 & n. 19. when, disposition plurality’s in Simmons is so true, opinion plurality at least as far as the is not contingent prosecutor that the not on fact Id.,-U.S. at-, in Simmons discloses. (if did). literally invited them to Although the S.Ct. at 129 L.Ed.2d at 139. juries show, parole to of the him- sion whether inform can as could Simmons defendant Admittedly, plurality self, in pose a threat even to law. Simmons that he does not unavailability pa- itself did observe: population, inmate probable make less that he will role tends to propo- broad “that Ramos stands society any facet of at all. be a threat generally defer to a sition that we will jury determination as what State’s logic no-parole limited to the This is not and should not be told about sen- should contrary, any it extends to situation. On in tencing. In a State which defen- of “the actual duration of the evidence available, knowledge pa- how prison sentence.” How much of his dant’s availability will affect the decision role prison in capital spend life the defendant impose penalty whether or not to the death dangerousness de- is relevant to the future lightly speculative, shall not sec- and we exactly way the same termination ond-guess a or not to decision whether spend the rest of his life fact that he will regarding pa- inform a of information jurors capi- It informs the where the there. reasonably may role. conclude States tal will be so that can tell regarding avail- truthful information may “society” may or not be at risk. what commutation, pardon, ability of and the IIC, you If other evi- Part ante. add See like, jury in kept from the order should be capital defendant dence that the time the provide ‘greater protection [the likely he will not becomes justice system than the criminal States’] society, pose any facet of then the a threat requires.’ Federal Constitution specific [Califor- minimum fact that he must serve a Ramos], U.S., 1014, 103 nia prison he can period of time before S.Ct., at 3460.” signifi- paroled practically the same takes parole eligibility at all. It tends cance as no however, them, neither Ramos As I read will never be a threat to show he itself, plurality’s discussion of Ramos nor the Therefore, large. failing if to in- public at Simmons, justifies failing capi- to inform a “indisputably relevant” form the parole eligibility. tal of minimum capital defendant can never be fact that plurality paroled process, violates due as the place, have never “reason In the first we establishes, so, opinion in then Simmons information ably” concluded Texas circumstances, failing does least under some eligibility kept from should be about jury of the minimum “pro to inform the juries, not in order to at least hold. eligibility should so date.9 We greater protection than the Federal vide basically requires.” We have

Constitution parole in consideration of assumed B. powers, separation violate general would case, pro and is therefore v. Ra even plurality The mentions California “protect” mos, 992, 103 assumption That does 77 L.Ed.2d hibited. all, much less does it (1983), Op. defendant at passing. at 849. almost protection than the Federal provide greater suggestion seems to be that when a state Quite contrary, it insulates capital defendant Constitution. parole available to a makes “indisput that is Supreme from information imprisonment, the sentenced to life ably the State’s evidence relevant” rebut not interfere with the state’s deci Court will released, (Tex.Cr. this evidence would fore he S.W.2d 839 In Matson v. App.1991), practical mitigating purpose held the trial court violated -a we vis -vis serve no failing Eighth admit the defen- Amendment in holding special in Matson is to issues. If our proffered evidence that recidivism rates dant’s all, necessary sense at it is also make long "extremely serve low" for inmates who are jury long will actual- how the accused inform the sys- through prison time the sentences their first peri- imprisoned ly at least the minimum be —or capital the de- some evidence that tem. Absent required will be law to od we know he required a fact be to serve fendant on trial relatively lengthy period in imprisoned. be- of time incarcerated placing pa- prevented parties from dangerousness. issue of future trial the the issue, event, appel- assumption eligibility incorrect. It role and therefore itself is present fact of precisely mini lant not need to is because information about did “deny parole eligibility to or ex- parole eligibility mum is relevant to the fu minimum dangerousness giv plain” anything. Op that at 850-853. Texas law ture determination broaching ing jury separation precludes party from it to the does not violate either dire, IIC, subject parole during except to powers. Part ante.10 have voir See We can in- yet any principled keeping to offer reason for ascertain whether veniremen follow requiring jurors ignore parole. capital information about from a sen structions tencing jury prevents prosecutors arguing from Texas. It also expressly special that the should answer Second, importantly, today’s plu- and more affirmatively in issues order obviate rality fairly plead “speculativeness” cannot may possibility capital a defendant ever be argue informing capital jury that about paroled. posi- is Under Texas law the parole eligibility minimum does not fall with- instructed, case, tively disregard process requirement. in the Simmons due parole in its deliberations. Protections nothing remotely speculative There about against jury guarantee if his misconduct that, the fact if imprison- sentenced to life parole, does consider nevertheless ment, appellant would mini- have to serve a capital may trial. obtain a new years mum becoming eligi- of fifteen before legal safeguards, plurality These assures 42.18, ble for See former Article us, keep eligibility are sufficient to 8(b), supra. anything specu- Nor is there deliberations, entering jury’s from into the jury’s knowledge lative about “how the nothing injected into the sentencer’s parole availability will affect the decision field of vision that defendant is impose or penalty.” whether not to the death addressing. plurality prevented from The Jurors Texas do not decide whether to large upon relies in measure Gardner v. impose They a life or death sentence. an- Florida, supra. special say swer issues. That we can even parole eligibility “indisput-

that minimum plurality acknowledge fails to that the ably relevant” to the determination principle process of due articulated in Gard- dangerousness the future issue means we expanded Skipper ner later v. South precisely jurors know “how” the will consider Carolina, extent, They that fact. consider it to the (1986), It L.Ed.2d Simmons itself. extent, only to that militates either for holding in is true that Gardner itself against finding dangerousness. of future than extends no further its facts. Gard- against finding When it militates of future sentencing judge rejected an ner the adviso- dangerousness, Simmons dictates that ry jury’s imprison- of life recommendation it, notwithstanding.11 hear Ramos ment in favor of a sentence of death based report

part upon presentence a confidential given no chance to the defendant was C. plurality Supreme review. A Court Finally, plurality process maintains that other held that due was violated because procedural safeguards during no chance to the course of the defendant was afforded say informing pa- notwithstanding. 10. Nor does of minimum This is not to eligibility role of law. See n. in a case due course violate actual date is not relevant to the issue of ante. dangerousness undoubtedly See n. future 4, it is. suggests we ante. And while Ramos could It well be the case that under we Ramos prohibit jury consideration of when prevent capital jurors trying pre- could imprisonment might defendant sentenced to life actually dict when a life-sentenced defendant will process, actually paroled consistent with due course, is, paroled. be purely speculative. The actual date good why yet we we have to articulate a reason Therefore, an instruction II, should. See Part ante. capital jurors try predict not to that date process, would not seem to violate due Simmons in that mem- report, complaints dissent was seven

“deny explain” or the contents of the unduly imposed “a rule meaning- the had participate to bers of Court and hence no chance by sweeping as this: that the Due fully process which at least as in the adversarial limiting overrides state law impose a life or Process Clause Florida decides whether to admissibility concerning Id., 362, of information 480 U.S. at 360 & death sentence. argues fu- prosecution 1207, whenever L.Ed.2d at 403 & at 1206 & S.Ct. —Id., at-, dangerousness.” U.S. ture principle But the in Gardner has since 404. (em- 2203, 129 L.Ed.2d at 164 S.Ct. at In beyond its factual context. been extended Texas, course, original). Carolina, phasis majori- Skipper supra, v. South danger- prosecution always argues future ty observed: therefore, correct, If it that the ousness. specifically prosecution relies “Where informing to principle extends also Simmons prediction dangerousness of future on a minimum in some cases about only asking penalty, it is not for the death IIIA, ante, eligibility, plurality see Part requires Eighth [the Amendment] reverting escape principle by to cannot opportu- an that the afforded For under the earlier decision Gardner. point; nity introduce evidence on this to Simmons, eligibility may minimum require- process due is also the elemental serve, evidence, “deny together with other that a defendant not be sentenced to ment explain” case for future dan- or the State’s which he death ‘on the basis of information pro- gerousness every capital punishment opportunity deny explain.’ had no ceeding in Texas. Florida, [supra].” Gardner Moreover, satisfy it does not Simmons IdL, 1671, 1, 6, 1,106 at n. at n. 476 U.S. S.Ct. implement procedures designed state to insu- added). 7, (emphasis L.Ed.2d at n. 1 any jury entirely from consideration late the process requires capi- that a passage Skip- Due strength of this from On meaningful op- be afforded “a plurality in concluded that tal defendant per, the Simmons complete defense.” portunity present dangerousness put is- time future — 2194, Id., at-, sue, 114 S.Ct. at to rebut U.S. the defendant must be allowed 143, Kentucky, quoting pa- L.Ed.2d at Crane information that he can never be with 683, 690, 2142, 2146, at roled, at 106 S.Ct. poses risk he is limit- 476 U.S. so that whatever — (1986). 636, Preventing at 90 L.Ed.2d at 645 prison population. U.S. ed 5,129 broaching subject of -, 2194, from & n. either side at 2194-2196 142-143, parole eligibility when that fact is n. 5.12 minimum at 143-144 & Jus- L.Ed.2d “indisputably to rebut State’s concurring opinion agreed relevant” tice O’Connor’s dangerousness denies simply placing future evidence of future plurality that with the opportunity. Sim- trigger capital defendant enough dangerousness issue — — at-, mons, Id., 114 S.Ct. at supra, U.S. process requirement. U.S. the due 2198, 2200-2201, 147.13 This denial at-, 129 L.Ed.2d at 129 L.Ed.2d 114 S.Ct. at constitutionally acceptable if it might principal at 150-151. One of Justice Scalia’s suc- if the trial court’s instruction plurality ”[E]ven alluded to two in Simmons also support considering Supreme cessfully prevented Court cases in other process guarantees proposition due process rights broader parole, petitioner’s due were present meaningful opportunity to defendants "a petitioner’s future still not honored. Because Id.,-U.S. at-, complete defense.” issue, dangerousness was at he was entitled quoting at Crane S.Ct. at 129 L.Ed.2d ineligibility. An inforni the of his Kentucky, at 106 S.Ct. 476 U.S. directing jury not to consider (1986). See L.Ed.2d at 645 at likely prison would conduct in the defendant’s Oklahoma, also, 105 S.Ct. Ake v. Skipper, process su- due not have satisfied (1985). and, reasons, pra, the same the instructions does not the trial court in this case issued deciding court’s instruc- whether the trial satisfy process." due adequate protect had been tion in Simmons --(cid:127), Id., plurality process rights, the the defendant’s due at 147. L.Ed.2d observed: capital jurors ly preferable to fair it is to inform somehow served enhance overall accurately parole eligibility. of on the law proceeding heighten of the or to ness reliability spe resolution of the III, given I in Part For the reasons have Kentucky, supra, cial issues. See Crane v. ante, process requires I that due conclude 690, 106 2146, at 476 U.S. S.Ct. at 90 L.Ed.2d allowed, on re- that a at 644. But as I have to show in the labored jury mini- quest, to inform the on the law of opinion, balance of this it does not. The eligibility, mum at least whenever plurality proce errs to conclude that when evidence, ease, to there is other as this steps prevent dural are taken to a continuing indicate he not constitute a jury considering parole any pur for society by parole- threat to the time he is pose, process rights the defendant’s due as eligible. Nothing in of the law Texas should by preserved. defined Simmons have been II, way. be construed to stand Part Accordingly,

ante. the trial court erred in failing jury appellant to allow to inform the IV. requested. as he cause, Turning to the instant I am com- Supreme Court did not indicate pelled appellant to conclude that was denied subject error is to a con- whether Simmons process due under Simmons. Dr. Fason analysis. stitutional harmless error See appellant sociopath, testified was a 18, Chapman California, the likelihood of recidivism for socio- (1967). 824, 17 L.Ed.2d 705 The Simmons paths by the time reach their thirties plurality simply reversed the cause and re- low, by age forty, even lower. unspecified manded it to Carolina for South Compare supra. Matson v. Had it - Simmons, proceedings. supra, further by appellant been informed that law was not at-, 2198, at L.Ed.2d eligible even for on a life sentence Assuming subject at 147. Simmons error is serving years, by until fifteen which time he analysis, say to a harm I cannot a to level beyond thirties, confidence a reasonable doubt that it upper would be well into his was harmless this case. Had the justified would have concluding been appellant’s trial been informed that he could public his threat to large insignifi- was eligible not for for become fifteen information, cant.14 Without that years, they might well have considered that probably wondering exactly was left what the information, together with Dr. Fason’s testi- testimony relevance Dr. Fason’s was. See mony, justify negative sufficient to a answer 9, Indeed, information, n. ante. without that special to the issue whether would commit given testimony, but Dr. Fason’s criminal acts of violence that would constitute might tempted disregard have been society. continuing a threat trial court’s instruction not to consider any purpose, engaged specula- for I Accordingly, would vacate the trial enterprise trying guess appel- tive when judgment court’s this cause and remand eligible lant would become punishment proceeding.15 Sure- the cause for a new appellant May 14. It does not matter that was unable 15. was committed in The offense prison would show he not be a threat Because the trial court committed "error affect- 1, society. argue ing punishment only," See n. ante. That the State can we the cause for a remand appellant may pose danger prison popu- punishment hearing only. a new See Articles V.A.C.C.P., 44.29(c), lation does not vitiate the relevance of other 44.251 and as amended 781, 5, pose danger Leg., p. § evidence that in time he will ch. eff. not Acts 73rd 30, 1993, anyone. long tendency Aug. fully As evidence has which made retroactive appellant pose Leg., 72nd show not threat to some amendments in Acts ch. society, process requires appel- p. Sept. notwithstanding § due eff. facet Simmons, 5(a) amendment, present supra, origi- § be allowed to which had lant it. of the 1991 at-, 2194-2195, applicable only nally to offenses com- -U.S. 114 S.Ct. at n. made 143-144, September 129 L.Ed.2d n. 5. mitted after dangerousness,1 the should have not, future plurality respectfully I does Because given if instructed that been dissent.16 sentence, he would life Appellant period years.2 parole for a OVERSTREET, J., joins opinion. punishment in- objected to the trial court’s MALONEY, Judge, dissenting. admonishing jury that it could struction appellant minimum time not consider error, appellant point of In his eleventh becoming eligible have to serve before would refusing that the trial court erred claims holds that parole.3 plurality Because the for statutory mini- on the his appellant’s instruc- judge’s refusal of the trial capital defendant sen- period mum of time a Eighth and Four- tion did not violate the becoming to life must serve before tenced Amendments, I dissent. teenth parole in violation of the cruel eligible for punishment provision of the and unusual Evidence and Discussion I. Relevant Amendments to the Eighth and Fourteenth Fason, phase, Dr. During punishment Appellant ar- Constitution. United States appellant’s behalf psychiatrist, testified on considering special issue on a gues that in error, point very point seven- punish- appellant’s next a I would remand for new 16. Because unsight- particularly Op. a appel- teen. at 844. This is hearing, I need not decide whether ment speak ly juxtaposition, does not well affecting and one that arguments claiming error lant’s other supposedly adver- of our of the evenhandedness only com- punishment are meritorious. I must plurali- justice system. however, As for the sarial criminal plurality's disposi- briefly, on the ment point appellant's eighteenth ty’s disposition of Op. point appellant’s sixteenth of error. tion of 853-855, error, Op. complaining the trial acknowledges plurality that the at 842-843. The tardy of its instructions court’s correction particu- court should not have sustained trial phase, punishment I am dubitante. at the objection at trial to that the State leveled lar Nevertheless, appellant's proffered evidence. plurality there was no error because jury: holds following proffered to the issue was 1. The (though manifestly defendant, it have ruled trial court could probability Robert that the “Is there not) appellant’s probative Smith, value of did that acts of violence would commit criminal substantially outweighed proffered continuing evidence was to soci- constitute a threat that would danger prejudice, by under Tex. of unfair ety?” art. 37.071. Tex.Code Crim.Proc.Ann. R.Cr.Evid., many prob- There are so Rule 403. hardly disposition, one knows lems with this charge requested Appellant’s counsel myself begin. to two com- to I will limit where informing appellant received life that if First, thought plaints. would have it clear after I eligible prison, he would not be (Tex.Cr. Montgomery 810 S.W.2d 372 served at until he had under circumstances rehearing App.1991) (Opinion on Court's own on prison. years At the least fifteen calendar motion), job to decide in that it is the trial court’s trial, Crim.Proc. Tex.Code time of relevant evidence is the first instance whether 8(b)(2) pris- provided § that a Ann. article 42.18 Rule sub- inadmissible under nevertheless serving murder a life sentence for oner appellate ject only review for abuse of discre- eligible on until his for release was not determination this Court makes that tion. Here served, consider- time without actual calendar appeal. brings me to a for the first time on This time, good equaled one-fourth ation of conduct plurality justifies complaint. its dis- The second calendar sentence or fifteen of the maximum rubric, position "if the trial court’s under the Now, 8(b)(2) provides § years. Article 42.18 appli- any theory on of law decision was correct imprisonment to life prisoner who is sentenced Op. at 843. Since cable to the case....” years, forty with- must serve for a offense objection, see Rule 403 I do not State made no time, good before conduct out consideration theory appellant's evidence how the Leg., 1993 73rd Acts he is “applicable more-prejudicial-than-probative is Ch. 6.01. really saying, plurality the case." What me, proce- ordinary notions of is that seems jury: judge instructed the 3. The default, Tex.R.App.Pro., Rule codified in dural as deliberations, 52(a), you to con- apply During your The State need are not to the State. do not objection any possible on object the same action at trial or make sider or discuss prevail on division of the appeal in order to of Pardons and Paroles that it did at trial Board willing enough Department Justice or of appeal. plurality to de- of Criminal Texas Governor, long the defendant would arguments appeal or how appellant's own clare See, satisfy a sentence of life just required serve to as a procedurally barred. been have imprisonment. plurality's disposition of example, the convenient justice system psy- diagnosed appellant suffering in the criminal with that he had uals personality age chopathic or disorders explained from “antisocial reaction.” He forty agreed with the trial on.4 He later sociopathic per- that antisocial reaction is suffering persons court that from antisocial sonality characterized “rebel- disorder likely engage in reaction are much less society, against the rules of difficul- liousness age of violence once reach the crimes conforming ties common social standard redirect, forty. Dr. Fason observed On pat- and self-destructiveness and behavior may be circumstances that arise after “there terns.” person murder] [a] [convicted Dr. Fason stated that does not penitentiary in the incarcerated for life types potential have the normal of “drive controls” He remove that threat....” agreed with statement that people society. that use to function length person up is a of time a is locked appellant He testified that lacks the “drive determining person whether a is a factor shame, guilt, controls” of and concern for danger community. consequences; appellant instead maintains it, “Fuck I the attitude don’t care.” Dr. Appellant argues give that in order to miti- opinion appellant Fason offered his “is testimony, gating effect to Dr. Fason’s pon- not the kind of individual that has been on the mini- should have been instructed dering very anything very carefully much of appellant mum amount of time would have to care, since he decided that he didn’t which becoming eligible parole. serve before long, long ago.... why awas time [T]hat’s During an counsel extensive discussion with always he’s in trouble.” jury, presence outside the the trial court noted that in the absence of evidence prognosis When asked about the of individ- Fason’s, likely follow like Dr. could reaction, diagnosed uals with antisocial Dr. parole, long instructions not to consider how replied: Fason serve, required a defendant would be action the Board of Pardons and Parole. people see alot [Y]ou [sic] their twen- stated, However, “By throwing court evi- diagnosis. Anyone ties with this in the suggesting Parnham [Dr. dence like Mr. justice system criminal who has been here testimony], might pull Fason’s sort of people a while sees an [sic] awful lot of them to talk the switch and cause about who are 18 to 29 that fall into that would things.” consider those Later in the discus- category. people get past age When sion, juror suggested the trial court 30, you many don’t see that in the criminal misunderstanding could result: justice system. past age you And rare- may people sitting ly diagnosis [Y]ou have these here ever see someone with this thinking up going spend he’s life there past age of 40. prison] up for life. I don’t [in and be there n n n n n n somebody may say know. But then he years, be on the streets in 15 he will would Something happens to affect those individ- years out there for shorter than 15 back they get uals as into their thirties.... just maybe go we should ahead and so They get early into their late twenties or yes. answer these issues And that they thirties or sometimes mid-thirties and [P]raetically every ju- inappropriate_ realizing they telling start do care and leniency ror talks about the of Texas laws they themselves don’t care doesn’t work very dealing parole. it’s a trou- with And anymore. any- And when it doesn’t work blesome area. they changing more have to start their n n n n n n life-style [sic]. whole agreed jurors] Dr. Fason with counsel for obviously I think are [the diminishing going the lines in this that there is a number of individ- to read between parole. Appellant eligible will be in his late thirties when he becomes State, (Tex.Crim.App. 489-90 858 S.W.2d going to understand [are] instruction and 1989). Smith, opinion in at 853. Our Elliott to consider [not that this instruction request- specify Parole] Board of Pardons and action of the fails to what instruction ... Mr. Smith ed; merely [unless] wouldn’t be there Elliott’s “re- refers to this Court lifetime, gets if he at some time his the Texas quested instruction on sentence, will be for some a life Elliott, at 489. Accord- laws.” form dispositive of the issue ingly, Elliott is not hand. deliberations, jury- During punishment requesting Dr. Fason’s testi- out a note sent Second, argue that his appellant does not

mony. mitigating evidence requested instruction argues itself, rather Plurality Opinion II. “give necessary jury to for the testimony. plural- effect” to Dr. Fason’s important distinc- Appellant makes two concept ity’s that “the assertion appreciate in plurality fails to tions which the relationship to the nature eligibility ‘bears no of his cursory, paragraph-long discussion its ” offender,’ character of the of the offense or point of Smith v. eleventh error. Smith, (quoting Andrade 8, (Tex.Crim.App. Mar. at 853-854 (Teag- (Tex.Crim.App.1985) 5.W.2d 1995). First, appellant concedes that while ue, J., misplaced and illus- concurring)), is not a likely paroled be when he would misunderstanding appellant’s of trates its jury when delib- proper consideration for the id., Pa- at 853 n. 25. contention. See also punishment, argues that the earli- erating certainly inherently mit- eligibility is not role eligible upon which he would become est date However, it makes little igating evidence. necessary give parole was for the for testimony to allow the to hear sense testimony. Dr. mitigating effect to Fason’s Fason, held to be this Court of Dr. which words, appellant’s instruction does In other in Matson v. 819 S.W.2d mitigating jurors speculate about when the not invite allowing (Tex.Crim.App.1991), without might and Paroles release Board of Pardons give and meaningfully consider II, § 1 of parole in violation of Article him on testimony. effect to his Rather, appellant Texas Constitution. jurors that if he is sentenced seeks to inform mini- appellant’s The trial court’s refusal fixed, imprisonment he must serve to life period instruction violated mum incarceration statutory length of that sentence minimal Eighth Amend- rights under the appellant’s becoming eligible parole.5 before even ment, through the applicable to the states Amendment,6 particularly light Fourteenth this conten- plurality The maintains Matson, of our decision rejected in Elliott v. was raised and tion time, good equals Hartmann, without consideration Assistant District Attor- 5. Calvin A. (20) [twenty 9/1/87; years committed before if offense presentation County, ney, in a recent Harris (15) years if offense committed fifteen County Attorneys Associa- District and the Texas 9/1/87-9/1/91], after suggested that the Capital Seminar tion Murder Hartmann, "Capital Murder Seminar: A. Calvin by appellant requested type of instruction (present- Appendix Jury & Instructions” at 15-17 "|T]he prudent given: action would be more be County and at the Texas District ed Feb. eligibility give parole and continue to voir dire to instructions, Seminar). Capital Attorneys Murder Association requested by particularly where by ap- requested precise is the This pellant Appeals is- the Court of Criminal defense until case. in the instant opinion." to Hart- Attached sues a definitive charge punish- proposed paper is a mann's 660, 666, California, 370 U.S. Robinson v. 6. See portion he which includes an underlined ment (1962) (hold- 1417, 1420, 8 L.Ed.2d 758 requested by suggests given defen- “if should ing addiction statute that California's narcotics portion states: dant.” The underlined punishment in vio- and unusual inflicted a cruel Eighth Amend- serving and Fourteenth prisoner lation of a life You are instructed that ments); Georgia, 408 U.S. see also Furman murder is the offense of sentence for 238, 258, 33 L.Ed.2d 92 S.Ct. parole until the release on not J., (1972); served, (Brennan, concurring) Louisiana ex prisoner has calendar time the actual Eighth penal- Carolina, established Amendment death death.” Woodson v. North ty jurisprudence, Supreme 280, 304, and the Court’s U.S. 96 S.Ct. 49 L.Ed.2d Carolina, (1976). decision in Simmons v. South premise of the Woodson U.S.-, 114 S.Ct. 129 L.Ed.2d 133 Court’s penalty conclusion was that the (1994). juror Due to the likelihood of misun- qualitatively death is different from other derstanding regarding meaning of “life penalties; greater this difference mandates a imprisonment” “society,” jurors’ ina- heightened degree reliability or when a bility give effect mitigating to relevant imposed. sentence of death is Id. at evidence of propen- decreased recidivism Ohio, S.Ct. at 2991-92. Lockett v. sity time, for violence over the trial court 586, 604, unconstitutionally denied mini- (1978), Supreme Court held that Further, mum incarceration instruction. this Eighth require and Fourteenth Amendments conclusion is consistent with “truth in statutorily that the preclud- sentencer sentencing” policy of the State Texas. any considering aspect ed from aof defen- dant’s character or record Appellant’s requested instruction is not circumstances the offense that the defen- mitigating itself; rather, evidence in and of may mitigating. dant offer as The Ohio necessary jurors give allow effect to penalty death provided statute at issue appellant’s mitigating decreasing evidence of once guilty defendants were found of murder rates of propensity recidivism and for vio- specified aggrava- with at least one of seven Accordingly, lence. a defendant obtain circumstances, ting required sentencers were relief in situations where: impose penalty the death once deter- 1. Defendant has introduced evidence mined that the victim did not induce or facili- during punishment phase decreasing offense, tate the that the defendant did not recidivism rates propensity and for vio- coercion, act under duress or and that the time; lence over primarily product offense was not the of the deficiency. defendant’s mental The Court 2. Defendant requested has and the trial held that range mitigating the limited of court has denied an informing circumstances that the sentencer could con- statutory of the minimum number sider under incompati- the Ohio statute was years a defendant sentenced to “life Eighth ble with the and Fourteenth Amend- imprisonment” would serve before becom- 607-08, ments. Id. at 98 at S.Ct. 2966-67. ing eligible parole; “mitigating” The Lockett Court defined as 3. Defendant has claimed that the trial any might factor that serve “as a basis for a court’s denial of the instruction violated his sentence than less death.” Id. at 98 rights under Eighth Amendment.7 at S.Ct. Lockett, Applying the rule in Supreme Eighth III. Amendment just may Court later held that as a state not preclude The Supreme United States statute the sentencer Court has from con- factor, sidering any mitigating held that in cases “the neither fundamental respect humanity consider, underlying sentencer refuse to Eighth as matter law, requires Amendment mitigating consideration relevant evidence. Oklahoma, 104, 113-15, character and record Eddings of the individual v. offend- U.S. (1982). 876-77, er and the particular circumstances of the 102 S.Ct. 71 L.Ed.2d 1 offense as a constitutionally indispensable Citing Eddings, Lockett and Supreme part process inflicting penalty Carolina, in Skipper Court v. South 476 U.S. Resweber, 459, 463, when, ever, rel. Francis v. expert testimony concerning 329 U.S. if 374, 376, (1946). S.Ct. 91 L.Ed. 422 actually paroled, defendant will nor does it any rights regard- address whether the State has 7. This dissent does not address the issue of ing parole instructions or related evidence. right whether a defendant has a to an instruction 1669, 1670-71, relevant to the 1, 3-4, giving effect to evidence 90 L.Ed.2d 106 S.Ct. background or character or to defendant’s (1986), of evidence of held that the exclusion of the offense that miti- the circumstances prison during good behavior defendant’s penalty. gates against imposing the death awaiting spent jail months he seven right place him before deprived trial of his Thus, at 2946-47. not Id. at 109 S.Ct. mitigation evidence in the sentencer relevant only must a Texas be able to consider punishment. evidence, mitigating must be but give effect to that provided with a vehicle addressed the Supreme Court has also The evidence. scheme, punishment most nota Texas Texas, bly in 96 S.Ct. Jurek A. Matson v. State (1976), Franklin 2320, Lynaugh, U.S. mitigat- This addressed the issue of Court (1988), Penry Lynaugh, Matson, L.Ed.2d at 850- ing evidence in 302, 109 2934, 106 challenged L.Ed.2d 256 S.Ct. in which the defendant allow the to hear (1989). Jurek, trial court’s refusal to 428 U.S. at subject decreasing expert testimony on the 2951-52, Supreme affirmed the Court over propensity for violence recidivism Eighth rejecting an decision of this Court argued was rele- time which defendant challenge constitutionality Amendment prob- was a substantial vant to whether there penalty of the Texas death scheme. ability commit criminal acts of that he would Supreme held that the Texas scheme Court Lockett, Relying on in the future. violence challenge because it withstood constitutional Jurek, Skipper, Presiding Eddings, bring before the authorized the defense majority Judge opinion held McCormick’s mitigating circumstances re “whatever that the trial court abused its discretion lating [that] can to the individual hearing jury from this rele- preventing the 96 S.Ct. at be adduced....” Id. mitigating vant evidence: emphasized that the 2959. The Jurek Court then, Clearly penalty Texas death for the on the jury “must be allowed to consider muster, the statutes to meet constitutional only why not basis of all relevant evidence sentencing authority must case imposed, would be but also death sentence give effect to all be allowed to consider and why imposed.” Id. at it should mitigating evidence. relevant S.Ct. at 2956. Matson, at 851. 819 S.W.2d Franklin, at In at 108 S.Ct. (O’Connor, J., concurring), Justice Notably, 2333 not raise and this Matson did opinion recognized minimum concurring address whether a O’Connor’s Court did not required for the instruction was consider incarceration right that the to have the sentencer testimony concerning jury give effect to weigh mitigating evidence would be and propensity for vio decreasing recidivism jury per- “meaningless” unless the was also time; merely pre that we held lence over “give effect” to that evidence. mitted to offering such evi venting defendant from the Franklin, with her concurrence Consistent Eighth Amendment. See violated the dence majority opinion Pen- Justice O’Connor’s 18, 25 v. also Jackson 2946-47, 318,109 at held ry, 492 at U.S. — denied, U.S. (Tex.Crim.App.1990), cert. provide did not the that the Texas scheme (1993). -, L.Ed.2d 722 125 113 S.Ct. give effect to the jury with a vehicle Penny’s mental retar- mitigating evidence of background: Carolina disadvantaged B. v. South

dation and Simmons — Eddings at-, clear from Lockett Simmons, was [I]t 114 S.Ct. at U.S. not, consistent with the held Supreme that a could Court plurality State Amendments, dangerous- pre- future that when a defendant’s Eighth and Fourteenth ineligi- defendant is at issue and the considering and ness is vent the sentencer 877 process provides that for parole, requires fencing due the scheme. Because Texas ble for assessing punishment that be told the statutory dangerousness” “future issue parole ineligible. Sout- Justice case, every prosecution the al- will er, joined by Stevens, separate- Justice wrote ways argue pose the defendant explain Eighth ly to the Amendment by society if danger future not executed compelled plurality.8 the also decision of the Carolina, South in Texas the State. Unlike -, (Souter, J., Id. at 114 S.Ct. at 2198 dangerousness future is a threshold issue concurring). might Concerned that the sentence; is, if securing a death impris- meaning not understand the of “life special does not the second issue answer onment,” requested Simmons instruc- affirmative, a life sentence will automati- Id. at regarding ineligibility. tion his cally imposed. -, plurality 114 S.Ct. at 2191 n. 2. The assessing dangerous- “[i]n held that future While Simmons involved a defendant who actual ness, duration eligible parole, Supreme for defendant’s was not prison indisputably sentence is relevant.” logically Court’s rationale extends to defen- -, Id. (emphasis 114 S.Ct. at 2194 statutorily ineligible dants in who are Texas added). period for a substantial for of time.9 the Simmons Court reasoning applica- At the instant issue case is the of Simmons bility part potential juror sen- on large the Texas based for by Souter and Justices Stevens believe to the cases remanded the Unit- addition decision, Court, Eighth compelled Amendment Supreme "re- ed States other courts con- have gardless dangerousness of whether future is an may grouped sidered Simmons. These cases Simmons, at-, sentencing.” issue at following groups: in the five (Souter, J., concurring). 114 S.Ct. But (1) required suggested cases that have on at-, J., (O'Connor, see id. S.Ct. at 2200 light remand a instruction in of Sim- ("[I]f concurring) prosecution argue does not Ross, A.2d mons. State Conn. dangerousness, may appropriate- future the State (Conn.1994) (remanding for new ly proper decide that is not a issue for the hearing sentencing grounds; trial other only consideration even if alternative judge giving instructed consider Simmons imprisonment to death sentence is life without appellant ineligi- because would be possibility parole.”). Tansy, parole); Clark ble for 118 N.M. (1994), (N.M. reh’g 882 P.2d denied Simmons, Following its decision in the Su 1994) (holding due October that Simmons' preme Court remanded consider four cases for analysis required process give court to instruc- light of ation in Simmons. In each of these tion, request, per regarding defendant’s cases, appellant eligible for noncapital amount he would serve for of time Three of cases have on re been considered evidence; aggravating rebut offenses to Price, mand state courts. North Carolina heightened recog- reliability need for mandates (1994), petition N.C. S.E.2d 827 right require in- nition of defendant’s an -, cert. denied -U.S. legal juty struction on terms so that the (1995) inapplica (holding L.Ed.2d Simmons choice). make a moral reasoned remand ble on because parole would have ultimately holding process While on due inqui been made no grounds required the trial that court was 485, Wright ry); Virginia, v. 248 450 S.E.2d Va. instruction, give the the Clark Court utilized (1994) (holding apply not 361 that Simmons did Eighth principles Amendment discussed though jury predicated even death sentence on this reach its result. dissent dangerousness appellant future because would (2) cases have held that Simmons not that did eligible parole); Virgi have been nia, for v. Cardwell apply dangerousness future consider 501, because (1994), petition Va. 450 248 S.E.2d 146 present (U.S. 2, 94-7930) ations not or were 1995) (No. were dissimilar cert. Feb. for filed Scott, Allridge v. 213 from Simmons. 41 F.3d (holding apply that because Simmons did not Cir.1994) (5th (holding that parole). defendant must appellant eligible would have been for ineligible parole not as a matter of law and has not been remand. One case addressed on 307, U.S. -, Virginia, require expert merely v. Mickens S.Ct. of fact admission of 115 (1994), Simmons; remanding vacating testimony stating 271 130 L.Ed.2d under that under 395, (1994). process requires 442 247 Va. S.E.2d 678 Simmons due the State parole ineligibil Price, inform the of defendant’s Wright, supreme and Ramdass are state decisions, and, ity argues be a that defendant where it would petitions court while certiora- for Ramdass, danger to the free world and where defendant been filed in ri have Price and ineligible parole); Supreme legally ex States revisited for United States United Court has not Welbom, F.Supp. 950 the Simmons issue. rel. Collins 868 878 inapplicable (holding because defen Simmons noting parole 1994) parole; (N.D.Ill. eligible (holding vio dant for that Simmons not mitigating eligibility evidence because give parole be is not instruction lated failure argued prosecutor part would be the defendant’s character or record defendant not cause offense); escaped, State v. dangerous prison not if of the or if he or a circumstance Southerland, 862, 66, (1994), Bacon, paroled); 447 S.E.2d 446 S.E.2d 542 State v. 337 N.C. - denied - U.S. -, (S.C.1994), petition denied S.Ct. petition cert. 115 868 cert. for for -, (1994) (holding L.Ed.2d 1096 130 (1994) (holding not entitled to that defendant defendant not control because Simmons did Clause parole under Due Process eligible parole instruction claimed for where defendant dangerousness at issue nor not parole because future asked if raised when witnesses issue of Eighth in Amendment because under homes after defendant into their would allow release); eligible for defendant would not be Payne, formed that N.C. 448 State v. requiring during closing arguments; in parole (1994), petition cert. S.E.2d (U.S. for filed issue, dangerousness at 27, 1995) (No. 94-7873) when future (holding struction January "life", meaning or defendant asks about required under Sim that no instruction); requests Cardwell v. Common would have been eli because defendant mons (1994), wealth, Va. 450 S.E.2d 146 requested in gible defendant for where 2, 1995) (U.S. February

petition cert. Virginia about life sentence filed struction for 94-7930) (No. (holding inapplicable Simmons consec could be served fact that life sentences defendant to death because sentenced Robinson, utively); N.C. State v. dangerous on vileness and not future based (N.C.1994) (denying motion S.E.2d ness). parole eligi questioning permit of venire about prosecution prove defen- must Because the bility defendant under Simmons because beyond dangerousness a reason- dant’s future Cardwell, eligible parole); for would have been special scheme in under the issues able doubt (Va.1994), petition cert. 450 S.E.2d 146 for Texas, Welbom, every capital case in Souther- 94-7930) 1995) (No. (U.S. February filed land, dispositive. Fur- and Cardwell are not part (holding inapplicable in because Simmons ther, process on due these cases were decided eligible parole). for grounds relies on the while the instant case II, supra, appellant part in the As stated Allridge Eighth can be distin- Amendment. requested specific instruction: instant case guished on at least two the instant case requested court instruct Appellant that the trial (1) Allridge request- grounds: The defendant in parole ineligible for jury that he would be expert testimony admit ed that the trial court years state law. Because as a matter of fifteen paroled speculating that he would never requested above differ in the instructions fact), (parole ineligible a matter of while respect or the important from the instant case requested an in- appellant the instant case grounds, process holdings due were based on parole ineligible for that he would be struction limited. precedential value of these cases is (parole ineligible years as matter fifteen law); (2) (4) procedural problems. with Kinna- cases due Allridge relies on the Court mon, (holding procedurally claim 40 F.3d 731 Simmons, reasoning majority in process cognizable on collat- and Simmons not barred ground- analysis case is in the instant while (5th review); Allridge, Cir. eral 41 F.3d principle Eighth ed Amendment in the 1994) cognizable (holding on col- Simmons sentencing. reliability heightened (11th review); Ingram, 26 F.3d lateral (3)cases did not that have held Simmons Cir.1994) cognizable (holding on Simmons not eligible apply the defendant was because review). collateral Scott, (5th 40 F.3d 731 Kinnamon Kinnamon, Allridge and defendants in Unlike Cir.1994) procedural (holding Simmons claim review, his claim Ingram, on direct retroactive, ly but if considered barred and not review, and he has cognizable direct apply would not because Simmons on merits preserved properly error. Ingram parole); eligible for petitioner was (5) was discussed for where Simmons cases (11th Cir.1994) Zant, 1047, 1052-54 26 F.3d - States, v. United other reasons. Shannon Eighth (holding Amendment no violation of U.S.-,-, 2424 n. petitioner instruction on denied when (1994) (citing for the Simmons L.Ed.2d 459 right pre petitioner no federal had because sentencing capital juries proposition have to have the vent consideration Kerby, 39 F.3d 1462 responsibilities); Fero v. instructed; inapplica jury properly Simmons Cir.1994) (10th inapplicable (holding Simmons parole); petitioner Bur ble because penal- seeking death where State was not 680, 777, State, S.E.2d 693 gess 264 Ga. 450 v. Cornell, 314, 878 P.2d ty); 179 Ariz. 1994) State v. 20, (Ga. (1994), reh’g denied December 1352, (1994) (citing require- for Simmons 1374 only when (requiring instruction Simmons reliability heightened where defendant ment of during dangerousness argues sen future State sentencing represented himself until had pa prohibits on tencing role, release and state law sentencing appointed for phase, and counsel parole); defendant but here State, continuance); 252, 1, Thornton v. was denied Skipper, N.C. 446 S.E.2d v. 337 State (hold- 563, 98, (1994) --, denied, - U.S. 113 449 S.E.2d (1994), 264 Ga. 115 275-76 cert. required where (U.S.N.C.1995) ing not 953, instruction Simmons 130 L.Ed.2d 895 S.Ct.

879 105, misunderstanding misperception regard- (Tex.Crim.App.1991), and n. 12 S.W.2d 118 denied, 971, 448, ing parole eligibility: 112 cert. 502 U.S. S.Ct. 116 Franklin, (1991); L.Ed.2d 466 see also 487 misunderstanding per- To the extent this (“[T]he 9,108 at 179 n. at 2330 n. 9 U.S. S.Ct. deliberations, vaded the it had the injur question of a defendant’s likelihood of creating effect of a false choice between ing prison question precisely others sentencing petitioner to death and sentenc- Special posed the second Texas Issue ing period him to a limited of incarcera- dangerousness].”). Defendants are [future grievous tion. misperception This was en- defining not entitled to a couraged by the trial court’s refusal “society” presumption all because of the that provide with accurate information words in the Texas undefined Code Crimi regarding petitioner’s parole ineligibili- commonly nal have a Procedure understood ty.... jurors meaning apply. that and See know at-, State, Id. 114 790, 2193.10 v. 818 Caldwell S.W.2d 797-98 denied, (Tex.Crim.App.1991), cert. 503 U.S. potential juror misunderstanding (1992). 1684, 112 S.Ct. 118 L.Ed.2d 399 misperception regarding parole and the “society” While we have further held that meaning imprisonment” true likely “life unconstitutionally vague applied with Texas, jurors where must consider definition, 798-99; e.g., Rougeau out a id. at probability “whether there is a that the de- State, (Tex.Crim.App. v. 738 S.W.2d fendant would commit criminal acts of vio- denied, 1987), cert. 108 S.Ct. lence that would continuing constitute a (1988), overruled on society.” threat to Tex.Code Crim.Proe.Ann. State, grounds, other Harris v. S.W.2d added). First, (emphasis art. 87.071 “soci- (Tex.Crim.App.1989), recognized we have ety” statutory does not have a definition jurors many that are confused about whether scheme, jurors giv- under the Texas are society, prison society, refers free or guidance Second, en no regard. typi- See, State, society e.g., as a whole. Felder v. punishment cal instructions at ex- (Tex.Crim.App.1988). juror misunderstanding actually acerbate speculation parole. invite about At punishment the time of typical jury hearing, instructions in While this Court appeal has held on cases, and the instructions used the instant “society” prison society includes and free so provided case as follows: ciety, jurors See, similarly are not informed. e.g., Muniz you You are instructed that if return a denied, (Tex.Crim.App.1993), negative cert. finding special sub- issue -, (1994); you, L.Ed.2d 82 mitted to the court shall sentence the Jones, 495; Boyd 843 S.W.2d at institutional division (Johnson, J., concurring) (citing Simmons for question regarding meaning asked proposition juries sometimes do not it); imprisonment,” “life but later withdrew instructions). will not follow Jones, (La. State v. 639 So.2d 1154-55 1994) (citing holding Simmons in that clemen- O’Connor, in Sim- Justice her concurrence cy statutory jury instruction included in in- mons, plurality’s appears to construe the due struction rendered statute un- unconstitutional process argument as where limited situations provision against der the state constitutional puts dangerous- the State the defendant’s future punishment; noting cruel and unusual only ness at issue and available alternative procedures under Simmons which undermine imprisonment sentence to death is life without reliability sentencing process violate However, possibility O’Connor ac- prohibition punishment); of cruel and unusual jurors knowledges that often make decisions Cunningham, State v. 320 Or. 880 P.2d "[Cjommon sense without accurate information: (1994) J., (stat- (Fadeley, dissenting) many jurors tells do not know whether a us ing that standardless and unreviewable statute possibility pa- with it a life sentence carries citing should held unconstitutional while —(cid:127) Simmons, --, role.” U.S. at 114 S.Ct. at process requirement Simmons for due bility); of relia- Delisle, (Vt.1994) J., (O’Connor, concurring). State 648 A.2d 632 Moreover, jurors Department telling instructions

the Texas of Criminal Justice not to added). possibility specu- invite life, (emphasis consider the for in The trial court lation about Sim- and: —mons, at-, at U.S. S.Ct. similarly “you that deliberations, admonished the are During your you are parole” not to instructed consider that any possible consider or discuss action of proper your not a “is issue consid- the Board of Pardons and Paroles division recognized The Supreme eration.” Court Department of the Texas of Criminal Jus- confusing that the instruction “was and frus- Governor, long tice or of the or how jury” trating suggesting in that required would be to serve to defendant available, but at the same time instruct- satisfy imprisonment. a sentence life ing the to be blind to this fact. Al- added). (emphasis Simmons, though parole was not available sentencing These instructions indicate that but is available defendants Tex- prison the defendant “for life” does not as, jurors are no or less confused frustrated. spend actually mean that will the defendant Texas, single while not “a there is case prison, life in he will the rest his rather be arguably theory supports that a [the] which point, juror’s has “sa- potential supposed released at some once he “viewis be that a defendant sentenced to life will serve imprisonment.” a sentence of life tisf[ied] ” prison,’ Boyd, rest of his life perform S.W.2d impossible: are forced to Jurors presumed jurors it at that do not They put parole” “possibility must special consider relation to the is- completely deciding out of their minds when sues. pose continuing a defendant a whether would Felder, society, at threat S.W.2d jurors ordinarily that presume While we presuming sen-

without “that a defendant instructions, court’s see follow the Rose v. to life will rest of his life in tenced serve the (Tex.Crim.App. Boyd, prison.” at 121. How 1988), circumstances, “in ‘the risk some not, then can the decide whether a defendant will or cannot follow instruc continuing society in pose great, consequences a threat to tions is so and the defendant, considering the defen- failure so vital to the future without where of the practical human limitations jury's if not A task dant will be executed? ” Simmons, system ignored.’ cannot be presented much more difficult when (citations -, at 2197 testimony a indicating with defendant’s omitted). of Texas’ limitations propensity significantly differs violence sentencing ignored, partic scheme cannot be is, depending on his environment. That a ularly light study a recent sub propensity pris- in a defendant’s for violence stantially special similar issues scheme may markedly setting less than his on Oregon, and studies from other numerous propensity for violence in the free world. that, indicating despite states instructions to instructions as to where the defen- Without jurors contrary, invariably consider given if or dant will be a life sentence how possibility that the will be released incarcerated, task long he will be prison parole.11 testimony complicated by further propensity applicable pa- rates for vio- that recidivism instruction on the Without law, eligibility speculation is un- lence tend decrease with time. role such Costanzo, Sally Oregon. juries, answered Costanzo Of the nine five 11. See & Mark Life issues, Capital Jury special patterned after Analysis An which are Texas Death Decisions: sentence, law, Making Special and four Decision Issues Sen- to render death ren- Under Framework, Only twenty- tencing dered a life seven of Law & Human Behavior sentence. n —U.S. (1994) (Texas Simmons, juries); jurors seven believed that the sentence rendered is, Oregon members of "life” -n. 114 S.Ct. at n. 9. The would be carried out. That interviewing juries would study believed that the defendant be re- was conducted random juries jurors early, "death" sample nine and members of be- of three from each of leased Twenty-three year county juries period execution would not occur. over a two lieved

881 Smith, But, plurali reliability a of the new trial. informed and diminishes the acknowledge in order to ty not that sentencing process. plurality rec- does While the relief, rig a defendant must meet the ognizes provides procedural obtain that Texas some State, v. Sneed out in standard set juror orous protections attempt in an minimize to see (Tex.Crim.App.1984); misunderstanding, do not S.W.2d protections these State, 610, 610- also Buentello disregard compel us to risk that the n will Third, (Tex.CrimApp.1992). counsel not, or cannot follow instructions. jurors permitted prospective examine to appel in its of plurality, The discussion they whether think they are able to about error, point proce ninth of three potential damaging juror recognition capital effect of dates a of a defendant’s speculation may by general, right require meaning be increased instructions on the though frequently inaccurate, legal knowledge of of the terms used to describe the sen- Simmons Simmons: plurality tencing options. law. in in As the As noted: whenever there is a reasonable likelihood juror that a will hardly questioned ju-

It can misunderstand sentenc- most term, ing a defendant in- ries lack accurate demand information about the struction precise meaning, on its and a death sen- meaning imprisonment” of “life as following tence the refusal of such a re- defined States.... For much of our quest having should be vacated as been country’s history, parole mainstay was a “arbitrarily capriciously” “wantonly and regimes, every state and federal and term (whether freakishly imposed.” and ... years) a term of life or a term of practice was understood to be shorter — Simmons, at-, U.S. 114 S.Ct. at 2198 term_ impossi- than the [I]t stated (citations (Souter, J., omitted). concurring) ignore reality ble to “the known to the The Simmons plurality concluded that juror,’ that, historically, ‘reasonable life- process State denied Simmons due in secur- pa- term defendants have been ing part a death sentence based on his role.” dangerousness concealing future while from meaning noncapital the true of its Simmons, at-, 114 2197 S.Ct. at at-, Id. sentencing alternative. 114 S.Ct. (citations omitted). repeated- This Court has concurring opinion, at 2193. their Jus- ly recognized that it knowledge” is “common tices Souter and Stevens observed that the frequent in Texas that ais occurrence. Eighth heightened reliability Amendment’s See, Felder, 762; Sneed, e.g., 758 S.W.2d at requirement capital similarly cases man- (“[I]t 670 at S.W.2d 264-66 is common knowl- recognition capital dates of a defendant’s edge that from time to time inmates of the right require meaning instructions on the Department Texas of Corrections are re- legal of the terms used to describe the sen- Further, parole_”). leased on the likeli- at-, Id. 114 tences available. S.Ct. at jurors hood that knowledge have accurate (Souter, J., concurring). applicable parole given law in a case is significantly Legisla- decreased due C. Matson v. State and Heightened frequent amending

ture’s Tex.Code Crim. Reliability § Proc.Ann. art. 42.18 8. The law for changed defendants in Texas has four in Simmons did not Although plurality years, past times in the ten from a minimum issue,13 Eighth reach the Amendment it is twenty years calendar to fifteen Eighth incorrect to conclude that the Amend- years thirty-five years concealing ment sanctions from the forty years in 1993.12 meaning noncapital sentencing true of the

Withholding parole eligibility information Texas, danger- alternative where “future juries fosters their distorted view of the ousness” is a threshold determination in noncapital sentencing actual effect of the al- every Legislature case and has where ternative, creating a needless and substantial provided mandatory, periods substantial juries impose risk that penalty the death possibility pa- of incarceration without the reality in an effort to eliminate what is in role for defendants who are not sen- danger nonexistent of release on Eighth with- An Amendment tenced death. in relatively period analysis logically short In addi- time. of the Texas scheme follows Matson, tion, heightened reliability the need for man- from this Court’s decision in (20 at-, Leg., years); § Acts 1985 69th Ch. Id. 114 S.Ct. at 2193 n. 4. (15 Leg., years); § 70th Acts 1987 Ch. 384 Acts (35 Leg., years); § 1991 72nd Ch. 652 Acts (40 Leg., years). 1993 73rd Ch. 900 6.01 eerated.) basis), holding in our Matson (Eighth Amendment Because proposition that recidivism and requirement limited heightened reliability propensity for violence evidence relevant Lockett, at at 438 U.S. only part mitigating, reaches 104, 102 Eddings, S.Ct. 455 U.S. at at of a way toward full realization defen- Jurek, applied to Texas in Eighth rights Amendment. dant’s under Franklin, 2951-52, U.S. at 2321-22, Penry, 108 and 492 U.S. at S.Ct. at Moreover, minimum incarcera- 302, Additionally, 109 at 2937-38. the S.Ct. analyzed Eighth the tion is under instruction Due distinction the Process Clause between Due of the Process Amendment instead increasingly the Amendment is Eighth and Simmons, in plurality used Clause the jurisprudence. in penalty elusive death 2187, at-, at 114 S.Ct. because U.S. requirement Eighth of the Amendment Eighth This held that the Court has reliability stronger heightened provides capital requires Amendment that defendants grounding proposition capital that for the of present be allowed to evidence the rela- right require in has a defendant Texas tionship propensity recidivism and between meaning legal of instructions on “the the length of for violence and the incarceration is a terms used” there reasonable where Matson, age and of the offender. 819 juror misunderstanding of and likelihood However, enough S.W.2d at it is not at-, misperception. 114 S.Ct. at 2198 Id. jurors mitigating that hear this relevant evi- (Souter, J., concurring). the While Simmons right dence. the The to have sentencer con- ju- plurality persuasively demonstrated that weigh mitigating sider and evidence is general likely in rors are misunderstand “meaningless” permitted unless the meaning imprisonment, the of “life” id. at Franklin, “give to that evidence. See effect” -, 2193, 114 the discussion above S.Ct. at 185, (O’Connor, 487 U.S. at 2333 at 108 S.Ct. potential that in Texas the for demonstrates J., Penry, concurring); 492 U.S. at 109 misperception sig- misunderstanding and words, at In S.Ct. 2946-47. other the Mat- supra parts nificant. III.B. & C. See incomplete: son decision is Without a indicating minimum time that process Eighth prin- Amendment Due and incarcerated, jurors the defendant will be ciples capital jurispru- are in interconnected “give {e.g., cannot effect” to Matson evidence significant dence.14 It is constitu- propensity that a defendant’s violence is majority and concurrence tional basis for the prison significantly reduced when in a envi- Skipper years in later eight becomes world, ronment of in the free that his instead plurality, for the and re- basis concurrence propensity likely Skipper, for violence will spectively, decrease 476 in Simmons. time, 1,106 1669, majority over or that likelihood recidivism at of the U.S. S.Ct. length decreases of time that the exclusion evidence with the he is incar- Court decided justice. produce In its the issue it failed to evenhanded He ar- consideration of 1970s, punishment Supreme gued in the Court “arbitrariness” in sentenc- the claim of initially rejected permitting jury a claim that ing penalty fails to that the death establish impose penalty governing death without stan- ap- punishment: "cruel and unusual” “The process dards in violated due McGautha v. Cali- proach concurring opinions has no ante- these Ohio, Crampton U.S. fornia Eighth in It is cedent Amendment cases. However, (1971). S.Ct. L.Ed.2d 711 procedural pro- essentially exclusively a due later, year Supreme one Court held Furman, 238, 399, argument.” 408 U.S. cess impose permitting penalty the death C.J., (Burger, dissenting). S.Ct. governing standards absence of constituted punishment subsequent grounded “cruel and unusual” in violation of decisions Eighth Georgia, Amendment. Furman process appears that principles, due the Su- (1972). U.S. 33 L.Ed.2d 92 S.Ct. abrogated holding preme Court has Furman, Burger In his Chief Justice dissent in E.g., Crampton. Gardner Flori- McGautha and criticized Stewart’s and Justice White’s Justice da, concluding opinions concurring gia's system discretionary Geor- 1669; (1977); Skipper, capi- sentencing Simmons, -, 114 S.Ct. 2187. -U.S. Eighth cases tal violated the Amendment because good prison of a defendant’s behavior in height- de- Court’s decision Matson and the prived Eighth him of right reliability requirement, recently his Amendment ened most place before the sentencer relevant evidence discussed Justices Souter’s Stevens’ mitigation punishment. Simmons, Justice Pow- Eighth concurrence Amend- ell's concurrence reached the same result ment is violated when a Skipper, based on the Due Process Clause. presents decreasing evidence of rates of re- 476 U.S. at 106 S.Ct. at 1673-74. While propensity cidivism and for violence over plurality holding the Simmons’ that the time, de- prevented informing but is improperly fendant deprived of a meaning of the noncapital true pro- instruction on was based on due sentencing alternative. principles, cess one of the concurrences points out that State this Court has Eighth reached the same result based on proper held that is not a consideration 1,114 principles.

Amendment Id. S.Ct. at punishment phase deliberation in the (Souter, J., concurring). trials, of holding purported- murder a Moreover, Skipper plurality highlight- ly grounded principles separation of of ed the relatedness of the two constitutional Jones, powers. E.g., 843 S.W.2d at 495. provisions: is, juror speculation That about when the [Wjhere prosecution specifically relies might Board of Pardon and Paroles release a prediction dangerousness on a of future parole upon convict on would encroach asking penalty, only for the death it is not function, manifestly executive of violation Eddings the rule Lockett and that re- II, § of Article 1 of the Texas Constitution. quires that the an However, Judge persuasively afforded Clinton ar- opportunity to introduce evidence on this gues dissenting opinion, informing ju- in his point; process it is also elemental due rors case that a defendant sen- requirement that a defendant not be sen- imprisonment tenced to life must serve some tenced to death “on the basis of informa- length minimal of that sentence before be- tion opportunity deny which he had no coming eligible implicate does not explain.” or principles separation powers. See Smith, (Clinton, J., dissenting). at 845-847 Skipper, 476 at n. U.S. 106 S.Ct. at 1671 Indeed, Legislature provided because the has Florida, (quoting 1n. Gardner v. 430 U.S. period for a minimum of time which a defen- 349, 352, 1197, 1201-02, 97 S.Ct. 51 L.Ed.2d becoming parole eligi- dant will serve before (1977)) added). (emphasis Sealia, Justice ble,15the Board Pardon and Paroles does Simmons, in his dissent in also underscores “jurisdiction” not have over the defendant the interconnectedness of the Due Process until that time has run. Eighth Clause and the Amendment: plurality] [The adds to our insistence that courts “all mitigating State admit relevant Sentencing IV. Truth evidence,” see, Oklahoma, e.g., Eddings v. This conclusion is with also consistent U.S., 104, 71 L.Ed.2d sentencing” policy “truth in of the State (1982); Ohio, Lockett v. Texas. In its “Recommendations to the 73rd (1978), a re- Legislature,” the Texas Punishment Stan- quirement adhere to distinctive recommended, dards Commission based on rules, demanding more than what the Due ju- sentencing,” the notion of “truth in normally requires, Process Clause for ad- ries be informed of the amount of time of-

mitting evidence of other sorts —Federal required spend prison. fenders will be Evidence, Penalty Rules of Death so The Commission reasoned: speak.... Simmons, at-, illusory long public up 114 S.Ct. at 2205 The is fed with (Sealia, J., dissenting). light of this sentences handed down to offenders and 8(b); supra 15. Tex.Code Crim.Proc.Ann. art. 42.18 see note 2. victims, juries, public the truth and the ability board to

with the lengths of the effect on sentence juries about judges the wishes of circumvent sentencing and back-time concurrent by setting long offenders free before the credits. termination of their sentences. scheduled accurate public is entitled to more County Attorneys Associ- District and Texas way system about our information Statement,” ation, Policy printed “Sentencing works, system compli- that is not and to Commission, Punishment Standards in Texas good parole and con- cated elaborate Report: Report A the Proceed- Summit system gives provisions.... duct Such Standard ings the Texas Punishment sentencing authority ap- true back to the Justice Summit Commission’s Criminal entity, judges propriate and accountable 1992). 13-15, (Aug. juries, and removes the discretion sentencing” with the “truth Consistent long someone will serve from decide how approved an policy, the voters of Texas considerably less accountable IV, § 11 of the Texas amendment to Article including Everyone board. involved— Leg- in 1989 that authorized Constitution victim, jury, and the offender —knows require permit islature to enact “laws that exactly long the offender will serve how juries the effect of ... courts to inform about on the streets. before the offender back period ... eligibility for on the sentencing only way Truth in is the by a defendant convict- incarceration served integrity reestablish the of our criminal 1989, 71st ed of a criminal offense.” Acts justice system in Texas and to restore the 4, § Leg., approved Nov. S.J.R. system. public’s faith simultaneously enact- Legislature The Texas Commission, Texas Punishment Standards of Criminal Procedure article ed Texas Code Legislature

Recommendations to the 73rd 29 37.07, 4,§ which mandates that the court (Dec. 1992). report did not distin- noncapital felony eases of inform the guish noncapital capital cases between and time, applicable good actual time conduct regarding the information that sentencers serve, parole eligibility. and defendant will Although oppos- should have. now State Leg, 71st ch. Acts juries informing es of the laws sentencing” compelling “Truth in is no less cases, County the Texas District and noncapital than in cases. In- cases Attorneys “Sentencing Policy Association’s deed, qualita- penalty because the of death is contradictory position: Statement” outlined a tively penalties, this dif- different from other County TDCAA District and Attor- [Texas degree greater mandates a of relia- ference neys wholeheartedly agrees Association] bility imposed. when a sentence death deserves, public justice and de- See, Woodson, 304, 96 e.g., 428 U.S. at S.Ct. mands, sentencing, truth which should 113-15, 2991; Eddings, 455 at at U.S. include: Lockett, 876-77; at S.Ct. at U.S. Further, Eighth at 2964-65. -immediately telling public the actual that need- prohibits procedures Amendment being lengths of sentences now served reliability lessly undermine offenders; by various sentencing process. E.g., v. Missis- Caldwell public -modifying current law to tell the sippi 472 105 S.Ct. U.S. whether, when, sentencing at the time of Alabama, (1985); Beck v. L.Ed.2d 231 circumstances felons’ and under what sentences or will be modified (1980). terminated; n n n n n n V. Conclusion forcibly argues correctly and -modifying Appellant law to enable and the current jury instruc- refusal to allow the require prosecutors to tell trial court’s courts and regarding statutory tion period minimum incar- ation instruction under the Due Pro- Clause, Smith, 848-858, period effectively cursorily cess prevented ceration dismisses his related claim Eighth under the giving mitigating from weight to the testimo- Amendment. Id. at 853-854. Because the ny punishment stage of Dr. Fason at the plurality appellant’s fails to consider eleventh the trial. While this Court has held that point light of error in of Matson and estab- prevented present- cannot be Eighth ju- lished penalty Amendment death ing Matson, testimony jury, it, risprudence respectfully and overrules I 850-51, without instruction on the dissent.17 applicable law, parole eligibility appellant’s Eighth rights fully Amendment cannot be J., OVERSTREET, joins. testimony

realized. The of Dr. Fason indi- appellant’s cated time and environment important

were in predicting factors future

dangerousness. Absent an instruction on the

statutory period minimum appel- of time that environment, prison

lant would be “give testimony. could not effect” to his juror

Due to the likelihood of misunder-

standing regarding meaning of “life im- prisonment” “society,”16 jurors’ ina- LAWHORN, Jr., Appellant, Bill bility “give mitigating effect” to relevant evidence of decreased recidivism and violence time,

over unconstitutionally the trial court Texas, Appellee. The STATE of pe- denied minimum incarceration riod Eighth violation of the No. 225-93. Moreover,

Fourteenth Amendments. this Texas, Appeals Court of Criminal conclusion is consistent with the “truth En Banc. Texas, sentencing” policy of which is more compelling sentencing than in April noncapital sentencing context. plurality carefully analyzes While the ap-

pellant’s point challenging ninth of error

trial court’s refusal of his minimum incarcer- states, appellant’s request plurality

16. The trial court denied In footnote “The “society” jury, stating define for the that it was a determining choice of what a should consid- English language word in "common use in the Smith, generally legislative.” er is at 853 n. 25. readily by populous and ... understood Where there exists in the law a vacuum and the However, [sic].’’ “society” while this Court has defined filling Constitution mandates the of that vacuum including prison both and the free properly controversy, in order to answer a this world, see, e.g., Boyd v. 811 S.W.2d Court should not succumb to the ostrich-like denied, (Tex.Crim.App.1991), 118 n. 12 cert. argument that the matter should be taken care of (1991), U.S. 112 S.Ct. through legislative process; certainly attorneys meaning. even For are confused as to its argument fails vis-a-vis Constitutional matters. example, appellant's counsel asserted: refuses, plurality Penry Ly- The as it did in Legislature composing wording The naugh, 492 contemplate this [second] issue did not T.D.C. L.Ed.2d to fulfill our constitutional man- Department being or Texas of Corrections as above, explained date. As this Court com- part society that this needs to consider Matson, determining pelled by argued by whether or not pose continuing society. threat to plurality, but not mentioned society that is reflected in the issue is in fact Eighth penalty ju- established Amendment death in, society jurors that the that the live individu- risprudence to hold that the trial court’s refusal als on the street who are free from incarcera- appellant's error. tion. lant’s notes forbidding consideration follow an instruction Smith, at-, but protections, dural deliberations, counsel parole in their and of efficacy. First, plurality their overstates main jurors who may challenge cause to permitted asserts that the State is not they tain that are unable to set aside jury that a argue to the defendant should Smith, at 852. their consideration. from re sentenced to death because he will be Here, that plurality recognize to fails Id., parole. prison on at 852. leased jurors obey think or state that can who However, error is unless such not reversible may actually not be able to do an instruction manifestly im argument “extreme or III.B., swpra, in part so. Our discussion statute, proper, mandatory violative of a or plu point. Additionally, illustrates facts, accused, injects new harmful neglects grants note rality to that this Court Franklin trial.” into the to trial latitude and deference considerable (hold (Tex.Crim.App.1985) S.W.2d jury strikes, rendering regarding thus courts harmless), cert. closing argument ing error unre- practically of trial courts the decisions denied, E.g., except extraordinary 106 S.Ct. cases. viewable (1986). (Tex. Second, plurality Vuong L.Ed.2d 346 denied, U.S. -, cert. if a in its Crim.App.1992) states that considers (1992). deliberations, a to be entitled 113 S.Ct. percent twenty-seven jurors possibility Ninety questions asked thought court. of the of the important meaning parole was an factor when answer- duration of a "life” were about the special jurors ing Interestingly, jurors issues. defendants The earlier believe sentence. juries rendering released, opt a did likely they on one life sentence the more are will be they believed would be so because the defendant study sentence. The indicates that for a death society. danger too old when released to be a jurors accurate informa- states where fewer have jurors juries a on one of the rendered laws, The death parole eligibility this relation- tion about because it that the defen- death sentence believed pronounced. ship is more young enough pose a threat dant would still study capital jurors Virginia found A society after release. would jurors defendants believed they actually only were one-half time serve plurality to articles The Simmons also cited Hood, III, The required serve. W. William discussing public opinion juror surveys that Meaning Virginia and Its Jurors "Life” for understanding” support the "commonsense Reliability Sentencing, 75 Capital Effect misper- juror a reasonable likelihood of there is (1989). concluded Hood Va.L.Rev. meaning ception "life im- about of the term misunderstanding jurors to make that this led - Simmons, prisonment.” at-n. caprice rather “based on or emotion decisions Capital & at 2197 n. 9. In Punishment Finally, properly Id. than informed reason.” Society Misperceptions, Contemporary & 27 Law Eisenberg Wells dis- and Martin T. Theodore (1993), a William Bowers discussed 168-71 study jurors who believe that found that cussed surveys capital jurors study based on have to sentenced to life will that defendants jurors who had served as citizens (16.8 only period prison short time in serve California, Nebraska, Carolina, York, South New con- years) render sentences. tend to death jurors study that both and Florida. found trast, sen- jurors who believe defendants grossly the amount of and citizens underestimate substantially life will have to tenced to serve to life. time a defendant serve if sentenced (23.8 years) tend greater period prison time in surveyed Fifty percent of the citizens in Nebraska imprisonment. Theo- render sentences life penalty was fifteen believed that the for murder Wells, Deadly Eisenberg & Martin T. actually dore penalty life years less when the Confu- Cases, Capital 79 Cor- Georgia juries sion: Juror Instructions in One in without four (1993). question interrupted nell L.Rev. 1 deliberations to submit

Case Details

Case Name: Smith v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Mar 8, 1995

Citation: 898 S.W.2d 838

Docket Number: 71433

Court Abbreviation: Tex. Crim. App.