Mines v. State , 1994 Tex. Crim. App. LEXIS 122 ( 1994 )

OPINION ON REMAND FROM THE UNITED STATES SUPREME COURT

MILLER, Judge.

On original submission, we affirmed the judgment of the trial court in this cause. Mines v. State, 852 S.W.2d 941 (Tex.Crim.App.1992). The U.S. Supreme Court granted Appellant’s petition for writ of certiorari, vacated our judgment, and remanded the cause for consideration in light of their decision in Johnson v. Texas, 509 U.S. -, 113 S.Ct. 2658, 125 L.E.2d 290 (1993). Because we believe that Johnson does not change our original disposition of Appellant’s Penny claims, we once again affirm.

Appellant was convicted of capital murder and sentenced to death. At trial, Appellant introduced evidence of a manic depressive state, also known as bipolar disorder. On original submission, we held that the special issues given during the punishment phase of the trial adequately encompassed the relevant, mitigating characteristics of Appellant’s evidence and gave the jury a vehicle by which it could express its reasoned moral response to this evidence. Mines, 852 S.W.2d at 952. Subsequent to our opinion, the U.S. Supreme Court handed down Johnson, supra.

The Supreme Court’s decision in Johnson succeeded its opinion in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). In Penny, the petitioner introduced evidence of his mental retardation and abusive childhood. The Supreme Court held that the Texas special issues could not adequately give effect to this evidence. Specifically, the jury instructions only allowed the jury to consider Pemys mitigating evidence as an aggravating factor because it suggested a “yes” answer to future dangerousness. Id. at 323, 109 S.Ct. at 2949. Similarly, the petitioner in Johnson argued that the Texas special issues could not give adequate mitigating effect to the evidence of his youth. The Supreme Court rejected Johnson’s claim and held that there was not a reasonable likelihood that the jury would have found itself foreclosed from considering the relevant aspects of petitioner’s youth through the second special issue. Johnson, 509 U.S. at -, 113 S.Ct. at 2669. “We believe that there is ample room in the assessment of future dangerousness for a juror to take account of the difficulties of youth as a mitigating force in the sentencing determination.” Id.

This Court, in several recent opinions and unpublished orders, has interpreted Johnson as being limited to its facts; youth. See Ex Parte Granviel, No. 6,620-04 (Tex.Crim.App. October 19, 1994) (unpublished order); Ex Parte Hawkins, No. 7,369-07 (Tex.Crim.App. October 12, 1994) (unpublished order); Zimmerman v. State, 881 S.W.2d 360 (Tex.Crim.App.1994); Ex Parte Lucas, 877 S.W.2d 315 (Tex.Crim.App.1994). In these eases, several judges on this Court have argued that the Supreme Court’s remand in light of Johnson must be for some other purpose than to just consider age. See Ex Parte Lucas, 877 S.W.2d 315 (Clinton, Baird, and Overstreet, JJ. dissenting); Ex Parte Hawkins, supra (J. Baird concurring). In fact, the Supreme Court held in Johnson that youth could be given proper mitigating effect within the framework of the Texas special issues. Therefore, it would be pointless for the Supreme Court to remand a case for consideration of an issue that they have already decided. Accordingly, Johnson must mean something more.

The Supreme Court in Johnson stated that “[t]he evidence of Johnson’s youth fell outside Penny’s ambit. Unlike Penny’s mental retardation, which rendered him unable to learn from his mistakes, the ill effects of youth that a defendant may experience are subject to change and, as a result, are readily comprehended as a mitigating factor in consideration of the second special issue.” Johnson, 509 U.S. at -, 113 S.Ct. at 2670. Therefore, a more plausible and logical explanation for the Supreme Court’s remand in this case and its companions¹ would be to consider whether the mitigating evidence offered in each individual case was subject to change, like the youth of Johnson, or constant, such as the mental retardation of Pen-ry.

At trial, Mines presented evidence of bipolar disorder. There was testimony that, if Appellant was suffering from bipolar disorder, proper treatment would reduce the odds that he would commit future acts of violence. Mines, 852 S.W.2d at 951. There was no testimony of any long term mental illness that precluded him from conforming his behavior to societal norms, as in Penny. To the contrary, the testimony showed that when bipolar disorder is in remission, with or without treatment, a person is capable of conforming his behavior to societal expectations. Id. 852 S.W.2d at 949. This mitigating evidence is not constant, as in Penny, and is subject to change. Consequently, the jury could have adequately given mitigating effect to this evidence through the second special issue. Furthermore, like Johnson, the jury was instructed that it could consider all of the evidence in either phase of the trial when assessing punishment. We fail to see how the jury was foreclosed from considering the mitigating aspects of Appellant’s mental illness, if any, in its deliberations on punishment. The mitigating aspects of bipolar disorder were well within the effective reach of the jury.² Therefore, a special instruction concerning Appellant’s mental illness was not warranted during the punishment phase of the ease at bar.

We hold that our original opinion is unaffected by the Supreme Court’s opinion in Johnson. Therefore, we reaffirm our original holding and the judgment of the trial court.

McCORMICK, P.J., and CAMPBELL, J., concur in the result.

1 . The other cases remanded for reconsideration in light of Johnson and decided by this Court were Ex Parte Granviel, No. 6,620-04 (Tex.Crim.App. October 19, 1994); Ex Parte Hawkins, No. 7,369-07 (Tex.Crim.App. October 12, 1994); Zimmerman v. Texas, No. 71,106 (Tex.Crim.App. May 31, 1994); Earhart v. Texas, 877 S.W.2d 759 (Tex.Crim.App.1994); and Ex Parte Lucas, 877 S.W.2d 315 (Tex.Crim.App.1994).

2 . Although a "nexus” issue is not within the immediate purview of a Johnson remand, we further note that Appellant has failed to establish a nexus between his illness and "the circumstances of the offense which tends to excuse or explain the commission of the offense, suggesting that [he] is less deserving of a death sentence.” Mines, 852 S.W.2d at 951. See also Nobles v. State, 843 S.W.2d 503, 506 (Tex.Crim.App.1992).