Richardson v. State , 1991 Tex. Crim. App. LEXIS 129 ( 1991 )

OPINION ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

MeCORMICK, Presiding Judge.

Appellant, Miguel A. Richardson, was convicted of capital murder and the death penalty was assessed. This Court affirmed the conviction holding in part that appellant’s contention that the trial court erred in refusing his requested charges on mitigation had no merit. Richardson v. State, 744 S.W.2d 65, 85 (Tex.Cr.App.1987).

Appellant challenged our holding in the Supreme Court of the United States. That Court, 492 U.S. 914, 109 S.Ct. 3235, 106 L.Ed.2d 583 summarily granted appellant’s petition for writ of certiorari, vacated the judgment of this Court and remanded the case to us to consider appellant’s allegations in light of Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). We again affirm the conviction.¹

In Penry, the United States Supreme Court held that the petitioner’s mental retardation and history of child abuse constituted mitigating evidence that either was not relevant to the Texas special verdict issues or that had relevance to the defendant’s moral culpability beyond the scope of the special verdict questions. Penry, 492 U.S. at 323, 109 S.Ct. at 2949. In the absence of instructions informing the juiy that it could consider and give effect to the mitigating evidence of Penry’s mental retardation and abused background by declining to impose the death penalty, the Supreme Court concluded that the jury did not have a vehicle to express its “reasoned moral response” to its sentencing decision. Penry, 492 U.S. at 326, 109 S.Ct. at 2951. Justice O’Connor writing for the majority emphasized that:

“[I]t is precisely because the punishment should be directly related to the personal culpability of the defendant that the jury must be allowed to consider and give effect to mitigating evidence relevant to a defendant’s character or record or the circumstances of the offense. Rather than creating the risk of an unguided emotional response, full consideration of evidence that mitigates against the death penalty is essential if the jury is to give a ‘reasoned moral response to the defendant’s background, character, and crime.’ ” (emphasis in original) (citations omitted) Penry, 109 S.Ct. at 2951.

Our analysis will also consider Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988) (plurality opinion) and Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). We think it appropriate to give consideration to the time when evidence that has been termed “mitigating” occurred. Justice White, writing for the plurality in Franklin, specifically referred to Skipper when discussing the relevance of a prison disciplinary record. He wrote:

“Indeed, our discussion in Skipper of the relevancy of such disciplinary record evidence in capital sentencing decisions dealt exclusively with the question of how such evidence reflects on a defendant’s likely future behavior.... [S]kipper’s discussion of the proper use of a defendant’s prison disciplinary record in a jury’s sentencing decision focused precisely on the way in which such evidence is encompassed by the Texas fixture dangerousness question, and on the Court’s previous decision in Jurek.” Franklin, 487 U.S. at 178, 108 S.Ct. at 2329.

We will now consider whether the appellant is correct in his contention that the evidence he presents is, in fact, Penry evidence and whether a special instruction should have been granted so that the jury could have made a “reasoned moral response” in answering our special issues. The case may be that appellant’s evidence falls under the ambit of Penry, is Franklin evidence, or has no mitigating value at all in the context of his capital murder punishment phase.

Appellant has grouped what he wishes us to consider “mitigating evidence” into five categories for our consideration. The categories are:

(1) Voluntary service and kindness to others;

(2) Religious devotion;

(3) Artistic and poetic talent;

(4) Family ties; and

(5) Childhood abuse; mental and emotional impairment.

We will now examine the evidence under each category in light of Penry and Franklin.

VOLUNTARY SERVICE AND KINDNESS TO OTHERS

Linda Cowart testified that she met the appellant at a Sambo’s restaurant in Denver, Colorado. Cowart characterized their relationship as a “friendship” and that they talked about “people going by, cars going up and down the street.” This relationship continued after appellant was incarcerated in Denver. Cowart also testified that she suffered from diabetes and as a result was losing her eyesight. She commented that appellant expressed concern over her medical condition in letters and conversation. The record is not clear on whether appellant’s concern for Cowart’s vision problems occurred before or after his incarceration. Nevertheless, the character and quality of this testimony is not remotely related to the kind of evidence that prompted a reversal in the Penry case. Appellant has attempted to posture the Cowart testimony as indicative of lifelong qualities that somehow entitle him to a Penry charge. We do not agree and see Cowart’s testimony as nothing more than an appeal for “sympathy or emotion.” See California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 841, 93 L.Ed.2d 934 (1987) (O’Connor, J., concurring). Appellant also fails to point out that Cowart was asked about the disposition of appellant. Cowart testified:

“Q. Have you ever known him to be a violent individual?

“A. No, sir.

“Q. Have you ever observed him to have an uncontrollable temper?

“A. No. Any time I’ve been around him he’s always been kind of a happy go lucky person. I’ve never seen him down. I’ve never seen him even slightly perturbed about anything.”

Considering Cowart’s testimony as a whole and disregarding the patent appeals to sympathy and emotion based on the witness’ alleged disability, we hold that the jury had the opportunity to give effect to Cowart’s testimony through special issue number two regarding future dangerousness. See Franklin, 487 U.S. at 180, 108 S.Ct. at 2330.

Cynthia Lee took the stand and related that she was a resident of Denver, Colorado who had known appellant for four or five years. Lee met appellant in a lounge after bumping into him. Lee testified that she had never dated appellant but they had gone on outings to the mountains. Appellant focuses on the portion of Lee’s testimony that describes appellant’s relationship with Karen Craeken. Lee described Cracken, a fourteen year old, as coming from a troubled background and as suffering from mental and physical problems. Lee stated that appellant’s phone calls, letters, drawings and poetry gave Craeken a different perspective on life. What the brief for appellant does not point out is that appellant never met Cracken face to face and the relationship that is described took place within the time frame of appellant’s incarceration. We have several thoughts on the value of Lee’s testimony.

We consider appellant’s focus on the physical and mental condition of “his friend” as nothing more than a transparent attempt to bring “sympathy” evidence under the purview of the Eighth Amendment for purposes of a Penry charge.

Even more damaging to appellant’s assertion that Lee’s testimony entitles him to a Penry charge is the testimony from Lee that appellant was a nonviolent person. On direct examination the following exchange occurred:

“Q. What type of personality does Miguel have?

“A. Very pleasant and just real jolly. You know, he wants to know what is going on around him.

“Q. Have you ever observed him to be a violent individual?

“A. Not at all. No.

“Q. Have you ever observed him to be mean or vicious towards other people?

“A. Never.”

Lee’s testimony, taken as a whole, goes directly to the question of future dangerousness and the jury had the opportunity to give mitigating effect to her testimony through special issue number two. See Franklin, 487 U.S. at 180, 108 S.Ct. at 2330.

ARTISTIC AND POETIC TALENT

We next confront the evidence of appellant’s artistic and poetic talent and its Eighth Amendment value in the context of Penry. The brief for appellant contends that the defense presented evidence of Richardson’s “significant worth” to society as an artist and poet. Cynthia Lee, a friend of appellant, literally gushed forth with descriptions of appellant’s talents. She stated when describing a picture he had drawn: “It was real intensifying.” As to appellant’s poetry Lee stated: “You can’t pickup (sic) a book and read poetry that is as good as a lot of this. Some are short and some of them are three, four, five pages long. Some of them a lot longer than that. They are gorgeous.”

Several other witnesses gave passing assessments of appellant’s artistic and poetic ability. Paquita Richardson, appellant’s sister, testified that appellant was a poet. Ka-belitz, appellant’s boyhood minister, also offered his opinion as to the artistic abilities of the appellant. Kabelitz testified that appellant had artistic ability and on occasion would receive appellant’s drawings which were of a religious nature. Cowart, also a friend of appellant, mentioned that she had received small drawings on the outside of envelopes and had read “some poetry” by appellant. Bernard, another minister, also testified that appellant could draw.

We reject appellant’s contention that the testimony offered establishes appellant’s “significant worth” as an artist or poet. Penry, at the least, appears to demand evidence demonstrating lifelong dedication to the arts or poetry in order to gain status as Eighth Amendment mitigating evidence. Penry, 492 U.S. at 324, 109 S.Ct. at 2950 (discussing severity of petitioner’s afflictions). If we accept appellant’s contention that this kind of evidence deserves a reversal based on Penry then Penry itself is nothing more than an automatic reversal rule and brings into question the facial validity of our capital murder sentencing scheme. Penry implicitly reaffirmed the facial constitutionality of the Texas death penalty statute. 492 U.S. at 317-318, 109 S.Ct. at 2946-2947 (Supreme Court noting that “the facial validity of the Texas death penalty statute had been upheld in Jurek on the basis of assurances that the special issues would be interpreted broadly enough ... [and that] Penry argues that those assurances were not fulfilled in his particular case ...” [emphasis in the original] ).

Rather than attempt to shoehorn appellant’s artistic and poetic abilities into the ambit of the second special issue, we choose to confront this issue directly and hold that the appellant’s ability to draw pictures and write poems in the context of this case has no mitigating value in the sense that it was relevant to the jury making a “reasoned moral response” in voting on the special issues nor do those abilities have any particular relevance to the appellant’s moral culpability outside the special issues. In this particular case, we think that appellant’s artistic talents do no more than strike an emotional chord that would cloud the jury’s deliberations in reaching a decision. See Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257, 1264, 108 L.Ed.2d 415, 429 (1990). See also California v. Brown, 479 U.S. at 544, 107 S.Ct. at 841 (O’Connor, J., concurring).

CHILDHOOD ABUSE; MENTAL AND EMOTIONAL IMPAIRMENT

Appellant asserts the testimony of Ms. Richardson, his sister, supports his contention that he came from an abused background. To the contrary, Ms. Richardson, a space shuttle payload specialist with Boeing Aircraft, testified as follows:

“Q- [by appellant’s counsel] Let me ask you this. Was your father strict at home?

“A. Yes. He was.

“Q. Was he when Miguel was very young, was your father a very, very strict disciplinarian?

“A. He was strict to us, of course being a child we never liked getting whippings or being told what to do, however, he was understanding, but if he said something he meant it.”

We disagree with appellant’s characterization of this testimony as indicative of an abused background. Ms. Richardson’s testimony does nothing more than indicate appellant came from a normal background. Not one shred of her testimony mentions abuse, beatings, or other familial situations even remotely analogous to the mistreatment present in Penry.

Pastor Norb Kabelitz, a Lutheran minister from Oklahoma City, also testified about the general background and special talents of appellant. Appellant points to selected portions of the record which if taken out of context could lead one to believe that appellant suffered a variety of abuses worthy of a Penry charge. Close scrutiny of the record reveals otherwise.

Kabelitz testified as follows:

“Q. Pastor, let me ask you this. In the earlier days was Miguel a well behaved child?

“A. As normally well behaved as any of my others. Yes. Part of the youth group, the support group of the church. He played a role an acolyte in the church, communion. Sometimes not wanting to go to church like some kids do, etcetera, but he was there.

“Q. Was his father a strict disciplinarian?

“A. Yes.

“Q. Did you have occasion to visit in the home?

“A. Yes, often.

“Q. Okay.

“A. They meant the best for their children. The family from which Miguel comes is a well put together family, very strong father image. A mother who tried to do the best for their children. Middle class you might call them, hard working. He’s at Tinker Air Force Base. The mother a homemaker and now working for a National Transportation Company....”

This testimony does not indicate that appellant received anything other than a middle class upbringing. At this point we reject any claim that Kabelitz’ testimony brings appellant within the scope of Penry based on childhood abuse.

Kabelitz also offered testimony concerning the racial strife that occurred in Oklahoma City in the 1960’s and the apparent effect on appellant. Kabelitz implied that the social turmoil of that period stunted the appellant’s educational development. He also testified that appellant’s teachers “put him down publicly in class, called [him] names and [used] innuendos.” Richardson has also pointed to the testimony of Lillie Rex and her references to racial problems in Oklahoma City as supportive of this point. We do not believe that Kabelitz’ or Rex’ testimony about societal conditions in the 1960’s and the name calling allegations have any significance to the appellant’s moral culpability beyond the special issues or any relevance to the first two special issues. Franklin, 487 U.S. at 180, 108 S.Ct. at 2330.

Appellant has also attempted to establish a connection between his alleged abusive background and purported mental and emotional impairment as an adult. Appellant’s multiple references to the record regarding Bearden, Seiver, Franklin, Laursen, Dunow, and the State’s closing argument fail to establish any connection between alleged childhood abuse and its subsequent effect on appellant. There is simply no Penry evidence presented by the appellant’s nexus argument. This Court will not engage in analysis of a theory that is illogical on its face and not supported by the record.

Appellant has also attempted to characterize the testimony of Robert Rast, a clinical psychologist, as indicative of Richardson’s mental illness that had its roots in his childhood. Rast, however, was presented with a hypothetical based on the facts of the instant case and asked his opinion as to future dangerousness. Rast testified that in his opinion on direct and cross examination that the hypothetical “personality” in this case would be likely to commit future acts of violence. In closing argument on punishment, defense counsel again emphasized Rast’s testimony for its potential value in the jury’s deciding the question of future dangerousness. Counsel seated:

“All right. You had an opportunity to hear and listen to a ‘mental health professional’ this morning, Doctor Rast. I assume that’s what you will base your verdict on as to probability of future conduct.”

Defense counsel’s cross examination of Rast never established any connection between the diagnosis of sociopath and childhood experiences of Richardson. Rast’s testimony went directly to the question of future dangerousness that could be properly considered under special issue number two.

Appellant also asserts that Kabelitz’ testimony of appellant’s reading problems puts him on equal footing with Penry. We reject appellant’s argument. Difficulty with learning to read, in and of itself, cannot establish a Penry claim. Penry was diagnosed as mentally retarded, in and out of state schools, and never finished the first grade. Penry, 492 U.S. at 307, 109 S.Ct. at 2941. Appellant, on the other hand, did not suffer from the plethora of problems that Penry did. Difficulty with reading in the context of appellant’s case does not reach the threshold that mandates a Penry instruction.

RELIGIOUS DEVOTION

Several ministers other than Kabelitz testified as to the religious devotion of appellant. Doctor Griswold, a lay minister, had occasion to visit appellant during his incarceration in Denver. Griswold testified that appellant “came to a deep understanding of what the Christian life is about.”

Herbert Holston, minister and educator, also testified that appellant had made attempts to bring other persons to Christ. The record reflects that appellant’s evangelical zeal took place while incarcerated in San Antonio.

Wayne Bernard, minister of the Randolph Church of Christ in Universal City, testified that appellant had studied the word of God for seven months. Bernard noted that he had seen a “real conversion within Miguel, and I think that is evidenced by the fact that I have never seen any acts of violence, verbal or physical from him in the seven months I have known him.” Again, appellant’s conversion took place during his incarceration in San Antonio.

Ralph Vickery, a deputy sheriff, testified that Richardson had a cross forcibly removed from around his neck. Appellant argues the forced removal is evidence of religious devotion; however, Vickery testified the cross was removed because of a general rule against allowing prisoners to wear necklaces in certain jail areas. Appellant has also offered the testimony of Lillie Rex his childhood Sunday School teacher. Rex stated that Richardson was faithful about coming to Sunday school.

The evidence of appellant’s religious devotion is Franklin evidence and could be properly addressed by a jury answering issue number two. Appellant’s jail house conversions demonstrate nothing more than his ability to adapt to a structured prison environment. We also note that the childhood minister of appellant, Pastor Kabelitz, did not testify about any significant religious devotion, of the character and quality, that would entitle appellant to a Penry instruction. The jury had ample opportunity to give effect to any mitigating value of appellant’s religious zeal when they deliberated on the issue of future dangerousness. See Franklin, 487 U.S. at 180, 108 S.Ct. at 2329-30.

The judgment is affirmed.

CAMPBELL, J., concurs in the result. BAIRD, J., dissents. WHITE, J., not participating.

1 . We will not review appellant’s second point of error. It is outside the scope of the Supreme Court’s remand order.