Penry v. State , 2005 Tex. Crim. App. LEXIS 1620 ( 2005 )

OPINION

PRICE, J.,

delivered the opinion of the Court,

in which MEYERS, WOMACK, JOHNSON, and HOLCOMB, JJ., joined.

The appellant was convicted of capital murder. His sentence was reversed twice by the United States Supreme Court because the jury instructions failed to provide an adequate vehicle to give effect to the appellant’s evidence of mental retardation. During the most recent retrial, the trial court submitted instructions and a mitigation special issue that asked the jury to decide whether the appellant is mentally retarded, and if not, to “consider whether any other mitigating circumstance or circumstances exist as defined herein.”

In his fifteenth point of error, the appellant complains that the instruction, as given, precluded the jury’s giving effect to the appellant’s evidence of mental impairment that might not amount to mental retardation. Because we conclude that there is a reasonable likelihood that the jury was precluded from considering this circumstance as mitigating outside of showing mental retardation, we will reverse and remand for a new trial on punishment.

I. Procedural History

The appellant was convicted of the 1979 capital murder of Pamela Carpenter and sentenced to death. We affirmed the conviction and sentence.¹ The United States Supreme Court reversed the appellant’s sentence on the basis that the jury was not provided with a vehicle for expressing its reasoned moral response to the appellant’s mitigating evidence in rendering its sentencing decision.² On retrial, the appellant was convicted and sentenced to death again.³ We affirmed the appellant’s second conviction and sentence.⁴ The United States Supreme Court then reversed the appellant’s sentence on the basis that the trial court’s nullification instruction was internally inconsistent and still did not provide the jury with a vehicle to give effect to its reasoned moral response to the appellant’s mitigating evidence.⁵

The appellant was retried on punishment only, and, pursuant to the jury’s answers to the special issues, the trial court again sentenced the appellant to death.

II. Relevant Facts

After hearing evidence about the appellant’s mental impairment, childhood abuse, home life, educational background, and the circumstances of the offense, the jury in this case was instructed to consider four special issues.⁶ The trial court submitted the first three special issues in accordance with Code of Criminal Procedure Article 37.0711.⁷ In the first special issue, the jury was asked whether the appellant acted deliberately when he caused the victim’s death. In the second special issue, the jury was asked whether there is a probability that the appellant would commit criminal acts of violence that would constitute a continuing threat to society. In the third special issue, the jury was asked whether the appellant’s conduct in killing the victim was unreasonable in response to provocation, if any, by the victim. The jury answered these three issues yes.

The trial court submitted the current statutory mitigation issue from Article 37.0711 as the fourth special issue.⁸ In the fourth special issue, the jury was asked whether, taking into consideration all the evidence, including the circumstances of the offense, the appellant’s character and background, and the personal moral culpability of the appellant, there is a sufficient mitigating circumstance or circumstances to warrant a life sentence instead of death.

In its instructions regarding the fourth special issue, the trial court told the jury that neither party had the burden of proof on the fourth special issue and that the jury should “consider mitigating evidence, if any, that a juror might regard as reducing the [appellant’s] moral blameworthiness.” The trial court then told the jury that mental retardation is a mitigating factor as a matter of law, and it defined mental retardation. The jury was instructed that, if it believed that the appellant is mentally retarded, it should answer the fourth special issue yes. If the jury found that the appellant was not mentally retarded, the jury was instructed to “follow the Court’s instructions previously given herein concerning the appropriate answer to Special Issue No. 4 and consider whether any other mitigating circumstance or circumstances exist as defined herein.”⁹

The appellant made several objections to the jury charge, including an objection that, if the jury concluded that the appellant was not mentally retarded, the jury could then consider as mitigating evidence only circumstances other than mental impairment and mental deficiencies.

The trial court overruled the appellant’s objection. During its deliberations, the jury answered the fourth special issue no.

III. Parties’ Arguments

The appellant complains that the jury was foreclosed from considering his evidence of mental impairment that did not establish mental retardation. The jury was instructed, if it found that the appellant was not mentally retarded, to “consider whether any other mitigating circumstance or circumstances exist as defined herein.” He argues that this specific language created a reasonable likelihood that the jury applied the instruction in such a way that prevented the appropriate consideration of the appellant’s constitutionally relevant mitigating evidence of mental impairment that did not rise to the level of establishing mental retardation.

The State argues that the statutory definition of mitigating evidence, when read in tandem with the instruction to consider all evidence when deciding whether sufficient mitigating circumstances exist to warrant a life sentence, was sufficient. For this proposition, the State cites Shannon v. State,¹⁰ in which we held that the statutory definition of mitigating evidence as laid out in Code of Criminal Procedure Article 37.071 does not unconstitutionally narrow a jury’s consideration of mitigating evidence. But Shannon deals with the special issues generally and not the specific facts of this case.

IV. Law and Analysis

A jury in a capital case must be given a vehicle to give effect to the appellant’s constitutionally relevant mitigating evidence.¹¹ The states have discretion to structure the jury’s consideration of mitigating evidence, but it “may not cut off in an absolute manner the presentation of mitigating evidence, either by statute or judicial instruction, or by limiting the inquiries to which it is relevant so severely that the evidence could never be part of the sentencing decision at all.”¹²

A capital defendant cannot establish a constitutional violation simply by demonstrating that an allegedly erroneous jury instruction could have or might have affected some hypothetical jury.. The Supreme Court explained in Boyde v. California that a defendant must show that

there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence. Although a defendant need not establish that the jury was more likely than not to 'have been impermissibly inhibited by the instruction, a capital sentencing proceeding is not inconsistent with the Eighth Amendment if there is only a possibility of such an inhibition. This ■ “reasonable likelihood” standard, we think, better accommodates the concerns of finality and accuracy than does a standard which makes the inquiry dependent on how a single hypothetical “reasonable” juror could or might have interpreted the instruction.... Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting.¹³

In Boyde, the Supreme Court considered whether California’s “unadorned” mitigating factor (k) permitted the jury to give effect to the defendant’s evidence of his background and character.¹⁴ This mitigating factor asked California juries to determine whether “Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.”¹⁵ Applying the standard above to the unadorned factor, the Supreme Court held that the defendant

had an opportunity through factor (k) to argue that his background and character “extenuated” or “excused” the seriousness of the crime, and we see no reason to believe that reasonable jurors would resist the view, “long held by society,” that in an appropriate case such evidence would counsel imposition of a sentence less than death. The instruction did not, as petitioner seems to suggest, limit the jury’s consideration to “any other circumstance of the crime which extenuates the gravity of the crime.” The jury was directed to consider any other circumstance that might excuse the crime, which certainly includes a defendant’s background and character.¹⁶

At first glance, factor (k) in Boyde seems very similar to the instruction given in the appellant’s case. Here, the jury was instructed to consider any other mitigating circumstance or circumstances when answering the fourth special issue after determining that the appellant was not mentally retarded. This situation is different from Boyde because the instruction to consider “any other circumstance or circumstances” excludes what the jury had already considered: mental impairment that did not rise to the level of mental retardation. This circumstance, even if the jury concluded that the appellant is not mentally retarded, is the kind of double-edged circumstance that the jury should be able to consider within the context of the mitigation special issue.¹⁷

The parties’ arguments to the jury did not clear up this confusion. The State told the jury

“If you don’t believe he’s mentally retarded, your job is not complete on that fourth special issue. As we discussed, you still have to look at the other evidence in this case and decide whether there are any other kinds of evidence in this case there that you believe reduces this man’s moral culpability for commission of these crimes, whether it’s child abuse, mental illness, whatever.”

In the context of victim-impact evidence, the State told the jury, “And that’s important to that mitigation question, because that mitigation question asks you to consider all the evidence and it also asks you to consider the circumstances of the offense and the character of the Defendant.”

Defense counsel came close to explaining how the jury should consider the evidence, but in light of the trial court’s instructions and the State’s argument, this is not sufficient to correct the problem.

But we also suggest to you, respectfully, that there are mitigating circumstances in this case that reduce his moral blameworthiness. His mental deficiencies, call it whatever you want, mental retardation, borderline, everyone agrees, even the State’s witnesses, this is a very slow man. His brain simply does not work the way yours and mine do.

The parties’ arguments did not explicitly inform the jury that it should reconsider the appellant’s mental impairment when considering the fourth special issue if it concluded that the appellant was not mentally retarded.

Because there is a reasonable likelihood that the jury believed that it could not give effect to mental impairment, outside of tending to show that the appellant is mentally retarded, the trial court erred in instructing the jury to “consider whether any other mitigating circumstance or circumstances exist as defined herein.”

We appreciate that the trial court had once again found itself in a difficult position. During this trial, the Supreme Court handed down its opinion in Atkins v. Virginia, ¹⁸ holding that executing people who are mentally retarded violates the Eighth Amendment to the United States Constitution. The legislature has not modified the statutory special issues within Articles 37.071 and 37.0711 to include a special issue on mental retardation. The trial court might have believed that it was not permitted to submit a separate special issue solely on mental retardation.¹⁹

Although we may have sympathy for the trial court’s position, we conclude that there is a reasonable likelihood that the jury believed that it was not permitted to consider mental impairment outside of determining whether the appellant is mentally retarded. As a result, the instructions in this case fell short of the constitutional requirement that the jury be provided a vehicle to give effect to its reasoned moral response to the appellant’s mitigating circumstances.

Y. Harm Analysis

Under Code of Criminal Procedure Article 36.19, we will not reverse a conviction or sentence on the basis of jury charge error “unless the error appearing from the record was calculated to injure the rights of the defendant, or unless it appears that the defendant has not had a fair and impartial trial.”²⁰ In Almanza v. State, we have concluded that this language created two separate harm-analysis standards: the first to be used when a timely objection is made to the charge; the second to be used when no such objection appears in the record.²¹

The first standard dictates -that reversal should occur if the defendant made a timely objection and if the error is “calculated to injure the rights of the defendant.” We have interpreted this to mean that there must be some harm to the defendant from the error.²² Properly preserved jury-charge error requires reversal unless it is harmless.

If the defendant has not made a timely objection, we apply the second standard, and reversal is not required unless he has not had a fair trial.²³

The appellant in this case did make a timely objection to the charge, so we will apply the first standard and reverse unless the error is harmless. Because we have already concluded that there is a reasonable likelihood that the jury believed that it was not permitted to consider evidence of mental impairment outside of determining whether the appellant is mentally retarded, we cannot conclude that the error was harmless. As a result, the error is reversible.

VI. Conclusion

We conclude that the trial court erred in instructing the jury on the mitigation special issue and that the error was not harmless. We reverse the appellant’s sentence and remand for a new punishment trial.²⁴

KELLER, P. J., filed a dissenting opinion in which COCHRAN, J., joined.

1 . Penry v. State, 691 S.W.2d 636 (1985).

2 . Penry v. Lynaugh, 492 U.S. 302, 328, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (Penry I).

3 . Before September 1, 1991, in capital murder cases that were reversed on the basis of error during punishment only, the cases were remanded for a new trial on guilt and punishment. The legislature amended Code of Criminal Procedure Article 44.29 in 1991 to provide for a remand on punishment only when reversible error occurred during punishment. Act of May 17, 1991, 72nd Leg., R.S., ch. 838, § 2, 1991 Tex. Gen. Laws 2898, 2900.

4 . Penry v. State, 903 S.W.2d 715 (1995).

5 . Penry v. Johnson, 532 U.S. 782, 804, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (Penry II).

6 . A copy of the instructions and special issues that were read to the jury is attached as an appendix.

7 . See Tex.Code Crim. Proc. Art. 37.0711, § 3(b).

8 . SeeTEX.CoDE Crim. Proc Art. 37.0711, § 3(e).

9 . Emphasis added.

10 . 942 S.W.2d 591, 597 (Tex.Crim.App.1996).

11 . Penry I, 492 U.S. at 328, 109 S.Ct. 2934.

12 .Johnson v. Texas, 509 U.S. 350, 362, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993) (quoting McKoy v. North Carolina, 494 U.S. 433, 456, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990) (Kennedy, J., concurring)).

13 . Boyde v. California, 494 U.S. 370, 380-81, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990).

14 . The trial court in Boyde submitted the following instruction to the jury:

In determining which penalty is to be imposed' on [each] defendant, you shall consider all of the evidence which has been received during any part of the trial of this case, [except as you may be hereafter instructed]. You shall consider, take into account and be guided by the following factors, if applicable:

(a) The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstance[s] found to be true.

(b) The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the expressed or implied threat to use force or violence.

(c) The presence or absence of any prior felony conviction.

(d) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.

(e) Whether or not the victim was a participant in the defendant's homicidal conduct or consented to the homicidal act.

(f) Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct.

(g) Whether or not the defendant acted under extreme duress or under the substantial domination, of another person.

(h) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or the affects of intoxication.

(i) The age. of the defendant at the time of the crime.

(j) Whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor.

(k) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.

Id. at 373 n. 1, 110 S.Ct. 1190.

15 .Id. at 375, 110 S.Ct. 1190.

16 . Id. at 382, 110 S.Ct. 1190.

17 . See Penry I, 492 U.S. at 328, 109 S.Ct. 2934.

18 . 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

19 . But see State v. McPherson, 851 S.W.2d 846, 849-50 (Tex.Crim.App.1992) (noting that this Court had "grappled with the application of Penry ” for some time; upholding the submission of an extra-statutory special mitigation issue).

20 . Tex.Code Crim. Proc. Art. 36.19.

21 . Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (op. on reh'g).

22 . Ibid.

23 . Ibid.

24 . Because we have reversed the appellant's sentence on the basis of his fifteenth point of error,, we need not address the appellant's other nineteen points of error.