Ex Parte Bower , 1991 Tex. Crim. App. LEXIS 263 ( 1991 )

OPINION

BENAVIDES, Judge.

This is a post-conviction application for writ of habeas corpus.¹ Lester Bower seeks to set aside his death sentence based on the claim that the sentencing jury was not allowed to consider and give effect to mitigating evidence of his good character, good deeds and lack of a criminal record. We will deny the requested relief.

On October 8, 1983, four men were murdered in a hangar near Sherman. Bobby Glen Tate, owner of the hangar and one of the victims, told his family that he was attempting to sell his ultralight aircraft. Tate and three others intended to meet a potential buyer at the hangar that afternoon. Telephone records indicated that Lester Bower spoke to one of the victims three times to set up a meeting. Bower had responded to an advertisement placed in Glider Rider, a magazine for ultralight enthusiasts. A search of his home produced various ultralight equipment, including two ultralight tires with Tate’s name scratched on them. Police also discovered blood stained boots and a blood stained nylon bag. These discoveries led to Bower’s arrest and subsequent indictments, which charged him with the capital murders of Tate and the three other victims. A jury convicted Lester Bower of four capital murders. The jury affirmatively answered the statutory special issues and punishment in each case was assessed at death. The convictions were affirmed on direct appeal.² 769 S.W.2d 887.

In the instant habeas corpus proceeding, Bower claims that his death sentences are unconstitutional because the capital sentencing statute³ prevented the jury from fully considering and giving effect to mitigating evidence presented at trial. His claim is based on the Supreme Court’s opinion in Penry v. Lynaugh.⁴ Penry held the Texas capital punishment scheme unconstitutional as applied because the jury could not express its reasoned moral response to potentially mitigating evidence.⁵ In Penry, the defendant introduced evidence that he suffered from childhood abuse and mental retardation, which rendered him unable to learn from his mistakes.⁶ Justice O’Con-nor reasoned that the mitigating evidence was relevant beyond the scope of the special issues. The eighth amendment prohibits imposition of the death penalty by a sentencer not allowed to impose, based on proper mitigating evidence, a less severe punishment.

Bower did not, by way of pretrial motion or trial objection, challenge the Texas capital sentencing scheme on any of the grounds alleged in this application for post conviction habeas corpus relief. However, this Court recently held that a specially requested charge or a trial objection was not required to raise a Penry challenge on appeal for cases tried before the Penry decision.⁷ At the time of Bower’s trial, a Penry claim was a “right not recognized” by this Court or by the Supreme Court.

Under the capital sentencing statute, a defendant may ask the jury to “consider whatever evidence of mitigating circumstances the defense can bring before it.”⁸ A jury considers this mitigating evidence and answers the issues under the capital sentencing statute. Yet, where evidence of a defendant’s background, character, or circumstances of the offense has relevance to constitutionally mandated sentencing considerations beyond the scope of the special issues, the trial court must provide instructions which allow the jury to consider and give effect to this evidence.

We have reviewed the evidence presented at trial which Bower claims warrant a mitigating instruction.⁹ At the punishment phase of trial, Bower introduced evidence of his good and non-violent character, his good deeds, and the absence of a prior criminal record. Bower presented this evidence to convince the jury that he would not be a future threat to society. Even without a specific instruction, evidence of his non-violent nature and lack of a criminal record was plainly relevant to the future dangerousness special issue as a mitigating factor. Mitigating evidence under Penry encompasses those circumstances of “the defendant’s background supporting a belief, long held by society, that defendants who commit criminal acts that are attributable to [such circumstances] may be less culpable than defendants who have no such excuse.” ¹⁰

Unlike the mitigating evidence presented in Penry, Bower’s positive character evidence did not reflect that he was less morally culpable for committing the four capital murders than the average citizen.¹¹ If the jurors believed the character witnesses, they could have considered its mitigating effect in its determination of the special issue regarding future dangerousness. Nevertheless, the jury concluded that Bower would be a continuing threat to society and answered the second special issue in the affirmative.

Bower attempted to show through his devotion to family, friends and his religion that violence was inconsistent with his peaceful character. The second special issue clearly encompasses considerations such as these. Bower’s love for family and friends and his religious devotion were not circumstances of his character which contributed to the four murders. Moreover, we perceive no long held belief by the American people that those lawfully convicted of murder who have strong devotion to family, friends and religion are less culpable or blameworthy than those who murder and have no such excuse.¹² Therefore, the statutory special issues provided an adequate vehicle for the jury’s consideration of his mitigating evidence and no instruction regarding the evidence was necessary.

Accordingly, we deny the requested relief.¹³

MILLER and MALONEY, JJ., concur in the result.

1 . See Article 11.07, V.A.C.C.P.

2 . Bower v. State, 769 S.W.2d 887 (Tex.Crim.App.), cert. denied, 492 U.S. 927, 109 S.Ct. 3266, 106 L.Ed.2d 611 (1989).

3 . TEX.CRIM.PROC.CODE ANN. art. 37.071 (Vernon 1990).

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

5 . Id. 492 U.S. at 319, 109 S.Ct. at 2947.

6 . Id.

7 . Black v. State, 816 S.W.2d 350 (Tex.Crim.App.1991) (Campbell, J., concurring) (joined by McCormick, P.J., Clinton, Overstreet, Maloney, and Benavides, JJ).

8 . Quinones v. State, 592 S.W.2d 933, 947 (Tex.Crim.App.), cert. denied, 449 U.S. 893, 101 S.Ct. 256, 66 L.Ed.2d 121 (1980).

9 . In his writ application, Bower developed additional testimony, which he claims has mitigating effect. However, we granted this writ to determine whether a Penry instruction was necessary in light of the evidence presented at trial. We have only considered the evidence that the jury heard.

10 . Penry, 109 S.Ct. at 2947 (quoting California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987) (O'Connor, J., concurring).

11 . See Ex parte Baldree, 810 S.W.2d 213 (Tex.Crim.App.1991).

12 . See Richardson v. State, 1991 WL 99949 (Tex.Crim.App., No. 68,934, June 12, 1991) (Bena-vides, J., concurring).

13 . Applicant’s remaining allegations are denied on the basis of the trial court’s findings of fact and conclusions of law.