Ex Parte Harris , 1991 Tex. Crim. App. LEXIS 278 ( 1991 )

OPINION

PER CURIAM.

This is a post conviction application for writ of habeas corpus filed pursuant to article 11.07, V.A.C.C.P.

On April 29, 1986, applicant was convicted of capital murder. V.T.C.A. Penal Code, § 19.03(a)(2). After the jury affirmatively answered the special issues submitted under article 37.071(e), V.A.C.C.P., the trial court assessed punishment at death. This Court affirmed applicant’s conviction on direct appeal. Harris v. State, 784 S.W.2d 5 (Tex.Cr.App.1989). On November 22, 1989, we denied applicant’s pro se motion for rehearing. The United States Supreme Court denied applicant’s petition for writ of certiorari on April 16, 1990. Harris v. Texas, 494 U.S. 1090, 110 S.Ct. 1837, 108 L.Ed.2d 966 (1990).

Applicant presents forty-four (44) allegations challenging the validity of his conviction and the resulting sentence. This Court ordered the cause filed and set for submission on applicant’s first allegation only. We also granted applicant a stay of execution pending further orders from this Court.

Applicant contends that the jury that sentenced him to death was unable to consider and give effect to significant mitigating evidence, thereby violating the eighth and fourteenth amendments to the United States Constitution.¹ For relief, applicant relies upon Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988); and, Mayo v. Lynaugh, 893 F.2d 683 (5th Cir.1990). We will deny relief.

Article 37.071 of the Texas Code of Criminal Procedure sets forth the death penalty scheme as it existed at the time of applicant’s trial.² Article 37.071(b) provides:

On conclusion of the presentation of the evidence, the court shall submit the following three issues to the jury:

(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;

(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and

(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.

Article 37.071(b), Y.A.C.C.P. If the jury unanimously answers “yes” to each special issue, the trial court must sentence the defendant to death; otherwise the defendant is sentenced to life imprisonment. Article 37.071(c), V.A.C.C.P.

In Franklin, petitioner argued that absent his requested jury instructions the jury could not give independent mitigating weight to his good prison disciplinary record. Franklin, 108 S.Ct. at 2329. A plurality of the Supreme Court determined that Franklin was not sentenced to death in violation of the Eighth Amendment because the jury was free to consider and give effect to his good behavior in prison in considering the second special issue. Id. at 2330.

In Penry, the Supreme Court determined that the special issues of article 37.071, as applied, did not provide the jury with a vehicle to give full mitigating effect to evidence of Penry’s mental retardation and childhood abuse. Penry, 109 S.Ct. at 2952. The evidence in Penry was considered to be double-edged in that it diminished blameworthiness for the crime, but it also indicated a probability of future dangerousness under the second special issue. Id. at 2949. Thus, an instruction “informing the jury that it could consider and give effect to the mitigating evidence ... by declining to impose the death penalty” was necessary. Id. at 2952.

Applicant contends that he was entitled to a Penry type instruction based on the following four categories of mitigating evidence:

(1) the circumstances of the shooting, in that applicant did not fire until after the victim shot him and after it was apparent that the victim would continue to shoot;

(2) applicant’s remorse and cooperation with the police;

(3) his youthfulness; and

(4) his history of alcoholism.

In regard to (1) and (2) above, applicant’s mitigating evidence is qualitatively different from that presented in Penry. The circumstances surrounding the shooting and applicant’s remorse and cooperation with the police suggest that applicant is not a violent person. This evidence is mitigating, but also directly within the scope of the second special issue. Unlike the double-edged evidence presented in Penry, this evidence could have been given full effect within the submitted issues. See Franklin; Boyd v. State, 811 S.W.2d 105 (Tex.Cr.App.1991) (evidence of appellant’s remorse, good employment record, and good relations was given full effect within the second special issue).

Applicant also contends that his youth at the time of the offense — 24 years old — is an additional mitigating factor that the jury was precluded from fully considering. We disagree.

While there is no precise age limit for “youth,” several factors relate to that determination, including background and life experience. Applicant has a long criminal history including a prior prison term and prior convictions for attempted robbery, armed robbery, attempted burglary, burglary, theft, and prisoner in possession of a deadly weapon. At the time of the instant offense, he was not a naive young man. While youthfulness may constitute a Penry issue in the proper case, we hold that it does not in the present case.

We now turn to the issue of applicant’s history of alcoholism. During the punishment phase of applicant’s trial, several witnesses testified as to applicant’s history of alcoholism and its relation to his criminal history. Evelyn Powell, applicant’s alcohol abuse counselor, testified that in her opinion applicant is “definitely an alcoholic.” She testified that he was a shy, introverted person when sober. She also testified that applicant was under the influence of alcohol when he committed each prior crime, except possession of a deadly weapon by a prisoner. Nancy Pet-kovsek, applicant’s parole officer, also testified that “during the commission of all criminal behavior ... he was under the influence of an intoxicating beverage.”

Doctor Edward Gripon, a psychiatrist, testified that the ingestion of alcohol is frequently related to the commission of crime. He stated that persons with pathological intoxication display marked behavioral changes. A person may be fairly docile when sober, but violent when intoxicated.

Nelda Cox testified that applicant was intoxicated when he broke into her mobile home and hit her over the head with a rolling pin in 1977.

At the outset, it is important to note that Penry claims are limited to evidence contained in the record. Evidence outside of the record is wholly irrelevant to such claim. See Ex Parte Goodman, 816 S.W.2d 383 (Tex.Cr.App.1991); Ex Parte Ellis, 810 S.W.2d 208 (Tex.Cr.App.1991). In the present case, it is undisputed that applicant is an alcoholic, however, there is no evidence in the record that applicant was drinking at the time of the instant offense. See Ellis. See also Lackey v. State, 816 S.W.2d 392 (Tex.Cr.App.1991).

In Ellis, the trial judge found as a fact that there was evidence in the record from which the jury could infer that applicant was suffering from withdrawal from drugs after his arrest and incarceration in the county jail about one to two weeks after the killing. However, there was no evidence in the record that applicant was intoxicated at the time of the offense. We concluded that the evidence showed that the defendant had a drug problem but that it did not “rise to the level of Penry evidence.” Ellis, 810 S.W.2d at 211-12.

Similarly, we find that evidence of applicant’s alcoholism does not rise to the level of Penry evidence. Applicant merely established that he was an alcoholic; he did not show how that fact affected his behavior at the time of this offense. Therefore, no additional instruction was necessary for the jury to consider and give effect to this evidence.

Accordingly, the relief sought is denied.³

1 . Applicant raises this claim for the first time in the instant application. This Court recently held that this issue may be raised for the first time via a writ of habeas corpus. Ex parte Goodman, 816 S.W.2d 383, 385 (Tex.Cr.App.1991). We will address the merits of applicant’s contentions.

2 . The legislature recently amended the statute, effective September 1, 1991, to reflect the Supreme Court’s holding in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).

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