Stephen Ray Nethery v. James A. Collins, Director, Texas Department of Criminal Justice, Institutional Division , 993 F.2d 1154 ( 1993 )

KING, Circuit Judge,

dissenting:

I respectfully dissent from the panel majority’s affirmance of the district court’s denial of the writ of habeas corpus in Nethery’s case. My disagreement with the majority is limited to its disposition of Nethery’s Eighth Amendment claim regarding his mitigating evidence of voluntary intoxication at the time of the crime.

I.

I initially note that I believe that the Supreme Court’s decision in Graham v. Collins, - U.S. -, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993), aff'g on other grounds, 950 F.2d 1009, 1027 (5th Cir.1992) (en bane), would appear to require that the majority should, as a threshold matter, address whether Nethery’s Penny claim³⁴ is barred under the nonre-troactivity doctrine first announced in Teag-ue v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion). See Graham, — U.S. at -, 113 S.Ct. at 897 (“Because this case is before us on Graham’s petition for a writ of federal habeas corpus, “we must determine, as a threshold matter, whether granting [the habeas petitioner] the relief he seeks would create a “new rule” ’ of constitutional law.”) (citation omitted).³⁵ The majority, however, cites a prior panel decision of this circuit — that was rendered after the Supreme Court’s decision in Graham— which reached the merits of a Penry claim based on mitigating evidence of intoxication without mentioning Teague. In effect, that panel held that the Teague doctrine does not bar the court from reaching the merits in such a case. See James v. Collins, 987 F.2d 1116, 1121 (5th Cir.1993).³⁶ Although I believe that the panel decision in James mistakenly ignored the Supreme Court’s decision in Graham regarding the effect of Teague on Penry-type claims, I agree with the majority that we appear to be bound by James. See Burlington N.R. Co. v. Brotherhood of Maintenance Way Employees, 961 F.2d 86, 89 (5th Cir.1992) (prior panel decision binds subsequent panel unless intervening en banc or Supreme Court decision).

II.

Nevertheless, even if this court were to apply Teague to Nethery’s case on a clean slate, I believe that Nethery’s Eighth Amendment rights were violated under Supreme Court authority firmly in existence well before his conviction became final in 1986. See Nethery v. State, 692 S.W.2d 686 (Tex.Crim.App.1985), cert. denied, 474 U.S. 1110, 106 S.Ct. 897, 88 L.Ed.2d 931 (1986). As I will explain below, I believe eases such as Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) (joint opinion of Stewart, Powell & Stevens, JJ.), Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality), and Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), dictate the result in this case.

A. The instructions given to Nethery’s sentencing jury

In contending that his Eighth Amendment rights were violated, Nethery argues that the evidence of his intoxication at the time of the crime could not be given adequate mitigating effect under the three Texas “special issues” submitted to his capital sentencing jury.³⁷ The majority holds that a jury could adequately give mitigating effect to evidence of intoxication if the jury was submitted these three special issues. I do not quarrel with the abstract holding that, in answering the “deliberateness” query, a rational jury could adequately give mitigating effect to evidence of intoxication at the time of the crime.

My dissent is not based on the operation of the statutory special issues in isolation in Nethery’s case; instead, it is based on another instruction that the trial court submitted along with the special issues that, in effect, took all three of the special issues out of operation with respect to Nethery’s mitigating evidence of intoxication. Pursuant to a Texas statute³⁸ applicable to all criminal cases — capital and non-capital- — the trial judge instructed Nethery’s jury that:

Evidence of temporary insanity caused by intoxication may be introduced by the actor in mitigation of penalty attached to the offense for which he is being tried. “Intoxication” means disturbance of mental and physical capacity resulting from the introduction of any substance into the body.

Nethery v. State, 692 S.W.2d 686, 711 (Tex.Crim.App.1985) (quoting from Nethery’s jury instruction) (emphasis added).

A reasonable juror³⁹ could read that instruction as providing that Nethery’s evidence of intoxication could not be considered at all — including under the special issues— unless Nethery was so intoxicated that he was rendered temporarily insane. Indeed, this is precisely how the Texas Court of Criminal Appeals interprets § 8.04. See Tucker v. State, 771 S.W.2d 523, 534 (Tex.Crim.App.1988) (“[T]he [§ 8.04] instruction required the jury to find that [the defendant’s] intoxication at the time of the killings rendered her temporarily insane before they could consider her drug use in mitigation of punishment. The charge on its face instructed the jury to consider the mitigating evidence only in this light, thereby implying that it may not be considered for any other purpose.”) (emphasis added); see also Volanty v. Lynaugh, 874 F.2d 243, 244 (5th Cir.1989). Of course, while intoxication that is so severe that it rises to the level of temporary insanity is quintessential mitigating evidence, so is intoxication that is not so severe as to be tantamount to a state of insanity.⁴⁰ See Bell v. Ohio, 438 U.S. 637, 640, 98 S.Ct. 2977, 2979, 57 L.Ed.2d 1010 (1978) (companion case to Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978)); see also Elliott v. State, 1993 WL 109394 *12 (Tex.Crim.App., 1993) (Clinton, J., dissenting); Ex Parte Rogers, 819 S.W.2d 533, 537 (Tex.Crim.App.1991) (Clinton, J., dissenting, joined by Baird & Maloney, JJ.).⁴¹

Even as early as Jurek, in 1976, total preclusion of a capital sentencing jury’s ability to consider any species of constitutionally relevant mitigating evidence was held to be an Eighth Amendment violation. See Jurek v. Texas, 428 U.S. at 272, 96 S.Ct. at 2956 (“[T]he constitutionality of the Texas procedures turns on whether the [special issues] allow consideration of particularized mitigating factors.”); see also Lockett v. Ohio, 438 U.S. at 604, 98 S.Ct. at 2964; Eddings v. Oklahoma, 455 U.S. at 110, 102 S.Ct. at 874. Because Nethery’s jury was entirely precluded from considering the evidence of his non-insane state of intoxication, I believe that the § 8.04 instruction given by the trial judge in Nethery’s case was a straight-forward violation of this well-established Eighth Amendment principle.

B. Is this claim properly before this court?

Nethery has not specifically argued that the § 8.04 instruction was the source of the Eighth Amendment violation that he claims occurred at his trial. Rather, he has simply argued that mitigating evidence of his intoxication at the time of the crime could not be given proper mitigating effect under the statutory special issues submitted to his jury. The majority believes that the issue of the constitutionality of the operation of § 8.04 in Nethery’s case is not properly before this court. I respectfully disagree.

I believe that we must necessarily address this specific question as a collateral issue to the larger Eighth Amendment claim raised. See Ex parte Rogers, 819 S.W.2d at 537 (Clinton, J., dissenting, joined by Baird & Maloney, JJ.). As the Supreme Court held in Graham, eases such as Lockett and Ed-dings require that a capital defendant’s sentence be upheld so long as all relevant mitigating evidence was placed within “the effective reach of the senteneer.” Graham, — U.S. at -, 113 S.Ct. at 902. In order for the majority to hold that Nethery’s evidence of intoxication was properly considered as mitigating evidence under the instructions given to his capital sentencing jury, it thus must agree that Nethery’s evidence of intoxication was not beyond the effective reach of his jury under the special issues. In view of the § 8.04 instruction given by Nethery’s trial judge in addition to the statutory special issues, I cannot agree with that conclusion.⁴²

Furthermore, I believe that we may not avoid addressing the effect of the § 8.04 instruction because, in considering a challenge to jury instructions, a court must review the entire charge in order to determine the effect of the alleged defect. See California v. Brown, 479 U.S. at 543, 107 S.Ct. at 840 (in a capital case, the Court stated that “reading the charge as a whole, as we must ... ”); see also United States v. Shaw, 894 F.2d 689, 693 (5th Cir.1990); United States v. Washington, 819 F.2d 221, 226 (9th Cir.1987) (asking “whether as a whole [the jury instructions] were misleading or inadequate”). Reviewing the entire sentencing charge in Nethery’s case in order to determine whether Nethery’s evidence of intoxication was in “the effective reach” of his jury, Graham, — U.S. at -, 113 S.Ct. at 902, I do not believe that we simply may ignore the § 8.04 component of the capital sentencing charge, notwithstanding Nethery’s failure precisely to raise that particular issue. For these reasons, I respectfully dissent.

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

35 . Even if Graham does not require us to raise the issue sua sponte, see Williams v. Collins, 989 F.2d 841, 844 n. 9 (5th Cir.1993), I observe that the State in this case expressly invoked Teague with respect to Nethery’s Penry claim, which would appear to require the majority to address the Teague issue. Cf. Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990).

36 . In rejecting the habeas petitioner's Peray-type claim based on mitigating evidence of intoxication, James relied on authority from this circuit that antedated the Supreme Court’s decision in Graham. See James, 987 F.2d at 1121 (citing Cordova v. Collins, 953 F.2d 167, 170 (5th Cir.1992)). I believe Cordova’s implicit holding that Teague is not a threshold issue to a Penry-type challenge is no longer good law in view of the Supreme Court’s decision in Graham.

37 . At the time of his trial, Article 37.071 of the Texas Code of Criminal Procedure provided that the following three special issues must be submitted to the jury at sentencing:

(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 reasonable probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society;

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

Tex.Code Crim.Pro. Art. 37.071(b) (Vernon’s 1981). Nethery’s jury was given three special issues based in substance on these three statutory special issues.

38 . See TexPen.Code § 8.04. That provision provides in pertinent part:

§ 8.04. Intoxication.

(a) Voluntary intoxication does not constitute a defense to the commission of a crime.

(b) Evidence of temporary insanity caused by intoxication may be introduced by the actor in mitigation of the penalty attached to the offense for which he is being tried....

Because of § 8.04, Texas criminal juries may not consider evidence of a defendant's voluntary intoxication for any reason during the guilt/innocence phase; a jury may only consider such evidence during the sentencing phase, and then only if the defendant's intoxication rose to the level of temporary insanity. See Tucker v. State, 771 S.W.2d 523, 534 (Tex.Crim.App.1988).

39 . The Supreme Court has held that, in analyzing capital sentencing issues in the context of jury instructions, courts must ask how a reasonable juror could have interpreted the submitted instructions. See California v. Brown, 479 U.S. 538, 541, 107 S.Ct. 837, 839, 93 L.Ed.2d 934 (1987) (" 'The question is ... what a reasonable juror could have understood the charge as meaning.’ ") (citation omitted).

40 . Nethery’s evidence of alcohol and drug use was substantial enough to permit a reasonable juror to find that he was intoxicated. While the Texas Court of Criminal Appeals on direct appeal specifically found that Nethery's evidence of intoxication did not rise to the level of insanity, see Nethery v. State, 692 S.W.2d 686, 711-12 (Tex.Crim.App.1985), the court did not find that Neth-ery was not intoxicated. I'd. at 712. A witness testified at trial that Nethery drank a substantial amount of hard liquor and smoked marijuana around the time of the crime. Nethery himself stated that "he remembered drinking beer, whis-ky, and vodka, and he remembered smoking some marijuana.” Id. at 711. Nethery's bizarre conduct — stepping outside of his car totally nude and shooting the police officer for no reason, see id. at 697 — also supports a finding of intoxication. Nethery met the evidentiary threshold for Eighth Amendment purposes. See Sawyers v. Collins, 986 F.2d 1493 (5th Cir.1993) (merits of Penry-type claim not reached because defendant’s evidence of intoxication insubstantial). The question of Nethery's intoxication was one within the province of the jury.

41 .In Tucker v. State, supra, the Court of Criminal Appeals observed- — without deciding the constitutionality of a § 8.04 instruction submitted in conjunction with the special issues — that such a jury charge entirely precluded jury consideration of a non-insane state of intoxication as mitigating evidence. See Tucker, 771 S.W.2d at 534. In a Texas case following Tucker, in which a Penry - type challenge was made to capital sentencing instructions that included both the § 8.04 charge and the three statutory special issues, the Court of Criminal Appeals summarily rejected the defendant’s claim without any discussion or citation of Tucker. See Ex Parte Rogers, 819 S.W.2d 533, 534 (Tex.Crim.App.1991). However, three dissenting judges argued that "this instruction does not even purport to empower the jury to give mitigating effect to evidence of voluntary intoxication that does not rise to the level of temporary insanity. A juror who believed a capital [defendant] was not so intoxicated as to be incapable of appreciating the wrongfulness of his action [i.e., being temporarily insane] might nevertheless find him less morally culpable than would have been a sober man committing the same crime." Id. at 537 (Clinton, J., dissenting, joined by Baird & Maloney, JJ.).

42 . Although this precise claim was not made by Nethery during habeas review in state court, Nethery did argue that the trial court's instructions were unconstitutional because "the jury was not instructed to consider the mitigating evidence [of Nethery's intoxication] in answering the special issues.” State Habeas Op. at p. 6. The state habeas courts held that such a claim was procedurally defaulted because no such instruction was sought by Nethery at trial. Since the time of Nethery’s denial of state habeas relief, however, a unanimous Texas Court of Criminal Appeals has explicitly waived procedural defaults in Eighth Amendment challenges to the Texas capital sentencing procedures in effect at the time of Nethery's trial. See Black v. State, 816 S.W.2d 350 (Tex.Crim.App.1991); Selvage v. Collins, 816 S.W.2d 390 (Tex.Crim.App.1991).