Richardson v. State , 1994 Tex. Crim. App. LEXIS 66 ( 1994 )

OPINION ON SECOND REMAND FROM THE UNITED STATES SUPREME COURT

McCORMICK, Presiding Judge.

This case is here on second remand from the United States Supreme Court for us again to consider appellant’s Penry¹ claim in light of Johnson v. Texas, 509 U.S. -, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993). We affirmed appellant’s conviction on the first remand and held the trial court did not err in failing to submit appellant’s requested Penry charge at the punishment phase of his trial. Richardson v. State, 886 S.W.2d 769 (Tex.Cr.App.1991). We again affirm.

In Johnson, the Supreme Court reaffirmed its prior decisions that in the context of a facial challenge, Texas law sufficiently limits the factfinder’s discretion in imposing the death penalty so it is not arbitrarily imposed, while Texas law also provides the factfinder sufficient discretion to give effect to a defendant’s “relevant mitigating evidence” in making an individualized assessment of whether the death penalty is appropriate. See Johnson, 509 U.S. at -, -, 113 S.Ct. at 2666-68, 2672. The Supreme Court also reaffirmed prior decisional law that the States may constitutionally channel the fact-finder’s consideration of “relevant mitigating evidence” as long as the States do not place this evidence completely beyond the factfin-der’s effective reach. Johnson, 509 U.S. at -, -, 113 S.Ct. at 2669, 2672.

Johnson held the relevant mitigating evidence of Johnson’s youth was not placed beyond the factfinder’s effective reach in answering special issue two; therefore, Johnson was not entitled to a Penry charge. Johnson, 509 U.S. -, -, 113 S.Ct. at 2669, 2672. Johnson distinguished Penry because Penny’s relevant mitigating evidence of his severe mental retardation and childhood abuse, which rendered Penry unable to learn from his mistakes, could not have been given any mitigating effect under special issue one, and could only have been given “aggravating” effect under special issue two; therefore, the special issues placed Penny’s “relevant mitigating evidence” completely beyond the factfinder’s effective reach. See Johnson, 509 U.S. at -, 113 S.Ct. at 2667-69; Penry, 492 U.S. at 322-24, 109 S.Ct. at 2948-49. Penry says a defendant presents “relevant mitigating evidence” when he presents evidence that his criminal acts “are attributable to a disadvantaged background, or to emotional and mental problems.”

“If the senteneer is to make an individualized assessment of the appropriateness of the death penalty, ‘evidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.’ ” Penry, 492 U.S. at 319, 109 S.Ct. at 2947.

Here, in support of his claim that he was entitled to a Penry charge, appellant relies on evidence of his “voluntary service and kindness to others,” “artistic and poetic talent,” and “religious devotion.” Richardson, 886 S.W.2d at 772-776. The jury could have used this evidence to answer “no” to special issue two. Therefore, the special issues did not place this evidence beyond the effective reach of the factfinder. See Johnson, 509 U.S. at -, 113 S.Ct. at 2669.

Appellant also claims he presented evidence of “childhood abuse and mental and emotional impairment,” which made him, like Penry, “unable to learn from his mistakes.” Compare Johnson, 509 U.S. at -, 113 S.Ct. at 2667. We disagree, and after having once again reviewed the relevant portions of the record, we conclude most of the evidence appellant presented “is really nothing more than evidence of a strictly rule-governed upbringing.” ² See Richardson, 886 S.W.2d at 777 (Benavides, J., concurring). This evidence and the other evidence upon which appellant relies is not “relevant mitigating evidence” under Penry because appellant has made no showing that his commission of this crime and other crimes was in any way attributable to these factors. See Penry, 492 U.S. at 319, 109 S.Ct. at 2947. We also are unaware of any long-held societal belief that one who commits criminal acts that are attributable to these factors “may be less culpable than defendants who have no such excuse.” See id. Therefore, appellant was not entitled to a Penry charge.

The trial court’s judgment is affirmed.

MALONEY, J., concurs in the result. WHITE, J., not participating.

1 . 492 U.S. 302, 109 S.Ct 2934, 106 L.Ed.2d 256 (1989).

2 . Appellant also relies on evidence which he claims shows his unwillingness to be touched, his need to indulge in constant self-aggrandizement, his dressing in women's clothing, his reading problems, his problems in high school with racial integration of the public schools, his father's strict discipline in the home, and his leaving home and dropping out of school at an early age because of a bad relationship with his father. The evidence of appellant dressing in women's clothes came from witnesses who said he did this to facilitate the commission of his crimes.