Boggess v. State

855 S.W.2d 645, 1991 Tex. Crim. App. LEXIS 109, 1991 WL 87597

• Court: Court of Criminal Appeals of Texas
• Decided: May 29, 1991
• Docket: 69990
• Status: Published

Opinions

OPINION ON REMAND FROM UNITED STATES SUPREME COURT

OVERSTREET, Judge.

After trial by jury, appellant was convicted of capital murder and sentenced to death on October 21, 1987. That conviction and sentence was affirmed by this Court on February 1, 1989. Appellant’s motion for rehearing was denied on March 8, 1989. A petition for writ of certiorari was filed in the United States Supreme Court on May 15, 1989 and on July 3, 1989 relief was granted with the judgment vacated and the case remanded to this Court 492 U.S. 915, 109 S.Ct. 3237, 106 L.Ed.2d 585 for further consideration in light of Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). Pursuant to the United States Supreme Court’s directions, we„ shall forthwith discuss issues solely relating to Pen-ry.1 In particular, appellant’s claim is that the Texas capital sentencing procedure im-permissibly limited his jury’s discretion, effectively precluding consideration and application of mitigating evidence and the mitigating effect of such evidence.

The Texas capital sentencing procedure was upheld as constitutional in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). Simply put, the Texas scheme of special issues adequately allows the jury to consider the mitigating aspects of the crime and the unique characteristics of the perpetrator, and therefore sufficiently provides for jury discretion. Franklin v. Lynaugh, 487 U.S. 164, 182, 108 S.Ct. 2320, 2332, 101 L.Ed.2d 155, 171 (1988). Penry simply held that in that particular defendant’s case, the absence of some instruction informing the jury that it could, consider and give effect to the mitigating evidence of his abused background and mental retardation, by declining to impose the death penalty made that particular sentencing process violative of the Eighth and Fourteenth Amendments of the United States Constitution. Penry, 492 U.S. at 328-30, 109 S.Ct. at 2952, 106 L.Ed.2d at 284. It most certainly did not hold that the Texas capital punishment scheme is unconstitutional. So it would seem that to determine whether appellant’s sentencing procedure did indeed impermissibly limit the jury’s discretion as he alleges, we must ascertain what mitigating evidence appellant presented, or was improperly not allowed to present, if and how the jury was instructed regarding that evidence, and whether the jury was thus able to consider that evidence and express its reasoned moral response thereto in answering the special issues submitted in rendering its sentencing decision.

The record reflects that appellant was not denied the opportunity to present any evidence in mitigation.² The evidence that he did present consisted of testimony and exhibits regarding health problems which he had had as a young child (which apparently left him bow-legged and requiring corrective optical lenses, i.e. eyeglasses, for proper vision), his academic success through high school graduation, musical and artistic prowess (including performing piano recitals, playing at weddings, and writing poetry), religious activities from a very young age through high school, employment at various stages in his life, and educational, religious and work activities during prison incarceration. The jury charge also included the instruction:

“You may also consider all facts and circumstances admitted into evidence before you in extenuation and mitigation of the conduct and/or probable future conduct of the defendant.”

The above quoted instruction clearly directed the jury’s attention to Special Issue Number Two which stated:

“Do you find from the evidence, beyond a reasonable doubt, that there is a probability that the defendant, Clifford Holt Boggess, would commit criminal acts of violence that would constitute a continuing threat to society?”

What appellant was constitutionally guaranteed was an individualized assessment of the appropriateness of the death penalty, with the opportunity to present all evidence which might provide a basis for mitigation, 1.e. a sentence less than death, and that the jury be provided a vehicle for considering such evidence and responding thereto in its verdict. We hold that such was provided to appellant.

The above described evidence presented appellant in a light more favorable than did the facts of the capital murder offense that he had just been found guilty of committing. As such, it may have indicated to the jury that he was less deserving of a sentence of death. That mitigating evidence was relevant to the above described Special Issue Number Two in that it presented appellant in a non-violent posture that may have indicated to the jury that the special issue must be answered in the negative.³ The above described jury instruction properly directed the jury’s attention to all of the evidence (including that mitigating in favor of a sentence less than death).⁴ The above described Special Issue Number Two provided an adequate vehicle for the jury to consider and respond to the particular mitigating evidence presented.

This case is not identical to Penry, or Franklin, or any other capital case because each and every capital case involves its own singular set of facts, mitigating and otherwise, and each case’s jury must make its own particularized reasoned moral response to that particular case’s assortment of evidence. What is required is that sentencers be allowed to consider and give effect to mitigating evidence in imposing the sentence so that an individualized determination of whether death is the appropriate punishment in each particular case can be made; i.e. that there be an individualized assessment of the appropriateness of the death penalty. While both Penry and Franklin were tried with the same special issues submitted to the jury as was appellant, and both presented mitigating evidence (though the quantity differed somewhat), the facts and evidence in Franklin were such as to sufficiently allow the jury to consider the mitigating aspects of the crime and the unique characteristics of the perpetrator in making its sentencing decision, but the facts and evidence in Penry were such that the same sentencing scheme was not sufficient. We hold that this same sentencing scheme, which included a jury instruction that it could take into consideration all of the facts and circumstances admitted into evidence, did adequately allow the jury to consider all of appellant’s mitigating evidence and make and express its own particularized reasoned moral response thereto.

We therefore affirm the judgment and sentence of the trial court.

CAMPBELL and BENAVIDES, JJ., concur in result.

1 . As Appellant's initial brief raised only one point of error dealing with this issue, specifically Point of Error No. 3, our discussion and holdings regarding the other points shall remain undisturbed.

2 . In fact the record indicates that not a single objection was made regarding any of Appellant’s proffered evidence during the sentencing stage of the trial.

3 . We note that Appellant's mitigating evidence seems to be one-edged rather than the two-edged evidence mentioned in Penry, in that Appellant’s evidence would seem to solely have the effect of possibly diminishing his blameworthiness rather than indicating that there is a probability that he will be dangerous in the future.

4 .Said instruction may, or may not, be the perfect method for directing a jury to properly focus upon mitigating evidence. We merely hold that based upon the unique set of facts in this case, said instruction sufficiently performed that function.