Ex Parte Goodman

816 S.W.2d 383, 1991 WL 87599

• Court: Court of Criminal Appeals of Texas
• Decided: July 3, 1991
• Docket: 70887
• Status: Published

Opinions

OPINION

MILLER, Judge.

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

Applicant was convicted of capital murder on September 30, 1981, and sentenced to death by the trial judge. Art. 37.071(e), V.A.C.C.P. This Court affirmed applicant’s conviction and sentence on direct appeal. Goodman v. State, 701 S.W.2d 850 (Tex.Cr.App.1985). Applicant did not petition the United States Supreme Court for a writ of certiorari.

In his application before us, applicant contends he “was prevented from presenting, and from having the jury consider, evidence mitigating his blameworthiness and otherwise militating against appropriateness of a death penalty, and was denied the exercise of informed sentencing discretion, compassion and mercy, in violation of the Eighth and Fourteenth Amendments to the United States Constitution.”¹ Applicant argues in his application that our capital sentencing statute does not allow mitigating weight to be given to evidence of a violent family background, poverty, or circumstances beyond a defendant’s control which have made him “less able to control his actions.” Applicant recognizes that evidence with “clear mitigating potential” may also support the jury’s affirmative answers to the special issues, mandating the death penalty. The State counters that this issue has been decided adversely to applicant by both this Court and the United States Supreme Court.² The trial judge’s conclusions of law basically quoted the State’s assertions and recommended that relief be denied.

We find applicant has essentially raised a claim under Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), although his trial, direct appeal, and filing of this writ application all preceded the Supreme Court’s decision in Penry. In that case, Penry argued he was sentenced to death in violation of the Eighth Amendment because his jury was not provided with a vehicle to give effect to his mitigating evidence in imposing its sentence. At his trial, Penry presented evidence that he suffered organic brain damage possibly caused at birth or by beatings and multiple injuries, that he was mentally retarded, and that he had been abused as a child. Pen-ry’s defense counsel lodged numerous objections to the jury charge at punishment, which were overruled. Before the Supreme Court, Penry argued that his mitigating evidence of mental retardation and child abuse had relevance to his moral culpability beyond the scope of the special issues under Art. 37.071(b), and that the jury was unable to express its “reasoned moral response” to that evidence in determining whether death was the appropriate punishment. 109 S.Ct. at 2948.

The Supreme Court agreed with Penry and stated that a special instruction with regard to the mitigating evidence was necessary. As to the first special issue, the Court opined that without this instruction “a juror who believed that Penry’s retardation and background diminished his moral culpability and made imposition of the death penalty unwarranted would be unable to give effect to that conclusion if the juror also believed that Penry committed the crime ‘deliberately.’ ” Id. at 2949. The Court recognized the double-edged sword characteristic of Penry’s mitigating evidence under the second special issue. That is, the very evidence which may diminish his blameworthiness also indicated there was a probability that he would be a continuing threat to society. Thus, the second special issue did not provide a vehicle for the jury to give mitigating effect to Pen-ry’s “mitigating” evidence. Id. Likewise, the Court found the third special issue addressing provocation, which was given in Penry’s jury charge, failed to allow a juror who believed Penry lacked the moral culpability to be sentenced to death to express that view in this issue if the juror concluded Penry’s action was not a reasonable response to the provocation. Id. at 2950. Thus, as applied to Penry, Art. 37.071 was unconstitutional.

Before we address the merits of the Penry claim presented in this writ application, we must first decide whether this issue is cognizable via a writ of habeas corpus where it is presented for the first time.³ It is well-settled by this Court that the writ of habeas corpus should not be used to litigate matters which should have been raised on direct appeal. Ex parte Banks, 769 S.W.2d 539, 540 (Tex.Cr.App.1989). Traditionally, the writ is available only to review jurisdictional defects or denials of fundamental constitutional rights. Ex parte Banks, at 540, and cases cited therein. The allegation raised by applicant implicates applicant’s rights under the Eighth and Fourteenth Amendments to be free from cruel and unusual punishment. See Penry, 109 S.Ct. 2934 (issue cognizable via federal writ of habeas corpus). This cause is remarkably similar to the Penry case. See Penry, 109 S.Ct. at 2941. Applicant’s trial attorney timely requested an additional jury instruction regarding the mitigating evidence which was denied by the trial judge.⁴ We hold the allegation is cognizable via a habeas corpus application despite applicant’s failure to raise the complaint on direct appeal.

As to the merits in the writ application, applicant’s attorney cites to numerous places in the trial record where mitigating evidence was introduced.⁵ Prior to trial, applicant, like Penry, had a competency hearing and evidence of his mental retardation was presented. Testimony at the punishment stage revealed applicant was mildly to moderately mentally retarded with an IQ of 56 and had the intellectual level of an eight or nine year old child. There was also testimony that applicant attended school only to the sixth grade and that he possibly suffered from brain damage.⁶

Applicant asserts in his writ application that the jury instructions at punishment “did not inform the jury that it could consider defense evidence mitigating even if it was not directly related to deliberateness or future dangerousness or if it actually supported deliberateness or future dangerousness.” We are compelled to agree with applicant that his jury was precluded from giving mitigating effect to his punishment evidence. We find that “his mitigating evidence ... has relevance beyond the scope of the [two] special issues, and that the jury was unable to express its ‘reasoned moral response’ to that evidence in determining whether the death penalty was the appropriate punishment.” Penry, 109 5.Ct. at 2948.

Applicant’s evidence that he was mildly or moderately mentally retarded was relevant to both of the special issues submitted at punishment. As to issue number one, it bore on the question of whether applicant, in killing the victim, acted deliberately and with a reasonable expectation of the victim’s death. Beyond this, however, issue one does not allow a juror to express his belief that because of applicant’s mental retardation his moral culpability is diminished. Penry, at 2949; Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 2332, 101 L.Ed.2d 155 (1988) (plurality opinion). Moreover, Goodman’s mental retardation is that type of evidence which presents the proverbial double-edged sword on the second punishment issue. While applicant’s mental retardation tends to ameliorate his blameworthiness for the crime, it simultaneously indicates he is likely to be a continuing threat to society. Penry, 109 S.Ct. at 2949. Without a special instruction regarding this evidence, we cannot be sure the jury was able to give it any mitigating weight and express its “reasoned moral response” in answering the punishment issues. Thus, we must conclude the sentencing procedure employed in applicant’s trial was violative of the Eighth and Fourteenth Amendments. Cf. Gribble v. State, 808 S.W.2d 65 (Tex.Cr.App.1990) (instruction required so that jury could consider and give effect to mitigating evidence of troubled childhood, abnormal mental and emotional condition, and sexual aberrations).

The relief sought is granted. The judgment of the trial court is vacated, and applicant is remanded to the custody of the Sheriff of Harris County to answer the indictment.

BAIRD, OVERSTREET and MALONEY, JJ., do not agree with the dicta contained in footnote 6.

1 . Applicant also raises eleven other allegations in his application, but we only granted review on this one contention.

2 . Both courts have held Article 37.071 is constitutional as it allows the presentation to and consideration by the jury of all relevant mitigating evidence and provides sufficient jury discretion. Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); and Penry v. State, 691 S.W.2d 636 (Tex.Cr.App.1985), cert. denied 474 U.S. 1073, 106 S.Ct. 834, 88 L.Ed.2d 805 (1986). This Court has also held that an additional jury instruction on mitigating evidence is not required under our sentencing scheme. Cordova v. State, 733 S.W.2d 175, 190 (Tex.Cr.App.1987).

3 . Although applicant did not directly raise this issue on appeal, he argued his mitigating evidence of mental retardation rendered insufficient the evidence on special issues one and two. The Court overruled these contentions. Goodman, 701 S.W.2d at 866-867.

4 . Specifically, applicant’s trial attorney requested the trial judge to instruct the jury that “You are further instructed that you may consider in deliberating on the special issues submitted evidence of mitigating circumstances, if any.”

In Penry's trial, he objected to the failure of the court’s charge to instruct the jury that "you may take into consideration all of the evidence, whether aggravating or mitigating in nature, if any, submitted to you in the full trial of the case, that is all of the evidence submitted to you in the trial of the first part of this case wherein you were called up to determine the guilt or innocence of the Defendant and all of the evidence, whether mitigating or aggravating in nature, if any, as permitted for you in the second part of the trial wherein you are called upon to determine the special issues hereby submitted to you.”

The Supreme Court did not address whether preserving error at trial was necessary for cog-nizability but reached the merits of Penry’s claim based on his objection. Given the similarities in the objections, we therefore find applicant's objection sufficient to preserve error in this case. Facially, however, the objection does not appear to add much to the jury charge, and we note that such an instruction may not be sufficient to provide the jury with a vehicle to express its reasoned moral response to the mitigating evidence.

Furthermore, regardless of the adequacy of this instruction, applicant’s claim would not be procedurally barred. See Black v. State, 816 S.W.2d 350 (Tex.Cr.App. decided this day) (Campbell, J., concurring to Part II. B.).

5 . Applicant's attorney also filed with this Court a presubmission memorandum addressing this Penry claim. This memorandum was submitted to the Court after the Supreme Court delivered its decision in Penry. By citing directly to the trial record, applicant's attorney notes the similarity between the mitigating evidence in this case and in Penry.

6 . Through an affidavit attached to this writ application, one of applicant’s trial attorneys listed other mitigating evidence as to applicant’s background and mental development of which he and co-counsel were aware but strategically chose not to present at punishment given the logistics of Art. 37.071(b). Trial counsel notes in his affidavit that presentation of this evidence would only have hurt applicant since the jury had no means to consider, under Art. 37.071, whether this evidence was substantial enough as a mitigating circumstance to call for a life sentence in the face of affirmative findings on the special issues. Trial counsel argues further in the affidavit that the jury was precluded from finding that such evidence negated the deliberateness of the crime. Art. 37.071(b)(1). Affidavits from family members and friends were also attached to the writ application.

We refuse to consider in this writ this evidence provided to the Court by way of affidavit as it could have been introduced at the punishment phase of applicant’s trial. We will not entertain arguments addressing evidence which would have been proffered by defense counsel had the trial judge allowed an additional jury instruction on that evidence. To do so would, in effect, allow applicant to make a "post-conviction bill of exception,’’ a procedure which does not comport with this Court’s contemporaneous objection rule.

As to the admissibility of mitigating evidence, we have always held that such evidence was admissible and, thus, we are disinclined to excuse noncompliance in the area of introducing mitigating evidence. Consequently, absent a contemporaneous offer of proof or bill of exception detailing what mitigating evidence was TACTICALLY withheld by the appellant during trial, we will not be heard to consider the same now.