Richardson v. State

886 S.W.2d 769, 1991 Tex. Crim. App. LEXIS 129, 1991 WL 99949
CourtCourt of Criminal Appeals of Texas
DecidedJune 12, 1991
Docket68934
StatusPublished
Cited by25 cases

This text of 886 S.W.2d 769 (Richardson v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Richardson v. State, 886 S.W.2d 769, 1991 Tex. Crim. App. LEXIS 129, 1991 WL 99949 (Tex. 1991).

Opinions

OPINION ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

MeCORMICK, Presiding Judge.

Appellant, Miguel A. Richardson, was convicted of capital murder and the death penalty was assessed. This Court affirmed the conviction holding in part that appellant’s contention that the trial court erred in refusing his requested charges on mitigation had no merit. Richardson v. State, 744 S.W.2d 65, 85 (Tex.Cr.App.1987).

Appellant challenged our holding in the Supreme Court of the United States. That Court, 492 U.S. 914, 109 S.Ct. 3235, 106 L.Ed.2d 583 summarily granted appellant’s petition for writ of certiorari, vacated the judgment of this Court and remanded the case to us to consider appellant’s allegations in light of Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). We again affirm the conviction.1

In Penry, the United States Supreme Court held that the petitioner’s mental retardation and history of child abuse constituted mitigating evidence that either was not relevant to the Texas special verdict issues or that had relevance to the defendant’s moral culpability beyond the scope of the special verdict questions. Penry, 492 U.S. at 323, 109 S.Ct. at 2949. In the absence of instructions informing the juiy that it could consider and give effect to the mitigating evidence of Penry’s mental retardation and abused background by declining to impose the death penalty, the Supreme Court concluded that the jury did not have a vehicle to express its “reasoned moral response” to its sentencing decision. Penry, 492 U.S. at 326, 109 S.Ct. at 2951. Justice O’Connor writing for the majority emphasized that:

“[I]t is precisely because the punishment should be directly related to the personal culpability of the defendant that the jury must be allowed to consider and give effect to mitigating evidence relevant to a defendant’s character or record or the circumstances of the offense. Rather than creating the risk of an unguided emotional response, full consideration of evidence that mitigates against the death penalty is essential if the jury is to give a ‘reasoned moral response to the defendant’s background, character, and crime.’ ” (emphasis in original) (citations omitted) Penry, 109 S.Ct. at 2951.

Our analysis will also consider Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988) (plurality opinion) and Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). We think it appropriate to give consideration to the time when evidence that has been termed “mitigating” occurred. Justice White, writing for the plurality in Franklin, specifically referred to Skipper when discussing the relevance of a prison disciplinary record. He wrote:

“Indeed, our discussion in Skipper of the relevancy of such disciplinary record evidence in capital sentencing decisions dealt exclusively with the question of how such evidence reflects on a defendant’s likely future behavior.... [S]kipper’s discussion of the proper use of a defendant’s prison [772]*772disciplinary record in a jury’s sentencing decision focused precisely on the way in which such evidence is encompassed by the Texas fixture dangerousness question, and on the Court’s previous decision in Jurek.” Franklin, 487 U.S. at 178, 108 S.Ct. at 2329.

We will now consider whether the appellant is correct in his contention that the evidence he presents is, in fact, Penry evidence and whether a special instruction should have been granted so that the jury could have made a “reasoned moral response” in answering our special issues. The case may be that appellant’s evidence falls under the ambit of Penry, is Franklin evidence, or has no mitigating value at all in the context of his capital murder punishment phase.

Appellant has grouped what he wishes us to consider “mitigating evidence” into five categories for our consideration. The categories are:

(1) Voluntary service and kindness to others;
(2) Religious devotion;
(3) Artistic and poetic talent;
(4) Family ties; and
(5) Childhood abuse; mental and emotional impairment.

We will now examine the evidence under each category in light of Penry and Franklin.

VOLUNTARY SERVICE AND KINDNESS TO OTHERS

Linda Cowart testified that she met the appellant at a Sambo’s restaurant in Denver, Colorado. Cowart characterized their relationship as a “friendship” and that they talked about “people going by, cars going up and down the street.” This relationship continued after appellant was incarcerated in Denver. Cowart also testified that she suffered from diabetes and as a result was losing her eyesight. She commented that appellant expressed concern over her medical condition in letters and conversation. The record is not clear on whether appellant’s concern for Cowart’s vision problems occurred before or after his incarceration. Nevertheless, the character and quality of this testimony is not remotely related to the kind of evidence that prompted a reversal in the Penry case. Appellant has attempted to posture the Cowart testimony as indicative of lifelong qualities that somehow entitle him to a Penry charge. We do not agree and see Cowart’s testimony as nothing more than an appeal for “sympathy or emotion.” See California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 841, 93 L.Ed.2d 934 (1987) (O’Connor, J., concurring). Appellant also fails to point out that Cowart was asked about the disposition of appellant. Cowart testified:

“Q. Have you ever known him to be a violent individual?
“A. No, sir.
“Q. Have you ever observed him to have an uncontrollable temper?
“A. No. Any time I’ve been around him he’s always been kind of a happy go lucky person. I’ve never seen him down. I’ve never seen him even slightly perturbed about anything.”

Considering Cowart’s testimony as a whole and disregarding the patent appeals to sympathy and emotion based on the witness’ alleged disability, we hold that the jury had the opportunity to give effect to Cowart’s testimony through special issue number two regarding future dangerousness. See Franklin, 487 U.S. at 180, 108 S.Ct. at 2330.

Cynthia Lee took the stand and related that she was a resident of Denver, Colorado who had known appellant for four or five years. Lee met appellant in a lounge after bumping into him. Lee testified that she had never dated appellant but they had gone on outings to the mountains. Appellant focuses on the portion of Lee’s testimony that describes appellant’s relationship with Karen Craeken.

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Cite This Page — Counsel Stack

Bluebook (online)
886 S.W.2d 769, 1991 Tex. Crim. App. LEXIS 129, 1991 WL 99949, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richardson-v-state-texcrimapp-1991.