Robertson v. Cockrell

325 F.3d 243, 2003 WL 1204119
CourtCourt of Appeals for the Fifth Circuit
DecidedMarch 14, 2003
DocketNo. 00-10512
StatusPublished
Cited by67 cases

This text of 325 F.3d 243 (Robertson v. Cockrell) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Robertson v. Cockrell, 325 F.3d 243, 2003 WL 1204119 (5th Cir. 2003).

Opinions

EDITH H. JONES, Circuit Judge:

In Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (“Penry I ”), the United States Supreme Court held that the first two “special issue” interrogatories in the Texas capital sentencing instruction,1 though facially valid, see Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), failed to satisfy the constitutional requirement that a capital defendant be entitled to present to his jury — and have it give mitigating effect to — proffered evidence of childhood abuse. Twelve years later, following Penny's second trial, conviction, and capital sentence, the Court held that the supplemental instruction given at sentencing failed to cure this defect. Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (“Penry II”).

Before this en banc court, Mark Robertson, a victim of childhood abuse and self-inflicted substance addiction, argues that the same supplemental instruction given to his sentencing jury similarly failed to cure the alleged defects of the Texas special issues. This case constitutes a test, first, of the circumstances under which the Texas special issues might fail to facilitate a sentencing jury’s consideration of mitigating evidence and, second, of the supplemental instruction’s ability to cure such a failure.

Because Robertson’s evidence — in quality and quantity — does not match Peltry's, this court concludes that the statutorily prescribed Texas special issues allowed Robertson’s jury to give mitigating effect to his proffered evidence; they do not, therefore, stand in need of cure. Moreover, absent a presentation of sufficient Pewn/-quality mitigating evidence, the trial court’s recitation of this supplemental instruction cannot constitute error.

I. BACKGROUND

On the evening of August 19, 1989, Robertson shot 19-year-old Sean Hill, his friend and drug supplier, in the back of the head with a .38 caliber firearm. At the time of the murder, Hill was fishing behind his grandmother’s house in Dallas, Texas. Leaving his dead friend’s body in the pond, Robertson entered the house and killed Edna Brau, Hill’s grandmother, also with a single shot, as she lay on her couch watching television. Robertson stole Hill’s drugs and Brau’s purse, car and papers, and other personal belongings. Several days later he fled to Las Vegas, Nevada, where he was apprehended by local police.

[245]*245Robertson was tried for these two murders and his previous killing of a 19-year-old convenience store clerk during a robbery. For the murders of the clerk and Hill, Robertson received concurrent life sentences. For killing Brau, Robertson was found guilty of capital murder. Acts 1973, 63rd Leg., R.S., ch. 426, art. 2, § 1, Tex. Gen. Laws 1123, amended by Acts 1993, 73rd Leg., R.S., ch. 900, § 1.01 (currently Tex. Penal Code § 19.03(a)(2)). Under 1989 Texas law, to impose a capital sentence the jury had to answer two questions in the affirmative. First: Was the killing deliberate? Second: Does the defendant pose a danger to others? A negative answer for either special issue would result in a life sentence.2 The court also gave the jury a supplemental instruction in which it was told that Robertson could avoid a capital sentence — even if the answers to both questions were affirmative-should the jury find sufficient mitigating factors. To give effect to such a determination, the trial court instructed the jury to change its answer to either of the special issues from “Yes” to “No.”3

At sentencing the state presented evidence, inter alia, relating to Robertson’s past criminal behavior, which included serious vandalism at about age 12, taking a loaded handgun to school at 13, car theft and destruction of property at 14, marijuana possession at 15 and 18 (the second resulting in conviction), an aggravated robbery conviction (using a baseball bat and knife) at 18, and passing bad checks at 19. He had also violated the terms of probation by failing to report, attend drug counseling, and perform community service. The state also presented extensive evidence relating to Robertson’s murder of the convenience store clerk and of his bad prison behavior since incarceration, including jail-cell arson and an escape attempt.

Robertson presented testimony at the punishment stage from his two sisters, [246]*246mother, stepfather, uncle, aunt, cousin, former girlfriend, and friends of the family.

Robertson’s biological father was an alcoholic who would often come home drunk and make the children stay awake at the foot of his bed until he went to sleep; otherwise they would receive a beating. Because Robertson was a baby when most of the abuse occurred, he was spared, but as he grew, he received more abuse. He witnessed both physical and verbal abuse of his mother and siblings. Sometimes the father would beat the other children with a board.

When Robertson was eight or nine years old, his mother left his father, but she reclaimed the children six months later, and his father subsequently disappeared. Robertson adapted to his new home better than did his older siblings and began calling his mother’s husband “father.” His mother and stepfather provided a good home to him and treated him well. Family and friends testified that Robertson was always respectful, polite, and helpful. Robertson also fulfilled his promise to obtain a GED if his parents would allow him to quit school. Robertson was described by his mother as being “very smart.”

Robertson also offered evidence regarding his struggle with drugs. He became addicted at the age of 14 or 15. Upon catching him smoking marijuana, his parents sent him to a drug rehabilitation clinic; they removed him ten days later, after he threatened to run away. He and a companion committed a robbery in November 1987 while high on cocaine. In 1988, when Robertson was on bond for aggravated robbery, he entered another drug treatment facility. Robertson almost completed the program, but left for Florida when his counselor became ill and died. After Robertson was arrested and convicted for violating the terms of his probation, he checked himself into Charter Hospital for treatment and completed the six-week program. He then went to the House of Hope in Sherman, Texas, but stayed only about forty days.

Robertson also presented the testimony of several witnesses who described him as having a good character and a lack of a violent history. Despite having a psychiatrist available and being given an additional four days during the punishment phase to conduct psychological testing, Robertson presented no psychiatric or psychological testimony.

For his murder of Brau, the jury answered both special issues in the affirmative. Accordingly, the court entered a sentence of death in February 1991.

On direct appeal the Texas Court of Criminal Appeals affirmed his capital sentence. Robertson v. State, 871 S.W.2d 701 (Tex.Crim.App.1993). Among other issues, Robertson argued that the trial court erred by submitting the above-described supplemental instruction in lieu of a proposed third special issue regarding mitigating evidence. The court held that the supplemental instruction fully comported with Penry I,

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Bluebook (online)
325 F.3d 243, 2003 WL 1204119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robertson-v-cockrell-ca5-2003.