State v. McPherson

851 S.W.2d 846, 1992 Tex. Crim. App. LEXIS 209, 1992 WL 334144

• Court: Court of Criminal Appeals of Texas
• Decided: November 18, 1992
• Docket: 0354-92
• Status: Published

Opinions

OPINION ON STATE’S AND APPEL- • LEE’S PETITIONS FOR DISCRETIONARY REVIEW

BAIRD, Judge.

Appellee was convicted of capital murder pursuant to Tex.Penal Code Ann. § 19.-03(a)(3). The trial judge submitted the three statutory punishment issues pursuant to Tex.Code Crim.Proc.Ann. art. 37.-071(b)¹ and a fourth punishment issue concerning appellee’s mitigating evidence. The jury affirmatively answered the three statutory punishment issues but negatively answered the fourth issue, finding the death penalty was not a reasoned moral response after consideration of appellee’s mitigating evidence.² Appellee was sentenced to death. After consideration of appellee’s motion for new trial, the trial judge reformed the judgment to reflect a sentence of life. The State appealed. The Court of Appeals reversed holding that the submission of the fourth punishment issue was not authorized by art. 37.071(b) and remanded for a new trial. State v. McPherson, 828 S.W.2d 81 (Tex.App.—Amarillo 1992).

We granted the State’s Petition for Discretionary Review to determine whether the Court of Appeals erred in ordering a new trial rather than reinstating appellee’s death sentence.³ Additionally, we granted appellee’s Petition for Discretionary Review to determine whether the Court of Appeals erred in finding the submission of a fourth punishment issue was not constitutionally required under Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), and whether the Court of Appeals erred in failing to address ap-pellee’s claim that double jeopardy barred the State from seeking the death penalty upon retrial.⁴ We will reverse.

I.

In addition to the three punishment issues provided by art. 37.071, the trial judge submitted a fourth issue in the punishment charge as follows:

SPECIAL ISSUE NO. 4

You are instructed that the term “mitigating evidence” is evidence about any aspect of the Defendant’s background, his character, and the crime of which he was convicted that you believe, in fairness or mercy, calls for a sentence less than death. The purpose of this fourth special issue is to provide you the jury, if you deem it necessary, with a means of considering and giving effect to the mitigating evidence, if any, presented in this case. The sole question before you now is whether, considering all of the evidence, mitigating, if any, and otherwise, presented in both phases of this trial by either party, the death penalty is a reasoned moral response to the Defendant’s background, his character, and to the crime of which he was convicted.

Now bearing in mind these instructions and definitions, you will answer the following special issue:

Do you find from the evidence, after considering fully the Defendant’s mitigating evidence, if any, that the death penalty is a reasoned moral response to the Defendant’s background, his character, and to the crime of which he was convicted?

The jury responded:

We, the Jury, or at least ten (10) jurors, find and determine that the answer to this Special Issue is “No.”

/s/ C.L. Boykin

Upon the affirmative findings on the three statutory punishment issues and a negative finding on the fourth punishment issue, the trial judge stated:

Mr. McPherson, the jury has returned its charge, or its verdict to the charge of the offense to which you stand charged by indictment, and that is that you have been found guilty of the offense of capital murder and the Court hereby so finds you guilty of capital murder.

The jury also returned its verdict in this case by which they have answered the first three special issues “no” — I’m sorry, first three special issues “yes.”

And as you know and understand, the laws of the State of Texas mandates that a “yes” answer of those three special issues result in an automatic determination of the sentence of death by lethal injection according to the laws of the State of Texas.

Counsel has persuaded the Court to submit the issue of mitigation evidence. Mitigating evidence is a matter that is a new concept that the law does not provide for, let me say the statute does not provide for.

It is the order of this Court that the sentence to be imposed in this case is to be death by lethal injection.

Appellee filed a “Motion for New Trial, or In The Alternative, Motion to Reform the Judgment” alleging that he was entitled to relief under Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).⁵ The trial judge granted appellee’s motion and reformed the sentence from death to life.

II.

The Court of Appeals relied upon Tex. Code Crim.Proc.Ann. art. 37.07 § 1(a), which provides “the verdict in every criminal action must be general.” The only exception to the general verdict requirement is art. 37.071 which provides for the submission of statutory punishment issues in the trial of a capital offense. Relying upon our opinions in Pritchard v. State, 117 Tex.Crim. 106, 35 S.W.2d 717 (App. 1931); King v. State, 135 Tex.Crim. 71, 117 S.W.2d 800 (App.1938); Garrett v. State, 159 Tex.Crim. 203, 262 S.W.2d 414 (App. 1953); McCoy v. State, 136 Tex.Crim. 473, 126 S.W.2d 487 (App.1939); and, Chambless v. State, 67 S.W.2d 309 (Tex.Cr.App. 1934), the Court of Appeals held the submission of the fourth punishment issue violated art. 37.07 § 1(a) and the trial judge erred in accepting an illegal verdict. McPherson, 828 S.W.2d at 85-86.

III.

In 1972, the Supreme Court struck down our capital sentencing scheme holding it violated the Eighth Amendment prohibition of cruel and unusual punishment. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (decided in conjunction with Branch v. Texas). In 1973, the Legislature enacted a new capital sentencing scheme. Acts 1973, 63rd Leg., p. 1125, ch. 426, art. 3, § 1, eff. June 14, 1973. Art. 37.071(b) provided for the submission of two or three statutory punishment issues to the jury, depending upon the evidence presented at trial. See, fn. 1, supra. If the jury affirmatively answered the issues, the sentence of death was mandatory. Tex.Code Crim.Proc.Ann. art. 37.071(e).

In Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), the United States Supreme Court held art. 37.071 passed constitutional muster. The Court stated:

We conclude that Texas’ capital-sentencing procedures ... do not violate the Eighth and Fourteenth Amendments. By narrowing its definition of capital murder, Texas has essentially said that there must be at least one statutory aggravating circumstance in a first-degree murder case before a death sentence may even be considered. By authorizing the defense to bring before the jury at a separate sentencing hearing whatever mitigating circumstances relating to the individual defendant can be adduced, Texas has ensured that the sentencing jury will have adequate guidance to enable it to perform its sentencing function ... Because this system serves to assure that sentences of death will not be “wantonly” or “freakishly” imposed, it does not violate the constitution.

Jurek, 428 U.S. at 276, 96 S.Ct. at 2958. The same capital sentencing scheme was in effect September 22, 1989, the date of the instant offense.

The Texas capital sentencing scheme withstood constitutional challenge until 1989⁶ when the Supreme Court held art. 37.071 was unconstitutional, as applied, because the statutory punishment issues failed to provide a vehicle for the jury to give effect to the Penry’s mitigating evidence. Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934.⁷ The Court held:

In order to ensure “reliability in the determination that death is the appropriate punishment in a specific case,” [citation omitted], the jury must be able to consider and give effect to any mitigating evidence relevant to a defendant’s background, . character, or the circumstances of the crime.

Id., 492 U.S. at 328, 109 S.Ct. at 2951 [quoting Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) ]. Because Penry’s mitigating evidence was “beyond the scope of the special issues,” the evidence could not be given effect within the Texas capital sentencing scheme. Penry, 492 U.S. at 317, 109 S.Ct. at 2946.

IV.

Although we have grappled with the application of Penry for some time,⁸ the instant case presents our first opportunity to rule on the propriety of submitting a separate punishment issue concerning mitigating evidence.⁹ It is important to note that the Supreme Court failed to specify what particular vehicle was required under the Eighth Amendment “for the jury to give mitigating effect to” a defendant’s mitigating evidence which falls beyond the scope of the statutory punishment issues. Penry, 492 U.S. at 324-328, 109 S.Ct. at 2949-2952.

The Court of Appeals correctly recognized that art. 37.07 § 1(a) requires all verdicts to be general. The Court of Appeals then held that the fourth punishment issue was not a constitutionally necessary exception to art. 37.07 § 1(a). The Court noted that a “nullification” instruction, allowing the jury to answer one of the statutory punishment issues negatively if they felt the mitigating evidence militated against the death penalty, would satisfy the Eighth Amendment considerations under Penry and not violate art. 37.07 § 1(a). McPherson, 828 S.W.2d at 83. We have held that such an instruction may be adequate to provide the constitutional protection required by Penry. Fuller v. State, 829 S.W.2d 191, 209 (Tex.Cr.App.1992). See, fn. 8, supra. However, at the time of appellee’s trial, we had not ruled on the sufficiency of an instruction to meet the demands of Penry. Clearly, the trial judge believed the Eighth Amendment and Penry required that the jury have a vehicle to consider and give effect to appellee’s mitigating evidence. Having no guidance from the Supreme Court, or this Court, the trial judge chose to provide the fourth issue as a vehicle pursuant to the Eighth Amendment, as interpreted in Penry, which supersedes art. 37.07 § 1(a).

The Supremacy Clause of the United States Constitution provides:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

U.S. Const, art. VI, cl. 2. Under the Supremacy Clause, the Eighth Amendment takes precedence over art. 37.07 § 1(a). Considering the failure of the Supreme Court in Penry to provide guidance ■ concerning the type of vehicle required to enable the jury to consider and give effect to mitigating evidence, and the lack of guidance at the time of appellee’s trial, we will not fault the trial judge for submitting the fourth punishment issue in attempting to comply with the dictates of the Eighth Amendment. Once the trial judge determined appellee’s mitigating evidence was beyond the scope of the statutory punishment issues, a vehicle, allowing the jury to consider and give effect to that evidence, was constitutionally required. Accordingly, we hold that the fourth punishment issue, which provided the jury a “means of considering and giving effect to [appellee’s] mitigating evidence,” was an appropriate response to the Supreme Court’s decision in Penry.

In light of our holding, the remaining grounds for review are dismissed as moot. Accordingly, the judgment of the Court of Appeals is reversed and the judgment of the trial court is affirmed. The cause is remanded to the Court of Appeals.¹⁰

1 . As the instant offense was committed on September 22, 1989, all references to art. 37.071 refer to the statute as it appeared at that time.

Tex.Code Crim.Proc.Ann. art. 37.071(b) provided:

(b) On conclusion of the presentation of the evidence, the court shall submit the following three issues to the jury:

(1)whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;

(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and

(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.

2 . We assume, for purposes of this opinion, the mitigating evidence, pursuant to Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), was sufficient to require a vehicle, beyond the statutory issues, whereby the jury could consider and give effect to such evidence. The State has not argued otherwise, and the Court of Appeals did not address the issue.

3 . The State’s ground for review states:

The Court of Appeals erred in reversing and remanding this capital murder case for an entire new trial instead of reforming the sentence of life back to that mandated by law, namely, death by lethal injection.

4 . Appellee’s grounds for review state:

The Court of Appeals erred in holding that a fourth special issue, under the facts of the instant case, was not constitutionally necessary since a proper instruction would have served the constitutional purposes delineated in Penry.

The Court of Appeals erred in failing to address Appellee’s [appellant herein] double jeopardy claim and discretional review should be granted to determine whether the Double Jeopardy Clause bars the State from seeking the impose the death penalty against appellee, regardless of whether the trial court accepted an illegal verdict in the punishment phase of his trial.

5 . Attached to this motion were affidavits from two jurors. The jurors stated:

According to the instructions within the charge, we then proceeded to the fourth special issue. I can state absolutely that the vote on the fourth special issue was unanimous and was reached within one hour. There was some discussion on this issue. However, we basically were in agreement that the imposition of the death penalty against LARRY EUGENE MCPHERSON was not an appropriate or reasoned moral response to the facts of this case.

6 . The statute was unsuccessfully challenged in Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988). Franklin argued the capital sentencing scheme was unconstitutional because it did not allow the jury to consider and give effect to his disciplinary record in prison. The Supreme Court found that such evidence could be adequately considered within the second statutory punishment issue. Id., 487 U.S. at 177, 108 S.Ct. at 2329.

7 . Penry presented evidence that he was mentally retarded, abused as a child, and suffered from organic brain damage. Penry, 492 U.S. at 307-308, 109 S.Ct. at 2941-2942.

8 . See, generally, Mines v. State, 852 S.W.2d 941, (Tex.Cr.App.1992); Allridge v. State, 850 S.W.2d 471 (Tex.Cr.App.1991); Ex parte Williams, 833 S.W.2d 150 (Tex.Cr.App.1992); Draughon v. State, 831 S.W.2d 331 (Tex.Cr.App.1992); Fuller v. State, 829 S.W.2d 191 (Tex.Cr.App.1992); Goss v. State, 826 S.W.2d 162 (Tex.Cr.App.1992); Ex parte Kelly, 832 S.W.2d 44 (Tex.Cr.App.1992); Joiner v. State, 825 S.W.2d 701 (Tex.Cr.App.1992); Miniel v. State, 831 S.W.2d 310 (Tex.Cr.App.1992); Moody v. State, 827 S.W.2d 875 (Tex.Cr.App.1992); Ex parte Harris, 825 S.W.2d 120 (Tex.Cr.App.1991); Gosch v. State, 829 S.W.2d 775 (Tex.Cr.App.1991); Ex Parte Bower, 823 S.W.2d 284 (Tex.Cr.App.1991); Ex Parte Garrett, 831 S.W.2d 304 (Tex.Cr.App.1991); Ex Parte McGee, 817 S.W.2d 77 (Tex.Cr.App.1991); Mooney v. State, 817 S.W.2d 693, 705-06 (Tex.Cr.App.1991); Earhart v. State, 823 S.W.2d 607 (Tex.Cr.App.1991); Ramirez v. State, 815 S.W.2d 636 (Tex.Cr.App.1991); Ex Parte Rogers, 819 S.W.2d 533 (Tex.Cr.App.1991); Trevino v. State, 815 S.W.2d 592 (Tex.Cr.App.1991); Black v. State, 816 S.W.2d 350 (Tex.Cr.App.1991); Ex Parte Goodman, 816 S.W.2d 383 (Tex.Cr.App.1991); Selvage v. Collins, 816 S.W.2d 390 (Tex.Cr.App.1991); Ex Parte Ellis, 810 S.W.2d 208 (Tex.Cr.App.1991); Ex Parte Baldree, 810 S.W.2d 213 (Tex.Cr.App.1991); Ex Parte Herrera, 819 S.W.2d 528 (Tex.Cr.App.1991); Lewis v. State, 815 S.W.2d 560 (Tex.Cr.App.1991); Boyd v. State, 811 S.W.2d 105 (Tex.Cr.App.1991); Gribble v. State, 808 S.W.2d 65 (Tex.Cr.App.1990); James v. State, 805 S.W.2d 415 (Tex.Cr.App.1990); Hammond v. State, 799 S.W.2d 741 (Tex.Cr.App.1990); Jackson v. State, 822 S.W.2d 18 (Tex.Cr.App.1990); and, Kinnamon v. State, 791 S.W.2d 84 (Tex.Cr.App.1990).

9 .In Fuller v. State, 829 S.W.2d 191, 209 (Tex.Cr. App.1992), we upheld a jury nullification charge which instructed the jury to answer one of the statutory punishment issues "no” if the jury felt the mitigating evidence militated against the death penalty. However, we did not hold that such an instruction was the exclusive manner of complying with Penry.

10 . Appellant's appeal to the Court of Appeals was abated pending resolution of the State’s appeal.