EX PARTE CHARLES DEAN HOOD (original)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,370

EX PARTE CHARLES DEAN HOOD, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM CAUSE NO. W296-80233-90 IN THE 296TH DISTRICT COURT

COLLIN COUNTY

Cochran, J., filed a dissenting opinion, in which Womack, Johnson, and Holcomb, JJ., joined.

O P I N I O N

I respectfully dissent.

We filed and set this subsequent application for a writ of habeas corpus in a death penalty case to decide, among other things, whether applicant could have raised his "nullification instruction" claim in his earlier habeas applications. I conclude that no Texas or federal court had recognized the legal basis for his claim until the Supreme Court decided Tennard v. Dretke. (1) Therefore applicant's legal claim is newly available, and we should address the merits of his jury-charge claim under Almanza v. State. (2)

I.

Applicant was convicted of capital murder in 1990 for killing his boss and his boss's girlfriend. The evidence showed that applicant's boss had allowed applicant to live in his home, but that applicant had carefully planned and executed the murders, stolen his boss's credit cards, pawned his ring, and forged his name on stolen business checks to cash them. During the punishment phase, the State offered significant evidence that applicant would constitute a continuing threat to society. This evidence included burglary of a school when a juvenile, theft and forgery convictions, assault on his 15-year-old girlfriend, rape of another 15-year-old girl, threats to a third young woman while he was in jail on this charge, and assault upon a fellow inmate. The State also offered expert testimony from a clinical psychologist and a forensic psychiatrist that applicant had an anti-social personality disorder with little chance of rehabilitation. He did not appear to have organic brain damage, but might have a learning disability.

During the defense case, applicant offered the testimony of three witnesses. His mother testified that, when applicant was three years old, a septic-tank truck backed over him, breaking his back and legs. He was hospitalized for five months and had to wear a body cast. He could not walk for nearly two years. Applicant had a speech impediment- stuttering-and permanent hip damage. As a result of the accident, he had uneven legs. No school, medical, or psychological records or evaluations ever connected the truck injury to applicant's mental, emotional, or intellectual condition at the time of the murders or trial. According to his mother, applicant never liked school and frequently skipped classes, although his siblings had no such problems. By the time he should have been in ninth grade, he had already repeated two grades and then refused to attend any more classes. He tried to enlist in the Army but could not pass the entry exam even though he had an IQ of 89. Applicant was "the black sheep" of the family. Applicant called a second witness to say that he might have been accompanied by another person at the time he cashed his boss's stolen checks. His third defense witness testified that applicant told him (incorrectly) that his boss was really his father and that he never liked his boss's girlfriend.

Applicant's case was tried after the Supreme Court decided Penry I, (3) but before the Texas Legislature had convened to draft a statutory mitigation special issue to accommodate the Penry I holding. (4) Thus, the trial court submitted the two statutory special issues, but also included a special nullification instruction discussing the manner in which the jury should account for mitigating evidence when answering those special issues. (5) Applicant's counsel did not object to the nullification instruction. He did, however, request additional instructions on the use of mitigating evidence (6) and asked that the jury be told to write the word "life" into the "yes" or "no" verdict forms if it should decide that the mitigating evidence called for such a sentence. (7) The trial judge noted that nothing in Texas law allowed the jury to answer the special issues with the word "life" and that the explicit wording and specific answers to the special issues were statutorily required. Therefore, the trial judge declined to give applicant's additional instruction.

During closing arguments, the defense stressed that, regardless of what the jury thought about the special issues, it could not forget to consider the mitigating evidence. Counsel emphasized applicant's youth, his poverty, and the trauma he had suffered when the truck ran over him as a three-year-old. He noted that at least one doctor thought he could have brain damage. The State reminded the jury that it bore the burden of proving the special issues, but the decision of whether mitigating circumstances existed was a decision solely for the jury to determine. The jury answered both Special Issues "yes," and the trial court sentenced applicant to death.

On November 24, 1993, this Court affirmed applicant's conviction and sentence on direct appeal. (8) One of the issues that applicant raised on appeal was that the trial court erred "in failing to instruct the jury of a method to be used by them to give effect to mitigating evidence." (9) We rejected that claim, both because it was inadequately briefed and on its merits, concluding that the nullification instruction "did provide the jury with an adequate vehicle to express and give effect to its 'reasoned moral response'" to applicant's mitigation evidence, if any existed. (10) The United States Supreme Court denied certiorari. (11)

On December 22, 1997, applicant filed his first writ application under article 11.071. (12) In that application, he initially challenged the nullification instruction, but then deleted that claim from his amended application. On April 21, 1999, we denied habeas corpus relief. (13) Applicant then filed a writ application in federal court. The federal district court denied relief but granted a certificate of appealability on two grounds related to an Ake (14) claim. On April 2, 2004, the Fifth Circuit affirmed the district court's denial of relief in an unpublished opinion. (15) Once again, the United States Supreme Court denied certiorari. (16)

On May 24, 2004, applicant filed a pro se subsequent application for writ of habeas corpus which we dismissed as an abuse of the writ under art. 11.071, § 5. (17) That second application did not contain a claim that the nullification instruction was flawed.

On June 22, 2005, eight days before his scheduled execution, applicant filed a third writ application, alleging that the nullification instruction in applicant's case "suffered from the same constitutional defects that the Supreme Court found fatal" in Penry II, (18) Smith v. Texas, (19) and Tennard v. Dretke. (20) We granted applicant's motion for stay of execution and concluded that "applicant has met the requirements for consideration of a claim the basis of which was not available at the time his initial application was filed." (21) We remanded the case to the trial court for consideration of the merits of applicant's nullification instruction claim. (22) On remand, the habeas judge (23) set out factual findings gleaned from the trial record and stated:

Although opinions may vary regarding how clearly the mitigating evidence was elicited at trial and whether such evidence is overwhelming or tenuous, the record contains such evidence that a jury must, under our current law, consider regarding the imposition of the death penalty.

The trial court also entered two relevant conclusions of law: first, it concluded that applicant's "nullification" claim was unavailable at the time he filed his previous habeas application; (24) second, it concluded that the two special issues did not provide an avenue for the jury to give full consideration and full effect to applicant's mitigating evidence. (25) Although the habeas court did not apply our usual Almanza (26) analysis to applicant's claim of jury charge error, it recommended that we grant applicant a new punishment trial.

This Court now holds that, although we had originally determined that applicant's claim surmounted the section 5 (27) bar against subsequent claims because his Tennard claim was unavailable at the time he filed his first two writ applications, we were wrong. The majority concludes that applicant should have known from Penry II that he had a viable claim concerning both the lack of a special mitigation issue and the infirmity of the jury nullification instruction. I cannot agree with this conclusion because neither the Fifth Circuit nor this Court guessed that Penry I and II broadly expanded the nature and scope of evidence that required a modification of the statutory special issues. If neither the Fifth Circuit nor this Court predicted Tennard, we ought not hold a death-row inmate to a higher standard of prescience or legal extrapolation.

II.

The threshold issue is simple to state, but difficult to decide: If Tennard was "new" law and recognized a constitutional claim that had not previously existed, applicant is excused from not having brought his claim before. If Tennard was simply a reaffirmation of existing law or could "have been reasonably formulated" from existing law, (28) then applicant is barred from raising this claim now because he could have done so in his first or second writ applications. Was applicant simply blind or negligent in failing to anticipate the reasoning or result in Tennard?

The State argues that applicant's claim was, at the latest, recognized by Penry II, if not, in fact, by Penry I. It argues that applicant's

claim requires a bifurcated analysis to establish error in his case: first, he must establish that the two special issues were insufficient to encompass all of the mitigating evidence in his trial (Penry I error), and then he must show that the supplemental nullification instruction failed to ensure all mitigating evidence could be fully considered (Penry II error). (29)

Perhaps this two-pronged analysis seems obvious today, but let me take a look back at the judicial evolution that got us to the current predicament to understand why applicant might not have found this analysis intuitively obvious before the United States Supreme Court delivered Tennard.

A. Penry I.

In Penry I, the Supreme Court held that, although the Texas capital-sentencing framework was facially valid (30) and the special issues were generally sufficient to pass constitutional muster, Johnny Paul Penry's mitigation evidence presented a special dilemma. His evidence of extreme childhood abuse and mental retardation demonstrated that he was arguably unable "to control his impulses or to evaluate the consequences of his conduct." (31) The severity of Penry's impairment suggested a relative lack of moral culpability, but because the first special issue, dealing with the "deliberateness" of his capital crime, did not contain a definition of "deliberately, in a way that would clearly direct the jury to consider fully Penry's mitigating evidence as it bears on his personal culpability," this special issue did not give full mitigating effect to his evidence of mental retardation and childhood abuse. (32) Nor did the second special issue, dealing with a defendant's "continuing threat to society," adequately encompass Penry's specific evidence: although poor impulse control might be relevant in diminishing a person's moral culpability because it affected the degree to which he could and did "deliberate" upon his criminal conduct, it also magnified his dangerousness and made it more likely that he would be a continuing threat to society. (33)

According to the Supreme Court, Penry's evidence of childhood abuse and mental retardation was a "two-edged sword"-it diminished his moral culpability but magnified his dangerousness. (34) It was this "two-edged sword" aspect of Penry's evidence that caught the attention of Texas and federal courts. And it was the Supreme Court's emphasis in Penry I of judging the need for any additional mitigation instruction "on the facts of this case," (35) that these courts focused upon in their analysis.

After Penry I, the pertinent inquiry was "by what principle should the line between Penry I and non-Penry I evidence be drawn?" (36) In 2003 the Fifth Circuit noted,

Following Penry I, petitioners convicted in Texas have invoked that decision and requested additional instructional vehicles for many different types of mitigating evidence, including but not limited to subnormal intelligence, youth, troubled or abused childhood, intoxication, substance abuse, head injury, good character, mental illness, antisocial personality disorders, and dyslexia. (37)

Beginning immediately after Penry I, both this Court and the Fifth Circuit attempted to articulate a principle that would adequately and appropriately distinguish between Penry I and non-Penry I evidence. That formulation found its most succinct expression in the Fifth Circuit's 1992 en banc opinion in Graham v. Collins: (38) Was the capital crime "due to the uniquely severe permanent handicaps with which the defendant was burdened through no fault of his own"? (39) As the Fifth Circuit later explained,

This formulation encompasses four principles found in Penry I: voluntariness, permanence, severity, and attribution. Did the defendant acquire his disability voluntarily or involuntarily? Is the disability transient or permanent? Is the disability trivial or severe? Were the criminal acts a consequence of this disability? (40)

The Fifth Circuit's formulation had not been specifically articulated or approved by the Supreme Court in Penry I. But the Supreme Court granted certiorari in the Graham case to address whether the Fifth Circuit was correct in concluding that Gary Graham's evidence-of youth, unstable family background, and positive character traits-was not Penry-type evidence that required any special mitigation instruction. The Supreme Court discussed its prior death-penalty mitigation cases and reaffirmed that the Texas scheme "permitted petitioner to place before the jury whatever mitigating evidence he could show, including his age, while focusing the jury's attention upon what that evidence revealed about the defendant's capacity for deliberation and prospects for rehabilitation." (41) The Court noted that it had just recently "rejected a claim that the Texas special issues provided an inadequate vehicle for jury consideration of evidence of a defendant's clean prison disciplinary record." (42)

In Graham, the Supreme Court re-emphasized that Penry's holding was a narrow one that focused on the fact that Penry's evidence was a "two-edged sword." (43) The Court was explicit:

We do not read Penry as effecting a sea change in this Court's view of the constitutionality of the former Texas death penalty statute; it does not broadly suggest the invalidity of the special issues framework. Indeed, any such reading of Penry would be inconsistent with the Court's conclusion in that case that it was not announcing a "new rule" within the meaning of Teague v. Lane. (44)

The Supreme Court noted that Graham's mitigating evidence "was not placed beyond the jury's effective reach." (45) Even if Graham's evidence, like Penry's, had significance beyond the scope of the first, "deliberateness," special issue, it could "quite readily" have supported a negative answer to the future dangerousness question. (46) Most importantly, the

Court explicitly rejected the contention that "a defendant is entitled to special instructions whenever he can offer mitigating evidence that has some arguable relevance beyond the special issues." (47)

The majority in Graham said nothing about the Fifth Circuit's distinction between Penry and non-Penry evidence, but the Graham dissenters did criticize the Fifth Circuit's formulation and noted that it had "limited the application of Penry to mitigating evidence of circumstances that were not 'transitory,' but were 'uniquely severe permanent handicaps with which the defendant was burdened through no fault of his own.' . . . Penry lends no support for these limitations, however, and they are plainly at odds with other controlling Eighth Amendment precedents, which the Court does not purport to disturb." (48) One might fairly conclude, then, that the majority was aware of the Fifth Circuit formulation, noted the dissenters' position, but rejected it.

Just five months after Graham, the Supreme Court again waded into the Penry vs. non-Penry mitigation-evidence debate and held, in Johnson v. Texas, (49) that the jury in Johnson's trial could consider his evidence of youthfulness under the statutory special issues without any special mitigation instruction. Once again, the Supreme Court emphasized that Penry was a special case:

We agreed that the jury instructions were too limited for the appropriate consideration of this mitigating evidence in light of Penry's particular circumstances. We noted that "the jury was never instructed that it could consider the evidence offered by Penry as mitigating evidence and that it could give mitigating effect to that evidence in imposing sentence."

. . .

We confirmed this limited view of Penry and its scope in Graham v. Collins. There we confronted a claim by a defendant that the Texas system had not allowed for adequate consideration of mitigating evidence concerning his youth, family background, and positive character traits. In rejecting the contention that Penry dictated a ruling in the defendant's favor, we stated that Penry did not "effect a sea change in this Court's view of the constitutionality of the former Texas death penalty statute[.]"

. . .

In addition, we held that Graham's case differed from Penry in that "Graham's evidence-unlike Penry's-had mitigating relevance to the second special issue concerning his likely future dangerousness." (50)

The Court concluded that "[i]t strains credulity to suppose that the jury would have viewed the evidence of petitioner's youth as outside its effective reach in answering the second special issue." (51) And, although "a juror might view the evidence of youth as aggravating, as opposed to mitigating," that fact does not mean that the Eighth Amendment is violated. (52) It was, according to the Court in Johnson, sufficient if the jury could view it as mitigating under the future-dangerousness special issue. (53)

The Supreme Court also rejected Johnson's claim that a special mitigation issue is required to allow the jury "to dispense mercy on the basis of a sympathetic response to the defendant." (54) Such a "sympathy" claim would allow a capital defendant's fate "'to turn on the vagaries of particular jurors' emotional sensitivities'" and would violate the Court's long-held notion that capital sentencing "'must be reliable, accurate, and nonarbitrary.'" (55) According to the Johnson Court, such a rule "would require that a jury be able to give effect to mitigating evidence in every conceivable manner in which the evidence might be relevant," (56) and that was not in accord with its prior decisions in Jurek, (57) Lockett, (58) and Eddings. (59)

Significantly, two members of the Johnson majority, Justices Scalia and Thomas, wrote brief concurring opinions. (60) Justice Thomas expressed satisfaction that, although he believed that Penry had been wrongly decided, that decision had been "substantially narrowed by later opinions." (61) Justice Scalia opined that the essence of the Johnson holding-"to the effect that discretion may be constitutionally channeled"- had been set out in his original Penry dissent. (62) So, after Graham and Johnson, Penry appeared to be less significant to some members of the Supreme Court than it had when it was first delivered.

Once again, four members of the Supreme Court dissented, arguing that Johnson's youthfulness at the time of the capital crime bore directly on his "culpability and responsibility for the crime" and therefore could not be given full effect under either special issue. (63) The Johnson dissenters emphasized a different version of the history of mitigation evidence and Supreme Court precedent than had the majority in either Graham or Johnson. (64) It chastised the Supreme Court majority because it "clings doggedly to Jurek" (65) rather than requiring that a capital jury be "able to consider fully a defendant's mitigating evidence." (66) In this case, the State implicitly suggests that applicant's nullification-instruction claim was available because of the dissenting opinions in Graham and Johnson. But article 11.071, § 5(d) refers to "a final decision" of the United States Supreme Court, not a "final dissenting opinion" of the United States Supreme Court. Further, the Fifth Circuit interpreted the majority opinions in Graham and Johnson as implicitly affirming the "voluntariness, permanence, severity, and attribution" formulation first set out in its en banc opinion in Graham. (67) In most of the cases following Graham and Johnson, the Texas and federal courts held that the defendants' mitigating evidence did not rise to the Penry I level and thus no additional mitigation instruction was necessary. (68) The presence or absence of a nullification instruction was therefore irrelevant. The Supreme Court denied certiorari in the vast majority of those cases. As the en banc Fifth Circuit noted in Robertson, its view of the Graham formulation appeared fully vindicated:

Moreover, while it is inappropriate to ascribe undue significance to denials of certiorari, it should at least be noted that the Supreme Court has been loathe to disturb this court's interpretation of Penry I. In the decade from the en banc decision in Graham (January 3, 1992) to the end of 2002, numerous petitioners asked this court to overturn their capital sentences on the basis of Penry-evidence claims. Of the 47 cases we addressed on the merits, this court applied the Graham interpretation of Penry I in each and concluded that only one of these petitioners, Michael Blue, had mustered evidence with a mitigating thrust beyond the special issues. Of the remaining 46 petitioners, 42 petitioned the Supreme Court for writ of certiorari. The Court dismissed the writ in one of them, remanded the instant case for reconsideration in light of Penry II and one other on separate grounds, and denied the petitions in the remaining 39. Furthermore, in 14 of these 39 cases petitioners alleged child abuse. A sizable number of these 14 present factual allegations that are quite similar to Robertson's. Certiorari was denied in all of those cases. In light of the Supreme Court's consistent denial of Penry-based petitions, it would be unwarranted for us to abandon our established precedent under the Graham framework. (69)

If ever there were a case and reasoning that cried out for rectification if rectification were necessary, Robertson was it. But the Supreme Court denied certiorari and denied Robertson's request for a stay of execution. (70)

A year later, in April 2004, this Court followed the Fifth Circuit's en banc reasoning in Robertson and held, in Ex parte Smith, (71) that the defendant's mitigating evidence of youth, a somewhat limited mental capacity, and a difficult family background could all be adequately addressed under the two statutory special issues. (72)

The very next month, applicant filed his second, pro se, habeas application. Surely the majority opinions in Graham, Johnson, Robertson, or Smith would not have put him on notice of the availability of his current claim that the two special issues were inadequate to address his evidence of his youth, physical disabilities stemming from the septic-tank truck accident when he was three, a speech impediment, and low scholastic achievements. (73) As the Fifth Circuit noted in Robertson, an unbroken line of cases, from the Supreme Court, the Fifth Circuit, and this Court, had uniformly distinguished Penry I and rejected claims of this nature over a period of fifteen years.

Then, precisely one month after applicant filed his pro se application, the Supreme Court delivered its opinion in Tennard v. Dretke. (74) It repudiated the Fifth Circuit's 1992 Graham formulation and all of the Fifth Circuit cases that had relied upon that formulation. It stated, "The Fifth Circuit's test has no foundation in the decisions of this Court. Neither Penry I nor its progeny screened mitigating evidence for 'constitutional relevance' before considering whether the jury instructions comported with the Eighth Amendment." (75) Instead, the Fifth Circuit's Graham "constitutional relevance" formulation essentially precluded defendants from successfully arguing that the future-dangerousness special issue provided an insufficient vehicle for giving effect to mitigating evidence which was not severe, permanent, or related in some way to the commission of the capital crime. (76) A new majority of the Supreme Court held that the Eighth Amendment requires that a jury be able to consider and give effect to any relevant evidence that one could consider mitigating and might serve as a basis for a sentence less than death. (77) Although it did not expressly say so, the Court implied that if a defendant offers evidence that some juror might consider mitigating, then, unless the jury could give it full consideration under the statutory special issues, the trial judge commits constitutional error if it does not provide a special mitigation vehicle. (78)

Five months later, in November of 2004, the Supreme Court, in a per curiam opinion and without full briefing or oral argument, reversed our decision in Ex parte Smith. (79) The Court noted that we had delivered Smith shortly before the Supreme Court decided Tennard and that we had relied upon prior Fifth Circuit precedent. The Supreme Court held that its recent decision in Tennard controlled the outcome in Smith. (80) The Court stated, "Because petitioner's proffered evidence was relevant, the Eighth Amendment required the trial court to empower the jury with a vehicle capable of giving effect to that evidence." (81) And the Court concluded that the nullification instruction given in Smith's trial was an insufficient vehicle for the jury to fully consider and give full effect to his mitigation evidence. (82)

The Supreme Court's decisions in Tennard and Smith form the basis of applicant's current claim. (83) I cannot fault applicant for failing to have predicted them.

B. Penry II.

The corollary to Penry I, that some mitigating evidence may be outside the ambit of the two special issues, is that there must be a vehicle that permits the jury to sufficiently consider and give effect to that evidence. That issue was addressed in the 2001 Supreme Court decision in Penry II. In that case, the Court held that the non-statutory nullification instruction-devised after Penry I as a stop-gap measure until the Texas Legislature could convene and enact a statutory special mitigation issue-was unconstitutional as applied to Penry and his evidence of childhood abuse and mental retardation. (84)

In Penry II, the Supreme Court stated that the jury might view the nullification instruction in either of two ways: First, it could "be understood as telling the jurors to take Penry's mitigating evidence into account in determining their truthful answers to each special issue." (85) But this would not alleviate the problem of Penry I in which a defendant's mitigating evidence was outside the ambit of the special issues. (86) Second, it could be understood "as informing the jury that it could 'simply answer one of the special issues "no" if it believed that mitigating circumstances made a life sentence . . . appropriate . . . regardless of its initial answers to the questions.'" (87) Again, this would not alleviate the problem of Penry I because "it made the jury charge as a whole internally contradictory, and placed law-abiding jurors in an impossible situation." (88) That is, "jurors who wanted to answer one of the special issues falsely to effect to the mitigating evidence would have had to violate their oath to render a 'true verdict.'" (89)

Thus, in a Penry I situation-one in which the defendant's mitigating evidence was a "two-edged" sword, pointing both to a decreased moral culpability but an increased risk of dangerousness-the nullification instruction given in Penry II was insufficient to allow the jury to give effect to that evidence. The Supreme Court, in Penry II, did not speak to other types of mitigating evidence-i.e., mitigating evidence that was not double-edged. On the other hand, numerous pre-Penry cases decided by the Supreme Court had stated that the Texas special issues were a sufficient vehicle to give effect to mitigating evidence. (90) Penry II did not appear, on its face, to disturb that jurisprudence.

It was not until Tennard and Smith that the Supreme Court suggested that (1) any and all "relevant" evidence offered by a defendant that could be considered as mitigating his moral culpability requires a special mitigation issue; (91) and (2) a nullification instruction is always unconstitutional. Of course, neither Tennard nor Smith explicitly stated these two propositions, they merely hinted at them. Thus, federal and Texas courts are still floundering in the stormy seas of what constitutes "relevant" mitigation evidence and what instructions will (and will not) provide an adequate vehicle for a jury's consideration of that evidence. I join those members of the Fifth Circuit who recently lamented that the Supreme Court has still not given the lower courts clear and adequate guidance in the area of mitigation evidence and jury instructions in death penalty cases:

The [Supreme] Court's continuing mixed signals on issues of critical importance to Texas's criminal justice system are unfortunate. It is to be hoped that, for the sake of certainty, the Court will clarify its jurisprudence in the cases on which it just granted certiorari. (92)

The profound problem with the current uncertainty is that clarity of the law in this Penry I and Penry II area is a matter of life and death to all of those inmates sentenced to death prior to the 1991 Texas legislation enacting a statutory mitigation issue. Many, if not most, of those inmates filed for certiorari review in the Supreme Court, but their writs were denied, and they were duly executed. As Chief Judge Jones lamented,

Sadly, for the State of Texas, for certainty and stare decisis, and for defendants who deserve to know their fate before the last minute, we seem no further along in understanding the [Supreme] Court's pronouncements today than we were fifteen years ago when we reheard Graham en banc. (93)

Like many members of the Fifth Circuit, I am thoroughly confused by the Supreme Court's recent decisions in Tennard and Smith.

C. The Dilemma that Tennard and Smith created for Texas Courts

A clear understanding of those two recent decisions, and the resolution of the question of whether those decisions announced "new law" that was previously unavailable is crucial to this applicant and all other applicants similarly situated. Under our Texas habeas corpus statute, an applicant may not have the merits of a subsequent writ considered unless he passes over the threshold of article 11.071, § 5. Thus, if Tennard and Smith announced new law, we may consider the merits of applicant's claims. If they are mere clarifications of existing and previously available law, we are statutorily required to dismiss his subsequent application as an abuse of the writ. (94)

On the other hand, federal courts are not permitted to grant a state petitioner's writ application complaining about a state-court decision unless the state court's determination of the legal issue was an unreasonable application of clearly established law as announced by the Supreme Court. (95) In other words, this Court may address applicant's claim only if Tennard and Smith  are newly available legal claims, whereas federal courts may grant petitioner's claim only if this Court has misapplied clearly established federal law. This is all very awkward. To grant a Texas death-row inmate relief on his subsequent Penry I and Penry II claim under the recently decided Tennard and Smith cases, we must find that those decisions announced new law, but the federal courts cannot grant relief on those very same claims unless they find that Texas courts misapplied clearly established law at the time of the relevant state-court decision. (96) Hence, a death-row inmate must argue in this Court that Tennard and Smith announced new law, but he must argue that Tennard and Smith simply reiterated clearly established law once he arrives in federal court. I can think of no way in which Tennard and Smith can simultaneously be both "newly available law" for state court purposes and "clearly established law" for federal court purposes. Only the Supreme Court can tell the federal and state courts which one it is: new law or clearly established law. And only the Supreme Court can tell both federal and state courts whether Jurek, Franklin, Graham, and Johnson have been overruled by Tennard and Smith, or whether all of these cases are reconcilable (and if so, how). I join those members of Fifth Circuit who hope that the Supreme Court will resolve our dilemma and clarify its current mitigation evidence and instructions jurisprudence. (97)

Until then, I agree with applicant that Tennard and Smith constitute newly available law and that he is entitled to have the merits of his application addressed by this Court. I respectfully dissent to the majority's decision to dismiss his subsequent application under article 11.071, §5, as an abuse of the writ. (98)

Filed: January 10, 2007

Publish

1. 542 U.S. 274 (2004).

2. 203 S.W.2d 317 (Tex. Crim. App. 1985).

3. Penry v. Lynaugh, 492 U.S. 302 (1989).

4. See Ex parte Staley, 160 S.W.3d 56, 58 (Tex. Crim. App. 2005). In Staley, this Court noted,

The 1989 Penry I decision created a dilemma for Texas trial courts in capital-murder cases. As the Fifth Circuit has noted, Texas trial courts "could not craft entirely new jury interrogatories, as the precise questions had been written by the state legislature. Nor could they suspend the trials in anticipation of legislative remediation, as the legislature would not meet again until 1991 and its reaction was unknown." Thus, Texas state courts attempted to provide timely trials that complied with Penry I by drafting extra-statutory jury instructions or supplemental special issues until the Texas Legislature enacted a statutory mitigation special issue which went into effect on September 1, 1991.

Id. (citations omitted).

5. That instruction read,

You are instructed that you shall consider in answering the special issues any evidence which in your opinion mitigates against the imposition of the death penalty. A mitigating circumstance may include, but is not limited to, any aspect of the defendant's character, record, and the circumstances of the crime, which you believe could make a death penalty inappropriate in this case.

Further, if you believe from the evidence that the State has proven beyond a reasonable doubt that the answers to the Special Issues are "yes" but you are further p[e]rsuaded by the mitigating evidence that the defendant should not be sentenced to death in this case, then you shall answer one or both of the Special Issues "no" in order to give the effect to your belief that the death penalty should not be imposed in this case.

6. Applicant's proposed additional instruction read,

You may use a mitigating circumstance to answer a Special Issue "no" or you may use a mitigating circumstance as a basis for leniency even if you are persuaded that all of the Special Issues must be answered "yes." If you decide that all of the Special Issues must be answered "yes" and you also have found mitigating circumstances which call for a life sentence, you must not answer the Special Issues. Instead, to give effect to the mitigating circumstances, you must write the word "life" in each of the spaces on the verdict sheet where you would otherwise answer the Special Issues "yes" or "no." A verdict of life has the same effect as a verdict that answers at least one Special Issue "no."

7. Defense counsel explained to the trial judge,

As the Court knows, this is a pretty new concept in our capital litigation, and it is one about which we don't have any, at this point, formal guidance from our State Court. Nevertheless, it seems to me that in a case of this kind, if we make a mistake it ought to be on the side of fully explaining mitigation, fully explaining to the Jury how they can give effect to the mitigation, if they find that it exists, and not simply, for the sake of brevity, put something in there that sounds like it might be alright, but doesn't accurately explain to the Jury what their obligation is.

8. Hood v. State, No. 71,167 (Tex. Crim. App. Nov. 24, 1993) (not designated for publication).

9. Id., slip op. at 18.

10. Id., slip op. at 20.

11. Hood v. Texas, 513 U.S. 834 (1994).

12. Tex. Code Crim. Proc. art. 11.071.

13. Ex parte Hood, No. 41,168-01 (Tex. Crim. App. Apr. 21, 1999) (not designated for publication).

14. Ake v. Oklahoma, 470 U.S. 68 (1985).

15. Hood v. Dretke, No. 00-41272, 93 Fed. Appx. 665 (5th Cir. 2004) (not designated for publication).

16. Hood v. Dretke, 543 U.S. 836 (2004).

17. Ex parte Hood, No. WR-41,168-02 (Tex. Crim. App. April 13, 2005) (not designated for publication).

18. Penry v. Johnson, 532 U.S. 782 (2001).

19. 543 U.S. 37 (2004).

20. 542 U.S. 274 (2004).

21. Ex parte Hood, No. WR-41,168-03 (Tex. Crim. App. June 27, 2003) (not designated for publication).

22. Id.

23. The habeas judge was a Senior District Judge sitting by assignment. He was not the original trial judge.

24. The habeas court's first conclusion of law reads,

Prior to the Supreme Court's decisions in Tennard and Smith, the Court of Criminal Appeals had concluded that, without a "prima facie" showing of a severe and permanent handicap, not of his own making, which is a[t] least related to the commission of the capital offense, a defendant could not pursue a claim challenging the failure of the special issues to provide a vehicle for the consideration of mitigating evidence. This standard was overturned by the Supreme Court in Smith which makes [it] clear that the legal basis for asserting a meritorious nullification claim was unavailable to Hood at the time he filed his previous habeas application.

25. The habeas court's seventh conclusion of law reads,

The two special issues given the jury in this case do not provide an avenue for the jury to give full consideration of the mitigating evidence adduced at trial, they considered true and relevant, and then give full effect to such mitigating evidence. Thus, under the evidence in this case, to be constitutional, there should have been a special issue submitted to the jury that allowed the jury to give full consideration and full effect to the mitigating evidence. That special issue must allow them to answer the questions directly as the current[] law provides.

26. Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985).

27. Tex. Code Crim. Proc. art. 11.071, § 5(a)(1). This section reads,

If a subsequent application for a writ of habeas corpus is filed after filing an initial application, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that:
(1) the current claims and issues have not been and could not have been presented previously in a timely initial application or in a previously considered application filed under this article or Article 11.07 because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application[.]

28. Article 11.071, § 5(d) defines legal unavailability:

For purposes of Subsection (a)(1), a legal basis of a claim is unavailable on or before a date described by Subsection (a)(1) if the legal basis was not recognized by or could not have been reasonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state on or before that date.

29. State's Brief at 18.

30. See generally Jurek v. Texas, 428 U.S. 262 (1976).

31. Penry I, 492 U.S. at 322.

32. Id.

33. Id. at 323-24.

34. Id. at 324.

35. Id. at 315.

36. Robertson v. Cockrell, 325 F.3d 243, 251 (5th Cir. 2003) (en banc), cert. denied, 539 U.S. 979 (2003).

37. Id. at 249-51 (footnotes collecting cases omitted).

38. 950 F.2d 1009 (5th Cir. 1992) (en banc).

39. Id. at 1029.

40. Robertson, 325 F.3d at 251.

41. Graham v. Collins, 506 U.S. 461, 472 (1993).

42. Id. (citing Franklin v. Lynaugh, 487 U.S. 164 (1988)).

43. The Fifth Circuit, in its en banc opinion in Graham, explained that Penry was a most unusual case, involving unique circumstances:

We believe that what Penry represents is a set of atypical circumstances of a kind that, quite understandably, neither the Texas Court of Criminal Appeals nor the Supreme Court in Jurek had in mind, namely circumstances where the defense's mitigating evidence would have either no substantial relevance or only adverse relevance to the second special issue. Typically, evidence of good character, or of transitory conditions such as youth or being under some particular emotional burden at the time, will tend to indicate that the crime in question is not truly representative of what the defendant's normal behavior is or may become over time, and that the defendant may be rehabilitable so as not to be a continuing threat to society. The core of Jurek-which we cannot conclude has been abandoned-is that the mitigating force of this kind of evidence is adequately accounted for by the second special issue. But in Penry the Court was faced for the first time with a wholly different type of mitigating evidence. Not evidence of good character, but of bad character; not evidence of potential for rehabilitation, but of its absence; not evidence of a transitory condition, but of a permanent one; but nonetheless evidence which was strongly mitigating because these characteristics were due to the uniquely severe permanent handicaps with which the defendant was burdened through no fault of his own, mental retardation, organic brain damage and an abused childhood. There was no way this type of evidence could be given any mitigating force under the second special issue. To recognize that, as Penry did, is not necessarily to deny the validity of Jurek as it applies to the more typical case.

Graham, 950 F.2d at 1029-30. In its review of this Fifth Circuit opinion, the Supreme Court majority appeared to affirm the Fifth Circuit's understanding of Penry.

44. Graham, 506 U.S. at 474 (footnote omitted); see also Saffle v. Parks, 494 U.S. 484, 491 (1990), in which the Supreme Court stated,

To the extent that Penry's claim was that the Texas system prevented the jury from giving any mitigating effect to the evidence of his mental retardation and abuse in childhood, the decision that the claim did not require the creation of a new rule is not surprising. Lockett and Eddings command that the State must allow the jury to give effect to mitigating evidence in making the sentencing decision; Penry's contention was that Texas barred the jury from so acting. Here, by contrast, there is no contention that the State altogether prevented Park's jury from considering, weighing, and giving effect to all of the mitigating evidence that Parks put before them; rather, Parks' contention is that the State has unconstitutionally limited the manner in which his mitigating evidence may be considered. As we have concluded above, the former contention would come under the rule of Lockett and Eddings; the latter does not.

Id. (emphasis added).

45. 506 U.S. at 475.

46. Id. The Supreme Court explained,

Graham's evidence of transient upbringing and otherwise nonviolent character more closely resembles Jurek's evidence of age, employment history, and familial ties than it does Penry's evidence of mental retardation and harsh physical abuse. As the dissent in Franklin made clear, virtually any mitigating evidence is capable of being viewed as having some bearing on the defendant's "moral culpability" apart from its relevance to the particular concerns embodied in the Texas special issues.

Id. at 476.

47. Id.

48. Id. at 513 (Souter, J., dissenting, joined by Blackmun, Stevens, and O'Connor, JJ.).

49. 509 U.S. 350 (1993).

50. Id. at 364-66.

51. Id. at 368. The Court explained, "The relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside." Id. It also distinguished Penry-type evidence: "Unlike Penry's mental retardation, which rendered him unable to learn from his mistakes, the ill effects of youth that a defendant may experience are subject to change and, as a result, are readily comprehended as a mitigating factor in consideration of the second special issue." Id. at 369.

52. Id. at 368.

53. Id. The Court explained that Johnson himself did not contest that his evidence of youth "could be given some effect under the second special issue." Id. at 369. Rather, Johnson argued that "the future dangerousness inquiry did not allow the jury to take account of how [his youth] bore upon his personal culpability." Id. The Court disagreed and stated, "If any jurors believed that the transient qualities of petitioner's youth made him less culpable for the murder, there is no reasonable likelihood that those jurors would have deemed themselves foreclosed from considering and evaluating petitioner's future-dangerousness." Id. at 370.

54. Id. at 371.

55. Id. at 371-72 (quoting Saffle v. Parks, 494 U.S. at 493).

56. Id. at 372.

57. Jurek v. Texas, 428 U.S. 262 (1976).

58. Lockett v. Ohio, 438 U.S. 586 (1978).

59. Eddings v. Oklahoma, 455 U.S. 104 (1982).

60. 509 U.S. at 373-74 (Scalia, J., concurring); 509 U.S. at 374 (Thomas, J., concurring).

61. Id. at 374 (Thomas, J., concurring).

62. Id. (Scalia, J., concurring).

63. Id. at 376, 379 (O'Connor, J., dissenting, joined by Blackmun, Stevens, and Souter, JJ.).

64. Id. at 379-86.

65. Id. at 382, 385.

66. Id. at 386.

67. See Tennard v. Dretke, 442 F.3d 240, 251-52 (5th Cir. 2006) (noting that the Supreme Court had affirmed the Fifth Circuit's holding in Graham and "seemed to endorse the en banc majority's understanding of Penry I").

68. See Robertson, 325 F.3d at 249-51 & nn.5-14 (collecting cases).

69. 325 F.3d at 256-57 (citations and footnotes omitted).

70. Robertson v. Cockrell, 539 U.S. 979 (2003). Only Justices Stevens and Ginsburg would have granted the application for a stay of execution. Id. Our Court later granted Robertson a stay of execution and remanded the case to the trial court for consideration of his post-Tennard claim.

71. 132 S.W.3d 407 (Tex. Crim. App. 2004).

72. Id. at 415-16 (to make out a Penry I violation, "a defendant first must make a prima facie showing of a severe and permanent handicap, not of his own making, which is at least related to the commission of the capital offense. Second, the defendant must show that this disability evidence was effectively beyond the reach of the two special issues. Applicant has made neither showing. We conclude that the two special issues provided applicant's jury with a constitutionally sufficient vehicle to give effect to his mitigating evidence.") (footnote omitted).

73. Applicant has included additional assertions of mitigation evidence in his subsequent writ, but we are bound by the evidence actually adduced at trial in deciding whether he was entitled to any special mitigation instructions at that trial.

74. 542 U.S. 274 (2004).

75. Id. at 284.

76. Id. at 284-88. One might notice that the four dissenters in Graham had made precisely this argument, but the Graham majority declined to address it. Perhaps there is some significance to the fact that Justice White, who wrote the majority opinion in Graham, and Justice Blackmun, who dissented in Graham, retired and were replaced by Justices Ginsburg and Breyer by the time Tennard was delivered.

77. See id. at 287.

78. See generally id. at 282-88.

79. Smith v. Texas, 543 U.S. 37 (2004).

80. Id. at 43 (stating, "Our rejection of that ["constitutionally relevant" mitigating evidence] threshold test was central to our decision to reverse in Tennard").

81. Id. at 45.

82. Id. at 46.

83. In his subsequent application, applicant argues that prior to the decisions in Tennard and Smith, "this Court had repeatedly concluded that, without a 'prima facie showing of a severe and permanent handicap, not of his own making, which is at least related to the commission of the capital offense,' a defendant could not pursue a claim challenging the failure of the special issues to provide a vehicle for the consideration of mitigating evidence." Application at 16. Applicant, however, cites only a single case, Ex parte Smith, 132 S.W.3d at 415, for that proposition. In fact, Ex parte Smith would appear to be the only published Texas case that had explicitly used the Fifth Circuit screening test for constitutional relevance, although numerous Texas cases had previously required a "nexus between the mitigating evidence and culpability for the crime," and/or permanence of any handicap. Lackey v. State, 819 S.W.2d 111, 135, n.10 (Tex. Crim. App. 1989) (op. on reh'g); see also Nobles v. State, 843 S.W.2d 503, 506 (Tex. Crim. App. 1992) ("Evidence of the appellant's unfortunate childhood was not, without some testimony indicating a nexus between his childhood circumstances and the commission of the crime, helpful to the jury's consideration of the special issues or indicative of a lessened moral blameworthiness. In fact, the evidence appellant chose to present tends to show that the abuse appellant received was sporadic and isolated, not of a continuing nature. Indeed, testimony revealed that attempts were made to place appellant in a safe and nurturing environment once evidence of his less than model home-life became apparent. As such, the evidence he offered was sufficiently encompassed within the scope of the special issues and no special jury charge was required"); Goss v. State, 826 S.W.2d 162, 165 (Tex. Crim. App. 1992) ("the evidence must tend to excuse or explain the criminal act, so as to make that particular defendant not deserving of death").

84. 532 U.S. at 798-800.

85. Id. at 798.

86. Id.

87. Id.

88. Id. at 799.

89. Id. at 800.

90. See, e.g., Jurek, Franklin, Graham, and Johnson.

91. Indeed, the Supreme Court said in both Graham and Johnson that

[h]olding that a defendant is entitled to special instructions whenever he can offer mitigating evidence that has some arguable relevance beyond the special issues . . . would be to require in all cases that a fourth "special issue" be put to the jury: "'Does any mitigating evidence before you, whether or not relevant to the above [three] questions, lead you to believe that the death penalty should not be imposed?'"

Johnson, 509 U.S. at 372 (quoting Graham, 506 U.S. at 476, which quoted Franklin, 487 U.S. at 180 n.10). The Court rejected such a notion, observing, "The first casualty of [such] a holding . . . would be Jurek. The inevitable consequence of petitioner's argument is that the Texas special issues system in almost every case would have to be supplemented by a further instruction." Id.

92. Nelson v. Quarterman, ___ F.3d ___, ___, No. 02-11096, 2006 U.S.App. LEXIS 31814, *151 (5th Cir. Dec. 11, 2006) (en banc) (Jones, C.J., dissenting, joined by Jolly, Smith, Barksdale, Garza, and Clement, JJ.).

93. Id. at *174-75 .

94. Tex. Code Crim. Proc. art. 11.071, § 5.

95. 28 U.S.C. § 2254(d)(1). Under the Antiterrorism and Effective Death Penalty Act (AEDPA), "a federal court may not grant a writ of habeas corpus 'with respect to any claim that was adjudicated on the merits in State court proceedings' unless the petitioner shows that the state court's adjudication 'resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,' or that the state court's adjudication of a claim 'resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Nelson, ___ F.3d at ___ , 2006 U.S.App. LEXIS 31814, *10; see Brown v. Payton, 544 U.S. 133, 141-43 (2005) (concluding that 9th Circuit erred in granting relief; holding that, under AEDPA, "[e]ven on the assumption that [the California Supreme Court's] conclusion was incorrect, it was not unreasonable, and is therefore just the type of decision that AEDPA shields on habeas review"); Williams v. Taylor, 529 U.S. 362, 406, 409, 412 (2000) ("Stated simply, a federal habeas court making the 'unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable"; holding that "clearly established Federal law" means "the holdings, as opposed to the dicta, of this Court's decisions as of the time of the relevant state-court decision," and explaining that a state-court decision is contrary to the Supreme Court's "clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent").

96. See, e.g., Nelson, ___ F.3d at ___ , 2006 U.S.App. LEXIS 31814, *43-44 (concluding that Tennard and Smith merely reaffirmed clearly established law that existed in 1994, at the time Nelson's conviction became final).

97. See id., ___ F.3d at ___ , 2006 U.S.App. LEXIS 31814, *151 (Jones, C.J., dissenting, joined by Jolly, Smith, Barksdale, Garza, and Clement, JJ.); see also id. at ___ , 2006 U.S.App. LEXIS 31814, *184, 193-94 (Smith, J., dissenting) (noting "the embarrassing procedural tangle caused by the various actions of the Supreme Court and this court in Penry-related cases" and concluding, "The Court's willingness to address Penry questions once again is welcome. Perhaps the High Court will issue a tongue-lashing like the one Justice O'Connor penned in Tennard. If so, it will be despite this court's honest attempts to apply the Court's sundry pronouncements.").

98. However, I certainly cannot fault the majority for following what a majority of the members of the Fifth Circuit so recently announced in Nelson v. Quarterman, in concluding that the tenets of Penry I and Penry II were clearly established federal law by 1994 even though Penry II was not delivered until 2001.