Nathaniel Dwayne Welch v. The State of Texas--Appeal from 248th District Court of Harris County
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Opinion of November 23, 2010, Withdrawn, Affirmed and Substitute Opinion filed
January 11, 2011.
In The
Fourteenth Court of Appeals
___________________
NO. 14-09-01020-CR
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NATHANIEL DWAYNE WELCH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause No. 1173927
SUBSTITUE
OPINION
Our opinion dated November 23, 2010 is hereby withdrawn, and we issue this
substitute opinion.
In this appeal, we examine whether a recent decision from the U.S. Supreme Court
enlarges the duty of the trial court to ensure that all mitigating evidence is fully developed
during sentencing. Finding no support for the proposition under the cited authority, we
overrule appellant’s sole issue and affirm the judgment below.
BACKGROUND
On the night of July 7, 2008, appellant Nathaniel Dwayne Welch and two other men
robbed a Whataburger in southeast Houston. Appellant secured the dining area of the
restaurant while the other two forced the manager to open the safe. Wielding a shotgun at
point-blank range, appellant threatened to kill several patrons if they did not hand over
their wallets. In one instance, appellant even used the butt of his weapon to strike a patron.
The robbers left without any shots being fired, but police pursued the getaway vehicle,
eventually apprehending all of the suspects when their car flipped into a bayou. Appellant
confessed to the crime and pleaded guilty to a charge of aggravated robbery. At the time of
the offense, he was seventeen years old.
Appellant elected to have punishment assessed by the trial judge. During the
sentencing hearing, appellant objected to statements in the presentence investigation report
indicating that he was ―in good physical health‖ and ―never . . . sought or received
psychiatric or psychological evaluation or counseling.‖ Appellant claimed that his medical
records revealed a ―serious head trauma at age three‖ and a long psychiatric history of
delusions, hallucinations, psychosis, depression, and bipolar disorder.1 Appellant did not
specifically request that the trial court order further psychological evaluations.
In his presentation of mitigating evidence, appellant testified that he fell down a
flight of stairs when he was a child. To this day, appellant has a metal plate in his head
because of the injuries sustained. Appellant also testified as to his troubled childhood. He
said that he often transferred between schools and struggled with reading. He said that his
father was largely absent. For a period of time, he lived on his own with just his
Our limited record can neither confirm nor refute appellant’s assertion that these medical records
were admitted into evidence at a previous hearing on a motion for new trial.
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half-brother, when both were beneath the age of fourteen. Finally, appellant testified that
his mother killed a beloved aunt in a car accident, causing the family to ―fall apart.‖
At the close of the hearing, the trial judge made the following comment:
It is a bad aggravated robbery. I’m going to take into account your
information I heard on this date . . . . I’m not sure of the State’s position on
the metal plate. I believe there is a metal plate, stuff’s in the record and I
don’t know what problems mental health caused but aside from that, there
are [a] lot of people in this world—most people with mental health problems
who do not go in places with shotguns and the fact of the matter is there are
aggravated robbers who stand there far away from people not telling them
they’re going to kill them. It’s hard to measure different aggravated robberies
and compare them to one another. I still think this is a very, very bad one.
Thank God it did not go any worse than it did.
The trial judge then sentenced appellant to fifteen years’ imprisonment, out of a
possible five years to life. In his only issue on appeal, appellant contends a new punishment
hearing is required to further explore the mitigating effect of his mental health.
DISCUSSION
Appellant relies principally on Graham v. Florida, 130 S. Ct. 2011 (2010), for the
authority that the trial court should have compelled further investigation into his mental
health. In Graham, the Supreme Court determined that the Eighth Amendment proscribes a
sentence of life without parole for a juvenile offender convicted of a nonhomicide offense.
Id. at 2034. According to appellant, Graham has deeper ramifications. He argues the
Graham Court adopted an unexpected approach to its proportionality review, and that the
decision consequently alters the Eighth Amendment’s sentencing standards so as to require
that trial courts ensure the complete development of mitigating evidence. We find no
support for appellant’s proposition in Graham, but because the argument turns on an
alleged departure from precedent, we begin our analysis with a short description of the
Supreme Court’s Eighth Amendment jurisprudence.
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I.
Proportionality Review Before Graham
The Eighth Amendment prohibits the imposition of cruel and unusual punishments.
U.S. Const. amend. VIII. In addition to proscribing specific ―modes‖ of punishment, see,
e.g., Weems v. United States, 217 U.S. 349, 382 (1910), the Supreme Court has recognized
that the Amendment encompasses a ―narrow proportionality principle‖ that the punishment
should be graduated to the offense. Harmelin v. Michigan, 501 U.S. 957, 997 (1991)
(Kennedy, J., concurring in part and concurring in judgment). Before Graham, cases
implicating this principle developed primarily along two analytical tracks, one for
sentences of capital punishment and the other for a term of years.
A.
Capital Cases
In the capital context, the Supreme Court has required proportionality only to the
extent that the death penalty is confined ―to a narrow category of the most serious
crimes . . . [and] only the most deserving of execution.‖ Atkins v. Virginia, 536 U.S. 304,
319 (2002). Under this categorical approach, the Court has found capital punishment
impermissible for all nonhomicide crimes committed against individuals. E.g., Kennedy v.
Louisiana, 128 S. Ct. 2641, 2664 (2008) (rape of a child); Coker v. Georgia, 433 U.S. 584,
600 (1977) (rape of an adult woman); see also Enmund v. Florida, 458 U.S. 782, 801
(1982) (felony murder where the accused did not kill, intend to kill, or attempt to kill).
Likewise, the Court has found the death penalty categorically disproportionate when
applied to those who, because of their individual characteristics, cannot be counted among
that class of ―worst offenders.‖ E.g., Roper v. Simmons, 543 U.S. 551, 569 (2005)
(juveniles under 18); Atkins, 536 U.S. at 321 (the mentally retarded); Thompson v.
Oklahoma, 487 U.S. 815, 838 (1988) (plurality opinion) (juveniles under 16); Ford v.
Wainwright, 477 U.S. 399, 410 (1986) (the insane).
In reaching these categorical determinations, the Court has examined Eighth
Amendment challenges for the central question of whether the imposition of our ultimate
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sanction comports with ―the evolving standards of decency that mark the progress of a
maturing society.‖ Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion). The
analysis begins with a consideration of the ―objective indicia of society’s standards, as
expressed in legislative enactments and state practice.‖ Roper, 543 U.S. at 563. If the Court
finds a national consensus against the sentencing practice at issue, the Court then exercises
its own independent judgment to determine whether the punishment violates the
Constitution. Id. at 564. This judgment is guided by ―standards elaborated by controlling
precedents‖ and the prevailing principle that the death penalty must be reserved for only
the worst of crimes and the worst of offenders. Kennedy, 128 S. Ct. at 2650.
Even where capital punishment is proportionate in the abstract, the Supreme Court
has required additional safeguards in the method of sentencing. Because the death penalty
is ―unique in its total irrevocability,‖ Furman v. Georgia, 408 U.S. 238, 306 (1972)
(Stewart, J., concurring), the Court has said that justice requires individualized
consideration of mitigating evidence during sentencing. Woodson v. North Carolina, 428
U.S. 280, 305 (1976) (plurality opinion). Accordingly, mandatory death penalty schemes
are no longer tolerated; the sentencer must first determine that capital punishment is
appropriate in light ―of the character and record of the individual offender and the
circumstances of the particular offense.‖ Id. at 304; see also Penry v. Lynaugh, 492 U.S.
302, 319 (1989), abrogated on other grounds by Atkins, 536 U.S. 304; Eddings v.
Oklahoma, 455 U.S. 104, 112–15 (1982); Lockett v. Ohio, 438 U.S. 586, 606–09 (1978)
(plurality opinion).
B.
Noncapital Cases
Proportionality review in the noncapital context has followed a different analytical
approach. Recognizing that a term of years is different in kind from the death penalty, the
Supreme Court has largely deferred to the sentencing schemes devised by the nation’s
legislatures. See Rummel v. Estelle, 445 U.S. 263, 283 n.27 (1980). Instead of applying
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categorical rules, the Court will only consider whether a prison sentence violates the
Eighth Amendment if ―comparison of the crime committed and the sentence imposed leads
to an inference of gross disproportionality.‖ Harmelin, 501 U.S. at 1005 (Kennedy, J.,
concurring in part and concurring in judgment). Upon meeting that threshold inference, the
Court will then compare the challenged sentence against (1) the sentences of other
offenders in the same jurisdiction, and (2) the sentences imposed for the same crime in
other jurisdictions. Id.; see also Solem v. Helm, 463 U.S. 277, 292 (1983). The sentence is
only cruel and unusual if this comparative analysis ―validate[s] an initial judgment that
[the] sentence is grossly disproportionate to [the] crime.‖ Harmelin, 501 U.S. at 1005
(Kennedy, J., concurring in part and concurring in judgment).
Unlike challenges in the capital context, the Eighth Amendment does not similarly
require individualized sentencing for a term of years. Id. at 994–95 (majority opinion). The
Supreme Court has drawn the line at death; for all other punishments—even life without
parole—mandatory sentencing schemes that preclude the presentation of mitigating
evidence are entirely permissible. Id. at 996.
II.
The Effect of Graham
Prior to Graham, the two tracks of the Court’s proportionality jurisprudence
remained strictly discrete. Indeed, the Court refused to apply its categorical approach in the
noncapital context: ―Because a sentence of death differs in kind from any sentence of
imprisonment, no matter how long, our decisions applying the prohibition of cruel and
unusual punishments to capital cases are of limited assistance in deciding the
constitutionality of [a term of years].‖ Rummel, 455 U.S. at 272. Nevertheless, when faced
with the issue of whether juveniles could be sentenced to life without parole for a
nonhomicide offense, the Graham Court declined to follow the proportionality standard
announced in Harmelin, favoring instead the methodology employed in its capital
jurisprudence. Graham, 130 S. Ct. at 2023 (―[T]he appropriate analysis is the one used in
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cases that involved the categorical approach, specifically Atkins, Roper, and Kennedy.‖);
see also id. at 2046 (Thomas, J., dissenting) (―For the first time in its history, the Court
declares an entire class of offenders immune from a noncapital sentence using the
categorical approach it previously reserved for death penalty cases alone.‖).
Appellant does not contest the excessiveness or proportionality of his sentence
under Graham. Rather, he argues that Graham redrew the line in regards to individualized
sentencing because the Court applied the categorical approach—which requires
consideration of the offender’s characteristics and the circumstances of the offense—in a
context where, traditionally, the Constitution has not mandated the factoring of mitigating
evidence. In support of his proposition, appellant directs us to the following passage from
Graham: ―In accordance with the constitutional design, the task of interpreting the Eighth
Amendment remains our responsibility. The judicial exercise of independent judgment
requires consideration of the culpability of the offenders at issue in light of their crimes and
characteristics, along with the severity of the punishment in question.‖ Id. at 2026
(majority opinion) (citation and internal quotation omitted).
Appellant argues that this passage establishes what he deems the ―Graham safety
net function.‖ Under this idea, reviewing courts can only exercise their independent
judgment if they have an adequate record of the individual offender to consider. The
argument follows, therefore, that ―it becomes the trial court’s responsibility to insure [sic]
that mitigating factors are adequately identified and developed for the benefit of the
punishment-stage factfinder.‖ We disagree with appellant’s construction of Graham.
The quoted passage and its reference to the offender’s ―characteristics‖ do not, as
appellant suggests, address the need for mitigating evidence to be fully developed during
sentencing. Instead, the passage clearly alludes to the second step in the Court’s categorical
analysis. Before Graham, that step tested the appropriateness of the death penalty by
ensuring either (1) the crime committed was a homicide offense, or (2) the offender was a
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member of the class ―most deserving of execution.‖ Atkins, 536 U.S. at 319. Not
surprisingly, the quoted passage is situated at the beginning of the Court’s discussion of
whether juveniles, as a class, are deserving of the second most severe punishment under the
law. See Graham, 130 S. Ct. at 2026–30 (examining whether legitimate penological goals
are served by a sentence of life without parole for juvenile offenders). Nowhere else does
the Court elaborate on the meaning of ―characteristics‖ or intimate that its analysis is
influenced by any factor other than the offender’s juvenile status. We find no reason to
infer from the Court’s analysis that trial courts must scrutinize the universe of mitigating
factors that might remain undiscovered in the case.
The procedural facts of Graham support our understanding of its limited
implications. Because the offender in Graham was not punished pursuant to a mandatory
sentencing scheme, he had the opportunity to produce evidence of mitigating
circumstances during his sentencing hearing. See id. at 2018–19. Accordingly, the Court
was not required to revisit the question of whether the Eighth Amendment mandates
individualized consideration for a term of years sentence. Cf. Harmelin, 501 U.S. at
994–95 (rejecting claim that mandatory life sentence required consideration that offender
had no prior felony record). Therefore, discussion of a constitutional rule regarding
mitigating evidence is conspicuously absent from the decision, and we do not find merit in
the argument that Graham implicitly established appellant’s proposed rule.
III.
Texas Statutory Duty
Although appellant has not argued any statutory basis for relief, we note that the
Code of Criminal Procedure contains the following mechanism for ensuring that a
defendant’s mental condition is adequately considered during sentencing:
A presentence investigation conducted on any defendant convicted of a
felony offense who appears to the judge through its own observation or on
suggestion of a party to have a mental impairment shall include a
psychological evaluation which determines, at a minimum, the defendant’s
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IQ and adaptive behavior score. The results of the evaluation shall be
included in the report to the judge as required by Subsection (a) of this
section.
Tex. Code Crim. Proc. Ann. art. 42.12, § 9(i) (West 2010).
Appellant’s presentence investigation report does not indicate that a psychological
evaluation was ever conducted, and appellant does not specifically complain on appeal that
the trial court erred in failing to order one. Assuming arguendo that appellant has raised
any claim involving his right to a psychological evaluation, we would still conclude that
appellant is not entitled to relief under the statute. Under the presumption of regularity, we
must presume that the trial court would have ordered a psychological evaluation had it
observed that appellant was suffering from a mental impairment. Cf. Wright v. State, 873
S.W.2d 77, 80 (Tex. App.—Dallas 1994, pet. ref’d). Though the record may contain
evidence that appellant has a metal plate in his head, the trial court claimed that it was
unable to attribute the cause of the offense to appellant’s mental health. On these facts, we
do not question whether the trial court had a duty to order an evaluation sua sponte.
Likewise, we do not question whether this duty arose upon the ―suggestion of a party.‖ The
right to a psychological evaluation may be forfeited, just as the right to a presentence
investigation generally. Summers v. State, 942 S.W.2d 695, 696–97 (Tex. App.—Houston
[14th Dist.] 1997, no pet.). To preserve error, a party must specifically object to the
omission of a psychological evaluation from the presentence investigation report. Nguyen
v. State, 222 S.W.3d 537, 542 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d). Because
appellant only challenged inaccuracies in the report, rather than objecting to the trial
court’s failure to order a psychological evaluation, any error was waived on appeal. Id.
CONCLUSION
Appellant argues that he is entitled to a new punishment hearing because the trial
court ignored its duty to ensure that mitigating evidence of his mental health was fully
developed. Because we believe no such duty exists under Graham and because appellant
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has waived any relief under Article 42.12, we overrule appellant’s sole issue and affirm the
judgment of the trial court.
/s/
Tracy Christopher
Justice
Panel consists of Justices Seymore, Boyce, and Christopher.
Publish — TEX. R. APP. P. 47.2(b).
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