Demouchette and his brother entered an Inwood-area
Pizza Hut on Oct. 17, 1976. They fatally shot Scott Sorrell, 19, and
Robert White, 20, and injured the manager before taking stereo
equipment and a sack of change.
Demouchette was violent behind bars, and once
stabbed another inmate to death. His brother is serving a life
Texas Executes 'Meanest' Killer
The New York Times
September 23, 1992
who stabbed a fellow prisoner to death and wounded three guards during
his 15 years on death row was executed by injection early today for
killing two men in a 1976 holdup.
The inmate, James Demouchette, was executed after the United States
Supreme Court twice declined to intervene. The 37-year-old inmate had
no final statement, but his lawyers had argued that psychological
tests describing him as a sociopath should have been introduced at his
Mr. Demouchette and his brother, Christopher, now 34, were
convicted in the shooting deaths of an assistant manager and another
man at a Houston pizza restaurant on Oct. 17, 1976.
A third shooting victim, the manager, Geoff Hambrick, slumped over
a table and pretended to be dead. He survived to testify against the
Demouchettes. The younger Mr. Demouchette was sentenced to life in
Mr. Hambrick testified that the brothers shot him, Scott Sorrell,
19, who was Mr. Hambrick's assistant manager, and Robert White, 20, in
the head with a revolver before ransacking the back office, taking a
sack of change and some stereo equipment.
Mr. Demouchette, who called himself Doom, was described in turn by
prison officials as the meanest man on death row.
He was convicted of fatally stabbing a fellow death row inmate in
1983 and was sentenced to 15 years. He also beat and raped another
inmate, stabbed at least two others, twice set fire to his cell and
stabbed two guards searching his cell, prison records show.
Mr. Demouchette became the 10th person to be die by lethal
injection in Texas this year. He also became the 52d Texas inmate and
the 182d inmate in the nation to be executed since 1976, when the
Supreme Court allowed states to resume the use of the death penalty.
972 F.2d 651
James Demouchette, Petitioner-Appellant,
James A. Collins, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-Appellee.
Federal Circuits, 5th Cir.
September 21, 1992
Appeal from the United States District Court for
the Southern District of Texas.
Before POLITZ, Chief Judge, HIGGINBOTHAM and DUHE,
POLITZ, Chief Judge:
James Demouchette, whose execution has been set by
the Texas authorities for September 22, 1992, seeks federal habeas
relief and a stay of execution. The district court denied the habeas
request, denied a certificate of probable cause and recalled its
previously issued stay of execution. In his motions for CPC and for a
stay of execution Demouchette urges error under Penry v. Lynaugh.
Concluding that the disposition of this matter is directed by our
recent en banc decision in Graham v. Collins,
we deny both the motion for CPC and the motion for stay of execution.
As detailed by the Texas Court of Criminal Appeals,
Demouchette and his brother Chris entered a Pizza Hut restaurant in
Houston, Texas around midnight of October 17, 1976, shortly before
closing. Manager Geoffrey Hambrick locked up and the Demouchettes
joined Hambrick, Scott Sorrell, the assistant manager and an
acquaintance of one of the brothers, and Chuck White, a friend of
Sorrell's, at a booth and table.
After a few minutes of idle conversation Hambrick,
hearing White say, "I'd think twice before I pulled that trigger,"
turned to see Demouchette shoot White in the head with a large caliber
revolver. Demouchette then shot Hambrick. The bullet struck him on the
side of the head. Hambrick slumped over and pretended to be dead; he
retained consciousness. A third shot rang out and Hambrick heard what
he presumed to be Sorrell falling.
The Demouchettes ransacked the back room. Returning
to the dining room where Sorrell was making gurgling sounds,
Demouchette told Chris, "Get the keys." There was another shot and
Sorrell's gurgling ceased. The keys were taken from Hambrick and the
Demouchettes left. Hambrick called the police.
Sorrell died at the scene; White died shortly
thereafter. Hambrick recovered from his wounds. The cash register had
been emptied and stereo equipment was missing.
A jury convicted Demouchette of the capital murder
of Sorrell under Texas Penal Code § 19.03(a)(2). During the penalty
phase of his trial, Demouchette presented expert testimony that he
suffered from antisocial personality disorder, a chronic abnormality
marked by impulsivity, an inability to learn from experience, and
callousness towards others. Although both mental health experts called
by Demouchette testified that his acts of violence resulted from
impulse rather than plan, the jury answered the first special issue,
whether Demouchette had killed deliberately, in the affirmative and
likewise answered the second special issue concerning future
dangerousness. In accordance with the Texas statute, the judge
sentenced Demouchette to death.
The Texas Court of Criminal Appeals affirmed the conviction and
Demouchette invoked 28 U.S.C. 2254 and sought
habeas relief. The state expressly waived exhaustion of collateral
state remedies. The district court conducted an evidentiary hearing at
which Demouchette's trial attorney testified about mitigating evidence
which he decided not to present because of the structure of the Texas
death penalty statute. The district court denied relief, denied a
certificate of probable cause, and vacated an earlier granted stay of
execution. Demouchette timely sought CPC and a stay of execution.
When a district court denies a certificate of
we lack jurisdiction to decide the appeal unless we
first decide to grant one. We may issue a certificate of probable
cause only when the petitioner makes a substantial showing of the
denial of a federal right. To make a substantial showing, the
petitioner must demonstrate that the issues are debatable among
jurists of reason.
The issues raised by Demouchette are no longer
debatable before this court; they are foreclosed by circuit precedent.
Demouchette's principal argument is that the Texas
death penalty statute was unconstitutional as applied to him because
the jury was unable, without a special instruction, to give full
mitigating effect to his evidence of antisocial personality disorder.
Invoking Penry, Demouchette contends that his personality disorder had
relevance to his moral culpability beyond his propensity to act
without deliberation. He further notes that the disorder functioned
only as an aggravating factor with respect to the probability of
recidivism. Under these circumstances, Demouchette maintains, Penry
requires the giving of a special instruction, which was denied in his
Applying Penry's teachings in Graham, sitting en
banc we stated:
Penry clearly stands for the proposition that
merely because the mitigating evidence has any relevance to a negative
answer to one of the special issues does not necessarily suffice in
all cases to sustain application of the Texas statute. Penry's
evidence has some such relevance to the first issue. The more
difficult question is whether the Texas statute can operate as written
in any case where the mitigating evidence, though all clearly relevant
to support a negative answer to one or more of the issues,
nevertheless also has any mitigating relevance whatever beyond the
scope of the special issues.
Penry can fairly be read as precluding use of the
Texas statutory scheme in any such situation. But, Penry can also
fairly be read as addressing only a situation where some major
mitigating thrust of the evidence is substantially beyond the scope of
any of the issues. That, indeed, was the case in Penry, where as to
the third issue the mitigating evidence was all essentially irrelevant,
as to the second issue it was only affirmatively harmful to the
defense, and as to the first issue its favorable relevance was
essentially minor but its "major thrust" was beyond the scope of the
In Graham we adopted the latter reading of Penry,
holding that a special instruction was required only if a "major
of the evidence was substantially beyond the scope of all the special
Here, the jury was able to give mitigating effect
to Demouchette's personality disorder evidence in deciding whether he
acted deliberately. A "major thrust" of his expert testimony was that
an antisocial personality acts on impulse rather than deliberation.
Although a reasonable juror might have found that this evidence had
independent mitigating value in reducing moral culpability, we cannot
say with assurance that a major mitigating thrust of the evidence was
substantially beyond the reach of the deliberateness issue.
Accordingly, Demouchette's argument that he was entitled to a special
jury instruction is foreclosed by Graham.
Demouchette further contends that the operation of
the Texas death penalty scheme so hampered his trial attorneys in
developing a mitigation defense as to deprive him of effective
assistance of counsel. To the extent this is a claim of constructive
denial of sixth amendment rights, we rejected this argument in May v.
that a rule allowing such ineffective assistance claims would be
impossible to cabin because tactical decisions concerning the type of
evidence to present in sentencing proceedings "are always channelled
by the requirements of the statute under which the state proceeds."
To the extent the argument would fault trial counsel's decision to
forego developing mitigating evidence that might also be hurtful, it
offers no more than the eighth amendment contention which likewise is
For these reasons, the application for a
certificate of probable cause and the motion for stay of execution are