Morris v. State, 940 S.W.2d 610 (Tex.Cr.App.
1996) (Direct Appeal).
Defendant was convicted by 339th District Court,
Harris County, Caprice Cosper, J., jury of capital murder and was
sentenced to death. On direct appeal, the Court of Criminal
Appeals, Keller, J., held that: (1) denial of defendant's Batson
challenge to peremptory juror strike was not clearly erroneous;
(2) failure to inform jury of minimum time defendant would serve
if sentenced to life was irrelevant to future dangerousness, and
furthermore did not violate Federal or Texas Constitution; (3)
defendant did not have right to present as “mitigating evidence”
the fact that state did not seek death penalty against two
codefendants; (4) special issue of mitigation does not violate
Eighth Amendment on basis of assigning no burden of proof or
allowing jury excessive discretion; and (5) due process did not
require appellate review of whether death sentence was
disproportionate to sentences in other capital cases. Affirmed.
In December of 1993, appellant was convicted of
capital murder under Texas Penal Code 19.03(a)(2). The offense,
the murder of James Moody Adams in the course of robbery, was
committed in May of 1991. The trial court submitted to the jury
the special issues set out in Article 37.0711, subsections
3(b)(1), (2) and (3)(e) of the Texas Code of Criminal Procedure.
FN1 In accordance with the jury's answers to those issues, the
trial court assessed the appellant's punishment at death. Article
37.0711(3)(j) provides direct appeal to this Court. Appellant
raises nineteen points of error. We will affirm.
FN1. All references to Articles are to the
Texas Code of Criminal Procedure unless otherwise provided.
1. BATSON CHALLENGE
In points of error one and two, appellant
asserts that the trial court erred in overruling his objection to
the State's peremptory challenge of prospective juror Robert
Dreannan. Appellant contends that the challenge was racially
motivated in violation of Batson v. Kentucky, 476 U.S. 79, 106
S.Ct. 1712, 90 L.Ed.2d 69 (1986).
We review the record of the Batson hearing and
the voir dire examination in the light most favorable to the trial
court's ruling. Adanandus v. State, 866 S.W.2d 210, 223 (Tex.Crim.App.1993);
Cantu v. State, 842 S.W.2d 667, 689 (Tex.Crim.App.1992), cert.
denied, 509 U.S. 926, 113 S.Ct. 3046, 125 L.Ed.2d 731 (1993). We
will not disturb a trial court's ruling on a Batson issue unless
it is clearly erroneous. Id.
On his jury questionnaire, venireman Dreannan
indicated that he was strongly in favor of the death penalty.
During voir dire however, he said he had spent a sleepless night
worrying about his answer to that question. When asked whether
youth would improperly factor into his consideration of the
punishment issues, venireman Dreannan refused to answer:
Q: [A]re you saying that youth-you would never,
never return a verdict that would cause a young person to be put
to death? A: That's too hard of a question to ask. I'm not going
on it because I have an 18-year-old son.
At the Batson hearing, the prosecutor said he
thought venireman Dreannan had been deceptive in answering the
youth question. The trial court noted for the record that its
observations of Dreannan's demeanor were consistent with the
prosecutor's explanation. She also commented that the prosecutor
had seated a large number of blacks in a recently completed
capital murder trial. The trial judge found the prosecutor's
reasons to be racially neutral and denied the Batson challenge.
According due deference to the decision of the trial court, we
find that its decision was not clearly erroneous. Point of error
one is overruled.
In point of error two, appellant claims the
trial judge improperly based her ruling upon the absence of
purposeful discrimination by this prosecutor in a separate
criminal trial. A ruling on a Batson objection is a credibility
determination. Because the trial judge determines the issue of the
prosecutor's credibility, it is not error for the court to
consider its past experiences with a prosecutor in determining his
credibility. See Fowler v. State, 863 S.W.2d 187, 189 (Tex.App.-Houston
[14th] 1993, pet. ref'd). Point two is overruled.
2. EFFECT OF PAROLE
In points of error three through eight,
appellant asserts that the trial court erred in disallowing
questions on voir dire concerning the minimum time a convicted
capital murderer sentenced to life in prison must serve before he
is eligible for parole. Appellant claims this information is
relevant to the issue of future dangerousness. He further asserts
that the trial court violated both the United States and Texas
Constitutions in refusing to allow such questions on voir dire.
Appellant claims he should have been allowed to
inform prospective jurors that if sentenced to life, he would
serve a minimum of 15 years before becoming eligible for parole.
He asserts that without this knowledge, jurors might entertain the
mistaken belief that he would be released much earlier, and
respond by handing down a sentence of death instead of life.
Appellant contends in point of error three that knowledge of the
parole law is therefore necessary to an accurate determination of
This Court has held that parole is not a matter
for a jury's consideration in a capital murder trial. Smith v.
State, 898 S.W.2d 838, 846 (Tex.Crim.App.) (plurality opinion),
cert. denied 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995);
Broxton v. State, 909 S.W.2d 912, 919 (Tex.Crim.App.1995); Jones
v. State, 843 S.W.2d 487, 495 (Tex.Crim.App.1992). As to future
dangerousness, we have held that in deciding whether a defendant
poses a continuing threat to society, a jury considers not only
free society, but also prison society. Because the length of
appellant's incarceration does not reduce or increase his future
dangerousness, it is not relevant to that issue. Id at p. 495.
Point of error three is overruled.
Appellant argues in points of error four and
five that Due Process and the Eighth Amendment require that a jury
be informed of his “parole ineligibility.” These issues have been
resolved contrary to appellant's position. Smith, 898 S.W.2d at
853; Broxton, 909 S.W.2d at 919. Points of error four and five are
In points of error six through eight appellant
claims the trial court's refusal to inform the jury about parole
violated Article I, Sections 10, 13 and 19 of the Texas
Constitution. Appellant points out that this Court can interpret
the Texas Constitution more broadly than the Federal Constitution.
See Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991).
Appellant argues that the Texas Constitution guarantees a party
the right to use his peremptory and for-cause challenges
intelligently. As appellant points out, a voir dire question is
proper if its purpose is to disclose a juror's views on an issue
applicable to the case. See, e.g., Shipley v. State, 790 S.W.2d
604, 608 (Tex.Crim.App.1990). A Texas jury must determine future
dangerousness. Parole ineligibility as it relates to future
dangerousness is thus, appellant argues, a proper subject for voir
As noted above, parole is not a matter for a
jury's consideration in a capital murder trial. Broxton, 909 S.W.2d
at 919. For this reason, parole ineligibility is not “an issue
applicable to the case,” and questions about it are not proper
questions. The Texas Constitution thus does not give an accused
the right to ask prospective jurors in a capital murder trial
questions regarding parole ineligibility. Points six through eight
3. MITIGATING EVIDENCE
In point of error nine, appellant contends that
the trial court erred in excluding evidence that the State chose
not to seek the death penalty against his two co-defendants.
Appellant claims his co-defendants' lighter punishment is
constitutionally relevant mitigating evidence which should have
been admitted during the punishment phase of trial.
Appellant argues that his personal culpability
in the murder was equal or similar to that of his co-defendants
who did not receive the death penalty. In response to this we must
point out that appellant's role in the crime was not identical to
his co-defendants' roles. The evidence shows that while three men
were involved in the robbery, it was appellant who held the gun
and shot the victim four times. In any case, it is possible for
two people who have committed identical murders to receive
different sentences based on differing degrees of mitigating
character and background evidence.
Moreover, this Court has held that evidence of
a co-defendant's conviction and punishment is not included among
the mitigating circumstances which a defendant has a right to
present. In Evans v. State, 656 S.W.2d 65, 67 (Tex.Crim.App.1983),
we stated: “We do not see how the conviction and punishment of a
co-defendant could mitigate appellant's culpability in the crime.
Each defendant should be judged by his own conduct and
participation and by his own circumstances.” Id.
Appellant relies upon Parker v. Dugger, 498
U.S. 308, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991), in which the
United States Supreme Court recognized evidence that the
defendant's accomplices were not sentenced to death as part of the
mitigating evidence which was admitted at trial. However, Parker
did not address whether evidence of disparate sentencing is
mitigating evidence which must be considered under the standard
set out in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d
973 (1978). The punishment which appellant's co-defendants
received relates neither to appellant's character, nor to his
record, nor to the circumstances of the offense. Point of error
nine is overruled.
4. SUFFICIENCY OF THE EVIDENCE
In point of error ten, appellant asserts that
the evidence was insufficient to support the jury's negative
finding on the mitigation issue. Because the weighing of
mitigating evidence is a subjective determination undertaken by
each juror, we will not review mitigating evidence for sufficiency.
Colella v. State, 915 S.W.2d 834 (Tex.Crim.App.1995). Point of
error ten is overruled.
5. THE SPECIAL ISSUES
In point of error nineteen, appellant claims
the mitigation issue violates the Eighth Amendment to the United
States Constitution because “meaningful appellate review of the
jury's answer to that special issue is impossible.” We have
recently decided this contention adversely to appellant's position.
McFarland v. State, 928 S.W.2d 482 (Tex.Crim.App.1996) at 498-500
(Keller, J. concurring at 524-525). Point of error nineteen is
In point of error fourteen, appellant claims
Article 37.0711(3)(e) is unconstitutional under the Eighth and
Fourteenth Amendments to the United States Constitution.
Specifically, appellant argues that the statute is
unconstitutional because it assigns no burden of proof, burden of
persuasion or standard of proof to the issue of mitigation. We
have already held that the Eighth Amendment does not require that
the State be assigned the burden of proof on Penry issues. Barnes
v. State, 876 S.W.2d 316, 330 (Tex.Crim.App.), cert. denied, 513
U.S. 861, 115 S.Ct. 174, 130 L.Ed.2d 110 (1994). Because the
Eighth Amendment does not require limitations on a jury's
discretion to consider mitigating evidence, see McFarland, 928 S.W.2d
at 518-519, the Constitution does not require a burden of proof to
be placed upon anyone. Point of error fourteen is overruled.
Appellant complains in point of error thirteen
that the mitigation issue violates the Eighth and Fourteenth
Amendments to the United States Constitution because it “permits
the open-ended discretion” condemned in Furman v. Georgia, 408
U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). However, the
United States Supreme Court has held that allowing a jury the
discretion to recommend mercy after considering mitigating
evidence is not unconstitutional. Penry v. Lynaugh, 492 U.S. 302,
319, 109 S.Ct. 2934, 2947, 106 L.Ed.2d 256 (1989). Furthermore, we
have recently decided this issue adversely to appellant's position.
McFarland v. State, 928 S.W.2d at 520. Point of error thirteen is
In point of error twelve, appellant argues that
the statutory definition of mitigating evidence is
unconstitutional under the Eighth Amendment because it limits the
jury's consideration of mitigating factors to those reflecting his
“moral blameworthiness.” Appellant claims the statutory language
prohibits consideration of mitigating evidence which has no
bearing on moral culpability, such as a history of kindness,
religious devotion or special ability in some field.
Appellant has presented no such evidence in his
case. Appellant presented evidence of past abuse, mental illness,
intoxication, drug addiction and remorse, all of which reflect
upon the issue of moral blameworthiness. Appellant also presented
evidence that he benefitted from the structured environment of a
boot camp. This evidence pertains to the future dangerousness
issue. Because appellant has not presented any evidence with
mitigating impact beyond the scope of the special issues, he has
not been sentenced to death in violation of the Eighth Amendment.
Burks v. State, 876 S.W.2d 877, 910 (Tex.Crim.App.1994); Lane v.
State 822 S.W.2d 35, 38 (Tex.Crim.App.1991), cert. denied, 504
U.S. 920, 112 S.Ct. 1968, 118 L.Ed.2d 568 (1992). Point of error
twelve is overruled.
In point of error eighteen, appellant asserts
that Article 37.0711(3)(i), which prohibits informing a jury that
failure to reach a unanimous verdict on any of the punishment
issues will result in a life sentence, is unconstitutional.
Specifically, appellant claims the statute violates the Eighth
Amendment to the United States Constitution.
We have previously rejected this argument. In
Rousseau v. State, 855 S.W.2d 666, 687 (Tex.Crim.App.1993), we
held that preventing a jury from knowing the effect of its answers
to the punishment issues does not subject a defendant to cruel and
unusual punishment under the Eighth Amendment. Point of error
eighteen is overruled.
6. APPLICATION OF THE DEATH PENALTY
In point of error eleven, appellant contends
that the due process clause of the Fourteenth Amendment requires
this Court to conduct a “proportionality review” with regard to
the appellant's death sentence. Appellant asserts that this Court
should consider whether his sentence is excessive or
disproportionate compared to sentences imposed in similar capital
cases. Appellant concedes that in Pulley v. Harris, 465 U.S. 37,
104 S.Ct. 871, 79 L.Ed.2d 29 (1984), the United States Supreme
Court rejected this argument when it was raised under the Eighth
Amendment. Appellant claims that the argument he sets forth
requires a different holding under the Fourteenth Amendment. He
relies on Honda Motor Company, Ltd. v. Oberg, 512 U.S. 415, 114
S.Ct. 2331, 129 L.Ed.2d 336 (1994), in which the United States
Supreme Court held that due process required a state to afford
appellate review of the excessiveness of punitive damage verdicts.
Honda dealt with civil procedures, which by
their nature operate under vastly different due process principles
than do criminal cases in general and capital punishment cases in
particular. See, e.g., In re Winship 397 U.S. 358, 90 S.Ct. 1068,
25 L.Ed.2d 368 (1970) (due process requirements in criminal
proceedings) and Gardner v. Florida, 430 U.S. 349, 357, 97 S.Ct.
1197, 1204, 51 L.Ed.2d 393 (1977)(death is different). Honda does
not stand for the proposition that due process requires
comparative proportionality reviews of all civil judgments, much
less, all criminal judgments; at most it stands for the
proposition that due process requires some minimal safeguard
ensuring that individual judgments are not excessive or
disproportionate. Honda leaves open the form these safeguards
might take. Honda held that a comparative proportionality review
was required only because Oregon had no alternative means of
safeguarding against excessive or disproportionate judgments. 512
U.S. 415, 431-433, 114 S.Ct. 2331, 2340-2341, 129 L.Ed.2d 336,
The federal Constitution requires more than the
minimal safeguard of a comparative proportionality review to
ensure the fair imposition of the death penalty. Because death is
qualitatively different from any other punishment, the federal
Constitution requires the highest degree of reliability in the
determination that it is the appropriate punishment. E.g., Woodson
v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991-2992, 49
L.Ed.2d 944 (1976); Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct.
2950, 2958, 49 L.Ed.2d 929 (1976); Furman v. Georgia, 408 U.S.
238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (decided in conjunction
with Branch v. Texas ). To ensure this reliability, the United
States Constitution imposes requirements of proportionality of
offense to punishment, of a narrowly defined class of death
eligible defendants, and of an opportunity for each juror to
consider and give effect to circumstances mitigating against the
imposition of the death sentence. See Tuilaepa v. California, 512
U.S. 967, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994). In short, the
due process principles governing the imposition of a sentence of
death are distinct and more onerous than those governing the
imposition of a civil judgment. Compare Tuilaepa to Honda.
It is for good reason, therefore, that the
United States Supreme Court has not held that due process requires
a comparative proportionality review of the sentence of death, but
instead has held that such a review would be “constitutionally
superfluous.” Pulley, 465 U.S. at 49, 104 S.Ct. at 879. See also
Jurek, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976)(upholding
our capital punishment scheme even without a comparative
proportionality review). Point of error eleven is overruled.
In points of error fifteen through seventeen,
appellant claims the death penalty has been arbitrarily imposed in
violation of the Eighth Amendment, the Equal Protection Clause of
the Fourteenth Amendment, and Article I, Sec. 13 of the Texas
Constitution. Appellant maintains that the existence over the
years of “radically different” sentencing schemes has resulted in
disparate sentencing of capital defendants. We have decided
appellant's federal constitutional claims adversely to his
position. Lawton v. State, 913 S.W.2d 542, 559-560 (Tex.Crim.App.1995).
Appellant also makes this challenge under Art.
I, Sec. 13 of the Texas Constitution. Appellant reminds us that we
can interpret the Texas Constitution more expansively than the
federal Constitution and notes that the Texas Constitution
proscribes cruel “or” unusual punishment. He refers us, without
any elaboration, to a California case that attributes significance
to a similar state constitutional proscription. But beyond
claiming that it is “obvious,” Appellant does not explain why he
believes the Texas Constitution offers broader protection than the
United States Constitution. Accordingly, we overrule points of
error fifteen through seventeen.
The judgment is affirmed.
CLINTON, J., dissents. MALONEY, J., concurs in
BAIRD, Judge, dissenting.
Two separate decisions are involved in any
death sentence: the eligibility decision and the selection
decision. Tuilaepa v. California, 512 U.S. 967, 971, 114 S.Ct.
2630, 2634, 129 L.Ed.2d 750 (1994). To be eligible for the death
penalty, the defendant must be convicted of a crime for which the
death penalty is a proportionate punishment. Ibid.; and, Coker v.
Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). In
Texas, only those convicted of an offense under Tex. Penal Code
Ann. § 19.03 are eligible for capital punishment. The second
decision, the selection decision, relates to the sentencer's
determination whether a death eligible defendant should, in fact,
receive the death penalty. The selection decision requires
individualized sentencing and must be expansive enough to
accommodate all relevant mitigating evidence so as to assure an
assessment of the defendant's culpability. Tuilaepa, 512 U.S. at
973, 114 S.Ct. at 2635. In Texas, the selection decision is
determined by the jury's answers to the statutory punishment
issues of Tex.Code Crim.Proc.Ann. art. 37.071.
The State must ensure that the process is
neutral and principled so as to guard against bias or caprice.
Tuilaepa, 512 U.S. at 973, 114 S.Ct. at 2635. See also, Gregg v.
Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859
(1976) (procedures must “minimize the risk of wholly arbitrary and
capricious action”). To ensure this neutral and principled process,
both decisions must be subject to appellate review. Furman v.
Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (decided
in conjunction with Branch v. Texas, 408 U.S. 238, 92 S.Ct. 2726,
33 L.Ed.2d 346 (1972)); and, Parker v. Dugger, 498 U.S. 308, 321,
111 S.Ct. 731, 739, 112 L.Ed.2d 812 (1991). This is so because
meaningful appellate review of death sentences promotes
reliability and consistency. Clemons v. Mississippi, 494 U.S. 738,
749, 110 S.Ct. 1441, 1448, 108 L.Ed.2d 725 (1990).
Thus it may be said that under the Eighth
Amendment the process for arriving at a death sentence is akin to
a three legged stool: the first leg is whether the defendant is
eligible to receive capital punishment; the second leg is whether
the jury finds him deserving of capital punishment; and the third
leg is whether the eligibility and selection decisions are subject
to appellate review. Should any leg of this stool fail, the entire
scheme would be rendered unconstitutional.
Our capital sentencing scheme passed
constitutional muster in Jurek v. Texas, 428 U.S. 262, 96 S.Ct.
2950, 49 L.Ed.2d 929 (1976). As a part of its holding, the Supreme
Court stated: ... By providing prompt judicial review of the
jury's decision in a court with statewide jurisdiction, Texas has
provided a means to promote the evenhanded, rational, and
consistent imposition of death sentences under law. Because this
system serves to assure that sentences of death will not be
“wantonly” or “freakishly” imposed, it does not violate the
Constitution. Id., 428 U.S. at 276, 96 S.Ct. at 2958.
Since Jurek, our capital sentencing scheme has
been modified to include Tex.Code Crim.Proc.Ann. art. 37.071, §
2(e) which provides for submission of the following punishment
Whether, taking into consideration all of the
evidence, including the circumstances of the offense, the
defendant's character and background, and the personal moral
culpability of the defendant, there is a sufficient mitigating
circumstance or circumstances to warrant that a sentence of life
imprisonment rather than a death sentence be imposed.
Article 37.071, § 2(e) was enacted following
Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256
(1989), which held the Texas capital sentencing scheme must
provide the jury with a vehicle to express its “reasoned moral
response” to mitigating evidence in reaching its selection
decision. Because of its source, the § 2(e) punishment issue is
commonly referred to as “the Penry issue.” In conjunction with
this issue, the Legislature enacted Tex.Code Crim.Proc.Ann. art.
44.251 which provides: (a) The court of criminal appeals shall
reform a sentence of death to a sentence of confinement in the
institutional division of the Texas Department of Criminal Justice
for life if the court finds that there is insufficient evidence to
support ... a negative answer to an issue submitted to a jury
under Section 2(e), Article 37.071, or Section 3(e), Article
37.0711, of this code.FN1
FN1. All emphasis is supplied unless otherwise
indicated. The question presented by appellant's tenth point of
error is whether the Eighth Amendment and art. 44.251 impose upon
this Court the duty to review the sufficiency of the evidence to
support a negative answer to the Penry issue. For the following
reasons, I believe we have such a duty and accordingly dissent to
the majority's failure to reach the merits of appellant's tenth
point of error.
As noted earlier, the Supreme Court has
consistently held the decisions which give rise to a death
sentence must be subject to appellate review. See, e.g., Furman,
408 U.S. at 310, 92 S.Ct. at 2762; Lockett v. Ohio, 438 U.S. 586,
98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Eddings v. Oklahoma, 455
U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Gregg v. Georgia,
428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Jurek, 428
U.S. at 276, 96 S.Ct. at 2958; Penry v. Lynaugh, 492 U.S. 302, 109
S.Ct. 2934, 106 L.Ed.2d 256 (1989); Proffitt v. Florida, 428 U.S.
242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Clemons v. Mississippi,
494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990). In Texas,
the selection decision encompasses two principal punishment
issues.FN2 First is the issue of “future dangerousness.” FN3
Second is the Penry issue which asks whether, taking into
consideration all of the evidence, including the circumstances of
the offense, the defendant's character and background, and the
personal moral culpability of the defendant, there is a sufficient
mitigating circumstance or circumstances to warrant that a
sentence of life imprisonment rather than a death sentence be
imposed. FN2. The punishment issue provided by Tex.Code
Crim.Proc.Ann. art. 37.071, § 2(b)(2) is not relevant to the
FN3. To determine whether the evidence is
sufficient to support an affirmative answer to the future
dangerousness punishment issue we consider the following
non-exclusive list of factors: 1. the circumstances of the capital
offense, including the defendant's state of mind and whether he
was working alone or with other parties; 2. the calculated nature
of the defendant's acts; 3. the forethought and deliberateness
exhibited by the crime's execution; 4. the existence of a prior
criminal record, and the severity of the prior crimes; 5. the
defendant's age and personal circumstances at the time of the
offense; 6. whether the defendant was acting under duress or the
domination of another at the time of the commission of the offense;
7. psychiatric evidence; and, 8. character evidence. Keeton v.
State, 724 S.W.2d 58, 61 (Tex.Cr.App.1987); and, Dinkins v. State,
894 S.W.2d 330, 358 (Tex.Cr.App.1995).
In Clemons, supra, the Supreme Court spoke at
length about the necessity of meaningful appellate review. The
Court noted that the process of appellate courts reweighing of
evidence was consistent with pursuit of the Eighth Amendment's
twin objectives of measured, consistent application of the death
penalty and fairness to the accused. Id., 494 U.S. at 748, 110
S.Ct. at 1448 (citing Eddings, supra; and, Lockett, supra). The
We see no reason to believe that careful
appellate weighing of aggravating against mitigating circumstances
in cases such as this would not produce “measured consistent
application” of the death penalty or in any way be unfair to the
defendant. It is a routine task of appellate courts to decide
whether the evidence supports a jury verdict and in capital cases
in “weighing” States, to consider whether the evidence is such
that the sentencer could have arrived at the death sentence that
was imposed. And, as the opinion below indicates, a similar
process of weighing aggravating and mitigating evidence is
involved in an appellate court's proportionality review.
Furthermore, this Court has repeatedly emphasized that meaningful
appellate review of death sentences promotes reliability and
consistency. See, e.g., Gregg v. Georgia, supra, 428 U.S., at
204-206, 96 S.Ct., at 2939-2941 (joint opinion of Stewart, Powell,
and Stevens, JJ.); Proffitt v. Florida, 428 U.S. 242, 253, 96 S.Ct.
2960, 2967, 49 L.Ed.2d 913 (1976) (joint opinion of Stewart,
Powell, and Stevens, JJ.); Dobbert v. Florida, 432 U.S. 282,
295-296, 97 S.Ct. 2290, 2299-2300, 53 L.Ed.2d 344 (1977); Jurek v.
Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929
(1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). It is
also important to note that state supreme courts in States
authorizing the death penalty may well review many death sentences
and that typical jurors, in contrast, will serve on only one such
case during their lifetimes.
We accordingly see nothing in appellate
weighing or reweighing of the aggravating and mitigating
circumstances that is at odds with contemporary standards of
fairness or that is inherently unreliable and likely to result in
arbitrary imposition of the death sentence. Clemons, 494 U.S. at
748-750, 110 S.Ct. at 1448-1449.
The Clemons Court pointedly noted that failure
to perform meaningful appellate review would result in an
automatic rule of affirmance that would be invalid under Lockett,
supra, and Eddings, supra, “for it would not give defendants the
individualized treatment that would result from actual reweighing
of the mix of mitigating and aggravating circumstances.” Clemons,
494 U.S. at 752, 110 S.Ct. at 1450.FN4 See also, Parker v. Dugger,
498 U.S. 308, 321-322, 111 S.Ct. 731, 739-740, 112 L.Ed.2d 812
(1991) (Appellate review of mitigating evidence by the Florida
Supreme Court was so deficient as to be arbitrary.).
FN4. Clemons and Parker deal with the
Mississippi and Florida capital sentencing schemes, respectively.
Those schemes differ from that in Texas where the aggravating
circumstance(s) is incorporated in the eligibility decision while
in Mississippi and Florida the statutory aggravating circumstances
are considered in the selection decision. Additionally, unlike
Mississippi and Florida, Texas does not provide the jury with a
non-exclusive list of mitigating circumstances. Mississippi and
Florida are known as “weighing” states because the jurors and
appellate courts are required to engage in the weighing process to
determine whether the mitigating circumstances are out-weighed by
the aggravating circumstances. This Court has engaged in a similar
weighing process in reviewing the sufficiency of the evidence to
support an affirmative answer to the “future dangerousness”
punishment issue. See, n. 3, supra; and, Barley v. State, 906 S.W.2d
27, 38 (Tex.Cr.App.1995) (Baird, Overstreet and Maloney, JJ.,
concurring). Meaningful appellate review has been a requirement of
the Eighth Amendment since the States began re-enacting capital
sentencing schemes following Furman. For example, in upholding the
constitutionality of the Georgia scheme the Supreme Court held:
As an important additional safeguard against
arbitrariness and caprice, the Georgia statutory scheme provides
for automatic appeal of all death sentences to the State's Supreme
Court. That court is required by statute to review each sentence
of death and determine whether it was imposed under the influence
of passion or prejudice, whether the evidence supports the jury's
finding of a statutory aggravating circumstance, and whether the
sentence is disproportionate compared to those sentences imposed
in similar cases. Gregg v. Georgia, 428 U.S. 153, 198, 96 S.Ct.
2909, 2937, 49 L.Ed.2d 859 (1976).
In Proffitt v. Florida, supra, the Supreme
Court stated: The statute provides for automatic review by the
Supreme Court of Florida of all cases in which a death sentence
has been imposed.... Since, however, the trial judge must justify
the imposition of a death sentence with written findings,
meaningful appellate review of each such sentence is made possible
and the Supreme Court of Florida, like its Georgia counterpart,
considers its function to be to [guarantee] that the [aggravating
and mitigating] reasons present in one case will reach a similar
result to that reached under similar circumstances in another
case. ... If a defendant is sentenced to die, this Court can
review that case in light of the other decisions and determine
whether or not the punishment is too great. Proffitt, 428 U.S. at
250-252, 96 S.Ct. at 2966. (Internal quotes omitted.)
In holding our post- Furman capital sentencing
scheme constitutional, the Supreme Court noted that by providing
for “prompt judicial review of the jury's decision in a court with
statewide jurisdiction, Texas has provided a means to promote the
evenhanded, rational, and consistent imposition of death sentences
under law.” Id., 428 U.S. at 276, 96 S.Ct. at 2958.
These cases make it clear that meaningful
appellate review is an absolute requirement of the Eighth
Amendment. The question in the instant case then boils down to
whether the jury's negative answer to the Penry issue is subject
to meaningful appellate review.
A majority of this Court has consistently
rejected requests to review the sufficiency of the evidence to
support a negative answer to the Penry issue. However, the reasons
for doing so have been less than consistent. FN5
FN5. I joined the majority in Lawton, supra and
Broussard v. State, 910 S.W.2d 952 (Tex.Cr.App.1995). However, for
the reasons stated infra, I now believe my doing so was erroneous.
Our first case which considered whether the
Penry issue was subject to meaningful appellate review was Colella
v. State, 915 S.W.2d 834, 845 (Tex.Cr.App.1995). In disposing of
the point of error the Court held: Because the weighing of
“mitigating evidence” is a subjective determination undertaken by
each individual juror, we decline to review the evidence for
sufficiency. We defer to the jury's conclusion that the evidence
was not sufficient to warrant a sentence of life imprisonment....
In reaching this conclusion, the majority
relied on Banda v. State, 890 S.W.2d 42, 54 (Tex.Cr.App.1994).
However, that reliance was misplaced.
In Banda, the defendant complained of two
veniremembers who stated they would not consider voluntary
intoxication to be a mitigating factor. We held the veniremembers
were not subject to a challenge for cause because the amount of
weight that a juror might give to any “particular piece of
mitigating evidence is left to the range of judgment and
discretion exercised by each juror.” Id., 890 S.W.2d at 54 (quoting
Johnson v. State, 773 S.W.2d 322, 331 (Tex.Cr.App.1989), affirmed
in part, Johnson v. Texas, 509 U.S. 350, 113 S.Ct. 2658, 125 L.Ed.2d
290 (1993)). While it is true that no evidence is mitigating as a
matter of law, Morrow v. State, 910 S.W.2d 471, 472 (Tex.Cr.App.1995),
it does not follow that because a veniremember is not subject to a
challenge for cause, a punishment issue is not subject to
meaningful appellate review.
Furthermore, Colella runs afoul of Clemons
because it creates an automatic rule of affirmance that is invalid
under Lockett, supra, and Eddings, supra, because Colella does not
provide defendants with the individualized treatment that results
from a reweighing of the mitigating and aggravating circumstances.
Clemons, 494 U.S. at 752, 110 S.Ct. at 1450.
Apparently, the Court recognized its reliance
on Banda was misplaced in Lawton v. State, 913 S.W.2d 542, 556 (Tex.Cr.App.1995).
The Lawton Court, relying principally on Pulley v. Harris 465 U.S.
37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), held appellate review of
a negative answer to the Penry issue was “neither constitutionally
required nor possible under our current law.” FN6 Lawton, 913 S.W.2d
at 556. The Court's reliance on Pulley was misplaced because
Pulley dealt with whether, before affirming a death sentence, an
appellate court is required to conduct a proportionality review.
Proportionality as defined by the Supreme Court is:
FN6. The Court also cited Hughes v. State, 897
S.W.2d 285 (Tex.Cr.App.1994). However, this citation is
inappropriate because Hughes dealt with the capital sentencing
scheme prior to enactment of the Penry issue. ... an abstract
evaluation of the appropriateness of a sentence for a particular
crime. Looking to the gravity of the offense and the severity of
the penalty, to sentences imposed for other crimes, and to
sentencing practices in other jurisdictions. ... Pulley, 465 U.S.
at 42-43, 104 S.Ct. at 875. The Court held a proportionality
review is not constitutionally required. However, it does not
follow that because a proportionality review is not
constitutionally required that meaningful appellate review of the
Penry issue is not required. And, the Lawton Court did not explain
why meaningful appellate review of the Penry issue was not
“possible under our current law.”
In McFarland v. State, 928 S.W.2d 482, 497-498
(Tex.Cr.App.1996), a plurality concocted a mix of Colella and
Lawton, holding that even though art. 44.251 mandated appellate
review, “[a] genuine ‘sufficiency’ review of the jury's negative
answer to Article 37.071 § 2(e) is a logical absurdity.” Id., 928
S.W.2d at 498-499. The plurality, utilizing the Banda rationale,
concluded: “[t]here is simply no way for an appellate court to
review the jury's normative judgment that the evidence did or did
not warrant a life sentence.” Id., 928 S.W.2d at 499.FN7 McFarland
's rationale then may be stated as follows: Even though the
Legislature has mandated a sufficiency review of the Penry issue,
we cannot follow that mandate because appellate review of a
normative judgment is impossible. This rationale is flawed in two
FN7. In a separate opinion, three Judges argued
that art. 44.251 did not mandate a sufficiency review of the Penry
issue, McFarland, 928 S.W.2d at 524 (Keller, White and McCormick,
JJ., concurring), “but merely prescribes the remedy in the event
such a review is conducted ...” Id., at 524. Implicitly then,
those judges recognized the possibility of such a sufficiency
review of the Penry issue.
First is the McFarland plurality's flawed
interpretation of art. 44.251. As noted above, the McFarland
plurality found that the plain language of art. 44.251 mandated
appellate review of the Penry issue but nevertheless refused to
“take the statute to mean what it plainly says.” Id., 928 S.W.2d
When interpreting a statute we seek to
effectuate the intent or purpose of the Legislature. Boykin v.
State, 818 S.W.2d 782, 785 (Tex.Cr.App.1991). We focus our
attention on the literal text of the statute in question and we
presume the Legislature intended for all the statutory language to
have meaning and effect. Therefore, we interpret the entire
statute, not just an isolated section. Dillehey v. State, 815 S.W.2d
623, 626 (Tex.Cr.App.1991); and, Tex. Gov't Code Ann. § 311.021.
Article 44.251(a) provides: The court of
criminal appeals shall reform a sentence of death to a sentence of
confinement in the institutional division of the Texas Department
of Criminal Justice for life if the court finds that there is
insufficient evidence to support an affirmative answer to [the
future dangerousness issue] or a negative answer to [the Penry
The McFarland plurality's interpretation of
art. 44.251 renders half of the statutory language without meaning
or effect and, therefore, runs afoul of Dillehey, 815 S.W.2d at
626, and, Tex. Gov't Code Ann. § 311.021.
Second, meaningful appellate review of a
normative judgment is not impossible. FN8 In Clewis v. State, 922
S.W.2d 126 (Tex.Cr.App.1996), we discussed the concept of
reviewing the factual sufficiency of the evidence. When conducting
such a review the appellate court views all the evidence without
the prism of in the light most favorable to the prosecution and
sets aside the verdict only if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and
unjust. Clewis, 922S.W.2d at 134. FN9 A factual sufficiency review
is nothing more than the review of a normative judgment. Similarly,
in context of the Penry issue we may reweigh the evidence to
determine if there is a sufficient mitigating circumstance or
circumstances to warrant that a sentence of life imprisonment
rather than a death sentence be imposed.
FN8. This McFarland plurality's use of the term
“normative” originates in Murphy v. State, 777 S.W.2d 44 (Tex.Cr.App.1988),
where we stated: ... There, aside from certain exceptions, the
“factfinder” does not determine the existence of discreet facts.
Deciding what punishment to assess is a normative process, not
intrinsically factbound. Because the material issue at punishment
is so indistinct, relevancy of proffered evidence cannot be
determined by deductive processes. Murphy, 777 S.W.2d at 62-63.
FN9. In Clewis we held: ... [t]he appropriate
balance between the jury's role as the judge of the facts and the
reviewing court's duty to review criminal convictions is struck by
not allowing the appellate court to find facts, or substitute its
judgment for that of the jury; rather, when it determines that the
verdict is against the great weight of the evidence presented at
trial so as to be clearly wrong and unjust, it must reverse the
verdict and remand for a new trial. Clewis, 922 S.W.2d at 135 (emphasis
Moreover, reviewing a normative judgment is
routinely done in other jurisdictions. Clemons, 494 U.S. at
748-750, 110 S.Ct. at 1448-1449. In Collins v. State, 261 Ark.
195, 548 S.W.2d 106 (1977), the Arkansas Supreme Court stated:
There is a meaningful appellate review by this
court of the appropriateness of the death penalty in a particular
case, considering both the punishment and any errors on points
raised in the trial court, including the sufficiency of the
evidence to support any part of the jury verdict. This appellate
review includes ... whether the evidence supports the jury's
findings on the question whether mitigating circumstances outweigh
aggravating ones ... [and] whether the sentence is excessive. Id.,
548 S.W.2d at 120. See also, State v. Breton, 235 Conn. 206, 663
A.2d 1026, 1039 (1995), (Connecticut Supreme Court held the
defendant's right to appellate review of the death sentence
included appellate consideration of mitigating evidence.); State
v. Richardson, 341 N.C. 658, 462 S.E.2d 492 (1995) (North Carolina
Supreme Court considered whether evidence demonstrated a
mitigating factor.); Sheridan v. State, 313 Ark. 23, 852 S.W.2d
772 (1993) (Arkansas Supreme Court reviews the jury's findings on
mitigation.); State v. Hernandez, 204 Ill.App.3d 732, 149 Ill.Dec.
755, 562 N.E.2d 219 (2 Dist.1990); Lowery v. State 547 N.E.2d 1046
(Ind.1989) (Indiana Supreme Court reviewed the mitigating evidence
to determine whether death sentence was erroneous.); and, Fisher
v. State, 736 P.2d 1003 (Okl.Cr.1987) (The Oklahoma Court of
Criminal Appeals determined that its appellate review must reweigh
the balance of mitigating and aggravating circumstances.).
Therefore, we should not hold that appellate review of the Penry
issue is impossible when other jurisdictions undertake a similar
Meaningful appellate review plays the crucial
role of ensuring that the death penalty is not imposed arbitrarily
or irrationally. Parker, 498 U.S. at 321, 111 S.Ct. at 739. This
review must consider the “individual circumstances” of each
defendant before death may be assessed.
It cannot be gainsaid that meaningful appellate
review requires that the appellate court consider the defendant's
actual record. “What is important ... is an individualized
determination on the basis of the character of the individual and
the circumstances of the crime.” Zant v. Stephens, 462 U.S. 862,
879, 103 S.Ct. 2733, 2743-2744, 77 L.Ed.2d 235 (1983); See also
Clemons, supra, 494 U.S., at 749, 752, 110 S.Ct., at 1448-1449,
1450; Barclay v. Florida, 463 U.S. 939, 958, 103 S.Ct. 3418, 3429,
77 L.Ed.2d 1134 (1983) (plurality opinion). Parker, 498 U.S. at
321, 111 S.Ct. at 739-740 (emphasis in original). This
individualized determination requires a review of the mitigating
circumstances. The Parker Court held, ... the Florida Supreme
Court affirmed Parker's death sentence without considering the
mitigating circumstances. This affirmance was invalid because it
deprived Parker of the individualized treatment to which he is
entitled under our Constitution. Parker, 498 U.S. at 322, 111 S.Ct.
at 740. Thus this individualized treatment must take into
consideration both aggravating and mitigating factors. Ibid.
This authority confirms that it is our
Constitutional duty to review a jury's negative answer the Penry
issue. Our Legislature recognized this and enacted article 44.251.
Nevertheless, a majority of this Court refuses to perform the
routine task of determining whether the evidence supports the
jury's verdict. In so doing, we shirk our Constitutional
responsibility and legislative mandate. Thus, the three legged
stool upon which the constitutionality of our capital sentencing
scheme rests, can not stand. Accordingly, I dissent to the failure
to address the merits of appellant's tenth point of error.
OVERSTREET, Judge, dissenting.
I dissent to the majority's disposition of
appellant's points of error three through eight in which he
complains of the trial court's restricting of voir dire in denying
his requests to ask questions of veniremembers about 15-year
parole ineligibility on a life sentence for capital murder.
The constitutional right to be represented by
counsel includes the right of counsel to question the
veniremembers of the jury panel in order to intelligently exercise
statutory challenges. Shipley v. State, 790 S.W.2d 604, 607-08 (Tex.Cr.App.1990).
Voir dire questioning is proper if it seeks to discover a
veniremember's views on an issue applicable to the case. Id. at
608. Upon a guilty verdict for capital murder, the jury must
answer a special issue regarding the defendant's future
dangerousness. “In assessing future dangerousness, the actual
duration of the defendant's prison sentence is indisputably
relevant.” Simmons v. South Carolina, 512 U.S. 154, 163, 114 S.Ct.
2187, 2194, 129 L.Ed.2d 133, 142 (1994). A prospective juror's
views regarding such are certainly a matter of grave concern for
both the prosecution and the defense in preparing to try a capital
murder case; in fact such views are a matter of life or death.
I dissent to the majority's discussion and
treatment of points of error three through eight.
Morris v. Cockrell, 35 Fed.Appx. 390
(5th Cir. 2002) (Habeas).
Petitioner Morris, a Texas state death penalty
inmate, requests a certificate of appealability (“COA”) under 28
U.S.C. § 2253, et seq., on three issues. First, whether the Texas
appellate court's refusal to review the trial jury's determination
of the sufficiency of mitigating evidence when selecting Morris
for imposition of the death penalty violated constitutional due
process. Second, whether the Texas trial court violated due
process by refusing to admit evidence of Morris's co-defendants'
lesser sentences as mitigation evidence. Third, whether the
dismissal of venireperson Dreannon constituted error under Batson
v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We
deny Morris's request on each issue.
During the early morning hours of May 1, 1991,
Morris shot 63-year-old James Moody Adams four times, killing
Adams, during a violent, home-invasion style burglary. Morris and
two accomplices kicked in the door of the Adams' home in Harris
County, Texas, looking for guns and money. The noise of their
entrance awakened Adams and his wife. While his wife waited in the
locked bedroom, Adams went to investigate the noise. When Morris
encountered Adams in the house, Morris held a gun on Adams while
an accomplice ordered Adams to produce guns and money. Adams
stated that he had no guns, but that he would give them what money
he had. The intruders kicked down the door leading to the master
bedroom and forced Adams inside. When she heard the door giving
way, Mrs. Adams hid in the bedroom closet because she had no route
of escape from the bedroom. Adams retrieved his wallet from his
bedroom closet and gave it to Morris. Mrs. Adams, hiding in this
same bedroom closet, heard the intruders exclaim angrily that
there was no money in the wallet. She heard Adams respond, “I'll
get you some.” Adams then removed his money from a hidden part of
the wallet and gave it to Morris.
Having the money in hand, Morris shot Adams.
Mrs. Adams heard her husband exclaim, “Oh no!” and then heard four
gunshots in rapid succession. The first two shots entered and
exited Adams's face and neck. The final two shots were to his back
as he lay on the bedroom floor. Adams fell dead in his bedroom
closet at his wife's feet, and she heard him stop breathing. The
intruders fled the scene, leaving behind trash bags that they
brought to the house to carry off stolen property. Mrs. Adams,
unsure if the intruders were gone but too terrified to stay hidden,
stepped over her husband's body and fled the house through the
splintered front door.
A fingerprint lifted from one of the abandoned
trash bags led to the arrest of one of the intruders, Christopher
Montez. Morris was arrested in Brenham, Texas, on May 13, 1991. He
made an oral and then a written statement the night that he was
arrested, confessing to the murder of James Adams. The written
statement was introduced at trial. Police also recovered the
murder weapon, a .32 caliber revolver.
Morris's trial was conducted before the 339th
District Court of Harris County in December, 1993. The jury found
Morris guilty of capital murder. During the punishment phase of
Morris's trial, the state reintroduced all evidence introduced
during the guilt phase. The state also introduced stipulated
evidence of Morris's criminal record. Morris presented character
and psychiatric testimony in mitigation during the punishment
phase, including his mother's testimony of environmental factors
affecting Morris during childhood, two psychiatric experts, and a
criminologist. Despite his mitigating evidence, the jury answered
the special issues presented to them in favor of the death penalty
and the court sentenced Morris to death.
The conviction was upheld on direct appeal. See
Morris v. State, 940 S.W.2d 610 (Tex.Crim.App.1997). On Morris's
state habeas petition, the trial court issued findings of fact and
conclusions of law recommending that habeas relief be denied,
including on each of the issues presented to us. The Court of
Criminal Appeals adopted the trial court's findings and denied
relief. Morris then applied to the United States District Court
for the Southern District of Texas for federal habeas relief,
which was denied. Pursuant to 28 U.S.C. § 2253(c), which provides
that a litigant may not appeal the denial of a petition for habeas
corpus without first obtaining a COA from a circuit judge, Morris
now requests a COA from us.
II. STANDARD OF REVIEW.
To prevail on an application for a COA, a
petitioner must make a “substantial showing of the denial of a
constitutional right, a demonstration that ... includes showing
that reasonable jurists could debate whether ... the petition
should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed
further.” Moore v. Johnson, 225 F.3d 495, 500 (5th Cir.2000),
quoting Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146
L.Ed.2d 542 (2000).
In assessing whether a petitioner has
demonstrated a substantial showing of the denial of a
constitutional right, we must keep in mind the deference scheme
laid out in 28 U.S.C. § 2254(d). See Moore, 225 F.3d at 501.
An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless the
adjudication of the claim-(1) 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 (2) 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. 28 U.S.C. § 2254(d).
Under that scheme, we review pure questions of law and mixed
questions of law and fact under § 2254(d)(1) and review questions
of fact under § 2254(d)(2). See 225 F.3d at 501. “Because the
present case involves the death penalty, any doubts as to whether
a COA should issue must be resolved in [the petitioner's] favor.”
Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000).
Morris first argues that the Texas appellate
court's refusal to review the jury's determination of whether
special mitigating factors existed to sentence a criminal
otherwise fully qualified for death instead to life in prison, is
a violation of due process. See Morris v. State, 940 S.W.2d 610,
614 (Tex.Crim.App.1996). This is precisely the issue we answered
in Moore v. Johnson as a pure question of law. See Moore, 225 F.3d
A capital murder trial in Texas proceeds in a
bifurcated process. In the first, or “guilt-innocence,” phase, a
defendant's eligibility for consideration of the death penalty is
determined. Once that eligibility is determined, the trial
proceeds to the second, or “punishment,” phase, wherein the
defendant is either selected for death or for the alternative
sentence of life imprisonment. In that phase, the state presents
the jury with evidence of certain aggravating factors, including
in Morris's case whether he deliberately caused Adams's death and
whether Morris would be a continuing threat to society. The
defendant also presents the jury with mitigating evidence, which
in Morris's case included, inter alia, the testimony of his mother,
the psychiatrists, and the criminologist. The jury is then asked
to determine whether the aggravating factors have been shown
beyond a reasonable doubt, thus qualifying the defendant for
selection for the death penalty. If so, the jury is then asked
whether the defendant's mitigating evidence is sufficient to
warrant the imposition of a life sentence rather than the death
The Texas Court of Criminal Appeals has
explained that: [i]n Texas, this mitigating evidence is admissible
at the punishment phase of a capital murder trial. Once admitted,
the jury may then give it weight, if in their individual minds it
is appropriate, when answering the questions which determine
sentence. However, “[t]he amount of weight that the factfinder
might give any particular piece of mitigating evidence is left to
‘the range of judgment and discretion’ exercised by each juror.”
See Colella v. State, 915 S.W.2d 834, 844 (Tex.Crim.App.1995)(quoting
Banda v. State, 890 S.W.2d 42, 54 (Tex.Crim.App.1994); Johnson v.
State, 773 S.W.2d 322, 331 (Tex.Crim.App.1989), aff'd, Johnson v.
Texas, 509 U.S. 350, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993)). No
burden of proof exists for either the state or the defendant to
disprove or prove the mitigating evidence. Colella, 915 S.W.2d at
844. Thus, each juror individually and subjectively determines
what evidence, if any, is sufficient to mitigate against the
imposition of the death penalty.
The Texas Court of Criminal Appeals has
consistently refused to review such a subjective determination on
the part of individual jurors. See Colella, 915 S.W.2d at 845 (“[b]ecause
the weighing of ‘mitigating evidence’ is a subjective
determination undertaken by each individual juror, we decline to
review the evidence for sufficiency”).
We held in Moore that Texas is within the ambit
of federal law as interpreted by the United States Supreme Court.
See Moore, 225 F.3d at 507. We did so in view of Tuilaepa v.
California, 512 U.S. 967, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994),
in which the Supreme Court distinguished between a jury's
“eligibility decision” and its “selection decision.” It is the
eligibility decision that must be made with maximum transparency
to “make rationally reviewable the process for imposing a sentence
of death.” Moore, 225 F.3d at 506 (quoting Tuilaepa, 512 U.S. at
973). On the other hand, a jury is free to consider a “myriad of
factors to determine whether death is the appropriate punishment.
Indeed, the sentencer may be given unbridled discretion in
determining whether the death penalty should be imposed after it
has found that the defendant is a member of the class made
eligible for that penalty.” 225 F.3d at 506 (quoting 512 U.S. at
979-80). It is the jury's subjective and “narrowly cabined but
unbridled discretion to consider any mitigating factors,” 225 F.3d
at 507, that Texas refrains from independently reviewing. We held
then, as we do now, that Texas may correctly do so.
Morris argues that the Supreme Court's rulings
in Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d
725 (1990), Parker v. Dugger, 498 U.S. 308, 111 S.Ct. 731, 112
L.Ed.2d 812 (1991), and Zant v. Stephens, 462 U.S. 862, 103 S.Ct.
2733, 77 L.Ed.2d 235 (1983), among others, militate toward a
requirement to review jurors' subjective determinations in
weighing mitigating evidence. We disagree. Those cases reinforce
the Court's emphasis on “meaningful appellate review of death
sentences to promote reliability and consistency,” Clemons, 494
U.S. at 749, to “ensur[e] that the death penalty is not imposed
arbitrarily or irrationally,” Parker, 498 U.S. at 321. Morris has
made no showing of unreliability in Texas's method of selecting
defendants for the imposition of the death penalty and Texas has
been nothing if not consistent in its refusal to reweigh
mitigating evidence on appellate review.
Morris's reliance on the Court's language in
Clemons that “[w]e see no reason to believe that careful appellate
weighing of aggravating against mitigation circumstances in cases
such as this would not produce ‘measured consistent application’
of the death penalty or in any way be unfair to the defendant” is
misplaced. See Clemons, 494 U.S. at 748. Rather than imposing such
an appellate review requirement, as Morris suggests, the Court
merely held that such review was permissible in a situation where
a death sentence had been based in part on an invalid or
improperly defined aggravating circumstance. We decline to read
Clemons as Morris propounds. We instead reiterate our previous
holding on this issue in Moore and rule that Morris has not made a
substantial showing of the denial of a constitutional right.
Next, Morris asserts that the trial court
violated due process by refusing to admit evidence of Morris's co-defendants'
lesser sentences as mitigation evidence. To advance his position,
Morris insists that he “was entitled under Lockett v. Ohio, 438
U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) to offer the jury
this mitigating evidence.” See Application for COA at 11. He makes
no effort to explain or substantiate this otherwise-bare assertion,
however, while conceding that the case law of this circuit has
held exactly the opposite. Brogdon v. Blackburn, 790 F.2d 1164
The Supreme Court has established that a “jury
must be able to consider and give effect to any mitigating
evidence relevant to a defendant's background and character or the
circumstances of the crime.” See Penry v. Lynaugh, 492 U.S. 302,
328, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). Further, the Court
has established that evidence that is not relevant to the
defendant's character, prior record, or the circumstances of his
offense may properly be excluded from evidence. See Lockett, 438
U.S. at 604 n. 12; see also Skipper v. South Carolina, 476 U.S. 1,
7 n. 2, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986)(not all facets of a
defendant's ability to adjust to prison life, such as how often he
will take a shower, are relevant to the sentencing determination).
On this foundation, we reiterate our holding in
Brogdon, that the sentences imposed on the co-defendants of a
capital crime defendant are not constitutionally relevant
mitigating evidence to include in the determinations of the jurors.
Morris has offered absolutely nothing in contradiction and so we
again rule that Morris has not made a substantial showing of the
denial of a constitutional right. Finally, Morris contends that
the dismissal of venireperson Dreannon constituted error under
Batson v. Kentucky, supra. This contention is based on (1) Mr.
Dreannon being black and (2) that Mr. Dreannon indicated on his
jury questionnaire that he was strongly in favor of the death
penalty. Following voir dire, the prosecutor peremptorily struck
Mr. Dreannon. Morris claims that this establishes a prima facie
Under Batson, to prove that the prosecutor has
impermissibly used the power to peremptorily strike jurors, (1)
the petitioner must make a prima facie showing that the prosecutor
exercised his peremptory strikes on the basis of race; (2) the
burden of production then shifts to the prosecutor to articulate a
race-neutral reason for challenging the venire member; and (3)
finally, the trial court must decide whether the petitioner has
sustained his burden of proving purposeful discrimination. Soria
v. Johnson, 207 F.3d 232, 237 (5th Cir.2000).
It is unclear whether Morris had established a
prima facie case in the Texas trial court. That court did, however,
conduct a Batson hearing wherein the prosecutor explained that he
was uncomfortable with Mr. Dreannon's ability to impose the death
penalty on a defendant of Morris's age, which was close to Mr.
Dreannon's son's age. Mr. Dreannon's answers on this issue were
equivocal, evasive and ultimately unresponsive. The trial judge's
observations during voir dire were consistent with the
prosecutor's and she further noted that the same prosecutor had
seated several black jurors in a separate but recent capital
punishment trial. On those bases, the trial judge held that Morris
had not sustained the burden of proving purposeful discrimination.
See Morris v. Texas, 940 S.W.2d at 612 (affirming the trial court).
Morris has adduced nothing additional to substantially show the
denial of a constitutional right. The federal district court,
reviewing Morris's federal habeas petition, noted that Morris's
allegation is not that his rights were violated, but instead that
the trial court committed reversible error. The district court
stated that such a claim is not a basis for a federal habeas
petition nor is it the role of a federal district court to sit in
appellate review of a state trial court. We agree with the
district court's assessment. Further, because such a determination
in the state court was neither contrary to, nor involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States, we would be
unable to grant a COA in any case.
For the reasons stated herein, we deny Morris's
request for a COA on each of his three issues.
Kenneth Wayne Morris