Two months after he had been paroled from prison, Michael
Richard approached Marguerite Dixon’s son, Albert, in front of
the Dixon home in Hockley and asked if a yellow van parked
outside the home was for sale. Albert said the vehicle belonged
to his brother who was out of town and suggested that Richard
come back another time. Richard left.
When Albert and his sister,
Paula, left a few minutes later, Richard returned and entered
the house. He took two television sets and put them in the
yellow van, sexually assaulted Mrs. Dixon and shot her in the
head with a .25 caliber automatic pistol. Richard admitted he
was involved in Mrs. Dixon’s murder and offered to help find the
murder weapon. Police found the weapon and testing revealed it
to be the gun that fired the fatal shot.
Richard v. State, 842 S.W.2d 279 (Tex.Crim.App. 1992) (Direct
Appeal - Reversed).
Fried chicken, a salad with pepper, lemon-lime soda, apple pie
and a pint of ice cream.
"I'd like my family to take care of each other. I love you,
Angel. Let's ride. I guess this is it."
Texas Department of
Inmate: Richard, Michael Wayne
Date of Birth: 08/24/1959
Date Received: 11/20/1987
Education: 9 years
Date of Offense: 08/18/1986
County of Offense: Harris
Native County: Waller County Texas
Hair Color: Black
Eye Color: Brown
Height: 05' 08"
Weight: 142 lb
Prior Prison Record: TDCJ #277562 received
3/7/78 Harris County 6 years Burglary, paroled 5/5/81; TDCJ
#390694 received 1/23/85 Harris County Auto Theft, released
Wednesday, September 19, 2007
Media Advisory: Michael Richard scheduled for execution
AUSTIN – Texas Attorney General Greg Abbott
offers the following information about Michael Wayne Richard,
who is scheduled to be executed after 6 p.m. Tuesday, September
25, 2007. Richard was convicted and sentenced to death for the
capital murder of Marguerite Dixon during a burglary of her
Houston-area home in 1986.
FACTS OF THE CRIME
On the afternoon of August 18, 1986 and just
two months after he had been paroled from prison, Michael
Richard approached Marguerite Dixon’s son, Albert, in front of
the Dixon home in Hockley and asked if a yellow van parked
outside the home was for sale. Albert said the vehicle belonged
to his brother who was out of town and suggested that Richard
come back another time. Richard left.
When Albert and his sister, Paula, left a few
minutes later, Richard returned and entered the house. He took
two television sets and put them in the yellow van, sexually
assaulted Mrs. Dixon and shot her in the head with a .25 caliber
Richard told police he ran out of the house
and hot-wired the van, then drove to Acres Homes. Richard
attempted to sell the televisions there, but ended up just
giving the gun to a friend. He drove the van to another home,
where it stopped working. He told his friend there that he would
return shortly for the van, but never did; the owner of the
house called a wrecker the next morning to pick up the vehicle,
which led to the police being called when it was discovered the
van had been stripped of several valuable items and had
obviously been hot-wired to get to its present location.
Mrs. Dixon’s children returned home around
9:30 p.m. on the day of the killing to find the sliding-glass
door open and all the lights in the house turned off. Frightened
by the condition of the house, they got a neighbor, who entered
the house with a flashlight and a gun. They discovered Mrs.
Dixon dead in her bedroom.
The next morning, the detective assigned to
the case determined the missing van had been found and
interviewed the owner of the home where Richard left the van and
the man to whom Richard tried to sell the televisions. Based on
that information, the police obtained a warrant for Richard’s
arrest. Police found Richard at his mother’s home the next
evening; Richard admitted he was involved in Mrs. Dixon’s murder
and offered to help find the murder weapon. Police found the
weapon and testing revealed it to be the gun that fired the
PRIOR CRIMINAL HISTORY
During the punishment phase of his trial, the
state presented evidence of Richard’s two prior convictions for
burglary of a habitation. Evidence was also presented of an auto
theft charge, committed shortly after the second burglary, but
not prosecuted. Richard murdered Mrs. Dixon less than two months
after he was released on mandatory supervision for his second
October 29, 1986 -- A Harris County Grand
Jury indicted Richard for the capital murder of Marguerite Dixon.
September 4, 1987 -- A jury found Richard guilty of capital
murder, and he was sentenced to death.
September 16, 1992 -- The Texas Court of Criminal Appeals
reversed conviction due to faulty jury instructions.
May 15, 1995 -- Richard’s second trial began.
June 15, 1995 -- A second jury found Richard guilty of capital
murder, he was sentenced to death.
June 18, 1997 -- The Texas Court of Criminal Appeals affirmed
Richard’s conviction and sentence on direct appeal.
April 3, 1998 -- Richard filed his first application for writ of
habeas corpus with the state trial court.
June 26, 1998 -- The U.S. Supreme Court denied Richard’s
petition for writ of certiorari.
February 7, 2001 -- The Texas Court of Criminal Appeals denied
Richard’s state application for writ of habeas corpus.
February 7, 2002 -- Richard filed a federal petition for writ of
habeas corpus in a Houston federal district court.
December 31, 2002 -- The Federal District Court denied Richard’s
June 20, 2003 -- Richard filed a successive state application
for the writ of habeas corpus.
June 27, 2003 -- The 5th U.S. Circuit Court of Appeals denied
Richard permission to appeal his first federal petition.
March 21, 2007 -- The Texas Court of Criminal Appeals denied
Richard’s second state habeas corpus application.
March 28, 2007 -- Richard filed a motion for authorization to
file a successive federal habeas corpus petition.
May 15, 2007 -- The 5th Circuit Court denied Richard’s motion
for authorization to file a successive habeas petition.
June 12, 2007 -- The trial court set Richard’s execution date
for Tuesday, September 25, 2007.
Convicted killer executed for woman's
death 21 years ago
By Michael Graczyk - Houston Chronicle
Associated Press - Sept. 25, 2007
HUNTSVILLE, Texas — More than two decades
after a mother of seven was attacked and killed inside her
Harris County home, the man convicted of her slaying was
executed Tuesday evening.
Asked if he'd like to make a final statement,
Michael Richard said, "I'd like my family to take care of each
other. I love you, Angel. Let's ride." Several seconds later,
after the lethal drugs started, Richard blurted out, "I guess
this is it." He then gasped and snorted several times and was
pronounced dead at 8:23 p.m., nine minutes after the lethal
drugs began to flow.
Richard, 49, had at least five felony
convictions and had been released from his second prison term
just eight weeks before the 1986 murder of Marguerite Lucille
Dixon. He was the 26th Texas inmate executed this year. The
execution was delayed about two hours while appeals were in the
"It means in this particular case, the system
worked, it was thorough," Stephen Dixon, whose mother was killed
in the attack, said after watching Richard die. "The person
executed deserved what he got." Dixon said he wasn't too
concerned with the delays. "I was told to expect such things,"
he said. "It's been a long 21 years."
Dixon's 53-year-old mother, who worked as a
nurse, had offered Richard a drink of water after he came up to
her house and inquired whether a van parked outside was for
sale. The vehicle wasn't and Richard left, noticing that two of
Dixon's children who were home at the time left shortly after he
did. Evidence showed he returned, raped the woman, fatally shot
her, then stole two televisions and drove off in the van.
The U.S. Supreme Court turned down requests
to halt the execution because of claims Richard was mentally
retarded. Attorneys then asked for a reprieve because of the
high court's decision earlier Tuesday to consider the
constitutionality of lethal injection in a Kentucky case. Almost
two hours later, the Supreme Court rejected the appeal. Gov.
Rick Perry's office had said Richard's execution should go
forward as planned.
Richard acknowledged being at Dixon's home in
Hockley, in far northwest Harris County, accounting for his
fingerprint on a sliding glass door. But he insisted he wasn't
responsible for the woman's death. "I did things in my life I
deserved to be locked up for," he said last week from death row.
"But I didn't kill anybody. "I went by that house, true enough,
asked to buy a car, and I left."
The van was found abandoned in Houston, about
30 miles to the southeast, and Richard later took officers to
where he gave the .25-caliber pistol used in Dixon's death to a
friend. Evidence showed he swapped the TVs for some cocaine.
Richard's lawyers argued he was mentally retarded and not
eligible for lethal injection under a U.S. Supreme Court order
barring execution of mentally retarded people.
Two of Dixon's children found a sliding glass
door open and the house dark and ransacked when they returned
and found their mother's body in her bed and covered with paper
and clothing. The fingerprint on the glass door led police to
Richard, who confessed the shooting was an accident. From prison,
he said the confession wasn't his.
"It really surprises me something has not
been done in this case to bring some finality," Lee Coffee, who
prosecuted Richard in 1987, said. "Either carry out the
punishment or some court conclude he should not be subject to
the death penalty, but something should have been resolved many
years ago. "This is one of the things why the general public is
frustrated with the criminal justice system," said Coffee, who
is now a judge in Memphis, Tenn.
Richard was convicted and sentenced to death
in 1987. The Texas Court of Criminal Appeals threw out his
conviction in 1992 because jurors improperly were not allowed to
consider evidence that as a child Richard had been abused. In
1995, a second jury convicted him again and again sentenced him
At least one psychological assessment of
Richard two years ago put his IQ at 64, well under the 70
considered the threshold of retardation. In March, the Texas
Court of Criminal Appeals affirmed a judge's finding that
Richard was not mentally retarded and his execution date. "I've
been here forever," Richard said from death row, where he is
known as "Louisiana Red." "I just try to live for every day.
Everybody's going to die. I just know the date."
Richard first went to prison in 1978 with a
six-year term for burglary. He was paroled about three years
later, then returned to prison in 1985 with a five-year sentence
for theft and forgery. He was released on mandatory supervision
after 17 months. Dixon's slaying occurred eight weeks later. He
was the first of two Texas inmates scheduled to die this week.
On Thursday, a Dallas man, Carlton Turner, 28, is set to die for
killing his parents in 1998.
Texas executes man for 1986 rape and
September 26, 2007
HUNTSVILLE, Texas (Reuters) - Texas executed
a convicted murderer on Tuesday by lethal injection, the same
day the U.S. Supreme Court said it will decide whether that
method violates a constitutional ban on cruel and unusual
Michael Richard, 49, was the 26th person put
to death this year in Texas and the 405th since the state
resumed the death penalty in 1982, six years after the U.S.
Supreme Court lifted a national ban on capital punishment.
Texas, which leads the nation in executions, has another
scheduled for Thursday.
Prosecutors said Richard, who was on parole
from prison, sexually assaulted and shot to death a 53-year-old
nurse and mother of seven at her Houston-area home in August
1986. Richard, who also stole two televisions and traded them
for cocaine, confessed to the crime but said the gun went off
The execution comes the same day the nation's
highest court said it would decide an appeal by two death row
inmates from Kentucky arguing that the three-chemical cocktail
used in lethal injections inflicted unnecessary pain and
suffering. The new case, which could limit or condone current
forms of execution, will be one of the most closely watched of
the Supreme Court's new term that begins on October 1. All but
one of the 38 U.S. states with the death penalty and the federal
government use lethal injection for executions. The only
exception is Nebraska, which requires electrocution.
In his last statement, Richard asked that his
family take care of each other and said, "Let's ride. I guess
this is it."
For his last meal he requested fried chicken,
a salad with pepper, lemon-lime soda, apple pie and a pint of
Texas currently has three more executions
scheduled this year and two are already slated for 2008.
Michael Wayne Richard
Michael Wayne Richard, 48, was executed by
lethal injection on 25 September 2007 in Huntsville, Texas for
the rape, robbery, and murder of a woman in her home.
On the afternoon of 18 August 1986, Richard,
then 26, was in front of the Hockley home of Marguerite Dixon,
53. Richard approached Dixon's son, Albert, and asked if the van
parked in the driveway was for sale. When Albert Dixon told him
the van belonged to his brother who was out of town, Richard
left. A few minutes later, Richard saw Albert and his sister,
Paula, leave the property. Richard then entered Mrs. Dixon's
home. He forced her into a bedroom, where he raped her. The then
shot her in the head with a .25-caliber pistol. He then stole
two televisions and the van.
Mrs. Dixon's children returned home that
evening. They found the sliding-glass door open and all the
lights turned off. After calling a neighbor for assistance, they
entered the house and discovered their mother dead in her
Richard hotwired the van and drove it to
Houston. He traded the murder weapon to a friend for cocaine and
attempted to sell the televisions. He then drove the van to
another home, where it broke down. He told the homeowner, a
friend of his, that he would return for the van, but he never
did. The homeowner called a wrecker the next morning to take the
van away. When it was discovered that the van had been hotwired
and stripped, the police were called. After interviewing the
homeowner and the man to whom Richard had tried to sell the
televisions, the police obtained an arrest warrant for Richard.
He was arrested at his mother's home the next evening.
Richard admitted being involved in Dixon's
death and helped police track down the murder weapon. His
fingerprints were also found on the sliding-glass door to the
victim's home. He claimed that the gun discharged accidentally.
Richard had previously served parts of two
prison sentences for home burglary. In March 1978, he was sent
to prison on a 6-year sentence. He was paroled in May 1981. In
January 1985, he was returned to prison on a 5-year sentence. He
was paroled in June 1986, about two months before Dixon's murder.
A jury convicted Richard of capital murder in
September 1987 and sentenced him to death. In September 1992,
the Texas Court of Criminal Appeals overturned his conviction
because the jury was not instructed to consider his history as
an abused child as a possible mitigating factor when determining
his punishment. In a new trial in June 1995, a jury again
convicted Richard of capital murder and sentenced him to death.
The TCCA affirmed this conviction and sentence in June 1997. All
of his subsequent appeals in state and federal court were denied.
At Richard's first trial, his attorneys told
the jury that he scored 62 on an IQ test. Richard's IQ and
possible mental retardation were not mentioned in his second
trial. After the U.S. Supreme Court ruled in June 2002 that
executing mentally retarded prisoners is unconstitutional, a
hearing was held on Richard's mental retardation claim. A
psychologist for the state, George Denkowski, reviewed Richard's
IQ tests and determined him to be retarded. However, Harris
Country officials succeeded in obtaining a new hearing in
Prosecutor Lynn Hardaway supplied evidence
showing that Richard's activities in prison - including writing
letters and playing chess - showed that he was not retarded, and
that he had never been diagnosed as retarded during his
childhood. Denkowski then changed his evaluation, stating that a
low IQ test was not conclusive by itself. The courts ruled that
Richard's claim of mental retardation was not proven, and
rejected his appeals.
Richard later denied any involvement in the
killing. "I was a thief - I ain't gonna lie to you," he told an
interviewer on death row the week before his execution, "because
that's what I was taught by my father. But I've been trying to
tell everybody I didn't break in that house or kill that woman."
He said that a detective tricked him into signing a document he
could not read.
Lee Coffee, the prosecutor in Richard's first
trial, and who is now a judge in Memphis, Tennessee, said that
Richard never denied the killing during his trial. Coffee also
said that, at the Dixon family's request, he offered Richard a
life sentence, but Richard rejected the plea offer. Richard said
that he accepted the plea offer, but Coffee reneged on his
As for his mental retardation claim, Richard
said that the state's evidence against him was misleading. He
said that he had others write letters for him, then he copied
them in his own handwriting, and that he merely imitated
behavior he saw others doing. "There's a lot of things I can't
do, but if I sit and watch you, I can learn to do a little," he
On the day Richard was executed, the U.S.
Supreme Court agreed to hear a Kentucky case challenging the
constitutionality of execution by lethal injection. Richard's
lawyers asked the Supreme Court to grant a stay in his case
until the Kentucky case is decided, but their request was denied
a few minutes before 8:00 p.m.
At his execution, Richard expressed love to
his family in a brief last statement. After the lethal injection
was started, he said, "I guess this is it." He was pronounced
dead at 8:23 p.m.
Marguerite Lucille Dixon was the mother of 7
grown children and a registered nurse living in Hockley, Texas
when Michael Richard was paroled from prison.
On August 18, 1986, Richard approached
Marguerite's son outside her home and asked if a van that was
parked in the driveway was for sale. When the son told Richard
that the van was not for sale, Richard left but watched the home
until he saw Marguerite's son and daughter leave a short time
Richard returned to Marguerite's house and
forced his way in. He forced Marguerite into a bedroom where he
sexually assaulted her before shooting her in the head with a
After the rape and murder, Richard stole two
televisions and the van. He later traded the murder weapon for
cocaine. His fingerprint was found on a sliding glass door in
Marguerite's home. Richard later confessed to the murder but
claimed the gun discharged accidentally.
Prior to murder, Richards had served just
over half of a six year sentence for burglary and was returned
to prison less than four years later with a five-year sentence
for auto-theft, theft and forgery. He served less than 18 months
before being released on mandatory release on June 23, 1986,
just two months before murdering Marguerite Dixon.
Richard v. State, 842 S.W.2d 279 (Tex.Crim.App.
1992) (Direct Appeal - Reversed).
Defendant was convicted in the 180th District
Court, Harris County, Patricia R. Lykos, J., of murder in course
of committing burglary and he was sentenced to death. He
appealed. The Court of Criminal Appeals, Clinton, J., held that:
(1) defendant was entitled to jury instruction authorizing jury
to impose sentence less than death on basis of evidence of
defendant's sociopathic personality and abusive childhood, and
(2) evidence was sufficient to support jury finding on special
issue regarding probability that defendant would commit acts of
violence that would constitute continuing threat to society.
Reversed and remanded for new trial. McCormick and White, JJ.,
concurred in result.
Appellant was convicted of the offense of murder in the course
of committing burglary, a capital offense under V.T.C.A. Penal
Code, § 19.03(a)(2). The jury answered special issues
affirmatively, Article 37.071(b), V.A.C.C.P., and punishment was
assessed accordingly at death. Appeal to this Court is automatic.
Id., § h.
On the night of August 18, 1986, Marguerite
Lucille Dixon was found dead on her bed by two of her children,
the victim of a single .25 caliber gunshot wound to the head.
Several television sets had been taken from the house, and her
son's van was missing from the driveway. There is evidence she
had been sexually assaulted. Appellant does not contest the
sufficiency of the evidence to establish he committed the
In his seventh point of error appellant
contends the trial court erred in not providing the jury at the
punishment phase of trial with some instructional vehicle for
exercising its “reasoned moral response” to evidence having
mitigating significance beyond the scope of Article 37.071(b)
special issues. Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934,
106 L.Ed.2d 256 (1989).
He contends the jury had no mechanism to
respond to the full mitigating impact of evidence of his low
intelligence and his antisocial personality disorder brought
about by extreme childhood abuse. Appellant requested no such
instruction at trial.FN1 *281 However, he was tried in August of
1987, two years before the opinion of the United States Supreme
Court in Penry was delivered.
This Court has held that under these
circumstances Penry error need not be raised in the trial court
in order to be preserved for appeal. Black v. State, 816 S.W.2d
350 (Tex.Cr.App.1991) (Campbell, J., concurring, joined by five
other judges); Selvage v. Collins, 816 S.W.2d 390
(Tex.Cr.App.1991) (Opinion on Certified Question from the United
States Court of Appeals for the Fifth Circuit). We will
therefore reach the merits of his contention.
FN1. Appellant did ask for, and received, an
instruction in the following tenor: “You are further instructed
that in determining each of these Special Issues, you may take
into consideration all of the evidence submitted to you in the
full trial of the case, that is, all of the evidence submitted
to you in the first part of this case wherein you were called
upon to determine the guilt or innocence of the Defendant, and
all of the evidence, including evidence offered in mitigation of
punishment, if any, admitted before you in the second part of
the trial wherein you are called upon to determine the answers
to Special Issues hereby submitted to you.”
Of course, an instruction telling the jury it
may utilize evidence for whatever mitigating value it may have
relevant to the special issues is not a Penry instruction at
all. James v. State, 805 S.W.2d 415, at 417, n. 3
(Tex.Cr.App.1990). Indeed, such an instruction need not have
been given in this case, even upon request. Quinones v. State,
592 S.W.2d 933, at 947 (Tex.Cr.App.1980). An instruction
empowering the jury to impose a sentence less than death on the
basis of evidence having mitigating value beyond its relevance
to the special issues, as per Penry, was neither requested nor
At the guilt/innocence phase of trial Dr.
Jerome Brown, a clinical psychologist, testified that in testing,
appellant proved to have “an IQ score of 62, which places him in
the upper limits of the mentally defective range.” He explained
that “[a]n IQ below 69 or 70 is obtained only by about three
percent of the population and is considered quite low.” At one
point Dr. Brown agreed appellant belonged in the category of
“educable mentally retarded.” On crossexamination he described
appellant as “slow” but not “retarded”-at least “[n]ot in the
way that most people think of retarded people, no.” FN2
Dr. Brown is the same psychologist who
testified at the competency hearing in Penry. Id., 492 U.S. at
307-308, 109 S.Ct. at 2941, 106 L.Ed.2d at 271. Here, he
testified at guilt/innocence pursuant to appellant's strategy to
persuade the jury that a statement he gave to police was not
knowing and voluntary due to appellant's inability to comprehend
statutory and constitutional warnings.
This circumstance does not detract from the
mitigating significance of Dr. Brown's testimony as it relates
to the punishment phase. “Whether evidence has ‘mitigating value’
is not determined by the party who offers it, the time of
admission, or its manner of admission (direct or
crossexamination) into evidence during a trial. The question is
merely whether this evidence was before the jury for its
consideration.” Ex parte Ellis, 810 S.W.2d 208, at 211 (Tex.Cr.App.1991).
At the punishment phase of trial appellant
presented testimony from his mother and one of his three sisters.
Their testimony establishes an extensive history of physical and
emotional abuse at the hands of appellant's father. When
appellant was a child his father worked as a “long-haul truck
driver,” transporting grain and livestock. Consequently he
“stay[ed] up a lot on alcohol and drugs,” viz: amphetamines.
Appellant's father drank “every day,” and
when drinking, he was violent and quick to anger over trivial
matters. Appellant's mother was sent to the hospital an
unspecified number of occasions with broken ribs, a broken nose,
broken foot and lumps on her head, one where appellant's father
had struck her with a .38 caliber pistol. She cataloged her many
scars for the jury.
Appellant, the youngest child, was his
mother's favorite, and drew his father's ire for that reason.
His father called him a “punk,” and accused him of having sexual
relations with his mother even as a child. When appellant would
try to protect his mother, he suffered beatings for his
troubles. The authorities would not intervene, considering the
situation to be a “domestic disturbance.”
At times appellant's father would openly co-habitate
with other women, to the shame of his children. Other times he
kicked his wife and children out of the house, forcing them to
stay with appellant's aunt. Appellant's mother suffered a
nervous breakdown when appellant was four or five years old, and
was hospitalized for three months. Since that time she has been
under psychiatric care, suffering from anxiety and depression.
All of the children were beaten from about
the age of eight years old. Appellant's father used bull whips,
cattle prods and leather belts. Appellant was beaten once with
“a hanger.” Appellant reportedly never cried out during these
beatings. His father sexually abused each of his sisters from
the age of puberty on. Once he fired a shotgun at one of
appellant's sisters when she refused his advances. Appellant was
aware of these abuses. He left home for good at fourteen when
“[h]is daddy had whopped him with a lead rope and he said he
wasn't going to see that anymore.” All of his siblings had run
away by the age of fifteen. Appellant's brother is an unemployed
alcoholic. Two of his sisters are under psychiatric care.
Appellant was a premature baby, and spent the
first month of his life in the hospital. When he was finally
released “he still was sick and we had to put him in the
hospital practically every year until he got 6 years.” He had
asthma and was allergic to milk. In school appellant was “slow,”
earning D's and F's. He did not make it past the ninth grade,
and reads without comprehension. His father taught him to steal,
directing him to take livestock from rodeos. Not surprisingly,
appellant developed into an angry adolescent with a bad temper.
Dr. Fred Fason, a psychiatrist, testified
that he had examined appellant, and diagnosed him to be a
“sociopathic personality, antisocial type.” Dr. Fason elaborated
on this condition, viz: “... I think the best thought today and
the thought that I would be most in agreement with would be that
these are individuals who are very narcissistic or self-centered
individuals and by that I mean they have big egos, so to speak,
in lay terminology. They feel entitled to whatever it is that
“Gratitude is not an emotion that is very
consistent with sociopathic personality or antisocial reactions.
They tend to be manipulative, they tend not to have their
behavior much influenced by guilt or by shame and at times not
even influenced very much with consequences of the behavior.
They are notoriously self-defeating in the pattern of their
“In this narcissistic development can be
either primary narcissism, which is kind of where all of us are
when we are babies. We feel like we're kind of the center of the
world and entitled to what we get. Most of us around the age of
2 and a half or 3 discover that our mothers take care of us
because they love us, not because they have to and we make a
transition from seeing ourselves as a center of the earth to
viewing ourselves as dependent upon our parents for loving and
caring and attention.
“The sociopathic personality either, or the
narcissistic individual, either does not make this transition of
from primary narcissism to relating to others with love and
what's called primary narcissism. If a person never made the
transition or at times they will make the transition and they
will experience love and gratitude and later trauma in their
lives of one sort or another will cause them to regress back to
this primitive narcissistic position where they consider what
they want and their egos to be the most important things in the
world and that they are entitled to what they want.
“Now, in normal development we make a
transition from relating to the world from the point of view of
the narcissistic way of relating to the world, to psychoanalytic
language of relations or love relations with others. “Now, the
sociopath either has difficulties, if it's a primary
narcissistic disorder that underlays it, has never made this
transition of learning to consider other people as being like
himself or looking at the world through other people's eyes; if
he has made the transition, then there is later trauma that has
occurred of a variety of sorts that causes him to regress back
to that narcissistic phase of development.
“... At an early age the essential ingredient
that is added to the narcissism of the sociopath is an attitude
of saying to themselves ... ‘Fuck it. I don't care,’ they say to
“After awhile the process becomes unconscious
and they don't even think anymore about the consequences or they
don't even think about how it affects people or what it says
about them. They just react and this is the impulsivity of the
sociopath and that's why they are in trouble with the law and
Dr. Fason further testified that physical
abuse was one of many possible triggering mechanisms for what he
later termed “secondary narcissistic disturbance,” this
regression back to the narcissistic phase brought on by trauma.
Through a series of hypothetical questions counsel for appellant
established that many of the circumstances of appellant's
brutalized past were either contributory to or indicative of
this kind of sociopathic personality. FN3
FN3. Asked on crossexamination whether he
could say whether appellant's sociopathic personality was of the
primary or secondary narcissism type, Dr. Fason replied he did
not have sufficient data, but his “hunch” is appellant's is of
Moreover, Fason continued, appellant's IQ, as
determined by Dr. Brown, represents “an intellectual age of
about 8.” Most people in appellant's IQ range come to depend
upon someone of average intelligence, a friend or parent, to
help them cope; a “mentor” “that kind of functions as an
auxillary [sic] intelligence for them.” A sociopathic
personality, however, is not likely to develop such a
relationship.FN4 FN4. There was no testimony regarding the
synergistic effect, if any, between appellant's mental
defectiveness and his sociopathic personality disorder.
These mitigating facts are quite similar to
those detailed in Ramirez v. State, 815 S.W.2d 636, at 655 (Tex.Cr.App.1991),
wherein the Court reversed the conviction for failure of the
trial court sua sponte to give a Penry instruction. Like Ramirez,
appellant tested in the “mentally defective” range. See also Ex
parte Goodman, 816 S.W.2d 383 (Tex.Cr.App.1991); Ex parte McGee,
817 S.W.2d 77 (Tex.Cr.App.1991); Ex parte Williams, 833 S.W.2d
150 (Tex.Cr.App.1992). And appellant suffered the same variety
of family abuse as Ramirez, only worse.
Recent decisions from this Court have
required as a condition of reversal on the basis of Penry error
“some testimony indicating a nexus between [the accused's]
childhood circumstances and the commission of the crime ...
indicative of a lessened moral blame-worthiness.” Nobles v.
State, 843 S.W.2d 503, 506 (Tex.Cr.App.1992). See also Goss v.
State, 826 S.W.2d 162 (Tex.Cr.App.1992) (Plurality opinion);
Lackey v. State, 819 S.W.2d 111 (Tex.Cr.App.1991) (Opinion on
appellant's motion for rehearing). Cf. Draughon v. State, 831
S.W.2d 331, at 339 (Tex.Cr.App.1992) (where appellant's mother
and sister were physically abused by his step-father, but
appellant himself was not, “we are not persuaded that any
substantial portion of society shares a belief in the reduced
culpability of persons disadvantaged in the way he describes.”).
The instant record contains evidence from
which a rational jury could infer that appellant's conduct in
this cause was “attributable to” his sociopathic personality
disorder, which in turn was brought on by trauma emanating from
his “disadvantaged background.” Penry v. Lynaugh, supra, 492 U.S.
at 319, 109 S.Ct. at 2947, 106 L.Ed.2d at 278, quoting
California v. Brown, 479 U.S. 538, at 545, 107 S.Ct. 837, at
841, 93 L.Ed.2d 934, at 942 (1987) (O'Connor, J., concurring).
We hold that this evidence provides a sufficient “nexus between
[appellant's] childhood circumstances and the commission of the
crime.” Nobles v. State, supra.
In any event, since Nobles was decided the
Court has still not required an express showing of “nexus”
between evidence of mental defectiveness and the offense on
trial. Ex parte Williams, supra. We conclude that appellant
presented evidence that “has a tendency to reduce his moral
culpability in a way not exclusively related to the
deliberateness of his criminal conduct, the provocative behavior
of his victim, or the probability of his future dangerousness[.]”
Gribble v. State, 808 S.W.2d 65, at 75 (Tex.Cr.App.1990). On
authority of Ramirez and Williams, both supra, we hold that
appellant was entitled to a jury instruction authorizing the
jury to impose a sentence less than death on the basis of this
In his fifth point of error appellant
contends the evidence does not support the jury's affirmative
finding to the second special issue, viz: “whether there is a
probability that the defendant would commit criminal acts of
violence that would constitute a continuing threat to society.”
Article 37.071(b)(2), supra.
The State introduced two pen packets at the
punishment phase of trial, reflecting convictions for burglary
of a habitation in 1977 and 1978, and, in 1985, two convictions
for felony theft and one for forgery. It was shown by testimony
that appellant took, inter alia, some ten assorted firearms from
the residences he broke into in 1977 and 1978. One of the 1985
felony thefts involved breaking into a residence as well, during
which appellant took a pistol. We have observed that “though
burglary is not necessarily a violent crime against a person, it
is certainly pregnant with that potential;” that it may be a
“harbinger” of future violence. King v. State, 631 S.W.2d 486,
at 503 (Tex.Cr.App.1982) (emphasis in the original).
In the instant offense the evidence shows
appellant shot his victim in the temple at point blank range in
the course of yet another burglary. All of this demonstrates a
propensity to commit potentially violent crimes and a readiness
to use lethal force in the process. Especially in combination
with Dr. Fason's “double-edged” diagnosis of appellant as a
sociopathic personality, see ante, this evidence provided the
jury with a rational basis to answer the second special issue “yes.”
Burns v. State, 761 S.W.2d 353 (Tex.Cr.App.1988). Appellant's
fifth point of error is overruled.
Because the charge at punishment did not
authorize the jury to impose a sentence less than death on the
basis of evidence presented that had mitigating significance
beyond the scope of the Article 37.071(b) special issues,
appellant's death sentence violates the Eighth Amendment. Penry
v. Lynaugh, supra. Accordingly, the judgment of the trial court
is reversed and the cause is remanded for new trial.FN5
FN5. The Legislature amended Article 44.29(c)
in 1991 to provide that error committed only in the punishment
phase of a capital murder prosecution will not result in a whole
new trial, as before, but only in a new punishment proceeding.
See Acts 1991, 72nd Leg., ch. 838, p. 2900, § 1, eff. Sept. 1,
1991. However, the Legislature expressly made this amendment
prospective only. Id., § 5. For this reason we need not address
points of error alleging trial error in the guilt/innocence
phase of trial.