Dallas man executed for 1998 murder of
By Kristin Edwards - Huntsville Item
July 10, 2008
— A 28-year-old man convicted of the 1998
murder of his adoptive parents was executed Thursday shortly
after 6 p.m. Carlton Akee Turner, the first of three death row
inmates scheduled for execution this month, was pronounced dead
at 6:16 p.m. after receiving a lethal injection administered
seven minutes earlier.
“Carlton Turner was executed at the Texas
Department of Criminal Justice Walls Unit Thursday night,
marking the second execution to take place in Texas this year,”
said Michelle Lyons, TDCJ public information officer. “Turner’s
was the first of three executions scheduled in July.”
In the hours before his execution, Lyons said
Turner was very quiet and did not display significant emotion.
During his last statement, Turner apologized directly to his
uncle, Henry Kyle Johnson, the brother of his adoptive mother,
Tonya Turner. No immediate family members of Turner’s adoptive
father, Carlton Turner, were present.
“First of all, I’d like to tell my uncle Kyle
that I’m sorry, and I’ve been sorry for the last 10 years,”
Turner said. “I wish you could accept my apology, but I know I
can’t even ask for your forgiveness. “I take this penalty as a
man, but this doesn’t solve anything. I’ve done what I could to
help the rest of the family. I was wrong, but I am still your
nephew no matter what you believe, and I love you.”
Following the execution, Johnson held a small
press conference where he discussed his feelings about the
execution and the effect the event would have on the remainder
of his family. “I wanted to see this through — I needed to see
this through,” he said. “I mean, I can’t speak for my sister or
my brother-in-law because they’re gone, but for me and the
remaining members of the family who are still feeling pain every
day of their absence, I needed to be here.”
Johnson said there were signs during Turner’s
childhood which might have indicated that he would misbehave,
but none which would indicate the capability to commit the
crimes he did. “As he neared about 12-years-old, we thought he
was just going through the average growing pains, and nobody
knew how serious it was going to become,” he said. “His whole
demeanor changed over the last few years before he committed the
crime.” Johnson described his deceased sister as an angel, and
he said she was instrumental in helping to raise him.
Turner’s apology, nonetheless, was meaningful
to Johnson. “I do accept his apology,” he said. “It took a long
time coming, and this is the first time he’s ever apologized. I
didn’t think he was ever going to. “I mean, he could have chosen
not to say anything, so it makes it easier. It does.” Turner was
convicted in 1999 for shooting his adoptive parents in the head.
According to a press release from the Texas
attorney general’s office, Turner put the bodies of his parents
in their garage after the shootings, took their credit cards and
cash and went shopping.
The next scheduled execution, that of 40-year-old
Derrick Sonnier, will take place July 23.
Information Center by David Carson
Carlton Akee Turner Jr., 29, was executed by
lethal injection on 10 July 2008 in Huntsville, Texas for the
murder and robbery of his parents.
On 8 August 1998, Turner, then 19, shot his
adoptive parents, Carlton and Tonya Turner, in their home in
Irving. After shooting both of them in the head, he moved their
bodies into the garage. After the killings, he threw a party at
the house for his friends, and he bought clothing and jewelry
with the couple's cash and credit cards. He also forged a check
from his parents' checkbook and stole some of their jewelry.
Neighbors called police after seeing Turner
drive his parents' cars - something they knew he was not allowed
to do - and noticing they hadn't seen the couple in several days.
Police went to the house and arrested Turner on outstanding
traffic warrants. They were led to the bodies by the odor coming
from the garage.
At his trial, Turner testified that he shot
his father in self-defense, but this position was contradicted
by his pre-trial statements in newspaper and television
interviews that he had nothing to do with the murders. He
offered no explanation at his trial for his mother's murder. He
told the jury that it made no difference to him whether he was
given a life sentence in prison or sentenced to death.
Turner had previous convictions for
automobile theft and aggravated robbery. He also had a juvenile
record for sexually assaulting an 8-year-old boy when he was 14.
A jury convicted Turner of capital murder in
June 1999 and sentenced him to death. The Texas Court of
Criminal Appeals affirmed his conviction and sentence in
September 2002. His subsequent appeals in state and federal
court were denied, and in June 2007, a judge signed his death
warrant, ordering him to be executed on 27 September.
On 26 September, however, the United States
Supreme Court agreed to hear a Kentucky case challenging the
constitutionality of lethal injection. Turner was granted a stay
on the evening of his scheduled execution. Seven months later,
on 16 April 2008, the Supreme Court upheld lethal injection. In
the following weeks, Turner's appeal was denied, and the stay of
execution was lifted, and a new death warrant was signed.
"I was immature and arrogant," Turner told a
reporter in an interview from death row. He said that he was
sorry for the killings, which he blamed on anger and hatred. He
said that he shot his 43-year-old father in self-defense after
repeated instances of abuse. As for why he killed his mother, "I
felt my mother couldn't live without my father."
Turner's mother's brother, Kyle Johnson,
attended the execution. "First of all, I'd like to tell my uncle
Kyle that I'm sorry, and I've been sorry for the last ten years.
I wish you could accept my apology, but I know I can't even ask
for your forgiveness," Turner said to him in his last statement.
" I was wrong, but I am still your nephew, no matter what you
believe, and I love you" he said. The lethal injection was then
started. He was pronounced dead at 6:16 p.m.
Johnson spoke to reporters afterward. He said
that Turner showed signs as a pre-teen that he would have
problems. "We thought he was just going through the average
growing pains, and nobody knew how serious it was going to
become," he said. Johnson also said that Turner's apology was
meaningful to him. "I do accept his apology. It took a long time
coming, and this is the first time he's ever apologized. I
didn't think he was ever going to. I mean, he could have chosen
not to say anything, so it makes it easier. It does."
Texas, Virginia execute convicted killers
July 10, 2008
HUNTSVILLE, Texas (Reuters) - A man convicted
of murdering his adoptive parents was put to death by lethal
injection in Texas on Thursday, the second prisoner executed in
the state since the U.S. Supreme Court lifted an unofficial
death penalty moratorium in April. Carlton Turner's was the
first of three executions scheduled for July in Texas, the
country's busiest death penalty state. Texas has 14 additional
executions slated for this year.
Turner, 29, was convicted of fatally shooting
his adoptive parents -- Carlton Sr., 43, and Tonya, 40 -- in
their Irving, Texas, home in August 1998. Turner, 19 at the
time, shot both victims several times in the head, stashed their
bodies in the garage, took their cash and jewelry, and threw a
party for his friends at the house.
The Supreme Court in April rejected by a vote
of 7-2 a challenge by two Kentucky death row inmates who argued
the current lethal injection method inflicts needless pain and
suffering in violation of a constitutional ban on cruel and
unusual punishment. Texas was the fifth state to resume
executions after the high court rejected the legal challenge to
the three-drug cocktail used in most executions for the past 30
Turner was the 407th inmate executed in Texas
since 1982, when the state resumed executions following the
Supreme Court's reinstatement of capital punishment in 1976, and
its second this year. Texas executed convicted killer Karl
Eugene Chamberlain on June 11.
In his last statement, Turner apologized to
his family. "I know I was wrong. I accept responsibility as a
man," he said.
For his last meal he requested fried chicken,
cheese and onion omelets and chocolate cake.
The state of Virginia also carried out a
death sentence on Thursday, executing a man convicted in 2002 of
murdering a 79-year-old neighbor during a robbery. Kent Jackson,
26, was put to death by lethal injection after Gov. Timothy
Kaine, a Democrat, refused to grant him clemency and the U.S.
Supreme Court rejected his request for a stay of execution and
turned down his appeal.
A Department of Corrections spokesman quoted
Jackson as saying in his last statement: "You all can't kill me.
I'm the king. Remember me like you remember Jesus. I'll be
back." Jackson requested a last meal, but asked that the
contents not be released, Corrections spokesman Larry Traylor
With 101 executions since 1976, Virginia
ranks second in the nation behind Texas, according to the Death
Penalty Information Center, a group opposed to capital
punishment. Oklahoma is ranked third, with 86 executions.
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
On 08/08/98, in Irving, Texas, Carlton Akee
Turner, Jr. fatally shot his adoptive parents. The 19-year-old
shot and killed his parents in their home and put their bodies
in the garage. After this, Turner took their jewelry and went
shopping with his parents’ cash and credit cards and a check
forged on their account.
The Turners' co-workers became alarmed when
they had not seen or heard from them in several days. Irving
Police obtained a search warrant for the family's residence and
they discovered both victims in the garage, deceased. Both
Carlton Sr. and Tonya Turner died of gunshot wounds.
Turner testified at trial that he shot his
father in self-defense. This self-defense theory contradicted
his pretrial statements in newspaper and television interviews
that he had nothing to do with the murders. Turner offered no
explanation at trial for killing his mother. He testified that
he felt nothing when he killed his parents.
Turner has a long history of violence and
other inappropriate behavior. Turner claimed that a history of
parental abuse largely explains his violent behavior.
As a final statement before
his execution, Turner apologized for killing his adoptive
parents a decade ago at their suburban Dallas home. "I've been
sorry for the last 10 years. I wish you could accept my apology,"
he said to an uncle who watched impassively through a window. "I
know you can't give your forgiveness. It's OK. I understand. I
know I caused a lot of pain." Turner said he hoped his family
could come to terms with what he did. "I accept the
responsibility. I take this penalty as a man. I am sorry."
Turner v. State, 87 S.W.3d 111 (Tex.Crim.App.
2002) (Direct Appeal).
Defendant was convicted in the trial court,
Dallas County, Karen J. Greene, J., of capital murder. Defendant
appealed. The Court of Criminal Appeals, Hervey, J., held that:
(1) prosecutor's comments to several veniremembers and eventual
jurors concerning parole did not convey to jury that it could
not consider a life-sentenced defendant's parole eligibility,
and thus, defendant was not denied a fair punishment hearing;
(2) trial court's parole law jury instruction did not inform
jury that it could not consider a life-sentenced defendant's
parole eligibility, and thus, instruction did not deny defendant
a fair punishment hearing; and (3) prosecutor's reference in
closing arguments, in which prosecutor informed jury it was to
consider defendant's self-defense claim from standpoint of an
ordinary and prudent person, and not from the standpoint of a
psychopath and a sociopath, was proper. Affirmed.
HERVEY, J., delivered the opinion of the
Court in which KELLER, P.J., MEYERS, PRICE, KEASLER, HOLCOMB and
COCHRAN, JJ., joined.
A jury convicted appellant of capital murder.
The trial court sentenced appellant to death pursuant to the
jury's answers to the special issues submitted at the punishment
phase. Appellant raises fourteen points of error in his
automatic direct appeal to this Court. We affirm.
The 19-year-old appellant shot and killed his
parents in their home and put their bodies in the garage. After
this, appellant went shopping with his parents' cash and credit
cards. Appellant testified at trial that he shot his father in
self-defense. This self-defense theory contradicted appellant's
pretrial statements in newspaper and television interviews that
he had nothing to do with the murders. Appellant offered no
explanation at trial for killing his mother. He testified that
he felt nothing when he killed his parents.
Appellant has a long history of violence and
other inappropriate behavior. Appellant claimed that a history
of parental abuse largely explains his violent behavior. The
trial court submitted a parole law jury instruction which, among
other things, instructed the jury that a life-sentenced
appellant would not be eligible for parole for 40 years.
In points of error one and two, appellant
claims that his trial counsel was ineffective for not objecting
to the prosecution's voir dire comments to several veniremembers
and eventual jurors that the jury could not consider a life-sentenced
appellant's parole eligibility because of possible future
legislative changes to the parole laws. In point of error three
appellant claims that these prosecutorial comments were also
“fundamental error” because they denied him a fair punishment
hearing under the Eighth and Fourteenth Amendments.
The record reflects that appellant committed
this offense before September 1, 1999, so he was not entitled to
the parole law jury instruction currently mandated by Article
37.071, Section 2(e)(2)(B), or to any other judicially-crafted
parole law jury instruction. See Section 2 of Acts 1999, 76th
Leg., ch. 140; Smith v. State, 898 S.W.2d 838, 846-53 (Tex.Cr.App.),
cert. denied, 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 80
(1995). The record, however, also reflects that neither party
objected to this instruction in the charge.
The voir dire examination of veniremembers
and eventual jurors Brown, Davidson and Graver typifies the
prosecution's voir dire comments that appellant now finds
objectionable. The prosecution told Brown: [PROSECUTION]:
Finally, let's talk about parole for just a minute. Remember, I
told you; I think the Judge has too, in a capital murder case
with the guilty verdict, there is only two possible verdicts,
either life or death, and now in the State of Texas if the
person gets a life sentence for capital murder, the law says he
has to serve forty calendar years before he becomes eligible for
parole. That means, as the law is right now, and of course,
parole laws are always subject to change, but as they are right
now, that means you have got to serve forty calendar years, day
for day; no hope of ever getting out at the end of that forty-year
period; then you start becoming eligible for parole, but not
Now let me tell you the instruction that you
get in this case as a juror. Judge Greene would instruct you if
you find this man guilty of capital murder, that you are not to
consider parole for any purpose, whatsoever. Just like the
failure to testify, you just say, that doesn't matter to me. Why,
because, see, parole is not for you to decide. It's a matter
that is solely within the discretion of the Board of Pardons and
Paroles, and the law is subject to change also.
What a life sentence means today, well, it's
been different in the past; it may be different in the future.
For that reason, here is what I tell jurors: When you see a life
sentence mentioned in this case, just take it to mean life. That
is it, day for day, rest of his life. Just think of it that way.
In this case, if you got an instruction not to consider parole,
can you follow that instruction also?
The prosecution told Davidson: [PROSECUTION]:
Now, one other thing in this case, let's talk about parole for
just a minute. I can tell you this: The Judge has told you there
is only two possible sentences for capital murder. It's either a
life sentence or a death sentence. In Texas, if a person is
convicted of a capital murder and they receive a life sentence,
that means they have to serve at least forty calendar years, day
for day, before they become eligible for parole; so, they serve
forty calendar years, and then, then they would, at least,
become eligible for parole; not to say that they would be
paroled, but that is the very first time that they could be
considered for parole.
And, of course, parole laws change from year
to year; I mean, I have been down here, and I have seen them
change dramatically, I think three or four times, you know, in
my career; so, there is nothing to say they are going to stay
the same next year or five years from now.
If you are a Member of the Jury in this case,
Ms. Davidson, you would be instructed by Judge Greene that you
were not to consider parole in determining what verdict that you
are going to reach on punishment. Okay. Again, it's just like
the Defendant not testifying. You go back in there, you know; it
would be improper, for instance, to be thinking, well, you know,
if I give this man a life sentence, he'll serve forty years or
life means forty years. Just forget about that.
I tell jurors to do this. That if you see a
life sentence in this case, just consider it to be just that,
life, period, and forget about trying to guess when he's going
to get out of the penitentiary because, see, parole is not up to
you and me. It's up to the Board of Pardons and Paroles in
Austin. They have got complete control of that. For us to be
thinking about it, really, is meaningless; so, in this case, if
you got that kind of instruction, could you agree that you would
not consider parole during your deliberations?
A. The time of parole?
Q. Yes, ma'am.
and, the prosecution told Graver: [PROSECUTION]:
Here is another issue that sometimes comes up in a case such as
this one, and it would be the issue of parole. In Texas, if an
individual is convicted of capital murder, there is only two
possible sentences. They are either going to get a life sentence
or they get the death sentence. That is it. If a person is
convicted of capital murder and receives a life sentence, that
person will have to serve at least forty calendar years before
he becomes eligible for parole. That means he's staying in there
at least forty years. At the end of that forty year period, he
may come up for parole. He may not, but he has got to do at
least forty years. The law in this case would be this: If you
are selected as a juror in this case and we got to the
punishment phase, Judge Greene would instruct you that you are
not to consider parole for any purpose, whatsoever. Don't be
speculating or thinking on how quickly someone may be out on a
life sentence because, you see, two things: Parole laws change.
I have seen them change two or three times in my career, and
they may change next year, five years, ten years from now; so,
what is a life sentence today may not be the same five or ten
years from now. Secondly, whether or not someone receives parole
is not up to us. It's up to the Board of Pardons and Paroles in
Austin. For that reason, jurors really don't have anything to do
In this case, if you were selected as a juror,
could you assure me that you would not consider parole for any
purpose? Don't be thinking about it. Wouldn't be speculating or
thinking about how quickly someone may get out on a life
Appellant claims that the prosecution's
comments contradicted the parole law jury instruction by
informing the veniremembers that the jury could not consider a
life-sentenced appellant's parole eligibility because of
possible future legislative changes to the parole laws.
Appellant claims that these comments should be reviewed pursuant
to our unpublished decision on original submission in Burton v.
State, slip op. at 5-11 (Tex.Cr.App. No. 73,204, delivered
October 25, 2000) (unpublished).
That opinion was withdrawn on rehearing and
replaced with another unpublished decision in Burton v. State,
slip op. at 1 (Tex.Cr.App. No. 73,204, delivered March 7, 2001)
(op. on reh'g) (unpublished) (improper for prosecution during
closing jury arguments to inform the jury that a life-sentenced
defendant could “walk the streets” in less time than what
current law provided because of possible future legislative
changes to the parole laws); but see Smith v. State, 898 S.W.2d
at 838, 849 n. 16 (Tex.Cr.App.), cert. denied, 516 U.S. 843, 116
S.Ct. 131, 133 L.Ed.2d 80 (1995). Unpublished decisions, however,
have no precedential value. See Tex.R.App.Proc. 77.3.
The prosecution's comments also did not
inform the veniremembers that the jury could not consider a life-sentenced
appellant's parole eligibility because of possible future
legislative changes to the parole laws or that the trial court
would so instruct the jury. Viewed in the context of the entire
voir dire, the prosecution's comments informed the veniremembers,
consistent with current law set out in Article 37.071, Section
2(e)(2)(B), that a life sentence meant at least 40 years and
that the jury should not speculate on when a life- sentenced
appellant might be released on parole when he became eligible
after serving 40 years.
By plucking the prosecution's voir dire
comments that the jury “should not consider parole for any
purpose” out of context, it is not unreasonable for appellant to
claim that this impermissibly conveyed to the jury that it could
not consider a life-sentenced appellant's parole eligibility.
But, viewing the entire voir dire, we find that the
prosecution's comments did not convey this.
For example, when the prosecution asked
Davidson, “... could you agree that you would not consider
parole during your deliberations,” Davidson responded, “the time
of parole?” This is consistent with the Article 37.071, Section
2(e)(2)(B), instruction that the jury should not consider when a
life-sentenced capital murder defendant might be released on
parole when that defendant becomes eligible for parole.
On this record, we cannot say that counsel
was ineffective for failing to object to the prosecutor's voir
dire comments since, viewed in the context of the entire voir
dire, they were not objectionable. See Strickland v. Washington,
466 U.S. 668, 687-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Points of error one through three are overruled.
In point of error eight, appellant claims
that the trial court's parole law jury instruction denied him a
fair punishment hearing because it instructed the jury that it
could not consider a life-sentenced appellant's parole
eligibility. The record reflects that the trial court submitted
a parole law jury instruction consistent with the one currently
set out in Section 37.071, Section 2(e)(2)(B).
You are instructed that under the law
applicable to this case, if the defendant is sentenced to
imprisonment in the Institutional Division of the Texas
Department of Criminal Justice for life, the defendant will
become eligible for release on parole, but not until the actual
time served by the defendant equals 40 years, without any
consideration of good conduct time. It cannot accurately be
predicted how the parole laws might be applied to this defendant
if the defendant is sentenced to a term of imprisonment for life
because the application of those laws will depend on decisions
made by prison and parole authorities, but eligibility for
parole does not guarantee that parole will be granted.
Immediately following this, the trial court
also instructed the jury as follows. Therefore, during your
deliberations, you are not to consider or discuss the possible
action of the Board of Pardon and Paroles or of the Governor, or
how long a defendant would be required to serve on a sentence of
life imprisonment, or how the parole laws would be applied to
this defendant. Such matters come within the exclusive
jurisdiction of the Board of Pardon and Paroles and are no
concern of yours.
Appellant claims that this part of the charge
denied him a fair punishment hearing because it instructed the
jury that it could not consider a life-sentenced appellant's
parole eligibility. We agree, however, with the State that this
part of the charge did not inform the jury that it could not
consider a life-sentenced appellant's parole eligibility.
Consistent with Article 37.071, Section 2(e)(2)(B), this part of
the charge instructed the jury not to consider how long a life-sentenced
appellant would serve after becoming eligible for parole.
We further note that the record is silent on
how the parole law jury instruction became part of the trial
court's charge. Compare Jimenez v. State, 32 S.W.3d 233, 238-39
(Tex.Cr.App.2000) (unobjected-to jury charge error case), with,
Prystash v. State, 3 S.W.3d 522, 529-31 (Tex.Cr.App.1999), cert.
denied, 529 U.S. 1102, 120 S.Ct. 1840, 146 L.Ed.2d 782 (2000) (invited
jury charge error case). If the trial court submitted it at
appellant's request, then appellant invited any error and he
cannot now be heard to complain. See Prystash, 3 S.W.3d at
If the trial court submitted it without
objection, then appellant cannot meet the statutory “egregious
harm” standard, because it is unlikely that the jury applied the
instruction in a way that prevented consideration of a life-sentenced
appellant's parole eligibility as a mitigating factor. See
Jimenez, 32 S.W.3d at 238-39; Smith, 898 S.W.2d at 857-72
(Clinton, J, dissenting) (explaining why a life-sentenced
capital murder defendant's parole eligibility could be
considered mitigating); cf. Ex parte Tennard, 960 S.W.2d 57, 61
(Tex.Cr.App.1997), cert. denied, 524 U.S. 956, 118 S.Ct. 2376,
141 L.Ed.2d 743 (1998) (constitutional issue in cases like this,
where constitutional issue is preserved, is whether there is a
reasonable likelihood that the jury applied the challenged
instruction in a way that prevents the consideration of
constitutionally relevant mitigating evidence).
Appellant made no claim before the jury that
a life-sentenced appellant's parole eligibility could have been
considered a mitigating factor. Also, neither party referred to
the parole law during the punishment phase or during closing
arguments at the punishment phase, thus the jury was not mislead
during jury arguments into believing that it could not so
consider a life-sentenced appellant's parole eligibility. And,
for the reasons set out in our discussion of points of error one
and two, the jury was not misled during voir dire.
Finally, given the evidence presented at
guilt/innocence and at punishment concerning the brutality of
this offense and appellant's history of violence, it is unlikely
that the jury's answers to the special issues turned on any
parole law considerations or any misunderstanding of the parole
law. On this record, we find no “egregious harm” from any error
in the parole law jury instruction. Point of error eight is
In point of error four, appellant claims that
the trial court erroneously overruled his objection to the
prosecution's closing argument at guilt/innocence which referred
to appellant as a psychopath and a sociopath. Appellant contends
that this argument encouraged the jury to disregard the trial
court's self-defense jury instruction. Appellant complains of
the following argument:
Reasonable belief, when we talk about this
business on self-defense, means a belief that would be held by
an ordinary and prudent person in the same circumstances as [appellant].
So, when [defense counsel] tells you to get in [appellant's]
head, first of all, you have to say you have to be in a place of
a reasonable person. Boom, right there, that out. He's a
psychopath; he's a sociopath-
Appellant objected to this argument as
“outside the record.” This trial objection does not comport with
appellant's appellate claim that the prosecution's argument
encouraged the jury to disregard the trial court's self-defense
instruction. Appellant, therefore, has procedurally defaulted
this appellate claim. See Tex.R.App.P. 33.1.
In addition, the argument informed the jury
that the law required it to consider appellant's self-defense
claim from the standpoint of an “ordinary and prudent person”
and not from the standpoint of a “psychopath or a sociopath.”
This argument was proper because it did not misstat self-defense
law and also because evidence was presented at guilt/innocence
that supports a finding that appellant is a psychopath and a
sociopath. Point of error four is overruled.
In points of error five through seven,
appellant claims the trial court erroneously admitted evidence
that, after killing his parents, appellant forged and cashed
three checks from their checking account. Appellant claims this
evidence was extraneous, irrelevant and overly prejudicial. One
of the capital murder theories upon which the jury was
instructed was murder in the course of a robbery. The trial
court, therefore, did not abuse its discretion to admit the
complained-of evidence to prove the underlying robbery offense.
Points of error five through seven are overruled.
In point of error nine, appellant claims the
trial court erred in failing to define the terms “probability,”
“criminal acts of violence,” and “continuing threat to society”
in the “future dangerousness” special issue. Because appellant
did not raise these claims at trial, he has procedurally
defaulted them on appeal. We have also held that the jury charge
does not need to define these terms. See Chamberlain v. State,
998 S.W.2d 230, 237-38 (Tex.Cr.App.), cert. denied, 528 U.S.
1082, 120 S.Ct. 805, 145 L.Ed.2d 678 (1999). Point of error nine
In point of error ten, appellant claims Texas
death penalty law violates the Eight and Fourteenth Amendments
by requiring at least ten “no” votes for the jury to return a
negative answer to the “punishment special issues.” We have
rejected this claim. See Pondexter v. State, 942 S.W.2d 577, 586
(Tex.Cr.App.1996), cert. denied, 522 U.S. 825, 118 S.Ct. 85, 139
L.Ed.2d 42 (1997). Point of error ten is overruled.
In points of error eleven and twelve,
appellant claims Texas death penalty law violates the state and
federal constitutions because it simultaneously restricts and
allows unlimited juror discretion to impose the death penalty.
Appellant relies on Justice Blackmun's dissenting opinion in
Callins v. Collins, 510 U.S. 1141, 114 S.Ct. 1127, 1128-38, 127
L.Ed.2d 435 (1994) (Blackmun, J., dissenting), to support his
argument. This Court, and the United States Supreme Court, have
rejected this claim. See Chamberlain v. State, 998 S.W.2d at
238; Callins, 114 S.Ct. at 1127-28 (Scalia, J., concurring).
Points of error eleven and twelve are overruled.
In points of error thirteen and fourteen,
appellant claims that the cumulative effect of the above
enumerated constitutional violations violates the state and
federal constitutions. Having found no constitutional violations,
we decide these claims are without merit. See Chamberlain, 998
S.W.2d at 238 (non-errors cannot cumulatively cause error).
Points of error thirteen and fourteen are overruled.
The judgment of the trial court is affirmed.
Turner v. Quarterman, 481 F.3d 292
(5th Cir. 2007) (Habeas).
Background: Following affirmance of
petitioner's state convictions for capital murder and imposition
of the death penalty, 87 S.W.3d 111, he filed petition for writ
of habeas corpus. The United States District Court for the
Northern District of Texas, Sidney A. Fitzwater, J., 2006 WL
694945, denied petition. Petitioner moved for certificate of
Holdings: The Court of Appeals, Jerry E.
Smith, Circuit Judge, held that:
(1) petitioner failed to make a substantial
showing that prosecutor's statements to jurors during voir dire
violated his rights under the due process clause of the Fifth
(2) COA would not issue on grounds of ineffective assistance of
(3) petitioner failed to make a substantial showing that state
trial court violated his right to due process by informing
jurors in capital murder trial that they were not to consider
the possibility of parole;
(4) petitioner failed to make a substantial showing that jury
instructions in capital murder trial were unconstitutionally
vague, depriving him of a fair trial; and
(5) COA would not issue on grounds of cumulative error. COA
JERRY E. SMITH, Circuit Judge: Carlton Turner
applies for a certificate of appealability (“COA”) from the
denial of his petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. Because he cannot make a substantial showing of
the denial of a federal constitutional right, we deny a COA.
Turner urges that the jury instructions were
unconstitutionally vague, depriving him of a fair trial, because
they failed to define “probability,” “criminal acts of violence,”
and “continuing threat to society.” The state habeas court
rejected this challenge, noting that these terms apply not to
the aggravating factors that determine death eligibility, but
rather to the special punishment issues that determine whether
the death penalty is appropriate. State Hab. Find. Nos. 91-92.
The court cited several state cases that demonstrate that a
refusal to define these terms poses no constitutional
FN6. State Hab. Find. No. 93 (citing Cantu v.
State, 842 S.W.2d 667, 691 (Tex.Crim.App.1992); Caldwell v.
State, 818 S.W.2d 790, 798 (Tex.Crim.App.1991)).
In Tuilaepa v. California, 512 U.S. 967, 114
S.Ct. 2630, 129 L.Ed.2d 750 (1994), the Court distinguished two
determinations made by capital juries: eligibility for the death
penalty and selection of the death penalty. Id. at 971, 114 S.Ct.
2630. The Court noted that at the eligibility step, the jury
must find at least one “aggravating circumstance (or its
equivalent)” and that this circumstance must not be
“unconstitutionally vague.” Id. at 972, 114 S.Ct. 2630.
By comparison, at the selection step, the
jury must be allowed to make “an individualized determination”
and to consider “relevant mitigating evidence of the character
and record of the defendant and the circumstances of the crime.”
Id. In this second step, the jury may even be given “unbridled
discretion in determining whether the death penalty may be
imposed.” Id. at 979-80, 114 S.Ct. 2630 (citations omitted).FN7
As the district court recognized, this court has rejected claims
alleging the vagueness of these very terms when applied to
FN7. See also Buchanan v. Angelone, 522 U.S.
269, 276, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998) (“[O]ur
decisions suggest that complete jury discretion is
FN8. See, e.g., Hughes v. Johnson, 191 F.3d
607, 615 (5th Cir.1999) (“We similarly have rejected contentions
that ‘probability’ and other terms included in the statutory
special issues are unconstitutionally vague.”) (citations
omitted); James v. Collins, 987 F.2d 1116, 1120 (5th Cir.1993)
(holding that terms used in special issues, including “probability,”
“criminal acts of violence,” and “continuing threat to society,”
“are not so vague as to require clarifying instructions.”).
Turner claims that Ring v. Arizona, 536 U.S.
584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which he cites for
the proposition that any fact that must be proved to render a
defendant eligible for the death penalty must be proved beyond a
reasonable doubt, compels a different result. This argument
misconstrues the Texas capital penalty framework.
Texas capital juries make the eligibility
decision at the guilt-innocence phase. See, e.g., Johnson v.
Texas, 509 U.S. 350, 362, 113 S.Ct. 2658, 125 L.Ed.2d 290
(1993). The terms about which Turner complains *300 are not
invoked until after the defendant has been judged death-eligible
and the jury is being instructed how to decide whether selection
of the death penalty is appropriate.
Ring is inapposite to any discussion of the
constitutional requirements of the selection phase. Because
Turner is unable to point to any clearly established federal law
under which the terms of the Texas sentencing instructions could
be unconstitutionally vague, he is unable to make a substantial
showing of the denial of a federal constitutional right, and we
deny a COA.
Turner has failed to make a substantial
showing of the denial of a federal constitutional right
regarding his first four claims, and his final two claims are
procedurally defaulted. Because he has pointed to no errors that
involve matters of constitutional dimension and that are
procedurally preserved for review, he has presented nothing to
cumulate. A COA is denied.
In summary, Turner has not shown that any of
his claims is debatable among jurists of reason, that a court
could resolve them in a different manner, or that the questions
are adequate to deserve encouragement to proceed further.
Because he has failed to make a substantial showing of the
denial of a constitutional right, his request for a COA is