Ex parte Jennings

EX PARTE ROBERT MITCHELL JENNINGS, Applicant

NO. WR-67,208-03

NO. WR-67,208-04

COURT OF CRIMINAL APPEALS OF TEXAS

May 16, 2018

ON APPLICATIONS FOR POST-CONVICTION WRITS OF HABEAS CORPUS IN CAUSE NO. 506814 IN THE 208^TH DISTRICT COURT HARRIS COUNTY

ALCALA, J., filed a concurring and dissenting opinion in which WALKER, J., joined.

CONCURRING AND DISSENTING OPINION

Robert Mitchell Jennings, applicant, was sentenced to death about thirty years ago under the former capital sentencing scheme that did not include a mitigation special issue in its jury instructions.¹ The jury that sentenced him to death, therefore, was never permittedto consider whether his life should be spared due to mitigating evidence that he was remorseful for causing the death of the victim. Because the federal Constitution requires that a jury consider this type of mitigating evidence, I would hold that this Court should remand this case to the habeas court for findings of fact and conclusions of law to evaluate whether applicant's evidence of remorse rises to the level that he is entitled to a new punishment hearing for another jury to ascertain whether his life should be spared due to his mitigating evidence. Accordingly, I would reopen applicant's -02 habeas application in which he argued that his death sentence should be vacated due to the jury's failure to consider his mitigation evidence. I conclude that reopening applicant's -02 application is appropriate here because I believe that this Court previously misapplied the applicable law and failed to fully consider the entire record in this case. I, therefore, respectfully dissent from this Court's implicit decision declining to reopen the -02 application. Because applicant presents essentially that same argument in the instant -04 writ application, I concur in this Court's judgment dismissing that application on the basis that it is procedurally barred as a subsequent application. Furthermore, I respectfully dissent from this Court's dismissal of applicant's -03 writ application because I would remand a portion of applicant's complaints to the habeas court for findings of fact and conclusions of law addressing applicant's challenge that his confinement for about thirty years awaiting the imposition of his death sentence constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. In this opinion, I do not decide the ultimate question of whether applicant should obtain relief from his death sentence. Rather, I conclude that applicant has presented adequate evidence to warrant a further evidentiary hearing in the habeas court with findings of fact and conclusions of law by that court. I explain my conclusion by addressing applicant's two complaints that his death sentence was obtained in violation of the federal Constitution due to the absence of a proper mitigation instruction and due to his extended confinement while awaiting the imposition of his sentence.

I. Constitutionality of Applicant's Death Sentence in the Absence of a MitigationInstruction

Applicant asserts that, at the punishment stage of his trial, the court admitted a recording of his post-arrest statement to the police in which he expressed remorse for shooting the victim. Applicant suggests that he is entitled to a new punishment hearing because the absence of a proper mitigation instruction resulted in an invalid death sentence that was obtained by a jury that was never permitted to consider whether his life should be spared due to his remorse for his criminal conduct. I agree with applicant to the extent that this claim should be remanded to the habeas court for further proceedings. I explain my conclusion by discussing the applicable law for mitigation instructions at the punishment phase of a capital murder trial, the application of that law to applicant's evidence of remorse, and I then address how applicant's mitigation challenge fits within the procedural posture of the habeas proceedings at issue in this case.

A. Applicable Law for Mitigation Instructions

It is by now well established that a defendant is constitutionally entitled to a mitigation special issue when he presents relevant mitigating evidence during the punishment phase of a capital murder trial. Under those circumstances, the Supreme Court has held that the jury must be given instructions that allow the jurors to give full effect to that mitigating evidence and to express a reasoned moral response to it in deciding whether to impose the death penalty. See Penry v. Lynaugh, 492 U.S. 302, 327-28 (1989) (Penry I). The Supreme Court has explained, "[S]entencing juries must be able to give meaningful consideration and effect to all mitigating evidence that might provide a basis for refusing to impose the death penalty on a particular individual, notwithstanding the severity of his crime or his potential to commit similar offenses in the future." Abdul-Kabir v. Quarterman, 550 U.S. 233, 246, 260 (2007). Thus, the sentencer must not have been "'precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.'" Penry I, 492 U.S. at 317 (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978)). "[W]hen the jury is not permitted to give meaningful effect or a 'reasoned moral response' to a defendant's mitigating evidence—because it is forbidden from doing so by statute or a judicial interpretation of a statute—the sentencing process is fatally flawed." Abdul-Kabir, 550 U.S. at 264.

Ordinarily, for him to be entitled to a mitigation special issue, a defendant must merely have some small quantity of relevant evidence that a juror may have reasonably determined would have mitigated against the imposition of the death penalty. The Supreme Court has explained that there is a low threshold with respect to what types of evidence may constitute relevant mitigating evidence in death penalty cases. See Tennard v. Dretke, 542 U.S. 274, 285 (2004). In Tennard, the Supreme Court explained that relevant mitigating evidence is "evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value." Id. at 284 (quoting McKoy v. North Carolina, 494 U.S. 433, 440 (1990)). Once this "low threshold for relevance is met, the Eighth Amendment requires that the jury be able to consider and give effect to a capital defendant's mitigating evidence." Id. at 285.

When a defendant is seeking a punishment retrial due to the absence of a mitigation instruction, he must further show that the entire jury instructions in the case did not permit the jury to express its reasoned moral response to his mitigating evidence. The Supreme Court has indicated that the question of whether resentencing is constitutionally required due to the absence of a specific mitigation instruction under Texas's former sentencing scheme depends on the nature of the mitigating evidence presented in the case. See Abdul-Kabir, 550 U.S. at 256-59, 263-65. In particular, the relevant question is whether the mitigating evidence presented in the case has relevance to a defendant's moral culpability that goes beyond the scope of the special issues, thus making the special issues an inadequate vehicle for the jury to express its reasoned moral response to that evidence and requiring resentencing with a proper mitigation instruction. Id. at 257. In Abdul-Kabir, the Supreme Court explained that a mitigation instruction was constitutionally required there because the defendant's evidence "did not rebut either deliberateness or future dangerousness but was intended to provide the jury with an entirely different reason for not imposing a death sentence." Id. at 259. Thus, it is constitutional error to have denied a mitigation instruction in any case in which "the defendant's evidence may have meaningful relevance to the defendant's moral culpability 'beyond the scope of the special issues.'" Id. at 252 n.14 (quoting Penry I, 492 U.S. at 322-23). Therefore, depending on the type of mitigation evidence that was introduced at a defendant's trial, the absence of a proper mitigation instruction could amount to a constitutional violation requiring resentencing if the jury was not provided an adequate vehicle for expressing its reasoned moral response to that evidence within the scope of the former special issues. See id.

So the question in a habeas proceeding, as here, where an applicant brings a complaint about the absence of a mitigation special issue under circumstances where the record shows evidence of his remorse, is whether the evidence of remorse constitutes relevant mitigation evidence, and if it does, whether the punishment instructions as a whole permitted the jury to give full, meaningful consideration to that evidence even in the absence of a mitigation instruction. Recently, a federal district court in Texas has addressed that precise question and held that remorse evidence may be properly considered as mitigation evidence and that, in the absence of a proper mitigation instruction, Texas's former special issues were inadequate to permit the jury to express its reasoned moral response to that evidence. See Williams v. Davis, 192 F. Supp.3d 732, 768-69 (S.D. Tex. June 28, 2016). In Williams, the federal district court overturned this Court's denial of state habeas relief and granted federal habeas relief to a Texas capital defendant. Id. at 771. The federal district court determined that this Court had unreasonably applied federal law when it concluded that Williams' mitigating evidence of remorse could be given meaningful consideration by the jury within the scope of the former special issues. Id. at 768, 770. That court explained that evidence of remorse is "plainly relevant" mitigation evidence that speaks to a defendant's moral character and that a mitigation instruction was...