Stewart v. State

¶1dissenting.

¶2Given the facial narrowness of Article 37.071(b)(2), V.A.C.C.P.1 it is certainly not specious to argue, as did appellant, that we cannot be certain that the jury reached its decision with due consideration to whatever mitigating circumstances appellant could proffer. Yet, Judge McCormick’s reply seems intentionally unresponsive: the appellant did not prove that the jury did not properly consider mitigating circumstances.2 In truth, no party has a “burden of proof” in this matter. The State of Texas, however, does have duties to ensure an accused those processes which are due under the law generally, and that the jury is given adequate guidance in its deliberations specifically.

¶3Since 37.071(b)(2) was tentatively approved in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), this Court has brooked no argument that (b)(2) may, standing alone, be an inadequate guide when it comes to consideration of mitigating circumstances. Rather, as Judge McCormick sees it, the question of guidance was “settled” in Quinones v. State, 592 S.W.2d 933, 947 (Tex.Cr.App.1980), wherein Judge Dally opined:

“The jury can readily grasp the logical relevance of mitigating evidence to the issue of whether there is a probability of future criminal acts of violence.”

¶4No doubt this is true; its significance, however, is unclear. For, in answering (b)(2), a jury would decidedly consider the range and severity of the defendant’s prior criminal conduct; yet truly “mitigating” evidence3 — such as a mental disease or defect, a deprived, abusive childhood or the youth of the defendant — while militating against a death sentence in general, surely has tremendous specific probative weight in favor of answering the future dangerousness question “yes.” Thus, any mitigating force such evidence might have in the minds of jurors in a particular case is emasculated by the narrow language of (b)(2), when unaided by an instruction as to the permissible use of that “mitigating” evidence.

¶5A brief look at Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) will illuminate the point. There, the Supreme Court held that the senteneer is required to consider the following evidence which the court itself characterized as “mitigating:” that the 16 year old Eddings was a child of divorce and had lived without rules or supervision since he was five; that his mother was an alcoholic and a prostitute; that at the age of 14 he was sent to live with his father who attempted to control the disturbed adolescent with excessive physical punishment; that Ed-dings was emotionally scarred; and that his mental development was at a level several years below his age.

¶6Depending on one’s perspective and focus, such evidence is at once damning and mitigating. It is this very paradox that renders asking the jury questions only in the language of 37.071(b) constitutionally insufficient. The truth is that many vi*126cious criminals suffered at the hands of irresponsible and unfit parents; common knowledge holds that many violent criminals were physically abused children and that the American crime rate rises and falls in direct proportion to the number of our citizens who happen to be under 35. When we prosecute such a person and place in a jury’s hands the decision of whether that person is to live or die, is it enough to protest that we have allowed him to adduce mitigating evidence, yet take no measure to ensure the jury’s understanding of their role in regard to that evidence? I think not. At risk of redundancy, a history of deprivation and misfortune may, in some cases, moderate blameworthiness, even while the same history may establish the probability of a defendant committing future acts of violence. Or, similarly, the very mental or emotional disturbance which impairs a defendant’s ability to conform to the law might lead the jury to exercise mercy.

¶7In sum, a defendant is entitled to jurors whose consideration of mitigating circumstances is not limited to whether that evidence does or does not indicate future dangerousness. The jury must not be precluded in law or in practice from according independent weight to factors that are mitigating but perhaps irrelevant to the probability issue of future dangerous conduct. See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); and, Eddings, supra; cf. Woodson v. North Carolina, 428 U.S. 280, 286, 96 S.Ct. 2978, 2982, 49 L.Ed.2d 944 (1976). Rather than acknowledge the circumstantial inadequacy of 37.-071(b)(2) to accomplish the mandate of Lockettand its progeny, a majority of this Court has blithely said, time and again, that in considering whether to impose a death sentence the jury must be allowed to consider whatever evidence of mitigating circumstances the defense can bring before it. But they also have repeatedly denied the utility, much less necessity, of informing the jury that they may so consider that evidence.

¶8If we are to ensure the constitutionality of 37.071, we must not only give lip service to broadly interpreting it; we must also apply it as interpreted. This could easily be effected by requiring a jury instruction on mitigating evidence.

¶9It is folly for the Court to first acknowledge a capital murder defendant’s right to produce mitigating evidence, give the jury no guidance in its use, then presume these 12 laypersons know the holdings of Lockettand Eddingsuntil the defendant affirmatively proves the contrary!

¶10The defendant is entitled to jurors who will consider all mitigating circumstances. Rather than rely on speculation and assumptions, as does the Court today, defense counsel would be advised to rely on prospective jurors’ promises to give consideration — independent of the narrow special issues — to whatever mitigating circumstances the defendant may adduce for the purpose of deciding whether “mercy” is appropriate in the case. Counsel should take the responsibility upon themselves to inform the jurors of the holdings of Lock-ett and Eddingswhich constitute a part of “the law applicable to the case upon which the defense is entitled to reply ... as mitigation ... of the punishment,” and exercise challenges for cause to jurors who cannot follow them. Article 35.16(c)(2), V.A.C.C.P.4 If the Court is sincere in its intentions to comply with Lockettand its progeny, such a procedure should be welcomed with open arms.

¶11Because a majority do not evince that intention today, I dissent.