Ex Parte Lucas

¶1OPINION ON REMAND FROM THE UNITED STATES SUPREME COURT

¶2Applicant Henry Lee Lucas was convicted of capital murder and sentenced to death for the murder and sexual assault of an unidentified woman in Williamson County. On direct appeal to this Court, we affirmed. Lucas v. State, 791 S.W.2d 35 (Tex.Crim.App.1989). Applicant then filed a post-conviction application for writ of habeas corpus. We denied relief. Ex Parte Lucas, 834 S.W.2d 339 (Tex.Crim.App.1992). The United States Supreme Court subsequently granted applicant’s petition for writ of certiorari, vacated our judgment, and remanded this ease for further consideration in light of Johnson v. Texas, — U.S. -, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993). We will again deny relief.

¶3In Johnson, the petitioner, Dorsie Lee Johnson, was found guilty of capital murder and sentenced to death. At the punishment phase of Johnson’s trial, the jury was instructed on special issues one and two.1 On appeal, Johnson argued that, under the Eighth Amendment, the trial court should have allowed a special jury instruction at the punishment phase concerning the potentially mitigating evidence of his youth. The Supreme Court held that the trial court’s refusal to allow the special instruction did not offend the Eighth Amendment’s prohibition against cruel and unusual punishments.

¶4The Supreme Court’s Johnsondecision succeeded its earlier decision in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). In Penry, the petitioner, Johnny Paul Penry, provided evidence during his capital murder trial of his mental retardation and abusive childhood. The Court held that the special issues under the Texas capital sentencing scheme were insufficient, without an additional jury instruction, to allow the jury to give effect to the relevant mitigating evidence offered by Penry at his *317trial. The Court held, specifically, that, without an additional jury instruction, the jury in Penry’s case was unable to make a “reasoned moral response” to Penry’s mitigating evidence in deciding whether to impose the death penalty.

¶5Applicant introduced “mitigating” evidence at his trial in the form of testimony from a psychologist and a psychiatrist. The psychologist, Dr. Tom Kubiszyn, testified that applicant suffered from “chronic schizophrenia of a residual type with an underlying schizotypal personality disorder.” Dr. Ku-biszyn also testified concerning applicant’s childhood, stating that applicant’s father was a bootlegger and a double amputee who died when applicant was still young, and that applicant’s mother was sexually promiscuous and inflicted physical and emotional abuse upon applicant. Dr. Kubiszyn stated that he believed the abuse inflicted upon applicant by his mother caused applicant, as an adult, to harbor strong feelings of resentment and hostility toward females. Finally, Dr. Ku-biszyn testified that applicant was of “low-average” intelligence, with an I.Q. of 84.

¶6The psychiatrist, Dr. Jay Fogelman, corroborated much of Dr. Kubiszyn’s testimony concerning applicant’s psychosis and childhood. Dr. Fogelman testified that applicant suffered from “chronic schizophrenia,” and had two personality disorders — a schizotypal personality and elements of a sociopathic personality. Dr. Fogelman also testified that, as a child, applicant frequently witnessed his mother undress and act provocatively in his presence, and that applicant periodically had seizures at school which caused him to be treated as an outcast.

¶7In our initial review of this post-conviction application for relief, we held that the potentially mitigating evidence offered by applicant did not warrant a Penry-type instruction at the punishment stage of his trial. Ex Parte Lucas, 834 S.W.2d at 342. We do not believe that Johnsonchanges that holding. The record shows that applicant was 43 years old when he committed the instant offense. The petitioner in Johnson, in contrast, was only 19 when he committed his offense. We believe, therefore, that youth is not a factor in the instant case.

¶8Given the facts and holding of Johnson, we conclude that our original determination, that applicant’s potentially mitigating evidence did not merit an additional jury instruction at the punishment phase of his trial, is unaffected by Johnson. Therefore, we reaffirm our holding in our initial review of applicant’s post-conviction application for relief.

¶9The request for relief is DENIED.