832 F.2d 915 (5th Cir. 1987), 87-2466, Penry v. Lynaugh

Docket Nº:87-2466.
Citation:832 F.2d 915
Party Name:Johnny Paul PENRY, Petitioner-Appellant, v. James A. LYNAUGH, Director, Texas Department of Corrections, Respondent- Appellee.
Case Date:November 25, 1987
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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832 F.2d 915 (5th Cir. 1987)

Johnny Paul PENRY, Petitioner-Appellant,


James A. LYNAUGH, Director, Texas Department of Corrections,

Respondent- Appellee.

No. 87-2466.

United States Court of Appeals, Fifth Circuit

November 25, 1987

Rehearing and Rehearing En Banc Denied Dec. 23, 1987.

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Curtis C. Mason, Staff Counsel for Inmates, Tex. Dept. of Corr., Huntsville, Tex., for petitioner-appellant.

Paula C. Offenhauser, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Appeals from the United States District Court for the Eastern District of Texas.

Before REAVLEY and GARWOOD, Circuit Judges. [*]

REAVLEY, Circuit Judge:

This is a collateral attack upon the death sentence by a Texas court of Johnny Paul Penry. With one exception all of the contentions advanced on Penry's behalf are easily rejected. The exceptional contention is that Texas law did not permit the jury to consider, and to apply, all of Penry's personal mitigating circumstances prior to reaching the verdict that mandated his death sentence. We are bound by superior

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authority to reject that contention, but we discuss the problem fully to demonstrate why it may merit further consideration.


On the morning of October 25, 1979, Pamela Carpenter was brutally beaten, raped, and stabbed with a pair of scissors in her own home in Livingston, Polk County, Texas. She died a few hours later, but she was able to relay a description of her assailant to the first police officer on the scene and to the doctor in the hospital.

The description led two local sheriff's deputies to suspect Penry. They went to the house of Penry's father, where Penry was staying. Penry denied any involvement but voluntarily agreed to go with the officers to the police station.

At the police station the officers and Penry were met by a number of other local law enforcement agents. They read Penry his Miranda rights and questioned him about a wound on his back. After being warned again, Penry signed a consent to search form. Everybody then went back to the Penry home to retrieve a shirt he had worn earlier that day.

Penry then accompanied the police officers to the scene of the crime. There Penry, for the first time, stated that he had "done it." He was immediately arrested, handcuffed, and read his rights again. He was brought back to the police station and taken before a magistrate. Penry was formally charged with capital murder. The magistrate read and questioned Penry about whether he understood his rights. Penry stated that he understood his rights and signed the warning forms.

Police Chief Bill Smith then questioned Penry after again warning him. Penry agreed to give a statement. Smith took the statement in notes and turned it over to his secretary to type. After the statement was typed, because Penry could not read, it was read to him in front of two non-police witnesses. That statement described the crime in detail, and Penry signed it.

Texas Ranger Cook took a second statement the following day. Again, the statement was read back to Penry in front of two non-police witnesses, and it contained the Miranda warnings and a statement that the rights were being waived. The second statement told of the crime in even more detail and contained confessions of Penry's previous crimes.

These two statements formed the heart of the prosecution against Penry. The statements were consistent with the other evidence, including proof that Penry had been at Ms. Carpenter's house once before, Ms. Carpenter's statement about being raped and stabbed, the bloody scissors found at the scene, and the position of the victim's clothing as described by the ambulance attendant. However, there was no physical evidence (blood, semen, fingerprints or hair samples) linking Penry to the scene of the crime.

At a competency hearing before trial, Penry was shown to have limited mental ability. He could not read or write, having never finished the first grade. His IQ indicated mild to moderate retardation. He had been in and out of a number of state schools. His relatives testified that he was beaten as a child and had behaved strangely as both a child and a teenager. Nevertheless, a jury found him competent to stand trial.

At the guilt/innocence phase of his trial, evidence of Penry's limited mental capacity was reintroduced. There was disagreement among the three testifying psychiatrists whether Penry was insane: the defense psychiatrist opined that he was, but the state's two psychiatrists disagreed. There was also disagreement over the degree of Penry's mental limitation and the cause of the limitations. However, all of the psychiatrists agreed that Penry had mental limitations, whether caused by a birth trauma or by childhood environmental factors such as beatings and being locked in his room for extended periods of time. They also agreed that Penry's problems manifested themselves, among other ways, in an inability to learn from his mistakes.

The jury rejected Penry's insanity defense and found him guilty of capital murder. Tex.Penal Code Ann. Sec. 19.03 (Vernon

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1974). The jury then answered "yes" to all three "special issues," and Penry was sentenced to death. Tex.Crim.Proc.Code Ann. art. 37.071 (Vernon 1981 & Supp.1987). The Texas Court of Criminal Appeals affirmed the conviction and sentence. Penry v. State, 691 S.W.2d 636 (Tex.Crim.App.1985), cert. denied, 474 U.S. 1073, 106 S.Ct. 834, 88 L.Ed.2d 805 (1986).


Penry argues that it would be cruel and unusual punishment to execute a mentally retarded person such as himself. He cites Ford v. Wainwright, 477 U.S. 399, ----, 106 S.Ct. 2595, 2600, 91 L.Ed.2d 335 (1986), for the proposition that "idiots and lunatics are not chargeable for their own acts." An identical claim has recently been rejected by this court. Brogdon v. Butler, 824 F.2d 338, 341 (5th Cir.1987). Penry's claim is without merit.

Penry raises a number of issues regarding his two confessions. He first claims that they should have been suppressed because they were the fruit of an illegal arrest. A Fourth Amendment claim of illegal arrest is foreclosed in habeas if the state "provided an opportunity for full and fair litigation" of the claim. Stone v. Powell, 428 U.S. 465, 493-95, 96 S.Ct. 3037, 3052-53, 49 L.Ed.2d 1067 (1976). Recognizing the Stone bar, Penry argues that he did not have a "full and fair" suppression hearing. He claims that the state limited his investigator's fees, that a police officer who testified at both the suppression hearing and trial lied at the suppression hearing, and that the state failed to provide him with one of his previous confessions. Penry's claims are without merit. Penry does not point out what difference more investigator's fees, or having his previous confession, would have made. The police officer's testimony at the suppression hearing was not inconsistent with his trial testimony. We have made an "independent evaluation of the state court record" and are satisfied that Penry's "opportunity to contest the introduction of incriminating evidence resulting from his arrest was not circumscribed." Billiot v. Maggio, 694 F.2d 98, 100 (5th Cir.1982). Stone bars relitigation of the issue here.

Penry also argues that his confession was involuntary and that he did not voluntarily waive his Miranda rights. Most of Penry's argument on both issues centers on his low intellect and inability to freely confess or waive his rights. However, "coercive police activity is a necessary predicate to the finding that a confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment." Colorado v. Connelly, --- U.S. ----, ----, 107 S.Ct. 515, 522, 93 L.Ed.2d 473 (1986). Similarly, "Miranda protects defendants against government coercion leading them to surrender rights protected by the Fifth Amendment; it goes no further than that." Connelly, 107 S.Ct. at 524. We have carefully examined the record, as is our duty, see Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985) (ultimate question of voluntariness of confession subject to plenary review by federal habeas court), and can find no evidence of police misconduct that would taint the confessions or waiver of rights. Both the confession and waiver of Miranda rights were voluntary.

Penry also challenges the exclusion of one venireman for cause. Citing Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the state argues that Penry procedurally defaulted on the issue. When the state court opinion is silent as to whether it used the procedural bar,

this Court will consider "whether the state court has used procedural default in similar cases to preclude review of the claim's merits, whether the history of the case would suggest that the state court was aware of the procedural default, and whether the state court's opinions suggest reliance upon procedural grounds or a determination of the merits."

Ortega v. McCotter, 808 F.2d 406, 408 (5th Cir.1987) (quoting Preston v. Maggio, 705 F.2d 113, 116 (5th Cir.1983)). In the state habeas claim here, the only time that issue was raised, the state court simply denied the writ without an opinion. However,

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Texas has consistently applied a procedural bar to exclusion of veniremen without objection. Hawkins v. State, 660 S.W.2d 65, 82 (Tex.Crim.App.1983). Similarly, the state court was aware of the procedural bar in this case since the state raised the bar in its reply to Penry's state habeas claim. Therefore, under the Preston test, the claim is barred if Penry failed to object to the exclusion at trial.

At trial, Penry's counsel originally objected to the state's motion to exclude the venireman for cause. However, after...

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