Boyd v. State

• Decision Date: 08 May 1991
• Docket Number: No. 69993,69993
• Parties: Charles Anthony BOYD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 105

811 S.W.2d 105

Charles Anthony BOYD, Appellant, v. The STATE of Texas, Appellee.

No. 69993.

Court of Criminal Appeals of Texas,

En Banc.

May 8, 1991.

Rehearing Overruled July 3, 1991.

Gary A. Udashen, on appeal only, Dallas, for appellant.

John Vance, Dist. Atty., and K. Drew, K. Chapman and D. Hagood, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

BAIRD, Judge.

A jury convicted appellant of capital murder pursuant to Tex.Penal Code Ann. § 19.03(a)(2). The jury answered the three special issues in the affirmative and appellant was sentenced to death. Tex.Code Crim.Proc.Ann. art. 37.071. Appellant raises twenty five points of error. We will affirm appellant's conviction and sentence.

Appellant does not challenge the sufficiency of the evidence. Therefore, we will only briefly address the facts of this case. On the day of the offense, the deceased's roommate returned home from work and discovered the deceased's nude, strangled body face up under water in the bathtub. Items were missing from the apartment, and the deceased's car was missing from the apartment's parking lot. Medical testimony reflected that the deceased was manually strangled to a point of unconsciousness or semi-consciousness and then placed into a bathtub containing water.

Appellant, who resided in the same apartment complex as the deceased, ultimately confessed to this offense. ¹ Furthermore, police investigation determined that appellant had pawned the deceased's watch, and had sold other items belonging to the deceased.

Forensic testimony suggested the presence of seminal fluid in the deceased's vagina and anus. Blood and saliva tests established that appellant had a genetic marker carried by approximately 32.5 percent of the population. While this marker was absent from the deceased's blood sample, the marker was detected in fluids found on the deceased's bed sheet. Two hairs "foreign" to the deceased, yet found on the deceased's bed sheets, were consistent with appellant's hair.

At the punishment phase, the State introduced evidence of appellant's prior convictions of burglary and aggravated sexual assault. The State also introduced evidence of appellant's involvement in the killings of two other women who were found dead in their respective bathtubs, including his confessions to the crimes. Appellant's former co-worker testified that appellant choked and raped her. A representative of the Dallas County Sheriff's Department testified that appellant was disruptive while in jail.

The defense introduced evidence that appellant was known by friends and family to behave in a respectful, proper manner. Appellant's girlfriend testified that appellant has fathered a child which, due to appellant's incarceration, he has not seen. Appellant's mother testified that appellant was a good and caring child who tended to his mother when she broke her ankle. She stated that appellant's father died when appellant was six years old, but that she remarried and appellant and her other children went to church. She described appellant as marginally literate, a poor performer in school, and one who suffered from allergies as a child.

I.

THE TEXAS DEATH PENALTY STATUTE

A. Mitigating Evidence

Appellant's first point of error contends that the trial court erred by not instructing the jury concerning mitigating evidence. His second point submits that the Texas capital murder punishment statute, Tex.Code Crim.Proc.Ann. art. 37.071, is unconstitutional as applied in his case because it does not provide for consideration of mitigating factors. Appellant acknowledges that there were no corresponding objections raised at trial, and that no specific instructions were requested at trial.

Appellant filed a pro se brief, wherein he claims that counsel was ineffective for failing to attack the constitutionality of Tex.Code Crim.Proc.Ann. art. 37.071. While the general rule is that appellant has no absolute right to hybrid representation, Scarborough v. State, 777 S.W.2d 83, 92 (Tex.Cr.App.1989), in the interest of justice we will address this pro se contention and points of error one and two as raised by appellate counsel.

To support a claim of ineffective assistance of counsel, appellant must prove: 1) that counsel's performance was deficient and 2) this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Cr.App.1986). ² Absent both showings, we cannot conclude that a defendant's conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Moreover, if a defendant fails to prove the prejudice component (the second prong), the court need not address the question of counsel's performance. Id., 466 U.S. at 697, 104 S.Ct. at 2070. We will turn our attention to the second prong and determine whether appellant was harmed when counsel did not object to the trial court's failure to instruct the jury concerning mitigating evidence. If appellant was not harmed, then he has not been prejudiced and there is no error under Strickland and there is no merit to the contentions raised in appellate counsel's points of error one and two.

Article 37.071 Tex.Code Crim.Proc.Ann. sets forth the current scheme under which the State seeks a sentence of death for capital murder convictions. Pursuant to the statute, the jury is to determine three special issues at the punishment phase of trial:

(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;

(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and

(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.

Tex.Code Crim.Proc.Ann. art. 37.071(b)

If the jury unanimously answers "yes" to each special issue, the trial court must sentence the defendant to death; otherwise, the defendant is sentenced to life imprisonment. Tex.Code Crim.Proc.Ann. art. 37.071(c).

This statute was enacted in the wake of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), wherein the United States Supreme Court held that then current death penalty statutes (including Texas's) violated the Eighth and Fourteenth Amendments due to the arbitrary and capricious manner in which those statutes were applied. The revamped Texas statute narrowed the class of death eligible offenses, see Tex.Penal Code Ann. § 19.03, and guided the jury's discretion in the imposition of the death sentence by requiring the jury to answer the three special issues pursuant to Tex.Code Crim.Proc.Ann. art. 37.071(b).

After being adjudged constitutionally sound by this Court in Jurek v. State, 522 S.W.2d 934 (1975), the statutory scheme passed constitutional muster in the United States Supreme Court, because the "procedure guides and focuses the jury's objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a death sentence." Jurek v. Texas, 428 U.S. 262, 274, 96 S.Ct. 2950, 2957, 49 L.Ed.2d 929 (1976).

Subsequent to Jurek, the Supreme Court continued to address the Eighth Amendment requirement of individualized assessment in the death penalty process. In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the Supreme Court emphasized that the sentencer "not be 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." Id., at 604, 98 S.Ct. at 2964.

Likewise, in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), the Supreme Court reversed a sentence of death where Oklahoma's death penalty statute provided for the introduction of mitigating evidence but where the sentencing judge concluded, as a matter of law, that he was unable to consider the proffered evidence of the youthful defendant's troubled childhood and emotional turmoil. Extending the Lockett rationale, the Court held that "[j]ust as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence." Id., 455 U.S. at 113-114, 102 S.Ct. at 876.

The Supreme Court's focus on the jury's ability to consider and give effect to mitigating evidence in the death penalty context, as articulated in Lockett, 438 U.S. 586, 98 S.Ct. 2954, and Eddings, 455 U.S. 104, 102 S.Ct. 869, was applied to the Tex.Code Crim.Proc.Ann. art. 37.071 in Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988). Therein, a plurality of the Supreme Court determined that Franklin was not sentenced to death in violation of the Eighth Amendment because the jury was free to give effect to his mitigating evidence of good behavior in prison by answering "no" to the second special issue. Id., 487 U.S. at 179-80, 108 S.Ct. at 2330 (emphasis added).

The five concurring and dissenting members of the Court suggested that Tex.Code Crim.Proc.Ann. art. 37.071(b) may not survive a constitutional challenge to a different fact scenario. Justice O'Connor, in concurrence, determined that Franklin's evidence of good prison behavior had no relevance beyond the second special issue, but noted that if Franklin:

had introduced mitigating evidence about his background or character or the circumstances of the crime that was not relevant to the special verdict questions, or that had relevance to the defendant's moral culpability beyond...