Earhart v. State

• Decision Date: 06 April 1994
• Docket Number: No. 70343,70343
• Citation: 877 S.W.2d 759
• Parties: James Otto EARHART, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 759

877 S.W.2d 759

James Otto EARHART, Appellant, v. The STATE of Texas, Appellee.

No. 70343.

Court of Criminal Appeals of Texas,

En Banc.

April 6, 1994.

Kyle Hawthorne, (Court appointed), Bryan, Jeffrey J. Pokorak, (on remand only), San Antonio, for appellant.

Bill Turner, Dist. Atty., Deena J. McConnell, Asst. Dist. Atty., Bryan, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON REMAND FROM THE UNITED STATES SUPREME COURT

BAIRD, Judge.

On original submission we affirmed the judgment of the trial court. Earhart v. State, 823 S.W.2d 607 (Tex.Cr.App.1991). However, the United States Supreme Court granted appellant's petition for writ of certiorari, vacated our judgment and remanded the case for further consideration in light of Johnson v. Texas, 509 U.S. 350, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993). ¹ We will again affirm.

I.

At the time of appellant's trial, the punishment for the offense of capital murder was determined by the jury's responses to the following punishment issues submitted pursuant to Tex.Code Crim.Proc.Ann. art. 37.071(b):

(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.

If the jury unanimously answered the issues in the affirmative, a sentence of death was mandatory. Art. 37.071(e). If ten jurors answered any issue in the negative, or if the jury was unable to answer any issue, the defendant was sentenced to life imprisonment. Id. ²

II.

In his first point of error, appellant contends art. 37.071 failed to provide the jury with a vehicle to consider and give effect to his mitigating evidence. See, n. 1, supra. On original submission, we found appellant presented the following mitigating evidence:

1) Appellant's uncle testified that appellant's father "treated [appellant] badly" when appellant was a child;

2) Appellant often drank a case to a case and a half [of beer] a day;

3) A psychiatrist testified that appellant suffered from various psychological and psychiatric problems and was "not dealing with a full deck;" [and]

4) Appellant's mother testified that appellant provided support for her. Appellant often picked food from supermarket dumpsters and would use that food to feed his mother and older neighbors in the neighborhood.

Earhart, 823 S.W.2d at 632. Although our factual rendition of appellant's mitigating evidence on original submission is accurate, for the purposes of this opinion we will more fully develop the testimony appellant contends is mitigating.

Robert Hayes, appellant's uncle, testified appellant visited Hayes' home several times a year and was around Hayes' nine-year-old daughter. Appellant normally consumed a case to a case and a half of beer a day. Hayes further testified that he heard appellant's stepfather mistreated appellant.

Appellant's sister, Johnnie Ruth Johnson, testified she loved appellant and that appellant never mistreated her children. Johnson further stated appellant was a gentle, loving person who took care of his mother. Johnson did not believe appellant would be a continuing threat to society.

Appellant's cousin, Sharon Mae Brown, testified she had no concern or fear of appellant around her children. To her knowledge, no one was ever concerned with appellant around children. Brown testified appellant lived with and cared for his mother.

Clyde Wilson, pastor of Emanuel Baptist Church in Bryan, testified that appellant's mother was a member of his congregation and appellant drove his mother to church and picked her up after the services. Wilson visited with appellant several times during his incarceration discussing "the scriptures, the Bible, and the spiritual life." Appellant was courteous and never appeared to be violent.

Luke Ruffino owned the home rented by appellant's mother. Appellant gave Ruffino reconditioned appliances and Ruffino never perceived appellant to be violent or a threat to society.

Lynn Thomas testified he owned an air conditioning and appliance service. Thomas and appellant helped each other fix broken appliances and traded parts. Thomas observed appellant in the company of Thomas' children and had no concern for their safety.

Blanche McShane, appellant's aunt, testified appellant lived next door to her when he was young. Appellant and his stepfather "didn't get along." Blanche McShane did not believe appellant to be a violent person or a threat to society.

Lynn McShane, appellant's cousin, grew up with appellant. Lynn McShane testified appellant was always gentle and respectful to the McShane children. Lynn McShane did not believe appellant to be a violent person.

Dr. Fred Fason, a psychiatrist, testified he determined, based upon a one hour interview with appellant and appellant's performance on a standardized psychological test, that appellant was sane at the time of his offense and not sociopathic. ³ However, appellant had a very low "ego strength score" on the standardized test. According to Fason, the test "measures a person's ability to deal with reality, the ability to deal with other people, the ability to get what they want, their economic self-sufficiency, [and] their common sense." Fason further determined appellant's "lifestyle and ... history are consistent with an individual who is psychotic." The symptoms exhibited by appellant were:

... symptoms of an individual that is not--in lay terms not dealing with a full deck, or in psychological terms or psychiatric terminology that is--sounds like the behavior that you expect from someone who is psychotic, not from someone that is sociopathic.

Fason saw appellant "as an individual who is borderline psychotic vulnerable to a psychotic decompensation with marked feelings of inadequacy and inferiority...."

Appellant's mother, Ida Mae Sprayberry, testified appellant was living with her at the time of the instant offense. Appellant helped her with the house, took her to church and did whatever he could for her. Appellant had a "nervous condition" that was aggravated by the loud speaker from the drive-in restaurant across the street from their home. At times the nervous condition required appellant to "go inside and lie down." Sprayberry stated appellant searched supermarket dumpsters two or three times each day. At times he would find food or canned goods. Sprayberry and appellant would eat a portion of the food and give the remainder to neighbors in need.

III.

A.

In Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), the Supreme Court held our capital sentencing scheme constitutional. The Court stated:

Texas has provided a means to promote the evenhanded, rational and consistent imposition of death sentences under law. Because this system serves to assure that sentences of death will not be "wantonly" or "freakishly" imposed, it does not violate the Constitution.

Id., 428 U.S. at 276, 96 S.Ct. at 2958. However, the Court cautioned, "[a] jury must be allowed to consider on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed." Id., 428 U.S. at 271, 96 S.Ct. at 2956. The Court recognized our assurance that a defendant would be allowed "to bring to the jury's attention whatever mitigating circumstances he may be able to show." Id., 428 U.S. at 272, 96 S.Ct. at 2956.

Twelve years later, the Supreme Court again addressed the constitutionality of our capital sentencing scheme. ⁴ Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988). Franklin contended art. 37.071 was unconstitutional because his jury was unable to consider his good conduct record in prison. However, the Supreme Court held the second statutory punishment issue allowed the jury to consider such evidence. Id., 487 U.S. at 177, 108 S.Ct. at 2329. In a concurring opinion Justice O'Connor expressed her concerns regarding art. 37.071:

Under the sentencing procedure followed in this case the jury could express its views about the appropriate punishment only by answering the special verdict questions regarding the deliberateness of the murder and the defendant's future dangerousness. To the extent that the mitigating evidence introduced by [Franklin] was relevant to one of the special verdict questions, the jury was free to give effect to that evidence by returning a negative answer to that question. If, however, petitioner 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 the scope of the special verdict questions, the jury instructions would have provided the jury with no vehicle for expressing its "reasoned moral response" to that evidence.

Id., 487 U.S. at 186, 108 S.Ct. at 2333 (O'Connor, J., concurring).

B.

In Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934 (1989), Justice O'Connor's concerns were realized. Penry presented mitigating evidence of mental retardation and organic brain damage resulting in poor impulse control and the inability to learn from experience. ⁵ There was further evidence Penry was physically and mentally abused as a child. Id., 492 U.S. at 309, 109 S.Ct. at 2941. ⁶ The Supreme Court held art. 37.071 did not provide the jury a vehicle to consider and give effect to Penry's mitigating evidence. The Court stated:

... [A] juror who believed that Penry's retardation and background diminished his moral culpability and made imposition of the death penalty unwarranted would be unable to...