Ex parte Herrera

• Citation: 819 S.W.2d 528
• Decision Date: 29 May 1991
• Docket Number: No. 71171,71171
• Parties: Ex parte Leonel Torres HERRERA.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 528

819 S.W.2d 528

Ex parte Leonel Torres HERRERA.

No. 71171.

Court of Criminal Appeals of Texas,

En Banc.

May 29, 1991.

Rehearing Overruled Sept. 18, 1991.

Certiorari Denied Feb. 19, 1992.

See 112 S.Ct. 1074.

Robert L. McGlasson, Austin, for appellant.

Luis V. Saenz, Dist. Atty. and John A. Olson, Asst. Dist. Atty., Brownsville, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

PER CURIAM.

This is a post conviction application for writ of habeas corpus filed pursuant to the provisions of Article 11.07, V.A.C.C.P.

On January 20, 1982, applicant was found guilty of the offense of capital murder. After the jury returned affirmative answers to the special issues, punishment was assessed at death. This Court affirmed applicant's conviction on direct appeal. Herrera v. State, 682 S.W.2d 313 (Tex.Cr.App.1984).

On January 17, 1991, this Court ordered the instant cause filed and set on applicant's third allegation. In that allegation, it is urged the jury in applicant's capital murder trial was precluded from considering evidence which "counseled in favor" of a sentence less than death, in violation of applicant's Sixth, Eighth and Fourteenth Amendment rights. The trial court has entered findings of fact and conclusions of law and recommended the relief sought be denied.

This Court has reviewed the record with respect to the allegation presented by applicant and finds that the findings and conclusions entered by the trial court are supported by the record and upon such basis the relief sought is denied. ¹

CLINTON, Judge, dissenting.

This post-conviction application for writ of habeas corpus was filed and set so that the Court could hear argument on the question whether, and if so, under what circumstances, a claim under Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), can be procedurally defaulted for purposes of state review. A majority of the Court has since held that for any cause that was tried before the date of decision in Penry, any forfeiture from a failure to object or otherwise raise the issue in the trial court will be excused. Black v. State, 816 S.W.2d 350 (Tex.Cr.App.1991) (Campbell, J., concurring). This is because before that date a Penry claim was a "right not recognized" in this Court. Ex parte Chambers, 688 S.W.2d 483 (Tex.Cr.App.1984) (Campbell, J., concurring). Applicant Herrera's trial was in January of 1982, seven years before the United States Supreme Court's decision in Penry. Nevertheless, the Court holds that applicant's application was improvidently filed and set. We know from Black that it cannot have been improvident because of a procedural bar. See also Selvage v. Collins, 816 S.W.2d 390 (Tex.Cr.App.1991) (Opinion on Certified Question from the United States Court of Appeals for the Fifth Circuit). I presume, then, that the majority rejects applicant's Penry claim on the merits.

Applicant was convicted of the murder of a police officer. See Herrera v. State, 682 S.W.2d 313 (Tex.Cr.App.1984). He now identifies six categories of mitigating evidence he claims have support in the record of his capital murder trial. Those categories are:

(1) his military service and record;

(2) his history of drug abuse and addiction;

(3) his mental instability;

(4) that he has a caring and loving family that wants him to live;

(5) police brutality after his arrest (the idea being that because he has already suffered some punishment for his crime, a reasonable jury could feel the death penalty to be unwarranted);

(6) his remorse.

Whether any or all of these categories reflect true Penry evidence is a question we need not address here, although unquestionably at least some of them do. For in any event, by my reading of the trial record, none of these categories is substantiated by evidence sufficient to invoke a reasoned moral response of leniency. In short, I do not believe evidence was presented having mitigating significance beyond the Article 37.071(b), V.A.C.C.P., special issues. Thus I cannot conclude that applicant has been sentenced to death in contravention of the Eighth Amendment. See Gribble v. State, 808 S.W.2d 65 at 75 (Tex.Cr.App.1990).

However, applicant also claims that the Texas capital sentencing scheme prevented him from adducing substantial mitigating evidence. In the course of argument he drops a footnote in which he somewhat tentatively advances a Sixth Amendment ineffective assistance of counsel claim for failure of counsel to investigate and develop this evidence at applicant's trial. In an appendix to his writ application he documents what seems to me evidence of substantial mitigating potential that could have been tendered at the time of trial but was not. This evidence takes two forms: (1) affidavits of members of applicant's family documenting his history of abuse, his mental instability and his drug addiction; and (2) a psychologist's report. There is also an affidavit from applicant's only surviving trial counsel explaining why this evidence was not sought out at the time of trial.

Family Affidavits

There are affidavits from applicant's mother, his sister-in-law, his common-law wife, and two sisters. In synthesis, they tell the following grim story.

Applicant's father was a violent alcoholic who regularly beat applicant's mother "black and blue." When she was pregnant with applicant, he was known to have kicked her in the stomach. Applicant was an asthmatic child who suffered from scarlet fever and chronic headaches. Unable to afford a doctor, applicant's mother treated him with home remedies. Applicant would try to protect his mother from his father's abusive outbursts, and would endure beatings from his father as a consequence, often punched mercilessly about the head and face. Applicant excelled in sports, but had a tendency to suffer head injuries. Once he was accidentally knocked unconscious with a baseball bat.

Applicant dropped out of high school and joined the Navy in 1967. He spent the next two years on a ship somewhere off the coast of Vietnam, and purportedly "saw combat." He was clearly traumatized by his experience, but would not talk about it to others, at least "not in any kind of way that [people] could understand." He returned from Vietnam a changed and paranoid man, "and if you asked him about who might come after him, all he would tell you was that it was the people who had seen what happened during the war." He sometimes lapsed into a glassy-eyed trance-like state, and would talk nonsense until he could be brought out of it.

After Vietnam, applicant took a common-law wife and started a family. At first he was a "loyal" family man. He and his brother started a business together running a convenience store. But when one of his daughters was born prematurely and spent a month in the hospital, with expenses mounting up, applicant became depressed.

Meanwhile applicant's father was in an auto accident and recovered "a tremendous amount of money" in a lawsuit. His drug of choice had changed from alcohol to cocaine, and he "used the money to buy a portion of the drug trade in Hidalgo County." Applicant and his brother were induced with free cocaine to join their father's enterprise, and their own business failed. Applicant became heavily dependent, and from about mid-1980 on he began to live for cocaine. He lost 40 pounds, his face turned gray, and his nose would "pour blood" at a mere touch. His paranoia increased. He believed his wife was trying to poison him, and began to live in his car. At one point he proclaimed that "green things were coming down from the trees and ... they were after him." On the day of the offense applicant's sister "could tell he had a lot of drugs in him."

Psychologist's Report

After interviewing applicant in TDC, conducting a battery of psychological tests, and reviewing the same affidavits as those summarized above, Dr. Brad Fisher, a specialist in forensic clinical psychology, drew the following conclusions:

Leonel Herrera is a 43 year old Mexican-American male currently presiding [sic] on Death Row, having resided there since 1982. It is the opinion of this evaluator that this individual suffers from neurological dysfunction, combined with (but not totally separate from) the presence of [Post Traumatic Stress Disorder]. It is probable that these conditions are chronic in the sense that they have existed at least since his experience in Vietnam, and in the case of the neurological handicaps, possibly since a much earlier age. Evidence for these dysfunctions is presented consistently from test data, behavioral observations, and the information available to this examiner for review.

A person who suffers from brain damage does not necessarily have sub-average intellectual functioning. However, such an individual is likely to have inherent limitations in judgment and impulse control.

A person who suffers from PTSD suffers from serious and severe limitations on cognitive functioning, judgment, insight, and perception. All facets of the sufferer's life are affected by this disorder, as he or she frequently cannot reason adequately, perceive reality normally, or respond to situations adequately.

Someone with brain damage, who also suffers from PTSD, is predisposed to substance abuse. A person who suffers from brain damage, PTSD, and substance abuse may deliberately commit a crime, and be violent in the future. However, such a person's culpability is seriously diminished where these conditions occur. This was Mr. Herrera's condition in the fall of 1981.

Thus, we have not only raw data from which a finding of diminished responsibility could be made in this cause--we also have an expert opinion that the raw data does in fact support such a finding in his professional opinion. This would provide a solid base for a jury, in its reasoned moral judgment, to impose a sentence less than death.

Counsel's Affidavit

Applicant's lead counsel at trial...