Ex Parte Hood

• Decision Date: 10 January 2007
• Docket Number: No. AP-75370.,AP-75370.
• Citation: 211 S.W.3d 767
• Parties: Ex parte Charles Dean HOOD, Applicant.
• Court: Texas Court of Criminal Appeals

211 S.W.3d 767

Ex parte Charles Dean HOOD, Applicant.

No. AP-75370.

Court of Criminal Appeals of Texas.

January 10, 2007.

A. Richard Ellis, Mill Valley, CA, Gregory W. Wiercioch, San Francisco, CA, for Appellant.

Jeffrey Garon, Asst. Crim. D.A., McKinney, Matthew Paul, State's Attorney, Austin, for State.

KELLER, P.J., delivered the opinion of the Court in which MEYERS, PRICE, KEASLER, and HERVEY, JJ., joined.

This is applicant's third habeas application, and the claim he presents now was presented in neither of the first two applications. One of the questions before us is whether we are barred from considering the merits of this application under statutory subsequent application provisions. We conclude that we are barred from considering the merits because the legal bases upon which applicant relies were available at the time he filed his second application.

I. BACKGROUND

On September 7, 1990, applicant was convicted of capital murder. During the punishment phase of trial, he presented mitigating evidence that he now contends was not adequately encompassed by the jury instructions. This included evidence that he was run over by a truck at the age of three, that he received beatings during and after school (including a blow to the head from a metal pipe), and that he suffered from speech defects and learning disabilities. Applicant's trial occurred after the United States Supreme Court handed down Penry I,¹ but before the Texas Legislature added the mitigation special issue to Article 37.071.² In response to Penry I's dictates, the trial court chose to use a "nullification" instruction to enable the jury to give effect to applicant's mitigating evidence. As in Smith,³ the submitted nullification instruction was a "clear" instruction, specifically requiring jurors to answer at least one of the special issues "no"—even if "yes" answers to all the special issues had been established beyond a reasonable doubt—if they believed that the defendant's mitigating evidence justified a sentence of life rather than death. The jury answered all of the special issues "yes," and, in accordance with the jury verdict, the trial court entered a judgment sentencing applicant to death.

We affirmed the trial court's judgment on direct appeal.⁴ In his brief on appeal, applicant raised a point of error complaining that the trial court erred "in failing to instruct the jury of a method to be used by them to give effect to mitigating evidence."⁵ He argued that the charge that was given failed to satisfy Penry I's requirements.⁶ Although we found the point to be inadequately briefed, we nevertheless proceeded to the merits.⁷ After reviewing the jury charge, we concluded that the nullification instruction "did provide the jury with an adequate vehicle to express and give effect to its `reasoned moral response'" to applicant's mitigating evidence.⁸

On December 22, 1997, applicant filed his first application for writ of habeas corpus. As originally filed, that application included a challenge to the nullification instruction, but the application was subsequently amended, and that particular claim was omitted. We denied the application on April 21, 1999.⁹

On June 4, 2001, the United States Supreme Court decided Penry II, holding that the "ambiguous" nullification instruction submitted in that case failed to afford the jury an adequate vehicle by which to consider the proffered mitigating evidence of mental retardation.¹⁰ On April 21, 2004, this Court decided Ex parte Smith (Smith I), which made two significant holdings: (1) adopting the Fifth Circuit's "constitutional relevance" threshold requirement, which called for a showing that "the defendant's criminal act was due to uniquely severe permanent handicaps with which the defendant was burdened through no fault of his own," and (2) distinguishing the "clear" nullification instruction in Smith from the "ambiguous" instruction found to be inadequate by the Supreme Court in Penry II.¹¹

On May 24, 2004, applicant filed, pro se, his second habeas corpus application, which alleged that he was actually innocent of the crime for which he was convicted.¹² We later dismissed that application as an abuse of the writ under Article 11.071, § 5.¹³

On June 24, 2004, the Supreme Court decided Tennard v. Dretke, discarding the Fifth Circuit's "constitutional relevance" threshold requirement.¹⁴ On November 15, 2004, the Supreme Court reversed our decision in Smith I with its decision in Smith II.¹⁵ The Court overturned our first holding as inconsistent with Tennard, and it overturned our second holding on the basis that the "clear" nullification instruction (and thus any nullification instruction) was governed by its holding in Penry II.¹⁶

On June 22, 2005, eight days before his scheduled execution, applicant filed a third habeas corpus application, along with a motion for stay of execution. That application is the one currently before us, and it advanced a single claim for relief: "The nullification instruction in Mr. Hood's case suffers from the same defects that the Supreme Court found unconstitutional in Penry II and [Smith II]." Applicant alleged compliance with the subsequent application requirements of Article 11.071, § 5, and we initially accepted that allegation—staying the execution and remanding the case to the trial court for further proceedings.¹⁷ After proceedings in the trial court, the record was returned to us, and we ordered the parties to brief "the merits of this issue in light of the entire charge that the jury received, harm under Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1985) (op. on reh'g), and whether the issue should have been raised in either the first or second applications."¹⁸

With regard to the third question, applicant contends that the Supreme Court's repudiation in Tennard and Smith II of the Fifth Circuit's "constitutional relevance" threshold requirement constitutes a new legal basis for his claim. He argues that this Court used the Fifth Circuit's threshold requirement as a screening test that prevented ever reaching the merits of a Penry claim (whether based on Penry I alone or a combination of Penry I and II). He further argues that two of our unpublished dispositions evince a recognition that Tennard and Smith II supplied a new legal basis for reviewing a Penry II claim. He points first to our unpublished opinion in Robertson, which explicitly referenced Tennard and Smith II, in concluding that the legal basis for his claim was unavailable at the time his previous applications were filed.¹⁹ Applicant points next to our unpublished, 2002 order in Ex parte Davis, which dismissed a Penry II application as an abuse of the writ,²⁰ as evidence of how this Court reacted to Penry II applications before Tennard and Smith II were decided.

The State contends that applicant's claim became available when Penry I was decided, and thus, should have been presented in applicant's first application. The State points out that applicant did present the claim initially in that application before withdrawing it. Alternatively, the State contends that the legal basis for applicant's claim became available when Penry II was decided, and thus, should have been presented in applicant's second application. The State disputes applicant's allegation that Tennard and Smith II afforded a new legal basis for applicant's claim.

II. ANALYSIS

A. Statutory Construction

In this case, determining whether the current claim should have been raised in an earlier application requires that we construe the capital habeas statute's subsequent application provision, Article 11.071, § 5. When interpreting a statute, we follow our cardinal rule of construction: we must give effect to the plain meaning of the statutory text, unless the language is ambiguous or the plain meaning leads to absurd results that the Legislature could not possibly have intended.²¹ In determining the plain meaning of the text, we read words and phrases in context and construe them in accordance with "the rules of grammar and usage."²² In addition, "we generally presume that every word in a statute has been used for a purpose and that each word, phrase, clause, and sentence should be given effect if reasonably possible."²³

We must first determine whether we can address the "subsequent application" issue after remanding the case to the trial court for further proceedings. The capital habeas statute requires the trial court to forward any subsequent application to this Court before taking any other action with respect to that application so that this Court may determine whether the subsequent application provisions have been met.²⁴ This Court is then required either to issue an order finding that the requirements have been satisfied (in which event, the case is remanded to the trial court for further proceedings) or to dismiss the application.²⁵ But the statute also provides that "a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that" one of three statutory exceptions has been satisfied.²⁶ Plainly, we are a "court" within the meaning of the statute, and thus, we are not at liberty to ignore the legislative prohibition against considering the merits of a claim that does not meet the subsequent application requirements. If we determine that those requirements are not met, we must dismiss the application, even if we had previously remanded the claim on the basis of an initial determination that the requirements had in fact been met. We therefore proceed to determine whether a relevant exception to the subsequent application prohibition has been satisfied.

We need not concern ourselves with two of those exceptions: applicant's claim does not affect his guilt, so the "innocence gateway" exception does not apply,²⁷ and applicant's claim, if accepted, would not establish that "no rational juror would have...