Ex parte Jennings

• Docket Number: S. WR–67,208–03,WR–67,208–04
• Decision Date: 16 May 2018
• Citation: 662 S.W.3d 379 (Mem)
• Parties: EX PARTE Robert Mitchell JENNINGS, Applicant
• Court: Texas Court of Criminal Appeals

662 S.W.3d 379 (Mem)

EX PARTE Robert Mitchell JENNINGS, Applicant

NOS. WR–67

208–03

WR–67

208–04

Court of Criminal Appeals of Texas.

MAY 16, 2018

Randy Schaffer, 1021 Main, Suite 1440, Houston, Texas 77002, for Applicant.

Lori DeAngelo, Assistant District Attorney, Harris County District Attorney, 1201 Franklin, Houston, Texas 77002, Stacey Soule, State's Attorney, Austin, for State.

ORDER

Per curiam.

These are post-conviction applications for writs of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071 § 5.

On July 13, 1989, a jury convicted applicant of the offense of capital murder. Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, the trial court sentenced applicant to death. Article 37.071(e). This Court affirmed applicant's conviction and sentence on direct appeal. Jennings v. State , No. AP–70,911 (Tex. Crim. App. Jan. 20, 1993)(not designated for publication). On September 20, 1996, applicant filed his initial post-conviction application for a writ of habeas corpus in the convicting court. On June 16, 2001, applicant filed in the convicting court a "supplement" to that application.¹ This Court received the applications in March 2007.

After reviewing the cases, this Court filed and set two of the ineffective assistance claims from the initial writ application, and it filed and set the single claim raised in the subsequent application. The Court ultimately issued an opinion denying applicant relief. Ex parte Jennings , Nos. AP–75,806 and AP–75,807, 2008 WL 5049911 (Tex. Crim. App. Nov. 26, 2008) (not designated for publication). Applicant filed his second subsequent application in the trial court on May 4, 2016.

In his second subsequent application, applicant asserts that: (1) the State destroyed, lost, or suppressed relevant mitigating evidence; (2) the unconstitutional "nullification" instruction prevented the jury from fully considering and giving effect to certain mitigating evidence; (3) trial counsel were ineffective in failing to discover and present certain mitigating evidence; and (4) the death penalty violates the constitutional prohibition against cruel and unusual punishment. After reviewing applicant's writ application, we find that he has failed to make a prima facie showing of a Brady² violation, and he has otherwise failed to satisfy the requirements of Article 11.071 § 5. Accordingly, we dismiss the application as an abuse of the writ without reviewing the merits of the claims. Art. 11.071 § 5(c).

On July 20, 2016, applicant filed in the trial court a pleading titled a "Supplement to Subsequent Application for a Writ of Habeas Corpus," in which he raises a claim that "the unconstitutional ‘nullification’ instruction prevented the jury from fully considering and giving effect to mitigating evidence of [his] remorse." After reviewing applicant's claim, we find that he has failed to satisfy the requirements of Article 11.071 § 5. Accordingly, we dismiss this subsequent application as an abuse of the writ without reviewing the merits of the claim. Art. 11.071 § 5(c).

IT IS SO ORDERED THIS THE 16^th DAY OF MAY, 2018.

Hervey, J., filed a concurring opinion in which Keller, P.J., and Keasler and Newell, JJ., joined. Yeary, J., filed a concurring opinion. Alcala, J., filed a concurring and dissenting opinion in which Walker, J., joined.

Hervey, J., filed a concurring opinion in which Keller, P.J., Keasler and Newell, JJ., joined.

Robert Mitchell Jennings filed two subsequent writ applications arguing that he is entitled to a new trial on five different grounds. The Court stayed Jennings' execution to consider his writ applications, and today it properly dismisses them as subsequent. Ex parte Jennings , Nos. WR–67,208–03 & WR–67,208–04, 2016 WL 4637367 (Tex. Crim. App. Sept. 2, 2016) (per curiam, not designated for publication). I write separately to address two of those claims.

PENRY INSTRUCTION

Jennings argues that the mitigation instruction given by the trial court was constitutionally deficient and that he was entitled to a Penry instruction or additional special issue because he exhibited remorse for the capital murder that he committed. Ex parte Jennings , Nos. AP–75,806 & AP–75,807, 2008 WL 5049911, at *7–*8 (Tex. Crim. App. Nov. 26, 2008) (not designated for publication) (addressing the merits of, and rejecting, Jennings' Penry claim).

Subsequent Writ Bar

To overcome the subsequent-writ procedural bar, Jennings argues that there is a new legal basis for relief in the form of a decision from the Southern District of Texas. Williams v. Davis , 192 F.Supp.3d 732 (S.D. Tex. 2016) ; see TEX. CODE CRIM. PROC. art. 11.071, § 5(a)(1). He contends that, in that case, the district court held that the future-dangerousness special issue did not give the jury a meaningful vehicle through which it could give effect to Williams's evidence of remorse.

Before Williams filed a post-conviction writ application in federal court, this Court denied relief on his Penry claim. Ex parte Williams , No. AP-76, 2012 WL 2130951, at *15 (Tex. Crim. App. June 13, 2012) (not designated for publication). We reasoned, contrary to the district court, that Williams was not entitled to a Penry instruction based on the remorse evidence because the jury could have given effect to that evidence through the future-dangerousness special issue. Id.

After we issued our decision, Williams filed a writ application in federal court, alleging that this Court's decision was an unreasonable application of federal law. The district court agreed and conditionally granted relief, ordering the State of Texas either to hold a new punishment hearing or to commute his sentence to life imprisonment. Williams , 192 F.Supp.3d at 772.

Although Jennings makes the same claim as Williams, the decisions of federal district courts are not binding on this Court and cannot constitute a new legal basis for purposes of the subsequent-writ procedural bar.¹ See In re Medina , 475 S.W.3d 291, 304 (Tex. Crim. App. 2015) (noting that constitutional interpretations by federal district courts are not binding on this Court); see also Ex parte Hood , 211 S.W.3d 767, 775 (Tex. Crim. App. 2007) (holding that, to constitute a new legal basis, an applicant must prove that his claim could not have been reasonably formulated based on precedent from the United States Supreme Court, federal appellate courts, or state appellate courts). In fact, Section 5(d) of Article 11.071 speaks to only appellate courts; there is no mention of state or federal trial courts. TEX. CODE CRIM. PROC. art. 11.071, § 5(d). To entertain Jennings' already litigated Penry claim, the Court would need to overrule Hood and hold that a federal district court decision meets the dictates of Section 5(a)(1) of Article 11.071.² But such a conclusion would fly in the face of the plain language of the statute. Id.

Because Jennings cannot overcome the procedural bar preventing us from considering the merits of his renewed Penry claim, the Court properly dismisses it.³ I note, however, that even if the Court were to reach the merits of his claim, it fails.

Merits of Penry Claim

The Tape

Jennings contends that he was entitled to a Penry instruction because the cassette tape recording of his post-arrest statement shows that he was remorseful for committing capital murder. He alleges that,

• he cried during portions of the interview;

• he said that he was "real upset" because he shot someone and did not know whether that person was alive or dead;

• when asked at the end of the interview if there was anything else he wanted to say, he responded, "Remorse in the way I feel about the incident that happened"; and that

• he said he wished he could "take it all back" and that he would "face whatever punishment I have coming."

Having listened to the entirety of Jennings' recorded audio statement and having read habeas counsel's transcript exhibit, it is my opinion that neither contains mitigating evidence. With respect to Jennings' claims of crying, it is not clear to me that he actually cried during the interview. But even if he did, I understand him to be saying that he was scared because he had shot someone while perpetrating a robbery, that he did not know if the person was still alive, and that he was "real upset" and "hurting" because his accomplice unexpectedly shot him when he returned to the getaway car. He also explained that, because he was unable to find a permanent job after being released from TDC, and "his people" were already "hurting" when he got out, he started committing robberies so he could provide for them. He claimed that he used the money to buy clothes and other things. While it is true that he used the word "remorse" during his statement, when his comments are considered within the context of the entire interview, it seems he regretted only that the robbery was not routine as usual—meaning that they got the money without anyone getting hurt—and that he will no longer be able to provide for "his people" because he will be in prison. The following are the relevant excerpts,

[OFFICER]: Why did you keep this wallet?

[JENNINGS]: Probably cause I was hurting. It was in my pocket when David shot me and it come out the window and, and you know, it was happen real fast, right. I was, I was real scared cause I know I had shot somebody in his place, you know. I didn't know, and I was real upset and when, when David shot me, you know, that threw me, where I tried to get, run for my life and you know, it had me all upset, you know, and when I got these people to my sister's house, I just took everything out of my pocket and put it in my drawer at the bottom of the dresser drawer.

* * *

[OFFICER]: [Jennings], anything (inaudible) that you would like to say?

[JENNINGS]: Remorse in the way I feel about the incident that happened. It was, I had been, we had been drinking, you know, and I had seen this, when I come in the place,

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