Ex parte Kunkle

• Decision Date: 03 February 1993
• Docket Number: No. 70,909,70,909
• Parties: Ex Parte Troy KUNKLE.
• Court: Texas Court of Criminal Appeals

Page 499

852 S.W.2d 499

Ex Parte Troy KUNKLE.

No. 70,909.

Court of Criminal Appeals of Texas,

En Banc.

Feb. 3, 1993.

Rehearing Denied March 3, 1993.

Richard W. Rogers, III, Corpus Christi, for appellant.

Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

McCORMICK, Presiding Judge.

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

Applicant Troy Kunkle was convicted by a jury of capital murder; after the jury answered the statutory special issues in the affirmative, the trial court sentenced applicant to death. On direct appeal, this Court affirmed applicant's conviction and sentence. Kunkle v. State, 771 S.W.2d 435 (Tex.Cr.App.1986), cert. denied, 492 U.S. 925, 109 S.Ct. 3259, 106 L.Ed.2d 604, rehearing denied, 492 U.S. 937, 110 S.Ct. 21, 106 L.Ed.2d 634 (1989). Applicant now challenges his sentence by writ of habeas corpus alleging that he was sentenced to death in violation of the Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Specifically, applicant contends:

(1) He was sentenced to death in violation of the Eighth Amendment because the jury was not instructed that it could consider and give effect to his mitigating evidence in imposing its sentence as required by Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989);

(2) The failure of the trial court to define 'deliberately' as requested by applicant violated his constitutional rights to due process of law;

(3) The Texas death sentencing statute, on its face and as applied in this case, provides inadequate guidance to the jury and did not allow the jury to consider and act upon mitigating evidence proffered by the defense as the basis for a sentence less than death;

(4) The trial court failed to instruct the jury on the nature, function and definition of mitigating evidence, and the manner in which consideration of the mitigating evidence could be included in their responses to the questions required under Article 37.071, V.A.C.C.P.; and

(5) He was denied effective assistance of counsel because trial counsel failed to advance applicant's Penry claim in the trial court. ¹

We shall deny applicant's claims.

In Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), the Supreme Court explicitly determined that Article 37.071 of the Texas Code of Criminal Procedure is not facially unconstitutional. ² Thus, applicant's challenge to the facial validity of Article 37.071 is without merit.

The Supreme Court emphasized this finding in Penry, but determined that Article 37.071 could be unconstitutionally applied to defendants who present mitigating evidence which cannot be adequately considered and given effect under the statutory special issues authorized by Article 37.071. Penry v. Lynaugh, 492 U.S. at 320-322, 109 S.Ct. at 2948. The Penry decision requires trial courts to submit "instructions informing the jury that it [can] consider and give effect to the [particular] mitigating evidence ... by declining to impose the death penalty," in all cases where evidence is presented to the jury that: (1) is mitigating in nature; (2) is relevant to a juror's determination that death would not be the appropriate "reasoned moral response" to the defendant's particular circumstances; and, (3) the mitigating effect of the evidence cannot be considered under the statutory special issues. Penry v. Lynaugh, 492 U.S. at 328-330, 109 S.Ct. at 2952. If mitigating evidence is presented that can be considered and given full effect under the special issues authorized by Article 37.071, however, there is no need to submit a particularized charge on mitigation to the jury in addition to the statutory special issues. Therefore, we shall examine the evidence presented at trial to determine whether application of the statute and the court's failure to specifically charge the jury on mitigation were errors of constitutional dimension. ³

During the guilt/innocence stage of applicant's trial, applicant offered evidence of his drug and alcohol use at the time of the murder, arguably in an attempt to diminish his culpability. He did not reintroduce this evidence at punishment, but because evidence introduced at the guilt/innocence stage may be considered at punishment, we shall address the evidence as if it had been introduced and argued at punishment. See Crane v. State, 786 S.W.2d 338, 354 (Tex.Cr.App.1990) (in answering special issues, jury may consider all evidence adduced at both phases of trial). Specifically, applicant showed that he had ingested a combination of LSD, marihuana and alcohol before he murdered the complainant by shooting him in the back of the head. Although an expert witness testified that any person given the amount of substances ingested by applicant "could lose control over [his] behavior," ⁴ no evidence was offered to show that ingesting the drugs and alcohol caused applicant to suffer temporary insanity, organic brain damage or permanent mental impairment comparable to the impairment suffered by Penry. We find this evidence not significantly different from the evidence in prior decisions where we determined that evidence of drug and alcohol abuse can be given adequate mitigating effect under the statutory special issues of Article 37.071. See Lackey v. State, 819 S.W.2d 111 (Tex.Cr.App.1991) (On Motion for Rehearing); Lane v. State, 822 S.W.2d 35 (Tex.Cr.App.1991). But see Ex parte Rogers, 819 S.W.2d 533 (Tex.Cr.App.1991) (Clinton, J. dissenting) (would find habitual use of drugs has relevance beyond scope of special issues). Because we find that applicant's evidence of drug and alcohol use could be adequately considered and given effect under the special issues as charged, applicant was not entitled to a special mitigating charge based on such.

In the punishment stage of trial, applicant introduced testimony showing that his father had been discharged from military service for depression and that he had been treated for depression with both medication and therapy; there was additional testimony that applicant's mother had been treated for depression. Applicant's father also testified that he asked applicant to move out of the family home after discovering applicant smoking marihuana. The father testified that at this time applicant weighed about 189 pounds, but after moving out of the family home applicant went down to 130 pounds and "didn't look good"--he had sores on his face and was unkempt. Applicant's father further testified that he encouraged applicant to attend therapy with the family, but applicant had refused. The dissimilarity of this evidence to that in Penry ⁵, in addition to applicant's failure to show how his parents' emotional problems or removal from the family home affected him or related to the offense, lead us to conclude that this evidence could be adequately considered and given effect under the special issues as charged. See Nobles v. State, 843 S.W.2d 503 (Tex.Cr.App., No. 69,991, June 10, 1992), and Trevino v. State, 815 S.W.2d 592, 622 (Tex.Cr.App.1991), rev'd on other grounds, Trevino v. Texas, 503 U.S. 562, 112 S.Ct. 1547, 118 L.Ed.2d 193 (1992) (mitigating charge unwarranted where evidence unrelated to any aspect of how or why death would or would not be appropriate response to applicant's actions). Therefore, applicant was not entitled to a special mitigating charge based on evidence of his or his family's emotional problems.

There was no direct testimony as to applicant's age, but there was evidence that he was born on May 27, 1966. Since the offense took place on August 12, 1984, applicant appears to have been eighteen (18) at the time of the offense. Applicant alleges in his brief, however, that he was seventeen (17) at the time of the offense. This Court has consistently held that evidence of youth can be considered under the statutory special issues and that no special mitigating instruction is required for the jury to give effect to this evidence. Jackson v. State, 822 S.W.2d 18, 23 (Tex.Cr.App.1990); Lackey v. State, 819 S.W.2d 111 (Tex.Cr.App.1991) (on rehearing); Ex parte McGee, 817 S.W.2d 77 (Tex.Cr.App.1991). But see Graham v. Collins, 950 F.2d 1009 (5th Cir.1992), cert. granted, 504 U.S. 972, 112 S.Ct. 2937, 119 L.Ed.2d 563 (1992).

Clearly, the mitigating evidence offered at applicant's trial could be constitutionally considered and given effect under the special statutory issues as charged and Article 37.071 was not unconstitutionally applied to applicant. We conclude, therefore, that the trial court did not err in refusing to instruct the jury on the nature and effect of mitigating evidence nor did it err in refusing to instruct the jury on the manner in which mitigating evidence could be considered in their responses to the special issues. See Johnson v. State, 691 S.W.2d 619, 625-626 (Tex.Cr.App.1984) (court's charge at punishment following Article 37.071 adequately guides jurors in application of mitigating evidence); Earvin v. Lynaugh, 860 F.2d 623, 625 (5th Cir.1988).

Applicant contends, however, that counsel was forced to withhold mitigating evidence analogous to that present in Penry because of the operation of Article 37.071. Applicant acknowledges that there was no attempt to proffer the evidence at trial, nor was there a request for a jury instruction on the effects of mitigating evidence. After filing his writ of habeas corpus, applicant requested a hearing to develop the evidence that was withheld, but the trial court denied such. Applicant attached affidavits to his writ application to partially explain what mitigating evidence was withheld. We have previously determined, however, that we shall not consider such affidavits in determining the merits of applicant's Penry claims. Ex parte Goodman, 816 S.W.2d 383, n. 6 386 (Tex.Cr.App.1991).

In Goodman, a majority of this Court agreed that we shall not consider

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