Ex Parte Moreno
| Decision Date | 06 February 2008 |
| Docket Number | No. AP-75748.,AP-75748. |
| Citation | 245 S.W.3d 419 |
| Parties | Ex Parte Jose Angel MORENO, Applicant. |
| Court | Texas Court of Criminal Appeals |
J. Scott Sullivan, San Antonio, for Appellant.
Jeffrey L. Van Horn, State's Attorney, Austin, Daniel Thornberry, Asst. Crim. D.A., San Antonio, for State.
In this cause, we take the unusual step of reconsidering, on our own initiative, a claim raised in an initial post-conviction application for writ of habeas corpus in a capital murder case, but rejected by this Court in an order issued in 2000. Since that time, the United States Supreme Court has issued a pair of decisions that call into question the correctness (indeed, the objective reasonableness) of our original disposition of that claim. In light of those decisions, and considering the applicant's diligence in raising the claim in his initial state writ application, we will take another look, and, ultimately, grant relief.
The applicant filed this initial state application for writ of habeas corpus challenging his conviction for capital murder and death sentence on January 12, 1996.1 The applicant had been convicted in January of 1987, and this Court affirmed his conviction in 1993.2 In ground for relief number ten of his initial writ application, the applicant argued that the punishment charge submitted to the jury had been flawed under the Eighth Amendment because it did not empower the jury to give effect to certain mitigating evidence he had offered at the punishment phase of trial. He relied principally upon the United States Supreme Court's opinion in Penry v. Lynaugh (Penry I).3 The convicting court recommended that we reject this claim on the merits because the jury could adequately consider the particular mitigating evidence that the applicant had presented within the ambit of the statutory special issues,4 which in 1987 did not include the particular mitigation instruction currently found in Article 37.071, Section 2(e)(1).5 In an unpublished written order dated September 13, 2000, this Court found the convicting court's findings of fact and conclusions of law, including its conclusion with respect to ground for relief number ten, to be supported by the record. On that basis we denied relief.
The applicant filed his initial federal petition for writ of habeas corpus on June 29, 2001. The federal district court subsequently granted the applicant's motion to abate his federal petition so that he could return to state court to exhaust a newly recognized claim that he could not be executed consistent with the Eighth Amendment because he is mentally retarded, under Atkins v. Virginia.6 This Court dismissed his first subsequent state writ raising the Atkins claim because he failed to make out a prima facie claim of mental retardation. When the applicant returned to federal court, the district court denied relief on all of the claims raised in his federal habeas petition in a memorandum opinion and order issued on March 17, 2005.7 The applicant did not carry his initial-writ Penry claim forward into his federal petition. The Fifth Circuit affirmed the district court's judgment,8 and in January of 2007, the Supreme Court denied the applicant's petition for certiorari.9
In April of 2007, the Supreme Court issued opinions in two companion cases, Abdul-Kabir v. Quarterman,10 and Brewer v. Quarterman.11 In those two opinions, the Supreme Court revisited Penry I and its progeny, and stated that a jury must be empowered by the trial court's instructions to give "meaningful effect" to all mitigating evidence that a capital defendant introduces at the punishment phase of his trial.12 In light of these opinions, the applicant filed a second subsequent application for writ of habeas corpus in state court, arguing that he satisfied the criteria for filing a subsequent writ as enumerated in Section 5 of Article 11.071 of the Code of Criminal Procedure. Equally divided as to how to dispose of the applicant's second subsequent writ application (four votes to allow the applicant to proceed versus four votes to dismiss), this Court issued an order on May 9, 2007, announcing that we declined to take any action.13
The next day, May 10, 2007, the date the applicant was scheduled to be executed, he filed a "suggestion" that the Court reconsider ground ten of his initial habeas application on its own initiative, pursuant to Rule 79.2(d) of the Texas Rules of Appellate Procedure.14 In an unpublished order issued that same day, we exercised our authority to reconsider ground for relief number ten, and stayed his impending execution. We issued an additional order in the case on August 22, 2007, directing the parties to brief the following questions:
• What jurisdiction does this Court have to reconsider, on its own motion, a previously denied habeas claim when the applicant subsequently filed his state-exhausted claims concerning the same conviction in federal courts?
• At the time this Court denied his first application in 2000, was the applicant's Penry-based claim based on "clearly established" law? Was his claim available in 2003 when he filed his second, Atkins-based claim?
• What is the legal significance of the fact that the remedy that the applicant had requested at trial was a jury-nullification issue?
• Did the applicant demonstrate, in his original application for habeas corpus relief, that he was entitled to prevail on the merits of his Penry-based claim?
After briefing from the parties, the cause was submitted to the Court on November 7, 2007. We turn our attention to the merits of the applicant's Penry I claim, essentially addressing first the last of the four specific questions we asked the parties to brief.
The applicant was tried in 1987, more than two years before the Supreme Court's opinion in Penry I. In Black v. State, this Court declared that Penry I error may be raised for the first time on appeal or in a post-conviction proceeding, at least where, as here, the trial preceded the Supreme Court's opinion.15 And in Ex parte Goodman, the Court held that a Penry I claim could be raised for the first time in a post-conviction habeas context even when the applicant failed to raise it on direct appeal.16 In the instant cause, the applicant called the lack of a mitigation instruction to the trial court's attention and requested what amounts to a crude jury-nullification instruction as a proffered means of remedying the perceived deficiency; he did not, however, raise the issue on direct appeal.17 In its findings of fact and conclusions of law disposing of the applicant's initial writ application, the convicting court proceeded directly to the merits of the applicant's Penry I claim and made no ruling on the basis of procedural default. We therefore turn to the particular mitigating evidence that the applicant adduced at the punishment phase of his trial.
The applicant was born with a deformity to his left ear. Apparently abandoned by his birth parents, he was adopted as an infant by Elias and Carmen Moreno through a Catholic adoption agency. The applicant grew up in a small house that he shared with his parents and his grandmother. During the first seven years of his life, the applicant underwent five surgeries to try to correct his deformity. Neighborhood boys taunted the applicant because of his deformity, and his mother would console him. When the applicant was still a small child, both his mother and his grandmother became very ill. His father was compelled to take a second job in order to support his family and pay medical expenses of about $84,000. At times the applicant was apparently sent to live with relatives, necessitating frequent changes in the schools he attended. When the applicant was about fifteen years old, his mother died, an event that he took "very hard." He dropped out of school and worked a number of menial jobs while living in his father's house, relatively unsupervised. The applicant was only eighteen years old at the time he committed his capital offense.
Various family friends testified that the applicant "has been a very good boy," was "polite," "respectful towards everyone," "sincere" in his religious devotion, and capable of being rehabilitated. A chaplain at the Bexar County jail who had counseled with the applicant testified that he did not impress her as "a cold-blooded killer," but more like "a frightened child." He described himself to her as "pretty much a loner for a long time, and did not have ... a lot of close connections." She "sensed ... that there was a lot of deep hurt for that." He expressed "a general remorse for the situation" to her. Another chaplain from the jail testified that the applicant asked him to provide a chess set. When the chaplain complied in a prompt manner, the applicant "was very surprised that I had brought it to him, brought it to him so quickly; and that he was somewhat surprised that someone would carry through with what they said they would do for him."
In ground for relief ten of his initial writ application, citing Penry I, the applicant argued:
The mitigating evidence presented in the instant case is basically that of remorse, youth, ... good character, and troubled childhood. [The applicant] requested an instruction on the consideration of mitigating evidence beyond the statutory special issues. These instructions would have given the jury a vehicle for expressing its "reasoned moral response" to mitigating evidence, yet they were denied by the trial court.
The convicting court rejected this argument with the following conclusion of law:
The applicant contends that the evidence he presented at the punishment phase of the trial was beyond the scope of the statutory special issue, thereby necessitating the...
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