Ex parte Smith

• Decision Date: 28 April 2010
• Docket Number: No. AP-76,035.,AP-76
• Parties: Ex parte Roy Gene SMITH, Applicant.
• Court: Texas Court of Criminal Appeals

309 SW 3d 53

Ex parte Roy Gene SMITH, Applicant.

No. AP-76,035.

Court of Criminal Appeals of Texas.

April 28, 2010.

Robert C. Owen, Austin, for Appellant.

Jack Roady, Asst. District Atty., Houston, Jeffrey L. VanHorn, State's Attorney, Austin, for State.

WOMACK, J., delivered the opinion of the unanimous Court.

This is a subsequent post-conviction application for writ of habeas corpus. The applicant claims that he is entitled to relief from his death sentence "because he presented significant mitigating evidence related to his moral culpability and the appropriateness of a death sentence that could not be given full effect by the sentencing jury." We find that the trial court erred by not providing the jury a constitutionally adequate vehicle by which it could fully consider and give effect to the applicant's relevant evidence of poverty, a crime-ridden neighborhood, and drug addiction. We also find that the applicant was egregiously harmed by this error. We therefore remand to the trial court for new punishment proceedings.

I. Constitutional Background

The United States Supreme Court has established two key principles that guide the process by which a jury may assess the death penalty.¹ First, while the death penalty is not per se cruel and unusual punishment in violation of the Eighth Amendment,² a jury's discretion to assess the death penalty "must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action."³ Second, the jury must be provided a vehicle by which to fully consider and give effect to mitigating evidence of "the character and record of the individual offender and the circumstances of the offense."⁴

With respect to the second principle, the Supreme Court has held that the mitigating evidence must first be relevant. Relevant evidence in this context is "evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value."⁵ A vehicle need not be provided when the evidence has "only a tenuous connection—`some arguable relevance'—to the defendant's culpability," but only when the evidence "may have meaningful relevance to the defendant's moral culpability `beyond the scope of the special issues.'"⁶ Once this "low threshold for relevance"⁷ is met, the jury must be provided an adequate vehicle by which to fully consider and give effect to the evidence.

At the time the applicant was sentenced, the jury was required to answer special issues of deliberateness, future dangerousness, and, if raised by the evidence, provocation. The Supreme Court found that these special issues adequately directed and limited the jury's discretion.⁸ But if a defendant presented relevant mitigating evidence that was outside the scope of the special issues,⁹ or that had an aggravating effect when considered within the scope of the special issues,¹⁰ the special issues were a constitutionally inadequate vehicle for the jury to fully consider and give effect to the mitigating evidence.¹¹ Where the special issues were an inadequate vehicle, a "nullification instruction," such as the one given to the applicant's jury, was insufficient to cure the constitutional inadequacy of the special issues.¹²

II. Procedural History

A. Trial

In May 1990, a jury convicted the applicant of capital murder. At the conclusion of the punishment phase, the trial court instructed the jury to answer three special issues:

(1) Was the conduct of the defendant, Roy Gene Smith, that caused the death of the deceased committed deliberately and with the reasonable expectation that the death of the deceased or another would result?

(2) Is there a probability that the defendant, Roy Gene Smith, would commit criminal acts of violence that would constitute a continuing threat to society?

(3) Was the conduct of the defendant, Roy Gene Smith, in killing the deceased unreasonable in response to the provocation, if any, by the deceased?

In response to Penry I, the trial court also gave the jury the following "nullification instruction":

You are instructed that when you deliberate on the questions posed in the special issues, you are to consider mitigating circumstances, if any, supported by the evidence presented in both phases of the trial, whether presented by the State or the defendant. A mitigating circumstance may include, but is not limited to, any aspect of the defendant's character, background, record, or circumstances of the crime which you believe could make a death sentence inappropriate in this case. If you find that there are any mitigating circumstances in this case, you must decide how much weight they deserve, and thereafter, give effect and consideration to them in assessing the defendant's personal culpability at the time you answer the special issue. If you determine, when giving effect to the mitigating evidence, if any, that a life sentence, as reflected by a negative finding to the issue under consideration, rather than a death sentence, is an appropriate response to the personal culpability of the defendant, then a negative finding should be given to that special issue under consideration.

The jury answered the special issues affirmatively and did not employ the nullification instruction. The trial court sentenced the applicant to death.

B. Direct Appeal

The applicant appealed his conviction and sentence directly to this Court. In his first point of error, the applicant contended that "the trial court erred by giving the jury an unauthorized instruction on mitigation which failed to advise them of a comprehensible method of determining and utilizing mitigating evidence."¹³ We found that the nullification instruction was "sufficient to overcome the constitutional infirmity of Penry I."¹⁴ We also found that the applicant "failed to make a contemporaneous objection to the court's charge,"¹⁵ and ultimately affirmed the judgment and sentence of the trial court.

C. Initial State Application

In April 1997, the applicant filed his initial state application for writ of habeas corpus. He claimed that he was denied the effective assistance of counsel because his counsel failed to adequately investigate his history and retain a mitigation specialist.¹⁶ The trial court made the following findings of fact describing the applicant's mitigating evidence:

10. During the punishment phase of trial, the applicant testified that he used drugs twenty-four hours a day every day of the week, and that the drugs must have put him in the position that he was in as a result of the crime.

11. During the punishment phase of trial, the applicant testified that other crimes he had committed were influenced by "drinking heavy and smoking weed."

12. During the punishment phase of trial, the applicant testified that he needed money to support his habit.

...

15. During the punishment phase of trial, the applicant's mother testified that the applicant's father died in 1971.

16. During the punishment phase of trial, the applicant's mother testified that she currently supports herself by welfare while living in a house with thirteen other family members.

17. During the punishment phase of trial, the applicant's mother testified that she lived in a high-crime area, and that she would have left the neighborhood if she could have afforded to move.

18. During the punishment phase of trial, the applicant's mother testified that the applicant attempted to help raise his son and that the applicant worked at a steel plant in Baytown.

...

20. During the punishment phase of trial, the applicant's mother testified that the applicant did well when he was staying in the penitentiary.

...

22. During the punishment phase of trial, the applicant's sister described the neighborhood in which the applicant lived, including the prevalence of drugs, robberies, and prostitution.

23. During the punishment phase of trial, the applicant's sister related an incident where both she and the applicant were robbed at gun-point in the middle of the street.

24. During the punishment phase of trial, the applicant's sister stated that the applicant had been raised in the church.

In an unpublished order, we stated that we had reviewed the record and that "the findings and conclusion by the trial court are supported by the record."¹⁷ We denied relief on this basis.

D. Federal Petition

In May 2000, the applicant filed a petition for writ of habeas corpus in federal district court. The district court dismissed the petition,¹⁸ but the United States Court of Appeals for the Fifth Circuit granted a certificate of appealability on two issues: (1) whether the applicant's trial counsel provided ineffective representation, and (2) whether the jury instructions at the sentencing phase violated Penry I.¹⁹

The Fifth Circuit ultimately denied relief on both issues.²⁰ With respect to Penry I, the Fifth Circuit discussed four categories of mitigating evidence: "poverty; drug addiction and intoxication; character evidence; and growing up in the crime-ridden neighborhood of the Fifth Ward of Houston."²¹ The Fifth Circuit found that the jury was able to give full effect and express their reasoned moral response to the applicant's evidence of drug addiction and intoxication through the special issues. If jurors determined that the applicant's substance abuse hindered his ability to make a conscious decision to commit capital murder, they could have answered the deliberateness special issue in the negative.²² If jurors reasonably assumed that the applicant would not have access to drugs and could receive rehabilitative services in prison, and therefore his proclivities toward violent behavior would lessen after overcoming his addictions, the jurors could have answered the future-dangerousness special issue in the negative.²³ The Fifth Circuit did not find authority for drug addiction as a mitigating factor that could reduce a defendant's moral culpability outside its relevance to the...