Goss v. State

• Decision Date: 04 March 1992
• Docket Number: No. 70506,70506
• Citation: 826 S.W.2d 162
• Parties: Cornelius Alan GOSS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 162

826 S.W.2d 162

Cornelius Alan GOSS, Appellant, v. The STATE of Texas, Appellee.

No. 70506.

Court of Criminal Appeals of Texas,

En Banc.

March 4, 1992.

Lawrence B. Mitchell, on appeal only, Dallas, for appellant.

John Vance, Dist. Atty., and K. Drew, M. Gandy and A. Beach, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

CAMPBELL, Judge.

Appellant, Cornelius Alan Goss, was convicted of capital murder. Tex. Penal Code § 19.03(a)(2). At the punishment phase of Appellant's trial, the jury answered affirmatively the first two special issues set forth in Article 37.071(b) of the Texas Code of Criminal Procedure. ¹ The trial judge then sentenced Appellant to death as required by Article 37.071(e). Direct appeal to this court is automatic. Tex.Code Crim. Proc. art. 37.071 § 2(h). Appellant raises seven points of error. We will affirm.

Appellant was convicted of the intentional murder of Carl Leevy, committed during the course of the burglary of the habitation of Ellen Leevy. Because Appellant's seven points of error are directed to matters of law and there is no challenge to the sufficiency of the evidence, no further explication of the facts is necessary.

In his first point of error, Appellant challenges the constitutionality of the capital sentencing statute, Tex.Code Crim. Proc. art. 37.071(b). Specifically, Appellant contends that the jury charge and attendant instructions, given to the jury at the punishment phase of Appellant's trial, were constitutionally flawed under the United States Supreme Court's decision in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).

Appellant's point or error requires this Court to make a determination of whether Appellant presented evidence at trial sufficient to require the trial judge to give a separate jury instruction on mitigation under Penry.

In Penry, expert testimony at the punishment stage demonstrated the appellant was mildly to moderately retarded. Penry, 109 S.Ct. at 2941. Although twenty-two years of age at the time of the crime, Penry had the learning ability of a six-and-a-half-year-old child and the social maturity of a nine or ten year old. Id. Penry presented additional evidence of an "organic brain disorder at the time of the offense which made it impossible for him to appreciate the wrongfulness of his conduct or to conform his conduct to the law." Id. Penry's mother testified that as a child he was routinely beaten and subject to other, extraordinarily abusive, punishments. Id. In addition, Penry was in and out of state hospitals and schools throughout his childhood. Id. at 2941-42. Both of the State's psychiatric experts likewise testified that "Penry was a person of extremely limited mental ability, and that he seemed unable to learn from his mistakes." Id. at 2942.

Because of the unique nature of Penry's brain damage, mental retardation, and background, the Supreme Court held that the special punishment issues submitted to the jury at Penry's trial were constitutionally defective, in that they did not allow the jury to consider the mitigating weight of his punishment evidence. The Penry Court held that the "jury was not provided with a vehicle for expressing its 'reasoned moral response' to that [mitigating] evidence in rendering its sentencing decision." Id. at 2952. That is, although the evidence presented by Penry was relevant to assisting the jury in answering the special issues, it was also relevant to Penry's "moral culpability beyond the scope of the special verdict questions." Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 2333, 101 L.Ed.2d 155 (1988) (O'Connor, J., concurring).

In short, even if the jury had deemed the mitigating evidence strong enough to reduce Penry's "personal culpability" for the crime, it had no vehicle, under the special issues, for expressing a "reasoned moral response" that would allow them to give Penry a sentence less than death. The Court's discussion in Penry amplifies this quandary:

Underlying Lockett [v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) ] and Eddings [v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) ] is the principle that punishment should be directly related to the personal culpability of the criminal defendant. If the sentencer is to make an individualized assessment of the appropriateness of the death penalty, "evidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse." California v. Brown, 479 U.S. 538, 545 [107 S.Ct. 837, 841, 93 L.Ed.2d 934] (1987) (concurring opinion). Moreover, Eddings makes clear that it is not enough simply to allow the defendant to present mitigating evidence to the sentencer. The sentencer must also be able to consider and give effect to that evidence in imposing sentence. Hitchcock v. Dugger, 481 U.S. 393 [107 S.Ct. 1821, 95 L.Ed.2d 347] (1987). Only then can we be sure that the sentencer has treated the defendant as a "uniquely individual human bein[g]" and has made a reliable determination that death is the appropriate sentence. Woodson [v. North Carolina], 428 U.S. 280, 304-5 [96 S.Ct. 2978, 2991, 49 L.Ed.2d 944] (1976). "Thus, the sentence imposed at the penalty stage should reflect a reasoned moral response to the defendant's background, character, and crime." California v. Brown, supra [479 U.S.] at 545 (concurring opinion)(emphasis in original).

Penry, at 2947.

Based on the Supreme Court's holding in Penry, we held in Lackey v. State, 819 S.W.2d 111, (Tex.Cr.App.1991) (opinion on motion for rehearing), that to pass constitutional muster a capital sentencing scheme must (1) allow the jury to consider relevant mitigating evidence; and (2) provide the jury with a vehicle to express a reasoned moral response to that evidence in arriving at an individualized punishment assessment. This Court, in Lackey, explained with some specificity the criteria necessary for an appellant to successfully raise a Penry claim.

First, the evidence presented at trial must be specifically relevant to a defendant's "moral culpability" before it ascends to the level of Penry-type evidence. But what, exactly, is moral culpability? The lessening of moral culpability, in the Penry context, does not entail the lessening of a defendant's guilt for the commission of a crime--indeed it could not, since at the punishment phase of a capital murder trial, the defendant's guilt is a fait accompli. Rather we look at whether the defendant is less deathworthy, i.e., entitled to the consideration of the jury of the extension of mercy, in the form of a sentence of life imprisonment. This concept is better understood when read in conjunction with Penry's mandate that a capital sentencing scheme allow the jury to make "an individualized assessment of the appropriateness of the death penalty, given the offense and the offender." Lackey, supra. Thus, evidence relating to a defendant's moral culpability is that evidence on which the jury may rely in its "overall assessment of the offender." Id.

The next question that logically arises is what does the term "individualized assessment" mean? Under the broadest possible construction, a defendant would be allowed to present an infinite amount of evidence that could, theoretically, be used in the jury's overall decision regarding the appropriateness of death. This approach, however, would prove utterly unworkable in practice. Essentially, allowing the jury carte blanche to consider innumerable factors of an individual's background and character would ultimately lead to the imposition of the death penalty based on manifest irrelevancies; in sum, a "popularity contest" in which the more personally appealing or sympathetic defendants would receive a life sentence and the less attractive and sympathetic defendants would receive a death sentence. Clearly, such an approach would lead precisely to sentences "so wantonly and so freakishly imposed" as to be unconstitutional under Furman v. Georgia, 408 U.S. 238, 310, 92 S.Ct. 2726, 2763, 33 L.Ed.2d 346 (1972) (Stewart, J., concurring). See also, Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 3058-3068, 111 L.Ed.2d 511 (1990) (Scalia, J., concurring).

In Lackey, we further suggested that mitigating evidence is relevant to the jury's individualized assessment of the propriety of death if there is a nexus between the mitigating evidence and the circumstances surrounding the crime that might, from the viewpoint of society, reduce the defendant's "deathworthiness." ² In other words, the evidence must tend to excuse or explain the criminal act, so as to make that particular defendant not deserving of death. See also, Penry, supra at 2947, citing California v. Brown, 479 U.S. at 545, 107 S.Ct. at 841 ("If the sentencer is to make an individualized assessment of the appropriateness of the death penalty, 'evidence about the defendant's background and character is relevant because ... defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.' ").

Once a defendant has presented such mitigating evidence, the jury must be given the means to give adequate consideration to that evidence. Obviously it does no good to allow the jury to hear mitigating evidence if it is not presented with a vehicle through which to express its "reasoned moral response" to such evidence. The phrase "reasoned moral response" is nothing if not amorphous. In Trevino v. State, 815 S.W.2d 592, (Tex.Cr.App.1991), we held that "allowing the jury to express its 'reasoned moral response' means something more than affording the jury the...