Lane v. State, 70,661

• Decision Date: 04 December 1991
• Docket Number: No. 70,661,70,661
• Court: Texas Court of Criminal Appeals
• Parties: Harold Joe LANE, Appellant, v. The STATE of Texas, Appellee.

Page 35

822 S.W.2d 35

Harold Joe LANE, Appellant, v. The STATE of Texas, Appellee.

No. 70,661.

Court of Criminal Appeals of Texas,

En Banc.

Dec. 4, 1991.

Richard Alan Anderson (on appeal only), R.K. Weaver (on appeal only), Dallas, for appellant.

John Vance, Dist. Atty., Kathi A. Drew, Asst. Dist. Atty., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CLINTON, Judge.

Appellant was convicted of capital murder for killing supermarket employee Tammy Davis by shooting her with a handgun during a robbery. His first trial, conviction, and death sentence occurred in March, 1983. The conviction was reversed and the case remanded for a new trial in 1987. Lane v. State, 743 S.W.2d 617 (Tex.Cr.App.1987). His second trial also resulted in conviction, in August, 1988, and, again, punishment was assessed at death. Appeal is automatic to this Court. Article 37.071, § 2(h), V.A.C.C.P.

Appellant brings eight points of error. Because appellant makes no claim of insufficiency of the evidence, we will recite the facts of the offense in abbreviated form.

On November 20, 1982, appellant met his friend Grady Moffett at a bar in Dallas. They drank some beer and ingested some methamphetamine. They went from the bar to Moffett's girlfriend's apartment, where they drank some more and took some more methamphetamine. While at the apartment, they decided to "go rob someplace." At about 7:30 that evening the two men entered the Winn-Dixie grocery store at Royal Lane and Abrams with handguns. While Moffett was supposedly "watching the doors" at the front of the store, appellant went to the office area and demanded "all the money." An employee filled a paper bag with cash as appellant demanded. Appellant then tried to leave the store through a door designed as an entrance only. Not realizing that to open the door from inside the store he had to push a button, he began kicking the door. Tammy Davis, a high school student and part-time cashier, left her cash register to push the button for him. As she approached him, appellant turned around and spoke to her; at the same time he fired one shot which struck her in the head, killing her. Appellant and Moffett then drove away in their car, and were later captured.

In his first point of error, appellant argues that Article 37.071, V.A.C.C.P., as applied to him, violates the Eighth Amendment to the United States Constitution and Article I, Section 13 of the Texas Constitution in that the special issues unduly limited the jury's consideration of mitigating evidence which supported a life sentence. See Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).

The State contends that at trial appellant challenged only the facial constitutionality of Article 37.071 and was properly overruled. Thus, says the State, his claim on appeal that the statute is unconstitutional as applied was not preserved and appellant should not be permitted to raise it for the first time on appeal. The State further argues that, because appellant did not object to the jury instructions on Penry grounds, this Court, if it does consider the claim at all, should merely do a harm analysis, reviewing only for error that "created such harm that he 'has not had a fair and impartial trial[.]' " Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App.1984).

Since the Texas death penalty statute has been upheld by the United States Supreme Court in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), appellant's motion to declare the statute unconstitutional on its face was properly overruled. However, the State's contention that appellant's as-applied argument was not properly preserved is without merit in light of this Court's opinion in Black v. State, 816 S.W.2d 350 (Tex.Cr.App.1991) (Campbell J., concurring) and Selvage v. State, 816 S.W.2d 390 (Tex.Cr.App.1991).

The concurring opinion in Black, joined by five other members of the Court, held that Black's claim that the sentencing jury was unable to give effect to mitigating evidence within the scope of the special issues in violation of the holding in Penry, supra, was not procedurally barred under Texas law even though he had failed to object to the error at the time of trial in 1986. Since "the decision in Penry 'constituted a substantial change in the law ... and there being abundant Texas precedent demonstrating that, the holding amounts to a right not previously recognized, [Black] has not waived his right to assert a Penry violation by failing to object at trial.' " ¹ Black, 816 S.W.2d at 374. Basing its decision in Selvage on the concurrence in Black, this Court concluded that petitioner's claim under Penry was not procedurally barred under Texas law. Selvage, 816 S.W.2d at 392. Therefore, we reject the State's contention that appellant's failure to object on Penry grounds bars this Court from hearing the merits of the issue on appeal.

Appellant has standing to challenge the constitutionality of Article 37.071 as applied to him only if he has in fact presented evidence having mitigating impact beyond the scope of the special issues. See Hammond v. State, 799 S.W.2d 741, 749 (Tex.Cr.App.1990). "The Eighth and Fourteenth Amendments require that the sentencer ... not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973, 990 (1978). ² Therefore, this Court must determine whether any of the evidence appellant offered can be characterized as "mitigating" for Eighth Amendment purposes.

"Although the Supreme Court has made it clear that relevant mitigating evidence may not be excluded in the capital sentencing process, the parameters of exactly which evidence is both mitigating and 'relevant' are less clear." Lackey v. State, 816 S.W.2d 392, (Tex.Cr.App.1991). This Court has held that "whether evidence has 'mitigating value' is not determined by the party who offers it, its time of admission, or its manner of admission (direct or cross-examination) into evidence during a trial. The question is merely whether this evidence was before the jury for its consideration." Ex parte Ellis, 810 S.W.2d 208, 211 (Tex.Cr.App.1991).

Here the jury heard evidence that appellant met Moffett at a bar between three-thirty and five o'clock on the day of the offense, at which time he had a couple of beers and ingested approximately three grams of methamphetamine. After leaving the bar, appellant proceeded to Moffett's girlfriend's apartment where he drank more beer and ingested more methamphetamine before committing the offense. In Ex parte Ellis, supra, appellant introduced evidence regarding his "drug abuse and addiction [and] his intoxication at the time of the offense." This Court nonetheless concluded "that the mitigating evidence in this cause does not rise to the level of 'Penry evidence' and no additional instruction was necessary for the jury to consider and give effect to this evidence." This Court has since effectively held that voluntary intoxication has no mitigating significance beyond the scope of the special issues in Article 37.071(b)(1). See Ex parte Rogers, 819 S.W.2d 533, (Tex.Cr.App., No. 71,169, delivered June 19, 1991) (Clinton, J., dissenting).

Appellant also offered evidence that the gun with which he killed the victim required little pressure on the trigger to make it fire, and thus could be easily set off by a careless or extremely nervous person, and that the gun did in fact discharge accidently in his nervous hands. Additionally, evidence was offered concerning appellant's background and character, including several documents to show mitigating factors related to his prior convictions and his lack of any significant disciplinary record while in prison. The State argues that even if this evidence can be characterized as mitigating, it is capable of being considered and given effect under the two special issues submitted to the jury.

To the extent that these facts constitute "mitigating evidence," most of them properly go to the questions of intent and deliberateness. The issues of how easily the gun would fire and whether or not it discharged accidentally are addressed at the guilt/innocence phase of the trial. Moreover, the jury was required to find deliberateness and a reasonable expectation that death would result, under the first special issue. The jury was properly charged on the need to find specific intent to kill, and, later deliberateness, and therefore, did have opportunity to give full effect to its findings on those issues. The documents offered by appellant to show mitigating circumstances in relation to his prior convictions and prison record constitute "mitigating" evidence under Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1988) (O'Connor, J., concurring). Several of these documents were admitted and were available under the charge at the punishment stage for the jury to determine their relevance, if any, to either or both special issues. Although this may constitute "mitigating" evidence under Skipper, supra, this Court has held "its mitigating significance does not extend beyond the scope of our second special issue." Lauti v. State, 810 S.W.2d 176, 178 (Tex.Cr.App.1989), citing the plurality opinion in Franklin v. Lynaugh, 487 U.S. 164, 179-180, 108 S.Ct. 2320, 2330, 101 L.Ed.2d 155, 169 (1988). ³

While appellant has presented evidence which is mitigating, it is apparent from past decisions of this Court that "he is not entitled to jury instructions specifically informing the jury that certain evidence may be considered or how it may be applied." Lauti, 810 S.W.2d at 178. Because the jury was empowered to give full effect to all the mitigating evidence presented at trial, appellant has not been...