Mines v. State

• Decision Date: 30 November 1994
• Docket Number: No. 70893,70893
• Citation: 888 S.W.2d 816
• Parties: Charles E. MINES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 816

888 S.W.2d 816

Charles E. MINES, Appellant, v. The STATE of Texas, Appellee.

No. 70893.

Court of Criminal Appeals of Texas,

En Banc.

Nov. 30, 1994.

Jeffrey J. Pokorak, San Antonio, for appellant.

Joe F. Grubbs, Dist. Atty., and Lacy D. Buckingham and Cindy Hellstern, Asst. Dist. Attys., Waxahachie, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON REMAND FROM THE UNITED STATES SUPREME COURT

MILLER, Judge.

On original submission, we affirmed the judgment of the trial court in this cause. Mines v. State, 852 S.W.2d 941 (Tex.Crim.App.1992). The U.S. Supreme Court granted Appellant's petition for writ of certiorari, vacated our judgment, and remanded the cause for consideration in light of their decision in Johnson v. Texas, 509 U.S. 350, 113 S.Ct. 2658, 125 L.E.2d 290 (1993). Because we believe that Johnson does not change our original disposition of Appellant's Penry claims, we once again affirm.

Appellant was convicted of capital murder and sentenced to death. At trial, Appellant introduced evidence of a manic depressive state, also known as bipolar disorder. On original submission, we held that the special issues given during the punishment phase of the trial adequately encompassed the relevant, mitigating characteristics of Appellant's evidence and gave the jury a vehicle by which it could express its reasoned moral response to this evidence. Mines, 852 S.W.2d at 952. Subsequent to our opinion, the U.S. Supreme Court handed down Johnson, supra.

The Supreme Court's decision in Johnson succeeded its opinion in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). In Penry, the petitioner introduced evidence of his mental retardation and abusive childhood. The Supreme Court held that the Texas special issues could not adequately give effect to this evidence. Specifically, the jury instructions only allowed the jury to consider Penry's mitigating evidence as an aggravating factor because it suggested a "yes" answer to future dangerousness. Id. at 323, 109 S.Ct. at 2949. Similarly, the petitioner in Johnson argued that the Texas special issues could not give adequate mitigating effect to the evidence of his youth. The Supreme Court rejected Johnson's claim and held that there was not a reasonable likelihood that the jury would have found itself foreclosed from considering the relevant aspects of petitioner's youth through the second special issue. Johnson, 509 U.S. at ----, 113 S.Ct. at 2669. "We believe that there is ample room in the assessment of future dangerousness for a juror to take account of the difficulties of youth as a mitigating force in the sentencing determination." Id.

This Court, in several recent opinions and unpublished orders, has interpreted Johnson as being limited to its facts; youth. See Ex Parte Granviel, No. 6,620-04 (Tex.Crim.App. October 19, 1994) (unpublished order); Ex Parte Hawkins, No. 7,369-07 (Tex.Crim.App. October 12, 1994) (unpublished order); Zimmerman v. State, 881 S.W.2d 360 (Tex.Crim.App.1994); Ex Parte Lucas, 877 S.W.2d 315 (Tex.Crim.App.1994). In these cases, several judges on this Court have argued that the Supreme Court's remand in light of Johnson must be for some other purpose than to just consider age. See Ex Parte Lucas, 877 S.W.2d 315 (Clinton, Baird, and Overstreet, JJ. dissenting); Ex Parte Hawkins, supra (J. Baird concurring). In fact, the Supreme Court held in Johnson that youth could be given proper mitigating effect within the framework of the Texas special issues. Therefore, it would be pointless for the Supreme Court to remand a case for consideration of an issue that they have already decided. Accordingly, Johnson must mean something more.

The Supreme Court in Johnson stated that "[t]he evidence of Johnson's youth fell outside Penry's ambit. Unlike Penry's mental retardation, which rendered him unable to learn from his mistakes, the ill effects of youth that a defendant may experience are subject to change and, as a result, are readily comprehended as a mitigating factor in consideration of the second special issue." Johnson, 509 U.S. at ----, 113 S.Ct. at 2670. Therefore, a more plausible and logical explanation for the Supreme Court's remand in this case and its companions ¹ would be to consider whether the mitigating evidence offered in each individual case was subject to change, like the youth of Johnson, or constant, such as the mental retardation of Penry.

At trial, Mines presented evidence of bipolar disorder. There was testimony that, if Appellant was suffering from bipolar disorder, proper treatment would reduce the odds that he would commit future acts of violence. Mines, 852 S.W.2d at 951. There was no testimony of any long term mental illness that precluded him from conforming his behavior to societal norms, as in Penry. To the contrary, the testimony showed that when bipolar disorder is in remission, with or without treatment, a person is capable of conforming his behavior to societal expectations. Id. 852 S.W.2d at 949. This mitigating evidence is not constant, as in Penry, and is subject to change. Consequently, the jury could have adequately given mitigating effect to this evidence through the second special issue. Furthermore, like Johnson, the jury was instructed that it could consider all of the evidence in either phase of the trial when assessing punishment. We fail to see how the jury was foreclosed from considering the mitigating aspects of Appellant's mental illness, if any, in its deliberations on punishment. The mitigating aspects of bipolar disorder were well within the effective reach of the jury. ² Therefore, a special instruction concerning Appellant's mental illness was not warranted during the punishment phase of the case at bar.

We hold that our original opinion is unaffected by the Supreme Court's opinion in Johnson. Therefore, we reaffirm our original holding and the judgment of the trial court.

McCORMICK, P.J., and CAMPBELL, J., concur in the result.

WHITE, Judge, concurring.

I believe Johnson v. Texas, 509 U.S. 350, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993) was limited to evidence of a defendant's youth. Until this Court has received direction from the Supreme Court that this interpretation is incorrect, we should follow that interpretation.

CLINTON, J., dissents for reason given in his dissent in Ex parte Lucas, 877 S.W.2d 315, at 317 (Tex.Cr.App.1994).

BAIRD, Judge, concurring.

This is but one of seven cases where the Supreme Court granted certiorari, vacated our judgment, and remanded the case for consideration in light of Johnson v. Texas, 509 U.S. 350, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993). See also, Hawkins v. Texas, 509 U.S. 918, ----, 113 S.Ct. 3029, 3030, 125 L.Ed.2d 718 (1993); Earhart v. Texas, 509 U.S. 917, 113 S.Ct. 3026, 125 L.Ed.2d 715 (1993); Granviel v. Texas, 509 U.S. 917, 113 S.Ct. 3027, 125 L.Ed.2d 715 (1993); Lucas v. Texas, 509 U.S. 918, 113 S.Ct. 3029, 125 L.Ed.2d 717 (1993); Richardson v. Texas, 509 U.S. 917, 113 S.Ct. 3026, 125 L.Ed.2d 715 (1993); and, Zimmerman v. Texas, 510 U.S. 938, 114 S.Ct. 374, 126 L.Ed.2d 324 (1993). ¹ The Supreme Court explained such an order in Henry v. City of Rock Hill, 376 U.S. 776, 84 S.Ct. 1042, 12 L.Ed.2d 79 (1964):

When this case was last before us, we granted certiorari, vacated the judgment ... and remanded the case ... "for further consideration in light of Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697." That has been our practice in analogous situations where, not certain that the case was free from all obstacles to reversal on an intervening precedent, we remand the case to the state court for reconsideration.

* * * * * *

The South Carolina Supreme Court correctly concluded that our earlier remand did not amount to a final determination on the merits. That order did, however,--indicate that we found Edwards sufficiently analogous and, perhaps, decisive to compel re-examination of the case.

Id, 376 U.S. at 776-77, 84 S.Ct. at 1042-1043 (citations omitted). Consequently, the Supreme Court's order remanding this case suggests our opinion on original submission was erroneous.

I.

In 1975, our capital sentencing scheme passed constitutional muster. In Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), the Supreme Court held:

... Texas has provided a means to promote the evenhanded, rational and consistent imposition of death sentences under law. Because this system serves to assure that sentences of death will not be "wantonly" or "freakishly" imposed, it does not violate the Constitution.

Id., 428 U.S. at 276, 96 S.Ct. at 2958. We have rejected many constitutional challenges to our capital sentencing scheme since Jurek. See e.g., Stewart v. State, 686 S.W.2d 118 (Tex.Cr.App.1984), cert. denied, 474 U.S. 866, 106 S.Ct. 190, 88 L.Ed.2d 159 (1985); Phillips v. State, 701 S.W.2d 875 (Tex.Cr.App.1985), cert. denied, 477 U.S. 909, 106 S.Ct. 3285, 91 L.Ed.2d 574 (1986); Fierro v. State, 706 S.W.2d 310 (Tex.Cr.App.1986); Demouchette v. State, 731 S.W.2d 75 (Tex.Cr.App.1986), cert. denied, 482 U.S. 920, 107 S.Ct. 3197, 96 L.Ed.2d 685 (1987); and, Cordova v. State, 733 S.W.2d 175 (Tex.Cr.App.1987), cert. denied, 487 U.S. 1240, 108 S.Ct. 2915, 101 L.Ed.2d 946 (1988).

However, thirteen years after Jurek, we learned that our capital sentencing scheme may be unconstitutionally applied. Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). Penry presented mitigating evidence that he was mentally retarded, suffered organic brain damage, and suffered physical and mental abuse as a child. Id., 492 U.S. at 309, 109 S.Ct. at 2941. The Supreme Court held our statutory punishment issues did not allow the jury to give effect to this mitigating evidence. Id., 492 U.S. at 323, 109 S.Ct. at 2949.

Four years later, in Graham v. Collins, 506 U.S. 461, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993), the Supreme Court stated:

We do not read...