Narvaiz v. Johnson

• Citation: 134 F.3d 688
• Decision Date: 30 January 1998
• Docket Number: No. 97-50312,97-50312
• Parties: Leopoldo NARVAIZ, Jr., Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 688

134 F.3d 688

Leopoldo NARVAIZ, Jr., Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal

Justice, Institutional Division, Respondent-Appellee.

No. 97-50312.

United States Court of Appeals, Fifth Circuit.

Jan. 30, 1998.

Gregory Burr Macaulay, Oakton, VA, for Petitioner-Appellant.

John Dury Jacks, Austin, TX, for Respondent-Appellee.

Appeal from the United States District Court for the Western District of Texas.

Before JOLLY, DUHE and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Leopoldo Narvaiz, Jr., in 1988 convicted in Texas state court of capital murder and sentenced to death, appeals the denial of federal habeas relief, claiming two errors in sentencing: (1) the voluntary intoxication jury instruction, pursuant to TEX. PENAL CODE § 8.04(b), is unconstitutional, facially and as applied, because it prohibits the jury from considering mitigating evidence of voluntary intoxication unless the intoxication rises to the level of temporary insanity; and (2) TEX.CODE CRIM.PROC. ART. 37.071(f) is unconstitutional as applied because it prevents the jury from weighing the mitigating evidence of provocation by a victim other than the first person named in the indictment. We AFFIRM and VACATE the stay of execution.

I.

Narvaiz was convicted by jury in 1988 of the offense of capital murder for stabbing and bludgeoning to death Ernest Mann, Jr., age 11, while also murdering Ernest Mann's three older sisters, Martha, Shannon, and Jennifer Mann, ages 15, 17, and 19, respectively, in their home in Bexar County, Texas. The horrific evidence presented in the state criminal trial is accurately detailed in the opinion of the Texas Court of Criminal Appeals on direct appeal. See Narvaiz v. State, 840 S.W.2d 415, 420-23 (Tex.Crim.App.1992), cert. denied, 507 U.S. 975, 113 S.Ct. 1422, 122 L.Ed.2d 791 (1993).

Briefly restated, Narvaiz had dated Shannon Mann for several years until she broke off the relationship in February 1988. The next month, Narvaiz approached Shannon Mann and her boyfriend, Ricky Moore, with a knife and a pipe, smashed the windows of Moore's truck, and stated to Shannon's mother that "if he wasn't going to be able to have [Shannon], nobody else was going to". Id. at 420-21.

In the early morning hours of 15 April 1988, the police received and recorded a "911" telephone call in which the caller, later identified as Shannon Mann, stated: "My boyfriend just beat us up. He's killed my little sister". Id. at 421. When the police arrived at the Mann residence, they found all four of the Mann siblings stabbed to death. Ernest Mann, Jr., had been stabbed 63 times. Id. A knife containing Narvaiz' thumbprint was found in the yard of the residence and the police soon arrested Narvaiz at a friend's house.

Two days after the arrest, Narvaiz signed a written confession in which he admitted the killings, but asserted that he was under the control of cocaine at the time and that Jennifer Mann first stabbed him in the leg, after which he "just went crazy". Id. at 422-23.

The day following conviction, the jury affirmatively answered two Texas capital sentencing special issues as to: (1) deliberateness and expectation of death; and (2) continuing threat to society. As a result, Narvaiz was sentenced by the trial court to death by lethal injection.

In 1992, the Texas Court of Criminal Appeals affirmed the conviction and sentence; and, in 1993, the Supreme Court of the United States denied certiorari. Id. The trial court scheduled execution for 23 April 1993.

Narvaiz, with the assistance of the Texas Resource Center, filed in district court a motion for appointment of counsel, a motion for stay of execution, and an abbreviated habeas petition. That court stayed execution and appointed counsel. Narvaiz filed his amended federal habeas petition in late 1993. The district court, in early 1994, granted the State's motion to dismiss the petition, without prejudice, for failure to exhaust state remedies. Narvaiz v. Collins, No. SA-93-CA-0311 (W.D.Tex. Feb. 8, 1994). The trial court scheduled execution for 6 June 1994.

On 1 June 1994, Narvaiz filed a pro se state habeas application, incorporating by reference the grounds for relief raised in federal court. Following appointment of counsel and a new execution date of 12 October 1994, Narvaiz' counsel filed an amended application, but refused to present supporting evidence, seeking instead the appointment of a private investigator to assist in developing claimed newly-discovered grounds for relief. On 3 October 1994, the Texas Court of Criminal Appeals denied Narvaiz' state habeas claim. Ex parte Narvaiz, No. 27,215-01, at 161 et seq. (Tex.Crim.App. Oct. 3, 1994).

Three days later, the same district court that had been presented with Narvaiz' first federal habeas application appointed the same counsel who had represented Narvaiz in the previous federal habeas proceeding, granted a stay of execution, and set a deadline for filing a federal habeas petition. In January 1995 Narvaiz filed a "corrected" petition, listing 22 grounds for relief. Two months later, the district court denied the State's motion to dismiss for failure to exhaust state remedies, stating among its reasons the need to prevent Narvaiz from manipulating the system through intentionally filing non-exhausted claims in district court, thus postponing in perpetuity a determination on the merits by the district court and, as a result, execution of sentence.

In mid-March 1997, the district court, after considering all 22 grounds for relief and reviewing more than 6000 pages of record, filed an 190-page opinion, denying habeas relief and lifting the stay of execution. Narvaiz v. Johnson, Civil No. SA-94-CA-839, at 12-13 (W.D.Tex. Mar. 17, 1997). Narvaiz filed a notice of appeal, which was deemed timely filed. The state court set execution for 15 October 1997.

On 21 August 1997, our court issued an administrative directive to the district court to determine whether Narvaiz was entitled to a certificate of probable cause to appeal (CPC). That court determined that only one of Narvaiz' claims satisfied that standard. However, it denied Narvaiz' motion for stay of execution, in part because "there is no reasonable likelihood that the Fifth Circuit will rule favorably to petitioner on [the claim which was granted CPC]". We granted a stay of execution, denied counsel's motion to withdraw, and set an expedited briefing schedule.

II.

Narvaiz presents two issues. Both issues attack the constitutionality of the jury instructions at the sentencing phase: the first, contends that the jury charge was unconstitutional due to an instruction that was included; the second, that an instruction was excluded.

The first contention is based on the voluntary intoxication jury instruction given to the jury, pursuant to TEX. PENAL CODE § 8.04(b), which included the following: "Evidence of temporary insanity caused by intoxication should be considered in mitigation of the penalty attached to the offense". Narvaiz contends that this instruction was unconstitutional because it prohibited the jury from considering mitigating evidence of voluntary intoxication that did not rise to the level of such temporary insanity.

The second contention is based on the trial court's refusing an instruction on provocation by a victim other than the first named in the indictment. This contention involves TEX.CODE CRIM.PROC. ART. 37.071, which provides that a provocation instruction shall be submitted "only with regard to the conduct of the defendant in murdering the deceased individual first named in the indictment". Narvaiz contends that this statute is unconstitutional as applied because it prevents the jury from weighing the mitigating effect of the alleged provocation by Jennifer Mann, noted supra.

The first issue, concerning voluntary intoxication, was the sole issue found by the district court to satisfy the standards for CPC. The second issue, concerning provocation, was not mentioned as satisfying those standards. But, unlike the certificate of appealability under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2253(c) (as amended), a grant of CPC on a single issue allows Narvaiz to raise other issues on appeal. 28 U.S.C. § 2253 (prior to 1996 amendment); see Sherman v. Scott, 62 F.3d 136, 138-39 (5th Cir.1995).

A.

During the sentencing phase, the trial court, pursuant to TEX. PENAL CODE § 8.04(b), directed the jury to consider evidence of Narvaiz' voluntary intoxication as mitigating evidence only if it determined that the intoxication amounted to temporary insanity. That section provides: "Evidence of temporary insanity caused by intoxication may be introduced by the actor in mitigation of the penalty attached to the offense for which he is being tried". TEX. PENAL CODE § 8.04(b).

The sentencing charge contained, in pertinent part, the following:

You are instructed that under our law neither intoxication nor temporary insanity of mind caused by intoxication shall constitute any defense to the commission of crime. Evidence of temporary insanity caused by intoxication should be considered in mitigation of the penalty attached to the offense.

By the term "intoxication" as used herein, is meant disturbance of mental or physical capacity resulting from the introduction of any substance into the body.

By the term "insanity" as used herein, is meant that as a result of intoxication the defendant did not know that his conduct was wrong.

Now if you find from the evidence that the defendant, Leopoldo Narvaiz, Jr., at the time of the commission of the offense for which he is on trial, if you find from the evidence beyond a reasonable doubt that he did commit such offense, was laboring under temporary insanity as defined in this charge, produced by voluntary intoxication, then you may take such temporary insanity into consideration in mitigation of the...