IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
BEXAR COUNTY
STATEMENT
I agree with Judge Womack that many members of the bench and bar, including four members of the United States Supreme Court, (1) believed that Tennard v. Dretke, 542 U.S. 274 (2004) and Smith v. Texas, 543 U.S. 37 (2004), announced "new law" that could be invoked under Article 11.071, § 5, as an exception to the general statutory bar against subsequent writ applications. With great reluctance, I disagree with Judge Womack that we can simply declare that Tennard and Smith established new law "as a matter of state law." I cannot agree for two reasons.
First, five members of the United States Supreme Court very recently held that the Texas special issues were always constitutionally deficient for failing to provide a special vehicle for mitigation evidence until the Texas Legislature statutorily enacted a special mitigation issue in 1991. (2) Apparently, this holding was silently lurking in the penumbras of Jurek v. Texas (3) all along, but this Court, as well as the Fifth Circuit, simply never realized it. Nonetheless, it was clearly established federal constitutional law. (4) We are not at liberty to disagree.
Second, five members of this Court accurately anticipated the Supreme Court's recent decisions and held that Tennard and Smith did not establish new law concerning mitigation evidence and the former "nullification" instruction. (5) In Ex parte Hood, a majority of this Court concluded that a reasonable person could have and should have been able to formulate a habeas claim concerning mitigation evidence and the nullification instruction based upon Penry v. Lynaugh, 492 U.S. 302 (1989). (6) I dissented from that decision and concluded that no Texas or federal court had recognized the legal basis for a claim that the Texas special issues were systemically inadequate to address mitigation evidence beyond the Penry scenario until Tennard and Smith were decided in 2004. (7) Although it may be true that no Texas or federal court had held that the pre-1991 Texas special issues were systemically flawed, Brewer and Abdul-Kabir proved me wrong in my conclusion that Tennard and Smith established "newly available" law for purposes of allowing consideration of a subsequent writ under article 11.071, § 5. In Hood, I expressed my concern with the dilemma of what Chief Justice Roberts calls the "dog's breakfast of divided, conflicting, and ever-changing analyses" (8) of the Supreme Court's capital murder mitigation law. (9) A clear decision on whether Tennard and Smith announced "new law" is crucial because
[u]nder our Texas habeas corpus statute, an applicant may not have the merits of a subsequent writ considered unless he passes over the threshold of article 11.071, § 5. Thus, if Tennard and Smith announced new law, we may consider the merits of applicant's claims. If they are mere clarifications of existing and previously available law, we are statutorily required to dismiss his subsequent application as an abuse of the writ. On the other hand, federal courts are not permitted to grant a state petitioner's writ application complaining about a state-court decision unless the state court's determination of the legal issue was an unreasonable application of clearly established law as announced by the Supreme Court. . . . This is all very awkward. To grant a Texas death-row inmate relief on his subsequent Penry I and Penry II claim under the recently decided Tennard and Smith cases, we must find that those decisions announced new law, but the federal courts cannot grant relief on those very same claims unless they find that Texas courts misapplied clearly established law at the time of the relevant state-court decision. (10)
Tennard and Smith cannot simultaneously be both "newly available law" for Texas courts and "clearly established law" for federal courts. Only the Supreme Court could tell both federal and state courts which one it is: new law or clearly established law. In Brewer and Abdul-Kabir, the Supreme Court spoke and clarified this Catch-22: Tennard and Smith, as well as Penry I and Penry II, were simply factual variations on clearly established law that went back as far as Jurek itself. (11) Never mind that, as Justice Scalia noted, countless Texas prisoners were executed in the thirty years between Jurek and Tennard because the Supreme Court declined to accept certiorari to invoke and apply this clearly established law. (12)
Applicant claims that the legal basis for his Penry claim was previously unavailable under article 11.071, § 5(a). But the Supreme Court decisions in Brewer and Abdul-Kabir require us to dismiss the present application because we are statutorily prohibited from considering the merits of a subsequent writ unless that writ relies upon newly available law. Otherwise, I would have agreed with applicant and voted to grant a stay of execution and remand this case to permit the habeas court to consider the merits of applicant's claim.
Applicant was tried before the United States decided Penry I. Therefore, the jury was instructed only on the two statutorily-required special issues. There was no nullification instruction and there were no special instructions regarding the use of mitigation evidence. The facts that he relies upon to make a prima facie showing of meritoriousness under Smith and Tennard, are
- He was born with a deformed ear;
- An ailing grandmother lived with his family;
- His mother and adoptive grandmother died of disease during his childhood.
According to applicant, the evidence at trial showed that he was traumatized by the death of his mother during his teen-age years. Prior to Tennard and Smith, neither this Court nor the Fifth Circuit Court of Appeals considered this type of evidence Penry evidence which required any special mitigation instruction or special issue. But apparently we were wrong. Whatever one might think of the mitigation value of applicant's Penry evidence, justice should have at least allowed the habeas court to address the merits of applicant's claim if it could possibly be considered "newly available law" under section 5(a).
But given the deference that we owe to the Supreme Court's decisions in Brewer and Abdul-Kabir, I reluctantly agree that we are required to dismiss applicant's subsequent application for a writ of habeas corpus and his request for a stay of execution.
Filed: May 8, 2007
Do Not Publish
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