









  IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. AP-76,907


EX PARTE ROBERT JAMES CAMPBELL, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
FROM CAUSE NO. 586190-C IN THE 
232ND DISTRICT COURT HARRIS COUNTY

 Alcala, J., filed a concurring opinion in which Johnson, J., joined.

CONCURRING OPINION

 
 I join the Court's decision to deny applicant's claim.  I write separately to explain why
I conclude that the mitigation evidence presented during the punishment phase did not
warrant a separate instruction.  Compare Ex parte Williams, No. AP-76,455, 2012 WL
2130951, at *23 (Tex. Crim. App. June 13, 2012) (not designated for publication) (Alcala,
J., dissenting) (mitigation instruction warranted because jury was unable to give "reasoned
moral response to evidence of applicant's remorse").
	At best, applicant has presented evidence that bears only a tenuous connection to his
moral culpability, and, therefore, a separate mitigation instruction is not constitutionally
required.  See Abdul-Kabir v. Quarterman, 550 U.S. 233, 254 n.14 (2007) ("Special
instruction is not required when mitigating evidence has only a tenuous connection--some
arguable relevance--to the defendant's moral culpability.") (internal citations omitted); Ex
parte Smith, 309 S.W.3d 53, 56 (Tex. Crim. App. 2010) (same). (1) 
 Evidence presented during the punishment phase suggested that applicant's family life
may have been troubled by periods of poverty, family violence, problems in school, alleged
physical mistreatment by his mother, and falling in with the "wrong crowd."  Evidence of
childhood abuse or neglect has often been cited as a relevant mitigating circumstance that
warrants a separate mitigation instruction.  See Abdul-Kabir, 550 U.S. at 259 ("Evidence of
childhood deprivation and lack of self-control did not rebut either deliberateness or future
dangerousness but was intended to provide the jury with an entirely different reason for not
imposing a death sentence");  Ex parte Moreno, 245 S.W.3d 419, 426 (Tex. Crim. App.
2008) ("We can no longer maintain that evidence of a troubled childhood is adequately
encompassed within the statutory special issues.").  In this case, however, the few details that
were introduced failed to demonstrate particularized circumstances of a troubled upbringing
beyond those familiar to large segments of our society.  See, e.g., Abdul-Kabir, 550 U.S. at
261 (distinguishing universally mitigating circumstances, which do not necessarily require
a separate mitigation instruction, from "particularized" experiences of childhood abuse and
neglect, which do); Jurek v. Texas, 428 U.S. 262, 272 (1976) (constitutionality of Texas's
special issues "turns on whether the enumerated questions allow consideration of
particularized mitigating factors").
	For example, the record includes evidence about applicant's financial difficulties. 
Applicant was one of six children born to a mother with a sixth-grade education.  Applicant's
mother testified that, at one point when applicant was a child, the family moved three times
in five months because she "just couldn't afford the rent."  This record demonstrates poverty
that is, unfortunately, similar to that experienced by many in our society, but it does not show
how the financial difficulties negatively impacted applicant's personal development or
character.  The persuasive value of this evidence, therefore, is wanting in this case. 
	Furthermore, although the applicant provided some evidence of family violence, this
evidence lacks the level of detail that might be persuasive to a jury as mitigation evidence. 
Applicant's mother testified that, during fights with applicant's father, his father would "hit
her" in applicant's presence, but no evidence described the frequency or severity of these
episodes. And although applicant has characterized the record as showing "physical
mistreatment" by his parents, the record instead shows that applicant's mother would often
discipline him by "get[ing] a belt and whip[ping] him."  When pressed for details on this
subject, Mrs. Campbell's responses were inconsistent.  In response to a question asking how
often the whippings occurred, applicant's mother initially answered, "Yes," then re-answered, "Hundred."  Defense counsel then asked whether Mrs. Campbell had to do that
"a lot," to which she answered, "No . . . not a lot."  The record was silent with respect to the
number of times that physical discipline occurred, the applicant's age at the time, the location
on applicant's body where he was struck with the belt, and the number of times he was
struck.  No evidence suggested that he was bruised or injured, nor that he was emotionally
affected by the use of the belt.  The lack of clarity about the extent to which applicant's
mother's disciplinary tactics may have exceeded society's expectations about the proper
limits of discipline, and any resulting impact on the applicant, makes the mitigating value of
this evidence deficient.
	The more difficult question in this case concerns the evidence that applicant describes
as his expressions of remorse.  In a phone conversation, applicant told his sister-in-law that
he was sorry for putting the "lady's family" "through what he did."  But, like the other
evidence, no details were introduced to describe his tenor or demeanor when he made the
statement.  This distinguishes the instant case from Williams because, in that case, the record
showed that Williams was "crying uncontrollably," "apologizing," and "really upset" when
he saw a televised news report confirming that the person he had shot was a police officer.
Williams, 2012 WL 2130951, at *20 (Alcala, J., dissenting).  In the absence of any details
to illustrate the context within which applicant stated that he was sorry for putting the "lady's
family" "through what he did," I cannot conclude that this bare statement constitutes
mitigation evidence that might sway a jury to consider sentencing applicant to life rather than
death.
	Although applicant has presented multiple categories of evidence that, perhaps, could
have been considered mitigating had the record been further developed, I cannot conclude
that, in the absence of such further development, the trial court erred by denying a mitigation
special issue.
 	With these comments, I concur in the Court's decision to deny applicant post-conviction relief on his claim of jury-charge error. 
								Alcala, J.
Filed: November 7, 2012
Do Not Publish  
1. 	I agree with this Court's determination that evidence of applicant's age, eighteen years old
at the time of the offense, did not require a separate mitigation instruction.  Mitigating evidence of
youth is adequately considered within the scope of Texas's special issues and does not require a
separate mitigation instruction.  Johnson v. Texas, 509 U.S. 350, 368 (1993); accord Abdul-Kabir
v. Quarterman, 550 U.S. 233, 261 (2007) (describing youth as a "universally applicable mitigating
circumstance that every juror has experienced," and thus no special instruction is required). 
Furthermore, I agree with this Court that the positive character evidence actually introduced by
applicant in this case is not of the sort that requires a separate mitigation instruction.  Witnesses
testified that applicant had some positive community ties, such as singing in a church choir,
babysitting for friends, and doing yard work around his neighborhood.  But the record contains few
details suggesting that applicant regularly engaged in acts of kindness or devotion beyond those
found generally in society.  See Abdul-Kabir, 550 U.S. at 261; Brewer v. Quarterman, 550 U.S. 286,
294 (2007) (noting that "the transient quality of [] mitigating evidence may make it more likely to
fall in part within the ambit of the special issues"); Graham v. Collins, 506 U.S. 461, 467 (1993) (in
general, positive character traits adequately considered within scope of Texas's special issues). 
