          IN THE COURT OF CRIMINAL APPEALS
                      OF TEXAS
                                      NO. AP-76,455


                  EX PARTE ARTHUR LEE WILLIAMS, Applicant



             ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                        FROM HARRIS COUNTY
.

       A LCALA, J., filed a dissenting opinion in which J OHNSON, J., joins.

                                DISSENTING OPINION

       I respectfully dissent because I would grant applicant, Arthur Lee Williams, a new

trial on punishment for two reasons. First, the Texas death-penalty scheme effective at the

time of applicant’s trial was unconstitutional as applied to him because it did not allow the

jury to consider mitigation evidence that he presented at trial. Second, applicant’s trial

counsel rendered ineffective assistance by failing to investigate and present mitigation

evidence that differed in character and strength from evidence presented at trial and that
                                                                           Williams Dissent - 2

substantially altered the sentencing profile that was before the jury. I would sustain

applicant’s thirteenth and fifteenth issues, grant relief, and order a new trial on punishment.

                                           I. Background

       Applicant shot and killed a Houston police officer who, in the line of duty, was

attempting to arrest applicant on a fugitive warrant for parole violations. Applicant refused

to follow the officer’s commands and shot him twice with a gun that applicant illegally

carried. At the time of the offense, applicant had unlawfully fled from a halfway house in

Minnesota in violation of his parole conditions. He had an extensive criminal history,

including convictions for two aggravated robberies, aggravated criminal damage to property,

and attempted escape from the county jail.

       At the guilt phase of trial, applicant’s attorney presented testimony that the jury could

have viewed as favorable of applicant’s character. Applicant testified about his interest in

furthering his education. While he was in prison, he received a high-school-equivalency

diploma and some college credits. After moving to Houston, he attempted to take classes at

Texas Southern University, but lacked the necessary records to enroll. Applicant also briefly

described his relationship with members of his family, who were helping him after he moved

to Houston. He testified that his sister, Linda Ransome, let him stay at her apartment without

having to pay rent, and his three sisters in Minnesota would send him money because he had

not been able to find a job after he moved to Houston. Applicant also presented evidence that

he was remorseful about having shot a police officer. Applicant’s friend, Valerie Sudduth,
                                                                           Williams Dissent - 3

testified that, when applicant saw a televised news report confirming that the person he had

shot was a police officer, applicant said, “Oh, it really was a policeman.” Sudduth explained

that applicant was “crying uncontrollably,” “apologizing,” and “really upset.”

       At the punishment phase of trial, applicant’s attorney did not present witnesses or

evidence of any kind. During punishment-phase closing arguments, neither applicant’s

counsel nor the State mentioned mitigation evidence; they focused on whether applicant’s

conduct was deliberate and whether he posed a future danger to society.

              II. The 1983 Death-Penalty Scheme Was Unconstitutional as
                  Applied to Applicant

       In his fifteenth ground for relief, applicant alleges that the Texas death-penalty

scheme effective at the time of his trial in 1983 was unconstitutional as applied to him

because it imposed a mandatory death sentence even if the jury believed that applicant did

not deserve to die. Applicant cites Lockett v. Ohio, 438 U.S. 586, 605 (1978), for the

proposition that, at the punishment stage of a capital-murder trial, the jury may not be

precluded “from giving independent mitigating weight to . . . circumstances of the offense

proffered in mitigation[.]” He also cites Penry v. Lynaugh, 492 U.S. 302, 328 (1989) (Penry

I), to support his contention that the jury must be given a vehicle for expressing its “reasoned

moral response” to evidence in rendering its sentencing decision. The trial court disagreed

and concluded that the Supreme Court has consistently upheld the constitutionality of the
                                                                               Williams Dissent - 4

Texas death-penalty scheme.1 However, I find that the trial court’s conclusion is not

supported by the law or record.

       A. The Constitution Requires Meaningful Consideration of Mitigation Evidence

       In Penry I, decided in 1989, the Supreme Court held that, when a defendant places

mitigating evidence before a jury in Texas, the jury must be given instructions that allow the

jurors to give full effect to that mitigating evidence and to express a reasoned moral response

to it in deciding whether to impose the death penalty. See Penry I, 492 U.S. at 328; see also

Abdul-Kabir v. Quarterman, 550 U.S. 233, 244 (2007). But even before Penry I, the

Supreme Court required that a jury be permitted to meaningfully consider mitigation

evidence. See Abdul-Kabir, 550 U.S. at 247-48. The Court recently explained,

       A careful review of our jurisprudence in this area makes clear that well before
       our decision in Penry I, our cases had firmly established that sentencing juries
       must be able to give meaningful consideration and effect to all mitigating


1
       In its Conclusion of Law No. 29, the trial court stated,

       The applicant fails to [sic] that the Texas death penalty scheme, as applied to him,
       in [sic] unconstitutional; the United States Supreme Court has consistently and
       repeatedly held that the Texas death penalty scheme is constitutional. Jurek v. Texas,
       [428] U.S. 262, 271-72, 96 S.Ct. 2950, 2956 (1976); Franklin v. Lynaugh, 487 U.S.
       164, 108 S.Ct. 2320 (1989); Graham v. Collins, 506 U.S. 461, 113 S.Ct. 892 (1989);
       Johnson v. Texas, 509 U.S. 350, 113 S.Ct. 2658 (1993); see also Smith v. State, 779
       S.W.2d 417, 420 (Tex. Crim. App. 1989)(quoting Jurek v. State, 522 S.W.2d 934,
       939)(noting that Court has consistently held Texas death penalty scheme adequately
       narrows the class of death-eligible defendants); Cockrell [v. State], 933 S.W.2d [73,
       92-93 (Tex. Crim. App. 1996)] (holding that even with the addition of the mitigation
       special issues, enacted after Penry decision, “Texas’ death penalty scheme continues
       to narrow the class of ‘death-eligible’ defendants while also providing a jury with
       more discretion than it had under Texas’ prior statutory scheme to decline to impose
       the death penalty.’”).
                                                                          Williams Dissent - 5

       evidence that might provide a basis for refusing to impose the death penalty on
       a particular individual, notwithstanding the severity of his crime or his
       potential to commit similar offenses in the future.

Id. at 246. It stated that Penry I was premised on “background principles” from cases the

Court decided in 1976 and that Penry I did not formulate a “new rule.” Id. at 246-248 (citing

Woodson v. North Carolina, 428 U.S. 280 (1976); Proffitt v. Florida, 428 U.S. 242 (1976);

Jurek v. Texas, 428 U.S. 262 (1976)). Rather, “Penry I was merely an application” of the rule

settled in earlier cases, including Lockett. Id. at 265 n.24 (describing “the Lockett-Eddings-

Hitchcock rule,” citing Lockett, 438 U.S. 586; Eddings v. Oklahoma, 455 U.S. 104 (1982);

Hitchcock v. Dugger, 481 U.S. 393 (1987)).

       In 1978, the Supreme Court decided Lockett, holding that a jury must 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 imposing

a sentence less than death. Lockett, 438 U.S. at 605. This means that no aspect of a

sentencing process may prevent a jury from giving evidence “meaningful consideration.”

Abdul-Kabir, 550 U.S. at 250. “[C]ases following Lockett have made clear that when the jury

is not permitted to give meaningful effect or a ‘reasoned moral response’ to a defendant’s

mitigating evidence—because it is forbidden from doing so by statute or a judicial

interpretation of a statute—the sentencing process is fatally flawed.” Id. at 264. After

Lockett, Ohio amended its capital-sentencing statute to give effect to Lockett’s holding. Id.

at 248. But Florida and Texas did not do so until 1987, when the Supreme Court
                                                                           Williams Dissent - 6

“unequivocally confirmed the settled quality of the Lockett rule.” Id. (referring to Hitchcock,

481 U.S. at 397).

       The Constitution requires more than introduction of mitigation evidence. See id. at

250 n.12. The Supreme Court has explained, “[T]hat such information [is] merely [] before

the jury” is constitutionally insufficient: The jury must also be able to appreciate the

mitigative significance of, and give effect to, that information. Id. A sentencing process that

allows a jury to consider only aggravating circumstances falls short of providing the

individualized sentencing determination that the Supreme Court has held the Eighth and

Fourteenth Amendments require. See Jurek, 428 U.S. at 271; Lockett, 438 U.S. at 602; Penry

I, 492 U.S. at 316. A jury must be allowed to consider, on the basis of all relevant evidence,

not only why a death sentence should be imposed, but also why it should not be imposed. See

Jurek, 428 U.S. at 271.

       Whether the Constitution requires a specific mitigation instruction separate from the

other special issues depends on the nature of the evidence. See Abdul-Kabir, 550 U.S. at 256-

57. In Penry I, the absence of a mitigation special issue meant that the jury could not have

meaningfully considered evidence that Penry suffered mental retardation, arrested emotional

development, and a troubled youth. Id. at 255 (citing Penry I, 492 U.S. at 324). Similarly, in

Abdul-Kabir v. Quarterman, the jury could not have meaningfully considered evidence of

the petitioner’s childhood deprivation and lack of self-control in the absence of a mitigation

special issue. Id. at 259. Therefore, depending on the type of mitigation evidence that was
                                                                                 Williams Dissent - 7

introduced at applicant’s trial, the absence of a separate mitigation instruction could amount

to a constitutional violation as applied to this case. See id.

       B. Mitigating Evidence Introduced at Applicant’s Trial Required an Instruction

       In its findings of fact, the trial court stated that “applicant fails to show that he

possesses mitigating evidence outside the scope of the special issues so that the jury would

not have had a vehicle to consider such evidence, if presented.” This finding is not supported

by the record.

       At trial, applicant presented three items of evidence that the jury could have viewed

as mitigating: his close relationship with his family, his academic pursuits, and his feelings

of remorse.2 It is unlikely that the first two items would have persuaded the jury to spare his

life. The evidence of his close relationship with his family showed a one-way street of

applicant’s sisters’ efforts to house and financially support him after he moved to Houston.

No evidence was introduced of any efforts applicant may have made to help his family.

Similarly, despite evidence of applicant’s academic endeavors, other evidence revealed that

he had pursued a life of criminal activity and violence. It is thus improbable that the jury


2
         The evidence describing applicant’s positive character traits was evidence that a reasonable
juror could find mitigates against imposition of the death penalty. See Franklin v. Lynaugh, 487 U.S.
164, 186 (1988) (O’Connor, J., concurring) (“Evidence of voluntary service, kindness to others, or
of religious devotion might demonstrate positive character traits that might mitigate against the death
penalty.”); Williams v. Taylor, 529 U.S. 362, 369 (2000) (failure to present mitigating evidence
prejudicial, including testimony of defendant’s good deeds and behavior in prison); Boggess v. State,
855 S.W.2d 645, 647 (Tex. Crim. App. 1991) (evidence of defendant’s “musical and artistic
prowess” mitigating); Harris v. Dugger, 874 F.2d 756, 764 (11th Cir. 1989) (“Testimony about the
appellant’s good character constituted the only means of showing that Harris was perhaps less
reprehensible than the facts of the murder indicated.”).
                                                                           Williams Dissent - 8

would have been dissuaded from imposing the death penalty because applicant was interested

in pursuing higher education.

       The evidence that applicant felt remorse after having shot a police officer, however,

does cast him in a different light. Had the jury believed applicant was remorseful, it could

not have meaningfully considered that evidence in assessing his moral culpability due to the

absence of a mitigation instruction. Even if it had found the evidence of applicant’s remorse

credible, the jury would have reasonably determined that applicant had acted deliberately in

shooting the police officer twice and that he posed a future danger to society given his

extensive criminal history. The absence of a mitigation special issue, therefore, did not permit

the jury to meaningfully consider whether applicant’s remorse for his actions sufficiently

reduced his moral culpability so to warrant a sentence of life rather than death. See Lockett,

438 U.S. at 586. Because the jury was not able to consider and give a reasoned moral

response to evidence of applicant’s remorse, the death-penalty scheme was unconstitutional

as applied in this case. See id.

       The constitutional violation here is the same as that found by the Supreme Court in

Abdul-Kabir, which reversed this Court’s decision in that case. Abdul-Kabir, 550 U.S. at

238. In 1988, Ted Cole3 was convicted of killing a person by strangling him with a dog leash

during the course of stealing $20 to purchase beer and food. Id. at 238. The trial court

sentenced Cole to death after the jury affirmatively answered two special issues that, as here,

3
        Petitioner Abdul-Kabir’s “given name” was Ted Cole, by which the Supreme Court refers
to him throughout its opinion. Abdul-Kabir v. Quarterman, 550 U.S. 233, 237 n.1 (2007).
                                                                           Williams Dissent - 9

asked (1) if he caused the complainant’s death “deliberately and with the reasonable

expectation that the death of the deceased or another would result” and (2) if there is a

probability that he “would commit criminal acts of violence that would constitute a

continuing threat to society.” Id. at 238-39. Also, as here, the trial occurred before the Texas

Legislature amended the statutory special issues to include an instruction to the jury to decide

“[w]hether, taking into consideration all of the evidence, including the circumstances of the

offense, the defendant’s character and background, and the personal moral culpability of the

defendant, there is a sufficient mitigating circumstance or circumstances to warrant a

sentence of life imprisonment without parole rather than a death sentence be imposed.” Id.

at 238 n.2.

       The jury did not receive any mitigation instruction in Cole’s trial because the trial

court refused to grant any of his several requests for mitigation instructions. Id. at 242. At

the sentencing hearing, the State introduced evidence that Cole was previously convicted of

murder and of aggravated sexual assault of two boys, as well as expert testimony that Cole

was a sociopath who lacked remorse and could not learn from his experiences. Id. at 239.

Cole presented two categories of mitigating evidence. Id. The first category consisted of

testimony from his mother and his aunt, who described his unhappy childhood that was filled

with neglect and abandonment. Id. at 239-40. The second category came from two expert

witnesses—a psychologist and former chief mental health officer for the Texas Department

of Corrections—who discussed the consequences of Cole’s childhood neglect and
                                                                          Williams Dissent - 10

abandonment. Id. at 240.

       Although recognizing that, in some cases, a jury could consider mitigation evidence

in answering the other special issues in the absence of a mitigation special issue, the Supreme

Court stated that

       a juror considering Cole’s evidence of childhood neglect and abandonment and
       possible neurological damage or Brewer’s evidence of mental illness,
       substance abuse, and a troubled childhood could feel compelled to provide a
       “yes” answer to the same question, finding himself without a means of giving
       meaningful effect to the mitigating qualities of such evidence.

Id. at 262 (referring to Brewer v. Quarterman, 550 U.S. 286 (2007)).

       Applicant’s case presents many of the same circumstances as Abdul-Kabir. See id.

Here, as in Abdul-Kabir, there were many aggravating circumstances that warranted a death

sentence, the jury instructions did not include a mitigation instruction, and the mitigation

evidence did not show severe abuse or mental retardation. See id. The mitigation evidence

of applicant’s remorse for having shot a police officer could affect the jury in a manner

similar to the mitigation evidence showing that Cole had an unhappy childhood filled with

neglect and abandonment. See id. In either case, it is reasonably probable that a juror, if able

to give a “reasoned moral response” to the mitigating evidence, would recommend a sentence

of life rather than death. See id. Because of the absence of a mitigation instruction that would

have enabled the jurors to meaningfully consider mitigating evidence of applicant’s personal

moral culpability, this was the type of sentencing process that the Supreme Court has

characterized as “fatally flawed.” Id. at 264.
                                                                         Williams Dissent - 11

       I would sustain the fifteenth ground for relief.

                          III. Ineffective Assistance of Counsel

       In his thirteenth ground for relief, applicant contends that his trial counsel was

ineffective by failing to investigate and present mitigation evidence at the punishment phase

of trial. In order to establish ineffective assistance of counsel, applicant must establish the

two Strickland prongs by showing (1) that counsel’s performance was constitutionally

deficient and (2) that applicant was prejudiced by that performance. Strickland v.

Washington, 466 U.S. 668, 687 (1984).

       A. Applicant’s Trial Counsel Performed Deficiently

              1. Applicable Law

       A trial attorney’s complete failure to investigate potential mitigation evidence can

never constitute reasonable trial strategy. Rompilla v. Beard, 545 U.S. 374, 390 n.7 (2005)

(“Investigations into mitigating evidence should comprise efforts to discover all reasonably

available mitigating evidence and evidence to rebut any aggravating evidence that may be

introduced by the prosecutor.”) (internal quotations and emphasis omitted). In contrast to

cases involving a complete failure to investigate, a trial attorney may cease his investigation

of mitigation evidence, but only when that is a reasonable decision based on a thorough

understanding of available evidence. Ex parte Woods, 176 S.W.3d 224, 226 (Tex. Crim. App.

2005) (“[Strickland] does require attorneys to put forth enough investigative efforts to base

their decision not to present a mitigating case on a thorough understanding of the available
                                                                          Williams Dissent - 12

evidence.”) (citing Wiggins v. Smith, 539 U.S. 510, 526, 533 (2003) (deficient performance

where counsel’s failure to adequately investigate “resulted from inattention, not reasoned

strategic judgment.”); Strickland, 466 U.S. at 687).

               2. Analysis of Record

                        a. Failure to investigate and present mitigating evidence

       Applicant’s trial counsel admitted the he failed to conduct any investigation into

potential mitigation evidence and explained that he “did not know what it was.” In his habeas

affidavit, he stated,

       Before trial, I spent all my time preparing for the guilt stage and did not pay
       any attention to the punishment stage. Accordingly, I did not determine
       whether there was any mitigating evidence to present. . . . I did not conduct a
       mitigation investigation because I did not know what it was. . . . Applicant’s
       mother and sister were present and available to testify at the punishment stage.
       Both were very presentable and articulate. They could have testified about
       applicant’s positive attributes and asked the jury to spare his life. However, I
       did not call them to testify because I did not think it would do any good.
       Applicant, who is black, had an all white jury. After the jury convicted him of
       capital murder, I felt that the jury would have sentenced him to death no matter
       what evidence I presented or arguments I made. In retrospect, I should have
       conducted a mitigation investigation. I should have called applicant’s mother
       and sister to testify, so the jury would know that someone cared about whether
       he lived or died.

       Applicant’s mother, Joyce Williams, made statements in her habeas affidavit that are

consistent with counsel’s representations. She stated that she was present at applicant’s trial

and would have testified if called, but counsel “did not interview [her] in depth” about

applicant’s background. Applicant’s sister, Deborah Williams, similarly stated in her habeas

affidavit that she was available to take the stand at applicant’s trial and would have testified
                                                                               Williams Dissent - 13

to his difficult upbringing and redeeming qualities.4 Furthermore, the trial record is also

consistent with counsel’s affidavit in that, after the State presented ten witnesses in the

punishment phase of trial, applicant’s counsel rested without presenting any evidence.

       The only evidence with mitigative potential that the jury heard was presented during

the guilt phase and only as it related to applicant’s defense to the allegations set forth in the

charge. First, the State had implied at trial that, after applicant moved to Houston, he could

only have been financially supporting himself by committing criminal acts. Apparently to

address this suggestion, applicant introduced evidence to explain how he was living in

Houston and what he had been doing with his time. He testified that he was living with his

sister and that his other sisters were financially supporting him because he had been unable

to find a job. He also explained that he had attempted to enroll at a university but lacked the

proper records, despite having obtained his high-school-equivalency diploma and having

taken some college courses in prison.

       Second, applicant claimed that he did not know, at the time of the offense, that the

person he had shot was a police officer because he had been previously robbed by someone

who had falsely claimed to be a police officer. To support his defense that he did not learn

that the complainant was a police officer until he saw a televised news report, applicant



4
         The trial court found that Joyce and Deborah Williams’ affidavits consisted “of limited good
character evidence that could have been encompassed by the first and second special issues presented
to the jury.” However, the trial court made no finding that those affidavits were not credible, lacked
sufficient specificity or detail, or were impermissibly vague. The trial court, therefore, did not
disagree with the quality of the habeas evidence supplied by applicant’s family.
                                                                         Williams Dissent - 14

introduced evidence of his post-offense emotional distress and apologies.

       The record shows, however, that counsel did not understand that this evidence could

be used, not only in support of applicant’s defense against the charge, but also in mitigation

against the death penalty. During his closing argument at punishment, he never cited this

evidence as a basis for the jury to answer the special issues in the negative or to impose a

sentence of life rather than death. Counsel’s incidental introduction of mitigation-type

evidence while defending applicant against the accusation in the guilt phase of trial does not

qualify as constitutionally adequate investigation and presentation of mitigation evidence.

       This is not a case in which counsel searched for mitigation evidence and made a

reasonable professional judgment to cease the search. Compare Woods, 176 S.W.3d at 227-

28 (counsel had investigated possible mitigating evidence and was “entirely reasonable” in

deciding not to present more, as to do so would have opened a “Pandora’s Box” of

inculpatory evidence). The habeas record conclusively shows that counsel’s failure to

investigate for mitigation evidence was not a strategic decision. See id. at 226; Wiggins, 539

U.S. at 526. Counsel admits that, at the time of trial, he did not know what mitigation

evidence was and that he paid no attention to the punishment phase of trial. His explanation

that he did not investigate or present mitigation evidence because the “all white jury” would

have sentenced applicant to death regardless is an impermissible explanation for his conduct.
                                                                               Williams Dissent - 15

See Rompilla, 545 U.S. at 390 n.7.5

                       b. Failure to request instruction

       Counsel was also ineffective in failing to request a separate instruction that would

have enabled the jury to meaningfully consider, and give effect to, any mitigating evidence

that had been introduced. In his habeas affidavit, counsel suggests that, in the early 1980s,

defense attorneys were unaware of their duty regarding mitigation evidence. He states, “In

1982, defense lawyers did not have much, if any, guidance regarding the type of mitigating

evidence that should be offered at the punishment stage of a capital murder trial.” It is true

that we must evaluate an attorney’s performance through the prism of the prevailing

professional standards of the time. See Strickland, 466 U.S. at 688. Although counsel may

not be faulted for failing to request what we now refer to as a “mitigation special issue,” he

should have known, given then-existing Supreme Court precedent, to request some type of

instruction that would enable the jury to consider any evidence with mitigative significance




5
         The trial court’s conclusion of law suggests that counsel’s decisions were based on strategy,
but nothing in the record supports that conclusion. Excluding citations to authority, the trial court
stated, in conclusion of law number 27, that applicant’s counsel

       cannot be considered ineffective for choosing not to present limited good character
       evidence and evidence of alleged teenage drug usage: evidence that would not have
       offset the extensive aggravating evidence presented at trial; evidence that does not
       rise to the level of Penry-type evidence; and, evidence that could be considered
       within the scope of the special issues.
                                                                               Williams Dissent - 16

that exceeded the scope of the statutory special issues in deciding applicant’s punishment.6

Applicant has established the first Strickland prong. See id. at 687. Applicant, therefore, is

entitled to a new trial on punishment if he can establish that he was prejudiced by that error.

See id.

          B. Applicant Was Prejudiced by Counsel’s Deficient Performance

          In its conclusions of law, the trial court determined that “applicant fails to show

deficient performance, much less harm, based on trial counsel’s defensive and punishment

strategy.” In support, it cited Rosales v. State, 841 S.W.2d 368, 378 (Tex. Crim. App. 1992),

for the proposition that “counsel’s decision not to present expert punishment testimony in

order to avoid [the] State’s rebuttal and not to elicit more detailed character evidence was not

prejudicial and did not affect [the] reliability of proceedings,” as well as Mercado v. State,

615 S.W.2d 225 (Tex. Crim. App. 1981), as “holding that reasonably effective assistance of


6
         The majority opinion notes that, in the 1976 Jurek opinion, the Supreme Court upheld the
constitutionality of the Texas sentencing scheme, which did not then authorize a special mitigation
instruction. See Jurek, 428 U.S. 262. It concludes that, therefore, “counsel had no reason to believe
that a trial court would grant an instruction that was neither authorized by statute nor required by
precedent.” There are two problems with this rationale. First, a statutory provision that has been held
facially constitutional remains subject to an as-applied constitutional challenge. Even in Jurek, the
Court held that the constitutionality of the Texas scheme “turn[ed] on whether the enumerated
questions allow[ed] consideration of particularized mitigating factors.” Id. at 272.

        Second, the majority opinion fails to acknowledge that, two years after Jurek, the Supreme
Court decided Lockett, in which it held that a sentencing process must enable a jury to meaningfully
consider all mitigating evidence. Lockett v. Ohio, 438 U.S. 586, 604 (1978). The Court concluded
that the Constitution requires “that the sentencer, in all but the rarest kind of capital case, 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.” Id. Therefore, counsel should have known, in applicant’s 1983 trial, to request an
struction permitting the jury to consider, as a mitigating factor, evidence of applicant’s remorse for
                                                                                Williams Dissent - 17

counsel does not require error-free counsel, or counsel whose competency or adequacy is

judged by hindsight.” I conclude that the record and applicable law do not support this
                         6




conclusion.

                1. Applicable Law

        In order to establish prejudice, a defendant need not “show ‘that counsel’s deficient

conduct more likely than not altered the outcome’ of his penalty proceeding”; rather, he need

only “establish ‘a probability sufficient to undermine confidence in [that] outcome.’” Porter

v. McCollum, 130 S. Ct. 447, 455-56 (2009) (per curiam) (quoting Strickland, 466 U.S. at

693-94). In the context of this case, a defendant establishes prejudice by showing that the

evidence that counsel should have offered at punishment would have substantially altered the

“sentencing profile” presented to the jury. Wiggins, 539 U.S. at 534; Williams v. Taylor, 529


having killed a police officer. His failure to do so precluded the jurors from considering evidence
that might have served as “a basis for a sentence less than death.” See id. I conclude that this failure
constituted deficient performance under Strickland.

        Furthermore, the majority opinion cites Powell v. State for the proposition that the jury-
charge issues may not deviate from the statutory scheme. 897 S.W.2d 307, 314-17 (Tex. Crim. App.
1994), overruled in part by Prystash v. State, 3 S.W.3d 522 (Tex. Crim. App. 1999). However,
Powell holds only that the jury charge must contain the statutory issues, not that the charge may not
instruct on additional, non-statutory issues. Id. at 314 (holding that trial court’s failure to submit
“deliberateness” statutory special issue was error).

        Finally, I disagree with the majority opinion’s assertion that submitting a nullification
instruction would have been the only means of enabling the jury to consider and give effect to the
mitigation evidence. The Supreme Court has explained that, prior to the Texas Legislature’s
amendment of the statutory punishment scheme and in lieu of a nullification instruction, a jury
charge could have passed constitutional muster by (1) defining “‘deliberately’ in the first special
issue ‘in a way that would clearly direct the jury to consider fully [a defendant’s] mitigating evidence
as it bears on his personal culpability,” or (2) including a “clearly drafted catchall instruction on
mitigating evidence,” as the statute does today. Penry v. Johnson, 532 U.S. 782, 803 (2001).
                                                                              Williams Dissent - 18

U.S. 362, 397-98 (2000); Strickland, 466 U.S. at 699-700. This requires that a defendant’s

habeas record show new mitigating evidence that differs “in a substantial way—in strength

and subject matter—from the evidence actually presented at sentencing.” Ex parte Martinez,

195 S.W.3d 713, 731 (Tex. Crim. App. 2006); see also Ex parte Gonzales, 204 S.W.3d 391,

399 (Tex. Crim. App. 2006). The relevant “‘question is whether there is a reasonable

probability that, absent the errors, the sentencer . . . would have concluded that the balance

of aggravating and mitigating circumstances did not warrant death.’” Cullen v. Pinholster,

131 S. Ct. 1388, 1408 (2011) (quoting Strickland, 466 U.S. at 695). In considering whether

a defendant has shown prejudice, a court must “‘reweigh the evidence in aggravation against

the totality of available mitigating evidence.’” Id. (quoting Wiggins, 539 U.S. at 534).

               2. Analysis of Record

       This case contains many aggravating factors.7 Applicant, illegally armed with a

firearm, shot a police officer twice while the officer was attempting to arrest him on a

fugitive warrant. Applicant had an extensive, violent criminal history. He was in Texas as

a parole violator, had absconded from Minnesota, and had previously been convicted for

multiple aggravated robberies and for attempting to escape from jail.



7
        See Cullen v. Pinholster, 131 S. Ct. 1388, 1395 (2011) (describing aggravating facts
including Pinholster’s commission of hundreds of robberies, threats to kill the State’s lead witness,
history of violent outbursts, gang involvement, and other misconduct); Wong v. Belmontes, 130 S.
Ct. 383, 390 (2009) (describing aggravated facts including evidence of a “savage” murder with
extreme violence, that complainant’s head was mangled and crushed, other injuries on complainant
that revealed “a desperate struggle for life,” and that Belmontes used the money stolen to buy drugs
for the night).
                                                                            Williams Dissent - 19

       However, this case also contains substantial mitigating evidence that the jury was

unable to meaningfully consider. As previously discussed, evidence of applicant’s remorse

was introduced, but the jury could not have given full effect to the mitigative value of that

evidence. Furthermore, the habeas record includes evidence of several mitigating

factors—physical violence against applicant and his mother, neglect of applicant by his

parents, and applicant’s addiction to drugs—never heard by the jury that sentenced applicant

to death. Joyce Williams stated that applicant’s father was a “poor role model” because he

was “an alcoholic who was often in prison and jail” and often “beat” her, causing applicant

to be “exposed to his father’s constant abuse.” Ms. Williams also described applicant as

someone who followed “older teenagers, usually into trouble” because he “had little parental

supervision” due to her “poor health” and applicant’s father’s only “occasional[]” visits. She

states that applicant was bullied and beaten often. A juror could reasonably find these facts

mitigating.8

        The habeas record also includes evidence concerning applicant’s drug and alcohol

abuse that was never presented to the jurors that they could have viewed as mitigating. Ms.



8
        See Ex parte Smith, 309 S.W.3d 53, 61 (Tex. Crim. App. 2010) (evidence of applicant’s “life
in poverty and a crime-ridden neighborhood” tended “logically to prove that the applicant suffered
the sort of deprived and troubled childhood that a fact-finder could reasonably deem to have
mitigating value”); Wiggins v. Smith, 539 U.S. 510, 535 (2003) (prejudice where applicant’s
attorneys presented no evidence concerning his alcoholic mother, sexually abusive foster parents,
or any other mitigating circumstances); Ex parte Moreno, 245 S.W.3d 419, 426 (Tex. Crim. App.
2008) (applicant granted new punishment hearing for proper consideration of mitigating evidence
regarding applicant’s “troubled childhood,” including physical deformity, peer taunting, sickly
mother, and lack of supervision).
                                                                            Williams Dissent - 20

Williams testified that applicant was exposed at a young age to drugs, which were

“prevalent” in their community, and that applicant “abused both alcohol and drugs,” became

“chemically dependent,” and never received treatment. See Ex parte Smith, 309 S.W.3d 53,

62 (Tex. Crim. App. 2010) (evidence showed that “applicant’s ability to exercise moral

judgment (as compared to his ability to exercise control of his conduct) was overcome by his

severe drug addiction.”).

        In its findings of fact, the trial court concluded that “much of the alleged mitigation

evidence was presented during the applicant’s trial . . . [and] could have been considered by

the jury within the scope of the special issues.” The record only partially and minimally

supports this finding. The record does show that some of the evidence in the habeas record

was similar to the evidence presented during the applicant’s trial: The trial evidence that

applicant had a close relationship with his family is similar in strength and substance to the

habeas evidence that he was a devoted son and had a loving relationship with his family. The

trial evidence that he obtained his high-school-equivalency diploma and took college courses

is also similar in strength and substance to the habeas evidence that he was a boy scout and

enjoyed crafts. But, as previously discussed, none of this evidence would likely have swayed

the jury from imposing a sentence of death.9 These are the type of minor details that would


9
       Two of the trial court’s findings refer to the “limited good character evidence” supplied in
the habeas record. The trial court’s finding of fact number 117 states, “The Court finds that the
alleged mitigation evidence, presented during habeas proceedings in the forms of affidavits from
applicant’s mother and sister, consists of limited good character evidence that could have been
encompassed by the first and second special issues presented to the jury.” The next finding states,
“The Court finds speculative and unpersuasive any assertion that the jury would have viewed limited
                                                                               Williams Dissent - 21

not warrant habeas relief. See Bobby v. Van Hook, 130 S. Ct. 13, 19-20 (2009) (prejudice not

established when new habeas evidence presents only “minor additional details” that “would

have added nothing of value” when compared to trial evidence and when weight of

aggravating evidence is substantial).

       The trial court’s finding, however, is largely unsupported by the record. The record

shows that the jury never heard any of the habeas evidence that differs significantly in

character and strength from the evidence introduced at trial and substantially alters the

sentencing profile that was presented to the jury. See Wiggins, 539 U.S. at 534; Williams,

529 U.S. at 397-98; Strickland, 466 U.S. at 699-700. The totality of the mitigating habeas

evidence—either never heard or never meaningfully considered by the jury—portrays

applicant as someone who was abused by his father and frequently neglected by his parents;

who suffered physical violence by bullies, which led him to follow older teenagers, often into

trouble; who became dependent on drugs and alcohol at an early age; and who experienced

feelings of remorse immediately upon learning that he had killed a police officer. I conclude

that this new profile establishes a probability of a different outcome sufficient to undermine

confidence in the jury’s imposition of the death penalty. See id.; Porter, 130 S. Ct. at 455-56.




good character evidence as mitigating to the degree that the jury would have negatively answered
the first and/or second special issue, in light of extensive aggravating evidence.” I conclude that the
disposition of this habeas application is unaffected by the “limited good character evidence” and
should, instead, be resolved by consideration of other evidence.
                                                                         Williams Dissent - 22

       This case is similar to Porter v. McCollum, in which the Supreme Court determined

that the habeas evidence presented a different sentencing profile for the jury. 130 S. Ct. at

453-54. The jury at Porter’s original sentencing heard almost nothing that would humanize

Porter or allow the jurors to accurately gauge his moral culpability. Id. at 454. They learned

about Porter’s turbulent relationship with the victim, his crimes, and almost nothing else. Id.

The Supreme Court determined that, had Porter’s counsel performed effectively, the fact

finder would have had evidence to assess applicant’s moral culpability by learning of the

kind of troubled history that is relevant in assessing a defendant’s moral culpability. Id. The

Court held, “Unlike the evidence presented during Porter’s penalty hearing, which left the

jury knowing hardly anything about him other than the facts of his crimes, the new evidence

described his abusive childhood, his heroic military service . . . his long-term substance

abuse, and his impaired mental health and mental capacity.” Id. at 449.

       Like Porter, the jury at applicant’s original sentencing heard extensive evidence about

his past and present crimes, but knew nothing of his abusive childhood, neglectful parents,

and his long-term substance abuse. The jury knew only that applicant had a family that cared

about him, had some interest in education, and it knew, but could not meaningfully consider,

that applicant had demonstrated distress following the offense. Had applicant’s counsel

performed effectively, the jury would have learned about applicant’s troubled history

involving physical abuse, neglect, and drug abuse and been able to meaningfully consider his
                                                                             Williams Dissent - 23

remorse for the shooting. See id.10

       The State contends that counsel’s failure to introduce mitigating evidence was not

prejudicial because calling applicant’s family members to testify could have negatively

affected his case. The State argues that “[c]alling the applicant’s mother to testify would have

subjected her to potentially damaging cross-examination about the conversation she had with

applicant on the day of the incident.” The State concludes that, in not introducing that

testimony, counsel shielded applicant’s mother and sister “from cross-examination about

their close relationship with the applicant, their knowledge of the incident, their knowledge

of the applicant’s violent criminal history and parole status, and their clear motive for

testifying and now providing habeas affidavits on his behalf.”

       The State is correct that the Supreme Court has found no prejudice when the

additional habeas evidence would have opened the door to negative rebuttal evidence at trial.

See Wong v. Belmontes, 130 S. Ct. 383, 389 (2009). In this case, however, the record does

not reveal that applicant’s habeas mitigation evidence would have opened the door to such

evidence. The State speculates about “potentially damaging cross-examination about the

conversation [applicant’s mother] had with applicant.” However, there is no evidence that

applicant had told his mother anything that would have damaged him in the punishment



10
        See also Ex parte Gonzales, 204 S.W.3d 391, 399 (Tex. Crim. App. 2006) (prejudice found
where, in light of unpresented evidence that applicant was physically and sexually abused as a child
by his father, Court was unable to “say with confidence that the facts of the capital murder and the
aggravating evidence originally presented by the State would clearly outweigh the totality of the
applicant’s mitigating evidence if a jury had the opportunity to evaluate it again.”).
                                                                         Williams Dissent - 24

phase of trial.

       Furthermore, the State’s argument and trial court’s conclusion focus on the absence

of a nexus between the habeas evidence and the offense, but this is not a basis to discount the

mitigation evidence. No connection between a mitigating circumstance and the offense is

required in order for a jury to properly consider it. See Coble v. State, 330 S.W.3d 253, 296

(Tex. Crim. App. 2010). “Mitigating evidence unrelated to dangerousness may alter the

jury’s selection of penalty, even if it does not undermine or rebut the prosecution’s death-

eligibility case.” Williams, 529 U.S. at 398. Because no nexus is required, the lack of a nexus

between the habeas mitigation evidence and the offense has no bearing on whether a juror

could reasonably find that applicant deserves a sentence of life instead of death. See id.;

Coble, 330 S.W.3d at 296.

       Counsel’s deficient performance in failing to investigate mitigation evidence and in

failing to request an appropriate jury instruction was a barrier to the jury’s meaningful

consideration of the available mitigating evidence. Ultimately, “[w]hen the choice is between

life and death,” the “risk that the death penalty will be imposed in spite of factors which may

call for a less severe penalty . . . is unacceptable and incompatible with the commands of the

Eighth and Fourteenth Amendments.” Penry I, 492 U.S. at 328. Had the jury properly

received this quantum of mitigating evidence, there is a reasonable probability that at least

one juror would have struck a different balance so to undermine the confidence in the

outcome. See Wiggins, 539 U.S. at 537. Because counsel failed to make available, for the
                                                                        Williams Dissent - 25

jury’s meaningful consideration, mitigation evidence that would have substantially altered

applicant’s sentencing profile, I would hold that applicant has established prejudice. See

Strickland, 466 U.S. at 694. I would sustain his thirteenth ground for relief.

                                      IV. Conclusion

       The Texas death-penalty scheme was unconstitutional as applied to applicant because

the jury was not permitted to give meaningful effect and a reasoned moral response to the

evidence that applicant was remorseful for killing a police officer. Furthermore, applicant’s

attorney’s failure to investigate for mitigation evidence because he did not know what it was

rendered constitutionally deficient his representation in the sentencing phase of trial. For

these reasons, I would grant relief and remand for a new trial on punishment.




Filed: June 13, 2012

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