           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




       A LCALA, J., filed a concurring opinion in which J OHNSON, 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
                                                                          Campbell Concurrence - 2

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.

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).
                                                                      Campbell Concurrence - 3

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
                                                                      Campbell Concurrence - 4

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
                                                                        Campbell Concurrence - 5

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
