           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                      NO. AP–75,917



             EX PARTE GENE WILFORD HATHORN, JR., Applicant



             ON APPLICATION FOR A WRIT OF HABEAS CORPUS
             IN CAUSE NO. 6958-B IN THE 411 TH DISTRICT COURT
                            TRINITY COUNTY



      M EYERS, J., delivered the opinion of the Court in which P RICE, J OHNSON,
K EASLER, H ERVEY, H OLCOMB, and C OCHRAN, JJ., joined. K ELLER, P.J., and
W OMACK, J., concurred.


                                       OPINION

       Applicant was convicted of capital murder and sentenced to death in 1985. On

direct appeal, we affirmed his conviction and sentence. Hathorn v. State, 848 S.W.2d 101

(Tex. Crim. App. 1992). While Applicant’s direct appeal was pending before us, the

United States Supreme Court handed down an opinion in Penry v. Lynaugh, 492 U.S. 302

(1989). In his initial application for writ of habeas corpus, Applicant argued that his jury

was not instructed to consider mitigating circumstances in determining his sentence. We
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denied relief. In a subsequent writ, Applicant claimed that “[t]he former Texas special

issue questions operated so as to preclude any meaningful consideration of mitigation

evidence by the jury that sentenced the Applicant in violation of the Eighth and

Fourteenth Amendments and Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry I).” Because

this was his third subsequent application, it was barred under Code of Criminal Procedure

Article 11.071, section 5, and we dismissed the application as an abuse of the writ. We

now reconsider, on our own initiative, the Penry claim raised in Applicant’s initial

application for writ of habeas corpus. We filed and set this case and ordered briefs from

the parties on the following issues:

       1. Did applicant object at trial that his jury was not given an adequate
       vehicle through which it could give effect to his mitigating evidence? Was
       any other objection specifically pertaining to mitigating evidence made
       when discussing the charge to be given the jury?

       2. If no objection was made, does this make a difference regarding the
       resolution of applicant’s allegation?

       3. Was the mitigating evidence presented at applicant’s trial the type of
       evidence for which applicant was entitled to a separate vehicle?

       4. Although applicant’s direct appeal began prior to the time the United
       States Supreme Court handed down the decision in Penry, was direct appeal
       counsel obligated to raise the claim post-submission considering applicant’s
       direct appeal remained pending in this Court for some three years after the
       Penry decision was handed down?


                                ISSUES ONE AND TWO

       There was no objection at trial pertaining to mitigating evidence. Applicant did
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object to the trial court’s refusal to include a special issue related to provocation, and it is

interesting to note that the evidence in support of the provocation instruction was the

same evidence that is now raised as mitigating evidence. The evidence is the same in this

case specifically because Applicant killed his father, step-mother, and half-brother and

claimed at trial that the murders were provoked by childhood abuse at the hands of his

father, which resulted in a longstanding hatred for his family.

       Although Applicant made no objection that the jury did not have a vehicle to give

effect to mitigating evidence, we have held that, in these particular circumstances, no

objection is necessary. Black v. State, 816 S.W.2d 350 (Tex. Crim. App. 1991). The case

law at the time of Black’s trial and Applicant’s trial stated that, regardless of whether the

defendant objected to the charge or whether special mitigation instructions were

requested, the defendant was not entitled to any jury instructions on mitigating evidence

beyond that covered by the future-dangerousness special issue. We stated in Black,

       Given the settled state of the case law at the time of appellant’s trial, we
       refuse to fault him or his attorney for failing to object to the jury charge at
       punishment or request an instruction informing the jury it may give effect to
       the mitigating evidence presented at trial. Under the established precedent,
       the trial judge would have been correct in overruling the objection or
       denying the additional instruction, and clearly the defendant would not have
       been granted relief from this Court on direct appeal.

816 S.W.2d at 364. We held that, for cases tried during this time period, there was no

procedural default and thus we were able to address the merits of the claim. Id.

       We acknowledge that normally, an egregious harm standard is proper in analyzing
                                                                               Hathorn–Page 4

an un-objected-to charge error. However, rather than characterize this as a jury charge

error, we interpret the Supreme Court cases related to this particular issue to have broader

due process implications. See infra.

                                       ISSUE THREE

       The evidence presented at trial was the type of evidence that we have said requires

a separate vehicle in order for the jury to be able to give effect to their consideration of

the evidence. Applicant testified at the punishment hearing that his father and step-

mother were neglectful; that his father was abusive and beat him nightly during his first

two years of grade school–on one occasion for going to church; that his father had shot

and killed his pony and a dog and appellant had to bury the dog; and that his father was

violent and carried a weapon. The former Chief Psychologist for the Texas Department

of Corrections testified about Applicant’s violent and dysfunctional home environment

and how it may have shaped his development and contributed to the offense for which he

was charged.

       As the Supreme Court pointed out in Brewer v. Quarterman, 550 U.S. 286 (2007),

the evidence that gives rise to a Penry claim is broadly defined as mitigating evidence,

which is a “two-edged sword,” meaning that it tends “to confirm the State’s evidence of

future dangerousness as well as lessen [the defendant’s] culpability for the crime.”

Brewer, 550 U.S. at 293. The Court also explained that,

       Nowhere in our Penry line of cases have we suggested that the question
       whether mitigating evidence could have been adequately considered by the
                                                                              Hathorn–Page 5

       jury is a matter purely of quantity, degree, or immutability. Rather, we have
       focused on whether such evidence has mitigating relevance to the special
       issues and the extent to which it may diminish a defendant’s moral
       culpability for the crime.

Brewer, 550 U.S. at 294. On the same day as Brewer, the Court decided Abdul-Kabir v.

Quarterman, 550 U.S. 233 (2007), in which the Court illustrated that the special issues

given to the jury at the time of Applicant’s trial did not provide the jury with a way to

give effect to mitigating evidence: “a juror considering [Abdul-Kabir’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 [future-dangerousness] question, finding

himself without a means for giving meaningful effect to the mitigating qualities of such

evidence.” Abdul-Kabir 550 U.S. at 262.

       Following these decisions by the Supreme Court, we decided in Ex Parte Moreno,

245 S.W.3d 419 (Tex. Crim. App. 2008) that:

       We can no longer maintain that evidence of a troubled childhood is
       adequately encompassed within the statutory special issues. Both Abdul-
       Kabir and (especially) Brewer expressly state that Supreme Court precedent
       has long rejected the notion that a jury can meaningfully express its
       reasoned moral response to evidence of a troubled or disruptive childhood
       within the narrow confines of the special issues.

Moreno, 245 S.W.3d at 426. We held that, “The statutory special issues alone did not

provide the applicant’s jury with an adequate mechanism for exercising its reasoned

moral judgment whether his evidence of a troubled childhood warranted the imposition of
                                                                                Hathorn–Page 6

a life sentence instead of the ultimate penalty of death.” Id. Cf. Black, 816 S.W.2d at 364

(determining that the future-dangerousness special issue was adequate for the jury to

consider the evidence that was presented, which did not include allegations of child abuse

or trauma).

       As in Brewer, it is likely that, in Applicant’s case, the jury believed that all they

needed to decide was whether he had acted deliberately and would likely be dangerous in

the future, disregarding any concern they may feel that, given Applicant’s troubled

childhood, he may not deserve a death sentence. See Brewer, 550 U.S. at 293-294.

                                       ISSUE FOUR

       Because the United States Supreme Court handed down the decision in Penry v.

Lynaugh, 492 U.S. 302 (1989), while Applicant’s case was pending on direct appeal

before us, Applicant could have filed a supplemental brief raising a Penry claim at that

time. See Ramirez v. State, 815 S.W.2d 636, 654-55 (Tex. Crim. App. 1991) (in which

we sustained the appellant’s Penry issue, which was raised for the first time in a

supplemental brief submitted while his direct appeal was pending). However, in Moreno,

we considered the applicant’s initial writ although the Penry issue had not been raised in

a supplemental brief on direct appeal. Moreno, 245 S.W.3d 421. Moreno was

procedurally similar to this case in that the opinion in Penry I was handed down while the

direct appeal was pending before us. We will not hold Applicant to a different standard

by saying that this claim is procedurally defaulted by his failure to file a supplemental
                                                                                   Hathorn–Page 7

brief raising this issue on direct appeal.

                                        CONCLUSION

       Given the unique circumstances of this case, and the state of the law at the time of

Applicant’s trial and direct appeal, Applicant’s claim is not barred by procedural default

for failure to object to the lack of a mitigation instruction at trial, or for failure to file a

supplemental brief raising a Penry claim on direct appeal. Because the mitigating

evidence presented at Applicant’s trial is the type of evidence for which he was entitled to

a separate vehicle for consideration, we remand the case to the trial court for new

punishment hearing.




                                                             Meyers, J.

Delivered: April 8, 2009

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