            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                      NO. AP-75,352


                   CHRISTOPHER ANTHONY YOUNG, Appellant

                                              v.

                                THE STATE OF TEXAS

                         ON DIRECT APPEAL
       FROM CAUSE NO. 2005-CR-1183 IN THE 187 TH DISTRICT COURT
                           BEXAR COUNTY



       P RICE, J., filed a dissenting opinion.

                                DISSENTING OPINION

       I dissent to the Court’s rejection of the appellant’s fifteenth point of error.1 In my

view, the record reveals both error in the jury charge given at the punishment phase of trial,

and “egregious harm” resulting from that error. I would therefore reverse the conviction and

remand the cause for a new punishment proceeding.



       1

       Majority opinion, at 39-41.
                                                                                     Young - 2

       Since the enactment of the statutory mitigation special issue in 1991,2 the Legislature

has specifically required trial courts at the punishment phase of capital murder cases to

instruct jurors that they need not agree on what specific evidence, if any, proffered in

mitigation of the death penalty, is sufficient to warrant a normative judgment that life

imprisonment is a more appropriate moral response than the death penalty. So long as at

least ten jurors can agree that there are sufficient mitigating circumstances, they need not

agree which circumstance or combination of circumstances triggered their collective

normative response. Section 2f(3) of Article 37.071 of the Code of Criminal Procedure

mandates such an instruction and is the “law applicable to the case” in contemplation of

Article 36.14 of the Code of Criminal Procedure.3 In failing to give that instruction, the trial

court plainly erred.

       To determine whether this error was egregiously harmful under Almanza v. State,4 we

consider 1) the entirety of the punishment charge itself, 2) the evidence adduced at the

punishment phase, including the contested issues and weight of the probative evidence, 3)

the arguments of counsel, and 4) any other relevant information from the record.5 When such


       2

        Acts 1991, 72 nd Leg., ch. 838, § 1, eff. Sept. 1, 1991.
       3

        T EX. C ODE C RIM. P ROC. arts. 36.14 and 37.071, § 2f(3).
       4

        686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (opinion on reh’g).
       5

        E.g., Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008).
                                                                                    Young - 3

a review reveals that the error affected the very basis of the case, deprived the defendant of

a valuable right, or vitally affected a defensive theory, we conclude that the error was

egregiously harmful.6 The harm must be shown to be “actual,” not just “theoretical.” 7

       Turning first to the punishment charge as a whole, I note that the mitigation special

issue itself is ambiguous with respect to the question whether jurors have to agree that any

particular circumstance or circumstances warrant a life sentence. The verdict form that was

submitted asked the jury to supply one of two answers to the mitigation special issue:

       Answer:       We, the jury, unanimously find and determine that the answer to
                     this Special Issue is “No”.

       Answer:       We, the jury, because at least ten (10) jurors find that there is a
                     sufficient mitigating circumstance or are sufficient mitigating
                     circumstances to warrant that a sentence of life imprisonment
                     rather than a death sentence be imposed, answer this Special
                     Issue “Yes”.

The appellant’s jurors opted for the first answer. But, contrary to the view of the majority,8

the jurors’ unanimity with respect to their ultimate answer does not guarantee that they

unanimously rejected the existence of any mitigating circumstance or circumstances

warranting a life sentence. There remains the theoretical possibility that the jurors believed

that they could only attain unanimity with respect to whether a sufficient mitigating


       6

       Id.
       7

       Ngo v. State, 175 S.W.3d 738, 750 (Tex. Crim. App. 2005).
       8

       Majority opinion, at 40-41.
                                                                                      Young - 4

circumstance or circumstances existed to warrant a life sentence (and hence, choose the first

answer) if they could all agree (or at least ten of them) that the same mitigating circumstance

or circumstances were sufficient to convince them that life was the more appropriate penalty.

Absent the Section 2f(3) instruction, there is nothing in the special issue itself or the verdict

form to foreclose this possibility.

       Nor would anything in the balance of the punishment charge necessarily dissuade the

jurors from this view. There is language in the punishment charge pertaining to the future

dangerousness special issue that instructed the jurors that they need not all agree with respect

to what specific evidence would convince them that the appellant would not constitute a

continuing threat to society before answering that special issue “no.” The conspicuous

absence of a similar instruction pertaining to the mitigation special issue could conceivably

have convinced the jurors that, in fact, they did have to agree on the specific mitigating

circumstance or circumstances before answering that special issue “yes.” 9 There is nothing

else in the punishment charge as a whole that served unequivocally to inform the jurors

otherwise.

       Turning to the evidence elicited at trial, I observe that the appellant presented

evidence of a tumultuous childhood. When he was eight years old, his father was murdered

       9

        See Allen v. State, supra, at 264-65 (“From the fact that the self-defense instruction
contained explicit reasonable-doubt language, the jury might well infer that it should expect
to see comparably explicit reasonable-doubt language in the consent instruction if such a
standard was indeed applicable there. The conspicuous absence of such explicit language
from the consent instruction would not likely have been lost on the jurors.”).
                                                                                       Young - 5

and his sister was molested and impregnated by his stepfather. The appellant argued that he

never recovered from these events emotionally as he never received the counseling or the

father figure that he needed. He became angry and withdrawn and began using drugs. There

was also evidence that at the time he committed the capital murder he was under the

influence of alcohol, marijuana and crack cocaine. It is conceivable that the jurors could

have harbored various opinions as to the mitigating value of this evidence. Some might have

believed the evidence of a disadvantaged childhood warranted a life sentence, but not the

evidence of intoxication, while others might have believed vice-versa. If at least ten jurors

believed that one or the other was mitigating, but no ten jurors could agree on either one, and

the jurors construed the special issue to require agreement as to the specific mitigating

evidence that warranted a life sentence, they could have erroneously (but unanimously)

answered the special issue “no.” 10 Again, the theoretical harm is quite evident.

       During final arguments, defense counsel independently argued the mitigating

significance of both the evidence of the appellant’s disadvantaged childhood and of his

intoxication at the time of the offense. For its part, the State argued that the appellant had


       10

        Moreover, as the appellant points out, a juror who believed he had to answer the
mitigation special issue “no” unless at least ten jurors could agree that either the
disadvantaged childhood or the intoxication (or both) warranted a life sentence would not
likely cause the jury to deadlock by persisting in his own personal view that the mitigation
was sufficient, thus assuring a life sentence. See T EX. C ODE C RIM. P ROC. art. 37.07 § (g) (“If
the jury . . . is unable to answer any issue submitted under Subsection . . . (e) of this article,
the court shall sentence the defendant to confinement in the institutional division of the Texas
Department of Criminal Justice for life.”).
                                                                                      Young - 6

had other father figures in his life, and that the evidence showed the drugs and alcohol had

not affected him on the morning of the offense. The State did not suggest, however, that the

jurors would have to agree upon the specific evidence that they found sufficient to warrant

a life sentence before they could answer the mitigation special issue “yes.” 11 Instead, the

State argued that none of the appellant’s mitigating evidence was compelling enough to cause

the jury to exercise its normative judgment to assess a life sentence. Still, because there was

more than one kind of mitigating evidence that might independently have warranted a life

sentence, it cannot be ruled out that the question came up in the jury room whether unanimity

was required with respect to the particular mitigating circumstance or circumstances that

justified life.   The jurors deliberated for just under four hours before returning their

punishment verdict. During that time they did not send out a jury note or otherwise indicate

a struggle to resolve any ambiguity in their understanding of the requirements of the

mitigation special issue. But the lack of a jury note is not determinative. It could just as

readily indicate that, in the absence of an explicit instruction, the jurors mistakenly concluded

that they did have to be unanimous as that they correctly concluded that they did not.

       The record cannot rule out, therefore, that the theoretical harm in this case did not

ripen into actual harm. We have said that there is no burden of proof when it comes to an



       11

         Compare Ngo v. State, supra, at 750-51 (egregiously harmful jury charge error found
in failing to require jury unanimity where, inter alia, three times during course of trial judge
and prosecutor erroneously informed jurors that they need not be unanimous in their verdict
when in fact the law required them to be).
                                                                                       Young - 7

analysis for egregious harm.12 In a case for egregious harm that is as close as this one, and

when the ultimate penalty is at stake, we should err on the side of caution.13 It is clear

enough that the trial court’s error deprived the appellant of a valuable right—the right to be

assured that the jurors would not deliberate upon his variable mitigating evidence under the

mistaken assumption that they must agree on which mitigating circumstance or circumstances

warranted life before finding such a sentence appropriate. I would therefore hold that the

appellant suffered egregious harm, reverse his conviction, and remand the cause for a new

punishment hearing. Because the Court does not, I respectfully dissent.




Filed:          April 22, 2009
Publish




       12

          Warner v. State, 245 S.W.3d 458, 464 (Tex. Crim. App. 2008).
       13

        Cf. O’Neal v. McAninch, 513 U.S. 432 (1995) (even in context of federal habeas
review of state court judgments, where State’s interest in finality is at its zenith, federal judge
who finds record in equipoise with respect to whether error is harmless should conclude that
the error is harmful).
