        IN THE COURT OF CRIMINAL APPEALS
                    OF TEXAS
                                   NO. WR-81,585-01



               EX PARTE DARYL KEITH WHEATFALL, Applicant



        ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE
          NO. 608052-A IN THE 178 TH JUDICIAL DISTRICT COURT
                            HARRIS COUNTY

       Per curiam.


                                      OPINION

       In October 1991, a jury convicted applicant of a capital murder committed in

December 1990. The jury returned affirmative answers to the special issues submitted to it

pursuant to Texas Code of Criminal Procedure article 37.071. The trial court accordingly set

applicant’s punishment at death. This Court affirmed the conviction and sentence. Wheatfall

v. State, 882 S.W.2d 829 (Tex. Crim. App. 1994).
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       Applicant filed his initial application for a writ of habeas corpus with the convicting

court on October 21, 1996, raising three claims for relief. In Claim 1, applicant alleges that

trial counsel rendered ineffective assistance at the punishment phase because counsel did not

investigate, develop, or present mitigating evidence of applicant’s past psychological

problems. In Claim 2, applicant contends that he is entitled to relief from his death sentence

because the jury was unable to give full effect to the mitigating evidence he presented. In

Claim 3, applicant argues that Section 19.03 of the Texas Penal Code is unconstitutional as

applied to him because the death penalty is selectively prosecuted in Texas.

       The trial court entered findings of fact and conclusions of law regarding all three of

applicant’s claims. It recommended that this Court deny relief on Claims 1 and 3. Regarding

Claim 2, the trial court recommended that we review the mitigating evidence that applicant

presented at trial to determine whether it fell within the scope of the special issues submitted

to the jury.

       We first consider applicant’s allegation that the jury was unable to give full effect to

the mitigating evidence he presented. When applicant was sentenced, the jury was required

to answer special issues of deliberateness, future dangerousness, and if raised by the

evidence, provocation. See T EX. C ODE C RIM. P ROC. art. 37.071 (1989). Applicant’s jury

received all three special issues. In Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry I), the

Supreme Court held that the former special issues were a constitutionally inadequate vehicle

for the jury to fully consider and give effect to mitigating evidence that fell outside the scope
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of the special issues or that had an aggravating effect when considered within the scope of

the special issues. See Ex parte (Roy Gene) Smith, 309 S.W.3d 53, 56 (Tex. Crim. App.

2010).

         Here, the jury was presented with mitigating evidence that, at an early age, applicant

witnessed his father physically abusing applicant’s mother. His mother’s resulting injuries

were sometimes serious enough that she sought medical care. Applicant’s parents separated

when he was six or seven years old and later divorced. After the separation, applicant and

his four siblings lived with their mother, who struggled financially, moved the children

around frequently to evade her former husband’s attempts to find them, was often absent

from home, and had trouble keeping food in the house. One place they lived was infested

with rats. Applicant and his siblings were often hungry, and applicant began to get into legal

trouble for shoplifting food. Because his mother moved frequently, applicant attended many

different schools and missed many days of instruction. Applicant was disruptive in school

and his disciplinary problems increased after his parents separated. As a result of juvenile

criminal activity, applicant was twice removed from his mother’s home and required to live

at a state boys’ school. Applicant, who was physically small, complained in letters that he

was beaten at the boys’ schools, and he had new scars when he returned home. Applicant’s

neighborhood became dangerous after people began using crack cocaine, and he felt that it

was necessary to carry a knife for protection.
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       The jury was also presented with evidence that applicant was found to be hyperactive

and placed in classes for emotionally disturbed students. When applicant was thirteen years

old, a psychiatrist diagnosed him with a mental disorder. When he was seventeen or eighteen

years old, he was hospitalized for a psychiatric problem and subsequently prescribed

medication to treat his mental condition. The jury was additionally presented with evidence

that applicant began using drugs when he was thirteen or fourteen and drinking alcohol when

he was seventeen or eighteen and that he smoked marijuana throughout his school years.

       Applicant’s evidence of a troubled and impoverished childhood, a high-crime

neighborhood, emotional and psychiatric problems, and drug and alcohol abuse is the kind

of evidence that we have previously found to fall outside the scope of the former special

issues. See (Roy Gene) Smith, 309 S.W.3d at 61–62 (poverty, crime-ridden neighborhood,

drug abuse); Ex parte Moreno, 245 S.W.3d 419, 424–25 (Tex. Crim. App. 2008) (troubled

or disruptive childhood); Ex parte Martinez, 233 S.W.3d 319, 320 (Tex. Crim. App. 2007)

(psychiatric problems, alcohol abuse, and a troubled childhood). Accordingly, the special

issues submitted to the jury were an inadequate vehicle for the jury to fully consider and give

effect to applicant’s mitigating evidence.

       In addition to the special issues, applicant’s jury received the following supplemental

instruction:

       You are instructed that when you deliberate on the questions posed in the
       special issues, you are to consider all relevant mitigating circumstances, if any,
       supported by the evidence presented in both phases of the trial, whether
       presented by the State or the Defendant. A mitigating circumstance may
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       include, but is not limited to, any aspect of the defendant's character,
       background, record, emotional instability, intelligence or circumstances of the
       crime which you believe could make a death sentence inappropriate in this
       case. If you find that there are any mitigating circumstances in this case, you
       must decide how much weight they deserve, if any, and thereafter, give effect
       and consideration to them in assessing the defendant’s personal culpability at
       the time you answer the special issue. If you determine, when giving effect to
       the mitigating evidence, if any, that a life sentence, as reflected by a negative
       finding to the issue under consideration, rather than a death sentence, is an
       appropriate response to the personal culpability of the defendant, then a
       negative finding should be given to one of the special issues, regardless of
       what the jury found the answer to the special issue to be.

The nullification instruction given to applicant’s jury was very similar to the instruction at

issue in Penry v. Johnson, 532 U.S. 782, 790 (2001) (Penry II) (“If you determine, when

giving effect to the mitigating evidence, if any, that a life sentence, as reflected by a negative

finding to the issue under consideration, rather than a death sentence, is an appropriate

response to the personal culpability of the defendant, a negative finding should be given to

one of the special issues.”). In Penry II, the Supreme Court held that the nullification

instruction given to Penry’s jury at his punishment retrial did not cure the constitutional

deficiency that the Supreme Court found in Penry I regarding the former special issues. See

532 U.S. at 803–04. Given the similarity in the two nullification instructions, we conclude

that the nullification instruction given at applicant’s trial did not cure the constitutional

deficiency found regarding the former special issues. See Penry II, 532 U.S. at 803–04; Ex

parte Martinez, 233 S.W.3d 319, 323–24 (Tex. Crim. App. 2007).

       Having concluded that constitutional error occurred, we must consider whether harm

resulted. See Ex parte (Laroyce) Smith, 185 S.W.3d 455, 463–64, 467 (Tex. Crim. App.
                                                                                       Wheatfall - 6

2006) (stating that the Almanza1 standard applies to federal constitutional errors contained

within the jury charge), rev’d on other grounds by (Laroyce) Smith v. Texas, 550 U.S. 297,

313–14 (2007); see also (Roy Gene) Smith, 309 S.W.3d at 62–63. Because applicant made

a timely objection at trial, we look only for “some harm.” See (Laroyce) Smith, 185 S.W.3d

at 467.

          In (Roy Gene) Smith, the Court found that the applicant satisfied the more difficult

egregious harm standard when he presented mitigating evidence that fell outside the scope

of the former special issues and then put significant emphasis on that mitigating evidence

during the punishment phase. See 309 S.W.3d at 63 (“[The applicant’s] evidence of drug

addiction, poverty, and a crime-ridden neighborhood was at the heart of his mitigation

theory.”). The record supports the trial court’s finding that, during the punishment phase,

defense counsel similarly emphasized applicant’s mitigating evidence that fell outside the

scope of the former special issues. Applicant’s case is sufficiently similar to the facts of (Roy

Gene) Smith that we would be warranted in reaching the same conclusion regarding

egregious harm. Applicant has therefore necessarily also satisfied the less stringent “some

harm” standard.

          Because constitutional error occurred at the punishment phase of applicant’s trial, and

he suffered some harm, we reverse his sentence of death and remand the case to the trial

court for a new punishment hearing.            Because we grant relief on Claim 2, Claim 1



          1
              Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984 (op. on reh’g).
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(applicant’s ineffective-assistance allegation) is rendered moot, and we dismiss it. As to

Claim 3, in which applicant alleges that Section 19.03 is selectively prosecuted in Texas, the

record supports the trial court’s findings and conclusions. We adopt the trial court’s findings

regarding the selective prosecution issue and deny relief on Claim 3.

Delivered: February 4, 2015
Do Not Publish
