            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                         No. AP-75,896



                 EX PARTE SHELTON DENORIA JONES, Applicant



           ON APPLICATION FOR A WRIT OF HABEAS CORPUS
     IN CAUSE NO. 596,207-B IN THE 248TH JUDICIAL DISTRICT COURT
                             HARRIS COUNTY



          H OLCOMB, J., filed a dissenting opinion, in which P RICE, J., joined.


       In November 1991, a Harris County jury found applicant guilty of capital murder. At the

punishment stage of the trial, applicant offered the testimony of eleven witnesses in mitigation of

punishment. That testimony, if believed, and reasonable inferences therefrom, established the

following about applicant’s character and record: (1) Applicant’s biological father abandoned him

at birth and had no further contact with him. (2) Applicant was separated from his mother and left

in the care of his grandmother for much of the time before he was eight years old. (3) Applicant has

a rare type of “empty vessel personality [in which his] moral convictions . . . change from one
                                                                                          JONES - 2

situation to the next depending on who he’s with and who is influencing him at the time.”1 (4)


       1
           Dr. Jerome Brown, a clinical psychologist, testified as follows:

       Q: As a result of [your] testing [of applicant] and as a result of your evaluation [of
       him], were you able to make a determination as to what type of personality [he]
       has?

       A: I have, I believe, a good deal of information about the kind of personality traits
       that he exhibits, the kind of overall personality, in terms of a label. The only thing
       I can say about that is he really does not fit into any known mental disorder that
       we know about. He does exhibit a certain personality type, in my opinion, that is
       fairly rare, that I’ve only seen a few times in the twenty or so years I have done
       this work.

       Q: What type of personality? Do you have a name for that type of personality?

       A: Well, again, it’s not listed in any type of nomenclature that I know about, but
       my expression for it is kind of the empty vessel personality, in that a person’s
       moral structures, this person’s moral convictions, are very fluid, and they basically
       change from one situation to the next depending on who he’s with and who is
       influencing him at the time.
              So, you don’t get the picture, for example, of a strong personality, you
       don’t get the picture of an aggressive personality. You get the picture of someone
       who is relatively bland, as a matter of fact, and kind of vacuous, in terms of his
       personality traits.

                                             *    *   *

       Q: This type of empty vessel personality, are you telling me that the personality is
       shaped by the strongest influence that’s available to him?

       A: Pretty much that’s true.

                                             *    *   *

       Q: Would this type of individual . . . function exceedingly well inside of a prison?

       A: [T]hey typically have model prisoner records.

                                             *    *   *

                                                                                       (continued...)
                                                                                          JONES - 3

Applicant, while in high school, earned average and above-average grades and good conduct marks,

had good classroom attendance, and had a good reputation. (5) Applicant was generally well-

behaved as a child and as a young adult.2 (6) Applicant had an excellent work ethic and employment

history, and was generally known to be kind, peaceable, helpful, and dependable. (7) While in the

Harris County Jail awaiting trial, a period which lasted eight months, applicant was a model prisoner.

       At the close of the punishment stage, the trial court, in accordance with the statutory law in

effect at the time, directed the jury to answer two special issues:

       (1) “Was the conduct of the defendant, Shelton Denoria Jones, that caused the death
       of the deceased committed deliberately and with the reasonable expectation that the
       death of the deceased or another would result?”

       (2) “Is there a probability that the defendant, Shelton Denoria Jones, would commit
       criminal acts of violence that would constitute a continuing threat to society?”

       Accompanying the two special issues were the following instructions:

               “The burden of proof in this phase of the trial still rests upon the State and
       never shifts to the defendant. Each Special Issue submitted must be proved by the
       State beyond a reasonable doubt; therefore, before any issue may be answered ‘Yes,’
       all jurors must be convinced by the evidence beyond a reasonable doubt that the
       answer to such issue should be ‘Yes.’
                                            * * *
               “You are further instructed that if any juror, after considering the evidence
       and these instructions, has a reasonable doubt as to whether the answer to a Special


       1
        (...continued)
       Q: And if he was approached [in prison] and fell in with a group or was
       indoctrinated, so to speak, by a group, even in a prison he could be a killing
       machine?

       A: If he were selected and aggressively pursued to become a member of, for
       example, like a prison gang or something, some of the more extreme elements in
       the prison setting, then he would be vulnerable and susceptible to that kind of
       influence.
       2
           The record reflects that applicant was around 22 years old at the time of his offense.
                                                                                             JONES - 4

       Issue should be answered ‘Yes,’ then such juror should vote ‘No’ to the Special Issue
       in the jury’s deliberations.
                                              * * *
               “If ten (10) or more vote ‘no’ as to any Special Issue, and only if ten (10)
       jurors or more vote ‘no,’ then the answer of the jury shall be ‘No’ to that issue.
                                              * * *
               “You are further instructed that if the jury returns an affirmative finding on
       each of the issues submitted, this Court shall sentence the defendant to death. If the
       jury returns a negative finding on any issue submitted, the Court shall sentence the
       defendant to confinement in the Texas Department of Criminal Justice, Institutional
       Division, for life.
                                              * * *
               “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 include, but is not limited
       to, any aspect of the defendant’s character, background, record, 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, 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.”3

       The jury subsequently answered both special issues in the affirmative, and the trial court

assessed applicant’s punishment at death.

       In his habeas brief to this Court, applicant argues:

               “At the punishment phase of [the] trial, the jury heard testimony about
       relevant mitigating circumstances that included expert testimony regarding
       [applicant’s] psychological impairment revealing [his] susceptibility to influence and
       tending to reduce his personal culpability. The jury likewise heard testimony
       regarding [applicant’s] troubled childhood, including his abandonment by his
       biological father and separation from his biological mother at an early age.
                                             * * *
               “The former special issues as modified by the nullification instruction failed
       to permit [applicant’s] capital sentencing jury to fully consider and give effect to [his]


       3
           This last paragraph is of the type now known as a “nullification instruction.”
                                                                                           JONES - 5

       constitutionally relevant mitigating evidence, including evidence of psychological
       impairment through an expert witness and [applicant’s] abandonment by his
       biological father and separation from his mother at an early age.”
                                              * * *
                “[A] reasonable juror could conclude from the expert testimony that the
       aberrational anti-social conduct that culminated in the instant offense was caused less
       by [applicant’s] own will and initiative than by the influences of consistently stronger
       anti-social personalities in his environment since having graduated [from] high
       school. A fact-finder could reasonably have deemed evidence of [applicant’s]
       psychological impairment to have reduced his moral culpability and to have
       mitigating value.
                                              * * *
                “[T]he expert testimony offered during the punishment phase of [applicant’s]
       trial regarding his psychological profile had some relevance to the special issues the
       jury answered, but it had relevance to [applicant’s] moral culpability . . . beyond the
       scope of the . . . special issues.
                                              * * *
                “[Even with the nullification instruction, applicant’s] jury [was left] without
       an adequate vehicle to express its reasoned moral response to [his] mitigating
       evidence of his psychological impairment [and] abandonment by his biological father
       and separation from his mother.
                                              * * *
                “[S]uch evidence may serve as a basis for mercy even if a jury decides that
       the murder was committed deliberately and that the defendant posed a continuing
       threat.
                                              * * *
                “Additionally, the nullification instruction injected capriciousness into the
       proceeding, in violation of the Eighth and Fourteenth Amendment principles
       requiring that death sentences not be imposed in an arbitrary and capricious manner.”
       (Some punctuation omitted.)

       The Eighth Amendment’s prohibition of “cruel and unusual punishments” was made

applicable to the states by the Due Process Clause of the Fourteenth Amendment. Robinson v.

California, 370 U.S. 660, 666 (1962). A sentence of death is cruel, within the meaning of the Eighth

Amendment, when it is inflicted despite the existence of factors that, according to contemporary

moral standards, reasonably warrant a sentence less than death. Woodson v. North Carolina, 428

U.S. 280, 303-304 (1976). Accordingly, capital sentencers must be allowed to consider and give
                                                                                            JONES - 6

meaningful effect to proffered mitigating evidence regarding the defendant’s character and record

and the circumstances of the offense; otherwise, there is an unacceptable risk that an unwarranted,

cruel death sentence will be imposed. Lockett v. Ohio, 438 U.S. 586, 605-606 (1978). In this

context, “mitigating evidence” means any evidence that a sentencer could reasonably find warrants

a sentence less than death. Tennard v. Dretke, 542 U.S. 274, 284-285 (2004). If the sentencer is

given an adequate vehicle for expressing its reasoned moral response to the defendant’s mitigating

evidence, then and only then can we be sure that the sentencer has treated the defendant as a uniquely

individual human being and has made a reliable determination that death is the appropriate sentence.

Penry v. Johnson, 532 U.S. 782, 797 (2001).

       Was applicant’s proffered evidence constitutionally mitigating? Yes, it was. As the majority

concedes, applicant’s evidence met the low threshold standard set out in Tennard. A juror could

reasonably find that applicant’s proffered mitigating evidence warranted a sentence less than death.

       Was applicant’s jury given an adequate vehicle for expressing its reasoned moral response

to his mitigating evidence? No, it was not. First, applicant’s mitigating evidence of his troubled

childhood had no relevance to the statutory special issues on “deliberateness” and “future

dangerousness.” Second, applicant’s mitigating evidence of his “empty vessel” personality, although

relevant to the statutory special issue on “future dangerousness,”4 was also relevant to his moral

culpability beyond the scope of that special issue. As applicant points out in his brief, his jury could

have believed that he posed a future danger, in part because of his psychological impairment, and

yet it also could have believed that his psychological impairment warranted a sentence less than


       4
          Interestingly, applicant’s jury could have reasonably interpreted the evidence of his rare
personality type to mean either that he would be a future danger or that he would not be a future
danger. See footnote one and accompanying text.
                                                                                           JONES - 7

death. Third, although the nullification instruction was intended to make up for the deficiencies in

the two statutory special issues, the mechanism it purported to create for the jurors to give effect to

applicant’s mitigating evidence was ineffective and illogical.

       The nullification instruction in this case suffered from the same infirmities as did the one in

Penry v. Johnson, 532 U.S. 782. That is, there are two possible ways the jurors could have

understood this confusing instruction. The jurors could have understood the instruction as telling

them to take applicant’s mitigating evidence into account in determining truthful answers to each

of the special issues. Viewed in that way, however, the nullification instruction would have been

ineffective, because neither of the special issues was broad enough to provide a vehicle for the jurors

to give full mitigating effect to applicant’s evidence of his troubled childhood and his rare

personality type. Alternatively, the jurors could have understood the instruction as telling them that

they could simply answer one of the special issues “no” if they believed that applicant’s mitigating

evidence made a life sentence appropriate. Understood in that way, however, the instruction made

the jury charge as a whole internally contradictory, because elsewhere in the charge the jurors were

told that a “no” answer to a special issue was appropriate only when ten or more of them had a

reasonable doubt as to whether the evidence supported a “yes” answer to that special issue. Indeed,

if the jurors understood the nullification instruction as telling them to answer one of the special

issues falsely if they concluded that mitigating circumstances warranted a life sentence, then the

nullification instruction invited them to violate their oath to render a true verdict.

       The nullification instruction in this case inserted capriciousness and uncertainty into the

jurors’ sentencing decision, and made their power to avoid the death penalty possibly dependent on

their willingness to violate their oath. There is, at the very least, a reasonable likelihood that the
                                                                                       JONES - 8

jurors applied their instructions in a way that prevented their full consideration of applicant’s

mitigating evidence.

       I respectfully dissent. I would remand the case for a new punishment hearing.



DELIVERED JUNE 10, 2009

DO NOT PUBLISH
