            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
        CAUSE NO. 596207-B IN THE 248th JUDICIAL DISTRICT COURT
                             HARRIS COUNTY



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

                                          OPINION

       This is a subsequent application for writ of habeas corpus filed pursuant to the provisions of

Texas Code of Criminal Procedure article 11.071, § 5. We deny relief.

       In November 1991, a jury convicted applicant of the offense of capital murder. The jury

answered the special issues submitted pursuant to Code of Criminal Procedure article 37.071, and

the trial court, accordingly, set punishment at death. Jones v. State, No. AP-71,369 (Tex. Crim. App.

May 4, 1994)(not designated for publication).
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       The punishment jury-charge instruction at issue in this cause read,

       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.

       The punishment jury charge also included the two statutory special issues. Special Issue No.

1 asked, “Was the conduct of [applicant] that caused the death of the deceased committed

deliberately and with the reasonable expectation that the death of the deceased or another would

result?” Special Issue No. 2 asked, “Is there a probability that [applicant] would commit criminal

acts of violence that would constitute a continuing threat to society?” The jury answered both issues

affirmatively, and the verdict form, which contained no reference to mitigating evidence, reflected

that, in open court, the jury returned those affirmative answers to special issues as its verdict. The

trial court accordingly assessed a sentence of death.

       We denied applicant’s initial post-conviction application for writ of habeas corpus and

dismissed his first subsequent application for writ of habeas corpus. Ex parte Jones, Nos. WR-

62,589-01 and WR-62,589-02 (Tex. Crim. App. October 26, 2005)(not designated for publication).

       On March 6, 2006, this Court received the instant post-conviction application for writ of

habeas corpus, in which applicant raised a single allegation: the former special issues failed to

provide an adequate vehicle for the jury to give full consideration and effect to his mitigating

evidence.   He asserted that the nullification instruction that he did receive had the same

constitutional inadequacies. On September 13, 2006, we found that the allegation satisfies the

requirements of Article 11.071, § 5(a), and that the requirements for consideration of a subsequent

application had been met. Accordingly, we remanded the cause to the trial court for consideration
                                                                                                         3

of the allegation.

        Upon its return from remand, on April 9, 2008, we filed and set this case for submission to

the Court. The parties were ordered to brief a number of issues:

        1) Was applicant’s trial objection sufficient to preserve error? Should this Court
        continue to utilize the Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985),
        standard of review? If so, has applicant shown “some harm” (if preserved) or
        “egregious harm” (if not preserved)?

        2) Does applicant’s mitigating evidence meet the Tennard v. Dretke, 542 U.S. 274
        (2004), “low threshold for relevance” standard?

        3) Is applicant’s mitigating evidence adequately encompassed within the statutory
        special issues? Does the future dangerousness issue provide a vehicle for the jury to
        express its reasoned moral response to this evidence?

                                   The Contentions of the Parties

        Applicant contends that error was preserved because the record reflects that defense counsel

expressly stated that his request for modification of the jury charge was being made pursuant to

Penry I. Further, when the trial court asked the state to respond, the prosecutor stated that it was the

state’s position that the proposed instruction adequately charged the jury on the issues decided in the

Penry case.     Applicant argues that the problematic special issues, in conjunction with the

nullification instruction as applied to the mitigating evidence in this case, resulted in error that defies

harm analysis and that the harm from such error satisfies any standard for harm, “egregious” or

“some.” Applicant suggests that, since either harm standard is met, this Court need not decide which

standard applies.

        Applicant contends that his evidence met Tennard’s low-threshold standard for relevance,

and “that the former special issues of the Texas capital-sentencing scheme did not provide an

adequate vehicle for the jury to give full consideration and full effect to his mitigating evidence.”
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He also asserts that “[t]he problem was not cured by providing a supplemental charge that instructed

the jurors to answer one of the special issues dishonestly if they believed that the mitigating evidence

justified a sentence less than death,” and that the special issues and instructions given to his

sentencing jury did not permit the jury to give full consideration and effect to that evidence.

       In support of his argument, applicant asserts that a rational juror at the penalty phase could

have concluded, in light of the evidence at the guilt phase, that applicant’s conduct was deliberate

in that it may have been designed to avoid arrest or motivated by some other purpose, but

nevertheless, a juror might also have reasonably concluded that applicant’s psychological condition

reduced his moral culpability so as to make a death sentence unwarranted. He argues, that under

those circumstances, honestly answering the deliberateness special issue would have required an

affirmative answer, thus the deliberateness special issue could not serve as a vehicle for the jury to

express its reasoned moral response to his mitigating evidence.

       Applicant also asserts that the mitigating evidence concerning his psychological profile,

which indicates that he is influenced by consistent, strong external forces, is relevant to the second

special issue, but as an aggravating factor because it suggested a “yes” answer to the question of

future dangerousness. He contends that this circumstance left the jury without an adequate vehicle

to express its reasoned moral response to his evidence of his psychological impairment.

       The evidence that applicant presented at trial, and to which he now points as relevant

mitigating evidence that is outside the scope of the special issues, includes a psychological

impairment that makes him susceptible to the influences of consistent, stronger, anti-social

personalities in his environment, his abandonment by his biological father, and his intelligence, work

ethic, reliability, and trustworthiness. He contends that the special issues and the instructions given
                                                                                                       5

did not permit the jury to give full consideration and full effect to that evidence.

        Applicant argues that the jurors “could not express the moral judgment that a death sentence

was excessive in light of [his] intelligence, good work ethic, reliability, and trustworthiness, if they

also concluded beyond a reasonable doubt that he might be dangerous in the future.” Applicant’s

brief on submission, p. 17. He asserts that the future-dangerousness special issue was thus “a

deficient vehicle for giving all of [his] mitigating evidence meaningful consideration as a basis for

a sentence less than death.” Applicant’s brief on submission, p. 18. Applicant asserts that “[a]

sentencing scheme that conditions consideration of any of a defendant’s constitutionally relevant

mitigating evidence on jurors’ willingness to disregard their oaths to render a true verdict is precisely

the sort of structural error that cannot be subject to routine harmless error review.” Applicant’s brief

on submission, p. 34. He also argues that, between the special issues that prevented the jurors from

giving their reasoned moral response to his mitigating evidence and the nullification instruction that

inserted capriciousness into the proceeding, the resulting error severely and irrevocably warped the

framework of the proceeding, thus resulting in error that defies harm analysis.

        The state argues that applicant has not preserved error. It notes that applicant objected only

to specific wording in the supplemental mitigation instruction and not on the basis of the instruction

in its entirety, nor did applicant object on the basis of the jury’s ability to consider applicant’s

mitigating evidence. Further, applicant failed to allege jury-charge error based on the nullification

instruction and the jury’s ability to consider and give effect to his mitigation evidence on direct

appeal and in his first and second writ applications. State’s brief on submission, p. 17-18.

        Noting that the Supreme Court, in Smith v. Texas, 550 U.S. 297, 313 (2007)(Smith II),

approved the application of the Almanza standard of review, the state asserts that Almanza should
                                                                                                     6

apply, that the applicable option is that for unobjected-to error, that applicant must therefore

demonstrate egregious harm, and that he has not done so.

        With respect to relevance, the state agrees that “applicant’s mitigating evidence satisfies

Tennard’s low threshold standard for relevance.” (State’s Brief, pp. 15, 25, 28) The state

nevertheless asserts that the jury “could give meaningful consideration and effect to the applicant’s

mitigating evidence under the special issues, including evidence of applicant’s ‘empty vessel’

personality and father’s abandonment.” (State’s Brief, p. 15) It adds that, even if the jury was unable

to consider under the special issues applicant’s evidence that he was abandoned by his father, such

evidence had only a tenuous connection to applicant’s culpability for the instant offense.

                                                  Analysis

                                    Tennard v. Dretke Standard

        Applicant asserts that his “mitigating evidence satisfies Tennard’s low threshold standard

for relevance.” The state concedes that the evidence meets the standard.       We agree with applicant

and the state that applicant’s mitigating evidence satisfies the Tennard standard, thus we continue

our inquiry and consider whether applicant’s mitigating evidence could be given full effect within

the special issues or fell outside their scope.

                        Reasoned Moral Response to Mitigating Evidence

        In 2007, the Supreme Court issued opinions in two companion cases, Abdul-Kabir v.

Quarterman, 550 U.S. 233 (2007), and Brewer v. Quarterman, 550 U.S. 286 (2007). In Abdul-

Kabir, which revisited Penry I1 and its progeny, it stated that

        the jury must be permitted to "consider fully" such mitigating evidence and that such


        1
            Penry v. Lynaugh, 492 U.S. 302 (1989).
                                                                                             7

       consideration "would be meaningless" unless the jury not only had such evidence
       available to it, but also was permitted to give that evidence meaningful, mitigating
       effect in imposing the ultimate sentence. Penry I, 492 U.S., at 321, 323, 109 S. Ct.
       2934, 106 L. Ed. 2d 256 (internal quotation marks omitted); Graham, 506 U.S., at
       475, 113 S. Ct. 892, 122 L. Ed. 2d 260 (acknowledging that a "constitutional defect"
       has occurred not only when a jury is "precluded from even considering certain types
       of mitigating evidence," but also when "the defendant's evidence [i]s placed before
       the sentencer but the sentencer ha[s] no reliable means of giving mitigating effect to
       that evidence").

Abdul-Kabir at 260. See also Ex parte Moreno, 245 S.W.3d at 422 (Tex. Crim. App. 2008)(“a jury

must be empowered by the trial court’s instructions to give ‘meaningful effect’ to all mitigating

evidence that a capital defendant introduces at the punishment phase of his trial.”).

       The sentencer in a capital case must be permitted to give full effect to all constitutionally

relevant mitigating evidence. Tennard v. Dretke, 542 U.S. 274, 284-85 (2004); Penry I, 492 U.S. at

318. Relevance in the context of mitigating evidence introduced in a capital sentencing proceeding

is no different than in any other context, thus the general evidentiary standard applies: evidence that

has any tendency to make the existence of any fact that is of consequence to the determination of the

action more or less probable than it would be without the evidence is relevant. Id., citing McKoy v.

North Carolina, 494 U.S. 433 (1990). Thus the state cannot bar the consideration of evidence if the

sentencer could reasonably find that it warrants a sentence less than death. Id. “Once this low

threshold for relevance is met, ‘the Eighth Amendment requires that the jury be able to consider and

give effect to’ a capital defendant’s mitigating evidence.” Id. at 285, quoting Boyde v. California,

494 U.S. 370, 377-78 (1990). “Relevant mitigating evidence is evidence which tends logically to

prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have

mitigating value.” Id. at 284-85, quoting McKoy v. North Carolina. Such Penry error produces a

reasonable likelihood that the jury interpreted the special issues to foreclose adequate consideration
                                                                                                                       8

of the mitigating evidence. Smith II at 316.

         In Penry v. Johnson, 532 U.S. 782 (2001)(Penry II), the Supreme Court held that the jury

instruction on mitigation was ineffective and illogical. The Court noted that attempts by the trial

court, the state, and the defense to clarify the supplemental instruction “do not bolster our confidence

in the jurors’ ability to give effect to Penry’s mitigating evidence in deciding his sentence. Rather

they highlight the arbitrary way in which the supplemental instruction operated, and the fact that the

jury was essentially instructed to return a false answer to a special issue in order to avoid a death

sentence.” Id. at 801. The instruction at issue in Penry is virtually identical to the instruction from

this case.2 Thus the nullification instruction in this case was not sufficient to cure error if the special-

issue instructions themselves were inadequate to permit the jurors to give meaningful effect to

applicant’s mitigating evidence.

         Applicant suggests that much of his evidence was mitigating and outside the scope of the

special issues. Among the circumstances found by the Supreme Court to fall outside the scope of

the old special issues are a troubled childhood,3 learning disabilities,4 low IQ/special education


         2
             The portion of the instruction quoted in Penry II reads,

         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.

Penry II, 532 U.S. at 790. The relevant portion of the instruction in the instant cause reads,

         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
             Brewer, 550 U.S. at 289-90; see also, Moreno, 245 S.W .3d at 426.

         4
             Smith v. Texas, 543 U.S. 37, 48 (Smith I)
                                                                                                           9

status,5 neglect,6 abandonment,7 neurological damage,8 substance abuse,9 family violence in

childhood,10 mental illness,11 and domination by another.12 Circumstances that fall within the scope

of the special issues include youth13 and redeeming personal qualities.14

       In Smith I, the Supreme Court described a variety of mitigating evidence: at an early age, the

defendant had been diagnosed with potential organic learning disabilities and speech handicaps; the

defendant had IQ scores of 75 and 78, and as a result had been in special-education classes during

most of his time in school; despite his low IQ and learning disabilities, the defendant’s behavior at

school was often exemplary; the defendant’s father was a drug addict who engaged in gang violence

and criminal activities and stole money from family members to support a drug addiction; and the

defendant was 19 years old when he committed the crime. Smith I, 543 U.S. at 41. Of these, the

Supreme Court found that Smith’s evidence of his IQ scores and history of participation in special-

education classes was relevant mitigating evidence that a jury might have considered to be a reason

to impose a sentence less than death and was outside the scope of the special issues. Id. at 44-45.



       5
            Id.

       6
            Abdul-Kabir, 550 U.S. at 240-41, 256.

       7
            Id.

       8
            Id.

       9
            Brewer, 550 U.S. at 295-96.

       10
             Id.

       11
             Id.; see also Martinez, 233 S.W .3d at 320.

       12
             Brewer at 295-96.

       13
             Johnson v. Texas, 509 U.S. 350, 369 (1993); Graham v. Collins, 506 U.S. 461, 475-76 (1993).

       14
             Graham, 506 U.S. at 475-76.
                                                                                                  10

       In Abdul-Kabir, supra, the Supreme Court noted mitigating evidence that included the

defendant’s family members’ testimony describing his unhappy childhood of neglect and

abandonment, as well as expert testimony from two psychologists “that his violent propensities were

caused by factors beyond his control–namely, neurological damage and childhood neglect and

abandonment” and “suggesting that his dangerous character may have been the result of his rough

childhood and possible neurological damage[.]” Abdul-Kabir, 550 U.S. at 240-41, 256.

       In Brewer, the Supreme Court likewise noted that the defendant’s mitigating evidence

included that: the defendant had suffered from depression three months before the offense; he had

been briefly hospitalized for that depression; the defendant’s co-defendant, a woman with whom he

was obsessed, dominated and manipulated him; he had been abused by his father; he had witnessed

his father abuse his mother; and he had abused drugs. Brewer, 550 U.S. at 289-90. The Court

concluded that the jury must be allowed to consider Brewer’s evidence of mental illness, substance

abuse, and troubled childhood, and also must be able to respond to it in a reasoned, moral manner

and weigh such evidence in deciding whether the defendant is truly deserving of death. Id. at 295-

96.

       In Penry I, the Supreme Court concluded that the special issues were too limited to give

mitigating effect to the defendant’s evidence of mental retardation and severe childhood abuse and

that such mitigating evidence was thus outside the scope of the special issues.

       While “[t]he jury must have a ‘meaningful basis to consider the relevant mitigating qualities’

of the defendant’s proffered evidence[,]” Abdul-Kabir, 550 U.S. at 259, quoting Johnson v. Texas,

509 U.S. 350 (1993), the special issues alone may provide for the adequate consideration of the

defendant’s mitigating evidence. We observe that in Graham v. Collins, 506 U.S. 461, 475-76
                                                                                                     11

(1993) the Supreme Court held that proffered mitigating evidence of the defendant’s youth,

background of difficult upbringing, and his redeeming character traits could be given constitutionally

adequate consideration in the course of the jury’s deliberation on the special issues and was thus not

beyond the effective reach of the jury. In Johnson v. Texas, 509 U.S. 350, 369 (1993), the Supreme

Court likewise held that the defendant’s youthful age as a relevant mitigating circumstance was

within the effective reach of the jury; “the ill effects of youth that a defendant may experience are

subject to change and, as a result, are readily comprehended as a mitigating factor in consideration

of the second special issue.” Johnson, 509 U.S. at 369.

       In Moreno, the mitigating evidence at issue involved Moreno’s troubled childhood, including

a birth defect to his left ear which required multiple surgeries throughout his first seven years. There

was evidence that he was also taunted by neighborhood boys because of the deformity, although he

was consoled by his mother. When he was still a small child, his mother and grandmother both

became very ill, and his father had to get a second job in order to pay the medical expenses. When

he was fifteen years old, his mother died, and he took her death very hard. Thereafter he dropped

out of school, worked at various poorly paid jobs, and lived in his father’s house relatively

unsupervised. He was eighteen years old at the time he committed the charged offense. Additional

mitigating evidence included testimony from various family friends and jail chaplains about his good

personal characteristics. Moreno, 245 S.W.3d at 423-24. We concluded that “[a]t least with respect

to his evidence of a troubled childhood, [Moreno] was entitled to” a jury instruction as a vehicle to

express its reasoned moral response to such mitigating evidence. Id. at 425. We held that because

circumstances of the offender can reasonably justify a jury assessment of a life sentence, and if those

circumstances are not already fully or meaningfully encompassed within one or both of the special
                                                                                                   12

issues, then a separate jury instruction is constitutionally required. Id. at 426.

        We also noted that we could “no longer maintain that evidence of a troubled childhood is

adequately encompassed within the statutory special issues.” Id. Because the evidence of Moreno’s

troubled childhood could not be given meaningful effect within the context of the statutory special

issues and the trial court failed to give a separate jury instruction that would empower the jury to

assess a life sentence on the basis of such mitigating evidence, notwithstanding its answers to the

special issues, we vacated the punishment portion of Moreno’s judgment and remanded to the trial

court for a new punishment hearing. Id. at 431. The mitigating evidence that was held to be outside

the scope of the special issues was that of the defendant’s troubled childhood.

        In Ex parte Martinez, 233 S.W.3d 319, 320 (Tex. Crim. App. 2007), we noted mitigating

evidence of the defendant’s hospitalization on multiple occasions in state psychiatric facilities, his

abuse of alcohol since the age of thirteen, and a troubled childhood. We concluded that Martinez had

presented constitutionally relevant mitigating evidence and that the jury did not have a vehicle to

give this evidence meaningful consideration. We therefore granted habeas corpus relief, set aside

the death sentence, and remanded the case to the trial court for another punishment hearing.

Martinez, 233 S.W.3d at 323-24.

        In each of these cases, the mitigating evidence that was held to be outside the scope of the

special issues differs significantly from applicant’s mitigating evidence. We are unconvinced that

applicant’s proffered mitigating evidence was outside the scope of the special issues. Applicant did

not show evidence of a seriously troubled childhood. Rather, evidence showed that he had a stable

family background and was raised in a cohesive two-parent household, albeit not by his biological

father, who abandoned him. There was no evidence of learning disabilities, low IQ, or neurological
                                                                                                    13

damage. Rather, there was testimony about applicant’s intelligence. There was no testimony that he

abused substances. Although applicant presented evidence that he suffers from psychological

irregularities or deficits, including what his psychologist expert witness described as “empty vessel

syndrome,” which made him susceptible to being influenced by others, such evidence is a far-cry

from the sort of psychological mitigation evidence that has been determined to be Penry evidence.

Further, the facts of the offense rebut that assessment as to the offense charged; applicant shot a

police officer during a traffic stop, without provocation or urging of armed violence by his

companion. The testimony as to his youth and redeeming character traits is the sort that the Supreme

Court has held to fall within the scope of the special issues.

       We note that the Supreme Court has said that it has “never denied that gravity has a place in

the relevance analysis, insofar as evidence of a trivial feature of the defendant’s character or the

circumstances of the crime is unlikely to have any tendency to mitigate the defendant’s culpability.

. . . Rather, the question is simply whether the evidence is of such a character that it might serve as

a basis for a sentence less than death, Skipper [v. South Carolina, 476 U.S. 1 (1986)], supra, at 5.”

Tennard, 542 U.S. at 286 (internal quotation marks omitted). We conclude that applicant’s

mitigation evidence, while meeting the Tennard standard for relevance, had “only a tenuous

connection–‘some arguable relevance’–to the defendant’s moral culpability.” Abdul-Kabir, 550 U.S.

at 253 n.14. Of all the sorts of evidence that have been noted by the Supreme Court as relevant

mitigating evidence, only two circumstances, youth and positive personal characteristics, are present

in this case, and those are the sorts of evidence that the Supreme Court has held are within the scope

of the former special issues. Because the jury could give full and meaningful effect to that evidence

within the scope of the former special issues, there was no Penry error.
                           14

       Relief is denied.



Delivered: June 10, 2009
Do not publish
