           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                      NO. AP-76,593



                          EX PARTE KIM LY LIM, Applicant



        ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE
          NO. 599621-B IN THE 262 ND JUDICIAL DISTRICT COURT
                            HARRIS COUNTY

       Per Curiam. Meyers, J., dissents.


                                       OPINION

       In March 1992, a jury convicted applicant of capital murder for an offense committed

in May 1991. The jury answered the special issues submitted pursuant to Texas Code of

Criminal Procedure article 37.071, and the trial court, accordingly, set punishment at death.

This Court affirmed the conviction and sentence. Lim v. State, No. AP-71,476 (Tex. Crim.

App. Feb. 8, 1995).

       Applicant filed his initial application for a writ of habeas corpus with the convicting

court on June 8, 1997. On June 23, 2003, applicant filed a subsequent application for a writ
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of habeas corpus, raising three claims, one of which alleged mental retardation. The

subsequent application was remanded to the trial court for a hearing on the mental retardation

claim. In the same order, we also dismissed applicant’s remaining claims as barred by

Section 5. This Court later determined that applicant’s third claim, a Penry 1 claim, met the

requirements of Section 5 and had been improperly dismissed. The subsequent application

was remanded to the trial court a second time for consideration of applicant’s Penry claim.

       Applicant alleges that he is entitled to relief from his death sentence because he

presented significant mitigating evidence related to his moral culpability and the

appropriateness of a death sentence which could not have been given full effect by the

sentencing jury. See Penry II, 532 U.S. 782.

       The jury in applicant’s trial received the following special issues:

       a. Was the conduct of the defendant, [applicant], which caused the death of
       the deceased, [victim], committed deliberately and with the reasonable
       expectation that the death of the deceased would result?

       b. Is there a probability that the defendant, [applicant], would commit criminal
       acts of violence that would constitute a continuing threat to society?

The jury also received the following supplemental instruction:

       When you deliberate about the questions posed in the Special issues, you are
       to consider any mitigating circumstances supported by the evidence presented
       in both phases of the trial. A mitigating circumstance may be any aspect of the
       defendant’s character and record or circumstances of the crime which you
       believe makes a sentence of death inappropriate in this case. If you find there
       are any mitigating circumstances, you must decide how much weight they
       deserve and give them effect when you answer the Special Issues. If you

       1
           Penry v. Johnson (“Penry II”), 532 U.S. 782 (2001).
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       determine, in consideration of this evidence, that a life sentence, rather than a
       death sentence, is an appropriate response to the personal moral culpability of
       the defendant, you are instructed to answer at least one of the Special Issues
       under consideration, “No.”

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

that was at issue in Penry II. See Penry II, 532 U.S. at 790 (“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.”)

       The mitigating evidence presented by applicant is the sort of evidence that the United

States Supreme Court has said is not encompassed within the previous statutory special

issues. The jury was presented with evidence that applicant was born in Cambodia into a

family that eventually numbered 12 children. His mother gave birth to him in an outhouse.

Because of the circumstances of his birth, he was abused and neglected by his father, who

was a police officer in the “old regime” that existed in Cambodia prior to the ascendency of

the communist Khmer Rouge government. Applicant was beaten often by members of the

Khmer Rouge government in an effort to obtain information about his father. His family fled

Cambodia to Thailand in 1979, where they lived in an internment camp under conditions of

extreme privation.
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       In 1981, applicant’s family immigrated to the United States. Applicant’s parents

divorced, and applicant was left to largely fend for himself as an adolescent. School records

showed that applicant had low intelligence and poor school performance, but he was never

placed in special education classes. Psychologist Dr. Walter Quijano testified that applicant

has a learning disability. Hospital records showed that applicant was admitted to a California

hospital as an adolescent with an initial diagnosis of major depression. He was released with

a diagnosis of adjustment disorder with depressed mood.

       The evidence presented by applicant is that type of evidence for which the jury did not

have a vehicle to give meaningful consideration. See Ex parte Smith, 309 S.W.3d 53 (Tex.

Crim. App. 2010) (life of poverty in a crime-ridden neighborhood and severe drug addiction);

Ex parte Martinez, 233 S.W.3d 319, 320 (Tex. Crim. App. 2007) (hospitalization in state

psychiatric facilities, abuse of alcohol at a young age, and troubled childhood); see also Ex

parte Moreno, 245 S.W.3d 419, 422 (Tex. Crim. App. 2008) (troubled childhood).

       The nullification instruction given to applicant’s jury was not a sufficient vehicle to

allow jurors to give meaningful effect to the mitigating evidence presented by applicant.

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 a new punishment hearing.

       As to the mental retardation issue, the trial court’s findings are supported by the

lengthy record, and the trial court’s conclusion that applicant is not mentally retarded is
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likewise supported. This Court adopts the trial court’s findings regarding the mental

retardation issue as its own and denies relief.

Delivered: June 29, 2011
Do Not Publish
