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


                EX PARTE SHELTON DENORIA JONES, Applicant



              ON APPLICATION FOR WRIT OF HABEAS CORPUS
              CAUSE NO. 596207-B IN THE 248 TH DISTRICT COURT
                             HARRIS COUNTY

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

                                 DISSENTING OPINION

       I join Judge Holcomb’s dissenting opinion. I would add only two observations.

       First, the Court acknowledges that among the types of mitigating evidence that the

Supreme Court has identified as not being fully encompassed by the former special issues is

domination by another.1 That would seem to be the gist of the applicant’s proffered expert

testimony with respect to his so-called “empty vessel personality.” The applicant is not

subject to domination by another so much as he is subject to domination by almost anyone,



       1

       Majority opinion, at 9.
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for good or for ill. Even so, the Court asserts that “[o]f 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.” 2   As Judge Holcomb demonstrates, the applicant’s evidence of empty vessel

personality would seem to have a double-edged relevance, providing a basis upon which a

jury could reasonably find that the applicant is less morally culpable than some, while at the

same time militating in favor of a finding that he would constitute a continuing threat to

society (including prison society). The applicant’s jury, however, was equipped to give the

evidence only the latter significance. I do not understand how the Court can so readily

discount the transcendent mitigating significance of this evidence. It seems to me that there

is “present in this case” a non-trivial category of mitigating evidence that the Supreme Court

has identified as not adequately embraced within the former special issues.

        Second, I believe that the applicant has preserved the issue of the adequacy of the

former special issues to provide his jury with a vehicle to give full effect to his mitigating

evidence. Moreover, the trial court erred in submitting the inadequate “nullification”

instruction. For reasons explained in Judge Holcomb’s dissent, I would hold that the record




        2

         Id. at 13.
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demonstrates at least “some” harm deriving from this error under Almanza v. State.3 Because

the Court does not, I dissent.




Filed: June 10, 2009
Do Not Publish




       3

       686 S.W.2d 157 (Tex. Crim. App. 1985) (opinion on State’s motion for rehearing).
