            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                      NO. AP-76,236



                  EX PARTE CARL WAYNE BUNTION, Applicant



        ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE
          NO. 588227-B IN THE 178 TH JUDICIAL DISTRICT COURT
                            HARRIS COUNTY



       Per Curium.

                                       OPINION

       On January 24, 1991, a jury convicted applicant of the offense of capital murder. 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

applicant’s conviction and sentence on direct appeal. Buntion v. State, No. AP-71,238 (Tex.

Crim. App. May 31, 1995) (not designated for publication). Applicant filed his initial

application for a writ of habeas corpus with the convicting court on October 21, 1996. The

convicting court entered its findings and recommended denying relief on September 29,
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2003. This Court adopted those findings and denied relief. Ex parte Buntion, WR -22,548-

02 (Tex. Crim. App. Nov. 5, 2003).

       In a single allegation in this subsequent application, 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 v. Johnson (“Penry II”), 532

U.S. 782 (2001). This Court has reviewed the application and determined that the it satisfies

the requirements of Article 11.071 § 5.

       At trial, defense counsel requested an instruction on mitigation in the form of a special

issue that was denied. Ultimately, the jury received the following special issues:


       Was the conduct of the defendant, Carl Wayne Buntion, that caused the death
       of the deceased committed deliberately and with the reasonable expectation
       that the death of the deceased or another would result?

       Is there a probability that the defendant, Carl Wayne Buntion, would commit
       criminal acts of violence that would constitute a continuing threat to society?

The jury was also charged:

       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 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
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       you determine, when giving effect to the mitigation 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 answers to the special
       issue should be.

The nullification instruction given to applicant’s jury is nearly identical to the instruction that

was at issue in Penry II. See Penry, 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 this Court

has said is not encompassed within the previous statutory special issues. The jury was

presented with evidence that applicant had a troubled childhood in a “very bad

neighborhood,” was severely physically mistreated by his alcoholic father, and ran away from

home to work on a dairy farm for room and board because his family was very poor. Two

psychologists testified that applicant suffered from “primary paranoid personality disorder,”

mild “brain dysfunction” or “neurological impairment,” and depression. This evidence is that

type of evidence for which the jury did not have a vehicle to give meaningful consideration.

See Ex parte Martinez, 233 S.W.3d 319, 320 (Tex. Crim. App. 2007) (multiple

hospitalizations in state psychiatric facilities, abuse of alcohol at a young age, troubled

childhood); see also Ex parte Moreno, 245 S.W.3d 419, 422 (Tex. Crim. App. 2008)
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(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.




Delivered: September 30, 2009
Do Not Publish
