TEXAS CAPITAL SENTENCING PROCEDURE AFTER
EDDINGS: SOME QUESTIONS REGARDING
CONSTITUTIONAL VALIDITY
DANIEL
I.
H.
BENSON·
INTRODUCTION
In Eddings v. Oklahoma,l decided January 19, 1982, the Supreme
Court of the United States vacated a death sentence "imposed without
'the type of individualized consideration of mitigating factors . . . required by the Eighth and Fourteenth Amendments in capital cases',"l!
and held that "[j]ust as the state may not "by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer,
refuse to consider, as a matter of law, any relevant mitigating evidence."s
At the sentencing hearing Eddings had presented evidence of "a turbulent family history, of beatings by a harsh father, and of severe emotional disturbance,"· all of which the United States Supreme Court later
characterized as "particularly relevant"l1 mitigating evidence. But the
Oklahoma trial judge declined, as a matter of law, to consider this evidence and the Oklahoma Court of Criminal Appeals agreed, affirming the
death sentence.S The United States Supreme Court found that the
Oklahoma Court's refusal to consider such evidence violated the rule established by Lockett v. Ohio7 requiring the sentencer in a capital case to
consider as a mitigating factor "any aspect of a defendant's character or
record and any of the circumstances of the offense that the defendant
proffers as a basis for a sentence less than death."·
The Eddings decision raises serious questions about the constitutionality of the Texas capital sentencing procedure. In Jurek v. Texas,8 the
Texas procedure withstood an Eighth and Fourteenth Amendment attack
only because a plurality of the United States Supreme Court thought the
three special issues on punishment set forth in Article 37.071(b)1° would
• Professor of Law, Texas Tech University; B.A., University of Texas at Austin, 1958;
J.D., University of Texas at Austin, 1961; M.A., Texas Tech University, 1974.
1. 102 S.Ct. 869 (1982).
2. Id. at 871 (quoting Lockett v. Ohio, 438 U.S. 586, 606 (1978».
3. 102 S.Ct. at 875-76.
4. 102 S.Ct. at 876.
5. Id.
6. Id.; Eddings v. Oklahoma, 616 P.2d 1159, 1170 (Okla. Crim. App. 1980).
7. 438 U.S. 586 (1978).
8. Id. at 604.
9. 428 U.S. 262 (1976).
10. TEX. CODE CRIM. PROC. ANN. art. 37.071(b) (Vernon 1981). Citations are to Article
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be adequate to "allow consideration of particularized mitigating factors."l1 The United States Supreme Court plurality in Jurek held that
the Texas Court of Criminal Appeals apparently intended to interpret the
second special issue (inquiring about the probability that a defendant
would commit criminal acts of violence that would constitute a continuing threat to society) "so as to allow a defendant to bring to the jury's
attention whatever mitigating circumstances he may be able to show
. . . ."12 Yet a careful reading of the language used by the Texas Court of
Criminal Appeals in its Jurek 13 decision, quoted and relied upon in this
context by the United States Supreme Court plurality, reveals that any
mitigating circumstances would have to be directly related to the matter
of whether a defendant "would be a continuing threat to society."" The
Texas Court of Criminal Appeals did not say that the scope of evidence
admissible under the second special issue in Texas capital cases would be
broadened to cover mitigating circumstances unrelated to the continuing
threat question. Instead, it merely listed some factors that might have a
bearing on that question,l& after first specifically stating that such factors
would be appropriate for the jury's consideration "[i]n determining the
likelihood that the defendant would be a continuing threat to society
"16
In practice, the Texas Court of Criminal Appeals has narrowly restricted the scope of evidence admitted under the second special issue to
matters that are directly relevant to a defendant's future dangerousness.
The result is a simple fact question to be resolved by the jury's "yes" or
"no" answer to that special issue. 17
37.071 as amended in 1981. Under prior law, there was no provision for the imposition of a
life sentence in the event of a hung jury on one or more of the special issues during the
punishment phase of a trial. The 1981 amendment provides authority for the trial judge to
sentence a defendant to life imprisonment in the event the jury is unable to answer any
issue submitted. TEX. CODE CRIM. PROC. ANN. art. 37.071(e) (Vernon 1981). Otherwise, Article 37.071 remains the same as originally enacted. The three special issues, as set forth in
Article 37.071(b) are:
(1) whether the conduct of the defendant that caused the death of the deceased
was committed deliberately and with the reasonable expectation that the death of
the deceased or another would result;
(2) whether there is a probability that the defendant would commit criminal
acts of violence that would constitute a continuing threat to society; and
(3) if raised by the evidence, whether the conduct of the defendant in killing the
deceased was unreasonable in response to the provocation, if any, by the deceased.
TEx. CODE CRIM. PROC. ANN. art. 37.071(b) (Vernon 1981).
11. 428 U.S. at 272.
12. [d.
13. Jurek v. Texas, 522 S.W.2d 934 (Tex. Crim. App. 1975).
14. [d. at 939-40.
15. See infra note 75 and accompanying text for the factors listed by the Texas Court of
Criminal Appeals.
16. 522 S.W.2d at 939-40.
17. See, e.g., Hovila v. State, 562 S.W.2d 243, 249 (Tex. Crim. App. 1978), cert. denied,
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What procedure will a Texas trial court now follow when a defendant
proffers mitigating evidence of the kind involved in the Eddings case?
Apparently, under the decision of the Texas Court of Criminal Appeals to
date, family history evidence is not admissible unless it is related directly
in some way to the second statutory special issue. 18 What can a Texas
trial court do with other, similar kinds of mitigating evidence proffered by
a defendant in the sentencing phase of a capital case, if such evidence is
not directly relevant to the second issue or to one of the other two special
issues?
Even if family history and other, similar kinds of mitigating evidence
should be admitted by a Texas trial court during the sentencing phase of
a capital case, how can a meaningful response to this mitigating evidence
be obtained from the jury under the present sentencing scheme? Article
37.071(b)18 provides for the submission of only two special issuesllo unless
the evidence raises the question of whether the defendant's conduct in
killing the deceased was unreasonable in response to any provocation by
the deceased, in which case a third issue on that question must be submitted. 21 As confined to these two, or in some cases three, special issues, a
Texas jury cannot meaningfully respond to mitigating evidence that is
unrelated to the statutory issues. Moreover, under the present scheme,
answers of "yes" to all issues submitted require the imposition of a death
sentence by the court.211 An answer of "no" on any issue submitted, or an
inability to answer any issue submitted, requires the court to sentence the
defendant to confinement for life. 28 There are no other options.
What does Article 37.071(a)24 mean when it states that in the sentencing proceeding "evidence may be presented as to any matter that the
court deems relevant to sentence,"IIG when the statutory scheme restricts
the jury to evidence on three designated special issues, and permits responses by the jury on those special issues alone? Given the present restrictions in Texas law,lI8 if a trial court permits family history evidence of
439 U.S. 1135 (1979). The Texas Court of Criminal App~als takes the view that mitigating
evidence admitted on the special issue should be limited narrowly to matters directly relevant to resolution of the fact issue. See, e.g., Russell v. State, 598 S.W.2d 238, 254-55 (Tex.
Crim. App. 1980), cert. denied, 449 U.S. 1003 (1980); Demouchette v. State, 591 S.W.2d 488,
491-92 (Tex. Crim. App. 1979), cert. denied, 101 S. Ct. 3146 (1981); Earvin v. State, 582
S.W.2d 794, 797-99 (Tex. Crim. App. 1979), cert. denied, 444 U.S. 919 (1979); McMahon v.
State, 582 S.W.2d 786, 792 (Tex. Crim. App. 1979), cert. denied, 444 U.S. 919 (1979); Duffy
v. State, 567 S.W.2d 197, 208 (Tex. Crim. App. 1978), cert. denied, 439 U.S. 991 (1978).
18. See supra note 17 and accompanying cases.
19. TEx. CODE CRIM. PROC. ANN. art. 37.071(b) (Vernon 1981).
20. See supra text accompanying note 10.
21. See supra text accompanying note 10.
22. TEX. CODE CRIM. PROC. ANN. art. 37.071(e) (Vernon 1981).
23. Id.
24. TEx. CODE CRIM. PROC. ANN. art. 37.071(a) (Vernon 1981).
25. Id.
26. See, e.g., O'Bryan v. State, 591 S.W.2d 464, 478 (Tex. Crim. App. 1979), cert. denied,
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the type involved in Eddingsl7 to come before the jury during sentencing
proceedings in a capital case, how can that court frame an instruction to
guide the jury in reaching and communicating any decision based on the
jury's evaluation of that evidence?1I8
This article examines the foregoing and related questions concerning
the Texas capital sentencing procedure which are now raised by
Eddings. 1I1I
II. THE MITIGATING EVIDENCE IN EDDINGS
To fully appreciate the United States Supreme Court's handling of
the mitigating evidence in Eddings, it is necessary to consider the other
facts in the case in the context of the Oklahoma sentencing scheme.
Monty Lee Eddings and several other youths were traveling in a car
on the Oklahoma Turnpike; Eddings was sixteen of age at the time, his
companions were even younger, and they were all running away from
their homes in Missouri. 80 Eddings momentarily lost control of the car,
was observed by an Oklahoma Highway Patrol officer, and was signalled
by the officer to pull over and stop.81 Eddings stopped, but then pointed a
shotgun out of the window and fired, killing the approaching officer. 811
Eddings was certified to stand trial as an adult, and the Oklahoma
Court of Criminal Appeals affirmed the certification on appeal.88 He was
charged with murder in the first degree, and was found guilty by the trial
446 U.S. 988 (1979); Shippy v. State, 556 S.W.2d 246, 251 (Tex. Crim. App. 1977), cert.
denied, 434 U.S. 935 (1977). In addition to being unauthorized by the statutory scheme,
additional instructions to the jury would probably be viewed by the Texas Court of Criminal
Appeals as improper comments on the weight of the evidence, as indicated by the Court in
O'Bryan and Shippy.
27. 102 S. Ct. at 872.
28. See infra text accompanying note 144.
29. 102 S. Ct. 869 (1982). An exhaustive treatment of the entire capital punishment
scheme in Texas is not provided here, since excellent articles of that scope are already available. See Crump, Capital Murder: The Issues in Texas, 14 Hous. L. REV. 531 (1977) [hereinafter cited as Crump, Capital Murder; Dix, Administration of the Texas Death Penalty
Statutes: Constitutional Infirmities Related to the Prediction of Dangerousness, 55 TEx. L.
REV. 1343 (1977) [hereinafter cited as Dix, Constitutional Infirmities). See also Dix, Constitutional Validity of the Texas Capital Murder Scheme: A Continuing Question, 43 TEx.
B.J. 627, 628-30 (1980) [hereinafter cited as Dix, Constitutional Validity), in which Professor Dix discusses, prior to the Eddings decision, some of the questions raised in the present
article concerning the admissibility of mitigating evidence in Texas capital cases. See generally Black, Reflections on Opposing the Penalty of Death, 10 ST. MARY'S L. J. 1 (1978);
Black, Due Process for Death: Jurek v. Texas and Companion Cases, 26 CATH. U. L. REv. 1
(1976).
30. 102 S. Ct. at 871-72.
31. Id. at 872.
32. Id.
33. Id.; Matter of M. E., 584 P.2d 1340 (Okla. Crim. App. 1978), cert. denied, 436 U.S.
921 (1978).
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court on his plea of nolo contendere. 84
Oklahoma law provides for a sentencing hearing, upon conviction of a
defendant of murder in the first degree, in which the decision is made to
sentence the defendant to death or to life imprisonment. 811 The sentencing
proceeding is conducted by the trial judge before the same jury that convicted the defendant, unless the jury has been waived by the defendant,
in which case the proceeding is before the court alone. 88
The Oklahoma statute provides that in the sentencing proceeding,
"evidence may be presented as to any mitigating circumstances or as to
any of the aggravating circumstances enumerated in this act. "87 There is
no definition of "mitigating circumstances" and no list of mitigating circumstances. There is a list of seven aggravating circumstances,88 three of
which were alleged by the prosecution to be present in the Eddings 89
case: (1) the murder was especially heinous, atrocious, or cruel;40 (2) the
murder was committed for the purpose of avoiding or preventing a lawful
arrest or prosecution;41 and (3) there was the existence of a probability
that the defendant would commit criminal acts of violence that would
constitute a continuing threat to society.4.
In mitigation, Eddings produced what the United States Supreme
Court characterized as "substantial evidence ... of his troubled youth."48
Briefly summarized, the mitigating evidence showed that Eddings "had
been raised without proper guidance."" When he was five years old, his
parents were divorced and he lived "without rules or supervision"411 with
his mother who appeared to be an alcoholic and prostitute. At the age of
fourteen Eddings was sent to live with his father since his mother could
no longer control him.48 The father could not control Eddings either, and
used "excessive physical punishment"47 on the boy, causing Eddings to
become "frightened and bitter."48 There was testimony to the effect that
Eddings was "emotionally disturbed in general at the time of the crime,
and that his mental and emotional development were at a level several
years below his age."49 Additional evidence indicated that Eddings had a
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.
49.
102 S. Ct. at 872.
OKLA. STAT. ANN. tit. 21 § 701.10 (West Supp. 1981).
Id.
Id.
OKLA. STAT. ANN. tit. 21 § 701.12 (West Supp. 1981).
102 S. Ct. at 872.
OKLA. STAT. ANN. tit. 21 § 701.12(4) (West Supp. 1981).
Id. at § 701.12(5).
Id. at § 701.12(7).
102 S. Ct. at 872.
Id.
Id.
Id.
Id.
Id.
Id.
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sociopathic or anti-social personality, that he was treatable, and that he
could be rehabilitated by intensive therapy over a fifteen to twenty year
period to the point that he would no longer be a serious threat to
society. 110
The trial judge found that the prosecution had proved each of the
three alleged aggravating circumstances beyond a reasonable doubt. 1I1 He
found that Eddings' youth was a mitigating factor of great weight, "[b]ut
he would not consider in mitigation the circumstances of Eddings' unhappy upbringing and emotional disturbance . . . . "112 The trial judge
stated that in following the law, he could not consider the fact of Eddings' violent background. 1I8 The trial judge concluded that the only mitigating circumstance was Eddings' youth, and he found that circumstance
did not outweigh the aggravating circumstances in the case. 1I4
Under the Oklahoma statutory scheme for imposing the death penalty, the Oklahoma Court of Criminal Appeals must review the death sentence and determine three matters: (1) whether the sentence of death was
imposed under the influence of passion, prejudice, or any other arbitrary
factor; (2) whether the evidence supports the jury's or judge's finding of a
statutory aggravating circumstance; and (3) whether the sentence of
death is excessive or disproportionate to the penalty imposed in similar
cases, considering both the crime and the defendant. lI11 In Eddings, the
Oklahoma Court of Criminal Appeals made its independent examination
of the evidence pertaining to the aggravating and the mitigating factors.1I8
The court stated that although the family history evidence was "useful in
explaining why he [Eddings] behaved the way he did, ... it does not
excuse his behavior."117
The United States Supreme Court said this was the same approach
as that of the trial court, and that the Oklahoma Court of Criminal Appeals "found that the evidence in mitigation was not relevant because it
did not tend to provide a legal excuse from criminal responsibility,"118 and
50. Id. at 872-73.
51. Id. at 873.
52. Id. Chief Justice Burger, dissenting, insisted that the majority had misunderstood
the sentencing judge's action. 102 S. Ct. at 881 (Burger, C.J., dissenting). In Chief Justice
Burger's view, the trial judge had considered all of the mitigating matters proffered by Eddings, and "had taken account of Eddings' unfortunate childhood," but had found such
evidence insufficient to offset the aggravating circumstances. 102 S. Ct. at 881 (Burger, C.J.,
dissenting).
53. Id. at 873 (Burger, C.J., dissenting). Chief Justice Burger, in his dissent, argued that
"[ilt is not even clear what the trial court meant by Eddings' 'violent background'," but
noted the state's concession that the trial court was probably referring to Eddings' family
history. 102 S. Ct. at 881 n. 5 (Burger, C. J., dissenting).
54. Id. at 873.
55. OKLA. STAT. ANN. tit. 21 § 701.13(c) (West Supp. 1981).
56. Eddings v. State, 616 P.2d 1159, 1167-71 (Okla. Crim. App. 1980).
57. Id. at 1171.
58. 102 S. Ct. at 875.
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"considered only that evidence to be mitigating which would tend to support a legal excuse from criminal liability."118 This was the analysis that
led the United States Supreme Court to conclude that "the limitations
placed by these [Oklahoma] courts upon the mitigating evidence they
would consider violated the rule in Lockett,"60 for "[i]n this instance, it
was as if the trial judge had instructed a jury to disregard the mitigating
evidence Eddings proffered on his behalf."81 The United States Supreme
Court noted section 701.10 of the Oklahoma statutory scheme which permits the defendant in a capital case to present evidence "as to any mitigating circumstance,"811 and said, "Lockett requires the sentencer to
listen. "88
III. THE LOCKETT V. OHIO RULE
The rule in Lockett v. Ohio," referred to by the United States Supreme Court in its Eddings decision, arose out of a situation in which a
state statutory scheme for imposing capital punishment did not "permit
the type of individualized consideration of mitigating factors . . . required by the Eighth and Fourteenth Amendments in capital cases.''811
Ohio law required a death sentence when at least one of seven specified
aggravating circumstances was present, unless the sentencing judge determined that at least one of three specified mitigating circumstances was
established by the evidence.68 The three mitigating circumstances were:
(1) the victim of the offense induced or facilitated it; (2) it is unlikely that
the offense would have been committed but for the fact that the offender
was under duress, coercion, or strong provocation; and (3) the offense was
primarily the product of the offender's psychosis or mental deficiency,
though such condition is insufficient to establish the defense of insanity.87
The United States Supreme Court found "[t]he limited range of mitigating circumstances which may be considered by the sentencer under
the Ohio statute is incompatible with the Eighth and Fourteenth Amendments."88 It held that "[t]o meet constitutional requirements, a death
penalty statute must not preclude consideration of relevant mitigating
factors. "88
In its Lockett decision, the United States Supreme Court said that
59. [d.
60.
[d. (footnote omitted). (Citing Lockett v. Ohio, 438 U.S. 586 (1978».
61.
62.
63.
64.
65.
66.
67.
68.
69.
102 S. Ct. at 876.
Okla. Stat. Ann. tit. 21 § 701.10 (West Supp. 1981).
102 S. Ct. at 876 n. 10.
438 U.S. 586 (1978).
[d. at 606.
OHIO REV. CODE ANN. § 2929.04(b) (Page 1975).
[d.
438 U.S. at 608.
[d.
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the Ohio statute's "constitutional infirmities can best be understood by
comparing it with the statutes upheld in Gregg, Proffitt, and Jurek. ''70
After noting that the Texas statute in Jurek survived constitutional attack only because "three Justices concluded that the Texas Court of
Criminal Appeals had broadly interpreted the second question-despite
its facial narrowness-so as to permit the sentencer to consider 'whatever
mitigating circumstances' the defendant might be able to show,"71 the
United States Supreme Court reasserted its confidence that the Texas
statute, along with those of Georgia and Florida, would allow full consideration of all mitigating factors. The Court said: "None of the statutes we
sustained in Gregg and the companion cases clearly operated at that time
[1976] to prevent the sentencer from considering any aspect of the defendant's character and record or any circumstances of his offense as an independently mitigating factor."?1
Thus the Lockett majority, like the Jurek?8 plurality, simply missed
the significance of the very restrictive language forthrightly employed by
the Texas Court of Criminal Appeals to describe the scope of the evidence admissible under the second special issue?· in the Texas capital
sentencing scheme:
In determining the likelihood that the defendant would be a continuing
threat to society, the jury could consider whether the defendant had a
significant criminal record. It could consider the range and severity of his
prior criminal conduct. It could further look to the age of the defendant
and whether or not at the time of the commission of the offense he was
acting under duress or under the domination of another. It could also
consider whether the defendant was under an extreme form of mental or
emotional pressure, something less, perhaps, than insanity, but more
than the emotions of the average man, however inflamed, could
withstand. 70
On its face, the quoted language indicates clearly that the potential
mitigating circumstances listed by the Texas Court of Criminal Appeals
would be admissible, if at all, only on the supposition that they might be
relevant to a determination of the matter inquired about by the second
special issue in the Texas scheme: future dangerousness. And in actual
practice, the Texas Court of Criminal Appeals has in fact restricted the
scope of the evidence admitted under the second special issue to that one,
narrow, aggravating circumstance inquired about in that issue.?6 One can
70. Id. at 606. See Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v. Florida, 428 U.S. 242
(1976); Jurek v. Texas, 428 U.S. 262 (1976).
71. 438 U.S. at 607 (quoting Jurek v. Texas, 428 U.S. 262, 272-73 (1976».
72. 438 U.S. at 606.
73. 428 U.S. 262 (1976).
74. See supra note 10.
75. Jurek v. State, 522 S.W.2d 934, 939-40 (Tex. Crim. App. 1975) (emphasis added).
76. See supra note 17 and accompanying cases.
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hardly fault the Texas Court of Criminal Appeals· for doing exactly what
it said it was going to do, and what it is plainly required to do, under the
applicable statute.?? Notwithstanding the broad language of Article
37.071(a), which appears to permit the presentation of evidence "as to
any matter that the court deems relevant to sentence,'178 given the rest of
the Texas statutory scheme and the interpretatio:t of that scheme by the
Texas Court of Criminal Appeals, mitigating evidence, to be admissible,
must be relevant to one or more of the three special issues.?'
Ironically, although the Lockett majority mentions the Texas sentencing scheme as an acceptable one, in its discussion of the constitutional defects of the Ohio sentencing scheme, the rule promulgated in
Lockett,80 as interpreted and applied in Eddings, may signal the end of
the Texas scheme. As Professor Dix pointed out in 1980, "Jurek . . .
must be read as holding no more than that the death sentence of the
petitioner would not, at the time, be invalidated. "81 This is necessarily so,
as Professor Dix explained, because of the peculiar nature of the alignment of the justices in the Jurek. case, and the absence of even a majority
on the point at issue:
None of the opinions written expressing the view that the statute is valid
represented the position of the Court, a majority of its members, or even
a plurality. Moreover, three members of the majority for affirmance-Justices White, Rehnquist, and the Chief Justice-have not yet
addressed the controlling question: Judged as a discretionary procedure,
does the Texas death penalty scheme meet constitutional standards?'·
And of course Justice O'Connor was not on the Court when Jurek was
decided, and has not yet had an opportunity to consider what Professor
Dix correctly identifies as "the controlling question"88 with respect to the
Texas statutory scheme. Her concurring opinion in Eddings" indicates
that she strongly supports the Lockett rule and its rationale.
If the Lockett rule is rigorously applied to what is now actually being
done under the Texas capital sentencing scheme, as distinguished from
what the Jurek plurality apparently thought would be done, it seems unlikely that the Texas scheme would emerge as constitutionally adequate
under the Eighth and Fourteenth Amendments.
IV. THE TEXAS SCHEME IN PRACTICE
Regardless of what the Jurek plurality thought would be done in
77.
78.
79.
SO.
81.
82.
TEx. CODE CRIM. PROC. ANN. art. 37.071(b) (Vernon 1981).
1d. at 37.071(a) (emphasis added).
See supra text accompanying note 10.
438 U.S. at 604.
Dix, Constitutional Validity, supra note 29, at 628.
1d.
83. 1d.
84. 102 S. Ct. at 877-79 (O'Connor, J., concurring).
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Texas, the test is, of course, what is actually being done in practice. It
may prove helpful to divide the discussion into three areas: the type of
review provided by the Texas Court of Criminal Appeals in death cases;
the problem of the trial court's discretion in allowing evidence in mitigation to come before the jurY; and, the problem of obtaining a meaningful
response from the jury.
Type of Review
a.
No statutory guidance is provided in the Texas capital punishment
scheme, to dictate to the Texas Court of Criminal Appeals as to what
kind of review is required. It is instructive to compare the Texas silence
on this matter with the careful guidelines provided in the Oklahoma and
Ohio statutes.
In Oklahoma, the court of criminal appeals is required to determine,
in all death penalty cases, three specific matters: (1) whether the sentence
of death was imposed under the influence of passion, prejudice, or any
other arbitrary factor; (2) whether the evidence supports the jury's or
judge's finding of a statutory aggravating circumstance; and (3) whether
the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. 811 In
addition, Oklahoma requires the reviewing court to "include in its decision a reference to those similar cases which it took into consideration."88
The statute goes on to provide that the Oklahoma Court of Criminal Appeals specifically has the authority review the death sentence in addition
to its authority "regarding the correction of errors."87
The opinion of the Oklahoma Court of Criminal Appeals in the Eddings88 case reflects the care and thoroughness with which the sentence
review is accomplished under the Oklahoma statutory scheme. The
Oklahoma Court of Criminal Appeals made the three specific determinations required,89 and provided some discussion on each point. 90 That
court also discussed similar cases, and listed the twelve cases it had examined and compared in the course of examining the death sentence in
the Eddings case. 91
Under the Ohio scheme, the statute provides that whenever a sentence of death is imposed, "the court of appeals and the supreme court
shall review the judgment in the case and the sentence of death imposed
by the court or panel of three judges . . . ."91 As in the Oklahoma
85.
86.
87.
88.
89.
90.
OKLA. STAT. ANN. tit. 21 § 701.13(c) (West Supp. 1981).
Id. at § 701.13(e).
Id.
Eddings v. State, 616 P.2d 1159 (Okla. Crim. App. 1980).
OKLA. STAT. ANN. tit. § 701.13(c) (West Supp. 1981).
616 P.2d at 1170.
91. Id. at 1170-71, 1171 n. 4.
92. OHIO REV. CODE ANN. § 2929.05(a) (Page 1981).
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scheme, the appellate review reaches the sentence as a separate aspect of
the case from the judgment and any legal errors connected with the
judgment.
The Ohio statute also provides that the reviewing courts must "review and independently weigh all of the facts and other evidence disclosed in the record in the case and consider the offense and the offender
to determine whether the aggravating circumstances . . . outweigh the
mitigating factors in the case, and whether the sentence of death is appropriate. "98 In considering the issue of whether the death sentence is
appropriate in a given case, the Ohio appellate courts are required to consider "whether the sentence is excessive or disproportionate to the penalty imposed in similar cases."94 Further, the Ohio appellate courts must
review "all of the facts and other evidence to determine if the evidence
supports the finding of the aggravating circumstances . . . and shall determine whether the sentencing court properly weighed the aggravating
circumstances ... and the mitigating factors.'''11 Finally, the statute
states that a death sentence can be affirmed "only if the particular court
is persuaded from the record that the aggravating circumstances. . . outweigh the mitigating factors present in the case and that the sentence of
death is the appropriate sentence in the case."96
In contrast to the Oklahoma and Ohio situations, the Texas statutes
do not instruct the Texas Court of Criminal Appeals concerning the manner in which death setences are to be reviewed by that court. Professor
Crump has termed this matter "[t]he most difficult question regarding
appeals,"97 noting that even review for sufficiency of the evidence in
death cases "is not covered by the Texas capital murder statute, although
it has been provided for in other jurisdictions.'''8
Professor Dix commented in 1977 that "[t]he Court of Criminal Appeals' narrow approach to deciding whether evidence is sufficient to support a death sentence."" He noted that in every case up to that time in
which the Texas Court of Criminal Appeals had discussed the sufficiency
of the evidence to support a death sentence, "the court has treated the
issue as if it were one of finding evidence in the record to support the
jury's affirmative answers to the special issues. "100 Insofar as the Texas .
Court of Criminal Appeals is concerned, Professor Dix observed,
"[e]vidence is deemed material only if it bears on the defendant's dangerousness within the meaning of question twO."IOI Under the Texas scheme,
93. Id.
Id.
Id.
Id.
97. Crump, Capital Murder, supra note 29, at 579.
98. Id.
99. Dix, Constitutional Infirmities, supra note 29, at 1372.
100. Id.
101. Id.
94.
95.
96.
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"[t]he decisions thus provide no guidance on how a jury might balance
factors that mitigate the defendant's ethical blameworthiness with factors
that suggest his continued dangerousness when the evidence indicates the
presence of both types of factors. "101
There may be some basis for the notion that the Texas Court of
Criminal Appeals itself attempts to do some balancing of "factors that
mitigate the defendant's ethical blameworthiness," whether specifically
allowed by the statute or not. In Warren v. State/08 in which the author
served as co-counsel in representing the defendant at the trial and on
appeal, the Texas Court of Criminal Appeals reversed the defendant's
conviction and death sentence on the ground that the evidence was insufficient to sustain the jury's affirmative finding on the defendant's probable future dangerousness under the second special issue. l04 The defendant
shot and killed the deceased during the course of a burglary of the deceased's home, using the deceased's own gun (which was being stolen as a
part of the burglary). 1011 Upon discovering the defendant and a companion
in the home, the deceased pulled a gun and yelled, "You son of a bitch
... I'm going to kill yoU."I06 The defendant then fired, and testified at
trial that he did so because "when the deceased pulled a gun the thought
ran through his [the defendant's] mind he was going to be shot and that
in an act of self-preservation he pulled the pistol from his pocket and
there was a loud explosion. "107
In Warren the prosecution introduced a felony theft conviction of
the defendant which had a four year probated sentence which was revoked six months later as a result of defendant's burglary of a coin-operated machine. l08 Aside from the defendant's own testimony, this was the
only evidence before the sentencing jury.10B
All three special issues were submitted to the jury. They answered all
three in the affirmative which resulted in a death sentence for the defendant. llo After discussing the evidence the court of criminal appeals said:
The facts of the instant case reflect a criminal act of violence, but it was
not a calculated act. The State's evidence in the form of appellant's confession shows that appellant went unarmed to the deceased's house for
the purpose of burglarizing the house. There he found a pistol, which he
placed in his coat pocket. He was surprised in the bedroom by the deceased, whom he did not know. When the deceased pulled gun, yelled at
[d. Professor Dix also noted that the Texas decisions seem to indicate that such a
is unnecessary and, by implication, would even be improper under the statute.
562 S.W.2d 474 (Tex. Crim. App. 1978).
[d. at 477.
[d. at 475.
[d. at 476.
[d.
[d.
[d.
110. [d. at 475.
102.
balance
103.
104.
105.
106.
107.
108.
109.
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him and threatened to kill him, he shot the deceased. The confession
reflects appellant was so scared 'he was going to shoot us that I didn't
know what I was doing . . . . I don't remember shooting him but I was
the only one that had a gun.' The appellant's story that the deceased
pulled a gun is supported by other evidence that the deceased was known
to carry a pistol and the fact that his .25 caliber pistol was found at his
feet when his body was discovered. 111
The court concluded that there was no evidence of past violence, no evidence that violence was intended under the circumstances presented by
the case, and no evidentiary predictions of probable future violence. 111
Noting that "there may be cases where the evidence offered at the guilt
stage of the trial may be sufficient to support an affirmative finding to
special issue No.2 under Article 37.071,"1l8 the court nevertheless concluded that under the circumstances the evidence was insufficient to sustain the jury's affirmative finding as to the second special issue. u4 A concurring opinion in Warren said that even if the state had introduced
psychiatric testimony against the defendant, the evidence still would have
been insufficient to support the jury's affirmative finding on future
dangerousness. 1111
Even though the Texas Court of Criminal Appeals has held that
under the Texas statutory scheme the jury is only to answer questions
while the judge actually assesses the punishment based on such answers,us and thus the appellate court's only function is to determine the
sufficiency of the evidence to support the jury's findings,ll7 it seems that
what the court actually did in the Warren case was to engage in the kind
of independent appropriateness determination mandated under the
Oklahoma and Ohio statutory schemes.1l8 But the Texas Court of Criminal Appeals was able to do so-if that is what it actually did-only because there was no difficulty in placing the evidence involved before the
jury. In Warren, the defendant's mitigating testimony fit within the scope
of the second special issue, with the result that the evidence got before
the jury and the Texas Court of Criminal Appeals was able to review it in
111. Id. at 476-77.
112. Id. at 477.
113. Id. (footnote omitted). (citing Burns v. State, 556 S.W.2d 270 (Tex. Crim. App.
1977), cert. denied, 434 U.S. 935 (1977); Granviel v. State, 552 S.W.2d lO7 (Tex. Crim. App.
1976), cert. denied, 431 U.S. 933 (1977).
114. 562 S.W.2d at 477.
115. Id. (Roberts, J., concurring).
116. See Burns v. State, 556 S.W.2d 270, 279 (Tex. Crim. App. 1977), cert. denied, 434
U.S. 935 (1977); Hovila v. State (first case), 532 S.W.2d 293, 294 (Tex. Crim. App. 1975).
(Hovila's first conviction was reversed on appeal because several prospective jurors had been
excused in violation of Witherspoon v. Illinois, 391 U.S. 510 (1968». See also, Hovila v.
State (second case) 562 S.W.2d 243 (Tex. Crim. App. 1978), cert. denied, 439 U.S. 1135
(1979).
117. See supra notes 99-102 and accompanying text.
118. See supra notes 85-96 and accompanying text.
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the context of passing upon its sufficiency to support the jury's affirmative answer to that issue. In other cases, however, where the mitigating
evidence may be the kind involved in Lockett ll8 or Eddings,IIO and thus
may never get before a jury under the Texas scheme, the Texas Court of
Criminal Appeals will have no vehicle by which to provide even the limited appropriateness reveiw of death sentences that it can now provide
under the rubric of passing upon evidentiary sufficiency.
b.
Trial Court Discretion in Admitting Mitigating Evidence
I
I
An even more serious problem than the narrow scope of Texas' appellate review of death sentences is presented by the matter of the trial
court's discretion in admitting mitigating evidence. As stated in the introduction to this article, the Texas Court of Criminal Appeals has narrowly
restricted the scope of evidence that can be admitted under the second
special issue. III The second Hovila l l l case provides an ominous example.
During the course of the proceedings against Hovila, he was mistakenly released from jail for four days, .and he went to his home. liS He
sought to present to the jury the testimony of his mother concerning his
behavior during that four day period when he enjoyed complete freedom
of movement and action. lU She testified out of the presence of the jury
that the defendant had remained in her house during the greater part of
the time, that he went to a dance one night with friends, that he applied
for a driver's license, that he did nothing unusual, and that when he
learned that his release had been a mistake he took steps to surrender
himself to the police. lID The trial court excluded this evidence, and did
not allow the jury to hear it. 118 The Texas Court of Criminal Appeals
affirmed, stating that "[t]he evidence in the instant case that Hovila did
not murder or commit other criminal acts during a four-day period would
not show that he probably would or would not be a continuing threat to
society,"117 thus linking the admissibility of any such mitigating evidence
directly to the dangerousness question inquired about in the second special issue. Then the court of criminal appeals added: "The trial court's
error, if any, in refusing to admit this evidence was not so harmful as to
require us to reverse."IIB This seems to be plainly contrary to what the
119. Lockett v. Ohio, 438 U.S. 586 (1978).
120. Eddings v. Oklahoma, 102 S. Ct. 869 (1982).
121. See supra note 17 and accompanying text.
122. Hovila v. State (second case), 562 S.W.2d 243 (Tex. Crim. App. 1978), cert. denied,
439 U.S. 1135 (1979).
123. 562 S.W.2d at 249.
124. [d.
125. [d.
126. [d.
127. [d. (emphasis added).
128. [d.
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Supreme Court of the United States has required in Lockett l29 and
Eddings. ISO
The Texas Court of Criminal Appeals, in several other capital cases,·
has consistently adhered to the view that mitigating evidence must be
relevant to the second special issue.l3l And that court's reluctance to reverse, even if error in excluding mitigating evidence may be present, as in
the Hovila 132 case, is consistent with its past action over the years in capital as well as non-capital cases. ISS The court speaks of broad admissibility
of mitigating evidence, but in actual practice tends not to reverse for error in excluding such evidence. Cases such as Robinson v. State 134 are the
exception rather than the rule (reversal for not allowing the defendant to
present a psychologist's testimony to the jury concerning improbability of
future dangerousness).
Texas trial courts are able to exclude all mitigating evidence that is
not directly relevant to the three special issues. The practical result is
that a Texas trial court's actual discretion under Article 37.071(a),1311
which speaks in terms of presenting "any matter that the court deems
relevant to sentence,"138 is limited to matters deemed relevant to one qr
more of the three special issues that inquire about the presence of aggravating circumstances.
c.
Obtaining a Meaningful Response from the Jury
The final and most serious problem is that a Texas jury, under the
present capital sentencing scheme, cannot make a meaningful, binding response to mitigating evidence that goes beyond the scope of the three
special issues, even if the trial court decides to admit such evidence. The
statute137 requires the submission of only the two, or when indicated by
evidence of provocation the three, special issues. The trial judge has no
authority to submit any other issues, regardless of the posture of the miti129. Lockett v. Ohio, 438 U.S. 586 (1978).
130. Eddings v. Oklahoma, 102 S. Ct. 869 (1982).
131. E.g., Russell v. State, 598 S.W.2d 238, 254·55 (Tex. Crim. App. 1980), cert. denied,
449 U.S. 1003 (1980); Demouchette v. State, 591 S.W.2d 488, 491·92 (Tex. Crim. App. 1979),
cert. denied, 101 S. Ct. 3146 (1981); Earvin v. State, 582 S.W.2d 794, 797·99 (Tex. Crim.
App. 1979), cert. denied, 444 U.S. 919 (1979); McMahon v. State, 582 S.W.2d 786, 792 (Tex.
Crim. App. 1979), cert. denied, 444 U.S. 919 (1979); Duffy v. State, 567 S.W.2d 197, 208
(Tex. Crim. App. 1978), cert. denied, 439 U.S. 991 (1978).
132. 562 S.W.2d 243.
133. See, e.g., Daniel v. State, 577 S.W.2d 231, 235 (Tex. Crim. App. 1978); Singletary v.
State, 509 S.W.2d 572, 577 (Tex. Crim. App. 1974); Logan v. State, 455 S.W.2d 267, 270
(Tex. Crim. App. 1970); Schulz v. State, 446 S.W.2d 872, 874 (Tex. Crim. App. 1969); AIlaben v. State, 418 S.W.2d 517, 519 (Tex. Crim. App. 1967).
134. 548 S.W.2d 63 (Tex. Crim. App. 1977).
135. TEX. CODE CRIM. PROC. ANN. art. 37.071(a) (Vernon 1981).
136. Id.
137. TEX. CODE CRIM. PROC. ANN. art. 37.071(b) (Vernon 1981).
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gating evidence he or she may have allowed to go before the jury. The
jury has no authority to return any answers or other form of verdict or
sentence recommendation, except the two, or in some cases, three special
issues, each one of which must be answered simply "yes" or "no" without
further elaboration.
The impasse now existing in Texas law on this matter can be illustrated by considering what would happen in a Texas trial court if a defendant attempted to place before the jury the sort of evidence involved
in Eddings 188 at the sentencing proceedings. Suppose that a Texas capital
defendant tenders evidence that he or she "had been deprived of the care,
concern and paternal attention that children deserve,"189 and "had been
raised in a neglectful, sometimes even violent, family background. "140
Suppose further that psychiatrists for the state and the defendant are in
agreement that such evidence has no bearing or relevance whatever on
the question of future dangerousness under the particular circumstances
of the defendant's age and present situation. Lockett 141 and Eddings 142
hold that such evidence in mitigation must be admitted if a state's sentencing scheme is to be constitutionally acceptable under the Eighth and
Fourteenth Amendments. The decisions of the Texas Court of Criminal
Appeals consistently and clearly say that such evidence is inadmissible, or
in the alternative that if there is error in refusing to admit such evidence
it is not reversible error .148
But assume for the sake of argument that a Texas trial court does
admit mitigating evidence' of this kind, and allows it to go before the jury.
The trial court has no way to instruct the jury what to do with such evidence, and cannot submit an additional special issue under the present
statutory scheme. 144 Thus, a Texas jury is effectively and completely
138. Eddings v. Oklahoma, 102 S. Ct. 869 (1982).
139. [d. at 877.
140. [d.
141. Lockett v. Ohio, 438 U.S. 586 (1978).
142. Eddings v. Oklahoma, 102 S. Ct. 869 (1982).
143. See supra notes 17, 122, and 131 and accompanying cases.
144. A significant problem in this respect is posed by the case of Spivey v. Zant, 661 F.2d
464 (5th Cir. 1981), cert. denied, 50 U.S.L.W. 3998.19 (U.S. June 28, 1982) (No. 81-1875), in
which the Fifth Circuit held that the Eighth and Fourteenth Amendments require that:
[WJhen a jury is charged with the decision whether to impose the death penalty,
the jury must receive clear instructions which not only do not preclude consideration of mitigating factors, Lockett, but which also 'guide and focus the jury's objective consideration of the particularized circumstances of the individual offense
and the individual offender .. .' [citing Jurek v. Texas, 428 U.S. at 274).
661 F.2d at 471. The Fifth Circuit went on to say that in most cases "this will mean that the
judge must clearly and explicitly instruct the jury about mitigating circumstances and the
option to recommend against death; in order to do so, the judge will normally tell the jury
what a mitigating circumstance is and what its function is in the jury's sentencing deliberations." 661 F.2d at 471. There are several obstacles to compliance with Spivey in the Texas
death sentencing scheme. A Texas capital jury cannot "recommend" anything, but can only
answer "yes" and "no" in response to three statutory special issues. There is no statutory
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CAPITAL SENTENCING PROCEDURE
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blocked from considering such mitigating evidence in a meaningtful way
and thereby making a meaningful, and binding, response to it. Presumably a jury could ignore the court's instructions and return a negative an. swer to one of the special issues, in response to the mitigating evidence, in
order to avoid a death sentence. The Texas Court of Criminal Appeals
itself has suggested that this may actually happen in a case,1411 but surely
it would be an extremely poor statutory scheme that would place reliance
upon jury nullification in so sensitive an area of the criminal justice system as this.14e Perhaps more to the point, it is not likely that the United
States Supreme Court could be persuaded to hold such a system constitutionally valid under the Eighth and Fourteenth Amendments. In any
event, the only lawful response available to a Texas capital jury under the
present scheme is to return answers of "yes" or "no" to the statutory
special issues, or report an inability to answer any issue submitted.
V. CONCLUSION
In light of Lockett l4 ? and Eddings 148 it appears that the present
Texas statutory scheme for sentencing in capital cases is constitutionally
inadequate under the Eighth and Fourteenth Amendments. The United
States Supreme Court seems to be saying that "in capital cases the fundamental respect for humanity underlying the Eighth Amendment . . .
requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of
death,"148 and that in practice this means that any defendant has a constitutional right to require the sentencing court or jury to hear and consider and respond meaningfully to whatever mitigating evidence he or she
decides to proffer. As expressed in the Eddings lliO decision, the sentencer
and the appellate courts may determine the weight to be given mitigating
evidence, "[b]ut they may not give it no weight by excluding such evidence from their consideration. "lIIl In the language used by the Court in
Eddings, l&I when mitigating evidence is proffered by a defendant in a
definition of mitigation or of mitigating circumstances in the Texas scheme. Virtually anything a Texas trial judge may say about any evidence can be interpreted to be an improper
comment upon the weight of the evidence. See supra note 28, and accompanying cases. The
Spivey case further illustrates the inadequacy of the Texas capital sentencing scheme.
145. Blansett v. State, 556 S.W.2d 322, 327 n. 6 (Tex. Crim. App. 1977).
146. See Lockett v. Ohio, 438 U.S. 586, 597-98 (1978), for the Supreme Court comments
on the unsatisfactory nature of such a system, in the context of the old mandatory death
statutes.
.
147. Lockett v. Ohio, 438 U.S. 586 (1978).
148. Eddings v. Oklahoma, 102 S. Ct. 869 (1982).
149. Woodson v. North Carolina, 428 U.S. 280, 304 (1976).
150. 102 S. Ct. 869 (1982).
151. [d. at 876.
152. [d. at 869 (1982).
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capital case, "Lockett requires the sentencer to listen."Ul8 Perhaps the
fundamental idea involved is not unlike that which existed in capital
cases at common law in the defendant's right of allocution. IlI4 That is,
before we decide to take a person's life in our society, our sense of humanity as well as or basic constitutional principles and our desire to reach
correct results in serious criminal cases, require that we take the time and
effort to hear and consider whatever that person may want to place
before us as a reason for not taking his or her life. lIl11 The present Texas
capital sentencing procedure does not do that.
153. Id. at 876 n. 10.
154. At common law it was essential in all capital cases that before sentence was passed,
the defendant be asked whether he or she had anything to say why sentence of death should
not be pronounced. Schwab v. Berggren, 143 U.S. 442, 446-47 (1892); Ball v. United States,
140 U.S. 118, 129 (1891). The English still consider mitigation to be a much broader concept
than we do in the United States. See D. THOMAS, PRINCIPLES OF SENTENCING 194-222 (2d ed.
1979).
155. E.g., in response to Lockett, the OHIO REV. CODE ANN. § 2929.04(b) (Page 1981),
now provides for consideration of several specifically enumerated mitigating factors and
"Any other factors that are relevant to the issue of whether the offender should be sentenced to death." That is the sort of breadth needed in the Texas sentencing scheme.
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