mitigation instruction in Texas

2017"Evidence that the defendant was intoxicated at the time of the offense does not automatically entitle him to a mitigation instruction at punishment.” Meine v. State, 356 S.W.3d 605, 611 (Tex. App.—Corpus Christi 2011, pet. ref’d) (citing Miniel v. State, 831 S.W.2d 310, 320 (Tex. Crim.

2013See Miniel v. State, 831 S.W.2d 310, 320 (Tex. Crim.

2017See Gunn Infiniti, Inc. v. O’Byrne, 996 S.W.2d 854, 858 (Tex. 1999) (applying doctrine in DTPA case); Pulaski, 769 S.W.2d at 735 (noting that “Texas has applied the mitigation doctrine in both, tort and breach of contract cases”); see also Restatement (Second) of Torts § 918 (Am.

2012Texas Mutual’s complaints that Jones delayed seeking preauthorization and delayed having surgery after preau-thorization was approved are in the nature of a mitigation defense—i.e., assertions by a defendant that the plaintiffs actions forestall all or at least some of the plaintiffs damages, see Gunn Infiniti v. O’Byrne, 996 S.W.2d 854, 857 (Tex.1999)— or an assertion that the plaintiffs recovery should be reduced by the percentage of plaintiffs damages that are attributable to the plaintiffs action or inactions, see Tex. Civ.

2012See, e.g., Abdul-Kabir, 550 U.S. at 261 (distinguishing universally mitigating circumstances, which do not necessarily require a separate mitigation instruction, from “particularized” experiences of childhood abuse and neglect, which do); Jurek v. Texas, 428 U.S. 262, 272 (1976) (constitutionality of Texas’s special issues “turns on whether the enumerated questions allow consideration of particularized mitigating factors”).

2012See , e.g. , Abdul-Kabir , 550 U.S. at 261 (distinguishing universally mitigating circumstances, which do not necessarily require a separate mitigation instruction, from "particularized" experiences of childhood abuse and neglect, which do); Jurek v. Texas , 428 U.S. 262, 272 (1976) (constitutionality of Texas's special issues "turns on whether the enumerated questions allow consideration of particularized mitigating factors").

2008See City of San Antonio v. Guidry , 801 S.W.2d 142, 151 (Tex. App.--San Antonio 1990, no writ) ("The mitigation doctrine requires that an injured party exercise reasonable care to minimize his damages.").

2008See City of San Antonio v. Guidry, 801 S.W.2d 142, 151 (Tex.App.-San Antonio 1990, no writ) (“The mitigation doctrine requires that an injured party exercise reasonable care to minimize his damages.”).

2024Rather, a defendant is entitled to a mitigation instruction if the evidence (1) “clearly show[s] that the plaintiff’s decision not to mitigate caused further damages,” and (2) “sufficiently guide[s] the jury in determining which damages were attributable to the plaintiff’s decision not to mitigate.” Formosa Plastics Corp., USA v. Kajima Intern., Inc., 216 S.W.3d 436, 459 (Tex. App.—Corpus Christi–Edinburg 2006, pet. denied) (citing Hygeia Dairy Co., 994 S.W.2d at 225 ).

2024Most of the evidence Zoanni relies on to support her request for a mitigation instruction concerns Hogan’s conduct before she made the alleged defamatory statements, such as Hogan’s alleged conduct in (1) “consistently viewing pornography, particularly voyeuristic porn,” (2) “viewing pornography on church computers,” (3) “peeking into women’s dressing rooms,” (4) “secretly planting cameras to record sexual activity of his friend and fellow minister,” (5) “secretly removing an attic fan to peer into a bathroom to see naked girls,” (6) “voluntarily placing himself on one-year probation as a mini

2024Smoker, 934 S.W.2d at 722 (holding trial court did not abuse its discretion by not including mitigation instruction in charge when defendant “did not present any evidence of an amount by which Smoker’s damages were increased by her alleged failure to mitigate”); see also Formosa Plastics Corp., USA, 216 S.W.3d at 459 (holding trial court did not abuse its discretion by not including mitigation instruction when defendant failed to show plaintiff’s damages could be mitigated with minimal effort or expense).22 While 22 Texas courts have applied the doctrine of mitigation of damages to breach of c

2018To support a mitigation instruction, the evidence need only show the injured party failed to exercise reasonable care to minimize his damages, “if the damages can be avoided with only slight expense and reasonable effort.” See Smoker, 934 S.W.2d at 721 .

2022See Johnson v. State, 452 S.W.3d 398, 407 (Tex. App.—Amarillo 2014, pet. ref.) (citing Arabie v. State, 421 S.W.3d 111, 114 (Tex. App.—Waco, 2013, pet. ref’d) (citing San Miguel v. State, 864 S.W.2d 493 , 495–96 (Tex. Crim.

2015Arabie v. State, 421 S.W.3d 111, 114 (Tex. App.—Waco 2013, pet. ref’d).

2008See also Ex parte Kunkle, 852 S.W.2d 499 , 502 n. 3 (Tex.Crim.App. 1993). [17] The applicant's trial attorneys requested the trial court to instruct the jury, "If you find any evidence in mitigation of the defendant's acts, and it creates a reasonable doubt in your mind, you will so find by your answer to the special issues by answering no to the special issues." The State objected that a mitigation instruction had been deemed unnecessary in Quinones v. State, 592 S.W.2d 933, at 947 (Tex.Crim.App. 1980).

2008The applicant’s trial attorneys requested the trial court to instruct the jury, "If you find any evidence in mitigation of the defendant’s acts, and it creates a reasonable doubt in your mind, you will so find by your answer to the special issues by answering no to the special issues.” The State objected that a mitigation instruction had been deemed unnecessary in Quinones v. State, 592 S.W.2d 933, at 947 (Tex.Crim.App.1980).

2013In points of error forty-six and forty-seven, Appellant argues that his death sentence is unconstitutional because the mitigation instruction "sends mixed signals" in violation of Penry v. Johnson , 532 U.S. 782 (2001) and the Texas Constitution.

2013In points of error forty-six and forty-seven, Appellant argues that his death sentence is unconstitutional because the mitigation instruction “sends mixed signals” in violation of Penry v. Johnson, 532 U.S. 782 (2001) and the Texas Constitution.

2026See Tennard v. Dretke, 542 U.S. 274, 288 (2004) (intellectual disability, low intelligence falling short of intellectual disability); Smith v. Texas, 543 U.S. 37, 44 (2004) (low intelligence, placement in special education classes); Abdul-Kabir v. Quarterman, 550 U.S. 233 , 239–42 (2007) (unhappy, disturbed childhood; childhood neglect and abandonment; neurological damage); Brewer v. Quarterman, 550 U.S. 286, 296 (2007) (mental illness, including depression; substance abuse).

2017See Tennard v. Dretke, 542 U.S. 274, 287 (2004) (capital defendant need not prove that his crime was somehow “attributable to” the mitigating circumstance he proffers in order to obtain a mitigation instruction).

2018Considering these provisions together, the court of criminal appeals has held that to be entitled to a mitigation instruction based on voluntary intoxication causing temporary insanity, the defendant must show that he was “unable to understand the wrongfulness of his conduct.” Ex parte Martinez, 195 S.W.3d 713, 722 (Tex. Crim.

2007In Martinez , 195 S.W.3d at 721–22, the Texas Court of Criminal Appeals found counsel was not ineffective for failing to present a mitigation defense of temporary insanity where there was evidence Martinez knew his acts were wrong––he confessed to police; denied taking drugs or alcohol (his habeas claim of ineffective assistance said trial counsel should have pursued a temporary insanity defense based on voluntary intoxication); and he told friends he could not believe he had committed the murders.

1999The majority relies on Alamo Ambulance to support this assertion, contending a mitigation instruction was required in that case even though "there was no testimony as to how much of Moulton's injury was due solely to his failure to follow his doctor's advice." However, the Texas Supreme Court's opinion actually notes: "The doctor's testimony would also support a reasonable conclusion that Moulton's knee injury would probably have healed within a brief period of time if he had followed his doctor's advice." Moulton v. Alamo Ambulance Service, Inc., 414 S.W.2d 444 (Tex.1967).

1999The majority relies on Alamo Ambulance to support this assertion, contending a mitigation instruction was required in that case even though “there was no testimony as to how much of Moulton’s injury was due solely to his failure to follow his doctor’s advice.” However, the Texas Supreme Court’s opinion actually notes: “The doctor’s testimony would also support a reasonable conclusion that Moulton’s knee injury would probably have healed within a brief period of time if he had followed his doctor’s advice.” Moulton v. Alamo Ambulance Service, Inc., 414 S.W.2d 444 (Tex.1967).

2026See Tennard v. Dretke, 542 U.S. 274, 288 (2004) (intellectual disability, low intelligence falling short of intellectual disability); Smith v. Texas, 543 U.S. 37, 44 (2004) (low intelligence, placement in special education classes); Abdul-Kabir v. Quarterman, 550 U.S. 233 , 239–42 (2007) (unhappy, disturbed childhood; childhood neglect and abandonment; neurological damage); Brewer v. Quarterman, 550 U.S. 286, 296 (2007) (mental illness, including depression; substance abuse).

2012See id.

2024Co., 759 S.W.2d at 735 (stating doctrine of mitigation of damages applies “only if the victim of the wrongdoer’s act has 24 Zoanni argues that Hogan failed to “mitigate his damages,” but the import of her claim appears to be not that Hogan failed to mitigate his damages after Zoanni made the defamatory statements, but rather that Hogan failed to establish that the alleged defamatory statements resulted in his claimed damages. 65 knowledge of the fact which makes avoidance of the consequences necessary, and if the damages can be avoided with only slight expense and reasonable effort”).

1990Geotech Energy Corp. v. Gulf States Telecommunications & Information Sys., Inc., 788 S.W.2d 386, 390 (Tex.App.-Houston [14th Dist.] 1990, no writ) (“ordinary care” and “reasonable diligence”); Pulaski Bank & Trust Co. v. Texas American Bank/Fort Worth, 759 S.W.2d 723, 735-36 (Tex.App.-Dallas 1988, writ denied) (“reasonable efforts and ordinary care”).

2023See, e.g., Turner v. State, 443 S.W.3d 128, 129 (Tex. Crim.

2016See, e.g., Turner v. State, 443 S.W.3d 128, 129 (Tex.Crim.App.2014); Lewis v. State, 448 S.W.3d 138, 146-47 (Tex.App.-Houston [14th Dist.] 2014, pet. ref d).

2022See Johnson v. State, 452 S.W.3d 398, 407 (Tex. App.—Amarillo 2014, pet. ref.) (citing Arabie v. State, 421 S.W.3d 111, 114 (Tex. App.—Waco, 2013, pet. ref’d) (citing San Miguel v. State, 864 S.W.2d 493 , 495–96 (Tex. Crim.

2016Johnson v. State, 452 S.W.3d 398, 407 (Tex. App.—Amarillo 2014, pet. refused).

2022See Johnson v. State, 452 S.W.3d 398, 407 (Tex. App.—Amarillo 2014, pet. ref.) (citing Arabie v. State, 421 S.W.3d 111, 114 (Tex. App.—Waco, 2013, pet. ref’d) (citing San Miguel v. State, 864 S.W.2d 493 , 495–96 (Tex. Crim.

2013San Miguel v. State, 864 S.W.2d 493, 495-496 (Tex.Crim.App.1993) (temporary insanity); cf. Coble v. State, 871 S.W.2d 192, 202 (Tex.Crim.App.1993) (insanity); Ferrel v. State, 55 S.W.3d 586, 591 (Tex.Crim.App.2001) (self-defense).

2016See Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 862 (Tex.2009) (noting instruction is proper if it assists jury, accurately states law and finds support in pleadings and evidence).

2015See Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 862 (Tex. 2009) (instruction is proper if it assists jury, accurately states law and finds support in pleadings and evidence).

2015Although briefed and argued to the Fourth Court of Appeals, the Fourth Court of Appeals should have followed the example of Cornett v. State, 405 S.W.3d 752, 754-756 (Tex.App.-Houston [1st Dist.] 2013, pet. ref’d).

2015Although briefed and argued to the Fourth Court of Appeals, the Fourth Court of Appeals should have followed the example of Cornett v. State, 405 S.W.3d 752, 754-756 (Tex.App.-Houston [1st Dist.] 2013, pet. ref’d).

2013The often stated standard for giving any defensive-type instruction is “An accused is entitled to an instruction on every defensive or mitigating issue raised by the evidence... regardless of whether the evidence is strong or weak, unimpeached or contradicted and regardless of whatever the trial judge may think about the credibility of the evidence.” Arnold v. State, 742 S.W.2d 10,13 (Tex.Crim.App.1987) (temporary insanity).

2013The often stated standard for giving any defensive-type instruction is “An accused is entitled to an instruction on every defensive or mitigating issue raised by the evidence… regardless of whether the evidence is strong or weak, unimpeached or contradicted and regardless of whatever the trial judge may think about the credibility Arabie v. State Page 4 of the evidence.” Arnold v. State, 742 S.W.2d 10, 13 (Tex. Crim.

2013Taylor v. State, 885 S.W.2d 154, 156 (Tex.Crim.App.1994).

2013Taylor v. State, 885 S.W.2d 154, 156 (Tex. Crim.

2012See Abdul-Kabir v. Quarterman, 550 U.S. 233 , 254 n.14 (2007) (“Special instruction is not required when mitigating evidence has only a tenuous connection—some arguable relevance—to the defendant’s moral culpability.”) (internal citations omitted); Ex parte Smith, 309 S.W.3d 53, 56 (Tex. Crim.

2012See Abdul-Kabir v. Quarterman , 550 U.S. 233 , 254 n.14 (2007) (" Special instruction is not required when mitigating evidence has only a tenuous connection-- some arguable relevance--to the defendant's moral culpability.") (internal citations omitted) ; Ex parte Smith , 309 S.W.3d 53, 56 (Tex. Crim.

2012See, e.g., Abdul-Kabir, 550 U.S. at 261 (distinguishing universally mitigating circumstances, which do not necessarily require a separate mitigation instruction, from “particularized” experiences of childhood abuse and neglect, which do); Jurek v. Texas, 428 U.S. 262, 272 (1976) (constitutionality of Texas’s special issues “turns on whether the enumerated questions allow consideration of particularized mitigating factors”).

2012See , e.g. , Abdul-Kabir , 550 U.S. at 261 (distinguishing universally mitigating circumstances, which do not necessarily require a separate mitigation instruction, from "particularized" experiences of childhood abuse and neglect, which do); Jurek v. Texas , 428 U.S. 262, 272 (1976) (constitutionality of Texas's special issues "turns on whether the enumerated questions allow consideration of particularized mitigating factors").

2012See Abdul-Kabir, 550 U.S. at 259 (“Evidence of childhood deprivation and lack of self-control did not rebut either deliberateness or future dangerousness but was intended to provide the jury with an entirely different reason for not imposing a death sentence”); Ex parte Moreno, 245 S.W.3d 419, 426 (Tex. Crim.

2012See Abdul-Kabir , 550 U.S. at 259 ("E vidence of childhood deprivation and lack of self-control did not rebut either deliberateness or future dangerousness but was intended to provide the jury with an entirely different reason for not imposing a death sentence" ); Ex parte Moreno , 245 S.W.3d 419, 426 (Tex. Crim.

2013In points of error forty-two and forty-three Appellant complains that the Texas death-penalty scheme is unconstitutional under United States Supreme Court precedent because the mitigation special issue is "nothing more than a nullification issue . . . ." Appellant does not cite any authority or to argue why the mitigation instruction in his case had the same affect as the nullification instruction at issue in Smith v. Texas , 543 U.S. 37 (2004).

2013In points of error forty-two and forty-three Appellant complains that the Texas death-penalty scheme is unconstitutional under United States Supreme Court precedent because the mitigation special issue is “nothing more than a nullification issue . . . .” Appellant does not cite any authority or to argue why the mitigation instruction in his case had the same affect as the nullification instruction at issue in Smith v. Texas, 543 U.S. 37 (2004).

2024Lopez, 544 S.W.3d at 503 .

2018App. 2006) (“All of [the] evidence establishes that [the defendant] was indeed aware of the wrongfulness of his conduct; thus, a mitigation instruction would not have been supported by the evidence.”); Lopez v. State, 544 S.W.3d 499, 504 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (stating that a voluntary intoxication instruction “is not warranted unless a 5 defendant shows that his intoxication prevented him from understanding that his conduct was wrong”).

2019See id. § 8.04(b), (c); Martinez v. State, 17 S.W.3d 677 , 691 & n.14 (Tex. Crim.

2018Tex. Penal Code § 8.04(b), (c) ; see also Martinez v. State , 17 S.W.3d 677 , 691-92 & n.14 (Tex. Crim.