nullification instruction in Texas

2015The nullification instruction given to applicant’s jury was very similar to the instruction at issue in Penry v. Johnson, 532 U.S. 782, 790 (2001) (Penry II) (“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.”).

2010Analysis The applicant now claims that he is entitled to relief “because he presented significant mitigating evidence related to his moral culpability and the appropriateness of a death sentence that could not be given full effect by the sentencing jury.”30 The applicant specifically cites the following mitigating evidence: 25 Id., at 412 . 26 Id., at 413 (citing Abdul-Kabir, 550 U.S., at 253 n.14). 27 Id., at 414 (quoting Abdul-Kabir, 550 U.S., at 261 ). 28 Id., at 414. 29 Id. 30 The State agrees that we may consider the merits of this subsequent application in light of the new law announced

2007See Ex parte Gardner, 959 S.W.2d 189, 198-199 (Tex.Crim.App. 1998)(op. on reh'g). [43] Penry II, 532 U.S. at 799-800 , 121 S.Ct. 1910 (citation omitted). [44] Smith I, 132 S.W.3d at 416 . [45] Smith, 543 U.S. at 46 , 125 S.Ct. 400 (emphasis added). [46] See Ex parte Staley, 160 S.W.3d 56, 63-64 (Tex.Crim.App.2005)(claim can be dismissed under § 5 if Court determines, substantively, that defendant's allegations do not fall within the umbrella of the new legal claim). [47] In fact, had applicant raised the nullification claim in his second application, he would likely have received consideration

1995Additionally, we have recently held that a trial court does not err in giving a nullification instruction rather than a separate special issue. 13 Robertson v. State, 871 S.W.2d 701, 710-711 (Tex.Crim.

2002See, e.g., Crease v. McKune, 189 F.3d 1188, 1194 (10th Cir.1999) (holding defendant not entitled to jury nullification instruction where ex parte communication had occurred between the judge and a juror); United States v. Funches, 135 F.3d 1405, 1409 (11th Cir.1998) (holding, in a case for wrongful possession of a firearm, “[bjecause the jury enjoys no right to nullify criminal laws, and the defendant enjoys a right to neither a nullification instruction nor a nullification argument to the jury, the potential for nullification is no basis for admitting otherwise irrelevant evidence”); United S

2002See, e.g. , Crease v. McKune , 189 F.3d 1188, 1194 (10th Cir. 1999) (holding defendant not entitled to jury nullification instruction where ex parte communication had occurred between the judge and a juror); United States v. Funches , 135 F.3d 1405,1409 (11th Cir. 1998) (holding, in a case for wrongful possession of a firearm, "[b]ecause the jury enjoys no right to nullify criminal laws, and the defendant enjoys a right to neither a nullification instruction nor a nullification argument to the jury, the potential for nullification is no basis for admitting otherwise irrelevant evidence"); Unit

2002See, e.g., Crease v. McKune, 189 F.3d 1188, 1194 (10th Cir.1999) (holding defendant not entitled to jury nullification instruction where ex parte communication had occurred between the judge and a juror); United States v. Funches, 135 F.3d 1405, 1409 (11th Cir.1998) (holding, in a case for wrongful possession of a firearm, “[bjecause the jury enjoys no right to nullify criminal laws, and the defendant enjoys a right to neither a nullification instruction nor a nullification argument to the jury, the potential for nullification is no basis for admitting otherwise irrelevant evidence”); United S

2002See, e.g. , Crease v. McKune , 189 F.3d 1188, 1194 (10th Cir. 1999) (holding defendant not entitled to jury nullification instruction where ex parte communication had occurred between the judge and a juror); United States v. Funches , 135 F.3d 1405,1409 (11th Cir. 1998) (holding, in a case for wrongful possession of a firearm, "[b]ecause the jury enjoys no right to nullify criminal laws, and the defendant enjoys a right to neither a nullification instruction nor a nullification argument to the jury, the potential for nullification is no basis for admitting otherwise irrelevant evidence"); Unit

2002See, e.g., Crease v. McKune, 189 F.3d 1188, 1194 (10th Cir.1999) (holding defendant not entitled to jury nullification instruction where ex parte communication had occurred between the judge and a juror); United States v. Funches, 135 F.3d 1405, 1409 (11th Cir.1998) (holding, in a case for wrongful possession of a firearm, “[bjecause the jury enjoys no right to nullify criminal laws, and the defendant enjoys a right to neither a nullification instruction nor a nullification argument to the jury, the potential for nullification is no basis for admitting otherwise irrelevant evidence”); United S

2002See, e.g. , Crease v. McKune , 189 F.3d 1188, 1194 (10th Cir. 1999) (holding defendant not entitled to jury nullification instruction where ex parte communication had occurred between the judge and a juror); United States v. Funches , 135 F.3d 1405,1409 (11th Cir. 1998) (holding, in a case for wrongful possession of a firearm, "[b]ecause the jury enjoys no right to nullify criminal laws, and the defendant enjoys a right to neither a nullification instruction nor a nullification argument to the jury, the potential for nullification is no basis for admitting otherwise irrelevant evidence"); Unit

2008This is, in fact, the entirety of the State's discussion of the legal significance of the fact that the applicant asked for a nullification instruction at trial. [40] E.g., Williams v. State, 630 S.W.2d 640, 643 (Tex.Crim.App. 1982); Stone v. State, 703 S.W.2d 652, 655 (Tex.Crim.App. 1986); Chapman v. State, 921 S.W.2d 694, 695 (Tex.Crim.

2008E.g., Williams v. State, 630 S.W.2d 640, 643 (Tex.Crim.App.1982); Stone v. State, 703 S.W.2d 652, 655 (Tex.Crim.App.1986); Chapman v. State, 921 S.W.2d 694, 695 (Tex.Crim.App.1996); Francis v. State, 36 S.W.3d 121, 123 (Tex.Crim.App.2000). .

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).

2010The applicant alleges that before the trial, he objected to former Article 37.071 of the Code of Criminal Procedure as “den[ying] the Defendant protection from cruel and unusual punishment,” specifically because the statutorily mandated special issues did not allow jurors to answer “the life or 51 Laroyce Smith v. Texas, 550 U.S. 297, 313-14 (2007) (Laroyce Smith II) (finding constitutional error in the special issues and error preserved upon objection to the special issues, despite lack of objection to the nullification instruction). 52 T EX .

2010Laroyce Smith v. Texas , 550 U.S. 297, 313-14 (2007) ( Laroyce Smith II ) (finding constitutional error in the special issues and error preserved upon objection to the special issues, despite lack of objection to the nullification instruction). 52.

2009Robinson v. California, 370 U.S. 660, 666 (1962).

2009Robinson v. California , 370 U.S. 660, 666 (1962).

2006See Liguori, 430 F.2d at 847 .

2006See Liguori, 430 F.2d at 847 .

2006See Taylor v. State, 939 S.W.2d 148, 154-55 (Tex.Crim.App.1996) (grounds of objection, while imprecise, were apparent from the context).

2006See Taylor v. State, 939 S.W.2d 148, 154-55 (Tex.Crim.App.1996) (grounds of objection, while imprecise, were apparent from the context).

1995If 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 that special issue under consideration." We have already held that a nullification instruction such as this one is sufficient to meet the constitutional requirements of Penry , supra. See Coble v. State, 871 S.W.2d 192, 206-207 (Tex.Cr.App.1993), cert. denied, ___ U.S. ___, 115 S.Ct. 101 , 130

1995If 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 that special issue under consideration.” We have already held that a nullification instruction such as this one is sufficient to meet the constitutional requirements of Penry, supra. See Coble v. State, 871 S.W.2d 192, 206-207 (Tex.Cr.App.1993), cert. denied, — U.S. —, 115 S.Ct. 101 , 130 L.Ed.

1995If 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 that special issue under consideration." We have already held that a nullification instruction such as this one is sufficient to meet the constitutional requirements of Penry , supra. See Coble v. State, 871 S.W.2d 192, 206-207 (Tex.Cr.App.1993), cert. denied, ___ U.S. ___, 115 S.Ct. 101 , 130

1995If 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 that special issue under consideration.” We have already held that a nullification instruction such as this one is sufficient to meet the constitutional requirements of Penry, supra. See Coble v. State, 871 S.W.2d 192, 206-207 (Tex.Cr.App.1993), cert. denied, — U.S. —, 115 S.Ct. 101 , 130 L.Ed.

2007See Ex parte Gardner, 959 S.W.2d 189, 198-199 (Tex.Crim.App. 1998)(op. on reh'g). [43] Penry II, 532 U.S. at 799-800 , 121 S.Ct. 1910 (citation omitted). [44] Smith I, 132 S.W.3d at 416 . [45] Smith, 543 U.S. at 46 , 125 S.Ct. 400 (emphasis added). [46] See Ex parte Staley, 160 S.W.3d 56, 63-64 (Tex.Crim.App.2005)(claim can be dismissed under § 5 if Court determines, substantively, that defendant's allegations do not fall within the umbrella of the new legal claim). [47] In fact, had applicant raised the nullification claim in his second application, he would likely have received consideration

2007See Ex parte Gardner, 959 S.W.2d 189, 198-199 (Tex.Crim.App. 1998)(op. on reh'g). [43] Penry II, 532 U.S. at 799-800 , 121 S.Ct. 1910 (citation omitted). [44] Smith I, 132 S.W.3d at 416 . [45] Smith, 543 U.S. at 46 , 125 S.Ct. 400 (emphasis added). [46] See Ex parte Staley, 160 S.W.3d 56, 63-64 (Tex.Crim.App.2005)(claim can be dismissed under § 5 if Court determines, substantively, that defendant's allegations do not fall within the umbrella of the new legal claim). [47] In fact, had applicant raised the nullification claim in his second application, he would likely have received consideration

2010Just one month earlier, in April of 2004, we delivered our opinion in Ex parte Smith, 132 S.W.3d 407 (Tex.Crim.App.2004), in which we held that (1) the defendant’s troubled childhood and somewhat limited ability did not qualify as constitutionally significant Pemy evidence such that it required any special instruction as a vehicle for the jury to give it mitigating effect; and (2) the nullification instruction was a sufficient vehicle to accord full weight to his mitigating evidence.

2010Just one month earlier, in April of 2004, we delivered our opinion in Ex parte Smith, 132 S.W.3d 407 (Tex.Crim.App.2004), in which we held that (1) the defendant's troubled childhood and somewhat limited ability did not qualify as constitutionally significant Penry evidence such that it required any special instruction as a vehicle for the jury to give it mitigating effect; and (2) the nullification instruction was a sufficient vehicle to accord full weight to his mitigating evidence.

2015See Penry II, 532 U.S. at 803–04; Ex parte Martinez, 233 S.W.3d 319 , 323–24 (Tex. Crim.

2008See Ex parte Martinez , 233 S.W.3d 319 , 322 -323 (Tex. Crim.

2007See Ex parte Gardner, 959 S.W.2d 189, 198-199 (Tex.Crim.App. 1998)(op. on reh'g). [43] Penry II, 532 U.S. at 799-800 , 121 S.Ct. 1910 (citation omitted). [44] Smith I, 132 S.W.3d at 416 . [45] Smith, 543 U.S. at 46 , 125 S.Ct. 400 (emphasis added). [46] See Ex parte Staley, 160 S.W.3d 56, 63-64 (Tex.Crim.App.2005)(claim can be dismissed under § 5 if Court determines, substantively, that defendant's allegations do not fall within the umbrella of the new legal claim). [47] In fact, had applicant raised the nullification claim in his second application, he would likely have received consideration

1995Rodriguez v. State, 899 S.W.2d 658, 664 (Tex.Crim.App.1995); Smith v. State, 898 S.W.2d 838, 854 (Tex.Crim.App.1995); Robertson v. State, 871 S.W.2d 701, 710-11 (Tex.Crim.App.1993), cer t. denied, — U.S. —, 115 S.Ct. 155 , 130 L.Ed.2d 94 (1994).

2007See Ex parte Gardner, 959 S.W.2d 189, 198-199 (Tex.Crim.App. 1998)(op. on reh'g). [43] Penry II, 532 U.S. at 799-800 , 121 S.Ct. 1910 (citation omitted). [44] Smith I, 132 S.W.3d at 416 . [45] Smith, 543 U.S. at 46 , 125 S.Ct. 400 (emphasis added). [46] See Ex parte Staley, 160 S.W.3d 56, 63-64 (Tex.Crim.App.2005)(claim can be dismissed under § 5 if Court determines, substantively, that defendant's allegations do not fall within the umbrella of the new legal claim). [47] In fact, had applicant raised the nullification claim in his second application, he would likely have received consideration

1995Rodriguez v. State, 899 S.W.2d 658, 664 (Tex.Crim.App.1995); Smith v. State, 898 S.W.2d 838, 854 (Tex.Crim.App.1995); Robertson v. State, 871 S.W.2d 701, 710-11 (Tex.Crim.App.1993), cer t. denied, — U.S. —, 115 S.Ct. 155 , 130 L.Ed.2d 94 (1994).

1995The nullification instruction given was identical to that given in Fuller v. State, 829 S.W.2d 191 , 209 n. 5 (1992), cert. denied, — U.S. —, 113 S.Ct. 2418 , 124 L.Ed.2d 640 (1993).

1995The nullification instruction given was identical to that given in Fuller v. State, 829 S.W.2d 191 , 209 n. 5 (1992), cert. denied, ___ U.S.___, 113 S.Ct. 2418 , 124 L.Ed.2d 640 (1993).

2008This is, in fact, the entirety of the State's discussion of the legal significance of the fact that the applicant asked for a nullification instruction at trial. [40] E.g., Williams v. State, 630 S.W.2d 640, 643 (Tex.Crim.App. 1982); Stone v. State, 703 S.W.2d 652, 655 (Tex.Crim.App. 1986); Chapman v. State, 921 S.W.2d 694, 695 (Tex.Crim.

2008E.g., Williams v. State, 630 S.W.2d 640, 643 (Tex.Crim.App.1982); Stone v. State, 703 S.W.2d 652, 655 (Tex.Crim.App.1986); Chapman v. State, 921 S.W.2d 694, 695 (Tex.Crim.App.1996); Francis v. State, 36 S.W.3d 121, 123 (Tex.Crim.App.2000). .

2008App.1996); Francis v. State, 36 S.W.3d 121, 123 (Tex.Crim.App.2000). [41] Applicant's Brief, at 20-23.

2008E.g., Williams v. State, 630 S.W.2d 640, 643 (Tex.Crim.App.1982); Stone v. State, 703 S.W.2d 652, 655 (Tex.Crim.App.1986); Chapman v. State, 921 S.W.2d 694, 695 (Tex.Crim.App.1996); Francis v. State, 36 S.W.3d 121, 123 (Tex.Crim.App.2000). .

2008This is, in fact, the entirety of the State's discussion of the legal significance of the fact that the applicant asked for a nullification instruction at trial. [40] E.g., Williams v. State, 630 S.W.2d 640, 643 (Tex.Crim.App. 1982); Stone v. State, 703 S.W.2d 652, 655 (Tex.Crim.App. 1986); Chapman v. State, 921 S.W.2d 694, 695 (Tex.Crim.

2008E.g., Williams v. State, 630 S.W.2d 640, 643 (Tex.Crim.App.1982); Stone v. State, 703 S.W.2d 652, 655 (Tex.Crim.App.1986); Chapman v. State, 921 S.W.2d 694, 695 (Tex.Crim.App.1996); Francis v. State, 36 S.W.3d 121, 123 (Tex.Crim.App.2000). .