Wednesday, February 25, 2009
Media Advisory: Kenneth Morris Scheduled For Execution

AUSTIN – Texas Attorney General Greg Abbott offers the following information about Kenneth Wayne Morris, who is scheduled to be executed after 6 p.m. on Wednesday, March 4, 2009, for the murder of James Moody Adams. The evidence presented at trial is as follows.

FACTS OF THE CRIME

On the early morning hours of May 1, 1991, Morris and two accomplices kicked in the front door of the Houston home of James and Marcena Adams. The three of them began looking for guns that they thought would be there. The noise awakened the Adams, and Mr. Adams got up and left the bedroom to investigate. He confronted the invaders who demanded guns. Mr. Adams told them there were no guns, so one of the accomplices demanded money.

Adams gave the men several hundred dollars bills from his wallet. Morris later stated that at that point, Mr. Adams looked at them, even though they had told him not to, and when Mr. Adams saw one of the accomplices, he appeared to recognize him; the accomplice then told Morris, “Shoot him, shoot him.”

Mrs. Adams testified that while hiding in the bedroom closet, she heard her husband say simply, “Oh, no!” and then heard four shots. The bullets struck Adams in the face, neck and back. He fell into the closet at his wife’s feet, and she heard him die.

She then heard either Morris or one of his accomplices say to the other, “Let’s get out of here.” They rushed out, leaving behind the trash bags they had brought to bundle up whatever property they stole.

A latent print on one of the trash bags recovered from the Adams’residence belonged to one of the accomplices, who was arrested, as a result. The accomplice gave a statement implicating Morris and a third man. Morris was arrested on May 13, 1991, in Brenham. Once in custody, Morris confessed orally and in writing. The written statement was introduced at trial. Police also recovered the murder weapon, a .32 caliber revolver.

PROCEDURAL HISTORY

A Harris County grand jury indicted Morris on Aug. 20, 1991, for the capital murder of James Adams. On Dec. 3, 1993, a jury found Morris guilty of capital murder, and on Dec. 8, 1993, the trial court sentenced Morris to death after a separate sentencing hearing.

Morris appealed to the Texas Court of Criminal Appeals, which affirmed the conviction and sentence on September 11, 1996. Morris sought a rehearing, which was denied January 8, 1997. Morris then filed in the U.S. Supreme Court a petition for writ of certiorari, which the court denied on June 16, 1997.

On March 26, 1998, Morris filed an application for writ of habeas corpus in the trial court. The trial court filed findings of fact and conclusions of law recommending that Morris be denied relief, and the Texas Court of Criminal Appeals adopted those findings and conclusions and denied relief on January 12, 2000.

Morris filed a federal habeas petition in a Houston U.S. district court on August 14, 2000. The district court denied relief on May 9, 2001. Morris then sought permission to appeal from the Fifth U.S. Circuit Court of Appeals, but the appellate court denied Morris permission on April 18, 2002.

The trial court scheduled Morris for execution on April 15, 2003. Just five days before his scheduled execution, Morris filed a successive state habeas application claiming for the first time to be mentally retarded and raising a constitutional challenge to his death sentence under Atkins v. Virginia. On April 14, 2003, based on the evidence presented, the Texas Court of Criminal Appeals found that Morris had failed to satisfy the requirements for being granted permission to file a successive state habeas application and dismissed his application as an abuse of the writ.

However, on April 15, 2003, Morris received permission from the Fifth U.S. Circuit Court of Appeals to file a successive federal habeas corpus petition and was granted a stay of execution. Morris returned to federal district court, but presented new and different evidence to support his mental retardation claim. On December 5, 2003, the federal district court dismissed Morris’s petition without prejudice to give the state courts the first opportunity to address his new evidence. Morris requested permission to appeal this ruling, and on July 21, 2004, the Fifth Circuit Court granted Morris’s request. After oral arguments on June 16, 2005, the Fifth Circuit Court vacated the district court’s decision and remanded for an evidentiary hearing regarding Morris’s mental retardation claim.

On remand, the district court held a four-day evidentiary hearing. On February 2, 2007, the magistrate determined that Morris was not mentally retarded and recommended that Morris’s successive petition be denied. On March 2, 2007, the district judge adopted the magistrate’s recommendation and denied Morris’s petition. The Fifth Circuit Court upheld that determination on appeal on April 17, 2008. Morris then filed a petition for writ of certiorari in the U.S. Supreme Court, but the Court denied Morris certiorari review on October 6, 2008.

EVIDENCE OF FUTURE DANGEROUSNESS

At trial, the State presented the testimony of various witnesses including testimony regarding Morris’s extensive criminal activity prior to Mr. Adams’s murder, an aggravated robbery car jacking that occurred eight days after the Adams murder, and numerous post-arrest infractions.

Evidence of Morris’s prior criminal record demonstrated an incapacity to conform his conduct to the requirements of law, despite numerous second chances and opportunities to reform, and a tendency to progress to more serious crimes of violence. Morris’s criminal history began with a misdemeanor theft conviction on March 8, 1989, when he was eighteen years of age. From that point, Morris’s activities escalated, turning aside repeated chances at rehabilitation.

Morris’s next crime came less than a year later, when he committed a burglary on February 15, 1990. He was convicted on a plea of guilty on July 3, 1990, and sent to a boot camp program for youthful offenders. On his return from boot camp, his sentence was suspended and he was granted ten-years probation. He failed to report to his probation officer on three occasions.

On November 28, 1990, Morris telephoned his probation officer and said there was no point in reporting because he was going to be arrested anyway. The next time his probation officer heard of him was after Morris was arrested again.

On January 24, 1991, just over six months into his punishment for the burglary of a habitation charge, Morris was convicted for misdemeanor possession of marijuana, for which he served thirty days in jail. A motion to revoke Morris’s probation was filed in connection with that charge and for other violations of his probation, including failure to report, changing his residence without notifying his probation officer, not paying restitution and supervisory fees and court costs, and not participating in community service. The judge decided, however, to give Morris another chance, and that motion to revoke was dismissed.

After that first motion to revoke was dismissed, Morris was supposed to report to his new probation officer twice a month, but he never did. Morris also failed to wear an electronic monitoring bracelet, as the court had ordered him to do, and failed to enroll in community service. After Morris’s third consecutive failure to report, his new probation officer wrote up a new motion to revoke his probation, and submitted it to the court on March 21, 1991. This time, Morris’s probation was revoked on May 30, 1991, and he received a sentence of ten years in prison.

While the new motion to revoke Morris’s probation was pending, and while the Houston police were searching for him in connection with the capital murder of Mr. Adams, on May 9, 1991, Morris committed another aggravated robbery, this time stealing a Mercedes Benz automobile at gunpoint from a teenager at a service station near Jersey Village, a Houston suburb. The following day, the car was found abandoned; it had been stripped.

Since his incarceration, Morris has committed disciplinary violations that endangered both his jailers and his fellow inmates, including assaulting a jailer, assaulting another inmate, creating a disturbance by screaming and pounding in the middle of the night, and possessing a razor blade removed from a disposable razor.

Houston Chronicle

"Killer executed on his 38th birthday; After requesting cake for his last meal, Kenneth Morris is put to death for Houston man's 1991 slaying," by Allan Turner. (March 5, 2009)

HUNTSVILLE — It wasn’t much of a 38th birthday celebration, but Houston murderer Kenneth Wayne Morris ordered white cake with lemon icing for his last meal Wednesday. Then he was escorted to the death chamber.

Convicted of the 1991 robbery-murder of retired Houston paint company owner James Moody Adams, Morris was the second killer executed this week, the 10th this year. Former state District Judge Caprice Cosper said the setting of Morris’ execution on his birthday was a coincidence. As two of Morris’ female friends, one of whom recently married him by proxy, and four members of his victim’s family filed into witness rooms, the killer lay on the gurney with eyes closed. “Can they hear me?” he asked, turning his head toward the room occupied by his friends. “I love you.” Then, turning his eyes to Adams’ relatives, he said, “I want to say that I’m sorry for the pain I might have caused you and your family. I carry nothing but love in my heart. I pray that one day you can forgive me.” Stifling tears, he addressed Warden Charles O’Reilly, “I’m ready to go home.” Turning again to his friends, he said, “Bye, Baby. I’ll always be with you.” The lethal drugs were administered at 6:08 p.m. Morris was declared dead eight minutes later. “I’ll cry when he’s in my arms, not now,” Donna Lounton, Morris’ wife, said as the drugs were administered. “I’ve never been a widow so quick in my life.” ‘It was just’ In a post-execution news conference, Jimmy Adams, the victim’s son, described Wednesday as “a sad day.” “We lost a wonderful man. James Moody Adams was our dad. He was a good, humble, giving, kind man,” he said. “… It was sad to see the loss of that other family’s experiencing today. I think we forgave him a long time ago. But the consequences still had to be carried out. It was just.” Another son, Kent Adams, said his family witnessed the execution out of a sense of duty. “We all wanted to be here to honor our parents,” he said.

Court records indicated the 63-year-old victim and his wife, Marcene, were awakened early on the morning of May 1, 1991, by a loud noise. As James Adams left his bedroom to investigate, he was accosted by Morris and two accomplices, Orlena Ayers and Christopher Montez, who demanded guns. Adams told the robbers he owned no firearms and offered them $1,800 in cash. Morris took the money and shot him four times. Morris contended the gun accidentally discharged when one of his accomplices bumped him.

Ayers and Montez were sentenced to lengthy prison terms. Jimmy Adams on Wednesday said he believes both should have been sentenced to death.

In an eleventh-hour effort to save their client’s life, Morris’ Texas Defender Service attorneys filed appeals claiming the Harris County District Attorney’s Office unconstitutionally prosecuted Morris because he was black. The Texas Court of Criminal Appeals and the U.S. Supreme Court rejected the appeals.

ProDeathPenalty.com

Kenneth Wayne Morris was sentenced to die for the 1991 robbery and murder in a residential robbery where the founder of Houston's Northwest Academy, James Moody Adams, was shot to death. Morris shot Adams four times after he and two accomplices kicked in the door of his house and robbed him at gunpoint. Orlena Ayers was sentenced to life in prison for his role.

Prosecutor Debbie Mantooth said Ayers and his co-defendants, Chris Montez and Kenneth Morris, burst into the Adams home at 5002 Happy Hollow on May 1, 1991, in search of guns. But they got only $400 in cash, Mantooth said, and Jim Adams, a retired paint company owner, was killed by four .32-caliber gunshots to the head, neck and back. Jim's wife, Marcene, was hiding in a nearby closet during the episode. Police subsequently found Montez's fingerprint on a trash bag in the home. Montez, Ayers' cousin, testified for the state at the trial. Montez was charged with robbery.

UPDATE: Condemned killer Kenneth Wayne Morris won a reprieve from a federal appeals court that spared him from a trip to the Texas death chamber about two hours before he could have been executed today for the fatal shooting of a Houston man during a burglary 12 years ago. The execution of Morris, 32, a 9th-grade dropout with a history of theft and burglary, was stopped with an order from 5th U.S. Circuit Court of Appeals in New Orleans.

In its order, the appeals court gave Morris' lawyers permission to file additional legal actions in a lower federal court based on a U.S. Supreme Court ruling last year that barred execution of mentally retarded people. Morris' attorneys had argued in their last-ditch appeals that the inmate was mentally retarded and should not be put to death.

Morris was identified as the gunman in a 3-man gang that broke into the home of a 63-year-old man because they thought he had a gun collection. James Moody Adams, however, had no weapons and was shot 4 times after he surrendered the money in his wallet. His terrified wife hid in a closet behind some clothes.

Morris's record included convictions for burglary, theft and marijuana possession while on parole. Morris was 20 and on probation at the time of the May 1, 1991, attack. He was arrested 12 days later and after he pulled another robbery at a gas station. Two companions received long prison terms for their participation in the slaying of Adams, who built a successful paint company and later founded a private Houston school.

"We think (Morris) has made a sufficient showing of likelihood of success on the merits that the public interest would be served by granting the stay," a 3-judge panel of the court said in a 5-page ruling. In a concurring opinion, Judge Patrick Higinbotham noted there was no IQ test in evidence to determine whether Morris was mentally retarded. "It is difficult to make informed judgments without the development of the facts in some form of hearing," he said.

Prosecutors had argued Morris' defense experts at his trial did not think he was retarded but Morris never was tested. And he said although school records did use the term retarded, "that is not worth much, given the wide practice of social promotions and the reluctance of school officials' use of the stigmatizing term 'retarded.'" "I never thought I was retarded," Morris, whose tattoos on his arms included pictures of marijuana and the word "Gangsta" in large Gothic letters down the back of his right arm, said last week on death row. "People have said I was. When I went to court, they said I was mentally slow. I'm not a bad person," he added. "I accept responsibility. But I was on drugs. It's unfortunate it had to happen this way."

Roe Wilson, who handles capital appeals for the Harris County district attorney's office, said she was surprised by the reprieve "based on lack of evidence presented that he was mentally retarded. Basically, the court is just giving them more time to try to look for something," she said. Morris already been moved from the Texas Department of Criminal Justice Polunsky Unit outside Livingston, where death row inmates are housed, to the Huntsville Unit, about 45 miles to the west, where executions are carried out. When word of the reprieve reached the prison, he immediately was returned to death row.

Prosecutors said Morris and his cohorts had became disoriented in the middle of the night and selected Adams' house in error. "Nobody was supposed to be there," said Morris, an unmarried father of two who used the cash from the Adams robbery to buy drugs and new clothes. At his trial, Marcene Adams testified how she could hear the conversation, how her husband moved to the closet to get his billfold and turn over the money. Then she heard the click of the hammer of a gun being pulled back, listened as her husband exclaimed "Oh, no!" and then heard the weapon discharge twice. Shot in the head and neck, Adams fell into the closet, then was shot twice more in the back. As the robbers fled, his wife had to step over his body to run outside and call for help.

She and 2 sons were scheduled to watch Morris die Tuesday. Morris did not testify, but his version of what happened differed. As he held a gun on Adams standing half in the closet and half in the hallway, one of his partners came running down the hallway and bumped him, Morris said last week. "The gun went off," he said. "As (Adams) fell, I turned to run and fired two more times in the closet. I didn't aim at him or anything. It all happened so quick. I had no intentions of killing nobody." The trio left behind garbage bags they intended to use to carry off loot. Police found a fingerprint on one of the bags and arrested Christopher Montez, then 18, who identified Morris as an accomplice. The third man, Montez's cousin Orlena Ayers, then 20, turned himself in. Montez and Ayers each received long prison terms. Morris got a death sentence. UPDATE: Prior to his execution, Kenneth Morris apologized to family members of the victim, who witnessed the execution. "I'm sorry for all the pain I might have caused you and your family. I carry nothing but love in my heart. I pray one day y'all can forgive me." Morris then looked toward two female friends and expressed his love to them, saying "I'm ready to go home." Then he grinned and mouthed a kiss to the women, saying: "I'll always be with you." As the drugs began taking effect, Morris turned again toward the victim's relatives and said, "I really am sorry." In a post-execution news conference, Jimmy Adams, the victim’s son, described Wednesday as “a sad day.” “We lost a wonderful man. James Moody Adams was our dad. He was a good, humble, giving, kind man,” he said. “… It was sad to see the loss of that other family’s experiencing today. I think we forgave him a long time ago. But the consequences still had to be carried out. It was just.” Another son, Kent Adams, said his family witnessed the execution out of a sense of duty. “We all wanted to be here to honor our parents,” he said.

Morris v. State, 940 S.W.2d 610 (Tex.Cr.App. 1996) (Direct Appeal).

Defendant was convicted by 339th District Court, Harris County, Caprice Cosper, J., jury of capital murder and was sentenced to death. On direct appeal, the Court of Criminal Appeals, Keller, J., held that: (1) denial of defendant's Batson challenge to peremptory juror strike was not clearly erroneous; (2) failure to inform jury of minimum time defendant would serve if sentenced to life was irrelevant to future dangerousness, and furthermore did not violate Federal or Texas Constitution; (3) defendant did not have right to present as “mitigating evidence” the fact that state did not seek death penalty against two codefendants; (4) special issue of mitigation does not violate Eighth Amendment on basis of assigning no burden of proof or allowing jury excessive discretion; and (5) due process did not require appellate review of whether death sentence was disproportionate to sentences in other capital cases. Affirmed.

KELLER, Judge.

In December of 1993, appellant was convicted of capital murder under Texas Penal Code 19.03(a)(2). The offense, the murder of James Moody Adams in the course of robbery, was committed in May of 1991. The trial court submitted to the jury the special issues set out in Article 37.0711, subsections 3(b)(1), (2) and (3)(e) of the Texas Code of Criminal Procedure. FN1 In accordance with the jury's answers to those issues, the trial court assessed the appellant's punishment at death. Article 37.0711(3)(j) provides direct appeal to this Court. Appellant raises nineteen points of error. We will affirm.

FN1. All references to Articles are to the Texas Code of Criminal Procedure unless otherwise provided.

1. BATSON CHALLENGE

In points of error one and two, appellant asserts that the trial court erred in overruling his objection to the State's peremptory challenge of prospective juror Robert Dreannan. Appellant contends that the challenge was racially motivated in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

We review the record of the Batson hearing and the voir dire examination in the light most favorable to the trial court's ruling. Adanandus v. State, 866 S.W.2d 210, 223 (Tex.Crim.App.1993); Cantu v. State, 842 S.W.2d 667, 689 (Tex.Crim.App.1992), cert. denied, 509 U.S. 926, 113 S.Ct. 3046, 125 L.Ed.2d 731 (1993). We will not disturb a trial court's ruling on a Batson issue unless it is clearly erroneous. Id.

On his jury questionnaire, venireman Dreannan indicated that he was strongly in favor of the death penalty. During voir dire however, he said he had spent a sleepless night worrying about his answer to that question. When asked whether youth would improperly factor into his consideration of the punishment issues, venireman Dreannan refused to answer:

Q: [A]re you saying that youth-you would never, never return a verdict that would cause a young person to be put to death? A: That's too hard of a question to ask. I'm not going on it because I have an 18-year-old son.

At the Batson hearing, the prosecutor said he thought venireman Dreannan had been deceptive in answering the youth question. The trial court noted for the record that its observations of Dreannan's demeanor were consistent with the prosecutor's explanation. She also commented that the prosecutor had seated a large number of blacks in a recently completed capital murder trial. The trial judge found the prosecutor's reasons to be racially neutral and denied the Batson challenge. According due deference to the decision of the trial court, we find that its decision was not clearly erroneous. Point of error one is overruled.

In point of error two, appellant claims the trial judge improperly based her ruling upon the absence of purposeful discrimination by this prosecutor in a separate criminal trial. A ruling on a Batson objection is a credibility determination. Because the trial judge determines the issue of the prosecutor's credibility, it is not error for the court to consider its past experiences with a prosecutor in determining his credibility. See Fowler v. State, 863 S.W.2d 187, 189 (Tex.App.-Houston [14th] 1993, pet. ref'd). Point two is overruled.

2. EFFECT OF PAROLE

In points of error three through eight, appellant asserts that the trial court erred in disallowing questions on voir dire concerning the minimum time a convicted capital murderer sentenced to life in prison must serve before he is eligible for parole. Appellant claims this information is relevant to the issue of future dangerousness. He further asserts that the trial court violated both the United States and Texas Constitutions in refusing to allow such questions on voir dire.

Appellant claims he should have been allowed to inform prospective jurors that if sentenced to life, he would serve a minimum of 15 years before becoming eligible for parole. He asserts that without this knowledge, jurors might entertain the mistaken belief that he would be released much earlier, and respond by handing down a sentence of death instead of life. Appellant contends in point of error three that knowledge of the parole law is therefore necessary to an accurate determination of future dangerousness.

This Court has held that parole is not a matter for a jury's consideration in a capital murder trial. Smith v. State, 898 S.W.2d 838, 846 (Tex.Crim.App.) (plurality opinion), cert. denied 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995); Broxton v. State, 909 S.W.2d 912, 919 (Tex.Crim.App.1995); Jones v. State, 843 S.W.2d 487, 495 (Tex.Crim.App.1992). As to future dangerousness, we have held that in deciding whether a defendant poses a continuing threat to society, a jury considers not only free society, but also prison society. Because the length of appellant's incarceration does not reduce or increase his future dangerousness, it is not relevant to that issue. Id at p. 495. Point of error three is overruled.

Appellant argues in points of error four and five that Due Process and the Eighth Amendment require that a jury be informed of his “parole ineligibility.” These issues have been resolved contrary to appellant's position. Smith, 898 S.W.2d at 853; Broxton, 909 S.W.2d at 919. Points of error four and five are overruled.

In points of error six through eight appellant claims the trial court's refusal to inform the jury about parole violated Article I, Sections 10, 13 and 19 of the Texas Constitution. Appellant points out that this Court can interpret the Texas Constitution more broadly than the Federal Constitution. See Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991). Appellant argues that the Texas Constitution guarantees a party the right to use his peremptory and for-cause challenges intelligently. As appellant points out, a voir dire question is proper if its purpose is to disclose a juror's views on an issue applicable to the case. See, e.g., Shipley v. State, 790 S.W.2d 604, 608 (Tex.Crim.App.1990). A Texas jury must determine future dangerousness. Parole ineligibility as it relates to future dangerousness is thus, appellant argues, a proper subject for voir dire.

As noted above, parole is not a matter for a jury's consideration in a capital murder trial. Broxton, 909 S.W.2d at 919. For this reason, parole ineligibility is not “an issue applicable to the case,” and questions about it are not proper questions. The Texas Constitution thus does not give an accused the right to ask prospective jurors in a capital murder trial questions regarding parole ineligibility. Points six through eight are overruled.

3. MITIGATING EVIDENCE

In point of error nine, appellant contends that the trial court erred in excluding evidence that the State chose not to seek the death penalty against his two co-defendants. Appellant claims his co-defendants' lighter punishment is constitutionally relevant mitigating evidence which should have been admitted during the punishment phase of trial.

Appellant argues that his personal culpability in the murder was equal or similar to that of his co-defendants who did not receive the death penalty. In response to this we must point out that appellant's role in the crime was not identical to his co-defendants' roles. The evidence shows that while three men were involved in the robbery, it was appellant who held the gun and shot the victim four times. In any case, it is possible for two people who have committed identical murders to receive different sentences based on differing degrees of mitigating character and background evidence.

Moreover, this Court has held that evidence of a co-defendant's conviction and punishment is not included among the mitigating circumstances which a defendant has a right to present. In Evans v. State, 656 S.W.2d 65, 67 (Tex.Crim.App.1983), we stated: “We do not see how the conviction and punishment of a co-defendant could mitigate appellant's culpability in the crime. Each defendant should be judged by his own conduct and participation and by his own circumstances.” Id.

Appellant relies upon Parker v. Dugger, 498 U.S. 308, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991), in which the United States Supreme Court recognized evidence that the defendant's accomplices were not sentenced to death as part of the mitigating evidence which was admitted at trial. However, Parker did not address whether evidence of disparate sentencing is mitigating evidence which must be considered under the standard set out in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). The punishment which appellant's co-defendants received relates neither to appellant's character, nor to his record, nor to the circumstances of the offense. Point of error nine is overruled.

4. SUFFICIENCY OF THE EVIDENCE

In point of error ten, appellant asserts that the evidence was insufficient to support the jury's negative finding on the mitigation issue. Because the weighing of mitigating evidence is a subjective determination undertaken by each juror, we will not review mitigating evidence for sufficiency. Colella v. State, 915 S.W.2d 834 (Tex.Crim.App.1995). Point of error ten is overruled.

5. THE SPECIAL ISSUES

In point of error nineteen, appellant claims the mitigation issue violates the Eighth Amendment to the United States Constitution because “meaningful appellate review of the jury's answer to that special issue is impossible.” We have recently decided this contention adversely to appellant's position. McFarland v. State, 928 S.W.2d 482 (Tex.Crim.App.1996) at 498-500 (Keller, J. concurring at 524-525). Point of error nineteen is overruled.

In point of error fourteen, appellant claims Article 37.0711(3)(e) is unconstitutional under the Eighth and Fourteenth Amendments to the United States Constitution. Specifically, appellant argues that the statute is unconstitutional because it assigns no burden of proof, burden of persuasion or standard of proof to the issue of mitigation. We have already held that the Eighth Amendment does not require that the State be assigned the burden of proof on Penry issues. Barnes v. State, 876 S.W.2d 316, 330 (Tex.Crim.App.), cert. denied, 513 U.S. 861, 115 S.Ct. 174, 130 L.Ed.2d 110 (1994). Because the Eighth Amendment does not require limitations on a jury's discretion to consider mitigating evidence, see McFarland, 928 S.W.2d at 518-519, the Constitution does not require a burden of proof to be placed upon anyone. Point of error fourteen is overruled.

Appellant complains in point of error thirteen that the mitigation issue violates the Eighth and Fourteenth Amendments to the United States Constitution because it “permits the open-ended discretion” condemned in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). However, the United States Supreme Court has held that allowing a jury the discretion to recommend mercy after considering mitigating evidence is not unconstitutional. Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 2947, 106 L.Ed.2d 256 (1989). Furthermore, we have recently decided this issue adversely to appellant's position. McFarland v. State, 928 S.W.2d at 520. Point of error thirteen is overruled.

In point of error twelve, appellant argues that the statutory definition of mitigating evidence is unconstitutional under the Eighth Amendment because it limits the jury's consideration of mitigating factors to those reflecting his “moral blameworthiness.” Appellant claims the statutory language prohibits consideration of mitigating evidence which has no bearing on moral culpability, such as a history of kindness, religious devotion or special ability in some field.

Appellant has presented no such evidence in his case. Appellant presented evidence of past abuse, mental illness, intoxication, drug addiction and remorse, all of which reflect upon the issue of moral blameworthiness. Appellant also presented evidence that he benefitted from the structured environment of a boot camp. This evidence pertains to the future dangerousness issue. Because appellant has not presented any evidence with mitigating impact beyond the scope of the special issues, he has not been sentenced to death in violation of the Eighth Amendment. Burks v. State, 876 S.W.2d 877, 910 (Tex.Crim.App.1994); Lane v. State 822 S.W.2d 35, 38 (Tex.Crim.App.1991), cert. denied, 504 U.S. 920, 112 S.Ct. 1968, 118 L.Ed.2d 568 (1992). Point of error twelve is overruled.

In point of error eighteen, appellant asserts that Article 37.0711(3)(i), which prohibits informing a jury that failure to reach a unanimous verdict on any of the punishment issues will result in a life sentence, is unconstitutional. Specifically, appellant claims the statute violates the Eighth Amendment to the United States Constitution.

We have previously rejected this argument. In Rousseau v. State, 855 S.W.2d 666, 687 (Tex.Crim.App.1993), we held that preventing a jury from knowing the effect of its answers to the punishment issues does not subject a defendant to cruel and unusual punishment under the Eighth Amendment. Point of error eighteen is overruled.

6. APPLICATION OF THE DEATH PENALTY

In point of error eleven, appellant contends that the due process clause of the Fourteenth Amendment requires this Court to conduct a “proportionality review” with regard to the appellant's death sentence. Appellant asserts that this Court should consider whether his sentence is excessive or disproportionate compared to sentences imposed in similar capital cases. Appellant concedes that in Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), the United States Supreme Court rejected this argument when it was raised under the Eighth Amendment. Appellant claims that the argument he sets forth requires a different holding under the Fourteenth Amendment. He relies on Honda Motor Company, Ltd. v. Oberg, 512 U.S. 415, 114 S.Ct. 2331, 129 L.Ed.2d 336 (1994), in which the United States Supreme Court held that due process required a state to afford appellate review of the excessiveness of punitive damage verdicts.

Honda dealt with civil procedures, which by their nature operate under vastly different due process principles than do criminal cases in general and capital punishment cases in particular. See, e.g., In re Winship 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (due process requirements in criminal proceedings) and Gardner v. Florida, 430 U.S. 349, 357, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977)(death is different). Honda does not stand for the proposition that due process requires comparative proportionality reviews of all civil judgments, much less, all criminal judgments; at most it stands for the proposition that due process requires some minimal safeguard ensuring that individual judgments are not excessive or disproportionate. Honda leaves open the form these safeguards might take. Honda held that a comparative proportionality review was required only because Oregon had no alternative means of safeguarding against excessive or disproportionate judgments. 512 U.S. 415, 431-433, 114 S.Ct. 2331, 2340-2341, 129 L.Ed.2d 336, 349-350.

The federal Constitution requires more than the minimal safeguard of a comparative proportionality review to ensure the fair imposition of the death penalty. Because death is qualitatively different from any other punishment, the federal Constitution requires the highest degree of reliability in the determination that it is the appropriate punishment. E.g., Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991-2992, 49 L.Ed.2d 944 (1976); Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976); Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (decided in conjunction with Branch v. Texas ). To ensure this reliability, the United States Constitution imposes requirements of proportionality of offense to punishment, of a narrowly defined class of death eligible defendants, and of an opportunity for each juror to consider and give effect to circumstances mitigating against the imposition of the death sentence. See Tuilaepa v. California, 512 U.S. 967, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994). In short, the due process principles governing the imposition of a sentence of death are distinct and more onerous than those governing the imposition of a civil judgment. Compare Tuilaepa to Honda.

It is for good reason, therefore, that the United States Supreme Court has not held that due process requires a comparative proportionality review of the sentence of death, but instead has held that such a review would be “constitutionally superfluous.” Pulley, 465 U.S. at 49, 104 S.Ct. at 879. See also Jurek, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976)(upholding our capital punishment scheme even without a comparative proportionality review). Point of error eleven is overruled.

In points of error fifteen through seventeen, appellant claims the death penalty has been arbitrarily imposed in violation of the Eighth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and Article I, Sec. 13 of the Texas Constitution. Appellant maintains that the existence over the years of “radically different” sentencing schemes has resulted in disparate sentencing of capital defendants. We have decided appellant's federal constitutional claims adversely to his position. Lawton v. State, 913 S.W.2d 542, 559-560 (Tex.Crim.App.1995).

Appellant also makes this challenge under Art. I, Sec. 13 of the Texas Constitution. Appellant reminds us that we can interpret the Texas Constitution more expansively than the federal Constitution and notes that the Texas Constitution proscribes cruel “or” unusual punishment. He refers us, without any elaboration, to a California case that attributes significance to a similar state constitutional proscription. But beyond claiming that it is “obvious,” Appellant does not explain why he believes the Texas Constitution offers broader protection than the United States Constitution. Accordingly, we overrule points of error fifteen through seventeen.

The judgment is affirmed.

CLINTON, J., dissents. MALONEY, J., concurs in the result.

BAIRD, Judge, dissenting.

Two separate decisions are involved in any death sentence: the eligibility decision and the selection decision. Tuilaepa v. California, 512 U.S. 967, 971, 114 S.Ct. 2630, 2634, 129 L.Ed.2d 750 (1994). To be eligible for the death penalty, the defendant must be convicted of a crime for which the death penalty is a proportionate punishment. Ibid.; and, Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). In Texas, only those convicted of an offense under Tex. Penal Code Ann. § 19.03 are eligible for capital punishment. The second decision, the selection decision, relates to the sentencer's determination whether a death eligible defendant should, in fact, receive the death penalty. The selection decision requires individualized sentencing and must be expansive enough to accommodate all relevant mitigating evidence so as to assure an assessment of the defendant's culpability. Tuilaepa, 512 U.S. at 973, 114 S.Ct. at 2635. In Texas, the selection decision is determined by the jury's answers to the statutory punishment issues of Tex.Code Crim.Proc.Ann. art. 37.071.

The State must ensure that the process is neutral and principled so as to guard against bias or caprice. Tuilaepa, 512 U.S. at 973, 114 S.Ct. at 2635. See also, Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976) (procedures must “minimize the risk of wholly arbitrary and capricious action”). To ensure this neutral and principled process, both decisions must be subject to appellate review. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (decided in conjunction with Branch v. Texas, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)); and, Parker v. Dugger, 498 U.S. 308, 321, 111 S.Ct. 731, 739, 112 L.Ed.2d 812 (1991). This is so because meaningful appellate review of death sentences promotes reliability and consistency. Clemons v. Mississippi, 494 U.S. 738, 749, 110 S.Ct. 1441, 1448, 108 L.Ed.2d 725 (1990).

Thus it may be said that under the Eighth Amendment the process for arriving at a death sentence is akin to a three legged stool: the first leg is whether the defendant is eligible to receive capital punishment; the second leg is whether the jury finds him deserving of capital punishment; and the third leg is whether the eligibility and selection decisions are subject to appellate review. Should any leg of this stool fail, the entire scheme would be rendered unconstitutional.

I.

Our capital sentencing scheme passed constitutional muster in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). As a part of its holding, the Supreme Court stated: ... By providing prompt judicial review of the jury's decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law. Because this system serves to assure that sentences of death will not be “wantonly” or “freakishly” imposed, it does not violate the Constitution. Id., 428 U.S. at 276, 96 S.Ct. at 2958.

Since Jurek, our capital sentencing scheme has been modified to include Tex.Code Crim.Proc.Ann. art. 37.071, § 2(e) which provides for submission of the following punishment issue:

Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.

Article 37.071, § 2(e) was enacted following Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), which held the Texas capital sentencing scheme must provide the jury with a vehicle to express its “reasoned moral response” to mitigating evidence in reaching its selection decision. Because of its source, the § 2(e) punishment issue is commonly referred to as “the Penry issue.” In conjunction with this issue, the Legislature enacted Tex.Code Crim.Proc.Ann. art. 44.251 which provides: (a) The court of criminal appeals shall reform a sentence of death to a sentence of confinement in the institutional division of the Texas Department of Criminal Justice for life if the court finds that there is insufficient evidence to support ... a negative answer to an issue submitted to a jury under Section 2(e), Article 37.071, or Section 3(e), Article 37.0711, of this code.FN1

FN1. All emphasis is supplied unless otherwise indicated. The question presented by appellant's tenth point of error is whether the Eighth Amendment and art. 44.251 impose upon this Court the duty to review the sufficiency of the evidence to support a negative answer to the Penry issue. For the following reasons, I believe we have such a duty and accordingly dissent to the majority's failure to reach the merits of appellant's tenth point of error.

II.

As noted earlier, the Supreme Court has consistently held the decisions which give rise to a death sentence must be subject to appellate review. See, e.g., Furman, 408 U.S. at 310, 92 S.Ct. at 2762; Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Jurek, 428 U.S. at 276, 96 S.Ct. at 2958; Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990). In Texas, the selection decision encompasses two principal punishment issues.FN2 First is the issue of “future dangerousness.” FN3 Second is the Penry issue which asks whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed. FN2. The punishment issue provided by Tex.Code Crim.Proc.Ann. art. 37.071, § 2(b)(2) is not relevant to the instant case.

FN3. To determine whether the evidence is sufficient to support an affirmative answer to the future dangerousness punishment issue we consider the following non-exclusive list of factors: 1. the circumstances of the capital offense, including the defendant's state of mind and whether he was working alone or with other parties; 2. the calculated nature of the defendant's acts; 3. the forethought and deliberateness exhibited by the crime's execution; 4. the existence of a prior criminal record, and the severity of the prior crimes; 5. the defendant's age and personal circumstances at the time of the offense; 6. whether the defendant was acting under duress or the domination of another at the time of the commission of the offense; 7. psychiatric evidence; and, 8. character evidence. Keeton v. State, 724 S.W.2d 58, 61 (Tex.Cr.App.1987); and, Dinkins v. State, 894 S.W.2d 330, 358 (Tex.Cr.App.1995).

In Clemons, supra, the Supreme Court spoke at length about the necessity of meaningful appellate review. The Court noted that the process of appellate courts reweighing of evidence was consistent with pursuit of the Eighth Amendment's twin objectives of measured, consistent application of the death penalty and fairness to the accused. Id., 494 U.S. at 748, 110 S.Ct. at 1448 (citing Eddings, supra; and, Lockett, supra). The Court stated:

We see no reason to believe that careful appellate weighing of aggravating against mitigating circumstances in cases such as this would not produce “measured consistent application” of the death penalty or in any way be unfair to the defendant. It is a routine task of appellate courts to decide whether the evidence supports a jury verdict and in capital cases in “weighing” States, to consider whether the evidence is such that the sentencer could have arrived at the death sentence that was imposed. And, as the opinion below indicates, a similar process of weighing aggravating and mitigating evidence is involved in an appellate court's proportionality review. Furthermore, this Court has repeatedly emphasized that meaningful appellate review of death sentences promotes reliability and consistency. See, e.g., Gregg v. Georgia, supra, 428 U.S., at 204-206, 96 S.Ct., at 2939-2941 (joint opinion of Stewart, Powell, and Stevens, JJ.); Proffitt v. Florida, 428 U.S. 242, 253, 96 S.Ct. 2960, 2967, 49 L.Ed.2d 913 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.); Dobbert v. Florida, 432 U.S. 282, 295-296, 97 S.Ct. 2290, 2299-2300, 53 L.Ed.2d 344 (1977); Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). It is also important to note that state supreme courts in States authorizing the death penalty may well review many death sentences and that typical jurors, in contrast, will serve on only one such case during their lifetimes.

* * * * * *

We accordingly see nothing in appellate weighing or reweighing of the aggravating and mitigating circumstances that is at odds with contemporary standards of fairness or that is inherently unreliable and likely to result in arbitrary imposition of the death sentence. Clemons, 494 U.S. at 748-750, 110 S.Ct. at 1448-1449.

The Clemons Court pointedly noted that failure to perform meaningful appellate review would result in an automatic rule of affirmance that would be invalid under Lockett, supra, and Eddings, supra, “for it would not give defendants the individualized treatment that would result from actual reweighing of the mix of mitigating and aggravating circumstances.” Clemons, 494 U.S. at 752, 110 S.Ct. at 1450.FN4 See also, Parker v. Dugger, 498 U.S. 308, 321-322, 111 S.Ct. 731, 739-740, 112 L.Ed.2d 812 (1991) (Appellate review of mitigating evidence by the Florida Supreme Court was so deficient as to be arbitrary.).

FN4. Clemons and Parker deal with the Mississippi and Florida capital sentencing schemes, respectively. Those schemes differ from that in Texas where the aggravating circumstance(s) is incorporated in the eligibility decision while in Mississippi and Florida the statutory aggravating circumstances are considered in the selection decision. Additionally, unlike Mississippi and Florida, Texas does not provide the jury with a non-exclusive list of mitigating circumstances. Mississippi and Florida are known as “weighing” states because the jurors and appellate courts are required to engage in the weighing process to determine whether the mitigating circumstances are out-weighed by the aggravating circumstances. This Court has engaged in a similar weighing process in reviewing the sufficiency of the evidence to support an affirmative answer to the “future dangerousness” punishment issue. See, n. 3, supra; and, Barley v. State, 906 S.W.2d 27, 38 (Tex.Cr.App.1995) (Baird, Overstreet and Maloney, JJ., concurring). Meaningful appellate review has been a requirement of the Eighth Amendment since the States began re-enacting capital sentencing schemes following Furman. For example, in upholding the constitutionality of the Georgia scheme the Supreme Court held:

As an important additional safeguard against arbitrariness and caprice, the Georgia statutory scheme provides for automatic appeal of all death sentences to the State's Supreme Court. That court is required by statute to review each sentence of death and determine whether it was imposed under the influence of passion or prejudice, whether the evidence supports the jury's finding of a statutory aggravating circumstance, and whether the sentence is disproportionate compared to those sentences imposed in similar cases. Gregg v. Georgia, 428 U.S. 153, 198, 96 S.Ct. 2909, 2937, 49 L.Ed.2d 859 (1976).

In Proffitt v. Florida, supra, the Supreme Court stated: The statute provides for automatic review by the Supreme Court of Florida of all cases in which a death sentence has been imposed.... Since, however, the trial judge must justify the imposition of a death sentence with written findings, meaningful appellate review of each such sentence is made possible and the Supreme Court of Florida, like its Georgia counterpart, considers its function to be to [guarantee] that the [aggravating and mitigating] reasons present in one case will reach a similar result to that reached under similar circumstances in another case. ... If a defendant is sentenced to die, this Court can review that case in light of the other decisions and determine whether or not the punishment is too great. Proffitt, 428 U.S. at 250-252, 96 S.Ct. at 2966. (Internal quotes omitted.)

In holding our post- Furman capital sentencing scheme constitutional, the Supreme Court noted that by providing for “prompt judicial review of the jury's decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law.” Id., 428 U.S. at 276, 96 S.Ct. at 2958.

These cases make it clear that meaningful appellate review is an absolute requirement of the Eighth Amendment. The question in the instant case then boils down to whether the jury's negative answer to the Penry issue is subject to meaningful appellate review.

III.

A majority of this Court has consistently rejected requests to review the sufficiency of the evidence to support a negative answer to the Penry issue. However, the reasons for doing so have been less than consistent. FN5

FN5. I joined the majority in Lawton, supra and Broussard v. State, 910 S.W.2d 952 (Tex.Cr.App.1995). However, for the reasons stated infra, I now believe my doing so was erroneous.

A. Colella

Our first case which considered whether the Penry issue was subject to meaningful appellate review was Colella v. State, 915 S.W.2d 834, 845 (Tex.Cr.App.1995). In disposing of the point of error the Court held: Because the weighing of “mitigating evidence” is a subjective determination undertaken by each individual juror, we decline to review the evidence for sufficiency. We defer to the jury's conclusion that the evidence was not sufficient to warrant a sentence of life imprisonment.... Id.

In reaching this conclusion, the majority relied on Banda v. State, 890 S.W.2d 42, 54 (Tex.Cr.App.1994). However, that reliance was misplaced.

In Banda, the defendant complained of two veniremembers who stated they would not consider voluntary intoxication to be a mitigating factor. We held the veniremembers were not subject to a challenge for cause because the amount of weight that a juror might give to any “particular piece of mitigating evidence is left to the range of judgment and discretion exercised by each juror.” Id., 890 S.W.2d at 54 (quoting Johnson v. State, 773 S.W.2d 322, 331 (Tex.Cr.App.1989), affirmed in part, Johnson v. Texas, 509 U.S. 350, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993)). While it is true that no evidence is mitigating as a matter of law, Morrow v. State, 910 S.W.2d 471, 472 (Tex.Cr.App.1995), it does not follow that because a veniremember is not subject to a challenge for cause, a punishment issue is not subject to meaningful appellate review.

Furthermore, Colella runs afoul of Clemons because it creates an automatic rule of affirmance that is invalid under Lockett, supra, and Eddings, supra, because Colella does not provide defendants with the individualized treatment that results from a reweighing of the mitigating and aggravating circumstances. Clemons, 494 U.S. at 752, 110 S.Ct. at 1450.

B. Lawton

Apparently, the Court recognized its reliance on Banda was misplaced in Lawton v. State, 913 S.W.2d 542, 556 (Tex.Cr.App.1995). The Lawton Court, relying principally on Pulley v. Harris 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), held appellate review of a negative answer to the Penry issue was “neither constitutionally required nor possible under our current law.” FN6 Lawton, 913 S.W.2d at 556. The Court's reliance on Pulley was misplaced because Pulley dealt with whether, before affirming a death sentence, an appellate court is required to conduct a proportionality review. Proportionality as defined by the Supreme Court is:

FN6. The Court also cited Hughes v. State, 897 S.W.2d 285 (Tex.Cr.App.1994). However, this citation is inappropriate because Hughes dealt with the capital sentencing scheme prior to enactment of the Penry issue. ... an abstract evaluation of the appropriateness of a sentence for a particular crime. Looking to the gravity of the offense and the severity of the penalty, to sentences imposed for other crimes, and to sentencing practices in other jurisdictions. ... Pulley, 465 U.S. at 42-43, 104 S.Ct. at 875. The Court held a proportionality review is not constitutionally required. However, it does not follow that because a proportionality review is not constitutionally required that meaningful appellate review of the Penry issue is not required. And, the Lawton Court did not explain why meaningful appellate review of the Penry issue was not “possible under our current law.”

C. McFarland

In McFarland v. State, 928 S.W.2d 482, 497-498 (Tex.Cr.App.1996), a plurality concocted a mix of Colella and Lawton, holding that even though art. 44.251 mandated appellate review, “[a] genuine ‘sufficiency’ review of the jury's negative answer to Article 37.071 § 2(e) is a logical absurdity.” Id., 928 S.W.2d at 498-499. The plurality, utilizing the Banda rationale, concluded: “[t]here is simply no way for an appellate court to review the jury's normative judgment that the evidence did or did not warrant a life sentence.” Id., 928 S.W.2d at 499.FN7 McFarland 's rationale then may be stated as follows: Even though the Legislature has mandated a sufficiency review of the Penry issue, we cannot follow that mandate because appellate review of a normative judgment is impossible. This rationale is flawed in two major respects.

FN7. In a separate opinion, three Judges argued that art. 44.251 did not mandate a sufficiency review of the Penry issue, McFarland, 928 S.W.2d at 524 (Keller, White and McCormick, JJ., concurring), “but merely prescribes the remedy in the event such a review is conducted ...” Id., at 524. Implicitly then, those judges recognized the possibility of such a sufficiency review of the Penry issue.

i.

First is the McFarland plurality's flawed interpretation of art. 44.251. As noted above, the McFarland plurality found that the plain language of art. 44.251 mandated appellate review of the Penry issue but nevertheless refused to “take the statute to mean what it plainly says.” Id., 928 S.W.2d at 498.

When interpreting a statute we seek to effectuate the intent or purpose of the Legislature. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Cr.App.1991). We focus our attention on the literal text of the statute in question and we presume the Legislature intended for all the statutory language to have meaning and effect. Therefore, we interpret the entire statute, not just an isolated section. Dillehey v. State, 815 S.W.2d 623, 626 (Tex.Cr.App.1991); and, Tex. Gov't Code Ann. § 311.021.

Article 44.251(a) provides: The court of criminal appeals shall reform a sentence of death to a sentence of confinement in the institutional division of the Texas Department of Criminal Justice for life if the court finds that there is insufficient evidence to support an affirmative answer to [the future dangerousness issue] or a negative answer to [the Penry issue].

The McFarland plurality's interpretation of art. 44.251 renders half of the statutory language without meaning or effect and, therefore, runs afoul of Dillehey, 815 S.W.2d at 626, and, Tex. Gov't Code Ann. § 311.021.

ii.

Second, meaningful appellate review of a normative judgment is not impossible. FN8 In Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996), we discussed the concept of reviewing the factual sufficiency of the evidence. When conducting such a review the appellate court views all the evidence without the prism of in the light most favorable to the prosecution and sets aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis, 922S.W.2d at 134. FN9 A factual sufficiency review is nothing more than the review of a normative judgment. Similarly, in context of the Penry issue we may reweigh the evidence to determine if there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.

FN8. This McFarland plurality's use of the term “normative” originates in Murphy v. State, 777 S.W.2d 44 (Tex.Cr.App.1988), where we stated: ... There, aside from certain exceptions, the “factfinder” does not determine the existence of discreet facts. Deciding what punishment to assess is a normative process, not intrinsically factbound. Because the material issue at punishment is so indistinct, relevancy of proffered evidence cannot be determined by deductive processes. Murphy, 777 S.W.2d at 62-63.

FN9. In Clewis we held: ... [t]he appropriate balance between the jury's role as the judge of the facts and the reviewing court's duty to review criminal convictions is struck by not allowing the appellate court to find facts, or substitute its judgment for that of the jury; rather, when it determines that the verdict is against the great weight of the evidence presented at trial so as to be clearly wrong and unjust, it must reverse the verdict and remand for a new trial. Clewis, 922 S.W.2d at 135 (emphasis in original).

Moreover, reviewing a normative judgment is routinely done in other jurisdictions. Clemons, 494 U.S. at 748-750, 110 S.Ct. at 1448-1449. In Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977), the Arkansas Supreme Court stated:

There is a meaningful appellate review by this court of the appropriateness of the death penalty in a particular case, considering both the punishment and any errors on points raised in the trial court, including the sufficiency of the evidence to support any part of the jury verdict. This appellate review includes ... whether the evidence supports the jury's findings on the question whether mitigating circumstances outweigh aggravating ones ... [and] whether the sentence is excessive. Id., 548 S.W.2d at 120. See also, State v. Breton, 235 Conn. 206, 663 A.2d 1026, 1039 (1995), (Connecticut Supreme Court held the defendant's right to appellate review of the death sentence included appellate consideration of mitigating evidence.); State v. Richardson, 341 N.C. 658, 462 S.E.2d 492 (1995) (North Carolina Supreme Court considered whether evidence demonstrated a mitigating factor.); Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993) (Arkansas Supreme Court reviews the jury's findings on mitigation.); State v. Hernandez, 204 Ill.App.3d 732, 149 Ill.Dec. 755, 562 N.E.2d 219 (2 Dist.1990); Lowery v. State 547 N.E.2d 1046 (Ind.1989) (Indiana Supreme Court reviewed the mitigating evidence to determine whether death sentence was erroneous.); and, Fisher v. State, 736 P.2d 1003 (Okl.Cr.1987) (The Oklahoma Court of Criminal Appeals determined that its appellate review must reweigh the balance of mitigating and aggravating circumstances.). Therefore, we should not hold that appellate review of the Penry issue is impossible when other jurisdictions undertake a similar review.

IV.

Meaningful appellate review plays the crucial role of ensuring that the death penalty is not imposed arbitrarily or irrationally. Parker, 498 U.S. at 321, 111 S.Ct. at 739. This review must consider the “individual circumstances” of each defendant before death may be assessed.

It cannot be gainsaid that meaningful appellate review requires that the appellate court consider the defendant's actual record. “What is important ... is an individualized determination on the basis of the character of the individual and the circumstances of the crime.” Zant v. Stephens, 462 U.S. 862, 879, 103 S.Ct. 2733, 2743-2744, 77 L.Ed.2d 235 (1983); See also Clemons, supra, 494 U.S., at 749, 752, 110 S.Ct., at 1448-1449, 1450; Barclay v. Florida, 463 U.S. 939, 958, 103 S.Ct. 3418, 3429, 77 L.Ed.2d 1134 (1983) (plurality opinion). Parker, 498 U.S. at 321, 111 S.Ct. at 739-740 (emphasis in original). This individualized determination requires a review of the mitigating circumstances. The Parker Court held, ... the Florida Supreme Court affirmed Parker's death sentence without considering the mitigating circumstances. This affirmance was invalid because it deprived Parker of the individualized treatment to which he is entitled under our Constitution. Parker, 498 U.S. at 322, 111 S.Ct. at 740. Thus this individualized treatment must take into consideration both aggravating and mitigating factors. Ibid.

This authority confirms that it is our Constitutional duty to review a jury's negative answer the Penry issue. Our Legislature recognized this and enacted article 44.251. Nevertheless, a majority of this Court refuses to perform the routine task of determining whether the evidence supports the jury's verdict. In so doing, we shirk our Constitutional responsibility and legislative mandate. Thus, the three legged stool upon which the constitutionality of our capital sentencing scheme rests, can not stand. Accordingly, I dissent to the failure to address the merits of appellant's tenth point of error.

OVERSTREET, Judge, dissenting.

I dissent to the majority's disposition of appellant's points of error three through eight in which he complains of the trial court's restricting of voir dire in denying his requests to ask questions of veniremembers about 15-year parole ineligibility on a life sentence for capital murder.

The constitutional right to be represented by counsel includes the right of counsel to question the veniremembers of the jury panel in order to intelligently exercise statutory challenges. Shipley v. State, 790 S.W.2d 604, 607-08 (Tex.Cr.App.1990). Voir dire questioning is proper if it seeks to discover a veniremember's views on an issue applicable to the case. Id. at 608. Upon a guilty verdict for capital murder, the jury must answer a special issue regarding the defendant's future dangerousness. “In assessing future dangerousness, the actual duration of the defendant's prison sentence is indisputably relevant.” Simmons v. South Carolina, 512 U.S. 154, 163, 114 S.Ct. 2187, 2194, 129 L.Ed.2d 133, 142 (1994). A prospective juror's views regarding such are certainly a matter of grave concern for both the prosecution and the defense in preparing to try a capital murder case; in fact such views are a matter of life or death.

I dissent to the majority's discussion and treatment of points of error three through eight.

Morris v. Cockrell, 35 Fed.Appx. 390 (5th Cir. 2002) (Habeas).

Petitioner Morris, a Texas state death penalty inmate, requests a certificate of appealability (“COA”) under 28 U.S.C. § 2253, et seq., on three issues. First, whether the Texas appellate court's refusal to review the trial jury's determination of the sufficiency of mitigating evidence when selecting Morris for imposition of the death penalty violated constitutional due process. Second, whether the Texas trial court violated due process by refusing to admit evidence of Morris's co-defendants' lesser sentences as mitigation evidence. Third, whether the dismissal of venireperson Dreannon constituted error under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We deny Morris's request on each issue.

I. BACKGROUND.

During the early morning hours of May 1, 1991, Morris shot 63-year-old James Moody Adams four times, killing Adams, during a violent, home-invasion style burglary. Morris and two accomplices kicked in the door of the Adams' home in Harris County, Texas, looking for guns and money. The noise of their entrance awakened Adams and his wife. While his wife waited in the locked bedroom, Adams went to investigate the noise. When Morris encountered Adams in the house, Morris held a gun on Adams while an accomplice ordered Adams to produce guns and money. Adams stated that he had no guns, but that he would give them what money he had. The intruders kicked down the door leading to the master bedroom and forced Adams inside. When she heard the door giving way, Mrs. Adams hid in the bedroom closet because she had no route of escape from the bedroom. Adams retrieved his wallet from his bedroom closet and gave it to Morris. Mrs. Adams, hiding in this same bedroom closet, heard the intruders exclaim angrily that there was no money in the wallet. She heard Adams respond, “I'll get you some.” Adams then removed his money from a hidden part of the wallet and gave it to Morris. Having the money in hand, Morris shot Adams. Mrs. Adams heard her husband exclaim, “Oh no!” and then heard four gunshots in rapid succession. The first two shots entered and exited Adams's face and neck. The final two shots were to his back as he lay on the bedroom floor. Adams fell dead in his bedroom closet at his wife's feet, and she heard him stop breathing. The intruders fled the scene, leaving behind trash bags that they brought to the house to carry off stolen property. Mrs. Adams, unsure if the intruders were gone but too terrified to stay hidden, stepped over her husband's body and fled the house through the splintered front door.

A fingerprint lifted from one of the abandoned trash bags led to the arrest of one of the intruders, Christopher Montez. Morris was arrested in Brenham, Texas, on May 13, 1991. He made an oral and then a written statement the night that he was arrested, confessing to the murder of James Adams. The written statement was introduced at trial. Police also recovered the murder weapon, a .32 caliber revolver.

Morris's trial was conducted before the 339th District Court of Harris County in December, 1993. The jury found Morris guilty of capital murder. During the punishment phase of Morris's trial, the state reintroduced all evidence introduced during the guilt phase. The state also introduced stipulated evidence of Morris's criminal record. Morris presented character and psychiatric testimony in mitigation during the punishment phase, including his mother's testimony of environmental factors affecting Morris during childhood, two psychiatric experts, and a criminologist. Despite his mitigating evidence, the jury answered the special issues presented to them in favor of the death penalty and the court sentenced Morris to death.

The conviction was upheld on direct appeal. See Morris v. State, 940 S.W.2d 610 (Tex.Crim.App.1997). On Morris's state habeas petition, the trial court issued findings of fact and conclusions of law recommending that habeas relief be denied, including on each of the issues presented to us. The Court of Criminal Appeals adopted the trial court's findings and denied relief. Morris then applied to the United States District Court for the Southern District of Texas for federal habeas relief, which was denied. Pursuant to 28 U.S.C. § 2253(c), which provides that a litigant may not appeal the denial of a petition for habeas corpus without first obtaining a COA from a circuit judge, Morris now requests a COA from us.

II. STANDARD OF REVIEW.

To prevail on an application for a COA, a petitioner must make a “substantial showing of the denial of a constitutional right, a demonstration that ... includes showing that reasonable jurists could debate whether ... the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Moore v. Johnson, 225 F.3d 495, 500 (5th Cir.2000), quoting Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

In assessing whether a petitioner has demonstrated a substantial showing of the denial of a constitutional right, we must keep in mind the deference scheme laid out in 28 U.S.C. § 2254(d). See Moore, 225 F.3d at 501.

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). Under that scheme, we review pure questions of law and mixed questions of law and fact under § 2254(d)(1) and review questions of fact under § 2254(d)(2). See 225 F.3d at 501. “Because the present case involves the death penalty, any doubts as to whether a COA should issue must be resolved in [the petitioner's] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000).

III. ANALYSIS.

Morris first argues that the Texas appellate court's refusal to review the jury's determination of whether special mitigating factors existed to sentence a criminal otherwise fully qualified for death instead to life in prison, is a violation of due process. See Morris v. State, 940 S.W.2d 610, 614 (Tex.Crim.App.1996). This is precisely the issue we answered in Moore v. Johnson as a pure question of law. See Moore, 225 F.3d at 505.

A capital murder trial in Texas proceeds in a bifurcated process. In the first, or “guilt-innocence,” phase, a defendant's eligibility for consideration of the death penalty is determined. Once that eligibility is determined, the trial proceeds to the second, or “punishment,” phase, wherein the defendant is either selected for death or for the alternative sentence of life imprisonment. In that phase, the state presents the jury with evidence of certain aggravating factors, including in Morris's case whether he deliberately caused Adams's death and whether Morris would be a continuing threat to society. The defendant also presents the jury with mitigating evidence, which in Morris's case included, inter alia, the testimony of his mother, the psychiatrists, and the criminologist. The jury is then asked to determine whether the aggravating factors have been shown beyond a reasonable doubt, thus qualifying the defendant for selection for the death penalty. If so, the jury is then asked whether the defendant's mitigating evidence is sufficient to warrant the imposition of a life sentence rather than the death penalty. The Texas Court of Criminal Appeals has explained that: [i]n Texas, this mitigating evidence is admissible at the punishment phase of a capital murder trial. Once admitted, the jury may then give it weight, if in their individual minds it is appropriate, when answering the questions which determine sentence. However, “[t]he amount of weight that the factfinder might give any particular piece of mitigating evidence is left to ‘the range of judgment and discretion’ exercised by each juror.” See Colella v. State, 915 S.W.2d 834, 844 (Tex.Crim.App.1995)(quoting Banda v. State, 890 S.W.2d 42, 54 (Tex.Crim.App.1994); Johnson v. State, 773 S.W.2d 322, 331 (Tex.Crim.App.1989), aff'd, Johnson v. Texas, 509 U.S. 350, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993)). No burden of proof exists for either the state or the defendant to disprove or prove the mitigating evidence. Colella, 915 S.W.2d at 844. Thus, each juror individually and subjectively determines what evidence, if any, is sufficient to mitigate against the imposition of the death penalty.

The Texas Court of Criminal Appeals has consistently refused to review such a subjective determination on the part of individual jurors. See Colella, 915 S.W.2d at 845 (“[b]ecause the weighing of ‘mitigating evidence’ is a subjective determination undertaken by each individual juror, we decline to review the evidence for sufficiency”).

We held in Moore that Texas is within the ambit of federal law as interpreted by the United States Supreme Court. See Moore, 225 F.3d at 507. We did so in view of Tuilaepa v. California, 512 U.S. 967, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994), in which the Supreme Court distinguished between a jury's “eligibility decision” and its “selection decision.” It is the eligibility decision that must be made with maximum transparency to “make rationally reviewable the process for imposing a sentence of death.” Moore, 225 F.3d at 506 (quoting Tuilaepa, 512 U.S. at 973). On the other hand, a jury is free to consider a “myriad of factors to determine whether death is the appropriate punishment. Indeed, the sentencer may be given unbridled discretion in determining whether the death penalty should be imposed after it has found that the defendant is a member of the class made eligible for that penalty.” 225 F.3d at 506 (quoting 512 U.S. at 979-80). It is the jury's subjective and “narrowly cabined but unbridled discretion to consider any mitigating factors,” 225 F.3d at 507, that Texas refrains from independently reviewing. We held then, as we do now, that Texas may correctly do so.

Morris argues that the Supreme Court's rulings in Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), Parker v. Dugger, 498 U.S. 308, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991), and Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), among others, militate toward a requirement to review jurors' subjective determinations in weighing mitigating evidence. We disagree. Those cases reinforce the Court's emphasis on “meaningful appellate review of death sentences to promote reliability and consistency,” Clemons, 494 U.S. at 749, to “ensur[e] that the death penalty is not imposed arbitrarily or irrationally,” Parker, 498 U.S. at 321. Morris has made no showing of unreliability in Texas's method of selecting defendants for the imposition of the death penalty and Texas has been nothing if not consistent in its refusal to reweigh mitigating evidence on appellate review.

Morris's reliance on the Court's language in Clemons that “[w]e see no reason to believe that careful appellate weighing of aggravating against mitigation circumstances in cases such as this would not produce ‘measured consistent application’ of the death penalty or in any way be unfair to the defendant” is misplaced. See Clemons, 494 U.S. at 748. Rather than imposing such an appellate review requirement, as Morris suggests, the Court merely held that such review was permissible in a situation where a death sentence had been based in part on an invalid or improperly defined aggravating circumstance. We decline to read Clemons as Morris propounds. We instead reiterate our previous holding on this issue in Moore and rule that Morris has not made a substantial showing of the denial of a constitutional right.

Next, Morris asserts that the trial court violated due process by refusing to admit evidence of Morris's co-defendants' lesser sentences as mitigation evidence. To advance his position, Morris insists that he “was entitled under Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) to offer the jury this mitigating evidence.” See Application for COA at 11. He makes no effort to explain or substantiate this otherwise-bare assertion, however, while conceding that the case law of this circuit has held exactly the opposite. Brogdon v. Blackburn, 790 F.2d 1164 (5th Cir.1986).

The Supreme Court has established that a “jury must be able to consider and give effect to any mitigating evidence relevant to a defendant's background and character or the circumstances of the crime.” See Penry v. Lynaugh, 492 U.S. 302, 328, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). Further, the Court has established that evidence that is not relevant to the defendant's character, prior record, or the circumstances of his offense may properly be excluded from evidence. See Lockett, 438 U.S. at 604 n. 12; see also Skipper v. South Carolina, 476 U.S. 1, 7 n. 2, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986)(not all facets of a defendant's ability to adjust to prison life, such as how often he will take a shower, are relevant to the sentencing determination).

On this foundation, we reiterate our holding in Brogdon, that the sentences imposed on the co-defendants of a capital crime defendant are not constitutionally relevant mitigating evidence to include in the determinations of the jurors. Morris has offered absolutely nothing in contradiction and so we again rule that Morris has not made a substantial showing of the denial of a constitutional right. Finally, Morris contends that the dismissal of venireperson Dreannon constituted error under Batson v. Kentucky, supra. This contention is based on (1) Mr. Dreannon being black and (2) that Mr. Dreannon indicated on his jury questionnaire that he was strongly in favor of the death penalty. Following voir dire, the prosecutor peremptorily struck Mr. Dreannon. Morris claims that this establishes a prima facie Batson case.

Under Batson, to prove that the prosecutor has impermissibly used the power to peremptorily strike jurors, (1) the petitioner must make a prima facie showing that the prosecutor exercised his peremptory strikes on the basis of race; (2) the burden of production then shifts to the prosecutor to articulate a race-neutral reason for challenging the venire member; and (3) finally, the trial court must decide whether the petitioner has sustained his burden of proving purposeful discrimination. Soria v. Johnson, 207 F.3d 232, 237 (5th Cir.2000). It is unclear whether Morris had established a prima facie case in the Texas trial court. That court did, however, conduct a Batson hearing wherein the prosecutor explained that he was uncomfortable with Mr. Dreannon's ability to impose the death penalty on a defendant of Morris's age, which was close to Mr. Dreannon's son's age. Mr. Dreannon's answers on this issue were equivocal, evasive and ultimately unresponsive. The trial judge's observations during voir dire were consistent with the prosecutor's and she further noted that the same prosecutor had seated several black jurors in a separate but recent capital punishment trial. On those bases, the trial judge held that Morris had not sustained the burden of proving purposeful discrimination. See Morris v. Texas, 940 S.W.2d at 612 (affirming the trial court). Morris has adduced nothing additional to substantially show the denial of a constitutional right. The federal district court, reviewing Morris's federal habeas petition, noted that Morris's allegation is not that his rights were violated, but instead that the trial court committed reversible error. The district court stated that such a claim is not a basis for a federal habeas petition nor is it the role of a federal district court to sit in appellate review of a state trial court. We agree with the district court's assessment. Further, because such a determination in the state court was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, we would be unable to grant a COA in any case.

IV. CONCLUSION.