Executed September 25, 2007 08:23 p.m. CDT by Lethal Injection in Texas
42nd murderer executed in U.S. in 2007
1099th murderer executed in U.S. since 1976
26th murderer executed in Texas in 2007
405th murderer executed in Texas since 1976
(Race/Sex/Age at Murder-Execution) |
Birth |
(Race/Sex/Age at Murder) |
Murder |
Murder |
to Murderer |
Sentence |
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Michael Wayne Richard B / M / 26 - 48 |
Marguerite Lucille Dixon W / F / 53 |
06-15-95 |
Citations:
Richard v. State, 842 S.W.2d 279 (Tex.Crim.App. 1992) (Direct Appeal - Reversed).
Final/Special Meal:
Fried chicken, a salad with pepper, lemon-lime soda, apple pie and a pint of ice cream.
Final Words:
"I'd like my family to take care of each other. I love you, Angel. Let's ride. I guess this is it."
Internet Sources:
Texas Department of Criminal Justice - Executed Offenders (Michael Richards)
Inmate: Richard, Michael WaynePrior Prison Record: TDCJ #277562 received 3/7/78 Harris County 6 years Burglary, paroled 5/5/81; TDCJ #390694 received 1/23/85 Harris County Auto Theft, released 1/23/86.
Wednesday, September 19, 2007
Media Advisory: Michael Richard scheduled for execution
AUSTIN – Texas Attorney General Greg Abbott offers the following information about Michael Wayne Richard, who is scheduled to be executed after 6 p.m. Tuesday, September 25, 2007. Richard was convicted and sentenced to death for the capital murder of Marguerite Dixon during a burglary of her Houston-area home in 1986.
FACTS OF THE CRIME
On the afternoon of August 18, 1986 and just two months after he had been paroled from prison, Michael Richard approached Marguerite Dixon’s son, Albert, in front of the Dixon home in Hockley and asked if a yellow van parked outside the home was for sale. Albert said the vehicle belonged to his brother who was out of town and suggested that Richard come back another time. Richard left.
When Albert and his sister, Paula, left a few minutes later, Richard returned and entered the house. He took two television sets and put them in the yellow van, sexually assaulted Mrs. Dixon and shot her in the head with a .25 caliber automatic pistol.
Richard told police he ran out of the house and hot-wired the van, then drove to Acres Homes. Richard attempted to sell the televisions there, but ended up just giving the gun to a friend. He drove the van to another home, where it stopped working. He told his friend there that he would return shortly for the van, but never did; the owner of the house called a wrecker the next morning to pick up the vehicle, which led to the police being called when it was discovered the van had been stripped of several valuable items and had obviously been hot-wired to get to its present location.
Mrs. Dixon’s children returned home around 9:30 p.m. on the day of the killing to find the sliding-glass door open and all the lights in the house turned off. Frightened by the condition of the house, they got a neighbor, who entered the house with a flashlight and a gun. They discovered Mrs. Dixon dead in her bedroom.
The next morning, the detective assigned to the case determined the missing van had been found and interviewed the owner of the home where Richard left the van and the man to whom Richard tried to sell the televisions. Based on that information, the police obtained a warrant for Richard’s arrest. Police found Richard at his mother’s home the next evening; Richard admitted he was involved in Mrs. Dixon’s murder and offered to help find the murder weapon. Police found the weapon and testing revealed it to be the gun that fired the fatal shot.
PRIOR CRIMINAL HISTORY
During the punishment phase of his trial, the state presented evidence of Richard’s two prior convictions for burglary of a habitation. Evidence was also presented of an auto theft charge, committed shortly after the second burglary, but not prosecuted. Richard murdered Mrs. Dixon less than two months after he was released on mandatory supervision for his second burglary conviction.
PROCEDURAL HISTORY
October 29, 1986 -- A Harris County Grand Jury indicted Richard for the capital murder of Marguerite Dixon.
September 4, 1987 -- A jury found Richard guilty of capital murder, and he was sentenced to death.
September 16, 1992 -- The Texas Court of Criminal Appeals reversed conviction due to faulty jury instructions.
May 15, 1995 -- Richard’s second trial began.
June 15, 1995 -- A second jury found Richard guilty of capital murder, he was sentenced to death.
June 18, 1997 -- The Texas Court of Criminal Appeals affirmed Richard’s conviction and sentence on direct appeal.
April 3, 1998 -- Richard filed his first application for writ of habeas corpus with the state trial court.
June 26, 1998 -- The U.S. Supreme Court denied Richard’s petition for writ of certiorari.
February 7, 2001 -- The Texas Court of Criminal Appeals denied Richard’s state application for writ of habeas corpus.
February 7, 2002 -- Richard filed a federal petition for writ of habeas corpus in a Houston federal district court.
December 31, 2002 -- The Federal District Court denied Richard’s petition.
June 20, 2003 -- Richard filed a successive state application for the writ of habeas corpus.
June 27, 2003 -- The 5th U.S. Circuit Court of Appeals denied Richard permission to appeal his first federal petition.
March 21, 2007 -- The Texas Court of Criminal Appeals denied Richard’s second state habeas corpus application.
March 28, 2007 -- Richard filed a motion for authorization to file a successive federal habeas corpus petition.
May 15, 2007 -- The 5th Circuit Court denied Richard’s motion for authorization to file a successive habeas petition.
June 12, 2007 -- The trial court set Richard’s execution date for Tuesday, September 25, 2007.
"Convicted killer executed for woman's death 21 years ago," by Michael Graczyk. (Associated Press Sept. 25, 2007, 8:55PM)
HUNTSVILLE, Texas — More than two decades after a mother of seven was attacked and killed inside her Harris County home, the man convicted of her slaying was executed Tuesday evening.
Asked if he'd like to make a final statement, Michael Richard said, "I'd like my family to take care of each other. I love you, Angel. Let's ride." Several seconds later, after the lethal drugs started, Richard blurted out, "I guess this is it." He then gasped and snorted several times and was pronounced dead at 8:23 p.m., nine minutes after the lethal drugs began to flow.
Richard, 49, had at least five felony convictions and had been released from his second prison term just eight weeks before the 1986 murder of Marguerite Lucille Dixon. He was the 26th Texas inmate executed this year. The execution was delayed about two hours while appeals were in the courts.
"It means in this particular case, the system worked, it was thorough," Stephen Dixon, whose mother was killed in the attack, said after watching Richard die. "The person executed deserved what he got." Dixon said he wasn't too concerned with the delays. "I was told to expect such things," he said. "It's been a long 21 years."
Dixon's 53-year-old mother, who worked as a nurse, had offered Richard a drink of water after he came up to her house and inquired whether a van parked outside was for sale. The vehicle wasn't and Richard left, noticing that two of Dixon's children who were home at the time left shortly after he did. Evidence showed he returned, raped the woman, fatally shot her, then stole two televisions and drove off in the van.
The U.S. Supreme Court turned down requests to halt the execution because of claims Richard was mentally retarded. Attorneys then asked for a reprieve because of the high court's decision earlier Tuesday to consider the constitutionality of lethal injection in a Kentucky case. Almost two hours later, the Supreme Court rejected the appeal. Gov. Rick Perry's office had said Richard's execution should go forward as planned.
Richard acknowledged being at Dixon's home in Hockley, in far northwest Harris County, accounting for his fingerprint on a sliding glass door. But he insisted he wasn't responsible for the woman's death. "I did things in my life I deserved to be locked up for," he said last week from death row. "But I didn't kill anybody. "I went by that house, true enough, asked to buy a car, and I left."
The van was found abandoned in Houston, about 30 miles to the southeast, and Richard later took officers to where he gave the .25-caliber pistol used in Dixon's death to a friend. Evidence showed he swapped the TVs for some cocaine. Richard's lawyers argued he was mentally retarded and not eligible for lethal injection under a U.S. Supreme Court order barring execution of mentally retarded people.
Two of Dixon's children found a sliding glass door open and the house dark and ransacked when they returned and found their mother's body in her bed and covered with paper and clothing. The fingerprint on the glass door led police to Richard, who confessed the shooting was an accident. From prison, he said the confession wasn't his.
"It really surprises me something has not been done in this case to bring some finality," Lee Coffee, who prosecuted Richard in 1987, said. "Either carry out the punishment or some court conclude he should not be subject to the death penalty, but something should have been resolved many years ago. "This is one of the things why the general public is frustrated with the criminal justice system," said Coffee, who is now a judge in Memphis, Tenn.
Richard was convicted and sentenced to death in 1987. The Texas Court of Criminal Appeals threw out his conviction in 1992 because jurors improperly were not allowed to consider evidence that as a child Richard had been abused. In 1995, a second jury convicted him again and again sentenced him to die.
At least one psychological assessment of Richard two years ago put his IQ at 64, well under the 70 considered the threshold of retardation. In March, the Texas Court of Criminal Appeals affirmed a judge's finding that Richard was not mentally retarded and his execution date. "I've been here forever," Richard said from death row, where he is known as "Louisiana Red." "I just try to live for every day. Everybody's going to die. I just know the date."
Richard first went to prison in 1978 with a six-year term for burglary. He was paroled about three years later, then returned to prison in 1985 with a five-year sentence for theft and forgery. He was released on mandatory supervision after 17 months. Dixon's slaying occurred eight weeks later. He was the first of two Texas inmates scheduled to die this week. On Thursday, a Dallas man, Carlton Turner, 28, is set to die for killing his parents in 1998.
"Texas executes man for 1986 rape and murder." (Wed Sep 26, 2007 12:47am EDT)
HUNTSVILLE, Texas (Reuters) - Texas executed a convicted murderer on Tuesday by lethal injection, the same day the U.S. Supreme Court said it will decide whether that method violates a constitutional ban on cruel and unusual punishment.
Michael Richard, 49, was the 26th person put to death this year in Texas and the 405th since the state resumed the death penalty in 1982, six years after the U.S. Supreme Court lifted a national ban on capital punishment. Texas, which leads the nation in executions, has another scheduled for Thursday.
Prosecutors said Richard, who was on parole from prison, sexually assaulted and shot to death a 53-year-old nurse and mother of seven at her Houston-area home in August 1986. Richard, who also stole two televisions and traded them for cocaine, confessed to the crime but said the gun went off accidentally.
The execution comes the same day the nation's highest court said it would decide an appeal by two death row inmates from Kentucky arguing that the three-chemical cocktail used in lethal injections inflicted unnecessary pain and suffering. The new case, which could limit or condone current forms of execution, will be one of the most closely watched of the Supreme Court's new term that begins on October 1. All but one of the 38 U.S. states with the death penalty and the federal government use lethal injection for executions. The only exception is Nebraska, which requires electrocution.
In his last statement, Richard asked that his family take care of each other and said, "Let's ride. I guess this is it."
For his last meal he requested fried chicken, a salad with pepper, lemon-lime soda, apple pie and a pint of ice cream.
Texas currently has three more executions scheduled this year and two are already slated for 2008.
Texas Execution Information Center by David Carson.
Michael Wayne Richard, 48, was executed by lethal injection on 25 September 2007 in Huntsville, Texas for the rape, robbery, and murder of a woman in her home.
On the afternoon of 18 August 1986, Richard, then 26, was in front of the Hockley home of Marguerite Dixon, 53. Richard approached Dixon's son, Albert, and asked if the van parked in the driveway was for sale. When Albert Dixon told him the van belonged to his brother who was out of town, Richard left. A few minutes later, Richard saw Albert and his sister, Paula, leave the property. Richard then entered Mrs. Dixon's home. He forced her into a bedroom, where he raped her. The then shot her in the head with a .25-caliber pistol. He then stole two televisions and the van.
Mrs. Dixon's children returned home that evening. They found the sliding-glass door open and all the lights turned off. After calling a neighbor for assistance, they entered the house and discovered their mother dead in her bedroom.
Richard hotwired the van and drove it to Houston. He traded the murder weapon to a friend for cocaine and attempted to sell the televisions. He then drove the van to another home, where it broke down. He told the homeowner, a friend of his, that he would return for the van, but he never did. The homeowner called a wrecker the next morning to take the van away. When it was discovered that the van had been hotwired and stripped, the police were called. After interviewing the homeowner and the man to whom Richard had tried to sell the televisions, the police obtained an arrest warrant for Richard. He was arrested at his mother's home the next evening.
Richard admitted being involved in Dixon's death and helped police track down the murder weapon. His fingerprints were also found on the sliding-glass door to the victim's home. He claimed that the gun discharged accidentally.
Richard had previously served parts of two prison sentences for home burglary. In March 1978, he was sent to prison on a 6-year sentence. He was paroled in May 1981. In January 1985, he was returned to prison on a 5-year sentence. He was paroled in June 1986, about two months before Dixon's murder.
A jury convicted Richard of capital murder in September 1987 and sentenced him to death. In September 1992, the Texas Court of Criminal Appeals overturned his conviction because the jury was not instructed to consider his history as an abused child as a possible mitigating factor when determining his punishment. In a new trial in June 1995, a jury again convicted Richard of capital murder and sentenced him to death. The TCCA affirmed this conviction and sentence in June 1997. All of his subsequent appeals in state and federal court were denied.
At Richard's first trial, his attorneys told the jury that he scored 62 on an IQ test. Richard's IQ and possible mental retardation were not mentioned in his second trial. After the U.S. Supreme Court ruled in June 2002 that executing mentally retarded prisoners is unconstitutional, a hearing was held on Richard's mental retardation claim. A psychologist for the state, George Denkowski, reviewed Richard's IQ tests and determined him to be retarded. However, Harris Country officials succeeded in obtaining a new hearing in December 2006. Prosecutor Lynn Hardaway supplied evidence showing that Richard's activities in prison - including writing letters and playing chess - showed that he was not retarded, and that he had never been diagnosed as retarded during his childhood. Denkowski then changed his evaluation, stating that a low IQ test was not conclusive by itself. The courts ruled that Richard's claim of mental retardation was not proven, and rejected his appeals.
Richard later denied any involvement in the killing. "I was a thief - I ain't gonna lie to you," he told an interviewer on death row the week before his execution, "because that's what I was taught by my father. But I've been trying to tell everybody I didn't break in that house or kill that woman." He said that a detective tricked him into signing a document he could not read.
Lee Coffee, the prosecutor in Richard's first trial, and who is now a judge in Memphis, Tennessee, said that Richard never denied the killing during his trial. Coffee also said that, at the Dixon family's request, he offered Richard a life sentence, but Richard rejected the plea offer. Richard said that he accepted the plea offer, but Coffee reneged on his promise.
As for his mental retardation claim, Richard said that the state's evidence against him was misleading. He said that he had others write letters for him, then he copied them in his own handwriting, and that he merely imitated behavior he saw others doing. "There's a lot of things I can't do, but if I sit and watch you, I can learn to do a little," he said.
On the day Richard was executed, the U.S. Supreme Court agreed to hear a Kentucky case challenging the constitutionality of execution by lethal injection. Richard's lawyers asked the Supreme Court to grant a stay in his case until the Kentucky case is decided, but their request was denied a few minutes before 8:00 p.m.
At his execution, Richard expressed love to his family in a brief last statement. After the lethal injection was started, he said, "I guess this is it." He was pronounced dead at 8:23 p.m.
Marguerite Lucille Dixon was the mother of 7 grown children and a registered nurse living in Hockley, Texas when Michael Richard was paroled from prison. On August 18, 1986, Richard approached Marguerite's son outside her home and asked if a van that was parked in the driveway was for sale. When the son told Richard that the van was not for sale, Richard left but watched the home until he saw Marguerite's son and daughter leave a short time later. Richard returned to Marguerite's house and forced his way in. He forced Marguerite into a bedroom where he sexually assaulted her before shooting her in the head with a 25-caliber pistol. After the rape and murder, Richard stole two televisions and the van. He later traded the murder weapon for cocaine. His fingerprint was found on a sliding glass door in Marguerite's home. Richard later confessed to the murder but claimed the gun discharged accidentally. Prior to murder, Richards had served just over half of a six year sentence for burglary and was returned to prison less than four years later with a five-year sentence for auto-theft, theft and forgery. He served less than 18 months before being released on mandatory release on June 23, 1986, just two months before murdering Marguerite Dixon.
National Coalition to Abolish the Death Penalty
Do Not Execute Michael Richards!
Michael Richards, TX
September 25, 2007
On September 25, 2007, the state of Texas is set to execute Michael Richards for the August 18, 1986 murder of Marguerite Dixon.
The state of Texas should not execute Richards for his role in this crime. Executing Richards would violate the right to life as declared in the Universal Declaration of Human Rights and constitute the ultimate cruel, inhuman and degrading punishment. Although Richards does not deny that he entered the victim’s house in a robbery attempt, he claims that the gun used in the robbery went of by accident.
Please write to Gov. Rick Perry on behalf of Michael Richards!
"Judge blames defense for executed inmate's botched appeal; Special master says Criminal Court of Appeals judge could have done better, though," by Peggy Fokac. (Jan. 20, 2010, 12:50PM)
AUSTIN — A special master has concluded that Texas Court of Criminal Appeals Presiding Judge Sharon Keller doesn't deserve to be removed from office or even given “further reprimand beyond the public humiliation she has surely suffered” for her conduct in a death row inmate's failed effort to file a last-minute appeal before his execution.
San Antonio-based District Judge David Berchelmann Jr., serving as special master in the case of alleged judicial misconduct, wrote that the Texas Defender Service in representing Michael Richard “bears the bulk of fault for what occurred on September 25, 2007.” That was the date of Richard's execution, after the Texas Defender Service was unable to file an appeal late based on a U.S. Supreme Court's decision to consider the use of lethal injection in a Kentucky case.
Keller's attorney, Chip Babcock, released a statement saying his client is gratified for Berchelman's finding that she did not violate any rules. "Judge Keller takes to heart the advice that she should strive to be more collegial and that the Court's internal communications should improve," Babcock's statement said. The Texas Defender Service didn't immediately return a telephone call for comment.
Berchelmann, in blaming the Texas Defender Service for the bulk of the problem, wrote that it didn't begin contemplating a lethal injection claim until two hours after the U.S. Supreme Court agreed to hear the Kentucky case and that it assigned a junior attorney to draft the necessary papers.
Among other points, he wrote that it failed to pursue all possible ways to file the claim with the court; and that it relied on paralegals instead of its experienced lawyers to communicate with court staff.
The special master also didn't endorse Keller's behavior, saying among other things she “should have been more open and helpful” about how the Texas Defender Service could file.
“Further, her judgment in not keeping the clerk's office open past 5:00 to allow the TDS to file was highly questionable,” Berchelmann wrote. “In sum, there is valid reason why many in the legal community are not proud of Judge Keller's actions.”
Berchelmann added, however, that Keller “did not violate any written or unwritten rules or laws.”
“Of course, that does not absolve her of the responsibility to ensure that the courts remain fair and just,” he wrote. “Her conduct, however, does not warrant her removal from office, or even further reprimand beyond the public humiliation she has surely suffered.”
Richard v. State, 842 S.W.2d 279 (Tex.Crim.App. 1992) (Direct Appeal - Reversed).
Defendant was convicted in the 180th District Court, Harris County, Patricia R. Lykos, J., of murder in course of committing burglary and he was sentenced to death. He appealed. The Court of Criminal Appeals, Clinton, J., held that: (1) defendant was entitled to jury instruction authorizing jury to impose sentence less than death on basis of evidence of defendant's sociopathic personality and abusive childhood, and (2) evidence was sufficient to support jury finding on special issue regarding probability that defendant would commit acts of violence that would constitute continuing threat to society.
Reversed and remanded for new trial.
McCormick and White, JJ., concurred in result.
CLINTON, Judge.
On the night of August 18, 1986, Marguerite Lucille Dixon was found dead on her bed by two of her children, the victim of a single .25 caliber gunshot wound to the head. Several television sets had been taken from the house, and her son's van was missing from the driveway. There is evidence she had been sexually assaulted. Appellant does not contest the sufficiency of the evidence to establish he committed the offense.
In his seventh point of error appellant contends the trial court erred in not providing the jury at the punishment phase of trial with some instructional vehicle for exercising its “reasoned moral response” to evidence having mitigating significance beyond the scope of Article 37.071(b) special issues. Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). He contends the jury had no mechanism to respond to the full mitigating impact of evidence of his low intelligence and his antisocial personality disorder brought about by extreme childhood abuse. Appellant requested no such instruction at trial.FN1 *281 However, he was tried in August of 1987, two years before the opinion of the United States Supreme Court in Penry was delivered. This Court has held that under these circumstances Penry error need not be raised in the trial court in order to be preserved for appeal. Black v. State, 816 S.W.2d 350 (Tex.Cr.App.1991) (Campbell, J., concurring, joined by five other judges); Selvage v. Collins, 816 S.W.2d 390 (Tex.Cr.App.1991) (Opinion on Certified Question from the United States Court of Appeals for the Fifth Circuit). We will therefore reach the merits of his contention.
FN1. Appellant did ask for, and received, an instruction in the following tenor:
“You are further instructed that in determining each of these Special Issues, you may take into consideration all of the evidence submitted to you in the full trial of the case, that is, all of the evidence submitted to you in the first part of this case wherein you were called upon to determine the guilt or innocence of the Defendant, and all of the evidence, including evidence offered in mitigation of punishment, if any, admitted before you in the second part of the trial wherein you are called upon to determine the answers to Special Issues hereby submitted to you.”
Of course, an instruction telling the jury it may utilize evidence for whatever mitigating value it may have relevant to the special issues is not a Penry instruction at all. James v. State, 805 S.W.2d 415, at 417, n. 3 (Tex.Cr.App.1990). Indeed, such an instruction need not have been given in this case, even upon request. Quinones v. State, 592 S.W.2d 933, at 947 (Tex.Cr.App.1980). An instruction empowering the jury to impose a sentence less than death on the basis of evidence having mitigating value beyond its relevance to the special issues, as per Penry, was neither requested nor submitted here.
At the guilt/innocence phase of trial Dr. Jerome Brown, a clinical psychologist, testified that in testing, appellant proved to have “an IQ score of 62, which places him in the upper limits of the mentally defective range.” He explained that “[a]n IQ below 69 or 70 is obtained only by about three percent of the population and is considered quite low.” At one point Dr. Brown agreed appellant belonged in the category of “educable mentally retarded.” On crossexamination he described appellant as “slow” but not “retarded”-at least “[n]ot in the way that most people think of retarded people, no.” FN2
Dr. Brown is the same psychologist who testified at the competency hearing in Penry. Id., 492 U.S. at 307-308, 109 S.Ct. at 2941, 106 L.Ed.2d at 271. Here, he testified at guilt/innocence pursuant to appellant's strategy to persuade the jury that a statement he gave to police was not knowing and voluntary due to appellant's inability to comprehend statutory and constitutional warnings. This circumstance does not detract from the mitigating significance of Dr. Brown's testimony as it relates to the punishment phase. “Whether evidence has ‘mitigating value’ is not determined by the party who offers it, the time of admission, or its manner of admission (direct or crossexamination) into evidence during a trial. The question is merely whether this evidence was before the jury for its consideration.” Ex parte Ellis, 810 S.W.2d 208, at 211 (Tex.Cr.App.1991).
At the punishment phase of trial appellant presented testimony from his mother and one of his three sisters. Their testimony establishes an extensive history of physical and emotional abuse at the hands of appellant's father. When appellant was a child his father worked as a “long-haul truck driver,” transporting grain and livestock. Consequently he “stay[ed] up a lot on alcohol and drugs,” viz: amphetamines. Appellant's father drank “every day,” and when drinking, he was violent and quick to anger over trivial matters. Appellant's mother was sent to the hospital an unspecified number of occasions with broken ribs, a broken nose, broken foot and lumps on her head, one where appellant's father had struck her with a .38 caliber pistol. She cataloged her many scars for the jury. Appellant, the youngest child, was his mother's favorite, and drew his father's ire for that reason. His father called him a “punk,” and accused him of having sexual relations with his mother even as a child. When appellant would try to protect his mother, he suffered beatings for his troubles. The authorities would not intervene, considering the situation to be a “domestic disturbance.”
At times appellant's father would openly co-habitate with other women, to the shame of his children. Other times he kicked his wife and children out of the house, forcing them to stay with appellant's aunt. Appellant's mother suffered a nervous breakdown when appellant was four or five years old, and was hospitalized for three months. Since that time she has been under psychiatric care, suffering from anxiety and depression.
All of the children were beaten from about the age of eight years old. Appellant's father used bull whips, cattle prods and leather belts. Appellant was beaten once with “a hanger.” Appellant reportedly never cried out during these beatings. His father sexually abused each of his sisters from the age of puberty on. Once he fired a shotgun at one of appellant's sisters when she refused his advances. Appellant was aware of these abuses. He left home for good at fourteen when “[h]is daddy had whopped him with a lead rope and he said he wasn't going to see that anymore.” All of his siblings had run away by the age of fifteen. Appellant's brother is an unemployed alcoholic. Two of his sisters are under psychiatric care.
Appellant was a premature baby, and spent the first month of his life in the hospital. When he was finally released “he still was sick and we had to put him in the hospital practically every year until he got 6 years.” He had asthma and was allergic to milk. In school appellant was “slow,” earning D's and F's. He did not make it past the ninth grade, and reads without comprehension. His father taught him to steal, directing him to take livestock from rodeos. Not surprisingly, appellant developed into an angry adolescent with a bad temper.
Dr. Fred Fason, a psychiatrist, testified that he had examined appellant, and diagnosed him to be a “sociopathic personality, antisocial type.” Dr. Fason elaborated on this condition, viz:
“... I think the best thought today and the thought that I would be most in agreement with would be that these are individuals who are very narcissistic or self-centered individuals and by that I mean they have big egos, so to speak, in lay terminology. They feel entitled to whatever it is that they want.
“Gratitude is not an emotion that is very consistent with sociopathic personality or antisocial reactions. They tend to be manipulative, they tend not to have their behavior much influenced by guilt or by shame and at times not even influenced very much with consequences of the behavior. They are notoriously self-defeating in the pattern of their lives.
* * * * * *
“In this narcissistic development can be either primary narcissism, which is kind of where all of us are when we are babies. We feel like we're kind of the center of the world and entitled to what we get. Most of us around the age of 2 and a half or 3 discover that our mothers take care of us because they love us, not because they have to and we make a transition from seeing ourselves as a center of the earth to viewing ourselves as dependent upon our parents for loving and caring and attention.
“The sociopathic personality either, or the narcissistic individual, either does not make this transition of from primary narcissism to relating to others with love and what's called primary narcissism. If a person never made the transition or at times they will make the transition and they will experience love and gratitude and later trauma in their lives of one sort or another will cause them to regress back to this primitive narcissistic position where they consider what they want and their egos to be the most important things in the world and that they are entitled to what they want.
* * * * * *
“Now, in normal development we make a transition from relating to the world from the point of view of the narcissistic way of relating to the world, to psychoanalytic language of relations or love relations with others.
“Now, the sociopath either has difficulties, if it's a primary narcissistic disorder that underlays it, has never made this transition of learning to consider other people as being like himself or looking at the world through other people's eyes; if he has made the transition, then there is later trauma that has occurred of a variety of sorts that causes him to regress back to that narcissistic phase of development.
* * * * * *
“... At an early age the essential ingredient that is added to the narcissism of the sociopath is an attitude of saying to themselves ... ‘Fuck it. I don't care,’ they say to themselves.
* * * * * *
“After awhile the process becomes unconscious and they don't even think anymore about the consequences or they don't even think about how it affects people or what it says about them. They just react and this is the impulsivity of the sociopath and that's why they are in trouble with the law and everything else.”
Dr. Fason further testified that physical abuse was one of many possible triggering mechanisms for what he later termed “secondary narcissistic disturbance,” this regression back to the narcissistic phase brought on by trauma. Through a series of hypothetical questions counsel for appellant established that many of the circumstances of appellant's brutalized past were either contributory to or indicative of this kind of sociopathic personality. FN3
FN3. Asked on crossexamination whether he could say whether appellant's sociopathic personality was of the primary or secondary narcissism type, Dr. Fason replied he did not have sufficient data, but his “hunch” is appellant's is of the latter.
Moreover, Fason continued, appellant's IQ, as determined by Dr. Brown, represents “an intellectual age of about 8.” Most people in appellant's IQ range come to depend upon someone of average intelligence, a friend or parent, to help them cope; a “mentor” “that kind of functions as an auxillary [sic] intelligence for them.” A sociopathic personality, however, is not likely to develop such a relationship.FN4
FN4. There was no testimony regarding the synergistic effect, if any, between appellant's mental defectiveness and his sociopathic personality disorder.
These mitigating facts are quite similar to those detailed in Ramirez v. State, 815 S.W.2d 636, at 655 (Tex.Cr.App.1991), wherein the Court reversed the conviction for failure of the trial court sua sponte to give a Penry instruction. Like Ramirez, appellant tested in the “mentally defective” range. See also Ex parte Goodman, 816 S.W.2d 383 (Tex.Cr.App.1991); Ex parte McGee, 817 S.W.2d 77 (Tex.Cr.App.1991); Ex parte Williams, 833 S.W.2d 150 (Tex.Cr.App.1992). And appellant suffered the same variety of family abuse as Ramirez, only worse.
Recent decisions from this Court have required as a condition of reversal on the basis of Penry error “some testimony indicating a nexus between [the accused's] childhood circumstances and the commission of the crime ... indicative of a lessened moral blame-worthiness.” Nobles v. State, 843 S.W.2d 503, 506 (Tex.Cr.App.1992). See also Goss v. State, 826 S.W.2d 162 (Tex.Cr.App.1992) (Plurality opinion); Lackey v. State, 819 S.W.2d 111 (Tex.Cr.App.1991) (Opinion on appellant's motion for rehearing). Cf. Draughon v. State, 831 S.W.2d 331, at 339 (Tex.Cr.App.1992) (where appellant's mother and sister were physically abused by his step-father, but appellant himself was not, “we are not persuaded that any substantial portion of society shares a belief in the reduced culpability of persons disadvantaged in the way he describes.”). The instant record contains evidence from which a rational jury could infer that appellant's conduct in this cause was “attributable to” his sociopathic personality disorder, which in turn was brought on by trauma emanating from his “disadvantaged background.” Penry v. Lynaugh, supra, 492 U.S. at 319, 109 S.Ct. at 2947, 106 L.Ed.2d at 278, quoting California v. Brown, 479 U.S. 538, at 545, 107 S.Ct. 837, at 841, 93 L.Ed.2d 934, at 942 (1987) (O'Connor, J., concurring). We hold that this evidence provides a sufficient “nexus between [appellant's] childhood circumstances and the commission of the crime.” Nobles v. State, supra. In any event, since Nobles was decided the Court has still not required an express showing of “nexus” between evidence of mental defectiveness and the offense on trial. Ex parte Williams, supra. We conclude that appellant presented evidence that “has a tendency to reduce his moral culpability in a way not exclusively related to the deliberateness of his criminal conduct, the provocative behavior of his victim, or the probability of his future dangerousness[.]” Gribble v. State, 808 S.W.2d 65, at 75 (Tex.Cr.App.1990). On authority of Ramirez and Williams, both supra, we hold that appellant was entitled to a jury instruction authorizing the jury to impose a sentence less than death on the basis of this evidence.
In his fifth point of error appellant contends the evidence does not support the jury's affirmative finding to the second special issue, viz: “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Article 37.071(b)(2), supra. The State introduced two pen packets at the punishment phase of trial, reflecting convictions for burglary of a habitation in 1977 and 1978, and, in 1985, two convictions for felony theft and one for forgery. It was shown by testimony that appellant took, inter alia, some ten assorted firearms from the residences he broke into in 1977 and 1978. One of the 1985 felony thefts involved breaking into a residence as well, during which appellant took a pistol. We have observed that “though burglary is not necessarily a violent crime against a person, it is certainly pregnant with that potential;” that it may be a “harbinger” of future violence. King v. State, 631 S.W.2d 486, at 503 (Tex.Cr.App.1982) (emphasis in the original). In the instant offense the evidence shows appellant shot his victim in the temple at point blank range in the course of yet another burglary. All of this demonstrates a propensity to commit potentially violent crimes and a readiness to use lethal force in the process. Especially in combination with Dr. Fason's “double-edged” diagnosis of appellant as a sociopathic personality, see ante, this evidence provided the jury with a rational basis to answer the second special issue “yes.” Burns v. State, 761 S.W.2d 353 (Tex.Cr.App.1988). Appellant's fifth point of error is overruled.
Because the charge at punishment did not authorize the jury to impose a sentence less than death on the basis of evidence presented that had mitigating significance beyond the scope of the Article 37.071(b) special issues, appellant's death sentence violates the Eighth Amendment. Penry v. Lynaugh, supra. Accordingly, the judgment of the trial court is reversed and the cause is remanded for new trial.FN5
FN5. The Legislature amended Article 44.29(c) in 1991 to provide that error committed only in the punishment phase of a capital murder prosecution will not result in a whole new trial, as before, but only in a new punishment proceeding. See Acts 1991, 72nd Leg., ch. 838, p. 2900, § 1, eff. Sept. 1, 1991. However, the Legislature expressly made this amendment prospective only. Id., § 5. For this reason we need not address points of error alleging trial error in the guilt/innocence phase of trial.
Appellant was convicted of the offense of murder in the course of committing burglary, a capital offense under V.T.C.A. Penal Code, § 19.03(a)(2). The jury answered special issues affirmatively, Article 37.071(b), V.A.C.C.P., and punishment was assessed accordingly at death. Appeal to this Court is automatic. Id., § h.
