author: MEYERS, J.,

text:
    Francis William STRINGER, Appellant, v. The STATE of Texas.
    No. PD-1569-08.
    Court of Criminal Appeals of Texas.
    April 14, 2010.

      David A. Pearson, Fort Worth, for Appellant.
    Debra Ann Windsor, Asst. Dist. Atty., Fort Worth, Jeffrey L. VanHorn, State’s Atty., Austin, for State.
   OPINION

MEYERS, J.,

delivered the opinion of the unanimous Court.

Appellant was arrested for possession of child pornography. He entered an open plea of guilty, requested that the court assess punishment, and filed an application for probation. The trial court accepted the plea and ordered a pre-sentence investigation (PSI) report. At the sentencing hearing, Appellant objected to parts of the PSI that contained facts about a pending unadjudicated offense, claiming that the report violated his Sixth Amendment right to confrontation. The trial court overruled the objection, found him guilty, and sentenced him to nine years in prison. On appeal, Appellant argued that the trial court erred in overruling his confrontation clause objection. The court of appeals held that he waived the objection by signing an admonishment. We granted Appellant’s petition for discretionary review and reversed the court of appeals, holding that the waiver applied only to the guilt phase of trial. We remanded the case to the court of appeals to consider the other grounds for review. On remand, the court of appeals concluded that Appellant forfeited or was estopped from raising the Confrontation Clause objection and again affirmed the trial court. We granted this petition for discretionary review to consider whether the trial court’s consideration of the portion of the PSI containing an unadjudicated prior offense violated Appellant’s Sixth Amendment right to confrontation. We will affirm the court of appeals.

COURT OF APPEALS

On remand, the court of appeals determined that Appellant waived his Confrontation Clause objection when he filed an application for probation and put his criminal history in issue by swearing that he had never been convicted of a felony. Stringer v. State, 276 S.W.3d 95 (Tex.App.-Ft. Worth 2008). Appellant also used the positive information in the PSI to urge the court to grant probation. Id. at 103. The court of appeals ruled that a defendant should not be able to rely on the positive parts of the PSI to show that he should receive probation and at the same time nullify the statutory requirement that the judge consider his criminal history by asserting a Confrontation Clause objection to the negative portions of the PSI. Id.

According to the court of appeals, Appellant benefitted from the trial court’s order requiring preparation of a PSI in that he was able to present positive information to the trial court without having to subpoena witnesses or gather evidence. Specifically, he relied on the results of the psychosexual testing conducted pursuant to the PSI order to show that he was a strong candidate for treatment. Finally, he did not indicate that the PSI contained any factual inaccuracies. Therefore, the court concluded that Appellant forfeited his right to assert the Confrontation Clause objection to the criminal history portion of the PSI. Id. at 103-104.

The dissenting opinion asserted that the PSI statute violates the Confrontation Clause. Id. at 105. It also violates due process for the Appellant to have to call the witness against him in order to exercise his rights to confrontation and cross-examination. Id. at 106. A defendant should not have to trade his right to confront witnesses against him for his right to apply for community supervision. The dissent states that the majority’s holding improperly allows the PSI statute to prevail over the Constitution. Id. at 108-109.

ARGUMENTS OF THE PARTIES

Appellant raised the following ground for review in this petition for discretionary review:

Whether the court of appeals erred in deciding that because the Appellant filed an application for probation, and relied upon the positive information in the PSI to urge the trial court to consider probation, he forfeited or is estopped from asserting his Sixth Amendment Confrontation Clause objection to testimonial statements in the PSI and whether as a result of finding the claim forfeited the Court of Appeals wrongly rejected the argument that the Sixth Amendment Confrontation Clause was violated when the trial court in assessing punishment considered statements regarding an unadjudicated felony where those de-clarants were unavailable for cross examination and the Appellant had no pri- or opportunity to question them.

Appellant reiterates the issues raised by the dissenting opinion and argues that if the State wants the trial court to include unadjudicated offenses in a defendant’s criminal history for purposes of determining punishment, the State should present witnesses so that the defendant can be confronted with and cross-examine the accusers. Regarding waiver, forfeiture, and estoppel, Appellant says that his request for community supervision did not require him to give up his right to a fair trial. Appellant says that the court of appeals’s decision leads to the illogical conclusion that if a defendant pleads guilty, applies for probation, and accepts the preparation of the mandatory PSI, he waived any claim to the Sixth Amendment Confrontation Clause and thus could not question any document or witness except to challenge a factual inaccuracy in the report.

Appellant cites cases stating that the Confrontation Clause applies to the punishment phase of trial and concludes that, due to the harshness of his sentence, he was harmed by the admission of the unad-judicated offense.

The State argues that Appellant failed to preserve error because he did not object when the report was ordered; he waited until he saw the contents of the report and objected only to the unfavorable parts. Appellants cannot pick and choose what is considered in the report by raising confrontation objections to the negative parts. The State also contends that the Sixth Amendment Confrontation Clause does not apply to punishment proceedings. The State cites numerous federal eases stating that Crawford applies to only the guilt phase and has not been extended to sentencing.

Finally, the State argues that if the Confrontation Clause does apply to the PSI, that any error is harmless beyond a reasonable doubt because the remaining portions of the report overwhelmingly support the trial court’s sentence.

DISCUSSION

A PSI is used anytime a sentence is to be determined by a judge. Originally, a PSI was used by the court only in cases in which the defendant was sentenced to probation; however, now the report contains general punishment-phase evidence and assists the court in determining what sentence to assess. Under Code of Criminal Procedure Article 42.12 Section 9, a PSI is used in all non-capital felony cases when community supervision is an option and the judge is assessing punishment but does not intend to follow a plea-bargain agreement under which the defendant has agreed to imprisonment. The judge must order a PSI unless the defendant requests that one not be made and the judge agrees, or the judge determines that there is sufficient information in the record to permit sentencing discretion and explains his reasoning on the record. Code of Criminal Procedure Art. 42.12 § 9(b)(1) & (2). A PSI includes “the criminal and social history of the defendant, and any other information relating to the defendant or the offense requested by the judge.” Art. 42.12 § 9(a). The defendant is allowed under Section 9(e) to introduce testimony or other information alleging a factual inaccuracy in the report. The PSI statute is also mentioned in Article 37.07 Section 3(d), which relates to evidence of a prior criminal record after a finding of guilty and states that, when a judge assesses punishment, he may order a PSI. That article places no condition on the trial court in considering the contents of the PSI.

Here, the PSI contained information related to a prior offense, including statements made by lay witnesses who said they had observed pornographic images on Appellant’s home computer and evidence reported by the person who examined Appellant’s computer, which indicated the number of identified victims and number of images found on the hard drive. Appellant claims that the unadjudicated-offense information in the PSI violated his Sixth Amendment rights to confrontation as defined in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In Crawford, the Supreme Court held that a defendant had a right to confront witnesses who made testimonial statements against him. The only exception to that right is if the witness is unavailable and the defendant has had a prior opportunity for cross-examination. Id. at 59, 124 S.Ct. 1354. Crawford dealt with the guilt phase of trial, and courts have disagreed about whether it applies to a punishment hearing after a finding of guilt.

In Russeau v. State, 171 S.W.3d 871, 880-81 (Tex.Crim.App.2005), we held that the trial court’s admission of disciplinary reports in the punishment phase of a capital trial violated the appellant’s rights under the Confrontation Clause. The reports, written by corrections officers, detailed disciplinary offenses committed by the defendant while he was in jail. Although the reports were admitted under the business-records exception to the hearsay rule, we determined that “the statements in the reports amounted to unsworn, ex parte affidavits of government employees and were the very type of evidence the Clause was intended to prohibit.” Id. at 881. We reversed the appellant’s death sentence and remanded the case for a new punishment hearing. The disciplinary reports at issue in Rus-seau, however, differ from the PSI in that the information in the PSI is statutorily authorized. Russeau is also distinguishable because it was a capital case in which the jury determined punishment.

We have considered whether unadjudi-cated offenses could be included in a PSI. The issue in Smith v. State was that the unadjudicated offenses had not been shown beyond a reasonable doubt to have been committed by the defendant. We concluded that:

The plain language of Section 3(d), on its face, continues to place no condition on the trial court in considering the contents of a PSI....We therefore hold that Section 3(a)(1) of Article 37.07 does not prohibit a trial court, as a sentencing entity, from considering extraneous misconduct evidence in assessing punishment just because the extraneous misconduct has not been shown to have been committed by the defendant beyond a reasonable doubt, if that extraneous misconduct is contained in a PSI.

227 S.W.3d 753, 763 (Tex.Crim.App.2007).

Again considering the plain language of the PSI statute, we held in Fryer v. State, 68 S.W.3d 628 (Tex.Crim.App.2002), that a PSI could properly include the victim’s opinion regarding probation. Although Fryer allowed a trial court to consider evidence in a PSI that could not have otherwise been introduced at punishment, that case dealt with the Rules of Evidence and does not resolve the constitutional issue in this case. See id. at 631 (stating that the Rules of Evidence do not apply to the contents of a PSI).

In Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), the Supreme Court considered a due-process argument similar to the Confrontation Clause issue raised here. Although Williams was a capital case, the Court refused to draw a distinction on that basis. The Court explained the benefits of a trial court having open access to information at sentencing:

A sentencing judge, however, is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant — if not essential — to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial.
Under the practice of individualizing punishments, investigational techniques have been given an important role. Probation workers making reports of their investigations have not been trained to prosecute but to aid offenders. Their reports have been given a high value by conscientious judges who want to sentence persons on the best available information rather than on guesswork and inadequate information. To deprive sentencing judges of this kind of information would undermine modern peno-logical procedural policies that have been cautiously adopted throughout the nation after careful consideration and experimentation. We must recognize that most of the information now relied upon by judges to guide them in the intelligent imposition of sentences would be unavailable if information were restricted to that given in open court by witnesses subject to cross-examination. And the modern probation report draws on information concerning every aspect of a defendant’s life. The type and extent of this information make totally impractical if not impossible open court testimony with cross-examination. Such a procedure could endlessly delay criminal administration in a retrial of collateral issues.

Id. at 247, 249-50, 69 S.Ct. 1079. The Fifth Circuit applied Williams’s reasoning to a Confrontation Clause argument and noted that the Seventh Circuit has held that Craioford does not apply to a sentencing hearing:

We conclude, however, that Williams’s distinction between guilt and sentencing proceedings and its emphasis on the sentencing authority’s access to a wide body of information in the interest of individualized punishment is relevant to our Confrontation Clause inquiry. Included in the notion that information influencing a sentencing decision need not be introduced in open court is the idea that defendants have no confrontation right at that phase and therefore that testimonial hearsay is not per se inadmissible. Indeed, the Court referred to the rights to confront and cross-examine as ‘salutary and time-tested protections’ included within the due process guarantee but available only ‘where the question for consideration is the guilt of the defendant.’ [citing Williams, 337 U.S. at 245, 69 S.Ct. 1079.]
More recently, in holding that Crawford does not apply at sentencing, the Seventh Circuit has stated that ‘the relevant provision at sentencing is the Due Process Clause, not the confrontation clause; Williams shows that witnesses providing information to the court after guilt is established are not accusers within the meaning of the confrontation clause.’

United States v. Fields, 483 F.3d 313, 327-28 (5th Cir.Tex.2007) (citing United States v. Roche, 415 F.3d 614, 618 (7th Cir.), cert. denied, 546 U.S. 1024, 126 S.Ct. 671, 163 L.Ed.2d 541 (2005)).

Because the sentencing hearing in this case was identical to those conducted in federal cases, we find such federal circuit authority to be instructive.

ANALYSIS

First, we disagree with the court of appeals that Appellant waived, forfeited, or was estopped from asserting a Confrontation Clause objection. Appellant’s request for probation and his reliance on the positive information in the report did not prevent him from objecting to other parts of the PSI. The issue in this case is whether the inclusion of an unadjudicated offense in the PSI violated Appellant’s Sixth Amendment right to confrontation.

As noted in the cases cited above, the purpose of a report such as the PSI used here is to provide a wide range of information to the trial court without an adversarial hearing. The probation officer who prepares the report is neutral and the report is written in anticipation of consideration by the trial judge for sentencing, not for prosecution. The PSI “is prepared by the community supervision and corrections department and is as likely to contain information adverse to the punishment position of the state as of the defense.” 43 Dix and Dawson, Texas Practice: Criminal Practice and Procedure sec. 38.167 (2d ed. 2001). By statute, the Legislature has directed what is to be included in a PSI, and the statute does not limit the criminal history to final convictions. The PSI statute also provides the defendant the opportunity to present contrary evidence.

We hold that when a PSI is used in a non-capital case in which the defendant has elected to have the judge determine sentencing, Crawford does not apply. For us to conclude in Appellant’s favor would require a trial judge to hold a mini-trial for sentencing and would thwart the purpose of the PSI as a tool for the court to use in determining punishment. This holding is limited to a sentencing hearing in which the judge assesses punishment. We need not address here whether Crawford applies when a jury determines the sentence in a non-capital case.

CONCLUSION

We agree with the judgment, but not the reasoning, of the court of appeals. When the sentence is determined by the judge, the information in a PSI is not subject to the Confrontation Clause. Therefore, Appellant’s Sixth Amendment rights were not violated by the inclusion of unadjudicated-offense information in the report. The court of appeals is affirmed.

      . While the court of appeals reasoned that Appellant waived or was estopped from asserting a Confrontation Clause objection, the court held that Appellant forfeited his Confrontation Clause objection. Stringer, 276 S.W.3d at 104. Although the issue was not raised and is not necessary to our analysis, we note Marin v. State, 851 S.W.2d 275 (Tex.Crim.App.1993), which discusses the distinction between waiver and forfeiture.

      . Unless otherwise indicated, all future references to Articles or Sections refer to the Code of Criminal Procedure.

      . Our PSI statute is very similar to the Federal Rule of Criminal Procedure related to pre-sentence investigations and presentence reports. See Fed.R.Crim.P. 32.


source: Caselaw Access Project

author: HOLCOMB, J.,

license: Public Domain

text:
    Rudy GONZALES, Appellant, v. The STATE of Texas.
    No. PD-0882-08.
    Court of Criminal Appeals of Texas.
    April 28, 2010.

      Mark Thering, Houston, for Appellant.
    Jim Vollers, Jeffrey L. VanHorn, State’s Attorney, Austin, for State.
   OPINION

HOLCOMB, J.,

delivered the opinion for a unanimous Court.

In this case, we must determine whether appellant’s 1987 offense was a final conviction for enhancement purposes. We hold that it was and reverse the judgment of the court of appeals.

Background

Appellant Rudy Gonzales was charged with the felony offense of driving while intoxicated (DWT). The indictment alleged that appellant committed the DWI offense on or about February 16, 2002, and that he had previously been convicted of DWI on November 23, 1987, and January 18, 2000. At a pre-trial hearing, on February 7, 2005, appellant moved to quash the indictment, arguing that his 1987 conviction was too remote, under Getts v. State, 155 S.W.3d 153 (Tex.Crim.App.2005), to be used to enhance the present conviction because more than ten years had passed between 1989 (when his two-year term of community supervision for the 1987 DWI offense was supposed to expire) and 2000 (when he was convicted for the second DWI offense). The trial court overruled the motion on the ground that appellant was not actually discharged from community supervision until 1991, and that the 1991 date of discharge was within the ten-year period of appellant’s second conviction in 2000. In the trial that followed, the jury convicted appellant of felony DWI, assessed his punishment at six years’ imprisonment and a $5,000 fine, but recommended that the trial court suspend both the fine and the confinement, and place appellant on community supervision. The trial court followed the jury’s recommendations, and placed appellant on community supervision for a period of ten years.

On direct appeal, appellant raised two issues, only one of which is relevant to our present review: that the trial court erred in permitting his 1987 conviction to be used to enhance the present offense to felony DWI because that conviction was too remote for such purposes. The court of appeals declined to reach this issue, however, in light of its own conclusion that “the 1987 offense was not a final conviction and could not be used to enhance the current offense to a felony offense.” Gonzales v. State, No. 13-05-132-CR, 2008 WL 4754834, at *1, 2008 Tex.App. LEXIS 2326, at *1-2 (Tex.App.-Corpus Christi, April 3, 2008) (not designated for publication). We granted the State’s petition for discretionary review to consider the following issues: whether the court of appeals erred in (1) “concluding that the evidence was insufficient to sustain respondent’s conviction for driving while intoxicated”; (2) “effectively concluding that the written statement of a county judge in a judgment effectively overrules an act of the Legislature”; (3) “concluding that a judgment of the county court of Colorado County, Texas, which stated that ‘the court having heard the information read and the evidence submitted thereon, it is considered and adjudged by the court that the defendant is guilty as charged in the information’ did not contain an adjudication of guilt”; and (4) “concluding that respondent’s conviction in the county court of Colorado County, Texas[,] was unavailable for enhancement purposes because it was not a final conviction.”

Discussion

The court of appeals concluded that the trial court’s judgment in 1987 did not render a final conviction, and therefore it could not be used to enhance appellant’s present offense to a felony offense. Gonzales, 2008 WL 4754834 at *1, 2008 Tex. App. LEXIS 2326 at *1-2. In reaching this conclusion, the court of appeals focused on the following paragraph in the trial court’s judgment for appellant’s 1987 DWI conviction: “ ‘IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED that the finding of guilty herein shall not be final, that no judgment be rendered thereon, and that Defendant be, and is hereby placed on probation in this cause for a period of two years.’ ” Id. at *2, 2008 Tex.App. LEXIS 2326 at *10 (emphasis in original). The court of appeals then reasoned as follows,

In State v. Kindred, 773 S.W.2d 766, 767-68 (Tex.App.-Corpus Christi 1989, no pet.), this Court, relying on Savant v. State, 535 S.W.2d 190, 191-92 (Tex.Crim.App.1976), held that instruments containing exactly the same language “(did) not contain adjudications of guilt, and therefore, (were) not judgments.” The language at issue in Kindred — and the language in the purported judgment here — is very similar to the language that the court of criminal appeals found insufficient to constitute a judgment in Savant. The court of criminal appeals held that because the instrument did not contain an adjudication of guilt, it was not a judgment.

Id. (additional citations omitted). The court of appeals further noted that “[t]he language in appellant’s 1987 purported judgment [was] identical to the language [it had] found insufficient to constitute a judgment in Kindred.” Id. at *2, 2008 Tex.App. LEXIS 2326 at *12. In light of the above reasoning, the court of appeals held that “the instrument offered by the State [in the present case] to establish appellant’s 1987 prior conviction [was] insufficient to constitute a judgment,” that the State had thus “failed to carry its burden of establishing two prior convictions,” and that “the evidence [was therefore] insufficient to support appellant’s conviction for felony DWI.” Id.

We disagree. The court of appeals relies on its own precedent, Kindred, which in turn relies on our decision in Savant. But Savant is not applicable to the present case, because it did not deal with the question of finality of a conviction. Our only concern in that case was whether the trial court’s judgment comported with the statutory requirements of a valid judgment. See 535 S.W.2d at 191-92. As we noted, Section 1 of the then-existing Article 40.09 of the Code of Criminal Procedure required that a valid judgment must “contain the requisites of Art. 42.01” of the Code of Criminal Procedure, showing that the defendant was “ ‘adjudged to be guilty of the offense as found by the jury,’ ” and that he “ ‘be punished as ha[d] been determined.’ ” Id. at 191 (quoting from the then-existing Tex.Code Crim. Proc. art. 42.01). We noted that the judgment in question in that case did not comply with these two statutory requirements, but “[i]n fact ... contained] language to the contrary.” Id. We illustrated this point by quoting the relevant language from that judgment, to wit, “‘It is therefore CONSIDERED, ORDERED and ADJUDGED that the Verdict and finding of guilty herein shall not be final, that no Judgment be rendered thereon.’ ” Id. at 191-92. In light of these observations, we concluded that the judgment in that case did not “comport” with the requirements of Articles 42.01 and 40.09 of the Code of Criminal procedure. Id. at 192.

In short, our decision in Savant was based on the fact that the judgment at issue did not meet the statutory requirements because it failed to mention that the defendant had been adjudged guilty and that he was to be punished as had been determined. In contrast, the judgment at issue in the present case contains both of these pre-requisites:

[I]t is considered and adjudged by the Court that the Defendant is guilty as charged in the [indictment] of the offense of Driving While Intoxicated and [the Court] assesses his punishment at a fine of $500.00 and 30 days confinement in the Colorado County Jail, together with all costs in this behalf incurred.

The State focuses on the above paragraph, while the paragraph quoted by the court of appeals appears later in the judgment in question. But it is the paragraph in the middle of these two paragraphs that serves as a transition and, in effect, resolves the apparent inconsistency between the other two paragraphs. It is therefore important to read the relevant portion of the judgment in its entirety:

[I]t is considered and adjudged by the Court that the Defendant is guilty as charged in the [indictment] of the offense of Driving While Intoxicated and [the Court] assesses his punishment at a fine of $500.00 and 30 days confinement in the Colorado County Jail, together with all costs in this behalf incurred.
It appearing to the Court, however, that before this trial Defendant made application in writing and under oath to the Court for probation herein; and it further appearing to the Court that Defendant satisfies the requirements of the Misdemeanor Probation Law of Texas and that the ends of justice and the best interests of society and of the Defendant will be served by granting probation in this cause.
IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED that the finding of guilty herein shall not be final, that no judgment be rendered thereon, and that Defendant be, and is hereby placed on probation in this cause for a period of two years from this date.

When read in context, the sense of each paragraph becomes quite clear. The first paragraph shows that the judgment is final. The middle paragraph then takes community supervision into consideration, whereby the third paragraph at issue in this case suspends the imposed sentence in favor of such community supervision. Thus, the words “the finding of guilty herein shall not be final, that no judgment be rendered thereon” in the judgment do not pertain to the finality of the conviction for enhancement purposes, but rather to the suspension of the sentence necessary to grant community supervision to appellant.

As our analysis shows, the court of appeals’ conclusion that the 1987 judgment was not a final conviction conflicts with a plain reading of the instrument itself. In fact, it also conflicts with the law in effect at the time that the instrument was issued. As the then-existing Article 67011-1 of the Revised Statutes stated, “For the purposes of this article, a conviction for an offense that occurs on or after January 1, 1984, is a final conviction, whether or not the sentence for the conviction is probated.” See Driving While Intoxicated Act (S.B. 1), 68th Leg., R.S., ch. 303, § 3(h), 1983 Tex. Gen. Laws 1568,1576, repealed by the Acts of 1993 (S.B. 1067), 73rd Leg., R.S., ch. 900, § 1.15, 1993 Tex. Gen. Laws 3586, 3704. See also Ex parte Serrato, 3 S.W.3d 41, 43 (Tex.Crim.App.1999) (concluding that, “by incorporating the prior DWI statute, as that law existed before enactment of the new statute, the Legislature declared its intent to continue the status quo, which included permitting probated DWI convictions for enhancement if the offense occurred after January 1,1984.”).

For the foregoing reasons, we hold that the court of appeals erred in holding that appellant’s 1987 offense was not a final conviction for enhancement purposes, Gonzales, 2008 WL 4754834 at *1, 2008 Tex. App. LEXIS 2326 at *1-2, and that the evidence was therefore insufficient to support appellant’s conviction for felony DWI in the present case. Id. at *2, 2008 Tex. App. LEXIS 2326 at *12. In light of our decision, we do not reach the other issues raised by the State.

Conclusion

The court of appeals erred in holding that appellant’s 1987 offense was not a final conviction and could therefore not be used to enhance the present offense. We, therefore, remand the case to that court to consider the two issues — possible remoteness of the 1987 conviction and the admissibility of the State’s allegedly “highly prejudicial hypothetical question” at trial — that appellant raised on appeal.

      . See Tex. Pen.Code §§ 49.04 & 49.09(b)(2).

      . On November 23, 1987, appellant was convicted of DWI and placed on community supervision for two years. On November 21, 1989, the State filed a motion to revoke appellant’s community supervision. The trial court granted the motion and issued a capias for appellant's arrest for a hearing on the revocation of his community supervision. For reasons not indicated in the record, however, the capias was never served and the revocation hearing never took place. On July 12, 1991, the State filed a motion to dismiss its earlier motion to revoke appellant’s community supervision. The trial court granted this motion and, on July 24, 1991, issued an order discharging appellant from community supervision.

      . Depending on our decision regarding appellant’s 1987 conviction, the State also asked us to consider whether the court of appeals erred in (5) "concluding that it had no authority to reform the judgment to reflect conviction of respondent on a lesser-included offense because the jury charge did not authorize respondent’s conviction for the lesser-included offense of misdemeanor DWI with one prior conviction,” and (6) "ordering a judgment of acquittal in this case.” In light of our disposition of the case, however, we need not reach these issues.

      . The State argues that the problem in the present case arises from the "negligent use of an outdated judgment form.” State's Br. at 12. We are aware that the law on even requiring a judgment in misdemeanor DWI cases, as well as on the finality of such convictions when the law did begin to require judgments in such cases, has changed significantly over the years, and that some trial courts have had a difficulty keeping abreast of these changes. See, e.g., Gibson v. State, No. 05-99-01309-CR, 2000 WL 1515986, 2000 Tex. App. LEXIS 6921 (Tex.App.-Dallas, October 13, 2000) (not designated for publication), for a good discussion of this problem. The cases discussing this problem, however, quote only the disputed paragraph in the judgment. Thus, there is no way for us to know whether there might have been other paragraphs in the judgments at issue in those cases that might have helped resolve the problem created by the disputed paragraph. Although the disputed paragraph in the judgment at issue in the present case could certainly have been worded more clearly, the problem it created is easily resolved when it is read in its proper context. In light of this resolution, we find it unnecessary to discuss the matter any further except to note that the State's argument regarding the possible use of an outdated judgment form might have some merit.


author: WOMACK, J.,

text:
    Ex parte Roy Gene SMITH, Applicant.
    No. AP-76,035.
    Court of Criminal Appeals of Texas.
    April 28, 2010.

      Robert C. Owen, Austin, for Appellant.
    Jack Roady, Asst. District Atty., Houston, Jeffrey L. VanHorn, State’s Attorney, Austin, for State.
   WOMACK, J.,

delivered the opinion of the unanimous Court.

This is a subsequent post-conviction application for writ of habeas corpus. The applicant claims that he is entitled to relief from his death sentence “because he presented significant mitigating evidence related to his moral culpability and the appropriateness of a death sentence that could not be given full effect by the sentencing jury.” We find that the trial court erred by not providing the jury a constitutionally adequate vehicle by which it could fully consider and give effect to the applicant’s relevant evidence of poverty, a crime-ridden neighborhood, and drug addiction. We also find that the applicant was egregiously harmed by this error. We therefore remand to the trial court for new punishment proceedings.

I. Constitutional Background

The United States Supreme Court has established two key principles that guide the process by which a jury may assess the death penalty. First, while the death penalty is not per se cruel and unusual punishment in violation of the Eighth Amendment, a jury’s discretion to assess the death penalty “must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” Second, the jury must be provided a vehicle by which to fully consider and give effect to mitigating evidence of “the character and record of the individual offender and the circumstances of the offense.”

With respect to the second principle, the Supreme Court has held that the mitigating evidence must first be relevant. Relevant evidence in this context is “evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value.” A vehicle need not be provided when the evidence has “only a tenuous connection — ‘some arguable relevance’ — to the defendant’s culpability,” but only when the evidence “may have meaningful relevance to the defendant’s moral culpability ‘beyond the scope of the special issues.’ ” Once this “low threshold for relevance” is met, the jury must be provided an adequate vehicle by which to fully consider and give effect to the evidence.

At the time the applicant was sentenced, the jury was required to answer special issues of deliberateness, future dangerousness, and, if raised by the evidence, provocation. The Supreme Court found that these special issues adequately directed and limited the jury’s discretion. But if a defendant presented relevant mitigating evidence that was outside the scope of the special issues, or that had an aggravating effect when considered within the scope of the special issues, the special issues were a constitutionally inadequate vehicle for the jury to fully consider and give effect to the mitigating evidence. Where the special issues were an inadequate vehicle, a “nullification instruction,” such as the one given to the applicant’s jury, was insufficient to cure the constitutional inadequacy of the special issues.

II. Procedural History

A. Trial

In May 1990, a jury convicted the applicant of capital murder. At the conclusion of the punishment phase, the trial court instructed the jury to answer three special issues:

(1) Was the conduct of the defendant, Roy Gene Smith, that caused the death of the deceased committed deliberately and with the reasonable expectation that the death of the deceased or another would result?
(2) Is there a probability that the defendant, Roy Gene Smith, would commit criminal acts of violence that would constitute a continuing threat to society?
(3) Was the conduct of the defendant, Roy Gene Smith, in killing the deceased unreasonable in response to the provocation, if any, by the deceased?

In response to Penry I, the trial court also gave the jury the following “nullification instruction”:

You are instructed that when you deliberate on the questions posed in the special issues, you are to consider mitigating circumstances, if any, supported by the evidence presented in both phases of the trial, whether presented by the State or the defendant. A mitigating circumstance may include, but is not limited to, any aspect of the defendant’s character, background, record, or circumstances of the crime which you believe could make a death sentence inappropriate in this case. If you find that there are any mitigating circumstances in this case, you must decide how much weight they deserve, and thereafter, give effect and consideration to them in assessing the defendant’s personal culpability at the time you answer the special issue. If you determine, when giving effect to the mitigating evidence, if any, that a life sentence, as reflected by a negative finding to the issue under consideration, rather than a death sentence, is an appropriate response to the personal culpability of the defendant, then a negative finding should be given to that special issue under consideration.

The jury answered the special issues affirmatively and did not employ the nullification instruction. The trial court sentenced the applicant to death.

B. Direct Appeal

The applicant appealed his conviction and sentence directly to this Court. In his first point of error, the applicant contended that “the trial court erred by giving the jury an unauthorized instruction on mitigation which failed to advise them of a comprehensible method of determining and utilizing mitigating evidence.” We found that the nullification instruction was “sufficient to overcome the constitutional infirmity of Penry [I].” We also found that the applicant “failed to make a contemporaneous objection to the court’s charge,” and ultimately affirmed the judgment and sentence of the trial court.

C. Initial State Application

In April 1997, the applicant filed his initial state application for writ of habeas corpus. He claimed that he was denied the effective assistance of counsel because his counsel failed to adequately investigate his history and retain a mitigation specialist. The trial court made the following findings of fact describing the applicant’s mitigating evidence:

10. During the punishment phase of trial, the applicant testified that he used drugs twenty-four hours a day every day of the week, and that the drugs must have put him in the position that he was in as a result of the crime.
11. During the punishment phase of trial, the applicant testified that other crimes he had committed were influenced by “drinking heavy and smoking weed.”
12. During the punishment phase of trial, the applicant testified that he needed money to support his habit.
15. , During the punishment phase of trial, the applicant’s mother testified that the applicant’s father died in 1971.
16. During the punishment phase of trial, the applicant’s mother testified that she currently supports herself by welfare while living in a house with thirteen other family members.
17. During the punishment phase of trial, the applicant’s mother testified that she lived in a high-crime area, and that she would have left the neighborhood if she could have afforded to move. 18. During the punishment phase of trial, the applicant’s mother testified that the applicant attempted to help raise his son and that the applicant worked at a steel plant in Baytown.
20. During the punishment phase of trial, the applicant’s mother testified that the applicant did well when he was staying in the penitentiary.
22.During the punishment phase of trial, the applicant’s sister described the neighborhood in which the applicant lived, including the prevalence of drugs, robberies, and prostitution.
23. During the punishment phase of trial, the applicant’s sister related an incident where both she and the applicant were robbed at gun-point in the middle of the street.
24. During the punishment phase of trial, the applicant’s sister stated that the applicant had been raised in the church.

In an unpublished order, we stated that we had reviewed the record and that “[t]he findings and conclusion by the trial court are supported by the record.” We denied relief on this basis.

D. Federal Petition

In May 2000, the applicant filed a petition for writ of habeas corpus in federal district court. The district court dismissed the petition, but the United States Court of Appeals for the Fifth Circuit granted a certificate of appealability on two issues: (1) whether the applicant’s trial counsel provided ineffective representation, and (2) whether the jury instructions at the sentencing phase violated Perny 7.

The Fifth Circuit ultimately denied relief on both issues. With respect to Pen-ry I, the Fifth Circuit discussed four categories of mitigating evidence: “poverty; drug addiction and intoxication; character evidence; and growing up in the crime-ridden neighborhood of the Fifth Ward of Houston.” The Fifth Circuit found that the jury was able to give full effect and express their reasoned moral response to the applicant’s evidence of drug addiction and intoxication through the special issues. If jurors determined that the applicant’s substance abuse hindered his ability to make a conscious decision to commit capital murder, they could have answered the deliberateness special issue in the negative. If jurors reasonably assumed that the applicant would not have access to drugs and could receive rehabilitative services in prison, and therefore his proclivities toward violent behavior would lessen after overcoming his addictions, the jurors could have answered the future-dangerousness special issue in the negative. The Fifth Circuit did not find authority for drug addiction as a mitigating factor that could reduce a defendant’s moral culpability outside its relevance to the special issues.

The Fifth Circuit also found that the applicant’s evidence of growing up in an impoverished and crime-ridden neighborhood was “clearly relevant mitigating evidence,” and was outside the scope of the special issues, but ultimately had “only a tenuous connection to any attempt to diminish [the applicant’s] moral culpability for his crime.” The types of experiences the applicant presented were not “particularized childhood experiences of abuse and neglect.” In fact, the only specific example of victimization that the applicant presented occurred in 1988, when the applicant was at least 29 years old. The Fifth Circuit emphasized that “our holding here is a narrow one, based on our detailed review of the record which contains no evidence of a connection between the poverty and crime of the Fifth Ward and [the applicant’s] character.”

III. Analysis

The applicant now claims that he is entitled to relief “because he presented significant mitigating evidence related to his moral culpability and the appropriateness of a death sentence that could not be given full effect by the sentencing jury.” The applicant specifically cites the following mitigating evidence:

[The applicant’s] family lived in poverty, caused in part by the loss of his father when he was 12 years old. [The applicant’s] mother, ... working as a maid, could not afford to move the family from Houston’s “Fifth Ward,” a dangerous neighborhood filled with prostitution, drugs, and crime. At the time of the crime, fourteen people lived in [the applicant’s mother’s] three-bedroom home. [The mother of the applicant’s son] was violently killed, so [the applicant’s mother] took [the applicant’s son] into her house as well. Shortly before the crime, [the applicant] and his younger sister, ... were violent crime victims themselves — with [the applicant’s] sister forced to strip in public in front of him, and [the applicant] assaulted with a gun that misfired as it was held to his tem-pie. Surrounded by drugs and poverty all his life, [the applicant] became a drug addict, using crack whenever he could get a hold of it. Lacking education and any job skills or opportunities, [the applicant] began to steal to support his addiction.

The applicant argues that this evidence “gave important context to [his] crimes, and a properly instructed jury could well have concluded that [he] was less deserving of the death penalty as a result of his own deprivations, victimization, and addiction.” He further argues that the trial court erred because the evidence could not be given meaningful effect under the special issues, and the nullification instruction did not correct that problem. Finally, he argues that he preserved this error at trial, and in any event he was egregiously harmed by the error. In the alternative, he invites us to reconsider whether harm analysis is appropriate for errors of this type.

The State does not contest the insufficiency of the nullification instruction to cure any error in the special issues. Instead, the State follows the reasoning of the Fifth Circuit and argues that some of the applicant’s evidence did not warrant a vehicle for its consideration, and the special issues were a sufficient vehicle for other evidence. To demonstrate error, therefore, the applicant must show that his mitigating evidence (1) was relevant, and (2) was either outside the scope of the special issues, or had an aggravating potential when considered within the scope of the special issues. The mitigating evidence cited by the applicant may be broken into three categories for the purposes of our analysis: (A) poverty and crime-ridden neighborhood, (B) victimization, and (C) drug addiction.

A. Poverty and Crime-Ridden Neighborhood

The Fifth Circuit found that the applicant’s evidence of poverty and a crime-ridden neighborhood was “clearly relevant mitigating evidence” and did not fit within the special issues. Nevertheless, , based pn its interpretation of Ten-nard, Brewer, and particularly footnote 14 of Abdul-Kabir, the Fifth Circuit stated that “the inquiry does not end here.” The Fifth Circuit proceeded to explain that the jury did not need an adequate vehicle because the evidence had “only a tenuous connection to any attempt to diminish [the applicant’s] moral culpability for his crime.”

We do not find the Fifth Circuit’s interpretation of Tennard, Brewer, and Abdul-Kabir to be persuasive. In our opinion, a fair reading of those cases suggests that the “inquiry” consists of only two steps: (1) whether the evidence is relevant, and (2) whether the evidence falls outside the scope of the special issues or may be considered aggravating when considered within the scope of the special issues. We understand footnote 14 of Abdul-Kabir to further define the “low threshold for relevance,” rather than to add a separate third step to the inquiry.

Furthermore, a jury could find that the applicant’s evidence of life in poverty and a crime-ridden neighborhood does have more than a “tenuous connection” to his moral culpability. This evidence tends logically to prove that the applicant suffered the sort of deprived and troubled childhood that a fact-finder could reasonably deem to have mitigating value. As with general questions of relevance, the evidence “need not by itself prove or disprove a particular fact to be relevant; it is sufficient if the evidence provides a small nudge toward proving or disproving some fact of consequence.” The weight of the applicant’s mitigating evidence may be significantly less than the evidence of “particularized childhood experiences of abuse and neglect” in Penry I, Abdulr-Kabir, and several cases decided by this Court. But questions of the weight or sufficiency of the evidence are not before us. The question before us is whether the evidence meets the “low threshold for relevance.”

We agree with the Fifth Circuit that this evidence was outside the scope of the special issues. Because the evidence was relevant and outside the scope of the special issues, we therefore find that the trial court erred in failing to provide a constitutionally adequate vehicle for its consideration.

B. Victimization

The applicant alleges that “just before the commission of the present offense,” he and his sister were violently assaulted, and he was “humiliated by his inability to protect his sister from assault.” We find that this evidence of victimization “shortly before the crime” fell within the scope of the future-dangerousness special issue as a transient feature of the applicant’s character. This evidence was mitigating within the special issue because, if the jury believed that the applicant’s crime was only a reaction to the lingering humiliation, stress, or other effects from the assault, they would have answered the special issue in the negative. The trial court did not err with respect to this evidence.

C. Drug Addiction

The Fifth Circuit did not find precedent “considering] drug addiction as a mitigating factor that reduces a criminal defendant’s moral culpability outside its relevance to the special issues.” We, however, do find such precedent. In Brewer, the Supreme Court did not discuss independently the defendant’s evidence of drug abuse, but found it to be among evidence that operated as a “ ‘two-edged sword’ because it tended to confirm the State’s evidence of future dangerousness as well as to lessen his culpability for the crime.” Similarly, in Ex parte Martinez, we did not discuss independently the defendant’s evidence of alcohol abuse since the age of thirteen, but found it to be among evidence that did not negate the special issues and provided “an explanation for his behavior that might reduce his moral culpability.”

In light of Brewer and Martinez, we find that the applicant’s evidence of a severe drug addiction that was supported by proceeds from violent crime is both relevant and outside the scope of the special issues. The evidence tends logically to show that the applicant’s ability to exercise moral judgment (as compared to his ability to exercise control of his conduct) was overcome by his severe drug addiction. A fact-finder could reasonably deem this circumstance to have mitigating value. While it did not disprove deliberateness or future dangerousness, it was an explanation for his behavior that might reduce his moral culpability. The trial court therefore erred in failing to provide the jury a constitutionally adequate vehicle by which to fully consider and give effect to the evidence.

IV. Harm

The constitutional error in this case was in the failure of the special issues to provide a vehicle for the jury to consider the applicant’s mitigating evidence, rather than the failure of the nullification instruction to provide such a vehicle. Despite this error in the special issues, we shall not grant relief from the judgment unless the applicant demonstrates harm. If the error was not objected to at trial, we shall grant relief only if “the error is so egregious and created such harm that [the applicant] ‘has not had a fair and impartial trial.’ ” Error creating egregious harm is also described as error that must “go to the very basis of the case,” or “vitally affect [the defendant’s] defensive theory.”

In our 1993 opinion on direct appeal, we found that the applicant had “failed to make a contemporaneous objection to the court’s charge.” In this subsequent writ application, the applicant argues that this finding requires reexamination in light of LaRoyce Smith II. The applicant alleges that before the trial, he objected to

former Article 37.071 of the Code of Criminal Procedure as “den[ying] the Defendant protection from cruel and unusual punishment,” specifically because the statutorily mandated special issues did not allow jurors to answer “the life or death question;” the statute permitted the court only to submit “these three (3) rather meaningless issues, affirmative answers to which result in a mandatory death sentence.” When this motion was considered by the court as trial began, [the Applicant’s] counsel repeated that “the language of the statute
is so — it would require an affirmative answer to all of the issues,” adding that this effect “is a denial of due process in the 8th amendment, with regard to the death penalty in a capital murder case.”

We will not overturn our previous finding. The objections cited by the applicant mention neither Penry I nor anything about the adequacy of the vehicle by which the jury could consider and give effect to mitigating evidence. Rather, the cited objections challenge the adequacy of the special issues to satisfy the principle that the jury’s discretion must be “suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” LaRoyce Smith II does not help the applicant because the defendant in that case did object to the failure of the special issues to allow consideration of mitigating evidence.

Having failed to make a sufficient objection, the applicant must demonstrate egregious harm. Considering the evidence introduced and the applicant’s defensive theories at the punishment phase of his trial, we find that the error did egregiously harm the applicant. The applicant put significant emphasis on mitigation during the punishment phase. His evidence of drug addiction, poverty, and a crime-ridden neighborhood was at the heart of his mitigation theory. While we cannot say what credibility or weight the jurors might have given it, since it went to the heart of the applicant’s defensive theory, such mitigating evidence was nonetheless relevant and outside the scope of the special issues. Therefore, the trial court was required to provide a constitutionally adequate vehicle for the jury to fully consider and give effect to it. The trial court’s failure to do so “[went] to the very basis of the case” and “vitally affected [the applicant’s] defensive theory” at the punishment phase, because the jury had no adequate means to act upon the applicant’s mitigation theory, such as it was.

Because there was constitutional error in the punishment phase of the applicant’s trial by which he was egregiously harmed, we remand this case to the trial court for new punishment proceedings.

      . See Johnson v. Texas, 509 U.S. 350, 360, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993) (recognizing "some tension” between the two principles).

      . Gregg v. Georgia, 428 U.S. 153, 169, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).

      . Id., at 189, 96 S.Ct. 2909 (citing Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)).

      . Woodson v. North Carolina, 428 U.S. 280, 303-05, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); see also Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (“[T]he Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of the defendant's character or record and any circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”) (emphasis in original); Penry v. Lynaugh, 492 U.S. 302, 318, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (Penry I) ("Underlying Lockett and Eddings [v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982),] is the principle that punishment should be directly related to the personal culpability of the criminal defendant.”).

      . McKoy v. North Carolina, 494 U.S. 433, 440, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990) (quoting State v. McKoy, 323 N.C. 1, 372 S.E.2d 12, 45 (1988) (Exum, C.J., dissenting)); see also Tennard v. Dretke, 542 U.S. 274, 284-85, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004) (" ‘[T]he meaning of relevance is no different in the context of mitigating evidence introduced in a capital sentencing proceeding’ than in any other context ...") (quoting McKoy, 494 U.S., at 440, 110 S.Ct. 1227); Tex.R. Evid. 401 (" 'Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”).

      . Abdul-Kabir v. Quarterman, 550 U.S. 233, 253 n. 14, 127 S.Ct. 1654, 167 L.Ed.2d 585 (2007) (emphasis in original).

      . Tennard, 542 U.S., at 285, 124 S.Ct. 2562.

      . Jurek v. Texas, 428 U.S. 262, 271, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976).

      . Compare Abdul-Kabir, 550 U.S., at 261, 127 S.Ct. 1654 (finding evidence of "particularized childhood experiences of abuse and neglect" to be outside the scope of the special issues) with Graham v. Collins, 506 U.S. 461, 476, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993) (finding evidence of youth, transient upbringing, and nonviolent character to be within the scope of the special issues) and Johnson, 509 U.S., at 368, 113 S.Ct. 2658 (finding evidence of youth to be within the scope of the special issues).

      . See, e.g., Brewer v. Quarterman, 550 U.S. 286, 294-95, 127 S.Ct. 1706, 167 L.Ed.2d 622 (2007) ("[TJhe Texas special issues do not provide for adequate consideration of a defendant's mitigating evidence when that evidence functions as a ‘two-edged sword.’ ").

      . Penry I, 492 U.S., at 328, 109 S.Ct. 2934.

      . Penry v. Johnson, 532 U.S. 782, 804, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (Penry II).

      . Roy Gene Smith v. State, No. 71,099, slip op. at 1 (Tex.Cr.App. Feb. 24, 1993) (not designated for publication).

      . Id., at 2.

      . Id., at 2-3.

      . Ex parte Roy Gene Smith, No. WR-42,801-01 (Tex.Cr.App. Sep. 29, 1999) (not designated for publication).

      . Id.

      . Roy Gene Smith v. Cockrell, CA No. H-00-1771 (S.D.Tex. March 31, 2003).

      . Roy Gene Smith v. Dretke, 422 F.3d 269 (5th Cir.2005).

      . Roy Gene Smith v. Quarterman, 515 F.3d 392 (5th Cir.2008).

      . Id., at 407.

      . Id., at 409.

      . Id., at 409-10.

      . Id., at 410.

      . Id., at 412.

      . Id., at 413 (citing Abdul-Kabir, 550 U.S., at 253 n. 14, 127 S.Ct. 1654).

      . Id., at 414 (quoting Abdul-Kabir, 550 U.S., at 261, 127 S.Ct. 1654).

      . Id., at 414.

      . Id.

      . The State agrees that we may consider the merits of this subsequent application in light of the new law announced by the Supreme Court in Penry II, 532 U.S., at 804, 121 S.Ct. 1910 (finding a nullification instruction insufficient to cure the constitutional inadequacy of special issues). Pemy II was unavailable as a legal basis for the Applicant's claim at the time of his direct appeal and initial application for writ of habeas corpus. See Tex.Code Crim. Proc. art. 11.07, § 5.

      . The Applicant’s description of his mitigating evidence largely mirrors the findings of fact produced by the trial court in response to the Applicant's initial writ application, as well as the mitigating evidence described by the Fifth Circuit. The State does not dispute this description of the mitigating evidence.

      . In Roy Gene Smith v. Quarterman, the Fifth Circuit analyzed the same arguments that are before us. We are not bound by the conclusions of the Fifth Circuit, but we will adopt its reasoning if it is persuasive. See Guzman v. State, 85 S.W.3d 242, 249 n. 24 (Tex.Cr.App.2002) (“Although we are not required to follow lower federal court interpretations of a federal constitutional right, we may find the reasoning in those cases persuasive.”).

      . Roy Gene Smith v. Quarterman, 515 F.3d, at 412.

      . Abdul-Kabir, 550 U.S., at 253 n. 14, 127 S.Ct. 1654 ("The rule that we reaffirm today — a rule that has been clearly established since our decision in Penry I — is this: Special instructions are necessary when the jury could not otherwise give meaningful effect to a defendant's mitigating evidence. The rule is narrower than the standard urged by Graham because special instruction is not required when mitigating evidence has only a tenuous connection — 'some arguable relevance’ — to the defendant’s moral culpability. But special instruction is necessary when the defendant’s evidence may have meaningful relevance to the defendant’s moral culpability ‘beyond the scope of the special issues.' ”) (internal citations omitted).

      . Roy Gene Smith v. Quarterman, 515 F.3d, at 412.

      . Id., at 413.

      . Tennard, 542 U.S., at 284-85, 124 S.Ct. 2562; Brewer, 550 U.S., at 294, 127 S.Ct. 1706.

      . Tennard, 542 U.S., at 285, 124 S.Ct. 2562.

      . See McKoy, 494 U.S., at 440, 110 S.Ct. 1227 (Relevant evidence is “evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value.”). In the language of Texas Rule of Evidence 401, the Applicant’s evidence of life in poverty and a crime-ridden neighborhood is relevant because it has a tendency to make a deprived and troubled childhood more probable than it would be without the evidence.

      . Stewart v. State, 129 S.W.3d 93, 96 (Tex.Cr.App.2004).

      . Abdul-Kabir, 550 U.S., at 261, 127 S.Ct. 1654.

      . See, e.g., Ex parte Hathorn, 296 S.W.3d 570, 572-73 (Tex.Cr.App.2009) (neglect, physical and emotional abuse, and violent and dysfunctional home environment); Ex parte Moreno, 245 S.W.3d 419 (Tex.Cr.App.2008) (adoption, deformity, and unstable home).

      . Tennard, 542 U.S., at 283-87, 124 S.Ct. 2562.

      . Roy Gene Smith v. Quarterman, 515 F.3d, at 412.

      . See Johnson, 509 U.S., at 368, 113 S.Ct. 2658 ("The relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside. We believe there is ample room in the assessment of future dangerousness for a juror to take account of the difficulties of youth as a mitigating force in the sentencing determination.”).

      . Roy Gene Smith v. Quarterman, 515 F.3d, at 410.

      . Brewer, 550 U.S., at 292-93, 127 S.Ct. 1706.

      . 233 S.W.3d 319 (Tex.Cr.App.2007).

      . Id., at 323 (citing Abdul-Kabir).

      . Again, we make no comment on the weight of this evidence. We also do not imply that evidence of drug addiction or substance abuse will always be relevant mitigating evidence and outside the scope of the special issues regardless of the specific evidence of addiction or abuse introduced by the defendant.

      . LaRoyce Smith v. Texas, 550 U.S. 297, 313-14, 127 S.Ct. 1686, 167 L.Ed.2d 632 (2007) (LaRoyce Smith II) (finding constitutional error in the special issues and error preserved upon objection to the special issues, despite lack of objection to the nullification instruction).

      . Tex.Code Crim. Proc. art. 36.19; Ex parte LaRoyce Smith, 185 S.W.3d 455, 463-64 (Tex.Cr.App.2006), rev'd on other grounds by LaRoyce Smith II; Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App.1985).

      . Almanza, 686 S.W.2d, at 171; see also Ex parte Hathorn, 296 S.W.3d 570, 572 (Tex.Cr.App.2009) (In the context of Penry error, "normally, an egregious harm standard is proper in analyzing un-objected-to charge error.”); Ex parte LaRoyce Smith, 185 S.W.3d, at 463 ("The Almanza standard applies both on direct appeal and on the review of habeas corpus applications.”).

      . Almanza, 686 S.W.2d, at 172; Ex parte LaRoyce Smith, 185 S.W.3d, at 464 n. 23 (applying Almanza).

      . Roy Gene Smith v. State, No. 71,099, slip op. at 2-3.

      . Gregg, 428 U.S., at 169, 96 S.Ct. 2909.

      . 550 U.S., at 313-14, 127 S.Ct. 1686.

      . See Ex parte LaRoyce Smith, 185 S.W.3d, at 464 n. 23.

      . Having found that the Applicant was egregiously harmed, we decline the Applicant’s invitation to revisit the propriety of harm analysis in the context of Penry error.


author: HERVEY, J.,

text:
    Ex parte Domingo CALDERON III, Applicant.
    No. AP-76,160.
    Court of Criminal Appeals of Texas.
    April 28, 2010.
    Stephen Smith, San Antonio, for Appellant.
    Marc Ledet, Asst. District Atty., Flores-ville, Jeffrey L. VanHorn, State’s Attorney, Austin, for State.
   OPINION

HERVEY, J.,

delivered the opinion for a unanimous Court.

Applicant pled no contest to indecency with a child. He claims that newly discovered evidence establishes that he is actually innocent of this offense and that he falsely pled no contest at the request of his mother. We filed and set this case to determine, among other things, whether applicant has established that he is actually innocent. The State concedes and the convicting court has consistently made findings that applicant is actually innocent, and this Court has decided to accept these findings. It is necessary, however, for us to determine whether we should grant applicant habeas corpus relief and set aside his conviction because, over the course of four remands and two live hearings, the convicting court has made supported-by-the-record but contradictory findings on whether applicant’s actual-innocence claim is based on newly discovered or newly available evidence. See Ex parte Brown, 205 S.W.3d 538, 545 (Tex.Cr.App.2006) (“Not only must the habeas applicant make a truly persuasive showing of innocence, he must also prove that the evidence he relies upon is ‘newly discovered’ or ‘newly available.’ The term ‘newly discovered evidence’ refers to evidence that was not known to the applicant at the time of trial and could not be known to him even with the exercise of due diligence.”).

We first set out the facts that are not in dispute. In November 2004, applicant was charged with aggravated sexual assault of his sister Elaine (born on May 18, 1987) and his other sister Janie (born on September 1, 1993). On July 5, 2005, pursuant to a plea bargain, applicant pled no contest to a reduced charge of indecency involving Janie. The convicting court deferred an adjudication of guilt and placed applicant on community supervision (“probation”) for seven years. On May 31, 2006, applicant was sentenced to ten years in prison after his probation was revoked because, among other things, he refused to admit in sex-offender therapy that he had molested Janie. On September 29, 2006, applicant filed a habeas corpus application in which he claimed, among other things, that he is actually innocent of the indecency offense involving Janie. This application was supported by Janie’s July 8, 2006, affidavit recanting her prior allegations that applicant committed this offense (“Janie’s July 8, 2006, recantation affidavit”).

The undisputed evidence also shows that in April 2005, while the aggravated-sexual-assault charges involving Elaine and Janie were pending against applicant, Elaine and Janie approached their mother (“the mother”) and told her that they had falsely accused applicant of molesting them. The mother informed applicant’s lawyer (Fut-rell) of this. After interviewing Elaine and Janie and confirming that they had recanted their allegations that applicant had molested them, Futrell set up a meeting with the prosecuting attorney (Hudson). When the mother and the girls went to Hudson’s office, the mother’s husband, who was Janie’s father (“the father”), was also there waiting for them.

When Hudson interviewed Elaine, she again recanted, which caused Hudson to decide to dismiss the charges involving Elaine. While Elaine was meeting with Hudson, the father told Janie not to recant. When Janie met with Hudson, she did not recant, which caused Hudson to decide not to dismiss the charges involving Janie. Evidence was presented at a writ hearing that the then 11-year-old Janie feared her father and was afraid that he would throw her out of the house, as he did to Elaine, if she recanted.

Q. [APPLICANT’S COUNSEL]: Okay. Stop just a minute. So [the father], he was outside the D.A.’s office?
A. [THE MOTHER]: Yes, he was.
Q. Did /all jointly go into the District Attorney’s Office?
A. My daughters and I walked in and he walked in.
Q. Who went in first to meet with [Hudson]?
A. It was Elaine.
Q. And then what happened after Elaine came out?
A. After she came out?
Q. Yes, what was the next thing that happened?
A. Janie went in.
Q. What was [the father’s] demeanor as you were waiting? Was it in a lobby? Were you in a lobby there?
A. When Elaine was in conferring with [Hudson], Janie, myself, and [the father] were sitting out in the lobby and she didn’t want to sit next to him. She wanted to sit next to me because she was afraid and she was shaking because she wanted to tell the truth and she was reluctant at that point because he was sitting there. He didn’t want her to change the story. He didn’t want her to. He had told her.
Q. [Applicant] is not the first child [the father] has thrown out of your home, correct?
A. No, sir.
Q. He has thrown other children out of your house?
A. Yes, sir, he threw Gabe out my number three son, and then after Elaine-after he found out that Elaine had recanted, outside of the office the D.A.’s office he told her to pack her bags and move out of the house. She was only 17.
Q. How would you describe [the father’s] discipline as a parent?
A. This is my house and if you don’t do what I say you need to leave.
* * *
Q. [APPLICANT’S COUNSEL]: So did [the father] actually show up at the District Attorney’s Office?
A. [JANIE]: Yes, sir.
Q. And how did you feel when he showed up?
A. I felt nervous and I felt scared that he was going to know that I had made it all up.
Q. Why were you scared of [the father]?
A. Because whenever he found out that [Elaine] had changed her story he kicked her out of the house and he kicked all my brothers and Elaine out of the house when they were young.

That night Janie wrote a note stating that she had lied to Hudson and that applicant was innocent. That same night Janie gave her mother the note which her mother was supposed to deliver to Hudson.

Q. [APPLICANT’S COUNSEL]: Now after you left [Hudson’s] office, did you prepare a letter or note some time after that?
A. [JANIE]: Yes, sir. I felt bad so I went to my room later on that night and then I called my mom in there and I said, “Mom, I told [Hudson] that he did touch me.” “But I thought you were going to confess [sic].” I go, “I know, I’m sorry but I got intimidated because of [the father]. So I wrote a letter to [Hudson] saying I’m sorry that I made it up.” And I don’t remember what I said in the letter but I was apologizing and I gave it to my mom.
Q. Who were you writing the letter to?
A. [Hudson].
Q. And did you give the letter to your mom with intent to be delivered to [Hudson].?
A. Yes.
Q. [APPLICANT’S COUNSEL]: After you left the meeting there at the District Attorney’s Office with [the father], Elaine, and Jane [sic], after that, did Janie approach you with this letter?
A. [THE MOTHER]: Yes, she was crying and she said she didn’t feel — she didn’t feel right that she couldn’t tell [Hudson] the truth. She called me to her bedroom and that’s when she told me that one night and she had a paper folded up and she said, “Could you please give this to [Hudson].” She called me into her room. She locked the door. She didn’t want her father to hear it or see what she was going to give me. So she said, “You can read it and give it to him, please.” And I opened it up and it said, “I’m sorry that I lied. I didn’t tell the truth and I’m sorry.” I don’t remember the words. I don’t remember what it said but it said that she was sorry and that she lied and that [applicant] was innocent.

The mother testified that soon after this she gave the note to another lawyer (Porter) to give to Hudson. The evidence is conflicting on what happened to this note after Janie’s mother gave it to Porter to deliver to Hudson, and the convicting court has made contradictory findings on whether applicant, Futrell and Hudson knew about the note before applicant pled no contest in July 2005 and before his probation was revoked in May 2006. The mother provided testimony that would support a finding that applicant and Futrell knew about the note and its contents before applicant pled in July 2005. The mother, however, also provided evidence in an affidavit that she did not know if applicant and Futrell “ever saw the note from Janie.” Porter testified that she delivered the note to Hudson but that she was not sure when this occurred (some of her testimony suggested that it may have occurred after applicant’s probation was revoked in May 2006). Applicant, Futrell and Hudson all claimed that they did not know about the note and its contents until after applicant’s probation was revoked in May 2006. The whereabouts of the note are unknown, and it is a mystery as to exactly what happened to the note.

Futrell and Hudson also provided testimony on the circumstances leading up to applicant’s no-contest plea to the indecency offense involving Janie. Neither one mentioned having any knowledge of the note and its contents while they were negotiating the plea.

[FUTRELL]: I had understood that both of the girls were going to recant. When [Elaine] did and that was dismissed and okay, fine, but [Janie] didn’t. The facts were pretty damming [sic] and from my experience and talking with people and trying to figure out what had happened, I thought that the best thing for [applicant] would be to be placed on a deferred adjudication probation. My experience in this district has been that with sex offenses involving children punishment ranges can get to be pretty severe and with the facts that were alleged and in the discovery as I recall, it wasn’t pleasant. They weren’t pleasant and so I mean, we decided in the big scheme of things, that would be the best thing to do. So we did. Now had I known of the — I understand that [Janie] in April gave an affidavit to [Porter] recanting.
With the dismissal of [Elaine’s] count, there were some similar language and similar alleged conduct in both counts and I think we can — and I’m not sure if [Hudson] will agree with this or not, but with the first count dismissed and the affidavit and the statement of [Elaine] saying, “that didn’t happen, I was pushed and goated [sic] and talked into it,” that could have been some impeaching evidence at the trial on a first degree felony on the second count because it was — they were similar enough in the factual allegations, that with one of them recanted and the other one still out there but sort of equivocating somewhat, I think it gave me some basis to say I think I can impeach part of the more critical stuff that you’re talking about or I think I can impeach this part of the factual allegation with what the sister has recanted about and what the sister has said about these things and so we worked. We got in a circumstance where both of us had a risk of going to trial, I think, and I didn’t want him to go — I mean, this was — I remember having a constructive relationship with [applicant] and I didn’t want him to go to prison for a long or big number but here’s this little girl that’s going to testify and she had some pretty unpleasant things to say and that was a risk if we had gone to trial. At the same time [Hudson’s] already let one of them go and there’s some few things in the remaining one that were I think would have given him some pause. So it was a compromise between everybody. I talked with the mother, I talked with [applicant], [Hudson], It wasn’t Futrell saying, you better do this here, sign, and let’s go. I think it was a combined effort, a collaborative effort. Certainly if that’s not the way the rest of them remembering it happening, they can say so, but I think it was collaborative. We talked about it. We weren’t happy with it. I don’t think anybody was happy with it. But such the [sic] feelings of a good settlement sometimes.
* * *
[HUDSON]: The reason it’s an indecency case is because [Futrell] and I argued repeatedly on the registration and we knocked it down to indecency by exposure because the registration period for those crimes is less than lifetime registration. I think it’s ten years from the date you’re finished with probation or something and that’s why it’s an exposure case but I met with Janie all by herself and Janie told me what happened, you know. He did touch me here. That’s why I kept the case. If she had said no, then I would have — I mean, I’m not going to maintain a case if the girl tells me nothing happened and continues to tell me that.

We further note that applicant argued to the convicting court that it would be “rather amazing” that “everybody [would be] going forward with the plea” if they knew about Janie’s note and its contents.

[APPLICANT’S COUNSEL]: I think the Court is also aware of the great trials that this family has gone through today to come and tell the Court what happened, how this has gone on for this period of time. With all these, [the father] in the background trying to intimidate everyone. Throwing them out of their house. That is why [Janie] was afraid to go to the District Attorney that day when he showed up and made his presence known. She had already seen [applicant] and other relatives thrown out of the house by him. She was terrified of this man. But it was that night when she felt those pangs of guilt again and she wrote this letter that was delivered here to the District Attorney’s Office and by all count [sic], apparently this is a recantation letter and yet, I don’t know if [Futrell] knew that was a complete recantation but if he did, it’s rather amazing that the District Attorney and the defense counsel would have a letter for them from a complaining witness saying, “I’m recanting, nothing happened,” and then everybody going forward with the plea.

In deciding whether Janie’s July 8, 2006, recantation affidavit is “newly discovered evidence,” we believe that the issue is whether applicant knew of or could have discovered, before his no-contest plea in July 2005 or before his probation was revoked in May 2006, Janie’s April 2005 note since this note and its contents and Janie’s July 8, 2006, recantation affidavit are essentially the same. See Brown, 205 S.W.3d at 545 (“newly discovered evidence” is “evidence that was not known to the applicant at the time of trial and could not be known to him even with the exercise of due diligence,” and an applicant “cannot rely upon evidence or facts that were available at the time of his trial, plea, or post-trial motions, such as a motion for new trial”). In addition, it is not disposi-tive that Futrell and applicant knew that Janie had recanted to her mother and to Futrell before the April 2005 meeting with Hudson, since Janie reaffirmed her accusations against applicant during the April 2005 meeting with Hudson thus putting her in the same position she was in when she first accused applicant of molesting her.

On this record, we decide that Janie’s note and its contents were unknown to applicant when he pled in July 2005 and when his probation was revoked in May 2006. We adopt the convicting court’s findings that support this decision and disregard those findings that do not support this decision. See Ex parte Reed, 271 S.W.3d 698, 727-28 (Tex.Cr.App.2008). In addition, we further note that, under the specific facts of this case, it seems highly unlikely that applicant and the State would negotiate a plea with knowledge of Janie’s note and its contents, particularly since the State had already agreed to dismiss the charges involving Elaine based on her recantation.

And, even if Janie’s note and its contents were known to Futrell and applicant or could have been discovered by them through the exercise of due diligence, we would further question whether this evidence would have been “available” to applicant to establish a claim of actual innocence when he pled and when his probation was revoked given the father’s influence over Janie and his pressuring Janie not to recant. See Brown, 205 S.W.3d at 545-47 (an applicant must prove that the evidence he relies upon is “newly discovered” or “newly available”). We believe that these circumstances would have made Janie’s note and its contents just as “unavailable” to the applicant in this case as the daughters’ recantations were “unavailable” to the applicant in Zapata in which the applicant was unable to produce the testimony of his recanting daughters at his sentencing hearing because the mother failed to produce these daughters for the hearing. See Ex parte Zapata, 235 S.W.3d 794, 795 (Tex.Cr.App.2007) (applicant learned of daughters’ recantations “after the entry of the plea but before sentencing” and he “was unable to produce the recantation testimony of his daughters [at the sentencing hearing] through no fault of his own”). We decide that Janie’s July 8, 2006, recantation affidavit is “newly discovered” and “newly available” evidence. See Brown, 205 S.W.3d at 545.

Habeas corpus relief is granted. The judgment in cause number 04-11-0244-CRA in the 218th District Court of Atasco-sa County is set aside, and applicant is remanded to the custody of the Sheriff of Atascosa County to answer the charges against him. Copies of this opinion shall be sent to the Texas Department of Criminal Justice — Correctional Institutions Division and Pardons and Paroles Division.

      . In its May 11, 2007, findings, the convicting court found that applicant’s mother testified "that she pressured [applicant] to plead” because she believed that her husband "would divorce her and seek custody of [their] children if she continued to persist in claiming [applicant's] innocence.” Applicant also claimed in an affidavit that this is why he pled no contest.

      . See Ex parte Tuley, 109 S.W.3d 388, 395-97 (Tex.Cr.App.2002) (granting habeas corpus relief on guilty-pleading applicant’s actual-innocence claim based primarily on complainant's recantation and convicting court’s findings that this recantation was credible and that the applicant’s guilty plea was not "accurate”) and at 393 n. 2 (a person could be pressured to plead guilty to something that he did not do "in order to protect someone else, whom he loves or fears”); Article 27.02(5), Tex Code Crim. Proc. (no-contest plea or plea of nolo contendere has same legal effect as a guilty plea in a criminal case).

      . This application was also supported by two affidavits (dated July 8, 2006, and July 11, 2005) from Elaine, and an affidavit (dated July 8, 2006) from the mother of applicant, Elaine and Janie.

      . Futrell testified that he did not speak to Janie after the meeting with Hudson because “bouncing these kids back and forth between the lawyer and the D.A. and [the father] and the mother” gets them "so emotionally distraught.”

      . Janie testified that the note was not as detailed as her July 8, 2006, recantation affidavit. She testified that the note was "just a general apology” for having lied to Hudson and that the note stated that applicant "had never committed any offenses.” In its March 25, 2009, findings, the convicting court found that there is "no evidence of a material difference” between Janie's note and Janie’s July 8, 2006, recantation affidavit.

      . For example, in its May 11, 2007, findings, the convicting court found that Janie's note was given to Hudson and that the mother "believed the note was made known” to Fut-rell and applicant.
      In its January 22, 2008, findings, the convicting court found that when "applicant entered the plea in July 2005 he was unaware [that Janie] had recanted by writing a note and giving the note to [the] Mother” and that applicant "was unaware the note had been provided to [Hudson].” The convicting court also found that Porter testified that she "reviewed the note prior to delivering” it to Hudson and that Porter "did not advise Applicant or [Futrell] of the nature of the note.” The convicting court also found that applicant would not have pled "had he known [that Janie] had completely recanted."
      In its October 10, 2008, findings, the convicting court found that Janie did not write the note until after applicant’s adjudication in May 2006 and that this note "did not come to the knowledge of the attorney for the State or any attorney for Applicant until after the adjudication of guilt.”
      In its March 25, 2009, findings, the convicting court found that "regardless of any consideration as to whether the State received the [note], it is clear from the testimony that: 1) [Futrell] knew that [Janie] had made statements that her allegations of sexual misconduct on behalf of his client were false; and 2) [applicant] was informed by his [and Janie's mother] that [Janie] had recanted her testimony. The Court therefore finds that the evidence of the recantation was either known to [applicant] or discoverable." We note, however, that these findings seem to be based on Futrell’s testimony that he knew Elaine and Janie had recanted before the April 2005 meeting with Hudson. This testimony, therefore, would not support a finding that Futrell knew about the note or Janie’s later recantation.

      . Applicant stated in an affidavit that he did not learn that Janie "had signed an affidavit recanting the allegations” against applicant until July 2006 and that he would not have pled had he known that Janie "had completely recanted [in the note] in 2005.” Futrell testified that he never saw the note and that he did not know when he first found "out about the existence of that note that was given to [Porter]” but that he believed that he found out about the note after applicant had been sentenced. Futrell testified that he would have urged applicant not to plead had he been aware of the note.
      Q. [APPLICANT’S COUNSEL]: Had you known the [sic] presence of this note, would your advice have been different to [applicant] concerning application for deferred?
      A. [FUTRELL]: I’m confident that I would have strongly urged him not to plead. I mean, I’m confident that I would have been able to continue the case and get with the district attorney and talk and develop this other recantation, which if nothing else corroborated the other one. I mean they sort of worked to support each other, the other corroborating statement, and in addition to the other things that I had come to know and understand about his family, I think it would have been — I think it would have been worth trying if we couldn't have gotten it dismissed, yes, sir.
      Hudson testified that he recalled Porter mentioning something to him about the note but that he did not recall her physically handing it to him. He also testified that he was "almost positive” that Porter made him aware of the note "after [applicant’s] deferred was revoked.” Hudson stated in an affidavit that:
      Only after [applicant’s probation was revoked and he] was sentenced did [Janie] come forward and advise [Porter] of a recant. I advised [Porter] that information needed to be provided to [Futrell], [applicant's] counsel in the previous case. [Porter] stated she had a letter written by the mother of [Janie] outlining a new recant. I instructed her this letter needed to be given to [Futrell]. Both [Porter] and [Hudson] communicated this information to the District Judge, Donna S. Rayes, and prior counsel for the defense, [Futrell],
      The recant by [Janie] was not made prior to the plea of no contest by [applicant], [Janie's] recant -was not made prior to his adjudication of guilt and subsequent sentencing to TDC. The recant [sic] by [Janie] was only brought to the attention of both defense attorney and the State after [applicant] was sentenced to TDC.
      (Emphasis in original).

      . In its January 22, 2008, findings, the convicting court found that "[Janie] was not under the influence of [the father] when she gave the recanting affidavit in July of 2006 nor was she in custody of [the father] when she willingly testified at the writ hearing on April 9, 2007."