The majority holds that appellant "invited" error when he chose not to submit to the jury a special issue that, if answered in the affirmative, would have resulted in a life sentence. Tex. Code Crim. Proc. art. 37.071(g) ⁽¹⁾. If anyone invited the error at issue in this case, it was this Court.

The Catch-22 in which appellant found himself began with Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998), cert. denied, 526 U.S. 1070 (1999). The majority in Mosley held that victim related evidence was relevant to the mitigation special issue and suggested that a defendant might be able to prevent such evidence from being introduced by waiving the mitigation issue. Mosley, 983 S.W.2d at 261-64. This holding transformed what was once a legislatively-mandated catch-all provision for considering a defendant's mitigating evidence, into an additional punishment issue by making aggravating evidence relevant to the issue of mitigation. Mosley, 983 S.W.2d at 268-273(Meyers, J. dissenting); Jackson v. State, 992 S.W.2d 469, 478 (Tex. Crim. App. 1999) (noting that Mosley "explained that aggravating circumstances may be relevant to determine whether a particular mitigating circumstance or set of circumstances is sufficient to warrant a life sentence") (emphasis added). The majority's holding in Mosley defied not only the meaning of mitigation itself, ⁽²⁾ but also the language of Article 37.071. Mosley, 983 S.W.2d at 268-73 (Meyers, J. dissenting). Moreover, the "majority" who held victim related evidence relevant to the mitigation issue was in truth non-existent. ⁽³⁾

In Mosley, the Court explicitly limited the introduction to victim related evidence to the mitigation special issue, stating, ". . . victim impact and character evidence is relevant only insofar as it relates to the mitigation issue. Such evidence is patently irrelevant, for example, to a determination of future dangerousness." Mosley, 983 S.W.2d at 263. Gradually, however, the Court extended the Mosley holding far beyond its self-declared limits. In Jackson v. State, 992 S.W.2d 469, 480 (Tex. Crim. App. 1999), a case that was tried prior to Mosley, the majority relied on the Mosley holding to permit the introduction of victim related evidence at the punishment stage of appellant's trial without limiting the jury's consideration of the evidence to the mitigation special issue. Jackson, 992 S.W.2d at 480-81. In a separate case, Jackson v. State, 33 S.W.3d 828, 833-34 (Tex. Crim. App. 2000), cert. denied, 121 S. Ct. 2221 (2001), the Court relied on a footnote in the Mosley dicta to hold that victim related evidence is relevant to the future dangerousness special issue if the defendant was aware of the victim impact evidence at the time the crime was committed. Id. Then, in Solomon v. State, 49 S.W.3d 356, 365-66 (Tex. Crim. App. 2001), the Court permitted the introduction of victim impact evidence at the punishment stage generally without considering whether the defendant had knowledge of the impact on the victims that would somehow be relevant to the issue of future dangerousness; nor did the Court address whether the victim impact evidence was relevant to the anti-parties special issue. Id.

To further complicate matters, this Court held, within the confines of a single opinion, that while it was not proper to determine whether a capital defendant is authorized to waive submission of a special issue in a capital case, if a defendant does waive submission of a special issue, he may not complain of such a waiver on appeal because he is not actually waiving the issue; he is "inviting error." Prystash v. State, 3 S.W.3d 522, 530-32 (Tex. Crim. App. 1999), cert. denied, 529 U.S.1102 (2000). See also Tong v. State, 25 S.W.3d 707, 711 (Tex. Crim. App. 2000) (noting issue of whether capital defendant may waive mitigation special issue remains unsettled under Texas law).

Today the majority would allow appellant to waive submission of the mitigation special issue through this thinly cloaked guise of "invited error." ⁽⁴⁾ I dissent because this Court owes a duty to future capital defendants to determine whether or not waiver of the mitigation-or any-special issue is permitted by Texas law. Prystash and the doctrine of "invited error" do not answer this question.

The majority writes: "[e]ven if Mosley's dicta on waiving the mitigation issue were completely disavowed, Prystash would still stand as a bar to relief in this case" because appellant requested the waiver. Majority Op. at 16. The majority explains further that, "[n]othing in Tong contradicts this conclusion." Id. Nonetheless, despite embracing the illusion of "invited error," the majority's determination that Prystash controls the instant appeal conflicts directly with the teaching of Tong. See Tong, 25 S.W.3d at 711, 711 n.5 (noting Court has not decided whether capital defendant may waive mitigation special issue).

The majority argues that there is a "crucial distinction" between the concepts of "waiver" and "invited error." Majority Op. at 15 (citing Mosley, 983 S.W.2d at 531). Certainly their names differ. But is there any meaningful distinction between the two concepts when "invited error" was used to overrule a case that held special issues involve absolute rights and are, therefore, not waivable? See Prystash, 3 S.W.3d at 530 (overruling Powell, 897 S.W.3d 307, 316 (Tex. Crim. App. 1999), which held that the rights involved in giving a special issue are absolute, and therefore, not waivable). It seems not. And is it anything but legal acrobatics to hold that an appellant cannot complain of a waived issue on appeal, but that the issue may or may not be waivable? Again, it seems not.

At a minimum, to bring some measure of certainty and predictability to the punishment hearings of future capital litigants, the Court should admit that it is permitting waiver of the legislatively mandated mitigation special issue in a capital trial. To truly see that justice is served, however, the Court should consider the mitigation special issue separately from the anti-parties issue that the Prystash court considered. Several factors support this separate consideration.

First and foremost, if a justification for permitting a capital defendant to waive submission of the mitigation special issue existed, it was allowing a defendant to prevent introduction of victim impact testimony. Mosley, 983 S.W.2d at 264. Because this Court has effectively permitted introduction of victim impact testimony on each of the special issues in article 37.071, this justification no longer exists. Solomon, 33 S.W.3d at 365-66 and Jackson, 992 S.W.2d at 480 (permitting general introduction of victim related evidence at punishment stage); Jackson, 33 S.W.3d at 833-34 (permitting introduction of victim related evidence on the issue of future dangerousness).

The special issue of mitigation also merits separate consideration from this Court because the United States Supreme Court has emphasized-and reemphasized-that a capital jury must have a vehicle for considering mitigating evidence. Penry v. Lynaugh, 492 U.S. 302, 327-28 (1989) (holding defendant's death sentence violated Eighth Amendment for failure to give jury a vehicle to express its "reasoned moral response" to mitigating evidence that was outside scope of statutory special issues); Penry v. Johnson, 121 S. Ct. 1910, 1920-24 (holding supplementary instruction for jury to nullify its answers to special issues if it found mitigating circumstances warranted life sentence insufficient to meet dictates of Penry I). If we allow capital defendants to "invite error" and waive submission of this issue, the jury no longer has a vehicle to express its "reasoned moral response" to a defendant's proffer of mitigating evidence, and we run afoul of the United States Constitution as we did in the pre-Penry version of our death penalty scheme.

Finally, if we allow a capital defendant to waive this special issue, do we continue to allow a defendant to waive the anti-parties issue? The future dangerousness issue? All of the special issues? Just how much error will we allow a capital defendant to "invite?" The sanction here is the harshest, the room for error nil. We cannot shirk our constitutional duties by hiding behind the cloak of "invited error." Therefore, I dissent.

November 7, 2001

Publish

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

2. "Aggravate in its proper sense is opposed to mitigate or extenuate." Bryan A. Garner, A Dictionary of Modern Legal Usage (Oxford University Press, Inc. 1987) at 29; see also Ballentine's Law Dictionary 808 (3d ed. 1969) (defining mitigate as a verb that means "[t]o lessen in severity or burden").

3. The majority in Mosley noted that victim character evidence was probably inadmissible under our previous case law. Mosley, 983 S.W.2d at 262. However, the majority asserted that in Johnson v. State, 1997 WL 209527 "a majority of this Court . . . approved the introduction of victim character evidence." Id. Johnson v. State was a precarious "majority" opinion of four judges and one concurrence that was withdrawn on rehearing.

4. The concurring opinion joins the majority's result and opinion. Ripkowski v. State, No. 73,590, slip op. at 3 (Tex. Crim. App. Nov. 7,2001) (Cochran, J. concurring). Nevertheless, it seems that the concurrence would deny relief based not on the notion of "invited error" but on the separate ground of waiver. Specifically, the concurrence suggests that appellant's decision was neither "invited error" nor a "Catch-22." Id. Rather, it is "a strategic decision which belongs to the defendant"-in essence, an issue the defendant may waive. Id. Unlike the "invited error" approach of the majority, however, this analysis would permit appellate review of the defendant's decision to waive the mitigation issue. In a properly briefed point of error, a defendant could argue on appeal that defense counsel's advice to the defendant to waive the mitigation issue constituted ineffective assistance of counsel.