Reset A A Font size: Print

Court of Criminal Appeals of Texas.


NOS. WR-67,208-03

Decided: May 16, 2018

HERVEY, J., filed a concurring opinion in which KELLER, P.J., KEASLER and NEWELL, JJ., joined.


Robert Mitchell Jennings filed two subsequent writ applications arguing that he is entitled to a new trial on five different grounds. The Court stayed Jennings' execution to consider his writ applications, and today it properly dismisses them as subsequent. Ex parte Jennings, Nos. WR-67,208-03 & WR-67,208-04, 2016 WL 4637367 (Tex. Crim. App. Sept. 2, 2016) (per curiam, not designated for publication). I write separately to address two of those claims.


Jennings argues that the mitigation instruction given by the trial court was constitutionally deficient and that he was entitled to a Penry instruction or additional special issue because he exhibited remorse for the capital murder that he committed. Ex parte Jennings, Nos. AP-75,806 & AP-75,807, 2008 WL 5049911, at *7–*8 (Tex. Crim. App. Nov. 26, 2008) (not designated for publication) (addressing the merits of, and rejecting, Jennings' Penry claim).

Subsequent Writ Bar

To overcome the subsequent-writ procedural bar, Jennings argues that there is a new legal basis for relief in the form of a decision from the Southern District of Texas. Williams v. Davis, 192 F. Supp. 3d 732 (S.D. Tex. 2016); see TEX. CODE CRIM. PROC. art. 11.071, § 5(a)(1). He contends that, in that case, the district court held that the future-dangerousness special issue did not give the jury a meaningful vehicle through which it could give effect to Williams's evidence of remorse.

Before Williams filed a post-conviction writ application in federal court, this Court denied relief on his Penry claim. Ex parte Williams, No. AP-76,455, 2012 WL 2130951, at *15 (Tex. Crim. App. June 13, 2012) (not designated for publication). We reasoned, contrary to the district court, that Williams was not entitled to a Penry instruction based on the remorse evidence because the jury could have given effect to that evidence through the future-dangerousness special issue. Id.

After we issued our decision, Williams filed a writ application in federal court, alleging that this Court's decision was an unreasonable application of federal law. The district court agreed and conditionally granted relief, ordering the State of Texas either to hold a new punishment hearing or to commute his sentence to life imprisonment. Williams, 192 F. Supp. 3d at 772.

Although Jennings makes the same claim as Williams, the decisions of federal district courts are not binding on this Court and cannot constitute a new legal basis for purposes of the subsequent-writ procedural bar.1 See In re Medina, 475 S.W.3d 291, 304 (Tex. Crim. App. 2015) (noting that constitutional interpretations by federal district courts are not binding on this Court); see also Ex parte Hood, 211 S.W.3d 767, 775 (Tex. Crim. App. 2007) (holding that, to constitute a new legal basis, an applicant must prove that his claim could not have been reasonably formulated based on precedent from the United States Supreme Court, federal appellate courts, or state appellate courts). In fact, Section 5(d) of Article 11.071 speaks to only appellate courts; there is no mention of state or federal trial courts. TEX. CODE CRIM. PROC. art. 11.071, § 5(d). To entertain Jennings' already litigated Penry claim, the Court would need to overrule Hood and hold that a federal district court decision meets the dictates of Section 5(a)(1) of Article 11.071.2 But such a conclusion would fly in the face of the plain language of the statute. Id.

Because Jennings cannot overcome the procedural bar preventing us from considering the merits of his renewed Penry claim, the Court properly dismisses it.3 I note, however, that even if the Court were to reach the merits of his claim, it fails.

Merits of Penry Claim

The Tape

Jennings contends that he was entitled to a Penry instruction because the cassette tape recording of his post-arrest statement shows that he was remorseful for committing capital murder. He alleges that,

• he cried during portions of the interview;

• he said that he was “real upset” because he shot someone and did not know whether that person was alive or dead;

• when asked at the end of the interview if there was anything else he wanted to say, he responded, “Remorse in the way I feel about the incident that happened”; and that

• he said he wished he could “take it all back” and that he would “face whatever punishment I have coming.”

Having listened to the entirety of Jennings' recorded audio statement and having read habeas counsel's transcript exhibit, it is my opinion that neither contains mitigating evidence. With respect to Jennings' claims of crying, it is not clear to me that he actually cried during the interview. But even if he did, I understand him to be saying that he was scared because he had shot someone while perpetrating a robbery, that he did not know if the person was still alive, and that he was “real upset” and “hurting” because his accomplice unexpectedly shot him when he returned to the getaway car. He also explained that, because he was unable to find a permanent job after being released from TDC, and “his people” were already “hurting” when he got out, he started committing robberies so he could provide for them. He claimed that he used the money to buy clothes and other things. While it is true that he used the word “remorse” during his statement, when his comments are considered within the context of the entire interview, it seems he regretted only that the robbery was not routine as usual—meaning that they got the money without anyone getting hurt—and that he will no longer be able to provide for “his people” because he will be in prison. The following are the relevant excerpts,

[OFFICER]: Why did you keep this wallet?

[JENNINGS]: Probably cause I was hurting. It was in my pocket when David shot me and it come out the window and, and you know, it was happen real fast, right. I was, I was real scared cause I know I had shot somebody in his place, you know. I didn't know, and I was real upset and when, when David shot me, you know, that threw me, where I tried to get, run for my life and you know, it had me all upset, you know, and when I got these people to my sister's house, I just took everything out of my pocket and put it in my drawer at the bottom of the dresser drawer.

* * *

[OFFICER]: [Jennings], anything (inaudible) that you would like to say?

[JENNINGS]: Remorse in the way I feel about the incident that happened. It was, I had been, we had been drinking, you know, and I had seen this, when I come in the place, right, it was just like we can do same or routine, like it had been going easy, you know, no problem and then all of a sudden, (inaudible), this dude come at me running, you know, and I wish I could take it all back, you know, I know how you said whatever punishment I get, if I could take it back, I would. But it is, it happened, so I'm going to face whatever punishment I have coming. Because if I'd been more patient, you know, everybody tell you be patient, be patient, be patient. But I thought that once I got out and went out and applied applications all over, everywhere for everything I knew how to do, driving, certified butcher, you know, all, all the skills I had, things I know that I can be comfortable with, things that I could do then nobody would call, you know, and then it get a little (inaudible) here and little (inaudible) there, like I didn't give it enough time to, to come before I had to go out and react. My people need and you know, they been needing before I got out this times. They was needing, you know.


[JENNINGS]: And they got by, you know. Why couldn't I have waited?

[OFFICER]: Let me ask you this. You came out in May?

[JENNINGS]: Yes, sir.

[OFFICER]: What party of May?

[JENNINGS]: May the 13th.

[OFFICER]: May the 13th.

[JENNINGS]: Yes, sir.

[OFFICER]: And you said here that you think you did your first robbery in the first part of June?

[JENNINGS]: Yes, sir. (inaudible) and then can't wait for something to, to happen on his own. Always have to rush, rush, rush, rush. Like there was never enough time to do something. And I never like to see my people (inaudible) nothing, you know, if I can help, you know, I don't care what it was, you know. I don't know.

In my opinion, the recording contains no evidence that Jennings felt remorse for murdering a police officer, and the jury was able to give effect to his other mitigating evidence through the future-dangerousness special issue. Thus, a Penry instruction was not warranted.


Jennings also claims that the State violated Brady v. Maryland, 373 U.S. 83 (1963), by suppressing school records showing that he suffers from learning deficits, mental impairment, and a low IQ. Jennings spends most of his argument accusing the State of engaging in a wide-ranging conspiracy to suppress the school records, and he “predicts that, if this Court remands the case for an evidentiary hearing or stays the execution[4 ] until the State produces the [school] records, a habeas prosecutor or investigator will ‘find’ the record and provide a lame excuse for why they were not in the State's file.” Jennings' argument goes like this: because the State subpoenaed the district for the records, it must have either received them or a “no records” affidavit; and since the State will not produce the records or a “no records” affidavit, it must have the records and they must contain favorable evidence.

According to Jennings, we can consider the merits of this claim even though he already knew that the school records had been subpoenaed 5 because it was not until after the hearing setting his execution date that he discovered through an open-records request a document purportedly written by the investigator stating that,

School Records ps # 733-9253. Custodian Mrs. Rector/only can testify to records. No personal knowledge. Also asst. principal states any major infractions or disciplinary actions would probably have been typed or entered on this report somewhere.

According to Jennings, this newly discovered note means that, when the investigator and records custodian spoke, they were both looking at Jennings' school records. As a result, he argues that we should remand for an evidentiary hearing to find out what happened to the records.

But at a hearing held by the habeas court, Jennings called the custodian of student records for the Houston Independent School District. The extent of her testimony was that a subpoena was personally served in 1989 and that, as a matter of course, the district would have produced the records if it had them or a “no records” affidavit if it did not. She also agreed, however, that there was no documentation of whether the district actually produced the records or a “no records” affidavit, and she could not locate the records herself. According to her, there were at least two possible reasons she did not find the records or an affidavit. During the period Jennings attended HISD, student records were kept at the local schools, not with the district, and some records for students who did not go to high school, like Jennings, were destroyed in the school's incinerators in the early 1980s. Also, assuming the records were not incinerated, she said that there was a flood in the 1990s that could have destroyed them. Based on this, I conclude that the note adds nothing new to Jennings' Brady claim, and as a result, he cannot overcome the subsequent writ bar. TEX. CODE CRIM. PROC. art. 11.071, § 5(a)(1).


With these comments, I join the Court's order dismissing Jennings' subsequent writ applications.


1.   Under Article 11.071,[A] legal basis of a claim is unavailable on or before a date described by Subsection (a)(1) if the legal basis was not recognized by or could not have been reasonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state on or before that date.TEX. CODE CRIM. PROC. art. 11.071, § 5(d).

2.   As Judge Yeary states, we have the authority to re-open a writ application on our own motion if there are “compelling circumstances” to do so, but I believe that this case does not present such circumstances. Ex parte Moreno, 245 S.W.3d 419, 423–28 (Tex. Crim. App. 2008) (reconsidering on its own initiative an applicant's previous writ application raising a Penry issue and granting relief).

3.   Jennings makes no argument that his Penry claim is based on new facts, nor has he proffered any new law which would allow him to satisfy other provisions of Section 5(a). TEX. CODE CRIM. PROC. art. 11.071, § 5(a)(1)–(3).

4.   As I noted earlier, after receiving Jennings' filings, this Court stayed his execution, and that stay is still in place.

5.   According to habeas counsel, when he was initially appointed in 1995, he read the State's file for the first time, and it included the 1989 subpoena for the school records and the return.

Copied to clipboard