Executed July 10, 2008 06:16 p.m. CDT by Lethal Injection in Texas
11th murderer executed in U.S. in 2008
1110th murderer executed in U.S. since 1976
2nd murderer executed in Texas in 2008
407th murderer executed in Texas since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
Carlton Akee Turner
B / M / 19 - 29
|Carlton Turner Sr.
B / M / 43
B / F / 40
Turner v. State, 87 S.W.3d 111 (Tex.Crim.App. 2002) (Direct Appeal).
Turner v. Quarterman, 481 F.3d 292 (5th Cir. 2007) (Habeas).
Fried chicken, cheese and onion omelets and chocolate cake.
I've been sorry for the last 10 years. I wish you could accept my apology," he said to an uncle who watched impassively through a window. "I know you can't give your forgiveness. It's OK. I understand. I know I caused a lot of pain." Turner said he hoped his family could come to terms with what he did. "I accept the responsibility. I take this penalty as a man. I am sorry. I know I was wrong. He also told his uncle that he loved him. "I am still your nephew, no matter what you believe," he said just before the drugs took effect.
Texas Department of Criminal Justice - Executed Offenders (Carlton Turner)Inmate: Turner, Carlton Akee
Summary of incident
On 08/08/98, in Irving, Texas, the subject fatally shot his adoptive parents. The victims' co-workers became alarmed when they had not seen or heard from the victims in several days. Irving Police obtained a search warrant for the victims' residence where they discovered the victims deceased in the garage. Both victims died of gunshot wounds. Turner took cash, jewelry, and forged a check on their personal account.
Texas Attorney General
Thursday, June 5, 2008
Media Advisory: Carlton Turner Scheduled For Execution
AUSTIN – Texas Attorney General Greg Abbott offers the following information on Carlton Akee Turner, who is scheduled to be executed after 6 p.m. on July 10, 2008.
In 1999, Turner was convicted and sentenced to death for the Aug. 1998 capital murders of his adoptive parents, Carlton Sr. and Tonya Turner, in Irving, Texas. A summary of the evidence presented at trial follows.
FACTS OF THE CRIME
At the age of 19, Carlton Turner shot his parents in the head in their Irving home and put their bodies in the garage. He then went shopping with his parents’ cash and credit cards. Although he testified at trial that he shot his father in self-defense, this theory was contradicted by his pre-trial statements in newspaper and television interviews that he had nothing to do with the murders. Turner offered no explanation at trial for killing his mother. He said he felt nothing when he killed his parents.
Feb. 3, 1999 — A grand jury indicted Turner for capital murder.
Jun. 29, 1999 — Judgment is entered after a jury found Turner guilty of capital murder.
Jun. 29, 1999 — Following a separate punishment hearing, the court assessed a sentence of death.
Sep. 28, 2001 – Turner filed a state writ application in the trial court.
Sep. 11, 2002 — Turner’s conviction and sentence were affirmed on direct appeal by the Texas Court of Criminal Appeals.
Apr. 7, 2003 — The Supreme Court denied certiorari on a direct appeal.
Sep. 29, 2004 — The Texas Court of Criminal Appeals denied Turner’s application for state habeas relief.
May 25, 2005 — Turner filed a petition for writ of habeas corpus in the federal district court.
Mar. 20, 2006 — The federal district court denied Turner’s habeas petition.
Mar. 12, 2007 — The Fifth Circuit Court of Appeals denied Turner’s request for a certificate of appealability.
Apr. 18, 2007 — The Fifth Circuit Court denied Turner’s motion for rehearing.
Apr. 30, 2007 — The trial court signed the order setting Turner’s execution date for September 27, 2007.
Jul. 16, 2007 — Turner petitioned the United States Supreme Court for certiorari review off federal habeas.
Sep. 25, 2007 — The Supreme Court denied certiorari review off federal habeas.
Sep. 27, 2007 — On the day of his execution, Turner filed a subsequent habeas petition in the Court of Criminal Appeals.
Sept. 27, 2007 – Turner then requested stay of execution from the Supreme Court based on Baze v.Rees.
Sep. 27, 2007 — At approximately 10 p.m. the night of Turner’s scheduled execution, the Supreme Court granted the stay.
Dec. 24, 2007 — Turner files petition challenging his execution by means of lethal injection as cruel and unusual punishment.
Apr. 21, 2008 — Turner’s certiorari petition challenging lethal injection is denied in the wake of the Court’s decision in Baze.
May 7, 2008 — The trial court set a new execution date of July 10, 2008.
PRIOR CRIMINAL HISTORY
Turner had a prior out-of-state conviction for stealing a car and a prior conviction for aggravated robbery. Turner also had a juvenile incident for sexually assaulting a neighborhood boy.
"Man who killed parents put to death," by Michael Graczyk. (Associated Press July 11, 2008, 12:05AM)
HUNTSVILLE, Texas — Condemned inmate Carlton Turner could not evade the Texas executioner a second time. Turner, 29, was put to death Thursday evening for killing his parents at their suburban Dallas home a decade ago.
Nearly 10 months ago, the U.S. Supreme Court spared him some four hours after he could have been executed. This time, however, the high court rejected his appeals and he became the second Texas inmate to die since capital punishment around the nation resumed following a seven-month hiatus prompted by a Supreme Court review of lethal injection procedures.
"I know I was wrong," Turner, apologizing several times, told his slain mother's brother who watched through a window as the punishment was carried out. "I accept responsibility as a man. I take this penalty as a man." He also told his uncle that he loved him. "I am still your nephew, no matter what you believe," he said just before the drugs took effect. Seven minutes later, he was pronounced dead.
"It makes it easier," his uncle, Kyle Johnson, said after watching his nephew die and hearing the apology. "He could have chose not to say anything." Johnson said he remembered being notified of the August 1998 murders of his only sister and her husband. "First I thought it was some kind of mistake," he said. "I just couldn't understand why. I'll never understand why. In spite of the problems he had, he's always had love, a lot of love. And that's what made it so hard for me to come to grips with what he did."
Turner acknowledged fatally shooting his adoptive parents, then making things worse by telling the jury at his trial that it didn't matter to him if they gave him life in prison or death. The jury chose death.
"I was immature and arrogant," Turner told The Associated Press from death row recently. He said he was sorry for the shootings, which he blamed on anger and hatred. "I still loved them," he said. "What I did was wrong. There was a time when I had justification, but that's all wrong."
Turner, who was adopted as an infant, said he shot his father, 43-year-old Carlton Turner Sr., in self-defense after repeated instances of abuse. "I felt my mother couldn't live without my father," he said, explaining why he killed his mother, Tonya, 40.
His lawyers wanted the Supreme Court to delay the execution so he could get a federally appointed and paid attorney to pursue clemency. They also argued the Texas lethal injection procedures needed to be more thoroughly reviewed. On Wednesday, his lawyers lost an attempt to have his execution date withdrawn when a state district judge in Dallas refused to grant them more time to investigate claims his trial may have been unfair because jurors improperly were selected on the basis of race. Turner is black and his attorneys alleged the entire jury pool may have been racially selected.
Turner had been a disciplinary problem as a juvenile and at age 14 sexually assaulted an 8-year-old boy. His parents were retired from the Air Force and moved to the Dallas area about a year before the killings. His father worked in sales. His mother worked at a department store.
Evidence showed after the slayings he bought new clothes and jewelry, continued living in the family's Irving home, dragged the bodies into the garage, then threw a party at the house for friends. Neighbors called police after they hadn't seen the couple in several days and saw Turner acting strangely and driving his parents' cars, something his parents prohibited. He was arrested at home on warrants for outstanding traffic violations. Police were led to the bodies by a foul smell coming from the garage.
"He had such a callous attitude and it didn't bother him at all," said Toby Shook, one of the prosecutors at his trial. "The parents did their best and they wind up dead."
At least 14 other condemned Texas inmates are set to die over the next few months, including two more this month. Scheduled for execution next is Derrick Sonnier, set for execution July 23 for the 1991 slayings of Melody Flowers, 27, and her 2-year-old son, Patrick, at their apartment in the Houston suburb of Humble.
"Dallas man executed for 1998 murder of parents," by Kristin Edwards. (July 10, 2008 11:27 pm)
— A 28-year-old man convicted of the 1998 murder of his adoptive parents was executed Thursday shortly after 6 p.m. Carlton Akee Turner, the first of three death row inmates scheduled for execution this month, was pronounced dead at 6:16 p.m. after receiving a lethal injection administered seven minutes earlier.
“Carlton Turner was executed at the Texas Department of Criminal Justice Walls Unit Thursday night, marking the second execution to take place in Texas this year,” said Michelle Lyons, TDCJ public information officer. “Turner’s was the first of three executions scheduled in July.”
In the hours before his execution, Lyons said Turner was very quiet and did not display significant emotion. During his last statement, Turner apologized directly to his uncle, Henry Kyle Johnson, the brother of his adoptive mother, Tonya Turner. No immediate family members of Turner’s adoptive father, Carlton Turner, were present.
“First of all, I’d like to tell my uncle Kyle that I’m sorry, and I’ve been sorry for the last 10 years,” Turner said. “I wish you could accept my apology, but I know I can’t even ask for your forgiveness. “I take this penalty as a man, but this doesn’t solve anything. I’ve done what I could to help the rest of the family. I was wrong, but I am still your nephew no matter what you believe, and I love you.”
Following the execution, Johnson held a small press conference where he discussed his feelings about the execution and the effect the event would have on the remainder of his family. “I wanted to see this through — I needed to see this through,” he said. “I mean, I can’t speak for my sister or my brother-in-law because they’re gone, but for me and the remaining members of the family who are still feeling pain every day of their absence, I needed to be here.”
Johnson said there were signs during Turner’s childhood which might have indicated that he would misbehave, but none which would indicate the capability to commit the crimes he did. “As he neared about 12-years-old, we thought he was just going through the average growing pains, and nobody knew how serious it was going to become,” he said. “His whole demeanor changed over the last few years before he committed the crime.” Johnson described his deceased sister as an angel, and he said she was instrumental in helping to raise him.
Turner’s apology, nonetheless, was meaningful to Johnson. “I do accept his apology,” he said. “It took a long time coming, and this is the first time he’s ever apologized. I didn’t think he was ever going to. “I mean, he could have chosen not to say anything, so it makes it easier. It does.” Turner was convicted in 1999 for shooting his adoptive parents in the head.
According to a press release from the Texas attorney general’s office, Turner put the bodies of his parents in their garage after the shootings, took their credit cards and cash and went shopping.
The next scheduled execution, that of 40-year-old Derrick Sonnier, will take place July 23.
Texas Execution Information Center by David Carson.
Carlton Akee Turner Jr., 29, was executed by lethal injection on 10 July 2008 in Huntsville, Texas for the murder and robbery of his parents.
On 8 August 1998, Turner, then 19, shot his adoptive parents, Carlton and Tonya Turner, in their home in Irving. After shooting both of them in the head, he moved their bodies into the garage. After the killings, he threw a party at the house for his friends, and he bought clothing and jewelry with the couple's cash and credit cards. He also forged a check from his parents' checkbook and stole some of their jewelry.
Neighbors called police after seeing Turner drive his parents' cars - something they knew he was not allowed to do - and noticing they hadn't seen the couple in several days. Police went to the house and arrested Turner on outstanding traffic warrants. They were led to the bodies by the odor coming from the garage.
At his trial, Turner testified that he shot his father in self-defense, but this position was contradicted by his pre-trial statements in newspaper and television interviews that he had nothing to do with the murders. He offered no explanation at his trial for his mother's murder. He told the jury that it made no difference to him whether he was given a life sentence in prison or sentenced to death.
Turner had previous convictions for automobile theft and aggravated robbery. He also had a juvenile record for sexually assaulting an 8-year-old boy when he was 14.
A jury convicted Turner of capital murder in June 1999 and sentenced him to death. The Texas Court of Criminal Appeals affirmed his conviction and sentence in September 2002. His subsequent appeals in state and federal court were denied, and in June 2007, a judge signed his death warrant, ordering him to be executed on 27 September. On 26 September, however, the United States Supreme Court agreed to hear a Kentucky case challenging the constitutionality of lethal injection. Turner was granted a stay on the evening of his scheduled execution. Seven months later, on 16 April 2008, the Supreme Court upheld lethal injection. In the following weeks, Turner's appeal was denied, and the stay of execution was lifted, and a new death warrant was signed.
"I was immature and arrogant," Turner told a reporter in an interview from death row. He said that he was sorry for the killings, which he blamed on anger and hatred. He said that he shot his 43-year-old father in self-defense after repeated instances of abuse. As for why he killed his mother, "I felt my mother couldn't live without my father."
Turner's mother's brother, Kyle Johnson, attended the execution. "First of all, I'd like to tell my uncle Kyle that I'm sorry, and I've been sorry for the last ten years. I wish you could accept my apology, but I know I can't even ask for your forgiveness," Turner said to him in his last statement. " I was wrong, but I am still your nephew, no matter what you believe, and I love you" he said. The lethal injection was then started. He was pronounced dead at 6:16 p.m.
Johnson spoke to reporters afterward. He said that Turner showed signs as a pre-teen that he would have problems. "We thought he was just going through the average growing pains, and nobody knew how serious it was going to become," he said. Johnson also said that Turner's apology was meaningful to him. "I do accept his apology. It took a long time coming, and this is the first time he's ever apologized. I didn't think he was ever going to. I mean, he could have chosen not to say anything, so it makes it easier. It does."
"Texas, Virginia execute convicted killers." (Thu Jul 10, 2008 10:30pm EDT)
HUNTSVILLE, Texas (Reuters) - A man convicted of murdering his adoptive parents was put to death by lethal injection in Texas on Thursday, the second prisoner executed in the state since the U.S. Supreme Court lifted an unofficial death penalty moratorium in April. Carlton Turner's was the first of three executions scheduled for July in Texas, the country's busiest death penalty state. Texas has 14 additional executions slated for this year.
Turner, 29, was convicted of fatally shooting his adoptive parents -- Carlton Sr., 43, and Tonya, 40 -- in their Irving, Texas, home in August 1998. Turner, 19 at the time, shot both victims several times in the head, stashed their bodies in the garage, took their cash and jewelry, and threw a party for his friends at the house.
The Supreme Court in April rejected by a vote of 7-2 a challenge by two Kentucky death row inmates who argued the current lethal injection method inflicts needless pain and suffering in violation of a constitutional ban on cruel and unusual punishment. Texas was the fifth state to resume executions after the high court rejected the legal challenge to the three-drug cocktail used in most executions for the past 30 years.
Turner was the 407th inmate executed in Texas since 1982, when the state resumed executions following the Supreme Court's reinstatement of capital punishment in 1976, and its second this year. Texas executed convicted killer Karl Eugene Chamberlain on June 11.
In his last statement, Turner apologized to his family. "I know I was wrong. I accept responsibility as a man," he said.
For his last meal he requested fried chicken, cheese and onion omelets and chocolate cake.
The state of Virginia also carried out a death sentence on Thursday, executing a man convicted in 2002 of murdering a 79-year-old neighbor during a robbery. Kent Jackson, 26, was put to death by lethal injection after Gov. Timothy Kaine, a Democrat, refused to grant him clemency and the U.S. Supreme Court rejected his request for a stay of execution and turned down his appeal.
A Department of Corrections spokesman quoted Jackson as saying in his last statement: "You all can't kill me. I'm the king. Remember me like you remember Jesus. I'll be back." Jackson requested a last meal, but asked that the contents not be released, Corrections spokesman Larry Traylor said.
With 101 executions since 1976, Virginia ranks second in the nation behind Texas, according to the Death Penalty Information Center, a group opposed to capital punishment. Oklahoma is ranked third, with 86 executions.
All but one of the 38 U.S. states with the death penalty and the federal government use lethal injection for executions. The only exception is Nebraska, which requires electrocution.
On 08/08/98, in Irving, Texas, Carlton Akee Turner, Jr. fatally shot his adoptive parents. The 19-year-old shot and killed his parents in their home and put their bodies in the garage. After this, Turner took their jewelry and went shopping with his parents’ cash and credit cards and a check forged on their account. The Turners' co-workers became alarmed when they had not seen or heard from them in several days. Irving Police obtained a search warrant for the family's residence and they discovered both victims in the garage, deceased. Both Carlton Sr. and Tonya Turner died of gunshot wounds.
Turner testified at trial that he shot his father in self-defense. This self-defense theory contradicted his pretrial statements in newspaper and television interviews that he had nothing to do with the murders. Turner offered no explanation at trial for killing his mother. He testified that he felt nothing when he killed his parents.
Turner has a long history of violence and other inappropriate behavior. Turner claimed that a history of parental abuse largely explains his violent behavior.
UPDATE: As a final statement before his execution, Turner apologized for killing his adoptive parents a decade ago at their suburban Dallas home. "I've been sorry for the last 10 years. I wish you could accept my apology," he said to an uncle who watched impassively through a window. "I know you can't give your forgiveness. It's OK. I understand. I know I caused a lot of pain." Turner said he hoped his family could come to terms with what he did. "I accept the responsibility. I take this penalty as a man. I am sorry."
Guestbook Blog -For a talk and MediaNews
October 2007 Book:"Nechronomistic" by Carlton A. Turner.
Rant's & Raves
Interview - May 23, 2008 New Book Project: By Carlton Turner "To Hell - Farewell !"
...."knit until death" Texas reflection of Humanity by Jacquielynn Floyd !!!
Victims' Families Petition Against Texas Execution
Turner v. State, 87 S.W.3d 111 (Tex.Crim.App. 2002) (Direct Appeal).
Defendant was convicted in the trial court, Dallas County, Karen J. Greene, J., of capital murder. Defendant appealed. The Court of Criminal Appeals, Hervey, J., held that: (1) prosecutor's comments to several veniremembers and eventual jurors concerning parole did not convey to jury that it could not consider a life-sentenced defendant's parole eligibility, and thus, defendant was not denied a fair punishment hearing; (2) trial court's parole law jury instruction did not inform jury that it could not consider a life-sentenced defendant's parole eligibility, and thus, instruction did not deny defendant a fair punishment hearing; and (3) prosecutor's reference in closing arguments, in which prosecutor informed jury it was to consider defendant's self-defense claim from standpoint of an ordinary and prudent person, and not from the standpoint of a psychopath and a sociopath, was proper. Affirmed.
HERVEY, J., delivered the opinion of the Court in which KELLER, P.J., MEYERS, PRICE, KEASLER, HOLCOMB and COCHRAN, JJ., joined.
A jury convicted appellant of capital murder. The trial court sentenced appellant to death pursuant to the jury's answers to the special issues submitted at the punishment phase. Appellant raises fourteen points of error in his automatic direct appeal to this Court. We affirm.
The 19-year-old appellant shot and killed his parents in their home and put their bodies in the garage. After this, appellant went shopping with his parents' cash and credit cards. Appellant testified at trial that he shot his father in self-defense. This self-defense theory contradicted appellant's pretrial statements in newspaper and television interviews that he had nothing to do with the murders. Appellant offered no explanation at trial for killing his mother. He testified that he felt nothing when he killed his parents. Appellant has a long history of violence and other inappropriate behavior. Appellant claimed that a history of parental abuse largely explains his violent behavior. The trial court submitted a parole law jury instruction which, among other things, instructed the jury that a life-sentenced appellant would not be eligible for parole for 40 years.
In points of error one and two, appellant claims that his trial counsel was ineffective for not objecting to the prosecution's voir dire comments to several veniremembers and eventual jurors that the jury could not consider a life-sentenced appellant's parole eligibility because of possible future legislative changes to the parole laws. In point of error three appellant claims that these prosecutorial comments were also “fundamental error” because they denied him a fair punishment hearing under the Eighth and Fourteenth Amendments.
The record reflects that appellant committed this offense before September 1, 1999, so he was not entitled to the parole law jury instruction currently mandated by Article 37.071, Section 2(e)(2)(B), or to any other judicially-crafted parole law jury instruction. See Section 2 of Acts 1999, 76th Leg., ch. 140; Smith v. State, 898 S.W.2d 838, 846-53 (Tex.Cr.App.), cert. denied, 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995). The record, however, also reflects that neither party objected to this instruction in the charge.
The voir dire examination of veniremembers and eventual jurors Brown, Davidson and Graver typifies the prosecution's voir dire comments that appellant now finds objectionable. The prosecution told Brown: [PROSECUTION]: Finally, let's talk about parole for just a minute. Remember, I told you; I think the Judge has too, in a capital murder case with the guilty verdict, there is only two possible verdicts, either life or death, and now in the State of Texas if the person gets a life sentence for capital murder, the law says he has to serve forty calendar years before he becomes eligible for parole. That means, as the law is right now, and of course, parole laws are always subject to change, but as they are right now, that means you have got to serve forty calendar years, day for day; no hope of ever getting out at the end of that forty-year period; then you start becoming eligible for parole, but not before then.
Now let me tell you the instruction that you get in this case as a juror. Judge Greene would instruct you if you find this man guilty of capital murder, that you are not to consider parole for any purpose, whatsoever. Just like the failure to testify, you just say, that doesn't matter to me. Why, because, see, parole is not for you to decide. It's a matter that is solely within the discretion of the Board of Pardons and Paroles, and the law is subject to change also.
What a life sentence means today, well, it's been different in the past; it may be different in the future. For that reason, here is what I tell jurors: When you see a life sentence mentioned in this case, just take it to mean life. That is it, day for day, rest of his life. Just think of it that way. In this case, if you got an instruction not to consider parole, can you follow that instruction also?
The prosecution told Davidson: [PROSECUTION]: Now, one other thing in this case, let's talk about parole for just a minute. I can tell you this: The Judge has told you there is only two possible sentences for capital murder. It's either a life sentence or a death sentence. In Texas, if a person is convicted of a capital murder and they receive a life sentence, that means they have to serve at least forty calendar years, day for day, before they become eligible for parole; so, they serve forty calendar years, and then, then they would, at least, become eligible for parole; not to say that they would be paroled, but that is the very first time that they could be considered for parole.
And, of course, parole laws change from year to year; I mean, I have been down here, and I have seen them change dramatically, I think three or four times, you know, in my career; so, there is nothing to say they are going to stay the same next year or five years from now.
If you are a Member of the Jury in this case, Ms. Davidson, you would be instructed by Judge Greene that you were not to consider parole in determining what verdict that you are going to reach on punishment. Okay. Again, it's just like the Defendant not testifying. You go back in there, you know; it would be improper, for instance, to be thinking, well, you know, if I give this man a life sentence, he'll serve forty years or life means forty years. Just forget about that.
I tell jurors to do this. That if you see a life sentence in this case, just consider it to be just that, life, period, and forget about trying to guess when he's going to get out of the penitentiary because, see, parole is not up to you and me. It's up to the Board of Pardons and Paroles in Austin. They have got complete control of that. For us to be thinking about it, really, is meaningless; so, in this case, if you got that kind of instruction, could you agree that you would not consider parole during your deliberations?
A. The time of parole?
Q. Yes, ma'am.
and, the prosecution told Graver: [PROSECUTION]: Here is another issue that sometimes comes up in a case such as this one, and it would be the issue of parole. In Texas, if an individual is convicted of capital murder, there is only two possible sentences. They are either going to get a life sentence or they get the death sentence. That is it. If a person is convicted of capital murder and receives a life sentence, that person will have to serve at least forty calendar years before he becomes eligible for parole. That means he's staying in there at least forty years. At the end of that forty year period, he may come up for parole. He may not, but he has got to do at least forty years. The law in this case would be this: If you are selected as a juror in this case and we got to the punishment phase, Judge Greene would instruct you that you are not to consider parole for any purpose, whatsoever. Don't be speculating or thinking on how quickly someone may be out on a life sentence because, you see, two things: Parole laws change. I have seen them change two or three times in my career, and they may change next year, five years, ten years from now; so, what is a life sentence today may not be the same five or ten years from now. Secondly, whether or not someone receives parole is not up to us. It's up to the Board of Pardons and Paroles in Austin. For that reason, jurors really don't have anything to do with that.
In this case, if you were selected as a juror, could you assure me that you would not consider parole for any purpose? Don't be thinking about it. Wouldn't be speculating or thinking about how quickly someone may get out on a life sentence?
Appellant claims that the prosecution's comments contradicted the parole law jury instruction by informing the veniremembers that the jury could not consider a life-sentenced appellant's parole eligibility because of possible future legislative changes to the parole laws. Appellant claims that these comments should be reviewed pursuant to our unpublished decision on original submission in Burton v. State, slip op. at 5-11 (Tex.Cr.App. No. 73,204, delivered October 25, 2000) (unpublished). That opinion was withdrawn on rehearing and replaced with another unpublished decision in Burton v. State, slip op. at 1 (Tex.Cr.App. No. 73,204, delivered March 7, 2001) (op. on reh'g) (unpublished) (improper for prosecution during closing jury arguments to inform the jury that a life-sentenced defendant could “walk the streets” in less time than what current law provided because of possible future legislative changes to the parole laws); but see Smith v. State, 898 S.W.2d at 838, 849 n. 16 (Tex.Cr.App.), cert. denied, 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995). Unpublished decisions, however, have no precedential value. See Tex.R.App.Proc. 77.3.
The prosecution's comments also did not inform the veniremembers that the jury could not consider a life-sentenced appellant's parole eligibility because of possible future legislative changes to the parole laws or that the trial court would so instruct the jury. Viewed in the context of the entire voir dire, the prosecution's comments informed the veniremembers, consistent with current law set out in Article 37.071, Section 2(e)(2)(B), that a life sentence meant at least 40 years and that the jury should not speculate on when a life- sentenced appellant might be released on parole when he became eligible after serving 40 years.
By plucking the prosecution's voir dire comments that the jury “should not consider parole for any purpose” out of context, it is not unreasonable for appellant to claim that this impermissibly conveyed to the jury that it could not consider a life-sentenced appellant's parole eligibility. But, viewing the entire voir dire, we find that the prosecution's comments did not convey this. For example, when the prosecution asked Davidson, “... could you agree that you would not consider parole during your deliberations,” Davidson responded, “the time of parole?” This is consistent with the Article 37.071, Section 2(e)(2)(B), instruction that the jury should not consider when a life-sentenced capital murder defendant might be released on parole when that defendant becomes eligible for parole.
On this record, we cannot say that counsel was ineffective for failing to object to the prosecutor's voir dire comments since, viewed in the context of the entire voir dire, they were not objectionable. See Strickland v. Washington, 466 U.S. 668, 687-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Points of error one through three are overruled.
In point of error eight, appellant claims that the trial court's parole law jury instruction denied him a fair punishment hearing because it instructed the jury that it could not consider a life-sentenced appellant's parole eligibility. The record reflects that the trial court submitted a parole law jury instruction consistent with the one currently set out in Section 37.071, Section 2(e)(2)(B).
You are instructed that under the law applicable to this case, if the defendant is sentenced to imprisonment in the Institutional Division of the Texas Department of Criminal Justice for life, the defendant will become eligible for release on parole, but not until the actual time served by the defendant equals 40 years, without any consideration of good conduct time. It cannot accurately be predicted how the parole laws might be applied to this defendant if the defendant is sentenced to a term of imprisonment for life because the application of those laws will depend on decisions made by prison and parole authorities, but eligibility for parole does not guarantee that parole will be granted.
Immediately following this, the trial court also instructed the jury as follows. Therefore, during your deliberations, you are not to consider or discuss the possible action of the Board of Pardon and Paroles or of the Governor, or how long a defendant would be required to serve on a sentence of life imprisonment, or how the parole laws would be applied to this defendant. Such matters come within the exclusive jurisdiction of the Board of Pardon and Paroles and are no concern of yours.
Appellant claims that this part of the charge denied him a fair punishment hearing because it instructed the jury that it could not consider a life-sentenced appellant's parole eligibility. We agree, however, with the State that this part of the charge did not inform the jury that it could not consider a life-sentenced appellant's parole eligibility. Consistent with Article 37.071, Section 2(e)(2)(B), this part of the charge instructed the jury not to consider how long a life-sentenced appellant would serve after becoming eligible for parole.
We further note that the record is silent on how the parole law jury instruction became part of the trial court's charge. Compare Jimenez v. State, 32 S.W.3d 233, 238-39 (Tex.Cr.App.2000) (unobjected-to jury charge error case), with, Prystash v. State, 3 S.W.3d 522, 529-31 (Tex.Cr.App.1999), cert. denied, 529 U.S. 1102, 120 S.Ct. 1840, 146 L.Ed.2d 782 (2000) (invited jury charge error case). If the trial court submitted it at appellant's request, then appellant invited any error and he cannot now be heard to complain. See Prystash, 3 S.W.3d at 529-31.
If the trial court submitted it without objection, then appellant cannot meet the statutory “egregious harm” standard, because it is unlikely that the jury applied the instruction in a way that prevented consideration of a life-sentenced appellant's parole eligibility as a mitigating factor. See Jimenez, 32 S.W.3d at 238-39; Smith, 898 S.W.2d at 857-72 (Clinton, J, dissenting) (explaining why a life-sentenced capital murder defendant's parole eligibility could be considered mitigating); cf. Ex parte Tennard, 960 S.W.2d 57, 61 (Tex.Cr.App.1997), cert. denied, 524 U.S. 956, 118 S.Ct. 2376, 141 L.Ed.2d 743 (1998) (constitutional issue in cases like this, where constitutional issue is preserved, is whether there is a reasonable likelihood that the jury applied the challenged instruction in a way that prevents the consideration of constitutionally relevant mitigating evidence). Appellant made no claim before the jury that a life-sentenced appellant's parole eligibility could have been considered a mitigating factor. Also, neither party referred to the parole law during the punishment phase or during closing arguments at the punishment phase, thus the jury was not mislead during jury arguments into believing that it could not so consider a life-sentenced appellant's parole eligibility. And, for the reasons set out in our discussion of points of error one and two, the jury was not misled during voir dire.
Finally, given the evidence presented at guilt/innocence and at punishment concerning the brutality of this offense and appellant's history of violence, it is unlikely that the jury's answers to the special issues turned on any parole law considerations or any misunderstanding of the parole law. On this record, we find no “egregious harm” from any error in the parole law jury instruction. Point of error eight is overruled.
In point of error four, appellant claims that the trial court erroneously overruled his objection to the prosecution's closing argument at guilt/innocence which referred to appellant as a psychopath and a sociopath. Appellant contends that this argument encouraged the jury to disregard the trial court's self-defense jury instruction. Appellant complains of the following argument:
Reasonable belief, when we talk about this business on self-defense, means a belief that would be held by an ordinary and prudent person in the same circumstances as [appellant]. So, when [defense counsel] tells you to get in [appellant's] head, first of all, you have to say you have to be in a place of a reasonable person. Boom, right there, that out. He's a psychopath; he's a sociopath-
Appellant objected to this argument as “outside the record.” This trial objection does not comport with appellant's appellate claim that the prosecution's argument encouraged the jury to disregard the trial court's self-defense instruction. Appellant, therefore, has procedurally defaulted this appellate claim. See Tex.R.App.P. 33.1.
In addition, the argument informed the jury that the law required it to consider appellant's self-defense claim from the standpoint of an “ordinary and prudent person” and not from the standpoint of a “psychopath or a sociopath.” This argument was proper because it did not misstat self-defense law and also because evidence was presented at guilt/innocence that supports a finding that appellant is a psychopath and a sociopath. Point of error four is overruled.
In points of error five through seven, appellant claims the trial court erroneously admitted evidence that, after killing his parents, appellant forged and cashed three checks from their checking account. Appellant claims this evidence was extraneous, irrelevant and overly prejudicial. One of the capital murder theories upon which the jury was instructed was murder in the course of a robbery. The trial court, therefore, did not abuse its discretion to admit the complained-of evidence to prove the underlying robbery offense. Points of error five through seven are overruled.
In point of error nine, appellant claims the trial court erred in failing to define the terms “probability,” “criminal acts of violence,” and “continuing threat to society” in the “future dangerousness” special issue. Because appellant did not raise these claims at trial, he has procedurally defaulted them on appeal. We have also held that the jury charge does not need to define these terms. See Chamberlain v. State, 998 S.W.2d 230, 237-38 (Tex.Cr.App.), cert. denied, 528 U.S. 1082, 120 S.Ct. 805, 145 L.Ed.2d 678 (1999). Point of error nine is overruled.
In point of error ten, appellant claims Texas death penalty law violates the Eight and Fourteenth Amendments by requiring at least ten “no” votes for the jury to return a negative answer to the “punishment special issues.” We have rejected this claim. See Pondexter v. State, 942 S.W.2d 577, 586 (Tex.Cr.App.1996), cert. denied, 522 U.S. 825, 118 S.Ct. 85, 139 L.Ed.2d 42 (1997). Point of error ten is overruled.
In points of error eleven and twelve, appellant claims Texas death penalty law violates the state and federal constitutions because it simultaneously restricts and allows unlimited juror discretion to impose the death penalty. Appellant relies on Justice Blackmun's dissenting opinion in Callins v. Collins, 510 U.S. 1141, 114 S.Ct. 1127, 1128-38, 127 L.Ed.2d 435 (1994) (Blackmun, J., dissenting), to support his argument. This Court, and the United States Supreme Court, have rejected this claim. See Chamberlain v. State, 998 S.W.2d at 238; Callins, 114 S.Ct. at 1127-28 (Scalia, J., concurring). Points of error eleven and twelve are overruled.
In points of error thirteen and fourteen, appellant claims that the cumulative effect of the above enumerated constitutional violations violates the state and federal constitutions. Having found no constitutional violations, we decide these claims are without merit. See Chamberlain, 998 S.W.2d at 238 (non-errors cannot cumulatively cause error). Points of error thirteen and fourteen are overruled.
The judgment of the trial court is affirmed.
Turner v. Quarterman, 481 F.3d 292 (5th Cir. 2007) (Habeas).
Background: Following affirmance of petitioner's state convictions for capital murder and imposition of the death penalty, 87 S.W.3d 111, he filed petition for writ of habeas corpus. The United States District Court for the Northern District of Texas, Sidney A. Fitzwater, J., 2006 WL 694945, denied petition. Petitioner moved for certificate of appealability (COA).
Holdings: The Court of Appeals, Jerry E. Smith, Circuit Judge, held that:
(1) petitioner failed to make a substantial showing that prosecutor's statements to jurors during voir dire violated his rights under the due process clause of the Fifth Amendment;
(2) COA would not issue on grounds of ineffective assistance of counsel;
(3) petitioner failed to make a substantial showing that state trial court violated his right to due process by informing jurors in capital murder trial that they were not to consider the possibility of parole;
(4) petitioner failed to make a substantial showing that jury instructions in capital murder trial were unconstitutionally vague, depriving him of a fair trial; and
(5) COA would not issue on grounds of cumulative error. COA denied.
JERRY E. SMITH, Circuit Judge: Carlton Turner applies for a certificate of appealability (“COA”) from the denial of his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Because he cannot make a substantial showing of the denial of a federal constitutional right, we deny a COA.
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Turner urges that the jury instructions were unconstitutionally vague, depriving him of a fair trial, because they failed to define “probability,” “criminal acts of violence,” and “continuing threat to society.” The state habeas court rejected this challenge, noting that these terms apply not to the aggravating factors that determine death eligibility, but rather to the special punishment issues that determine whether the death penalty is appropriate. State Hab. Find. Nos. 91-92. The court cited several state cases that demonstrate that a refusal to define these terms poses no constitutional problems.FN6
FN6. State Hab. Find. No. 93 (citing Cantu v. State, 842 S.W.2d 667, 691 (Tex.Crim.App.1992); Caldwell v. State, 818 S.W.2d 790, 798 (Tex.Crim.App.1991)).
In Tuilaepa v. California, 512 U.S. 967, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994), the Court distinguished two determinations made by capital juries: eligibility for the death penalty and selection of the death penalty. Id. at 971, 114 S.Ct. 2630. The Court noted that at the eligibility step, the jury must find at least one “aggravating circumstance (or its equivalent)” and that this circumstance must not be “unconstitutionally vague.” Id. at 972, 114 S.Ct. 2630. By comparison, at the selection step, the jury must be allowed to make “an individualized determination” and to consider “relevant mitigating evidence of the character and record of the defendant and the circumstances of the crime.” Id. In this second step, the jury may even be given “unbridled discretion in determining whether the death penalty may be imposed.” Id. at 979-80, 114 S.Ct. 2630 (citations omitted).FN7 As the district court recognized, this court has rejected claims alleging the vagueness of these very terms when applied to selection decisions.FN8
FN7. See also Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998) (“[O]ur decisions suggest that complete jury discretion is constitutionally permissible.”)
FN8. See, e.g., Hughes v. Johnson, 191 F.3d 607, 615 (5th Cir.1999) (“We similarly have rejected contentions that ‘probability’ and other terms included in the statutory special issues are unconstitutionally vague.”) (citations omitted); James v. Collins, 987 F.2d 1116, 1120 (5th Cir.1993) (holding that terms used in special issues, including “probability,” “criminal acts of violence,” and “continuing threat to society,” “are not so vague as to require clarifying instructions.”). Turner claims that Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which he cites for the proposition that any fact that must be proved to render a defendant eligible for the death penalty must be proved beyond a reasonable doubt, compels a different result. This argument misconstrues the Texas capital penalty framework.
Texas capital juries make the eligibility decision at the guilt-innocence phase. See, e.g., Johnson v. Texas, 509 U.S. 350, 362, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993). The terms about which Turner complains *300 are not invoked until after the defendant has been judged death-eligible and the jury is being instructed how to decide whether selection of the death penalty is appropriate. Ring is inapposite to any discussion of the constitutional requirements of the selection phase. Because Turner is unable to point to any clearly established federal law under which the terms of the Texas sentencing instructions could be unconstitutionally vague, he is unable to make a substantial showing of the denial of a federal constitutional right, and we deny a COA.
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Turner has failed to make a substantial showing of the denial of a federal constitutional right regarding his first four claims, and his final two claims are procedurally defaulted. Because he has pointed to no errors that involve matters of constitutional dimension and that are procedurally preserved for review, he has presented nothing to cumulate. A COA is denied.
In summary, Turner has not shown that any of his claims is debatable among jurists of reason, that a court could resolve them in a different manner, or that the questions are adequate to deserve encouragement to proceed further. Because he has failed to make a substantial showing of the denial of a constitutional right, his request for a COA is DENIED.