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Click here for the full text of this decision FACTS:Appellant was a 32-year-old registered sex offender on probation when he was arrested for the murder of the 5-year-old girl in this case. On Nov. 18, 2001, the 5-year-old victim disappeared from a Wal-Mart store where she was shopping with her parents. The next day, her body was discovered in an alley 16 miles from the Wal-Mart. Appellant’s palm print matched a latent palm print that was lifted from a plastic bag covering the victim’s head. A search of appellant’s van revealed blood stains containing the victim’s DNA. Appellant and his van were at the Wal-Mart when the victim disappeared. A Wal-Mart security guard briefly spoke to appellant, and Wal-Mart surveillance cameras showed a man wearing a light-colored hat, a dark shirt and dark shorts walking out with the victim. Appellant was arrested on Dec. 3, 2001, and he gave a written custodial statement to the police. This statement was not admitted into evidence at appellant’s trial. In this statement, appellant claimed that a gang member nicknamed Flaco, whom appellant had known in jail, and several other persons, whom appellant did not know, were primarily responsible for the victim’s murder. Appellant claimed that he helped these people commit the offense out of fear they would harm his family. He also claimed that his involvement in the offense was limited to luring the victim out of the Wal-Mart and helping Flaco and the others dispose of and burn her body after the others had murdered her. At the end of his statement, appellant made what he characterizes as an expression of remorse. Appellant stated in part: “I want to mention my deepest sympathy for the family. It is a tragedy that should never have happened, young or old. I want to say that my participation in this was due to the fact that I was in fear of my family’s life.” Appellant argued that he was denied the protections of the Sixth and Eighth Amendments and the 14th Amendment’s due process clause when, at the punishment phase of trial, the trial court would not permit him to use this remorse evidence during cross-examination of a state expert witness. The record from the punishment phase reflects that the state presented the expert testimony of a prosecution witness who testified that a person like appellant would be a future danger to society in part because this hypothetical person was unremorseful. The defense wanted to use the remorse evidence during its cross-examination of the expert witness for the purpose of asking whether the witness’s opinion would change if the hypothetical person had expressed remorse. During a lengthy hearing outside the jury’s presence on the admissibility of the remorse evidence, the defense claimed that the state had opened the door to its admission because the state’s questioning of the witness left the jury with a false impression that appellant had not expressed remorse. The defense also claimed that, even if the state had not opened the door to the remorse evidence, without regard to whether any other evidentiary rule (such as hearsay) excluded it. The trial court excluded the remorse evidence, but ruled that the defense could ask the prosecution witness in question hypothetical questions concerning remorse. The defense elicited testimony from the expert witness that an expression of remorse by the hypothetical person “within, say two weeks of the alleged incident” would be “looked upon favorably, and it would tend to humanize this hypothetical individual, and it would tend to be a positive thing as opposed to the absence of remorse.” The appellant argued on appeal that the state opened the door to the admission of the remorse evidence which, solely because it meets the test of relevancy, was admissible without regard to whether any other rule of evidence, such as hearsay, would exclude it. The state argued that it did not open the door to the admission of the remorse evidence and that the evidence was inadmissible hearsay even if it met the test of relevancy. HOLDING:The Court of Criminal Appeals (CCA) began its analysis by noting that the Eighth Amendment to the U.S. Constitution assures that no person shall be put to death without opportunity to bring before the sentencing authority all evidence of mitigating circumstances. The Constitution, however, does not assure that the evidence be received in a form which is otherwise objectionable, the court stated. Remorse following commission of a serious crime, the court stated, may well be a circumstance tending in some measure to mitigate the degree of a criminal’s fault, but it must be presented in a form acceptable to the law of evidence before a defendant is entitled to insist that it be received over objection. The CCA stated it agreed with appellant that, through its questioning of the witness in question, the state opened the door to the admission of the remorse evidence to correct a false impression for which it was responsible. The record fairly reflects, the court stated, that the state’s questioning of its expert left the jury with the false impression, later emphasized by the state during closing arguments, that appellant had not expressed any out-of-court declaration of remorse. The remorse evidence was, therefore, not otherwise objectionable under state law, the court stated, and its exclusion rose to the level of constitutional error. In addition, the court found, with the state having opened the door to appellant’s remorse evidence, the exclusion of this evidence violated due process by preventing appellant from rebutting the state’s evidence and argument that appellant was unremorseful. Finally, although the CCA majority suspected that appellant’s belated, in-custody expression of remorse made in the context of minimizing his responsibility for the offense would not have altered the jury’s punishment verdict, it was unable to so conclude beyond a reasonable doubt. The court affirmed the judgment of guilt, but reversed the judgment assessing the death penalty. The court then remanded the case to the trial court for a new punishment hearing. OPINION:Hervey, J., delivered the opinion of the court in which Price, Womack, Johnson, Keasler, Holcomb and Cochran, J.J., joined. DISSENT:Keller, P.J., filed a dissenting opinion. “The Court reverses appellant’s death sentence on the basis that the trial court erred in excluding evidence of remorse. I cannot agree. First of all, appellant’s out-of-court statement was not an expression of remorse; it was an attempt to deflect blame . . . . Second, as to harm, even if appellant’s statement were considered to be an expression of remorse, it would constitute one of the weakest, most pitiful expressions of remorse I have ever seen.” Meyers, J., dissented separately without an opinion.

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