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Click here for the full text of this decision FACTS:On Oct. 8, 1988, Roy Gene Smith and Mary Williams spent the day smoking crack cocaine at a boarding house. Around 8 p.m., Smith and Williams left the house. While walking down the street, they came upon 67-year-old James Whitmire. Smith approached Whitmire and asked for a job. Whitmire responded that he had no available work and then turned away. Smith unzipped his jacket, drew a .22 caliber pistol and shot Whitmire several times. Williams fled the scene. After murdering Whitmire, Smith searched his pockets and stole $4.27. As Smith rifled through Whitmire’s clothing, two men approached and asked what he was doing. The men fled when Smith began shooting in their direction. Smith later reunited with Williams, and they purchased hot dogs with the stolen money. The couple spent the night in an abandoned house. The next day, Williams returned home and contacted the police. The police searched for Smith and, after a chase, placed him under arrest. Smith subsequently signed a written confession. Smith also confessed that during the week before he killed Whitmire, he committed another capital murder, another shooting and several robberies. After a jury trial, a Harris County trial court convicted Smith of capital murder. During the punishment phase of trial, the state elicited testimony concerning Smith’s extensive criminal history. The state also introduced evidence relating to Smith’s week-long crime spree before Whitmire’s homicide, including his confession to several crimes. Additionally, the state introduced testimony of violent threats by Smith in prison and his poor parole history. At the punishment phase, the defense presented testimony from Smith’s sister Carolyn Smith, who described the crime-ridden environment her brother lived in and testified that she had never known her brother to use crack cocaine. She also described her brother as calm and not violent. Smith’s mother Wilbert Lee Smith testified on his behalf. She testified that her son never used crack cocaine or carried a gun. She also described her son’s childhood and the crime-infested neighborhood in which she lived, commented on his good behavior in the penitentiary and pleaded for mercy. A Harris County sheriff’s deputy, Thomas Gentry, testified that Smith had no major trouble while previously incarcerated. Finally, Smith took the stand himself and explained that he had been on a drug binge at the time of the homicide and did not remember killing Whitmire. Smith also expressed remorse for the killing. Following the admission of this evidence, the trial court instructed the jury to answer one of three special issues in the negative if the mitigation evidence sufficiently required a life sentence. On May 11, 1990, the jury affirmatively answered all three special issues, and the trial court sentenced Smith to death by lethal injection. On Feb. 24, 1993, the Court of Criminal Appeals affirmed Smith’s conviction and sentence in an unpublished opinion. On Nov. 15, 1993, the U.S. Supreme Court denied Smith’s petition for writ of certiorari. On April 18, 1997, Smith timely filed an application for writ of habeas corpus in state district court. The state habeas court declined to hold an evidentiary hearing on Smith’s claims and adopted the state’s findings of fact and conclusions of law. Based on these findings and conclusions, the CCA denied habeas relief. Smith successfully sought the appointment of new counsel for his federal court proceedings. On May 29, 2000, Smith timely filed his federal petition for writ of habeas corpus. The state filed an answer and motion for summary judgment. On March 31, 2003, the district court granted the state’s motion for summary judgment and dismissed the petition in an unpublished opinion. The district court also denied sua sponte Smith’s request for a certificate of appealability (COA). On Sept. 22, 2003, Smith timely requested a COA from the 5th U.S. Circuit Court of Appeals. On Aug. 17, 2005, the 5th Circuit granted the COA. Smith appealed two issues: 1. whether his death sentence violated the Sixth and 14th Amendments, because Smith received ineffective assistance of counsel; and 2. whether the trial court’s nullification instruction to the jury violated the Eighth and 14th Amendments in light of the U.S. Supreme Court’s 2001 decision in Penry v. Johnson (Penry II). HOLDING:The court affirmed the district court’s judgment and denied Smith’s application for a writ of habeas corpus. Smith argued that his trial attorneys provided ineffective assistance at the punishment phase, because they failed to investigate sufficiently his background. This in turn affected their ability to implement the appropriate trial strategy. Smith asserted that his attorneys overlooked pertinent evidence, including testimony relating to his pre-adolescence, the psychopharmacological implications of his prolonged substance abuse and intoxication at the time of the offense, and his ability to control his behavior during a previous period of incarceration. Smith’s family members, who were not contacted by Smith’s trial attorneys, submitted affidavits regarding his troubled childhood. The court, however, found that Smith’s affidavits from his family and the mitigation expert could not be considered on federal habeas review, because these statements presented material facts that fundamentally differed from his state court habeas claim. To overcome this procedural bar, the court stated, Smith had to demonstrate cause for his default and actual prejudice or show that the failure to consider his claims would result in a fundamental miscarriage of justice. The court found that although Smith neglected to exhaust his ineffective-assistance claim, it was satisfied that his claim would also be denied on the merits. Smith, the court stated, asserted that his attorneys should have introduced records demonstrating his good behavior during previous periods of incarceration, sought a psychiatric evaluation to determine the detrimental effects of his long-term substance abuse and interviewed more of his family members about his childhood. Smith’s good behavior during previous imprisonment, the court stated, constituted evidence capable of both mitigating and aggravating his punishment. While Smith’s good behavior, the court stated, in institutional settings showed an ability not to cause problems in controlled environments, this attribute also showed his propensity not to abide by the laws of our society. Moreover, on cross-examination, the state likely would have presented Smith’s three disciplinary violations while incarcerated for previous criminal convictions. For these reasons, the court concluded that Smith’s trial attorneys performed reasonably in not fully disclosing Smith’s prison records during the punishment phase. Smith argued that his trial attorneys should have conducted psychiatric testing, because his prolonged drug use caused organic brain damage. But Smith, the court stated, never indicated to his attorneys that prolonged substance abuse caused his behavior at the time of the crime. Finally, the court stated, a jury could conclude that Smith’s addiction would never cease and would cause him to present an ongoing danger to society. Accordingly, Smith failed to make a “substantial showing of prejudice” on this ineffective assistance of counsel claim, because he did not establish that his attorneys’ failure to arrange a psychiatric evaluation “undermined confidence in the outcome.” As for the nine affidavits from family members testifying to Smith’s troubled family background, the court stated that even if Smith’s ineffective assistance of counsel claim was not procedurally barred, its consideration of the affidavits would be impermissible, because the statements offered material facts not presented in the state habeas court that fundamentally altered Smith’s claim. Next, Smith argued that under the U.S. Supreme Court’s 1989 decision Penry v. Lynaugh (Penry I), the Texas special issues and nullification instruction provided an inadequate vehicle for the jury to consider his mitigation evidence. More specifically, Smith asserted that the jurors could not give full effect to the following mitigating factors: his intoxication at the time of the offense and long-term drug addiction; his impoverished family background; and his character formation in a crime-ridden neighborhood. The state contended that the special issues allowed the jurors to give full effect to Smith’s evidence of substance abuse and childhood circumstances. The court found no Penry error. “Unless we are to assume,” the court stated, “that every individual who grew up in poverty and in a crime-infested neighborhood has, by that fact alone, potentially reduced moral culpability, requiring a Penry instruction, we cannot conclude that the [CCA] erred when it decided that Smith’s sentence passed muster under Penry.” OPINION:Stewart, J.; Smith, DeMoss and Stewart, JJ.

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