Tompkins v. Texas Respondents Petition for Writ of Certiorari

    IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1987
PHILLIP D. TOMPKINS,

Petitioner, 
v .

STATE OF TEXAS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI 
TO THE TEXAS COURT OF CRIMINAL APPEALS

Emmett B. Lewis *
Robert K. Huffman
Kendall W. Daines
MILLER & CHEVALIER, CHARTERED
655 Fifteenth Street, N.W.
Suite 900
Washington, D.C. 20005-5701 
(202) 626-5800

* Counsel of Record



QUESTIONS PRESENTED

1. Whether the Texas Court of Criminal Appeals 
misapplied this Court's decision in Beck v. Alabama, 447 U.S 
625 (1980) by holding that an instruction on lesser included 
offenses is not required in a capital case unless the 
evidence that would support such offenses emanates from the 
defendant's own evidence, even though such offenses would be 
supported by logical inferences that could be drawn from the 
prosecution's evidence.

2. Whether the Texas Court of Criminal Appeals 
applied the proper standards under Batson v. Kentucky, 106 S 
Ct. 1712 (1986) in determining whether the prosecution had 
satisfactorily explained its use of peremptory challenges to 
exclude all blacks from the jury, when the court accepted 
facially dubious explanations from the prosecutors while 
refusing to consider objective evidence in the record, which 
demonstrated that the prosecution's explanations for such 
challenges were not plausible.

3. Whether, as applied, the first and second 
statutory sentencing questions in the Texas capital 
sentencing procedure satisfy the constitutional requirements 
articulated by this Court in cases decided since Jurekv. 
Texas, 428 U.S. 262 (1976).

l  -



LIST OF PARTIES

The parties to the proceedings below and in this
Court are petitioner Phillip D. Tompkins and the State of 
Texas.

- 11 -



TABLE OF CONTENTS
Page

OPINIONS BELOW ..........................................  1
JURISDICTION ............................................  1
CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED ......... 2
'STATEMENT OF THE CASE ................................... 2

1. The Case ........................................  2
2. The Facts .......................................  3
3. Failure to Instruct on Lesser

Included Offenses ...............................  4
4. The Batson Issue ................................ 5
5. Challenge to the Constitutionality

of Texas Capital Sentencing Scheme ..............  6

REASONS FOR GRANTING THE WRIT ............................ 7
I. THE TEXAS COURT OF CRIMINAL APPEALS 

MISAPPLIED THIS COURT'S DECISION IN 
* BECK v. ALABAMA .................................  7

1. The court of appeals erred in concluding 
that there was no evidence that would
support the lesser included offenses ........  8

2. The court of appeals misread Beck ...........  10
II. THE APPROACH ADOPTED BY THE TEXAS COURT OF 

CRIMINAL APPEALS IN ACCEPTING THE DISTRICT 
COURT'S BATSON FINDINGS WOULD, IF ACCEPTED,
VITIATE THIS COURT'S DECISION IN
BATSON v. KENTUCKY ...............................  14

III. AS APPLIED, THE FIRST AND SECOND CAPITAL
SENTENCING QUESTIONS IN TEXAS DO NOT SATISFY
THE CONSTITUTIONAL REQUIREMENTS FOR CAPITAL
SENTENCING PROCEDURES ARTICULATED BY THIS
COURT IN CASES DECIDED SINCE JUREK ..............  21

CONCLUSION ............................................... 25

- iii -



TABLE OF AUTHORITIES

Cases page
Anderson v. Bessemer City, 470 U.S. 564

(1955) ...........................................  20
Batson v. Kentucky, 106 S. Ct. 1712

(1986) ........................................  passim
Beck v. Alabama, 477 U.S. 625

(19 80) . . . ......................................  passim
Brooks v. Tennessee, 406 U.S. 605

(1972 ) ........  11
California v. Brown, 107 S. Ct. 837

(1987)    22
Carlson v. Green, 446 U.S. 14

(1980) ........................................  23, 24
Eddings v. Oklahoma, 455 U.S. 104

(1982) ........  22
Fisher v. United States, 328 U.S. 463

(1946)    23
Franklin v. Lynaugh, petition for cert, granted,

56 U.S.L.W. 3287 (U.S. Oct. 9, 1987)
(No. 87-5546) ...............................  21, 23-24

Hopper v. Evans, 456 U.S. 605
(1982) .......................................... 7, 11

Illinois v. Gates, 462 U.S. 213
(1983) ......  23

Jurek v. Texas, 428 U.S. 262
(1976) ....................................... 6, 21, 23

Lefkowitz v. Cunningham, 431 U.S. 801
( 1977) . . . 7'. ....................................................................... 11

Lockett v. Ohio, 438 U.S. 586
( 1978) ..........................................  22

Norris v. Alabama, 294 U.S. 587
(1935) ..........................................  19

People v. Turner, 42 Cal. 3d 711, 726 P.2d 
102, 230 Cal. Rptr. 656
(1986) ..........................................  20

Simmons v. United States, 390 U.S. 377( 1968) ........... ...............................  11
State v. Butler, 731 S.W.2d 265

(Mo. Ct. App. 1987) ................................ 20

- iv -



24
Texas v. Chambers, 688 S.W.2d 483

(Tex. Crim. App. 1984), cert, denied,
474 U.S. 864 (1985) ...................

Texas Dept, of Community Affairs v. Burdino,450 U.S. 248 (19 81)'.............................. 19
Tompkins v. Texas, __ S.W.2d __, No. 68,870,

slip op. (Tex. Crim. App. Oct. 7, 1987) ..........  4
United States v. Salvucci, 448 U.S. 83(1980) ...........................................  11
Vickers v. Ricketts, 798 F.2d 369

(9th Cir. 1986) (Kennedy, J. )   7, 8

Federal Statutes:
28 U.S.C. § 1257(3) (1982) ...........................  2
28 U.S.C. § 2106 (1982) .............................. 24
Tex. Code Crim. Proc. Ann. art. 37.071

(Vernon 1974) .................................  2
Tex. Penal Code Ann. (Vernon 1974)

§ 6.03 ..........................................  2, 9
§19-02 ..........................................  2, 12
§19.03 ........................................  2, 7, 12
§19.05 ..........................................  2, 9§19.07 ........................................  2

Text:
R. Stern, E. Gressman, S. Shapiro,

Supreme Court Practice, (6th ed. 1986) ............  24

Appendices:
Appendix A: Opinion of Texas Court of Criminal Appeals
Appendix B: Denial of Petitioner's Motion for Rehearing
Appendix C: Findings of the 230th Judicial District

Court of Harris County, Texas
Appendix D: Tex. Code Crim. Proc. Ann. art. 37.071,

Tex. Penal Code Ann.
§§ 6.03, 19.02, 19.03, 19.05, 19.07

v



IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1987

No.

PHILLIP D. TOMPKINS,
Petitioner, 

v .

STATE OF TEXAS,
Respondent.

PETITION FOR A WRIT OF CERTIORARI TO 
THE TEXAS COURT OF CRIMINAL APPEALS

Phillip D. Tompkins respectfully petitions for a 
writ of certiorari to review the judgment of the Texas Court 
of Criminal Appeals in this case.

OPINIONS BELOW

The opinion of the Texas Court of Criminal Appeals 
(the "court of appeals"), the denial of Petitioner's motion 
for rehearing by the court of appeals, and the findings of 
the 230th Judicial District Court of Harris County, Texas 
(the "district court") following the Batson hearing, are 
attached as Appendices A, B and C, respectively.

JURISDICTION

The judgment of the Texas Court of Criminal 
Appeals, affirming petitioner's conviction for capital murder 
and his sentence of death was entered on October 21, 1987. A



timely motion for rehearing was denied on November 12, 1987.
On January 5, 1988, Justice White extended the time for
filing this petition to and including February 10, 1988. The
jurisdiction of this Court is invoked under 28 U.S.C.
§ 1257 ( 3 ) .

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED
This case involves the Fifth, Eighth, and 

Fourteenth Amendments to the United States Constitution. The 
case also involves the following Texas statutes: Art. 37.071
of the Texas Code of Criminal Procedure; and Sections 6.03, 
19.02, 19.03, 19.05, & 19.07 of the Texas Penal Code. The 
text of these statutes appears in Appendix D.

STATEMENT OF THE CASE
1. The Case. On June 11, 1981, petitioner was 

convicted by a jury of capital murder under Section 19.03(a)(2) 
of the Texas Penal Code, intentional murder committed in the 
commission of a robbery or kidnapping. Under Texas law, a 
person convicted of capital murder may be sentenced to death 
only if the jury answers two statutory questions in the 
affirmative at the conclusion of the sentencing phase of 
trial. The two questions are (1) "whether the conduct of the 
defendant that caused the death of the deceased was 
deliberate," Art. 37.071(b)(1) (the "first question"), and 
(2) "whether there is a probability that the defendant would 
commit criminal acts of violence [in the future]",
Article 37.071(b)(2) (the "second question"). A "no" answer 
to either question results in a sentence of life 
imprisonment. If both questions are answered in the 
affirmative, the death penalty is mandatory. See Tex. Code 
Crim. Proc. Ann. art. 37.071(e).1

There is a third statutory question that is asked in some 
cases, but that question was not applicable here. See Tex.
Code Crim. Proc. Ann. art. 37.071(b)(3).

2



The jury in this case returned affirmative answers 
to both questions and the trial judge assessed the 
petitioner's punishment at death.

The Texas Court of Criminal Appeals affirmed the 
conviction and sentence but stayed the execution of the 
mandate until January 28, 1988. On February 3, 1988, Justice 
White further stayed the execution of the mandate pending the 
filing, consideration, and disposition of this petition.

2. The Facts. Petitioner's conviction was based 
on circumstantial evidence. He did not testify on his own 
behalf and presented no direct evidence in his defense. The 
prosecutor's evidence established that the deceased, Mary D. 
Berry, was seen leaving work late on the evening of 
January 25, 1981. R. Vol. XVIII at 30-31.2 Several hours 
later, her car was found abandoned at a Houston intersection 
with its lights on and its engine running. Her body was 
found oh the morning of January 27, 1981, bound and gagged 
and tied to a tree. R. Vol. XX at 334-378, 422-442. The 
cause of death was determined to be suffocation from the 
cloth gag that had been placed in her mouth. R. Vol. XXII at 
737. The deceased had not been otherwise physically or 
sexually abused. R. Vol. XXII at 714-747.

Several days later, various items of property 
belonging to the deceased were found in petitioner's 
possession, including her automatic bank card. R. Vol. XXII 
at 732, 783, 784. Petitioner was identified from photographs 
taken by a camera at a branch of the deceased's bank, as 
having used the bank card between the time the deceased was 
seen leaving work and the time her body was discovered. R. 
Vol. XVIII at 129, Vol. XIX at 231, 235-241. A bed sheet and 
electrical cord that had been used to bind and gag the

Citations are to the record on appeal at the Texas Court of Criminal Appeals.

3



deceased were also linked to petitioner. R. Vol. XXII at 
847 .

3. Failure to Instruct on Lesser Included 
Offenses. Petitioner was charged and convicted of capital 
murder under Section 19.03(a)(2) of the Texas Penal Code.
That section defines the offense as "intentional[ ]
. . . murder in the course of committing or attempting to
commit the offenses of kidnapping . . . [or] robbery." At
the conclusion of the evidence, petitioner requested that the 
jury be instructed on the lesser included offenses of felony 
murder, involuntary manslaughter and criminally negligent 
homicide. These non-capital offenses differ from capital 
murder in that they do not require a finding of intentional 
killing. Petitioner argued that instructions on the lesser 
offenses were warranted because the jury could infer from the 
evidence that the petitioner had not intended to kill the 
deceased when he left her bound, gagged, and tied to a tree.
Tompkins v. Texas,   S.W.2d  , No. 68,870, slip op. at 140
(Tex. Crim. App. Oct. 7, 1987) (hereinafter cited as
"Tompkins at ___."). The district court refused to instruct
the jury on these lesser included offenses. R. App. at 187- 
91.

On appeal, petitioner argued that the district 
court's failure to instruct on the lesser included offenses 
violated his due process rights as explained by this Court in 
Beck v. Alabama, 477 U.S. 625, 637 (1980).3 Tompkins at 140. 
However, the Texas court of appeals affirmed the decision of 
the district court, concluding that there was no evidence 
from which the jury could have concluded that the killing of 
the deceased was unintentional. Tompkins at 140. The court

Petitioner's appeal focused on the failure to instruct on 
involuntary manslaughter and criminally negligent homicide. 
The district court's failure to instruct on felony murder -- 
also a noncapital offense -- was not raised by petitioner on appeal.

4



of appeals distinguished Beck on the grounds that in Beck the
defendant testified and produced evidence that would have 
justified a conviction for the lesser offenses, whereas here
the defendant did not testify or present any evidence. 
Tompkins at 140.

4. The Batson Issue: Petitioner is black. During
the voir dire of prospective jurors the prosecution exercised 
its challenges and peremptory challenges to exclude all 
13 prospective black jurors. (Eight of the 13 prospective 
black jurors were challenged for cause and the remaining 
5 were peremptorily challenged.) Petitioner moved to quash 
the jury on the ground that the prosecution had used its 
peremptory challenges in a discriminatory manner to purposely 
exclude prospective jurors on the basis of race. Tompkins at 
112. The district court denied the motion to quash. Id.

Petitioner's case was pending on appeal when this 
Court decided Batson v, Kentucky, 106 S. Ct. 1712 (1986). 
Petitioner's appeal was abated and the case was returned to 
the trial court with instructions to conduct a Batson 
hearing. The Batson hearing was held on June 3 and 4, 1987.

At the Batson hearing the district court found that 
petitioner's prima facie showing of discrimination was 
rebutted by neutral non-racial explanations offered by the 
prosecution for its peremptory challenges of the prospective 
black jurors. See Appendix C.

Although the Texas Court of Criminal Appeals found 
the prosecution's explanations for the peremptory challenges 
suspect on their face, it refused to "substitute [its] 
judgments of witness' credibility . . . for those of the 
factfinder," Tompkins at 118, and affirmed the trial court's 
Batson findings. In so doing, the court of appeals refused 
to consider objective evidence in the record which 
demonstrated that the purportedly disqualifying

5



characteristics that formed the basis of the prosecution's 
neutral explanations for its challenges of black prospective 
jurors were also present with respect to white jurors who 
were not challenged. Although the court of appeals 
acknowledged that this evidence "cast considerable doubt upon 
the neutral explanations offered by counsel for the state," 
Tompkins at 119 n.6A, it refused to consider the evidence 
because petitioner had not drawn these comparisons for the 
trial judge at the Batson hearing. Id■ The court of 
appeals' refusal to consider petitioner's juror comparison 
was inexplicable since the court itself relied on a similar 
juror comparison to reject the State's explanation for one of 
the challenges.

5. Challenge to the Constitutionality of the Texas 
Capital Sentencing Scheme. Prior to trial, petitioner moved 
to quash the indictment on the ground that the capital 
sentencing procedures in Texas, Tex. Code of Crim. Proc. Ann. 
art. 37.071, were unconstitutional in light of the standards 
applicable to capital sentencing procedures as articulated by 
this Court in cases decided after Jurek v. Texas, 428 U.S.
262 (1976). See R. Vol. IV at 9-31. The district court 
denied the motion to quash without opinion. Id. at 31. 
Petitioner's court appointed counsel did not renew this 
constitutional challenge on appeal.

6



REASONS FOR GRANTING THE WRIT

I. THE TEXAS COURT OF CRIMINAL APPEALS 
MISAPPLIED THIS COURT'S DECISION IN 
BECK v. ALABAMA____________________

In 3eck v. Alabama, 447 U.S. 625 (1980), this Court 
held that, where the evidence in a capital case would support 
a verdict of guilty of a lesser included noncapital offense, 
due process requires that the jury be instructed regarding 
that offense. Id. at 637. See also Hopper v. Evans, 456 
U.S. 605, 609 (1982); Vickers v. Ricketts, 798 F.2d 369, 371 
(9th Cir. 1986) (Kennedy, J.). "[W]hen the evidence unques­
tionably establishes that the defendant is guilty of a 
serious, violent offense -- but leaves some doubt with 
respect to an element that would justify conviction of a 
capital offense —  the failure to give the jury the 'third 
option' of convicting on a lesser included offense would seem 
inevitably to enhance the risk of an unwarranted conviction." 
Beck v. Alabama, 447 U.S. at 637.

Petitioner was charged with capital murder under 
Section 19.03(a)(2) of the Texas Penal Code -- intentional 
murder committed in the course of kidnapping or robbery. 
Although petitioner did not testify or present any direct 
evidence, he argued that he was entitled to instructions on 
the lesser included noncapital offenses of involuntary 
manslaughter and criminally negligent homicide, both of which 
are forms of unintentional killing. Petitioner's thesis was 
that the evidence that he bound and gagged the deceased and 
left her tied to a tree did not inescapably lead to the 
conclusion that he intended the deceased to die. Petitioner 
argued that because the jury might infer from the 
prosecution's evidence that he did not intend to kill the 
deceased, he was entitled to instructions on the lesser 
included offenses as a matter of due process.

7



The court of appeals concluded that instructions on 
the lesser included offenses were not warranted because there 
was no evidence from which the jury could conclude that 
petitioner did not intend to kill the deceased. In so doing, 
the court distinguished Beck on the grounds that "[i]n Beck, 
supra, the defendant testified at trial and denied that he 
killed his victim or intended his victim's death, whereas 
here [petitioner] did not testify or present any evidence 
from any source that he possessed only the intent to either 
rob or kidnap [the deceased]." Tompkins at 140.

The court of appeals erred in two respects: First,
its conclusion that there was no evidence in the record that 
would support the lesser included offenses is not supported 
by the record, and the court's analysis of this point is 
internally inconsistent. Second, the basis on which the 
court of appeals distinguished Beck ignores the logic of Beck 
and raises serious constitutional issues not addressed in 
Beck.

1. The court of appeals erred in concluding that 
there was no evidence that would support the lesser included 
offenses: The evidence at trial "unquestionably
[established] that [petitioner] was guilty of a serious, 
violent offense, but [left] some doubt as to an element that 
would justify conviction of a capital offense" --petitioner's 
intent to kill decedent. Vickers v. Ricketts, 798 F.2d at 
371. This doubt was created by a number of factors: First,
the evidence was entirely circumstantial. Second, there was 
evidence showing that petitioner bound and gagged the 
deceased but did not otherwise physically abuse her, which 
inherently raised a question regarding his intent to kill 
her. Third, there was evidence that petitioner left some 
slack in binding decedent's hands and feet "that would have 
allowed some movement of the victim's knees and shoulders."

8



✓

Tompkins at 136. And finally, "[t]here was . . . evidence 
[scuff marks up and down on the tree] . . . from
which . . . one might infer that the victim had attempted to 
escape," i. e. , was alive for some period of time, after 
having been tied to the tree. Id. at 136-137.

This evidence "would permit a jury rationally to 
find [petitioner] guilty of the lesser included offense" of 
involuntary manslaughter, or criminal negligence, and "acquit 
him of [capital] murder." Beck v. Alabama, 447 U.S. at 635.

Involuntary manslaughter is committed by a 
defendant "recklessly" causing the death of another.
Tompkins at 140, citing Tex. Penal Code Ann. § 19.05(a)(1), 
App. D. "Recklessly" is defined as being aware of the risk 
and acting in conscious disregard of that risk. Tex. Penal 
Code Ann. § 6.03(c). The jury could reasonably have inferred 
from the evidence that the petitioner recklessly caused the 
deceased's death, i. e., that he was aware of the risk that 
leaving the deceased bound and gagged could lead to her death 
and that he consciously disregarded that risk. If so, the 
jury could have convicted the petitioner of involuntary 
manslaughter.

Criminally negligent homicide is committed when one 
causes the death of another as a result of "criminal 
negligence." Tex. Penal Code Ann. § 19.07. "Criminal 
negligence" occurs when a person "ought to be aware of a 
substantial . . . risk . . . ." and negligently "fail[s] to 
perceive it." Tompkins at 138, citing Tex. Penal Code Ann.
§ 6.03(d) (emphasis added). The jury could reasonably have 
concluded that the petitioner "ought [to have been] aware" of 
the risk that leaving the deceased bound and gagged could 
lead to her death and that he negligently failed to perceive 
it. If so, the jury could have convicted the petitioner of 
criminally negligent homicide.

9



The court of appeals erred in concluding that there
was no evidence that would have supported either of these 
offenses. The court examined each offense and concluded that 
criminally negligent homicide required that petitioner be 
unaware of the risk and that involuntary manslaughter 
required that petitioner be aware of the risk. The court 
then concluded that there was no evidence from which the jury 
could conclude that the accused was unaware of the risk 
created by his conduct, thereby negating criminally negligent 
homicide. Tompkins at 138. The court then concluded that 
there was no evidence that the defendant's conduct was 
"reckless," or that he was aware of the risk, thereby 
negating involuntary manslaughter. Tompkins at 139-40. The 
court's reasoning is internally inconsistent.

As Judge Clinton noted in his dissent:

First the majority says appellant's conduct 
precludes an inference "that he was then 
unaware of the risk his conduct 
created . . . .So much for criminally 
negligent homicide. Next, it says "without 
evidence that appellant acted recklessly in 
causing the death of his victim 
[involuntary manslaughter was not 
raised]” . . . .But the majority had just 
found appellant was aware of the risk 
[i.e., the definition of reckless conduct].

Tompkins at 161 n.l. Stated differently, if the logic 
inescapably takes the case out of negligent homicide, that 
same logic inescapably brings the case within involuntary 
manslaughter, and vice versa, i.e■, if the accused was aware 
of the risk then he acted "recklessly." If he "ought to have 
been aware" of the risk, but was not, he acted "negligently."

2. The court of appeals misread Beck: After
erroneously finding that there was no evidence that would 
have warranted instructions on the lesser included offenses, 
the court of appeals sought to distinguish this case from 
Beck stating: "[W]e find that Beck, supra is factually

10



distinguishable from the instant case. In Beck . . . the
defendant testified at trial and denied that he killed his 
victim or intended his victim's death, whereas here appellant 
did not testify or present any evidence from any source that 
he possessed only the intent to either rob or kidnap Berry." 
Tomokins at 140.4 The court seriously misread Beck.

The logic of Beck has nothing to do with whether 
the defendant testified or presented evidence. Beck holds 
that, in a capital case, due process requires that the jury 
must be given a "third option" to convict for a noncapital 
offense whenever there is evidence that would support a 
finding of guilty on a lesser offense. The source of that 
evidence is irrelevant to the rationale of Beck.

Even more troubling is the court's apparent reading 
of Beck to require that the defendant testify or present 
evidence in order to receive the protections of Beck.
Applying Beck in this manner would create the "intolerable" 
result that "one constitutional right should have to be 
surrendered in order to assert another." Simmons v. United 
States, 390 U.S. 377, 394 (1968). Accord, United States v. 
Salvucci, 448 U.S. 83, 89-90 (1980); Lefkowitt v. Cunningham, 
431 U.S. 801, 806-07 (1977); Brooks v. Tennessee, 406 U.S. 
605, 612-13 (1972).

Although Beck does not require that lesser included 
offense instructions be given in every capital case, see 
Hopper v. Evans, 456 U.S. at 610, it does require "that the 
jury be permitted to consider a verdict of guilt of a 
noncapital offense 'in every case' in which 'the evidence 
would have supported such a verdict.'" Id. As discussed 
above, there was evidence in this case that would have 4

4 "It appears that had appellant's written qonfession been 
admitted into evidence, the issue that appellant presents 
might call for a conclusion different from the one we reach." 
Tompkins at 137 n.7.

11



supported a verdict of guilt on the lesser offenses of 
involuntary manslaughter or criminally negligent homicide. 
Under Beck petitioner was, therefore, entitled to 
instructions on these lesser offenses as a matter of due 
process. In the absence of such instructions, the jury was 
not given the option of deciding "whether to infer reckless­
ness or negligence or intent to kill . . . .[T ]he jury was 
permitted only to convict of capital murder or to acquit." 
(Emphasis added.) Tompkins at 169, Clinton, J., dissenting. 
This is precisely the situation that Beck found 
constitutionally intolerable.

It should be noted that the trial court did 
instruct the jury on the lesser offense of intentional 
murder, Tex. Penal Code Ann. § 19.02(a)(1), which is a 
noncapital offense.5 See R. App. at 187-91. Intentional 
murder differs from capital murder in that capital murder 
requires proof that the intentional murder was committed in 
the course of a robbery or kidnapping. See 
Sections 19.03(a)(2) and 19.02(a)(1), Texas Penal Code.

The court's instruction on intentional murder did 
not, however, give the jury a viable "third option" to 
convicting the petitioner of capital murder or acquitting 
him. The jury could reasonably have convicted petitioner of 
intentional murder only if it found that he had intentionally 
killed decedent but had not robbed or kidnapped the deceased. 
Such a finding would have been unsupportable by the evidence; 
if the jury found that petitioner had intentionally killed 
the deceased by gagging her and tying her to a tree, they 
could not fail to find that he had robbed or kidnapped her.

5 The court refused petitioner's request for an instruction 
on felony murder which is a noncapital offense. Tex. Penal 
Code Ann. § 19.02(a)(3). See R. App. at 172-75. Felony 
murder is killing another by conduct "clearly dangerous to 
human life" in the commission of a felony. Tex. Penal Code Ann. § 19.02(a)(3).

12



The only real issue presented by the evidence was whether 
defendant intended to kill decedent; on this point, the jury 
was given only two options: find the petitioner guilty of
having intentionally killed the deceased (a capital offense 
when coupled with robbery or kidnapping) or acquit the 
petitioner of killing the deceased (an unlikely result given 
the evidence linking the petitioner to the materials used to 
bind and gag the deceased). The jury was given no "third 
option . "

Finally, even if the noncapital murder charge could 
reasonably be seen as a viable third option in this case, due 
process would require that a jury in a capital case be 
instructed as to each lesser included offense that the 
evidence would support. The concerns regarding the 
reliability of a capital verdict that underlay Beck are 
equally present where the jury is instructed as to some but 
not all of the potentially applicable lesser included 
offenses .

Because the court of appeals erred in concluding 
that petitioner was not entitled to instructions on the 
lesser included offenses and seemingly misinterpreted this 
Court's holding in Beck v. Alabama, this case raises 
important issues that this Court should address. The writ 
should be granted on issue number 1.

13



II. THE APPROACH ADOPTED BY THE TEXAS COURT OF 
CRIMINAL APPEALS IN ACCEPTING THE DISTRICT
COURT'S BATSON FINDINGS WOULD, IF ACCEPTED,
VITIATE THIS COURT'S DECISION IN BATSON v. KENTUCKY

This case presents an important issue relating to 
the proper administration of the protections sought to be 
achieved by this Court in Batson v. Kennedy, 106 S. Ct. 1712 
(1986). The Court should review this issue here because the 
approach adopted by the Texas Court of Criminal Appeals to 
evaluate the prosecution's purportedly neutral explanations 
for its peremptory challenges of prospective black jurors 
would, if accepted, vitiate the protections of Batson.

Here the court of appeals deferred to the district 
court's acceptance of the prosecutor's explanations as a 
matter involving witness credibility, even though the court 
of appeals found the explanations to be implausible on their 
face. In so doing, the court expressly refused even to 
consider other objective evidence in the record that "cast 
considerable doubt” on the prosecutor's explanations and 
which, if considered, could have "materially affected" the 
court's decision. Tompkins at 119, n.6A. Unless appellate 
courts are prepared to look to all the circumstances evident 
in the record to see if —  despite the State's proffered 
explanations -- discrimination has taken place, the promise 
of Batson will be illusory.

In Batson, this Court confirmed that " [p ] urposeful 
racial discrimination in selection of the venire violates a 
defendant's right to equal protection because it denies him 
the protection that a trial by jury is intended to secure." 
106 S. Ct. at 1717. Batson recognised that the defendant's 
right to equal protection also forbids the prosecution to 
exercise peremptory challenges to exclude potential jurors 
solely on account of their race. Id.

14



Under Batson, once a defendant has established a
prima facie case of purposeful discrimination, by showing 
that he is a member of a cognizable racial group and that the
prosecutor has exercised peremptory challenges to remove from 
the venire members of the defendant's race, the prosecution 
must provide neutral non-racial explanations for its 
challenges.

Petitioner established a prima facie case here -- 
he is black and the prosecution exercised its challenges for 
cause and its peremptory challenges to exclude all 
13 prospective black jurors. (Eight of the jurors were 
challenged for cause and five were peremptorily challenged.) 
The prosecution then proffered explanations for its 
challenges. The district court accepted these explanations. 
Although the court of appeals found the prosecutor's 
explanations implausible on their face, it nonetheless 
affirmed the district court's findings.

The prosecution offered the following explanations 
for its peremptory challenges of venirepersons Thomas, Samuel 
and Green, all of whom are black. The prosecutor struck 
prospective juror Thomas because he found that she had 
problems with the "law of circumstantial evidence" and 
"[t]hat was my whole case. We had no direct evidence." 
Tompkins at 122. The court of appeals found this explanation 
" . . . shocking and totally not understandable," since, at 
the time the challenge was exercised, the prosecution had 
petitioner’s confession which had not been suppressed, id., 
and conceded that "[wjithout more . . .  we would have to hold 
that only an irrational trier of fact could have accepted 
this reason as a 'neutral explanation' why he used a 
peremptory strike on the juror." Id. Although the court 
found nothing that altered the fact that the prosecutor's 
explanation was implausible —  his case was not wholly

15



circumstantial at the time he exercised the challenge, it 
nonetheless affirmed the district court's finding.

Juror Green was struck because (1) he had worked in 
the U.S. Postal Service for thirteen and a half years; (2) he 
did not articulate answers; and (3) he responded by nodding 
his head (although he was never asked for a verbal response). 
Tompkins at 124. The court of appeals conceded that it had 
"some difficulty understanding the relevancy of a 
venireperson's employment as a postman . . . ," Tompkins at
125, and found Mr. Green's purported inarticulateness to be 
an insufficient reason for the challenge, noting that Mr. 
Green did not indicate an inability to be articulate "that 
was any greater or less than the unchallenged venirepersons." 
Id. at 124. Despite concluding that the State's explanations 
for challenging Mr. Green "give us great concern," id., the 
court of appeals affirmed the trial judge's acceptance of the 
State's explanations for challenging Mr. Green. Tompkins at 
125.

Finally, the State challenged juror Samuel because 
his data sheet appeared to have been filled out by someone 
else, suggesting that he was illiterate, although there was 
no proof of this, and because he nodded his head in response 
to questions. Supp. R., Vol. I (Batson hearing) at 134-43, 
146. The court of appeals accepted this challenge on the 
basis of the prosecutor's assertion that he was concerned 
that Mr. Samuel might be illiterate and that this was a 
"complex case" and would involve written jury instructions. 
Tompkins at 124.

The court of appeals also had before it, but 
refused to consider, a juror comparison that demonstrated 
that the prosecution's already suspect explanations were 
implausible. This comparison, presented to the court in 
petitioner's supplemental brief, showed that white jurors who

16



were not challenged possessed the same purportedly 
undesirable characteristics that formed the basis of the 
prosecution's purportedly neutral explanations of its
challenges to prospective black jurors. Tompkins at 119, 
n . 6A.

While conceding that this comparison "cast 
considerable doubt" on the prosecutor's explanations and 
"might have materially affected" the court's decision, the 
court refused to consider the comparison on the ground that 
petitioner had not asked the district court to make such a 
comparison at the Batson hearing. Id. The court's refusal 
to accept the comparison was incorrect and inconsistent with 
other parts of its opinion. Petitioner's comparison was not 
new evidence; it was simply an argument based on evidence in 
the record. Moreover, the court of appeals relied on 
precisely such a comparison itself to reject one of the 
prosecution's explanations for its challenge of Mr. Green.6

In affirming the district court's Batson findings, 
the court of appeals approached the issue as essentially one 
of witness credibility and deferred to the district court's 
findings. Observing that "the trial judge believed the 
race-neutral explanations given by [the prosecutors]," 
Tompkins at 126, and that such determinations are entitled to 
9reat deference, Tompkins at 117, the court affirmed the 
trial court without consideration of petitioner's arguments 
based on juror comparisons. Tompkins at 126. In so doing, 
the court of appeals relied heavily on this Court's 
observation in Batson that, since Batson findings typically 
turn on the credibility of the witness testimony, "a

As noted above, one of the prosecutor's explanations for its challenge of Mr. Green was that he was inarticulate. The 
court found this explanation implausible on the basis of its 
own juror comparison, noting that Mr. Green did not indicate 
an inability to be articulate "that was any greater or less 
than the unchallenged venirepersons.” Tompkins at 124.

17



reviewing court ordinarily should give [the trial court's 
Batson ] findings great deference." Batson at 1724 , n.21.

The problem with the court of appeals' approach was 
that this case did not involve just witness credibility.
There was also objective evidence, which the court did not 
consider in its review, that "cast considerable doubt" on the 
prosecution’s explanations. Tompkins at 119 n.6A. This 
Court's observations on the deference to be accorded findings 
on witness credibility certainly were not intended to be a 
signal to appellate courts that they were free to ignore 
circumstances evident in the record that cast doubt on the 
prosecutor's explanations. Unless appellate courts are 
willing to examine the plausibility of the State's Batson 
explanations in light of the entire record, the promise of 
Batson —  to serve as a check on the discriminatory use of 
peremptory challenges by prosecutors -- will be illusory.

Clearly, the Court anticipated the need for 
appellate courts to weigh the plausibility of the 
prosecutor's explanation in light of all the circumstances in 
the record. As Justice Marshall observed in Batson, "[a]ny 
prosecutor can easily assert facially neutral reasons for 
striking a juror." Batson at 1728. It is particularly 
important, therefore, that the plausibility of such 
explanations be examined on the basis of all of the 
circumstances in the record. This is particularly necessary 
in the Batson context, where the review of the prosecutor's 
explanations is intended to act as the safeguard of 
defendant's fundamental right to equal protection. It 
becomes even more essential where, as here, the Batson 
hearing took place almost 6 years after the petitioner's 
conviction, and several of the prosecutor's explanations are 
facially suspect. In such circumstances, the prosecutor's 
explanation of his reasons for a challenge should be accepted

18



less readily, particularly where it is internally 
inconsistent and is contradicted by objective evidence in the 
record.

This Court has already sown the seeds for requiring 
meaningful review in Batson cases. In Batson, the Court 
stated that, while the prosecution's explanations need not 
rise to the level of a challenge for cause, "the prosecutor 
may not rebut the defendant's prima facie case . . . merely
by denying that he had a discriminatory motive." Batson at 
1723. As the Court in Batson noted, "If these general 
assertions were accepted as rebutting a defendant's prima 
facie case, the Equal Protection Clause 'would be but a vain 
and illusory requirement.'" Id. quoting Norris v. Alabama,
294 U.S. 587, 598 (1935). Therefore, "the prosecutor must 
give a 'clear and reasonably specific' explanation of his 
'legitimate reasons' for exercising the challenges." Batson, 
106 S. Ct. at 1724 n.20, quoting Texas Dept, of Community 
Affairs v. Burdino, 450 U.S. 248, 258 (1981).

The court of appeals here did not subject the 
district court's Batson findings to the level of review that 
is required by Batson. On their face, the prosecution's 
explanations were not "'clear and reasonably specific' 
explanations of . . . 'legitimate reasons' for exercising the 
challenges." Id.

At the time Ms. Thomas was challenged for having 
problems with circumstantial evidence, circumstantial 
evidence was not crucial to the State's case, and the 
explanation for challenging Mr. Green, i.e., because he was a 
postal worker, is no explanation at all. It is comparable to 
an explanation rejected by another court where the prosecutor 
explained the exclusion of a nurse on the ground that nurses 
are compassionate for defendants. State v. Butler, 731 
S.W.2d 265 (Mo. App. 1987). See also People v. Turner,

19



42 Cal. 3d 711, 726 P.2d 102, 230 Cal. Rptr. 656 (1986) (lack 
of intelligence ascribed to truck drivers not shown to apply 
to black truck driver who was removed). If a person may be
struck because of his occupation without any explanation why 
the occupation is significant, a prosecutor can justify any 
exclusion merely by giving the person's occupation as the 
reason.

At a minimum, Batson findings, like any other 
findings of fact, are subject to a "clearly erroneous" 
review. The credibility of witnesses is only one factor to 
be considered in such a review. Under a "clearly erroneous" 
standard, the reviewing court should hold the finding 
erroneous "when, although there is evidence to support it, 
the reviewing court on the entire evidence is left with the 
firm conviction that a mistake has been committed."
Anderson v. Bessemer City, 470 U.S. 564 (1985).

The court of appeals here did not conduct its 
review based on the entire record and, as a consequence, 
failed properly to administer the protections that Batson 
sought to guarantee.

20



III. AS APPLIED, THE FIRST AND SECOND CAPITAL SENTENCING 
QUESTIONS IN TEXAS DO NOT SATISFY THE CONSTITUTIONAL 
REQUIREMENTS FOR CAPITAL SENTENCING PROCEDURES 
ARTICULATED BY THIS COURT IN CASES DECIDED SINCE JUREK

This case also presents an issue identical to the 
issue currently before this Court in Franklin v. Lynaugh, 
petition for cert, granted, No. 87-5546 (certiorari granted 
October 9, 1987) -- whether the first and second Texas 
sentencing questions provide constitutionally adequate 
sentencing guidance in light of the requirements for capital 
sentencing procedures articulated by this Court in cases 
decided after Jurek v. Texas, 428 U.S. 262 (1976).

After the jury found petitioner guilty of capital 
murder, it heard evidence in mitigation and aggravation prior 
to sentencing. At the conclusion of the sentencing evidence, 
the jury received no sentencing instructions other than 
receiving, in written form, the first and second Texas 
sentencing questions:

Issue No. 1
Do you find from the evidence beyond a 

reasonable doubt whether the conduct of the 
defendant, Phillip Daniel Tompkins, that caused the death of the deceased was 
committed deliberately and with the 
reasonable expectation that the death of 
the deceased or another would result?

Answer:
Issue No. 2

Do you find from the evidence beyond a 
reasonable doubt whether there is a 
probability that the defendant, Phillip 
Daniel Tompkins, would commit criminal acts 
of violence that would constitute a 
continuing threat to society?

Answer:

R. App. at 202.
As in Franklin, these instructions did not permit 

the jury to consider relevant mitigating evidence presented

21



by petitioner that could have justified a sentence less than 
death.

Petitioner presented evidence that he came from a 
broken home, that his mother was not supportive, that he had 
raised his eight brothers and sisters without a father in his 
house, and that he had helped to support and protect his 
family at a young age. R. Vol. XXV at 1203-1211. There was 
also evidence that Petitioner is of low intelligence (I.Q. of 
80) and has emotional problems stemming from his mother's 
lack, of support. R. Vol. XXVI at 1243-1248. Such mitigating 
evidence is highly relevant in capital sentencing. Califor- 
nia v. Brown, 107 S. Ct. 837, 841 (1987) (O'Connor, J.
concurring).

This Court has held "that a sentencing body must be 
able to consider any relevant mitigating evidence regarding 
the defendant's character or background." Id., citing 
Eddings v. Oklahoma, 455 U.S. 104 (1982) and Lockett v. Ohio, 
438 U.S. 586 (1978). Nothing in the first two Texas 
questions informed the jury that it could consider such 
evidence or the effect, if any, that such evidence could be 
given.

A juror could reasonably have concluded that the 
fact that petitioner helped raise his eight siblings in a 
broken home was not relevant to either of the two narrow 
questions asked. If so, the juror would be permitted to 
ignore this evidence altogether. Indeed, since the inquiry 
was focused solely on the two specific questions asked, a 
juror could reasonably have concluded that he or she was 
precluded from considering evidence not directly relevant to 
either question. Finally, even if the juror wanted to 
consider such evidence and felt on balance that it justified 
a sentence less than death, the two questions do not permit 
the juror to give the evidence any effect. Under the Texas

22



scheme, a juror has no means of expressing the view based on 
mitigating evidence, not directly relevant to either 
question, that a sentence of less than death is appropriate.

Thus, this case presents precisely the same issue 
that is before the court in Franklin v, Lynaugh. The 
petitioner in Franklin frames this issue in its brief as 
follows: "Did jury instructions given pursuant to
article 37.071(b) of the Texas Code of Criminal Procedure 
deprive the jury of any procedure for considering and 
expressing the conclusion that the mitigating evidence called 
for a sentence less than death?"

In the district court, petitioner moved to quash 
the indictment on the ground that Article 37.071 of the Texas 
Code of Criminal Procedure —  the Texas capital sentencing 
procedure -- is unconstitutional because, as applied, it 
fails to meet the constitutional requirements for capital 
sentencing procedures articulated by this Court in cases 
decided since Jurek v. Texas, 428 U.S. 262 (1976). See R. 
Vol. IV at 9-31. The trial court denied petitioner's motion 
without opinion. Id. at 31. Petitioner's court appointed 
counsel did not, however, renew this constitutional challenge 
on appeal.

This Court has recognized that it has the power, in 
appropriate cases, to decide important questions not raised 
by the parties below once its jurisdiction is otherwise 
established, Illinois v. Gates, 462 U.S. 213, 219-20 (1983); 
see also Carlson v. Green, 446 U.S. 14, 17 n.2 (1980), 
particularly where, as here, material errors were not raised 
below in a capital case, Fisher v. United States, 328 U.S.
463 (1946), and the issue is presented in a case that is

23



already pending. Carlson v. Green, 446 U.S. 14, 17 n.2 
( 1980 ) . '

Because the same issue is already before the Court 
in Franklin, however, the Court may prefer to defer 
consideration of the petition with respect to this issue 
pending its decision in Franklin.

Should this Court reverse Franklin, the Texas Court 
of Criminal Appeals will apply the benefits of Franklin to 
this case, even though this issue was not raised in the court 
of appeals by petitioner here. See Texas v. Chambers,
688 S.W.2d 483 (Tex. Crim. App. 1984), cert, denied, 474 U.S. 
864 (1985). As a consequence, it may be appropriate for this 
Court to hold the petition on this third issue until Franklin 
is decided and to return this case to the Texas courts for 
further consideration in light of its decision in Franklin. 
Such a disposition of this case would be in the interests of 
justice and of efficient judicial administration and would 
obviate the need for petitioner to pursue further post­
conviction proceedings in the Texas state courts, pending the 
disposition by this Court of Franklin.

This Court has the authority to hold this case 
pending the disposition of Franklin under its general grant 
of authority to dispose of cases as the interests of justice 
require and in the manner most consistent with efficient 
judicial administration. See 28 U.S.C. § 2106 (1982); see 
also R. Stern, E. Gressman & S. Shapiro, Supreme Court 
Practice at 366 (6th ed. 1986).

The Court plainly has jurisdiction over the first two 
issues presented in this petition. Both raise important 
constitutional issues and were properly raised below.

24



CONCLUSION

The Petition for Writ of Certiorari should be
granted. In the alternative, the Court may wish to defer the 
disposition of the petition pending its decision in 
Franklin v, Lynaugh, No. 87-5546 (certiorari granted,
October 9, 1987).

Respectfully submitted,

tmmett B. Lewis
Robert K. Huffman
Kendall W. Daines
MILLER & CHEVALIER, CHARTERED
655 Fifteenth Street, N.W.Suite 900
Washington, D.C. 20005-5701 
(202) 626-5800

Dated:

25