Tompkins v. Texas Respondents Brief in Opposition

    *

NO. 87-6405

IN THE
UNITED STATES SUPREME COURT 

OCTOBER TERM, 1987

PHILLIP D. TOMPKINS,
Petitioner,

v.
THE STATE OF TEXAS,

Respondent.

On Petition For Writ Of Certiorari 
To The Texas Court Of Criminal Appeals

RESPONDENT'S BRIEF IN OPPOSITION

JIM MATTOX MICHAEL P. HODGE
Attorney General of Texas Assistant Attorney GeneralChief, Enforcement Division
MARY F. KELLER CHARLES A. PALMER*
First Assistant Assistant Attorney General
Attorney General

lou mccreary
Executive Assistant 
Attorney General

P.O. Box 12548, Capitol Station 
Austin, Texas 78711 

(512) 463-2080

* Counsel of Record



p

QUESTIONS PRESENTED

1. Whether the trial court erred in failing to 
give Tomplins' requested jury instructions on 
the lesser included offenses of involuntary 
manslaughter and criminally negligent 
homicide.

2. Whether the prosecution rebutted Tompkins'
claim under Batson v. Kentucky. 476 U.S. ___,
106 S.Ct. 1712 (1986) .

3. Whether the Texas capital sentencing scheme 
is constitutionally infirm.



TABLE OF CONTENTS

Page
QUESTIONS PRESENTED ................................... i
TABLE OF AUTHORITIES................................. ill
OPINION BELOW ......................................... 1
JURISDICTION ......................................... 2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED . . .  2
STATEMENT OF THE C A S E ..................................  2

A . Course of Proceedings and Disposition
Below.........................................  2

B. Statement of F a c t s ..........................  2
SUMMARY OF ARGUMENT....................    2
REASONS FOR DENYING THE W R I T ........................  3

I. THE QUESTIONS PRESENTED FOR REVIEW ARE
UNWORTHY OF THIS COURT'S ATTENTION............  3

II. TOMPKINS WAS NOT ENTITLED, AS A MATTER 
OF STATUTORY CONSTRUCTION OF TEXAS LAW,
TO AN INSTRUCTION ON THE LESSER INCLUDED 
OFFENSES OF INVOLUNTARY MANSLAUGHTER AND
CRIMINALLY NEGLIGENT HOMICIDE.................  3

III. THE PROSECUTION REBUTTED TOMPKINS' CLAIM 
UNDER BATSON V. KENTUCKY. __  U.S. ___,
106 S.CT. 1712 (1986)......................... 6

IV. TOMPKINS' CHALLENGE TO THE TEXAS STATU­
TORY SCHEME IS NOT PROPERLY BEFORE
THIS COURT.....................................  7

CONCLUSION 8



TABLE OF AUTHOR TTTK.9
Cases page
Batson v. Kentucky, __  U.S. ___, 106 S.Ct. 1712

( 1986)........................................... 3,6

Beck v. Alabama, 477 U.S. 625 (1980)..................  3,4,5
Franklin v. Lynaugh, No. 87-5546 ...................... 3,7

Graver Mfg. Co. v. Linde Co., 336 U.S. 271 (1949) . . .  5
Hopper v. Evans, 456 U.S. 605 (1982)..................  4,5
Smith V. Phillips, 455 U.S. 209 (1982)................  4
Tacon v. Arizona, 410 U.S. 352 (1973)................  4,6,7

Constitutions. Statutes and Rules
U. S. Const., amend. V ..............................  2
U. S. Const., amend. V I I I ............................  2
U. S. Const., amend. X I V ............................  2
28 U.S.C. § 1257 ( 3 ) ................................... 2
Sup. Ct. R. 1 7 .......................................  3

Tex. Code Crim. Proc. Ann. art. 3 7.071 ..............  2
Tex. Penal Code Ann. § 6.03 . . . . . . .  ............. 2
Tex. Penal Code Ann. § 19.02...........................  2
Tex. Penal Code Ann. § 19.03...........................  2
Tex. Penal Code Ann. § 19.05...........................  2
Tex. Penal Code Ann. § 19.07...........................  2

e



NO. 87-6405

IN THE
UNITED STATES SUPREME COURT 

OCTOBER TERM, 1987

PHILLIP D. TOMPKINS,
Petitioner, 

v .

THE STATE OF TEXAS,
Respondent.

On Petition For Writ Of Certiorari 
To The Texas Court Of Criminal Appeals

RESPONDENT'S BRIEF IN OPPOSITION

TO THE HONORABLE JUSTICES OF THE SUPREME COURT:
NOW COMES the State of Texas, Respondent1 herein, by and 

through its attorney, . the Attorney General of Texas, and files 
this Brief in Opposition.

OPINION BELOW
The Opinion of the Texas Court of Criminal Appeals is

attached to the petition as Appendix A. Tompkins v._State, __
S.W .2d ___, No. 68,870 (Tex. Crim. App. Oct. 7, 1987). Tompkins'
motion for leave to file motion for rehearing was denied without 

written order.

iFor clarity, the Respondent is referred to as "the state," 
and Petitioner as "Tompkins."



JURISDICTION
Tompkins seeks to invoke the jurisdiction of this Court 

pursuant to 28 U.S.C. § 1257(3).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Tompkins bases his claims on the fifth, eighth and four­
teenth amendments to the United States Constitution. Also 
involved herein are Tex. Code Crim. Proc. Ann. art. 37.071 and 
Tex. Penal Code Ann. §§ 6.03, 19.02, 19.03, 19.05 and 19.07,
copies of which are attached to the petition as Appendix D.

STATEMENT OF THE CASE
A. Course of Proceedings and Disposition Below
On January 30, 1981, Tompkins was indicted for the capital 

murder of.Mary D. Berry. The indictment alleged that on or about 
January 26, 1981, Tompkins killed Berry while in the course of 
committing and attempting to commit the offenses of robbery and 
kidnapping of Berry. Tompkins pled not guilty and was tried by a 
jury, which, on June 11, 1981, found him guilty as charged. On 
June 15, 1981, following a separate hearing on punishment, the 
jury answered affirmatively the two special issues submitted 
pursuant to Tex. Code Crim. Proc. Ann. art. 37.071, and there­
after the trial court assessed punishment of death. On 
October 7, 1987, the Court of Criminal Appeals affirmed the
conviction. Tompkins v. State. ___ S.W.2d ___, No. 68,870 (Tex.
Crim. App. Oct. 7, 1987).

B. Statement of Facts
The state is in substantial agreement with Tompkins' state­

ment of the facts.
SUMMARY OF ARGUMENT

There are no special and important reasons to consider the 
questions presented.

Tompkins' claim that the trial court erred in failing to 
instruct the jury on two lesser included offenses is without 
merit. The court below found, as a matter of statutory construc­
tion of Texas law, that such offenses were not raised by the 

evidence, and this Court should defer to the Texas court's



interpretation of state law. Moreover, the jury was afforded the 
opportunity to convict Tompkins of a non-capital offense inasmuch 
as the trial court did give an instruction on the lesser included 
offense of murder.

Tompkins' claim under Batson v. Kentucky. ___ U.S. ___, 106
S.Ct. 1712 (1986), is also meritless. Both the trial court and
the state appellate court below specifically found that the
prosecutor's explanations for the exercise of his peremptory 
challenges sufficiently rebutted Tompkins' prima facie Batson 
claim. Tompkins asks this Court to grant certiorari merely to
review the factual findings and credibility choices of the courts
below. __

Finally, there is no merit to Tompkins' attempt to bring his 
case within the ambit of Franklin v. Lvnauah. No. 87-5546, 
currently pending in this Court. Tompkins raised no such claim 
in the court below and his trial court challenge to the constitu­
tionality of the Texas capital sentencing scheme was on grounds 
other than those presented in Franklin. Thus, this Court is 
without jurisdiction to consider this claim.

REASONS FOR DENYING THE WRIT
I.

THE QUESTIONS PRESENTED FOR REVIEW ARE 
UNWORTHY OF THIS COURT'S ATTENTION.

Rule 17 of the Rules of the Supreme Court provides that 
review on writ of certiorari is not a matter of right, but of 
judicial discretion, and will be granted only when there are 
special and important reasons therefor. Tompkins has advanced no 
special or important reason in this case, and none exists.

II.
TOMPKINS WAS NOT ENTITLED, AS A MATTER OF 
STATUTORY CONSTRUCTION OF TEXAS LAW, TO AN 
INSTRUCTION ON THE LESSER INCLUDED OFFENSES 
OF INVOLUNTARY MANSLAUGHTER AND CRIMINALLY 
NEGLIGENT HOMICIDE.

Tompkins, relying on Beck v. Alabama. 477 U.S. 625 (1980),
argues that the trial court erred in refusing his requested 
instructions on the lesser included offenses of involuntary



manslaughter and criminally negligent homicide. In Beck. the 
Court held that a sentence of death could not be imposed after a 
jury verdict of guilt of a capital offense, when the jury was not 
permitted to consider a verdict of guilt of a lesser included 
noncapital offense, where the evidence would have supported such 
a verdict. The Court struck down an Alabama preclusion clause 
which proscribed the giving of such an instruction in capital 
cases, finding that it introduced "a level of uncertainty and 
unreliability into the factfinding process that cannot be toler­
ated in a capital case." Id. at 643. In Beck. there was no 
question that the defendant would have been entitled to such an 
instruction but for Alabama's preclusion clause. Id. at 629-30.

Subsequently, in Hopper v. Evans. 456 U.S. 605 (1982), the 
Court made clear that "due process requires that a lesser in­
cluded offense instruction be given only when the evidence 
warrants such an instruction." Id. at 611 (original emphasis). 
There, the Court concluded that no such instruction had been 
required because there was no evidence to support it.

Here, the Texas appellate court found, as a matter of state 
law, that the evidence adduced at trial did not raise the lesser 
included offenses of involuntary manslaughter and criminally 
negligent homicide. Appendix A at 21-25. Thus, Tompkins' 
request for certiorari review of this issue should be denied for 
two reasons. First, it is nothing more than an invitation to 
this Court to second-guess the Texas court's interpretation of 
its own law, an undertaking which is outside the ambit of the 
Court's certiorari jurisdiction. See Smith v. Phillips. 455 U.S. 
209, 221 (1982) ("Federal courts hold no supervisory authority 
over state judicial proceedings and may intervene only to correct 
wrongs of constitutional dimension.").

Second, Tompkins' claim concerns only the application of 
Beck and Hopper to his particular factual situation. This Court 
sits to decide important, novel or recurring questions, not 
rulings founded on settled principles of law. Tacon v. Arizona.



410 U.S. 352, 353 (1973); Graver Mfq. Co. v. Linde Co.. 336 U.S. 
271, 275 (1949).

Moreover, even if the court below decided this matter 
incorrectly as a matter of Texas law, the writ should not issue 
because Tompkins could not have been prejudiced by the trial 
court's refusal of his requested instructions. The rationale of 
Beck is that, when raised by the evidence, a lesser included 
offense must be submitted to the jury as "a third option of 
finding that although the defendant had committed a grave crime, 
it was not so grave as to warrant capital punishment." Hopper. 
456 U.S. at 609. Here, the jury was given the third option of 
finding Tompkins guilty of the lesser included offense of murder 
(See Petition at 12). Due process was thus satisfied. The 
Constitution does not require that the jury be instructed on 
every conceivable lesser included offense. See Beck. 447 U.S. at 
630 n.5.

Finally, Tompkins misrepresents the holding of the court 
below in asserting that the Texas court read "Beck to require 
that the defendant testify or present evidence in order to 
receive the protections of Beck." (Petition at 11). In fact, 
the Texas rule is directly contrary to that suggested by 
Tompkins:

In determining whether a defendant is 
entitled to a charge on a lesser included 
offense, this Court considers all the evi­
dence presented. If evidence from any source 
raises the issue of a lesser included offense 
an instruction on that offense must be 
included in the court's charge to the jury.

(Appendix A at 20) (citations omitted). Rather than requiring
that a defendant testify or present evidence to create a Beck
issue, as Tompkins suggests, the Texas court simply observed that
in Beck the issue was raised by the defendant's testimony,
whereas here there was no evidence which raised the issue.



Ill.
THE PROSECUTION REBUTTED TOMPKINS' CLAIM
UNDER BATSON V. KENTUCKY. __  U.S. , 106
S.CT. 1712 (1986).

Under Batson v. Kentucky. ___ U.S. ___, 106 S.Ct. 1712
(1986), once a criminal defendant establishes a prima facie 
showing of racial discrimination in the prosecutor's exercise of 
his peremptory challenges, "the burden shifts to the State to 
come forward with a neutral explanation for challenging black
jurors." Id. at ___, 106 S.Ct. at 1723. Here, the court below
found that Tompkins had established a prima facie case, but that 
it had been rebutted because "the prosecuting attorneys articu­
lated at the hearing racially neutral explanations, which were 
both plausible and unambiguous, for exercising their peremptories 
on the five complained about venirepersons." Appendix A at 9. 
In so holding, the court adhered to the well settled rule of 
appellate review that "[w]e do not substitute our judgment of the 
witnesses' credibility and evidentiary weight for those of the 
factfinder, but affirm those judgments whenever the record dis­
closes sufficient evidence in their support." Id. at 7.

Tompkins does not, because he cannot, argue that the court 
below applied an improper constitutional standard. Instead, he 
asserts that the Texas appellate court should not have deferred 
to the trial court's credibility determinations because of other, 
"objective evidence" in the record which, he argues, cast doubt 
on the prosecutor's explanations. This disingenuous argument 
ignores one salient fact, i.e.. that the "objective evidence" 
upon which Tompkins relies never was presented to the trial court 
for its consideration. Thus, in refusing to consider this 
evidence, the court below did nothing more than adhere to the 
time-honored rule that an appellate court will not consider 
matters not raised in the court below, a rule to which this Court 
has consistently followed. E.g.. Tacon v. Arizona, supra.



iv.
TOMPKINS' CHALLENGE TO THE TEXAS STATUTORY 
SCHEME IS NOT PROPERLY BEFORE THIS COURT.

Tompkins contends that "[t]his case also presents an issue 
identical to the issue currently before the Court in Franklin v. 
Lvnauoh. . . . "  No. 87-5546. Again, Tompkins asks the Court to 
consider an issue not raised in the court below. Indeed, 
Tompkins concedes as much (Petition at 6, 23).

Moreover, even the issue which Tompkins raised at the trial 
court level is not the same as that in Franklin. At trial, 
Tompkins moved to quash the indictment on grounds wholly un­
related to Franklin (Transcript, hereinafter "Tr.," at 113). 
Tompkins also filed a motion to have the Texas capital sentencing 
statute declared unconstitutional (Tr. 99). Neither instrument 
raised the issue posed in Franklin. i.e.. whether the trial court 
must specifically instruct the jury to consider certain evidence 
as mitigating. Finally, Tompkins' citation to pages 9-31 of 
Volume IV of the record (Petition at 6, 23) apparently is in 
error, as the undersigned has examined the original record, and 
no such motion or ruling is found on those pages. Because the 
question presented in Tompkins' petition in this Court was not 
raised in the trial court or the appellate court below, this 
Court is without jurisdiction to consider it. Tacon v. Arizona,
supra.



CONCLUSION
For these reasons, the state respectfully request that the 

petition for writ of certiorari be denied.
Respectfully submitted,
JIM MATTOX
Attorney General of Texas
MARY F. KELLER 
First Assistant 
Attorney General

LOU MCCREARY 
Executive Assistant 
Attorney General

MICHAEL P. HODGE 
Assistant Attorney General

Assistant Attorney General
P.0. Box 12548, Capitol Station 
Austin, Texas 78711 
(512) 463-2080
ATTORNEYS FOR RESPONDENT