IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 92-2610

_____________________

JEFFREY DEAN MOTLEY,

Petitioner-Appellant,

v.

JAMES A. COLLINS, Director, 

Texas Department of Criminal Justice,

Institutional Division,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________________________________________________

(September 21, 1993)

Before KING, DAVIS and WIENER, Circuit Judges.

KING, Circuit Judge:

Jeffrey Dean Motley, a Texas death row inmate convicted of

capital murder, appeals from the district court's decision

denying his petition for a writ of habeas corpus. For the

reasons discussed below, we conclude that this case fits squarely

within the small class of cases still controlled by Penry: the

jurors who sentenced Motley to death were unable, as required by

the Eighth and Fourteenth Amendments, to consider and give effect

to the substantial mitigating evidence that Motley was abused as

a child. Accordingly, we reverse the district court's decision

denying the writ.
 

1 Specifically, there was evidence that Duran's shorts had

been removed and that her swimsuit had been cut away at the

crotch.

2

I. BACKGROUND

On the morning of July 22, 1984, Maria Duran left her home

to drive to a friend's apartment to go swimming. She never

arrived. Duran's family called the police, who began

investigating her disappearance.

Seven days later, on July 29, 1984, the police arrested

Jeffrey Motley as he was driving Duran's car. A search of the

car uncovered a sawed-off shotgun, a number of shotgun shells,

and a hunting knife. Police also discovered traces of human

blood on the spare tire in the trunk of Duran's car and on one of

the tennis shoes that Motley was wearing. Duran's credit cards,

driver's license, and social security card were found in a trash

bin near the apartment complex where Motley was arrested.

On August 1, 1984, three days after Motley's arrest, police

found Duran's body in a field. There were some signs that Duran

had been sexually assaulted,1 but the evidence was ultimately

found to be inconclusive. The cause of death, according to the

medical examiner, was a gunshot wound in the back. Investigators

could not determine, however, whether the shotgun slug that

killed Duran was fired from the shotgun found in Duran's car.

Based on the evidence found in Duran's car at the time

Motley was arrested, as well as other circumstantial evidence

linking Motley to the crime, the jury convicted Motley of capital

murder. After hearing evidence on issues relevant to sentencing,
3

including evidence that Motley was physically and sexually abused

as a child, the jury was presented with two of the three Texas

special issues:

(1) Was the conduct of the Defendant that caused the

death of the deceased committed deliberately and

with the reasonable expectation that the death of

the deceased would result?

(2) Is there a probability that the defendant would commit

criminal acts of violence that would constitute a

continuing threat to society?

See TEX. CODE CRIM. PROC. ANN. art. 37.071(b) (Vernon 1989).

The jury answered both of these questions affirmatively and, as a

result, Motley was automatically sentenced to death.

Motley's conviction and sentence were affirmed on direct

appeal. See Motley v. State, 773 S.W.2d 283 (Tex. Crim. App.

1989). The Texas Court of Criminal Appeals denied rehearing on

May 24, 1989. Because Motley did not petition the Supreme Court

for writ of certiorari, his conviction became final ninety days

later--about two months after the Supreme Court issued its

opinion in Penry v. Lynaugh, 492 U.S. 302 (1989). 

Thereafter, Motley filed a petition for habeas corpus in state

court, which was denied on July 22, 1992. See Ex Parte Motley,

No. 23806 (Tex. Crim. App. 1992). Motley then proceeded to

federal district court, where the judge denied habeas relief on

all of his claims. This appeal followed.
4

II. ANALYSIS

Motley raises two arguments on appeal. He argues, first,

that the district court erred in rejecting his ineffective

assistance of counsel claim. Motley also contends that the

district court erred in rejecting his Penry claim--i.e., his

claim that the jury was unconstitutionally prevented from

considering and giving effect to evidence that he was abused as a

child. We address each of these arguments in turn.

A. Ineffective Assistance of Counsel Claim

In district court, Motley argued that his trial counsel

rendered ineffective assistance of counsel by committing errors

at various stages of his capital murder trial. Among other

things, Motley argued that his counsel rendered ineffective

assistance by: (a) agreeing with the State, during voir dire,

that the term "deliberately" under the first special issue means

essentially the same thing as "intentionally" in the guilt/

innocence phase of the trial; (b) calling Motley as a witness

after the State rested with evidence that, according to Motley,

was insufficient to support a conviction; (c) being generally

unfamiliar with capital sentencing law--particularly, the

admissibility of unadjudicated extraneous offenses; and (d)

failing to investigate and introduce evidence of Motley's brain

damage during the punishment phase of the trial.

The district court rejected Motley's ineffective assistance

of counsel claim. It first reasoned, "The state court found that

Motley received effective assistance at all phases of his trial. 
5

Because the record supports those factual findings, they are

presumed correct." The district court further reasoned, with

respect to each of the alleged errors, that they either

represented valid strategic choices by Motley's trial counsel or

did not prejudice his defense.

As explained below, the district court correctly rejected

Motley's ineffective assistance of counsel claim. Although we

disagree with the district court's assertion that the state

court's finding of effective assistance is entitled to a

presumption of correctness as a factual finding under 28 U.S.C. §

2254(d), we agree that on this record Motley has failed to show

how the alleged errors prejudiced the outcome of either the

guilt/innocence or punishment phase of his trial.

1. The Strickland Framework

The standard for assessing whether counsel rendered

constitutionally ineffective assistance, which was set forth by

the Supreme Court in Strickland v. Washington, 466 U.S. 668

(1984), is a familiar one. To obtain relief, a criminal

defendant must first demonstrate that counsel's performance was

deficient. The defendant must also demonstrate that counsel's

deficient performance prejudiced the defense. Id. at 687; United

States v. Smith, 915 F.2d 959, 963 (5th Cir. 1990).

The proper standard for measuring counsel's performance

under the first prong of Strickland is reasonably effective

assistance. That is, "the defendant must show that counsel's

representation fell below an objective standard of
6

reasonableness." Strickland, 466 U.S. at 687-88. Our scrutiny

of counsel's performance must be "highly deferential," and we

must make every effort "to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel's

challenged conduct, and to evaluate the conduct from counsel's

perspective at the time." Id. at 689. Under Strickland, there

is a "strong presumption that counsel's conduct falls within the

wide range of reasonable professional assistance." Id.

To satisfy the prejudice prong of Strickland, the "defendant

must show that there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome." 

Id. at 694. The defendant need not show that "counsel's

deficient conduct more likely than not altered the outcome in the

case." Id. at 693. But it is not enough, under Strickland,

"that the errors had some conceivable effect on the outcome of

the proceeding." Id.

In reviewing ineffective assistance claims raised on habeas

corpus, we do not, contrary to the district court's assertion

otherwise, defer to a state court's conclusion that counsel

rendered constitutionally effective assistance. As Justice

O'Connor has stated:

Ineffectiveness is not a question of "basic, primary,

or historical fac[t]," Townsend v. Sain, 372 U.S. 293,

309 n.6 (1963). Rather, like the question whether

multiple representation in a particular case gave rise

to a conflict of interest, it is a mixed question of

law and fact.
 

2 We note that this is not the first time this district

court judge has erroneously suggested that a state court's

finding of effective assistance is entitled to deference as a

factual finding under § 2254(d). See, e.g., Black v. Collins,

962 F.2d 394, 401 (5th Cir.) ("Contrary to what the federal

district court appears to have thought, a state court's ultimate

conclusion that counsel rendered effective assistance is not a

fact finding to which a federal court must grant a presumption of

correctness under 28 U.S.C. § 2254(d)."), cert. denied, 112 S.

Ct. 2938 (1992). 

7

466 U.S. at 698. And, "[a]lthough state court findings of fact

made in the course of deciding an ineffectiveness claim are

subject to the deference requirement of § 2254(d), . . . both the

performance and prejudice components of the ineffectiveness

inquiry are mixed questions of law and fact." Id.2

Finally, in deciding ineffectiveness claims, we need not

address both prongs of the Strickland test. If we can "dispose

of an ineffectiveness claim on the ground of lack of sufficient

prejudice . . . that course should be followed." Id. at 697. We

therefore proceed in such a fashion.

2. Assessing Motley's Claim Under the Strickland Framework

The alleged errors to which Motley points are not

sufficient, either alone or in combination, to render his trial

counsel's performance constitutionally ineffective. While

Motley's trial counsel may have been deficient in certain

respects, this deficient performance did not, in our view,

prejudice the outcome of either the guilt/innocence or the

sentencing phase of Motley's trial. We therefore affirm the

district court's decision to the extent that it denied relief on

this ground.
 

3 Under the Texas capital sentencing scheme in existence at

the time of Motley's trial, if jurors became deadlocked on any of

the special issues--i.e., they could not get twelve "yes" votes

or ten "no" votes--the court was required to sentence the

defendant to life imprisonment. See TEX. CODE CRIM. PROC. ANN.

art. 37.071(e) (Vernon Supp. 1990) (subsection (e) amended in

1981).

8

First, Motley complains about his trial counsel's failure to

correct the State's assertion during voir dire that the term

"deliberately," as used in the first Texas special issue, was

substantially equivalent in meaning to the term "intentionally." 

Motley correctly points out that the Texas Court of Criminal

Appeals has refused to equate the two terms. See Motley v.

State, 773 S.W.2d at 289 ("We have decided that `deliberately,'

as used in the first special issue is not the linguistic

equivalent of `intentionally,' as used in the charge on guiltinnocence."); Heckert v. State, 612 S.W.2d 549, 553 (Tex. Crim.

App. 1981) (presuming that Texas legislature did not intend "for

finding of deliberateness to be based upon the same standard as

that of intentional or knowing"). But this observation

establishes, at most, that Motley's trial counsel was deficient. 

Motley has not satisfactorily demonstrated a reasonable

probability that, had his trial counsel corrected any

misapprehension on the part of jurors during voir dire, the

result of the sentencing proceeding would have been different. 

Specifically, he has not shown how a more favorable definition of

"deliberately" would have caused at least one juror3 to return a

negative answer to the first special issue. See Landry v.
9

Lynaugh, 844 F.2d 1117, 1120 (5th Cir.), cert. denied, 488 U.S.

at 900 (1988).

Motley also argues that his trial counsel, instead of

calling him to the stand, should have rested after the State put

on its case in chief. He contends that, if he had not been

called to testify, and if the State had not impeached him with a

statement in which he admitted killing Duran, there would have

been insufficient evidence upon which to convict him. We

disagree. Motley has not demonstrated a reasonable probability

that, if he had not testified, (1) the jury would not have

convicted him of capital murder, or (2) his conviction would have

been reversed on the basis of insufficient evidence. In short,

we find that the State introduced ample evidence during its case

in chief to support a guilty verdict. Thus, Motley fails to

satisfy Strickland's prejudice requirement.

Motley has also failed to demonstrate prejudice resulting

from his trial counsel's alleged unfamiliarity with capital

sentencing law. Motley complains specifically that his trial

counsel "did not understand the admissibility of unadjudicated

offenses at the punishment stage of a capital murder trial." Yet

he concedes that the Texas Court of Criminal Appeals has "long

held" that unadjudicated offenses are admissible at the

punishment phase of a capital murder trial. See Kinnamon v.

State, 791 S.W.2d 84, 93 (Tex. Crim. App. 1990) (citing numerous

cases). Although the Supreme Court has not considered the
 

4 See Williams v. Lynaugh, 484 U.S. 935 (1987) (Marshall,

J., joined by Brennan, J., dissenting from denial of certiorari)

(arguing that practice of admitting unadjudicated extraneous

offenses at capital sentencing proceeding "presents a serious

constitutional issue"); see also Steven Paul Smith, Note,

Unreliable and Prejudicial: The Use of Extraneous Unadjudicated

Offenses in the Penalty Phases of Capital Trials, 93 COL. L. REV.

1249 (1993) (criticizing the practice as injecting unreliability

into the sentencing process).

10

question,4 we have also sanctioned the practice of admitting

unadjudicated offenses during the punishment phase of trial. See

Landry v. Lynaugh, 844 F.2d at 1121 (rejecting, albeit with

reservations, a due process challenge to the practice); Williams

v. Lynaugh, 814 F.2d 205, 208 (5th Cir.) (rejecting an equal

protection challenge to practice), cert. denied, 484 U.S. 935

(1987). Motley has thus not alleged how his trial counsel's

unfamiliarity with the law on unadjudicated extraneous offenses

resulted in the admission of any evidence that should have, or

would have, been excluded.

Finally, Motley complains about his trial counsel's failure

to develop mitigating evidence concerning his organic brain

damage. Had Motley's trial counsel not pursued a strategy of

introducing evidence of Motley's child abuse, we might well agree

that the failure to introduce evidence of his brain damage would

have been a reasonable strategic decision; after all, such

evidence may have been "double-edged"--in that it may have

militated in favor of a "yes" answer to the future dangerousness

special issue. Given the strategic choice of Motley's trial

counsel to present evidence of physical and sexual abuse, see

Motley v. State, 773 S.W.2d at 290, however, it may have been
11

unreasonable for him to ignore evidence of neurological damage

and other evidence that would have been in the same vein as the

evidence actually introduced at the punishment phase.

In any event, Motley has not satisfied the prejudice prong

of Strickland. Much of the non-record Penry evidence merely

corroborated the substantial trial testimony that Motley was

abused as a child, and thus would have been cumulative of the

evidence actually introduced. More important, the evidence of

organic brain damage was relatively weak: a doctor who examined

Motley as a child concluded that he had "neurological soft signs"

and diagnosed him as having "neurological organic involvement." 

In short, we find no reasonable probability that this additional

mitigating evidence would have tipped the scales in favor of a

life sentence. See Duhamel v. Collins, 955 F.2d 962, 966 (5th

Cir. 1992).

B. Penry Claim

Motley also raised a Penry claim in district court. That

is, he argued that the Texas special issues effectively prevented

the jury from considering and giving effect to the substantial

evidence of his child abuse. He claimed that, under the Eighth

and Fourteenth Amendments, as interpreted in Penry v. Lynaugh,

492 U.S. 302 (1989), he was entitled to habeas relief.

The district court summarily rejected Motley's Penry claim. 

It concluded that, because Motley failed to object to the special

issues on Penry grounds, he procedurally defaulted his claim. 
12

The district court alternatively reached the merits of Motley's

Penry claim, but only to hold that it was frivolous:

Motley's argument is simple and wrong. [He argues

that] [h]is circumstances were pitiful as a child;

therefore, he is not responsible for his acts. Freedom

necessarily implies responsibility; Motley abused his

freedom. He must bear the consequences the state of

Texas has prescribed for this particular abuse, after

he has been afforded every protection the procedures of

a humane, reasonable people can offer.

Child abuse is tragic for anyone, but its ability

to break the causal connection between the free will of

the defendant and the fate of his victim has never been

suggested. If a defendant could argue that this

experience as a youthful victim of abuse led him to

react excessively to his perception of a threat, he

could lend some support to an otherwise implausible

assertion of self defense. These sorts of

considerations were not present in this case.

Motley argues that his experience as a victim of

abuse in part justified his murdering an innocent

passer-by . . . ; this is not a constitutional issue. 

Motley's position is an insult to people everywhere who

have overcome their injuries and deprivations to become

successful contributing members of our community. 

Also, murders are committed by people who were not

abused, contradicting the causal inference Motley wants

the court to make.

The district court's analysis of Motley's Penry claim is

flawed in several respects. Initially, it reflects a

misunderstanding of Texas cases concerning the procedural default

of Penry claims. Also, the district court's analysis confuses

the definition of mitigating evidence, a term that is only

relevant to the question of punishment, with the definition of

justification or excuse, concepts that are relevant to a criminal

defendant's guilt or innocence. Most importantly, however, the

district court ignores that the Supreme Court's decision in Penry

squarely controls the outcome in this case.
13

1. The Penry Framework

a. The Supreme Court's Decision in Penry

In Penry v. Lynaugh, the Supreme Court reaffirmed the Eighth

Amendment principle that "punishment should be directly related

to the personal culpability of the criminal defendant." 492 U.S.

at 319. This culpability principle, which was first articulated

by a plurality of the Court in Lockett v. Ohio, 438 U.S. 586

(1978), and later embraced by a majority in Eddings v. Oklahoma,

455 U.S. 104 (1982), places special constraints on states in

meting out the death penalty. Under this principle a State

cannot, "consistent with the Eighth and Fourteenth Amendments,

prevent the sentencer from considering and giving effect to

evidence relevant to the defendant's background or character or

to the circumstances of the offense that mitigate against

imposing the death penalty." Penry, 492 U.S. at 318.

In Penry, the Court held that Texas' capital sentencing

statute may, in some circumstances, violate the culpability

principle embodied in the Eighth and Fourteenth Amendments. The

Court vacated Penry's death sentence because it found that the

Texas special issues did not provide the jury with a vehicle for

expressing a "reasoned moral response" to evidence of Penry's

mild retardation and child abuse. See 492 U.S. at 322, 328. The

fact that Penry was able to introduce and argue the significance

of his mitigating evidence to the jury was not enough. The jury

should have been instructed "that it could consider and give

effect to the mitigating evidence of Penry's mental retardation
 

5 The district court erroneously reads Penry as holding only

that "profound retardation . . . cannot be properly accounted for

in the two special issues." A straightforward reading of Penry,

however, reveals that the mitigating evidence at issue in that

case was: (1) evidence that Penry was suffering from "mild to

moderate retardation," 492 U.S. at 307-08, and (2) evidence that

Penry was repeatedly beaten as a child, see id. at 308-09.

14

and abused background by declining to impose the death penalty. .

. ." Id. at 328.5

The Court first focused on the special issue asking whether

the defendant killed "deliberately and with the reasonable

expectation that the death of the deceased . . . would result."

It reasoned:

In the absence of jury instructions defining

"deliberately" in a way that would clearly direct the

jury to consider fully Penry's mitigating evidence as

it bears on his personal culpability, we cannot be sure

that the jury was able to give effect to the mitigating

evidence of Penry's mental retardation and history of

abuse in answering the first special issue. Without

such a special instruction, a juror who believed that

Penry's retardation and background diminished his moral

culpability and made imposition of the death penalty

unwarranted would be unable to give effect to that

conclusion if the juror also believed that Penry

committed the crime "deliberately." Thus, we cannot be

sure that the jury's answer to the first special issue

reflected a "reasoned moral response" to Penry's

mitigating evidence.

Id. at 323.

The Court similarly held that Penry's evidence of mental

retardation and child abuse was relevant beyond the scope of the

second special issue, which asks "whether there is a probability

that the defendant would commit criminal acts of violence that

would constitute a continuing threat to society." The Court

specifically focused on the fact that the mitigating evidence
15

offered by Penry, to the extent it was relevant to the second

special issue, was as likely to be aggravating as mitigating. It

stated:

Penry's mental retardation and history of abuse is thus

a two-edged sword: it may diminish his blameworthiness

for his crime even as it indicates that there is a

probability that he will be dangerous in the future.

Id. at 324. "The second special issue, therefore, did not

provide a vehicle for the jury to give mitigating effect to

Penry's evidence of mental retardation and childhood abuse." Id.

Finally, the Court held that the third special issue, which

asks "whether the conduct of the defendant in killing the

deceased was unreasonable in response to the provocation, if any,

by the deceased," was an insufficient vehicle for giving

mitigating effect to Penry's evidence of mental retardation and

child abuse. The Court noted that the evidence presented at

trial suggested that Penry "did not stab the victim after she

wounded him superficially with a [pair of] scissors during a

struggle, but rather killed her after her struggle had ended and

she was lying helpless." Id. at 324. And, it concluded that "a

juror who believed Penry lacked the moral culpability to be

sentenced to death could not express that view in answering the

third special issue if she also concluded that Penry's action was

not a reasonable response to provocation." Id. at 324-25.
16

b. The Continued Viability of Penry
 

6 See, e.g., Sean Fitzgerald, Note, Walking a Constitutional

Tightrope: Discretion, Guidance, and the Texas Capital

Sentencing Scheme, 28 HOUSTON L. REV. 663, 685 (1991); Shelley

Clarke, Note, A Reasoned Moral Response: Rethinking Texas

Capital Sentencing Statute After Penry v. Lynaugh, 69 TEX. L.

Rev. 407, 434-35 (1990).

 

7 See generally Peggy M. Tobolowsky, What Hath Penry

Wrought?: Mitigating Circumstances and the Texas Death Penalty,

19 AMER. J. CRIM. LAW 345 (1992).

17

The language of Penry, although arguably worded broadly,6

has been interpreted narrowly.7 This court has concluded that

"Penry does not invalidate the Texas statutory scheme, and that

Jurek v. Texas, [428 U.S. 262 (1976) (rejecting a facial attack

to the special issues)], continues to apply, in instances where

no major mitigating thrust of the evidence is substantially

beyond the scope of all the special issues." Graham v. Collins,

950 F.2d 1009 (5th Cir. 1992) (en banc), affirmed on other

grounds, 113 S. Ct. 892 (1993). The Supreme Court has similarly

indicated that Penry did not effect a "sea change" in its view of

the constitutionality of the Texas special issues. See Graham v.

Collins, 113 S. Ct. 892, 901 (1993).

We note initially that a Penry claim can be considered on

collateral review only if the petitioner actually proffered the

mitigating evidence he contends was beyond the reach of jurors at

his capital trial. See Barnard v. Collins, 958 F.2d 634, 637

(5th Cir. 1992), cert. denied, 113 S. Ct. 990 (1993); May v.

Collins, 904 F.2d 228, 232 (5th Cir. 1990), cert. denied, 111 S.

Ct. 770 (1991); DeLuna v. Lynaugh, 890 F.2d 720, 722 (5th Cir.

1989); Ex Parte Goodman, 816 S.W.2d 383, 386 n.6 (Tex. Crim. App.
 

8 Our en banc decision in Graham articulated a slightly more

stringent standard for determining whether a certain type of

mitigating evidence is beyond the "effective reach" of jurors. 

In particular, we asked whether "some major mitigating thrust of

the evidence is substantially beyond the scope of any of the

[special] issues," see Graham, 950 F.2d at 1027. Although the

Supreme Court did not expressly disapprove of the standard we

18

1991). However, the petitioner need not have requested an

instruction on mitigating evidence; nor must he have objected to

the lack of such an instruction. See Selvage v. Collins, 816

S.W.2d 390, 392 (Tex. Crim. App. 1991) (on certified question

from the Fifth Circuit Court of Appeals).

A properly preserved Penry claim will ultimately prove

meritorious only if two requirements are met. See Johnson v.

Texas, 113 S. Ct. 2658, 2668-69 (1993) (assessing merits of Penry

claim under a two-part framework). First, the evidence proffered

at trial must actually be "mitigating." It must be evidence that

(a) relates to the defendant's character or background, or to the

circumstances of the offense, and (b) could lead a reasonable

juror to impose a penalty less than death. See Franklin v.

Lynaugh, 487 U.S. 164, 188 (1988) (O'Connor, J., joined by

Blackmun, J., concurring in the judgment); see also Lockett v.

Ohio, 438 U.S. at 605. Second, the evidence proffered at trial

must have been beyond the "effective reach" of the jury. In

determining whether this requirement has been met, we ask whether

there is a "reasonable likelihood" that the jury applied the

Texas special issues in a way that prevented consideration of the

constitutionally relevant mitigating evidence. See Johnson, 113

S. Ct. at 2669.8
articulated in Graham, we believe that, after Johnson, the

appropriate inquiry is "whether there is a reasonable likelihood

that the jury has applied the challenged instruction in a way

that prevents the consideration of constitutionally relevant

evidence." Johnson, 113 S. Ct. at 2669 (quoting Boyde v.

California, 494 U.S. 370, 380 (1990)).

19

2. Assessing Motley's Penry Claim

Our assessment of Motley's Penry claim proceeds in three

parts. We necessarily begin with the trial record, which reveals

substantial evidence of Motley's abuse as a child. We then

explain why the evidence of child abuse qualifies as

constitutionally relevant mitigating evidence rather than

"vacuous sentimentality," as the district court deemed it. 

Finally, we discuss the extent to which the evidence of child

abuse was beyond the "effective reach" of jurors.

a. Was Motley's Penry claim properly preserved for

habeas review?

At the punishment phase of trial, Motley testified that his

father began physically abusing him when he was about four or

five years old. Motley recounted one instance when his father

beat him until he was "bloody, all over." On this occasion,

Motley recalled, his father "had to put me in a tub of ice to

stop the bleeding." Motley also stated that his father used his

head as a battering ram and, on more than one occasion, slammed

his head between doors. Other instruments of abuse included: 

"belt buckles in the face" and a boxed-in wrench, which his

father used to hit Motley "everywhere he could hit."

According to Motley, the abuse by his father did not stop at

beatings; it also included sexual and psychological abuse. 
20

Indeed, Motley testified that his father had anal and oral sex

with him until he was about thirteen. Although Motley could not

recall the number of times his father sexually abused him, he

stated that the sexual abuse stopped after his mother threatened

to divorce his father. Motley also recounted an incident in

which he was punished for not cleaning out his gerbil cage. He

stated that his father took his gerbils out and "squashed them"

to death in front of him.

Nor was Motley's father the only abuser. His mother often

failed to protect him and, on at least one occasion, physically

assaulted him herself. Motley specifically recalled an instance

where his mother came up behind him with a pool stick and

"whacked" him in the back of the head. When he turned around,

Motley further recalled, he "got whacked in the mouth." At the

punishment phase of trial, Motley pointed to the F-shaped scar on

his face which, he contended, was the result of being hit with a

pool stick.

Motley's stories of abuse were corroborated by his

neighbors, the Howells, who had known Motley since he was three. 

Margaret Howell recalled that, when Motley was about eight, he

spent the night out on a busy highway; she knew this because her

son picked Motley up the next morning and brought him to her

home. She also remembered Motley being locked out of his home

"on one of the bitterest [winter] nights." On one winter day,

she continued, she saw Motley being hosed down with cold water by

his father in the yard. She further testified that, on numerous
21

occasions, Motley came to her house bruised and bleeding, and

that she gave him food and shelter. Mrs. Howell concluded, "He

has had a hell of a life." Mrs. Howell's husband, Douglas, also

recalled seeing evidence that Motley was being abused. He stated

that, although he never actually witnessed any abuse, on several

occasions he noticed blood or bruises on Motley's face and skull. 

He further remembered seeing bars and padlocks on Motley's

bedroom window.

Finally, the defense called Dr. Fred Fason, a psychiatrist

with extensive experience in treating child abuse victims, who

testified about the likely effects of such abuse. He stated

that, in his experience, victims of child abuse, "even at the age

of eight or ten or twelve, were the kids that were most prone to

pick a fight or beat up a younger child, or throw rocks at other

kids and engage in behavior that we considered to be anti-social

behavior, particularly in relationships to smaller children." He

further explained the phenomenon of a child abuse victim's

"identification with the aggressor":

The reason so many parents abuse the children who were

abused is what psychoanalysts call identification with

the aggressor. In their head, there is the play of the

scene of the powerful person who is out to harm the

smaller person. It is much better for them to be that

powerful person, doing the harm, than the smaller

person who is being terrorized. So, this is kind of

what, in answer to your question, the effect on the

child who is abused as a child, is to terrorize and at

the same time to give him the feeling that no one

really cares. And . . . that combination leads him

then to identify with the powerful figure, the way he

conceptualizes the abusing parent, and then acts that

out with other people in his life. This is why abused

children so frequently get into difficulties with the
 

9 The district court erred in holding that Motley, by

failing to object to the charge or request an additional

instruction, procedurally defaulted his Penry claim. As already

discussed, see supra Part III.B.1.b., to preserve a Penry claim

for collateral review, a petitioner need only have introduced the

allegedly mitigating evidence at trial or offered a bill of

exceptions. The petitioner need not have objected to the

instructions or requested an additional instruction. See

Selvage, 816 S.W.2d at 392. 

22

law or difficulties with their own children, when they

become parents.

When sexual abuse is combined with physical abuse, Dr. Fason

continued, it becomes "particularly difficult" for the child to

cope: "[Y]ou have total separation of sexual feelings from soft

and tender feelings to where [the child] becomes incapable of

loving in a normal way."

Our review of the record thus reveals substantial evidence

that Motley was abused as a child. Indeed, the Texas Court of

Criminal Appeals noted that "[a]ll of the evidence . . .

presented at the punishment stage of the trial went to the

proposition that [Motley] had been abused both physically and

sexually as a child and as a result of that abuse, he acted out." 

Motley v. State, 773 S.W.2d at 290. We thus conclude that Motley

has properly preserved his Penry claim for collateral review.9

b. Was Motley's evidence of child abuse

"constitutionally mitigating"?

On appeal, the State contends that Motley's Penry claim

lacks merit, because he has not demonstrated that his criminal

behavior was attributable to the abuse he suffered as a child. 

The State points out that Dr. Fason, who testified about the

effects of child abuse generally, did not examine Motley and thus
23

did not express an opinion as to whether Motley's behavior was

the result of child abuse. The State further contends that the

evidence of Motley's child abuse "cannot explain his actions,

which were inconsistent with Fason's expert opinion." According

to the State:

Fason testified that victims of child abuse react with

fear and terror and lash out at perceived threats

against them. As confirmed by the trial court's

findings on state habeas, . . . those effects do not

correlate with Motley's relevant behavior. . . . The

facts of Motley's crime belie the argument that he

reflexively lashed out at a helpless individual because

he was feeling the rage and terror he experienced when

he allegedly was abused as a child. Because Motley's

evidence provided no reason for a jury to conclude that

he was less responsible for his conduct than the

average person, it certainly was not probative of a

reduced culpability beyond the scope of the special

issues.

The State's argument, when stripped to its essentials, is

that the evidence of Motley's child abuse is not constitutionally

relevant mitigating evidence. The State does not dispute that

the child abuse evidence related to Motley's "character or

background, or to the circumstances of the offense." Compare

Franklin, 487 U.S. at 188 (O'Connor, J., concurring in the

judgment) (concluding that any "residual doubt" about a

defendant's guilt is not mitigating evidence, because it does not

relate to the defendant's character or background, or the

circumstances of the offense). Embracing the district court's

reasoning, however, the State effectively contends that the child

abuse evidence, because it was not linked to the crime by more

specific testimony, would not have led a reasonable juror to

impose a penalty less than death. See supra Part III.B.1.b. 
 

10 This is also the essence of Judge Davis' argument in

dissent. He does not contend that Motley's evidence of child

abuse was within the "effective reach" of jurors. Rather, he

concludes "that the evidence is insufficient to allow a rational

juror to attribute this murder to Motley's earlier child abuse." 

Thus, although he does not expressly say so, Judge Davis would

essentially agree with the State and the district court that

Motley's evidence of child abuse was not, as a matter of law,

"constitutionally relevant mitigating evidence."

24

This so-called "nexus" argument is not, in our view, peculiar to

the Texas special issues: it goes to the very core of what

qualifies as constitutionally relevant mitigating evidence.10

The State is correct to point out that, before evidence will

be considered "mitigating" for Eighth Amendment purposes, it must

be reasonably likely to militate against imposition of the death

penalty. On several occasions we have rejected Penry claims

where the habeas petitioner failed to explore the nexus between

the allegedly mitigating evidence and the crime itself. For

example, in Graham v. Collins, we concluded that evidence

suggesting petitioner's mother was frequently hospitalized for a

mental condition was not constitutionally relevant mitigating

evidence. We reasoned:

There was no evidence of any effect this had on Graham,

or of any reaction on his part to it, and no attempt

was even made to explore that subject. . . . There was

no suggestion that he was unhappy, withdrawn, moody,

difficult to control or the like, or that he had any

mental or psychological problems. The entire thrust of

the defense evidence . . . was the exact opposite,

namely that Graham was a good, stable, nonviolent,

ordinary youth. There is no substantial evidence that

Graham's criminal conduct was "attributable to a

disadvantaged background, or to emotional and mental

problems," as Justice O'Connor used those terms in

Penry. In this respect, the evidence as a whole is

simply not comparable to that in Penry or Eddings.
25

950 F.2d at 1033 (internal citations omitted); see also Drew v.

Collins, 964 F.2d 411, 420 (5th Cir. 1992) (rejecting Penry claim

predicated on evidence of troubled childhood, because petitioner

presented no evidence of any effect this had on him and made no

attempt to even explore the subject), cert. denied, 113 S. Ct.

3044 (1993).

Our cases thus establish that evidence of a petitioner's

background or record, in order to be constitutionally mitigating,

"must be able to raise an inference `that the crime is

attributable to the disability.'" Barnard v. Collins, 958 F.2d at

638 (quoting Graham, 950 F.2d at 1033). This nexus requirement

is not, however, as strict as the State or district court would

have it. If a jury could reasonably infer, based on the evidence

presented at trial, that the crime is in some way attributable to

the defendant's disadvantaged background, no more specific nexus

is required under our precedent.

We conclude that Motley's jury, based on the evidence of

child abuse actually proffered at trial, could have reasonably

inferred that Motley's crime was at least in part attributable to

his troubled past. Dr. Fason testified that (a) because abused

children tend to identify with the aggressor, they frequently

"get into difficulties with the law," (b) in his experience,

child abuse victims tended to pick on those smaller and more

vulnerable and engage in anti-social behavior, and (c) that child

abuse victims' bitterness and hatred, if not treated, could lead

them to senselessly assault other people. Motley's crime
 

11 We fail to understand why Judge Davis finds nothing

inherent about the facts of this crime that suggest it was

related to Motley's earlier child abuse. The facts Judge Davis

recites clearly show that Motley, by shooting an innocent victim

in the back, acted in a senseless, assaultive, and anti-social

manner. Moreover, although the evidence was inconclusive on the

question of whether Motley sexually assaulted Duran, the State

did introduce evidence that the crotch of her bathing suit had

been cut--thus raising the specter of physical or sexual abuse. 

All of this conduct, in our view, fits squarely within the

testimony of Dr. Fason.

 

12 Alluding to persons with disadvantaged backgrounds

generally, and to Motley's child abuse specifically, the

prosecutor stated:

It doesn't excuse them from killing. It may make them

mean. It may make them bitter, and I think you have

seen a lot of meanness in this man. There is a lot of

meanness there.

26

certainly fits this description. It is especially noteworthy

that his victim, Maria Duran, was indisputably smaller and more

vulnerable than Motley. Further, shooting such a victim in the

back with a shotgun certainly falls into the category of

senseless, assaultive, antisocial behavior.11 We thus believe

that jurors reasonably could have found a nexus between Motley's

history of abuse and the capital crime for which he was

convicted. Our conclusion is reinforced by the prosecutor's own

statements during closing argument--in particular, his argument

that Motley's child abuse made him mean, extremely mean.12

That Dr. Fason did not specifically or hypothetically opine

that the murder was likely the result of Motley's child abuse did

not preclude jurors from making the required inference. After

all, the effects of child abuse are not peculiarly within the

province of an expert. As Chief Justice Rehnquist has noted: 
27

"It requires no citation of authority to assert that children who

are abused in their youth generally face extraordinary problems

developing into responsible, productive citizens." Santosky v.

Kramer, 455 U.S. 745, 789 (1982) (Rehnquist, J., joined by

Burger, C.J., White, and O'Connor, JJ., dissenting). This

common-sense view of child abuse is also reflected in the Court's

capital sentencing jurisprudence. In Eddings v. Oklahoma, for

example, the Court specifically held that, "when the defendant

was sixteen years old at the time of the offense, there can be no

doubt that evidence of a turbulent family history, of beatings by

a harsh father, and of severe emotional disturbance is

particularly relevant." 455 U.S. at 115-16 (emphasis added); see

also Penry, 492 U.S. at 319 (noting that "evidence about the

defendant's background . . . is relevant because of the belief,

long held by this society, that defendants who commit criminal

acts that are attributable to a disadvantaged background . . .

may be less culpable than defendants who have no such excuse")

(emphasis added) (quoting California v. Brown, 479 U.S. 538, 545

(1987) (O'Connor, J., concurring)). Moreover, in the context of

Penry claims predicated on child abuse, we have never required

the type of precise expert "nexus" testimony which the State

urges we now require. See Mayo v. Lynaugh, 893 F.2d 683 (5th

Cir. 1990) (holding that petitioner's Penry claim based on

evidence of child abuse was meritorious--despite the fact that

there was no expert testimony at trial about the effects of child

abuse), modified, 920 F.2d 251 (5th Cir. 1990), cert. denied, 112
 

13 Our refusal to require specific expert testimony

regarding the nexus between child abuse and the crime is also

supported by other considerations. First, prior to Penry, no

competent defense counsel would have attempted to establish such

a precise nexus, because it would have only underscored the

double-edged nature of the child abuse evidence. See May v.

Collins, 904 F.2d 228, 234 (5th Cir. 1990) (Reavley, J., joined

by King, J., specially concurring) (Before Penry, "defense

counsel representing victims of child abuse and mental impairment

[were faced] with a tactical dilemma: (1) either to present the

mitigating evidence, which would do more harm than good by

bolstering the state's case with regard to future dangerousness,

and then to pursue a losing constitutional argument; or (2) to

withhold that evidence and hope that other arguments would

persuade the jury to impose a life sentence. Any capable defense

attorney would pursue the latter course. . . .), cert. denied,

498 U.S. 1055 (1991); see also infra Part III.B.2.c. In

addition, we note that we have sanctioned the practice of

allowing prosecution experts who have not examined the defendant

to hypothetically testify about the defendant's future

dangerousness, an aggravating factor under the Texas special

issues. See Barefoot v. Estelle, 697 F.2d 593, 596-98 (5th

Cir.), aff'd, 463 U.S. 880 (1983). Surely a capital defendant

can, under the reasoning of such cases, satisfy the "nexus"

requirement for mitigating evidence by offering the testimony of

an expert who explains the usual effects of child abuse. To

require the expert to further render an opinion based on a

"hypothetical"--at least with respect to the well-known effects

of child abuse--would, in our view, render the definition of

mitigating evidence hypertechnical.

Judge Davis, in dissent, does not agree that expert

testimony about the effects of child abuse generally can support

an inference that Motley's crime was in some way attributable to

his disadvantaged background. Although he would not necessarily

require specific expert testimony by a psychiatrist, he would "at

least require the defendant to establish through lay testimony

the personality traits of the defendant or examples of the

defendant's conduct that could be rationally related to his child

abuse." In our view, however, this definition of mitigating

evidence--at least with regard to child abuse--is only slightly

less hypertechnical than the State's. It amounts to a conclusion

that, absent such lay testimony or more specific testimony by an

expert, the documented evidence of Motley's child abuse could

have been excluded as constitutionally irrelevant. Because we do

not think that the Eighth Amendment would permit such evidence to

be excluded, see Eddings, we decline to embrace Judge Davis' test

for determining when evidence of child abuse is constitutionally

28

S. Ct. 272 (1991). We decline to impose such a requirement

now.13
mitigating.

 

14 See, e.g., Farris v. State, 819 S.W.2d 490, 497 (Tex.

Crim. App. 1990) (prosecution introduced evidence that defendant

had unlawfully shot a cow and wantonly killed a buffalo at a

wildlife refuge), cert. denied, 112 S. Ct. 1278 (1992); Derrick

v. State, 773 S.W.2d 271, 274-75 (Tex. Crim. App.) (prosecution

introduced evidence that defendant was a homosexual and a male

prostitute), cert. denied, 493 U.S. 874 (1989); Kunkle v. State,

771 S.W.2d 435, 446 (Tex. Crim. App. 1986) (prosecution

introduced evidence that the defendant had several truancy

violations in high school), cert. denied, 492 U.S. 925 (1989);

Davis v. State, 597 S.W.2d 358, 361 (Tex. Crim. App.) (Clinton,

J., dissenting) (prosecutor argued that defendant was a future

danger to society because he had used and sold marijuana), cert.

29

Nor do we find persuasive the State's argument that, because

there was no evidence that Motley reflexively lashed out at Maria

Duran, the evidence of child abuse was rendered non-mitigating. 

The main problem with this argument is that the State has

mischaracterized the testimony of Dr. Fason. He did not testify

that child abuse victims reflexively "lash out at perceived

threats against them." Rather, he stated that, because they

identify with the aggressor, such victims are "more prone to pick

a fight or beat up a younger child." Picking a fight and beating

up younger children cannot fairly be characterized as lashing out

at perceived threats. In any event, Motley was not required to

establish this type of precise nexus between his crime and his

history of child abuse. Such a connection would be difficult, if

not impossible, to establish. Moreover, such a precise nexus

requirement in the context of mitigating evidence would be

inconsistent with the liberal admission of aggravating evidence,

which often consists of unadjudicated extraneous offenses having

little, if any, similarity to the capital offense.14
denied, 449 U.S. 976 (1980).

 

15 Of course, more specific expert testimony may be

necessary to support a jury's inference that the crime is

attributable to other types of disabilities. This case is thus

30

Finally, we disapprove of the district court's reasoning

with regard to the significance of Motley's evidence of child

abuse. While it may be correct that not all child abuse victims

become murderers, and not all murderers are child abuse victims,

this observation does not prevent evidence of child abuse from

being constitutionally mitigating. Under the district court's

reasoning, a defendant's youth would not be a mitigating factor

either, because it is also indisputable that most young people do

not murder and that many murderers are not young. Yet, the

Supreme Court has recently reaffirmed that youth is

quintessential mitigating evidence. See Johnson v. Texas, 113 S.

Ct. at 2668 ("There is no dispute that a defendant's youth is a

relevant mitigating circumstance that must be within the

effective reach of a capital sentencing jury if a death sentence

is to meet the requirements of Lockett and Eddings.").

As the discussion above indicates, we hold that Motley's

evidence of child abuse was constitutionally relevant mitigating

evidence, because a jury reasonably could have inferred that his

crime was in some way attributable to the abuse. We reject the

State's argument that evidence of child abuse, to be

constitutionally mitigating, must be specifically supported by an

expert opinion that the abuse probably caused the petitioner to

commit the crime.15 This reasoning, when logically extended,
entirely distinguishable from the more speculative evidence at

issue in Barnard v. Collins, 958 F.2d 634 (5th Cir. 1992), cert.

denied, 113 S. Ct. 990 (1993), where we suggested that specific

expert testimony was needed to make the evidence mitigating. In

that case, the petitioner had introduced evidence that several

months before he committed the crime, his son-in-law beat him in

the head with a tire iron. Although various family members

testified that they thought the head injury affected Barnard,

there was no expert testimony establishing that he suffered from

any psychological disorders. Nor was there any other kind of

affirmative evidence of brain damage, such as hospital records. 

In holding that the evidence was not mitigating, we reasoned:

The evidence of the beating [with a tire iron], without

more, is insufficient to support a Penry claim. The

evidence must be able to raise an inference "that the

crime is attributable to the disability." Graham, 950

F.2d at 1033. Here, there is no evidence that the

physical trauma from the blows caused Barnard to suffer

from mental impairment, or that his criminal actions

were attributable to mental impairment. Barnard cannot

rely on his mother's inexpert speculation concerning

Barnard's mental condition to demonstrate a Penry-type

disability. A juror would be compelled to share this

speculation to make such a finding.

958 F.2d at 638.

In this case, by contrast, there was expert testimony

concerning the effects of child abuse generally. Moreover, as

already discussed, the long-term effects of child abuse, unlike

the varying effects of head injuries, are well-understood by lay

people. See Santosky, 455 U.S. at 789. 

31

would permit the State to exclude evidence of child abuse from

the punishment phase altogether unless an expert independently

examined the defendant and testified that the crime was

attributable to the abuse. There can be no doubt that the

exclusion of child abuse evidence in these circumstances would

violate the culpability principle underlying Lockett and Eddings. 

See Burger v. Kemp, 483 U.S. 776, 789 n.7 (1987) ("We have no

doubt that this potential testimony [concerning the petitioner's

exceptionally unhappy and unstable childhood] would have been
32

relevant mitigating evidence that the sentencer could not have

refused to consider and could not have been precluded from

considering. . . ."). We therefore decline to embrace such

reasoning.

c. Was the evidence of Motley's abuse beyond the

"effective reach" of jurors?

Having held that Motley's evidence of child abuse was

constitutionally mitigating, we must now determine whether the

Texas special issues provided the jury with an adequate vehicle

to give effect to the mitigating evidence. We hold that they did

not under the standard most recently articulated by the Court in

Johnson. Specifically, we find it reasonably likely that the

jury applied the Texas special issues in a way that prevented

consideration of the child abuse evidence. See Johnson, 113 S.

Ct. at 2669. We thus conclude that Motley's mitigating evidence

was beyond the "effective reach" of his jurors.

No one seriously contends that the jury had an adequate

vehicle for giving mitigating effect to the evidence of Motley's

child abuse under the first special issue, which asks whether the

defendant committed the crime deliberately. Such a contention

would be without merit. As in Penry, the term "deliberately" was

not defined for the jury. See 492 U.S. at 322. Moreover, the

State argued, during both voir dire and closing argument, that

the term "deliberately" meant essentially the same thing as

"intentionally." Thus, like the Supreme Court in Penry, "we

cannot be sure that the jury was able to give effect to the

mitigating evidence of [Motley's] . . . history of abuse in
33

answering the first special issue." Id. at 232. In short, we

agree with Judge Reavley's observation that evidence of child

abuse does not "logically" come into play in considering the

deliberateness question. See Penry v. Lynaugh, 832 F.2d 915, 925

(5th Cir. 1987), aff'd in part, rev'd in part, 492 U.S. 302

(1989).

Nor does anyone contend that the third special issue, which

asks whether the defendant's conduct was unreasonable in response

to any provocation by the deceased, could have allowed the jury

to give mitigating effect to Motley's evidence of child abuse. 

In fact, the third special issue was not even submitted to the

jury in this case, because the evidence demonstrated that the

victim, Maria Duran, had been shot in the back from approximately

thirty feet away. The third special issue provided absolutely no

vehicle for consideration of Motley's evidence of child abuse. 

See Penry, 492 U.S. at 324.

The State vigorously contends, however, that Motley's

mitigating evidence was not beyond jurors' effective reach under

the second special issue. Pointing to testimony from Dr. Fason,

who suggested that Motley's problems might be treatable, the

State argues that "the jury had a vehicle, in the form of the

future dangerousness issue, for giving mitigating effect to the

child abuse evidence." The State thus suggests that, because

Motley's condition was "transitory," the jury could adequately

consider and give mitigating effect to it under the second

special issue. We disagree.
34

Dr. Fason did not unequivocally testify, as the State

suggests, that Motley's "syndrome is a treatable, curable

condition." When asked whether child abuse victims would

continue to engage in antisocial behavior, Dr. Fason responded

that the problems would continue indefinitely "unless there are

certain changes that take place that include the feeling that

someone cares, and if they are prevented from acting out that

sort of behavior." Dr. Fason further testified that "just

removing the victim of child abuse" from the abuser does not

automatically provide a cure. On cross-examination, Dr. Fason

stated that, in the absence of successful psychotherapy or

treatment, the child abuse victim's bitterness and hatred would

frequently continue, leading him to perhaps senselessly assault

other people. Finally, when specifically asked whether there was

a probability that a child abuse victim could be successfully

treated in prison, Dr. Fason stated that there was a possibility

of successful treatment, but would not say whether there was a

probability. The "probability" of a successful treatment, he

explained, "depends so much on the individual circumstances of

the individual and depends on so many different variables, such

as, the skills that he has, his motivations, his spirit, a number

of factors."

The problems resulting from Motley's abuse as a child,

therefore, are not transitory in the same sense that youth is

transitory. Indeed, we have stated that the "limitations

attributable to youth are all necessarily transitory." Graham,
35

950 F.2d at 1031; see also Johnson, 113 S. Ct. at 2669 ("The

relevance of youth as a mitigating factor derives from the fact

that the signature qualities of youth are transient; as

individuals mature, the impetuousness and recklessness that may

dominate in younger years can subside."). The limitations

attributable to child abuse, by contrast, are not necessarily or

even probably treatable; according to Dr. Fason, they are, at

best, "possibly" curable. This possibility is not sufficient, in

our view, to support a conclusion that the jury was able to give

mitigating effect to Motley's evidence of child abuse under the

second special issue.

More importantly, however, the State's argument in this

regard ignores that evidence of child abuse is double-edged under

the second special issue. The Court in Penry expressly held so. 

See 492 U.S. at 324 ("Penry's mental retardation and history of

abuse is thus a two-edged sword: it may diminish his

blameworthiness for his crime even as it indicates that there is

a probability that he will be dangerous in the future.")

(emphasis added). The prosecutor at Motley's trial recognized as

much when he argued at the close of the punishment phase that (a)

Motley's child abuse may have made him "mean" and (b) the

aggression resulting from Motley's child abuse would probably

continue, because the time for effective treatment had passed. 

The State wrongly reasons that, because of the uncertain

potential for treatment of the widely-known deleterious effects

of child abuse, the jury could give the evidence mitigating
 

16 See, e.g., Tison v. Arizona, 481 U.S. 137, 149 (1987)

("The heart of the retribution rationale [justifying the

imposition of the death penalty] is that a criminal sentence must

be related to the personal culpability of the criminal

offender.").

36

weight under the second special issue. That child abuse is

possibly treatable over time, however, only diminishes the extent

to which the evidence is aggravating under the future

dangerousness inquiry; it does not allow the jury to give any

independent mitigating effect to the evidence under that

question. Put another way, that a child abuse victim may

overcome the ill effects of his or her troubled past in no way

relates to the defendant's personal culpability, which, as

discussed above, see supra Part III.B.1.a., is the central

concern of the Supreme Court's modern capital sentencing

jurisprudence.16 The potential for overcoming the long-term

effects of child abuse has little, if anything, to do with the

moral culpability of the defendant at the time of the crime. 

Rather, the potential for successful treatment is simply a

utilitarian consideration which is unrelated to the concept of

personal culpability.

 Finally, we note that our conclusions here fully comport

with the Supreme Court's most recent discussion of the second

special issue in Johnson v. Texas. In discussing how a capital

defendant's youth differs from the type of mitigating evidence

presented in Penry, the Court focused on the fact that the

evidence Penry introduced could only be given aggravating weight

under the second special issue. The Court reasoned that, unlike
 

17 Our conclusion that Motley's child abuse evidence was

beyond the "effective reach" of the second special issue is

further supported by other prosecutorial arguments. The

prosecutor specifically noted that, while Motley may have had an

"unhappy childhood," the jury charge "does not ask you anything

about his childhood." (emphasis added). The prosecutor further

stated:

You know, sometimes the young people will give a parent

an extra, hard time, and that parent will overreact,

but you see, that is not the issue. That is not the

question here, because if it was, every case we had,

somebody could come in and sell that to a jury.

(emphasis added).

37

Penry's evidence, "the ill effects of youth that a defendant may

experience are subject to change and, as a result, are readily

comprehended as a mitigating factor in consideration of the

second special issue." Johnson, 113 S. Ct. at 2670 (emphasis

added). Unlike youth, which is not only necessarily fleeting,

but also does not predispose one to commit violence, the

speculation that the ill-effects of child abuse may be treated is

not "readily comprehended as a mitigating factor" under the "the

forward-looking inquiry" of future dangerousness. Id. The

uncertain potential that the "double-edged" character of evidence

may be removed does not somehow allow the jury to give the

evidence mitigating weight when that evidence simply cannot be

given mitigating weight in the first place. See Penry, 492 U.S.

at 324 ("The second special issue . . . did not provide a vehicle

for the jury to give mitigating effect to Penry's evidence of . .

. child abuse."). It is simply "a wash."17

Accordingly, we hold that the Texas special issues did not

allow Motley's jurors to adequately consider and give effect to
 

18 Under Texas law, Motley is entitled to a new trial to

determine his guilt or innocence, as well as his punishment,

because his offense occurred before the September 1, 1991

effective date of TEX. CODE CRIM. PROC. ANN. art. 44.29(c) (Vernon

Supp. 1993) (allowing court to empanel a jury solely for the

purpose of deciding a convicted capital defendant's penalty under

article 37.071).

38

the evidence that he was severely abused as a child. The

evidence had almost no relevance to the first and third special

issues. And, as we have held, with regard to the future

dangerousness issue, it was more likely to be aggravating than

mitigating. We conclude, under Penry and Johnson, that Motley

was sentenced to death in violation of the Eighth and Fourteenth

Amendments, because his mitigating evidence was beyond the

"effective reach" of jurors.

III. CONCLUSION

Although the district court correctly rejected Motley's

ineffective assistance of counsel claim, it erred in rejecting

his Penry claim. Motley's jury was not provided with a vehicle

for expressing its "reasoned moral response" to his evidence of

child abuse in rendering its sentencing decision. We therefore

REVERSE the district court's decision denying Motley's petition

for habeas corpus and REMAND with instructions to grant the writ

unless the State retries Motley within 120 days from the issuance

of this court's mandate.18

 

DAVIS, Circuit Judge, dissenting:
39

I do not find sufficient evidence from the trial record to

raise an inference that Motley's criminal conduct in this case is

"attributable to" his child abuse as required to establish a

Penry claim. I would therefore affirm the denial of habeas

relief to Motley.

The majority accurately describes the record evidence of

abuse visited on Motley during his childhood. The record,

however, is absolutely silent on the effect this abuse had on

Motley. 

To raise an inference that Motley's crime is attributable to

his child abuse, I would not necessarily require a psychiatrist

to examine the defendant and give an opinion connecting the crime

to the child abuse. But if such testimony is not produced, I

would at least require the defendant to establish through lay

testimony the personality traits of the defendant or examples of

the defendant's conduct that could be rationally related to his

child abuse. But no one testified for example in this case that

Motley was a bully, had difficulty controlling his emotions or

conduct, was quick tempered or any similar attributes. 

The testimony of Dr. Fason, the psychiatrist who testified

briefly in the sentencing phase of the trial is not helpful in

connecting Motley's child abuse to this murder. Dr. Fason never

met or examined Motley and knew nothing about Motley. His

testimony reveals no knowledge (even secondhand knowledge) of

Motley's personality traits or conduct. Dr. Fason simply

testified abstractly about common effects of child abuse on some
40

individuals' behavior. In my judgment such abstract testimony,

totally unrelated to Motley as an individual, is inadequate to

raise a jury inference that Motley's crime is attributable to his

child abuse. 

Also, I find nothing inherent about the facts of this crime

that suggest that it was related to Motley's earlier child abuse. 

Motley took a sawed off shotgun to a shopping mall intending to

rob someone. According to his confession, Maria Duran was the

first person who came along. He abducted her and forced her to

withdraw money from her bank account. Motley's decision to

abduct and rob a small woman rather than a large man is hardly

unusual conduct that a rational juror could relate to his earlier

abuse. The evidence did not reveal and the state did not argue

that Motley physically abused Ms. Duran before he shot her. The

only definitive evidence relative to the murder itself is that

Motley shot Ms. Duran in the back with the shotgun from a

distance of about thirty-five feet. 

For these reasons, I conclude that the evidence is

insufficient to allow a rational juror to attribute this murder

to Motley's earlier child abuse. Accordingly, I would reject the

Penry claim.