Supreme Court of the United States

Office of the Clerk

Washington, DC 20543-0001

March 23, 2015

Scott S. Harris

Clerk of the Court

(202)479-3011

Clerk

Court of Criminal Appeals of Texas

P.O. Box 12308

Capitol Station

Austin, TX 78711

Re: Lester Leroy Bower, Jr.

v. Texas

No. 14-292

(Your No. WR-21,005-02, WR-21,005-03, WR-21,005-04, WR21,005-05)

Dear Clerk:

The Court today entered the following order in the above-entitled case:

The petition for a writ of certiorari is denied. Justice Breyer, with

whom Justice Ginsburg and Justice Sotomayor join, dissenting from the

denial of certiorari.

Sincerely,

Scott S. Harris, Clerk

IN

COURTOFCRIMINAL APPEALS

MAR 2 R 2015

Absi&cosia, Clerk
Cite as: 575 U. S. (2015) 1

Breyer, J., dissenting

SUPREME COURT OF THE UNITED STATES

LESTER LEROY BOWER, JR. v. TEXAS

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF

CRIMINAL APPEALS OF TEXAS

No. 14-292. Decided March 23, 2015

The petition for a writ of certiorari is denied.

Justice Breyer, with whom Justice Ginsburg and

JUSTICE SOTOMAYOR join, dissenting from the denial of

certiorari.

On April 28, 1984, petitioner Lester Leroy Bower was

convicted in a Texas court of murdering four men. Each of

the four men had been shot multiple times. Their bodies

were left in an airplane hangar, and an ultralight aircraft

was missing.

The State sought the death penalty. Bower introduced

evidence that was, in his view, mitigating. He noted that

he was 36 years old, married, employed full-time, and a

father of two. He had no prior criminal record. Through

the testimony of Bower's family members and friends, the

jury also heard about Bower's religious devotion, his com

mitment to his family, his community service, his concern

for others, his even temperament, and his lack of any

previous violent (or criminal) behavior.

At the time of Bower's sentencing, Texas law permitted

the jury to consider this mitigating evidence only insofar

as it was relevant to three "special issues": (1) whether the

conduct of the defendant that caused the death of the four

victims was committed deliberately and with the reason

able expectation that the victims' deaths would result; (2)

whether there was a probability that the defendant would

continue to commit violent criminal acts, and as such

would be a continuing threat to society; and (3) whether

the defendant acted in response to provocation. See Tex.

Code Crim. Proc. Ann., Art. 37.071(b) (Vernon 1981 and
2 BOWER a TEXAS

Breyer, J., dissenting

Cum. Supp. 1986). Since the third issue was irrelevant in

Bower's case, the court asked the jury to consider only the

first two. Because the jury answered "yes" to both, the

trial judge automatically imposed a death sentence, as

required by then-controlling Texas law. Arts. 37.071(c)-

(e).

Bower appealed his case, lost, sought state postconvic

tion relief, lost, appealed that loss, and lost again. See

Bower v. Texas, 769 S. W. 2d 887 (Tex. Crim. App.), cert,

denied, 492 U. S. 927 (1989); Exparte Bower, 823 S. W. 2d

284 (Tex. Crim. App. 1991), cert, denied, 506 U. S. 835

(1992). But a week before Bower's conviction became

final, this Court decided in Penry v. Lynaugh, 492 U. S.

302 (1989), that Texas' special issues procedure was un

constitutional. Specifically, the Court held that Texas'

procedure impermissibly prevented the jury from consider

ing or acting upon potentially mitigating evidence. The

Court wrote that a State cannot

"consistent with the Eighth and Fourteenth Amend

ments, 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 pen

alty." 7d,at318.

Penry himself had offered evidence of mental retarda

tion and childhood abuse. This Court decided that Texas'

special issues, while allowing the jury to decide if Penry

might commit violent crimes in the future, did not give the

jury the constitutionally requisite opportunity to consider

whether Penry's mental retardation or childhood abuse

constituted significantly mitigating evidence regardless.

It "is not enough," the Court wrote,

"simply to allow the defendant to present mitigating

evidence to the sentencer. The sentencer must also be

able to consider and give effect to that evidence in im-
Cite as: 575 U. S. (2015) 3

BREYER, J., dissenting

posing [a] sentence. Only then can [the court] be sure

that the sentencer has treated the defendant as a

uniquely individual human beinfg] and has made a re

liable determination that death is the appropriate

sentence." Id., at 319 (citations and internal quota

tion marks omitted; last alteration in original).

After this Court decided Penry, Bower filed a petition for

habeas corpus in Federal District Court. He argued,

among other things, that, given Penry, his own sentencing

proceeding was constitutionally deficient. After a hearing,

the court denied his petition and also refused to issue a

certificate of appealability on the Penry issue. The Fifth

Circuit affirmed the District Court's denial of a certificate

of appealability, reasoning that, in Bower's case, the sec

ond special issue (about future dangerousness) sufficiently

permitted the jury to take account of Bower's mitigating

evidence. Bower v. Dretke, 145 Fed. Appx. 879, 885, 887

(2005). In doing so, the Circuit referred to several of its

earlier decisions reaching the same conclusion in similar

circumstances. See ibid, (citing Coble v. Dretke, 417 F. 3d

508 (2005); Boyd v. Johnson, 167 F. 3d 907 (1999); Bar

nard v. Collins, 958 F. 2d 634 (1992)). Bower then sought

certiorari here, but we denied his petition. Bower v.

Dretke, 546 U. S. 1140 (2006).

The Fifth Circuit subsequently changed its mind about

the meaning of Penry. And, in doing so, it specifically said

that it had been wrong about Bower's Penry claim. See

Pierce v. Thaler, 604 F. 3d 197, 210, n. 9 (2010). It said

this not in Bower's case, but in an unrelated one. At that

point, Bower's case was no longer in federal court. So

Bower could not take advantage of the Fifth Circuit's

change of mind; he had already brought a subsequent

application for postconviction relief in Texas court, argu

ing (among other things) that Texas had used an unconsti

tutional sentencing procedure in his case.
BOWER v. TEXAS

Breyer, J., dissenting

The Texas trial court decided that Bower was right.

Conclusions of Law. f 97 in Exparte Bower, No. 33426-B

(15th Jud. Dist. Ct, Grayson Cty., Dec. 10, 2012), App. to

Pet. for Cert. 127 (hereinafter Conclusions of Law). It

issued an opinion requiring a new sentencing proceeding.

See ibid. But the State appealed, and the Texas Court of

Criminal Appeals reversed the trial court. See Order in

Exparte Bower, No. WR-21005-02, etc. (Tex. Ct. Crim.

App., June 11, 2014), App. to Pet. for Cert. 1. It explained

that "unlike the double-edged evidence in Penry . . . , the

mitigating evidence presented by [Bower] during the

punishment phase of his trial—evidence of his good and

non-violent character, his good deeds, and the absence of a

prior criminal record—was not outside the scope of special

issues given." Id., at 4 (citing Exparte Bower, 823 S. W.

2d, at 286). Because Bower's evidence was not "doubleedged" as Penry's had been, the Texas Court of Criminal

Appeals believed that the use of the special issues proceed

ing in Bower's sentencing proceeding did not constitution

ally entitle him to resentencing. See ibid.

Bower now asks us to grant certiorari and to reverse the

Texas Court of Criminal Appeals. In my view, we should

do so. Penry's holding rested on the fact that Texas' for

mer special issues did not tell the jury "what 'to do if it

decided that [the defendant] . .. should not be executed'"

because of his mitigating evidence. Abdul-Kabir v. Quarterman, 550 U. S. 233, 256 (2007) (quoting Penry, supra, at

324). Bower's sentencing procedure suffered from this

defect just as Penry's did.' The distinction that the Texas

court drew between Penry's and Bower's evidence is irrel

evant. Indeed, we have expressly made "clear that Penry

. . . applies in cases involving evidence that is neither

double edged nor purely aggravating, because in some

cases a defendant's evidence may have mitigating effect

beyond its ability to negate the special issues." 550 U. S.,

at 255, n. 16. The trial court and the Fifth Circuit both
Cite as: 575 U. S. (2015) 5

BREYER, J., dissenting

recognized that Bower's Penry claim was improperly re

jected on that basis. See Conclusions of Law ^97; Pierce,

supra, at 210, n. 9.

The Constitution accordingly entitles Bower to a new

sentencing proceeding. I recognize that we do not often

intervene only to correct a case-specific legal error. But

the error here is glaring, and its consequence may well be

death. After all, because Bower already filed an apphca

tion for federal habeas relief raising his Penry claim, the

law may bar him from filing another apphcation raising

this same issue. See 28 U. S. C. §2254(b)(l). In these

circumstances, I believe we should act and act now. I

would grant the petition and summarily reverse the judg

ment below. I dissent from the Court's decision not to

do so.