## Supreme Court ofthe United States Office ofthe Clerk 

## Washington, DC 20543-0001

March 23, 2015 Scott S. Harris Clerk ofthe Court (202)479-3011

Clerk 

### Court ofCriminalAppeals ofTexas P.O. Box 12308 

### Capitol Station Austin, TX 78711



### Re: LesterLeroy Bower, Jr.

v. Texas No. 14-292 

### (YourNo. WR-21,005-02, WR-21,005-03, WR-21,005-04, WR21,005-05)

Dear Clerk:


### The Courttoday enteredthe following orderinthe above-entitledcase:


### The petitionfor awritofcertiorariis denied. Justice Breyer, with whomJustice Ginsburg andJustice Sotomayorjoin, dissentingfrom the
denial ofcertiorari.



### Sincerely,

Scott S. Harris, Clerk



# IN COURTOFCRIMINALAPPEALS 

### MAR 2R2015


## Absi&cosia,ClerkCite as: 575 U. S. (2015) 1
Breyer, J., dissenting


### SUPREME COURTOF THE UNITED STATES
LESTERLEROYBOWER, JR. v. TEXAS

ON PETITIONFORWRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS
No. 14-292. DecidedMarch 23, 2015
The petition for a writofcertiorariis 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 convictedin a Texas courtofmurdering 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 ofBower'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 (orcriminal) behavior. 

### At the time ofBower's sentencing, Texas law permitted the jury to consider this mitigating evidence only insofar
as itwas relevant to three "specialissues": (1) whether the conduct ofthe defendant that caused the death ofthe 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 and2 BOWER a TEXAS
Breyer,J., dissenting
Cum. Supp. 1986). Since the thirdissue was irrelevantin 

### Bower's case, the court asked thejuryto 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); ExparteBower, 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' 

### procedureimpermissiblypreventedthejuryfrom consider ing or acting upon potentially mitigating evidence. The Courtwrote 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 backgroundorcharacter orto the circumstances ofthe 

### offense thatmitigate againstimposing 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 ifPenry mightcommitviolentcrimesinthe future, didnot givethe jury the constitutionally requisite opportunity to consider whether Penry's mental retardation or childhood abuse 

### constituted significantly mitigating evidence regardless. It "is notenough," the Courtwrote, 

### "simply to allow the defendant to present mitigating evidence to the sentencer. The sentencer must also be 

### able to consider and give effectto 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 uniquelyindividualhumanbeinfg] and has made a re 

### liable determination that death is the appropriate sentence." Id., at 319 (citations and internal quota tion marks omitted; lastalterationin original). 

### Afterthis CourtdecidedPenry, Bowerfiled a petitionfor habeas corpus in Federal District Court. He argued, among other things, that, given Penry, his own sentencing 

### proceedingwas 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 ofa certificate of appealability, reasoning that, in Bower's case, the sec 

### ond specialissue (aboutfuture 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 ofits 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)). Bowerthen sought certiorari here, but we denied his petition. Bower v. Dretke, 546U. S. 1140 (2006). 

### The Fifth Circuit subsequently changed its mind about the meaning ofPenry. 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 reliefin Texas court, argu ing (among otherthings) thatTexas hadused an unconsti tutional sentencingprocedure inhis case.BOWER v. TEXAS
Breyer,J., dissenting The Texas trial court decided that Bower was right. 

### Conclusions of Law. f97 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 ofhis trial—evidence ofhis good and non-violentcharacter, his good deeds, and the absence ofa priorcriminalrecord—was not outside the scope ofspecial 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 ofCriminal 

### Appeals believedthatthe use ofthe specialissues proceed ing in Bower's sentencing proceeding did not constitution ally entitle himto resentencing. See ibid. Bowernow asks us to grantcertiorari andto reverse the 

### Texas Court ofCriminal 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 ifit decided that [the defendant]

. .. should not be executed'" because ofhis mitigating evidence. Abdul-Kabir v. Quar

### terman, 550U. S. 233, 256 (2007) (quotingPenry, supra, at 324). Bower's sentencing procedure suffered from this defectjust 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 bothCite 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 reliefraising 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 thejudg
ment below. I dissent from the Court's decision not to do so.