Jose Angel Moreno confessed to plotting for months to kidnap and ransom someone. He ultimately settled on John Cruz as his victim because he believed Cruz was a member of a wealthy family.

After locating Cruz through a high school directory, Moreno enlisted the aid of two friends in digging a grave. After the grave was dug, Moreno plotted to capture and kill Cruz. Moreno first tried to flag Cruz’s car down after Cruz got out of work. When that did not work, Moreno placed large rocks in the road near Cruz’s house, in the hopes that Cruz would stop his car and clear the road, leaving him vulnerable to attack.

On the night of January 21, 1986, his plan worked. Cruz got out of his car and attempted to move the rocks. Moreno approached, brandished a gun, blindfolded and handcuffed Cruz, and drove him to the grave site.

As Cruz stood in front of the grave, Moreno shot him in the head from a range of three to four feet. Cruz fell into the grave, and Moreno buried him and  concealed the grave with trash.

Moreno then made two phone calls to Cruz’s family demanding a $30,000 ransom. In a police-recorded conversation, the Cruz family informed Moreno that the money was in trust and that they could not access it immediately, to which Moreno replied, “You killed him, not us.” After informants identified Moreno’s voice on the recording, the police obtained a search warrant for his home where they found the gun used to kill Cruz.

The police arrested Moreno, and he signed a confession. Police found Cruz’s body in a grave off of Wing Road in Bexar County. The body had a gunshot wound to the head. A ballistics examiner stated after examining the bullet recovered from Cruz’s head that it was his professional opinion that it was probably fired from a .44 caliber Charter Arms Bulldog revolver.

A tip from a confidential informant told police that Jose Moreno owned a .44 caliber Charter Arms Bulldog revolver, that Moreno carried the weapon in his waistband, and that Moreno lived in a particular house in San Antonio. The same gun had been seen by the informant in Moreno’s house.

Police testified that they checked the Master Name File of the Bexar County Criminal Justice Information System and verified that the informant had no arrest record. The informant had listened to a tape of the phone call in which Moreno made his ransom demand on Cruz’s parents and had identified Moreno as the caller.

Jose Angel Moreno

May 8, 2007

For a Texas jury that convicted Jose Angel Moreno of capital murder, evidence in the case made it easy to decide if his crime was deliberate, a caveat for a death sentence.

Moreno had dug the grave of his victim, 18-year-old University of Texas-San Antonio student John Cruz, well before Cruz was abducted and fatally shot.

Now, more than 21 years later, Moreno, 39, is set to die Thursday evening for a kidnapping and murder authorities said he had plotted for months because he believed Cruz, who worked in a San Antonio convenience store, was from a wealthy family who could afford to pay a ransom.

The lethal injection would be the 14th this year in America's most active capital punishment state.

The U.S. Supreme Court refused in January to review Moreno's case.

His lawyers, however, were in the courts trying to block the execution, arguing Moreno's jury was unable to consider evidence of a troubled childhood and other mitigating issues that could have influenced them to give Moreno a life sentence instead of death. The appeal is based on a Supreme Court decision two weeks ago in three other Texas cases where justices ruled instructions to jurors were improper, Moreno's attorney, Scott Sullivan, said.

"Does he have enough evidence under these new cases ... and should he get a new punishment phase?" Sullivan said. "I think we have the sufficient amount of evidence to pass along to a jury. I think we have a decent complaint here."

When considering punishment, jurors only were asked whether the slaying was deliberate and whether they believed Moreno would be a future danger.

"This guy was a stone cold killer — the worst," Ed Springer, the former Bexar County assistant district attorney who prosecuted Moreno, said this week.

A man and his son stumbled over the empty gravesite and called police. An officer later checking the site found it filled with dirt and trash covering Cruz's body.

"If it had not been for the fortuitous act of a man and son finding that hole, Cruz would never have been found," said Springer, now the Comal County district attorney. "This person was methodical. If he had not been caught, he'd have repeated and just keep getting better."

Evidence showed while Moreno was awaiting trial weapons were found in his Bexar County Jail cell, he had repeatedly been violent with jailers and threatened them and that he had tried to escape and jammed his cell door so it wouldn't lock properly. He also used paper clips to free himself and other inmates from handcuffs.

Jurors gave affirmative answers to the questions of deliberateness and future danger, meaning Moreno was sentenced to die.

Evidence showed Moreno, who was just over 18 at the time of the slaying, had made at least 9 attempts to abduct Cruz before he succeeded the night of Jan. 21, 1986, by blocking the road to Cruz's home with large rocks. When Cruz got out of his car to move them, Moreno ran up and ordered him back into the car at gunpoint.

He handcuffed and blindfolded Cruz, drove him to the gravesite and then shot him in the head at close range with a .44-caliber pistol. Then Moreno called Cruz's family and made a $30,000 ransom demand.

Moreno's voice was identified by informants. Police obtained a search warrant of his home where they recovered the murder weapon hidden under a mattress in his bedroom. He subsequently confessed. A shovel used to dig the grave and handcuffs used on Cruz were recovered from the home of Moreno's father, court records showed.

Moreno, who refused to speak with reporters in the weeks preceding his scheduled execution, made it only through the 8th grade. He had a history of using marijuana, cocaine, heroin, LSD and alcohol.

His execution is the 1st of 2 set for May and is among at least 14 scheduled in Texas in the coming months. Next week, Charles Smith, 41, is to die for the slaying of a Pecos County sheriff's deputy.

The applicant filed this initial state application for writ of habeas corpus challenging his conviction for capital murder and death sentence on January 12, 1996. ⁽¹⁾ The applicant had been convicted in January of 1987, and this Court affirmed his conviction in 1993. ⁽²⁾ In ground for relief number ten of his initial writ application, the applicant argued that the punishment charge submitted to the jury had been flawed under the Eighth Amendment because it did not empower the jury to give effect to certain mitigating evidence he had offered at the punishment phase of trial. He relied principally upon the United States Supreme Court's opinion in Penry v. Lynaugh (Penry I). ⁽³⁾ The convicting court recommended that we reject this claim on the merits because the jury could adequately consider the particular mitigating evidence that the applicant had presented within the ambit of the statutory special issues, ⁽⁴⁾ which in 1987 did not include the particular mitigation instruction currently found in Article 37.071, Section 2(e)(1). ⁽⁵⁾ In an unpublished written order dated September 13, 2000, this Court found the convicting court's findings of fact and conclusions of law, including its conclusion with respect to ground for relief number ten, to be supported by the record. On that basis we denied relief.

The applicant filed his initial federal petition for writ of habeas corpus on June 29, 2001. The federal district court subsequently granted the applicant's motion to abate his federal petition so that he could return to state court to exhaust a newly recognized claim that he could not be executed consistent with the Eighth Amendment because he is mentally retarded, under Atkins v. Virginia. ⁽⁶⁾ This Court dismissed his first subsequent state writ raising the Atkins claim because he failed to make out a prima facie claim of mental retardation. When the applicant returned to federal court, the district court denied relief on all of the claims raised in his federal habeas petition in a memorandum opinion and order issued on March 17, 2005. ⁽⁷⁾ The applicant did not carry his initial-writ Penry claim forward into his federal petition. The Fifth Circuit affirmed the district court's judgment, ⁽⁸⁾ and in January of 2007, the Supreme Court denied the applicant's petition for certiorari. ⁽⁹⁾

In April of 2007, the Supreme Court issued opinions in two companion cases, Abdul-Kabir v. Quarterman, ⁽¹⁰⁾ and Brewer v. Quarterman. ⁽¹¹⁾ In those two opinions, the Supreme Court revisited Penry I and its progeny, and stated that a jury must be empowered by the trial court's instructions to give "meaningful effect" to all mitigating evidence that a capital defendant introduces at the punishment phase of his trial. ⁽¹²⁾ In light of these opinions, the applicant filed a second subsequent application for writ of habeas corpus in state court, arguing that he satisfied the criteria for filing a subsequent writ as enumerated in Section 5 of Article 11.071 of the Code of Criminal Procedure. Equally divided as to how to dispose of the applicant's second subsequent writ application (four votes to allow the applicant to proceed versus four votes to dismiss), this Court issued an order on May 9, 2007, announcing that we declined to take any action. ⁽¹³⁾

The next day, May 10, 2007, the date the applicant was scheduled to be executed, he filed a "suggestion" that the Court reconsider ground ten of his initial habeas application on its own initiative, pursuant to Rule 79.2(d) of the Texas Rules of Appellate Procedure. ⁽¹⁴⁾ In an unpublished order issued that same day, we exercised our authority to reconsider ground for relief number ten, and stayed his impending execution. We issued an additional order in the case on August 22, 2007, directing the parties to brief the following questions:

• ?What jurisdiction does this Court have to reconsider, on its own motion, a previously denied habeas claim when the applicant subsequently filed his state-exhausted claims concerning the same conviction in federal courts?

• ?At the time this Court denied his first application in 2000, was the applicant's Penry-based claim based on "clearly established" law? Was his claim available in 2003 when he filed his second, Atkins-based claim?

• ?What is the legal significance of the fact that the remedy that the applicant had requested at trial was a jury-nullification issue?

• ?Did the applicant demonstrate, in his original application for habeas corpus relief, that he was entitled to prevail on the merits of his Penry-based claim?

The applicant was tried in 1987, more than two years before the Supreme Court's opinion in Penry I. In Black v. State, this Court declared that Penry I error may be raised for the first time on appeal or in a post-conviction proceeding, at least where, as here, the trial preceded the Supreme Court's opinion. ⁽¹⁵⁾ And in Ex parte Goodman, the Court held that a Penry I claim could be raised for the first time in a post-conviction habeas context even when the applicant failed to raise it on direct appeal. ⁽¹⁶⁾ In the instant cause, the applicant called the lack of a mitigation instruction to the trial court's attention and requested what amounts to a crude jury-nullification instruction as a proffered means of remedying the perceived deficiency; he did not, however, raise the issue on direct appeal. ⁽¹⁷⁾ In its findings of fact and conclusions of law disposing of the applicant's initial writ application, the convicting court proceeded directly to the merits of the applicant's Penry I claim and made no ruling on the basis of procedural default. We therefore turn to the particular mitigating evidence that the applicant adduced at the punishment phase of his trial.

After the Supreme Court's opinions in Abdul-Kabir and Brewer, it cannot be doubted that a jury must be empowered to give mitigating value to evidence of a disruptive or troubled childhood beyond whatever probative value it may have with respect to the statutory special issues. In the past, this Court has rejected the necessity for a Penry I instruction based upon such evidence, both because it "is unrelated to any aspect of how or why the death penalty would be an appropriate or inappropriate response to a defendant's actions[,]" and because the future dangerousness special issue "provides a vehicle for the jury to express its reasoned moral response" to such evidence. ⁽¹⁸⁾ Neither of these explanations can now be considered to offer a tenable justification for failing to submit a mitigation instruction after Abdul-Kabir and Brewer.

The first explanation is a manifestation of either the now-defunct "constitutional relevance" test, or the equally discredited "nexus" requirement. Over the past several years the Supreme Court has definitively rejected the holdings of this Court and the Fifth Circuit with respect to each. ⁽¹⁹⁾ A capital defendant need not demonstrate that his proffered mitigating circumstances rise to some particular level of gravity or severity; only that they have some relevance to a jury's normative evaluation of his death-worthiness. ⁽²⁰⁾ Nor need he demonstrate that his capital offense was in some sense attributable to his proffered mitigating circumstances before obtaining a Penry I instruction. ⁽²¹⁾ Circumstances of the offender himself (as opposed to the circumstances of the offense) can reasonably justify a jury assessment of a life sentence, regardless of whether they also have a tendency to ameliorate the offense. ⁽²²⁾ If those circumstances are not already fully or meaningfully encompassed within one or both of the statutory special issues, then a separate jury instruction is constitutionally required.

Nor does our second explanation currently hold water. We can no longer maintain that evidence of a troubled childhood is adequately encompassed within the statutory special issues. Both Abdul-Kabir and (especially) Brewer expressly state that Supreme Court precedent has long rejected the notion that a jury can meaningfully express its reasoned moral response to evidence of a troubled or disruptive childhood within the narrow confines of the special issues. ⁽²³⁾ A capital jury must be given greater leeway to exercise its reasoned moral response under the Eighth Amendment. In light of the Supreme Court's most recent pronouncements, it now appears that our rejection of the tenth ground for relief in the applicant's initial writ application was so plainly incorrect under then-extant Supreme Court precedents as to have been "objectively unreasonable," even as of September of 2000, when we denied the applicant relief. ⁽²⁴⁾

We adopted the current incarnation of Rule 79.2(d) in 1997, pursuant to our legislatively endowed authority to promulgate rules of post-trial procedure in criminal cases. ⁽²⁵⁾ It provides that a habeas applicant may not file a motion for rehearing from an order denying relief, but that "[t]he Court may on its own initiative reconsider the case." ⁽²⁶⁾ On its face, the rule places no temporal limitation on our authority to reconsider a post-conviction application for writ of habeas corpus on our own initiative.

In 1995, as part of the legislation by which it first enacted Article 11.071 of the Code of Criminal Procedure, the Legislature withdrew this Court's rulemaking authority "with respect to rules of appellate procedure relating to an application for a writ of habeas corpus, but only to the extent the rules conflict with a procedure under Article 11.071, Code of Criminal Procedure, as added by this Act[.]" ⁽²⁷⁾ The State suggests that Rule 79.2(d) may conflict with Article 11.071, insofar as this Court has declared that "Article 11.071 now contains the exclusive procedures for the exercise of this Court's original habeas corpus jurisdiction in death penalty cases." ⁽²⁸⁾ Section 1 of Article 11.071 provides that: "Notwithstanding any other provision of [Chapter 11 of the Code of Criminal Procedure], this article establishes the procedures for an application for a writ of habeas corpus in which the applicant seeks relief from a judgment imposing a penalty of death." ⁽²⁹⁾ Plainly, this provision was meant to prescribe a particular procedural mechanism for the pursuit of habeas corpus relief in death-penalty cases as opposed to procedures that Chapter 11 prescribes for other post-conviction contexts. A rule authorizing this Court to reconsider its disposition of a post-conviction writ in a death-penalty case does not in any way establish a new or separate procedure for applications for writ of habeas corpus in death-penalty cases in contravention of Section 1 of Article 11.071. We find no language in the balance of Article 11.071 that either allows or prohibits this Court's reconsideration of our initial disposition of a capital writ on our own motion or expressly or implicitly prescribes temporal limitations on any such reconsideration.

State and federal courts share concurrent habeas corpus jurisdiction to review the constitutional legitimacy of a conviction or death sentence obtained in state court. ⁽³⁰⁾ The respective courts have fashioned certain doctrines-the abstention doctrine, on our part, and the exhaustion doctrine, on the part of the federal courts-in the interest of "comity, efficiency, and expediency," ⁽³¹⁾ "avoidance of piecemeal litigation or inconsistent results, and judicial economy." ⁽³²⁾ These doctrines are designed so that, in exercising their concurrent jurisdictions, the respective courts can (to put it colloquially) stay out of one another's way. But they are not jurisdictional doctrines. ⁽³³⁾ It does not encroach upon any federal prerogative for us to entertain rehearing of an initial writ after federal proceedings have been resolved against the applicant. After all, the federal courts do not review the "correctness" of state-court resolutions of federal constitutional issues in the course of federal habeas corpus proceedings; under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), federal habeas courts are not at liberty to overturn a state-court decision unless it represents an "objectively unreasonable" application of Supreme Court precedent. ⁽³⁴⁾ An individual state must surely retain the authority, if it should so choose, to revisit one of its own judgments if there is a compelling reason to believe that it may not have been "correct" on original submission. Thus, we find nothing in the fact that the applicant has been denied relief in his federal habeas proceedings that would somehow inherently deprive this Court of the authority, under our own state rules of appellate procedure, to reconsider the applicant's Penry I claim.

That does not mean that we are bound to do so or that we should ever do so lightly. Even if comity or the possibility of inconsistent results are not implicated at this juncture, judicial economy and the avoidance of piecemeal litigation remain legitimate concerns that counsel against disturbing our initial disposition, absent compelling circumstances. After all, habeas corpus is an equitable remedy, and, as the applicant concedes, "[e]quity aids the diligent and not those who slumber on their rights." ⁽³⁵⁾ We should and will be extremely hesitant ever to exercise our authority to reconsider a decision on an initial post-conviction habeas corpus application, particularly after the passage of a substantial number of years. In almost every instance, the State's legitimate interest in the repose and finality of its convictions-even its interest in punishment as weighty and irrevocable as the death penalty-will be substantial indeed and ought not to be disturbed, even in the face of a reasonable and good faith argument that our disposition on original submission was "incorrect."

That being said, however, we do not hesitate to reconsider and grant relief in the instant case. Here, the applicant did not "slumber on his rights." He objected at trial and raised his claim timely in his initial application for writ of habeas corpus. And as soon as it became clear to him that our original disposition was not only "incorrect," but indeed, so plainly incorrect that today it would undoubtedly be considered "objectively unreasonable" by the Supreme Court, the applicant renewed his claim, first in an attempted subsequent writ application, and then, when this Court was unable to muster a majority to take action on that, by way of his suggestion that we reconsider the issue from his initial writ application on our own initiative. We find it appropriate under these extraordinary circumstances to exercise our authority under Rule 79.2(d) to reconsider our original disposition of the applicant's Penry I claim. ⁽³⁶⁾

Nor do we think it can fairly be said that the applicant "slumbered on his rights" by failing to raise his Penry I claim in his first subsequent writ application which he filed in 2003. Of course, the claim would have been just as "clearly established" in 2003 as it was in 2000, when we denied his initial writ application. But there was no new case law in the interim, either from this Court or from the Supreme Court, that should have alerted the applicant that his Penry I claim had gained renewed vitality. Not until 2004, with the advent of the Supreme Court's opinions in Tennard and Smith I, could it have begun to become apparent that both this Court's and the Fifth Circuit's applications of Penry I were, in a number of instances, likely to be declared not just "incorrect," but even "objectively unreasonable." And not until Abdul-Kabir and Brewer did the Supreme Court unequivocally declare that our treatment of evidence of a troubled childhood as both having no practical mitigating impact, and at the same time, adequately covered by the statutory special issues, was a plain misconstruction of its precedents. The applicant should not be denied relief upon our reconsideration of his initial Penry I claim on the grounds that he failed to exercise appropriate diligence in reasserting a Penry I claim in 2003, when he timely and diligently pursued a newly recognized Atkins claim. We cannot fault the applicant any more than we can fault ourselves. ⁽³⁷⁾

Nor do we think it fatal to the applicant's renewed Penry I claim that he requested the trial court to remedy the defect in the punishment charge by submitting to the jury an instruction that the Supreme Court subsequently declared, in Penry II and in Smith I, to be inadequate. ⁽³⁸⁾ The State argues that, in light of these recent precedents, a nullification instruction fails to remedy the Eighth Amendment deficiency, but concedes that "[p]erhaps the trial judge was informed by the requested charge that some sort of instructions was needed to insure jurors could give effect to mitigating evidence where the special issues do not." ⁽³⁹⁾ We agree with the State's tentative concession that, though flawed, the applicant's requested instruction was nevertheless sufficient to alert the trial court to the Eighth Amendment problem, even if the proffered solution was inadequate. A defendant's requested jury instruction need not be flawless or even correct in order to call the trial court's attention to a deficiency in the charge and thereby preserve error. ⁽⁴⁰⁾ As the applicant points out in his brief, it is apparent that the petitioner in Abdul-Kabir had also alerted the trial court to the deficiency in the jury charge in his case by requesting what amounted to a series of jury nullification instructions. ⁽⁴¹⁾ The Supreme Court was obviously aware of this circumstance, but did not regard it as any impediment to federal habeas relief.

Moreover, it could not reasonably be said that the applicant in any respect "invited" Penry I error by requesting a nullification instruction. ⁽⁴²⁾ The trial court did not give the applicant's requested nullification instruction. Therefore, the kind of independent error that may arise from an instruction that authorizes jurors to ignore the obligation of their oaths and render false answers to the special issues, tentatively recognized in Penry II, Smith I, and Smith II, ⁽⁴³⁾ did not occur in the applicant's trial; nor is that the error he complained about in the tenth ground for relief in his initial writ application. We have already concluded that the applicant's requested instruction, along with the State's response, was sufficient to put the trial court on notice of the particular Eighth Amendment error that the applicant did raise in his tenth ground for relief, viz: that the court's punishment charge did not empower the jury to give mitigating effect to, inter alia, his evidence of a troubled childhood. ⁽⁴⁴⁾

Because the evidence that the applicant proffered at the punishment phase of his capital murder trial with respect to his troubled childhood could not be given meaningful effect within the context of the statutory special issues, the trial court erred in failing to give a separate jury instruction that would empower the jury to assess a life sentence on the basis of such mitigating evidence, notwithstanding its answers to the special issues. We therefore sustain the applicant's tenth ground for relief. The punishment portion of the judgment of the trial court is vacated, and the applicant is remanded to the trial court for a new punishment hearing. ⁽⁴⁵⁾