Ex Parte Garrett

304 Howe, Mass., Springfield, ap-

Scott W. for BORDEN, pellant. INC. Hill, and James Far- Danny Atty., Dist. v. rea, Amarillo, Atty., Asst. Dist. Robert DE LA

Jose Homero ROSA. Huttash, Austin, Atty., for State’s No. D-1970. State. Supreme Court of Texas.

July 1992. CLINTON, Judge, dissenting. ORDER post-conviction application This is a for parties on Joint Motion of the filed herein brought pursuant writ of habeas granted. Application for June is 11.07, In Borden, Article 1982 of of Inc. is V.A.C.C.P. error on behalf capital to was convicted of the offense of granted; for of time motion extension punishment murder and assessed at application of file for writ error 130(d), death. This affirmed his conviction Tex.R.App.P., of to Rule on behalf Garrett v. in 1984. Homero de la Rosa overruled. Jose is (Tex.Cr.App.1984). Applicant seven- 59(a)(1)(A),Tex.R.App. Pursuant to Rule this of- teen old when committed P., opinion judgment the court of fense. vacated; appeals judgment of alia, vacated, contends, inter Applicant trial court is the cause entry trial for sentence death violates remanded to the court punish- judgment in accordance with the settlement Amendment in that provided mecha- agreement parties. phase ment no of the trial having miti- effectuating for nism or hav- gating value either not relevant to spe- relevance 37.071(b), issues Article cial contained proposed In its conclusions V.A.C.C.P. would hold that law the habeas court claim failure to has forfeited this However, trial level. raise it parte Johnny Ex Frank GARRETT. State, 816 S.W.2d 350 (Tex.Cr. Black v. No. 14992-02. held majority App.1991), can be raised for the first such a claim Texas, Appeals of Court of Criminal attack, appeal time on or on collateral En Banc. prior to long trial occurred least so as the Lynaugh, Nov. the date decision L.Ed.2d (1989).1 youth my view alone be- having significance factor pale special issues. yond the (Tex.Cr.App. Earvin, III, Amarillo, Hale, Eden B. B. Selden Austin, 1991) dissenting). Because McGlasson, (Clinton, J., Harrington, L. Robert Collins, (Tex.Cr.App. Odd, then, majority Selvage S.W.2d 390 today its order that in 1991) Question (Opinion the conclu reviews record and "finds” that Certified supported "are Appeals sions of trial court Fifth for the United States Court now, nor, convicting court record.” Neither the Circuit), procedurally claim is not that such the merits of the Penry addresses barred. clear Black and Yet it is under claim. Yes, correct, plicant by jury given sentenced no A. That’s correct. that’s a choose, yes. prescribe, means to should it so fact, Q. If,

sentence less than death on that based there was not—and I real- if, fact, factor, years, ize it’s seven but his death sentence violates the been any you there information re- Eighth Amendment. Gribble ceived from Dr. Cannon that would have (Tex.Cr.App.1990). Appli- at 75 mitigating, really then it wouldn’t cant is entitled to a trial. Because the new if helped have the law had been differ- relief, grant respect- does not that ent, evidence, allowing for fully dissent. would it? complains Applicant also that what mean, you any if don’t have to operated now former Article 37.071 effec- present, help it doesn’t that law tively preclude other mitiga- evidence in that, does allows it? been, tion that could have but was not [Counsel], I really A. don’t know—I punishment phase at the of his really thought don’t know that we ever proffers trial. Because evidence he now light. it in What we were look- history family drug to his violence issue, just you that one abuse, and alcohol his limited intelli- know, never dawned on me until and it gence possible damage could down, you the Franklin case came 37.071, only, operated under Article have know, that all us who tried those detriment, prevented prac- he was aas capital looking cases should have been producing tical matter from that evidence than the three issues that were further Alternatively at trial. he contends that his presented.”2 failing trial counsel was ineffective for I take this to mean that United investigate and adduce that evidence. opinion in States Franklin Lynaugh, Applicant’s attorneys arranged trial (1988), applicant’s 101 L.Ed.2d 155 trial applicant prior examined by to trial counsel did not make “tactical” decisions Cannon, psychologist, Dr. Thomas Milton encompassed any consideration of mit- performed Jr. Dr. Cannon a number of igating apart relevance tests, I.Q. test, including an and concluded Article 37.071 from or applicant average intelligence. had a low simply special issues. Counsel was He also applicant repre- concluded would aware or unmindful of the Amend- danger society. sent a future Cannon principles eventually ment led to the any had not been made aware of holding Penry. Court’s A fail- abuse, child privy was not investigate ure to under these circum- cant’s records from the Texas Youth Coun- surely amounts to ineffective as- stances applicant’s attorneys cil. ofOne trial testi- Herrera, of counsel. Ex sistance fied that “tactical” decision was made not (Tex.Cr.App., delivered to utilize Dr. Cannon at trial because his 29, 1991) (Clinton, J., dissenting). May testimony would have been detrimen- appeared Applicant’s half-sister applicant applied tal to because “as hearing. applicant’s She testified that writ issues, jury charge, those issues ... times, married five mother had helpful it would be more to the State than him, and natural father had “disowned” Significantly, it to Mr. would be Garrett.” hands of applicant had suffered at the applicant’s attorney other trial testified One, stepfathers. the wit- a succession of hearing the writ as follows: father, applicant ness’s natural would beat “Q. say you It would be fair to weren’t nose his fist and “rub[] going testimony] to use Cannon’s An- applicant [Dr. mess” soiled bed. when going to hurt the Defen- cigarettes because was out on stepfather “put ... going help him one sex- [applicant’s] dant more than it was Yet another behind.” instigation At the ually applicant. if the heard about it? abused emphasis supplied. 2. All father, applicant began Preparatory

of the witness's drinking age psychologist, Dr. of eleven or twelve. was examined another frequently He drank also mari- Windel Dickerson. Dr. Dickerson conduct- smoked ed an fami- huana. He told half-sister he had extensive review dust, acid, LSD, ly history “[cjrystal, angel and “the entire treatment record used stay.” had speed.” drinking applicant when of his Texas Youth Council He also Once him, striking findings him psychiatrist iron reviewed of a and gate an fall down on the nose, eyes, professor University and York breaking his from New between Lewis, Appli- Center, causing go Dorothy Medical Dr. him into convulsions. Otnow ghost in the had to a applicant cant believed there was a who examined house, study,4 neurological test- and held with and the results of conversations aunt, ing grandmother by dead.3 conducted Dr. Ellis Richardson. On and both findings proposed Perhaps In of fact the habeas as a result of these central nervous its system injuries, Johnny and court find evidence of familial turmoil Garrett seri- "did is also Applicant^]" ously brain-damaged. long abuse of the He has suffered multiplicity symptoms from a of consistent appli- Dr. attached Lewis’s affidavit was system dysfunction, nervous and with central corpus, cation intro- for writ of habeas and was fact, history he has of a seizure disorder. In a part duced at the writ of the basis seizures, having grand experienced mal dur- Following expert opinion. a Dr. Dickerson’s shaken, fallen, had which he has and has credentials, Dr. states: recitation of her Lewis epi- of He has also had incontinence urine. outset, “At John- should be noted that others, behaviors, by reported to sodes of him ny psychiatrically one Garrett is of the most impaired entirely memory for which his or impaired among many I have inmates These, (e.g. symptoms ol- absent. other past years. over interviewed twelve hallucinations) factory suggested neu- Johnny of Garrett I conducted evaluation rologist possibility Mr. also Garrett following: revealed the complex partial suffers from seizures. chronically Johnny psychotic and Garrett is performance on Mr. numerous Garrett’s multiplicity psychotic symp- has a of suffered signif- neuropsychological tests confirmed his my toms until the time of from childhood damage. example, icant For on brain fact, prison In I re- evaluation. records tests, battery Garrett Halstead-Reitan of Mr. diag- prison doctors had viewed indicated that complete required Tactile 27 minutes to suffering schizophrenia. from nosed him as Completion over section. time Performance auditory long He suffered from visual and has injury of brain 15 minutes indicative Indeed, during my hallucinations. interviews system dysfunc- significant central nervous Garrett, he with it soon became clear that Mr. Moreover, section, Categories a tion. on the was, times, hallucinating. When asked abstractly, conceptualize test of the communicating, with he he indi- whom was A score of more Mr. Garrett made errors. died cated this was an aunt who had of dam- errors is indicative brain [sic] reported just prison. he had entered He after stated, dysfunction. age As this or brain begun hearing seeing having first voices and indepen- damage was in the brain confirmed things when was in the that were not there he neurologist evalu- of a who dent conclusions grade. variety of He exhibited a fourth also ated Mr. Garrett. peculiar paranoid and a beliefs and delusions having history Johnny Garrett also has history strong paranoia that were indica- and been the victim of extreme witnessed physical psychosis, psychosis. tive As a result Mr. Garrett re- and sexual abuse. reality, misperceives Johnny often Garrett biolog- portedly in which his witnessed events threatened, being may lash he is thinks extremely to mother ical was brutal father out, perceives be he selfdefensive in what Although re- Mr. Garrett his brother. action, inappropriate ways. in violent and him, ports several that his father never abused has It also be noted that Mr. Garrett should extremely physically stepfathers were injuries dating head from of severe sexually re- abusive to Mr. Garrett. The may early childhood. The most serious ports physical abuse are substantiated he fell the roof of his house been when from body. many For scars on Mr. Garrett’s age. approximately 10 when he example back he has numerous scars on his occipital right palpable scar in the There is a stepfathers reportedly beat where one of his region He also suffered fall. reported me him. He motorcycle approximately serious accident young placed he hot stove when was a on a may age for another scar which account stop crying. boy he would not Johnny because occipital region. Garrett also the left assertion, verify requested region order frontal where has left a scar Pincus, Gar- large neurologist, examine Mr. Dr. head with a reportedly in the hit pres- Dr. rett's Pincus verified buttocks. childhood. rock in applicant basis of all this data Dr. Dickerson deserved a sentence of less than concluded that Washington, Strickland suffered from death. schizophrenia, “probably paranoid schizo- U.S. phrenia;” syndrome[,]” and “chronic brain (1984). L.Ed.2d at 698 Even had coun- “complications which he described as aris- sel made a conscious and informed decision ing by thought behavior and and a lot of evidence, not to adduce this such a “Hob- things arising out of kind of some son’s choice” amounts to no more than “a damage.” He concluded that court-induced ‘tactical’ decision to avoid profoundly cant “is one of the most helping satisfy the State its burden pervasively people disabled I’ve encoun- Herrera, proof.” supra, at 532 25, in years practice.” tered the last 28 (Clinton, J., is, dissenting). As it counsel Dickerson’s own written evaluation of cognizant was not even of the choice he plicant suggests condition by failing investigate made and adduce diagnosed could have been as of the time of way proper evidence. Either trial.5 course is to vacate the sentence of death Considering the nature of the Id. and remand the cause for a new trial. hearing, evidence adduced at the Finally, in report his written of his exam- which would have been ascertainable at the ination of Dr. Dickerson noted: trial, time of I believe there is a “reason- appear “Mr. Garrett does to be aware probability” able say, proba- is to “a —that proceedings against bility sufficient him and is to undermine confidence in seeking the outcome” —that might have aware that the State is to exe- found in its judgment reasoned moral cute him. Paired under- with this behavior, consequences ence of scars on his buttocks consistent with derstand the of his or having been seated on the burn- even have full awareness of his actions. Thus, my opinion psychosis er of a stove. I believe Mr. Garrett has It is that the reports neuropsychiatric been honest in his of abuse. deficits described would cer- tainly reported having respon- Mr. Garrett also have been relevant to issues of sibility mitigation during Johnny victim of extreme sexual abuse Gar- at the hands of and/or Further, family, especially stepfather, rett’s trial. the clinical data of these his third Whiteside, disorders that is documented in this affidavit Mr. and that man's friends. These prior Johnny could have been documented stepfather reportedly events with the occurred Garrett’s trial in 1982 in the course of a com- reported having around 1977. Mr. Garrett petent evaluation.” perform clinical been forced to acts of fellatio and having frequent to submit acts of anal 5. Dr. Dickerson concludes: reported intercourse. He also that Mr. White- acquaintances (a side and of Mr. Whiteside sources "All available concur that Mr. Gar- man named "Kent” and another man named severely impaired rett is a individual. Emo- “Darryl”) engage forced him to in sex with development very was arrested at a tional being reportedly adult men while filmed. He ideation, early age. Paranoid delusional engage was also forced to in a sexual act with thought misinterpretation arising dog. reported Mr. Garrett that in the course neurological sig- limitations would contribute films, pornographic these he saw nificantly tendency events and misread young being children as as 7 old filmed emotionally needy react out of his status. He having sex with adults. These kinds of ex- appears experience almost total alien- [sic] probably treme sexual abuse most contributed ation from all social and familial institutions to the bizarre nature his offense. feeling impaired thought, and is in and associ- my professional opinion Johnny It is degree every significant ation to some apparently Garrett’s well-documented and sphere. relatively perva- It is rare to see such longstanding damage, psychosis, encompassing psychopathology. sive and It is coupled long history with his suf- parame- likely many, if not most of these abuse, severely impaired fered brutal child ters could have been observed as he entered ability deliberately to act and to control his Certainly, of them were or he school. some conduct at or about the time of the event in placed classes. would not have been question. drugs The influence of al- parameters and/or Most of these are reflected either impaired (which cohol would have further directly indirectly func- in TYC records tioning. generally try pejorative labeling These vulnerabilities would to avoid impaired Johnny child) rights Garrett’s could the civil interest of the judgments, readily by competent captured make mature reflect in advance ex- have been conduct,

upon appropriateness the offense.” of his amination at the time of standing probably psychotic belief U.S. protect

that his dead aunt will him from 91 L.Ed.2d at 354. While a yet adopted has not the effects of the sedative toxic standard, have found it to be a agents used.” we Jordan, “persuasive” parte one. Ex At Dickerson the habeas (Tex.Cr.App. & n. asked: plau- 1988). It me a than seems to more “Q. agree you ... Do still with that argument that if sible can be made today? statement truly dead believes his aunt will inter- experiencing If Mr. A. Garrett still vene to save him from the effects of an delusion, very yes; and still much as injection, likely lethal he is not otherwise him, yeah. he was when I saw appreciate approaching” “that his death is Q. schizophrenic problem Is the and de- “prepare so he can himself for his lusions that Mr. suffers from the Garrett passing.” This is the ultimate fact- your professional opin- thing, kind of post-conviction pro- habeas finder ion, over that continues time? findings ceedings; the habeas court’s Yes, it generally A. does.” Adams, advisory only. (Tex.Cr.App.1989). he cannot be exe- Now contends Moreover, post- outside of the context of Eighth cuted consonant the Amend- Article 11.- conviction habeas under presently “does ment because he procedure is no established there state the derstand the has competency for determinations of through injection.” extinguish life lethal parte in vel non to be executed Texas. Wainwright, See Ford v. 477 U.S. Jordan, upshot supra. applb The is that (1986). 91 L.Ed.2d The in has not a final determination had should least file and set this Court his execution the state forum as to whether question. cation to address this Eighth the Amendment un- would violate held it In Ford vio- abjures again der Once the Court Ford. Eighth Amendment to execute the lates the passing question on a that is substantial The insane. full Court did not announce it, preferring properly apparently standard, however, determining for “insani- to resolve on leave it for federal courts ty” purposes. Amendment In a for corpus. federal habeas See Ex Ear suggested separate opinion Powell Justice J., vin, (Clinton, dissenting). supra opined: He such a standard. reasons, respect- foregoing For all the op- men women value the “[MJost fully dissent. mentally portunity prepare, Moreover, spiritually, their death. for MALONEY, J., joins. law, one of the today as common justifications, critical its penalty’s death BAIRD, Judge, dissenting. force, depends on the defen- retributive majority’s respectfully dissent penalty’s exist- awareness dant’s for sub- * * to file and set cause * refusal purpose. ence and See, claim. applicant’s Penry mission perceives If the the con- ... defendant 302, 109 S.Ct. Lynaugh, 492 U.S. Penry v. punish- his crime and nection between (1989). L.Ed.2d 256 ment, goal of the criminal the retributive And law is satisfied. if defen- I. is that his death dant is aware regard- hearing testimony The extensive prepare proaching can himself for abuse, his ing severe childhood Accordingly, I would hold passing. syn- his chronic schizophrenia and Eighth Amendment forbids the Judge in Clin- drome are well chronicled only of those who unaware execution need not be dissenting opinion, and they to suf- ton’s punishment are about mitigating evidence repeated herein. This it.” why they are to suffer fer virtually indistinguishable any mitigating the miti- effect to evidence relevant character, Penry. gating background, a defendant’s evidence Id., of the crime. circumstances Penry, held that at 2952. The Court con- type mitigating evidence fell case, Penry’s cluded that in “in the absence special issues contained in informing jury that of instructions art. the former Tex.Code Crim.Proc.Ann. give effect to the miti- could consider and respect special 37.071. With to the first Penry’s gating evidence of mental retarda- deliberateness, held issue on the Court declining background by tion and abused jury defin- absence instructions “[i]n impose penalty, the death conclude that we ing ‘deliberately’ way in a that would clear- jury provided was not with a vehicle for ly jury fully Penry’s direct the to consider response’ expressing its ‘reasoned moral mitigating per- evidence as it bears on his rendering sentencing evidence its culpability, sonal we cannot be sure that decision.” Id. jury give was able to effect mitigating Penry's evidence of mental re- reasoning employed tardation and answer- abuse bar, equally applicable in the case at special the first issue. such a Without both cases are instruction, special juror who believed put, substantively Simply similar. Penry’s background retardation and three issues of former Tex.Code culpability his moral diminished and made provide Crim.Proc.Ann. art. 37.071 failed to imposition penalty of the death unwarrant- give with a device with which to give ed would be unable to effect to that mitigating applicant’s mitigating effect juror conclusion if the believed evidence. ” Penry ‘deliberately.’ committed the crime Penry, 492 U.S. at 323, 109 S.Ct. at 2949. II. analyzing special mitigating the second issue on failure to introduce Counsel’s dangerousness,

future Court evidence at trial should not now bar this Penry’s considering mitigating noted that mental deficiencies evi- were Court from issue, recog- developed post-conviction appli- relevant but further dence in his corpus. nized that such evidence was relevant cation for writ of habeas This aggravating expressly any as allu- an factor and not as a Court should disavow State, Goodman v. Characterizing contrary. factor. such evi- sion to the “two-edged (Tex.Cr.App.1991) dence as a sword” —diminish- (Baird, JJ., Maloney, disa- blameworthiness for his crime even Overstreet and probability vowing as it indicates that there is a the “dicta” in footnote six which future, dangerous suggests that he in the will not consider will be Court special mitigating presented for the first Court concluded that the second evidence provide application issue did not a vehicle for the time in an for writ habeas State, Young See also give mitigating Penry’s corpus). effect evi- (Tex.Cr.App.1991) dence mental retardation 144 n. and childhood S.W.2d Id., (This regards as generally footnotes abuse. 492 U.S. at Court dicta). Indeed, majority of this Court has ex- also held that The Court Penry issue, type regarding provocation, cused counsel’s failure to make third in cases tried before provide objections a manner in a sen- at trial failed to which Penry to the doctrine express tencer could a determination that decision Black v. culpability novelty. Penry lacked the moral be cases, Id., pre-Penry If, (Tex.Cr.App.1991). sentenced to death. 492 U.S. at Penry The noted that in counsel is excused from 109 S.Ct. at 2950. Court require anomaly to coun- reliability objection, it is an order to ensure that a sentence Penry type evidence punishment, sel to have appropriate of death is or as trial, by way proffer of a give either sentencer must be able to consider and put, jury. Simply Peter J. MINIEL Peter inconsistent. these twin conclusions are a/k/a Hernandez, Appellant, majority persists in the If a present conclusion that counsel had to Pen- Texas, Appellee. STATE though at trial such evi- ry evidence even No. 70733. given effect dence could have been statute, must majority under the then the Texas, Appeals Criminal En also conclude that counsel ineffective Banc. failing to do so. This conclusion is the Jan. by Judge dissenting

reached Clinton Rehearing 15, 1992. April Denied opinion to this cause. At 305. Either under the merits of claim, urge, as would or under assistance,

applicant’s claim of ineffective urges, Judge Clinton this Court should applicant’s Penry merits

review the

claim, post-conviction as adduced at the

hearing. refuses to Because so, respectfully

do dissent.

Case Details

Case Name: Ex Parte Garrett

Court Name: Court of Criminal Appeals of Texas

Date Published: Nov 20, 1991

Citation: 831 S.W.2d 304

Docket Number: 14992-02

Court Abbreviation: Tex. Crim. App.