*1 guilty defendant’s plea was “entered tarded and his execution would violate the in open court judge obviously and before a United States Constitution. requirements sensitive to the of the law convicting The court conducted a hear-
with respect to guilty pleas”). ing, which the and the State presented testimony of witnesses and The judgment of the Appeals Court of in support introduced exhibits of their re- affirmed. spective positions. consideration, After the judge of the convicting court entered JOHNSON, JJ., PRICE and concurred. his findings of fact and conclusions of law. judge
The trial recommended that relief be denied.
This Court has reviewed the record with respect allegations. We adopt judge’s the trial findings and conclu- Applicant show, sions. has failed to Ex Parte preponderance evidence, that he has Steve RODRIGUEZ. adaptive behavioral deficits sufficient to be
No. WR-44330-02.
considered
retarded or
place
him in that category
persons
for whom a
Criminal Appeals of Texas.
national
against
consensus
execution ex-
June
Virginia,
See Atkins v.
ists.
2242, 2250,
122 S.Ct.
(2002). trial Based court’s find- ings review, and conclusions and our own sought the relief is denied. HERVEY, J., participating. Mickelsen, Dallas,
Mick for Appellant. HOLCOMB, J., dissents. Welsh, Thornberry Dan & Beth Asst. Antonio, COCHRAN, J.,
District Attorney’s, filed a statement San Matthew Paul, Austin, Attorney, concurring State’s the denial of relief in which for State.
PRICE, J., joined. ORDER COCHRAN, J., filed a statement concurring the denial of relief which PER CURIAM. PRICE, J., joined. This a subsequent application for writ STATEMENT corpus filed pursuant to Texas op PROCEDURE, Article subsequent In this application, writ filed
Code CRIMINAL 11.071, § 5. 11.071, 5, This cause was remanded pursuant § to Article of the Tex- convicting Procedure, court for consideration of Code Criminal applicant’s claim that he is presents re- a claim of mental retardation un- Yes, you plea indictment and that enter a [DEFENDANT]: I do. guilty voluntarily, persuasion, without coer- plead guilty [THE You COURT]: right? cion of kind? Is that charge? Yes, your [DEFENDANT]: Honor. Yes, [DEFENDANT]: I do. you [THE And COURT]: do do that?
401 in that he had who the trailer Virginia.1 del’ Atkins v. After we re- friends were guy,” trial and showed them the the court a “black application, manded stabbed stolen, as evidentiary hearing pistol an and con- had jewelry conducted and he the (later documentary a wealth of informa- to sidered be the well as a knife determined judge signed findings tion. The trial then weapon) taken with that he had murder of and of fact and conclusions law recom- a of the men Applicant gave him. one have mended that relief be denied. We the buy spray paint, can of and dollar to a record, adopt the and we the reviewed paint fumes until friends inhaled three judge’s findings conclusions. trial and noon, came to the police when officers Therefore, deny we relief. told friends that he Applicant his trailer. he police, to from the needed hide presents ques- this case a close Because Instead, lay no effort to do so. made tion on the ultimate factual issue mental floor, eyes his and on the closed down retardation, I following add the remarks. The arrested pretended sleep. officers I. him. indicted the Applicant was for murder applicant committing first the At denied
Agnes
Herden committed in the course
murder,
police
confront-
but when
officer
4,
burglary
robbery
July
1990.
he knew
applicant
ed him and told
advice,
Against
attorney’s
applicant
his
he,
full
applicant gave
was a
that this
pleaded guilty
capital
to the
murder
explained that
confession. He
trial,
At
charge.
jury
his 1992
the
an-
my
I
just
things
I
had a
on mind.
lot
special
swered the
is-
“aggravating”
two
I
family problems
a lot
because
have
affirmatively
mitigation
and
sues
the
issue
I
my family.
never talk to
did not
can’t
trial
negatively,
judge
and the
sentenced
I
have
sex
rape
lady
and did not
death. This
affirmed
just
my
I
mind.
lady.
lost
with
ap-
that conviction and sentence on direct
complete
truth as
This statement
State,
peal. Rodriguez v.
Dr. Sherman testified that test- his 1982 ing applicant’s of overall stage, applicant’s level of function- ment attorney argued ing was measured the Wechsler Scale that ill mentally was both (50-70) being as mild range of men- Nonetheless, mentally jury retarded. IQ tal retardation. He had a of full-scale did not find that there were sufficient miti- per- with a verbal score of 57 and a gating circumstances to a sen- warrant formance 70. Although score of conclud- imprisonment tence of life rather than a ing that was legally competent, Therefore, death sentence.3 the trial court Dr. him diagnosed Sherman having imposed a sentence of death. adolescence,” “overanxious disorder nonaggressive “undersocialized conduct In his first habeas application, adolescence,” disorder and “borderline attorneys that claimed his trial failed to functioning intellectual repetitive with a request “partisan” psy- assistance of a language deficit.” He that recommended chiatrist evaluate his mental function- applicant be in a placed special education and, therefore, ing, they ineffec- provided home, program and a stable and that he hearing, tive At this assistance counsel. management enter into a “behavioral con- Dr. appli- Michael Arambula for testified tract” juvenile probation with his officer. that, opinion, cant appli- and stated his trial, At the Dr. explained Sherman mildly cant mentally was retarded and that, ability opinion, applicant’s his “right sepa- at” line that functioned higher” function full- was “much than his mental from border- rates mild retardation IQ implied. scale score of 60 Applicant He functioning. line intellectual found retarded, not” “absolutely was like a functioned six-to- rather functioning he was the border- eight-year-old child in areas and a some range. line twelve-to-thirteen-year-old in others. In Sparks John also testified for had opinion, applicant sig- Arambula’s com- opinion, applicant State. was impairments in out of nificant ten eleven trial, petent stand was not categories. specific adaptive behavior He retarded, suffering and was insane or upbringing” had an “unfortunate from severe disease or defect. history very long depression signifi- sign organic damage He found no brain anxiety which him have cant made trouble which is often with inhalant associated concentrating, impaired his decisionmak- though appli- abuse. He even stated ing, cant’s most recent score of 68 was and led to low and irrita- self-esteem 37.0711, 3(e). § 3. Tex.Code Crim. Proc. art. sisters abuse, According applicant’s to one long-term inhalant
bility.4 With his hearing, first easily agi- impulsively, was who testified applicant acted first tated, Be- student when he clearly. good and could not think was school, began having prob- between a low he cause the interaction started level, depression, and knew intellectual clinical died. She also lems after mother behaviors, going he spray paint, inhalant-affected was but she problems he had concentrate, irritable, inhaling be “more can’t be Another him it. sister never saw hyperactive.... probably He would be dis- was sometimes testified ruptive in he can’t sit still.” class because fight used to “troublemaker” who when However, Dr. Arambula also agreed young. The mother of was *4 judgment applicant’s impulsivity poor and applicant spray used child that testified 22 a characteristic of a would “be common living they the time” when were paint “all 23-year-old drop school out from a for his together. Applicant worked broth- history a use.” drug broken home with business, in the er-in-law construction good job he get couldn’t because wasn’t Zuelzer, Margot psychologist Dr. who very applicant’s trial attor- smart. One of applicant also testified for this first that neys hearing at the habeas testified IQ hearing, habeas tested his and believed any he noticed mental retardation never IQ applicant’s that verbal score of 68 indi- disability in his client. retardation, though mental cated even his overall score of 71 was not in retarded This relief on that first court denied IQ range, performance and his of 77 was 12, application April Ap habeas range outside mental retardation. in plicant sought then habeas relief federal applicant “functionally noted that She court. writ was still district While this “language positing illiterate” and has a Court de pending, Supreme but after the problem.” opinion applicant filed livered its raising a subsequent federal writ mental Sparks again Dr. testified at the first 31, 2003, the retardation claim. On March hearing agreed and largely peti federal district court dismissed that Arambula and noted Drs. Zuelzer. He prejudice applicant tion without so that everyone that applicant that concurred court to raise his could return state cusp” “at the or “on was borderline” then, it be neces Atkins claim and should retardation, “[t]here but that aren’t sary, court after he could return federal any exact cutoffs between the various v. exhausting Rodriguez state remedies. they ... groupings blend sometimes into Cockrell, SA-00-CA-443EP, 2003 Civil No. really each other.... The borderline (W.D.Tex. 2003). March WL judgmental borderline.... It’s not an ex- this Court entered September On separating act line one from the other.” met finding an order had Dr. fell on Sparks believed that raising criteria for threshold subse the “not side retarded” line quent claim under Tex.Code Crim. he higher because functioned at a level PROC. 11.071, 5,§ IQ indi- Art. we remanded than his would otherwise scores proceed cate, case trial court for further except in the area academic ings. achievement. times, may applicant’s have been the result of testified ex- inmate five Dr. Arambula disturbances, was anx- prison depression his and "because he so record for includ- tensive ing a fellow ious." one incident which stabbed remand,
On the trial Sparks court heard addi- Dr. noted that could com- testimony concerning tional jail reasonably municate well while mental abilities. Dr. Sherman testified requests” his “sick call were written again and per- stated that fact that a very logically specific and asked for things. IQ son has a subaverage score does not Applicant wrote medical form informa- necessarily mean he is re- tion higher “at a level that’s than IQAn tarded. score is indicative of a could.” person retarded capacity doing lessened for well aca- Patton, adjunct professor Jim an demics, but factors —a sta- environmental special University education at the of Tex- home, ble supportive parents, a stable as, for applicant testified at the second situation, school language spoken hearing writ agreed and he with Dr. home, peer groups, drug alcohol and Sparks that there ais “moderate” correla- abuse—all influence academic achievement tion ability between intellectual impact IQ scores. Dr. Sherman be- adaptive behavior. Patton interviewed severely lieved that learning was family some members disabled and did not well. test He noted and concluded that had shown that “the verbal spectrum whole *5 adaptive evidence skill of deficits before based,” really culturally is test and there- age eighteen, particularly in the areas lack fore a of academic achievement and a and communication academic achievement. ability reading your low will “inhibit per- opinion He had no whether was formance on the Dr. test.” Sherman also presently mentally retarded. expressed concern adaptive that the prong deficiencies mental retardation The trial court a also considered written objective had no quantifiable or compo- Luckasson, affidavit Dr. Ruth a special nent. professor education University the New Mexico. She did not Sparks He, appli-
Dr. evaluate again testified as well. too, expressed personally, cant but stated that the adaptive opin- concern that the functioning Sparks criteria of mental ions of Drs. and retardation Sherman that objective: are a great not “There’s deal of did was “borderline and not have subjective input. areas,” The adaptive observation deficits in skill were not individual, history gives, that he supported by their records. thought She history from obtained other sources like that developed by the clinical data Drs. or family history, work if there is work Sparks and support diagnosis Sherman history.” The determination of whether of mental retardation. one has significant adaptive skills deficits applicant’s prison The offered State rec- really judgment Although is “a call.” ad- ords that show he was member mitting call,” that it was “a close Mexican Mafia and that he had numerous Sparks opinion appli- reiterated his that disciplinary violations. A prison recent cant was not opin- retarded. His report status examination conclud- ion upon was based the facts that applicant applicant’s adaptive ed that skills were
worked; had relationships peo- other ability “normal” as to and that he coping ple, including family; “ability and had the had no skills deficit. adapt to to some level what I would above expect person adapt in our retarded II. society.” Sparks explained also that badly” “tested because of The court find- trial has now made its high anxiety ings and low motivation levels. of fact and conclusions of law based expert is also testimony retardation. There and mental entirety in this record The court its witness evidence lay
records.
trial
summarized
and
following
finding
appli-
manner:
support
conclusion the
which would
skills,
adaptive
a deficit in
cant does suffer
applicant had the burden to es-
The
in this record which
and there is evidence
by a
of the evi-
preponderance
tablish
finding
ap-
the trial court’s
supports
dence each of
three elements
during
adaptive
de-
plicant
mental retardation: onset
does not suffer deficit
period, subaverage intellec-
A
side of this
velopmental
finding
either
skills.
functioning,
significant
tual
and
deficits
evi-
question
by the record
supportable
is
has
adaptive
The
skills.
reviewing only
But
court
dence.
as a
significant
deficits in
failed
establish
record,
be
deferen-
especially
we must
cold
The
evidence is
adaptive
expert
skills.
as
findings
tial
the trial court’s factual
conflict,
question
not
but the
is
neces-
and
“Johnny-on-the-Spot”
able
sarily
by expert
testing.
controlled
and demeanor determina-
credibility
make
in the form of
lay
There is
evidence
we are not
tions of
witnesses that
by prison
state
observations
school
capable
making on
review.5
sig-
not
officials that
did
have
also
in the two habe-
There are
statements
adaptive
nificant
There is evi-
deficits.
hearings
that the trial court
advo-
helps explain why applicant
dence
personally
with both
were
familiar
cates
I.Q.
yet
have
not
poor
could
scores
Sparks
expe-
and their
Drs. Sherman
adaptive
have
skills deficits
thus not
expertise
rience and
the mental health
mentally retarded. There is evidence
be
field.
easily
docile
*6
my concern that
I nonetheless reiterate
others,
by
is in fact
manipulated
ex-
adaptive behavior criteria are
“[t]he
manipulative.
is
aggressive
There
undoubtedly
ex-
ceedingly subjective,
evidence that
is able
com-
opinions on
perts
be found to offer
will
municate and function in his environ-
of the issue in most cases.”6
both sides
ment.
findings
Based
those factual
and le-
that,
in
with its
It seems me
decision
conclusions,
gal
court
the trial
recom- Atkins,
back
Supreme
moving
the
Court is
deny
mends
this Court
relief.
pre-Furman
wholly
days
the
toward
determining
subjective criteria
whether
experts agreed
All of the
subject
person
is or
not
particular
is at
is
numerical
level
the borderline
As
diagnosis
penalty.7
experts
the
both
below
cut-off level for a
the death
Evans,
(Tex.Crim.
Briseno,
(Tex.
parte
648
parte
135 S.W.3d
964 S.W.2d
5.Ex
12-13
context,
(in
("while
Crim.App.2004)
by
af
habeas
"we
this
is not bound
App.1998)
judge's
almost total deference to the trial
findings
judge
ford
a habeas
habeas
the
sup
the
determination of
historical
facts
findings
corpus proceeding,
are
where
record,
ported by
especially
those
record,
when
by
they
ac
supported
should be
findings
fact
are based on an evaluation of
Court").
cepted by this
However,
credibility
if the
and demeanor.
Briseno,
ruling
by
supported
is not
at 8.
parie
trial court's
135 S.W.3d
Ex
record,
may reject
findings”)
this Court
238, 310,
Georgia,
92
v.
Furman
(footnote
Franklin,
omitted);
parte
Ex
(1972) (Stewart,
As school
taught
children we were
punishment?”
analogous
This is
King Solomon weighed all of the evidence
statutory mitigation question which,
Texas
decision;
him
before
and made a reasoned
bottom,
you
asks “Do
believe that the
Nero divined merit
just
on whim and
sufficiently morally
defendant is
responsi-
pointed
up
his thumb
or down.
I fear
ble for his conduct such that
the death
that,
subjective
under Atkins
legal
and the
penalty
an appropriate punishment?”
definition of the “adaptive deficits” prong
retardation,
of mental
we are
far-
moving
event,
“evolving
standards of
ther
from King Solomon and closer to
decency” of
Eighth
Amendment8 de-
Nero. If there
is evidence
the record to
pends upon
judgment
the collective
of the
support
conclusion,
the factfinder’s
by a
ordinary
twelve
in judg-
citizens who sit
preponderance
evidence,
that a per- ment of the case before them. Their as-
son does or
signifi-
does not suffer from
sessment is the best determinant of fair-
cant
in adaptive
“deficits
behavior”—what-
in assessing
ness
both mental and moral
*7
may
ever that
mean to the factfinder-—-that
responsibility in
capital
cases of
crimes
conclusion must be affirmed.
capacity
committed
those whose mental
Atkins,
competency
is in
Supreme
doubt. Thomas Jef-
may
Court
have
right:
intended to
ferson had it
“I know of
“bright-line”
create
rule that
no safe
are,
mentally
depository
powers
those who are
of the ultimate
retarded
be-
of the
themselves,
cause of
society
people
their lesser moral
but the
culpability, ex-
and if
empt from the death
think
penalty.
enlightened
But I fear we
them not
enough to
is,
that there is no
bright
such
line. There
exercise that control with a wholesome
contrary,
discretion,
on the
agreement among
broad
remedy
is not to
it
take
mental health experts
them,
that determining
from
inform their discre-
Texas,
262, 273-74,
compare Jurek v.
U.S.
jury’s objective particu- consideration of the larized circumstances and the individual of- offender”). fense and the individual Expert testimony various tion.”9 inform the may
mental retardation criteria But it
factfinder’s discretion. is nonethe- ultimately must
less the factfinder who “who particular person
decide whether a mentally will be so to be retarded
claim[s]
impaired range as to fall within the offenders about whom retarded
there a national consensus”10 that penalty inappropriate punish-
death is an
ment. record, I
Based evidence
agree that the trial court not err did
concluding prove, failed to evidence,
by a preponderance of Therefore, join I retarded. denying applicant relief on Court
mental retardation claim.
HAGGAR CLOTHING COMPANY Haggar Apparel Company,
a/k/a
Appellant,
v.
Altagracia HERNANDEZ, Appellee.
No. 13-01-009-CV. Texas, Appeals
Corpus Christi-Edinburg. *8 21, 2003.
Aug.
Jefferson,
9.
U.S. at