Ex Parte Tennard

Robert James TENNARD. No. 71678. Appeals

Court Criminal En Banc. Dec.

victims applicant had invited and his two friends into their approximately home fifteen thirty they to minutes before were attacked. Applicant stabbed one the victims fifteen times a applicant’s knife while one- of friends killed the other victim awith hatchet. Applicant played dispos- a dominant role in ing of property. Appli- the victims’ stolen Cohen, Austin, Elizabeth appellant. defense, cant pre- alibi and he Sckerl, Houston, Atty., Kari Asst. Dist. sented other evidence from which the Paul, Austin, Matthew Atty., State’s for might have concluded that another State. possibly could have committed the murders.

The evidence from hearing applicant parole shows been had from a OPINION felony rape conviction for about three and McCORMICK, Presiding Judge. one-half months when he committed this of- post This is a application conviction rape fense. applicant victim testified writ of corpus pursuant habeas filed to Arti- and two others forced her into a car while 11.07, cle deny V.A.C.C.P. We will relief. stop. she was at a bus Just after she was October a applicant convicted car, applicant, forced into the who was dis- murder, capital and sentenced him to die. playing foot-and-a-half-long pipe- about a This applicant’s Court affirmed conviction wrench, her, “[M]ove, bitch, to said white appeal. sentence on direct Tennard v. you’re dead.” State, 802 (Tex.Cr.App.1990). S.W.2d 678 The victim applicant testified and his United States Court denied apartment friends took her to an abandoned applicant’s petition for writ of certiorari on government project applicant some where June 1991. Tennard v. oral, forced engage vaginal her to and anal L.Ed.2d that, sex with him. After two (1991). sexually assaulting friends took turns her. In this proceeding, applicant claims the capital Applicant sentencing applicable Texas and his friends then took the scheme victim to applied applicant his case1 was to him in another house where be- violation of gan using drugs Eighth discussing “pimping and Fourteenth Amendments applicant out” the victim. argues United States Constitution. He She asked if she bath, special go issues the bathroom to take a failed to which he give mitigating vehicle allowed her do: effect to “relevant youth, “youthful evidence” of his “Q. you you Now told them that wanted incarceration” and what he claims is evidence to take a bath? of his mental all in violation of Yes, “A I did. Penny Lynaugh, “Q. [applicant] say anything? Did light Viewed in the most favorable to the going try “A He told me I wasn’t verdict, applicant the evidence shows and two away, run was I. brutally others murdered two men in their “Q. you What did tell him? Tennard, during robbery. home him, ‘No, Applicant S.W.2d at 679. baby. you. lived behind the “A I told I like I ” victims, home of the and he knew them. The wouldn’t do that.’ V.A.C.C.P., 37.071(b)(1) (2), expectation 1. See Article that the death of the deceased or (requiring (2) the submission of two issues another would result” and "whether there is (1) jury: probability "whether the conduct of the defen- that the defendant would commit dant that caused the death of the deceased was criminal acts of violence that would constitute deliberately continuing society"). committed and with the reasonable threat to spent most of go and he had applicant let the victim to the After window, bathroom, years incarcerated. escaped through formative she day. was arrested later punish- closing arguments at the During applicant appeared to be The victim testified facts prosecutor argued the phase, ment Applicant im- during leader her ordeal. “special itself showed ciime testimony prior with a peached the victim’s to violence.” dedication she made from which statement You of the crime itself. “Look at facts have one friends inferred pistol trigger pulling or a pulling know leader. easy way kill fairly is a to pistol on a that a Applicant’s parole officer testified easy, but it’s a Not detached someone. (TDC) Department of Texas Correction's way. dedication to vio- special It takes for the record incarceration body plunge a knife into a human lence to IQ. rape had a 67 conviction indicated he times.” sixteen “Q. bring a you ... And did in fact docu- Applicant IQ to the evidence referred [applicant’s] mentation of what intelli- punish- during closing arguments twice according gence quotient to in re- ment. He referred to evidence penitentiary? test from the sponding portions rape to victim’s Yes, “A. I did. testimony: “Q. And what was result of test? they gave is that “... the information “A. It’s a sir.” got IQ. guy [appellant] has a 67 The same witness, During poor cross-examination of this this unfortunate woman that told “Well, day, if I let trying the State introduced record into to work that the TDC there, you you he appeal’s evidence. This record to have will leave?’ And been ap- IQ, and prepared approximately years guy five before her. This with the 67 believed and, plicant enough, escapes, is a goes committed and there she sure she indicating applicant just uncon- notation on the record like she should have. That is you, testimony before that we had the witness could troverted say prepared report, got got a man us that who conduct- have before quotient us intelligence ed the before that is test. low.” Kinard,

“Q. purport Mr. this doesn’t any report by any particular psy- And, take account he asked the into chologist anything, it? answering special the' No, “A. sir. issues: of, “Q. basically just says, It’s sort suffering you from a 67 “... none of history [appli- social and criminal IQ. judge you’re going try have to So cant]? what his this man decide peers.” Right, “A. sir. would be as “Q. basically says, And it line there’s Evidence Youth Previous IQ, says and it 67? Incarceration

“A. That’s correct. “Q. it has no And indication who special issues Applicant argues the given those tests or under what jury a vehicle to failed to

conditions? youth mitigating effect spent most of his formative evidence that he sir, “A. No it doesn’t.” disagree. years incarcerated. We appli- This is all the evidence on his retardation.” This Court and the United States cant’s 1986 trial “mental special issues allow The term is not men- Court have held the “mental retardation” give mitigating to evi- anywhere Applicant fact tioned in this record. finder youth good prison showing a defendant’s also introduced evidence he was dence of twenty-two age Johnson v. years of when he committed record. See 367-69, 113 2658, 2669, 125 support finding L.Ed.2d 290 mental retardation. We (1993); State, Jones v. so. 497 decline do S.W.2d (Tex.Cr.App.1992), denied, cert. According to the American Association on (1993); (AAMR), Mental Retardation (Tex. Harris, parte

Ex S.W.2d considered retarded And, Cr.App.1991). we have held (1) subaverage when there evidence of: issues allow the fact finder to consider and (2) general functioning, concur- intellectual give mitigating effect to of a trou (3) behavior, adaptive rent deficits bled or abusive childhood. See during early development period. onset Jacobs, (Tex.Cr.App. Rumley, L. License David Comment: A 1992); Categorical Goss Exemption to Kill: The (Tex.Cr.App.1992); Mentally Penalty, Lewis 815 Retarded the Death (Tex.Cr.App.1991). Mary’s St. Law Journal Number (1993). 1312-14 adopted Texas has fact Since issues allow the find three-part AAMR definition of mental retar- give mitigating er to effect to this kind of dation in “Persons With Retarda- Mental evidence, they also finder to allow the fact V.T.C.A., Safety tion Act.” See Health & give any consider and effect 591.003(13) (“mental Code, retarda- Section mitigating qualities “youthful of evidence of general significantly subaverage tion” means event, any applicant incarceration.” functioning intellectual is concurrent any not established “nexus” between his adaptive origi- with deficits behavior and “youthful incarceration” the “circum and during developmental period); nates of the offense to excuse stances which tend[s] V.T.C.A., Code, Safety & Section Health explain or the commission of this offense.” 591.003(16)(“person with mental retardation” See, e.g., Earhart v. person by physician means a determined a or denied, (Tex.Cr.App.1994), cert. psychologist licensed in this state or certified 115 S.Ct. department subaverage gen- to have And, proposition “youth of that evidence functioning eral with intellectual deficits possesses ful any mitigating incarceration” behavior). And, adaptive ex- qualities spe is almost absurd. We hold the pressly on the three-part AAMR defi- relies provided cial issues a vehicle nition of mental retardation. any of mitigating qualities the evi mentally are are retarded “Persons who applicant’s youth “youthful dence of in having ‘significantly described subaver- carceration.” age general functioning exist- intellectual

ing concurrently adaptive with deficits in during the devel- behavior manifested Mental Retardation period.’ opmental American Association Applicant special is also claims the Retardation) (now Deficiency on Mental provide

sues failed to vehicle to a (AAMR), Classification in Mental Retarda- give mitigating effect ed.1983). (H. clas- tion 1 Grossman To be retardation.” “mental He claims retarded, mentally person gen- sified as “reaffirm rule” bright-line should “ erally IQan below. must have 70 or beyond falls Omitted). ‘evidence retardation (Citation AAMR Under statutory special scope of the [former] IQ system, individuals with classification ” See, Earhart, e.g., S.W.2d at issues.’ scores 50-55 and 70 have ‘mild’ between question first ask is 765. The we must be- retardation. Individuals scores applicant there is whether evidence that tween 35-40 and 50-55 have ‘moderate’ mentally Applicant is retarded. would have ‘Severely5 people retardation. retarded Penny five-year- 35-40, this Court hold under that a IQ between 20-25 have scores old reference an obscure record to ‘profoundly5 people TDC retarded have (Citation Omitted). IQ score of 67 shows is 20 or 25. scores below retarded, persons of an mentally Approximately and that evidence 89% of retarded Omitted). (Citation IQ ‘mildly5 retarded. of 70 less is sufficient evidence IQ ap- applicant’s low evidence does fn. Penry’s Johnny Paul evi- proach level fn. at 2941 1.” on the Based retardation. dence mental part AAMR test The first record find evidence in this foregoing, we no by IQ, and an must have measured individual applicant mentally retarded. IQ to meet the test score of or less AAMR mental part of the definition of first Assuming the evidence Mary’s 24 St. Law Journal retardation. See Penry’s within defini low somehow falls 4 at that does Number 1316-17. retardation,2 ap hold still tion mental everyone inquiry or mean that not end Penry. relief under plicant is not entitled to mentally retard with an below be States Court decisions United ed; means that all retarded upheld the consti fore and after IQ of persons have an 70 or below. Because tutionality special issues of Texas’ former unreliability in determining their has al framework because this framework retardation, IQ used as scores should juries of cases to lowed vast retardation;” “unitary measure mental mitigat to relevant consider justifiable alone low meaningful in a manner. See ing evidence classifying basis for 361-67, Johnson, 509 U.S. at See id. at 1329-35. retarded. Collins, 2666-68; Graham And, IQ argue using scores as some that 901, 473-75, 892, 113 S.Ct. could the sole measure of mental retardation (1993); v. Lynaugh, 487 U.S. Franklin per- negative consequences social for all 181-82, 108 2331, 101 L.Ed.2d 155 S.Ct. IQ “perfectly sons -with low scores who are (1988); 428 U.S. 96 S.Ct. Jurek a id. at capable self-sustaining of life.” See 2950, 49 929 Johnson reaf They argue present 1338-40. this long mitigating firmed as relevant that potential danger liberty to the of citi- these of is within “the effective reach the evidence id. zens. See Eighth requirements of the sentencer” the Johnson, 509 Amendment are satisfied. U.S. part of AAMR definition of second the 367-69, (distinguishing 113 S.Ct. at 2669 at quantifiable; it mental retardation provided two the because issue person’s ability prop measures function jury meaningful to consider and basis as, example, meeting erly society such qualities Johnson’s mitigating effect to the of day day of 1317- the needs life. See id. at is that youth). requires All the Constitution And, part the 20. third of the AAMR defini manner a jury be to consider some able requires one parts tion to exhibit relevant evidence. defendant’s during of AAMR his and two the definition require id. The Constitution does not See period. the developmental See id. Once mitigat “a able that met, three-part IQ AAMR definition is score ing every conceivable manner evidence severity of ranges are utilized to measure the might which the evidence be relevant.” See ranging from mental retardation “mild” id. 1321; “profound.” Penry, id. at see See fn. 492 at 307-09 fn. S.Ct. at 2941 U.S. like this is ‘“whether The issue cases likelihood that the there a reasonable challenged in a arguably applied instructionfs] is clear has the foregoing, Based it of consti Johnny Penry’s way prevents met the the consideration Paul ” Johnson, tutionally retar See three-part AAMR definition of mental relevant evidence.’ 591.003(13) 367-71, 113 at 2669-70. Health 509 U.S. at S.Ct. We dation and Section with a Safety Penry, 492 at should evaluate the instructions “ See U.S. Code. 307-311, 109 understanding the in it is at 2941-42. ‘commonsense S.Ct. all has taken light in the a low structions

clear Johnson, alone, U.S. at score, place at trial.’” See 509 standing not meet 367-69, at 2669. This involves a Qualitatively quantitatively definition. U.S. at fn. at 2941 fn. 1. See 492 307-09 Penry,

62

case-by-ease approach requiring beyond a consider the effective reach And, ation of specific facts of each mitigating qualities Penry’s case. evidence that this is approach Supreme Court fol his him retardation rendered unable Penry. lowed in Penry, at appreciate wrongfulness 307- of his conduct 14, 320-330, 2941-44, 109 at S.Ct. 2948-2962. when he committed the offense. See also bright-line 363-65, Johnson, 367-71, There are no rules in like eases U.S. at 2667, 2669-70, ; Graham, this. S.Ct. at 473-75, 901; Penry, at at S.Ct. U.S. Johnny In Penry, Paul 307-09, 322-24, 335-39, 109 S.Ct. at evidence that his mental retardation made it (in light capaci- diverse impossible for him at the time of the offense experiences mentally life ties and retarded appreciate wrongfulness of his conduct people, it cannot be said that all or to conform conduct his to the law. definition, people, by can retarded never act 307-09, 320-30, 109 492 U.S. at S.Ct. level of culpability associated with 2949; Johnson, 363-65, see also 609 U.S. at penalty). the death (evidence 113 S.Ct. at suggested Here, there is no evidence low .Penry’s mental retardation rendered him appreciate him mistakes); rendered unable to unable to learn his Gra wrongfulness of ham, his when he commit 473-75, conduct 506 U.S. at S.Ct. (Court ted or that low his rendered Penry’s considered him unable to learn from his mistakes or Penry’s because diminished ability impulses diminished his to control his ability impulses to control his or to evaluate or to con conduct). consequences evaluate consequences Johnny Johnson, 363-65, duct. See Penry’s mitigat Paul evidence was relevant 2667; Graham, 473-75, S.Ct. at U.S. at ing evidence because the Therefore, there was no society identified a long-held belief “that jury in danger, Penry, that as the would have defendants who commit criminal acts that given any mitigating qualities of the evidence to a disadvantaged attributable back applicant’s IQ only of low aggravating effect ground, or prob to emotional and mental Johnson, answering special in lems, issue two. See culpable than less defendants 363-65, 369-71, 113 2667, 509 at S.Ct. at U.S. who Penry, have no such excuse.” U.S. 492 2669-70; 322-24, Penry, at 492 109 318-20, 2947; U.S. at 109 at John S.Ct. see also son, S.Ct. at 2949. 369-71, 509 U.S. at 113 S.Ct. at addition, placed special special the issues the mit In the issues did not

igating qualities Penry’s Johnny place mitigating Paul evi the qualities of evidence of beyond jury dence applicant’s beyond the effective reach of the low effective the reach jury. because it not be sure jury could determined for have used this jury given “appropri whether the could have special evidence for a “no” answer the first to ate” mitigating effect to the in an Penry, evidence issue on “deliberateness.” See 492 Johnson, 322-24, 109 Moreover, swering special one. issue U.S. at S.Ct. at 2949. 363-65, 369-71, 2667, considering

U.S. in S.Ct. at the circumstances this of importantly, jury felony rape 2770. More prior the could have fense con given two, Johnny Perny’s only special Paul viction in connection with issue in aggravating special answering effect issue the could have used the low evidence Johnson, 363-65, two. See 509 U.S. at 113 to a “follower” in conclude (Penry’s mitigating participated S.Ct. at 2667 a in stead of “leader” since he special only was relevant to second with issue the commission both crimes others. See, 656, aggravating

as an factor suggested e.g., because it Ellason v. (one “yes” special issue); Penry, (Tex.Cr.App.1991) answer to to factor consider 322-24, 109 determining U.S. at John S.Ct. at 2949. whether the evidence is suffi ny Penry support Paul was entitled to relief not cient to an affirmative answer to standing special because of two his mental retardation issue is whether defendant alone, placed special acting under or the domination of but because issues duress offense); 272-74, 276,

another at the at 2956- time of the see also factors. S.Ct. Johnson, 871-73, 2958. Not must defendant U.S. at S.Ct. at mitigating present to evidence to ample special 2671. There was room within allowed to jury, jury “must also be able give but issue two give effect to that evidence consider and mitigating qualities evi- low imposing sentence.” [its] dence. (citing 109 S.Ct. at Hitchcock

All requested relief is denied. 1821, 95 Dugger, (1987)). L.Ed.2d 347 WOMACK, JJ., OVERSTREET and that Court held that dissent. 37.071(b) issues article were unconstitu- MEYERS, Judge, concurring. applied Johnny be- tional Paul Applicant contends that sentenced they cause did him to death was unable to consider and vehicle in full which effect retardation, evidence of his mental Penry’s retardation, Eighth violation development, background arrested trial, Fourteenth Amendments to the Penry’s United At Penry. childhood abuse. Penry v. Lynaugh,

States Constitution.1 See psychiatrist “that suffered testified 302, 109 2934, 106 organic damage from brain and moderate Applicant is poor not entitled to relief which resulted in [mental] inability because the record leam from impulse contain sufficient control and id, support experience,” evidence to his claim. S.Ct. at

probably organic that the brain disorder was

I birth, caused at but could have been early beatings. result of Id. at childhood Court held that the 308-309, 109 Penry’s S.Ct. at 2941-42. sister imposition of penalty the death Texas for frequently testified that their mother beat rape Eighth the offense violated the Penry with a belt over the head when he was Fourteenth Amendments United child, regularly he and that locked Subsequently, States Constitution.2 the Tex- long periods his room for without access legislature scope narrowed the of death toilet. Id. at 109 S.Ct. at 2941-42. speci- crimes to murder committed in testimony two State rebuttal circumstances, required jury fied and psychiatrists Penry who testified that was special regarding answer issues deliberate- suffering from a mental not defect ness, dangerousness, future in in- and some offense; however, psychi- time of the two Texas, stances, provocation. Jurek v. 428 Penry atrists also testified that unable 262, 268-69, 2950, 2954-55, U.S. 96 S.Ct. 49 Id, 309-10, experience. learn from 109 S.Ct. (1976). plurality 929 opinion, L.Ed.2d In a at 2941-42. Supreme upheld Court the new Texas penalty facially Supreme death scheme as noted that constitution- Court evidence al, part, special develop- in permit- Penry’s because the issues arrested ment, jury’s background ted the consideration of abused had “relevance and (education Appellant jury during prison); Ex also claims unable to S.W.2d at 520 Harris, give mitigating and consider effect to evidence of parte (youth). 825 S.W.2d at 122 youth youthful and incarceration. Both this Supreme rejected Court and the Court have Texas, 238, 2726, 408 92 Branch v. U.S. S.Ct. prison youth good claims that evidence of and (1972), conjunc- 33 L.Ed.2d 346 was decided requires jury record an additional instruction. 238, Georgia, U.S. 92 tion with Furman v. 408 See, 350, e.g., v. Johnson 509 U.S. 113 2726, (1972). 33 L.Ed.2d 346 Also decided S.Ct. 2658, (1993)(youth); S.Ct. 125 L.Ed.2d 290 Georgia. Branch with Furman was Jackson v. 164, Lynaugh, v. Franklin 2320, 487 U.S. 108 S.Ct. Jackson, and the defendants were assessed the prison (1988)(good 101 L.Ed.2d 155 disci Furman, penalty committing rape; death for State, 487, record); plinary Jones v. 843 S.W.2d the defendant was assessed death (Tex.Crim.App.1992)(good prison), 497 behavior committing murder. denied, 1035, 1858, rt. 507 U.S. 113 S.Ct. ce Jacobs, (1993); parte 123 L.Ed.2d 479 Ex 843 64 2617, 132 (1995); State, culpability beyond scope

to his moral v. L.Ed.2d 859 Mines issues,” special jury that and could (Tex.Crim.App.1992)(insanity 852 S.W.2d 941 give mitigating vacated, 802, consider and depression), effect and manic that (1993);3 evidence absent an additional in 42, 114 S.Ct. Ex 322, Id. at Jacobs, struction. 109 S.Ct. at 2948-49. parte 843 S.W.2d 517 Further, Peltry's evidence was considered to (Tex.Crim.App.1992)(troubled background, double-edged special under the second remorse, cooperation positive police, with simultaneously issue denied, diminished traits), 926, character cert. crime, blameworthiness for but indi 3046, (1993); 113 Ex S.Ct. 125 731 probability dangerousness, cated of future Harris, parte 825 120 S.W.2d 324, 109 2949-50, id. at S.Ct. at (Tex.Crim.App.1991)(circumstances of of only give aggravating effect fense, remorse, cooperation police, 323, alcoholism). 109 evidence. Id. at S.Ct. at 2949. youth, exception,4 With one Thus, an additional instruction was mandat claim this Court has sustained a ed, “informing one it could when there is retardation. (Tex.Crim.App.1992), consider and State, 310, Rios v. 315 846 S.W.2d evidence of mental retardation and denied, U.S. t. 507 Penr/s cer background impose by declining abused (1993); S.Ct. L.Ed.2d 651 penalty.” the death State, v. Richard 280-83 2951-52. Williams, (Tex.Crim.App.1992); parte Ex (Tex.Crim.App.1992); Ex S.W.2d Following Penry, pre Court this has been McGee, parte (Tex.Crim.App. S.W.2d sented with numerous claims from other de Goodman, 1991); 816 S.W.2d 383 asserting fendants sentenced to death (Tex.Crim.App.1991); Ramirez v. instruction,” “Penry absent a their sentenc (Tex.Crim.App.1991). ing juries give mitigat could not and did cases, But those even as, ing example, such always something mental retardation was abuse, alcoholism/drug background, troubled than more what was in this case. types and certain mental illness. cases mention, too numerous to this Court has II rejected falling claims such within the See, e.g., Psychiatric rule. Robison The American Association (APA) (Tex.Crim.App.)(childhood S.W.2d 473 sexual has stated that the essential feature remorse),

abuse, abuse, schizophrenia, drug “significantly of mental retardation is subav- denied, erage general functioning” rt. U.S. intellectual ac- ce judgment 3. The our vacated that under Gribble was entitled to an light remanded Mines to us in Texas, additional instruction. Johnson 125 L.Ed.2d itself, category by In a case in a Court held 37.071(b) the third of article issue applied. unconstitutional as First (Tex.Crim.App.1990), 4. Gribble v. 808 S.W.2d 75-76 1992). (Tex.Crim.App. 837-42 denied, t. First, cer S.Ct. the defendant was death for sentenced to Gribble, (1991). murdering person more than one in same defendant sentenced death for murder acquain criminal transaction. First and three during kidnapping. the course of a Gribble leaving were a bar of them tances when one claimed he had sex de consensual with the repeatedly First his head attacked slammed ceased. Gribble evidence of a trou attempted the sidewalk. When the attacker onto bled childhood. Gribble’s mother was institu acquaintances, with one other First to flee of the tionalized for mental illness and his father for shot them. First’s attacker was not first Further, burglary. sexually Gribble’s mother named victim in the indictment. Since article psy abused him when he a small child. A 37.071(f) precluded considering choanalyst experiences, testified that those even provocation other deceased besides that of delusional, indictment, if indicated as the same illness named in the we held that the first mother, by through and that suffered Gribble’s the third issue unconstitutional life, delu applied out his adult Gribble suffered from a to First because the provocation sional fear of sexual which domination resulted to evidence part in violence towards women. This Court held of First’s attacker. (approximately standard deviations in below by “significant limitations companied mean).” Id.; at 1. see also AAMD below the functioning,” the onset which adaptive as- their clinical are flexible in Psychi Professionals American age occur before 18. must retardation, sometimes Association, sessments Diagnostic and Statistical atric (4th IQ of with an determining someone 39 & 46 Manual Mental Disorders that some- rev.1994)(hereinafter DSM-IV); mentally or retarded above 70 see ed. 70 is Deficiency with an of below one on Mental American Association in 23. tests differ AAMD at (AAMD), retarded. in Retarda Mental Classification ed.1983)(here- IQ. Id. (Herbert way they in measure content and J. Grossman tion Williams, AAMD)(“Mental 56-57; at see retardation refers inafter Therefore, important to know it is general at 152. subaverage intellectual significantly determining in was administered concurrently with defi which test functioning existing represents. IQan score manifested what adaptive in behavior and cits during developmental period”). While de “Impairments adaptive behavior are in with mental shares characteristics dementia in limitations an individu significant fined as may age after its onset occur meeting the standards al’s effectiveness 45, 137, 139.5 How eighteen. DSM-IV maturation, learning, personal independence, ever, Penry purposes, should not for courts expected responsibility that social and/or 6] distinguish mental retardation and between here[ group, cultural age for his or level and A. W. Ellis & Ruth dementia. See James and, by clinical assessment as determined Luekasson, Mentally Criminal De Retarded usually, AAMD 11. standardized scales.” fendants, 53 Geo. L.Rev. Wash. measuring an methods of Such standardized adaptive functioning or behavior individual’s Adaptive Behavior functioning is include the Vineland defined

“General'intellectual Adaptive Behavior intelligence (IQ IQ-equiva- and the AAMD by quotient or Scales lent) 40. A by or determination obtained assessment with one Scale. DSM-IV standardized, individually adaptive functioning also be made admin- more educational, develop general intelligence (e.g., tests teacher evaluation istered Wes- Thus, mental, history. Intelligence and medical ehler Scales Children —Re- vised, Binet, Kaufman individual should not classified Stanford Assessment Children).” intel Battery unless he is deficient both DSM-IV at retarded by IQ, as indicated and in “Significantly subaverage functioning, intellectual func- lectual adaptive or tioning is of about 70 behavior.7 defined as responsibility person’s age expected According to the APA: group. cultural The essential feature of a dementia is the devel- * * * * * * opment multiple cognitive in- deficits that significantly means sub- "Mental retardation” memory impairment one of clude least functioning average general that is intellectual following cognitive aphasia, disturbances: adaptive deficits behavior concurrent with apraxia, agnosia, or a disturbance executive peri- during developmental originates cognitive functioning. deficits must be od. impairment sufficiently oc- severe to cause ****** rep- cupational functioning and must social previously higher level resent a decline from means a with mental retardation” "Persons functioning. by physician psycholo- determined DSM-IV gist or certified licensed in this state subaverage general department intel- to have among 6. Mental is more common Retardation adaptive functioning with deficits in lectual women. Id. men than behavior. ****** Act, In the Persons with Mental Retardation functioning” "Subaverage general intellectual adopted legislature definitions sim- the Texas has intelligence on standard- refers to measured regarding mental to AAMD the APA ilar and psychometric of two or more ized instruments retardation: age-group mean below the standard deviations "Adaptive for the tests used. means the effectiveness behavior” 591.003(1), § Safety Ann. & Code degree which meets the Tex. Health with or to a 1994). (13), (16) (20) (Vernon independence personal & and social standards of 8] have.[ case,

In the applicant’s parole just instant offi- like she should That is un- applicant’s cer testified at that testimony you, controverted before that we parole IQ record his reflected that was 67. got have a man that got before us has applicant He testified that when was incar- intelligence quotient before us that is that previous for cerated a the Texas low. Department of Corrections administered to

applicant IQ, to test determine his hut the parole officer exactly was “not sure what test, they of kind what test them for.” The you’re charged acting [ap- Now parole officer further that appli- testified plicant’s] peers. judge You to him as parole purport cant’s record did not be a to peers. going you That’s to be hard for psychologist’s report, it was rather a record you do. of grew up to None he where applicant’s history. of criminal social and up. Only grew you one of is black parole acknowledged pa- The officer that the you suffering IQ. none from a role record did not or indicate whom prosecutor responded: under what circumstances the test was ad- ministered. you [appli- has [Defense Counsel] told that IQ expert has an cant] 67. We heard no During arguments, closing prosecutor testimony psychologist from a who admin- jury: told the battery psychological istered tests. you I’m sure going the Defense is to ask got piece paper All we have is this little forgive [applicant] to for what he’s done. things with a number listed which Say IQ you that he has low and that don’t someone —we know who has —writ- Well, should him another chance. ten in 67. he But whether has a or low gentlemen, you ladies and judge be the is not issue. really,.the Because you If you that. feel like what that’s need legislature, asking you to that address do, you then that’s do. what need to issue], question [the second the rea- I you your But ask to make decision based why danger sons he became a are not on facts. really relevant. The fact that is a he Defense Counsel remarked: danger, that the evidence shows he’s a I Then called a who witness testified danger, answering is use in the criteria to [applicant's] parole he’s officer. Uncontro- question. [applicant] verted evidence that when was examined, got peniten- he applicant’s when out The evidence trial tiary, the officials who applicant mentally determined how did show that was him, him, classify how to treat the same retarded as the AAMD or the APA has regard- information that was testimony communicated to defined it. There was no officer, him, parole what to ing do how when or was measured (cid:127) help parole. him when he’s out on Infor- tests what where used to measure it. There had, prison testimony psychiatrist range mation that no as to was they gave [ap- mentally the information that what considered retarded. There plicant] IQ. guy testimony got parole a 67 no same was notation poor applicant that told this unfortunate woman that record retarded. “Well, trying And, day, to work that if I let record devoid there,

you you indicating adaptive will leave?” he And function- guy IQ, ing believed her. This with the 67 of a retarded individu- and, goes she sure she enough, escapes, al. punishment, regarding managed escape by appli- telling

8. At a woman testified she where applicant extraneous offense in which two Applicant that she a bath. cant needed take up waiting drove to her while she was men going escape, her if she no asked she was said bus take work her to and forced her into their go allowed her to to the bathroom apartment The men her car. drove vacant escaped through she window sub- where they sexually assaulting where took turns her. police. sequently notified the Afterwards, they apartment drove her to another Ramirez, at opin- damage); S.W.2d relying unpublished an from brain Primarily abuse, (childhood IQ conflicting ion, doctor’s evidence of an 655-56 contends “Penry men- requires testimony instruc- to defendant was below alone as whether retarded, “[ujnpublished opinions tally psychological evaluation tion.” and precedential must not be or- no value and likelihood of intelligence and assessing authority counsel or a court.” cited ganic dysfunction). brain Tex.R.App. P. The AAMD and 77.3. reasons, applicant is not entitled For these contention, disagree APA join judgment in the I relief.9 therefore to “Penry in- holding that a and the cases the Court. men- required, the evidence of struction” was of more than evi- tal retardation consisted J., PRICE, joins. below 70. IQ (organic of an dence early child- damage

brain caused at birth or BAIRD, dissenting. Judge, inability to learn from hood abuse and Rios, experience); see at 315 S.W.2d unbroken line of cases a consistent and (testimony regarding when and doctors Supreme decision in since the Court’s IQ was and con- how defendant’s measured 2934, Lynaugh S.Ct. retarded); mentally he clusion that (1989), this Court held 106 L.Ed.2d 256 Richard, (severe at 280-83 child- 842 S.W.2d cannot be evidence of mental retardation ad- conflicting conclu- hood abuse and doctor’s statutory within the equately considered retarded); sion defendant was However, rather than punishment issues.1 Williams, parte at Ex 833 S.W.2d 151-52 majority precedent, ig- follow this settled (testimony regarding when and how defen- to reach a desired result. Accord- nores it conflicting con- and dant’s measured compelled lodge to this dissent. ingly, I am was mental- clusions as to whether defendant McGee; retarded); parte Ex ly I. (organic damage at 79-80 brain and severe Goodman, abuse); con- parte Ex a fact issue 816 When the evidence raises childhood retardation, cerning mental (testimony at that defendant the defendant’s “entitled to instruction possibly retarded and suffered the defendant statutory punishment Applicant simply not to on his tional manner when entitled relief enough is not claim because there art. 37.071 failed issues of Tex.Code Crim. Proc. support majority to the record to it. The comes provide for the to consider and to vehicle conclusion, Tennard., too, 61, goes on but potentially mitigating evidence. to effect denying Assum to offer another basis ing arguendo relief. During at 2952. his 492 U.S. at 109 S.Ct. enough there had been evidence in trial, Penry presented evidence of an abused the record of mental says childhood, organic brain retardation and reading Penry, subsequent Supreme 308-09, damage. at 2941. 109 S.Ct. U.S. Court cases like Johnson U.S. Supreme Court held: (1993), 113 S.Ct. Collins, U.S. Graham v. that miti- ... of evidence full consideration (1993), together, applicant still 122 L.Ed.2d gates against if death is essential would been entitled to an additional not have response to to a reasoned moral because there was no evidence instruction character, background, the defendant’s appreciate to low "rendered him unable reliability in the to ensure crime. order wrongfulness he com of his conduct when appropriate that death is the determination or that his low rendered mitted the case, specified must in a dimin to learn from his mistakes or him unable given be able consider impulses ability control ished his defendant’s evidence relevant consequences conduct.” evaluate the of his character, background, the circumstances of necessarily disagree While don’t at 61-62. I the crime. reasoning, unnecessary with this it is dicta and (internal Moreover, disposition claim. omitted) (emphasis quotations citations Court, without overrules several cases from this Supreme original). The Court concluded the Rios, supra; parte acknowledgment. See Ex statutory punishment art. 37.071 failed issues of Goodman, Williams, supra. supra; give effect with a vehicle to Penry’s mitigating 492 U.S. at capital evidence. held our 1. In operated sentencing scheme in an unconstitu- empowering jury gence the assess less tests” and that further tests would death, notwithstanding than affirmative an- have to be if the conducted determine issues, special swers the as a applicant ‘reasoned actually mentally retarded. response’ to Id., moral the fact of mental applicant 152. This held “that Court State, retardation.” Rios v. 846 S.W.2d charge to a [Williams] entitled instruct- Rios, (Tex.Cr.App.1992). appellant In ing jury the that it could consider and presented “testimony from two witnesses to mitigating effect to of his mental the appellant mildly effect that in the tested (footnote omitted). Id. retardation.” soWe Id., range.” retarded Both of the though argued held even the State it years prior witnesses had examined Rios five case, was not a because there was no to the date of the reviewing offense. After organic damage injury evidence of brain presented, the evidence this Court held: However, applicant. specifi- the this interpret “Penry our cally view there was a reasonable like- refused to to be so jury limited[,]” (citing lihood that the in this failed to Ramirez case understand that it was entitled to measure (Tex.Cr.App.1991)), S.W.2d appellant’s evidence of mental retardation held that when a fact issue is raised concern- mitigating weight may for whatever it ing mental defendant’s apart special from the issues.... Article jury allowing must be instructed a manner expressly 37.071 ... not accommo- to consider and effect to such apart date from its Id., evidence. at 152.2 special relevance issues. Without (Tex. In Ramirez v. 815 S.W.2d 636 explanation, more an instruction that bald- Cr.App.1991), again we held that evidence ly jury may tells the it consider evidence to adequately mental retardation not altogether seems either statutory punishment considered within the issues, special irrelevant to the or relevant Ramirez, Sarmiento, issues. Dr. a de sense, only aggravating likely an witness, years fense testified that six before context our scheme to confound inform_ Ramirez’s Sarmiento reviewed rather than Without clearer I.Q. wherein Ramirez On test scored 57. guidance likely it seems would cross-examination, Sarmiento he admitted appellant’s limit consideration of and, actually had never Ramirez at the seen tendency retardation to whatever it had to review, time of the Sarmiento had counseled disprove prove deliberateness or future against finding Ramirez retarded. Penry appellant dangerousness. Under Id., so, “Upon at 655. Even more. we held: review was entitled to Penry decision, of this evidence Rios, at 317. S.W.2d compelled to conclude was en [Ramirez] Williams, parte In Ex charge it instructing titled to a (Tex.Cr.App.1992), produced evi- defense give mitigating could consider and expert through appli- dence witness that Id., [Ramirez’s] evidence.” I.Q. cant had an which is considered McGee, (Tex. Id., In 817 S.W.2d 77 mentally retarded. at 151. The State Cr.App.1991), presented that evidence was testimony expert rebuttal from an offered I.Q. given who had 66 on an test witness that “mental retarda- “scored testified solely shortly “[previous tion cannot be determined from intelli- before and that test trial” important really 2. This Court found it is a in Williams are not relevant. The fact that he during prosecutor’s closing argument, danger, danger, that the evidence shows he’s a argued proof there was "no answering is the that [issue].” criteria use Id., argument retardation.” at closing argument 7. This n. fails to mention very similar to the made closing argument, the State’s it fails to mention prosecutor in the instant case: likely very argument precluded that it was [applicant] I.Q. a low "[w]hether giving mitigating effect to evidence really legislature, issue. Because the Williams, See, mental retardation. asking you [second in issue], address that n. why danger the reasons he became a only to Id., old, school the ...”3 year attended at nine provided results similar scores. conviction, possibly that he suffered grade 80. This Court set the hold- sixth aside Id., damage. at We ing: “the record reflects McGee was 385-386. from brain Additionally, mentally “jury we was retarded.” relief the granted habeas because type again importance of this of stated the giving mitigating effect precluded from Id., evidence: at evidence.” [Goodman’s] prohibits Eighth impo- Amendment of Ex Especially compelling is the case jury the of the death when sition 70,946, parte (Tex.Cr.App. No. delivered Bell express permitted not a “reasoned is 1991) (unpublished op.), where November response” to potentially moral developed by following evidence was was Because the evidence.... stepfather: Bell’s ev- allowed consider McGee’s acquainted in Question: you Did —are an of mental retardation and abu- idence IQ? way you familiar with Walter’s —are by required sive childhood as Yes. Answer: holding Lynaugh, in Court’s Question: is that? And what set aside the conviction....

Id., Fifty-four. Answer: at 80. (Tex. way Question: And it been that for

In Richard v. 842 S.W.2d Cr.App.1992), testimony at was introduced some time? phase guilt/innocence appellant’s of trial Answer: Yes. I.Q. places had that he “an score of which your it Question: knowledge, To was mentally him in the upper limits of defec Nineteen-seventy-four? way back in Id., range.” at tive witness then Answer: Yes. agreed appellant mentally was “edueable (see Bell, op. Appendix). This slip pp. retarded[,]” but then on crossexamination he presented held that “Bell sufficient Court appellant described “as slow but not retard to raise issue of his mental evidence way people ed—at least not that most retardation[,]” Id., slip op. pg. and there- (internal people, think of retarded no.” Id. fore, to consider “the was not instructed omitted). quotations This Court held: and, necessary, give mitigat- if effect to the “[tjhese quite mitigating facts are similar to ing evidence of mental retardation.” [Bell’s] those detailed Ramirez ...” and that Id., op. slip pg. 3.4 Ramirez, appellant “[l]ike tested in the ‘men Id., tally range.” defective’ 283. There holdings Ear All these were reaffirmed

fore, “appellant in entitled to a (Tex.Cr.App. hart v. authorizing impose struction 1994), this Court held: “evidence where of than on the sentence less death basis this beyond scope of falls mental retardation Id., evidence.” Id., statutory issues.” (citation omitted). added) Goodman, (emphasis Howev In Ex S.W.2d 383 er, these majority does not even mention (Tex.Cr.App.1991), cases, distinguish them attempt much less punishment hearing an had height I.Q. eight from the It an intellectual level of an or instant case.5 case, example majority’s refusal to 3. Just as in this there was no evidence I.Q. presented at McGee’s trial when his similarly persons treat situated the same. or what tests were used to measure it. measured Nor was there any testimony range McCormick, majority 5.Judge who authors the I.Q. what is considered retarded and opinion, specifically voted for or con- either indicating there was adaptive that McGee’s no every opinion discussed in curred each functioning re- was that today, to hide from this section. But effort granted tarded individual. votes, even the reader those he inform Nevertheless, Meyers Judge habeas relief. thinks that all of the above are now Instead, Judge McCormick See, of their existence. necessary. advice, namely: Ante, J., ignores his "If a (Meyers, concurring). own But our law, holding position. principle agrees in McGee then that undermines this Court Court_ ‘holding’ of this Princi- constitutes a designated publica- 4. Because Bell was not tion, value, precedential it is not cited but dishonesty intentionally intellectual long mis- This Court has will held that lead failing weigh mitigating the bench and bar to inform evidence. A defendant controlling them of to an every mitigating decisions of this Court. entitled instruction on evidence, regardless

issue raised weak, strong whether the un- II. impeached regardless or contradicted and judge A. may whatever the trial think about the v. credibility of the offense. Arnold in jury The issue is case whether the 10, (Tex.Cr.App.1987). 13 For by had a vehicle which it could the consider Ellis, parte in Ex example, 810 S.W.2d 208 However, mitigating majority evidence.6 the (Tex.Cr.App.1991), the State contended Ellis intentionally misstates the issue “The as: Penry was not relief entitled to under be question first we must ask there is whether the argued cause “evidence was not as miti any .applicant mentally is that is applicant’s gating blameworthiness the Ante, view, In pg. retarded.” 60. the crime_” Id., Nevertheless, at 211. retarded, majority mentally holds that to be held: (1) sub-average general must show: regardless ... when this evidence was (2) functioning; concurring intellectual defi- jury, ... it is before the and it (3) behavior; and, adaptive in cits dur- onset proper subject jury’s is a for the consider- Ante, ing developmental period.7 pg. the 60. answering ation when the is- done, majority What the in clear contra- question merely is whether .... sues vention precedent, of established weigh this evidence was its sufficiency before mitigating evidence consideration. and a legal establish threshold a defendant added). Penry (emphasis Therefore,

must meet be entitled to a instruc- it is clear tion. was, applicant the issue is not whether 1992, then, pies requires of stare decisis this Court follow Retardation until and even the AAMR majority opinions. I.Q. earlier This is basic so an classified individuals with score 75 and requires authority." that it no citation State v. presumptively below as retarded. AAMRMental 268, Daugherty, (Tex.Cr.App. Definition, 931 Classification, S.W.2d Sys- Retardation: and 1996) (McCormick, P.J., concurring (9th also, dissent ed.1992). Supports tems of See added). ing) (emphasis Texas, 1097, 1099, 1, n. Wills 1867, 1868, 1, (1994) S.Ct. n. Penry, supra, Supreme 6. Court was not (Blackmun, J., dissenting to the denial of certio- Penry with concerned whether was or was not rari) 31-20A-2.1(A) (Mi- § and N.M. Stat. Ann. retarded. This is evidenced the fact 1994) ("An intelligence quotient seventy chie of. Penry, Supreme granted that in Court certio- reliably intelligence or below on a administered rari, alia, following question: inter to answer the quotient presumptive test shall re- Pemy [W]as death in sentenced to violation of Therefore, tardation.”). majority both the Eighth because the Amendment hold the concurrence then to an evi- adequately to take instructed into consider- dentiary did standard that not exist at the time of mitigating ation all of his be- evidence and his trial. cause the terms in the Texas issues way juiy were defined in such that the holding especially strange light This in give mitigating effect consider and to his holding our in Black answering evidence in them? (Tex.Cr.App.1991), where we held that 313, Penry, U.S. at S.Ct. at 2943-44. change such a constituted substantial law right a defendant waive to assert did not 60, Ante, majority, pg. 7. Both the con- and the failing request object violation currence, Ante, 65, J., pg. (Meyers, 7n. concur- Id., charge (Campbell, mitigation J., at trial. at 374 ring), place emphasis much on the fact that the P.J., McCormick, concurring) (joined by Legislature adopted Texas similar definitions Clinton, Benavides, Overstreet, JJ.). Maloney and See, With the Persons Mental Retardation Act. hand It is absurd to on' one excuse a defendant (Vernon 1992). Safety § Health & However, Code 591.003 making objection request an on the but majority what both the and concur- require hand other same defendant to to mention that these rence fail definitions diagnostic meet a definition that was in exis- adopted years after were six the commis- at the trial. years tence time of his this is sion of instant after offense five See, do. The Leg., trial. what and concurrence Acts 72nd ch. Additionally, consequence effectively § even 1. this definition was not will be to foreclose adopted by Penry challenges in state American Association of Mental successful court. fact, retarded, the former version of Johnson contended but whether Ann. art. 37.071 failed to Tex.Code Crim. Proc. had a vehicle with which effect a vehicle to consider provide the evidence. mitigating evidence of

B. youth. 509 U.S. at S.Ct. at the time Johnson was nineteen Penry, Supreme acknowl U.S. 2663. offense. 509 edged I.Q. score of or below youth Recognizing “mentally retard classifies individual Court held: mitigating, ed.” n. also, supra n. Wills v. youth relevance Further, McGee, supra, note signa- from the fact that the factor derives recognized this to be “[i]n that order transient; qualities youth ture of retarded, person must considered mature, impetuousness and the individuals I.Q. score 70 on an test.” 817 S.W.2d below younger in that dominate recklessness also, at n. 15. See Zimmerman v. that years subside. We believe there can 89, 105, (Tex.Cr.App.1993) n. 14 ample is in of future room the assessment (“Penry implies I.Q. of that a with an juror dangerousness for a take account to (ci retarded.”) or is presumptively below youth mitigating of the as a difficulties omitted). pri- tation Accordingly, under the sentencing force in the determination. or the decisions both United States Su 2669. The 509 U.S. at 113 S.Ct. at Court, preme applicant's I.Q. Court and this Penry require not the Court concluded does presumptive of 67 is his mental retarda mitigating to be able majority’s holding tion that is there every in in conceivable manner evidence in applicant “no is this record relevant; mitigating it might which evi simply wrong. retarded” only dence must be within “the effective 368, 113 at reach the sentencer.” U.S.

III. also, Graham, at S.Ct. 2671. See U.S. 475-76, 113 S.Ct. 901-902. A. Collins, supra, Graham con- Graham majority goes then on to state that his jury tended art. 37.071 not allow did “[ajssuming the evidence of low mitigating evi- consider and I.Q. Penry’s somehow falls within definition background, youth, family posi- dence applicant still hold tive character traits. Ante, Penry.” is not entitled to relief under holding challenges S.Ct. 895. Graham’s (footnote omitted). so, pg. 61 This corpus habeas cognizable were on federal reasons, majority there no evi- because review, not read the Court stated: “We do I.Q. dence that his low him unable “rendered effecting change in a sea appreciate wrongfulness of his conduct constitutionality of the Court’s view when he committed the or that his statute; former Texas death I.Q. low him rendered unable to learn broadly suggest invalidity spe- his or con- ability mistakes diminished his cial issue framework.” U.S. at impulses trol his or to evaluate the conse- (emphasis original). S.Ct. at 901 Ante, quences pg. of his conduct.” I, conclusion, majority supra, To reach this re- As the discussed in cases Section illustrate, upon always lies held both Johnson v. this Court has (1993), punishment do L.Ed.2d 290 former issues Collins, for the to consider the vehicle Graham (1993), then- retardation. Neither L.Ed.2d 260 evidence of mental decisions; proposition prove impact his must Johnson nor Graham those they general proposition him affirm mental retardation rendered unable jury’s impulses is within the control his evaluate the conse- most is- quences answering reach actions. when Moreover, Penry example sues. was neither over- a classic of a who defendant should notion, rely questioned upon predicated ruled nor Johnson Graham. able to decisis, upon judicial system stare our similarly will situated defendants receive B. similar treatment. he is not so Because however, majority, states decision treated, I dissent. premised upon fact there “that his retarda- APPENDIX impossible tion made it for him at the time of appreciate wrongfulness the offense to Bell, Walter Jr. conduct or conform his conduct to the 70,946 No. Ante, Thus, pg. law.” con- cludes, so, specifically saying without there is Corpus Application Habeas requirement a nexus between the evidence of County from Jefferson and his mental retardation moral OPINION culpability. this conclusion flies PER CURIAM. precedent the face of established of this

State. post application This is a conviction corpus.1 writ of habeas Walter Bell seeks to Penry, applying most cases this Court upon set aside his death sentences based required has a “nexus the mitigating between claim sentencing jury that was not al- culpability crime.” mitigat- lowed to consider and State, 111, Lackey 141, v. 819 S.W.2d n. 10 ing evidence of his mental reli- also, (Tex.Cr.App.1989) (op. reh’g). on See service, gious allegiance, military good (Tex.Cr. State, 162, Goss 826 S.W.2d granted character. We review determine (“the App.1992) evidence must tend to excuse whether a defendant who introduces such explain act, criminal so to make Penry to a is entitled instruction. particular deserving defendant not grant applicant’s willWe claim. death.”). majority A of this Court then adopted requirement Nobles v. nexus 1974, 19, July On Fred and Irene Chisum State, (Tex.Cr.App.1992). 848 S.W.2d 503 po- home. A were found murdered their However, application in our we investigation lice led to-the arrest Walter have required never a nexus mental between Bell, Jr. later to the He confessed crimes. Richard, capital retardation and the offense. juryA Bell of capital convicted murder of (“the has Court still not Irene Chisum. After the answered the express required an showing ‘nexus’ be affirmative, statutory special issues in the tween defectiveness and death. was assessed at Bell’s trial.”). also, Goodman, the offense on appeal.2 conviction was affirmed on direct A 386; Ramirez, 816 S.W.2d at 815 S.W.2d at capital second convicted Bell of the mur- position unanimously 655. This reaf der Fred Punishment in that Chisum. Earhart, supra, firmed where case was assessed at death. Bed’s second require proof stated: “we of a nexus do ap- conviction was affirmed direct presents when the evidence of defendant peal.3 application This relates and arises mental n. retardation.” 877 S.W.2d capital from the second murder conviction. claim, support upon relies Bell

IV. Lynaugh.4 declared the obviously ignored The settled Texas death scheme unconstitutional provide applied This it law to achieve a desired result. ease is because failed 11.07, (Tex. App. 3. Bell v. Crim. 1. See Article V.A.C.C.P. denied, 1986) 479 U.S. cert. (1987). 93 L.Ed.2d 860 (Tex. App. 2. Bell v. S.W.2d 800 Crim. denied, 1979) cert. (1981). Question: you acquainted in Did —are could consider and manner which IQ? you familiar with Walter’s way effect to evidence of the defendant’s —are severe abuse and mental retarda- childhood Yes. Answer: special tion. The issues failed Question: that? And what is vehicle, ex- which would allow Fifty-four. Answer: press response” to miti- “reasoned moral way Question: has it been And gating its decision. evidence when returned some time? Court, case, remanding the Yes. Answer: that of a described evidence as Question: your knowledge, it that To background and character ... “defendant’s Nineteen-seventy-four? way back belief, society, held [supporting long a] Answer: Yes. who commit criminal acts defendants circumstances] attributable [such culpable than defendants who less no excuse.”5 have such objected to specific This evidence was neither nor This indicates that Bell controverted. court that Bell be trial recommended mild range falls within the retarda- procedural denied relief on the basis of de- applica- in his tion.8 results included test recognized fault. since in diagnostic tion that he capital show scored defendant does waive when, Penry challenge his arrest. right to assert a tests after Howev- administered trial, er, right recog- post the time was not test in we do not consider the arrest result, required nized.6 As a Bell was not support of Bell’s claim as this evidence lodge objection request trial jury. before

charge. Eighth Amend- teaches that imposition penal-

Bell that the issues not prohibits claims did ment of the death jury give allow jury permitted express consider and effect to ty when presented Although evidence he at trial. potentially response” moral “reasoned spe- be relevant to the second Supreme mitigating evidence. The Court issue, may cial it as an relevant has mental retardation determined aggravating suggests factor because type requires mitigating evidence of the “yes” question to the answer future dan- opportu- vehicle which the presented gerousness.7 When with evidence nity response. moral express reasoned reducing a potentially defendant’s moral cul- Here, Penry, instruct- pability, must allowed to evaluate and, necessary, give if effect ed consider jurors If evidence. are not afforded a evidence of mental retarda- allowing them vehicle to consider and Thus, the Unit- tion. we constrained evidence, such death holdings ed States penalty pass applied scheme as does not hold, case, Lynaugh, v. instant in the muster. constitutional applied scheme the Texas death Bell, Jr., is unconstitutional because Walter Bell evidence to raise sufficient empowered to consider the issue of mental retardation. Brown, potentially mitigating evi- step- to his

record that Earl Bell’s reflects father, gave testimony: dence mental retardation. following Id. S.Ct. at 2949. (quoting 5. S.Ct. at 7. California 538, 545, 837, 841, Brown, v. J., (1987) (O'Connor, concur- retarded, be considered order to ring)). I.Q. test. 70 on must score below n.1, 2941 n.1 (Tex. 6. Black Crim. Luckasson, Mentally (citing Retarded Ellis and J., (Campbell, concurring) (joined by App.1991) Defendants, Wash L. 53 Geo. Rev. Criminal P.J., Overstreet, McCormick, Clinton, Maloney, (1985)). Benavides, JJ). Accordingly, set aside the conviction custody

and order Bell Remanded to the County the Sheriff of Jefferson to answer the indictment.

EN BANC 6,1991

DELIVERED: November DO NOT PUBLISH

McCormick, White, J., P.J. and concur result MUSGROVE, Appellant,

James Texas, Appellee. STATE

No. 793-95. Appeals Court of Criminal En Banc. Jan. Barohn, Antonio, appel-

Nancy San B. lant.

Case Details

Case Name: Ex Parte Tennard

Court Name: Court of Criminal Appeals of Texas

Date Published: Dec 18, 1997

Citation: 960 S.W.2d 57

Docket Number: 71678

Court Abbreviation: Tex. Crim. App.