*1 admonition at issue purpose ALSTYNE, Gregory Ex Parte VAN the defendant here is to make sure that Applicant. requirement. registration knows about the already Only a defendant who knew about No. AP-75795. registration requirement, and thus admonition, would not need the would be Texas. Appeals of Court of Criminal object position in a to the absence of the Nov. However, person admonition. who did already registration know about the not know that a re-
requirement would not erroneously had been
quired admonition would, therefore, object
omitted and join I absence. therefore the Court’s
its preservation as to its discussion of
of error. it appeals
The court of erred when held preserved had not error as appellant inadequate proper admonition. The
response by this Court is to remand appeals
cause to the court of and let
consider, instance, in the first the next process-analysis of the harm
step may trial have resulted from the appel- properly
court’s failure to admonish may
lant. It seem to ineffi- some be
cient to remand when this Court can itself issue,
consider that but the role of this
Court is to review decisions of the next
lower court. In such circumstances as
these, there was no decision as to the issue harm, thus no decision on that issue for reason, I
this Court review. For this failure
respectfully dissent to the Court’s
to remand this cause to the court of
peals. *2 Dow, Houston, Appellant.
David R. for Horn, Jeffrey Atty., L. Van Aus- tin, for State.
OPINION PER CURIAM. subsequent application
This is a for writ case, in corpus capital of habeas in a which cannot be applicant claims he subjected penalty, to the death consistent Virginia,1 Atkins v. because he is mentally retarded. This found that Court application requirements satisfied the 11.071, subsequent for writ under Article 5, Section and remanded the cause to the proceedings. court for further (2002). 1. 536 U.S. 122 S.Ct. 153 L.Ed.2d law, are long they as evidentiary and conclusions of convicting court held an hearing August in late after particularly supported findings of fact and it made recommended weight regard matters with those law, recommending conclusions and, in the credibility of the witnesses *3 to life im- applicant’s sentence be reduced witnesses, the level expert case of mentally retard- prisonment because he is expertise.5 scope of their con- ed and therefore cannot be executed Eighth Amendment’s ban sonant with in the evidence In cases which punishment. on cruel and unusual After finding a that the habe- support could both independent our own review of the by a preponder has shown we will follow that recommendation. mentally ance of the evidence that he is that he has finding retarded and a failed THE LEGAL STANDARD to that mentally he is retarded show in purposes For of Atkins review confidence, de typically level of we have Texas, we have defined mental retardation ferred to the recommendation of the con “1) general significant sub-average to be court, In might whatever that be.6 victing usually functioning, intellectual evidence case, convicting court has the instant 70, IQan accompa score below that is from the Texas De considered records 2) by, nied related limitations in (TDCJ) partment of Justice Criminal 3) functioning, the onset of which occurs experts lay affidavits from various prior age post-convic of 18.”2 In people evidentiary and has conducted an review, corpus tion habeas this Court is recommended, hearing. upon has based It Nevertheless, fact ultimate finder.3 evidence, that find that the conflicting we “original court is the factfin- requi applicant has demonstrated to the der” in post-conviction corpus proc habeas site level of confidence that he is eedings,4 and as a matter of course this compelling no reason retarded.7 We see pays great Court convict deference to the ing reject that findings court’s recommended of fact recommendation. Blue, 151, 7.Indeed, (Tex. parte findings fact
2. Ex
230
163
in its recommended
S.W.3d
Briseno,
law,
Crim.App.2007).
parte
See also Ex
convicting court
and conclusions of
1,
(Tex.Crim.App.2004);
135 S.W.3d
7
Ex
applicant had met all three
concluded that the
Modden,
293,
(Tex.
parte
147 S.W.3d
296
a
of the
for mental retardation to level
criteria
Crim.App.2004); Howard v.
153 S.W.3d
beyond a reasonable doubt.
of confidence
382,
(Tex.Crim.Aрp.2004).
386
though
This is so even
declared,
page
had earlier
on the first
of its
Adams,
281,
(Tex.
parte
3. Ex
768 S.W.2d
288
conclusions,
findings
recommended
Crim.App.1989);
parte Brandley,
Ex
781
upon
prepon-
here are based
a
"[a]ll
886,
(Tex.Crim.App.1989).
S.W.2d
887-88
express
We
no
evidence!.]”
derance
660,
parte Simpson,
4. Ex
136 S.W.3d
669
respect whether the
(Tex.Crim.App.2004).
beyond
proven
has indeed
mental retardation
doubt,
finding
a
a reasonable
but note that
parte Rodriguez,
5.
Ex
164 S.W.3d
405
See
satisfy
level of confidence
sufficient to
this
J.,
(Cochran,
(Tex.Crim.App.2005)
con-
n. 5
would,
fortiori,
finding by
demonstrate a
Lewis,
curring);
parte
Ex
223 S.W.3d
evidence,
preponderance
(Cochran, J.,
(Tex.Crim.App.2006)
n. 4
showing
applicable to a
of mental
standard
concurring).
corpus
See
retardation in the habeas
context.
Briseno,
pane
supra, at 12.
Ex
E.g.,
parte Rodriguez, supra;
parte
Ex
Ex
Lewis,
Bell,
supra;
parte
Ex
walking age for the first time at the acknowledged evidentiary hearing at the talking rehable, two and support for the first time at if this four diagnosis a of mental retardation.11 conceptual, adaptive applicant’s 10. Dr. Garnett concluded: deficits in social, practical Ultimately, he skills. sum, applicant] In exhibits a level of [the testified: thinking extremely that is concrete. He lacks Q. you ques- asked a ability extrapolate abstractly. [The Prosecutor] or think beginning wheth- tion at the of his redirect impairments Individuals who exhibit in un- you changed your cer- er had mind about derstanding, reasoning, thought process things. you a tain I would like to ask applicant] adequately [the like are unable to question. you changed your Have mind manage day-to-day the demands of function- your about statement to me at the end of ing. my cross-examination that there is evidence cross-examination, indepen- supported by 11. At the conclusion of his in the record now Edgerton agreed corroborating punish- applicant’s evidence evidence in the dent trial, support interpreted” diagnosis phase of this that would "could be a ment Later, applicant] diagnosis that has mild of mental retardation. on re-cross- examination, specifically acknowledged he mental retardation? My opinion he had— that there was evidence in the record to show A. is still that at evi- that much of the information that the position The State took the dentiary hearing sup- the affidavits plicant supplied had to the TDCJ evalu- porting Dr. Garnett’s conclusion with re- inaccurately adaptive ators overstated his spect adaptive deficits were not reliable. example, abilities. For Edgerton pointed to internal inconsisten- graduated that hе had told the evaluators cies within individual affidavits as well as apparently high from an non-existent among inconsistencies the various affida- school, student, that he had been an “A” signifi- vits and concluded that there was a three spent that he had months in- danger exaggeration cant from the Corps Marine fact there is no that, although formants. He noted service, any military record of and that he IQ prompted tests had employed had been as a commercial truck prison system him special to evaluate for in fact had never had a driver when he services, concluded, ultimately TDCJ had Moreover, driver’s license. evaluation, on the basis of further includ- that, diag- if he could be established even ing administration of the test for Vineland (which Edg- nosed with conduct disorder deficits, that he could function do, testifying only purport erton did not adequately regular prison popula- probable that a full thought that he Edgerton tion.12 believed that the data work-up diagnosis), in that would result closely supported diagnosis more of con- a con- diagnosis such a would not exclude duct appli- disorder and concluded that the diagnosis of mental retardation.13 current cant did not manifest a sufficient level or adaptive dysfunction breadth of to ulti- In Dr. also evaluated report, Garnett mately justify diagnosis of mild mental according non-diagnos- *6 retardation. in tic criteria this Court identified Ex Briseno.14, parte convicting The court has аpplicant
The
countered with evidence
respect
findings
made extensive
with
that the
evaluation itself was unre-
TDCJ
the
supports
these criteria. The record
underlying
liable
the data
the
because
1)
findings
ap-
that:
the
convicting court’s
originated
score had
with the
Vineland
for
himself,
plicant’s participation in the offense
plicant
rather
than from knowl-
spontaneous,
was
edgeable
which he is on death row
third-party sources as is the
2) that his conduct
protocol.
planned;15
standard
It was documented
rather than
Q.
Association,
Psychiatric
Di-
your
I
what
is.
13. See American
understand
is,
My question
you agree
agnostic
Mental Dis-
do
with me that
and Statistical Manual of
Ed.2000),
(4th
at 47
supported by
there
evidencе in the
orders-Text Revision
is
record
("The
corroborating
punishment
diagnostic
for Mental Retarda-
evidence at the
criteria
criterion;
phase
supports the
tion do not include an exclusion
of his trial in
therefore,
diagnosis
be made
diagnosis that he
mild mental retarda-
the
should
has
met, re-
diagnostic criteria are
tion?
whenever the
presence
gardless
of and in addition to the
A. Yes.
disorder.”).
Nevertheless, Edgerton expressed
view
another
the
that the evidence was more consistent with a
14.
purport thereof, tardation, solely or the lack based parent fluidity during may the interview upon viewing videotaped interview. simply reflеcted “a learned rote have understanding [was] of his case he convicting
The
court addressed the tele-
length
vision interview at some
its find-
repeat
given
opportu-
an
then able to
ings of fact and conclusions of law. The
nity”
spent
years
he had
eleven
on
after
convicting
regarded
court
the interview as
communicating with
various
death row
specifically
relevant
in the context of one
firmly to
am-
lawyers. Unable
resolve its
factors,
appli-
of the Briseno
viz: Does the
respect
particular
bivalence with
to this
respond coherently, rationally,
cant
and oh
factor,21
ulti-
convicting
Briseno
court
point
questions
to oral or written
or do his
totality
mately
upon
relied
of the evi-
responses
subject
wander
to sub-
all of the
upon
dence as
bore
other
ject?
In its recommended
conclude that the appli-
relevant criteria to
law,
convicting
fact and
conclusions
cant had demonstrated
deficits to
judge
trepidation
court
noted with obvious
requisite
level of confidence.
conflicting opinions
experts
respect
to the interview. He remarked
right approach.
We believe this was
eye
to his untrained
Both the American Bar Association and
responses did not seem “indicative of men-
Bar
im-
recognize
the State
of Texas
tal retardation.” But he also noted that
portant
screening
defen-
experts
role
during the course of the intеrview the
issues, including
dants for mental health
respond
spontaneous
did not
mental retardation.22 There is
reason
way
questions,
“just
but instead
started
experts
important
that mental-health
are
talking.”
ques-
asked few
interviewer
process; mildly mentally
to this
retarded
tions, testifying
part
that for the most
she
their
disguise
individuals often learn to
just
let the
talk about whatever
compe-
not-
in a so-called “cloak of
topics he chose. The
disabilities
hardly
expected
be
20.
823 true, course, tenee.”23 It applicant mentally is of that ex- the is retarded. In his perts do not make the ultimate determina- expert opinion, thirty-seven-minute retardation; tion respect with to mental media interview corroborated that conclu- convicting court as fact finder original Edgerton sion. Not Dr. surprisingly, makes the ultimate determination with re- thought a different conclusion and drew retardation, spect to mental all upon based that the media interview corroborated his of the evidence and determinations of own, contrary view. This means that the credibility.24 Nevertheless, we cannot recоrd also a reasonable convicting fault the judge for enter- jurist’s conclusion that the has taining healthy scepticism a of his own by not established mental retardation a ability retardation, gauge mental vel preponderance of the evidence. On such non, upon based nothing more than his state of the we typically defer to intuitive assessment of the appellant’s per- findings recommended and conclusions during formance the media interview. here, convicting that the evi- court— preponderates finding dence in favor of a We, too, have viewed the media inter- mentally that is retarded. view. To our eye, conclusively untrained demonstrates neither that CONCLUSION retarded, mentally nor that he is not. Un- supports The record circumstances, convicting der the the convicting court court’s of fact and justified relying conclusions of upon expert law, and, caveat, Garnett, with one adopt assessment of Dr. we them.25 thirty- who has years professional Accordingly, accept five we experience as a diagnostician in the court’s conclusion that the applicant field of mental retar- has shown, dation. preponderance From his three-hour clinical inter- of the evi dence, view of applicant, range combination with he falls within the IQ testing results and his review retarded offenders about whom of the other adaptive evidence of deficits there is a national they consensus above, summarized Garnett concluded that granted, should not be executed. Relief is Edgerton, 23. See Robert B. complicating explaining become a factor in The Cloak of Com- (rev. ed.1993). adaptive functioning Professors Patton and deficits. petence Keyes Keyes, & have described James R. Patton Denis W. Death concept this as follows: Atkins, 14(4) Penalty Following Issues Excep- convey The term has often been cited to (2006). ability "The limited tionality reality many individuals mental lawyers recognize of most mental retarda- retardation, chance, given want to tion in their clients has been well document- "pass” as normal and shed the label of Luckasson, ed.” James W. Ellis & Ruth A. mental accomplish retardation. To this Mentally Defendants, Retarded Criminal goal, try these individuals will often to hide (1985). Geo. Wash. L.Rev. their deficiencies and come across as much competent they actually more than are. Briseno, parte supra, 24. Ex at 9. implications "cloaking” of this behav- ior can be dramatic when these individuals earlier, not, 25. As noted we need and there- complete are interviewed or asked to not, fore do endorse the court’s standardized instrument of behav- proven conclusion that the has *9 (i.e., format). self-report Thorough ior ex- mild mental retardation to a level of confi- person’s amination of a life and levels of beyond Implicit dence a reasonable doubt. in functioning tyрically however, reveal accurate levels finding, finding that is a that the however, functioning; of the words and ac- applicant has shown mental retardation at trying tions of an individual who is to look by preponderance least of the evidence. See good as he or she can sometimes can note ante. Gregory interact as al communicate and sentence is reformed to and the Alstyne did in the recorded television imprisonment. a term of life Van The trial court itself acknowl- interview.” KELLER, P.J., dissenting filed a edged being through that educated “before and opinion which KEASLER appearance process, [applicant’s] this writ HERVEY, JJ„ joined. on the televised interview is not one which thought this cоurt would have was indica- KELLER, P.J., dissenting filed a tive of mental retardation.” opinion which KEASLER HERYEY, JJ., joined. previously have addressed the effect We can recording appellate a video have on person the kind of who is
Is fact finding of a trial court’s of review range of impaired “so as to fall within recording clearly contradicts where mentally retarded offenders about whom testimony that would otherwise consensus” that there is a national finding. In v. the trial court’s Carmouche penalty imposed?1 death should not be officer testified a law enforcement im- particularly to be He did not seem in- gestures that the defendant had made by he was interviewed paired when con- dicating request his consent to а to television media. are fortunate to We incident had been audio) duct a search.3 The recording (including have a of video recording videotape, on and the recorded interview, and I have reviewed it. On rendi- was inconsistent with officer’s speaks fluently. recording, applicant that “the video- Finding tion of events.4 speech Both the content of his and its tape presents indisputable visual evidence person of delivery suggest manner of of contradicting portions the essential ordinary intelligence. ability His to en- held, “In these testimony,” we officer’s] thinking in abstract is reflected gage circumstances, cannot narrow we blind by his figures speech2 his use of simply videotape ourselves to thе evidence tear explanation symbolism testimony may, by fully [the officer’s] because impossible tattoo on his face. It is itself, trial court’s support” read to be convey writing applicant’s demeanor ruling.5 voice, on appear but does not retarded. the video be appro suggested that it was Carmouche to “de presented situation reporter priate felt that The news ” well; total deference’ give cline to ‘almost points had communicated his she the video findings because capacity. the trial court’s no reservations about his mental an evalua pivot “not ‘on expressed tape evidence did experts Both of ”6 In a credibility tion of and demeanor.’ reсording is evidence case, this state suggested we mental retarda- later applicant does not have un stated, Indeed, precedent made our “somewhat Dr. “I have ment tion. Jenkins or de a deferential mentally retarded individu- clear” as whether any never seen 304, 317, (Tex.Crim.App. 331-32 Virginia, 3. 10 S.W.3d 1. Atkins v. 536 U.S. (2002). S.Ct. 153 L.Ed.2d 2000). observed, Id. applicant used 2. As the trial court figures speech "fed to the various such as: trash,” lions,” 5. Id. at 332. piece away "thrown like “sacrificed,” fast,” alive,” "taken "eaten things 6. Id. "putting in God's hands.”
novo standard applies
they
intelligent
they really
to a trial court’s
are less
than
evaluation of
videotape evidence
person
depends
are. A
whose life
on a
stop
traffic
context.7
v.
Citing Anderson
finding of mentаl retardation
have
would
City,8
Bessemer
we clarified that the “al
an especially strong incentive to do so.
most total deference” standard of review Indeed,
observes,
as the
one
Court
set
applies.9
case,
In
Judge Hervey
a later
applicant’s
widely
test
scores varies
explained that
an
presented
Carmouche
enough
suggest possible
from the others to
uncommon scenario that can
result
however,
malingering.
telling,
Even more
application
of the deferential standard
is the habeas court’s own observations of
of review: “Carmouche illustrates how a
applicant’s conduct and demeanor at the
reviewing court can overturn a lower
evidentiаry hearing:
ruling by
court’s
considering all the evi
court,
personal
This
based on
observa-
light
dence in the
most favorable to the
tions,
prior
reading
Dr. Jenkins’
ruling even when there is some evidence to
affidavit,
divergent
was struck
ruling.”10
Under the appro
appearance
Alstyne
of Mr. Van
in the
circumstances,
priate
a video recording can
television interview contrasted
to his
be evidence of a compelling nature that
pearance in court. At the evidentiary
requires that we
testimony
discount
hearing,
Alstyne
Mr. Van
had an ex-
conflicts
recording.
with the
tremely flat affect. He did not interact
Such
appear
would
to be the case before
counsel,
personnel
with court
or
us. Although applicant proffered
IQ
low
emotion,
showed no
basically
sat
scores, experts
opined
who
zombie-like
his seat. This is not the
mentally
video),
(despite
retarded
Gregory
Alstyne
Van
shown
the tele-
testimony
other
suggesting adaptive
vision
tape.11
interview
deficits, the video recording starkly contra-
And the proceedings may
especially
be
picture painted
dicts the
by applicant’s
when,
vulnerable to malingering,
as in this
evidence.
case, very
objective
little
information is
But
says
the Court
we should not trust
available about the
life before
what we see and hear on the video record-
age eighteen.12
ing, because
experts,
we are not
and be-
It is clear that the trial court in this
cause
сase
people suffering from mild mental
carefully considered the
retardation can
evidence on both
sometimes wrap them-
sides of
selves
a “cloak of
the issue of mental retardation.
competence.” We
should
keep
hearing,
also
in mind
The record of the
people
who
and the
mentally
are not
law,
retarded can
of fact and
malinger,
conclusions of
reflect a
refusing
put
forth
high
their best effort on
degree
thoughtfulness
and consci-
testing and in
respects acting
other
as if
part
entiousness on the
of the court. And
State,
101,
Nevertheless,
said,
7.
v.
195 S.W.3d
the trial
“[J]ust
Montanez
11.
(Tex.Crim.App.2006).
Alstyne may
because Mr. Van
make an effort
may perceive
to act or look like what he
person
8. 470 U.S.
105 S.Ct.
84 L.Ed.2d
retarded
act
or look
(1985).
like,
does not mean that he is not retarded.”
Montanez,
9.
perhaps and Barbara Mark PICKETT conclude, the defensive evidence based on Pickett, Appellants, here, that can some offered mentally retarded un- sense be said to be v. guidelines. appli- But is der the AAMR degree that a impaired cant to such CO., MUTUAL INSURANCE TEXAS that he should consensus exists national Compensation Texas Workers’ f/k/a penalty? It is subject not be to the death Fund, Appellee. Insurance recording that he is еvident from the video No. 03-04-00374-CV. impaired. not so Texas, Appeals of Court of Moreover, apart substantial evidence Austin. recording supports the video from contention that is July 2007. retarded, testi- including expert within the mony prior and a determination total system.13 giving Even “almost
prison findings,”141 to the trial court’s
deference that evidence is suffi-
cannot conclude impaired is
cient to show that him from degree necessary exempt Virginia.
execution under Atkins v. deny respectfully I dis-
I would relief.
sent. self-reported Ac- discharged information. why applicant the inmate’s When asked
13. however, the Mentally Pro- cording Kuperman-Dominey, Retarded Offender (MROP), psycholo- records, gram clinical an associate de- any, been majority of if gist Department of Criminal for the Texas Although applicant that the stroyed. claims Justice, Kuperman-Dominey, replied, Arden was flawed because MROP determination just they said his records indicated that “[T]he de- solely upon a Vineland score was based high adaptive functioning was too for level of really self-reporting, no one rived from his report MROP stated program.” their case, or indeed the knows whether is functioning is in applicant’s "intellectual simply confirming records have whether the range and his behavior the normal destroyed sometime between been ex- Kuperman-Dominey also normal.” evaluated, when he was that, regard plained to an inmate’s suita- hearing evidentiary was held. "[tjhey usually program, bility the MROP for things and their function- have a whole list of 24, 36, (Tex. Hall v. 160 S.W.3d unit,” sociology de- ing on Crim.App.2004). confirming charge partment be in