*1 Wayne HALL, Michael Appellant,
v.
The STATE of Texas.
No. 73787.
Court of Appeals Texas, Criminal
En banc.
5,May 2004.
Opinion Dissenting from Denial of
Rehearing Sept.
the punishment phase in connection with a mitigation determination of the special is- sue. At point no did request the trial judge or the jury make a *3 specific fact-finding as to whether appel- lant was in mentally fact retarded.2 Appellant subsequently was convicted of capital murder and sentenced to death. In Burns, Danny Worth, D. Fort for Appel- eighth and ninth points of error on lant. appeal, direct he alleged inflicting the Faulkner, Helena F. Assistant District penalty death mentally the retarded Worth, Attorney, Paul, Fort Matthew process violates due and constitutes cruel Attorney, Austin, State’s for State. punishment and unusual under the United 16, 2002, States Constitution. January On this Court affirmed his conviction and sen- tence.3 In a published opinion, we held OPINION that there per was no se executing bar to KELLER, P.J., opinion delivered the of mentally retarded persons.4 We also MEYERS, PRICE, the Court in which pointed out that the presented State some WOMACK, KEASLER, HERVEY and evidence mentally was not .that COCHRAN, JJ., joined. retarded and that jury oppor- the had the tunity to observe behavior first- In accordance with instructions from the hand in a videotaped interview.5 Court, Supreme United States we recon- sider this in light case our Virgi- down, Atkins v. After decision was handed nia.1 We shall affirm. petitioned the United States Su
preme Court for a writ of certiorari. He application also filed a state for writ of I. BACKGROUND corpus, habeas pursuant to Article 11.071.6 history A. Procedural In both proceedings, of these pursued 2000, In January of appellant’s trial 20, his mental retardation claim. On June capital trial, began. 2002, murder At evidence Supreme Court decided Atkins.7 parties 5, 2002, was introduced both regarding August action, On in the habeas whether was designated retarded. the trial court the issue of This evidence was primarily introduced whether retarded 304, 2242, 1. 536 U.S. 122 S.Ct. supporting 153 L.Ed.2d those facts. TEX. R. APP. P. (2002). 38.1(f). State, 3. (Tex.Crim.App. Hall v. S.W.3d Appellant original did not contend in his (cid:127) appellate brief his brief on remand that he 2002). request, request ever made such a no such 4. Id. at 877-878. supplied contained in the record references brief, the State does not contend that such 5. Id. at 578. made, request and we have not seen request appear such a in what to be the 6. All references to articles are to the Texas pertinent portions Appellant of the record. Code of Criminal Procedure. responsibility citing shoulders the all the applicable facts and the record references 7. See Atkins. They drove her back to work. fact issue would take previously as a unresolved from store away miles Robinson twelve hearing by way affidavits. ordered a field, her Neville shot at to a remote where Supreme Court On October her. but failed to hit the crossbow and with judgment on direct vacated our in the leg shot her Appellant then the case to us for reconsidera remanded her in the gun, and Neville shot 3, pellet light tion in On December Atkins.8 Appellant rifle. chest with a .22 caliber the trial record reviewing after pellet in the with the shot her chest parties, and the affidavits submitted Rob- Neville then shot gun several times. relying upon personal recollection head, instantly, her killing inson trial,9 occurring events the habeas would worried someone because find proposed adopted court State’s *4 the noises that Robinson was hear loud law, and of con ings of facts conclusions making. and Neville returned Appellant not, fact, in men cluding appellant later. days the of the crime a few to scene 2003, February 26, we tally retarded. On keys money the Appellant took and from in application denied relief the habeas and some pocket, victim’s Neville fired findi adopting an order the trial court’s body. A into her dead few more shots ngs.10 later, police arrested the two weeks the to they men as tried flee to Mexico. History B. Factual friend, Neville, Appellant and Robert Mental retardation evidence C. pursuance kill decided to someone. In 1. Trial they purchased weap- plan, their various ons, rifles, including pellet guns, and a trial, During one guilt phase the crossbow, They along with ammunition. witness, Campbell, testi- Tamara State’s Robinson, Amy kill co- decided to former appellant’s mental abili- briefly fied about Kroger, worker at because super- ty. Campbell had been easy target. she an suf- was Robinson Kroger. When asked whether visor genetic Tur- fered from a disorder called mentally chal- appellant appeared to be result, syndrome. ner’s As a she stood “No. was replied, He lenged, Campbell only age four feet five inches tall at the mentally challenged, lazy, but he wasn’t nineteen had of a capacity and the However, according to my opinion.” grader. physically third or fourth She was Amy Robinson was Campbell, everyone. slow trusted For this rea- and challenged. son, believed she appellant Neville During punishment phase, par- up a put fight.
would not amount of ties introduced substantial in- regarding appellant’s Kro- level
Appellant Neville went to the evidence Hall, worked, appellant’s moth- ger telligence. checked Karen store where Robinson schedule, er, always her to been her then waited for testified five, At age bicycle on her than other children. ride her down the street slower stack was way persuaded go her to he could not blocks. He They work. from first they classes promised special with for a drive and education them Hall, 53,668-01, Texas, slip op. at 1- No. S.Ct. 10.Ex Parte 8. Hall v. 537 U.S. 123 (2002). 2003)(not (Tex.Crim.App., February des- L.Ed.2d ignated publication). presided Judge at both Sharen Wilson proceedings. the habeas through eighth grade, placed proceeds was of the sale of a video game con- regular grade classes ninth but could system. sole them, not handle and did not advance be- Traynor Ken shop was a wood teacher yond the tenth grade. Karen further tes- first, when went to school. At tified that appellant plays eight- like an Traynor believed was year-old and associates with children who disturbed, but he came to believe nine, eight, are years and ten old. She simply lacking intelligence. catalogued a number of areas which Appellant could not do simplest deficient, compared when tasks. He concepts could not understand ' age: others his change, could not count repetition, even after and he would not tell time from a traditional clock with remember something how to do from one hands, menu, read a public transporta- use day to the next. largely Mathematics was tion, use vacuum cleaner tearing without beyond appellant’s ability. Even the sim- bed, up, it make his and wash dishes. He plest addition was challenge, sometimes a knife; also would not use table where a multiplication while and division were sim- meat, piece of pork such as a chop, needed ply out of question. Traynor recalled cut, be up would tear it assignment one appellant eight that took his hands. He also easily became lost *5 complete, weeks to it when should have home, within a few blocks from and he However, only taken two. Traynor also often open. chewed with his mouth She appellant recalled that difficulty get- had appellant conceded that could read and ting motivated to work-sometimes he level, write at a fourth grade use the just stay would place Ap- one and sit. microwave, phone, operate a load un- pellant did successfully complete a video dishwasher, load a pencil use a and pen, game console-something actually he was sandwich, teeth, shave, make a brush his highly motivated to do. He sometimes and dress himself. She also testified that stayed late to work on it. When asked Bible, he read children’s books and the appellant’s abilities, Traynor about verbal appellant she admitted that was able to replied that appellant any did not have read enough pass well to a written driver’s verbalizing responses. trouble his (after license failing examination the com- version). puterized She also admitted that Cheryl psychologist Conner was a school appellant has at girlfriend had least one testified, at the time she but she had age, his possibly own two. taught appellant English, reading, and during math his sophomore freshman and Hall, Damon Lee older years in high school. She estimated that brother, that, testified at age fourteen to appellant reading had the comprehension fifteen, appellant associated with children first-grader of a ability and the math of a ages eight to Appellant nine. had trouble third-grader. Appellant could add and explaining things-taking long time to do paper subtract on not in but his head. He so. He could only understand directions complete could not write or they given when were sentences slowly. Appellant paragraphs significant without difficulty prompting. had understanding play how to only He pool and had could follow one instruction at a reading trouble clocks with Appellant hands. time-and sometimes he would fail at that. had trouble count- ing money and did not know when Conner had to set a five-minute task timer he was shortchanged. keep Damon appellant testified that he on task or he would fall once took advantage asleep point defi- let his attention drift to the ciency to him cheat out of some of the simply where he would sit and stare. Wech- Cunningham Dr. administered the commented that Some teachers edition, Scale, sleep Intelligence drooled in class. He would often third sler Adult assignments. (WAIS-III)to class and not do Some and obtained exam was thought appellant teachers other with a three IQ score of 67 a full-scale lazy, but Conner believed that Cunningham Dr. margin of error. percent very depressed. was She believed a 1991 exam noted that WISC-R inability things caused lant’s understand IQ with a five at 71 placed appellant’s did give up him to and tune out. She of error. At time percent margin testify apparently good was evaluation, classi- games. video disabled, at an learning as but earlier fied Intel- According to Test of Non-verbal evaluation, conducted in (TONI), IQ ligence appellant had an score had been classified as retarded. Intelligence while Wechsler Scale Bybee, interviews with Con- upon Based (WISC-R) in- for Children —Revised exam ner, (appellant’s step- Tina Dodson IQ of Appellant’s dicated an school mother), Cunningham Dr. concluded disabled,” him as “learning classified behavior defi- appellant possessed adaptive “mentally as Appellant retarded.” (1) indepen- areas: cits in seven different because, in learning disabled classified functioning (eating, dressing, trans- assessors, dent opinion failed to (2) activity (handling portation), economic up potential. live Akin as- Linda (4) (3) money), language development, us- self- appellant’s “adaptive sessed behavior” (5) (excessive ing Akin passivity), “informal measures.” concluded: socializa- direction (6) others), level of “Results showed that the student’s (ability tion to interact with *6 with functioning (7) intellectual is consistent aca- engagement, social functional behavior, adaptive sig- his or no her conclusion, Dr. support In of this demics. nificant deficits either area.” Conner following Cunningham cited observed disagreed with that assessment. Conner cards, play not appellant behavior: could admitted, however, can depression that home, nearby identify to his give directions IQ lower an score. streets, his workplace or to his travel not brush his teeth Appellant would Bybee was math teach- own. Chris knife.11 had no Appellant school He use a table during year. er 1995-96 or appellant girlfriends beyond as and diffi- or rel- characterized slow friends peer-age per- cult to could not Appellant motivate. He not atively relationships. could brief Based multiplication form or division. groups in the which name music to artists work, Bybee that upon appellant’s guessed was others he listened and amazed that IQ By- upper was in the 60s. easily Appellant do cheated could so. was unmoti- bee admitted was selling things. He was in trades and time, vated most of the was sometimes easy manipulate. to generally gullible and lazy, slept and sometimes class. very specific, concrete Appellant required comprehend was to instructions and slow Dr. was a clinical Cunningham Mark little by explain things. Appellant took forensic hired the defense. psychologist deficits, upon adaptive apparently Cunningham relied recited that 11. Dr. degree perhaps to from her pork chop apart "tore meat with his her some his or his — exempted Cunningham was fingers testimony. Al- Dr. unless his mom cut it for him.” before and Karen had testified though Cunningham did cite Karen from rule Dr. determining him. Hall one of his sources for interest cross-examination, the world around him During and dis- Dr. Cunning- played ham low initiative. conceded that had told some lies during their initial Appel- interview. Cunningham Dr. also administered the lant had gun, stated that he never fired a Range Test, Wide Achievement third edi- that he never returned to the victim’s (WRAT tion, III), exam designed to show body, and that he was under the influence a person’s ability in the area of functional of methamphetamine marijuana. Ap- Appellant’s academics. reading score pellant later admitted that he had stolen placed IQ him at an spelling his money from body. the victim’s dead Ap- IQ score at an and his arithmetic pellant also rights remarked that his IQ score at an of 55. Dr. Cunningham not been him read to when he was arrest- concluded that failing was indeed ed and that police right had no him., up to live potential, his but potential question Dr. Cunningham also testi- was mental retardation and was fied that said he was reading scoring even worse than that. Dr. Stephen novel, Cun- King novel, a Dean Koontz ningham commented on the TONI-II and the Bible. exam, yielded IQ 84, which had an called several rebuttal State wit- saying potential inaccuracy that the nesses. The first Dr. J. Randall high. test was The TONI test was Price, a clinical and psychologist forensic designed primarily for students who were neuropsychologist. and a Dr. Price ac- test, difficult to they sometimes because cepted the results obtained Dr. Cun- speak English,
did not paralyzed, or were ningham’s IQ testing14 but differed some- or had some other disability not necessari- what as to significance. their In Dr. ly related to intelligence impeded estimation, Price’s appellant might be bor- effectiveness of the comprehensive, more derline rather than retarded: individually-administered intelligence ex- Q. you Were able determine wheth- ams. Dr. Cunningham observed that the er or not Hall Michael TONI-II only exam was fifteen minutes retarded?
long, individually-administered while an in- Well, A. I’m not as convinced that he is telligence exam took one and a half hours. as Dr. Cunningham is. He is *7 addition, In the TONI-II was adminis- borderline, level where it’s either right group setting, tered a retardation, which made at the level of mild mental cheating (looking on paper) mildly mentally someone else’s he’s retarded. It’s— possible. Dr. it’s sort a call. Cunningham judgment of concluded that appellant would “mildly be classified as Dr. engage Price did in his adaptive own mentally retarded” under the DSM-IV12 testing, using behavior the Street Survival classification Dr. Cunningham scheme. Questionnaire. Skills of The results noted that was exempted testing showed appellant’s adaptive skills taking from “pretty TAAS13test. to be average.” Appellant was Diagnostic testing. "practice and Statistical Manual own effect” occurs Association, IQ Psychiatric American edi- subject’s knowledge previous where a of a fourth tion. test affects the results of a test administered Price, shortly According thereafter. to Dr. a 13. TexasAssessment Academic Skills. testing six-month interval between is deemed necessary phenomenon to avoid and to this phenomenon "prac- 14. Due to a known as the yield findings. a valid set of effect,” tice Dr. Price could not conduct his formally qualified time, never using Although he was in three areas: borderline experience aver- Boles had some expert, and measurements. He was as an money, tools, domestics, safety, at the health and retarded: age dealing with services, functional a testimony, and the use of personal part his he was time of signs.15 teaching sports to program challenged children. that, during Dr. Price further testified act- appellant, appellant his interview Zepeda Monica also called The State young like an adolescent or ed and talked she Zepeda testified the stand. fluent, articu- spoke Appellant adult. visit- at a restaurant as a waitress worked manner about his crime and related late Appellant and Neville. by appellant ed coherent, way. logical in a His events catfish) (fried meal ordered his own logical, were on thought processes topic, in a eating utensils to utilize appeared thought goal-oriented. Appellant’s Rich- Finally, Detective normal manner. “pretty to flow normal- processes appeared appel- that he had read ard Nutt testified like a normal ly” and the interview was 38.22, mandated Article warnings lant conversation. to understand appeared cross-examination, Dr. Price tes- During warnings. those that, taking margin into account the tified appellant’s witnesses discussed Several error, IQ Cunningham’s Dr. exams to sev- injuries. Karen Hall testified head yielded IQ range an of 64 to 71 injuries sustained eral head IQ level. percent within confidence that, during childhood. She admitted his yielded IQ range an testing age twelve incidents, of those several confidence percent of 68 to within alleged that hospital. not taken to a She response questioning, In to defense level. to a caused him to be taken three incidents that appellant Dr. Price also remarked one, In a trailer fell on hospital. the word “concordance” on his own. used diagnosed ap- doctors lant’s head and the tests, IQ In Dr. comparing Price estimated slight concus- probably having a pellant as IQ Dr. right to be around 70. incident, eye he cut his In a second sion. could not Price conceded In the had to have stitches. open and percent think or as well as 97 to 98 as fast incident, inju- whiplash third he suffered redirect, population. of the human On Dr. Karen admitted ry in an auto accident. that, during Price testified interviews with the most serious that a concussion was Cunningham, appellant himself and Dr. injury appellant had sustained. variety of statements minimiz- given variety ing role in the offense and a reported obtain- Cunningham Dr. While participating in the offense excuses for injuries from ing information about head etc.). it,” (alcohol, “out of drugs, being members, family he acknowl- *8 involving a only one edged that Boles, college eighteen-year-old Alan an incident — in- be laceration of nose—could freshman, At Boles age also testified. in medical records. dependently verified Kroger along appel- with had worked that there Cunningham also admitted Dr. taught appellant lant. Boles testified that verify that medical records to were no groceries. him to Boles never how sack Dr. suffered a concussion. appellant ever anything appellant. “slow” about noticed utensils,” appellant found was appears and in which examined in detail what 15. Dr. Price these, subcategory denom- average. of one of to be to be tools, appliances, use of kitchen inated “the participated in- an inter- Cunningham Appellant further testified that head also interview was view with Fox News. This juries relatively minor role his played videotape was later videotaped, and the evaluation. jury. videotape, the played to the On the materials re- Dr. Price did not find fluid, appellant’s speech was smooth and injuries particularly to be garding head thought processes appeared to be and his view, significant. In his the incidents did logical.. He stated that the coherent and injuries enough serious to represent us; “she trusted victim was chosen because any injury. cause brain easy.” bragged it He about his role was types note several other of evidence We murder: could not have accom- Neville question that relevant to the might be it it plished on his own because was whether is or is not him. got lant who the victim to trust Cunning- Hall and Dr. retarded. Karen would have appellant, the victim Without Ri- given ham testified that was acknowledged that he escaped. Appellant Karen talin for attention deficit disorder. killing punished and Neville be would physically that appellant also testified was victim, expressed hope he that and boyfriends. abused one of her Dr. He penalty. he receive the death would Cunningham testified that penalty he had a wanted the death because that included family atmosphere was in a that had “sueky-ass life.” He indicated alcoholism, vi- maternal observed domestic tried to take his own life before but olence, abuse, physical traumatic sexual life your failed: “You can’t take own but experience, parental neglect. and can take someone else’s.” He stated you current, execution, that method and actions are Appellant’s own words sleeping, one to die was trial, which allowed inquiry. At also relevant this or the electric gas better than the chamber motion to remové pro wrote se thought killing the victim would chair. He attorneys. motion discussed his penalty the death good way get be a parte hearing, pres- in an ex outside the happen is what would because Al- prosecuting attorneys. ence family person someone who killed a though only the motion contained facts and asked wheth- that cares about her. When law, Cooke, hearing Judge judge no media, to the er he was forced to talk motion, commented that it was “well told, responded that he was and that he could “name some drafted” understood, to. that he did not have attorneys that can’t draw an instrument Judge any right better than this now.” corpus 2. Habeas this mo- further commented Cooke State, affidavits of two tion, Appellant submitted the if discovered used opined who attorneys’ psychologists “di- additional damage appellant’s could Sally mentally retarded. showing appellant was capacity” strategy by minished counselor, Church, professional a licensed actually “pretty bright,” family therapist, complicat- marriage licensed capable drafting to be such discussion, psycholo- nationally certified school ap- After some ed document. Oklahoma, ap- motion, evaluated gist, licensed in decided to withdraw pellant family upon his condition based transcript pellant’s ordered that the judge and the *9 medical, school, jail, employment, history; hearing of the be sealed.16 in the was also included hearing transcript was avail- a sealed version copyA 16. although proceedings record. during the direct able habeas records; evaluations; genetic and that prison previous teristics resemble other disor- court investigator’s reports; testimony XXY, and Syndrome; ders such as Kleinfelter affidavits; psychodiagnostic a YYX, Chromosome; and evalua- Fragile Extra X Y by tion conducted at the of her Syndrome. noted that all of these dis- She prison. testified that appellant’s Church orders are related to mental retardation alcohol she preg- mother drank while was present and are at birth. nant, difficulty depression, had with was Denkowski, George psychologist Dr. in education special during public served licensed of Texas and certi- State school, overwhelmed, and anwas frustrat- Department fied the Texas of Mental ed, abusive, neglectful and parent. Health and Mental Retardation conduct further testified that Church was of purpose diagnosing evaluations for the kindergarten in as being
identified behind retardation, expressed developmentally, his norm age that he was that opinion appellant is retard- education special throughout served his He ed. noted that a WISC-R test admin- attendance, public that dropped school he (at twelve) age istered to in 1991 grade, out in that the rec- eleventh school IQ resulted in a full-scale score that he be identified ommended as Mental- age TONI-2 test at administered re- ly but his mother Handicapped declined— sulted and a TONI-8 score test him as wanting Learning identified Dis- administered in a age 20 resulted score abled—and that he was never able to learn However, of 77. he considered the TONI math, spelling, and reading, writing be- general tests to be “unreliable indices yond grade the third level. She noted that functioning.” intellectual Dr. Denkowski he problems large- had vision could be Cunningham’s also relied Dr. upon ly glasses corrected with that he was adaptive upon based in- deficits evaluation having hearing assessed as problem Bybee. And terviews with Conner and school, elementary but there no fol- was upon relied administered the WRAT-III low-up hearing on the extent of his loss. by Dr. the K-FAST17 Cunningham and that, by ten, She age stated by Dr. Price to test administered show lant “experienced injuries, eleven head appellant’s academic skills were seri- several of which resulted concussions.” ously deficient. The K-FAST test results She also noted that had been indicated that arithmetic skills prescribed inattention, impul- Ritalin for reading proficient were less than skills sivity, hyperactivity. In opinion her percent those of 99 and 95 percent retarded, appellant mentally being less same-aged persons, respectively. Finally, intelligent percent than 98 the human Dr. Denkowski criticized the Street Skills population, IQan score of 67. She Questionnaire being an Survival as inaccu- stated that has critical deficits diagnosing rate tool for mental retardation adaptive skills behaviors and that it is per- in an adult. Dr. Denkowski did he alone “highly doubtful that could meet sonally appellant. interview day day his life.” needs of Appellant also submitted affidavits from physical She also stated attorneys, his trial a fellow death-row in- appearance unusual. She character- mate, investigators, private ized two defense appearance typical of Fetal All of these Syndrome people or Fetal Effect. and former teacher. Alcohol Alcohol opined She that he also exhibited charac- re- stated Functional Academic Skills Test. Kaufman *10 Harris, again. and over Coble stated that tarded. one of the over William very upset to learn about attorneys, stated that he had numerous against Kroger suit himself and re- civil opportunities to observe men- Appellant death. that, garding Robinson’s found even tal limitations. Harris get penal- another death thought he could multiple explanations, after ty from the civil suit. parties grasp could not law why parties made him liable the law Ward, investigator ap- Joseph private capital Appellant for murder. also had pointed to assist the defense in habeas things little cost or or no sense what corpus proceedings, stated that may jail to a what or not be available subject ability to understand the of conver- ap- Harris inmate. also commented appeared significantly sation to be less fairly masking at his pellant adept “was age. Appellant’s than that of others his you only if deal with retardation childlike, inap- demeanor was and he acted him superficially.” age. his He could propriately someone meaningfully or relate events not recall Conner, appellant’s Paul other trial at- difficulty surrounding his arrest. He had torney, stated that would ask the remembering private investiga- the other an questions day day- showing same after — just been though tor’s name even he had inability grasp the an- to remember or Appellant name. did not know told the mask his retarda- Appellant swers. would words, use meanings many would He by asking questions. tion not would mispro- inappropriately, words would sometimes sound more informed on a sub- investiga- private nounce them. The other ject expected, than but this was because tor, Ladd, John stated that he parrot phrases would words and and talk- span an attention of five minutes heard, grasping meanings. their without talking him to a six- or ing to was like inmate, Coble, Bill death row fellow child. seven-year-old occupied immediately adjacent a cell Dollar, attorney a licensed Stephen appellant’s. appel- Coble remarked action, the time of the habeas prison lant was called “Half Deck” history during the lant’s world teacher guards and other inmates on death row. year. 1995-96 school Dollar testified appellant as slow his He characterized not instructions appellant could follow Johnny Pen- thinking and “worse off than Ap- complete assignments as distributed. ry” Appellant he also whom knew about. ability in cognitive pellant displayed no meanings could not learn the of new demonstrated behaviors classroom and words, meanings over even when told their diagnosis a child with a similar to those of lack of under- again. and over Due to his not re- He would of mental retardation. money, not handle standing of he could upon called spond to his own name when commissary. buying prison items from the and drool and would stare out the window every day Appellant had be reminded could Appellant most of the class hour. himself, shave, clean the toilet. wash tasks, most menial of accomplish keep how to He also had to be reminded to accom- they simplified even when were bedding his container and his clean. food needs. He special education modate out” for- Appellant “space would often friends, and he was appeared to have no just done. He listened to get what he had students. object an of ridicule his fellow (on a cartoons on the radio television controverting affi- presented what he The State setting) parrot sound and could heard, guards something prison he has heard davits. Five if it was —Brandon *11 Daniel, to indicate that he is Prosperie, anything appellant Perego, Julie Suzanne Tatum, and Darrell mentally Todd White —averred retarded. mentally not retarded. appellant is appellant also worked around White had Daniel, assigned who was to that he had months. He stated for three week, day ap- area one said that about ap- about anything unusual not observed anyone as normal as in his pellant “acts ap- appellant and that pellant’s conduct further that he “had been pod.” He stated He “just a normal inmate.” peared to be mentally” people around who were slow failing to problems appellant no had that in” Fur- appellant. but had “not seen to anything appellant understand he told ther, there was no indication that showers, brushed his Appellant do. took obey orders and did not understand how teeth, activities. and did other normal Daniel’s obser- prison
follow rules. Under mentally re- had an uncle who was White vations, in- “just was a normal repeatedly and had to be told what tarded mate.” do, nothing was like his Perego prison arrived at the unit Since stated, uncle. further “I have seen White “nothing June of she saw unusual” my of Michael Hall nothing observations appellant’s conduct was “different mentally that makes me think he is retard- from the other inmates.” She [that of] ed.” characterized his behavior as “normal” said that she never had to him tell what presented The affidavits State stated, do more than once. She further “I Referring opinion given Dr. Price. to his anything have never seen make would trial, Dr. Price stated that mentally me think Hall Michael retarded “intelligence fell either in the borderline my pretty and he seems normal to me = (IQ range functioning of intellectual 70- of him.” observations 84) or in the end of mild mental upper Prosperie appellant, average, saw two = 70).” (IQ 50-55 to Based retardation days “just Hall seemed like week. and rec- upon his review of various tests normal inmate.” He socialized with other ords, opined Dr. Price was inmates, and nothing there was unusual significant have poor student but does not about his conduct or attitude. re- She “My re- adaptive deficits. He concluded: filthy, marked that his cell was but it was clearly indicate of this case does not view so his choice. that she She stated mentally retarded.” that Michael Hall is any signs or seen mental retardation affidavit, Dr. response In to Dr. Church’s him, illness since she had been around did not exhibit Price stated that experience she had some with mental re- signs symptoms genetic or associated with neighbor’s daughter her tardation because Syndrome, Alcohol disorders such as Fetal retarded. She had never Y Syndrome, Kleinfelter’s Extra Chromo- to as Deck” heard referred “Half some, Fragile Syndrome. X by anyone. appellant, In his three months around II. ANALYSIS nothing about Tatum “observed unusual” Although appellant’s hygiene him. A. considerations General best, system not the he had “learned Atkins, Supreme In Court held doing. and understood he was here” what Amendment’s “cruel Eighth that the Tatum some children in school with knew punishments” prohibits clause syndrome, but he had not seen unusual Down’s (1) subaverage general persons.18 “significantly retarded tics: execution (an IQ functioning” of about 70 Supreme Court left to the States intellectual *12 (2) below), procedures limitations fashioning appropriate task of “related (3) mentally in fact determining functioning,” for who is onset of the adaptive retarded: age eigh- characteristics before above two Expert testimony is relevant to a teen.21 disagree- To the extent there serious is fáct-finder’s determination of these factors mentally ment about the execution of necessarily sep-A but is not conclusive.22 offenders, determining it retarded is jury determination of mental retar- arate faqt offenders are in retarded. In which at required,23 dation is not least instance, case, for the Common- this corpus, shoulders habeas the defendant Virginia disputes
wealth of that Atkins showing his mental retarda- burden Not all suffers from mental retardation. of the evidence.24 by preponderance tion mentally claim to be retard- people who total deference to And we afford almost to fall within impaired ed will be so fact, findings especially judge’s the trial range mentally retarded offenders findings upon those of fact are based when is a national consen- about whom there credibility and demeanor.25 approach As our in Ford v. sus. 399, 106 Wainwright U.S. S.Ct. [477 Briseno, case is still present Unlike 2595, 335], regard 91 L.Ed.2d often pending appeal. on direct Issues are insanity, “we to the the task leave State differently corpus evaluated the habeas ways to en- developing appropriate appeal contexts. Some claims and direct- upon
force the constitutional restriction
appeal
fail on direct
because the record is
its execution
sentences.”19
developed
sufficiently
to evaluate
with inef-
claims. This occurs most often
context,
In
we recent
the habeas
Oth-
fective assistance of counsel claims.26
ly
temporary guidelines,
be
adopted
a differ-
er claims
be evaluated under
during
legislative interregnum,
used
(more onerous) standard in the habeas
ent
determining
whether a defendant
is
context.27
appeal
context than
the direct
guide
retarded.20 Under these
are material
lines,
Neither of these differences
considered
re
person
to the case at hand.
if he has these three characteris-
tarded
context,
321,
especially when counsel is
counsel
18.
direct
record
submission We
because,
time,
judicial
appeal
on direct
of the
perceive
at that
we did not
take
notice
and consider the evi-
proceedings
mental retardation as a bar to execution. habeas
hearing.36
developed at the habeas
But the trial court and this Court did have
dence
the benefit of Atkins
Finding that
the defendant was without
during
the habeas
trial was
when the motion for new
proceedings.
parties
ample op-
The
counsel
State,
(Tex.
Id.
at
v.
29. Id. 35. 68. Id.
30. Id. at 64.
31. Id. at 68. 36. Id. case, we components.40 present In the filed, of his new- its the merits we considered light claim ly compara discovered evidence retardation is decide points habeas record and overruled defense, thus, affirmative ble to an error.37 always upon the defendant burden is by preponderance that condition prove with present case is on all fours
The
ease,
So,
prov
we are faced
the standards
as in that
the evidence.
Huffman:
an issue
has
appeal
a direct
on ha-
retardation at trial and
ing mental
on habeas
already
presented to us
been
same,
resulting
and the
stan
beas are the
address
corpus. Consequently, we
findings
a trial court’s
dard of review of
light
of both
lant’s mental retardation
the same
against the defendant are also
and the habeas records.
appeal
the direct
both contexts.
vein,
reject any notion that the
In this
we
must be
record in this case
direct
The
for this conclusion
groundwork
additional, habeas
viewed
isolation.
There
laid in Briseno.
already
has
been
us;
it into ac-
taking
evidence is before
issue mental retar
we observed that the
*14
and ac-
necessary
complete
for a
count is
insanity,
to the issues of
dation is similar
capa-
intellectual
curate view of
trial,
competency
competency to stand
bilities.38
impose upon
of which
to be executed—all
of the evi
preponderance
the defendant
proof and
C. Burdens of
proof.41
of
We now
dence burden
of review
standards
issue
that the mental retardation
observe
evaluating a
for
That standards
a confession-and-
could be described as
to ha-
appeal
differ from
claim sometimes
type
punishment-mitigating
of
avoidance
no
here. While
beas is also of
concern
factor,
make it like several
which would
to a
appeal
apply
standards
direct
factors
statutory
punishment-mitigating
though the
appeal
claim on direct
even
as
carry
proof
same
standard
that
the
in
supported by
evidence obtained
claim
in
passion
affirmative defenses:
sudden
corpus proceedi
noticed habeas
judicially
context,42
release
a safe
the murder
component of a
if a substantive
ngs,39
kidnapp
aggravated
of
place for the offense
already contains a
particular type of claim
for the of
imperfect renunciation
ing,43
appli
the
equals
that
or exceeds
standard
and,
activity,44
organized
criminal
fense
corpus, then the
on habeas
cable standard
imperfect renunciation
by
arguably,
claim
at least
analyzing
the
inquiry collapses
(apply-
at 68-69
Huffman, 479 S.W.2d
39. See
37.
Id. at 68-69.
newly
for
ing
new trial standard
motion for
Moreover,
hardly complain
appellant can
38.
evidence).
discovered
to limit its
appellate
an
court's failure
about
appeal record when he
review to the direct
Fierro,
record, the reviewing courts do not have to make vantage point best from which PRICE, J., concurring opinion filed a testimony Live factual determinations.2 COCHRAN, J., joined. which to observe a convicting allows the court demeanor, signifi- which can add witness’s JOHNSON, J., dissenting opinion a filed credibility determina- cant information to HOLCOMB, J., joined. in which Also, may opposing tions. counsel cross- HOLCOMB, J., dissenting a filed content of a examine witnesses to test the testimony. valuable as- opinion. witness’s These Although L.Ed.2d is not entitled to a re- 1. 536 U.S. 122 S.Ct. record, (2002). we note view limited to the trial holding change if we consid- our would not State, only at ered the evidence submitted trial. A 2. See v. 88 S.W.3d Manzi J., (Cochran, mentally (Tex.Crim.App.2002) conclusion that is not re- concur- supported by ring). tarded is the trial record. pects testimony during phase not of punishment of live are available duced the the time, by original a affidavit. trial. At that mental retar- hearing factor, mitigating dation was a not dis- Code of Criminal Article Procedure ineligibility for the positive issue as 9(a) 11.071, the Section states resolve “[t]o convicting jury penalty; death the the [previously unresolved] fact] issues [of of considering part limited to it as the [convicting] may require the court affida- issues, the particularly on issue of special vits, interrogatories, and evi- depositions, dangerousness. trier of future No fact dentiary hearings personal use testimony, case this has ever heard live But, convicting if the recollection.” court cross-examination, subject testing on hearing by affidavit, conducts a and the specific of on issue whether for inadequate affidavits are to review us at hearing is retarded. The is- findings, the convicting court’s will be we only, sue here had on affidavits thus convicting forced to remand to the court Appellant’s claim that he is re- hearing, especially if parties live tarded, subject to and therefore is not ex- objections voice to the convicting court’s ecution, directly has never been thor- findings. The best course to resolve oughly litigated. Atkins claim is to hearing contested hold a live, That a hearing contested is neces- testimony at which live is received. sary is clear from an examination of the comments, join I majori- With these at trial. conflicting evidence adduced A ty- summary testimony short from the punishment phase illus- JOHNSON, J., joined dissenting, trates this. HOLCOMB, J. theOf fourteen defense witnesses whose Retardation, I dissent. respectfully like testimony about mental abili- fact, insanity, question is not law. We hearing ties was at the considered may speak satisfying legal standard also testified corpus, writ habeas five at for insanity, assign but we the task trial and had extensive contact with determining if a defendant was insane Hall; mother, brother, lant: his Karen fact, of the offense to the time finder of Hall; Traynor, Ken Damon and teachers case, usually jury. In this the trial Conner, Cheryl Bryce. A psy- and Chris court finding of fact (applicant made chologist, Cunningham, Dr. Mark tes- retarded) solely based on affidavits tified at trial. Four others with extensive (written statements) factual and from contact with testified affida- (un- finding legal fact drew a conclusion *17 corpus; on the writ a teach- vits of habeas Virginia, der Atkins v. 122 U.S. er, Dollar; trial Stephen attor- 2242,153 (2002), S.Ct. L.Ed.2d 335 it is not Conner; neys, Hams and Pat and William him). to execute unconstitutional inmate, Bill another Coble. death-row This case was tried before the United private The other were two inves- affiants Court decided Atkins v. Supreme States trial attor- tigators by appellant’s hired Virginia, 536 U.S. S.Ct. Ladd, neys, Joseph and John and Ward (2002), radically changed L.Ed.2d 335 and Denkowski, George psychologists, two Dr. are not free to that ignore law. We Akin, Linda an Sally and Dr. Church. change. district, did not employee of the school testify an affidavit. all of the evidence has at trial or submit She Almost that been by either ad- was in Dr. Conner’s testi- brought forward side was mentioned Penry, opinion, appellant and in “is mony response question to a from Johnny Penry.” worse off than prosecutor during of Dr. cross-examination regarding IQ test that was Conner claimed Of the ten state witnesses who part done Garland schools as of the personal appellant, contact with none had comprehensive individual assessment.1 It appel- contact lengthy extensive or not certain that Ms. Akin even wrote Price, psychologist, lant. Dr. Randall a discussion, any assessment under and A1 single appellant. had a interview with case, that assessment not admitted taught that him how Boles said into evidence. bagging perform simple to task testimony, question- groceries. His under here are the affi- particular Of interest state, ing by largely consisted attorneys and others davits of of the mental limitations of comparison for helped prepare appellant’s who case of the victim. Monica appellant and those attorneys appel- trial. that Both attested single had a Zepeda was waitress who lant listen to the question, would ask appellant. repre- contact with The state answer, understood, say that then re- he sented to the trial court that she was able very ask within a short question the same no re- testify to showed minutes; time, sometimes within morse; testimony no such was elicited. understanding many showed little to no Nutt, detective, testified that he Richard aspects They recog- of trial. soon warnings the Miranda read appellant “bitterly nized that did not want lant, he believed ” people to think him and would ‘dumb’ had looked understood them because he phrases he had heard in parrot words eye Nutt in the and said he understood. appearing an effort to avoid so. Both prison guards of the five affidavits investigators attested that be- conclusory state- each consist of a few ways age inappropriate haved to his ments, infrequently repeti- are which did not seem to be able to recall events in these Many tive. the statements such as his arrest. Mr. Ladd recounted affidavits, have heard Michael such as “I appellant thought very himself clever cell,” helpful Hall’s radio on in his are not being extra food for an get able abilities. assessing appellant’s when, evening reality, snack he was row once Brandon Daniel worked on death merely supper for later. saving some of his on Prosperie a week. Suzanne worked occupied Bill has the cell next to Todd Tatum Coble death row twice a week. has on death row for long as been Darrell White worked Pere- been on death three months. The affidavit Julie death row. Mr. Coble has conclusory state- time, general, long Johnny go Paul consists of 6 row for knows Q: Q: Now, thing Okay, you agree with it? Okay. I do one other wanted you ask about. On the assessment that was A: No. Q: during testing, says, maybe Okay. you prepared that done it Do know who —and me, you interpret report? this for student's can —"The using adaptive prepared infor- behavior was assessed last one was A: I believe the *18 mal measures. Results showed that the stu- Linda Akin. Q: functioning is con- sorry. dent’s level of intellectual I’m Who? behavior, adaptive sistent with his or her with A: Linda Akin. Q: significant area.” no deficits in either Okay. dis- And is she with the school you they trict? meant that? Do know what Yes, Yes, A: she is. A: do. I is not to know that ments, including perie “I have on this unit claimed been neighbor’s daughter I around retarded her since June 2001 and have been because not know the extent of Hall at different times.” is retarded. do Michael We it manifests that retardation or how child’s many can arise in Mental retardation and behavior. Mr. White appearance on Birth De- ways. The National Center is not retarded because said that Developmental Disabilities2 fects retarded, is not his uncle is may that retardation occur before states Boles, looking uncle. Mr. back like his birth,4 birth,3 from during or after birth offense, says that the time of the injury.5 disease or The United States Na- retarded, that and the state asserts is not Library tional of Medicine lists more than judgment that qualified Boles is make causes, being forty largest category mentally chal- works with because he now are, in unexplained.6 Many persons who lay Each of these wit- lenged children. fact, normal mentally appear retarded appear judged appellant’s to have nesses eye to the untrained or on casual contact by personal standards capacity mental manner of and are not identifiable their very by personal experience formed single A ca- speech appearance. or their persons. Given small number of retarded contact, waiting mildly such as on a sual range of manifestations of mental the wide restaurant, in a mentally person retarded witnesses, retardation, although sin- these a high probability revealing has of not cere, or train- experience do not have the retardation. the mental ing any to make assessment of Lay persons often have unrealistic ideas appellant. abilities of persons about what retarded look Price, Dr. psychologist, Even the state’s they like and how act. There is wide appeared to be uncertain as to range encompassed by of abilities the term that testify abilities. He did not mental retarded”; “mentally applies the term is not retarded but equally to those whose are able to live of this case does rather that his “review independent successful fives and to those clearly [appellant] indicate that is men- live and in a vegetative who die state. Mr. retarded,” ap- tally and he conceded Tatum attested he “knew some kids in the bor- pellant’s intelligence “fell either syndrome” school with Down’s and that functioning range derline of intellectual appellant is not retarded. It is well known = 70-84) of mild (IQ upper end syndrome Down’s creates distinctive 70).” (IQ mental retardation =50-55 to If physical appearance. syndrome Down’s of mental retardation en- diagnosing is Mr. standard for Our definition Tatum’s retardation, course, ranges. of both Dr. Price compasses parts then of is no doubt that eyes. “[t]here lant is not retarded Ms. Pros- also stated HIV, asphyxia, http://www.cdc.gov/ncbdd/dd/ddmr.htm. include: 2. 4. Such causes trauma. birth 3. Such causes include: an error in number of (Down’s syndrome), chromosomes defects in stroke, injury, 5. causes include: head Such X, (fragile Angelman and Prad- chromosomes malnutrition, meningitis, poisoning, very lead syndromes), missing er-Willi chromosomes levels, high bilirubin and abuse such as shak- (Cri-du-chat syndrome), mis-located chromo- ing. somes, (phenylketonuria), disorders metabolic (rubella, drug disease or use fetal maternal http://www.nlm.nih.gov/medline- syndrome, amphetamine cocaine or alcohol abuse), plus/ency/article/OO malnutrition, 1523/htm. physical maternal (hydrocephalus). abnormalities *19 in ‘dummy’ to a intelligence poor appear Hall and vation is to be Mr. has low ” to academic abilities.... order to mask his deficits. He tends say he others to say what has heard and/or argues appellant’s assign- state that say expect him to what thinks others special classes was ment to education coping at all as a say. This is not unusual disabilities,” claim “learning on based mentally pop- retarded mechanism that is records that indi- refuted school ulation.” designate cate that the school wished to retarded,
him did not do as but limited mental persons Nor are with request. so at mother’s The state con- foibles, human immune from other abilities appellant’s applica- ceded in its answer to may A motion lying. such as well-drafted appellant passed tion for that writ jailhouse of a skilled writ product be the portion driving license ex- written mental writer. Persons with limited abili- only after his mother worked amination extremely well in structured ty often do days.7 with him for three The state fur- environments, I cannot think of a and urged that the trial court should en- ther than death more structured environment tirely testimony of Dr. Church ignore row. because, having cre- although appropriate hearing full may very It well be that a dentials, psychologist she was licensed as a retardation, claim of on only in Oklahoma. opportunity with the to cross-examine wit- I am loathe to find that is not significance of their argue nesses finding retarded when that is testimony, would establish lay of a largely opinions based on the store However, we will never not retarded. waitress, boy, supervisor, bag and five hearing full know unless we order that prison guards, expert and the opinion testimony us the tested have before both psychologist who could not reach a definite in the persons knowledgeable who are conclusion, especially when all had limited lay and relevant testi- mental-health field I am appellant. unpersuaded contact with mony adaptive about his behavior. bragging using big words I dissent. respectfully to classic literature estab- claiming read is not retarded. If lishes J., HOLCOMB, dissenting. is, fact, retarded, his state- that, dispute general, I this do not he, only ments establish like judicial notice on properly can take Court many persons, retarded wishes to be re- proceeding, of a habeas con- direct and that garded as “normal” “smart” hearing developed evidence sider the will ways he will behave that he thinks habeas, total defer- and afford almost such, just regard him as as cause others determination of judge’s ence to a intelligence normal will be- persons with by the record. supported historical facts ways perceived produc- that are have case, However, determining appel- in this As Dr. Church noted ing acceptance. by con- lant’s claim of mental retardation affidavit, difficulty “had her developed on habeas sidering the evidence of a doing the work requirements adduced at trial does in addition to that bagging gro- ‘stocker’ and was demoted stated, appellant with a constitutional- provide main moti- not “His ceries.” She affidavit, driving pass test. attests that never able Dr. Denkowski In his try passed but was on the third
45 Barring in Briseno. to ulated course of ly opportunity process sufficient action, Also, I would find that a jury his claim. based on the defi- rational resolve proceeding, significant in the we found that the ciencies habeas could have evi- not, case, in trial should this afford the in a finding adduced favor of dence finding on almost def- court’s habeas total outweighed retardation the signifi- mental erence. against evidence adduced such find- cant I ing. would therefore find that many my
I for discussed reasons granted met his burden to be the relief has my paite these conclusions in dissent in Ex seeks, commutation to a life sentence. Briseno, including Ring the fact that v. Because this Court follows neither course Arizona, 584, 2428, 122 153 536 U.S. S.Ct. out, I respectfully I have laid dissent. (2002), jury requiring L.Ed.2d 556 deter- issues, applies to men- mination of certain this Recognizing
tal retardation. MOTION ON APPELLANT’S in is now majority holding Briseno Court’s REHEARING FOR law, I to find deficiencies in continue HOLCOMB, J., dissenting. on which this Court proceeding the habeas deferring to the court’s de- procedural relies unusual This case is an arriving and in at its own con- termination time both on direct posture and was one (on clusion. from the United States remand Court) and under consideration Supreme proceeding in Hall’s habeas Nowhere claim for habeas cor- for state proof or standard there a burden apply chose to the record pus relief. We convicting The court enunciated. review hearing from the habeas to the issue conclusions, do findings and we made but appeal. raised on direct mental retardation proof under what standard of not know evidence suggested that the We even preponder- made its court conclusions— court, presented the habeas which was evidence, convincing clear and ance testimony, was not live affidavit evidence, beyond doubt. a reasonable review proper unsuitable for a almost Furthermore, Hall provided was not however, dissent, is not This issue. hearing. live evidentiary Hall was is men- about I whether believe able to and the the affiants cross examine retarded; tally I have to believe no reason judge was not credi- able to evaluate their in its that the habeas court was incorrect bility. By complete def- according almost I of the evidence it. assessment before erénee to the trial court’s determination simply apply believe that must law we based on tíre'-procedure habeas, used on I see it. and by reaching our own conclusions based part on the by affida- evidence adduced Arizona, past, thought Ring In the I v. habeas,
vit on we fail provide proce- 584, 2428, 536 U.S. 122 S.Ct. 153 L.Ed.2d dure that reflects the heightened need for (2002), determination, required jury 556 procedural requirements determining habeas, on of a even claim of retar whether a defendant put be to death. brought under Atkins Virginia, dation v. I think 304, 2242, this reconsider, Court should 122 153 536 U.S. S.Ct. L.Ed.2d sua (2002). sponte, our on case of Schriro v. Sum determination Hall’s 335 writ of corpus merlin, habeas order the S.Ct. convicting U.S. court to conduct live evidentiary though, held otherwise hearing L.Ed. However, and evaluate the evidence under review. pre- cases habeas claim, ponderance of the evidence Atkins holding standard artic- that an same means *21 if still on direct appeal, is to be required Keith WHITE. parte
considered Ex Wendell and applied “prospectively.” We have held that an Atkins claim is 74757, 74758. Nos. equivalent to an affirmative defense. If n we that, believe then we must Appeals believe of Texas. of Criminal Court a jury must pre consider the fact issue 29, 2004. Sept. by equivalent sented affirmative this of an defense. 15, 2004. Dec. Rehearing Denied
Ring, Apprendi v. Jersey, New 530 U.S.
466, 120 2348, S.Ct. 147 L.Ed.2d
(2000), and Blakely v. Washington, 296,
U.S. S.Ct. 159L.Ed.2d
all stand for the a factor proposition that
that increases by must be found sentence
a jury beyond a doubt. With reasonable
Atkins we talking equivalent are about
of an affirmative defense than sim- rather
ply an increase A sentence. suc-
cessful Atkins claim can decrease a death
sentence to the alternative, only a life sen-
tence. I believe it say correct to logically
that, if the claim which entitle would
defendant to a life not consid- sentence is
ered a jury and made decisionis
the trial court, the trial court’s decision equivalent to an in the sentence increase from life to Therefore, jury death. must
address the issue of mental retardation this case.
Because still on direct this case is
and must mental retardation issue of
be by jury, this Court should addressed jury case determination
remand ability is “so whether
impaired range as to fall within whom about retarded offenders
there their against is a national consensus” Virginia, U.S. at v.
execution. Atkins 2242. Since majority 122 S.Ct. hold,
does not I respectfully so dissent.