IN THE 265th JUDICIAL DISTRICT COURT
OF DALLAS COUNTY, TEXAS
IN THE COURT OF CRIMINAL APPEALS OFTEXAS
IN AUSTIN, TEXAS
EX PARTE XXX XXX, )
APPLICATION FOR POSTCONVICTION WRIT OF
Applicant XXX XXX asks this Court toissue a writ of habeas corpus and grant him relief from his unconstitutionalconviction and sentence of death. XXX contends that he is mentally retarded and that the Cruel and UnusualPunishments Clause of the Eighth Amendment prohibits the execution of thementally retarded. See Atkins v. Virginia, 536 U.S. 304 (June 20, 2002).
Thiscase involves the murder of a security guard in a convenience store in southDallas. A store surveillancecamera depicted two individuals entering the store late one night in December1988. One of those individuals,later identified as XXX XXX, walked into the store, suddenly turned, and shotthe store security guard in the back at point blank range. The security guard fell and reached forhis gun. XXX succeeded indisarming the security guard and then shot the guard three more times in thetorso. The other robber and XXXthen took the security guard’s revolver, watch, and some cash. They then ran out of the store.
XXXwas arrested for the crime on the basis of an anonymous tip. When XXX was arrested, the victim’s gunwas in close proximity to him. Once apprehended, XXX confessed to the robberyand murder.
XXXinitially was convicted in January 1990. Ed “Bubba” King and Paul Brauchle represented XXX at this firsttrial. At this trial the court didnot allow the defense to put on expert testimony from a psychiatrist for thepurpose of mitigation unless the State was also permitted to examine theXXX. In light of the trial court’sruling, the defense chose to put their expert on the stand and permit theState’s expert, Dr. Grigson, to interview XXX.
BryceCunningham represented XXX on appeal. In June 1993, the Court of Criminal Appeals reversed the case andremanded for a new trial on both guilt and punishment. The Court of Criminal Appeals held thatit was error to force the defendant to choose between submitting to a Stateexamination or foregoing defense expert testimony. See XXX v. State, 873 S.W. 2d 15 (Ct. Crim. App. 1993) Although the error impactedonly the sentencing phase, the Court of Criminal Appeals reversed for a newtrial on both guilt and punishment. In so doing, the court was following its prior decision in Satterwhitev. State,759 S.W.2d 436 (Tex.Cr. App. 1988).
Thetrial court appointed XXX two new attorneys, William Hughey and Paul Johnson,for the second trial. In the firstweek of voir dire, the prosecutor realized Paul Johnson had represented XXX’saccomplice and Johnson was permitted to withdraw after the court conducted ahearing. Fred Tinsley was thenappointed to represent XXX along with Mr. Hughey and the trial was continuedfor ten days. At the second trial,the State was precluded from calling Dr. Grigson, who interviewed XXXpreviously. Instead the State waslimited to calling an expert who gave an opinion as to XXX’s future dangerousnessbased on the nature of the crime and other known facts about XXX. In May of 1995, XXX was convicted andsentenced to death again. See Attachment B, Judgment ofConviction and Sentence.
Afternumerous delays stemming from the poor health of the lawyer initially appointedto represent XXX on the direct appeal, Robert Udashen was appointed torepresent him.
Mr.Udashen’s primary issue on appeal stemmed from what was, in fact, the focus ofthe second trial during the guilt or innocence phase. The defense at the guilt and innocence stage of the secondtrial turned in large part on the issue of whether XXX robbed the securityguard as an “afterthought.” Thefacts from the first trial were clear, and at the second trial the defenseessentially attempted to assert a legal defense to the capital murdercharge. Thus, at the second trial,XXX waived his Fifth Amendment right to remain silent and testified. He testified that upon entering thestore he encountered the armed security guard and decided at that moment toshoot him in the back. Once he hadmurdered the security guard he then decided to take the security guard’s watch,gun and the seven dollars that the security guard had in his pocket. Because the capital murder chargealleged that XXX committed the murder in the course of another offense, namely,the robbery, XXX, if believed, was technically asserting a defense to thecharge by asserting that the theft was merely an “afterthought” to themurder. Needless to say, the juryrejected this defense, convicted XXX and sentenced him to death again.
On March 29, 1999, on directappeal, the Texas Court of Criminal Appeals rejected the argument and affirmedthe conviction. In an unpublishedopinion, issued March 29, 1999, the Court of Criminal Appeals held that becauseXXX intended to “rob the store” before he left his girlfriend’s apartment, theevidence was sufficient to support his conviction. It also concluded that it was reasonable to infer that XXXshot the security guard in order to take his gun for the purpose offacilitating the robbery of the store’s other employees.
TheCourt also refused to find fault with the trial Court’s refusal to instruct thejury that if they found that XXX committed robbery as an afterthought he wasnot guilty of the capital murder charge. The court held this was instruction was merely a converse charge, andthus not error.
TheCourt refused to review the factual sufficiency of the future dangerousnessissue, citing McGinn v. State, 961 S.W.2d 161, 161-69 (Tex. Crim. App. 1998).
TheCourt also held that any objection to the admissibility of the video-tape onauthentication grounds, where the authenticating witness was not present duringmuch of the video, was waived for lack of specificity.
TheCourt upheld the voluntariness of XXX’s statement, refusing to find the trialcourt’s factual findings to be in error.
TheCourt upheld the trial court’s refusal to disclose the identity of theconfidential informant.
TheCourt upheld the admissibility of numerous inmate disciplinary reports on thegrounds that they are business records, and on the grounds that the objectionto them on the basis of hearsay was not specific enough.
TheCourt also held that it was not error to permit the appellant’s parole officerto testify because this would invite the jury to speculate on parole.
Finally,the direct appeal asserted that the terms “criminal acts of violence” and“probability” in the special issue instructions were unconstitutionallyvague. The Court also overruledthese points of error.
Apetition for a writ of certiorari was filed in the United States Supreme Court,which was denied on October 18, 1999. A writ of habeas corpus was filed in the court ofconviction on June 8, 1999.
Whilethe appeal was pending, the Court of Criminal Appeals appointed Mary Beth Scottto represent XXX in the §11.07 proceeding. In September 1999, Scott filed the §11.07 petition. She didno meaningful investigation. Instead, she essentially “weeded out” most of the issues raised on directappeal. She reasserted two of themin the habeas petition and raised one new claim. She raised the following issues:
1) Didthe trial court err in refusing to advise the jury that appellant would havebeen eligible for parole in eight years?
2) Did the trial court err by refusing todefine “criminal acts of violence” and “probability”?
3) Didthe trial court err in refusing to give the theft as an afterthought to murder
The trial court adopted theState’s proposed factual findings and conclusions of law without holding ahearing. The Court ofCriminal Appeals adopted those findings on March 8, 2000. Due to some confusion about Mary BethScott’s address, Scott did not receive notice that XXX’s petition had beendenied.
OnFebruary 9, 2001, the United States District Court for the Northern District ofTexas appointed Franklyn Mickelsen, the undersigned, and Vic Sasso to representXXX XXX in the Federal Death Habeas proceedings. On April 3, 2001, that Court granted a motion that XXX XXXbe permitted until December 14, 2001 to file his petition.
Inthis Federal petition XXX’s counsel raised the following claims:
1) XXX’strial lawyers were ineffective in the punishment phase.
2) Theexecution of the mentally retarded violates the Eighth Amendment.
3) Theduration and conditions of XXX’s incarceration violate the Eighth Amendment.
4) The trialcourt relieved the State of its constitutional burden of proving the lack ofmitigating circumstances beyond a reasonable doubt.
Afterthe Supreme Court’s decision in Atkins, the Federal district court decided to dismiss, withoutprejudice, XXX’s mental retardation related claim because it had not been“exhausted” in State court proceedings. Rather than dispose of XXX’s remainingclaims, it decided to dismiss those without prejudice also.
Indetermining whether XXX’s Atkinsclaim should be dismissed for failure to exhaust, one of the issues the federaldistrict court considered was whether there existed an adequate remedy for XXXto file a successive writ in State court. Undersigned counsel expressed concern in pleading thatno appointment of counsel provision existed to aid XXX in preparing asuccessive State writ and no provision existed for appointing XXX the assistanceof an expert in preparing a writ. In light of this concern, Judge Dean agreed to authorize the appointmentof the undersigned counsel to assist XXX in the preparation of the writ andrelated litigation. Judge Dean didnot, however, authorize XXX to expend funds for the assistance of an expert priorto the filing of this successive petition. Because representatives of the Dallas County DistrictAttorney’s Office and the Attorney General’s Office held the opinion that theCourt of Criminal Appeals would like remand this successive petition to JudgeDean for further proceedings, Judge Dean believed it more appropriate toauthorize expert funding after such a remand.
A date of execution has notbeen set.
THESUBSEQUENT APPLICATION REQUIREMENTS
XXXseeks the permission of the Court to file a subsequent application for writ ofhabeas corpus under Section 5 of Article 11.071 of the Texas Code of CriminalProcedure. The legal basis forXXX’s Eighth Amendment Atkinsclaim was not previously available. This Court had consistently rejected Eight Amendment claims based on thealleged mental retardation of the defendant prior to the Supreme Court’sdecision in Atkins. Under Sections 5(a) and 5(d) ofArticle 11.071, XXX now is entitled, therefore, to review of the merits of hisclaim. Section 5(a) provides that:
Ifa subsequent application for a writ of habeas corpus is filed after filing aninitial application, a court may not consider the merits of or grant reliefbased on the subsequent application unless the application contains sufficientfacts establishing that . . . the current claims and issues have not been andcould not have been presented previously in a timely initial application or ina previously considered application . . . because the factual or legal basisfor the claim was unavailable [on] the date the applicant filed the previousapplication . . . .
Section5(d) of the same Article defines “legal unavailability” as follows:
[The]legal basis of a claim is unavailable . . . if the legal basis was notrecognized by or could not have been reasonably formulated from a finaldecision of the United States Supreme Court, a court of appeals of the UnitedStates, or a court of appellate jurisdiction of this state on or before [thedate the applicant’s previous habeas application was filed].
TheSupreme Court’s decision in Atkins,because it post dates XXX’s initial § 11.07 petition, qualifies as a decisiongiving rise to proper basis for relief pursuant to section 5. Accordingly, Bradfor’s Atkins claim should be reviewed on the merits.
CLAIM FOR RELIEF
THE EIGHTH AMENDMENT PROHIBITS THEEXECUTION
OF THE MENTALLY RETARDED
OnJune 20, 2002, the Supreme Court held that the execution of the mentallyretarded is unconstitutional. SeeAtkins v. Virginia, 122 S. Ct. 2242 (June 20, 2002).
Insupport of this successive petition, it is important to discuss the relevantholding of the United States Supreme Court in Atkins v. Virginia in some detail. Daryl Atkins was convicted of capital murder and sentencedto death by the State of Virginia. Evidence was introduced at the punishment phase of his trial that showedthat Atkins had intelligence testing which revealed a full scale IQ at 59. Atkins, 122 S. Ct. at 2245. The Court did not explicitly hold thatAtkins was, in fact, mentally retarded, but noted that an IQ between 70 and 75or lower is typically considered the cutoff IQ score for the intellectualfunction prong of the mental retardation definition. Id.at 2245 n.5.
TheCourt then discussed that the “evolving standards of decency” now reject theimposition of the death penalty on murderers who are mentally retarded. Id. at 2249. The Court noted that, since 1986 the legislatures ofGeorgia, Maryland, Kentucky, Tennessee, New Mexico, Arkansas, Colorado,Washington, Indiana, Kansas, New York, South Dakota, Arizona, Connecticut,Florida, Missouri, North Carolina and the federal government have all passedlegislation barring the execution of mentally retarded offenders. Id. at 2248. Furthermore, the Court pointed out that the Texas legislatureunanimously adopted legislation barring the execution of mentally retardedoffenders, but the bill was vetoed by Governor Rick Perry. Id. at 2249. The Court found this wave of legislation as evidence of anational consensus against the execution of mentally retarded offenders. Id. The Supreme Court further discussed the issue in the context of itsdeath penalty jurisprudence. TheCourt explained that executing the mentally retarded is inconsistent with itsnarrowing jurisprudence that a death sentence must achieve the social purposesof “retribution and deterrence.” Idat 2251 (citing Gregg v. Georgia,428 U.S. 153, 183 (1976). TheCourt discussed that, in terms of retribution, the “lessor culpability of thementally retarded offender” does not merit the ultimate sanction. Id. Furthermore, the Court explained that deterrence is not achieved becauseit is:
the same cognitive and behavioralimpairments that make these defendants less morally culpable – for example, thediminished ability to understand and process information, to learn fromexperience, to engage in logical reasoning, or to control impulses – that alsomake it less likely that they can process the information of the possibility ofexecution as a penalty and, as a result, control their conduct based upon thatinformation.
Id. The Courtalso explained that the execution of mentally retarded offenders enhances the“risk that the death penalty will be imposed in spite of factors which may callfor a less severe penalty.” Id.(citing Lockett v. Ohio,438 U.S. 586, 605 (1978)). Thecourt stated that the chances a mentally retarded offender will be sentenced todeath are greater :
not only by the possibility of falseconfessions, but also by the lessor ability of mentally retarded defendants tomake a persuasive showing of mitigation in the face of prosecutorial evidenceof one or more aggravating factors. Mentally retarded defendants may be less able to give meaningfulassistance to their counsel and are typically poor witnesses, and theirdemeanor may create an unwarranted impression of lack of remorse for theircrimes. . . Mentally retarded defendants in the aggregate face a special riskof wrongful execution.
Id. Thus, basedon the national consensus and supported by the Court’s Eighth Amendment deathpenalty jurisdiction, the United States Supreme Court held that the executionof mentally retarded offenders is cruel and unusual punishment and violates theUnited States Constitution.
Atthis time expert testimony that XXX XXX is mentally retarded does not yetexist. The availableevidence that does exist, however, suggests that XXX XXX is, in fact, mentally retarded.
Dr.Fulbright, the expert who testified on XXX’s behalf during the punishment phaseof XXX’s trial did not perform adequate tests to determine whether XXX is infact mentally retarded. He did,however, perform tests that in a limited manner, measured XXX’s intellectualfunctioning at the time of his first trial. Dr. Fulbright measured XXX as having an I.Q. of 75,indicating “borderline intellectual functioning,” that is “just above mentalretardation.” Dr. Fulbright believes, as reflected in his affidavitattached to XXX’s federal writ petition, given XXX’s low I.Q. score, he may infact be retarded and additional testing is indicated to make the determinationone way or the other. A copy ofDr. Fulbright’s affidavit is attached.
Dr.Kessner, a clinical psychologist, supported this conclusion. A copy of her affidavit is alsoattached. She stated in her affidavitattached to XXX’s federal writ petition that:
Administrationof an adaptive functioning instrument was not performed as a differentialdiagnostic procedure to ascertain whether Mr. XXX qualified for a diagnosis ofmental retardation. Because Mr. XXX’sI.Q. fell in the lower range, it is my opinion that further assessment waswarranted to provide clarity and investigate whether Mr. XXX does in factqualify for a diagnosis of mental retardation.
Inaddition to the above referenced testimony, which was presented to the Federal district court in XXX’s federalpetition prior to the Atkins’ decision, undersigned counsel further reviewed XXX’s TDC records after the Atkins decision and found adocument reflecting that when XXX was seventeen years old his I.Q. tested at68. This intellectual functioningrange further substantiates the claim that XXX is, in fact, mentallyretarded. The fact that XXX testedthis low prior to being eighteen is particularly significant. According to the Supreme Court in Atkins, mental retardation mustmanifest itself before the age of eighteen. Moreover, XXX’s I.Q. tested that low prior to being chargedwith a capital crime, negating any suspicion of malingering. See TDC Record reflecting I.Q.score of 68 attached as an exhibit to this motion.
XXX’s I.Q. suggests that he probably suffers from mental retardation. Since the Atkins decision he has been denied the expertassistance necessary to make a definite claim of mental retardation. He therefore requests that this Courtremand this case back to the State district court for further proceedings inorder for the State district court to make a determination whether, he is, infact, mentally retarded.
Pursuantto the Supreme Court’s decision in Ring v. Arizona, 122 S.Ct. 2248 (2002), XXX also assertsthat a jury must make this determination in State district court. Ring v. Arizona indicates that both judge and jury havea significant role to play in resolving a post-conviction Atkins claim. Ringinvolved a Sixth Amendment challenge to Arizona’s judge-sentencing capitalpunishment scheme. Relying on theconstitutional principles established in Apprendi v. New Jersey, 530 U.S. 466 (2000) (holding that theSixth Amendment does not permit a defendant to be exposed to a penaltyexceeding the maximum he would receive if punished according to the factsreflected in the jury verdict alone), Ring argued that Apprendi was irreconcilable with the Court’sprior decision in Walton v. Arizona,497 U.S. 639 (1990), which upheld Arizona’s judge-sentencing procedure. The Ring Court agreed, overruled Walton, and held that the Sixth Amendmentrequires that any finding of fact that makes a defendant eligible for the deathpenalty must be unanimously made by the jury beyond a reasonable doubt. 122 S. Ct. at 2440.
WhileRing dealtspecifically with statutory aggravating circumstances, it included “factfinding[s] necessary to . . . put [a defendant] to death.” Id. at2443. Atkins held that the Eighth Amendment prohibitsa mentally retarded defendant from being sentenced to death. 122 S. Ct. at 2252. Because a mentally retarded defendantis no longer constitutionally eligible for the death penalty, mentalretardation now becomes a factual issue “that . . . must be found by a jurybeyond a reasonable doubt.” Ring, 122 S. Ct. at 2439. In effect, the absence of mentalretardation is “the functional equivalent of an element of [capitalmurder].” Apprendi, 530 U.S. at 494.
TexasBar No. 14011020
Counselfor XXX XXX
CERTIFICATE OF SERVICE
Ihereby certify that on the day of January 2003, I served via hand delivery a true andcorrect copy of the foregoing pleading, with attached appendices, upon opposingcounsel:
Dallas County District Attorney’s Office
133 Commerce Street
Dallas, Texas 75201