Capital Murder Training by TCDLA

Capital Punishment Course Directors: Jerald Graber & Mark Hochglaube

May 21, 2021 Seminars sponsored by CDLP are funded by a grant administered by the Texas Court of Criminal Appeals.

Texas Criminal Defense Lawyers Association

4th Annual Harris County Capital Murder Training Table of Contents speakers Jerald Graber and Mark Hochglaube Bob Loper Andrea Lyon Hannah Brooks

topic Opening Remarks Jury Charges and Lesser-Included Offenses Trying your First Death Penalty Case Zealous and Ethical Mitigation

Jerald Graber

Logistics and Questionnaires in Death Penalty Jury Selection

Skip Cornelius

Techniques of Death Penalty Voir Dire

Pat McCann Dr. Michael Thompson

Intellectual Disability Cell Phone Evidence - What it Can and Can’t Show

6808 Hill Meadow Dr. :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

4TH ANNUAL HARRIS COUNTY CAPITAL MURDER TRAINING SEMINAR INFORMATION Date Location Course Director Total CLE Hours:

May 21, 2021 Livestream Event Jerald Graber and Mark Hochglaube 7.0 Ethics: 1.0

Friday, May 21, 2021 Time

CLE

8:45 am

Daily CLE Hours: 7.0 Topic

Ethics: 1.0 Speaker

Opening Remarks

Jerald Graber and Mark Hochglaube

9:00 am

1.0

Jury Charges and Lesser-Included Offenses

Bob Loper

10:00 am

1.0

Trying your First Death Penalty Case

Andrea Lyon

11:00 am

Break

11:15 am

1.0 Zealous and Ethical Mitigation Ethics 12:15 pm Lunch Break

Hannah Brooks

12:45 pm

1.0

Logistics and Questionnaires in Death Penalty Jury Selection

Jerald Graber

1:45 pm

1.0

Techniques of Death Penalty Voir Dire

Skip Cornelius

2:45 pm

Break

3:00 pm

1.0

Intellectual Disability

Pat McCann

4:00 pm

1.0

Cell Phone Evidence - What it Can and Can’t Show

Dr. Michael Thompson

5:00 pm

Adjourn

TCDLA :: 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

4th Annual Harris County Capital Murder Seminar May 21, 2021

Topic: Jury Charges and Lesser-Included Offenses Speaker:

Robert Loper 111 W 15th St Houston, TX 77008-4220 (713) 880-9000 Phone (713) 869-9912 Fax rkloper46@aol.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Jury instructions and Lesser included offenses

I. Jury instructions are what we use to guide our juries to the verdict we seek. In Harris county we have a jury bank where a Judge can send his indictment down and, usually within a day, get back a fairly handy sample jury instruction that follows the indictment for the most part. Although not always correct in every way, they at least save a lawyer from needing to invent the wheel every time they go to trial. They’re also valuable when you are picking a jury on a case that you may not have tried before, or at least not lately. If you know how the various terms will be phrased in the jury instructions, you can use those in talking to your jury panel. If your case is a self-defense case, recite from that jury charge so the panel gets used to hearing the language. In Harris county, there is a website where you can go and download examples of instructions. In the Harris county jury charge bank, there are 34 different instructions and limitations on self-defense. Find the one that matches your facts as best as you can, and you’ll have the basics of what your Judge will give at the end of the evidence, and an outline to get your jurors on your panel talking. It’s better to have them suggest your defense than if you lecture them. So, ask the panel what a person can do when they perceive a threat to their children. Odds are you have several volunteers offering what they would do to defend their families. Then ask how many others agree with juror # 4. You’ll likely get more hands going up than the prosecutor has peremptory strikes to use. Since this a CLE on capital murder trial tactics, it needs to be remembered that when you pick a jury on a case like this, you’re not going to get an inexperienced prosecutor on the other

side. They’ve gone to training sessions. They’ve watched other senior prosecutors pick capital murder juries. They probably started by sitting with another prosecutor in a capital murder trial. They’re going to have a power point to use. From my experience it seems prosecutors can’t try a case without using a power point. I’m not so old that I’m am opposed to them entirely, but when they begin to read the power point instead of listening to the jurors during voir dire, I think they miss something. In the last few trials that we had, and that has been awhile due to the covid, we’ve even seen prosecutors read a power point in their final summation to the jury. And if you’re reading your power point, you’re not looking at the jurors in the eye to see, if you can, what they think about your argument. Back to jury instructions, it is a good idea if you can determine what topics your prosecutor is going to cover, and then stress something else. How can you do that? Demand that, if they’re going to use a power point, that you’re allowed to see it first. It can be done on the morning of voir dire, before the jury panel gets there. Just skim through their slides, looking for any incorrect statement of the law and pointing it out if you see it. But also look at whether they intend to cover some of the topics that are important to you. In a recent capital trial, we knew we would be relying on self-defense. The prosecution did not even consider covering that in voir dire because they didn’t believe we would be able to raise it by the evidence. Consequently, the panel only heard about self-defense from the perspective of the defense team. Another area where I have seen prosecutors occasionally fail to cover is corroboration of accomplice witnesses. If that is the case, that means the jury only gets to hear from the defense team and about how accomplice witnesses are so unreliable that the Legislature had to pass a special statute, Art. 38.14, that

“A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.” Then you get the panel talking about why they’re so unreliable. And maybe even make a list of the reasons. At the end of the trial, you can remind them of all the various reasons an accomplice would lie to help themselves. And your prosecutor, who never mentioned the topic before, is left to argue that their accomplice witness is doing this by testifying for the good of all mankind. I spoke earlier about how the charge that comes from your jury bank may not always be correct, at least from your perspective. Make sure you find the mistakes and point them out to your Judge. The people working in the charge bank, while experienced, are not lawyers, and just as an example, with 34 different kinds of self-defense and limitations, they’re not always going to get it right. Back on self-defense we all know that a person cannot rely upon that defense if they are engaged in committing a crime. A person cannot go into a convenience store with the intent to rob and display a gun, and then shoot the clerk when they pull a gun, and then claim selfdefense. But there are occasions when a person can claim self-defense even if charged with capital murder. Texas Penal Code Art. 9.32 states: “DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is justified in using deadly force against another: (1) if the actor would be justified in using force against the other under Section 9.31; and (2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:

(A) to protect the actor against the other's use or attempted use of unlawful deadly force; or (B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.” So a person could claim self-defense if the actions of the other party fit Art. 9.32. Could a person do that in the context of a capital murder? Jon Stephenson and I tried that case in November 2019. Our client was at a bus stop at the Galleria sitting on a bench. Two guys came up and one of them hit him in the side of the head with his fist. The assailant walked a little way down the sidewalk, and our guy got up to leave. The guy swung his computer bag at our client and our guy grabbed him and as he was pulling him down to the ground stabbed him numerous times in the abdomen. All of this was on surveillance video except the original punch. A witness across the street who heard the fight but did not see the punch came over and held our client for the police. The client told the police the above story and they of course didn’t believe him. They filed it as a capital murder because they said our client was trying to steal the computer bag that the guy swung at him. Since our guy’s statement was exculpatory, and not admissible unless the State offered it, he needed to testify in order to raise the defense. It was a hard fight to get deadly force selfdefense from the retired old school Judge but in the end, he gave it. We relied upon the following from Art. 9.32. (b) The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor: (1) knew or had reason to believe that the person against whom the deadly force was used: (A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or (C) was committing or attempting to commit an offense described by Subsection (a)(2)(B); (2) did not provoke the person against whom the force was used; and (3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used. We argued that the guy was trying to rob our client, who had a bag of belongings, when he hit him in the head. Our client did not provoke, and was not otherwise engaged in criminal activity. The jury over the course of two days of deliberations found that the State had not disproved deadly force self-defense beyond a reasonable doubt. In addition, a person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force. Make sure that you ask for the additional instruction that when a person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force Other jury instructions which you will find helpful is the one when the Court gives a lesser offense in the charge. Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, or if you are unable to agree, you will next consider whether the defendant is guilty of the lesser offense of (LESSER OFFENSE).

That’s the language when a lesser is given. Of more importance is the instruction to the jury about their deliberations, and when they fail to agree on a verdict on the charge in the indictment. “If you believe from the evidence beyond a reasonable doubt that the defendant is guilty of either capital murder on the one hand or murder on the other hand, but you have a reasonable doubt as to which of said offenses he is guilty, then you must resolve that doubt in the defendant’s favor and find him guilty of the lesser offense of murder.” This is incredibly powerful language because what it does is make it not a majority wins the election back on the jury room. I have had prosecutors try to argue that all 12 jurors must agree that they have a reasonable doubt about the defendant being guilty of capital murder before next considering the lesser offense. That is not the law. It is my opinion that it does not matter what the vote is in the jury room. It may be 11-1 or 6-6, or anything in between. If they have a reasonable doubt about one or the other, they must resolve in favor of the defendant. It is extremely important, when you are picking a jury on a case where you anticipate getting a lesser in the charge, that you voir dire on that instruction and get a commitment that the members of the panel can follow it. The law on conspiracy is another jury instruction that is often used in the situation where several defendants allegedly participate in a capital murder/robbery and only one of the defendants is the shooter. The others may be lookouts, getaway drivers, maybe the one who set the crime up. There have been capital murders ordered from the jail by persons who aren’t obviously going to commit the crime themselves.

A person is criminally responsible for an offense committed by the conduct of another if: acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy. And the history of Harris county jurors usually means that if the jury believes that your look out client knew the shooter went in armed with a gun, they’re usually going to believe that your client should have anticipated the gun would be used to commit a murder. You can absolutely count on your prosecutor to ask for that conspiracy language when you are defending the non shooter. That’s why you have to work hard to show your client’s lack of knowledge, or the government’s inability to prove beyond a reasonable doubt your client’s knowledge.

Lesser included offenses Art. 37.09 of the Texas Code of Criminal Procedure defines when a lesser offense is appropriate: An offense is a lesser included offense if: (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission; (3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or

(4) it consists of an attempt to commit the offense charged or an otherwise included offense.

In the world of capital murder defense, it is incredibly important to seek lesser offenses from the court in the jury charge. Beck v. Alabama, 447 U.S. 625 (1980), was a United States Supreme Court case in which the Court held that a jury must be allowed to consider lesser included offenses, not just capital offense or acquittal. Before that time, the jury was left to choose between a capital murder conviction (and likely death verdict), no matter what the evidence showed, or to acquit the defendant. And we know how that probably worked out almost all of the time. Likewise, in our cases here it is difficult to convince a jury to acquit you client if they think he, or she, was involved in conduct that resulted in the taking of a person’s life. As lawyers we understand that if the evidence does not track the wording of the indictment and prove the offense beyond a reasonable doubt the only acceptable verdict is not guilty. I think that’s not so relevant to your average juror. And if you don’t ask for a lesser or don’t get a lesser, and the jury is left with convicting your client of capital murder or finding him not guilty your client is almost always going to get a conviction. All the more reason that voir dire is one of the most important parts of a trial. In a capital murder prosecution, the state must prove a specific intent to kill in order to sustain a conviction for capital murder during the course of committing a kidnapping, burglary, robbery, aggravated sexual assault, and other offenses. But it is the robberies and burglaries which seem to come up most often. That’s different from the murder of a peace officer or a fireman with only requires that the person commit the murder intentionally or knowingly.

A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. Why this is so important in our defense of capital murder in the course of a robbery is that the government must show an intentional killing or by definition it’s not a capital and it’s at best a felony murder. Felony murder is when a person commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual. There are so many fact patterns in a capital murder/robbery that felony murder can come up. If it’s a drug rip many times the intended victim is armed and pulls a gun. It it’s a shootout you would argue that your client was reacting to the other’s use of force. It can’t be deadly force self-defense because your guy is committing a crime, but if it’s not an intentional killing it’s not capital murder. And if you get to felony murder your client has the entire range of punishment of a first degree felony to work with. He may still get a large number, maybe even life, but he has a chance at parole. The shortest punishment hearing you will ever participate in is when your client is convicted of capital murder. Usually, the Judge will sentence immediately after receiving the guilty verdict, and while the jury is still in the jury box. Remember that you’re going to have to articulate why you think evidence of a lesser offense is raised. Argue on the record why. Sometimes the Court may do your client a favor, in terms of appeal, in refusing to charge on a lesser.

If you are representing that non shooter in a capital murder/robbery your client has the right to rely upon any defense the main actor/shooter may have. If there was a struggle over a gun and the complainant is shot your client can argue there is no intentional killing. And as I learned from lawyers who were doing this before my time, keep asking for lessers until the Judge says no. I am happy to consult with anyone who may have questions regarding this presentation, or with the facts of your cases. You can reach me at: Robert K Loper 111 W. 15th St. Houston, Texas 77008 713 880-9000 713 304-5858 Bob@Loperlaw.net Thank you for having me.

Texas Criminal Defense Lawyers Association

4th Annual Harris County Capital Murder Seminar May 21, 2021

Topic: Trying your First Death Penalty Case Speaker:

Andrea Lyon 25 East Jackson Boulevard Chicago, IL 60604 ((312) 362-8294 Phone (312) 362-6918 Fax alyon1@depaul.edu

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Defending the Life-or-Death Case

by Andrea D. Lyon

More than 13 years ago, I wrote an article about defending a death penalty case. “Defending the Death Penalty Case: What Makes Death Different?” 42 Mercer L. Rev. (Winter 1991). The article was part description, part exhortation to my brother and sister defense counsel to work hard for their clients. Then, late in 2004, the U.S. Supreme Court relied in part on that same article to deny relief to a death row inmate whose defense attorney had conceded his guilt at trial without his permission. Florida v. Nixon, 543 U.S. 175, 125 S. Ct. 551, 562 (2004). In many ways, this is emblematic of what it means to represent someone charged with a capital crime—things get turned upside down. A capital defender represents someone who is unpopular (to say the least), charged with something awful (about which no one presumes innocence), in front of a judge who often is painfully aware of the visibility of the case (and therefore sensitive to his or her resultant political vulnerability.) On top of all this, you present the case to a jury from which your opponent successfully has had stricken for cause everyone who opposes the death penalty, and has stricken peremptorily everyone who has trouble with the concept. As of 1992, the defense gained the right to exclude for cause anyone who would always give the death penalty, but studies tell us that those jurors are much harder to unmask. So how do you start to combat those problems, and what do you do? There are various categories of work that a capital defender must perform: organize, investigate, and prepare to try the case. A death penalty case is really two trials. First, it’s a trial on the merits (Did your client commit the crime; if so, was it ﬁrst degree murder; and if it was ﬁrst degree murder, is it deathAndrea D. Lyon is director of the Center for Justice in Capital Cases in Chicago, Illinois.

eligible?). In some jurisdictions, the question of eligibility for the death penalty is answered at the trial on the merits. This means that in order for the prosecution to even ask for death, it must prove a first-degree murder as well as an aggravating factor that takes the case into the (theoretically) small group of cases where the death penalty can even be sought. Common aggravating factors are the first-degree murder of a police officer acting in the line of duty, or the first-degree murder of a woman during a rape. Second, assuming the prosecution can establish both guilt and eligibility beyond a reasonable doubt, the jury then decides whether death is the appropriate choice of punishment. At this part of the trial, the prosecution may present aggravating evidence, some of which is prescribed by statute and some of which is not. Examples might include prior criminal record or other violent acts that were not charged or that did not result in a conviction, and victim impact evidence. Mitigation—reasons to punish with imprisonment rather than death—is any evidence that might tend to explain the client’s actions, family history, mental health issues, physical health matters, or the impact the client’s execution would have on his or her loved ones. The rules of evidence are relaxed at a penalty phase; in most states, this means that anything “relevant and reliable” is admissible. A capital defender thus faces the daunting tasks of investigating and preparing to meet the evidence against the client in the trial, as well as investigating and preparing to meet the aggravating evidence at a penalty phase, in addition to locating and presenting mitigating evidence—much of which is a matter of shame to the client and his family. You may be thinking of taking on a case yourself on a pro bono basis. Or you may never try a case like this but simply want to know more about what it’s like. Or perhaps you think you might gain a tip or two for other sorts of litigation. Whatever the reason for your interest, I will try to share with

Volume 32 • Number 2 •Winter 2006 • American Bar Association • Litigation “Defending the Life-or-Death Case” byAndrea D. Lyon, published in Litigation, Volume 32, No.2, Winter 2006 © 2006 by the American Bar Association. Reproduced by permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

you what it is possible to put into words. Trying a death case, however, is a bit like trying to describe childbirth—it’s not that people don’t believe you but that words simply cannot replicate the feelings—in this case, of being the person standing between someone and his death at the hands of the state. In other litigation contexts, “shooting from the hip” might work occasionally. Our charm, intelligence, and good looks just might pull off a victory every now and then—although I would never advise this plan, even in the simplest of cases. Such a strategy in a capital case is, quite literally, deadly. Handling the inevitable unanticipated twists and turns of a capital case requires that you prepare everything you can in advance, keep track of what you have done, and think ahead to what needs to be done. When you get a death penalty case, you should literally open two ﬁles: (1) one about the client’s life and (2) one about the capital case. You have to start preparing to ﬁght for your client’s life right away, which means you have to do what we all hate to do: assume that we will lose and that the case will be a battle about the choice of punishment the jury will make.

The defense of a person’s life cannot be undertaken alone. Once you have done this, you must organize your file. There are many ways to do this, and rather than bore you with a recitation, let me give you two organizational tools. One is a time line of your clients’ life, starting literally from birth to the present time. The other is a witness index, which forces you to truly master the file and makes it accessible during trial. What I usually do is to paginate the discovery, such as putting the police reports in chronological order. You also will want to note every piece of paper that refers to, is authored by, or testified to by a witness. For example, you might have a heading as follows: Witness Index, People v. ________, Case No. ________. Make four columns going across the page and label them Name of Witness, Type of Witness, Location in Police Reports, Transcripts and Other Locations. In order to make the most effective use of this index, alphabetize it by last name. The more complex the case, the more witnesses there are. The names of the authors of all reports must be indexed, as well as names of those who were interviewed—you may need to prove up an impeaching statement, and you need to be able to figure out fast who can do that for you. Alphabetizing is crucial when you have a big case with hundreds of witnesses. You cannot anticipate every single witness who might be called, especially if the prosecution is putting on fluff. For example, if you have prepared your cross-examination outline for Officer Roberts, the first officer on the scene, and then you hear the prosecution call Officer Smith as its initial witness, you can go to your index and find out that Smith was the second officer on the scene. Roberts is likely on furlough, so you can simply transfer your scene-setting questions to Smith. If you don’t have the index, you will spend all of Smith’s direct examination madly paging through police reports to find out who he is and what he said before.

You also need to spend the time necessary to organize your team. One thing that is certain, the defense of a person’s life cannot be undertaken alone. The American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (2003) (Guidelines) prescribe standards for the composition of the defense team in capital cases. Guideline 4.1 states:

Guideline 4.1—The Defense Team and Supporting Services A. The Legal Representation Plan should provide for assembly of a defense team that will provide high quality legal representation. 1. The defense team should consist of no fewer than two attorneys qualified in accordance with Guideline 5.1, an investigator, and a mitigation specialist. 2. The defense team should contain at least one member qualified by training and experience to screen individuals for the presence of mental or psychological disorders or impairments. B. The Legal Representation Plan should provide for counsel to receive the assistance of all expert, investigative, and other ancillary professional services reasonably necessary or appropriate to provide high quality legal representation at every stage of the proceedings. The Plan should specifically ensure provision of such services to private attorneys whose clients are financially unable to afford them. 1. Counsel should have the right to have such services provided by persons independent of the government. 2. Counsel should have the right to protect the confidentiality of communications with the persons providing such services to the same extent as would counsel paying such persons from private funds. These guidelines are available at: www.abanet.org/deathpenalty/ DPGuidelines 42003.pdf. The commentary to the guideline brilliantly explains the need for all of these requirements, the most important of which is a diverse team and teamwork. By “diverse” I mean in terms of both training and life experience. While it is foolish to ignore the effects of race, class, and culture on your client, it is equally foolish to ignore their effects on you. And to adequately prepare for the case, you need to have regular team meetings, put yourself and your team on a schedule, and make time to brainstorm the case. Investigation of the underlying charge is your starting point for learning the facts. The Guidelines 10.7A and A.1 state: Counsel at every stage have an obligation to conduct thorough and independent investigations relating to the issues of both guilt and penalty. The investigation regarding guilt should be conducted regardless of any admission or statement by the client concerning the facts of the alleged crime, or overwhelming evidence of guilt, or any statement by the client that evidence bearing upon guilt is not to be collected or presented. In an ideal world, this would be not only a laudatory goal but also possible to do with adequate resources. Perhaps one day it will be, but in the meantime, as a capital defense attorney, you

have a great deal of work to do and some decisions to make. It is almost impossible to interview every witness who might have information about a case, so choices have to be made. The easiest and most logical place to start is to make an index of every person you would like to interview and prioritize the list. I prefer to list the evidence in the order from the best to the worst for the prosecution. If I cannot investigate everything, I skip the stuff in the middle and investigate both ends of the continuum. Organize the investigation in much the same way as the rest of the file. I am a great believer in lists or indexes as a way of keeping up with the facts of the case, and I often use what I call an “investigation index” just to help me keep track. Across the page, I have columns for Name of Witness, Address/Phone, Type of Witness, Dates of Contact & with Whom, and Comments. If you use an index like this (or something like it of your own devising), you have to be sure to write down when you saw the witness, or tried to, and who was with you. This may become important later when you need to call a “prover” (the person you brought with you to hear what the witness had to say—just in case) if a witness changes his or her story or you are accused of intimidating witnesses by showing up to interview them. The Comments section is based on the assumption that you probably have a lot of cases and simply cannot remember everything about them, let alone what the witnesses were like for each. This is particularly true if you go to interview a witness who then refuses to speak to you—which he has an absolute right to do. Nonetheless, you have seen him, maybe even formed an impression of him; but before he asked you to leave he said nothing substantive, thus not necessitating an investigation memo to the file. Don’t you want to hold on to that impression? If she greets you in a slovenly, purple dress, if he looks high (and like he’s been high for some time), don’t you want to remember that later when this case is ready for trial? That’s what the Comments section is for—your impressions jotted down can be useful in devising your cross-examination. Next comes the investigation of the client’s life. This aspect of the investigation has two basic goals: (1) to provide evidence consistent with any theory you develop concerning your client’s lack of or lesser degree of culpability; and (2) to provide the sentencer a full, reliable, and accurate understanding of your client. The investigation should begin with an interview of your client, but it should never end there. Often clients have problems that prevent them from giving you the kind of history you need. It is important to explore your client’s life with people who knew him before and since the crime, and to dig up all the written reports and other documents you can find about him. When you interview your client, bring with you releases for the records that you will want to gather. Be aware that many states have rigid requirements before records, especially medical records, can be released. Be sure to check the statute so that you include any mandatory language in the release. Assure your client that, unless and until there is a decision to use the records in evidence at some point in the future, they will remain confidential. Lawyers are used to conducting narrow and focused interviews. When the goal of the interview is to probe someone’s most private world, this technique is counterproductive. You

need to frame your questions in a non-leading, open-ended way to elicit answers with true range and emotional content. You will learn more about your client if you ask “What was your relationship with your father like?” than if you ask “Did your father ever beat or molest you?” Obviously, follow-up questions can be more narrow. Suspend judgment to allow your client to feel free to tell you the most awful truth about his life. But do not expect your client to tell you what your theory of the case and/or mitigation ought to be. It is very unlikely that he will have great insight (or any insight at all) into his own behavior. It can be difficult to maintain a balance between respecting your client’s privacy and obtaining the information that will give you the insight into your client’s life. Your job is to create an environment where the client will choose to share the information you need to defend his case and to save his life. You do that by being trustworthy and nonjudgmental. Give him tasks to do: preparing his life history and identifying issues for you. Whether you need to be stern or understanding or some combination of the two will depend on the client. Remember: You may ask him questions that no one ever asked before. He may never have had to think about certain aspects of his life and how they came to affect his later behavior. For some clients, the experience may be revelatory the way that therapy can be. Go slowly. Let your client absorb things slowly, and watch for emotional overload. You must also interview the client’s family and household. This has several purposes: (1) to get information concerning the facts of your client’s life; (2) to give you the opportunity to make your own assessment of your client’s family life; (3) to get information that may assist you in supporting a mental health professional’s findings; (4) to get information concerning the official investigation of the crime and the conduct of the case by the police; and (5) to involve the family in the case. Family members’ involvement can be key for the following reasons: • At a sentencing hearing, they make good witnesses. • Their presence during trial creates an atmosphere in which it is easier to save your client’s life. • Family support can help make your client more selfassured and a better witness if he needs to take the stand. • Family support can prevent your client from engaging in self-destructive behavior (e.g., acting out violently in prison or court). Before you interview your client’s family members, be sure to have in mind some of the different possible reactions they may have. They may mistrust you as a result of prior experiences with lawyers they believe did not do a good job. They may be people who see lawyers as awesome, intimidating authority figures. They may be overly protective of your client. They may be ashamed of your client’s behavior or feel deeply betrayed by him. They may seem indifferent to the whole affair. They may be suppressing their feelings about your client and his criminal behavior, or they may be totally immersed in them. They may be sophisticated enough to understand exactly why you are asking these questions, or they may have no idea why you are interviewing them. Begin to establish a relationship with members of your client’s family that will enable them to confide in you. Explain that what they ordinarily would consider negative information about your client may help him in these circumstances. You may need the assistance of others skilled in interviewing or coun-

seling to help break through barriers that may be caused by the situation itself or may have their origins in class, race, and ethnic differences. Keep in mind your possible reactions to the family. You may be sensitive about intruding on their privacy. You may have a strong need to believe people or think the best of them. You may be angry at them because of something your client told you. They may trigger a reaction in you that relates more to your own family and upbringing than to what your client may have experienced. You cannot escape your own mind and emotions, but you can try to know enough about them to maintain some objectivity in assessing the people you meet. No matter what the circumstances, certain suggestions apply generally to the conduct of your interviews. Hold them at each family member’s home, so each will feel more com-

Photographs may give important clues about family alliances. fortable and you can observe how the family lives. Explain exactly who you are, how you came to be your client’s attorney, and why you are there. Explain the legal process sufficiently so that each will understand that your asking “character” questions doesn’t mean you have given up on the trial—quite the opposite; these facts might help to develop a defense for trial as well as sentencing. Carefully explore the question of abuse and intra-family violence through individual interviews—even if your client denies any history of abuse or violence. If your client denies such a history, question the accuracy of his denial with nearly every family member. If your client admits a history of family violence, plan the interviews to confirm the accuracy of your client’s account, to provide greater detail about the incidents and their character, and to determine the effects on intrafamily relationships. All family members, including the abuser(s), should be interviewed. Obviously, the interviews need to be carefully planned and ordered, with the suspected abuser generally being the last interviewee. Siblings, especially those who have undergone psychotherapy or are now distanced proximately or emotionally from the family, frequently are the most likely to open up. A close second is a more distant relative (e.g., an aunt, uncle, or cousin) who was near enough to know the inner workings of the family but has sufficient distance from the immediate family to be able to disclose it. Close, longtime friends of the family, or neighbors, may also be a good source of information but are less likely to have actually observed any incidents of violence or abuse. Review with the members of your client’s household some of the same questions that you’ve gone over in your interviews with your client. You want to know whether your client’s recollections are similar to the others’. If they are not, try to understand why there is a discrepancy (difference in memory or difference in perception, for example), and figure out what

is the truth. In individual interviews, also ask what the family member’s relationship was and is like with your client. How much time did they have together? During what periods of your client’s life? How did they relate? Do they visit or write now? Why or why not? What was their relationship like at the time of your client’s arrest and before the trial? What did he or she think when told of your client’s arrest? There also is one set of questions about your client’s life that he cannot answer for you: those that deal with his early life, which he cannot recall. Look at the pictures of family members that are displayed in each home. Ask to see pictures of your client if none are readily visible. Photographs may give you important clues about affections and alliances that are not openly discussed by the family. A word here about family support: The presence of your client’s family is very important to your ability to win the death penalty hearing. Try to enlist their support and aid early in the process, and make it as easy as possible for the family to come to court, visit your client, and talk with you.

Making the Record Preparing your case is a separate activity from investigating it. Motion practice is a large part of that preparation. A major reason for filing and litigating motions is to win them, of course. You hope that the confession will not come in, that the eyewitness will not be allowed to point the finger at your client, that the hearsay about your client won’t be admitted at trial, or that the judge agrees that this should not be a death case. And sometimes we actually win these motions. But often we do not, and it becomes discouraging to continue to file and litigate them, particularly in an unfriendly forum or in spite of a large caseload. Nonetheless, file any motion for which there is a good faith basis. It is the right thing to do for your client, it just might work, and, very importantly, it may lay the groundwork for a successful appeal. If you do not object to improper evidence or trial conduct, it will almost certainly be waived for appellate purposes. Worse yet, if you don’t object in the right way, you almost certainly will have insulated the error from federal review. This is especially true in a capital case because there is no way to anticipate what motion or objection, thus far deemed a “loser” by the courts, may ultimately become a winner. For example, for many years, lawyers representing capital defendants filed motions asking for the right to “reverse Witherspoon” capital juries. These lawyers figured that, if under Witherspoon v. United States, 391 U.S. 510 (1968), the prosecution had the right to identify and strike for cause all potential jurors who would be unable to impose the death penalty under any circumstances, lawyers for the defense should be able to identify and strike those who would never consider anything else. Courts denied these motions time and again in Illinois, and the denials routinely were affirmed by the Illinois Supreme Court. Then, the U.S. Supreme Court decided Morgan v. Illinois, 504 U.S. 719 (1992), and agreed with the “reverse Witherspoon” advocates. If the trial lawyers representing Derrick Morgan had not made their record—had not been willing to hear the word “denied” one more time—this right would not exist. Pay attention to making the record as you are trying the case. You need to make your objections, of course, but you also need to be careful not to “unmake” them by appearing to

accede to the judge’s ruling. For example, if you object to a photograph’s introduction into evidence and the objection is overruled, don’t say, “Okay, Your Honor.” Instead, try to say something innocuous such as, “I understand your ruling”—but be careful. Increasingly, state courts are following the federal lead and avoiding issues by finding waivers whenever they can. Also, you must make those objections with appropriate reference to the federal Constitution. Why is this federalizing important? After all, you are the trial lawyer, and the writ of habeas corpus seems to most trial attorneys some arcane thing that “federal” attorneys do to fix what went wrong in state court that resulted in imprisonment or a death sentence for their client. It seems far removed and relatively unimportant in the preparation of a case for trial. Trial lawyers, particularly defense attorneys, certainly understand how important it is to preserve the record, to object, and to state both the state and federal grounds for the objection. But what is not immediately apparent is how, working backward, the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) has altered and intensified not only the need to preserve the record but also the manner in which it must be done. In fact, the AEDPA can be seen as providing the support and justification for expanded motions practice, evidentiary hearings, and discovery. Before the AEDPA, it certainly could be argued that a conscientious defense attorney should file and litigate only those motions that she had, at the least, more than a suspicion or a hunch were necessary. For instance, she would not file a motion to dismiss the charges based on allegations of prosecutorial misconduct unless she had very solid evidence of that misconduct and the conduct was sufficiently egregious to warrant such a motion. Indeed, even if it were that egregious, she might decide not to file it, because of trial strategy or because she thought the motion unlikely to succeed. She could do so, secure in the knowledge that should more evidence come to light later on, and she could not reasonably have located it through the exercise of due diligence, she could mount a challenge in a federal habeas corpus proceeding. That simply is no longer the case, unless the prosecutorial misconduct is of such a nature that the lawyer could show not only prejudice to the court (a difficult enough endeavor) but innocence of the crime itself. If the defense attorney has any reason at all to file such a motion, she must do so. The price of silence is that the issue almost never can be brought to the attention of the federal court unless it is accompanied by proof of actual innocence. This certainly increases the burden on the defense. To fail to object, file a motion, or elicit a fact from a witness may indeed later prove literally fatal to your client’s ability to even talk about the issue to a federal court. It is a daunting and frightening prospect. Also on your to-do list in a capital case is to decide whether your client needs to go to trial at all. The importance of negotiation cannot be stressed enough. If it is possible to settle your case with a plea for life or a term of years, you should work to do that. Many factors play into the ability to negotiate: strength of the prosecution’s murder case, strength of the aggravation case, whether it is an election year (is the judge going to worry about how he looks to the electorate?), whether you are an opponent the prosecution respects, and a host of other issues. But as Guideline 10.91 states, it is your duty to seek an “agreed upon disposition” of the case.

Failing successful plea negotiations, you must be fully prepared for trial. The major difference between trial preparation in capital and noncapital settings is that your theory of the case in a capital case must work with your theory of mitigation. Some theories of the case flow obviously into the life phase of the trial. For example, if your defense is insanity, the mitigation presentation will likely be an extension of the defense at trial. If your client is convicted of felony murder—say, in the course of an armed robbery where the victim went for the gun—part of your mitigation likely will focus on the unintentional nature of the crime, i.e., it is felony murder even if the deceased died of a heart attack during an armed robbery, but it is not the cold-blooded “worst of the worst” case we think of as deserving of the death penalty. If you are presenting a vigorous “wrong guy” defense, you must face up to the fact that the jury disagreed with you, then present your mitigation out of respect for the awesome challenge facing the jury—choosing punishment. If there is a conflict in your theories, you have to acknowledge it and be honest with the jury. You cannot say that this is the wrong guy and now he is sorry, but you can say that he is the wrong guy in our estimation, but you disagreed with us, members of the jury, and we will now tell you his story to help you with this next decision. The Supreme Court quoted my previous article when it denied relief to the capital defendant whose lawyer conceded his guilt at trial. The excerpt the Court selected: Counsel therefore may reasonably decide to focus on the trial’s penalty phase, at which time counsel’s mission is to persuade the trier that his client’s life should be spared. Unable to negotiate a guilty plea in exchange for a life sentence, defense counsel must strive at the guilt phase to avoid a counterproductive course. I also wrote that “[i]t is not good to put on a ‘he didn’t do it’ defense and a ‘he is sorry he did it’ mitigation. This just does not work. The jury will give the death penalty to the client and, in essence, the attorney.” See Lyon, “Defending the Death Penalty Case: What Makes Death Different?,” 42 Mercer L. Rev. 695, 708 (1991)), quoted in Florida v. Nixon, 543 U.S. 175 (2004). I want to be clear that what I mean by that statement is not that you should concede guilt but rather that you must honestly confront the fact the jury rejected the defense at trial and then present mitigation that tells the jury who your client is and why his life is valuable. The point is not that you should never put on a defense based on the theory that the police got the wrong guy, but think these things through before you start trial; even if you have an innocent client, the odds are you will be facing a penalty phase. Be prepared to try your case with that in mind. As you begin trial, keep in mind that jury selection in a capital case is far more complicated and difficult than in an ordinary case. For one thing, it is clear that the “process effect” of asking jurors about the death penalty before they have decided the question of guilt or innocence predisposes jurors to believe that the outcome of the trial is a foregone conclusion. As I mentioned earlier, under Witherspoon v. Illinois the state has the right to ask the trial court to exclude, for cause, anyone who could not consider giving the death penalty. Subsequent U.S. Supreme Court decisions modified Witherspoon and held that only those jurors whose views on the death penalty could “prevent or substantially impair” their

ability to perform their duties as jurors could be stricken for cause. Although this somewhat relaxed the rigors of inquiry on one side of the question, in the long run it complicated matters, because “death-qualification” became a three-dimensional phenomenon for the interrogator. First, jurors who are “substantially impaired” by virtue of anti-capital punishment views must be identified. Second, jurors who are “substantially impaired” by virtue of pro-capital punishment views must be identified. Third, venire members must be identified who are “substantially impaired” in considering lawful mitigating evidence. Inquiry into a prospective juror’s thoughts and feelings about the death penalty is a far more complex process than simply finding out whether a juror is “for” or “against” capital punishment. It is imperative to discover whether the juror generally is favorable to or against the concept, whether the juror can listen to both aggravating and mitigating evidence, and whether that potential juror can actually consider each. Since studies consistently show that you are far more likely to get good information from jurors if you ask yourself whether it is important to request attorney participation in voir dire in every single case. (I recommend that you read Dr. Sunwolf’s excellent book Practical Jury Dynamics, published by Lexis/Nexis. It is a highly useful primer on jury selection that weaves the lessons learned from these studies into practical guidance.) Figure out the areas of potential bias in your case, and make sure that you cover them in voir dire. It is preferable to ask questions yourself, but you also should request a jury questionnaire. Many prospective jurors will give information to you in writing that they would be very hesitant to disclose in open court. The questionnaire also will help you to hone your questions to the areas most relevant to your case. Although many state courts are not accustomed to questionnaires, if you offer to solve the logistical problems for the court (for example, you will mail out the questionnaires and get them copied and distributed or, if the court prefers, have the questionnaires handed to the venire and filled out in court, after which you will copy and distribute them), a court may let you use them, particularly since a good questionnaire can be a real time-saving device. Getting the right people to listen to your case is very important and deserves as much of your attention and preparation as any other part of the case. The final nuts and bolts in a capital trial comes in the life phase. Mitigation is anything that might persuade a jury to punish with less than the death penalty. In essence, the defense attorney should bring the following three types of evidence to the jury’s attention: 1. showing the jury the good things the client has done throughout his life; 2. explaining how the client became the person he is now, i.e., why he has been violent. This is usually shown through evidence of abuse, psychiatric conditions, addictions, or other family and developmental problems; and 3. convincing the jury that the defendant’s life has value for himself and others. These are the facts that your investigation of the client’s life helped you to find. Your mitigation argument should include witnesses and exhibits that tell the story of your client’s life, and should answer the two main questions a death-qualified jury faces: Why did this person turn out this way, and can we feel safe if

he is imprisoned rather than killed? If the focus of the life phase is on asking the jury to balance the crime and the client, you will almost certainly lose. It is very important to change the focus and language of the life phase from a comparison of the victim’s and your client’s suffering to a question of choice of punishment. After all, that is what the jurors are doing— once they found your client guilty, they ensured that he was going to be punished, and punished severely. Your job now is to convince those jurors to give him a punishment other than death. You want to figure out how to tell your client’s story in the most effective way you can. At every step, always remember that a capital case is all about emotions. People vote first with their hearts, livers, or stomachs (whatever part of the anatomy they identify with), and second with their heads. This does not mean that logic and proof have nothing to do with the case. Rather, it means that as a capital defender, you must understand in a visceral way that part of your job is to recognize and prepare for the emotional reactions of the jury, judge, and prosecutors to the case. You cannot ignore emotions; they will not go away. Part of your time must be spent in developing a relationship with your client, his or her family, and, if possible, with the family of the victim. You will be surprised how receptive a victim’s family members may be if you approach them with respect and some sensibility to their loss, either through an intermediary such as a clergyman or by yourself. I cannot emphasize enough the importance of your relationship with your client. If he or she does not trust you, you will operate in ignorance of facts (good and bad) that you need in order to do well. Many lawyers feel that this is undue “hand holding” of the client and is “not my job.” This is literally true—you are not your client’s family member, priest, or therapist. But in a very real sense you are some part of all three. You are the person to whom your client looks for meaning and understanding of the “system,” for guidance on his behavior in court, for your expert assessment of the case, and for the strategy you both should take. It is not possible to win if your client doesn’t want to win—your client has to want to live. It is possible to convince a jury of the value of your client’s life only if you both believe it has value. Establishing a relationship with your client is not some unnecessary form of hand holding or pseudo-therapy—it is a necessity. It is not only the moral or right thing to do—it is the practical thing to do. Finally, trying a capital case requires a real commitment from you. It requires not only a substantial devotion of your time and your talent, which is significant enough, but also your heartfelt belief in the value of your client’s life. A jury knows if you are insincere or if this is just a job to you. In most death penalty cases, it is the defense that means the difference between life and death. If you prepare well, work with a talented and diverse team, and the case matters to you, you can save your client’s life.

Texas Criminal Defense Lawyers Association

4th Annual Harris County Capital Murder Seminar May 21, 2021

Topic: Zealous and Ethical Mitigation Speaker:

Hannah Brooks legal@hjbrooks.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

5/21/2021

Zealous and Ethical Mitigation Hannah Brooks 21 May 2021

What is mitigation? Why does it matter?

• State v. Hoskins indcacates that we are to: we determine questions aggravation and mitigation in the sentencing process • When significant mitigation is established we may reasonably impact sentencing because what caused the crime is not mere criminal intent

5/21/2021

ABA Guidelines for the appointment and performance of defense counsel in death penalty cases

- Mental Health Issues

What does mitigation consider?

- Physical Health and Medical Reports - Family - Social - Culture - Circumstances of Crime(s)

Via interviews and investigation

How is this done ethically?

Effectively Efficiently Empathetically

5/21/2021

Hannah J. Brooks Legal@HJBrooks.com

Texas Criminal Defense Lawyers Association

4th Annual Harris County Capital Murder Seminar May 21, 2021

Topic: Logistics and Questionnaires in Death Penalty Jury Selection Speaker:

Jerald Graber 917 Franklin St Ste 510 Houston, TX 77002-1764 (713) 224-2323 Phone (713) 227-9900 Fax graberlaw@sbcglobal.net

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

4th Annual Harris County Capital Murder Seminar May 21, 2021

Topic: Techniques of Death Penalty Voir Dire Speaker:

Skip Cornelius 2028 Buffalo Ter Houston, TX 77019-2408 (713) 224-2323 Phone rpcornelius@hotmail.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

DEATH PENALTY JURY SELECTION

I POOL METHOD VS. MAKE IT TAKE IT

II EVALUATE YOUR CASE FOR JURY SELECTION 1.

WILL YOU ESTABLISH RESIDUAL DOUBT?

IS THIS PURELY A MITIGATION CASE?

FORGET THE FUTURE DANGEROUS QUESTION.

III GO DEEP ON BACKGROUND WORK ON RAPPORT ARE YOU INCLINED TO TAKE THIS JUROR? IF NO:

PRESUMPTION OF INNOCENSE 5TH AMENDMENT BEYOND A REASONABLE DOUBT STRIPPING QUESTIONS

IF YES:

PREPARE THEM FOR THE BLOOD AND SORROW

IV FORGET THE SCALES HAVE YOU STUDIED ANY STATISTICAL ANALYSIS COMPARING THE COST OF THE YEARS OF TRIALS AND APPEALS TO ACTUALLY EXECUTE A SINGLE PERSON VERSUS THE COST OF HOUSING THEM IN THE PENITENTIARY CAN PEOPLE CHANGE - GIVE ME AN EXAMPLE DRUGS - CAN PEOPLE OVERCOME ADDICTION - HAVE YOU SEEN IT IS EVERYONE BORN WITH SAME OPPORTUNITIES IN LIFE LOOK AT THE PROSECUTORS IF THEY DO NOT PROVE THE CASE BRD WHAT WILL YOUR VERDICT BE? IF YOU ARE NOT CONVINCED BRD ON THE FUTURE DANGEROUS QUESTION WHAT WILL YOUR VERDICT BE? IF YOU DO FIND A REASON TO TURN AWAY FROM A DEATH SENTENCE HOW WILL YOU ANSWER THE MITIGATION QUESTION?

Texas Criminal Defense Lawyers Association

4th Annual Harris County Capital Murder Seminar May 21, 2021

Topic: Intellectual Disability Speaker:

Pat McCann 700 Louisiana St Ste 3950 Houston, TX 77002-2859 (713) 223-3805 Phone (713) 226-8097 Fax writlawyer@outlook.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-77,038

US CARNELL PETETAN, JR., Appellant v. THE STATE OF TEXAS ON REHEARING UPON COURT’S OWN MOTION FROM CAUSE NO. 2012-2331-C1 IN THE 19TH DISTRICT COURT McLENNAN COUNTY NEWELL, J. filed an opinion in which HERVEY, RICHARDSON, WALKER and MCCLURE, JJ., joined. KELLER, P.J., filed a dissenting opinion in which YEARY, KEEL and SLAUGHTER, JJ., joined. Appellant was convicted of the capital murder of his wife, Kimberly Petetan. The jury rejected, in a special issue, Appellant's claim that he is intellectually disabled and therefore categorically ineligible for the death

Petetan Opinion On Rehearing — 2 penalty.1 And the jury answered the statutory special issues in such a manner that Appellant was sentenced to death. Appeal to this court is automatic. We affirmed.2 Among the points of error we rejected were three relating to Appellant’s claim that he is intellectually disabled: that the jury’s answer to the intellectual disability special issue was against the great weight and preponderance of the evidence (claim 10); that he is ineligible for the death penalty due to intellectual disability (claim 11); and that he was entitled to a pre-trial determination of his intellectual disability (claim 27). At the time of our decision, Texas’s standard for evaluating claims of intellectual disability was being reviewed by the United States Supreme Court in the case of another Texas capital offender, Bobby James Moore. In 2015, we had held that Moore was not intellectually disabled and

The United States Supreme Court first used the term “mentally retarded” and its variants when it first recognized the Eight Amendment limitation on executing criminal defendants diagnosed with intellectual disability disorder. Atkins v. Virginia, 536 U.S. 304, 306 (2002). The Court later announced that it would use the term “intellectual disability” to replace the term “mental retardation” because that was the terminology used in the Diagnostic and Statistical Manual of Mental Disorders. Hall v. Florida, 572 U.S. 701, 704 (2014). The fifth edition of the Diagnostic and Statistical Manual on Mental Disorders recognizes that this terminology is interchangeable with the more precise term for the disorder, “intellectual developmental disorder.” American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders at 33 (5th ed. 2013) (“DSM–5"). This opinion refers to the phrase “intellectual disability” and its variants even when referring to precedent using the phrase “mental retardation” and its variants for the sake of consistency. 2

Petetan v. State, ___ S.W.3d ___, 2017 WL 915530 (Tex. Crim. App. Mar. 8, 2017).

Petetan Opinion On Rehearing — 3 consequently was eligible for the death penalty.3 The question before the Supreme Court was whether Texas’s legal standard for determining intellectual disability violated the Eighth Amendment’s prohibition against the execution of intellectually disabled people.4 Before we issued our mandate in the instant case, the Supreme Court decided that it did.5 We granted rehearing in this case on our own motion to consider Appellant’s tenth, eleventh, and twenty-seventh claims in light of Moore. We substitute this opinion on rehearing for our resolution of those three issues, but leave the resolution of the other issues in the original opinion intact. Here, we again reject the claim that Appellant was entitled to a pre-trial determination of his intellectual disability.

Concerning the

sufficiency of the evidence regarding the jury’s rejection of his intellectual disability

claims,

apply

contemporary

clinical

standards—the

framework set forth in the DSM–56—for assessing intellectual disability. We hold that, although legally sufficient, the evidence was factually

Ex parte Moore, 470 S.W.3d 481, 527–28 (Tex. Crim. App. 2015) (“Ex parte Moore

Moore v. Texas, 137 S. Ct. 1039, 1044 (2017) (“Moore I”).

I”).

Id.

American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013).

Petetan Opinion On Rehearing — 4 insufficient to support the jury’s rejection of the intellectual disability special issue. Appellant is therefore entitled to a new punishment hearing. Accordingly, we vacate Appellant’s death sentence and remand this cause for a new punishment hearing. Background The United State Supreme Court has held that executing a defendant diagnosed with intellectual developmental disorder violates the Eighth Amendment. When the State seeks the death penalty, a criminal defendant wanting to raise this issue must prove, by a preponderance of the evidence, that he is intellectually disabled.7 He must prove that he has subaverage intellectual functioning, and significant limitations in adaptive skills such as communication, self-care, and self-direction—both manifest before age eighteen.8 Relevant to these criteria, the jury heard evidence at the

Franklin v. State, 579 S.W.3d 382, 386 (Tex. Crim. App. 2019) (the issue of intellectual disability is like an affirmative defense; the defendant has the burden to prove it by a preponderance of the evidence, whether the issue is raised at trial or on habeas). 8

Hall, 572 U.S. at 710 (“the medical community defines intellectual disability according to three criteria: significantly subaverage intellectual functioning, deficits in adaptive functioning (the inability to learn basic skills and adjust behavior to changing circumstances), and onset of these deficits during the developmental period”); Atkins, 536 U.S. at 318 (“clinical definitions of [intellectual disability] require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18”).

Petetan Opinion On Rehearing — 5 punishment phase of Appellant’s trial that all of Appellant’s IQ scores, adjusted for the standard error of measurement, fell in the “significantly subaverage intellectual functioning” category, and that several experts had diagnosed Appellant with intellectual disability.

First, the Texas

Juvenile Justice Commission records showed that, in February of 1991, at age fifteen, Appellant was administered a child IQ test. The test yielded a full-scale IQ score of 61. It also yielded a verbal IQ score of 67 and a performance IQ score of 61. Second, in November 1991, psychiatrist Dr. Harold Scott examined Appellant as he entered a juvenile justice facility. As a result of the examination and previous test scores, Dr. Scott diagnosed Appellant as having “mild [intellectual disability] versus borderline intellectual functioning.” The phrase “versus borderline intellectual functioning” was a

hedge

the

intellectual

diagnosis

because

Appellant’s

passive-aggressive nature and his stubbornness undermined the usefulness of the clinical interview as a measure of intellectual ability. Dr. Scott also diagnosed Appellant as having conduct disorder. Third, psychologist Dr. Ray Coxe administered intelligence and achievement tests to Appellant at age sixteen in April 1992. This testing was for the Jefferson County Juvenile Probation Office. The intelligence

Petetan Opinion On Rehearing — 6 tests for both children and adults were qualified for sixteen-year-olds, and Appellant took both tests. Appellant’s full-scale IQ score on the child test was 64 and on the adult test was 74. Dr. Coxe testified that the first test—where he had doubts about whether Appellant was putting forth his full effort—was the child test, which yielded the lower IQ score. Dr. Coxe felt that the second test, the adult test that yielded an IQ score of 74, was a reliable indicator of Appellant’s functioning. Nevertheless, Dr. Coxe testified that his “overall impression,” based on the results of testing and on observations during interviews, was that Appellant “was mildly [intellectually disabled].” He also diagnosed him with “undersocialized aggressive conduct disorder.” Fourth, an IQ test was given to Appellant when he entered the adult prison system. Travis Turner, the Vice Chairman of Classification in the Texas Department of Criminal Justice, testified that an offender is given an initial IQ test upon entry. If the offender scores below a certain cutoff, then a “secondary test”—involving adaptive behavior screening—is given to determine whether the offender should be assigned to the “developmentally disabled” program in the Hodge Unit. Appellant’s score on the IQ test was 69, so he was given the secondary test. There was no evidence of the results of that test. But Appellant was not assigned to

Petetan Opinion On Rehearing — 7 the program; he was assigned to the prison’s regular facilities. Fifth, in 2012, IQ testing was done as part of a Social Security disability

assessment.

Appellant,

then

age

thirty-six,

was

administered the WAIS–III IQ test, which yielded a full-scale IQ score of 55. The psychologist who conducted the test, Dr. Mark Correia, did not testify at trial, but his report was admitted into evidence. Dr. Correia diagnosed Appellant as having mild intellectual disability and antisocial personality disorder. The “mild [intellectual disability]” diagnosis was provisional “due to lack of supportive documentation from the developmental period.” Sixth, neuropsychologist Dr. Joan Mayfield conducted IQ tests and other testing at the request of the defense.

She administered the

WAIS–IV IQ test and obtained a full scale IQ of 52. In light of all her testing, Dr. Mayfield concluded that Appellant “presents with global delays, global delays in intellectual ability and academic and attention and executive functioning and problem solving, memory, language, motor, and visual perception. There was global delays across all domains.” And seventh, psychologist Dr. Ellis Craig conducted an evaluation at the request of the defense to determine whether Appellant had adaptive deficits. He used the Adaptive Behavior Assessment System II

Petetan Opinion On Rehearing — 8 (ABAS–II), which uses people who know the subject (called “informants”) to assess the subject’s adaptive behavior in a number of areas. Dr. Craig conducted a “retrospective” screening, using reporting from family members. Dr. Craig concluded that the adaptive assessment scores fell within the range for moderate intellectual disability. As defense counsel pointed out to the jury in closing, the State did not put on an opposing expert to say that Appellant was not intellectually disabled. The jury considered all the evidence related to Appellant’s claim of intellectual disability and rejected it.

The jury also found against

Appellant on the mitigation special issue. I.

The Evolution of the Legal Framework for Determining Intellectual Disability A.

Atkins

In Atkins v. Virginia, the Supreme Court held that the Eighth Amendment bars the execution of intellectually disabled offenders.9 The Court stated that those intellectually disabled persons “who meet the law’s requirements for criminal responsibility should be tried and punished when they commit crimes.”10 But a death sentence is not a suitable

Atkins v. Virginia, 536 U.S. 304 (2002).

Id. at 306.

Petetan Opinion On Rehearing — 9 punishment for an intellectually disabled criminal because the diminished capacity of the intellectually disabled criminal lessens his moral culpability.11 The Court noted that clinical definitions of intellectual disability “require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18.”12

But the Court

recognized that “[n]ot all people who claim to be [intellectually disabled] will be so impaired as to fall within the range of [intellectually disabled] offenders about whom there is a national consensus” regarding diminished moral culpability.13 It otherwise left to the States the task of developing appropriate ways to enforce this constitutional restriction.14 B.

Hall

Later, in Hall v. Florida, the Court established rules, based on clinical standards, for interpreting IQ scores.15 Clinical definitions for intellectual

Id.

Id. at 318.

Id. at 317.

Id.

Hall v. Florida, 572 U.S. 701 (2014).

Petetan Opinion On Rehearing — 10 disability, by their express terms, reject a strict IQ test score cutoff at 70 and include the standard error of measurement (“SEM”).16

The SEM is

“a statistical fact, a reflection of the inherent imprecision of the test itself.”17 For purposes of most IQ tests, this imprecision in the testing instrument means that an individual’s score is best understood as a range of scores on either side of the recorded score within which one may say an individual’s true IQ score lies.18 Florida, however, had a law that, as interpreted, defined intellectual disability to require an IQ test score of 70 or less and failed to take into account the SEM.19

The Court held that Florida’s 70-point threshold

disregarded established medical practice in two interrelated ways: (1) it took an IQ score as final and conclusive evidence of a defendant’s intellectual capacity, when experts would consider other evidence; and (2) it relied on a purportedly scientific measurement of a defendant’s abilities, his IQ score, while refusing to recognize that measurement’s

Id. at 712–13, 719.

Id. at 713.

Id.

Id. at 711–12.

Petetan Opinion On Rehearing — 11 inherent imprecision.20 The Court held that Florida’s strict IQ cutoff was unconstitutional because it created an unacceptable risk that persons with intellectual disability will be executed.21 After Hall, a State cannot refuse to consider other evidence of intellectual disability when a defendant’s IQ score is close to, but above, 70.22 Though Hall reiterated that the legal determination of intellectual disability is distinct from a medical diagnosis, it also emphasized that the legal determination is informed by the medical community’s diagnostic framework.23 C.

Ex parte Moore I and Ex parte Moore II

The following year, in Ex parte Moore I, we held that Moore’s IQ scores of 78 and 74 failed to establish by a preponderance of the evidence that he had significantly sub-average general intellectual functioning.24 Even though Moore had not established that criterion for

Id. at 712.

Id. at 704.

Id. at 723 (“[W]hen a defendant’s IQ test score falls within the test’s acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits.”). 23

Id. at 721.

Ex Parte Moore I, 470 S.W.3d at 514.

Petetan Opinion On Rehearing — 12 intellectual disability, we went on to consider adaptive functioning.25 We held that Moore had not proven by a preponderance of the evidence that he had significant and related limitations in adaptive functioning.26 We noted some of Moore’s adaptive strengths, such as the fact that he survived on the streets, mowed lawns, and played pool for money.27 We further stated that the record showed that Moore’s academic difficulties were caused by a variety of factors—including trauma from the emotionally and physically abusive atmosphere in which he was raised and undiagnosed learning disorders—rather than by significantly sub-average general intellectual functioning.28 We concluded that Moore had not shown that his adaptive deficits were related to significantly subaverage general intellectual functioning.”29 But we also relied upon our own case, Ex parte Briseno,30 to support this conclusion.31

We said that the Briseno factors weighed heavily

Id. at 520.

Id.

Id. at 522.

Id. at 488, 526.

Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004).

Ex parte Moore I, 470 S.W.3d at 526–27.

Petetan Opinion On Rehearing — 13 against a finding that Moore’s adaptive deficits were related to significantly sub-average general intellectual functioning.32 We then rejected Moore’s claim of intellectual disability.33 The Supreme Court granted certiorari. The Supreme Court held in part that our conclusion regarding Moore’s IQ scores was irreconcilable with Hall.34 The Court stated that our consideration of factors unique to Moore in disregarding the lower end of the SEM was contrary to clinical standards.35 According to clinicians, the presence of other sources of imprecision in administering the test to a particular individual cannot narrow the test-specific standard-error range.36 Because the lower end of Moore’s score range fell at or below 70, we had to move on to consider Moore’s adaptive functioning.37 The Court also found fault with our adaptive-deficit conclusion.38 First, the Court held that our reliance on Moore’s perceived adaptive

Id.

Id. at 527–28.

Moore I, 137 S. Ct. at 1049.

Id. at 1049–50.

Id. at 1049.

Id.

Id. at 1050.

Petetan Opinion On Rehearing — 14 strengths was erroneous.39 The proper inquiry, according to clinicians, should be on Moore’s deficits, like his lack of a basic understanding of time, seasons, the standards of measure, basic math, and his limited ability to read and write.40

The Court also chastised our reliance on

Moore’s behavior in prison to support a finding of adaptive strengths.41 According to the Court, this was inappropriate because clinicians caution against reliance on adaptive strengths developed in a controlled setting, like a prison.42 Suspect, too, was our finding of record support that Moore’s academic difficulties were caused by a variety of factors rather than significantly sub-average general intellectual functioning.43 According to the Supreme Court, clinicians rely on such traumatic experiences as cause to explore the prospect of intellectual disability further, rather than to counter the case for a disability determination.44 The Court also said that we departed from clinical practice by 39

Id.

Id. at 1051.

Id.

Petetan Opinion On Rehearing — 15 requiring Moore to show that his adaptive deficits were not related to “a personality disorder.”45 Again, according to clinicians, the existence of a personality disorder or mental-health issue is “‘not evidence that a person does not also have intellectual disability’”; many intellectually disabled people also have other mental or physical impairments.46 Finally, the Court held that our attachment to the seven Briseno evidentiary factors “further impeded” our assessment of Moore’s adaptive functioning.47 The Court criticized the use of these factors both because they had no grounding in prevailing medical practice and because they invited “lay perceptions of intellectual disability” and “lay stereotypes” to guide assessment of intellectual disability.48 Emphasizing the Briseno factors over clinical factors, the Court said, creates an unacceptable risk that persons with intellectual disability will be executed.49 To sum up, the Court held that we, contrary to clinical practice: overemphasized Moore’s perceived adaptive strengths; stressed Moore’s improved behavior in

Id.

Id. (quoting Brief for American Psychological Association, APA, et al. as Amici Curiae

Id.

Id. at 1052.

Id. at 1051.

19).

Petetan Opinion On Rehearing — 16 prison; concluded that Moore’s record of traumatic experiences detracted from a determination that his intellectual and adaptive deficits were related; required Moore to show that his adaptive deficits were not related to a personality disorder; and considered the Briseno factors. The Court vacated our judgment and remanded the case for further proceedings not inconsistent with the opinion.50 On remand, we adopted the contemporary clinical standards set forth in the DSM–5 for assessing intellectual disability.51

We applied

those standards and once again determined that Moore was not intellectually disabled.52 Given that determination, we held that Moore was eligible for the death penalty.53 The Supreme Court granted certiorari and summarily reversed.54 The Supreme Court emphasized that, while Atkins and Hall left to the States the task of developing appropriate ways to enforce the restriction on executing intellectually disabled people, a court’s intellectual disability

Id. at 1053.

Ex parte Moore, 548 S.W.3d 552, 560 (Tex. Crim. App. 2018) (“Ex parte Moore II”).

Id. at 573.

Id.

Moore v. Texas, 139 S. Ct. 666 (2019) (per curiam) (“Moore II”).

Petetan Opinion On Rehearing — 17 determination must be informed by the medical community’s diagnostic framework.55

According to the Court, we had again run afoul of the

medical community’s diagnostic framework. This Court had: “relied less upon the adaptive deficits to which the trial court had referred than upon Moore’s apparent adaptive strengths”; “relied heavily upon adaptive improvements made in prison”; “concluded that Moore failed to show that the ‘cause of [his] deficient social behavior was related to any deficits in general mental abilities’ rather than ‘emotional problems’”; and “used many of [the Briseno] factors in reaching its conclusion.”56 The Court concluded that our opinion rested upon analysis too much of which too closely resembled what it had previously found improper.57 Given that, the Court held that Moore had shown he is a person with intellectual disability.58 D.

The DSM–5, AAIDD-11, and “Relatedness”

Id. at 669.

Id. at 670–71.

Id. at 672.

Id. at 672. The Supreme Court reversed and remanded. And we reformed Moore’s sentence to life. Ex parte Moore, 587 S.W.3d 787, 788–89 (Tex. Crim. App. 2019) (“Having concluded that Applicant is a person with intellectual disability that is exempt from the death penalty, the Supreme Court has resolved Applicant’s claim in his favor. There is nothing left for us to do but to implement the Supreme Court’s holding. Accordingly, we reform Applicant’s sentence of death to a sentence of life imprisonment.”).

Petetan Opinion On Rehearing — 18 The Supreme Court’s evolving jurisprudence after Atkins leaves one small question open; must a defendant show that adaptive deficits are “related” to sub-average intellectual functioning? In Atkins, the United States Supreme Court mentioned two sources for determining intellectual disability, one from the American Psychiatric Association (APA) and the other from the American Association on Mental Retardation (now the AAIDD).59 Both pointed to the same three accepted diagnostic criteria (sub-average intellectual functioning, adaptive deficits, and onset prior to age eighteen), and both added the requirement that adaptive deficits must be related to sub-average intellectual functioning. But the AAIDD has since dropped that requirement, while the APA has not.60 The APA and the AAIDD seem to approach their respective manuals from slightly different perspectives. The APA has designed the DSM-5 primarily as an aid to clinicians; the drafters sought a common

Atkins, 526 U.S. at 308 n.3. At the time, the APA derived its definition and diagnostic criteria for intellectual disability from the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders. The definition and diagnostic criteria has not changed from the fourth to the fifth edition. Compare DSM-4 at 42–43 with DSM-5 at 37–38. The American Association on Mental Retardation derived its definition and diagnostic criteria for intellectual disability from the ninth edition of its diagnostic manual, “Mental Retardation: Definition, Classification, and Systems of Supports 5.” After Atkins, The American Association on Mental Retardation changed its name to the American Association on Intellectual and Developmental Disabilities (AAIDD). AAIDD currently derives its definition and diagnostic criteria for intellectual disability from the eleventh edition of that diagnostic manual. The current edition of the AAIDD diagnostic manual omits the “relatedness” requirement. 60

See note 59.

Petetan Opinion On Rehearing — 19 terminology that would apply to a wide range of disciplines, including the law.61 The DSM recognizes that its diagnostic criteria are guidelines for use by clinicians, and acknowledges the need for caution when using them in forensic settings.

It specifically notes the risk of misuse

attendant to relying upon the DSM-5's categories, criteria, and textual descriptions in a forensic setting.62 Nevertheless, this caution underlies that the manual has been drafted with the understanding that it will be used as a reference for courts and attorneys as well as clinicians.63 In contrast, the AAIDD takes a more forward-looking view. According to the AAIDD-11, “the concept of intellectual disability (ID) belongs within the general construct of disability that has evolved over the last 3 decades to emphasize an ecological perspective that focuses on the interaction of the person with his or her environment and the recognition that the systemic application of individualized supports can

DSM-5 at xii (“Although this edition of DSM was designed first and foremost to be a useful guide in clinical practice, as an official nomenclature it must be applicable to a wide diversity of context.”). 62

DSM-5 at 25 (“When DSM-5 categories, criteria, and textual descriptions are employed for forensic purposes, there is a risk that diagnostic information will be misused or misunderstood.”). 63

Id. (“Although the DSM-5 diagnostic criteria and text are primarily designed to assist clinicians in conducting clinical assessment, case formulation, and treatment planning, DSM-5 is also used as a reference for the courts and attorneys in assessing the forensic consequences of mental disorders.”).

Petetan Opinion On Rehearing — 20 enhance human functioning.”64

Further, the AAIDD does not regard

intellectual disability as a character trait.65 Instead, it sees intellectual disability as exemplifying the interaction between the person and his or her environment. The focus is on the role that individualized supports can play in enhancing human functioning and allowing for the pursuit and understanding of the principles inherent within the disability movement.66 According to the AAIDD-11, “an important purpose of describing limitations is to develop a profile of needed supports.”67 The approach taken in each manual highlights the inherent tension between the clinical perspective attendant to a diagnosis of intellectual development

disorder

and

the

legal

determination

moral

blameworthiness.68 At its core, Atkins seems to rest its justification for a death-penalty exemption on the assumption that intellectual disability is a character trait that lessens moral culpability and so the retributive 64

AAIDD at xiii.

Id.

Id. at 1.

See, e.g., Kansas v. Crane, 534 U.S. 407, 413 (2002) (noting that “the science of psychiatry, which informs but does not control ultimate legal determinations, is an ever-advancing science, whose distinctions do not seek precisely to mirror those of the law”); Hall, 572 U.S. at 721 (“It is the Court's duty to interpret the Constitution, but it need not do so in isolation. The legal determination of intellectual disability is distinct from a medical diagnosis, but it is informed by the medical community's diagnostic framework.”).

Petetan Opinion On Rehearing — 21 value of the punishment. But the clinical criteria for diagnosing someone with intellectual development disorder seems to look forward to how the diagnosis can better assist the individual function in society without regard to any consideration of moral blameworthiness. And, as in the case with the AAIDD-11, there is an affirmative rejection of any character-based assessment. Nevertheless, the Supreme Court held that states are to focus on whether a capital murder defendant falls within that category of intellectual

developmental

blameworthiness—the exemption.69

original

disorder

that

justification

limits for

the

his

moral

categorical

To the extent that the clinical diagnosis of intellectual

developmental disorder can be harmonized with a reviewing court’s legal inquiry under Atkins and its progeny, the approach taken by the DSM-5 hews closer to the original justification set out by the Supreme Court than the AAIDD-11. And that is the approach we take. This is not to suggest that a court or jury should reject an expert’s testimony simply because the expert’s diagnosis was informed by the

Atkins, 536 U.S. at 306 (“Those [intellectually disabled] persons who meet the law's requirements for criminal responsibility should be tried and punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.”).

Petetan Opinion On Rehearing — 22 AAIDD-11. Such an approach would be antithetical to the caution urged by the drafters of the DSM-5 when considering the use of the manual in a forensic setting. As mentioned above, the criteria for diagnosing an individual with intellectual developmental disorder are largely the same in both diagnostic manuals. Nothing in this opinion should be construed as prohibiting consideration of or reliance upon the AAIDD-11. We only recognize that there must be a showing that adaptive deficits are related to subaverage intellectual functioning to satisfy the Atkins exception to the imposition of the death penalty. Neither do we suggest that this “relatedness” inquiry is unlimited. The Supreme Court did clarify in Moore I that relatedness cannot be a backdoor for reliance upon lay stereotypes or evidence of adaptive strengths to undermine an otherwise clinical diagnosis.70 Similarly, the Supreme Court faulted this Court for requiring proof that adaptive deficits are not related to “a personality disorder” because many intellectually disabled people have other mental or physical impairments.71 So while the relational requirement found in the DSM-5 is currently a necessary legal requirement under Atkins, it is not a vehicle to undermine an 70

Moore I, 137 at 1051.

Id.

Petetan Opinion On Rehearing — 23 otherwise clinical diagnosis through consideration of lay stereotypes, adaptive strengths, and alternative disorders. Under the DSM–5, the following three criteria must be met for a person to be considered intellectually disabled: (A) deficits in intellectual functions; (B) deficits in adaptive functioning that are directly related to the intellectual impairments; and (C) the onset of these intellectual and adaptive deficits during childhood or adolescence.72

We will address

criterion one and criterion two in turn. We do not address criterion three because it is not in dispute. With that background in mind, and now with the benefit of both Moore decisions, we revisit our resolution of Appellant’s intellectual disability claims in this case. II.

The Constitution Does Not Require a Pre-trial Determination of Intellectual Disability On original submission, Appellant argued that the trial court erred

in denying his motion for a pretrial determination of intellectual disability. At that time, the Legislature had not enacted legislation on this topic. This remains the case today.73

We concluded that “the issue of

DSM-5 at 33; see AAIDD–11. As Chief Justice Roberts noted in his dissent in Moore, “Keeping the relatedness requirement would be inconsistent with the AAIDD’s current guidance; dropping it would be out of step with the newest version of the DSM.” Moore, 137 S. Ct. at 1055 (Roberts, C.J., dissenting). 73

See Tex. HB 1139, 86th Leg., R.S. (2019). The bill, filed by State Rep. Senfronia Thompson, D-Houston, would have provided, among other things, that in the face of evidence

Petetan Opinion On Rehearing — 24 [intellectual disability] may not be litigated pretrial.”74 We reasoned that: At any pretrial determination of [intellectual disability], the State would have to marshal “all of its evidence” of the defendant’s guilt of the offense and his role in the offense in order for the factfinder to be able to assess how that evidence might weigh into resolving the issue. That has to occur because the defendant’s conduct in connection with the offense is relevant to determining whether he is [intellectually disabled]. Moreover, nearly all of the State’s punishment evidence would be relevant as well. For example, extraneous offenses not explored at the guilt phase could shed as much light on a defendant’s mental abilities as the offense for which he is on trial. [Intellectual disability] “is a sentencing issue,” and litigating such an issue before a finding of guilt “puts the cart before the horse and results in an advisory opinion.”75 On rehearing, Appellant argues that Moore undercuts our conclusion on

from a credible source indicating that a capital defendant is a person with an intellectual disability and a timely request, “the judge shall hold a hearing to determine the issue not later than the 120th day before the date the trial is scheduled to begin.” As was reported in the Texas Tribune on May 26, 2019: As the bill moved through the Senate, however, it was largely gutted, instead only stating that a defendant who has an intellectual disability can’t receive the death penalty and such determinations must be made using current medical standards. That language would have codified existing U.S. Supreme Court rulings but offered no direction on how to follow them. Earlier this week, when the bill came back from the Senate amended, Thompson requested a conference committee in which members from both chambers could iron out the differences between the two versions. The committees had until midnight Sunday to file a report with a compromise version. The deadline passed without a report. Elizabeth Byrne and Jolie Mccullough, Despite bipartisan support, Texas bill tackling intellectual disability in death penalty cases fails, Texas Tribune, May 26, 2019, https://www.texastribune.org/2019/05/26/Texas-death-penalty-intellectual-disability-fails/. 74

Petetan, 2017 WL 915530, at *46.

Id., at *45.

Petetan Opinion On Rehearing — 25 original submission.76 We disagree. Atkins and its progeny did not hold that an intellectual-disability determination was something other than a sentencing issue, and they do not require a pretrial determination. Nor do the cases (in spite of the Court’s rejection of the Briseno factors)77 say details of the offense can’t be considered at all; rather, the cases just state that the focus should be on adaptive deficits and that adaptive strengths should not be overemphasized.78

And, given the relational requirement under the

DSM–5, consideration of the details of the offense (and extraneous offenses) may be necessary when evaluating the strength and reliability of an expert’s opinion regarding intellectual disability. This is true even if the details do not provide an independent basis for determining the

Appellant’s Br. 52.

Briseno, 135 S.W.3d, at 8–9 (“Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?”). See Brief for AAIDD et al. as Amici Curiae 14– 15, and n.23 (“AAIDD has specifically disapproved of using the facts of the crime in the diagnostic process.” AAIDD, Manual 2010, supra note 3, at 102; American Association on Intellectual and Developmental Disabilities, User’s Guide: To Accompany the 11th Edition of Intellectual Disability: Definition, Classification, and Systems of Supports 20 (2012) (“Do not use past criminal behavior or verbal behavior to infer level of adaptive behavior. . . . The diagnosis of ID is not based on the person’s ‘street smarts,’ behavior in jail or prison, or ‘criminal adaptive functioning.’”)). But again, the jury is not diagnosing intellectual disability. It is determining whether Appellant fits in the class of “less morally culpable.” Ex parte Butler, 416 S.W.3d 863, 870–71, 875 & n.51 (Tex. Crim. App. 2012) (per curiam) (“while clinicians might not use such behaviors in their diagnostic analysis, factfinders in the judicial system are not precluded from doing so”) (Cochran, J., concurring). 78

See, e.g., Moore I, 137 S. Ct. at 1059.

Petetan Opinion On Rehearing — 26 existence of an intellectual disability.79

Therefore, under existing

Supreme Court case law, and in light of the lack of state legislation, we re-affirm our holding that intellectual disability is a sentencing issue. And sentencing issues are generally not ripe for review before a finding of guilt. Indeed, Texas courts are not empowered to give advisory opinions—a prohibition that extends to cases that are not ripe for review.80 An issue is ripe when “the facts are sufficiently developed ‘so that an injury has occurred or is likely to occur, rather than being contingent or remote.’ . . . Thus, the ripeness analysis focuses on whether a case involves uncertain or contingent future events that may not occur as anticipated or may not occur at all.”81 For example, in State ex rel. Watkins v. Creuzot, the defendant filed

DSM-5 at 38 (“To meet diagnostic criteria for intellectual disability, the deficits in adaptive functioning must be directly related to the intellectual impairments described in Criterion A.”). 80

Patterson v. Planned Parenthood of Hous. and Se. Tex., Inc., 971 S.W.2d 439, 443 (Tex. 1998). 81

Patel v. Tex. Dep’t of Licensing and Regulation, 469 S.W.3d 69, 78 (Tex. 2015) (quoting Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851–52 (Tex. 2000)); see In re Allen, 462 S.W.3d 47, 67 (Tex. Crim. App. 2015) (Newell, J., dissenting) (“‘At the time a lawsuit is filed, ripeness asks whether the facts have developed sufficiently so that an injury has occurred or is likely to occur, rather than being contingent or remote.’”) (quoting Patterson, 971 S.W.2d at 442).

Petetan Opinion On Rehearing — 27 a motion to preclude the death penalty in his retrial.82 He argued that the lengthy delay in obtaining post-conviction relief had rendered certain mitigation evidence unavailable.83 After several evidentiary hearings, the trial judge granted the motion.84 The State filed a petition for a writ of mandamus and prohibition to require the trial judge to vacate this order.85

We concluded that the trial judge did not have the legal

authority to preclude the State from seeking the death penalty and therefore conditionally granted mandamus relief.86 In support of that conclusion, we stated that the adequacy of the defendant’s mitigation case was not yet ripe for review.87 We explained: We do not put the cart before the horse: “a defendant has no claim of wrongful conviction or wrongful sentencing before he has even gone to trial.” The adequacy and efficacy of [the defendant’s] mitigation case cannot be judged unless he has actually been convicted of capital murder and sentenced to death. Any pretrial determination of that mitigation case is necessarily hypothetical and unlikely to fairly reflect reality as

State ex rel. Watkins v. Creuzot, 352 S.W.3d 493, 494–95 (Tex. Crim. App. 2011).

Id. at 498.

Id.

Id. at 494.

Id. at 506.

Id. at 504.

Petetan Opinion On Rehearing — 28 it plays out in an actual trial.88 That reasoning in Creuzot applies equally here. The injury Appellant complains about is imposing a death sentence on an intellectually disabled defendant in violation of the Eighth Amendment. But pretrial, that injury involves “uncertain or contingent future events that . . . may not occur at all.”89 Imposing a death sentence first requires a finding of guilt—something that, before trial, is “uncertain.” Holding a hearing on intellectual disability prior to a finding of guilt puts the cart before the horse and results in an advisory opinion.

More simply, a claim of

intellectual disability is not yet ripe for review. Appellant argues that we should look at other states’ practices when determining this issue. Appellant asserts that, out of the states that have capital punishment, a majority of them either provide for or mandate a pretrial determination.90 While that may be true, Atkins and its progeny do not require it. Neither does Texas law. Appellant also argues that an intellectual-disability determination is a threshold question that must be determined apart from the merits of

Id. at 505.

Patel, 469 S.W.3d at 78.

Appellant’s Br. 58.

Petetan Opinion On Rehearing — 29 the case itself.91

In support of that argument, Appellant likens an

intellectual-disability determination to determinations of a defendant’s incompetency or juvenile status—both of which are determined pretrial.92 Regarding incompetency, he relies on Ex parte Hagans, in which we stated: “[W]here there is evidence to support a finding of incompetency to stand trial, a jury shall be impaneled, separate from the jury selected to determine guilt or innocence of the defendant, to determine the defendant’s competency to stand trial.”93 This requirement ensures that “an accused’s competency can be made ‘uncluttered by evidence of the offense itself.’”94 Appellant, however, overlooks the right protected by that requirement: “The conviction of an accused while he is legally incompetent to assist in his own defense violates fundamental interests of due process.”95 It is the conviction itself that violates an incompetent defendant’s constitutional rights. This makes a pretrial incompetency

Id. at 60–61.

Id. at 63–67.

Ex parte Hagans, 558 S.W.2d 457, 461 (Tex. Crim. App. 1977).

Id.

Id. (emphasis added).

Petetan Opinion On Rehearing — 30 determination ripe for review. But with intellectual disability, it is not the conviction we are concerned with—it is the punishment.96 And we do not reach the issue of punishment without a conviction.

Therefore, the

rationale for requiring incompetency determinations pretrial is not applicable to intellectual-disability determinations. Finally, Appellant likens the categorical exemption from the death penalty for people with intellectual disability to the categorical exception from the death penalty for juveniles.

According to Appellant, “the

constitutional underpinnings of the categorical exemption for persons with intellectual disability are exactly the same as the categorical exemption for juveniles.”97

Therefore, in Appellant’s view, “the procedure for

determining intellectual disability should be ‘no different from conducting a pretrial determination of whether the defendant was a juvenile at the time of the offense.’”98 Though we agree that the categorical exemption from the death penalty for juveniles developed from the categorical exemption for intellectually disabled individuals, we disagree that there

Cf. Atkins, 536 U.S. at 306 (“Those [intellectually disabled] persons who meet the law’s requirements for criminal responsibility should be tried and punished when they commit crimes.”). 97

Appellant’s Br. 63.

Id. (quoting In re Allen, 462 S.W.3d at 54 (Meyers, J., concurring)).

Petetan Opinion On Rehearing — 31 is no difference in the procedures for juvenile offenders and adult offenders. For a juvenile to be tried as an adult for capital murder, the juvenile must first be transferred from the juvenile system to the district court.99 For the juvenile system to have jurisdiction to transfer the case, the defendant must have been a juvenile (under the age of 17) when the offense was committed.100

Therefore, the defendant’s age must

necessarily be determined at that time, making it ripe for review. And, unlike intellectual-disability determinations, the defendant’s age is usually readily ascertainable and not subject to reasonable dispute and does not depend on the facts of the offense or other evidence relating to punishment such as the defendant’s dangerousness and moral culpability. Thus, the rationale for requiring juvenile-status determinations prior to trial is not applicable to intellectual-disability determinations. Lastly, Appellant asserts that a pretrial determination “is plainly in the interest of judicial economy.”101

This may well be true.

But

“[p]ublic-policy arguments quickly pile up on both sides of the debate on

Moon v. State, 451 S.W.3d 28, 37–38 (Tex. Crim. App. 2014).

100

See TEX. FAM. CODE § 51.04.

101

Appellant’s Br. 67.

Petetan Opinion On Rehearing — 32 when and by whom intellectual-disability determinations should be made; . . . [T]hey find utility only in the Legislature and should be directed there.”102 And our Legislature punted on that issue (again) when it last considered it. We therefore conclude that Atkins and its progeny do not require a pre-trial determination of intellectual disability as a matter of federal constitutional law.

Because the pre-trial determination was neither

constitutionally nor statutorily required, the trial court did not err in refusing to hold a pre-trial hearing on the issue of intellectual disability. III. The Evidence Was Legally Sufficient To Support The Jury’s Adverse Finding on Intellectual Disability A.

Standard of Review

Intellectual disability is a punishment-mitigation issue that is in the nature of an affirmative defense. The defendant shoulders the burden of proof to show intellectual disability by a preponderance of the evidence.103 Affirmative defenses may be evaluated for legal and factual sufficiency.104 In a legal-sufficiency review of an affirmative defense, reviewing

102

In re Allen, 462 S.W.3d at 53.

103

Neal v. State, 256 S.W.3d 264, 273 (Tex. Crim. App. 2008).

104

Matlock v. State, 392 S.W.3d 662, 669–70 (Tex. Crim. App. 2013).

Petetan Opinion On Rehearing — 33 courts should first assay the record for a scintilla of evidence favorable to the factfinder’s finding and disregard all evidence to the contrary unless a reasonable factfinder could not.105 The finding of the factfinder rejecting a defendant’s affirmative defense should be overturned for lack of legal sufficiency only if the appealing party establishes that the evidence conclusively proves his affirmative defense, and no reasonable factfinder was free to think otherwise.106 We are, as was noted in the original majority opinion, evaluating the jury’s determination rather than independently considering whether Appellant is intellectually disabled.107 Unlike in the habeas context, we are not the ultimate factfinder on direct appeal.108

The issue of

intellectual disability was litigated at trial before a jury, and on direct appeal from that trial, we exercise appellate-style deference to the determination made by the jury.109 In the face of a record of historical

105

Butcher v. State, 454 S.W.3d 13, 20 (Tex. Crim. App. 2015) (citing Matlock, 392 S.W.3d at 669–70). 106

Id. (citing Matlock, 392 S.W.3d at 670).

107

Petetan, 2017 WL 915530, at *6.

108

See Ex parte Owens, 515 S.W.3d 891, 895 (Tex. Crim. App. 2017) (on habeas review, although the trial court is the “original” factfinder, the Court is the “ultimate factfinder”). 109

Neal, 256 S.W.3d at 273.

Petetan Opinion On Rehearing — 34 facts that supports conflicting inferences, a reviewing court must presume—even if it does not affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of the verdict, and must defer to that resolution.110 B.

Analysis 1.

Criterion A: Intellectual Deficits

Criterion A—deficits in intellectual functioning—“refers to intellectual functions that involve reasoning, problem solving, planning, abstract thinking, judgment, learning from instruction and experience, and practical

understanding.

Critical

components

include

verbal

comprehension, working memory, perceptual reasoning, quantitative reasoning, abstract thought, and cognitive efficacy.”111 These functions are typically measured through individually administered tests of intelligence.112 A score “approximately two standard deviations or more below the population mean, including a margin for measurement error (generally +5 points)” indicates intellectual disability.113 For tests with a

110

See Jackson v. Virginia, 443 U.S. 307, 326 (1979).

111

DSM–5 at 37.

112

Id. The tests must be psychometrically valid, comprehensive, culturally appropriate, and psychometrically sound. Id. 113

Id.; AAIDD–11 at 35.

Petetan Opinion On Rehearing — 35 mean of 100 and standard deviation of 15, this would be a score of 65 to 75 (70 ± 5).114 Practice effects and the “Flynn effect,”115 however, may affect test scores.116 Here, Appellant produced the following IQ test scores: Psychologist

Year

Score

Texas Juvenile Justice Commission

1991

61 (Full scale) 67 (Verbal) 61 (Performance)

Dr. Ray Coxe

1992

Child 64 (Full scale) Adult 74 (Full scale)

Texas Department of Criminal Justice

1993

69 (Unclear)

Dr. Mark Correia

2012

55 (Full scale)

Dr. Joan Mayfield

2013

52 54 56 71 52

(Full scale) (Verbal) (Perceptual reasoning) (Working memory) (Processing speed)

Dr. Coxe testified that the 1992 IQ test for adults that he administered to Appellant—resulting in a score of 74—had a standard

114

DSM–5 at 37.

115

The Flynn effect involves “overly high scores due to out-of-date test norms.” Id.

116

Id.

Petetan Opinion On Rehearing — 36 error measurement of three points, which could yield an IQ score as high as 77 or as low as 71. This means that one of the five test scores placed Appellant outside the range of someone with intellectual deficits. This alone, however, is insufficient to reject Appellant’s intellectual-disability claim.117 Four scores placed Appellant within the range of intellectual disability.

And Moore requires courts to “continue the inquiry and

consider other evidence of intellectual disability where an individual’s IQ score, adjusted for the test’s standard error, falls within the clinically established range for intellectual-functioning deficits.”118 There was also some evidence that Appellant may have been malingering on some of the tests.119 But this alone is also insufficient to reject Appellant’s intellectual-disability claim.

Under Moore, “the

117

Moore I, 137 S. Ct. at 1048 (“In Hall v. Florida, we held that a State cannot refuse to entertain other evidence of intellectual disability when a defendant has an IQ score above 70.”). 118

119

Moore I, 137 S. Ct. at 1050.

Dr. Coxe testified that he had to administer both the child IQ test and the adult IQ test to Appellant because Appellant’s attitude suggested that he was not putting forth his best efforts. Dr. Coxe further testified that, on some items and tests, Appellant “gave up very quickly without making too much of an effort” and had “a little bit of an attitude about the testing.” Dr. Correia testified that Appellant “had little interest in the exam, requesting repeatedly to be allowed to leave to smoke a cigarette, use the restroom and take cell phone calls.” Dr. Correia stated that Appellant seemed to “put forth an effort to cooperate minimally and superficially only.” Dr. Mayfield testified that she administered both the Test of Memory Malingering (“TOMM”) and the Rey 15 test to Appellant. The TOMM test placed Appellant in the category of “inadequate effort strongly suspected.” Appellant was also below the cutoff for adequate effort on the Rey test. Dr. Mayfield, however, discounted these scores based on other research. She concluded that Appellant exerted good efforts on all the tests.

Petetan Opinion On Rehearing — 37 presence of other sources of imprecision in administering the test to a particular individual . . . cannot narrow the test-specific standard-error range.”120 Therefore, we abandon our conclusion in the original opinion that the jury could have resolved Appellant’s intellectual disability claim against him based solely upon his failure to show sub-average intelligence. We next turn to the evidence regarding adaptive deficits. 2.

Criterion B: Adaptive Deficits

Criterion B—deficits in adaptive functioning—requires an evaluation of the individual’s ability to function across a variety of dimensions.121 More specifically, it refers “to how well a person meets community standards of personal independence and social responsibility, in comparison to others of similar age and sociocultural background.”122 This involves three domains of adaptive reasoning: conceptual, social, and practical.123 Criterion B is satisfied when at least one of those domains “is sufficiently impaired that ongoing support is needed in order for the

120

Moore I, 137 S. Ct. at 1049.

121

Brumfield v. Cain, 135 S. Ct. 2269, 2279 (2015).

122

DSM–5 at 37.

123

Id.

Petetan Opinion On Rehearing — 38 person to perform adequately in one or more life settings at school, at work, at home, or in the community.”124 Adaptive deficits are measured through clinical evaluations and testing, which must be culturally appropriate and psychometrically sound.125

The tests should use

standardized measures “with knowledgeable informants (e.g., parent or other family member; teacher; counselor; care provider) and the individual to the extent possible.”126 Additional informational sources “include educational, developmental, medical, and mental heath evaluations.”127 All of this information “must be interpreted using clinical judgment.”128 a.

Evidence Overview i.

Dr. Craig

At the defense’s request, psychologist Dr. Ellis Craig evaluated Appellant to determine whether he had adaptive deficits. Dr. Craig used the ABAS-II.

124

Id. at 38.

125

Id. at 37.

126

Id.

127

Id.

128

Id.

He performed a retrospective assessment because

Petetan Opinion On Rehearing — 39 Appellant was incarcerated at the time129 and because no one had previously conducted a standardized adaptive behavior scale on Appellant. Dr. Craig stated that the ABAS-II was not normed for retrospective assessment, elaborating that “[r]etrospective assessments are a specialized subset that I don’t think any tests are normed to do.” On cross-examination,

the

prosecutor

went

through

the

ABAS–II

questionnaire and pointed to items that could be inappropriate for a 14 to 16 year old and for which Appellant was given the score of 1 (out of 0 to 3).130 Dr. Craig was also asked what percentage of the population 129

More specifically, Dr. Craig stated: “In this context, where it really becomes important is that you really have to do a retrospective assessment of adaptive behavior for somebody who is incarcerated. You simply cannot do an adaptive behavior assessment in a jail or prison setting.” 130

These items included: •

Calls to find out if a repair or order is ready.

•

Calls a repair person if, for instance, the air conditioner or heater is not working.

•

Takes people on trips to nearby places; for example, takes a child or family member to a park.

•

Asks a store clerk for product information before buying an item.

•

Reads and follows instruction to assemble new purchases.

•

Makes reminder notes or lists.

•

Completes forms for business or services; for example, obtains a lease.

Petetan Opinion On Rehearing — 40 aged 30 to 39 (for which the particular ABAS–II was normed) had been incarcerated for 20 years of their life. Dr. Craig responded, “I would say zero,” and he acknowledged that he could only work with the data he was given from the “informants.” The ABAS–II requires “informants,” who are people that give information about the subject being assessed. Dr. Craig stated that an “informant” is “somebody who knows the individual well, has seen them in a variety of situations and for a fairly extended period of time. For that reason, it’s typically family members.” Dr. Craig also testified that it is important to find informants that don’t “have a vested interest in giving you incorrect information.” For Appellant’s assessment, Dr. Craig used Appellant, his mother, an older brother, an older sister, and an uncle as “informants.” The scores from highest to lowest were: brother, 53; uncle, 47; sister, 47; Appellant, 42; mother, 40. The norm for the population on the ABAS–II

•

Reads important documents; for example, credit card applications or rental agreements.

•

Balances a checkbook.

•

Follows the maintenance schedule for home or car.

•

Reserves tickets in advance for activities such as concerts or sports events.

Petetan Opinion On Rehearing — 41 is between 85 to 115, and the lowest possible score is 40. Dr. Craig did not rely on Appellant’s score “because there are some problems with self-reports.” For example, Dr. Craig stated that studies show that intellectually disabled people “will try to . . . ‘pass as normal,’ and they will present themselves as more competent than they really are because they don’t want to be put into that class.”

Dr. Craig also

discounted the mother’s assessment because she “was inconsistent in her responses.” All informants, except for the uncle, ranked Appellant’s social skills the highest, his conceptual skills second, and his practical skills the lowest. Dr. Craig noted that the pattern of the uncle’s responses was “very different” compared to the pattern of the other informants’ responses. Dr. Craig “thought [the uncle] was a good informant and . . . had a very realistic picture of [Appellant],” but he opined that the pattern was different because the uncle “actually was not around [Appellant] that much” and had a different set of standards. Dr. Craig thought that the brother’s and sister’s “assessments were probably the most accurate and most reflective of what [Appellant’s] actual day-to-day functional skills really are.” Dr. Craig stated that Appellant’s “adaptive limitations far outweigh

Petetan Opinion On Rehearing — 42 his minimal skills.” Dr. Craig testified, “[A]ppellant does have skill areas. There is no question,” and stated, “What caused all this . . . is hard to say, but one likely explanation is that there were many missed opportunities to learn these skills.”131

Based on his ABAS-II and the

scores he had “seen on intelligence,” Dr. Craig found Appellant “actually has—he would fall into the moderately [intellectually disabled] range.” ii.

Other Witnesses and Evidence

Three school officials, Dorothy Stamps, Morris Lee, and Eddie Fowler, testified generally about Appellant’s behavior in school and his motivation.

Appellant’s mother, Ophelia Ortiz, also testified and

described Appellant overall as “slow,” and said she had to give him more attention than her other children when he was growing up.

Other

witnesses included Appellant’s sister, Sabrina Mouton; Appellant’s aunt, Cathy Gauthier; Appellant’s cousin, Caston Gauthier; Appellant’s Cousin, Kimberly Jackson; and Appellant’s uncle, Thomas Kemper. Overall, they characterized Appellant as slower than others. Appellant’s education records from kindergarten through ninth grade were introduced into evidence at trial. Multiple letters from Appellant to 131

Regarding “missed opportunities,” Dr. Craig referenced the fact that Appellant spent the majority of his life incarcerated and, even when home, he did not receive adequate parental supervision.

Petetan Opinion On Rehearing — 43 Kimberly were also introduced at trial. Appellant testified at the guilt stage of trial. This testimony is set out in our original opinion. Appellant gave a somewhat incredible exculpatory account of the incidents that occurred on September 13 and 23, 2012. But his story was coherent, and he stuck with it consistently, even under attack by the prosecutor. b.

Conceptual Domain i.

Appellant’s Education Records–Conceptual Domain

The trial record includes most of Appellant’s academic records for kindergarten through ninth grade.

For kindergarten through second

grade, Appellant did not receive numerical grades. Instead, he received grades based on above average, average, below average, and level function. The record does not make clear what “level function” means. His grades, number of absences, and number of days present were as follows: K

1st

2nd

Reading

level function

below

Arithmetic

average

below

Other Language Arts

average

Social Studies

average

Science

average

Petetan Opinion On Rehearing — 44 Effort

average

Citizenship

average

below

136

154

165

# of Absences # of Days Present

From third through fifth grade, Appellant received both numerical grades and letter grades of “S,” “N,” and “U.” Although the record does not make this clear, the designations “S,” “N,” and “U” appear to mean, respectively, “satisfactory,” “needs improvement,” and “unsatisfactory.” Appellant was “retained” in third grade, meaning he was required to repeat that grade. The following are Appellant’s grades, number of absences, and number of days present from both times he went through third grade, along with fourth and fifth grade: 3rd

3rd

4th

5th

Reading

Language

Spelling

Handwriting

Math

Social Studies

Science

Health

Petetan Opinion On Rehearing — 45 Art

S+

Music / Band

P.E.

Personal Growth

# of Absences

146

168

145

167

# of Days Present

The records also include the scores from multiple standardized tests that he took between third and fifth grade. During his first time in third grade, Appellant took the Texas Assessment of Basic Skills (“TABS”) on math, reading, and writing. Overall, Appellant passed only five of the twenty-three objectives.132 Six months into the school year, he took the California Achievement Test (“CAT”) on reading, language, and math. He scored lower than 90% of the other students and tested at the level of a student four months into second grade. During his second time in third grade, Appellant took the Texas Educational Assessment of Minimum Skills (“TEAMS”) in math, reading, and writing. He passed the reading section but not the math and writing sections. Six months into the school year, he took the CAT. He scored lower than 81% of the other students and tested at the level of a student 132

The writing section had five objectives of which Appellant passed one and failed four. The reading section had eight objectives of which Appellant passed three and failed five. The math section had ten objectives of which Appellant passed one and failed nine.

Petetan Opinion On Rehearing — 46 seven months into second grade. Appellant was “socially promoted” to the fourth grade even though his grades were failing. Six months into fourth grade, Appellant took another CAT.

scored lower than 91% of the other students and tested at the level of a student seven months into second grade. In fifth grade, Appellant took a TEAMS test, where he passed the reading section but not the math and writing sections. He also took a CAT. He scored lower than 92% of the other students and tested at the level of a student three months into third grade. In sixth grade, Appellant’s grades were as follows: 55 in Social Studies, 53 in “Read Imp,” 62 in Science, 52 in English, 53 in Math, and 61 in P.E. He also took a CAT. He scored lower than 99% of the other students and tested at the level of a student one month into second grade. Appellant was retained in the sixth grade. At this point, the records become somewhat unclear. The records do not include any grades from the year he was supposed to repeat sixth grade or from seventh and eighth grade. The records, however, show that he attended ninth grade the year he would be in seventh grade (if he repeated sixth grade). The records indicate that he was retained in the ninth grade. The grades for both his years in ninth grade were numerical

Petetan Opinion On Rehearing — 47 grades split between two semesters. The grades were as follows: 9th

9th

English

Math

62; 72

Science

Social Studies

P.E.

56; 55

N/A

Health

During his second time in ninth grade, Appellant received a special education exemption from the Texas Assessment of Academic Skills (“TAAS test”). The records do not include TAAS test information from his first time in ninth grade. Appellant then dropped out of school. ii.

School Officials’ Testimony–Conceptual Domain

Dorothy Stamps, Appellant’s first grade teacher, testified that Appellant was capable of doing the school work and, if he would have applied himself, he could have done the work. Morris Lee, an assistant principal at Appellant’s elementary school, also testified. He was asked: “[Appellant] chose not to apply himself, even as a young man. Is that right?” Lee responded, “Not in appropriate directions.” Eddie Fowler, a principal at Appellant’s middle school, testified that Appellant was placed into a special education program called “the self-

Petetan Opinion On Rehearing — 48 management program.”

Fowler said that this placement was “not

necessarily because [Appellant] was so far behind, but because he was a discipline problem.” When asked “[s]o [Appellant] wasn’t in Special Education because of any mental defect or because he was [intellectually disabled], was he,” Fowler responded, “No.” Fowler agreed that, after reviewing Appellant’s school records, Appellant was “pretty average.” Fowler also agreed that, if Appellant applied himself, he could have been successful. iii.

Dr. Craig’s Testimony—Conceptual Domain

Regarding Appellant’s strengths in the conceptual domain, Dr. Craig testified: When you just hear him talk, when he does talk—although he tends to be somewhat quiet—I mean, he speaks in complete sentences, and so he could, in that sense, quote, “pass for normal.” He can write pretty good. I mean, he can write his own address, including the zip code and so on. He had pretty good self-direction. He could go around in the community, go out alone, and he did often. In fact, he would tend to wander away from any kind of group going on, and he at least appears to listen when people are talking to him. You don’t know whether or not he’s really paying attention, but he does appear to listen. Regarding his limitations in the conceptual domain, Dr. Craig testified: Very limited conversational skills. It’s really hard to engage in a conversation with him. He just won’t follow the conversation. You can’t get a response to what you’re saying.

Petetan Opinion On Rehearing — 49 In terms of getting along in the world, it was routinely noted that he was unable to read menus. I mean, he would have to order things—if he went out to, you know, a fast food restaurant or something, he would have to order by the picture, just saying what he knew it was. He could not calculate the correct change. And you really couldn’t depend on him time-wise. He was irresponsible regarding time commitments. iv.

Appellant’s Testimony—Conceptual Domain

Appellant testified about becoming a pen pal with Kimberly and stated that they wrote three or four letters a week to each other. Appellant testified that the letters were in his handwriting. Appellant stated that he had help from different people when writing the letters. When asked what he meant by that, Appellant responded: “Like spell and, you know, I write down what I want to say, and then they will put it into sentences and stuff for me.” Appellant also testified that he wrote letters to Kimberly’s daughter, A.W. Appellant agreed he had printed out the maps for the trip to Waco, where the crime took place, and paid for everything on the trip. Appellant was asked about documents found by law enforcement in his Suburban.

One of the documents, the “Cartel Boxing Promotions

Business Plan Prepared By Petetan,” had a biography section, which was read aloud to the jury. It read:

Petetan Opinion On Rehearing — 50 Born in Port Arthur, Texas, Carnell Petetan, Jr. has his share of ups-and-downs. The tough street of his hometown groomed him into the dynamo he is today, and now, armed with a wealth of resources, skills and abilities, he is set to launch the long anticipated CARTEL BOXING PROMOTIONS. Co-Founder of Tripple Gold Records, along with brother and business partner, Herbert Mouton, Carnell Petetan has emerged with a vision so ambitious, success is eminent. The key feature and strength behind Cartel rests in the fact that for eighteen years of his life, he survived in Texas prisons; some of the deadliest in the nation. This is where he honed his leadership abilities and educated himself. Now this wise and intelligent young man is ready to take on the world. Surrounded by a support team of experts, his Cartel Boxing Promotions will quickly become an industry great in the years to come. You’ve seen the rest, now prepare for the best. Carnell enjoys reading, video games, and brainstorming. The author of over 800 songs, Carnell is also the respected and rising rap star, “Don Cartel”. Look for the documentary, “unshackled”, coming soon. With success looming over him, Carnell promises to stay grounded and Always put God First. Appellant denied he wrote it. He also denied writing a 40-page autobiography that was found in the Suburban. v.

Appellant’s Domain

Mother’s

Testimony—Conceptual

Ophelia Ortiz, Appellant’s mother, testified that Appellant had a hard time reading and writing. When asked “[w]ould it surprise you to know

Petetan Opinion On Rehearing — 51 that he’s a self-admitted writer of over 800 musical songs,” Ophelia laughed and responded, “That’s funny. No, he’s not.” Ophelia agreed that it would be difficult for Appellant to write a simple letter to someone and stated, “Somebody would have to help him.” Ophelia said that although the family lived “right by the school” when Appellant was younger, Appellant would forget where to go and “would go another direction.”

Someone would have to walk him.

Sometimes “I would say he was missing, because he was gone, like, sometimes three days and I didn’t see him, so the police put a missing person, and they would find him.” Appellant could not drive from Port Arthur to Houston. When asked “[w]ould he have trouble with, what, the signs or the roads or what,” Ophelia responded, “His remembering, mentally.”

Ophelia also stated that the only time when they sent

Appellant to the store alone, “he went and put the money on the counter and walked out and forgot what I sent him in there to get.” Ophelia further testified that Appellant could not make change. vi.

Appellant’s Sister’s Testimony—Conceptual Domain

Sabrina Mouton, Appellant’s sister, testified that Appellant did not walk until he was three years old and could not talk, in a manner they could understand, until he was four or five. Up until that time, “if my

Petetan Opinion On Rehearing — 52 mother asked him something, he wouldn’t answer, or if she tried to get him to talk, we didn’t understand what he was saying, so he just don’t say nothing.”

When asked about Appellant learning something new,

Sabrina said: “He gets frustrated or just like he loses interest in it or he just—like his mind just go blank, like he looking off like he don’t care to hear it, you know, when he don’t understand something.” Sabrina said that Appellant wrote her letters from prison, but his letters were difficult to understand unless he had someone help him. When asked why she would think someone wrote a letter for him, she said that Appellant’s writing “looked like something a preschooler or kindergartner” would write; but if someone wrote the letter for him, then the letter would be in good handwriting. Sabrina said his writing had improved “a little bit.” The prosecutor asked Sabrina about one of his letters to Kimberly. “I’m going to show you what I’ve admitted into evidence as State’s Exhibit 126, and I’m going to do the Carnell Petetan letter grab bag. Go ahead and pick a letter, any letter.” Sabrina drew out of the bag a letter postmarked January 24, 2011. The letter read, in part: I Hope and Pray when this letter reaches you it finds you in the best of health as well as spirits in God’s Care and Protection as well as your love ones. Kim I want you to know

Petetan Opinion On Rehearing — 53 I was Glad to hear about your School progress and them welcoming you to Join they organization. Sabrina acknowledged that the letter was in Appellant’s handwriting. She further stated that “those letters look clearer than my letters, and Carnell writes up and down, up and down, and out of the margin and not clear at all.” When confronted with the fact that the letter to Kimberly that the prosecutor had Sabrina read did not conform to her “up and down” description, Sabrina stated, “His looks neater on hers than it does on ours.” vii.

Appellant’s Uncle’s Testimony—Conceptual Domain

Thomas Kemper, Appellant’s uncle, testified that when Appellant was younger, he was placed in special education because “he couldn’t comprehend like any other kid.” viii. Appellant’s Letters—Conceptual Domain Appellant’s letters to his pen pal and then wife, Kimberly, were published to the jury and portions were read out loud by the prosecutor. Portions of some of the letters in the State’s exhibit are relevant to the conceptual domain. In one, Appellant stated: “Kim I Just wanna Show you Just in Houston Alone 20,000 CDS Pressed up for $10.00 a pop = $200,000. See im Not even haveing to leave houston to get rid of 20,000

Petetan Opinion On Rehearing — 54 records[.] . . . Say i Put 3 records out a year, and make 2000,000 x 3 thats $600,000[.]” In another, he suggested the raffling of a watch, telling her that if she sold 100 tickets at $25.00, “that’s $2,500.” In another, Appellant stated: “I’ve wrote over 75 Albums Books and universal Records[.]” In another letter, Appellant included a response that he received from a recording company, Amerecord, stating “that of the numerous poems and songs sent to Amerecord over the past few months, a very select few have been chosen for a pre-production recording session.” ix.

Analysis—Conceptual Domain

At trial, there was conflicting evidence regarding Appellant’s deficits in the conceptual domain. The jury could have inferred from Appellant’s academic record that he was impaired in the conceptual domain. Of Appellant’s 57 numerical grades included in the academic records, 39 of those grades were failing (or, below 70). Of the 20 grades Appellant received based on whether he was above average, average, or below average, he was “below average” for 6. Of the 19 grades he received based on satisfactory, needs improvement, and unsatisfactory, he received needs improvement for eight and unsatisfactory for two. Further, he performed poorly on standardized tests and was placed in

Petetan Opinion On Rehearing — 55 special education at some point. But there was also evidence that cut against a jury’s inference of deficits in the conceptual domain. Appellant received 18 passing (or, 70 and above) numerical grades, 14 “averages,” 8 “satisfactories,” and 1 “satisfactory plus.” The academic records also show that Appellant often had absences in the double digits. And three school officials testified that Appellant failed to appropriately apply himself in school. One of those officials also testified that Appellant was not in special education because of a low IQ but instead because of his behavior problems. Looking at the conceptual domain on a more discrete level, there was conflicting evidence on Appellant’s ability in math reasoning. There was evidence from which the jury could have inferred that Appellant was impaired in it. This evidence included his grades for “Arithmetic” in first through third grade and for “math” in both sixth and ninth grades, along with his scores on the CAT, TABS, and TEAMS tests. This evidence also included testimony from Sabrina that Appellant “never knew how to count [money]” and testimony from both Dr. Craig and Ophelia that Appellant could not calculate change. But on the other hand, Appellant received passing grades for math-related subjects in kindergarten, fourth, and fifth grades. Moreover, Appellant testified that he paid for the trip to Waco

Petetan Opinion On Rehearing — 56 and some of Appellant’s letters contained correct calculations. There was also conflicting evidence on Appellant’s writing ability. There was evidence from which the jury could have inferred that Appellant’s writing ability was impaired. This evidence included Appellant’s scores on the TABS, along with his grades for “Spelling” in third through fifth grade and his grades for “English” in both sixth and ninth grade. It also included Ophelia’s testimony that Appellant had a hard time writing and would need help, Sabrina’s testimony that Appellant’s letters were difficult to understand unless he had help, and Appellant’s testimony that he received help from other inmates when writing letters. Conversely, Appellant received passing grades in “handwriting” in third through fifth grade. Dr. Craig, who evaluated Appellant prior to trial, testified that Appellant can write pretty well. And the jury itself was able to read several letters from Appellant to Kimberly—letters that Appellant admitted were in his own handwriting.

Appellant had also

written songs and poems well enough to be chosen for “a pre-production recording session.” Further, there was conflicting evidence on Appellant’s reading ability. Evidence from which the jury could have inferred that Appellant’s

Petetan Opinion On Rehearing — 57 reading ability was impaired included: Appellant’s grades in first, second, third, and sixth grade; his scores on the TABS, CAT, and TEAMS tests; Dr. Craig’s testimony that Appellant was unable to read menus; and Ophelia’s testimony that Appellant had a hard time reading. But on the other hand, Appellant received passing grades for “Reading” in both fourth and fifth grade and passed the reading section on both of his TEAMS tests. There was also conflicting evidence on Appellant’s language ability. There was evidence from which the jury could have inferred that Appellant’s language ability was impaired. This evidence included his grades in third grade and fourth grade; his scores on the CATs; and Sabrina’s testimony that Appellant was delayed in learning how to talk and that they were not able to understand what he was saying until he was about four or five years old. On the other hand, in kindergarten through second grade, he was “average” in “Other Language Arts” and he received a passing grade in “Language” in fifth grade. Further, Dr. Craig testified that Appellant speaks in complete sentences.

And during

Appellant’s own testimony, the jury was able to hear for itself Appellant’s ability to speak. Lastly, there was conflicting evidence that Appellant’s memory was impaired. There was evidence from which the jury could have inferred

Petetan Opinion On Rehearing — 58 that Appellant’s memory was impaired. This evidence included Ophelia’s testimony that Appellant would often get lost, had trouble driving because of his memory, and forgot what he was supposed to buy when he got to the store. But during Appellant’s testimony at trial, the jury was able to gauge for itself Appellant’s ability to consistently remember various historical details on both direct examination and cross examination. For each piece of evidence supporting a finding that Appellant was impaired in the conceptual domain, there was evidence that cut against it.

Therefore, the issue came down to resolving those conflicts and

inconsistencies based on credibility and weight determinations. That’s the jury’s duty, and we defer to the jury’s determinations. c. The thoughts,

Social Domain

second

domain—social—“involves

feelings,

and

experiences;

awareness

empathy;

others’

interpersonal

communication skills; friendship abilities; and social judgment, among others.” This was Appellant’s strongest domain. The informants thought he had good social skills. He “could get along with people and he could kind of blend in.” i.

Dr. Craig’s testimony—Social Domain

Dr. Craig’s conclusions were as follows:

Petetan Opinion On Rehearing — 59 A.

Areas of strength for him was that he has friends. He had good relations with his family. He was actually able to interpret others’ emotions. He could tell when somebody was upset, and he even showed some ability with leisure skills. He likes to listen to music.

By “skills --”

Those are strengths for him.

Strengths. Okay. And his limitations?

He doesn’t understand jokes. I mean, it’s too complex.

How do you determine that? If you’re talking about a self-evaluation, for example, do you tell him a joke and see if he gets it or do you ask him? How do you determine that?

You know, I asked him, you know, “Do people tell you things that make you laugh,” and he said, “No.”

And then other people that are just general informants, you can say, “Does he understand jokes?”

Yeah. I mean, “Can you joke around with him, and does he get the jokes?”

Okay.

And they repeatedly noted that he was easily led by other people, that the basic social skills of being polite and offering to help people, he simply doesn’t do it. He doesn’t say thank you. He doesn’t give gifts. He doesn’t offer assistance to people. And this was a uniform finding too. He didn’t engage in games. The only games we ever heard that he played were with a cousin who played Hide and Seek with him, and this was when he was older, too. But he simply didn’t understand any kind

Petetan Opinion On Rehearing — 60 of simple kind of games that, you know, kids play. He showed no interest in most—what a lot of people use for leisure, which is TV. I mean, he has consistently over the years never shown the least bit of interest in TV. ii.

Analysis—Social Domain

There was conflicting evidence regarding Appellant’s deficits in the social domain. The jury could have inferred from Appellant’s relationship with Kimberly that Appellant was not impaired in the social domain. While in prison, Appellant was not only able to become pen pals with Kimberly, a person Appellant did not know before she was encouraged by Appellant’s brother to contact him, but to develop their friendship into a serious romantic relationship resulting in marriage—a clear indication of his “friendship abilities.” Further, Appellant remained married to Kimberly from 2010 through the spring of 2012, when Appellant was released from prison. And although Kimberly considered divorcing Appellant shortly after he moved in with her, the two reconciled. After a falling out a few months later, the two again reconciled.

Thus, the jury could have

reasonably concluded that Appellant possessed at least some meaningful “awareness of others’ thoughts, feelings, and experiences” because Appellant was able to successfully reconcile with his wife on more than one occasion.

Petetan Opinion On Rehearing — 61 By his own words, Appellant was also helpful to other prisoners, encouraging them to be polite. He related in his letters that he was a mentor to other inmates—“nice as can be” young males who did not belong behind bars. He told them how to act when they get out: “help little ole ladies across the street, and lend your neighbor a cup of sugar in advance.” His letters are replete with offers to help Kimberly and her daughter and appreciation for their own letters and love. Finally, the jury could credit Appellant’s own statements made in his letters to Kimberly, which, as is detailed later in this opinion, indicated a history of playing baseball, bowling, boxing, working out with weights, and watching sports on television. As a result, the jurors did not have to rely on lay stereotypes about the intellectually disabled to reject Dr. Craig’s testimony, or that of Appellant’s own family. They could reject his testimony as unreliable because it was based on interviews with vested witnesses and inconsistent with much of the record evidence. d. The

Practical Domain

third

management

domain—practical—“involves

across

life

settings,

including

learning

and

personal

care,

selfjob

responsibilities, money management, recreation, self-management of

Petetan Opinion On Rehearing — 62 behavior, and school and work task organization, among others.”133 i.

Dr. Craig’s Testimony —Practical Domain

Dr. Craig, based on his assessment, concluded that Appellant “had a lack of practical skills to get through the day.” He stated that all four of his “informants”—Appellant himself and Appellant’s mom, sister, and uncle—represented that “his practical skills, doing things on a day-to-day basis like taking care of himself, feeding, cooking something to eat, he had simply not developed those skills.”

Dr. Craig gave the following

specifics on the practical domain: Q.

What about his skills and limitations on the practical portion of the test?

He was able to walk to familiar locations. Again, in his neighborhood he could get along just fine. I mean, he knew how to find places. He couldn’t necessarily tell you street names, but he knew where things were geographically. He could make simple meals for himself, and this was kind of like a little idiosyncratic thing about him. He never learned to use a fork. I mean, he would sometimes use a spoon, but every bit of food that you gave him, he would wrap up in bread. That’s how he ate. I mean, he made a sandwich out of everything. So in terms of the typical kinds of table skills, eating skills, he simply, either by choice or just lack of ability, he didn’t do. It’s fairly common for people, even with mild [intellectual disability], to have difficulties cutting their food into bite-size portions. Somebody may have to do

133

DSM–5 at 37.

Petetan Opinion On Rehearing — 63 that for them. I’m not sure if that was the case with him, because he didn’t use a knife. He just used a spoon. He was able to take medications. He was able to swallow them. He didn’t resist that. And he could dress himself. He didn’t necessarily dress himself well, but he could do the physical act. Q.

And his limitations?

Even though he could get around the community, he was unable to use a map. He relied on the ability to—either people tell him familiar locations or whatever, and he got lost fairly easily. He did not do housekeeping. He was described as a terrible housekeeper and never made his own bed, was unable to learn how to operate most common appliances, broke microwaves because he didn’t know how to use them, put the wrong things in them, had no conception about how to use a washer or a dryer. And even in the area of first aid, I mean, when asked what he would do if he cut his finger, he said he would sop it up. “Sop the blood up,” that was his response. So he didn’t—he just wasn’t worried that way where he would know to put a Band-Aid and some Bactine or something on it.

Dr. Craig said that, for clinical purposes of a finding of significant limitations in adaptive functioning, the reason that the adaptive skills were not learned does not matter. Practical skills “don’t necessarily even go along with intelligence. I mean, in some ways the adaptive skills are very sensitive to what kind of training the person has received.” Practical skills can be limited “because their family was overprotective and did everything for them and weren’t good enough trainers or they weren’t

Petetan Opinion On Rehearing — 64 patient enough to allow them to learn how to do it on their own, and so they just never learned how to do it and they just came to expect their family to take care of it.” Speaking specifically about Appellant, Dr. Craig said: What caused all this, you know, is hard to say, but one likely explanation is that there were many missed opportunities to learn these skills. He has spent the majority of his life incarcerated, and he simply hasn’t had the opportunity to be around—I mean to learn those kind of skills on a consistent basis. And I think in his home environment, even when he was living there, the parental supervision was not such that he was expected to do it or, you know, the training was given to him, so he simply didn’t learn those skills. And being locked up most of his life, he has adjusted to prison routine, I guess. But in terms of adaptive skills, he is very limited. ii.

Appellant’s Mother’s Testimony —Practical Domain

Appellant’s mother, Ophelia, testified that Appellant was a bedwetter and she did not “know if he has stopped yet. All his life he been peeing on himself.” She testified that, as a child, Appellant could not tie his shoes, dress himself, take a bath, brush his teeth, or follow directions. He did not have any interests as a child; he did not play with toys, watch television, or play video games. He would “just sit there” or walk out and leave, and family members would not know where he went. When Appellant left prison, he could not keep his apartment clean, so his sister would come over and clean it.

Appellant did not wash

Petetan Opinion On Rehearing — 65 dishes, did not put food away, and left clothes strewn across the floor. He could not use a washing machine or a dryer. He still did not watch television, and he could not operate a cell phone. Appellant also could not be trusted with money because he could not make change. He could not drive. When cross-examined about Appellant’s alleged various “business plans,” Ophelia testified she did not pay them any mind because “I know he [doesn’t] know what he’s talking about.” Ophelia acknowledged that Appellant worked with his uncle cutting yards when he was on parole, that he had tried baseball but did not have the patience for it, and that she had bought him the Suburban. iii.

Appellant’s Sister’s Testimony —Practical Domain

Appellant’s sister, Sabrina, testified that Appellant wet himself even when he was older. She also said that “Carnell never played sports or nothing with us. He would always just [wander] around.” Appellant had no special interests—“Not even television. We all would watch television. He wouldn’t watch it. Games, he didn’t want to play any games, nothing.” Appellant could not ride a bicycle; “He would try, but he couldn’t.” Sabrina testified that, when Appellant was released from prison, she helped set up and furnish an apartment for him. She tried to teach

Petetan Opinion On Rehearing — 66 him how to use a cell phone and microwave, but he could not figure either out. Sabrina said she would go over to the apartment twice a day to make sure Appellant had enough to eat and to clean up because Appellant would not clean up after himself. There would be “[f]ood laying around, candles lit for no reason.

Very tacky, nasty towels, his

underwear and stuff.” Appellant did not know how to count money; he always asked his siblings “how much something is, how much this is.” Sabrina said that Appellant had unrealistic expectations about what he could do, “Like he would tell me he want to be rich or he’s going to do music or he’s going to have a business, and I’m, like, ‘Carnell, it takes money, and you’ve got to get a job’ or ‘Carnell, you left here with a school ID. You’ve got to get a driver’s license to do anything,’ you know.” Sabrina

agreed

that

Appellant

showed

some

interest

extracurricular activities as he got older, and that he “likes his music. He does music . . . he records music.”

Sabrina also acknowledged that

Appellant had been in prison since the early 1990s and had never lived on his own before he was released from prison. And she admitted that Appellant had tried to better himself in prison and that he was able to formulate business plans “[f]rom books that he got out of the library.” iv.

Appellant’s Uncle’s Testimony —Practical Domain

Petetan Opinion On Rehearing — 67 Thomas Kemper, Appellant’s uncle, testified that Appellant was “really slow” and “had problems making decisions on his own.” According to Thomas, “Little kids would make him do things that they didn’t want to do, that they wouldn’t do, and they would use Carnell, because he was real slow.” Thomas also said that Appellant would crawl up under a train even though other children would beg him not to. When he was twelve years old, Appellant had to be told not to open the door when someone knocked without first asking who it is. “He wouldn’t comb his hair . . . . [H]e wouldn’t take a bath, [and] he wouldn’t put on a belt.” When Appellant was released from prison, he wanted to be a businessman, but Thomas testified that Appellant “couldn’t understand how to go from [Point] A to Point Z.” Thomas said that Appellant had “great big dreams,” but [b]eing locked up all these years and knowing the first thing that you start a business and, you know, you say something simple to him like, “Carnell, first you need to get a DBA.” “What is a DBA?” You know, “Carnell, you need to open up your checking account.” “A checking account with what and how?” Everything that you say, you had to explain it to him, because he didn’t—and even if you explained it to him, he still did not understand. Thomas said that he never saw Appellant deal with money and that Kimberly handled the social security income Appellant received.

Petetan Opinion On Rehearing — 68 v.

The Gauthiers—Practical Domain

Appellant came to live with the Gauthier family when he was thirteen or fourteen years old. Cathy Gauthier was Appellant’s aunt, and she had two children, Caston Gauthier and Kimberly Jackson. Cathy testified that Appellant was a little bit slower than her own kids, but she never had to discipline him. Appellant was just a little different, “real quiet all the time.”

Appellant “always had big dreams” of being a

bondsman or a rapper. Cathy explained to Appellant that he could not be a bondsman because he had a felony conviction, but Appellant did not seem to understand that. Caston likewise described Appellant as being mentally slow. While visiting Appellant in prison, Caston knew he could not talk to him about anything dealing with his profession “because he probably wouldn’t have caught on to anything that I was talking about.” Kimberly Jackson was fourteen years old when Appellant came to live with them. She described Appellant as “a little different” and “not on the same level, mind-wise,” being “slower.” Appellant was her age, but she said that he could not do the same things she could. Her family had to “stay on” Appellant about his hygiene. vi.

Adrian Miller—Practical Domain

Petetan Opinion On Rehearing — 69 Miller testified that Appellant used his phone on the trip to Waco, but he wasn’t good at it. Q.

Carnell couldn’t use his phone?

Not to get it to just go to the phone and do the things that he probably would have wanted to do. The only thing, from my understanding, how he knew how to do was maybe text a little bit, use the little thing to record things or whatever, but once Kerrie deleted—turned the phone off, he didn’t know how to use it. So when we got to the Bryan police station and they put each one of us in the interrogation rooms, he had to send the phone to Kerrie because he couldn’t even turn it back on. vii.

Appellant’s Letters—Practical Domain

Several letters in State’s Exhibit 126 are relevant to the practical domain. Regarding nutrition, he encouraged Kimberly to take Omega3 fish oil as well as vitamins. He said they would eat healthy when he got out and told her he was only eating “fish and chicken.” He also talked about being on a salad diet. When he didn’t like what they were serving on his unit—pork meatballs which were “never fixed right”—he made tuna and rice. Some letters indicate interests. Appellant spoke of getting boxing gloves and weights for Christmas—“his first Christmas present.” Though he’d lost interest in baseball, “my love for boxing never died.” He asked Kimberly to “go online and look up Local Boxing Gold Gloves Tournaments

Petetan Opinion On Rehearing — 70 Local Reginal & National . . . down load all the info form me.” Several times he talked about his schedule, and it always included lifting weights. His letters indicated he watched TV. “Every Friday on ESPN2 they air Friday night fights.” He also referred to watching a documentary on the Tyson/Seldon fight and an NFL game.

He told Kimberly that he

wanted them to go to Vegas to watch “a big fight” as their first vacation once he got out of prison. He also asked about boxing gyms in Waco. Appellant referenced a radio program he listened to called “Damage Control” and that “they play a lot of underground music it comes on at 11:00 til 2:00.” He complained about his station “97.9 the Box” not playing Sweet James Jones—the solo album by Pimp C. He told Kimberly that he took part in a show in prison—one that included “like 16 Different Acts”—and that he had worked on his music for it for three months. He said there was “all kinds of talent inside this Place.” Appellant knew that his social security check was around $3,000; in a letter to Kimberly, Appellant told her the steps to take to get her own social security check for a “mental disability.” He told her to “go to the Social Security office in Waco, get a form and fill it out” under mental disability. He told her what to say to the case worker and doctor to become eligible. “You will get 1200” a month. In another letter, he

Petetan Opinion On Rehearing — 71 talked about how to make money grow, telling her it made more sense to invest a large sum of money rather than spend a good hunk on it on an expensive car, and how “you can’t loose with real estate.” He knew the approximate cost of a used Bentley, $175,000; and the approximate cost to rent a car, $25 or $28 a day. He also wrote about: imposing a sliding scale membership to a facility he wanted to start to keep kids off the streets—a fee of three dollars a month for low income kids and $25 for the others; giving Kimberly $250 to help her pay for her education; and how, after his parents divorced, his Dad gave his Mom $500 a month that he never saw. These letters contained numerous excerpts and references to books Appellant read—many of them self-help books. He told Kimberly that he reads “books in my cell and these books have become my best friends.” He shared quotes with Kim, one saying, “Anything that you’re not grateful for is Baggage—Anything you are thankful for is fuel.” He asked if she agreed with the quote and asked her to answer the question: “what Baggage do you need to get rid of and what steps will you take to rid yourself of this Baggage?” In one letter, he advised Kimberly to not let A.W. play outside unsupervised. Another expressed an intent to join the “Three Five Seven

Petetan Opinion On Rehearing — 72 Graveyard Crip set.” Still, others set out various grandiose (and not so grandiose) money making ideas. All the letters contained misspellings, and punctuation errors. Appellant comes across as sometimes sweet, sometimes controlling. viii. Analysis—Practical Domain At trial, there was conflicting evidence regarding Appellant’s deficits in the practical domain. The jury could have inferred from Appellant’s family member witnesses and Dr. Craig’s conclusions that he was impaired in the practical domain. Appellant received a score of 1 (out of 3) on almost every home living task, including folding clean clothes, taking out the trash, clearing the table after a meal, making the bed, making minor repairs, putting things in their proper place, sweeping the floor, cleaning his room, cleaning the bathroom, mixing and cooking fairly complex foods, and dusting the furniture. And there is scant evidence that he did any of these day-to-day household chores. But Dr. Craig was not the fact-finder in this case. The jury could have doubted the efficacy of the ABAS-II given Dr. Craig’s circumscribed pool of “informants.” Dr. Craig testified that he assumes the informants give him the correct information. But the family members responding to the ABAS-II were aware of the implications of their responses. Although

Petetan Opinion On Rehearing — 73 Dr. Craig was not eager to admit it, all of the family members had an obvious vested interest in the outcome of their interviews with Dr. Craig: saving Appellant from a possible death penalty.134 “Indeed, individuals who have a close bond with the defendant/appellant have an identifiable, external incentive, to create the impression that the individual is impaired enough to meet the diagnostic criteria for [intellectual disability].”135 Looking at the practical domain on a more discrete level, there was conflicting evidence on Appellant’s ability to use money. Appellant’s mom and sister testified that he could not be trusted with it because he could not make change, couldn’t count it, and couldn’t figure out how much things cost. His uncle testified that Appellant was not the spouse who dealt with money; Kimberly was. This was evidence from which the jury could have inferred that Appellant was impaired in a very basic and critical practical skill—the use of money. But jurors had Appellant’s own statements and the testimony of others indicating otherwise. Appellant repeatedly testified that he went

134

See Bridget M. Doane, Karen L. Salekin, Susceptibility of Current Adaptive Behavior Measures to Feigned Deficits, 33 LAW & HUM. BEHAV. 329, 331 (2009) (“Perhaps the most important caveat to keep in mind when using any measure of adaptive behavior is that the information obtained is limited by many factors including, but not limited to, the knowledge base of the rater, the extent of contact between the rater and the person of interest in one or more settings, and the candor of the rater.”). 135

Id.

Petetan Opinion On Rehearing — 74 to Waco to get a $300 deposit from his cousin to give to his wife. He acknowledged he paid for the gas, room, food, beer, and cigarettes. He was aware of the approximate cost or value of things: a social security check, a used luxury car, a rental car, and alimony. He demonstrated an awareness of the concept of the sliding scale. And Appellant’s representations in this regard were corroborated by others. Adrian Miller testified that when they were driving to Waco, he pumped the gas and Appellant paid $70 cash for it from his wallet. Miller also testified that, when it came to renting the room, Appellant gave a man money to rent it for him. He also gave a woman an appropriate amount for a ride. After the murder, Appellant gave Miller $60 to fill up the Suburban. Inmate Azikin Daniels testified that Appellant told him about owning “Cartel Records,” showed him how to file a DBA form, and explained to Daniels that an artist receives only a percentage of money from each record sale.

All of this testimony about Appellant’s use and

understanding of money could have provided a basis for a rational jury to discount Appellant’s family members’ assertions that Appellant could not handle money. There also was conflicting evidence on whether another of

Petetan Opinion On Rehearing — 75 Appellant’s alleged deficits—the inability to use a modern cell phone (“a pervasive and insistent part of daily life”)—was real.136 Sabrina indicated that Appellant could not use a cell phone and that he could not learn to use one.

But the jury could have credited evidence showing that

Appellant did in fact know how to use a cell phone. Appellant testified that he and Kimberly both had cell phones. He testified about several phone calls he made or received.

He said that when he went to

Kimberly’s apartment, “Kim opened the door. She backed up. She said, ‘Why you ain’t texted or called me.’”

In his exculpatory account of

September 23rd, Appellant testified that he had a cell phone and was going to use it to call “9-1-1” but stopped when Miller pointed the gun at him and took his phone away.

Though the jury did not believe

Appellant’s testimony, they were free to believe he had a cell phone. Kimberly’s adult daughter, Kristin Warmack, testified that her mom and Appellant had cell phones that were in Appellant’s name, and she was able to communicate with her mom until Appellant cut off service. Adrian Miller testified that Appellant used his cell phone in compromising situations before the Waco trip, which Miller theorized was 136

Riley v. California, 573 U.S. 373, 385 (2014) (modern cell phones “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy”).

Petetan Opinion On Rehearing — 76 an effort to create evidence. “He even passed by the neighborhood one day holding his cell phone out the window . . . He was driving down the street like he was taunting me. He was already plotting it.” “I think one day he even called Kimberly and he told me, ‘I’m going to give you this piece of dope. I want you to cuss this lady out.’ I cussed her out, but then he grabbed the phone, and he would do, like, ‘Oh, man, stop doing that. Man, this is my wife,’ this and that, but to try to make me—try to make it seem like I’m doing it. He was the one doing it.” At one point, Appellant dangled “a nickel piece of crack rock” to get Miller to repeat things while recording him. Similarly, there was conflicting evidence on whether Appellant’s family members lacked candor in attesting to Appellant having no interest in recreation. Ophelia and Sabrina both testified that Appellant had no special interests—he did not play games or watch TV. But the jury could credit Appellant’s own statements made in his letters to Kimberly, which indicated a history of playing baseball, bowling, boxing, and working out with weights. And the jury had before it letters indicating he watched sports on television. Appellant also expressed a past and current interest in music, specifically, rapping, and listening to the radio. Nothing in the record “rules out” Appellant having significant

Petetan Opinion On Rehearing — 77 limitations in the realm of practical skills. But Appellant’s evidence of adaptive deficits was subject to a credibility assessment. Under a legal sufficiency analysis, a rational jury could have rejected Appellant’s claims that he possessed adaptive deficits suggesting intellectual disability in light of all the evidence before it. e.

Conclusion — Legal Sufficiency

Dr. Craig himself acknowledged many of the shortcomings in his testing: the ABAS–II is not normed for retrospective assessments; the pool of “informants” used to rate Appellant’s adaptive behavior was identified by the defense; every single person in that pool was related to Appellant; Dr. Craig conducted the interview only once per informant; and the interviews (except for Appellant’s) were conducted by telephone instead of in person. Appellant’s evidence of adaptive deficits was subject to a credibility assessment and was evidence that a jury could—in light of all the evidence before it—reasonably reject. The evidence is legally sufficient to support the jury’s adverse finding on the intellectual disability issue. As discussed above, the jury could simply reject the testimony that Appellant had adaptive deficits—one of the three elements of an intellectual-disability diagnostic definition.

“The finding of the factfinder rejecting a defendant’s

Petetan Opinion On Rehearing — 78 affirmative defense should be overturned for lack of legal sufficiency only if the appealing party establishes that the evidence conclusively proves his affirmative defense, and “no reasonable factfinder was free to think otherwise.”137 Given that Appellant had one IQ score that was over 70, and, as set out above, there were record-based reasons to discount the results of the ABAS–II, we cannot say that the evidence supporting the negative finding was legally insufficient. IV.

The Evidence Was Factually Insufficient To Support The Jury’s Adverse Finding On Intellectual Disability. A.

Standard of Review

Holding that the evidence is legally sufficient is the starting point for a factual sufficiency review. While evidence may be legally sufficient to support a jury’s determination, it may nevertheless be factually insufficient to reject an affirmative defense. When examining whether an appellant established his factual-sufficiency claim, the appellate court views the entirety of the evidence in a neutral light, rather than the light most favorable to the verdict.138 But the appellate court may not usurp the function of the jury by substituting its judgment in place of the jury’s

137

Butcher, 454 S.W.3d at 20.

138

Matlock, 392 S.W.3d at 671; Neal, 256 S.W.3d at 275.

Petetan Opinion On Rehearing — 79 assessment of the weight and credibility of the witnesses’ testimony.139 An appellate court may sustain a factual sufficiency challenge on appeal only if, after setting out the relevant evidence and explaining precisely how the contrary evidence greatly outweighs the evidence supporting the verdict, the court clearly states why the verdict is so much against the great

weight

the

evidence

manifestly

unjust,

conscience-shocking, or clearly biased.140 If an appellate court conducting a factual-sufficiency review finds that the evidence supporting the affirmative defense so greatly outweighs the State’s contrary evidence that the verdict is manifestly unjust, then the appellate court may reverse the trial court’s judgment and remand the case for a new trial.141 The remedy in both civil and criminal cases for an appellate reversal based upon a factual-sufficiency claim that the jury’s verdict is against the great weight of the evidence is a new trial, not an acquittal.142 As discussed above, the Supreme Court has set out certain constitutional minimums in any assessment of intellectual disability.

139

Matlock, 392 S.W.3d at 671.

140

Id.

141

Id. at 672.

142

Id.

Petetan Opinion On Rehearing — 80 First, the analysis must be informed by the current medical diagnostic framework for assessing intellectual disability.143

Specifically, courts

cannot focus upon one aspect of diagnostic criteria when clinicians would consider other aspects to reach an overall conclusion regarding intellectual ability.144

In both Hall and Moore I, the Supreme Court

rejected the use of IQ scores to foreclose inquiry into adaptive deficits because it created too great a risk that someone with an intellectual disability would be executed.145 Second, courts may not place undue emphasis upon adaptive strengths when rejecting an intellectual disability claim.146 In Moore I, the Supreme Court overturned this Court’s reliance upon lay evidence of adaptive strengths to overcome the clinical evidence of adaptive deficits.147

In Moore II, the Supreme Court summarily reversed this

143

See Hall, 572 U.S. at 721; Moore I, 137 S. Ct. at 1048 (explaining that it clarified in Hall that a court’s intellectual-disability determination “must be informed by the medical community’s diagnostic framework” and stating that it relied on the most recent versions of the leading diagnostic manuals). 144

See Hall, 572 U.S. at 723 (Florida’s IQ test rule takes an IQ score as final and conclusive evidence of a defendant’s intellectual capacity when experts in the field would consider other evidence; therefore, defendants must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits). 145

Id. at 704; Moore I, 137 S. Ct. at 1051.

146

See Moore I, 137 S. Ct. at 1050.

147

Id. at 1051–52.

Petetan Opinion On Rehearing — 81 Court’s reliance upon evidence of adaptive strengths when that evidence was used to undermine the credibility of a clinician’s diagnosis.148 Most importantly, the Supreme Court has been willing to overturn this Court’s rejection of intellectual disability even when that rejection was based upon the rational resolution of factual conflicts by a factfinder. In Moore II, the Supreme Court went beyond making a legal ruling and corrected this Court’s “factual findings.”149 It did so over a dissent that criticized the Court for usurping this Court’s role as factfinder on a writ of habeas corpus.150 In this case, viewing the evidence in a neutral light, the rational resolution of evidentiary conflicts surrounding the adaptive deficits testimony fails to fully account for the great weight and preponderance of diagnostic evidence establishing subaverage intelligence. Though the jury could rationally reject evidence showing adaptive deficits in isolation, failing to consider that evidence in conjunction with the evidence of

148

Moore II, 139 S. Ct. at 670.

149

See id. at 670–73 (contrasting conclusions of “the trial court” with the view of “the court of appeals”). 150

Id. at 673 n.1 (Roberts, J., dissenting).

Petetan Opinion On Rehearing — 82 subaverage intelligence runs afoul of Hall.151 Under a proper diagnostic framework, intellectual disability is determined by considering all three diagnostic criteria together rather than each one in isolation.152 Allowing the rejection of one diagnostic criterium when clinicians would consider criteria together creates an unconstitutional risk that an individual with an intellectual disability will be executed. Second, emphasizing Appellant’s adaptive strengths to undermine reliance upon an expert diagnosis repeats the problem identified by the Supreme Court in Moore I and Moore II. Though clinicians may rely upon evidence of adaptive strengths when making an intellectual disability diagnosis,153

allowing

the

jury

reject

such

diagnosis

overemphasizing that evidence places the focus upon adaptive strengths

151

Hall, 572 U.S. at 727 (“In the context of a formal assessment, the existence of concurrent deficits in intellectual and adaptive functioning has long been the defining characteristic of intellectual disability.”) (internal quotation omitted). 152

See id. at 723 (“It is not sound to view a single factor as dispositive of a conjunctive and interrelated assessment.”); Atkins, 536 U.S. at 318 (“[C]linical definitions of [intellectual disability] require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18.”). 153

Moore I, 137 S. Ct. at 1050 n.8 (“The dissent suggests that disagreement exists about the precise role of adaptive strengths in the adaptive-functioning inquiry. But even if clinicians would consider adaptive strengths alongside adaptive weaknesses within the same adaptive-skill domain, neither Texas nor the dissent identifies any clinical authority permitting the arbitrary offsetting of deficits against unconnected strengths in which the CCA engaged.”).

Petetan Opinion On Rehearing — 83 rather than adaptive deficits.154 Further, it encourages the jury to rely upon lay stereotypes regarding intellectual disabilities to reject a clinical diagnosis.155 Expert after expert diagnosed Appellant with mild intellectual disability:

Dr. Harold Scott (“mild [intellectually disability] versus

borderline intellectual functioning”); Dr. Coxe (“mildly [intellectually disabled]”; Dr. Correia (“mild intellectual disability”); Dr. Mayfield, (“global delays across all domains”); Dr. Craig (adaptive assessment scores fell within the range for moderate intellectual disability). Appellant consistently scored within the range for intellectual disability on intelligence testing administered across decades.

Mild

intellectual disability is typically used to describe people with an IQ level of 50–55 to approximately 70.156 Evidence of six full-scale IQ scores since 1991 were admitted. All but one on its face put Appellant within the clinically-accepted range of intellectual disability: 61

on the Wechsler Intelligence Scale for Children - Revised

154

See Moore I, 137 S. Ct. at 1050 (deeming this Court’s reliance on Moore’s perceived adaptative strengths as an overemphasis because the medical community focuses the adaptive-functioning inquiry on adaptive deficits). 155

See id. at 1052 (explaining that “the medical profession has endeavored to counter lay stereotypes of the intellectually disabled”). 156

Atkins, 536 U.S. at 309 n.3 (citing DSM–4 at 42–43).

Petetan Opinion On Rehearing — 84 (WISC-R), administered in 1991 (age 15); 64

on the WISC-R, administered in 1992 (age 16);

on the Wechsler Adult Intelligence Scale-Revised (WAIS-R), administered in 1992 (age 16);

on an unknown intelligence instrument, administered in 1993 (age 17);

on the WAIS-III, administered in 2012 (age 36); and

on the WAIS-IV, administered before trial (age 37).

In our original opinion we discounted all but the score of 74, and noted that, even when the three-point margin of error was considered, “the score at the low end of the margin-of-error range would be 71—still above the general ceiling for [intellectual disability], albeit barely.”157 We concluded, “[t]his was some evidence that appellant’s general intellectual functioning fell above the range for [intellectual disability].”158 Of course, “[i]t is not sound to view a single factor as dispositive of a conjunctive and

interrelated

assessment.”159

According

the

DSM-5,

comprehensive evaluation includes an assessment of intellectual capacity and adaptive functioning; identification of genetic and nongenetic

157

Petetan, 2017 WL 915530, at *24.

158

Id.

159

Id. at 723.

Petetan Opinion On Rehearing — 85 etiologies; evaluation for associated medical conditions (e.g., cerebral palsy, seizure disorder); and evaluation for co-occurring mental, emotional, and behavioral disorders.160 As the Supreme Court observed in Hall, IQ scores are an approximation of conceptual functioning but may be insufficient to assess reasoning in real-life situations and mastery of practical tasks.161

This is why clinical judgement is needed in

interpreting the results of IQ tests.162 And, unlike many Atkins cases, where the IQ scores start out high and get lower once the incentive to score low arises, Appellant’s scores started out low and stayed there. We have said that jurors are free to reject expert testimony if the testimony fails to comport with the jurors’ concepts of sound logic.163 In choosing to disregard expert testimony, the jury is constrained only by the requirement that any action taken must be pursued in a nonarbitrary manner.164 We said this in a case addressing sanity. And, like insanity, 160

DSM-5 at 39.

161

Hall 572 U.S. at 722 (quoting the DSM-5 at 37).

162

DSM-5 at 37.

163

Graham v. State, 566 S.W.2d 941, 951 (Tex. Crim. App. 1978).

164

Id. at 950–51 (recognizing that a defendant is not entitled to a judgment of acquittal simply because he offers expert testimony on the issue of insanity and the government attempts to rebut it without any expert witnesses; “While a jury may not arbitrarily disregard expert testimony, it also may not give conclusive effect to the opinion of an expert merely because that opinion is not challenged by some other expert”) (internal quotation marks omitted).

Petetan Opinion On Rehearing — 86 intellectually disability is expressed in terms of a mental diagnosis, but the issue is not strictly a medical one. What we have said about insanity is true here too: The issue is not strictly medical, and expert witnesses, although capable of giving testimony that may aid the jury in its determination of the ultimate issue, are not capable of dictating determination of that issue. Only the jury can join the non-medical components that must also be considered in deciding the ultimate issue. That ultimate issue of criminal responsibility is beyond the province of expert witnesses. Were it otherwise, the issue would be tried in hospitals rather than the courts.165 The ultimate issue in this case is not criminal responsibility—it is whether Appellant has an intellectual disability that diminishes his personal moral culpability.

But that issue, like the insanity issue, is

ultimately for the factfinder, not the expert.166

So, the “legal

determination of intellectual disability is distinct from a medical diagnosis, but it is informed by the medical community’s diagnostic framework.”167 In this case, the medical community was of one mind. We cannot hold the evidence supporting the adverse finding factually sufficient

165

Graham, 566 S.W.2d at 949.

166

See id. at 952.

167

Hall, 572 U.S. at 721.

Petetan Opinion On Rehearing — 87 because there was no competing medical evidence.168 Had there been, we might be assured that the jury’s rejection of the evidence of intellectual disability did not run afoul of Supreme Court precedent. After Moore I and Moore II, a factfinder cannot substitute its opinion for that of all of the examining doctors. We therefore conclude that the jury’s rejection of Appellant’s intellectual disability claim was clearly wrong and manifestly unjust.

Having determined the evidence was factually

insufficient, Appellant is entitled to a new punishment hearing.169 Conclusion Appellant was not and is not constitutionally entitled to a pre-trial

168

Petetan, 2017 WL 915530, at *26 (“No psychological expert testified definitively—during appellant’s capital murder trial—that appellant was not [intellectually disabled].”). 169

See Matlock, 392 S.W.3d at 672 (explaining that reversal based upon factualsufficiency claim is a new trial, not an acquittal); Brownlow v. State, No. AP-77,068, 2020 WL 718026, at *23 (Tex. Crim. App. Feb. 12, 2020) (not designated for publication) (remedy for a meritorious factual-sufficiency claim is a new punishment hearing, not reformation of the sentence). After Moore II, this Court has granted relief on several Applicants’ intellectual disability claims. See the following unpublished opinions: Ex parte Williams, WR-71,296-03, 2020 WL 7234532, at *1 (Tex. Crim. App. Dec. 9, 2020); Ex parte Gutierrez, WR-70,152-03, 2020 WL 6930823, at *1 (Tex. Crim. App. Nov. 25, 2020) Ex parte Guevara, WR-63,926-03, 2020 WL 5649445, at *3 (Tex. Crim. App. Sept. 23, 2020); Ex parte Lizcano, No. WR-68,34803, 2020 WL 5540165, at *1 (Tex. Crim. App. Sept. 16, 2020); Ex parte Escobedo, WR-56,818-03, 2020 WL 3469044, at *1 (Tex. Crim. App. June 24, 2020); Ex parte Henderson, 2020 Tex. Crim. App. Unpub. LEXIS 171, at *2 (Tex. Crim. App. Apr. 15, 2020). Other Applicants’ cases have been remanded to the habeas court for considerations on the merits. Again, see the following unpublished opinions: Ex parte Lewis, WR-86,572-01, 2020 WL 5540550, at *1 (Tex. Crim. App. Sept. 16, 2020); Ex parte Butler, WR-41,121-03, 2019 WL 4464270, at *2 (Tex. Crim. App. Sept. 18, 2019). Though these cases are not authority, our factual-sufficiency determination, as well as our decision to remand for a new punishment hearing, in the present case are consistent with these cases.

Petetan Opinion On Rehearing — 88 determination of his intellectual disability. The evidence in this case is legally sufficient for the jury to reject Appellant’s intellectual disability claim. As such, and based on the record before us, Appellant has not been shown to be categorically ineligible for the imposition of the death penalty. However, the jury’s rejection of Appellant’s affirmative defense of intellectual disability was against the great weight and preponderance of the evidence. Accordingly, we vacate Appellant’s death sentence and remand this cause for a new punishment hearing.

Filed: May 12, 2021 Publish

Texas Criminal Defense Lawyers Association

4th Annual Harris County Capital Murder Seminar May 21, 2021

Topic: Cell Phone Evidence - What it Can and Can’t Show Speaker:

Dr. Michael Thompson Michael_W_Thompson@Baylor.edu

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Cell Phone Evidence What it Can and Can’t Show

Mike Thompson, Ph.D. Electrical and Computer Engineering Baylor University Michael_W_Thompson@baylor.edu

About Me • Professor in Electrical and Computer Engineering • Communications and Signal Processing • Started doing expert work in 2014 • 2-3 Dozen cases

Overview •Basic Concepts •Types of Location Data •Cell Tower Data •Case Studies

Basic Concepts – the rest is common sense • Location Data Technology • GPS • Wi-Fi Location Data • IP Address Location Data

• Technology is not the same as Science • Technology is driven by Business (not the needs of Law Enforcement) • Data Locates Devices

Basic Concepts – Location Data Technology • GPS – Global Positioning System (gps.gov)

• Doesn’t work well indoors or near obstructions • Accuracy: May 11, 2016 – User Range Error 2.3 ft on average 95% of the time. • GPS enabled smartphones – user accuracy of 16 ft. Usually better 3-6 ft.

Basic Concepts - Location Data Technology • Turning on wifi will improve location accuracy

• GPS doesn’t work indoors • Google maintains a WiFi database with location data • Device location logged as device moves through Wi-Fi access points • Device does not have to connect to WiFI • Accuracy depends on several factors • Can be accurate “enough” in most cases

Basic Concepts - Location Data Technology • IP addresses

• A connection to the internet has an associated IP address to route the data to the connecting device • Geolocation IP Databases allows location to be determined from a particular IP address • IP address are often recorded

Basic Concepts – the rest is common sense • Location Data Technology • GPS • Wi-Fi Location Data • IP Address Location Data

• Technology is not the same as Science • Technology is driven by Business (not the needs of Law Enforcement) • Location Data - Locates Devices not People

Basic Concepts – the rest is common sense • Location Data Technology • GPS • Wi-Fi Location Data • IP Address Location Data

• Technology is not the same as Science • Technology is driven by Business (not the needs of Law Enforcement) • Location Data - Locates Devices not People

Basic Concepts – the rest is common sense • Location Data Technology • GPS • Wi-Fi Location Data • IP Address Location Data

• Technology is not the same as Science • Technology is driven by Business (not the needs of Law Enforcement) • Location Data - Locates Devices not People

Overview •Basic Concepts •Types of Location Data •Cell Tower Data •Case Studies

Types of Location Data • Cell-Phone Forensics • Real-time Location • Geofencing (from Google, Facebook and other `data’ companies) • Call Detail Records (from Carriers, not accurate) • NELOS, PCMD – from Carriers, better accuracy, but refutable

Types of Location Data • Cell Phone Forensics • Recovered data from the device • There are “cell phone forensic” companies that specialize in extracting information from the phone. • The reports I’ve seen do not have a great deal of location information • Time-stamped Location information can be extracted from items such as photos/videos.

Types of Location Data • “Real-time” location

• Find My iPhone - GPS/WiFi/IP address • Triangulate Based on Signal Strength • Possible, but not a likely method

• It is not practical to record the location of every device at every moment…but massive amounts of device locations are, in fact, recorded

Types of Location Data Geofencing aka Reverse Location Search Warrants Also used in active investigations

Geofencing articles • "Google Hands Feds 1,500 Phone Locations In Unprecedented 'Geofence' Search". Forbes. Dec, 2019 • “Tracking Phones, Google Is a Dragnet for the Police”, NYTimes April 13, 2019 • “Law enforcement is using location tracking on mobile devices to identify suspects, but is it unconstitutional?”, ABA Journal, Dec. 2020

Types of Location Data • Cell-Phone Forensics • Real-time Location • Geofencing (from Google, Facebook and other `data’ companies) • Call Detail Records (from Carriers, not accurate) • Network Quality Data – NELOS (AT&T), PCMD (Spring) – (from Carriers, better accuracy)

Types of Location Data • Cell-Phone Forensics • Real-time Location • Geofencing (from Google, Facebook and other `data’ companies) • Call Detail Records (from Carriers, not accurate) • Network Quality Data - NELOS, PCMD – (from Carriers, better accuracy)

Cell Tower Data • Cell Tower Location Data based on Call Detail Records • Most common type of case that I encounter • Call Detail Records are provided by the cell-phone carriers • Carriers keep these for Billing/Business Purposes • Analysis typically takes 4-5 hours for most cases • Based mainly on voice calls tied to Cell tower locations

Cell Phone Basics

Switches Central Office (CO) Switching became automated Mobile Switch Center

Cell Phone Basics

Cell Phone Basics- Cell Network

Cell Phone Basics – Coverage Areas Selected Cell Tower Depends on several factors. • Signal Strength • Number of Users • Multipath • Obstructions • Atmospheric Effects • Economics of Tower Ownership

Cell Phone Basics – Coverage Areas

Cell Phone Basics-Sectors

Cell Phone Basics – Coverage Areas

Cell Phone Basics – Call Detail Records • Voice calls are time-stamped with tower GPS information • Text messages typically are not included and/or do not have location data • Data connections are occasionally present with time-stamps and tower location • Data Connections are sometimes autonomous

Example Cases • Alibi Falsification • Location Accuracy • Time-line Corroboration– This can be quite effective. • Improperly Presented Evidence • Alibi Corroboration • Unusual Situations with the Records

Typical Case from 2015 - Alibi Falsification • CDR records placed defendants phone in locations that were inconsistent with the story he told his defense attorney. • This is not an unusual outcome.

2015 Waco Murder Case – Location Accuracy • CDR’s place defendant phone in proximity to crime scene with time stamps • Size of circles is an estimate. • We were able to use prior month cell records to show defendant regularly went to this area at this time of day.

2015 Waco Hilton ATM

Time Line Corroboration

• State expert provided an accurate and detailed account of phone calls, locations and time stamps between defendants. • A time-series of calls is a much more effective argument than a single point-in-time call. • It’s also helpful for the prosecution when the accused calls 911 from his phone in an effort to divert law enforcement.

2018 Onyeri Case – Time Line Corroboration • Attempted Murder of a Federal Judge • State produced a consistent timeline of geolocation data that matched their theory of the case. • Defendant’s alibi was not supported by the geolocation data.

2017 Houston Murder Case – Improperly Presented Evidence • State’s Evidence – “Floating” Phone Video • Misleading Representation of Geolocation Data

2018 Laredo Armed Robbery – Alibi Corroboration • Lucky Answer of a Telemarketing Call • The Accuracy Question was “Flipped” in this Case

2019 Waco Case – Alibi Corroboration • Defense asked for review call records a few days before trial • Records placed phone in Dallas - Streaming Data.

Waco Case – State Expert Error • Time Zone Conversion Error for Witness Cell Phone records • Error had a significant impact on the case.

2018 Fort Worth Murder Trial - Unexplained Call • Phone call from the Victim’s Phone after the Time of Death • FBI argued it was a phantom call. • Both Experts Testified

Questions?

References

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Since 1971, Texas Criminal Defense Lawyers Association has provided a statewide forum for criminal defense lawyers. TCDLA is the only voice in the legislature interested in basic fairness in criminal cases. From its beginning as a small association of 260 members, to today with a full staff, officers, board members and more than 2,500 members, TCDLA has played an important role among criminal defense lawyers, providing assistance, support and continuing education. TCDLA has developed a number of affiliations over the last few years which provided a presence and eagerness to help criminal defense lawyers across the state of Texas. TCDLA continues to foster these relationships and develop additional affiliations. As part of this association you share a voice with 2,500 like mind individuals in more than 150 counties across the state.

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TEXAS INDIGENT DEFENSE COMMISSION – ATTORNEY CASELOAD REPORTING & WEIGHTED CASELOAD STUDY HB 1318 was the most significant bill related to indigent defense passed by the 83rd Texas Legislature. It includes significant new reporting requirements related to caseloads handled by attorneys providing representation to indigent defendants. Commission staff met with a variety of stakeholders, including court and county officials, criminal defense practitioners, legislative staff, national authorities, and others to find ways to effectively implement HB 1318 in a seamless manner while providing meaningful information to policymakers. New Attorney Reporting – HB 1318 included the following provision in Article 26.04, Code of Criminal Procedure: An attorney appointed under this article shall: … not later than October 15 of each year and on a form prescribed by the Texas Indigent Defense Commission, submit to the county information, for the preceding fiscal year, that describes the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in the county under this article and Title 3, Family Code. Beginning October 15, 2014, the bill requires all attorneys handling indigent defense cases to annually report to the county for the preceding fiscal year (October 1st - September 30th) the percentage of the attorney's practice time that was dedicated to appointed 1) criminal cases (trial and appeals) and 2) juvenile work (trial and appeals) in the county. This report should not include work on other types of appointed work such as CPS or guardianship cases, nor should it include practice time devoted to federal criminal appointments. Attorneys must submit this report to each county in which they accept appointments. With significant input from TCDLA leadership, the Commission adopted this form and reporting instructions. The Commission is working with our partners at Texas A&M’s Public Policy Research Institute (PPRI) to create an electronic attorney reporting portal. This will permit attorneys to report their work in all counties at the same time directly to the Commission, with the report viewable by the counties. The judges in each county may specify through their indigent defense plan the method for attorneys to use for submitting their report (online or paper form). Attorneys are not required to use a particular methodology to complete the practice time report. Some may do so by using time records, if they keep such records. Other attorneys may use a case counting methodology. The reporting form will ask the attorney to note what method(s) they used to calculate the percentage figures reported. The Commission is working with TCDLA to develop a worksheet(s) that attorneys may use to help calculate the practice time percentages. The worksheet will help an attorney allocate their practice time among various case types and counties. Use of the worksheet is strictly voluntary and will not be submitted to the county or Commission. Penalties for failing to submit a required practice time report by the October 15th due date may be prescribed by the judges handling criminal or juvenile cases in each county. Many judges have already chosen to amend their indigent defense plans to provide for an attorney’s removal from the list of attorneys eligible to receive future court appointments until they complete the report. This is similar to current enforcement of the annual CLE requirements. Please review your local plan available at: http://tidc.tamu.edu/public.net/Reports/IDPlanNarrative.aspx

New County Reporting of Attorney Caseloads – HB 1318 included the following provision in Section 79.036, Government Code: Not later than November 1 of each year and in the form and manner prescribed by the commission, each county shall prepare and provide to the commission information that describes for the preceding fiscal year the number of appointments under Article 26.04, Code of Criminal Procedure, and Title 3, Family Code, made to each attorney accepting appointments in the county, and information provided to the county by those attorneys under Article 26.04(j)(4), Code of Criminal Procedure. In addition to the attorney reporting requirements above, starting November 1, 2014 the bill requires each county to submit to the Commission annually the information provided to the county by the attorneys described above, along with information that describes for the preceding fiscal year the number of appointments made to each attorney accepting appointments in the county. As to the new county reporting of case and fee data by attorney, the Commission decided based on its consultation with stakeholders to build on the existing reporting infrastructure in the annual Indigent Defense Expenditure Report (IDER). The IDER already requires county auditors (or treasurers) to report the aggregate number of cases paid by case type (Juvenile, Capital Murder, Adult Felony, Adult Misdemeanor, Juvenile Appeals, Felony Appeals, and Misdemeanor Appeals) and by court along with the amount paid each year by November 1st (the same date as the new reporting requirement). The new report will require this information to be broken down by attorney. County auditors have indicated that they already collect this information as part of the attorney payment process. Weighted Caseload Study – HB 1318 included the following provision: Not later than January 1, 2015, the Texas Indigent Defense Commission shall conduct and publish a study for the purpose of determining guidelines for establishing a maximum allowable caseload for a criminal defense attorney that, when the attorney's total caseload, including appointments made under Article 26.04, Code of Criminal Procedure, appointments made under Title 3, Family Code, and other work, is considered, allows the attorney to give each indigent defendant the time and effort necessary to ensure effective representation. The study must be based on relevant policies, performance guidelines, and best practices. In conducting the study … the commission shall consult with criminal defense attorneys, criminal defense attorney associations, the judiciary, and any other organization engaged in the development of criminal indigent defense policy that the commission considers appropriate. The goal is to provide policymakers with an objective analysis of the time required to represent different types of court-appointed cases. This kind of study has not been done in Texas before, but jurisdictions around the country have undertaken similar research because they have recognized the value of understanding data and its power to help improve their justice systems. The Commission is working with PPRI to conduct the weighted caseload study. Attorneys have been recruited to document and categorize their time spent on cases for twelve weeks using simple timekeeping software developed by JusticeWorks. At the conclusion of the data collection phase, a panel of experts will review the time data together with survey data and make recommendations regarding the time demands of various types of cases. While this study will not be the last word on indigent defense needs in Texas, it will be an evidence informed starting point to demonstrate what is necessary to provide appropriate representation in various types of cases. The information learned through the study may serve as a management tool to guide decision making for public defenders and managed assigned counsel systems. For assigned counsel systems, the study will provide objective information to the courts about the resources different types of cases typically demand. This study will also provide policymakers at the state and local level with objective information upon which to base funding decisions. To learn more about this research please visit the study website at http://texaswcl.tamu.edu. WWW.TIDC.TEXAS.GOV

MARCH 2014

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