CLINTON, Judge, dissenting.
This is a post-conviction application for writ of habeas corpus brought pursuant to Article 11.07, V.A.C.C.P. In 1982 applicant was convicted of the offense of capital murder and his punishment assessed at death. This Court affirmed his conviction in 1984. Garrett v. State, 682 S.W.2d 301 (Tex.Cr.App.1984). Applicant was seventeen years old when he committed this offense.
Applicant contends, inter alia, that his sentence of death violates the Eighth Amendment in that the jury at the punishment phase of trial was provided no mechanism for effectuating evidence having mitigating value either not relevant to or having relevance beyond the scope of the special issues contained in Article 37.071(b), V.A.C.C.P. In its proposed conclusions of law the habeas court would hold that applicant has forfeited this claim for failure to raise it at the trial level. However, in Black v. State, 816 S.W.2d 350 (Tex.Cr.App.1991), a majority of this Court held that such a claim can be raised for the first time on appeal or on collateral attack, at least so long as the trial occurred prior to the date of decision in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).1 In my view youth alone is a mitigating factor having significance beyond the pale of the special issues. Ex parte Earvin, 816 S.W.2d 379 (Tex.Cr.App.1991) (Clinton, J., dissenting). Because ap[305]*305plicant was sentenced by a jury given no means to prescribe, should it so choose, a sentence less than death based on that factor, his death sentence violates the Eighth Amendment. Gribble v. State, 808 S.W.2d 65, at 75 (Tex.Cr.App.1990). Applicant is entitled to a new trial. Because the Court does not grant that relief, I respectfully dissent.
Applicant also complains that what is now former Article 37.071 operated effectively to preclude other evidence in mitigation that could have been, but was not presented at the punishment phase of his trial. Because evidence he now proffers as to his history of family violence and drug and alcohol abuse, and of his limited intelligence and possible brain damage could only, under Article 37.071, have operated to his detriment, he was prevented as a practical matter from producing that evidence at trial. Alternatively he contends that his trial counsel was ineffective for failing to investigate and adduce that evidence.
Applicant’s trial attorneys arranged to have applicant examined prior to trial by a psychologist, Dr. Thomas Milton Cannon, Jr. Dr. Cannon performed a number of tests, including an I.Q. test, and concluded applicant had a low average intelligence. He also concluded applicant would represent a future danger to society. Cannon had not been made aware of any history of child abuse, and was not privy to applicant’s records from the Texas Youth Council. One of applicant’s trial attorneys testified that a “tactical” decision was made not to utilize Dr. Cannon at trial because his testimony would only have been detrimental to applicant because “as applied to the issues, those issues in the jury charge, ... it would be more helpful to the State than it would be to Mr. Garrett.” Significantly, applicant’s other trial attorney testified at the writ hearing as follows:
“Q. It would be fair to say you weren’t going to use [Dr. Cannon’s testimony] because it was going to hurt the Defendant more than it was going to help him if the jury heard about it?
A. That’s correct. Yes, that’s correct, yes.
Q. If, in fact, there was not — and I realize it’s been seven years, but if, in fact, there was not any information you received from Dr. Cannon that would have been mitigating, then it really wouldn’t have helped if the law had been different, allowing for mitigating evidence, would it?
I mean, if you don’t have any to present, it doesn’t help that that law allows that, does it?
A. [Counsel], I don’t really know — I don’t know that we ever really thought of it in that light. What we were looking at is just on that one issue, you know, and it never dawned on me until the Franklin case came down, you know, that all of us who tried those capital cases should have been looking further than the three issues that were presented.”2
I take this to mean that before the United States Supreme Court opinion in Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988), applicant’s trial counsel did not make “tactical” decisions that encompassed consideration of any mitigating evidence having relevance apart from or beyond the scope of Article 37.071 special issues. Counsel was simply unaware or unmindful of the Eighth Amendment principles that eventually led to the Supreme Court’s holding in Penry. A failure to investigate under these circumstances surely amounts to ineffective assistance of counsel. Ex parte Herrera, 819 S.W.2d 528 (Tex.Cr.App., delivered May 29, 1991) (Clinton, J., dissenting).
Applicant’s half-sister appeared at the writ hearing. She testified that applicant’s mother had married five times, that his natural father had “disowned” him, and that applicant had suffered at the hands of a succession of stepfathers. One, the witness’s natural father, would beat applicant with his fist and “rub[] his nose in the mess” when applicant soiled the bed. Another stepfather “put ... cigarettes out on [applicant’s] behind.” Yet another one sexually abused applicant. At the instigation [306]*306of the witness's father, applicant began drinking at the age of eleven or twelve. He drank frequently and also smoked marihuana. He told his half-sister he had also used “[cjrystal, LSD, acid, angel dust, speed.” Once when drinking applicant had an iron gate fall down on him, striking him between the eyes, breaking his nose, and causing him to go into convulsions. Applicant believed there was a ghost in the house, and held conversations with his grandmother and aunt, both dead.3
Preparatory to the writ hearing applicant was examined by another psychologist, Dr. Windel Dickerson. Dr. Dickerson conducted an extensive review of applicant’s family history and “the entire treatment record of his Texas Youth Council stay.” He also reviewed the findings of a psychiatrist and professor from the New York University Medical Center, Dr. Dorothy Otnow Lewis, who had examined applicant pursuant to a study,4 and the results of neurological testing conducted by Dr. Ellis Richardson. On [307]*307the basis of all this data Dr.
Free access — add to your briefcase to read the full text and ask questions with AI
CLINTON, Judge, dissenting.
This is a post-conviction application for writ of habeas corpus brought pursuant to Article 11.07, V.A.C.C.P. In 1982 applicant was convicted of the offense of capital murder and his punishment assessed at death. This Court affirmed his conviction in 1984. Garrett v. State, 682 S.W.2d 301 (Tex.Cr.App.1984). Applicant was seventeen years old when he committed this offense.
Applicant contends, inter alia, that his sentence of death violates the Eighth Amendment in that the jury at the punishment phase of trial was provided no mechanism for effectuating evidence having mitigating value either not relevant to or having relevance beyond the scope of the special issues contained in Article 37.071(b), V.A.C.C.P. In its proposed conclusions of law the habeas court would hold that applicant has forfeited this claim for failure to raise it at the trial level. However, in Black v. State, 816 S.W.2d 350 (Tex.Cr.App.1991), a majority of this Court held that such a claim can be raised for the first time on appeal or on collateral attack, at least so long as the trial occurred prior to the date of decision in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).1 In my view youth alone is a mitigating factor having significance beyond the pale of the special issues. Ex parte Earvin, 816 S.W.2d 379 (Tex.Cr.App.1991) (Clinton, J., dissenting). Because ap[305]*305plicant was sentenced by a jury given no means to prescribe, should it so choose, a sentence less than death based on that factor, his death sentence violates the Eighth Amendment. Gribble v. State, 808 S.W.2d 65, at 75 (Tex.Cr.App.1990). Applicant is entitled to a new trial. Because the Court does not grant that relief, I respectfully dissent.
Applicant also complains that what is now former Article 37.071 operated effectively to preclude other evidence in mitigation that could have been, but was not presented at the punishment phase of his trial. Because evidence he now proffers as to his history of family violence and drug and alcohol abuse, and of his limited intelligence and possible brain damage could only, under Article 37.071, have operated to his detriment, he was prevented as a practical matter from producing that evidence at trial. Alternatively he contends that his trial counsel was ineffective for failing to investigate and adduce that evidence.
Applicant’s trial attorneys arranged to have applicant examined prior to trial by a psychologist, Dr. Thomas Milton Cannon, Jr. Dr. Cannon performed a number of tests, including an I.Q. test, and concluded applicant had a low average intelligence. He also concluded applicant would represent a future danger to society. Cannon had not been made aware of any history of child abuse, and was not privy to applicant’s records from the Texas Youth Council. One of applicant’s trial attorneys testified that a “tactical” decision was made not to utilize Dr. Cannon at trial because his testimony would only have been detrimental to applicant because “as applied to the issues, those issues in the jury charge, ... it would be more helpful to the State than it would be to Mr. Garrett.” Significantly, applicant’s other trial attorney testified at the writ hearing as follows:
“Q. It would be fair to say you weren’t going to use [Dr. Cannon’s testimony] because it was going to hurt the Defendant more than it was going to help him if the jury heard about it?
A. That’s correct. Yes, that’s correct, yes.
Q. If, in fact, there was not — and I realize it’s been seven years, but if, in fact, there was not any information you received from Dr. Cannon that would have been mitigating, then it really wouldn’t have helped if the law had been different, allowing for mitigating evidence, would it?
I mean, if you don’t have any to present, it doesn’t help that that law allows that, does it?
A. [Counsel], I don’t really know — I don’t know that we ever really thought of it in that light. What we were looking at is just on that one issue, you know, and it never dawned on me until the Franklin case came down, you know, that all of us who tried those capital cases should have been looking further than the three issues that were presented.”2
I take this to mean that before the United States Supreme Court opinion in Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988), applicant’s trial counsel did not make “tactical” decisions that encompassed consideration of any mitigating evidence having relevance apart from or beyond the scope of Article 37.071 special issues. Counsel was simply unaware or unmindful of the Eighth Amendment principles that eventually led to the Supreme Court’s holding in Penry. A failure to investigate under these circumstances surely amounts to ineffective assistance of counsel. Ex parte Herrera, 819 S.W.2d 528 (Tex.Cr.App., delivered May 29, 1991) (Clinton, J., dissenting).
Applicant’s half-sister appeared at the writ hearing. She testified that applicant’s mother had married five times, that his natural father had “disowned” him, and that applicant had suffered at the hands of a succession of stepfathers. One, the witness’s natural father, would beat applicant with his fist and “rub[] his nose in the mess” when applicant soiled the bed. Another stepfather “put ... cigarettes out on [applicant’s] behind.” Yet another one sexually abused applicant. At the instigation [306]*306of the witness's father, applicant began drinking at the age of eleven or twelve. He drank frequently and also smoked marihuana. He told his half-sister he had also used “[cjrystal, LSD, acid, angel dust, speed.” Once when drinking applicant had an iron gate fall down on him, striking him between the eyes, breaking his nose, and causing him to go into convulsions. Applicant believed there was a ghost in the house, and held conversations with his grandmother and aunt, both dead.3
Preparatory to the writ hearing applicant was examined by another psychologist, Dr. Windel Dickerson. Dr. Dickerson conducted an extensive review of applicant’s family history and “the entire treatment record of his Texas Youth Council stay.” He also reviewed the findings of a psychiatrist and professor from the New York University Medical Center, Dr. Dorothy Otnow Lewis, who had examined applicant pursuant to a study,4 and the results of neurological testing conducted by Dr. Ellis Richardson. On [307]*307the basis of all this data Dr. Dickerson concluded that applicant suffered from schizophrenia, “probably paranoid schizophrenia;” and “chronic brain syndrome[,]” which he described as “complications arising by behavior and thought and a lot of other things arising out of some kind of brain damage.” He concluded that applicant “is one of the most profoundly and pervasively disabled people I’ve encountered in the last 25, 28 years of practice.” Dickerson’s own written evaluation of applicant suggests that applicant’s condition could have been diagnosed as of the time of trial.5
Considering the nature of the mitigating evidence adduced at the writ hearing, and which would have been ascertainable at the time of trial, I believe there is a “reasonable probability” — that is to say, “a probability sufficient to undermine confidence in the outcome” — that the jury might have found in its reasoned moral judgment that applicant deserved a sentence of less than death. Strickland v. Washington, 466 U.S. 668, at 694, 104 S.Ct. 2052, at 2068, 80 L.Ed.2d 674, at 698 (1984). Even had counsel made a conscious and informed decision not to adduce this evidence, such a “Hob-son’s choice” amounts to no more than “a court-induced ‘tactical’ decision to avoid helping the State satisfy its burden of proof.” Ex parte Herrera, supra, at 532 (Clinton, J., dissenting). As it is, counsel was not even cognizant of the choice he made by failing to investigate and adduce the evidence. Either way the proper course is to vacate the sentence of death and remand the cause for a new trial. Id.
Finally, in his written report of his examination of applicant Dr. Dickerson noted:
“Mr. Garrett does appear to be aware of the proceedings against him and is aware that the State is seeking to execute him. Paired with this under[308]*308standing is the probably psychotic belief that his dead aunt will protect him from the effects of the sedative and toxic agents used.”
At the habeas hearing Dickerson was asked:
“Q. ... Do you still agree with that statement today?
A. If Mr. Garrett is still experiencing that delusion, yes; and still very much as he was when I saw him, yeah.
Q. Is the schizophrenic problem and delusions that Mr. Garrett suffers from the kind of thing, in your professional opinion, that continues over time?
A. Yes, it generally does.”
Now applicant contends he cannot be executed consonant with the Eighth Amendment because he “does not presently understand that the state has the ability to extinguish his life through lethal injection.” See Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). The Court should at least file and set this application to address this question.
In Ford the Supreme Court held it violates the Eighth Amendment to execute the insane. The full Court did not announce a standard, however, for determining “insanity” for Eighth Amendment purposes. In a separate opinion Justice Powell suggested such a standard. He opined:
“[MJost men and women value the opportunity to prepare, mentally and spiritually, for their death. Moreover, today as at common law, one of the death penalty’s critical justifications, its retributive force, depends on the defendant’s awareness of the penalty’s existence and purpose. * * *
... If the defendant perceives the connection between his crime and his punishment, the retributive goal of the criminal law is satisfied. And only if the defendant is aware that his death is approaching can he prepare himself for his passing. Accordingly, I would hold that the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it.”
477 U.S. at 421, 422, 106 S.Ct. at 2607, 2608, 91 L.Ed.2d at 354. While a majority of the Supreme Court has not yet adopted this standard, we have found it to be a “persuasive” one. Ex parte Jordan, 758 S.W.2d 250, at 254, & n. 7 (Tex.Cr.App.1988). It seems to me a more than plausible argument can be made that if applicant truly believes his dead aunt will intervene to save him from the effects of an otherwise lethal injection, he is not likely to appreciate “that his death is approaching” so that he can “prepare himself for his passing.” This Court is the ultimate fact-finder in post-conviction habeas corpus proceedings; the habeas court’s findings are advisory only. Ex parte Adams, 768 S.W.2d 281, at 288 (Tex.Cr.App.1989). Moreover, outside of the context of post-conviction habeas corpus under Article 11.-07, there is no other established procedure for making determinations of competency vel non to be executed in Texas. Ex parte Jordan, supra. The upshot is that applb cant has not had a final determination in the state forum as to whether his execution would violate the Eighth Amendment under Ford. Once again the Court abjures passing on a substantial question that is properly before it, apparently preferring to leave it for the federal courts to resolve on federal habeas corpus. See Ex parte Earvin, supra (Clinton, J., dissenting).
For all the foregoing reasons, I respectfully dissent.
MALONEY, J., joins.