Ex Parte Modden

147 S.W.3d 293, 2004 WL 1462228

• Court: Court of Criminal Appeals of Texas
• Decided: April 21, 2004
• Docket: 74715
• Status: Published

Opinions

OPINION

PRICE, J.,

delivered the opinion of the Court, in which

MEYERS, WOMACK, JOHNSON, HOLCOMB, and COCHRAN, JJ., joined.

In his subsequent application for a writ of habeas corpus, the applicant claimed that he is mentally retarded. We found that the applicant had met the requirements of Code of Criminal Procedure Article 11.071, Section 5, and we remanded to the trial court for findings of fact and conclusions of law. The trial court found that the applicant is retarded. Because the record supports the trial court’s findings, we grant relief.

I. Procedural History

The applicant was convicted of capital murder and sentenced to death in 1985. On direct appeal, the conviction was affirmed.¹ In his initial application for habe-as corpus relief, we reversed the conviction for Penry error.²

The applicant was retried in 1992, and he was once again convicted and sentenced to death. The conviction and sentence were affirmed on appeal.³ We denied relief in the applicant’s initial writ application for this conviction.⁴ He filed this subsequent writ application after the United States Supreme Court began to consider, in Atkins v. Virginia, whether the execution of mentally retarded people violates the Eighth Amendment to the Constitution. We dismissed the application. The Supreme Court granted a stay of execution, and nine days later, it delivered the opinion in Atkins, in which it held that executing the mentally retarded violates the Eighth Amendment.⁵ Later, the Supreme Court granted the applicant’s petition for a writ of certiorari, vacated our prior decision dismissing his application, and remanded m light of its decision in Atkins.⁶ We remanded the case to the trial court to make findings and conclusions about whether the applicant is mentally retarded.

On remand, the State agreed and the trial court found that the applicant is mentally retarded.⁷ This finding was based on three reports in which three different mental health experts concluded that the applicant is mentally retarded.

II. The Law

The United States Supreme Court held in Atkins that, under evolving standards of decency, the Eighth Amendment to the United States Constitution prohibits the execution of people who are mentally retarded.⁸ The Supreme Court cited with approval the definitions set out by the American Association on Mental Retardation (AAMR)⁹ and the American Psychiatric Association (APA).¹⁰ Basically, mental retardation is defined as (1) significant subaverage general intellectual functioning, (2) concurrent with deficits in adaptive functioning, (3) occurring before age 18.

In the absence of legislative direction, we recently adopted those criteria, which are consistent with the definition the legislature set out in Health and Safety Code Section 591.003(13).¹¹ In Ex parte Briseno, we concluded that the criteria in these definitions are subjective, and thus, we set out some additional factors that factfinders may use.¹² We will review the record and apply the criteria we adopted in Briseno.

III. The Record

The first report in the record is from Dr. Joseph P. Kartye, Jr., a psychologist who examined the applicant and testified during the 1985 trial. The trial court admitted this report during the 1985 trial. At the time, the applicant was 36 years old. As part of his examination of the applicant, Kartye administered the Wech-sler Adult Intelligence Scale. The applicant achieved a full scale I.Q. score of 64. He also administered the Wide Range Achievement Test. The results showed that the applicant’s reading, spelling, and arithmetic abilities were at or below the third-grade level. Kartye concluded that the applicant’s intellectual deficits contributed directly to his inability to cope with life’s day-to-day demands: the applicant “lacks the cognitive and behavior controls necessary to regulate his behavior.” Kar-tye concluded, in essence, that the applicant is mildly mentally retarded.¹³

The second report on which the trial court relied in concluding that the applicant is mentally retarded was by Dr. Ernest Brownlee, Jr., a psychiatrist who examined the applicant in 1988. Brownlee’s report was admitted during the applicant’s 1992 trial. According to the report, the applicant possesses an “extremely limited problem solving ability.” The applicant’s memory is consistent with an organic brain disorder. Also, the applicant is highly influenced by others, particularly his family. He said it is highly likely that the applicant could not function outside of a structured setting and should be housed either in a state school or at the Rusk State Hospital. Brownlee concluded that the applicant is mildly mentally retarded.

The third report on which the trial court based its conclusion was prepared by Dr. Frankie Clark, a licensed psychologist who examined the applicant in 1992, and who testified at the applicant’s 1992 trial. The report was admitted into evidence during that trial. Clark administered the Wech-sler Adult Intelligence Scale (Revised), and the applicant achieved a full scale I.Q. score of 58. Clark also administered the Wide Range Achievement Test (Revised Level II), and in reading, spelling, and arithmetic the applicant’s abilities were at or below a third-grade level.

Regarding the' applicant’s adaptive functioning, Clark concluded that the applicant possessed significant deficits. He possesses regressed and intellectually defective coping skills; his approach to his environment is concrete; he is unable to interpret many abstract stimuli; he has significant difficulties with interpersonal relationships; and he tends to misinterpret or distort perceptual input from other people, which most likely is the cause of his inability to make conventional or socially acceptable responses. Clark concluded that the applicant is mildly retarded and that his thought processes and emotions appear to show retardation in all areas. She also concluded that the applicant has been retarded since birth.

Clark also noted that the Texas Department of Criminal Justice (TDCJ) Mentally Retarded Offender Program examined the applicant in 1989. The social assessment performed at that time showed that the applicant possessed significantly subaver-age adaptive behavior with the condition being developmental in nature. School records that Clark reviewed showed that the applicant was a slow learner with a speech defect. He repeated the sixth grade, and completed school only through the seventh grade.

TV. Analysis

As we explained above, the trial court used the criteria set out by the AAMR and the APA. The trial court did not use the Briseno factors in its findings because it did not have the benefit of our order in that case. Nonetheless, we conclude that the trial court’s findings are supported by the record.

This is not a case in. which we have dueling experts. The three reports from the mental health experts that the trial court considered are consistent with one another and with the report from the TDCJ Mentally Retarded Offender Program. The reports establish that the applicant has (1) significant subaverage general intellectual functioning, (2) concurrent with deficits in adaptive functioning, (3) that occurred before age 18. The applicant’s IQ scores of 58 and 64 are well below the 70-75 score that generally indicates subaverage general intellectual functioning. Clark found that the applicant possesses deficits in several adaptive functioning categories, and she found that the applicant has been retarded since birth.

The claim that the parties litigated the applicant’s mental retardation claim during the 1992 trial is incorrect. Although evidence was admitted on the issue of mental retardation, there certainly was no special issue on mental retardation included in the jury charge. This evidence was relevant to the mitigation special issue.¹⁴ If the applicant is mentally retarded, it mitigates his moral culpability. And, just because the jury answered the mitigation special issue “no” is not the equivalent of a jury finding that the applicant is not mentally retarded. Also the claim that the applicant “filed” a coherent pro se brief on direct appeal from his 1985 conviction does not necessarily support the conclusion that the applicant is not mentally retarded. It is common knowledge that there are “writ writers” in TDCJ who will write pleadings for other inmates.

While there may be some evidence to the contrary, there is significant evidence that the applicant is mentally retarded. The record supports the trial court’s finding that the applicant is mentally retarded. The same trial judge who presided over the applicant’s two trials made the findings and conclusions in this case. That trial judge was in the best position to evaluate conflicting evidence, and his findings deserve great deference.

In fact, it is not surprising that the trial judge found that the applicant was mentally retarded in this case. While Penry was pending before the United States Supreme Court, the applicant filed a subsequent application for a writ of habeas corpus. He claimed that he is mentally retarded and that the execution of the mentally retarded violated the Eighth Amendment to the United States Constitution. He also claimed that he was prevented from having the jury consider his evidence of mental retardation in the context of the special issues that were provided in the jury charge of his first trial. During those proceedings the trial judge found that the applicant is mentally retarded. As part of his findings, the trial judge said

At the punishment phase of his trial, petitioner did testify and was allowed to present evidence of his mental retardation, brain damage, alcoholism, alcohol consumption at the time of the offense and purported abuse he suffered as a child. These matters were presented as mitigating factors of his punishment.... [P]etitioner is mentally retarded.

The trial court’s finding has not changed.

We filed and set that application and granted relief on the basis of Penry error.¹⁵ In our unpublished opinion disposing of the case, we quoted Kartye’s testimony from the punishment phase of the applicant’s 1985 trial. He said that “even under repeated testings in optimal conditions, his score would fall in the mentally retarded range.”¹⁶ After we discussed the Supreme Court’s opinion in Penry and how evidence of mental retardation presents a double-edged sword, we said,

Mr. Modden’s evidence of mental retardation presented the same problem. Even as a rational jury might have found that appellant’s mental condition made him less blameworthy, they were required to express their consideration of his mental condition in a way that would cause him to receive the ultimate sanction. The second special issue simply did not provide the jury with a way to give effect to mitigating evidence of mental retardation in this case.¹⁷

This Court has previously concluded that the applicant presented evidence of mental retardation at his 1985 trial.

We want to make clear that the parties’ attempt to strike a plea bargain regarding the applicant’s status as a mentally retarded person has no bearing on the outcome of this case. The trial court found, long before any agreement between the parties, that the appellant is mentally retarded. Our decision today is based solely on the trial court’s findings, which are supported by the record.

We conclude that the record supports the trial court’s findings that the applicant is mentally retarded. As a result, we grant relief. We reform the applicant’s sentence to life imprisonment in the Texas Department of Criminal Justice Correctional Institutions Division.

KELLER, P.J., concurred in the judgment. HEKVEY, J., filed a dissenting opinion, in which KEASLER, J., joined.

1 . Modden v. State, 721 S.W.2d 859 (Tex.Crim.App.1986).

2 . Ex parte Modden, No. 71,312 (Tex.Crim.App. delivered Feb. 12, 1992) (not designated for publication); see Penry v. Lynaugh, 492 U.S. 302, 328, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (holding that jurors that are considering the death penalty must have a vehicle to give effect to their reasoned moral response to the defendant's mitigating evidence).

3 . Modden v. State, No, 71,493 (Tex.Crim.App. delivered June 8, 1994) (not designated for publication).

4 . Ex parte Modden, No. 11,364-04 (Tex.Crim.App. delivered July 1, 1998) (not designated for publication).

5 . Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

6 . Modden v. Texas, 536 U.S. 954, 122 S.Ct. 2654, 153 L.Ed.2d 831 (2002).

7 . While this case was on remand to the trial court, the State and the applicant made an agreement that, in exchange for not challenging the applicant’s claim that he is mentally retarded, the applicant would plead guilty to five offenses: aggravated assault with a deadly weapon (1976), arson (1985), deadly weapon in a penal institution (1987), deadly weapon in a penal institution (1992), and retaliation (1992). The State agreed to stipulate that the applicant is mentally retarded and present to the trial court agreed proposed findings of fact and conclusions of law on the remand from this Court. And the State filed a motion in the trial court to reform the applicant’s sentence. Our holding in this case is not based on the agreement or the motion.

8 . Atkins, 536 U.S. at 321, 122 S.Ct. 2242.

9 . The Supreme Court quoted the AAMR definition of mental retardation in Atkins:

Mental retardation refers to substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18.

Id. at 308 n. 3, 122 S.Ct. 2242 (quoting Mental Retardation: Definition, Classification, and Systems of Supports 5 (9th ed.1992)).

10 . The Supreme Court quoted the APA of mental retardation in Atkins:

The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system. "Mild" mental retardation is typically used to describe people with an IQ level of 50-55 to approximately 70.

Ibid, (quoting American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 41, 42-43 (4th ed.2000)) (citations omitted).

11 . Ex parte Briseno, 135 S.W.3d 1, 8 (Tex.Crim.App., 2004).

12 .The additional factors adopted in Briseno include the following:

• Did those who knew the person best during the developmental stage — his family, friends, teachers, employers, authorities— think he was mentally retarded at that time, and, if so, act in accordance with that determination?

• Has the person formulated plans and carried them through or is his conduct impulsive?

• Does his conduct show leadership or does it show that he is led around by others?

• Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable?

• Does he respond coherently, rationally, and on point to oral or written questions or do his responses wander from subject to subject?

• Can the person hide facts or lie effectively in his own or others' interests?

• Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?

Briseno, op at 8.

13 . Although Kartye did not use the term mildly mentally retarded in his report, the facts discussed in the report indicate that the applicant has significant subaverage general intellectual functioning concurrent with deficits in adaptive functioning that manifested before age 18. This report is evidence of mental retardation and was admitted during the 1985 trial.

14 . The mitigation special issue asks the jury "[wjhether taking into consideration all of the evidence, including the circumstances of the offense, the defendant’s character and background, and the personal moral culpability of the defendant, there is sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.” Tex.Code Crim. Proc. art. 37.071, § 2(e)(1).

15 . Ex parte Modden, No. 71,312 (Tex.Crim.App. delivered Feb. 12, 1992) (not designated for publication).

16 . Id.., slip op. at 2.

17 . Id,, at slip op. at 2-3.