Ex Parte Tennard

960 S.W.2d 57, 1997 Tex. Crim. App. LEXIS 109, 1997 WL 776020

• Court: Court of Criminal Appeals of Texas
• Decided: December 18, 1997
• Docket: 71678
• Status: Published

Opinions

OPINION

McCORMICK, Presiding Judge.

This is a post conviction application for writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P. We will deny relief.

In October 1986, a jury convicted applicant of capital murder, and sentenced him to die. This Court affirmed applicant’s conviction and sentence on direct appeal. Tennard v. State, 802 S.W.2d 678 (Tex.Cr.App.1990). The United States Supreme Court denied applicant’s petition for writ of certiorari on June 28, 1991. Tennard v. Texas, 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1077 (1991).

In this proceeding, applicant claims the Texas capital sentencing scheme applicable to his case¹ was applied to him in violation of the Eighth and Fourteenth Amendments to the United States Constitution. He argues the special issues failed to provide his jury a vehicle to give mitigating effect to “relevant mitigating evidence” of his youth, “youthful incarceration” and what he claims is evidence of his mental retardation, all in violation of Penny v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).

Viewed in the light most favorable to the verdict, the evidence shows applicant and two others brutally murdered two men in their home during a robbery. See Tennard, 802 S.W.2d at 679. Applicant lived behind the home of the victims, and he knew them. The victims had invited applicant and his two friends into their home approximately fifteen to thirty minutes before they were attacked. Applicant stabbed one of the victims fifteen times with a knife while one- of applicant’s friends killed the other victim with a hatchet. Applicant played a dominant role in disposing of the victims’ stolen property. Applicant presented an alibi defense, and he presented other evidence from which the jury might have concluded that another person possibly could have committed the murders.

The evidence from the punishment hearing shows applicant had been on parole from a felony rape conviction for about three and one-half months when he committed this offense. The rape victim testified applicant and two others forced her into a car while she was at a bus stop. Just after she was forced into the car, applicant, who was displaying about a foot-and-a-half-long pipe-wrench, said to her, “[M]ove, white bitch, and you’re dead.”

The victim testified applicant and his friends took her to an abandoned apartment at some government project where applicant forced her to engage in oral, vaginal and anal sex with him. After that, applicant’s two friends took turns sexually assaulting her.

Applicant and his friends then took the victim to another house where applicant began using drugs and discussing “pimping out” the victim. She asked applicant if she could go to the bathroom to take a bath, which he allowed her to do:

“Q. Now you told them that you wanted to take a bath?

“A Yes, I did.

“Q. Did [applicant] say anything?

“A He told me I wasn’t going to try to run away, was I.

“Q. What did you tell him?

“A I told him, ‘No, baby. I like you. I wouldn’t do that.’ ”

After applicant let the victim go to the bathroom, she escaped through a window, and applicant was arrested later that day. The victim testified applicant appeared to be the leader during her ordeal. Applicant impeached the victim’s testimony with a prior statement she made from which the jury could have inferred one of applicant’s friends was the leader.

Applicant’s parole officer testified that a Texas Department of Correction's (TDC) record from applicant’s incarceration for the rape conviction indicated he had a 67 IQ.

“Q. ... And did you in fact bring a documentation of what [applicant’s] intelligence quotient is according to the test from the penitentiary?

“A. Yes, I did.

“Q. And what was the result of the test?

“A. It’s a 67, sir.”

During cross-examination of this witness, the State introduced the TDC record into evidence. This record appeal’s to have been prepared approximately five years before applicant committed this offense, and there is a notation on the record indicating applicant had an IQ of 67. However, the witness could not say who prepared the report, or conducted the IQ test.

“Q. Mr. Kinard, this doesn’t purport to be any report by any particular psychologist or anything, does it?

“A. No, sir.

“Q. It’s basically just sort of, as its says, social and criminal history of [applicant]?

“A. Right, sir.

“Q. And it says, there’s basically a line for IQ, and it says 67?

“A. That’s correct.

“Q. And it has no indication of who may have given those tests or under what conditions?

“A. No sir, it doesn’t.”

This is all the evidence presented at applicant’s 1986 trial on his “mental retardation.” The term “mental retardation” is not mentioned anywhere in this record. Applicant also introduced evidence showing he was twenty-two years of age when he committed this offense, and he had spent most of his formative years incarcerated.

During closing arguments at the punishment phase, the prosecutor argued the facts of the ciime itself showed applicant’s “special dedication to violence.”

“Look at the facts of the crime itself. You know pulling a pistol or pulling a trigger on a pistol is a fairly easy way to kill someone. Not easy, but it’s a detached way. It takes a special dedication to violence to plunge a knife into a human body sixteen times.”

Applicant referred to the IQ evidence twice during closing arguments at punishment. He referred to the evidence in responding to portions of the rape victim’s testimony:

“... the information that they gave is that [appellant] has got a 67 IQ. The same guy that told this poor unfortunate woman that was trying to work that day, “Well, if I let you in there, will you leave?’ And he believed her. This guy with the 67 IQ, and she goes in and, sure enough, she escapes, just like she should have. That is uncon-troverted testimony before you, that we have got a man before us that has got an intelligence quotient before us that is that low.”

And, he asked the jury to take into account the IQ evidence in answering the' special issues:

“... none of you are suffering from a 67 IQ. So you’re going to have to try to judge this man and decide what his punishment would be as his peers.”

Evidence of Youth and Previous Incarceration

Applicant argues the special issues failed to provide the jury a vehicle to give mitigating effect to evidence of his youth and evidence that he spent most of his formative years incarcerated. We disagree.

This Court and the United States Supreme Court have held the special issues allow the fact finder to give mitigating effect to evidence of a defendant’s youth and good prison record. See Johnson v. Texas, 509 U.S. 350, , 113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993); Jones v. State, 843 S.W.2d 487, 497 (Tex.Cr.App.1992), cert. denied, 507 U.S. 1035, 113 S.Ct. 1858, 123 L.Ed.2d 479 (1993); Ex parte Harris, 825 S.W.2d 120, 122 (Tex.Cr.App.1991). And, we have held the special issues allow the fact finder to consider and give mitigating effect to evidence of a troubled or abusive childhood. See Ex parte Jacobs, 843 S.W.2d 517, 520 (Tex.Cr.App.1992); Goss v. State, 826 S.W.2d 162, 166 (Tex.Cr.App.1992); Lewis v. State, 815 S.W.2d 560, 567 (Tex.Cr.App.1991).

Since the special issues allow the fact finder to give mitigating effect to this kind of evidence, they also allow the fact finder to consider and give mitigating effect to any mitigating qualities of evidence of “youthful incarceration.” In any event, applicant has not established any “nexus” between his “youthful incarceration” and the “circumstances of the offense which tend[s] to excuse or explain the commission of this offense.” See, e.g., Earhart v. State, 877 S.W.2d 759, 765 (Tex.Cr.App.1994), cert. denied, 513 U.S. 966, 115 S.Ct. 431, 130 L.Ed.2d 344 (1994). And, the proposition that evidence of “youthful incarceration” possesses any mitigating qualities is almost absurd. We hold the special issues provided the jury a vehicle to give effect to any mitigating qualities of the evidence of applicant’s youth and “youthful incarceration.”

Mental Retardation

Applicant also claims the special issues failed to provide the jury a vehicle to give mitigating effect to evidence of his “mental retardation.” He claims this Court should “reaffirm its bright-line rule” that “ ‘evidence of mental retardation falls beyond the scope of the [former] statutory special issues.’ ” See, e.g., Earhart, 877 S.W.2d at 765. The first question we must ask is whether there is any evidence that applicant is mentally retarded. Applicant would have this Court hold under Penny that a five-year-old reference in an obscure TDC record to applicant’s IQ score of 67 shows applicant is mentally retarded, and that evidence of an IQ of 70 or less is sufficient evidence to support a finding of mental retardation. We decline to do so.

According to the American Association on Mental Retardation (AAMR), a person is considered to be mentally retarded only when there is evidence of: (1) subaverage general intellectual functioning, (2) concurrent deficits in adaptive behavior, and (3) onset during the early development period. See David L. Rumley, Comment: A License to Kill: The Categorical Exemption of the Mentally Retarded from the Death Penalty, 24 St. Mary’s Law Journal Number 4 1299, 1312-14 (1993). Texas has adopted the AAMR three-part definition of mental retardation in the “Persons With Mental Retardation Act.” See V.T.C.A., Health & Safety Code, Section 591.003(13) (“mental retardation” means significantly subaverage general intellectual functioning that is concurrent with deficits in adaptive behavior and originates during the developmental period); V.T.C.A., Health & Safety Code, Section 591.003(16) (“person with mental retardation” means a person determined by a physician or psychologist licensed in this state or certified by the department to have subaverage general intellectual functioning with deficits in adaptive behavior). And, Penry also expressly relies on the AAMR three-part definition of mental retardation.

“Persons who are mentally retarded are described as having ‘significantly subaver-age general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period.’ American Association on Mental Deficiency (now Retardation) (AAMR), Classification in Mental Retardation 1 (H. Grossman ed.1983). To be classified as mentally retarded, a person generally must have an IQ of 70 or below. (Citation Omitted). Under the AAMR classification system, individuals with IQ scores between 50-55 and 70 have ‘mild’ retardation. Individuals with scores between 35-40 and 50-55 have ‘moderate’ retardation. ‘Severely⁵ retarded people have IQ scores between 20-25 and 35-40, and ‘profoundly⁵ retarded people have scores below 20 or 25. (Citation Omitted). Approximately 89% of retarded persons are ‘mildly⁵ retarded. (Citation Omitted). Penry, 492 U.S. at 307-09 fn. 1, 109 S.Ct. at 2941 fn. 1.”

The first part of the AAMR test is measured by IQ, and an individual must have an IQ test score of 70 or less to meet the first part of the AAMR definition of mental retardation. See 24 St. Mary’s Law Journal Number 4 at 1316-17. However, that does not end the inquiry or mean that everyone with an IQ of 70 or below is mentally retarded; it means only that all mentally retarded persons have an IQ of 70 or below. Because of their unreliability in determining mental retardation, IQ scores should not be used as a “unitary measure of mental retardation;” a low IQ alone does not provide a justifiable basis for classifying a person as mentally retarded. See id. at 1329-35.

And, some argue that using IQ scores as the sole measure of mental retardation could have negative social consequences for all persons -with low IQ scores who are “perfectly capable of a self-sustaining life.” See id. at 1338-40. They argue this could present a potential danger to the liberty of these citizens. See id.

The second part of the AAMR definition of mental retardation is not quantifiable; it measures a person’s ability to function properly in society such as, for example, meeting the needs of day to day life. See id. at 1317-20. And, the third part of the AAMR definition requires a person to exhibit parts one and two of the AAMR definition during his developmental period. See id. Once the three-part AAMR definition is met, IQ score ranges are utilized to measure the severity of mental retardation ranging from “mild” to “profound.” See id. at 1321; see also Penry, 492 U.S. at 307-09 fn. 1, 109 S.Ct. at 2941 fn. 1.

Based on the foregoing, it arguably is clear that Johnny Paul Penry’s evidence met the AAMR three-part definition of mental retardation and Section 591.003(13) of the Health and Safety Code. See Penry, 492 U.S. at 307-311, 109 S.Ct. at 2941-42. However, it is clear that applicant’s evidence of a low IQ score, standing alone, does not meet this definition. Qualitatively and quantitatively applicant’s low IQ evidence does not approach the level of Johnny Paul Penry’s evidence of mental retardation. Based on the foregoing, we find no evidence in this record that applicant is mentally retarded.

Assuming the evidence of applicant’s low IQ somehow falls within Penry’s definition of mental retardation,² we still hold applicant is not entitled to relief under Penry. United States Supreme Court decisions before and after Penry have upheld the constitutionality of Texas’ former special issues framework because this framework has allowed juries in the vast majority of cases to consider and give effect to relevant mitigating evidence in a meaningful manner. See Johnson, 509 U.S. at 361-67, 113 S.Ct. at 2666-68; Graham v. Collins, 506 U.S. 461, 473-75, 113 S.Ct. 892, 901, 122 L.Ed.2d 260 (1993); Franklin v. Lynaugh, 487 U.S. 164, 181-82, 108 S.Ct. 2320, 2331, 101 L.Ed.2d 155 (1988); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). Johnson reaffirmed that as long as relevant mitigating evidence is within “the effective reach of the sentencer” the requirements of the Eighth Amendment are satisfied. Johnson, 509 U.S. at 367-69, 113 S.Ct. at 2669 (distinguishing Penry because special issue two provided the jury a meaningful basis to consider and give effect to the mitigating qualities of Johnson’s youth). All the Constitution requires is that a jury be able to consider in some manner a defendant’s relevant mitigating evidence. See id. The Constitution does not require that “a jury be able to give effect to mitigating evidence in every conceivable manner in which the evidence might be relevant.” See id.

The issue in cases like this is ‘“whether there is a reasonable likelihood that the jury has applied the challenged instructionfs] in a way that prevents the consideration of constitutionally relevant evidence.’ ” See Johnson, 509 U.S. at 367-71, 113 S.Ct. at 2669-70. We should evaluate the instructions with a “ ‘commonsense understanding of the instructions in the light of all that has taken place at trial.’” See Johnson, 509 U.S. at 367-69, 113 S.Ct. at 2669. This involves a case-by-ease approach requiring a consideration of the specific facts of each case. And, this is the approach the Supreme Court followed in Penry. See Penry, 492 U.S. at 307-14, 320-330, 109 S.Ct. at 2941-44, 2948-2962. There are no bright-line rules in eases like this.

In Penry, Johnny Paul Penry presented evidence that his mental retardation made it impossible for him at the time of the offense to appreciate the wrongfulness of his conduct or to conform his conduct to the law. Penry, 492 U.S. at 307-09, 320-30, 109 S.Ct. at 2941, 2949; see also Johnson, 609 U.S. at 363-65, 113 S.Ct. at 2667 (evidence suggested that .Penry’s mental retardation rendered him unable to learn from his mistakes); Graham, 506 U.S. at 473-75, 113 S.Ct. at 901 (Court considered Penry’s evidence to be mitigating because it diminished Penry’s ability to control his impulses or to evaluate the consequences of his conduct). Johnny Paul Penry’s evidence was relevant mitigating evidence because the Supreme Court identified a long-held belief by society “that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.” Penry, 492 U.S. at 318-20, 109 S.Ct. at 2947; see also Johnson, 509 U.S. at 369-71, 113 S.Ct. at 2670.

However, the special issues placed the mitigating qualities of Johnny Paul Penry’s evidence beyond the effective reach of the jury because it could not be determined for sure whether the jury could have given “appropriate” mitigating effect to the evidence in answering special issue one. See Johnson, 509 U.S. at 363-65, 369-71, 113 S.Ct. at 2667, 2770. More importantly, the jury could have given Johnny Paul Perny’s evidence only aggravating effect in answering special issue two. See Johnson, 509 U.S. at 363-65, 113 S.Ct. at 2667 (Penry’s mitigating evidence was relevant to the second special issue only as an aggravating factor because it suggested a “yes” answer to that special issue); Penry, 492 U.S. at 322-24, 109 S.Ct. at 2949. Johnny Paul Penry was entitled to relief not because of his mental retardation standing alone, but because the special issues placed beyond the effective reach of the jury the mitigating qualities of Penry’s evidence that his mental retardation rendered him unable to appreciate the wrongfulness of his conduct when he committed the offense. See also Johnson, 509 U.S. at 363-65, 367-71, 113 S.Ct. at 2667, 2669-70, ; Graham, 506 U.S. at 473-75, 113 S.Ct. at 901; Penry, 492 U.S. at 307-09, 322-24, 335-39, 109 S.Ct. at 2941, 2949, 2956-57 (in light of the diverse capacities and life experiences of mentally retarded people, it cannot be said that all mentally retarded people, by definition, can never act with the level of culpability associated with the death penalty).

Here, there is no evidence applicant’s low IQ rendered him unable to appreciate the wrongfulness of his conduct when he committed the offense, or that his low IQ rendered him unable to learn from his mistakes or diminished his ability to control his impulses or to evaluate the consequences of his conduct. See Johnson, 509 U.S. at 363-65, 113 S.Ct. at 2667; Graham, 506 U.S. at 473-75, 113 S.Ct. at 901. Therefore, there was no danger, as in Penry, that the jury would have given any mitigating qualities of the evidence of applicant’s low IQ only aggravating effect in answering special issue two. See Johnson, 509 U.S. at 363-65, 369-71, 113 S.Ct. at 2667, 2669-70; Penry, 492 U.S. at 322-24, 109 S.Ct. at 2949.

In addition, the special issues did not place mitigating qualities of the evidence of applicant’s low IQ beyond the effective reach of the jury. The jury could have used this evidence for a “no” answer to the first special issue on “deliberateness.” See Penry, 492 U.S. at 322-24, 109 S.Ct. at 2949. Moreover, in considering the circumstances of this offense and applicant’s prior felony rape conviction in connection with special issue two, the jury could have used the low IQ evidence to conclude applicant was a “follower” instead of a “leader” since he participated in the commission of both crimes with others. See, e.g., Ellason v. State, 815 S.W.2d 656, 660 (Tex.Cr.App.1991) (one factor to consider in determining whether the evidence is sufficient to support an affirmative answer to special issue two is whether the defendant was acting under duress or the domination of another at the time of the offense); see also Johnson, 509 U.S. at 871-73, 113 S.Ct. at 2671. There was ample room within special issue two for the jury to give effect to any mitigating qualities of applicant’s low IQ evidence.

All requested relief is denied.

OVERSTREET and WOMACK, JJ., dissent.

1 . See Article 37.071(b)(1) and (2), V.A.C.C.P., (requiring the submission of two special issues to the jury: (1) "whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result” and (2) "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society").

2 . See Penry, 492 U.S. at 307-09 fn. 1, 109 S.Ct. at 2941 fn. 1.

5 . According to the APA:

The essential feature of a dementia is the development of multiple cognitive deficits that include memory impairment and at least one of the following cognitive disturbances: aphasia, apraxia, agnosia, or a disturbance in executive functioning. The cognitive deficits must be sufficiently severe to cause impairment in occupational or social functioning and must represent a decline from a previously higher level of functioning.

DSM-IV at 135.