IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-17,434-02
EX PARTE CLARENCE CURTIS JORDAN, Applicant
ON POST-CONVICTION APPLICATION FOR WRIT OF HABEAS CORPUS FROM CAUSE NO. 276428-B IN THE 184TH DISTRICT COURT HARRIS COUNTY
Per curiam.
OPINION
Before the Court is Applicant Clarence Curtis Jordan’s application for a writ
of habeas corpus. See TEX. CODE CRIM. PROC. art. 11.071.1 In his primary claim
(Claim One), Applicant invokes Penry v. Lynaugh, 492 U.S. 302 (1989), arguing
that he is entitled to a new punishment trial due to inadequate jury instructions
1 Unless otherwise specified, all references to articles refer to the Texas Code of Criminal Procedure. Jordan–2
given at his 1983 trial. In an alternative claim (Claim Two), relying on Atkins v.
Virginia, 536 U.S. 304 (2002), Applicant alleges that he is intellectually disabled
and therefore categorically immune from execution.
For the reasons discussed below, we conclude that no additional fact finding
is needed regarding Claim One. Applicant is entitled to habeas relief on his Penry
claim and we accordingly remand his case to the trial court for a new punishment
trial. We further conclude that Applicant has waived his Atkins claim for purposes
of this proceeding and dismiss it.
I. BACKGROUND
In 1978, Applicant was convicted of capital murder and sentenced to death
for intentionally shooting to death Joe Williams while robbing or attempting to rob
Williams and other employees of a Houston food market. See TEX. PENAL CODE
§ 19.03. On direct appeal, this Court vacated the conviction and sentence and
remanded the matter for a new trial due to the erroneous denial of a challenge for
cause. Jordan v. State, 635 S.W.2d 522 (Tex. Crim. App. 1982).
The State retried Applicant in 1983 and again sought the death penalty. The
new jury also convicted Applicant of capital murder. At the punishment phase,
among other things, Applicant presented evidence that he suffered from paranoid Jordan–3 schizophrenia and possibly Organic Brain Syndrome with delusions (a condition
involving organic brain damage). After the close of evidence, the trial court
submitted the following special issues to the jury:
i. Special Issue 1: Do you find from the evidence beyond a reasonable doubt that 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?
ii. Special Issue 2: Do you find from the evidence beyond a reasonable doubt that there is a probability the Defendant would commit criminal acts of violence that would constitute a continuing threat to society?
Based on the jury’s answers to the “deliberateness” and “future
dangerousness” special issues, the trial court sentenced Applicant to death. We
affirmed the conviction and sentence. Jordan v. State, 707 S.W.2d 641 (Tex. Crim.
App. 1986).
Applicant’s execution was scheduled for August 1987. Applicant filed a
habeas application, pursuant to Article 11.07, in June 1987. Applicant asserted one
claim: he was incompetent to be executed under the Supreme Court’s then-recent
opinion in Ford v. Wainwright, 477 U.S. 399 (1986). We deemed Applicant
incompetent under Ford to be executed and stayed Applicant’s execution until
such time that he regained competency. See Ex parte Jordan, 758 S.W. 250, 255 Jordan–4 (1988). Over the past thirty-five-plus years, Applicant has apparently remained
incompetent to be executed.
II. THE PRESENT APPLICATION
In October 2025, Applicant filed in the trial court the habeas application that
is now before this Court. In Claim One, relying on Penry and its progeny, Applicant
alleges that he “was deprived of his right to have a jury consider all mitigating
evidence before sentencing him to death in violation of the Eighth Amendment of
the U.S. Constitution.” In Claim Two, relying on Atkins, Applicant contends that
he “is intellectually disabled and ineligible for execution under the Eighth and
Fourteenth Amendment[s] of the U.S. Constitution.” He notes that the Supreme
Court decided both Penry (1989) and Atkins (2002) well after he filed his earlier
writ application in 1987.
In the application’s Conclusion, Applicant makes clear that Claim Two is an
alternative allegation that he wishes to pursue only under certain circumstances:
[Applicant] asks that this Court overturn his death sentence [because] the jury who sentenced him to death did not have an adequate vehicle through which it might assess the mitigating evidence of cognitive and psychiatric dysfunction presented during his trial and give [Applicant] the individualized sentencing determination that the Eighth Amendment demands. In the event that this Court does not grant relief on Claim One based on the allegations in this petition and the strength of the record, but determines that further proceedings are Jordan–5 necessary, [Applicant] asks that this Court authorize Claims One and Two pursuant to Article 11.071 Section 5, remanding both for further evidentiary development, discovery, and findings of fact and conclusions of law.
Appl.-02 at 37–38 (emphasis added).
As discussed below, we conclude that Applicant is entitled to habeas relief
on his Penry claim and grant relief in the form of a remand to the trial court for a
new punishment trial. Because we grant relief on Applicant’s Penry claim without
requiring further factual development, we take Applicant at his word that he does
not wish to pursue his Atkins claim under these circumstances. We conclude that
he has waived his Atkins claim for purposes of this proceeding and dismiss it.
III. APPLICANT’S PENRY CLAIM IS MERITORIOUS
A. Applicable Law
In Penry, the Supreme Court determined that the defendant’s death
sentence offended the Eighth Amendment because the former punishment phase
special issues submitted to his jury did not provide an adequate vehicle for
meaningfully considering and giving effect to his double-edged evidence of
intellectual disability and childhood abuse. See 492 U.S. at 319–25. Since delivering
Penry, the Supreme Court has identified additional kinds of two-edged evidence
that require a separate mitigation instruction allowing the jury to give that evidence Jordan–6 full consideration and effect. See Tennard v. Dretke, 542 U.S. 274, 288 (2004)
(intellectual disability, low intelligence falling short of intellectual disability); Smith
v. Texas, 543 U.S. 37, 44 (2004) (low intelligence, placement in special education
classes); Abdul-Kabir v. Quarterman, 550 U.S. 233, 239–42 (2007) (unhappy,
disturbed childhood; childhood neglect and abandonment; neurological damage);
Brewer v.
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IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-17,434-02
EX PARTE CLARENCE CURTIS JORDAN, Applicant
ON POST-CONVICTION APPLICATION FOR WRIT OF HABEAS CORPUS FROM CAUSE NO. 276428-B IN THE 184TH DISTRICT COURT HARRIS COUNTY
Per curiam.
OPINION
Before the Court is Applicant Clarence Curtis Jordan’s application for a writ
of habeas corpus. See TEX. CODE CRIM. PROC. art. 11.071.1 In his primary claim
(Claim One), Applicant invokes Penry v. Lynaugh, 492 U.S. 302 (1989), arguing
that he is entitled to a new punishment trial due to inadequate jury instructions
1 Unless otherwise specified, all references to articles refer to the Texas Code of Criminal Procedure. Jordan–2
given at his 1983 trial. In an alternative claim (Claim Two), relying on Atkins v.
Virginia, 536 U.S. 304 (2002), Applicant alleges that he is intellectually disabled
and therefore categorically immune from execution.
For the reasons discussed below, we conclude that no additional fact finding
is needed regarding Claim One. Applicant is entitled to habeas relief on his Penry
claim and we accordingly remand his case to the trial court for a new punishment
trial. We further conclude that Applicant has waived his Atkins claim for purposes
of this proceeding and dismiss it.
I. BACKGROUND
In 1978, Applicant was convicted of capital murder and sentenced to death
for intentionally shooting to death Joe Williams while robbing or attempting to rob
Williams and other employees of a Houston food market. See TEX. PENAL CODE
§ 19.03. On direct appeal, this Court vacated the conviction and sentence and
remanded the matter for a new trial due to the erroneous denial of a challenge for
cause. Jordan v. State, 635 S.W.2d 522 (Tex. Crim. App. 1982).
The State retried Applicant in 1983 and again sought the death penalty. The
new jury also convicted Applicant of capital murder. At the punishment phase,
among other things, Applicant presented evidence that he suffered from paranoid Jordan–3 schizophrenia and possibly Organic Brain Syndrome with delusions (a condition
involving organic brain damage). After the close of evidence, the trial court
submitted the following special issues to the jury:
i. Special Issue 1: Do you find from the evidence beyond a reasonable doubt that 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?
ii. Special Issue 2: Do you find from the evidence beyond a reasonable doubt that there is a probability the Defendant would commit criminal acts of violence that would constitute a continuing threat to society?
Based on the jury’s answers to the “deliberateness” and “future
dangerousness” special issues, the trial court sentenced Applicant to death. We
affirmed the conviction and sentence. Jordan v. State, 707 S.W.2d 641 (Tex. Crim.
App. 1986).
Applicant’s execution was scheduled for August 1987. Applicant filed a
habeas application, pursuant to Article 11.07, in June 1987. Applicant asserted one
claim: he was incompetent to be executed under the Supreme Court’s then-recent
opinion in Ford v. Wainwright, 477 U.S. 399 (1986). We deemed Applicant
incompetent under Ford to be executed and stayed Applicant’s execution until
such time that he regained competency. See Ex parte Jordan, 758 S.W. 250, 255 Jordan–4 (1988). Over the past thirty-five-plus years, Applicant has apparently remained
incompetent to be executed.
II. THE PRESENT APPLICATION
In October 2025, Applicant filed in the trial court the habeas application that
is now before this Court. In Claim One, relying on Penry and its progeny, Applicant
alleges that he “was deprived of his right to have a jury consider all mitigating
evidence before sentencing him to death in violation of the Eighth Amendment of
the U.S. Constitution.” In Claim Two, relying on Atkins, Applicant contends that
he “is intellectually disabled and ineligible for execution under the Eighth and
Fourteenth Amendment[s] of the U.S. Constitution.” He notes that the Supreme
Court decided both Penry (1989) and Atkins (2002) well after he filed his earlier
writ application in 1987.
In the application’s Conclusion, Applicant makes clear that Claim Two is an
alternative allegation that he wishes to pursue only under certain circumstances:
[Applicant] asks that this Court overturn his death sentence [because] the jury who sentenced him to death did not have an adequate vehicle through which it might assess the mitigating evidence of cognitive and psychiatric dysfunction presented during his trial and give [Applicant] the individualized sentencing determination that the Eighth Amendment demands. In the event that this Court does not grant relief on Claim One based on the allegations in this petition and the strength of the record, but determines that further proceedings are Jordan–5 necessary, [Applicant] asks that this Court authorize Claims One and Two pursuant to Article 11.071 Section 5, remanding both for further evidentiary development, discovery, and findings of fact and conclusions of law.
Appl.-02 at 37–38 (emphasis added).
As discussed below, we conclude that Applicant is entitled to habeas relief
on his Penry claim and grant relief in the form of a remand to the trial court for a
new punishment trial. Because we grant relief on Applicant’s Penry claim without
requiring further factual development, we take Applicant at his word that he does
not wish to pursue his Atkins claim under these circumstances. We conclude that
he has waived his Atkins claim for purposes of this proceeding and dismiss it.
III. APPLICANT’S PENRY CLAIM IS MERITORIOUS
A. Applicable Law
In Penry, the Supreme Court determined that the defendant’s death
sentence offended the Eighth Amendment because the former punishment phase
special issues submitted to his jury did not provide an adequate vehicle for
meaningfully considering and giving effect to his double-edged evidence of
intellectual disability and childhood abuse. See 492 U.S. at 319–25. Since delivering
Penry, the Supreme Court has identified additional kinds of two-edged evidence
that require a separate mitigation instruction allowing the jury to give that evidence Jordan–6 full consideration and effect. See Tennard v. Dretke, 542 U.S. 274, 288 (2004)
(intellectual disability, low intelligence falling short of intellectual disability); Smith
v. Texas, 543 U.S. 37, 44 (2004) (low intelligence, placement in special education
classes); Abdul-Kabir v. Quarterman, 550 U.S. 233, 239–42 (2007) (unhappy,
disturbed childhood; childhood neglect and abandonment; neurological damage);
Brewer v. Quarterman, 550 U.S. 286, 296 (2007) (mental illness, including
depression; substance abuse).
In the years following these Supreme Court decisions, this Court has also
found that the special issues as they existed in the pre-Penry era were inadequate to
allow a jury to consider and give effect to the types of mitigating evidence
described above. See Ex parte Hood, 304 S.W.3d 397, 400 (Tex. Crim. App. 2010)
(severe childhood injuries resulting in negative changes in behavior and permanent
physical disabilities, speech defects, learning disabilities and cognitive
impairments, low IQ, child abuse); Ex parte Smith, 309 S.W.3d 53, 61–62 (Tex.
Crim. App. 2010) (poverty, crime-ridden neighborhood, drug abuse); Ex parte
Moreno, 245 S.W.3d 419, 424–25 (Tex. Crim. App. 2008) (troubled or disruptive
childhood); Ex parte Martinez, 233 S.W.3d 319, 320 (Tex. Crim. App. 2008)
(psychiatric problems, alcohol abuse, and a troubled childhood). Jordan–7 B. Analysis
Penry error occurred in this case. The mental and neurological health
evidence that Applicant presented at his trial is the type of evidence that both the
Supreme Court and this Court have come to regard as the kind of “two-edged”
mitigating evidence calling for a separate, mitigation-focused jury instruction.
See Abdul-Kabir, 550 U.S. at 239–42; Brewer, 550 U.S. at 296; Hood, 304 S.W.3d at
400; Martinez, 233 S.W.3d at 320. Applicant’s jury did not receive such an
instruction. And, whatever harm analysis rightly applies in this situation, we
conclude that the absence of a Penry-compliant jury instruction at Applicant’s trial
was harmful.2 Accordingly, Applicant’s death sentence can longer stand.
IV. CONCLUSION
For the reasons discussed above, we grant habeas relief on Applicant’s Penry
allegation (Claim One) and vacate his death sentence. Applicant is therefore
remanded to the custody of Harris County for a new punishment proceeding.
2 Compare Ex parte Hathorn, 296 S.W.3d 570, 572 (Tex. Crim. App. 2009)(“We acknowledge that normally, an egregious harm standard is proper in analyzing an un-objected-to charge error. However, rather than characterize this as a jury charge error, we interpret the Supreme Court cases related to this particular issue to have broader due process implications.”), with Olivas v. State, 202 S.W.3d 137, 145 (Tex. Crim. App. 2006) (“The appropriate standard for all errors in the jury charge, statutory or constitutional, is that set out in Almanza.”) (some punctuation omitted) (referring to Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)). Jordan–8 Finding Applicant’s intellectual disability allegation (Claim Two) waived for
purposes of this proceeding, we dismiss it.
Delivered: April 9, 2026 Do Not Publish