Griffin, Stanley ( 2016 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,834
STANLEY LAMAR GRIFFIN, Appellant
v.
THE STATE OF TEXAS
ON DIRECT APPEAL FROM CAUSE NO. 10-05176-CRF-361
IN THE 361ST JUDICIAL DISTRICT COURT
BRAZOS COUNTY
Y EARY , J., filed a dissenting opinion in which K ELLER, P.J., and M EYERS, J.,
joined.
DISSENTING OPINION
Because I believe that the evidence was sufficient to establish that Appellant caused
Jennifer Hailey’s death while in the course of kidnapping Cameron Lockhart, I dissent to
reforming the judgment to reflect conviction for the lesser-included offense of murder and
remanding for a new punishment proceeding. Furthermore, because Appellant has asserted
GRIFFIN — 2
no guilt phase trial error, and because I find no trial error that was committed at the
punishment phase, I would affirm the trial court’s judgment in all respects.
STATEMENT OF FACTS
Appellant was charged with intentionally causing Jennifer Hailey’s death while he was
in the course of committing or attempting to commit the offense of kidnapping against
Cameron Lockhart. Viewed in the light most favorable to the verdict, the trial record shows
that Appellant met Jennifer1 and her nine-year-old son, Cameron, when Jennifer and
Appellant’s girlfriend, Andrea Copelyn, worked at the same medical clinic. Jennifer and
Cameron sometimes saw Appellant at the clinic when he came in to pick up Copelyn after
work. They would also see Appellant when Copelyn’s daughter babysat Cameron in the home
where Copelyn, her three children, and Appellant lived.
Appellant and Copelyn began dating in the spring of 2006, and they began living
together in February or March 2007. Appellant physically abused Copelyn on several
occasions. When Copelyn learned that Appellant had also abused her son, she decided to
leave Appellant in order to protect her children. On July 24, 2010, Copelyn and her children
moved out of the house. Appellant had to move out when the lease ended on July 31.
However, Copelyn and Appellant continued having a romantic relationship, and Appellant
continued interacting with Copelyn’s co-workers at the clinic. Appellant believed that
1
I will refer to Jennifer Hailey and other members of the Hailey family by their first names.
GRIFFIN — 3
Copelyn would let him live with her again if he did “something good,” such as finding a job
or completing a spiritual development program.
On September 17, 2010, Copelyn met Appellant at the mission where he was staying
so that they could go to church services together. Appellant wanted to go home with Copelyn,
but she told him that he could not live with her again until her children went off to college.
Appellant became very upset. He climbed into Copelyn’s car and refused to get out. He
yelled repeatedly for Copelyn to take him home. People who overheard the noise intervened
on Copelyn’s behalf so that she could leave. As a result of this outburst, Appellant was barred
from the mission.
Some time after midnight, Appellant went to Copelyn’s house. He knocked on her
front door, but she did not answer. She saw him looking through the windows before he left.
On September 19, 2010, around 10:00 p.m., Appellant asked an acquaintance to drop
him off near a friend’s apartment. Appellant did not name the person he intended to visit.
Once at the apartment complex, Appellant went to the two-bedroom apartment where Jennifer
and Cameron lived. Appellant had never been to their apartment before.
Cameron had gone to bed at 9:00 p.m., but after sleeping for a couple of hours, he got
up to get a drink of water. As he walked toward the kitchen, he saw Appellant and Jennifer
in the living room. Appellant was on top of Jennifer on the couch. It looked to Cameron like
Appellant was hugging her, and he later told an investigating officer that he had seen
Appellant with his hands around Jennifer’s throat. Jennifer was face down, and Cameron
GRIFFIN — 4
could see that her hand was moving a little bit. Cameron called out to her. Appellant
appeared startled and raised up. Cameron asked, “Stanley, what are you doing?” Appellant
replied that he was not “Stanley”; rather, he was “Michael from Huntsville.” He told
Cameron to go back to bed and Cameron complied.
Ten or fifteen minutes later, Cameron again left his bedroom. As he stood in the
hallway, he could see Jennifer lying face up on the floor of her bedroom. Cameron could not
tell if she was hurt. He knew from experience that Jennifer fainted easily. Cameron told
Appellant that he had to go to the bathroom. Although there was a bathroom across the hall
from Cameron’s bedroom, Cameron went to the bathroom in his mother’s room. He was able
to take a closer look at Jennifer, but he was still unable to ascertain whether she was hurt.
As Cameron walked out of his mother’s room, Appellant told Cameron that he wanted
to “chill” with him. Hoping that Appellant would leave, Cameron told Appellant that he was
going back to bed. Cameron walked toward his bedroom, but Appellant grabbed him from
behind and choked him. Appellant struck Cameron’s jaw, back, and neck with a garden
trowel he had retrieved from the utility room. Cameron passed out in the hallway. When
Cameron awoke, Appellant was no longer in the apartment. Cameron was lying on the living
room floor under a comforter that had been taken from Jennifer’s bed. Jennifer was lying in
her bedroom. Cameron could not wake her up and thought that she was dead. He called his
grandmother, Nancy Hailey, around 5:00 a.m. Nancy then called 9-1-1 and her son, Jayson
Hailey.
GRIFFIN — 5
Jayson reached Jennifer’s apartment shortly before emergency responders did.
Cameron opened the door for him and told him what had happened. Jayson entered Jennifer’s
bedroom and observed that her hair, matted with dried blood, was covering her face. He
picked her up, intending to take her to the hospital, but as he carried her, he concluded that
she needed more immediate care. He lay her down near the front door to perform CPR.
When he moved Jennifer’s hair away from her face, he saw that her face was purple and
swollen. The chest compressions associated with performing CPR caused blood to come out
of her mouth.
Emergency responders observed a big gash on Cameron’s neck and smaller gashes on
the side of his face. They transported Cameron to the hospital. Cameron had lost a significant
amount of blood, but he survived his injuries.
SUFFICIENCY OF THE EVIDENCE
Whether the jury could rationally conclude that Appellant kidnapped Cameron on this
record depends upon whether it could rationally find: (1) that Appellant “restrained” him and,
if so, (2) that Appellant also “abducted” him. That is to say, did Appellant “restrain”
Cameron with the additional specific intent to ultimately prevent Cameron’s
liberation—intending to accomplish that ultimate goal either by secreting or holding him in
a place where he was not likely to be found, or by using or threatening to use deadly force
against him? In order to accomplish an abduction, Appellant need not have actually secreted
or held Cameron, or used or threatened to use deadly force; he need only have had the intent
GRIFFIN — 6
to do so at the time he restrained Cameron. Laster v. State, 275 S.W.3d 512, 521 (Tex. Crim.
App. 2009); Santellan v. State, 939 S.W.2d 155, 162 (Tex. Crim. App. 1997); Mason v. State,
905 S.W.2d 570, 575 (Tex. Crim. App. 1995); Brimage v. State, 918 S.W.2d 466, 475 (Tex.
Crim. App. 1994) (plurality opinion on original submission).
Restraint: The simple “restraint” element can be accomplished by either moving or
confining the victim “so as to interfere substantially” with the victim’s liberty. It is true that
Appellant did not literally pick Cameron up and carry him, or otherwise physically move
Cameron. He simply told Cameron, “Go back to your bed. Go back to your room[,]” and
Cameron complied. But the Court should not construe the definition of restraint to require that
the actor himself physically move his victim from one place to another. It is enough that he
cause the victim somehow to move or be moved. Otherwise, it would not be possible for
purposes of “restraint” to move a victim from one place to another “by . . . intimidation or
deception[.]” T EX. P ENAL C ODE § 20.01(1)(A). Neither of these statutorily contemplated
means of moving a victim—intimidation or deception—necessarily requires the actor himself
to have physically moved the victim. So long as the actor causes the victim to move or be
moved without consent from one place to another “so as to interfere substantially with [the
victim’s] liberty,” id. § 20.01(1), he has perpetrated a restraint. The jury might rationally have
concluded that Appellant “moved” Cameron by this definition. Moreover, the jury might
rationally have concluded that, as an adult instructing Cameron in no uncertain terms to go
back to his bedroom, Appellant also effectively “confined” him there.
GRIFFIN — 7
With this understanding of the “restraint” element, the evidence in this case would
permit the jury to conclude that Appellant “restrained” Cameron. He caused Cameron to
“move” to his bedroom “by . . . any means,” including by simply telling him to do so, and he
also thereby “confined” him. T EX. P ENAL C ODE § 20.01(1)(B)(I). The fact that Cameron
acquiesced does not establish that the restraint was consensual, since Cameron was less than
14 years old and his mother did not acquiesce. See id. (restraint is non-consensual “if it is
accomplished by . . . any means, including acquiescence of the victim, if” the victim is
younger than 14 and the parent has not acquiesced in the victim’s movement or confinement).
Abduction: Does the evidence also establish that Appellant “abducted” Cameron?
While Appellant restrained Cameron, did he also have the specific intent, not just to
substantially interfere with his liberty, but to actually “prevent his liberation by . . . [either]
secreting or holding him in a place where he is not likely to be found [or] using or threatening
to use deadly force”? See Laster, 275 S.W.3d at 521 (“The offense of kidnapping is legally
completed when the defendant, at any time during the restraint, forms the intent to prevent
liberation by secreting or holding another in a place unlikely to be found.”). In my view, the
evidence supports a rational inference that when Appellant restrained Cameron, he did in fact
harbor the additional intent, not just to interfere with his liberty, but to prevent his
liberation—if not only by “secreting or holding” him, then also by using deadly force against
him in order to dispatch the only witness to Jennifer’s murder. The jury might rationally have
concluded that, even as of the time that Appellant instructed Cameron to go back to bed—and
GRIFFIN — 8
in any event at some point during the restraint, he formulated the intent to secret or hold
Cameron or even to kill Cameron so that Cameron could not later be a witness against him.
Thus, the jury could reasonably have concluded, the purpose of Cameron’s initial restraint was
to hold Cameron in a place from which he could not interfere with Appellant’s assault upon
Jennifer or communicate with someone else who might interfere. Alternatively, the jury might
rationally have concluded that, when Appellant initially restrained Cameron, his purpose was
to ensure that Cameron would never be liberated, a goal that Appellant intended to accomplish
by later using deadly force against him. Viewed in the light most favorable to the jury’s
verdict, the evidence supports a finding beyond a reasonable doubt that Appellant abducted,
and hence kidnapped, Cameron.2
Indeed, Appellant does not vigorously contest that he kidnapped Cameron. He argues,
however, that the evidence fails to show that Jennifer’s murder occurred during the course of
Cameron’s kidnapping. Specifically, he contends:
“[s]he had been murdered before [A]ppellant said or did anything to Cameron
Lockhart. At most, the State’s evidence may show a kidnapping in the course
of a murder. This theory of capital murder is contrary to the plain language of
Texas Penal Code, Sec. 19.03(a)(2). See Herrin v. State, 125 S.W.3d 436, 440
n.7 (Tex. Crim. App. 2002).”
Appellant’s Brief at 12.
2
Appellant’s conduct fits within the statutory definitions of “restraint” and “abduction” as
those terms have been authoritatively construed by this Court, which were submitted to the jury in
this case. The jury was authorized to convict Appellant of capital murder or, failing that, the lesser
included offense of murder. The jury convicted Appellant of the greater offense, which establishes
that it was persuaded beyond a reasonable doubt that Appellant’s conduct satisfied the statutory
criteria for conviction for capital murder, including the kidnapping element.
GRIFFIN — 9
In Herrin, the Court observed that, when it comes to a murder alleged as capital
because it was committed in the course of also committing the predicate offense of
kidnapping, “[t]he critical question is whether the murder was committed in the course of the
kidnapping or attempted kidnapping, not the other way around.” 125 S.W.3d at 440. Appellant
argues that the evidence shows that he had already completed Jennifer’s murder by the time
he restrained Cameron, that the kidnapping was an “afterthought,” and that it cannot therefore
be said that he murdered her “in the course of” kidnapping Cameron. See id. at 440 n. 6 (“The
same principle applies in the robbery/capital murder context. If the robbery is committed as
an afterthought and unrelated to the murder, the State has not proven the murder was
committed in the course of the robbery.”). As is the case with a murder that is a capital offense
because committed in the course of a robbery, to be a capital offense, the “intent to [kidnap]
must be formed before or at the time of the murder.” Alvarado v. State, 912 S.W.2d 199, 207
(Tex. Crim. App. 1995). Appellant contends that there is insufficient evidence to permit a jury
to rationally conclude that he formed an intent to kidnap Cameron “before or at the time of”
the murder. Santellan, 939 S.W.2d at 164. I disagree.
The medical examiner testified that Jennifer’s cause of death was “homicide asphyxia
to include strangulation,” and that the deprivation of oxygen to her brain killed her. He also
testified that to cause death in this way is not a quick process:
Q. And so to be killed by strangulation does there have to be pressured
[sic] applied after the person is motionless?
A. Yes.
GRIFFIN — 10
Q. For how long?
A. We’re talking for a good minute, two, maybe even three.
Cameron told an investigating officer that when he first saw Appellant and his mother in the
living room, he saw Appellant “on top of his mother with his hands around her throat holding
her down on the couch.”3 Cameron himself seemed less sure of exactly what he saw, testifying
that “I couldn’t really tell -- the last thing I would know is he was choking her. From my angle
I guess he was just hugging her or something like that.” At any rate, when asked whether at
this time he could see Jennifer’s hand moving, Cameron answered, “Yeah, a little bit.” When
Cameron re-emerged later from his bedroom, Jennifer had been moved from the living room
to her bedroom, but by this time she was no longer moving at all. A rational jury could
conclude from the totality of circumstances that, by the time Appellant told Cameron to return
to his room, thus abducting him, he had not yet applied the sustained pressure to Jennifer’s
neck needed to not only incapacitate her, but also to cause her death by strangulation. This
evidence indicates that, while Appellant may have already begun to strangle Jennifer when
Cameron first interrupted him, he did not finish the job until after he had restrained Cameron
by sending Cameron back to his room. The jury could have credited this evidence in order
3
The Court has no occasion to decide whether the investigator’s testimony here constituted
objectionable hearsay, since Appellant did not object on that basis at trial. Unobjected-to hearsay has
probative value. TEX . R. CR. EVID . 802; Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App.
2005). Furthermore, even had the investigator’s testimony been erroneously admitted over an
objection, the Court would still take it into account in our its sufficiency analysis. Winfrey v. State,
393 S.W.3d 763, 767 (Tex. Crim. App. 2013).
GRIFFIN — 11
rationally to conclude that Appellant had initiated Cameron’s kidnapping before or at the time
he killed Jennifer.
Appellant insists, however, that the evidence must show that he murdered Jennifer in
order to “facilitate” Cameron’s kidnapping, and “not the other way around.” Herrin, 125
S.W.3d at 440. Even if Jennifer was still alive when Appellant restrained Cameron, he
maintains, it was not a capital murder because the kidnapping was committed to facilitate the
murder rather than the murder facilitating the kidnapping. It is true that we said that, in the
context of murder/robbery, in order to be a capital offense, the murder must “facilitate the
taking of the property.” Id. n.6 (quoting Moody v. State, 827 S.W.2d 875, 892 (Tex. Crim.
App. 1992)). This notion that a capital murder under Section 19.03(a)(2) of the Penal Code
must be committed to “facilitate” the commission of the predicate offense apparently derives
from the statutory language requiring that the murder be committed “in the course of
committing” that predicate offense. Id. But our decision in Herrin itself did not turn on this
“facilitation” construction of the phrase “in the course of committing.” 4 I would reject this
construction because I think it represents a less expansive understanding of “in the course of
committing” than the Legislature intended. It is enough to effectuate the legislative purpose
that the evidence show that Appellant had begun to commit the predicate offense of
kidnapping “before or at the time of” the commission of the murder.
4
Even with respect to the murder-in-the-course-of-committing-robbery theory of capital
murder in Herrin, the Court simply asked whether the intent to rob was formulated “before or at the
time of the murder.” 125 S.W.3d at 441.
GRIFFIN — 12
Herrin cited Moody for the proposition that “facilitation” is required. Moody (which
also did not depend on the “facilitation” construction of “in the course of committing” for its
holding and, indeed, did not even involve a sufficiency of the evidence claim) in turn cited
Ibanez v. State, 749 S.W.2d 804, 807 (Tex. Crim. App. 1986). In Ibanez, we observed that
“[a] killing and unrelated taking of property do not constitute capital murder under [Section]
19.03(a)(2): the State must prove a nexus between the murder and theft, i.e.[,] that the murder
occurred in order to facilitate the taking of the property.” 749 S.W.2d at 807. Ibanez, in turn,
cited three opinions of this Court,5 none of which used any form of the word “facilitate” to
convey the idea that, for a murder to be capital, it must be committed “in the course of”
robbery or one of the other predicate felonies listed in Section 19.03(a)(2). In fact, I find no
prior case that squarely holds as much.
I do not believe that the statutory language, while it undoubtedly requires some level
of relatedness of the murder to the predicate offense, necessarily requires that it must facilitate
(i.e., “to make easier or less difficult”)6 the commission of the predicate offense. If that were
what the Legislature meant, it would likely have used language similar to that which is found
in the felony murder statute. There, the Legislature proscribed causing the death of an
individual “in the course of and in furtherance of the commission” of a predicate felony
5
O’Pry v. State, 642 S.W.2d 748, 761-63 (Tex. Crim. App. 1982) (Opinion on reh’g); Autry
v. State, 626 S.W.2d 758, 762-63 (Tex. Crim. App. 1982); Cannon v. State, 691 S.W.2d 664, 675
(Tex. Crim. App. 1985).
6
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE
UNABRIDGED , at 812 (2002).
GRIFFIN — 13
offense. T EX. P ENAL C ODE § 19.02(b)(3)(emphasis added).7 At the same time, the phrase “in
the course of committing” is certainly narrower than the phrase “the same transaction,” to be
found in the mass murder subsection of the capital murder statute. See T EX. P ENAL C ODE §
19.03(a)(7)(A) (making it a capital offense to murder more than one person “during the same
criminal transaction”).8 I think it enough to distinguish the phrase “in the course of
committing” from these other two statutory phrases to say that it requires that an accused have
initiated the commission of the predicate offense either “before, or as,” he committed murder.
E.g., White v. State, 779 S.W.2d 809, 815 (Tex. Crim. App. 1989).
Accordingly, I would hold that a murder need not facilitate the commission of the
predicate offense in order to have been committed “in the course of” the predicate offense.
It is sufficient that the actor initiated the commission of the predicate offense at some point
7
The Penal Code does not define the phrase “in furtherance of.” The word “furtherance” has
been defined to mean (reminiscent of “facilitate”) “a helping forward: ADVANCEMENT,
PROMOTION.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE
UNABRIDGED , at 924 (2002). Black’s defines “furtherance” to mean “[t]he act or process of
facilitating the progress of something or of making it more likely to occur; promotion or
advancement.” BLACK’S LAW DICTIONARY , at 790 (10th ed. 2009). See Bigon v. State, 252 S.W.3d
360, 366 (Tex. Crim. App. 2008) (recognizing a similar dictionary definition of “furtherance” for
felony murder purposes). Cf. TEX . PENAL CODE § 7.02(b) (assigning party liability to an actor who
was a member of a conspiracy for the felonious conduct of another actor so long as that other actor’s
conduct was, among other things, “in furtherance of” the conspiracy—i.e., the other actor’s conduct
advanced, promoted or facilitated the conspiracy).
8
A murder committed “during the same transaction” as a predicate felony would presumably
not even require that the intent to commit the predicate felony be formulated at or before the time
the murder was committed, so long as both offenses occurred “in a continuous and uninterrupted
chain of conduct occurring over a very short period of time” or “in a rapid sequence of unbroken
events.” Coble v. State, 871 S.W.2d 192, 197-99 (Tex. Crim. App. 1993); Rios v. State, 846 S.W.2d
310, 314 (Tex. Crim. App. 1992).
GRIFFIN — 14
before or during the time he engages in the conduct that results in the murder. This is as much
“nexus” as the Legislature meant to require in the capital murder-in-the-course-of-a-felony
context. While murder in the course of committing one of the predicate felonies may often
incidentally serve to facilitate the commission of the predicate felony, I do not believe the
Legislature intended that to be a prerequisite to a conviction for capital murder under Section
19.02(a)(2).9 An offender who goes on to commit a completely gratuitous murder while
carrying out one of felonies designated under the statute is surely still guilty of committing
a murder “in the course” committing the predicate felony, regardless of whether the murder
“facilitated” the predicate felony.
Because there is evidence from which the jury could have rationally concluded that
Appellant had in fact kidnapped Cameron (having restrained him with the requisite intent to
constitute abduction) as he was still engaging in the protracted conduct by which he
eventually caused Jennifer’s death, a rational jury could have concluded that he committed
murder in the course of committing kidnapping. We need not also decide whether the
9
To illustrate: Suppose an arsonist who was about to set the blaze to destroy his warehouse
for purposes of fraudulently collecting insurance proceeds unexpectedly encountered the night
watchman and intentionally killed him. This would certainly constitute a capital murder, since killing
the watchman may have been necessary to the arsonist’s purpose. Under these circumstances, the
murder certainly “facilitated” the arson. But there is no reason to suppose that the Legislature
intended to limit the concept of murder “in the course of” committing arson to such a scenario.
Suppose the watchman was inside the warehouse, and the arsonist set the blaze for the purpose of
collecting the insurance proceeds, but also, he incidentally intended to kill the watchman whom he
happened to dislike for reasons quite apart from his motive for setting the blaze. Such an intentional
murder would hardly facilitate the arson. And yet, it is hard to accept that the Legislature might have
intended for the first hypothetical to encompass capital murder, but not the second. Nothing about
the phrase “in the course of committing” forces us to incorporate the “facilitation” concept to rule
out capital murder in our second hypothetical.
GRIFFIN — 15
Jennifer’s murder “facilitated” Cameron’s kidnapping. I would overrule Appellant’s first point
of error and proceed to a review of the balance of Appellant’s points of error.
FIFTH AMENDMENT
In points of error two through four, Appellant asserts that the trial court violated Article
1, Section 10, of the Texas Constitution, Article 38.08 of the Code of Criminal Procedure, and
the Fifth Amendment to the United States Constitution. Specifically, Appellant complains
that the trial court erroneously overruled his objection that the prosecutor improperly placed
Appellant’s failure to testify into evidence when the prosecutor elicited Dr. Timothy Proctor’s
testimony that Appellant refused to speak to Proctor about details of the offense. Contrary
to Appellant’s allegations, the record shows that Proctor did not testify that Appellant refused
to speak to him about details of the offense. Rather, Proctor testified that he did not discuss
the facts of the offense with Appellant because the court had instructed him not to.
Accordingly, these points of error are without merit because the record does not support the
factual allegations upon which they rely. I would overrule points of error two through four.
In points of error five through seven, Appellant asserts that the trial court violated
Article 1, Section 10, of the Texas Constitution, Article 38.08, and the Fifth Amendment to
the United States Constitution. Specifically, Appellant complains that the trial court
erroneously overruled his objection that the prosecutor improperly placed Appellant’s failure
to testify into evidence when the prosecutor elicited Proctor’s testimony that Proctor did not
discuss the facts of the offense with Appellant because the court had granted the defense’s
GRIFFIN — 16
request that Proctor not discuss the details of the offense with Appellant. Appellant contends
that he is entitled to a new punishment hearing because the trial court committed a
constitutional error that “genuinely corrupted the fact-finding process” and therefore was not
harmless under Rule 44.2(a) of the Texas Rules of Appellate Procedure.
The record reflects that a defense expert, Dr. Mark Cunningham, and the State’s expert,
Dr. Proctor, each evaluated Appellant for mental retardation and future dangerousness. Both
experts testified at trial that they had been instructed not to discuss the facts of the offense
with Appellant. Appellant objected generally before trial that the State’s motion for a
psychological evaluation would violate his right to remain silent under Article 1, Section 10,
of the Texas Constitution. However, he never specifically objected, under the state
constitution or Article 38.08, to the complained-of part of Proctor’s testimony. See Roberts
v. State, 220 S.W.3d 521, 532 (Tex. Crim. App. 2007) (finding that an attack on testimony in
general, advanced before any testimony was heard, did not place the trial court on notice that
the appellant would find particular testimony objectionable). Therefore, Appellant did not
preserve his state constitutional and Article 38.08 claims for appeal. See T EX. R. A PP. 33.1(a);
see also Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014). However, Appellant
timely and specifically objected under the Fifth Amendment of the United States Constitution
to the complained-of part of Proctor’s testimony. Therefore, he preserved his federal
constitutional claim.
GRIFFIN — 17
I would reject Appellant’s Fifth Amendment claim on the merits for the reasons we
rejected the same claim in an unpublished opinion addressing a similar fact pattern. See
Milam v. State, AP-76,379, slip op. at 37-41 (Tex. Crim. App. May 23, 2012) (not designated
for publication). In Milam, we held that the trial court did not err by allowing the parties’
evaluating experts to testify that they had been instructed not to discuss the facts of the offense
with the appellant. We stated that such testimony did not violate the appellant’s Fifth
Amendment right to remain silent because the appellant constructively took the stand and
waived his Fifth Amendment right to remain silent when he spoke to his own expert and
introduced the expert’s testimony based on that interview. Id. at 40 & n.79 (citing
Chamberlain v. State, 998 S.W.2d 230, 234 (Tex. Crim. App. 1999); Lagrone v. State, 942
S.W.2d 602, 610-11 (Tex. Crim. App. 1997); and Soria v. State, 933 S.W.2d 46, 58-59 (Tex.
Crim. App. 1996)). The State was then entitled to offer rebuttal testimony, limited to the
issues raised by the defense expert, and to test the experts’ opinions by questioning them
about how they arrived at those opinions. Id. at 40 & n.80 (citing Lagrone, 942 S.W.2d at
611, and Renteria v. State, No. AP-74,829, slip op. at 87-89 (Tex. Crim. App. May 4, 2011)
(not designated for publication)).
I would hold that, like the defendant in Milam, Appellant constructively took the stand
and waived his Fifth Amendment right to remain silent when he spoke to his own expert and
introduced testimony based on that interview. The State was then entitled to offer rebuttal
GRIFFIN — 18
testimony and to question the experts about how they arrived at their opinions. I would
overrule points of error five through seven.
MENTAL RETARDATION
In point of error eight, Appellant asserts that the jury’s adverse finding on Appellant’s
mental retardation special issue was so against the great weight and preponderance of the
evidence as to be manifestly unjust.10 Appellant notes that the trial court submitted the
question of whether Appellant was mentally retarded as a special issue at punishment and
instructed the jury that Appellant had to prove by a preponderance of the evidence that he was
mentally retarded.
When the issue is presented at trial, a defendant bears the burden of proof, by a
preponderance of the evidence, to establish that he is mentally retarded. Hunter v. State, 243
S.W.3d 664, 667 (Tex. Crim. App. 2007). In evaluating the sufficiency of the evidence to
support a jury’s rejection of a claim of mental retardation on direct appeal, we must consider
all of the evidence relevant to the issue and evaluate whether the judgment is so against the
great weight and preponderance of the evidence as to be manifestly unjust. Id. We afford
great deference to the jury’s finding because the jury was in the best position to assess witness
10
The Supreme Court in Atkins employed the term “mental retardation.” See Atkins v.
Virginia, 536 U.S. 304, 321 (2002). More recently, the Supreme Court has used the term
“intellectual disability” to describe the identical condition. See Hall v. Florida, 134 S. Ct. 1986,
1990 (2014). In this opinion, I will employ the term “mental retardation” because that term is used
by the parties and by the legal authorities cited herein, and it is also the term that appears in the trial
record. See, e.g., Ex parte Cathey, 451 S.W.3d 1, 4 n.4 (Tex. Crim. App. 2014).
GRIFFIN — 19
credibility and to resolve conflicts in the evidence. See Williams v. State, 270 S.W.3d 112,
114 (Tex. Crim. App. 2008).
We define mental retardation as a disability characterized by: (1) “significantly
subaverage” general intellectual functioning; (2) accompanied by “related” limitations in
adaptive functioning; (3) the onset of which occurs prior to the age of 18. Hunter, 243
S.W.3d at 666 (citing Ex parte Briseno, 135 S.W.3d 1, 7 (Tex. Crim. App. 2004)). In
weighing evidence as indicative of mental retardation, fact finders in the criminal trial context
may also focus upon other evidentiary factors. See id. at 666-67.
Both parties presented substantial evidence relevant to the question of whether
Appellant is mentally retarded. Appellant’s experts and the State’s expert relied on much of
the same evidence, although they reached different conclusions. Cunningham, a clinical and
forensic psychologist, testified for the defense that Appellant is mildly mentally retarded.
Proctor, also a clinical and forensic psychologist, testified for the State that Appellant is not
mentally retarded but is within the low range of borderline intellectual functioning.
1. Intellectual functioning
Significantly subaverage intellectual functioning is generally characterized by a full-
scale IQ score of about 70 or below. See Ex parte Hearn, 310 S.W.3d 424, 428 (Tex. Crim.
App. 2010) (citing the American Psychiatric Association’s Diagnostic and Statistical Manual
of Mental Disorders). There is a margin of error of approximately five points in assessing IQ.
Id. Thus, a score may be approximately five points higher or lower than the subject’s actual
GRIFFIN — 20
IQ. Id. In assessing the validity of an IQ test score, fact finders may generally consider the
effect of matters that could detract from the over-all validity of the score obtained, such as
malingering, depression, lack of concentration, and test obsolescence, but such considerations
do not warrant adding or subtracting from an IQ score. See Ex parte Cathey, 451 S.W.3d 1,
5 (Tex. Crim. App. 2014).
The record reflects that Appellant completed six IQ assessments from the time he was
sixteen to the time of trial. In 1981, the school system evaluated him for special education
placement. At that time Appellant obtained an IQ score of 65 on the Wechsler Intelligence
Scale for Children – Revised (“WISC-R”). While in prison in 1991, Appellant obtained an
IQ score of 73 on the Wechsler Adult Intelligence Scale-Revised (“WAIS-R”). In May 1993,
again while in prison, Appellant obtained an IQ score of 76 on the WAIS-R. Appellant also
completed a Beta-II test while in prison, but because it measured non-verbal abilities only, the
testifying experts did not give weight to the results of that test in forming their opinions. In
April 2012, while in jail awaiting trial in this case, Appellant obtained an IQ score of 73 on
the Wechsler Adult Intelligence Scale Fourth Edition (“WAIS-IV”), administered by the
defense’s expert, Dr. James Underhill, a clinical psychologist. The State’s expert, Proctor,
administered another WAIS-IV on June 12, 2012, and Appellant obtained an IQ score of 72.
Both State and defense experts concluded that there was no evidence that Appellant
malingered when he took the IQ tests. However, Proctor expressed concern that the IQ test
he administered was the only IQ test that had been accompanied by a separate test of effort,
GRIFFIN — 21
which was the most reliable way to know whether Appellant had given good effort during the
IQ testing. Proctor acknowledged that previous test administrators did not note any concerns
with Appellant’s efforts and that some administrators had indicated that Appellant appeared
to exert good effort during the testing. Proctor stated, however, that personal observation was
not the best way to measure effort. Proctor acknowledged that Appellant gave good effort
during the tests that Proctor administered.
Proctor also acknowledged that Appellant’s first IQ score of 65, obtained when
Appellant was sixteen years old, fell within the range of mild mental retardation. However,
Proctor did not believe that this score accurately represented Appellant’s level of intellectual
functioning at the time of the offense and trial. Proctor attributed the variation between the
1981 score of 65 and the more recent scores either to a possible lack of effort during the first
test, or to the possibility that the score accurately reflected Appellant’s level of intellectual
functioning in 1981, but his cognitive functioning had continued to develop and had moved
beyond the range of mild mental retardation by the time of the later IQ tests. Cunningham and
Proctor both testified that mild mental retardation is not necessarily a lifelong diagnosis and
that a person can outgrow it or develop through it in some cases.11
Both State and defense experts concurred that full-scale IQ scores have a confidence
interval of approximately five points, meaning that a test subject’s actual IQ is somewhere
11
This Court has observed the same fact, explaining that “mental retardation is not
necessarily a lifelong disorder.” Ex parte Briseno, 135 S.W.3d 1, 6 (Tex. Crim. App. 2004) (quoting
AMERICAN PSYCHIATRIC ASSOCIATION DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS (Text Revision, 4th ed. 2000) (DSM-IV)).
GRIFFIN — 22
within a range that extends approximately five points below the score and five points above
the score. Underhill and Cunningham testified for the defense that it was just as likely that
Appellant’s IQ was any number within the range as it was that Appellant’s IQ was the IQ
score actually obtained. Proctor, however, testified that Appellant’s IQ was most likely to be
the score actually obtained or one of the numbers closest to it. The further away the numbers
in the range were from the score actually obtained, the less likely it was that those numbers
represented Appellant’s true IQ. Thus, Proctor testified, Appellant’s full-scale IQ score of
72 signified a range of approximately 67 to 77, but Appellant’s IQ was more likely to be 71
or 73 than to be 68 or 76.
Proctor and Cunningham concurred that the WAIS-R was normed in 1978, and so
when Appellant took that test in 1991 and 1993, his scores were inflated by the Flynn effect.
See Cathey, 451 S.W.3d at 6 n.8 (citing Alan S. Kaufman, IQ Testing 101, 203 (2009), for its
explanation of the Flynn effect as the phenomenon of obsolete norms inflating IQ scores as
time passes from the date an IQ test was standardized). Cunningham opined that Appellant’s
1991 and 1993 scores should be adjusted downward by 0.3 points for every year that passed
between the norming date and the date the test was administered. Cunningham based his
opinion on the American Association on Intellectual and Developmental Disabilities’s
(“AAIDD’s”)12 recommendation that such a revision was appropriate for an IQ score and on
a similar recommendation in the WAIS-III technical manual.
12
The AAIDD was formerly named the American Association on Mental Retardation.
GRIFFIN — 23
Cunningham also noted that studies of WAIS-R scores for mildly mentally retarded
subjects had found that the scores were distorted when compared with scores obtained
contemporaneously from other measures of intellectual functioning. Cunningham stated that
because of this problem, Professor James Flynn had written that a WAIS-R score near 70 is
so defective that it “should simply be set aside because of the difficulty in understanding”
what it means, but that if the score had to be used, it should be lowered by four or five
points.13 This revision would be in addition to any downward revision for the Flynn effect.
Therefore, Cunningham opined, Appellant’s 1991 IQ score of 73 was closer to 64 and his
1993 IQ score of 76 was closer to 66. Based on all of Appellant’s IQ scores over the years,
Cunningham concluded that Appellant’s actual IQ was likely to be between 65 and 73.
Therefore, he opined, Appellant had a disability characterized by significantly subaverage
intellectual functioning.
Proctor disagreed with Cunningham’s precise downward revision of the WAIS-R
scores. He noted that the test publisher had acknowledged the Flynn effect but had not
recommended adjusting scores according to a particular formula. Proctor stated that when the
accuracy of a score is suspect, the best practice is to rely on a score obtained from a different,
non-suspect, testing instrument. See Cathey, 451 S.W.3d at 5-6 (“The preferred solution to
an outdated IQ score is not to start subtracting from that score, it is to retest with a more
recently normed IQ test.”). Thus, Proctor opined, Appellant’s IQ is best represented by the
13
This appears to be the same Professor James Flynn whom we discussed at length in Ex
parte Cathey, 451 S.W.3d 1, 12-18 (Tex. Crim. App. 2014).
GRIFFIN — 24
recent IQ scores obtained from the WAIS-IV. Proctor stated that the WAIS-IV was published
in 2008 and therefore it was not out-of-date when it was administered in 2012, and moreover
the June 2012 test was the only IQ test accompanied by a separate effort test. Thus, Proctor
testified that Appellant’s IQ scores of 73 and 72 were the most reliable indicators of
Appellant’s cognitive functioning.
Proctor testified that, based on the “practice effect,” he would have expected
Appellant’s score on the June 2012 test to be higher than his score on the April 2012 test.
Proctor noted that, while he was administering the June test to Appellant, Appellant told
Proctor he was worried about the upcoming trial. Proctor observed that Appellant appeared
to be somewhat distracted at times. Proctor stated it was possible that Appellant’s test score
was somewhat lower as a result of Appellant’s being worried and distracted. Proctor did not
know whether Appellant had also been worried when Underhill tested him in April 2012.
Proctor stated that, based on the IQ score of 72, Appellant’s true IQ is between 68 and 77, but
it is most likely close to 72. Proctor opined that, although a case could be made that
Appellant’s IQ score placed him within the range for mild mental retardation, Appellant’s
level of intellectual functioning was better characterized as borderline.
Defense expert Underhill opined that the IQ score of 73 that Appellant obtained on the
April 2012 WAIS-IV “could go either way.” Although Underhill had not administered a
separate effort test, he stated that, based on Appellant’s performance on the “reliable digit
span” portion of the IQ test and Underhill’s personal observations of Appellant’s cooperation,
GRIFFIN — 25
mood, and demeanor during testing, Appellant had made a good effort. Underhill testified
that, particularly in light of the confidence interval, this IQ score alone did not answer the
question of whether Appellant’s intellectual functioning was most accurately characterized
as mildly mentally retarded or borderline.
2. Adaptive functioning
Adaptive behavior or adaptive functioning refers to the ordinary skills that are required
for people to function in their everyday lives. Cathey, 451 S.W.3d at 19. The determination
of mental retardation in the context of a criminal trial is complicated by the problems
associated with retrospective assessment and the well-known consequence of a diagnosis of
mental retardation – exemption from the death penalty. Id. “Both experts and those
answering questions about a person’s adaptive functioning may exhibit significant conscious
or unconscious bias in addressing this issue.” Id. A significant impairment in adaptive
behavior may be viewed as the extent to which an individual has required assistance to carry
out age-appropriate activities. Id. at 23.
Cunningham testified that the Diagnostic and Statistical Manual of Mental Disorders -
Fourth Edition - Text Revision (“DSM-IV-TR”) and the AAIDD’s user’s guide (“AAIDD
manual”) identify ten or eleven domains of adaptive functioning, depending upon whether
“health and safety” is regarded as a single domain or as two separate domains.14 Cunningham
14
Cunningham identified those domains as communication, self-care, home living, social/
interpersonal skills, use of community resources, self-direction, functional academic skills, work,
leisure, health, and safety. See also Atkins, 536 U.S. at 309 n.3.
GRIFFIN — 26
identified eleven domains, while Proctor identified ten. Cunningham testified that in recent
editions of the AAIDD manual, the criteria are grouped into three categories: conceptual,
social, and practical. See, e.g., Hearn, 310 S.W.3d at 428 & n.9. Cunningham and Proctor
concurred that a person must demonstrate significant deficits in two or more domains of
adaptive functioning in order to be diagnosed as mildly mentally retarded. See, e.g., Atkins,
536 U.S. at 309 n.3.
Cunningham testified that, on behalf of the defense, Dr. Thomas Oakland administered
the Adaptive Behavior Assessment System – Second Edition (“ABAS-II”) to Appellant’s
mother, Dorothy Hicks; sister, Jackie Griffin; brother, Willie Griffin;15 and maternal aunt,
Illian Kenon. Oakland also administered the ABAS-II to Appellant’s ex-wife, Alycia Mason,
and Copelyn. Cunningham testified that the results obtained from Appellant’s family
members varied greatly from the results obtained from Mason and Copelyn. The family
members’ scores ranged from 40 to 55, while Mason’s and Copelyn’s scores ranged from 75
to 105. To explain this disparity, Cunningham testified that it was possible that family
members had underestimated Appellant’s abilities because of the pending litigation, but that
it was also possible that Mason and Copelyn had overestimated Appellant’s abilities because
they did not want to appear to have been romantically involved with a mentally retarded
person.
15
The ABAS-II assesses adaptive behavior by scoring answers supplied by so-called
“informants”—usually those who are familiar with the subject, such as nuclear and extended family,
teachers, employers, etc.—to questions designed to gauge the subject’s adaptive abilities. I will refer
to members of the Griffin family by their first names.
GRIFFIN — 27
Cunningham also acknowledged that Hicks and Kenon had answered the questions
based on their recollections of Appellant’s functioning as a seventeen-year-old, which was
problematic because adaptive behavior instruments are not meant to be completed
retrospectively, and Appellant was about forty-six years old when the ABAS-II was
administered. Therefore, Cunningham did not place much weight on the ABAS-II scores but
instead relied primarily on witness interviews and records.
Cunningham testified that he assessed Appellant’s adaptive functioning by reviewing
available records of Appellant’s academic history and other records that he deemed
informative of Appellant’s ability to function in the community. Cunningham also
administered the Wide Range Achievement Test 4 (“WRAT-IV”), which he described as a
test of functional academic literacy and capability, and the Reynolds Intellectual Assessment
System (“RIAS”), which he described as being similar to an IQ test. Cunningham interviewed
Appellant for five hours. He also interviewed Copelyn; Hicks; Jackie; Willie; Appellant’s
former neighbors, Pat and Nancy Roman; and Appellant’s former employer, Eddie Smith.
Proctor testified that he did not administer the ABAS-II because he could not find a
reliable historian who had recent, frequent contact with Appellant. He opined that the scores
Oakland obtained from Appellant’s family members were too low to be consistent with mild
mental retardation; they were more consistent with severe or moderate mental retardation.
Proctor did not think that the ratings Copelyn provided to Oakland were inflated, but he
thought that they were problematic because Appellant had been in jail for approximately two
GRIFFIN — 28
years when Copelyn provided them. Therefore, like Cunningham, Proctor assessed
Appellant’s adaptive functioning based on witness interviews and records rather than scores
on an adaptive functioning inventory.
In preparing his report concerning Appellant’s adaptive functioning, Proctor
interviewed fourteen people, including the seven people Cunningham had interviewed.
Proctor did not give any weight to his interviews with Hicks, Jackie, and Willie. Proctor
stated that when he interviewed them, it was apparent that they had already decided what they
wanted to tell him. They provided narrative accounts about Appellant’s abilities and deficits,
but they would not answer Proctor’s questions. Hicks and Jackie would change the subject
rather than answer a question directly. Willie ended the conversation when Proctor began to
ask him questions.
Proctor gave more weight to his interview with Copelyn. Proctor opined that Copelyn
gave a “fairly balanced” impression of Appellant. She was willing to acknowledge
Appellant’s deficits, and she did not say implausible things or overemphasize Appellant’s
strengths.
Cunningham identified four domains of adaptive functioning in which Appellant had
significant deficits: functional academic skills, work, self-direction, and social interpersonal
relationships. With respect to Appellant’s functional academic skills, Cunningham opined
that Appellant’s WRAT-IV and RIAS scores were consistent with mild mental retardation.
Cunningham noted that the RIAS was twelve years old when he administered it to Appellant
GRIFFIN — 29
in 2012. Therefore, he opined, the score of 74 should be lowered to account for the Flynn
effect.16 Cunningham also noted that Appellant went through adaptive functioning testing
when he was sixteen. Appellant’s scores from the WRAT administered in 1981 reflected that
Appellant was reading at a 5.4 grade level. He was spelling at a 3.9 grade level. His math
skills were at a 3.9 grade level. Cunningham stated that these test results led the school to
classify Appellant as “educable mentally handicapped,” a term formerly used by school
systems that was equivalent to the term “mildly mentally retarded.”
The prison administered the WRAT-R to Appellant in 1993. Cunningham stated that
the results reflected that Appellant was reading at a third grade level. His spelling was below
a third grade level. His math skills were at a fifth grade level. Regarding the WRAT-IV that
Cunningham administered on June 10, 2012, Appellant’s word reading, sentence
comprehension, and composite reading were at a 5.5 grade level. His spelling was at a 4.7
grade level. His math skills were at a 5.9 grade level. Cunningham opined that Appellant’s
approximately fifth grade achievement level was consistent with mild mental retardation.
Cunningham also considered records from classes that Appellant had taken as an adult
while in prison and records from a Commercial Drivers License (“CDL”) course that
Appellant took in 2009. Appellant had to take the CDL course more than once and he had to
take parts of the CDL test multiple times before he passed. From this information,
16
In Ex parte Cathey, 451 S.W.3d at 18, we specifically determined that, in assessing mental
retardation for purposes of determining immunity from execution in Texas, the Flynn Effect may be
considered, but IQ scores themselves “may not be changed.”
GRIFFIN — 30
Cunningham concluded that Appellant has a significant deficit in the domain of functional
academics.
Proctor also administered the WRAT-IV and the RIAS to Appellant. The WRAT-IV
results reflected that Appellant was reading at a 5.4 grade level; his sentence comprehension
and composite reading were at a 5.5 grade level; his spelling was at a 5.9 grade level; and his
math skills were at a 7.4 grade level. Proctor stated that these scores were similar to the
results that Cunningham reported. However, Proctor interpreted these scores as well as
Cunningham’s scores as being consistent with borderline intellectual functioning rather than
mild mental retardation.
Proctor also reviewed the results of the 1981 adaptive functioning instrument
completed by Appellant’s teacher and mother. He did not perceive that those results
warranted classifying Appellant as “educable mentally handicapped.” He noted that all of
Appellant’s teacher’s ratings for various areas of adaptive functioning placed Appellant’s
functioning around the thirtieth percentile and all but one of Appellant’s mother’s ratings
placed Appellant “well above” the second percentile that would have been consistent with a
finding of mild mental retardation. Proctor stated that although the school had determined
from these ratings that “there were areas of deficit,” these scores were not “at the low level
that [Proctor] expected” for someone who was “ultimately labeled as being educable mentally
handicapped.”
GRIFFIN — 31
Proctor acknowledged that Appellant’s 1991 prison records contained a clinical note
stating that Appellant’s “level of adaptive functioning is questionable and may need to be
further evaluated,” and Appellant was referred for an evaluation. However, Appellant was
not placed into a Mental Health/Mental Retardation (“MHMR”) program in prison and was
not on MHMR caseloads while he was on parole and probation. Appellant’s former probation
officer testified that Appellant was not on the MHMR caseload because Appellant did not
meet the criteria for mental illness and did not have an IQ score below 70.
Proctor spent eleven hours with Appellant at the jail. When they first met, Proctor
handed Appellant a form explaining why Proctor was meeting with him and what Proctor
hoped to accomplish. Appellant appeared to read the form, and when Proctor discussed it
with him, Appellant seemed to understand it. Proctor also noted that, while in jail, Appellant
read and wrote letters. Appellant accurately described to Proctor a story that he had read in
the newspaper. Proctor concluded that Appellant did not have a significant deficit in the
domain of functional academic skills.
Lay witnesses provided additional testimony relevant to Appellant’s functional
academic skills. Copelyn testified about Appellant’s efforts to obtain a CDL, stating that
Appellant studied very hard for the course but had trouble with some parts of it. She helped
him with the chapter concerning air brakes. They reviewed that chapter so many times that
Copelyn grew frustrated with Appellant. Appellant had a hard time retaining the information,
GRIFFIN — 32
but he really wanted to get through it. Appellant had to take the air brakes portion of the CDL
test, which involved mathematical calculations, two or three times before he passed it.
Copelyn testified that Appellant was able to text her using a mobile telephone. If they
went out to a restaurant, Appellant could calculate the tip and pay the bill without help.
Copelyn also testified that Appellant watched the game show, Wheel of Fortune, with her.
Sometimes he solved the puzzles faster than the contestants, but sometimes he came up with
crazy guesses. When that happened, Copelyn could not tell if Appellant thought he had the
right answer or if he was just being funny. Copelyn observed Appellant reading the Bible.
When Copelyn read the book, Angela’s Ashes, Appellant also read it and discussed it with
her. Copelyn clarified that Appellant “worked his way through it.” In addition, Appellant
read the newspaper every morning while they lived together. He wrote to Copelyn every day
from jail and she wrote back. Copelyn acknowledged that Appellant was capable of doing
things when he put his mind to them, but he often chose not to.
Elizabeth Farmer testified that she had been a special needs teacher at Appellant’s high
school in 1981, when Appellant was placed in the educable mentally handicapped program.
Farmer had written Appellant’s Individual Education Plan (“IEP”) because she was his home
room teacher. Appellant’s school records contained grades ranging from 32 to the 80s. The
records included a note that Appellant was failing science because of ten unexcused absences.
Farmer acknowledged that Appellant’s 1981 social assessment contained a notation
that Appellant had a history of academic failure compounded by his general apathy and
GRIFFIN — 33
apparent lack of ambition. She also acknowledged that a school social worker had noted in
Appellant’s records that his performance on the adaptive behavior scale was impaired by his
lack of interest. Another teacher described Appellant as a child who did not care or take
interest in anything. Appellant’s family members reported to the school that Appellant was
lazy, grumbled about working, and occasionally threw a tantrum when he did not get his way.
Appellant’s mother reported that he had no ambition or aspirations and that he lied frequently
but not always effectively. Following Appellant’s placement into the educable mentally
handicapped program, Appellant passed some of his special needs classes. Farmer pointed
out that the work was much simpler in those classes than in the typical classes.
Concerning the domain of work, Dr. Cunningham testified that Appellant’s employers
described him as having limited abilities, deficient conceptual understanding, impaired skill
acquisition, and poor self-direction or initiative. For example, Eddie Smith, who had hired
Appellant to help him clear land, told Cunningham that Appellant could not learn to use a
chain saw. Appellant was good with simple tasks, but Smith had to check on Appellant’s
progress periodically. If Smith told Appellant to complete several tasks, Appellant would
complete the first task and then stop until Smith reminded him what to do. Cunningham
testified that Smith continued to give Appellant work several days a month because Appellant
was friendly and made an effort.
Cunningham testified that Pat Roman, Appellant’s neighbor, was a plumber who
sometimes hired Appellant to help him. Roman described Appellant as “a strong back and
GRIFFIN — 34
a weak mind.” Roman tried to teach Appellant to do simple plumbing repairs, but Appellant
could not learn. If Appellant did a job wrong and Roman corrected him, Appellant would fix
the mistake, but the next time Appellant did the job, he would make the same mistake again.
Roman commented that Appellant was mostly helpful with lifting things.
Cunningham stated that Roman reported that he once gave Appellant a job application
for a Denny’s restaurant, but Appellant could not fill it out. Further, Appellant seemed
intimidated by the job description. Roman also recalled that Appellant could not assemble
a basketball goal without help. Roman told Cunningham that Appellant could follow
instructions, but he sometimes seemed vague or unfocused. Appellant was not sensitive to
social cues and could not tell when Roman wanted to be alone. Roman stated that Appellant
was generally respectful and friendly, but he could be argumentative and easily frustrated
when they worked together.
Cunningham also testified that Appellant’s brother, Willie, sometimes hired Appellant
to work with him clearing land. Willie told Cunningham that Appellant had no understanding
of the job and no common sense about danger. For example, Appellant would walk under a
tree while it was being cut down, apparently unaware that it might fall on him. Willie would
not allow Appellant to use power tools because Appellant would hold them dangerously or
ruin them.
Willie reported to Cunningham that Appellant needed direct and immediate
instructions to move from one task to the next. Appellant could sometimes do a good job with
GRIFFIN — 35
a simple, repetitive task. However, Willie told Cunningham that his own eleven-year-old son
could do a better job of smoothing sand than Appellant did; Appellant was more like a six-to-
eight-year-old child on the job.
Copelyn also told Cunningham that Appellant had trouble getting and keeping a job.
When Appellant lost a job, he would give her an implausible explanation, such as saying that
he was fired because the boss did not like him chewing gum. Copelyn observed that
Appellant did his best work when he had a concrete task, limited co-worker interaction, and
clear direction, such as yard work-type jobs.
Cunningham opined that Appellant’s employment records were consistent with the
observations of the people he interviewed. For example, records from a job that Appellant
briefly held at a chicken processing plant showed that Appellant was written up several times
for working too slowly. Appellant’s employment records reflected many short-term
employments, a recurrent inability to work with others, excessive tardiness, absenteeism, and
poor job performance. Cunningham noted that Appellant needed a job but did not behave in
ways that would help him get and keep a job.
Cunningham acknowledged that, for a person with a higher IQ, these types of
behaviors might be characteristic of a personality disorder. He opined, however, that when
a person with an IQ of 70 exhibited such behavior, the behavior was characteristic of
intellectual disabilities because the person was not capable of better performance.
Cunningham stated that age and IQ were critical factors in determining the meaning of these
GRIFFIN — 36
behaviors. Cunningham concluded that Appellant showed substantial deficits in the domain
of work related to his subaverage intellectual functioning.
Proctor interviewed the same former employers that Cunningham did. Proctor also
interviewed John Ellis, Appellant’s former supervisor at a bread company. Unlike
Cunningham, Proctor did not rely on what Appellant’s brother Willie told him about
Appellant’s work because Proctor did not view Willie as a reliable historian.
Proctor’s interviews with Smith and Roman led him to form a different impression than
Cunningham had formed. Smith told Proctor that Appellant could not use heavy machinery
and had to be reminded to start each separate task, but Smith also stated that Appellant could
complete manual labor tasks satisfactorily, was reliable, showed up on time, and did the work.
Smith hired Appellant because Smith needed the work done and Appellant could do it. When
Proctor asked Smith if he thought that Appellant could perform that type of work on a regular
basis, Smith stated that he thought that Appellant could probably work long-term in a setting
such as a ranch where there was an ongoing need for someone to clear and maintain the
property.
Roman told Proctor that he had problems with Appellant’s work, but Roman also
acknowledged that he did not have much patience. Further, Appellant’s inability to do the
work to Roman’s satisfaction was only one of the reasons that Roman quit using him. Roman
told Proctor that he stopped working with Appellant because Appellant wanted Roman to split
the money fifty-fifty with him and Appellant wanted Roman to help him with the jobs that
GRIFFIN — 37
Roman had hired Appellant to do, such as carrying supplies and digging. Proctor did not
think that Appellant’s inability to pick up plumbing-related tasks right away or the fact that
Roman became impatient with Appellant signaled significant adaptive deficits.
Ellis told Proctor that he had supervised Appellant in the warehouse of the bread
company for a total of two years. Ellis described Appellant as a good and valuable employee.
He described the work that Appellant did and stated that Appellant did it well. However,
Appellant had problems getting along with his co-workers.
Proctor opined that Appellant’s problems in the work domain were not necessarily
related to subaverage intellectual functioning. Proctor pointed out that Appellant had spent
much of his adult life in prison, which hindered his ability to acquire work experience and
obtain jobs. Appellant also had a special education diploma, which might make it hard to
obtain jobs. Despite these obstacles, Appellant had obtained numerous jobs, although he was
not able to keep many of them for very long. Appellant’s employment records reflected a
pattern of conflicts and arguments. Proctor concluded that Appellant did not have significant
deficits in the work domain. To the extent that Appellant had trouble holding a job, Proctor
opined that this trouble was related to Appellant’s personality.
Lay witnesses provided additional testimony relevant to Appellant’s ability to function
at work. Ellis testified that Appellant’s primary job at the bread company was to receive a
truckload of fifty types of bread products and then sort the products for distribution to stores
and restaurants along seven delivery routes. Appellant sorted the products according to a
GRIFFIN — 38
chart that indicated how much of each product needed to go on each route. The chart varied
daily. Ellis stated that Appellant was efficient, timely, and did not make mistakes.
Appellant’s job at the bread company also included keeping the warehouse clean. Ellis
noted that Appellant kept the warehouse “immaculate.” Ellis commented that Appellant
sometimes performed above and beyond the job expectations, taking initiative and doing the
tasks that he saw needed to be done. This was especially true with respect to cleaning.
Appellant swept and pressure-washed the warehouse. Ellis acknowledged that Appellant
generally worked by himself and the job was relatively repetitive.
After Appellant had worked at the bread company for about a year and a half, Ellis
fired him because of interpersonal conflicts. Appellant had begun “bossing” and arguing with
other employees, including Ellis. However, about six months after firing Appellant, Ellis
rehired him because Ellis had not been able to find anyone else who could do the job as well
as Appellant. Appellant promised that he would control himself and get along with his co-
workers. Appellant kept his promise, and Ellis was satisfied with Appellant’s work.
Appellant was friendly and a good conversationalist. Appellant left the job after six months
because he was jailed after committing a criminal offense.
Copelyn testified that she sometimes accompanied Appellant on his job at the bread
company. She observed that Appellant’s work of sorting the products into bins and getting
the bins onto the right trucks was complicated, but Appellant did it well and quickly. Copelyn
stated that she did not think that she would have been able do the job as well as Appellant did.
GRIFFIN — 39
Appellant’s friend, Bruce Leggett, testified that Appellant had acknowledged that he
had lost jobs because he would not back down in a confrontation. Leggett also testified that
Appellant was not mechanically inclined. Leggett suspected that Appellant had trouble
reading, based on Appellant’s inability to follow instructions for setting up musical
equipment.
Marshell Robinson testified that she worked with Work Force Solutions, an
organization that helps people obtain training and find jobs, and that she had helped
Appellant. In October 2009, Appellant went to Robinson’s office and told her that he was
interested in becoming a professional truck driver. Work Force approved Appellant for
training. In exchange for receiving help from Work Force, Appellant agreed to comply with
conditions such as calling in regularly and completing paperwork to verify that he was looking
for a job. Work Force paid for Appellant’s CDL course and provided him with money for
transportation. Appellant had trouble completing the CDL tests and had to take the course
twice, but eventually he obtained his CDL.
After Appellant obtained his license, however, he stopped calling in regularly. He
never provided Robinson with any job search documentation. Robinson notified Appellant
of job fairs and job openings. She gave Appellant twenty job referrals, but Appellant never
followed up. He gave Robinson excuses for postponing the application process, or he stated
that he did not want the jobs that were available. One time, Appellant was offered a job as
a truck driver, but he did not accept the job because he would have to be gone overnight.
GRIFFIN — 40
Another time when Robinson called Appellant about a job opening, he told her that the
company could call him if they wanted him. Work Force eventually terminated Appellant
from the program in August 2010. Robinson testified that, on September 17, 2010, Appellant
was notified that he had lost a food stamp benefit because he was not participating in the
program as required and that he would not be eligible to re-apply for six months.
Concerning the self-direction domain, Dr. Cunningham observed that Appellant had
never lived on his own. He was always supported emotionally and financially by the women
with whom he lived. Cunningham noted that Appellant collapsed functionally and
emotionally when Copelyn stopped living with him. Cunningham opined that Appellant’s act
of locking himself in Copelyn’s car was a very childlike way to try to get her to “not break
ties” and to take him home. Appellant’s sister, Jackie, told Cunningham that Appellant was
easy to manipulate. He craved approval and would try hard to get it. Jackie stated that
Appellant could not follow a series of tasks; he had to be told one task at a time. When
Appellant went out to run an errand, he would have to call home because he would forget
what the errand was. Jackie reported to Cunningham that Appellant was easily frustrated and
could not problem-solve.
Copelyn reported to Cunningham that she managed the household and was responsible
for the budgeting, bills, and parenting. She stated that she could send Appellant to the store
for a few items, but she could not send him to shop independently for the week’s groceries.
Cunningham opined that Copelyn’s narrative account of Appellant’s abilities was inconsistent
GRIFFIN — 41
with the conceptual and practical ratings she had provided on the ABAS-II, which placed
Appellant in the “normal” range.
Cunningham testified that Copelyn told him that if Appellant had a job, he would go
to it, but that Appellant took little initiative in finding a job. Cunningham opined that it was
consistent with mild mental retardation to lack initiative, be apathetic, and “just sit” as
opposed to engaging actively with the environment. Copelyn told Cunningham that Appellant
would contribute money to a bill if the bill arrived on payday, but he could not think ahead
about saving money and was apt to spend his entire paycheck in one night. He was oblivious
to due dates. For example, he would not pay a telephone bill until the service was cut off.
Copelyn told Cunningham that Appellant’s family took advantage of him. For example,
Willie would hire Appellant to do a job, but then pay him less than promised. Appellant’s
mother was always asking everyone for money, and Appellant would give her whatever
money he had. Cunningham concluded that Appellant had substantial deficits in the area of
self-direction.
Proctor opined that Appellant’s deficits in the self-direction domain were not
significant. Appellant could make decisions and follow them through. Proctor learned from
Copelyn that Appellant was very good about performing household duties on his own.
Appellant drove Copelyn’s car and took Copelyn to and from work every day. Appellant also
taught Copelyn’s son to drive a manual transmission. Appellant’s neighbor, Pat Roman, told
GRIFFIN — 42
Proctor that Appellant kept his yard very clean. Appellant won an award from the city
because his yard was so well-maintained.
Lay witnesses provided additional testimony relevant to Appellant’s self-direction and
social interpersonal functioning. For example, Copelyn testified that when Appellant lived
with her, he washed and ironed clothes and kept the house “immaculate.” He also grilled and
cooked food. He prepared balanced meals. He baked cookies and cakes from box mixes.
Similarly, Copelyn’s friend, Christina Camp, testified that while Appellant was a guest in her
house, he was “very clean” and helped with the groceries and cooking. Appellant’s former
girlfriend, Charisma Green, recalled that Appellant was a good cook and could handle money.
Leggett testified that when he first met Appellant through Copelyn, Appellant was
fairly quiet but also a good conversationalist. Appellant seemed genuinely interested in what
Leggett had to say, and he responded appropriately. After they had known each other for a
couple of months, Appellant would call Leggett on the telephone to talk or to ask him if he
wanted to go fishing. They would see each other two or three times a week. Appellant would
go out to watch Leggett’s band perform and they would go fishing together.
Leggett stated that he sometimes called Appellant on the telephone following
arguments with his wife. Leggett explained that he and his wife went through a period of
arguing more than usual because Leggett was “on a short fuse” following his service in Iraq
and he and his wife had recently lost a child. When Leggett called Appellant, Appellant
would go to Leggett’s house to help calm him down and remove him from the situation.
GRIFFIN — 43
Appellant counseled Leggett not to lose his temper or “risk a domestic violence situation” that
could get him into legal trouble and jeopardize his family and livelihood.
Leggett testified that Appellant had a good relationship with Leggett’s children.
Appellant sometimes babysat them or took them fishing and they were happy to spend time
with him. Leggett also testified that Appellant had a good relationship with Janiesha, who
was the youngest daughter of Appellant’s sister, Jackie. Appellant took Janiesha to father-
daughter functions at her school and sometimes he picked her up from Jackie’s house on the
weekends. Copelyn testified that Appellant maintained a good relationship with Jackie
because he wanted to see Janiesha, and he took good care of Janiesha when she visited them.
In addition, Copelyn and Leggett each testified that they trusted Appellant to babysit
their children. They thought that Appellant would be able to handle an emergency situation
if anything went wrong while he was taking care of the children.
Appellant’s former employer, Smith, testified that his two grandchildren were very
fond of Appellant. They would stay outside and talk with Appellant while he worked on
Smith’s property. Once when the children’s parents were unable to attend a school function,
Appellant attended instead.
Appellant’s former neighbor, Kim Galindo, testified that she met Appellant when they
lived in the same apartment complex in 2004 or 2005. At that time, Galindo and Appellant
were both around forty years old. Galindo was in graduate school. Galindo never went to
Appellant’s apartment, but she understood that Appellant was living with his girlfriend.
GRIFFIN — 44
Galindo would see Appellant outside and they chatted as neighbors. They occasionally took
walks or went to a coffee shop together. These outings were generally spur-of-the-moment;
Galindo would see Appellant and invite him to join her. Sometimes Galindo’s graduate
student friends would join them. If Galindo and her friends discussed international politics
or their dissertation research, Appellant would “sit back quietly” because those conversations
went over his head. Galindo testified that Appellant was easy to talk to, but they conversed
about only a few subjects. They usually talked about what was going on in their lives.
Galindo testified that she continued to see Appellant occasionally at the coffee shop
after he left the apartment complex and moved in with a new girlfriend. Appellant talked to
Galindo about problems he had getting along with his girlfriend’s children. Galindo once told
him that he needed to control his temper with his girlfriend. Appellant responded “like a
reprimanded child”; he agreed that he needed to work on controlling his temper and he did
not try to defend himself.
Galindo testified that she never saw Appellant lose his temper, but she acknowledged
that she never saw him in a situation where he was provoked. In addition, she never saw
Appellant take on a leadership role; he would go along with whatever she wanted to do.
Galindo observed that Appellant was able to handle himself socially, but he always lived with
a girlfriend who “helped him out.” Galindo was not sure whether Appellant was capable of
living independently. He seemed to rely on others for direction; Galindo once helped him get
GRIFFIN — 45
a short-term job distributing flyers. Galindo received a few letters from Appellant after she
completed her graduate work and left College Station in 2007.
Concerning the social interpersonal domain, Dr. Cunningham noted that Appellant was
“competitive with” Copelyn’s children. He acted like “another kid in the house.” He did not
mind if Copelyn spent money on herself, but he did not want her to spend money on her kids.
Appellant was possessive, insisted on accompanying Copelyn everywhere, and expressed
abandonment anxiety. Appellant seemed unaware that his clingy behavior was likely to drive
Copelyn away. Copelyn reported to Cunningham that when Appellant was frustrated with her
or one of the children at home, he would sit in front of whoever he was mad at and yell
continuously for four to five hours, saying the same thing over and over again. Cunningham
opined that this behavior indicated a failure in self control and emotional regulation, an
inability to read feedback, and an inability to foresee that such behavior was likely to drive
others away.
Cunningham testified that Appellant’s employment records also reflected recurrent
interpersonal conflicts. Appellant’s criminal records likewise reflected a recurrent difficulty
in dealing with anxiety, frustration, and conflict in romantic and step-family relationships.
Appellant’s prison and jail records also reflected interpersonal difficulties with other inmates
and staff. Specifically, these records reflected that Appellant was sometimes obstinate,
argumentative, and bullying.
GRIFFIN — 46
Cunningham acknowledged that, for a person with a higher IQ, this type of behavior
could be consistent with a pathological condition. However, he opined that for a person with
an IQ of 70 who also exhibited other adaptive deficits, this behavior was less likely to be the
result of a disturbed personality and more likely to be the product of intellectual limitations.
Therefore, he concluded, Appellant demonstrated significant or substantial deficits in the
social interpersonal domain that were related to his subaverage intellectual functioning.
On the other hand, Proctor testified that Appellant’s functioning in the domain of social
interpersonal skills was a “mixed bag.” He noted that Appellant had a lot of friends and was
outgoing, but that Appellant also had a history of disagreements and arguments with people.
In light of Appellant’s strengths in this domain, Proctor did not believe that Appellant’s social
interpersonal problems were significant. Further, Proctor opined that Appellant’s problems
were associated with personality issues, such as being controlling and demanding. Therefore,
Proctor did not conclude that Appellant had significant deficits in this domain related to
subaverage intellectual functioning.
3. Onset prior to eighteen
The record reflects that in 1981, when he was sixteen years old, Appellant obtained an
IQ score of 65 on the WISC-R and was classified as “educable mentally handicapped” – a
term that both Cunningham and Proctor described as equivalent to the term “mild mental
retardation.” However, Proctor did not believe that a diagnosis of mild mental retardation was
appropriate at the time of the offense. Cunningham and Proctor both testified that mild
GRIFFIN — 47
mental retardation is not necessarily a lifelong diagnosis and that a person can outgrow it or
develop through it in some cases. In addition, Proctor did not perceive that the results of the
adaptive functioning testing administered in 1981 placed Appellant within the range of mental
retardation, and he interpreted Appellant’s academic functioning as being consistent with
borderline intellectual functioning.
4. Briseno factors
“There are other evidentiary factors which fact-finders in the criminal trial context
might also focus upon in weighing evidence as indicative of mental retardation or of a
personality disorder.” See Briseno, 135 S.W.3d at 8-9.17 Cunningham and Proctor both
17
These factors are:
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?
See Williams, 270 S.W.3d at 114 (citing Briseno, 135 S.W.3d at 8).
GRIFFIN — 48
testified that these other factors are not part of the clinical diagnosis of mental retardation
within the professional scientific community but that they may be considered by the fact
finder in the criminal trial context. See, e.g., Sosa, 364 S.W.3d at 892 (“While we did not
make consideration of any or all of these factors mandatory, they reflected our concern that
the AAIDD’s guidelines should not be considered in isolation, but rather in the context of the
concerns expressed by the Supreme Court in Atkins.”).
Cunningham noted that during Appellant’s developmental period, Appellant was
diagnosed as mildly mentally retarded and placed into special education classes. Cunningham
also stated that Appellant’s plans since he reached adulthood were “extraordinarily poorly
formulated and reflect[ed] . . . judgment impulsivity.” Cunningham noted that no one ever
described Appellant as a leader. Appellant might be a bully on occasion, but that was not the
same as being a leader. Appellant did not lead anyone; he required a high degree of structure
and instruction from other people. Cunningham stated that Appellant’s sister, Jackie,
described him as gullible and easily manipulated. Proctor disagreed with this description.
Based on his interactions with Appellant, Proctor opined that Appellant was skeptical and
guarded.
Cunningham testified that Appellant was easily frustrated and engaged in recurrently
irrational and inappropriate conduct toward employers, Copelyn, and her children.
Cunningham noted that when he questioned Appellant, Appellant’s initial responses would
be on point, but then Appellant would wander into unrelated matters until Cunningham
GRIFFIN — 49
redirected him back to the topic. Cunningham also observed that Appellant did not effectively
hide facts or lie. For example, Appellant gave Copelyn implausible reasons for losing
jobs—he lied, but not effectively.
Cunningham opined that Appellant’s conduct during the instant offense strongly
suggested impulsivity, poor planning, and clumsy execution of purpose. Appellant had a
witness drop him off at the victim’s apartment complex, he had no weapon, and he apparently
did not anticipate Cameron’s interruption (although he previously had seen Cameron with
Jennifer at the clinic). He did not succeed in killing Cameron.
Similarly, Cunningham opined that Appellant’s efforts to get rid of evidence were
ineffective. Appellant left his cap and footprint at the scene. Appellant threw the trowel with
Cameron’s blood on it into a trash can near the victim’s apartment. He washed his clothes but
left blood on his shoes. He was still wearing shoes with blood on them when he was arrested
the next day. After law enforcement officers knocked on the front door of his mother’s house,
Appellant looked out the front window and disturbed the curtains. Then he hid in the
bathroom, where officers found him. Appellant confessed to the offense within
approximately twenty-four hours of his arrest.
Based on Appellant’s IQ test results, adaptive deficits, and classification of “educable
mentally handicapped” at the age of sixteen, Cunningham concluded that Appellant is mildly
mentally retarded and therefore ineligible for the death penalty. Cunningham testified that the
other factors identified by this Court in Briseno supported this conclusion.
GRIFFIN — 50
Unlike Cunningham, Proctor concluded that Appellant does not have significant
adaptive deficits in any domain. Proctor found evidence of a personality disorder, not
otherwise specified, with antisocial and paranoid personality traits. Proctor testified that there
is evidence that Appellant meets each of the DSM-IV’s diagnostic criteria for antisocial
personality disorder.18 See also Briseno, 135 S.W.3d at 13 n.52. Proctor concluded that
Appellant’s adaptive deficits arise from Appellant’s personality as well as his borderline
intellectual functioning.
Dr. Jolie Brams, a clinical psychologist, testified for the defense that Proctor
incorrectly attributed Appellant’s adaptive deficits to personality issues. Brams stated that a
person who is intellectually deficient has oddities of functioning that mimic a personality
disorder but that actually reflect the person’s delayed or deficient intellectual functioning. She
noted that “one of the hallmarks of intellectual deficiency are difficult, problematic
interpersonal relationships.” The reason for such problems is that an adult with an intellectual
deficiency does not possess the same communication skills, problem solving skills, judgment,
confidence, and maturity as other adults. Therefore, Brams concluded, Appellant’s adaptive
18
Proctor identified these criteria: (1) failure to conform to social norms with respect to
lawful behaviors as indicated by repeatedly performing acts that are grounds for arrest; (2)
deceitfulness as indicated by repeated lying, use of aliases or conning others for personal profit or
pleasure; (3) impulsivity or failure to plan ahead; (4) irritability and aggressiveness as indicated by
repeated physical fights or assaults; (5) reckless disregard for safety of self or others; (6) consistent
irresponsibility as indicated by repeated failure to sustain consistent work behavior or honor financial
obligations; and (7) lack of remorse as indicated by being indifferent to or rationalizing having hurt,
mistreated, or stolen from another.
GRIFFIN — 51
deficits were fully consistent with subaverage intellectual functioning and it was improper to
attribute them to a personality disorder.
Lay witnesses provided additional testimony regarding whether Appellant’s adaptive
functioning was indicative of mental retardation. See Briseno, 135 S.W.3d at 8. For example,
Jodi Piacente testified that she met Appellant through her boyfriend in 1990, when they lived
in the same apartment complex. Piacente’s boyfriend knew Appellant because Appellant was
the apartment complex’s “drug guy” who supplied him with marijuana. One night, Appellant
broke into Piacente’s apartment. He tackled Piacente in her living room and tried to break her
neck, but she escaped when Appellant became distracted by her seven-year-old son walking
in and asking Appellant why he was trying to kill his mommy. As a result of this incident,
Appellant was convicted of burglary. The prosecutor in the instant case argued that Appellant
had learned from this incident that he should not leave witnesses who could testify against
him.
Green, Appellant’s former girlfriend, testified that she met Appellant in late 2005,
when his mother lived in Green’s apartment complex. Initially, Appellant seemed nice and
outgoing. They were friends for a couple of months before Appellant moved in with Green.
They used crack cocaine together. Appellant physically abused Green’s four-year-old
daughter and would push Green away if she tried to intervene. After a month or two of such
abuse, Green sent her daughter to live with her paternal grandmother. Appellant also hit and
GRIFFIN — 52
pushed Green. Appellant left Green in February 2007 when the lights in her apartment “got
turned off.”
Copelyn testified that she was unaware that Appellant had been living with another
girlfriend before he moved in with Copelyn in 2007. If Appellant was using illegal drugs
during that time, he successfully hid that fact from Copelyn. Copelyn acknowledged that
Appellant lied to her about the facts of his previous offense, and that he still had not told her
the real facts of that offense. Copelyn also acknowledged that Appellant persuaded her “for
a while” that he was not involved in the instant offense. She testified that Appellant had
called her after her first day of testimony in the instant trial, ostensibly to see how she was
doing. Copelyn stated that Appellant “could sweet talk anyone”; he could be very
manipulative when he wanted something.
To summarize, the trial record contains substantial evidence that Appellant is mildly
mentally retarded, but it also contains substantial evidence that Appellant is not mentally
retarded. Under these circumstances, we defer to the fact finder. See Williams, 270 S.W.3d
at 114; Briseno, 135 S.W.3d at 9. Based on Appellant’s 2012 IQ scores and witnesses’
testimony about his adaptive functioning as an adult, the jury could have reasonably found
that Appellant’s IQ score of 65 and “educable mentally handicapped” classification in 1981
did not accurately reflect Appellant’s cognitive and adaptive functioning at the time of the
offense in 2010. Cf. Cathey, 451 S.W.3d at 19 (noting that the relevant consideration for
Eighth Amendment purposes is whether a person was mentally retarded during the
GRIFFIN — 53
developmental period and at the time of the offense). In addition, the jury reasonably could
have found that any deficits in Appellant’s adaptive behavior were related to his personality
and not necessarily to subaverage intellectual functioning. The jury was in the best position
to make credibility determinations and evaluate conflicting evidence. See Hunter, 243 S.W.3d
at 671-72. On this record, the jury’s finding that Appellant is not mentally retarded is not so
against the great weight and preponderance of the evidence as to be manifestly unjust. I
would overrule Appellant’s eighth point of error.
MENTAL RETARDATION SPECIAL ISSUE
In point of error nine, Appellant asserts that the trial court erred by instructing the jury
that, in deliberating on the mental retardation special issue, the jury “shall consider all the
evidence admitted at both” phases of the trial, including evidence of Appellant’s background,
character, or the circumstances of the offense that militate for or mitigate against the
imposition of the death penalty. Appellant acknowledges that he did not object to this
instruction. He argues, however, that the instruction constitutes egregious error because it
tells jurors that they may view the evidence proving Appellant’s subaverage intellectual
functioning as evidence that militates in favor of the death penalty. Appellant argues that, by
informing the jury that it may consider evidence of mental retardation as evidence militating
for the death penalty, this instruction “runs afoul of the gist of the United States Supreme
Court[’s] ruling in Atkins,” and violates Appellant’s rights under the Eighth and Fourteenth
Amendments.
GRIFFIN — 54
Because Appellant failed to timely object to the instructions submitted to the jury, he
must establish that these instructions were erroneous and that they “egregiously harmed” him.
See Williams, 270 S.W.3d at 133. Harm is egregious if it deprives the Appellant of a fair and
impartial trial. Neal v. State, 256 S.W.3d 264, 278 (Tex. Crim. App. 2008). The degree of
harm must be assayed in light of the entire jury charge; the state of the evidence, including the
contested issues and weight of probative evidence; the argument of counsel; and any other
relevant information revealed by the record of the trial as a whole. See Warner v. State, 245
S.W.3d 458, 461 (Tex. Crim. App. 2008) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim. App. 1985)).
In this case, the entire jury charge concerning mental retardation was as follows:
The Defendant must prove Special Issue No. 3 submitted to you by a
preponderance of the evidence, and you shall return a Special Verdict of “YES”
or “NO” on Special Issue No. [3].
“Preponderance of the evidence” means the greater weight and degree of
credible evidence, including testimony, that has been introduced in this case.
Special Issue No. 3 asks: “Is the Defendant mentally retarded as that term is
defined herein.”
“Mental retardation” is defined as a disability characterized by: (1) significant
subaverage general intellectual functioning; (2) accompanied by related
limitations in adaptive functioning; (3) the onset of which occurs prior to the
age of 18.
“Sub-average general intellectual functioning” refers to measured intelligence
on standardized psychometric instruments of two or more standard deviations
below the age-group mean for the tests used.
GRIFFIN — 55
“Adaptive behavior” means the effectiveness with or degree to which a person
meets the standards of personal independence and social responsibility expected
of the person’s age and cultural group.
In deliberating on Special Issue No. 3, you shall consider all the evidence
admitted at both the guilt or innocence phase of the trial and the punishment
phase of the trial, including evidence of the defendant’s background, character,
or the circumstances of the offense that militates for or mitigates against the
imposition of the death penalty.
You may not answer Special Issue No. 3 “YES” unless you agree unanimously.
You may not answer Special Issue No. 3 “NO” unless you agree unanimously.
You are further instructed that you are not to be swayed by mere sentiment,
conjecture, sympathy, passion, prejudice, public opinion, or public feeling in
considering all of the evidence before you and in answering Special Issue No.
3.
Special Issue Number 3 on the verdict form asked, “Do you find from a preponderance
of the evidence that the Defendant is mentally retarded as that term is defined herein?” The
jury unanimously answered this special issue in the negative.
Assuming arguendo that the complained-of portion of the jury instruction was
erroneous,19 it did not egregiously harm Appellant. The state of the evidence relevant to this
19
Article 37.071, Section 2(d)(1), explicitly requires the trial court to give an instruction to
the jury that, “in deliberating on the issues submitted under Subsection (b) of this article, it shall
consider all evidence admitted at the guilt or innocence stage and the punishment stage, including
evidence of the defendant’s background or character or the circumstances of the offense that
militates for or mitigates against the imposition of the death penalty[.]” (Emphasis added.) But
nowhere does Article 37.071 itself explicitly authorize an instruction with respect to mental
retardation at all, much less does it require the trial court to instruct the jury to consider all guilt and
punishment stage evidence in making the mental retardation determination. This is not necessarily
to say that a trial court would err to give such an instruction as part of an extra-statutory,
constitutionally required mental retardation special issue instruction. I would not decide that question
today. I would remark only that such an instruction, if it is required, would best be tailored explicitly
to the mental retardation issue, such that it directed the jury to consider all evidence from both stages
GRIFFIN — 56
issue, including the contested issues and weight of probative evidence, is described in point
of error eight. Appellant received a full and fair hearing of his mental retardation claim. See
Williams, 270 S.W.3d at 132. Further, the State did not argue that Appellant’s subaverage
intellectual functioning increased Appellant’s future dangerousness or otherwise constituted
an aggravating factor. The jury instruction and form correctly informed jurors that if they
determined that Appellant proved mental retardation by a preponderance of the evidence, then
they should answer the mental retardation special issue affirmatively. Contrary to Appellant’s
reading, the instruction did not invite jurors to answer the mental retardation special issue in
the negative if they found that Appellant had proven mental retardation by a preponderance
of the evidence but also believed that Appellant’s mental retardation evidence militated in
favor of the death penalty. On this record, I would not conclude that Appellant was deprived
of a fair determination of the mental retardation special issue or that he was egregiously
harmed by the jury instruction. See id. at 134. I would overrule point of error nine.
ARTICLE 37.071
In points of error ten and eleven, Appellant asserts that the trial court erred in denying
his motions to hold Article 37.071 unconstitutional. In point of error ten, Appellant asserts
that Article 37.071, sections 2(e) and 2(f), are unconstitutional because they impermissibly
of trial in determining whether it “militates for or mitigates against” a finding of mental
retardation—not whether it “militates for or mitigates against” imposition of the death penalty in
a more generalized sense. Here, the trial court embedded within the mental retardation special issue
an instruction that the jury must consider all the evidence from both stages of trial to decide whether
it “militates for or mitigation against the imposition of the death penalty.” For the reasons given in
the text, I would hold that this instruction, if error, was not egregiously harmful.
GRIFFIN — 57
shift the burden of proof on mitigation to the defendant. In point of error eleven, Appellant
asserts that Article 37.071, section 2(f), is unconstitutional because it limits mitigating
evidence to evidence that reduces a defendant’s blameworthiness. He acknowledges that we
have rejected similar claims. See, e.g., Davis v. State, 313 S.W.3d 317, 355 (Tex. Crim. App.
2010); Coble v. State, 330 S.W.3d 253, 296 (Tex. Crim. App. 2010). I am not persuaded that
we need to reconsider our previous decisions. I would overrule points of error ten and eleven.
Accordingly, I would affirm the judgment of the trial court. Because the Court does
not, I respectfully dissent.
FILED: January 27, 2016
PUBLISH