Petetan, US Carnell Jr. A/K/A Carnell Petetan, Jr.

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-77,038
US CARNELL PETETAN, JR., Appellant
v.
THE STATE OF TEXAS
ON DIRECT APPEAL
FROM CAUSE NO. 2012-2331-C1
IN THE 19TH DISTRICT COURT
McLENNAN COUNTY
K ELLER, P.J., delivered the opinion of the Court in which K EASLER,
H ERVEY, R ICHARDSON, Y EARY, N EWELL, K EEL, and W ALKER, JJ., joined. A LCALA, J.,
filed a dissenting opinion.
Appellant was charged with the capital murder of his wife, Kimberly Petetan. The indictment
alleged that he intentionally caused her death during the course of committing or attempting to
commit the offenses of burglary, kidnapping (of Kimberly or her daughter A.W.), and retaliation.1
1
See TEX . PENAL CODE § 19.03(a)(2) (“A person commits an offense if the person commits
murder as defined under Section 19.02(b)(1) and . . . the person intentionally commits the murder
PETETAN — 2
A jury found appellant guilty of capital murder and answered the special issues in such a manner that
appellant was sentenced to death. Appeal to this court is automatic.2 Appellant raises thirty points
of error. We modify the judgment to reflect that appellant was convicted of a capital felony and
otherwise affirm.
I. SUFFICIENCY OF THE EVIDENCE – GUILT
In point of error six, appellant contends that the evidence was insufficient to prove that he
“murdered the complainant while in the course of committing or attempting to commit the offenses
of burglary, kidnapping, or retaliation.”
A. Standard of Review
In conducting a sufficiency review with respect to a defendant’s guilt, we view the evidence
in the light most favorable to the verdict to determine whether any rational trier of fact could have
found the elements of the offense beyond a reasonable doubt.3 “When the record supports
conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict, and we
defer to that determination.”4
B. The Evidence
Viewed in the light most favorable to the verdict, the evidence shows the following:
Kimberly had been married twice and had three children (including a now-adult daughter named
in the course of committing or attempting to commit kidnapping, burglary, . . . [or] retaliation.”).
2
TEX . CODE CRIM . PROC. art. 37.071, §2(h).
3
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Blea v. State, 483 S.W.3d 29, 33 (Tex.
Crim. App. 2016).
4
Blea, 483 S.W.3d at 33 (quoting Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App.
2014)).
PETETAN — 3
Kristen) before she entered into a relationship that ended because the couple became addicted to
crack cocaine. During this relationship, Kimberly had a fourth child, a daughter we shall call
“A.W.”5 With the help of a treatment center, Kimberly overcame her addiction, and she felt that God
had saved her and had called her to share her testimony. In 2009, Kimberly met appellant’s brother
at an auto repair shop, and she shared her recovery story. Appellant’s brother suggested that
Kimberly contact appellant, who was in prison, because her story might be inspiring for him.
Kimberly became pen pals with appellant, and their correspondence developed into a romance that
culminated in marriage by proxy in 2010.
In the spring of 2012, appellant first began living with Kimberly in her apartment in Waco.
Almost immediately, the couple began having arguments and fights, which resulted in the police
being called. Kimberly considered divorce, but she and appellant reconciled. During the time that
he lived with her in Waco, appellant would often get angry and tell Nichlos Lampkin (a casual
acquaintance), “Man, I’m going to kill that bitch.” Appellant made a similar statement to Morris
Evans, Lampkin’s brother-in-law.
In August 2012, Kimberly and appellant had a falling out. Appellant moved to Port Arthur,
and Kimberly moved to a different apartment in Waco. The next month, Kimberly moved in with
appellant in Port Arthur, but she kept her apartment in Waco in case things did not work out.
On September 13, 2012, appellant, Kimberly, and A.W. were at a rap studio. The smoking
at the studio bothered Kimberly, and she asked appellant to take her and A.W. back to his apartment.
An argument ensued, but eventually, appellant reluctantly agreed to do so. When appellant began
smoking inside the apartment, Kimberly asked him to smoke outside because A.W. had asthma.
5
A.W. was eleven years old at the time of trial in 2014.
PETETAN — 4
Becoming angry, appellant pushed Kimberly onto a couch and caused her to fall onto the ground.
When Kimberly got up, appellant pushed her into some boxes. Kimberly tried to leave, but appellant
pushed her up against a wall. She fell, and appellant grabbed a large kitchen knife. Holding the
knife close to Kimberly, he said, “I could kill you, I could kill you. Do you want to die in front of
[A.W.] tonight?” Kimberly tried to call the police, but appellant took the phone away. Kimberly
then ran to the bathroom and used a phone in there to call 9-1-1. While Kimberly was in the
bathroom, appellant cut himself in the stomach with the knife, called the police, and then left.
That night, Port Arthur Police Officer Ryan Kidwell received a dispatch about a possible
assault at appellant’s apartment. Upon arriving at the apartment, Officer Kidwell spoke with
Kimberly, who was scared and stressed. Kimberly told Officer Kidwell about her smoking
complaint, the escalating argument, appellant taking the phone away, and his brandishing the knife
and threatening her. Officer Kidwell saw a scratch on Kimberly’s arm, and she complained of
soreness. In consultation with Kimberly, Officer Kidwell filled out some forms that set up an assault
case, indicating that the victim wished to press charges and that the assault was a felony charge.
The next day, Kimberly and A.W. took a U-Haul back to Kimberly’s Waco apartment,
stopping by Kristen’s house on the way. Kimberly appeared to be “achey” and complained about
being sore, and Kristen felt some knots on Kimberly’s head. Kimberly told Kristen that, after being
threatened in front of A.W., she was “completely done” with appellant and was going to file for
divorce and pursue criminal charges against him. In fact, it was Kristen’s understanding that
“criminal charges had actually started.”6
6
At some point between this time and Kimberly’s death, appellant cut off the service to
Kimberly’s cell phone, which had been activated on a phone plan shared with him.
PETETAN — 5
On September 23, 2012, appellant approached Adrian Miller about going to Waco to get
some drugs. Seventeen-year-old Kerrie Mouton, a relative of appellant’s, told Miller that he wanted
to come along because he felt that something was wrong and that appellant was trying something.
The three of them traveled in appellant’s white Suburban and got to Waco around noon. Appellant
rented a room at the C & E Motel.
While at the motel, appellant, Miller, and Kerrie met a woman with an autistic son.
Appellant offered her money to give him a ride somewhere. He told Kerrie that he was going to
“check the scene out.” Leaving Miller and Kerrie at the motel, appellant and the woman drove off.7
Appellant later returned to the motel and drove his own vehicle to Kimberly’s apartment complex.
Cornelius Jefferson was washing clothes when he saw appellant hunched over in front of Kimberly’s
apartment door.8 At appellant’s request, Jefferson knocked on the door. A.W. looked out the
window, but she saw Jefferson, not appellant. When Kimberly answered the door, appellant forced
his way into the apartment.
Appellant then pulled a gun out of his pocket and started waving it around. He told Kimberly
to get dressed and come with him. Kimberly asked, “Where are we going?” Appellant responded,
“Shut up.” Kimberly then asked again, “No. Where are we going?” Appellant then responded,
“We’re going to Port Arthur, and you’re going to tell the cops what happened.” After Kimberly got
dressed, the three of them got into Kimberly’s truck, and, at appellant’s instruction, Kimberly drove
7
At the punishment stage of trial, Meshia Hicks testified that she was the woman who gave
appellant the ride, and she explained where they went and what they did. We detail her testimony
later in connection with appellant’s sufficiency challenges to the jury’s answer to the mental
retardation special issue.
8
Jefferson did not know appellant but identified him later in court.
PETETAN — 6
to the C & E Motel. During the drive, Kimberly once accidentally made a wrong turn and appellant
said, “Get your ass over there and turn this way.”
When they got to the motel, appellant told Kimberly to honk her horn, and Miller and Kerrie
got into the truck. At appellant’s direction, they stopped at a store. A.W. needed to use the
restroom, so Kimberly told appellant this and opened her door. Appellant cussed at her and directed
that they go instead to the apartment complex where Kimberly and appellant used to live. When they
arrived at the apartment complex, Kimberly, A.W., and appellant got out of the truck and met their
friend Jeanetta. When Jeanetta said “hi” to appellant, he told her to shut up. They stayed only a
short time and then returned to Kimberly’s current apartment. All of the occupants of the
truck—appellant, Kimberly, A.W., Miller, and Kerrie—went into Kimberly’s apartment.
Kimberly was nervous. At one point, appellant grabbed her head and forced her to kiss him.
Miller was hungry, so Kimberly told him to heat up a pizza. Then she said, “After you eat, I want
you all to leave.” After that, Kimberly remarked several times that she wanted appellant to leave,
and Miller also began telling appellant, “Let’s go.” At some point, Kimberly told appellant, “Fuck
you, Carnell. If you’re going to kill me, kill me.” When A.W. later told Kimberly that she needed
to use the restroom, Kimberly asked appellant, and appellant said, “Yeah, Bitch, go.” Kimberly then
grabbed her shoes, grabbed A.W.’s wrist, and acted as if both of them were heading up the stairs to
the bathroom on the second floor. Instead, Kimberly opened the front door, which was next to stairs.
Upon seeing this, appellant ran to the front door, slammed it shut, and pushed Kimberly up against
a wall. Appellant then told her to stand on the stairs and said, “It’s time to dust away.” Appellant
then shot Kimberly three times.
Kerrie grabbed A.W. and took her out the back door. He told her it would be ok, but they
PETETAN — 7
soon reentered the apartment and saw appellant grabbing everyone’s cell phones.9 Appellant, Miller,
Kerrie, and A.W. got into appellant’s Suburban, with Miller as the driver, appellant in the front
passenger seat, and Kerrie and A.W. in the back. A.W. and Kerrie were both scared. They stopped
at a gas station, and appellant took out three twenty-dollar bills and rubbed them all over his hands.
Smirking, he handed the money to Miller and told him to go pay for the gas.10 Later, they stopped
again, and appellant wrapped up his gun and threw it over a fence into a wooded area.
That day, Kristen received a call from A.W., who said she was at the corner store near
Kristen’s house and needed to be picked up. On the way to the corner store, Kristen received a call
from the manager of her apartment complex. The manager informed Kristen that she needed to
come to Waco because her mother had been shot and was dead. As it turned out, A.W. was not at
the corner store; she was in appellant’s Suburban in the city of Bryan.
Crystal O’Rear, a Bryan police officer working patrol that day, responded to a dispatch to
look for an older model Suburban, with a particular license plate number, that was involved in a
possible kidnapping. Officer O’Rear located and pulled over the vehicle, which was driven by Miller
and also occupied by appellant, A.W., and Kerrie.11 When the officer asked A.W. who hurt her
mother, A.W. answered without hesitation. Officer O’Rear also talked to appellant, with whom she
9
This was A.W.’s testimony. Kerrie testified that he grabbed the keys to the Suburban and
took A.W. to the vehicle in an attempt to get away, but that they were not able to move fast enough,
and “everybody was coming outside and everybody just got into the car.”
10
As we address later, appellant testified that Miller was the shooter. Appellant’s act of
rubbing the money with his hands and giving it to Miller could be construed as an attempt to transfer
gunshot residue to Miller’s hands.
11
Miller and Kerrie both testified that Miller, upon seeing the police car, swerved across the
lanes intentionally to provoke a stop.
PETETAN — 8
had no difficulty communicating and who did not appear to have any sort of intellectual disability.
Miller and Kerrie also told police officers that appellant had shot and killed someone.
A.W., Miller, and Kerrie all testified at appellant’s trial, and while their testimony sometimes
varied on details, they told the same basic story of what happened. All three saw appellant thwart
Kimberly and A.W.’s attempt to escape, and all three saw appellant shoot and kill Kimberly.
In addition, while in the McLennan County Jail, appellant bumped into inmate Charles
Gatlin. Gatlin said, “Excuse me,” and appellant responded, “I killed my wife. I’ll kill you.”
In speaking with Michael Tovar, a cellmate, appellant referred to Kimberly as “that bitch.”
Regarding the events of September 23, Appellant said that he had gone to Waco because he
suspected his wife was cheating on him and that, if he found anyone in her apartment, he was going
to kill them. Appellant further stated that, after entering Kimberly’s apartment, he went outside to
smoke, and, upon coming back inside, he already had the gun in his hand. Then, he “just shot,
boom-boom-boom”—killing Kimberly. At one point, Tovar asked why appellant was telling him
about the killing, and appellant responded that it did not matter, because “they” (the State) would
not be able to try him because of his mental state.
C. Analysis
Appellant concedes that his first entry into Kimberly’s apartment on September 23 was a
burglary. He also concedes that he kidnapped Kimberly and A.W. when he transported them from
their home to a motel. But he contends that these crimes were “so removed in time as to not have
a nexus to the later shooting of Kimberly sufficient to support the conviction for capital murder.”
Appellant also contends that the evidence does not show that he harmed or threatened to harm
Kimberly in retaliation for her reporting his previous assault of her or to prevent or delay her service
PETETAN — 9
as a witness or person who had reported a crime. Because the evidence need only be sufficient to
support one legal theory of capital murder to be sufficient to support the conviction,12 we choose to
address only appellant’s claim regarding the underlying offense of kidnapping.
A person commits a kidnapping “if he intentionally or knowingly abducts another person.”13
“Abduct” means “to restrain a person with intent to prevent his liberation by: (A) secreting or
holding him in a place where he is not likely to be found; or (B) using or threatening to use deadly
force.”14 “Restrain” means “to restrict a person’s movements without consent, so as to interfere
substantially with the person’s liberty, by moving the person from one place to another or by
confining the person.”15 “Restraint is ‘without consent’ if it is accomplished by . . . force,
intimidation, or deception.”16
As appellant concedes, he kidnapped Kimberly and A.W. when he waved his gun and
commanded them to go with him in Kimberly’s truck to the motel. He used the threat of deadly
force (from his gun) to intimidate them to move with him to a place they did not wish to go.17 But
the kidnapping did not end there. He continued to use the threat of deadly force to direct them back
12
Gardner v. State, 306 S.W.3d 274, 286-87 (Tex. Crim. App. 2009).
13
TEX . PENAL CODE § 20.03(a).
14
Id. § 20.01(2).
15
Id. § 20.01(1).
16
Id. § 20.01(1)(A).
17
See Swearingen v. State, 101 S.W.3d 89, 96 (Tex. Crim. App. 2003) (holding that
“through the use of the force or intimidation created by having hit her, he restrained her and
substantially interfered with her liberty by confining her in his truck while moving her to the forest
without her consent and that he did so with the intent to prevent her liberation by either secreting her
in a place where she was not likely to be found or by using or threatening to use deadly force”).
PETETAN — 10
to Kimberly’s apartment and to confine them there.18 Indeed, immediately before he shot Kimberly,
he thwarted an escape attempt.19 The evidence clearly and overwhelming shows that appellant
murdered Kimberly while he was kidnapping both Kimberly and A.W. Point of error six is
overruled.
II. SUFFICIENCY OF THE EVIDENCE – MENTAL RETARDATION
In point of error eleven, appellant contends that he is ineligible for the death penalty due to
“intellectual disability.” In point of error ten, he contends that the jury’s answer to the “intellectual
disability” special issue was against the great weight and preponderance of the evidence. Both of
these challenges are directed at what was labeled the “mental retardation” special issue at the
punishment stage of trial. That special issue asked, “Do you find, taking into consideration all of
the evidence, that the Defendant is a person with mental retardation?” A “no” answer to that issue
was required in order to assess the death penalty, and the jury answered that issue “no.”
A. Standard of Review
In Atkins v. Virginia, the Supreme Court held that the execution of mentally retarded
individuals violates the Eighth Amendment to the United States Constitution.20 The Constitution
is violated by the execution of a person of low intelligence when the person is “so impaired as to fall
18
See Hines v. State, 75 S.W.3d 444, 448 (Tex. Crim. App. 2002) (victim continued to be
under abduction while defendant threatened her physically “by pointing a gun at her and leading her
around by the neck”); Fitzgerald v. State, 782 S.W.2d 876, 881 (Tex. Crim. App. 1990) (referring
to offense of kidnapping as “a continuous, ongoing event”).
19
See Reyes v. State, 84 S.W.3d 633, 637 (Tex. Crim. App. 2002) (evidence sufficient to
show capital murder with underlying evidence of kidnapping when victim was alive while restrained
and assaulted two times before she was ultimately killed).
20
Atkins v. Virginia, 536 U.S. 304 (2002); Ex parte Moore, 470 S.W.3d 481, 486 (Tex.
Crim. App. 2015). See U.S. CONST . Amend. VIII (“nor cruel and unusual punishments inflicted”).
PETETAN — 11
within the range of mentally retarded offenders about whom there is a national consensus.”21 The
Supreme Court left to the States the task of tailoring appropriate ways to enforce this restriction.22
In Ex parte Briseno, we established interim guidelines for implementing Atkins in Texas until such
time as the Texas Legislature chooses to do so.23 Because the Legislature has not acted, we continue
to follow the Briseno guidelines.24
A demonstration of mental retardation that would exempt an offender from execution
requires showing the following by a preponderance of the evidence: (1) significantly subaverage
general intellectual functioning, generally shown by an intelligence quotient (IQ) of 70 or less; (2)
accompanied by related and significant limitations in adaptive functioning; and (3) the onset of the
above two characteristics having occurred before the age of eighteen.25 In evaluating the first prong,
we take into consideration the standard margin of error for IQ tests, which is generally five points.26
In determining whether related and significant limitations in adaptive functioning exist, courts can
look to standardized test scores but should also look to the following factors:
• 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
21
Atkins, 536 U.S. at 317.
22
Id.; Moore, 470 S.W.3d at 486.
23
135 S.W.3d 1, 4-5 (Tex. Crim. App. 2004).
24
Moore, 470 S.W.3d at 486.
25
Id.; Briseno, 135 S.W.3d at 7 & nn. 24-27.
26
Moore, 470 S.W.3d at 487.
PETETAN — 12
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?27
Appellant contends that we should abandon these factors in light of what he believes are the clinical
standards and the effect of the Supreme Court’s decision in Hall v. Florida.28 Appellant
acknowledges that we have refused to abandon the Briseno factors after Hall.29 We decline
appellant’s invitation to do so today.30
Appellant’s eleventh point of error alleges generally that appellant is ineligible for the death
penalty due to intellectual disability. To the extent this claim can be construed as a request to
conduct an independent review of the record similar to our review as the ultimate factfinder in a
27
Moore, 470 S.W.3d at 489; Briseno, 135 S.W.3d at 8-9.
28
134 S. Ct. 1986 (2014).
29
See Moore, 470 S.W.3d at 486-87 (“It may be true that the AAIDD’s and APA’s positions
regarding the diagnosis of intellectual disability have changed since Atkins and Briseno were
decided. Indeed, we have recently discussed the subjectivity surrounding the medical diagnosis of
intellectual disability and some of the causes for that subjectivity. But although the mental-health
fields and opinions of mental-health experts inform the factual decision, they do not determine
whether an individual is exempt from execution under Atkins.”).
30
As we shall see below, however, the evidence would nevertheless be legally and factually
sufficient even without considering the Briseno factors regarding adaptive functioning.
PETETAN — 13
habeas setting under Article 11.071,31 we decline to do so. The issue of mental retardation was
litigated at trial before a jury, and on direct appeal from that trial, we exercise appellate-style
deference to the determination made by the factfinder.32 To the extent that appellant’s eleventh point
of error can be construed as advancing a legal sufficiency challenge, we will address that complaint,
along with the factual sufficiency challenge advanced in point of error ten.
Mental retardation is a punishment-mitigation issue that is in the nature of an affirmative
defense, and the defendant shoulders the burden of proof to show mental retardation by a
preponderance of the evidence.33 In conducting a legal-sufficiency review of a jury’s finding against
an issue on which the defendant has the burden of proof, “[w]e first search the record for evidence
favorable to the finding, disregarding all contrary evidence unless a reasonable factfinder could not.
If we find no evidence supporting the finding, we then determine whether the contrary was
established as a matter of law.”34 In conducting a factual-sufficiency review,35 an appellate court
31
See Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008) (In article 11.071
proceedings, “this Court is the ultimate factfinder” and “[w]hen our independent review of the record
reveals that the trial judge’s findings and conclusions are not supported by the record, we may
exercise our authority to make contrary or alternative findings and conclusions.”); TEX . CODE CRIM .
PROC. art. 11.071.
32
See Ex parte Garcia, 353 S.W.3d 785, 787-88 (Tex. Crim. App. 2011) (finding a
significant distinction between habeas proceedings in which this Court is the ultimate finder of fact
and habeas proceedings in which the trial court is the sole finder of fact; concluding that there is
“less leeway” in the latter context to disregard findings of a trial court).
33
Neal v. State, 256 S.W.3d 264, 273 (Tex. Crim. App. 2008).
34
Matlock v. State, 392 S.W.3d 662, 669 (Tex. Crim. App. 2013).
35
Although Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010), abolished factual-
sufficiency review for elements of the offense that the State is required to prove beyond a reasonable
doubt, a factual-sufficiency review is still available for affirmative defenses or affirmative mitigating
issues upon which the defendant bears the burden of proof. Butcher v. State, 454 S.W.3d 13, 20
PETETAN — 14
views the evidence in a neutral light and determines whether the jury’s finding is “so much against
the great weight of the evidence as to be manifestly unjust, conscience-shocking, or clearly biased.”36
Even in a factual-sufficiency review, an appellate court may not substitute its judgment for the
factfinder’s assessment of the weight and credibility of the testimony of witnesses, and an appellate
court may find evidence to be factually insufficient only after setting out the relevant evidence and
explaining precisely how the contrary evidence greatly outweighs the evidence supporting the verdict
and why the verdict is manifestly unjust, conscience-shocking, or clearly biased.37
B. The Evidence
In addition to the evidence recited in connection with appellant’s sixth point of error, the
following evidence is relevant to appellant’s mental-retardation claims:
1. Appellant’s Guilt Stage Testimony
Appellant testified at the guilt stage of trial. His testimony appeared to be coherent and fluid.
He testified about becoming a pen pal with Kimberly. He stated that they wrote three or four letters
a week to each other. Appellant stated that he had different people helping him with the letters.
They would help him with spelling and, after he wrote what he wanted to say, they would “put it into
sentences and stuff” for him. Kimberly began to visit him in prison for two hours nearly every week.
Appellant gave exculpatory accounts of the incidents that occurred on September 13 and 23,
2012. Appellant claimed that, after he drove Kimberly home from the rap studio on September 13,
they got into an argument about whether he was going to return to the studio. Appellant claimed that
(Tex. Crim. App. 2015).
36
Matlock, 392 S.W.3d at 671.
37
Id.
PETETAN — 15
Kimberly started slapping him, and when he told her that he was returning to the studio, she grabbed
a knife and swung it at him. Appellant said that the knife cut his shirt and caused him to bleed a
little. Appellant further testified that A.W. said she was going to tell the police what Kimberly did
to appellant but that Kimberly started spanking her.
Appellant testified that he went to Waco on September 23 to retrieve a laptop, some clothes,
and a $300 deposit from a landlord. He said that Miller and Kerrie were with him because he did
not know how to get to Waco and had trouble reading a map. Appellant claimed that Kimberly
voluntarily opened the door for him and that he entered the apartment without incident. Appellant
said that he told Kimberly he could not stay for long because he came with some other people.
Appellant further testified that Kimberly said, “Let’s go get them,” and he and Kimberly drove to
the C & E Motel. Appellant said that Kimberly drove her truck because, “She don’t like driving that
big, old Suburban. She don’t like driving it. It’s too big.”
Appellant testified that Miller had a gun with him. He stated that Miller and Kimberly got
into an argument and that Miller shot her. Appellant said he threatened to call 9-1-1 but that Miller
pointed his gun at him and said they were going to Houston. According to appellant, when they
stopped at a gas station, he went in and told the clerk to call 9-1-1.38
Defense counsel also asked appellant about a written business plan, an autobiography (of
appellant), and a Facebook page purporting to belong to appellant. Appellant claimed that an inmate
named Ellis Randle wrote the business plan, that another inmate named William Dahl wrote the
autobiography, and that Kimberly set up the Facebook page.
38
A store clerk had previously testified that appellant walked into the store appearing
nervous and that the clerk later called 911. The trial court excluded any questioning regarding the
content of any conversation the clerk had with appellant.
PETETAN — 16
On cross-examination, appellant acknowledged that he spent nearly twenty years in prison
for attempted murders and aggravated assaults. He also acknowledged that he had told Kimberly
that with one phone call he could cause fifty to seventy-five people to show up on his behalf.
Appellant admitted that the letters from him to Kimberly were in his handwriting, but he maintained
that others wrote things for him that he copied into those letters. Appellant also admitted that he had
no trouble driving by himself from the C & E Motel to Kimberly’s apartment complex. Appellant
denied obtaining a ride from Meshia Hicks to drive around the apartment complex before driving
there himself.
2. Meshia Hicks
At the punishment stage of trial, Meshia Hicks testified that, on the day of Kimberly’s
murder, she was staying at the C & E Motel. Appellant offered to give her gas money in exchange
for a ride. She agreed, and appellant directed her to Kimberly’s Waco apartment. While there,
appellant directed Hicks to drive around the parking lot a few times, occasionally telling her to slow
or stop, and then they returned to the C & E Motel.
3. Appellant’s Criminal Record
Appellant committed a burglary when he was ten years old and a theft when he was eleven.
At age twelve, he committed the offenses of criminal mischief and assault causing bodily injury. At
age thirteen, he committed another assault causing bodily injury against Romona Sostand. When
he was fourteen, he committed another assault causing bodily injury, and he broke the window of
a truck owned by a school principal. For the assaults, appellant was adjudicated delinquent as a
juvenile and placed on probation. At age fifteen, appellant committed a burglary. About five
months later, appellant’s probation was revoked for truancy, electronic monitoring violations, and
PETETAN — 17
curfew violations, and he was sent to a juvenile facility.
At age sixteen, appellant committed two attempted murders and three aggravated assaults at
different times against different victims. The attempted-murder victims were Fredrick Nico and
Victor Loeb. The aggravated-assault victims were, Raffiel Dugas, Elizabeth Beale, and Alfred
Smith. Nico, Dugas, and Smith were acquaintances of appellant. Beal was a sixty-four-year-old
teacher at a juvenile detention center. Victor Loeb was a seventy-nine-year-old man who had no
prior relationship with appellant.
The offense against Nico involved appellant’s use of a gun that was sitting on a table.
Appellant had told authorities that Nico picked up the gun and pointed it at appellant and his brother,
that appellant wrestled the gun away, and that the gun fired several times during the struggle. But
according to Nico, appellant took the gun off the table without provocation, ran to the back of the
yard, and shot Nico. Other witnesses backed Nico’s version of events. Appellant later gave a
statement that was consistent with Nico’s account.
Loeb was a random victim of a drive-by shooting that was tied to appellant.
The offense against Dugas occurred at a nightclub. Dugas broke up a fight between appellant
and a friend of his, which then caused a fight between Dugas and appellant. Dugas won the fight,
and appellant ran off, but he returned later and beat Dugas with a chair. Dugas was in a coma for
a week. He had a broken jaw and a lost tooth, his lip was split up to his nose, and he underwent
surgery and received stitches. At trial twenty years later, Dugas still bore scars from that incident.
The incident with Beal occurred at the Jefferson County Detention Center when Beal
attempted to get appellant and several other males to quiet down in class. Appellant went to the front
of the room and slapped Beal in the head hard enough to cause her to fall over a desk. Beal suffered
PETETAN — 18
injuries to her head, left eye, and her thigh.
The incident with Smith occurred when appellant asked him where his cousin was. When
Smith said he did not know, appellant threatened him with a firearm.
Appellant was certified to stand trial as an adult for these offenses. He pled guilty and was
sentenced to ten years for the aggravated assaults and twenty years for the attempted murders, to run
concurrently. The judgments for all of these offenses were pronounced on July 6, 1993.
4. Substance Abuse History
The prosecutor read a penitentiary packet to the jury. A section of this packet, entitled
“Substance Abuse History,” explained that appellant started drinking alcohol at age sixteen.
Appellant had claimed that he drank “very rarely” and had no problem with alcohol, but a Port
Arthur police report indicated that appellant admitted to drinking nine to ten beers a day. Regarding
drug abuse history, the pen packet said that appellant had admitted to using marijuana three times
at age fifteen but denied any addiction to drugs. However, appellant had claimed that he started
selling crack cocaine at age fifteen and would make at least $500 a day. Appellant had claimed that
the money was spent to buy more cocaine and for partying.
5. Appellant’s Education Records
Appellant’s grades in reading and arithmetic in the first and second grades were below
average. His grades were average for other language arts, social studies, and science. Notations for
those two grades showed that appellant put forth average effort but was below average in citizenship.
Appellant was “retained” in the third, sixth, and ninth grades, which meant that he was
supposed to repeat those grades. Records admitted at trial did not show whether he actually went
to school when he was supposed to repeat the sixth grade. The records also indicated that appellant
PETETAN — 19
began ninth grade the year after he would have repeated sixth grade, effectively skipping seventh and
eighth grades.
In appellant’s initial third grade year, his grades (excluding physical education) were: 54, 45,
40, 71, 37, 78, 80, 79, 79, and 74. Appellant had twenty-nine absences from school. In his
subsequent third grade year, his corresponding grades were 63, 43, 53, S, 63, 60, 51, N, S, and N,
and he had seven absences.39 In fourth grade, appellant made grades of 72, 64, 62, S, 74, 70, 72, S,
S+, and N, and he had 30 absences. In fifth grade, his grades were 75, 76, 76, S, 75, 75, 75, S, S, and
N.40 On both the third and fifth grade versions of the TEAMS test, appellant passed the reading
section but did not pass the math and writing sections.
Appellant was below his grade equivalent on all of his scores on the California Achievement
Tests (CAT) taken in third through fifth grades. His CAT scores generally increased from his initial
third grade year to his subsequent third grade year and from his fourth grade year to his fifth grade
year, though there were a couple of exceptions where the score declined. Comparing the subsequent
third grade year with the fourth grade year yields a mixed result, with about an equal number of
scores increasing versus declining. His scores for the initial third grade year (3.6)41 ranged from a
grade level of 1.7 to 2.8, while his scores for the subsequent third grade year (also 3.6) ranged from
2.4 to 2.9. His scores from his fourth grade year (4.6) ranged generally from 2.0 to 3.6 with one
score of 0.8, while his scores from his fifth grade year (5.6) ranged generally from 2.0 to 3.8 with
39
Although the record does not make this clear, the designations “S” and “N” appear to
mean, respectively, “satisfactory” and “needs improvement.”
40
Appellant’s physical-education grades from his initial third grade year through fifth grade
were 85, N, N, and S.
41
3.6 appears to denote a point in time more than halfway through his third grade year.
PETETAN — 20
one score of 5.2.
In his initial sixth grade year, at middle school, appellant’s grades were in the 50s or low 60s.
His CAT scores were, with one exception, uniformly lower than they were in fifth grade. These
scores ranged from 1.7 to 4.1. In appellant’s initial ninth grade year, most of his grades were 50,
with a 55 and a 60. In his subsequent ninth grade year, some of his grades in his first grading period
were higher, with grades of 61, 62, 72, 57, 61, 53, and 72. In the second grading period, most of his
grades were 50, with a 56 and a 55.
6. Family Members’ Punishment Stage Testimony
a. Appellant’s Mother
Ophelia Ortiz, appellant’s mother, described appellant as “slow,” and she stated that she had
to give him more attention than her other children when he was growing up. Ophelia further
described appellant’s behavior, as a child and as an adult, as follows: As a baby, appellant cried all
the time. At age two months, he kicked a glass bottle and broke it. Appellant was a bedwetter, and
Ophelia did not “know if he has stopped yet. All his life he been peeing on himself.” When he was
a child, appellant could not tie his shoes, dress himself, take a bath, or brush his teeth.42
Even though the family lived “right by the school,” appellant would forget where to go and
“would go another direction.” Appellant had to be walked to school because he would not go on his
own. Not only would appellant skip school, sometimes he would be missing from home for as much
as three days at a time.
Ophelia was called about appellant’s school behavior all the time. Appellant would be absent
42
But Ophelia also testified that appellant had to be told when to take a bath, and she also
stated that appellant told her, “Mom, I can bath myself.”
PETETAN — 21
at school, and when he was at school, he could not do the work, so he was placed in Special
Education. Even in Special Education, however, he could not pass. Appellant had difficulty reading
and writing. He would not do his homework and would not follow instructions, even if given a list.
He had to repeat some grades in school. Appellant could not pass the driving test.
When appellant was a child, he did not play with toys, watch television, or play video games.
He would “just sit there” or walk out and leave, and family members would not know where he went.
Even as an adult, appellant had temper tantrums as if he were two years old. Appellant
would stomp, jump, cry, shake his head, and vomit. When appellant left prison, he could not keep
his apartment clean, so his sister would come over and clean it. Appellant did not wash dishes, did
not put food away, and left clothes strewn across the floor. He could not use a washing machine or
a dryer. He did not watch television or use a DVD player, and he could not operate a cell phone.
Appellant also could not be trusted with money because he could not make change.
The State cross-examined Ophelia about appellant’s writing ability:
Q. So it would surprise you if he was a prolific writer, wouldn’t it?
A. Yeah, it would.
Q. Would it surprise you to know that he’s a self-admitted writer of over 800 musical
songs?
A. (Laughing) That's funny. No, he’s not.
Q. He’s not?
A. No.
Q. Do you think it would be difficult for Carnell to even compose a simple letter to
another person?
A. It would. Somebody would have to help him.
PETETAN — 22
The prosecutor then showed Ophelia forty letters that appellant admitted to writing that were in his
handwriting. Ophelia replied that, if he wrote them, he must have improved while he was in prison.
The prosecutor further questioned Ophelia about appellant’s capabilities, saying, “[T]he way
you’ve described your son, the person you described was essentially a piece of meat that sat there.
He would pee on himself. Right?” Ophelia responded, “Well, that’s when he was younger, before
he went to prison. . . . I don’t know if he still pee on himself.” However Ophelia then corrected
herself, saying that appellant “probably did still pee on himself.”43 Later, she answered affirmatively
when the prosecutor asked her if she would be surprised to know that no one else who knew
appellant during his youth has said he peed on himself during the day. And she answered
affirmatively that she would be surprised that appellant made it through eight weeks of the current
trial without once having a peeing accident.
After the prosecutor suggested that Ophelia would do anything, including lie, for her son,
Ophelia responded, “I don’t lie,” but then said, “I know the police reports in Port Arthur said I had
a false report.” The prosecutor then questioned her about the incident in which appellant shot Nico.
Ophelia had told the police that Nico retrieved the gun from a rag on the table and that appellant
began wrestling Nico for it. At appellant’s current trial, Ophelia maintained that her story was
correct despite other evidence—from Nico, appellant, and other witnesses—that appellant had
snatched the gun off the table, walked some distance away, and then returned and shot Nico. The
prosecutor also questioned Ophelia about her helping appellant make a $100,000 bond in that case.44
43
Ophelia further testified, “I didn’t say he didn’t pee on himself. . . . He always did pee on
himself. . . . From a baby until he got out of prison.” (Prosecutor’s questions and interjections
omitted.).
44
Ophelia stated that she did not remember the exact amount.
PETETAN — 23
The prosecutor also questioned Ophelia about the fact that appellant was required to have a
job as a condition of parole. Ophelia responded that appellant worked with his uncle cutting yards.
The prosecutor asked Ophelia about the fact that appellant regularly had hundreds of dollars in small
bills in his possession. Ophelia responded that she gave him the money from garage sales.
Even though she contended that appellant did not know how to drive, Ophelia acknowledged
that she had bought him a white Suburban. She said that Kimberly wanted it, but admitted that
Kimberly already had a truck. However, Ophelia maintained that Kimberly loved driving the
Suburban. When the prosecutor questioned her about her testimony that appellant could not tie his
shoes, Ophelia responded, “I don’t know about today. Like I say, maybe he done learned.”
The prosecutor also asked Ophelia if appellant played sports as a child. When she responded
that he did not, the prosecutor asked about baseball. Ophelia acknowledged that appellant had tried
baseball but did not have the patience for it. She denied the prosecutor’s allegation that appellant
was, for a time, the starting pitcher on a baseball team. She also denied that appellant had any
interest in bowling or boxing. In letters written to Kimberly, however, appellant had said that he was
the starting pitcher of his baseball team at school and that he enjoyed boxing and bowling.
The prosecutor also asked Ophelia if appellant had a record company. Ophelia responded
that her other son had such a company. The prosecutor then asked, “And you know that Carnell has
written dozens, in fact, hundreds of rap songs, don’t you?” Ophelia responded, “Anybody can write
rap songs,” but later said she was not aware that appellant had written any.
b. Appellant’s Sister
Appellant’s sister, Sabrina Mouton, testified that appellant cried all the time when he was
a baby, that he did not start walking until he was two years old, and that he did not start talking in
PETETAN — 24
a way that others understood until age four or five. She said he wet himself even when he was older.
She also said that appellant never played sports and “always just wandered around” the
neighborhood. Appellant had no special interests, did not play games, and did not even watch
television. Sabrina also stated that appellant could not ride a bicycle and that he never knew how
to count money.
When appellant was released from prison, he was unfamiliar with eating at a buffet-style
restaurant and he did not know how to use a cell phone. Sabrina said that she tried to teach appellant
how to use a cell phone, but he could not figure it out. When asked, “Did he ever figure it out?”
Sabrina responded, “I never knew, but he probably did.” Sabrina further testified that she helped set
up and furnish an apartment for appellant because he did not know what he needed. She said that
appellant could not use a microwave, that she was not successful in teaching him how to use it, and
that “he would put the wrong things in it.” Sabrina said she would go over to the apartment twice
a day to make sure appellant had enough to eat and to clean up because appellant would not clean
up after himself, would leave clothes on the floor, would leave food out, and would leave candles
lit for no reason.
Sabrina testified that appellant would write to her from prison, but his letters were difficult
to understand unless he had someone write for him. When asked why she would think someone
wrote a letter for him, she said that appellant’s writing “looked like something a preschooler or
kindergartner” would write, but if someone wrote the letter for him, then the letter would be in good
handwriting. Sabrina also stated that appellant had unrealistic expectations about what he could do,
saying that he wanted to be rich, to do music, or to have a business.
On cross-examination, Sabrina admitted that the constant crying as a baby was diagnosed
PETETAN — 25
by a doctor as a stomach problem. After being cross-examined about appellant having an interest
in boxing, Sabrina agreed that appellant showed some interest in extracurricular activities as he got
older but not as a child. When asked if appellant started developing more adult feelings and enjoying
sporting activities, Sabrina responded, “I’m sure he did, but I wasn’t there for that. I didn’t see that.”
On the subject of appellant’s ability to write, the prosecutor asked if his writing had improved
while in prison. Sabrina admitted that it had improved “a little bit.” The prosecutor subsequently
told Sabrina, “I’m going to show you what I’ve admitted into evidence as State’s Exhibit 126, and
I’m going to do the Carnell Petetan letter grab bag. Go ahead and pick a letter, any letter.” Sabrina
drew out of the bag a letter postmarked January 24, 2011. The letter read, in part,
I Hope and Pray when this letter reaches you it finds you in the best of health as well
as spirits in God’s Care and Protection as well as your love ones. Kim I want you to
know I was Glad to hear about your School progress and them welcoming you to Join
they organization.45
Sabrina acknowledged that the letter was in appellant’s handwriting. She further stated that “those
letters look clearer than my letters, and Carnell writes up and down, up and down, and out of the
margin and not clear at all.” When confronted with the fact that the letter to Kimberly that the
prosecutor had Sabrina read did not conform to her “up and down” description, Sabrina stated, “His
45
This text is taken from the actual letter contained in State’s Exhibit 126. The reporter’s
record containing the prosecutor’s reading of the letter fails to capture variances in capitalization,
and there are a few instances in which the prosecutor simply misread the letter. The reporter’s record
rendition of the letter is as follows:
I hope and pray when this letter reaches you it finds you in the best of health as well
or spirits in God’s care and protection as well as your loved ones. Kim, I want you
to know I was glad to hear about your school progress and them welcoming you to
join the orientation.
(Prosecutor’s repetition of part of the letter and interruptions omitted).
PETETAN — 26
looks neater on hers than it does on ours.”
Sabrina also acknowledged that appellant had been in prison since the early 1990s and had
never lived on his own before he was released from prison. And she admitted that appellant had
tried to better himself in prison and that he was able to formulate business plans for when he got out
of prison from books he obtained from the prison library.
When asked on redirect whether appellant was “able to eventually figure things out,” Sabrina
responded, “Just slowly. Never right off the bat, can’t just grasp it just as quick as we do.”
Whenever he has to learn something new, appellant “gets frustrated or just like he loses interest in
it or he just – like his mind just go blank, like he looking off like he don’t care to hear it.”
c. The Gauthiers - Aunt and Cousins
Appellant came to live with the Gauthier family when he was thirteen or fourteen years old.
Cathy Gauthier was appellant’s aunt,46 and she had two children, Caston and Kimberly (“Kimberly
Jackson”).47 Cathy testified that appellant was a little bit slower than her own kids, but she never
had to discipline him. Appellant was just a little different, “real quiet all the time.” Cathy was a bail
bondsman, and appellant wanted to be a bail bondsman or a rap singer. Cathy explained to him that
he could not be a bail bondsman because of prior felony convictions, but appellant did not seem to
understand that. Appellant had “big dreams.”
On cross-examination, Cathy testified that, when appellant was staying with her, he once
expressed concern that he might have gotten a girl pregnant. She also testified that appellant mailed
46
His father’s sister.
47
We refer to Kimberly Jackson by her current first and last name to avoid confusion with
the victim, who was also named Kimberly.
PETETAN — 27
her an article about bail bondsmen while he was in prison.
Caston testified that he was eight or nine years old when appellant came to stay with them.
Appellant had talked about being a bail bondsman, but Caston thought that was not realistic because
“that’s too way advanced for him.” On direct examination, Caston described appellant as “slow,”
but on cross-examination, Caston stated that he did not remember thinking of appellant as a retarded
person. Caston acknowledged that appellant understood that one of the possible consequences of
having sex with a woman was that she might end up giving birth to a child. Caston also testified that
appellant played hide-and-seek with him and that they played games and had fun together.
Kimberly Jackson was fourteen years old when appellant came to live with them. She
described appellant as “a little different” and “not on the same level, mind-wise,” being “slower.”
Appellant was her age, but she said that he could not do the same things she could do. She could
not remember any examples. When asked if she remembered anything specific about appellant
staying clean and his hygiene, Kimberly Jackson replied, “[Y]ou had to stay on him about it.”
d. Appellant’s Uncle
Thomas Kemper, appellant’s uncle,48 testified that appellant was “really slow” and “had
problems making decisions on his own.” According to Kemper, younger children would manipulate
appellant. Kemper also said that appellant would crawl up under a train even though other children
would beg him not to. Kemper testified that appellant was in Special Education classes because “he
couldn’t comprehend like any other kid.” When he was twelve years old, appellant had to be told
not to open the door when someone knocked without first asking who it is. Appellant let his hair
grow long, he would not comb it, he would not take a bath, and he would not put on a belt.
48
His mother’s brother.
PETETAN — 28
When appellant was released from prison, he wanted to be a businessman, but Kemper
testified that appellant “couldn’t understand how to go from A to Point Z.” Kemper said that
appellant had “great big dreams” but simple things about business, such as getting a DBA49 or
Assumed Name Certificate, had to be explained to him, “and even if you explained it to him, he still
did not understand.”
On cross-examination, the prosecutor asked Thomas if he was aware that appellant had
obtained a DBA. Kemper responded, “No, I’m not.” When the prosecutor replied, “So if he did that,
apparently he was able to take your advice and . . . he did get the DBA,” Kemper responded,
“Through Kim.” The prosecutor replied, “Well, you don’t know that, do you, sir,” and Kemper
responded, “Yes, sir, I do” because Kimberly “called me.” Then the following colloquy occurred:
Q. No. Thank you, sir. Just a moment ago, Mr. Kemper, when I asked you if you
were aware that your nephew had gotten a DBA, you said, no, you weren’t aware of
that, and yet the very next questions that I asked you, you started to say that you knew
that Kim got a DBA for him.
A. No.
Q. Now, let me just ask you: Did you know or did you not know before I asked you
the question?
A. No, I didn’t. I didn’t know, sir.
Q. And that’s all that I need to know, sir.
A. I didn’t know.
7. Appellant’s Prison Pastor
Edmond Bolton Stewart was a pastor involved in jail ministry. He testified that appellant
was difficult to talk to, because his mind would “just wander off to something else”—with appellant
49
Doing Business As.
PETETAN — 29
suddenly switching to a subject having nothing to do with what the conversation had been focusing
on. Stewart testified that this happened with appellant on a regular basis. Stewart conceded that he
first came in contact with appellant just three to four weeks before his testimony at trial, and he
admitted that he opposed the death penalty.
8. Psychological Testimony and IQ Tests
a. IQ Test in February 1991
Texas Juvenile Justice Commission records show that, in February of 1991, at age fifteen,
appellant was administered a child IQ test. The test yielded a verbal IQ score of 67, a performance
IQ score of 61, and a full-scale IQ score of 61.
b. Dr. Scott - Evaluation in November 1991
Before arriving at a juvenile justice facility, appellant had been taking the antipsychotic
medication Mellaril. In November 1991, Dr. Harold Scott, a psychiatrist, examined appellant to
determine whether he should resume taking that medication. Dr. Scott determined that appellant did
not need to do so. As a result of the examination, Dr. Scott also diagnosed appellant as having
conduct disorder50 and, based in part on previous test scores, “mild mental retardation versus
borderline intellectual functioning.” Dr. Scott testified that mild mental retardation generally
referred to a full-scale IQ score of 55 to 69 while borderline intellectual functioning referred to a full-
scale IQ score of 70 to 74. The phrase “versus borderline intellectual functioning” was a hedge on
the intellectual diagnosis because appellant’s passive-aggressive nature and his stubbornness
undermined the usefulness of the clinical interview as a measure of intellectual ability. “In other
50
His notes also stated that appellant was diagnosed as having oppositional-defiant disorder,
but Dr. Scott testified that that diagnosis was redundant because someone with conduct disorder
would necessarily have oppositional-defiant disorder.
PETETAN — 30
words,” Dr. Scott stated, “I don’t know that he is as low as he appeared. Stubbornness can
contaminate that and someone can look worse than they really are.” Dr. Scott also affirmed that
someone who chooses not to gain an education can also appear lower than he really is. And he
agreed that it was possible to fake poor results on an IQ test.
The prosecutor posed hypothetical questions about whether an IQ score of 74, or a score
falling within the range of 71 to 77, would indicate mild mental retardation. Dr. Scott said that
would indicate borderline intellectual functioning instead of mental retardation.
c. Dr. Coxe - IQ tests in April 1992
Dr. Ray Coxe, a psychologist, administered intelligence and achievement tests to appellant
at age sixteen in April 1992. This testing was conducted pursuant to direction from the Jefferson
County Juvenile Probation Office. Because the intelligence tests for both children and adults were
qualified for sixteen-year-olds, and because appellant’s attitude suggested that he was not putting
forth his best efforts, appellant was required to take both tests.51 Dr. Coxe testified that, on some
items and some tests, appellant “gave up very quickly without making too much of an effort” and
had “a little bit of an attitude about the testing.” Appellant’s full-scale IQ score on the child test was
64 and on the adult test was 74. Dr. Coxe testified that, when a child is administered both tests, it
is not uncommon for the adult test score to be as high as ten points higher than the child test score.52
Dr. Coxe also testified that, when questioned by him, appellant appeared to understand the
51
The tests were the Wechsler Intelligence Scale for Children (WISC) and the Wechsler
Adult Intelligence Scale (WAIS).
52
Dr. Joan Mayfield, whose testimony we discuss in detail later, referred to this potential
differential as an “error that is associated with that scoring of that age range.”
PETETAN — 31
role of his attorney.53 Appellant also understood that the prosecutor was an adversary of his,54 and
he indicated an understanding of the consequences of being found “guilty” or “not guilty” of the
serious offenses of which he had been accused. Dr. Coxe also testified that he found no evidence
that appellant suffered any delusions or psychosis.
Dr. Coxe acknowledged that there were many reasons aside from mental retardation for an
individual to score below a 70 on an IQ test. These reasons include brain damage from a head injury,
mental illness, a physical health problem, undiagnosed visual impairment, and a severe
communication disorder. Although appellant did not appear to suffer from any of these conditions,
Dr. Coxe also acknowledged that “an individual, if they are so motivated, can make themselves
appear less intelligent than they really are.” The honesty of the subject during testing was an
important part of determining the reliability of the test, and Dr. Coxe’s belief that appellant’s
performance on the first test reflected “some question about motivation” and was the result of “less
than full effort” spurred him to administer a second test. When asked if someone could fake a score
of 70 on an IQ test, Dr Coxe responded affirmatively as follows:
I think any test can be faked, no question about it, and that’s what you consider when
[you’re] administering it. You don’t accept the fact that all scores are accurate, so
you’re paying attention to that, you’re looking for that, and if certain behaviors, if
they occur, you kind of suspect it and do additional work.
When asked if he thought appellant was “an honest individual,” Dr. Coxe said, “I don’t think so.”
Dr. Coxe further testified that the first test—where he had doubts about whether appellant
was putting forth his full effort—was the child test, which yielded the lower IQ score. Dr. Coxe felt
53
Appellant stated, “She fights for me and helps me get out of trouble.”
54
Appellant stated, “The District Attorney tries to get you.”
PETETAN — 32
that the second test, the adult test that yielded an IQ score of 74, was a reliable indicator of
appellant’s functioning. That test had a standard error measurement of three points, which could
yield an IQ score as high as 77 or as low as 71. Dr. Coxe stated that an IQ of 74 would probably not
be used to classify someone as mentally retarded. Rather, he stated, “It’s borderline.”
But Dr. Coxe also testified that his “overall impression,” based on the results of testing and
on observations during interviews, was that appellant “was mildly retarded.” Dr. Coxe felt that the
achievement test scores—a reading score of 70, a spelling score of 61, and an arithmetic score of
46—were consistent with falling within a lower range. Dr. Coxe did not, however, conduct any
adaptive behavior testing. And Dr. Coxe acknowledged that someone who did not attend school
much—like appellant–would not be expected to score well on achievement tests.
d. Testing by the Adult Prison System
Travis Turner, the Vice Chairman of Classification in the Texas Department of Criminal
Justice (TDCJ), testified that an offender is given an initial IQ test upon entering the prison system.
If the offender scores below a certain cutoff, then a “secondary test”—involving adaptive behavior
screening—is given to consider whether the offender should be assigned to the “developmentally
disabled” program in the Hodge Unit. Appellant’s score on the IQ test was 69, so he was given the
secondary test. Appellant was not assigned to the Hodge Unit.
e. Dr. Correia’s Report - IQ test in 2012
In 2012, IQ testing was done as part of a Social Security disability assessment. Appellant
was administered the WAIS-III55 IQ test, which yielded a full-scale IQ score of 55. The psychologist
who conducted the test, Dr. Mark Correia, did not testify at trial, but his report was admitted into
55
Wechsler Adult Intelligence Scale - Third Edition.
PETETAN — 33
evidence. Dr. Correia diagnosed appellant as having antisocial personality disorder and mild mental
retardation. The “mild mental retardation” diagnosis was provisional “due to lack of supportive
documentation from the developmental period.”
Dr. Correia’s report included many comments about appellant’s appearance and demeanor.
During the testing, appellant was “casually, but appropriately attired,” and his speech was “clear and
well-formed.” Appellant presented an “aloof, self-absorbed manner . . . was largely disinterested in
others, but responded to questions in a reasonably direct and appropriate manner.” Appellant’s
“disinterested and aloof demeanor” was maintained through much of the evaluation. Appellant was
“quite impatient and demonstrated a tendency to quickly become overloaded cognitively by
complexity and respond with significant frustration.” His behavior was “impatient and
unsophisticated, with limited intellectual functioning adding to his modest repertoire of social skills.”
Appellant “had little interest in the exam, requesting repeatedly to be allowed to leave to
smoke a cigarette, use the restroom and take cell phone calls.” He seemed to “put forth an effort to
cooperate minimally and superficially only.” Dr. Correia’s evaluation suggested that appellant “is
able to perform tasks completely and appropriately, within reasonable periods of time, when properly
motivated to do so. Motivation is likely to be problematic, however.”
Appellant was “able to adequately recall information when properly motivated.” But he “had
little interest or ability to mentally manipulate information [in] his working memory.” Appellant’s
overall memory was estimated to be commensurate with his mildly deficient level of intellect
generally. Appellant’s judgment and insight appeared to be distorted. Dr. Correia found that
appellant had little insight into how his behavior and attitude affected others and that appellant
consistently blamed his problems on others and refused to accept responsibility for them. However,
PETETAN — 34
appellant was “able to understand appropriate behavior.”
f. Dr. Craig - Defense-Ordered Adaptive Behavior Testing
Dr. Ellis Craig, a psychologist, conducted an evaluation at the request of the defense to
determine whether appellant had adaptive deficits. He used the Adaptive Behavior Assessment
System II (ABAS-II), which uses people who know the subject (called “informants”) to assess the
subject’s adaptive behavior in a number of areas. Dr. Craig used the version of the assessment
system that was normed for thirty to thirty-nine year olds.56 In addition, Dr. Craig conducted the
assessment retrospectively, because no one had ever before conducted a standardized adaptive
behavior scale on appellant, much less during appellant’s developmental period (i.e., prior to age
eighteen), but he said that there was an earlier non-scored assessment that he thought seemed
consistent with the results Dr. Craig obtained.57 Dr. Craig explained that a retrospective assessment
is having respondents describe how the defendant was during the developmental period (prior to age
eighteen). Dr. Craig asserted that a retrospective assessment of an incarcerated individual was
necessary because a current adaptive behavior assessment in a jail or prison setting was not feasible,
due to the lack of opportunity to see how the person performs in everyday life.
In conducting this assessment system, Dr. Craig obtained assessments of appellant’s adaptive
functioning from appellant, his mother, an older brother, an older sister, and an uncle. The rankings
from highest to lowest were: brother, 53; uncle, 47; sister, 47; appellant, 42; mother, 40. The lowest
56
Dr. Craig stated, “There are both children and adult forms. The adult form was normed
on the population of age 16 to 89, and there are different norms for each – basically every 10-year
span, and so I used the ones from the age 30 to 39, which is Mr. Petetan’s age.”
57
It is unclear whether this is a reference to Dr. Scott’s evaluation in November 1991, Dr.
Correia’s notes in connection with the 2012 IQ testing, or some other evaluation unknown to us.
PETETAN — 35
possible score was a 40. Dr. Craig did not use appellant’s score “because there are some problems
with self-reports.” He discounted the mother’s assessment because her score was at the floor of the
scale and because her responses were not consistent. Dr. Craig also noticed that the uncle’s scores
had a different pattern from the other respondents, which may have reflected that the uncle had only
limited contact with appellant and had a different set of standards. Dr. Craig thought that the
brother’s and sister’s assessments “were probably the most accurate and most reflective of what
[appellant’s] actual day-to-day functional skills really are.” The brother and sister ranked appellant’s
social skills the highest, his conceptual skills second, and his practical skills as his weakest area. The
norm for the population on the ABAS-II was a range of 85 to 115, similar to the norm for IQ tests.
From this assessment, Dr. Craig concluded that areas of strength within social skills were that
appellant had friends, had good relations with his family, was able to interpret other people’s
emotions, and showed some ability with leisure skills, such as listening to music. Limitations in the
social area included the inability to understand jokes, being easily led by others, not engaging in
games or watching television, and the inability to be polite, to offer assistance, or to give gifts. Dr.
Craig found appellant’s conceptual strengths to be his ability to talk in complete sentences, his ability
to write, his ability to at least appear to listen to what he is told, and his having “pretty good self-
direction” (being able to go out alone in the community). Limitations in this area included having
very limited conversational skills, being unable to read menus, being unable to calculate correct
change, and being irresponsible with time commitments. Dr. Craig found appellant’s practical skills
to be his ability to walk to familiar locations, make simple meals, take medications, and dress
himself. Limitations included being unable to use a map, being a terrible housekeeper, and being
unable to make his own bed or to operate appliances such as washers, dryers, and microwave ovens.
PETETAN — 36
Dr. Craig also noted that the only eating utensil appellant used was a spoon, that appellant mainly
ate sandwiches, and that appellant did not necessarily dress himself well. And Dr. Craig related that
appellant had difficulty with administering first aid.
Dr. Craig concluded that appellant’s adaptive limitations far outweighed his minimal skills.
Dr. Craig acknowledged that appellant “does have skill areas” and that “writing ability, for example,
is one that seems to stand out.” What caused the adaptive limitations, Dr. Craig said, was “hard to
say, but one likely explanation is that there were many missed opportunities to learn these skills” due
to appellant spending “the majority of his life incarcerated.” Dr. Craig also indicated that appellant’s
“parental supervision was not such that he was expected to do it, or, you know, the training was
given to him, so he simply didn’t learn those skills.” Dr. Craig concluded that the adaptive
assessment scores fell within the range for moderate mental retardation—below the “mild”
retardation level.
On cross-examination, Dr. Craig conceded that the ABAS-II is not normed for retrospective
assessments and that no test currently exists that is normed for that purpose. When asked what
percentage of the population aged thirty to thirty-nine for which the particular ABAS-II assessment
was normed had been incarcerated for twenty years of their life, Dr. Craig replied, “I would say
zero.” Nevertheless, Dr. Craig stated that he asked the informants to rate appellant’s abilities at the
time he went into prison. The prosecutor construed this to mean when the defendant entered juvenile
custody at age fourteen or fifteen, but it may have been when the defendant went to the penitentiary
when he was sixteen.
In any event, the prosecutor went through the ABAS-II questionnaire and pointed to items
that could be inappropriate for a fourteen to sixteen year old and for which appellant was given the
PETETAN — 37
low score of 1 out of a possible score of 0 to 3:
• Calls to find out if a repair or order is ready.
• Calls a repair person if, for instance, the air conditioner or heater is not working.
•Takes people on trips to nearby places; for example, takes a child or family member
to a park.
• Asks a store clerk for product information before buying an item.
• Reads and follows instruction to assemble new purchases.
• Makes reminder notes or lists.
• Completes forms for business or services; for example, obtains a lease.
• Reads important documents; for example, credit card applications or rental
agreements.
• Balances a checkbook.
• Follows the maintenance schedule for home or car.
• Reserves tickets in advance for activities such as concerts or sports events.
Dr. Craig also acknowledged that the ABAS-II was created in 1999, when the internet existed and
tickets could be reserved online. When asked by the prosecutor, “That didn’t exist back at the time
we’re assessing this man, did it?” Dr. Craig responded, “You could do it by telephone.”
The prosecutor also elicited testimony that, despite the fact that appellant was not reported
as playing games, the questionnaire also included the item “keeps score when playing games,” for
which appellant was given a score of 1. Appellant was also given a score of 1 for the item “shows
sympathy for others when they are sad or upset,” but Dr. Craig admitted that such a score would also
be consistent with having antisocial personality disorder and that appellant had been diagnosed (as
an adult) as having antisocial personality disorder, as well being diagnosed (as a child) as having
PETETAN — 38
conduct disorder.58
The prosecutor also questioned Dr. Craig about the fact that appellant received a score of 1
on almost every home living task, including folding clean clothes, taking out the trash, clearing the
table after a meal, making the bed, making minor repairs, putting things in their proper place,
sweeping the floor, cleaning his room, cleaning the bathroom, mixing and cooking fairly complex
foods, and dusting the furniture. The prosecutor quoted from the manual, ABAS-II, Clinical Use and
Interpretation, as saying: “It is not uncommon for adolescents and young adults with antisocial
personality disorder or conduct disorder to have adaptive skill problems in the area of health and
safety, occupational performance, daily living, self-direction, and interpersonal skills.” When asked
if he agreed with that statement, Dr. Craig responded, “I think there is some truth to it.” And Dr.
Craig acknowledged that an overprotective family could result in an individual not learning a lot of
adaptive behaviors because the family members do things for him.
Dr. Craig also admitted that the pool of informants used to rate appellant’s adaptive behavior
was identified by the defense team’s mitigation specialist, and that every single person in that pool
was related to the defendant. Dr. Craig also testified that one of the things to be careful about in
conducting an adaptive behavior assessment is that some of the informants may have a vested
interest in the outcome of the interview.59 And Dr. Craig admitted that the interviews (except for
58
Outside the presence of the jury, Dr. Scott had testified that antisocial personality disorder
was not considered an appropriate diagnosis for anyone under age eighteen, but someone who
displayed what would be diagnosed as antisocial personality disorder in an adult would be diagnosed
as having conduct disorder.
59
In direct examination, Dr. Craig had testified, “Well, you want to make sure that the
person, first off, doesn’t have a vested interest in giving you incorrect information, that you can
assume that they are going to give you correct information, and to some extent, that’s a bit of a leap
of faith.”
PETETAN — 39
appellant’s) were conducted by telephone but that, ideally, interviews would be conducted in person
because that allows the interviewer to “pick up cues from people by facial expressions, body
posture.” Nevertheless, Dr. Craig maintained that “you can get a lot of the same thing from just
listening to voice quality.” Dr. Craig also admitted that one of the ways to ensure the reliability of
interview results was to conduct the ABAS-II interview multiple times with the same informant,60
but Dr. Craig conducted the interview only once per informant. On redirect examination, Dr. Craig
noted that he had a difficult time locating appellant’s sister when trying to conduct an interview, and
he wanted to find a teacher or a peer from before appellant’s imprisonment but could not locate
anyone in those categories who remembered appellant well enough to give an assessment.
g. Dr. Mayfield - Defense-Ordered IQ and Other Testing
Dr. Joan Mayfield, a neuropsychologist, conducted IQ tests and other testing at the request
of the defense. She also reviewed appellant’s educational history and prior testing. Appellant’s
educational record showed that he had to repeat third and sixth grades and that he was socially
promoted to fourth grade. He dropped out during ninth grade. Dr. Mayfield testified that she
reviewed the 2012 test with a full-scale IQ score of 55 and stated that “the scores are really consistent
from the scores when he was 16.”
Dr. Mayfield administered the WAIS-IV61 IQ test and obtained a full scale IQ of 52. The
subtests showed verbal comprehension at 54, perceptual reasoning at 56, working memory at 71, and
processing speed at 52. She also administered other tests that used the same basic scoring system
as an IQ test. Achievement tests showed appellant to be in the high 50s or low 60s (Brief Reading
60
Dr. Craig stated, “That’s how the people that developed the test establish reliability.”
61
Wechsler Adult Intelligence Scale - Fourth Edition.
PETETAN — 40
score of 63, Brief Mathematics score of 56, and Brief Written Language score of 61). On the Brief
Written Language test, Dr. Mayfield found that appellant “had difficulty organizing sentences that
had full words in it and made a thought, a complete sentence.” The TOMAL-2,62 a memory test,
gave scores on several components of memory ranging from 52 to 72, with most scores being in the
50s and low 60s.63 Most of these memory test scores placed appellant below the lowest one percent
of the population. The CREVT,64 a language test, yielded a general vocabulary score of 45, which
also placed appellant below the lowest one percent of the population.65
Appellant scored low on various tests that measured attention and executive functioning,
which did not use the same scoring system as an IQ test. These tests included the Halstead-Reitan
Battery, the Delis-Kaplan Executive Function System, the Conners’ Continuous Performance Test -
Second Edition (CPT-II), the Wisconsin Card Sorting Test, and the Comprehensive Trail-Making
Test (CTMT). Appellant’s scores on the Halstead-Reiten Battery were in the impaired range, and,
with one exception, all of his scores on the Delis-Kaplan were a 1 or 2 when the average score would
be a 10.66 Appellant’s scores on various subtests in the CPT-II resulted in a score of 99.9 out of 100
that a significant attention problem exists. Scores on subtests within the Wisconsin Card Sorting test
62
Test of Memory and Learning - Second Edition.
63
Scores were as follows: Verbal Memory Index 63, Nonverbal Memory Index 54,
Composite Memory Index 52, Delayed Verbal Recall Index 51, Attention/Concentration Index 72,
Sequential Recall Index 62, Free Recall Index 54, Associative Recall Index 65, Learning Index 63.
64
Comprehensive Receptive and Expressive Vocabulary Test.
65
Appellant also had low scores on motor and visual perceptual tests: Motor-Reduced Visual
Perception of 53, Visual-Motor Integration of 42, and General Visual Perception of 44.
66
He scored a 7 on one subtest.
PETETAN — 41
placed appellant in percentiles ranging from the bottom 2 to 10 percent of the population. And
appellant’s scores on the CTMT were so bad that Dr. Mayfield chose to discontinue it.67
In light of all her testing, Dr. Mayfield concluded that appellant “presents with global delays,
global delays in intellectual ability and academic and attention and executive functioning and
problem solving, memory, language, motor, and visual perception. There was global delays across
all domains.”
However, Dr. Mayfield admitted that “it doesn’t do any good to take a test if somebody is
not putting forth their best effort.” In an attempt to measure whether appellant was putting forth his
best effort, Dr. Mayfield administered the Test of Memory Malingering (TOMM) and the Rey 15
test. The results of the TOMM test showed appellant to be in the category of “inadequate effort
strongly suspected.” Appellant was also below the cutoff for adequate effort in the Rey test, i.e. the
score was positive for malingering.68 But Dr. Mayfield discounted these scores. With respect to the
TOMM, she said, “The research supports that the TOMM is not really a good test to use with people
who are mentally retarded. It is still used, and I used it.” She believed the problem with the TOMM
is that “it tends to give false positives.” Regarding both the TOMM and the Rey 15, Dr. Mayfield
stated that “the research is not really good on any of them, that they are really good” that the tests
“give[] you a lot of false positives” and “most of the research, when they norm . . . the people who
have mental retardation are excluded from that sample.” She testified that the WAIS-IV also has an
67
Appellant also had below average scores on a “Tapping” test, a significantly impaired
score for his dominant hand on the “Grooved Pegboard” test, and a low average result for his non-
dominant hand on that test.
68
To show adequate effort on that test, a person was expected to get at least three sets of
three pictures correct, but appellant was correct on only two sets and part of a third set.
PETETAN — 42
embedded validity test called Reliable Digit Span. Appellant met the cutoff on two of the three
subtests, which indicated adequate effort, but missed the cutoff on the other subtest. The
combination of scores on the subtests yielded an overall score of 12, which exceeded the requirement
of an overall score of 10 or better to indicate adequate effort. Dr. Mayfield concluded that appellant
exerted good effort on all of the tests.
When asked on cross-examination whether any of the capital-murder defendants she had
previously tested and interviewed had been deceptive with her, Dr. Mayfield responded, “I think that
the majority of the ones – these last that I have seen, I have gotten valid testing.” Nevertheless, Dr.
Mayfield acknowledged that studies had been conducted to estimate the frequency of deception in
these types of settings and that the studies had demonstrated a combined rate of probable and definite
malingering for pre-sentenced males referred for neuropsychological assessment to be as high as 54
percent. Dr. Mayfield agreed that appellant had a documented history of deception and manipulation
starting at age ten, when he committed burglary. Dr. Mayfield also agreed that depression or lack
of education could lower an IQ score. And, finally, she acknowledged that appellant’s scores on her
intelligence tests were the lowest that he “has ever achieved in his lifetime.”69
9. Childhood Acquaintance – Fredrick Nico
Fredrick Nico, the childhood acquaintance whom appellant shot, did not ever consider
appellant to be mentally retarded:
Q. As a child, did you ever look at him as a mentally challenged person?
69
When asked for the lowest possible score that one could make on the WAIS-IV, Dr.
Mayfield, responded, “I don’t know if it’s less than 45 or less than 40.” When asked whether the
lowest possible score one could make on the WAIS-III was 47, Dr. Mayfield responded that she
did not know but “that could be right.”
PETETAN — 43
A. No.
Q. Did you ever think of him as a poor, disabled individual?
A. No.
Q. As a retarded kid?
A. No.
Q. How would you describe Carnell?
A. As far as a kid, he was an average kid, you know, until he started getting in high
school, middle school and start, you know, want to go run the streets wild like
everybody else did and took it a step further.
Q. Took it a step further?
A. Uh-huh.
Q. You said you wouldn’t describe him as retarded. Would you describe him as
mean?
A. Hateful. Not mean.
10. School Officials
Dorothy Stamps, appellant’s first grade teacher, was routinely assigned “bad” children that
other teachers could not handle. She was the last stop before a child was sent to an alternative
school. Appellant did not give Stamps any problems in the fall, but, in the spring, he began laughing
frequently during classes. One time Stamps said, “If you’re going to do that, stand up and laugh until
you get tired.” Appellant stood up and laughed for about five or six seconds and then ran out of the
room. When the prosecutor asked Stamps if she thought that appellant was “retarded,” Stamps
responded, “If he was, he was a smart retarded person. He was wise.” When asked what she meant
by “wise,” Stamps responded, “He knew what he was doing.” She also testified that appellant was
PETETAN — 44
capable of doing the schoolwork if he applied himself.
Morris Lee, an assistant principal at appellant’s elementary school, regularly came in contact
with appellant because he was an “uncooperative” student. Appellant showed defiance to “virtually
every adult in a supervisory position” at the school. Lee characterized appellant’s mother as an
“enabler” who “catered” to appellant. When asked if he thought appellant had a mental disability,
Lee said, “Beyond being hard headed, no, sir. He was a – he’s not stupid. I mean, he’s not. Now,
he was an average child” who did not apply himself in appropriate directions.
Eddie Fowler, a principal at a middle school that appellant attended, testified that appellant
was placed into a special education program called “the self-management program.” This placement
was “not necessarily because he was so far behind, but because he was a discipline problem.” Based
upon a review of the school records, Fowler concluded that appellant was “pretty average.” Fowler
said that appellant’s testing in grade 4.6 showed him to be at grade level 4.3 or 4, so appellant’s
placement into special education “wasn’t because of his academics.”70 When asked, “So he wasn’t
in Special Education because of any mental defect or because he was retarded, was he?” Fowler
responded, “No.”
Fowler characterized appellant’s behavior as “very poor.” Fowler once caught appellant
smoking in a school restroom. Appellant denied that he was smoking, but Fowler had seen the
smoke come out of appellant’s mouth.
In 1989, Ramona Pitre was appellant’s teacher at an alternative school for students with
behavioral problems. Appellant was angry and sometimes would not do his work. He would talk
70
Fowler’s recitation of scores for fourth grade as being only slightly below grade level
appears to be inconsistent with the CAT transcripts in the record. See supra at part II.B.5.
PETETAN — 45
back to Pitre, and he was “always veering away from the rules.” One time, appellant threw a tray
of food on Pitre’s head, an occurrence that she had never experienced before or since. When asked
whether she thought appellant was mentally retarded, Pitre replied, “Oh, no.” When asked to
elaborate, she explained, “Because his behavior was the norm of students who don’t want to be
punished for whatever they did to be out of the way of somebody else, yet be in the solitude area”
of the alternative school. When asked whether appellant appeared to be one of those students that
had a learning disability, she responded, “Oh, no, no.”
11. Criminal Justice Officials and Prison Inmates
In February of 1994, Speedy Bryant was appellant’s cellmate. He was appellant’s cellmate
for only a week and a half, because, during that time, appellant raped him.
Warren Kroll was working in the Ferguson Unit of TDCJ while appellant was incarcerated
there in 1994. On July 6 of that year, in a routine shakedown of appellant’s prison cell, Kroll
discovered two homemade weapons hidden underneath appellant’s mattress: (1) a sock with a
padlock attached to it and (2) a sharpened piece of steel five-and-a-half inches long with a towel
wrapped around part of it. Appellant admitted that the weapons were his and that he had memorized
the combination to the padlock, which was needed to remove the padlock from the sock. Appellant
made these weapons while he was in “closed custody,” which was an area of the prison unit for
chronic rule violators.
In March 1995, the first day inmate Daniel Gunter was assigned to the prison block in the
McConnell unit, he met appellant. Appellant told him that, if he needed anything, appellant could
get it. “It didn’t matter what it was or where it came from, he could get his hands on it.” Appellant
later indicated that he was interested in a sexual relationship with Gunter. When Gunter repeatedly
PETETAN — 46
turned him down, appellant began issuing threats. At some point, someone had knocked Gunter
unconscious, and he later awoke to find himself in appellant’s cell with his pants off and with
appellant holding a homemade weapon to his throat. The weapon was made out of a part of a frame
that was torn off the window in the day room of the prison. Something was wrapped around the
frame piece to serve as a handle. Appellant sexually assaulted Gunter and, brandishing the weapon,
threatened to kill him if he told anyone.
On September 27, 1998, appellant had a fight with another inmate, Azikiw Daniels, at the
Estelle Unit in TDCJ. Daniels hit appellant in the head with a pipe. However, after later discussions
in the day, Daniels believed that the altercation between him and appellant had been resolved.
Two days later, however, Robert Blanks, a TDCJ officer who worked in the food service
department, saw appellant and another inmate walk into the kitchen area wearing hairnets. Appellant
had previously worked in the kitchen, but he was no longer assigned there.71 A security guard,
assuming that the two men were assigned to work there, had let them in, but Blanks, knowing that
was not their work assignment, moved to intercept them. Before Blanks could do so, however,
appellant and his cohort pulled out homemade knives and stabbed two other inmates, one of whom
was Daniels.
Daniels had originally become acquainted with appellant in prison because appellant talked
about owning a record company called Cartel Records. Daniels had asked appellant “how you get
that started,” and appellant showed him how to file a DBA form. Daniels later read a book on the
subject, which confirmed that appellant’s instructions were correct. Appellant had also generally
explained that an artist receives only a percentage of money from each record sale.
71
The other inmate had never worked in the kitchen.
PETETAN — 47
In 2004, appellant sexually assaulted another cellmate, Concepcion Rosas.
Mattie Howe was appellant’s parole officer in 2012. Howe had one-on-one meetings with
appellant and was also a facilitator in an anger management class appellant attended. Howe had no
trouble communicating with appellant, and appellant had no trouble understanding concepts and
communicating in the anger management class. When asked whether he felt appellant was mentally
retarded, Howe responded, “Not from what I have seen of mentally retarded people, no, sir.” Howe
also testified that appellant never had a positive result on a drug test during his supervision.
Mubarak Ali was incarcerated for three to four days at the McLennan County jail with
appellant while appellant was awaiting trial in the present case in 2014. Ali testified, “Mr. Petetan
told me, he say if he act like he’s mentally sick, he cannot get the death penalty.” Appellant also said
that his aunt in Louisiana was a bondsman who could help Ali bond out of jail. When Ali asked
appellant to contact his aunt on Ali’s behalf, appellant said that he could not use the phone because
“he’s telling the Court that he’s mentally sick.” At Ali’s prodding, appellant later called his mother
and mentioned to her Ali’s bond situation. Ali bonded out of jail the next day.
12. Appellant’s Tattoos
Appellant had a number of tattoos that appeared to signify his understanding of various
subjects. He had a dollar sign between his eyes and three teardrops under his left eye. Jay Hart, a
gang expert employed by TDCJ, testified that the teardrops signify “doing time or the death of a
loved one.” The letters “TGR” were tattooed over appellant’s left eye and a cross was tattooed on
the right side of his neck. Appellant also appeared to have a tattoo of the letters “GC,” which may
have stood for his affiliation with the 357 Graveyard Crip gang. “Boss Hustler” was tattooed across
appellant’s neck, and Hart stated that “hustler” could refer to a gang member who deals drugs,
PETETAN — 48
hustles money, or engages in illegal activities. A crown was tattooed on the left side of appellant’s
neck, along with the words “PA Don,” which appeared to be a nickname. On appellant’s chest was
a picture of Jesus and the devil playing chess with the devil winning. On appellant’s stomach was
a portrait of Ulysses S. Grant, with the word “Underground” on top and “Legend” on the bottom.
On appellant’s back were the words, “Don Cartel.” Appellant also had tattoos of the words “Rolls
Royce” and “Bentley.” On appellant’s right shoulder was a portrait of Benjamin Franklin that is
commonly seen on the one-hundred-dollar bill. The Franklin portrait had tattoos corresponding to
a mirror image of the tattoos on appellants face. Appellant also had a tattoo of the character Tony
Montana in the movie Scarface. Underneath that portrait were the words “Tripple Gold” and “3G.”
Across appellant’s right arm was the word “Cartel,” and appellant had a fresher tattoo of “Kimberly.”
Appellant also had a tattoo of “409”—the Port Arthur area code. Appellant had tattoos of a
microphone and music notes. There were also tattoos of the words “Trill Life,” a money bag, a
spade, a street address, a couple of dice reading “3” and “5,” a marijuana leaf, a liquor bottle, the
words “Short Texas,” a skull on a poster, and the words “High Rollers.”
13. Appellant’s Letters
Several of appellant’s letters to Kimberly were read aloud by the prosecutor, and the jury had
access to many more written letters. It is not practical to include in this opinion all of the letters read
by the prosecutor, much less all of the letters to which the jury had access. But by way of example,
we include a portion of the first letter read by the State, which gives the reader a sense of appellant’s
writing style and of his ability to perform calculations and to think creatively (letter dated 10-31-10):
Kim, I Hope and Pray when this letter reaches you it finds you in the best of health
as well as spirits in God’s Care and Protection. as far as myself im Just takeing
things one day At a Time, staying solo and low key missing my baby. Check this out
PETETAN — 49
baby. I got an idea that will work only if you Put it to action and execute, it’s a
Raffle a watch its sold at wholesale price and when you Raffle it off you can sell
Tickets at 25.00 let’s say you sale 100 tickets that’s $2,500 all you will need is
some flyers the watch and a cell phone. I got a hundred on my books I’ll get that out
so you can order the watch. get the flyers printed up and Pass them out have a
Picture of the watch on their Real Diamond watch 0.12 carats. your cell #, and ticket
info your homegirl who do hair you told me about, she can hand out a few flyers,
Kristain, you can at school and other places. I wrote out a sample of how it goes. I
just wanna try DA come up with something to help out Just let me know whats up,
and I’ll come your way to get the watch.72
14. Documents in Appellant’s Suburban
After appellant was arrested for this offense, law enforcement found the several documents
in his white Suburban. One of those documents was a printed out set of directions, by Google or
Mapquest, from Waco to Port Arthur. There was also a document entitled “Cartel Boxing
Promotions Business Plan Prepared By Petetan.” The document included sections entitled,
“Executive Summary,” “Company Summary,” “Services,” “Marketing Analysis Summary,”
“Marketing Strategy,” “Management Summary,” “Financial Plan,” “Vision,” “Boxing,” and
“Biography.” The “Biography” section contained the following:
BIO
Born in Port Arthur, Texas, Carnell Petetan, Jr. has his share of ups-and-downs. The
tough street of his hometown groomed him into the dynamo he is today, and now,
armed with a wealth of resources, skills and abilities, he is set to launch the long
anticipated CARTEL BOXING PROMOTIONS.
Co-Founder of Tripple Gold Records, along with brother and business partner,
Herbert Mouton, Carnell Petetan has emerged with a vision so ambitious, success is
eminent [sic].
72
Stylistic errors in original. Two instances of “I’ll” may be read as “ill”—due to the
ambiguous nature of the handwriting. We have attempted to faithfully reproduce this passage from
appellant’s actual written letter contained in State’s exhibit 126 rather than from how this passage
appears in the court reporter’s record (see p. 335, pdf file, combined exhibit volumes).
PETETAN — 50
The key feature and strength behind Cartel rests in the fact that for eighteen years of
his life, he survived in Texas prisons; some of the deadliest in the nation. This is
where he honed his leadership abilities and educated himself.
Now this wise and intelligent young man is ready to take on the world. Surrounded
by a support team of experts, his Cartel Boxing Promotions will quickly become an
industry great in the years to come.
You’ve seen the rest, now prepare for the best.
Carnell enjoys reading, video games, and brainstorming. The author of over 800
songs, Carnell is also the respected and rising rap star, “Don Cartel”. Look for the
documentary, “unshackled”, [sic] coming soon. With success looming over him,
Carnell promises to stay grounded and Always put God First.
C. Analysis
1. General Intellectual Functioning (IQ)
The adult IQ test administered by Dr. Coxe in 1992, when appellant was sixteen years old,
yielded a full-scale IQ score of 74, which is above the score of 70 that is generally considered the
ceiling for mental retardation. If one accepts Dr. Coxe’s testimony that this IQ test had a three-point
margin of error, then the score at the low end of the margin-of-error range would be 71—still above
the general ceiling for mental retardation, albeit barely. This was some evidence that appellant’s
general intellectual functioning fell above the range for mental retardation.
Although every other IQ test that appellant took yielded lower scores that were within the
range of mental retardation, the jury had reason to believe that the adult test administered by Dr.
Coxe yielded the most reliable result of all the IQ tests that appellant had taken. Dr. Coxe believed
that the result was more reliable than the result obtained from the child version of the IQ test that he
had previously administered because appellant did not put forth his best efforts when taking the child
version of the test. Little is known about the circumstances surrounding the IQ test administered in
PETETAN — 51
1991 or the IQ test administered by TDCJ. Appellant had a motive to perform poorly on the 2012
IQ test in order to receive Social Security disability payments, and Dr. Correia observed that
appellant’s efforts during that testing were “to cooperate minimally and superficially only.”73
Appellant had an even greater incentive to score low on the tests administered by Dr. Mayfield, in
order to avoid the death penalty, and correspondingly, that testing yielded the lowest IQ score
appellant had ever received. And appellant’s scores on two tests administered by Dr. Mayfield to
detect malingering were positive for malingering.74 Dr. Coxe testified that he did not think that
appellant was an honest individual, and Dr. Mayfield acknowledged that appellant had a documented
history of deception and manipulation.
Also, the jury could reasonably infer from the testimony of psychological experts and
education personnel, and the up and down fluctuation of CAT scores from year to year, that appellant
was generally uninterested in exerting full effort on testing and that he became easily discouraged
when questions became somewhat difficult. As a result, the jury could have reasonably believed
that, even when he had no specific motive to lower his score, appellant’s test scores understated his
intelligence.
Further, the jury could have reasonably believed that appellant’s failure to score well on CAT
and the later achievement tests was due to his failure to learn the material that he was being taught
in school and that that failure to learn was in turn due to his failure to attend school and his attitude.
Notably, appellant’s grades and his scores on CAT tests seemed to be worse in general in years in
73
Evidence in the record suggests that appellant was successful in receiving social security
disability benefits.
74
Appellant’s performance on part of the digit-span subtest for the WAIS IV was also
positive for malingering, though his score on the digit-span subtest as a whole was acceptable.
PETETAN — 52
which appellant had more absences (his initial third grade year and his fourth grade year). Moreover,
appellant did not complete school beyond the ninth grade, and when he was in school, he was often
in special classes or an alternative school because of attitude problems. Consequently, even though
Dr. Coxe was influenced by appellant’s 1992 achievement test scores in concluding that appellant
was mildly mentally retarded, the jury could have reasonably believed that those low scores reflected
appellant’s failure to learn as a result of his attitude and were not an indication of mental retardation.
In addition, the jury could have given weight to the testimony of four different education
professionals—two teachers, a principal, and an assistant principal—that appellant was not mentally
retarded but was a person of average intelligence with major attitude problems. Appellant’s
diagnoses for conduct disorder and antisocial personality disorder further buttress these assessments
that appellant’s problem in school was caused by his attitude and not by a lack of intelligence. The
jury also had the testimony of childhood acquaintance Nico that appellant was not mentally retarded,
as well as the testimony of one of appellant’s cousins that he did not remember thinking of appellant
as a retarded individual. And the jury also had evidence that, at least at some point while growing
up, appellant abused alcohol.
The jury also had appellant’s letters, the documents found in his car, and his trial testimony
to evaluate. Although appellant’s letters are not the writings of a scholar, and they likely reflect his
substandard educational background, a jury could reasonably believe that these writings were not
the writings of a mentally retarded person. Appellant’s business plans revealed an individual who
thought strategically about making money. And the jury was in a position to observe appellant while
he testified. Although we are not in a position to evaluate his demeanor on the stand, appellant’s
testimony in the record seems to be reasonably coherent and effectively communicated.
PETETAN — 53
Appellant also showed a degree of sophistication in carrying out crimes, in prison life, and
in his relationship with Kimberly. He wore a hairnet to successfully lull a prison guard into allowing
him into the prison kitchen so he could stab a fellow inmate. While in prison, he created a weapon
out of a sock and a padlock and created a different weapon out of a part of a window frame and a
towel. He accurately explained to a fellow inmate how to file a DBA form. Through the
communications he had with Kimberly while he was in prison, appellant and Kimberly developed
a romantic relationship that led to marriage. When that relationship soured, appellant successfully
cut off Kimberly’s cell phone service. After he assaulted Kimberly in Port Arthur, appellant cut
himself with a knife to help supply evidence for a defensive theory that Kimberly was the aggressor,
which was consistent with his later testimony at trial.
And appellant engaged in a relatively sophisticated scheme to murder Kimberly and frame
Miller for that murder. Appellant used a stranger to help him scout out Kimberly’s apartment, and
he tricked a neighbor into knocking on Kimberly’s door so that she would open it without knowing
that appellant was there. Appellant schemed to frame Miller for the murder by using the false
promise of drugs to lure Miller to go with him to Waco, attempting to transfer gunshot residue to
Miller’s hands, and telling a clerk to call 9-1-1. This attempted frame-up of Miller was consistent
with appellant’s trial testimony that Miller was actually the murderer.
And after appellant was caught, he then conceived of the idea of eluding the death penalty
by claiming mental sickness. Appellant’s statement while awaiting trial on the current capital
murder charge that he could not get the death penalty if he was mentally sick—and supporting the
claim by refraining from using the phone—indicated an accurate understanding of either the
principle that mentally retarded persons could not be executed or the principle that a person could
PETETAN — 54
not be executed if he was mentally incompetent to stand trial or to be executed.75
It is true that three psychological experts—Dr. Coxe, Dr. Correia, and Dr.
Mayfield—diagnosed appellant as mentally retarded, with significantly subaverage intellectual
functioning. Dr. Scott also suggested that appellant was mentally retarded but hedged his bets with
the more ambiguous diagnosis of “mild mental retardation versus borderline functioning.” No
psychological expert testified definitively—during appellant’s capital murder trial—that appellant
was not mentally retarded.76 And we have recognized that test scores showing an IQ above 70 do
not necessarily preclude a diagnosis of mental retardation.77 But “[a]lthough experts may offer
insightful opinions on the question of whether a person meets the psychological diagnostic criteria
for mental retardation, the ultimate issue” is for the factfinder.78 We also recognize that Dr. Mayfield
somewhat discounted the test score of 74 because of a not uncommon variance that could occur
between child and adult versions of intelligence tests at the time the 1992 adult test was
administered. And we acknowledge that Dr. Mayfield also discounted the accuracy of the tests for
malingering. Nevertheless, we conclude that a finding that appellant did not suffer from significantly
75
See Owens v. State, 473 S.W.3d 812, 816 (Tex. Crim. App. 2015) (“It violates principles
of due process to put an incompetent person to trial.”); Mays v. State, 476 S.W.3d 454, 457 (Tex.
Crim. App. 2015) (“A person who is incompetent to be executed may not be executed.”).
76
During appellant’s incompetency trial, Dr. Michael Pittman testified that appellant was
not mentally retarded. See infra at part III.A. This testimony was not mentioned during appellant’s
capital murder trial.
77
Ex parte Cathey, 451 S.W.3d 1, 10-11 & nn. 21-22 (Tex. Crim. App. 2014).
78
Briseno, 135 S.W.3d at 9. See also Ex parte Moore, 470 S.W.3d 481, 487 (Tex. Crim.
App. 2015) (“opinions of mental-health experts inform the factual decision, [but] they do not
determine whether an individual is exempt from execution under Atkins.”); Cathey, 451 S.W.3d at
9-10 (“Although psychology and psychologists inform the factual decision, they do not determine
whether an inmate is exempt from execution under Atkins.”).
PETETAN — 55
subaverage general intellectual functioning sufficient to meet the first prong of Atkins was not
against the great weight and preponderance of the evidence so as to be manifestly unjust. We
conclude that there was legally and factually sufficient evidence for the jury to find that appellant
did not suffer from significantly subaverage general intellectual functioning because his IQ was
above 70 and his actual intelligence was in line with, or better than, the IQ test score of 74. This
conclusion alone is enough to reject appellant’s sufficiency claims because he must prevail on all
three prongs of the Atkins inquiry to obtain relief. However, we will also address the sufficiency of
the evidence on the issue of adaptive functioning.
2. Adaptive Functioning
The record indicates that, as a result of scoring 69 on an IQ test administered upon entry into
prison, appellant was administered a “secondary test” involving adaptive behavior screening. We do
not know the details of that test or how appellant scored, but the jury could have reasonably inferred
that the test results did not indicate significant adaptive deficits because appellant was not assigned
to the “developmentally disabled” program in the Hodge Unit.
We do have detailed testimony about the ABAS-II administered by Dr. Craig. However, the
administration of the ABAS-II in appellant’s case suffers from several general methodological flaws.
First, the assessments of appellant’s adaptive functioning were retrospective—based on informants’
memories of appellant’s adaptive functioning at around ages fourteen to sixteen. Dr. Craig admitted
that the ABAS-II was not normed for retrospective assessment. Second, Dr. Craig used the version
of the test normed for persons aged thirty to thirty-nine, but that age range far exceeded the age or
ages for which appellant was being assessed—ages fourteen to sixteen. One would expect that an
adult at or approaching middle age would have many more life skills than a teenager, so rating a
PETETAN — 56
teenager on such an adult test would seem to be inherently likely to produce a result indicating a lack
of adaptive skills. The State’s cross-examination addressed items in the ABAS-II questionnaire that
seemed appropriate for an adult but inappropriate for an adolescent. A third flaw is that the test was
normed in 1999, but the behavior being assessed occurred in 1993 or earlier. One major social and
technological change occurred between these years—the rapid expansion and widespread use of the
internet. A fourth general flaw in the administration of the ABAS-II to appellant is that only
appellant and family members were consulted. Dr. Craig acknowledged the need to be careful about
using informants with a vested interest in the outcome, but all of the informants here had a vested
interest—appellant to save himself and the others to save a family member from the death penalty.
A fifth flaw is that only one interview was conducted for each informant. Dr. Craig admitted that
one of the ways to ensure reliability was to conduct the interview with each informant multiple
times. Finally, Dr. Craig admitted that in-person interviews were the ideal, so that the interviewer
could pick up cues by looking at facial expressions and body language, but the interviews (except
for appellant’s) were conducted over the telephone.
There were also specific reasons to question the reliability of the ratings given by the various
informants. Dr. Craig discounted appellant’s mother’s assessment because it resulted in the lowest
possible score of 40 and because she was not consistent in her responses. He discounted the uncle’s
assessment because his responses reflected a different pattern than the other informants. And he did
not use appellant’s assessment because of problems with self-evaluation. We also observe that the
score from appellant’s self-assessment was 42, only two points higher than the floor of 40.
That leaves the assessments by appellant’s brother and sister. The brother did not testify, but
the sister’s (Sabrina’s) testimony provides several reasons to think that her assessment was
PETETAN — 57
inaccurate. Sabrina said that appellant had a problem with wetting himself, even when he was older,
but this assertion was not corroborated by any non-family member, and evidence from Dr. Correia’s
report indicates that appellant knew how to take restroom breaks. Sabrina said that appellant could
never count money, but appellant’s own statements and the testimony of Miller indicate that
appellant had no problem counting money. She suggested that appellant had no special interests and
did not play games, but appellant’s own statements indicated that he was interested in music, boxing,
and bowling. Sabrina indicated that appellant could not use a cell phone, but there was evidence
from several sources that appellant did in fact know how to use a cell phone. She made statements
about appellant’s writing, but those statements were contradicted by the letters he wrote to Kimberly.
At trial, Sabrina acknowledged that appellant might have improved in some of these areas but that
she had not observed it.
Moreover, appellant’s lack of some life skills after he was released from prison can be
explained by the fact that he simply lacked the opportunity to learn some of these life skills because
of his long incarceration in prison that began when he was a juvenile. Appellant’s initial lack of
familiarity with buffet restaurants and cell phones, and his failure to cook his meals and clean his
apartment, could all be explained in this fashion. Another explanation or partial explanation for
these things could be that appellant was lazy and self-centered and was content to allow others to do
these tasks for him.
For the above reasons, the evidence was both legally and factually sufficient for a jury to
conclude that appellant failed to show deficits in adaptive functioning indicative of mental
retardation. In any event, we also consider the factors outlined in Briseno to determine whether any
adaptive deficits are an indication of mental retardation or are, instead, an indication of a personality
PETETAN — 58
disorder.79 The psychological evidence indicates that appellant has had “antisocial personality
disorder” as an adult and “conduct disorder” as a juvenile, and almost all of the Briseno factors
weigh against a finding of mental retardation. Although all of the family members who testified at
trial said they considered appellant to be mentally “slow” when he was a child,80 and some of them
indicated that this was a serious problem that required him to be in special education classes, all of
the school personnel who testified said that appellant was an average student with attitude problems.
Others such as a childhood acquaintance (Nico) and appellant’s parole officer also did not perceive
appellant to be mentally retarded.
Some of appellant’s crimes (e.g., shooting Nico) might be considered impulsive acts, but
much of his criminal conduct, including raping or assaulting other prisoners, and murdering
Kimberly, showed forethought and planning. Although Dr. Craig concluded that appellant was
“easily led,” appellant’s criminal conduct uniformly indicates otherwise. Many crimes, such as the
rape of fellow inmates, were committed by appellant alone. Appellant had a co-conspirator when
he assaulted Daniels in the prison kitchen, but it was appellant who had the grudge against Daniels
and appellant who had previously worked in the kitchen. Appellant also acted in a leadership role
when he lured Miller into going with him to Waco pursuant to appellant’s plan to murder Kimberly.
In addition, the evidence shows appellant’s conduct in response to external stimuli to have
been rational, though often socially unacceptable, and appellant has shown the ability to respond
coherently, rationally, and on point to questioning. The main contrary evidence on the latter point
79
Griffin v. State, 491 S.W.3d 771, 799 (Tex. Crim. App. 2016); Ex parte Hearn, 310
S.W.3d 424, 428 (Tex. Crim. App. 2010); Briseno, 135 S.W.3d at 8.
80
Caston, however, had said that he had not considered appellant to be retarded.
PETETAN — 59
was the testimony of a prison pastor who met appellant only a few weeks before his capital murder
trial when appellant had every incentive to fake mental retardation or mental incompetency.
Further, appellant has repeatedly shown an ability to hide facts or to lie effectively in his own
interests. Appellant effectively hid weapons in prison and used them to assault and rape other
inmates. He effectively presented a false persona to Kimberly while he was in prison that caused
her to fall in love with him. He effectively lied to Miller to lure him to Waco and to a store clerk to
call 9-1-1 on his behalf as part of constructing a frame-up story. Appellant’s history is in fact one
of a deceptive and manipulative person. And finally, the present offense shows forethought,
planning, and complex execution of purpose, as we have already explained.81
We conclude that there was evidence that appellant did not suffer from deficits in adaptive
functioning that were indicative of mental retardation, and the conclusion that he did not suffer from
such deficits was not so against the overwhelming weight and preponderance of contrary evidence
so as to be manifestly unjust.
3. Conclusion
Having found the evidence to be legally and factually sufficient to support a negative finding
on both the general intellectual functioning and adaptive functioning prongs—when a negative
finding on either prong would suffice—we conclude that the evidence was legally and factually
sufficient to support the jury’s negative answer to the issue of mental retardation. Points of error ten
and eleven are overruled.
III. INCOMPETENCY TRIAL
A. General Background
81
See supra at part II.C.1.
PETETAN — 60
Before his capital murder trial, appellant had a jury trial on whether he was incompetent to
stand trial on the capital murder charge.82 In such a proceeding, commonly referred to as a
competency hearing, the defendant has the burden to prove incompetency by a preponderance of the
evidence.83 A person is incompetent to stand trial for a criminal offense if he does not have: (1)
sufficient present ability to consult with his lawyer with a reasonable degree of rational
understanding, or (2) a rational as well as factual understanding of the proceedings against him.84
This standard is required both by statute and by a defendant’s right to due process under the United
States Constitution.85
The parties presented conflicting expert testimony on whether appellant was incompetent to
stand trial. Dr. Ollie Seay, a psychologist hired by the defense, reviewed records, conducted a
clinical interview of appellant, and, because he believed appellant to be mentally retarded,
administered the Competency Assessment for Standing Trial for Defendants with Mental Retardation
(CAST-MR). Appellant’s scores on the CAST-MR were “just a little above persons found
incompetent to stand trial, still within that range of persons found incompetent to stand trial, but
below those found competent to stand trial.” Dr. Seay acknowledged that the test was just one tool
and not conclusive. He also said that labeling someone as intellectually disabled does not
automatically equate with being incompetent and that there has to be something specific that relates
82
See TEX . CODE CRIM . PROC. art. 46B.051.
83
Id. art. 46B.003(b).
84
TEX . CODE CRIM . PROC. art. 46B.003(a); Turner v. State, 422 S.W.3d 676, 689 (Tex.
Crim. App. 2013) (citing Dusky v. United States, 362 U.S. 402 (1960)).
85
Turner, 422 S.W.3d at 688-89.
PETETAN — 61
to the requirements for competency. Based on the totality of his work on appellant’s case, Dr. Seay
expressed the opinion that appellant had a limited capacity to understand the charges against him and
potential consequences and that appellant did not have sufficient capacity to consult with a lawyer.
Dr. Michael Pittman, a psychiatrist appointed by the Court, reviewed records and conducted
a clinical interview of appellant. Dr. Pittman concluded that appellant was not mentally retarded but
did seem to have a low intellect and that appellant was competent to stand trial.
B. Conversation about Replacement of Attorney
Stan Schwieger was appellant’s former defense attorney. In point of error one, appellant
contends that the trial court erred at the competency hearing in excluding Schwieger’s testimony
about a conversation with appellant about Schwieger being replaced as appellant’s attorney.
Appellant claims that the trial court improperly allowed the State to invoke appellant’s attorney-
client privilege.
1. Trial Proceedings
Schwieger was appointed to represent appellant when he was charged with murdering
Kimberly. But when appellant’s charge was upgraded to capital murder, Schwieger had to be
replaced because he was not on the list of attorneys eligible for appointment in death penalty cases.
At the competency hearing, the defense wanted Schwieger to testify about the difficulty he
had in explaining to appellant why Schwieger could no longer represent him. The State objected on
the basis of appellant’s attorney-client privilege:
Mr. Schwieger . . . is about to get into privileged matters that occurred between this
defendant and himself in violation of the attorney-client privilege, and I’m under no
understanding that that privilege has been waived, and, in fact, if he’s incompetent,
as the defense says, he’s not capable of even waiving that privilege.
PETETAN — 62
After some back-and-forth between the prosecutor and defense attorney, the trial court held a hearing
outside the presence of the jury.
The trial court began by saying, “Unless there is a knowing and intelligent waiver from this
defendant regarding any communication he has had with any counsel appointed to him, we’re not
even going to get close to this issue. You all better tell me why you think that you can go into these
matters.” After some arguments from the parties regarding the nature of the testimony to be elicited,
defense counsel proffered the following questions and answers that he wished to elicit:
Q. Stan, can you -- did you have any kind of difficulty at all communicating with
Carnell when you started to explain to him why you were having to withdraw from
representation?
A. Yes.
Q. Was he able to understand if you put it in common legal terms that you would
normally use with an average client?
A. No. I tried to explain that I was not qualified to handle a death penalty case and
that there were certain qualifications, just going through the general legalese of this,
and I was not getting through.
Q. Okay. In order to get through to him, what kind of terms did you have to use?
A. Well, I understand I was probably a bit more than blunt, but I basically told him
eventually that they were going to try to stick a spike in his arm and try to kill him
as a result of this offense.
Q. So very graphic terms before he could understand what you were saying?
A. Yes.
The State contended that the questioning involved communications protected by appellant’s attorney-
client privilege. Defense counsel responded that the State could not invoke appellant’s attorney-
client privilege and that, in any event, the content of communications were not being revealed.
PETETAN — 63
When the trial court expressed skepticism about the latter proposition, defense counsel proffered a
truncated version of questions and answers to elicit from Schwieger:
Q. Did you have difficulty communicating with him?
A. Yes.
Q. Were you finally able to get to him?
A. Yes.
Q. How?
A. By using very graphic terms.
The State contended that the truncated colloquy still revealed the content of communications. When
the trial court told defense counsel, “But you wanted the jury to hear exactly what was said,” defense
counsel responded, “I would have been satisfied with ‘graphic terms,’ Your Honor.”
The trial court then asked, “Well, how does that help you, anyway?” Defense counsel
responded, “Because it’s obvious to the jury then, that Mr. Petetan has difficulty communicating with
an attorney, which is the heart of why we’re here, isn’t it?” The trial court responded, “Unless you
talk to him in graphic terms. Then he gets it. Right?” Defense counsel responded that appellant
“got it that time.” But defense counsel contended that “this is one very little part of the whole
process, but it’s an example.” Responding that, “It’s not like a lay person came by and saw the
defendant beating his head against the wall,” the trial court sustained the State’s objection and
excluded the evidence.86
2. Analysis
86
The trial court also gave an instruction to disregard an initial question defense counsel had
asked Schwieger in the jury’s presence.
PETETAN — 64
We review a trial judge’s decision to admit or exclude evidence for abuse of discretion.87 A
trial judge’s decision is an abuse of discretion only when it falls outside the zone of reasonable
disagreement.88 An evidentiary ruling will be upheld if it is correct on any theory of law applicable
to the case.89 The first step in determining whether evidence is admissible is to determine whether
it is relevant.90 Evidence is relevant if it has any tendency to make a fact of consequence more or
less probable than it would be without the evidence.91
Schwieger’s testimony was offered by appellant for the purpose of showing that he was
incompetent to stand trial. But, while evidence that appellant was not able to grasp what counsel was
saying until counsel spoke in graphic language may have been relevant to show that appellant had
low intelligence, that evidence did not, without more, have any tendency to show that appellant was
incompetent. This is because the evidence did not indicate that appellant lacked sufficient present
ability to consult with his lawyer with a reasonable degree of rational understanding, nor did it
indicate that he lacked a rational as well as factual understanding of the proceedings against him.
Low intelligence is not, by itself, an indication of incompetency.92 The Supreme Court of
87
Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016).
88
Id. at 83.
89
Id. at 93.
90
Id. at 83.
91
TEX . R. EVID . 401; Henley, 493 S.W.3d at 83-84.
92
Alvarez v. State, 480 S.W.2d 646, 647 (Tex. Crim. App. 1972) (“[T]here is no competent
evidence in the record to show that the appellant was incompetent to stand trial or was insane at the
time of the commission of the offense. Testimony that one has a low I.Q. does not create a
presumption of insanity.”). See also United States v. Bernard, 708 F.3d 583, 593 (4th Cir. 2013)
(quoting Burket v. Angelone, 208 F.3d 172, 192 (4th Cir. 2000): “[N]either low intelligence, mental
PETETAN — 65
Alaska has observed that a defendant “must have some minimum ability . . . to understand the nature
of the proceedings sufficiently to participate in certain decisions about the conduct of his defense .
. . . But this does not mean that a defendant must possess any high degree of legal sophistication or
intellectual prowess . . . . Numerous persons are subjected to criminal prosecution, and properly so,
even though they are of relatively low intelligence or are suffering from significant emotional or
physical impairment.”93 And the Supreme Court of Idaho has observed that lack of sophistication
does not, by itself, render someone incompetent:
Many defendants lack the intelligence or the legal sophistication to participate
actively in the conduct of their defense. But enlarging the class of persons
deficiency, nor bizarre, volatile, and irrational behavior can be equated with mental incompetence
to stand trial.”); Lawrence v. Sec’y Fla. Dep’t of Corrections, 700 F.3d 464, 482 (11th Cir. 2012)
(quoting same sentence from Medina v. Singletary, 59 F.3d 1095, 1107 (11th Cir. 1995)); United
States v. Turner, 644 F.3d 713, 725 (8th Cir. 2011) (“Neither low intelligence, mental deficiency,
nor ‘bizarre, volatile, and irrational behavior’ compels a finding of incompetency.”); Eley v. Bagley,
604 F.3d 958, 966 (6th Cir. 2010) (“Nor does the penalty phase testimony about Eley’s limited
education and low intelligence suggest that Eley was incompetent.”); Nguyen v. Reynolds, 131 F.3d
1340, 1346 (10th Cir. 1997) (quoting Medina); Hodges v. State, 926 So. 2d 1060, 1069 (Ala. Crim.
App. 2005) (quoting Medina); Dolchok v. State, 639 P.2d 277, 293 n.34 (Alaska 1982) (quoting
Schade v. State, 512 P.2d 907, 914 (Alaska 1973)) (see infra); Newman v. State, 2014 Ark. 7, 25-26
(2014) (statement similar to Bernard); Wickham v. State, 124 So. 3d 841, 862 (Fla. 2013) (quoting
Medina); Tye v. State, 298 Ga. 474, 478, 782 S.E.2d 10, 14 (2016) (“[M]erely having a low IQ may
not render an individual incompetent to stand trial.”); State v. Bennett, 345 So. 2d 1129, 1136 (La.
1977) (on rehearing) (“Mere weakness of mentality or subnormal intelligence does not of itself
constitute legal insanity” that would render someone incompetent to stand trial.); Commonwealth
v. Chatman, 473 Mass. 840, 851, 46 N.E.3d 1010, 1021 (2016) (“One can both have a mental disease
or deficiency and still be competent to stand trial; the two are not mutually exclusive. The same is
true about a defendant with a low intelligence quotient.”) (citation omitted); State v. Lambert, 266
S.C. 574, 579, 225 S.E.2d 340, 342 (1976) (“While low intelligence or limited education may cause
an appellate court to review the defendant’s plea carefully, it does not necessarily preclude a valid
plea. The fact that appellant may have only a seventh grade education does not mean that he was
unable to understand the proceedings. A test for competency to plead guilty is no more stringent
than the test for competency to stand trial.”) (citations omitted); Dang v. Commonwealth, 287 Va.
132, 148, 172 S.E.2d 885,894 (2014) (quoting statement similar to Bernard).
93
Dolchok, 639 P.2d at 914 n.34 (quoting Schade, 512 P.2d at 914).
PETETAN — 66
considered incompetent to stand trial to include all such defendants would
fundamentally alter the administration of the criminal law. The standard of rational
understanding emphasized in Dusky must be taken to mean no more than that the
defendant be able to confer coherently with counsel and have some appreciation of
the significance of the proceeding and his involvement in it.94
To the extent that appellant’s allegedly low intelligence might combine with other factors to
make him incompetent to stand trial, that issue was explored by both the defense expert and the
Court’s expert at the competency hearing. Testimony that appellant was able to understand concepts
only after they were explained to him in simple or graphic language, however, does not have any
tendency to make more probable that he was incompetent to stand trial. Such evidence might, in
fact, make it more probable that appellant was competent, because it established that he did
understand what his attorney told him.95 The trial court did not err in failing to admit this evidence
for the purpose of supporting the conclusion that appellant was incompetent to stand trial.
Moreover, even if the trial court erred in failing to admit this evidence, we do not perceive
that appellant’s substantial rights were affected so as to constitute harm under the standard for non-
94
State v. Powers, 96 Idaho 833, 843, 537 P.2d 1369, 1379 (1975) (quoting Note,
Incompetency to Stand Trial, 81 HARV . L. REV . 454, 459 (1967)).
95
There has been no allegation that Schwieger’s testimony was relevant as evidence that
appellant was competent, and so we have no occasion to address whether the trial court would have
erred to exclude this evidence had it been offered for such a purpose. See Pierson v. State, 426
S.W.3d 763, 770 (Tex. Crim. App. 2014) (“[T]he proponent ordinarily has the burden of establishing
the admissibility of the proffered evidence.”). See also Cathleen C. Herasimchuck, The Relevancy
Revolution In Criminal Law: A Practical Tour through the Texas Rules of Criminal Evidence, 20
ST . MARY ’S L.J. 737, 749 n.32 (1989) (“The proponent of the evidence bears the burden of pointing
out the relevancy of the particular testimony.”); Tate v. Robbins & Meyers, Inc., 790 F.2d 10, (1st
Cir. 1986) (“A party may not claim error on appeal in the exclusion of evidence unless the district
court was told not only what the party intended to prove but also for what purpose.” Citing 1
Weinstein Evidence, § 103[03], at 103-33 (1985 ed.) and McCormick, Evidence § 51, at 112 (1972)).
PETETAN — 67
constitutional error.96 This Court will not overturn a criminal conviction for non-constitutional error
if, after examining the record as a whole, the court has fair assurance that the error did not influence
the jury, or influenced the jury only slightly.97 Although whether appellant was mentally retarded
was contested, both experts agreed that appellant was at least a person of low intellect. Evidence that
he needed extra help to understand a concept but was ultimately able to do so is not the sort of
evidence that would have had more than a slight influence on the jury. Even under the more
stringent harm standard for constitutional errors, we are confident beyond a reasonable doubt98 that
the excluded evidence would not have moved the jury from a state of non-persuasion to persuasion
regarding the issue of competency.99 Point of error one is overruled.100
C. Fate of Malingerers
In point of error two, appellant contends that the trial court erred at the competency hearing
in excluding evidence “concerning the legal fate of those who obtain an incompetency determination
through malingering.” Appellant wanted to call Schwieger to testify about procedures at Vernon
State Hospital for persons who are discovered to have feigned incompetency. When the prosecutor
asked how the evidence was “relevant to whether this individual is competent to stand trial,” defense
96
See TEX . R. APP. P. 44.2(b)
97
Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011).
98
See TEX . R. APP. P. 44.2(a).
99
See Snowden v. State, 353 S.W.3d 815, 825 (Tex. Crim. App. 2010) (error was harmless
under the constitutional standard when error would not have moved jury from a state of non-
persuasion to a state of persuasion on any material issue in the case).
100
Due to our conclusion that the evidence was not relevant on the ground it was offered
or that its exclusion, if error, was harmless, we need not address appellant’s claim that the trial court
was mistaken to exclude the evidence on the basis of the attorney-client privilege.
PETETAN — 68
counsel responded that the evidence would address “the issue that was raised by their witness, Dr.
Pittman, which inferred that he was malingering.” The prosecutor then objected that Schwieger was
not a mental health expert.
Then defense counsel proffered the following testimony:
Q. Stanley, have you had clients that have been or are you aware of clients that have
gone to Vernon State Hospital because they were declared incompetent and then
learned -- it was later learned at Vernon that they had been malingering?
A. Yes.
Q. And because of that, what happened as a result of their having been discovered?
A. The determination is made by the staff that they are malingering and therefore
competent to stand trial.
Q. And then they are sent back here as having been declared competent.
A. They are sent back and declared competent to stand trial.
The prosecutor questioned the relevance of this testimony, saying, “[I]t doesn’t mater what has
happened in some of his cases. We don’t know whether those cases are similar in nature to this case,
[or] completely different in nature.” The trial court sustained the prosecutor’s objection and
excluded the evidence.
Appellant cites no authority for the proposition that this type of evidence is admissible. He
claims only that it is relevant to rebut the prosecution’s claim that appellant was feigning
incompetency. But this evidence did not have any tendency to show that appellant was not
malingering. Instead, the apparent purpose of this evidence was to encourage a jury to abdicate its
responsibility to determine whether appellant was malingering on the ground that experts could later
make that determination after appellant has been committed to a mental institution.
PETETAN — 69
In the death penalty context, we have addressed a claim that the jury was entitled to receive
information that might make it feel less responsible for the decision it would make. In Davis v.
State, the defendant claimed that the jury should have been informed of the effect of a failure to
agree on an answer to one of the punishment special issues.101 We held that providing the jury with
any information that may be interpreted as relieving it of the responsibility to answer the special
issues “is considered an infraction upon the jury’s fact finding function.”102 Informing the jury of
the effect of its failure to agree would have been “an open invitation for the jury to avoid its
responsibility and to disagree.”103 We also saw no relevance in informing the jurors of the result of
their failure to agree. We said that, while the information was a correct statement of law, “it
concern[ed] a procedural matter and [was] not the proper subject of an instruction by the trial court
or comment upon by the litigants.”104
The present situation is analogous. The evidence appellant sought to admit would have
encouraged the jury to delegate its responsibility to determine whether appellant was feigning
incompetency because, if he was, the experts would figure it out later. The fact that a malingering
defendant would eventually be found out, however, has already been taken into account by the
Supreme Court when it determined what burden of proof a state may require the defendant to
101
782 S.W.2d 211, 221-22 (Tex. Crim. App. 1989).
102
Id.
103
Id. (quoting Justus v. Commonwealth, 220 Va. 971, 979, 266 S.E.2d 87, 92 (Va.
1980)).
104
Id. at 222.
 PETETAN — 70
shoulder in proving incompetency.105 We find the reasoning in Davis to be applicable here and hold
that it is not appropriate to encourage a jury to avoid its responsibility to determine whether a
defendant is in fact incompetent by informing the jury of the effect of an erroneous incompetency
finding. Point of error two is overruled.
IV. JURY SELECTION
A. General Background and Standard of Review
Points of error three through five claim that the trial court erred in denying defense challenges
for cause during jury selection for the capital murder trial. Certain prerequisites for showing harm
must be established before we will consider such claims, but appellant has satisfied those
prerequisites here,106 so we address whether the trial court erred in denying the challenges.
A prospective juror is challengeable for cause if he has a bias or prejudice against the
defendant or against the law upon which the defense is entitled to rely.107 To establish a challenge
105
See Cooper v. Oklahoma, 517 U.S. 348, 365-67 (1996) (The “modest” effect of a
conclusion that the defendant is incompetent when he is in fact malingering (because he will be
found out) is why the defendant cannot be required to satisfy a heavier burden of proof of than
preponderance of the evidence.).
106
See Nava v. State, 415 S.W.3d 289, 305 (Tex. Crim. App. 2013) (“[T]he defendant must
(1) use a peremptory strike against the prospective juror upon whom the challenge for cause had been
made, (2) exhaust his peremptory strikes, and (3) request an additional peremptory strike to use upon
a specifically identified objectionable prospective juror, who, because the extra strike was denied,
actually sits on the jury.”). And because appellant asked for and was denied any additional
peremptory challenges, he is not required to show more than one meritorious challenge for cause for
the purpose of establishing harm. Cf. Busby v. State, 253 S.W.3d 661, 673 n.12 (Tex. Crim. App.
2008) (“We note that, assuming the conditions for establishing harm are met, appellant would have
to show that the trial court erroneously denied his challenges for cause to two of the three
veniremembers (Chang, Hedger, and Mahan), since appellant received an extra peremptory strike.”).
107
TEX . CODE CRIM . PROC. art. 35.16(a)(9) & (c)(2); Buntion v. State, 482 S.W.3d 58, 83-84
(Tex. Crim. App. 2016).
PETETAN — 71
for cause on one of these bases, the proponent must show that the prospective juror understood the
requirements of the law and could not overcome his bias or prejudice well enough to follow the
law.108 Before that can be shown, the law must be explained to the prospective juror, and he must
be asked whether he can follow the law, regardless of his personal views.109
On appeal, we review the trial court’s decision to overrule a challenge for cause for abuse
of discretion.110 Due to trial court’s ability to observe demeanor and listen to tone of voice, we afford
great deference to the trial court’s decision, particularly when the prospective juror’s answers are
vacillating, unclear, or contradictory.111
B. Bias For Death Penalty and Against Life Without Parole
In points of error three and five, appellant complains that venire members Hester and Fore
were challengeable for cause because they “had a bias against a life sentence without possibility of
parole and a bias in favor of a sentence of death.” A juror’s views may not be such that he would
automatically vote for the death penalty in every case.112 Instead, a juror must be able to answer the
special issues according to the evidence and the law.113 A juror need not agree with the law as long
as the juror’s personal views do not substantially interfere with his ability to abide by his oath and
108
Buntion, 482 S.W.3d at 84.
109
Id.
110
Id.
111
Id.
112
Morgan v. Illinois, 504 U.S. 719, 729 (1992) (The federal constitution requires a juror
to be excused for cause if he would “automatically vote for the death penalty in every case.”).
113
Rayford v. State, 125 S.W.3d 521, 532 (Tex. Crim. App. 2003).
PETETAN — 72
follow the law.114
1. Hester
In his written jury questionnaire, Hester stated, “No life without parole. I see no reason to
keep someone there their entire life.” Confronting him with those words, the prosecutor
subsequently explored that subject with Hester in jury selection:
Q. But basically what you’re telling us today is, “I can listen to the evidence and then
decide or make that decision”?
A. I believe I can, yes.
***
Q. You had mentioned in your questionnaire that life without parole is never
sufficient, but after explaining these questions [the special issues] to you and going
over the process, you’re saying that you can reserve judgment on anything until you
hear all of the evidence?
A. Yeah, I think so. I – my personal opinion being what it is, I still think that the way
the Court lays it out that I have to follow exactly what is there, not that I necessarily
like it, but I have to follow and answer the questions.
Q. And you could follow the law –
A. Yes, I believe I can.
Q. – and the Court’s instructions.
A. Yes.
Q. And you’re not leaning one way or another; you can be neutral until you hear all
the evidence.
A. I believe I can, yes.
THE COURT: Mr. Hester, if you thought the evidence justified a sentence of life
without parole, could you assess a sentence of life without parole?
114
Id.
PETETAN — 73
A. I believe I can. It would go against my grain, but I believe I could, because that’s
what the law requires.
***
Q. And in the event that we didn’t carry our burden of proof or you didn’t feel that
he was a future danger, that you could answer the question no and give him a
sentence of life without parole?
A. Yes.
***
Q. And if you felt like he, you know, wasn’t a party to any incident, that you could
answer the question no. Is that correct?
A. Yes.
***
Q. And if you felt that they [the defense] did meet their burden of proof [on the
mental retardation issue], you could answer that question yes, knowing that he would
get a life without parole sentence.
A. Yes.
***
Q. And then on the last question, the mitigation question, that if you felt – whether
taking into consideration all of the evidence and all of the stuff that we talked about
on Question Number 4, if you felt that the answer to that question was yes, there was
sufficient mitigating circumstances or there was sufficient mitigating circumstance,
that you could answer the question yes, knowing that it would be life without parole?
A. Yes.
Defense counsel also explored the subject with Hester:
Q. And if the truth is, “Well, I know me, and I know that my bias is, if somebody has
done that, they ought to die and I ought not to have to pay for them as a taxpayer, if
that’s how you feel, this is the time now that we need to know that.
A. Okay. The honest truth is, yes, that’s the way I feel. Now, whether that’s the way
PETETAN — 74
– I mean, I still believe – and I’m not going to – you know that I have time constraint
problems –
Q. Sure.
A. – and you know that this is not fun, and you know that most people don’t want to
be on one of these juries.
Q. Right?
A. So I’m fixing to say something that I really believe, even though I don’t want to
say it. While life on parole, I don’t necessarily agree with it, if I’m presented with
a question, if I’m presented with the evidence, I believe I have a moral obligation to
do it right.
***
A. But if I was to be on the jury, I have a moral obligation to this country, to the
people of this country, and to my God, to answer the questions as I see the answer.
***
Q. [Y]ou were asked – the question was, “Do you think life in prison without the
possibility of parole can ever be a sufficient punishment for somebody who, without
justification, kills another person,” and you put, “No,” and you said, “I see no reason
to keep a person there their entire life.”
A. I disagree with life without parole. I just do.
Q. Okay.
A. That doesn’t mean that I have a choice when it comes down to it.
Q. Well, actually it does mean that, and the reason I say that is that if a person
believes that they are biased toward a death sentence, they ought not to serve on a
jury. Does that make sense?
A. That’s – that makes sense. I mean, that’s fine. That’s your opinion. I mean, like
I said earlier, if I wanted out, that would have been my perfect out.
Q. Sure.
A. Unfortunately, I’m not sitting here saying that.
PETETAN — 75
Q. Okay. What I hear you saying, then, is, “If I’m on the jury, in spite of the fact that
I might feel like that, I’m going to answer the questions the way the law requires.
[PROSECUTOR]: Your Honor, that’s not what he said.
A. I’m going to try.
THE COURT: I believe this man has said that he’s going to follow the law and
answer the questions the way the evidence leads him.
In challenging Hester for cause, defense counsel stated, “I realize he didn’t – he answered the
questions saying that he could follow the law and that he would set everything aside, but it was clear
and obvious throughout his questioning that – he said repeatedly that he has got a bias, that he has
got a leaning towards the death penalty.” Later, defense counsel stated, “I understand that he said
he could follow the law, but I think it’s pretty clear that he may think that, but he’s going to have an
awfully hard time doing that.”
The trial court did not abuse its discretion in denying the challenge for cause. Even defense
counsel recognized that Hester said that he could follow the law, and the trial court was well within
its discretion to believe Hester in that regard. Although Hester clearly stated that he disagreed with
giving life without parole, he also stated that he would answer the special issues according to the law
and the evidence even if that meant giving life without parole. Any vacillation in Hester’s answers
was within the trial court’s discretion to resolve. Point of error three is overruled.
2. Fore
On his written jury questionnaire, Fore also indicated that he did not agree with the
punishment of life without parole, saying that he was “[n]ot a fan of it,” and, “No, they should pay
the same price.” When asked about these statements during jury selection, Fore responded that, for
people for whom the death penalty is an option, he did not want to have to pay, as a taxpayer, “for
PETETAN — 76
them to live out the rest of their lives.” However, when asked whether he would automatically
impose the death penalty, Fore said, “No, I’m not automatically going to. I’m just not a fan of it.”
With respect to each of the special issues, Fore agreed that he would require the State to prove its
case and not automatically answer in the State’s favor:
Q. And you’re going to require us to prove that he’s going to be a future danger.
You’re not going to automatically say “death”?
A. Correct.
Q. You’re not going to automatically say yes to that answer of Question 2. Right?
You’re still going to require the State to prove its case beyond a reasonable doubt.
Right?
A. Yes, yes.
Q. And you’re still going to keep an open mind to all those questions. Even while
you may not be the fan of life without parole, you could still hold yourself and hold
the State to its burdens, won’t you?
A. Yes.
Q. Okay. And when we get down to the final question dealing with mitigation,
you’re not going to rubber stamp that “death,” are you?
A. No.
Q. And if you saw something sufficiently mitigating in your mind that it warranted
a sentence of life without parole, you could do that and answer yes, couldn’t you?
A. Yes.
Q. Keep an open mind –
A. Sure.
Q. – throughout the entirety of the trial?
A. Absolutely.
PETETAN — 77
***
Q. But what you’ve told me today is you would still keep an open mind to the full
range of punishment throughout the entirety of the trial. Is that right?
A. Yes.
Q. You would require the State to prove to you that somebody is going to be a future
danger before answering that question?
A. Right. I answered this [the questionnaire] without knowing all of that.
***
Q. So do you agree with the law, now that we’ve talked about it?
A. Sure, I do. I would follow the law, absolutely.
Defense counsel later explored Fore’s answers to the questionnaire:
Q. And my question is: Because, you know, you think generally that life without
parole is not sufficient, are you going to either not put that burden on them or put
some kind of burden on us to prove to you that that answer should be no so that he
gets a life without parole sentence?
A. Well, if he has got me on the death penalty, it’s going to be your burden to get me
off of it, I would guess.
Q. Okay.
A. Does that make sense?
Q. I don’t know. Explain that a little bit more.
A. Well, if he has convinced me that we’ve met the criteria for the death penalty, I
think at that point it’s yours to convince me that we haven’t. I don’t know if I’m
saying that right or saying that wrong or if that’s even part of the process.
Q. So I guess like that first part, how would you look at that first question as to
whose burden it should be?
A. Well, I believe it’s his burden to get me to the death penalty.
Q. Okay.
PETETAN — 78
A. But if he has gotten me there, I’m going to stay there unless somebody else gets
me off of it.
Q. Okay. So you’re saying if they meet their burden of proof. You’re not putting the
burden of proof on us to prove to you that the answer should be no?
A. Right.
***
Q. [B]ut that last question [mitigation], you’ve already found that a person is going
to be a future danger, you’ve already found that they either caused the death or they
anticipated that the death would occur, you’ve already found that they are not
mentally retarded, and that’s kind of your last look at the evidence. And you feel like
you could look at that evidence, you could take a fresh look at the evidence, or would
your mind already be made up that there is just no way a life without parole sentence
could ever be appropriate in a case like that?
A. I don’t want to say “ever,” but it seems to me that at that point it would be the
most appropriate.115
Among defense counsel’s for-cause challenges to venire member Fore was the contention that Fore
had a “preference” and “strong leanings” regarding life without parole and had answered on his jury
questionnaire that life without parole was never an appropriate punishment and that he was not a fan
of life without parole.
The trial court did not abuse its discretion in denying the challenge for cause. Although
Fore’s questionnaire indicated that life without parole would never be an appropriate punishment,
once the law about the special issues was explained to him, he said that he agreed with the law and
would follow it and that he answered the questionnaire “without knowing all of that.” And any
vacillation by Fore was within the trial court’s discretion to resolve. Point of error five is overruled.
115
“Most appropriate” may be a reference to the mental retardation issue. During his
questioning, Fore expressed some sympathy for individuals with mental retardation and related that
his mother was a special ed teacher.
PETETAN — 79
B. Bias for Law-Enforcement Witnesses
In point of error four, appellant complains that Hester was also challengeable for cause
because he believed law enforcement officers to be more credible than other witnesses. A
prospective juror “who cannot impartially judge the credibility of witnesses is challengeable for
cause for having a bias or prejudice in favor of or against a defendant.”116 Impartiality with respect
to the credibility of witnesses does not, however, mean that a juror must have no views on what
characteristics make a witness more or less credible. Rather, it means that the person is genuinely
open-minded and subject to persuasion, “with no extreme or absolute positions regarding the
credibility of any witness.”117 Being more or less skeptical of a certain category of witness does not
make a prospective juror challengeable for cause.118
When asked about whether police officers are more believable than other people, less
believable, or the same, Hester responded, “I believe they are more believable. I really do. I believe
that – besides having a brother that is a police officer, I’ve ridden with him, I’ve been with other
police officers. As a general rule, I believe that profession is up front and as good as they can be.”
When asked whether police officers “are going to be more believable than other people, just a person
off the street who has no training like that,” Hester further responded, “As far as answering questions
as to their expertise, yes, I believe that they will be more believable. As far as general questions,
personalities, that kind of thing, they have no training that way, they have no – I have no reason to
believe that they are any better at it than anybody else.”
116
Feldman v. State, 71 S.W.3d 738, 745 (Tex. Crim. App. 2002).
117
Id. at 747; Jones v. State, 982 S.W.2d 386, 389 (Tex. Crim. App. 1998).
118
Feldman, 71 S.W.3d at 747; Jones, 982 S.W.2d at 389.
PETETAN — 80
The trial court did not abuse its discretion in denying the challenge for cause. Hester
expressed the view that police officers were more believable than other witnesses when it came to
matters within their expertise, but even as to those matters, Hester did not express any extreme or
absolute positions regarding police officers’ credibility. Point of error four is overruled.
V. EVIDENCE
A. Extraneous Offense
In points of error seven and eight, appellant contends that the trial court erred in admitting
evidence of an extraneous offense at the guilt stage of trial. Specifically, appellant complains about
the admission of evidence that he told Miller and Kerrie that he was going to Waco to buy drugs and
would give each of them drugs for going with him.
1. Background
In opening statement, defense counsel described Miller as “high and hungry” and “angry”
shortly before the murder, and he described Kerrie as someone who “looked up to” Miller. Before
Miller testified, the State indicated that it wished to elicit testimony from Miller that appellant had
supplied him with cocaine in the past and told him that he (appellant) was going to Waco to buy
cocaine and would give Miller some if he came with him. The State referred to defense counsel’s
discussion of Miller in his opening statement as justification for admitting the evidence. The trial
court excluded evidence that appellant had supplied Miller with cocaine in the past but, after
“balancing the probative value and the prejudicial effect,” ruled that appellant’s statements to Miller
on the day of the murder were admissible. Appellant requested and obtained a running objection.
We have already discussed the evidence in question in connection with appellant’s challenge to the
PETETAN — 81
sufficiency of the evidence to support his conviction.119
2. Analysis
To the extent that appellant challenges the admission of any statements by appellant
promising to give Kerrie drugs, he has failed to preserve error. Appellant does not point to any place
in the record in which he objected to such evidence.120 We will assume, without deciding, that
appellant’s running objection was broad enough to cover both Miller and Kerrie’s testimony about
appellant promising to give Miller drugs.121
At the time of trial, Rule 404(b), which addressed the admissibility of “evidence of other
crimes, wrongs, or acts,” provided in relevant part:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of
a person in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident . . . . 122
Appellant’s brief does not explain exactly what aspect of the testimony it is that he is alleging was
a bad act. It is not his statement about buying drugs or giving Miller drugs. Statements about those
anticipated acts are mere inchoate thoughts that are not excludable under Rule 404(b).123 We will
assume that appellant’s promise to give drugs, or a false promise to give drugs, rises to the level of
119
See supra at part I.B.
120
See TEX . R. APP . P. 33.1.
121
See Lopez v. State, 253 S.W.3d 680, 684 (Hearing outside presence of jury does not
necessarily end the inquiry into whether error was preserved “because we must still address the scope
of the trial judge’s ruling.”).
122
TEX . R. EVID . 404(b) (West 2014).
123
Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993).
PETETAN — 82
a “bad act” that could fall under Rule 404(b)’s prohibition.
Even so, the evidence appears to be relevant to a nonconformity purpose, to show appellant’s
intent in connection with the underlying offenses of burglary and retaliation and to show his plan to
murder his wife and cast the blame onto Miller. This evidence was directly relevant to the “plan”
purpose of Rule 404(b) because appellant’s promise of drugs to Miller was one of the steps taken
in preparation for the murder.124 Moreover, the evidence also rebutted defense counsel’s insinuation
in opening statement that Miller murdered Kimberly while “high” and “angry” by showing that
Miller was just a pawn in appellant’s plan.125
Because the trial court conducted a prejudice-versus-probative-value balancing analysis, we
will assume that appellant also preserved a Rule 403 complaint and address it here. At the time of
appellant’s trial, Rule 403 provided that relevant evidence “may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.”126
Rule 403 favors the admission of relevant evidence.127 “Unfair prejudice” under the rule refers to
“a tendency to suggest decision on an improper basis, commonly, though not necessarily, an
124
Daggett v. State, 187 S.W.3d 444, 451 (Tex. Crim. App. 2005) (“When used properly,
the ‘plan’ exception allows admission of evidence to show steps taken by the defendant in
preparation for the charged offense.”).
125
See Dabney v. State, 492 S.W.3d 309, 317 (Tex. Crim. App. 2016) (“[A] defense opening
statement could open the door to the admission of extraneous-offense evidence to rebut the defensive
theory presented in the opening statement.”).
126
TEX . R. EVID . 403 (West 2014).
127
Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010).
PETETAN — 83
emotional one.”128 Evidence is excludable under Rule 403 only when there is a clear disparity
between the degree of prejudice and the probative value of the evidence.129 A proper Rule 403
analysis includes, but is not limited to, the following factors: (1) the probative value of the evidence,
(2) the potential to impress the jury in some irrational, yet indelible way, (3) the time needed to
develop the evidence, and (4) the proponent’s need for the evidence.130
Here, the probative value of the evidence was strong. Appellant’s promise of drugs to Miller
was one of the steps in his plan to commit the murder, evidence of that promise helped substantiate
the offense of retaliation, and the evidence helped to rebut appellant’s defensive theory that Miller
committed the murder. Although the evidence had some tendency to show that appellant was a drug
dealer—a character conformity inference Rule 404(b) seeks to avoid—the State needed this evidence
to show the full context of the murder, and it was important evidence that appellant planned the
murder all along—substantiating the underlying offense of retaliation. Finally, only a short time
was needed to develop this evidence. We conclude that the trial court did not abuse its discretion
in concluding that the danger of unfair prejudice from the admission of the evidence did not
substantially outweigh the evidence’s probative value. Points of error seven and eight are overruled.
B. Testimony by Witness Previously Represented by Counsel
In point of error nine, appellant contends that the trial court abused its discretion “by
admitting evidence which undermined defense counsel before the jury and created a conflict of
interest which denied Petetan his right to the effective assistance of counsel.” This complaint refers
128
Id.
129
Id.
130
State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005).
PETETAN — 84
to the trial court’s decision to allow Mubarak Ali to testify at the punishment stage of trial.
Appellant claims that allowing Ali to testify created a conflict of interest because one of appellant’s
attorneys had previously represented Ali. He claims that this caused him to be denied his
constitutional right to the effective assistance of counsel.
1. Background
Defense counsel Hunt had previously represented Ali for a period of three to four weeks in
a synthetic marijuana case. However, Hunt ultimately returned Ali’s retainer and was not
representing Ali at the time of appellant’s trial. Although Ali had not been indicted, his case was
pending. Prosecutors in appellant’s case first became aware that Ali had relevant information on the
last day of jury selection. The defense took the position that allowing Ali to testify would create a
conflict of interest due to Hunt’s prior representation, so the defense requested that “he be excluded
as a witness and not allowed to testify.”
When asked by the trial court how this was a conflict, one of the other defense attorneys
claimed that “Hunt would have gained information that now he can no longer use or he will be
precluded from using . . . he can’t divulge it to me, so he can’t use it for Mr. Petetan . . . . [A]nything
he learned during his course of representation . . . that still would be something that he cannot
divulge or disclose in any manner even though he’s no longer representing him.” When asked
whether he learned anything from Ali about appellant’s case, Hunt replied, “I learned some facts
about Petetan from him, yes, sir.”
In a hearing outside the presence of the jury, Ali testified to the following: He asked
appellant who his attorney was and appellant answered, “Russell Hunt is my attorney. He’s a good
attorney.” Ali contacted Hunt that day and was told to see him when Ali got out of jail. The next
PETETAN — 85
day, Ali told appellant what Hunt had said, and appellant repeated that Hunt was a good attorney and
that appellant had a murder case. Ali asked, “Who,” and appellant said it was his wife. Appellant
further said that Hunt advised him to act like he was “mentally sick,” and not to use the phone, “so
by the law they are not going to give you the death penalty.” When Ali first went to see Hunt, Hunt
asked how Ali knew about him. Ali replied, “Big Boy. You got murder case. You have it. He told
me everything. That’s why I come to see you.”131 Ali further stated that appellant “told me you are
a good lawyer and you charge him that much money. That’s why I come to see you.” Ali testified
that he made no other statements to Hunt about appellant.
The defense contended that Hunt would deny that he told appellant to act mentally sick, and
therefore, “[N]ow Mr. Hunt is a potential witness in this case.” The trial court and the State pointed
out that Ali’s testimony was only what appellant said, and the question was whether appellant said
it, not whether Hunt actually advised appellant in that way. Hunt also stated that he would contradict
Ali’s testimony because Ali “didn’t know that Mr. Petetan was charged with murder. He made the
remark to me that he’s charged with drugs, and I’m the one that told him that he was charged with
murder. I told him, ‘He’s charged with murdering his wife.’”
The defense also complained that Ali’s testimony would make it look like the defense was
fabricating the mental retardation claim and the evidence presented. The trial court responded, “I
want to make it clear that – I do not believe Mr. Hunt has violated any canons or rules or anything
else. I know him too well to know that – to believe that. But that’s not really the issue here.” One
of the prosecutors suggested, “We could limit his [Ali’s] testimony so that he doesn’t say who told
him to act crazy.” The prosecutor emphasized that the State was not offering the testimony to show
131
“Big Boy” was a nickname appellant had while incarcerated.
PETETAN — 86
that the attorneys told appellant to act crazy or mentally sick, and “[a]s a matter of fact, I don’t
believe it’s true.”
The trial court ruled that Ali could testify, but he could not say who appellant said told him
to act mentally sick, and he could not talk about Hunt’s representation of him. When Hunt also
expressed concern about Ali testifying about being aware that appellant was charged with murder,
one of the prosecutors responded, “[I]f you’ll give us some time this morning, then I’m confident
we can come back to you and we can proffer precisely what this man is going to testify to, to satisfy
you.” The trial court responded, “All right. Let’s do that.”
Ali subsequently testified in front of the jury as we have set out in our discussion of
appellant’s sufficiency challenge on the issue of mental retardation.132 Although Ali testified to
appellant saying that he was acting mentally sick to avoid the death penalty, no mention was made
of anyone telling appellant to act mentally sick. And although Ali made a general statement that he
talked with appellant about his case, Ali did not say that he was told or knew that appellant was
charged with murder. Ali did not mention Hunt on direct examination but did mention him on cross-
examination in a nonresponsive answer to a question:
Q. And when was it that you went to the District Attorney’s office or to anybody with
this information?
A. The first time I go to – I go to my lawyer office, and he asked me about, “How you
know Mr. Russell Hunt,” so I told him, “Big Boy.”
At this point the trial court interrupted Ali’s answer, held an off-the-record-bench conference, and
132
See supra at part II.B.11.
PETETAN — 87
afterwards directed Ali to give a responsive answer to defense counsel’s question.133 The defense
cross-examination of Ali was conducted by an attorney on the defense team other than Hunt.
2. Analysis
A denial of a defendant’s right to effective assistance of counsel may result from an
attorney’s conflict of interest.134 How a conflict of interest claim is analyzed depends on whether
the defendant or his attorney objected at trial.135 When a potential conflict is brought to the attention
of the trial court, the trial court has an obligation to investigate and determine “whether the risk of
the conflict of interest is too remote to warrant separate counsel.”136 When the conflict is not brought
to the trial court’s attention, but is raised later on appeal, the defendant must show that his attorney
was operating under an actual conflict that adversely affected his performance.137
Here, the defense team claimed to the trial court that there was a potential conflict arising
from Ali’s testimony. The trial court conducted an investigation by having the parties question Ali
outside the presence of the jury, by eliciting information from Hunt, and by hearing the arguments
of the parties. With the urging and approval of the trial court, the prosecutors acted to eliminate the
defense’s concerns by placing limits on Ali’s testimony. Appellant nevertheless contends that
defense attorney Hunt had two conflicts: (1) between his representation of appellant and his
133
The defense team did not lodge on the record any request for relief as a result of Ali’s
non-responsive answer.
134
Routier v. State, 112 S.W.3d 554, 581 (Tex. Crim. App. 2003).
135
Id.
136
Id. (citing Holloway v. Arkansas, 435 U.S. 475, 484 (1978)).
137
Id. (citing Cuyler v. Sullivan, 466 U.S. 335, 348 (1980)).
PETETAN — 88
representation of Ali, and (2) between his own interests and appellant’s interests.
Appellant contends that Hunt had a conflict due to his representation of appellant and Ali
because Hunt “was precluded from cross-examining Ali with confidential information he acquired
while representing Ali.” To the extent appellant’s position is based on information Hunt could not
reveal to anyone, including the rest of the defense team, because it was privileged,138 we fail to see
how the defense team was adversely affected. Hunt did not cross-examine Ali; another member of
the defense team—uninfluenced by the privileged information Hunt possessed—performed that task.
And if Hunt were barred by privilege from informing other members of the defense team, he would
be barred from revealing the information regardless of whether he was one of the attorneys on
appellant’s case.
To the extent appellant may be referring to Hunt’s statement about Ali believing that
appellant was charged with a drug offense rather than with murder, we observe that Ali did not
testify in front of the jury about any of his interactions with Hunt, and Ali did not testify to being told
or knowing that appellant was charged with murder. Perhaps a jury could infer that Ali knew
appellant was charged with murder because Ali testified that appellant said he was acting mentally
sick to avoid the death penalty. But even if Hunt’s information were disclosable to impeach Ali’s
testimony, the proper remedy would not be to exclude Ali’s relevant, non-privileged testimony, but
to attempt to impeach him with Hunt’s information, and deal with the consequences to Hunt
remaining an attorney on the case if the impeachment were allowed.139 The least intrusive step might
138
See TEX . R. EVID . 503(b).
139
See TEX . DISC. R. PROF. CONDUCT 3.08. Cf. Flores v. State, 155 S.W.3d 144, 147-51
(Tex. Crim. App. 2004) (imposing “compelling need” test when opposing party seeks to call a
party’s lawyer as a witness); Brown v. State, 921 S.W.2d 227, 230-32 (Tex. Crim. App. 1996)
PETETAN — 89
have been to cross-examine Ali about whether he told someone, after Ali’s alleged conversation with
appellant, that he thought appellant was charged with a drug offense. If Ali would not admit to that
statement, then the trial court might have to address whether Hunt could testify, and if so, whether
he could remain as an attorney on the case.
But these steps were not taken, and while the defense team expressed concerns about the
testimony given by Ali outside the presence of the jury, no explanation appears in the record for the
defense team’s failure to attempt to use Hunt’s information to impeach the testimony given by Ali
in the jury’s presence. As a result, the record is insufficient to show that the failure of the defense
to impeach Ali was due to a conflict created by Hunt remaining on the case. With Ali’s testimony
being limited and references to Hunt suppressed, the defense team may have had strategic reasons,
aside from Hunt’s remaining on the case, for declining to attempt to impeach Ali with what was at
best, indirect evidence that Ali might not be telling the truth.140
(Keller, J., concurring) (discussing due process implications of the prosecutor being a witness in the
case). See also Pearson v. Parsons, 541 So. 2d 447, 452 (Miss. 1989) (The rule against advocate-
witnesses “is not an immunity from testifying by the advocate witness, but it is a limitation on
advocacy.”).
140
See Alberni v. McDaniel, 458 F.3d 860, 872-73 (9th Cir. 2006) (“The present record is
insufficient to determine whether an actual conflict of interest existed. Mr. Buchanan [defense
attorney] failed to impeach Mr. Flamm [former client] with his prior conviction, his probation status,
and on multiple points of his testimony. These omissions appear to be critical in light of the impact
they could have on the jury’s perception of Mr. Alberni’s credibility and his propensity for violence.
Mr. Flamm was called as a rebuttal witness to impeach Mr. Alberni. When the only evidence
supporting Mr. Alberni’s claim that the shooting was accidental was his own testimony, it was
critical that the jury find him credible. However, the failure to question Mr. Flamm regarding his
prior conviction, his probation status, and his inconsistent testimony is not necessarily attributable
to a conflict. A link between deficient performance and the conflict of interest must be shown. The
district court did not conduct an evidentiary hearing. Thus, Mr. Buchanan has not been interrogated
concerning his failure to impeach Mr. Flamm regarding his criminal record and his inconsistent
testimony. Although Mr. Buchanan’s testimony on this matter would not be conclusive, there may
be legitimate tactical reasons for Mr. Buchanan’s decision not to impeach Mr. Flamm on these
PETETAN — 90
Appellant contends that there was a conflict between appellant’s interests and Hunt’s own
interests because the “jury was left with the clear impression that someone, probably counsel, had
coached Petetan on feigning mental illness in an effort to avoid the death penalty” and that “Hunt
[was] in the untenable position of attempting to save Petetan’s life with an intellectual disability
defense while at the same time defending himself from implications he was sponsoring false
testimony.” We disagree. Nothing in Ali’s testimony before the jury indicates that anyone coached
appellant to feign mental illness or mental retardation. The jury could easily have believed that such
feigning was entirely appellant’s idea. Even if the jury thought that someone might have suggested
the idea to appellant, it would have no reason from Ali’s testimony to think that the defense attorneys
did so. Although Ali briefly mentioned Hunt in cross-examination, his testimony was cut off, he was
told to respond to the question that was asked, and the jury was given no indication that the mention
of Hunt had any relevance to any issue in the case. The trial court did not err in its ruling on
appellant’s conflict-of-interest claims and in allowing Ali to testify. Point of error nine is overruled.
VI. PUNISHMENT CONSTITUTIONAL CHALLENGES
A. Jury Unanimity
In a supplemental point of error, appellant contends that the jury charge violated his state
constitutional right to a unanimous verdict because the jury was not required to agree on the
underlying offense that elevated the murder to capital murder. The jury charge at guilt said:
matters. We will not speculate about his cross-examination strategy. However, without Mr.
Buchanan’s testimony, we cannot reach a satisfactory resolution of the question whether Mr.
Buchanan’s prior representation of Mr. Flamm adversely affected his defense of Mr. Alberni.”)
(citations omitted).
PETETAN — 91
It is not necessary that all of you agree on whether the Murder, if any, occurred
during the course of committing or attempting to commit, burglary, or kidnapping or
retaliation. But in order to find the Defendant guilty of Capital Murder all of you
must agree beyond a reasonable doubt that the Defendant intentionally committed the
Murder of Kimberly Petetan and that he did it during the commission or attempted
commission of one or more of the other felony offenses charged in the indictment.
Appellant relies upon Ngo v. State141 for his contention that the jury charge violated his constitutional
right to a unanimous verdict.
A jury need not be unanimous about the underlying offense that elevates murder to capital
murder.142 We have reaffirmed this rule after Ngo, saying that “[t]he jury charge may disjunctively
allege ‘all alternate theories of capital murder contained within § 19.03, whether they are found in
the same or different subsections, so long as the same victim is alleged for the predicate murder.’”143
What statutory elements a jury must be unanimous about depends upon the focus of the offense as
dictated by the statute defining the offense,144 and given the wide difference between the capital
murder offense at issue here and the credit card offense at issue in Ngo, Ngo is simply
inapplicable.145 Appellant’s supplemental point of error is overruled.
B. Request for Pretrial Determination of Mental Retardation
141
175 S.W.3d 744 (Tex. Crim. App. 2005) (credit card fraud).
142
Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991).
143
Davis v. State, 313 S.W.3d 317, 342 (Tex. Crim. App. 2010) (quoting Gamboa v. State,
296 S.W.3d 574, 584 (Tex. Crim. App. 2009)).
144
Young v. State, 341 S.W.3d 417, 423-24 (Tex. Crim. App. 2011); Huffman v. State, 267
S.W.3d 902, 906-07 (Tex. Crim. App. 2008).
145
See Huffman, 267 S.W.3d at 905-06 (discussing capital murder as a homicide offense
analyzed under Kitchens and contrasting the credit card abuse offense in Ngo with homicide and
injury-to-a-child offenses).
PETETAN — 92
In point of error twenty-seven, appellant contends that he was “denied equal protection of
the law due to the absence of a unified statutory procedure for pretrial litigation of an Atkins assertion
of intellectual disability.” Appellant cites our recent mandamus decision of In re Allen146 to show
that we allowed a court in Dallas County to conduct a pretrial determination of whether a capital
murder defendant is exempt from the death penalty due to mental retardation. Appellant contends
that he has been subjected to disparate treatment and should not have been denied a pretrial
determination simply because he was prosecuted in McLennan County instead of Dallas County.
In Allen, this Court held that the law was unclear regarding whether the issue of mental
retardation could be decided before trial.147 In responding to the dissenting opinions, this Court
carefully explained that the holding was based on the posture of the case on mandamus and was not
a statement approving the pretrial resolution of the mental retardation issue:
If the law surrounding a court’s action is unclear, mandamus relief may not issue
despite how unwise we think the action may have been. At times, it is an exercise
akin to judicial restraint. The dissenters understand this opinion to modify the
Legislature’s procedural scheme in death-penalty cases or that this Court judicially
approves of deciding the intellectual-disability issue pretrial. These conclusions
stem from a misreading of this opinion, and they lose sight of the case’s procedural
posture. This case, like all mandamus cases, must be decided on the existing law
alone. Unfortunately, we find none that supports a conclusion that granting Allen’s
request for a pretrial intellectual-disability determination deviated so far from
well-settled legal principles to be considered acting outside a judge’s authority. Even
if we were inclined to again act when the Legislature has not, a mandamus
proceeding is not the appropriate place to interpret statutory language, clarify this
Court’s precedent, or create law where there is none. We hold that the absence of
existing law precluded granting the State’s mandamus relief below; it is by no means
an endorsement of the judge’s action.148
146
462 S.W.3d 47 (Tex. Crim. App. 2015).
147
Id. at 52-53.
148
Id.
PETETAN — 93
The present case is not a mandamus proceeding. It is a direct appeal in which “new law” can
be made. We shall, therefore, address the issue of whether a pretrial determination will be required
upon request or prohibited altogether.149 We conclude, based on the reasoning of the dissenting
opinions in Allen150 and Judge Yeary’s concurrence,151 and on the reasoning in Woods v. State,152 that
a pretrial determination of the issue of mental retardation should not be allowed. At any pretrial
determination of mental retardation, the State would have to marshal “all of its evidence” of the
defendant’s guilt of the offense and his role in the offense in order for the factfinder to be able to
assess how that evidence might weigh into resolving the issue.153 That has to occur because the
defendant’s conduct in connection with the offense is relevant to determining whether he is mentally
149
See id. at 54 (The “continued absence” of a scheme regarding the determination of mental
retardation “portends serious consequences for our criminal-justice system. Without a unified
procedure, intellectual disability determinations may vary from county to county, court to court, and
case to case.”); Briseno, 135 S.W.3d at 4-5 (deciding that this Court had to act “during this
legislative interregnum” to provide guidelines to the bench and bar); Allen, 462 S.W.3d at 67
(Newell, J., dissenting) (“[T]his Court has repeatedly left the door open for the legislature to act”
regarding the procedures for determining mental retardation.). Cf. Williams v. State, 273 S.W.3d
200, 214-25 (Tex. Crim. App. 2008) (deciding the issue of whether a defendant had the right to insist
on a waiver of the mitigation special issue in a death penalty case and concluding that he did).
150
See Allen, 462 S.W.3d at 59-66 (Alcala, J., dissenting); id. at 66-68 (Newell, J.,
dissenting).
151
See id. at 54-59 (Yeary, J., concurring).
152
153 S.W.3d 413 (Tex. Crim. App. 2005).
153
Allen, 462 S.W.3d at 63 (Alcala, J., dissenting). Judge Yeary expressed similar
sentiments, stating that any pretrial hearing on the issue of mental retardation would “likely include,
in addition to any other evidence reflecting directly upon the criteria for establishing mental
retardation, a trial of the very facts of the capital murder offense itself.” Id. at 58 (Yeary, J.,
concurring).
PETETAN — 94
retarded.154 Moreover, nearly all of the State’s punishment evidence would be relevant as well. For
example, extraneous offenses not explored at the guilt phase could shed as much light on a
defendant’s mental abilities as the offense for which he is on trial. Mental retardation “is a
sentencing issue,” and litigating such an issue before a finding of guilt “puts the cart before the horse
and results in an advisory opinion.”155
In concluding that the issue of mental retardation should not be resolved pretrial, Judge
Newell found persuasive our prior decision in State ex rel. Watkins v. Creuzot,156 in which we held
that a defendant was not entitled to a pretrial hearing to determine whether a lengthy delay in
obtaining post-conviction relief had rendered mitigation evidence unavailable for a death penalty
retrial.157 Judge Newell found especially persuasive one passage in the opinion that explained that
the alleged constitutional injury was contingent upon future events and therefore not ripe for decision
pretrial:
The issue of the adequacy of Reed’s mitigation case is not “fit” for judicial decision
before it is presented. Here, a capital-murder defendant is seeking a pretrial
declaratory judgment that any mitigation case that he might mount would necessarily
be inadequate and therefore any prospective death sentence would, if it occurred,
violate the Eighth Amendment, the Sixth Amendment, and the Due Process Clause.
“These assumptions are simply not warranted before a jury has considered the
154
See supra at part II.A.; Neal v. State, 256 S.W.3d 264, 272 (Tex. Crim. App. 2008)
(“Indeed, we have noted that the nature of the offense itself may be relevant to a determination of
mental retardation.”).
155
Allen, 462 S.W.3d at 68 (Newell, J., dissenting).
156
352 S.W.3d 493 (Tex. Crim. App. 2011).
157
Allen, 462 S.W.3d at 67-68 (Newell, J., dissenting).
PETETAN — 95
evidence in the present case and rendered a verdict.”158
We agree with Judge Newell that the litigation of the issue of mental retardation before trial is an
inquiry that would be contingent on future events, like the inquiry the defendant attempted in
Creuzot, and that such an inquiry would be premature.
This view is consistent with our holding in Woods v. State that the sufficiency of the evidence
to support an element of the offense of evading detention cannot be litigated at a pretrial suppression
hearing.159 We explained that “statutes authorizing pre-trial proceedings do not contemplate a
‘mini-trial’ on the sufficiency of the evidence to support an element of the offense.”160 “The purpose
of a pre-trial motion is to address preliminary matters, not the merits of the case itself.”161 As with
the issue of guilt, sentencing issues involve “the merits of the case itself.” We conclude that the
sentencing issue of mental retardation may not be litigated before trial.162
158
Id. (quoting Creuzot, 352 S.W.3d at 505-06 (quoting State ex rel. Lykos v. Fine, 330
S.W.3d 904, 916 (Tex. Crim. App. 2011))).
159
153 S.W.3d at 415.
160
Id.
161
Id.
162
In his concurrence in Allen, Judge Meyers contended that, while the issue of mental
retardation “is a punishment issue, it is no different than conducting a pretrial determination of
whether the defendant was a juvenile at the time of the offense.” 462 S.W.3d at 54. But any person
under seventeen years of age must be transferred from the juvenile system before he can be tried as
an adult for a felony offense such as capital murder. Moon v. State, 451 S.W.3d 28, 37-38 (Tex.
Crim. App. 2014). We are aware of no authority that condones a pretrial determination of age aside
from juvenile proceedings, but even if there were such authority, the issue of a defendant’s age is
distinct from the issue of mental retardation in two relevant respects. First, the defendant’s age at
the time he committed a homicide would, except in the most unusual case, be readily ascertainable
and not subject to reasonable dispute. Second, how old a defendant is does not depend on the facts
of the offense or other evidence relating to the defendant’s dangerousness and moral culpability, so
the parties would not have to litigate their guilt and punishment cases in a pretrial proceeding.
PETETAN — 96
Having now concluded that the issue of mental retardation may not be litigated pretrial, we
further conclude that appellant is not being treated differently under the law in violation of his right
to equal protection. Any pretrial determination that a prior defendant may have received while the
law was uncertain (if that occurred) would be a chance windfall and would not be sufficient to show
an equal protection violation.163 Moreover, we fail to see how appellant was harmed by any alleged
inequity.164 Appellant ultimately received full consideration of the issue of mental retardation by a
finder of fact under the evidence that the parties would have been permitted to present at a pretrial
hearing if one were allowed and had been held. Point of error twenty-eight is overruled.
C. Other Punishment Challenges
In points of error twelve through twenty-six, appellant raises various constitutional challenges
to the Texas death-penalty scheme. He contends that the trial court erred in the following respects:
by failing to define the terms “militate,” “probability,” “criminal acts of violence,” “continuing threat
to society,” “personal moral culpability,” and “moral blameworthiness” in the jury charge; by
overruling his objection to the instruction that ten votes were required to return a “no” answer to the
future dangerousness special issue and refusing to instruct the jury that a life sentence would be
imposed if it could not agree on its answer to one of the special issues; by overruling his objection
to an “anti-sympathy” instruction; by overruling his request that the jury be instructed on the concept
163
See Taylor v. State, 10 S.W.3d 673, 678 (Tex. Crim. App. 2000) (explaining the Supreme
Court’s view in Stovall v. Denno, 388 U.S. 293, 297 (1967), that, although “some ‘inequity arguably
results from according the benefit of a new rule to the parties of the case in which it is announced
but not to other litigants similarly situated in the trial or appellate process who have raised the same
issue,’ the Court regarded ‘the fact that the parties involved are chance beneficiaries as an
insignificant cost for the adherence to sound principles of decision-making’”).
164
See TEX . R. APP . P. 44.2(a) (harm standard for constitutional errors).
PETETAN — 97
of mercy and the role it can play in deliberations; by submitting the issue of future dangerousness
when it was not found by the grand jury or alleged in the indictment; by failing to submit four
requested instructions regarding the jury’s consideration of victim impact evidence; by overruling
his objection that the jury charge unduly limited what factors the jury could consider as mitigating;
by overruling his objection that the mitigation special issue is unconstitutional for failing to assign
a burden of proof and for not being susceptible to a sufficiency review on appeal; and by refusing
to instruct the jury that there is a presumption in favor of a life sentence. Appellant also contends
that the imposition of the death penalty violates his right, under the Eighth and Fourteenth
Amendments, not to be subjected to cruel and unusual punishment.
Appellant concedes that there is authority against all of these contentions. We have rejected
all of these claims explicitly or have rejected claims similar enough to be covered by our holdings.165
165
See Jenkins v. State, 493 S.W.3d 583, 613-18 (Tex. Crim. App. 2016) (rejecting claim
that jury had to be instructed on the effect of a failure to agree its answers to a special issue despite
the statutory 10-12 rule; rejecting claim that trial court should have given the four requested
instructions on victim impact advanced here; rejecting claims that the trial court erred in failing to
define “probability,” “criminal acts of violence,” “militates,” and “continuing threat to society”;
rejecting claim that special issues needed to be considered by the grand jury and included in the
indictment); Davis v. State, 313 S.W.3d 317, 354-55 (Tex. Crim. App. 2010) (rejecting claims that
the trial court erred in failing to define “personal moral culpability,” “moral blameworthiness,” and
other terms; rejecting claim that mitigation special issue is unconstitutional by failing to assign a
burden of proof); Gardner v. State, 306 S.W.3d at 303 (rejecting claim that jury should have been
instructed on a presumption in favor of a life sentence); Williams v. State, 301 S.W.3d 675, 694
(Tex. Crim. App. 2009) (rejecting contention that death penalty, as presently administered in Texas,
amounts to cruel and unusual punishment); Russeau v. State, 291 S.W.3d 426, 437 (Tex. Crim. App.
2009) (rejecting claim that death penalty scheme is unconstitutional for failing to provide a
meaningful sufficiency review of mitigation issue); Saldano v. State, 232 S.W.3d 77, 105 (Tex.
Crim. App. 2007) (rejecting claim that statutory punishment instructions fail “to provide a rational
basis to permit a discretionary grant of mercy based on mitigating circumstances”); Roberts v. State,
220 S.W.3d 521, 534 (Tex. Crim. App. 2007) (rejecting claim that mitigation special issue
unconstitutionally narrowed mitigating evidence to that which reduced moral blameworthiness);
Prible v. State, 175 S.W.3d 724, 737 (Tex. Crim. App. 2005) (rejecting complaint about anti-
sympathy instruction).
PETETAN — 98
In his argument that the death penalty is cruel and unusual punishment, appellant cites to Justice
Breyer’s recent dissent in Glossip v. Gross, but we are not at liberty to follow a dissent, even from
a Supreme Court justice, in construing the Eighth Amendment.166 Moreover, we have held that it
is sufficient to dispose of these types of death-penalty challenges “by recognizing that the trial court
submitted a charge consistent with the applicable state statutes, which have withstood numerous
constitutional challenges.”167 Points of error twelve through twenty-six are overruled.
VI. JUDGMENT ISSUES
In point of error twenty-eight, appellant contends that the judgment should be modified to
reflect that he was convicted of a capital felony rather than a first degree felony. The State does not
oppose relief on this claim.
Under the heading “Degree of Offense,” the judgment specifies, “1ST DEGREE FELONY.”
Capital murder is a capital felony, not a first degree felony.168 Point of error twenty-eight is
sustained. We order that the judgment be modified to reflect the degree of offense as a “CAPITAL
FELONY.”
In point of error twenty-nine, appellant contends that the judgment should be modified to
reflect that punishment was assessed by the trial court rather than by the jury. Under the heading,
166
Janecka v. State, 937 S.W.2d 456, 475 (Tex. Crim. App. 1996) (“[A]ppellant urges us
to adopt Justice Blackmun’s dissenting opinion in Callins v. Collins, 510 U.S. 1141 (1994), to hold
that the tensions between the requirements of well defined death eligibility and open-ended
consideration of mitigating evidence are irreconcilable and render capital punishment
unconstitutional. Of course we are not at liberty to do so—at least not for purposes of construing
the Eighth Amendment. Referring instead to the authoritative, contrary holdings of” the Supreme
Court, “we must overrule” the appellant’s claim.)
167
Davis, 313 S.W.3d at 355 (quoting Saldano, 232 S.W.3d at 107).
168
See TEX . PENAL CODE § 19.03(b). See also id. §§ 12.04, 12.31.
PETETAN — 99
“Punishment Assessed by,” the judgment specifies, “JURY.” Appellant contends that, although the
jury answered the punishment special issues, the trial judge actually assessed punishment. We
disagree. If the jury makes the findings required to impose the death penalty, statute provides that
“the court shall sentence the defendant to death.”169 The use of the verb “sentence” here is a
reference to the imposition of sentence, not to the assessment of sentence.170 Despite loose language
in some of our appellate opinions,171 the trial judge never assesses a death sentence. The jury
indirectly assesses a death sentence by answering the special issues in a way that requires the judge
to impose the death sentence.172 The notation that punishment was assessed by the jury in this case
is more accurate than saying that it was assessed by the trial court, and we decline appellant’s
invitation to change it. Point of error twenty-nine is overruled.
169
TEX . CODE CRIM . PROC. art. 37.071, § 2(g).
170
See Wright v. State, 506 S.W.3d 478, 481 (Tex. Crim. App. 2016), for an example of the
difference between sentence being assessed and sentence being imposed.
171
See Leal v. State, 303 S.W.3d 292, 294 (Tex. Crim. App. 2009) (“The jury found
appellant ‘guilty of capital murder as charged in the indictment’ and answered the special issues in
such a manner that the trial court assessed a sentence of death.”); Ex parte Alba, 256 S.W.3d 682,
683 (Tex. Crim. App. 2008) (similar language); Ex parte Kerr, 64 S.W.3d 414, 415 (Tex. Crim.
App. 2002) (similar language); Robison v. State, 888 S.W.2d 473, 475 (Tex. Crim. App. 1994);
Johnson v. State, 853 S.W.2d 527, 529 (Tex. Crim. App. 1992).
172
See Hartfield v. Thaler, 403 S.W.3d 234, 238 (Tex. Crim. App. 2013) (Under pre-1987
law, the defendant received a complete new trial rather than a new trial on punishment only in a
capital case because that was the law “when punishment was assessed by a jury and a new trial was
awarded on the basis of punishment error.” We also quoted Judge Onion’s statement in Whan v.
State, 485 S.W.2d 275, 278 (Tex. Crim. App. 1972) (Onion, J., dissenting), that, “A jury alone may
assess the death penalty.”). See also Holberg v. State, 425 S.W.3d 282, 283 (Tex. Crim. App. 2014)
(“The jury found the appellant guilty as charged in the indictment and assessed a sentence of
death.”); Hammett v. State, 578 S.W.2d 699, 702 (Tex. Crim. App. 1979) (“The jury returned an
affirmative finding to each special issue submitted under Article 37.071(d), V.A.C.C.P., and
accordingly punishment was assessed at death.”).
PETETAN — 100
VII. DISPOSITION
We modify the trial court’s judgment to reflect that the degree of offense for which appellant
was convicted was a “capital felony” and otherwise affirm the trial court’s judgment.
Delivered: March 8, 2017
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