Opinion
No. WR-48,694-02/03
Delivered: February 6, 2006. DO NOT PUBLISH.
On Application for Writ of Habeas Corpus, and Writ of Mandamus, in Cause No. 0685474 from the 371st District Court of Tarrant County.
PER CURIAM, COCHRAN, J., filed a statement concurring in the dismissal of the writ and denial of a stay of execution, in which JOHNSON and KEASLER, JJ., joined.
ORDER
This is a subsequent application for writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure, Article 11.071, Section 5, and a motion for leave to file writ of mandamus. Applicant asserts he is mentally retarded and cannot be executed. He also alleges the trial court has failed to properly apply Texas Code of Criminal Procedure, Article 43.141 in setting the date of execution. Applicant was convicted of capital murder and waived his right to appeal and to file an application for writ of habeas corpus. This Court ordered that the trial court determine whether the waiver was knowingly and voluntarily entered. On September 19, 1999, the trial court confirmed that applicant knowingly and voluntarily waived his right to counsel and to pursue his post conviction rights of appeal and habeas corpus. This Court reviewed the record of the trial, found no fundamental error and affirmed the conviction and sentence. Neville v. State, No. 73,368 (Tex.Crim.App. December 1, 1999). When the mandate issued from this Court, the trial court set a date for execution. At that time applicant rescinded his waiver of habeas corpus, counsel was appointed, the death warrant was withdrawn, and an application was filed. After reviewing the application, this Court denied relief. Ex parte Neville, No. WR-48,694-01 (Tex.Crim.App. March 28, 2001). We have reviewed this application and find that it does not meet the requirements of Texas Code of Criminal Procedure, Article 11.071, section 5, for consideration of the claims raised in a subsequent application for writ of habeas corpus. As such, the application is dismissed as an abuse of the writ. We also find that the trial court did not fail to properly observe the statutory requirements in setting the date of execution under the provisions of Texas Code of Criminal Procedure, Article 43.141. Leave to file the motion for writ of mandamus is denied. The motion to stay execution is denied. IT IS SO ORDERED.
In this subsequent writ application, filed pursuant to Article 11.071, § 5, of the Texas Code of Criminal Procedure, applicant presents a claim of mental retardation under Atkins v. Virginia. I join in the Court's Order dismissing applicant's subsequent writ application because he has failed to make a prima facie showing that he is, in fact, mentally retarded. In Atkins, the Supreme Court stated that any "serious disagreement about the execution of mentally retarded offenders, is in determining which offenders are in fact retarded." Thus, the Supreme Court left it to the individual states to develop appropriate standards, definitions, and procedures to determine which offenders are so mentally impaired that their execution is barred by the Eighth Amendment to the United States Constitution. Because the Texas Legislature has not yet enacted a statutory basis for implementing Atkins, this court provided interim guidelines in Ex parte Briseno.. Under the guidelines set out in Briseno, a person is considered mentally retarded under Texas law if he has these three characteristics: (1) significantly subaverage general intellectual functioning, an IQ of about 70 or below; (2) related limitations in adaptive functioning; and (3) onset of the above two characteristics before age eighteen. Applicant has failed to make a prima facie showing on any of these three prongs. He asserts that, to the best of his knowledge, he has never had an I.Q. test. Instead, he points to evidence from his trial that he suffers from a blood disease known as systemic lupus erythematosus (lupus) which is similar to cancer or AIDS. Lupus is an autoimmune disease which can attack multiple organs, including the brain. It may cause those who are affected by lupus to behave irrationally, erratically, and emotionally. Lupus, according to the defense expert who testified at applicant's trial, is not curable, but it is treatable. The expert also stated that applicant suffers from a mental illness called "lupus-induced bipolar disorder" which resulted in "pseudopsychopathic syndrome." But this evidence, though it may explain applicant's irrationality, erratic behavior, and emotional outbursts, does not show that lupus causes mental retardation or that there is any necessary scientific correlation between lupus and significantly subaverage intellectual functioning. The second prong of a mental-retardation claim requires an analysis of the person's adaptive behavior. Some people whose IQs fall at or below the general range of mental retardation are nonetheless able to function well (although perhaps by pursuing a career in criminality), while others whose IQs fall at or above the general range of mental retardation are wholly unable to function in society. In Briseno, this Court set out a list of seven non-exclusive factors which courts might consider when evaluating this second prong of mental retardation. Relevant to this second adaptive-behavior prong, applicant's counsel has submitted an affidavit with this subsequent application in which he states:
[Applicant] consistently acted inappropriately in making decisions. He waived his direct appeal in open court. I was so angry that I called [applicant] a goddamn fool on the record. At that time, I thought [applicant] was an absolute idiot. In addition, against my wishes, [applicant] did a videotape interview with [a prosecutor] of the Tarrant County District Attorney's Office. I told [applicant] not to do the interview; however, he was hellbent to grant the interview. As a result, I believe that the Tarrant County District Attorney's Office probably has a copy of the interview in their possession. Again, I thought [applicant] was 2x an idiot.I am not in a position to decide whether [applicant] is mentally retarded. All I can honestly say is that he acted in a fashion that I characterized as stupid given the context of his decisions. Stupid plus other factors may indicate mental retardation. However, I am not a mental health professional and can make no medical or psychological claim about [applicant's] mental status. Although a client might be unwise to ignore or reject his attorney's legal advice, that rejection is not prima facie evidence of his mental retardation. "Stupid" in such a context may relate to the wisdom of the decision made, not to the client's mental inability to make decisions. We cannot conclude from his attorney's affidavit that applicant's "stupid" decisions concerning legal proceedings were caused by or connected to mental retardation generally or limitations in adaptive behavior in particular. Another of applicant's attorneys has filed an affidavit stating that applicant's execution should be postponed because applicant has not had his I.Q. tested and he could be mentally retarded. This puts the cart before the horse. An inmate must make a prima facie showing of mental retardation before he is entitled to a stay of execution and further evidentiary development of that claim. The reverse is not true: an inmate is not entitled to a stay of execution simply because he does not have evidence of an IQ test. Applicant's second attorney states that applicant "exhibits some of the same traits and characteristics as those exhibited by other clients who have been found to be mentally retarded." But what are the relevant traits and characteristics that applicant displays and what evidence shows that these traits, characteristics and behavior are caused by mental retardation? Finally, applicant has failed to make any showing that the onset of any purported mental impairment or adaptive functioning deficiency (as opposed to an inherited physical disease such as lupus) occurred before age eighteen. Because applicant has failed to make a prima facie showing of mental retardation, I join in the Court's Order dismissing applicant's subsequent writ application under article 11.071, § 5, of the Texas Code of Criminal Procedure.
Applicant's execution is scheduled for February 8, 2006. This subsequent writ application was filed on January 31, 2006.
536 U.S. 304 (2002).
Id. at 317.
Id.
135 S.W.3d 1 (Tex.Crim.App. 2004).
Id. at 7-8; see also Hall v. State, 160 S.W.3d 24, 36 (Tex.Crim.App. 2004), cert. denied, 2005 U.S. LEXIS 5073 (U.S. June 27, 2005).
Id. at 8-9. The factors set out in Briseno were as follows:
* Did those who knew the person best during the developmental stage-his family, friends, teachers, employers, authorities-think he was mentally retarded at that time, and, if so, act in accordance with that determination?
* Has the person formulated plans and carried them through or is his conduct impulsive?
* Does his conduct show leadership or does it show that he is led around by others?
* Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable?
* Does he respond coherently, rationally, and on point to oral or written questions or do his responses wander from subject to subject?
* Can the person hide facts or lie effectively in his own or others' interests?
* Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?
Id.