Ex parte Cathey

• Decision Date: 05 November 2014
• Docket Number: 55,161–02
• Citation: 451 S.W.3d 1
• Parties: Ex parte Eric Dewayne Cathey, Applicant
• Court: Texas Court of Criminal Appeals

451 S.W.3d 1

Ex parte Eric Dewayne Cathey, Applicant

55,161–02

Court of Criminal Appeals of Texas.

Delivered: November 5, 2014

Roe Meredith Wilson, Houston, Lisa C. McMinn, State's Attorney, Austin, for the State.

Layne E. Kruse, Fulbright & Jaworski, Houston, for Appellant.

OPINION

COCHRAN, J., delivered the opinion of the Court in which KELLER, P.J., and MEYERS, WOMACK, JOHNSON, KEASLER, HERVEY, and ALCALA, JJ., joined.

Applicant was convicted of capital murder and sentenced to death in 1997 for fatally shooting Cristina Castillo while kidnapping her. We affirmed his conviction and sentence in 1999,¹ and denied relief on his first application for a writ of habeas corpus in 2003.² On the day before his scheduled execution, applicant filed a subsequent writ alleging, for the first time, that he was mentally retarded and therefore exempt from the death penalty. The next day we stayed applicant's execution and issued an order finding that his claim satisfied the requirements of Article 11.071, § 5, and remanded the case to the trial court to conduct a hearing on his mental retardation claim.³ The trial judge conducted a five-day hearing that included testimony from numerous expert witnesses. Both the State and applicant filed proposed findings of fact and conclusions of law on February 21, 2011. On December 31, 2012, almost two years after the hearing and on the last day of her term of office, the trial judge signed applicant's proposed findings of fact and conclusions of law. We filed and set this case and ordered briefing by the parties.

We hold that applicant has not established, by a preponderance of the evidence, that he is mentally retarded⁴ under Atkins v. Virginia⁵ and Ex parte Briseno ;⁶ therefore he is not exempt from the death penalty. We conclude that the record does not support the habeas judge's factual findings or legal conclusions. In short, the judge erred in finding,

(1) The “Flynn Effect” authorized her to subtract 5.4 points from applicant's IQ score of 77, and the standard measurement of error authorized her to subtract another 5 points from his IQ score, thus concluding that applicant's “true” IQ score is as low as 66.6.

(2) The State was not allowed to have applicant's IQ retested with a more recently normed test when Dr. Flynn testified that his purpose in the “Flynn Effect” is to show that IQ tests should be normed and revised with greater frequency.⁷

(3) The Vineland test answers given by applicant's sister trying to retrospectively remember her brother's behavior twenty-six years earlier and that of his former wife some eighteen years earlier were scientifically valid.

(4) The Vineland test answers given by applicant's sister and his former wife were reliable when, in fact, they contradicted their prior trial testimony at a time that they had no motive to exaggerate applicant's poor adaptive behavior.

(5) The applicant is mentally retarded or intellectually disabled, because we conclude that the evidence clearly demonstrates his intellectually competent adult behavior.

Although we agree that factfinders may “consider” the concept of the “Flynn Effect” in assessing the validity of a WAIS or WAIS–R IQ test score, they may consider that effect only in the way that they consider an IQ examiner's assessment of malingering, depression, lack of concentration, and so forth. It is a generalized consideration that could detract from the over-all validity of the score obtained. The preferred solution to an outdated IQ score is not to start subtracting from that score, it is to retest with a more recently normed IQ test.⁸ As Professor James Flynn⁹ stated at the writ hearing, “[T]here would be no competent clinical psychologist today, if they inherited a score from a school psychologist that was ten years obsolete, any competent one would throw that out and regive a test. That I will say flatly.”

In sum, the trial judge's finding that Dr. Yohman's 1997 IQ test score was reliable after subtracting ten points was contradicted by the evidence and led to further factual-findings errors, including an error in the ultimate factual finding that applicant is intellectually disabled under Atkins.

I.

Applicant was charged with capital murder for fatally shooting twenty-year-old Cristina Castillo while kidnapping her on September 12, 1995. The evidence at trial showed that applicant, along with five other men, planned to rob Cristina and her boyfriend, Hector Alicia, because they thought the two had drugs and money in their apartment. According to one of the conspirators, applicant was the only person armed. He had a 9 mm pistol and grabbed Cristina as she was getting out of her car at the apartment complex. Applicant held Cristina at gunpoint and forced her into a red car occupied by several of the conspirators, who then tied her up with duct tape. Applicant called the other conspirators, who were in a white car, and told them to meet at his mother's house on Palmer Street.

Once at the Palmer Street house, all six men questioned Cristina in an attempt to find the drugs and money. Even though they began to beat her, Cristina continued to deny any knowledge of drugs or money and told them that she was pregnant. Applicant and two others continued kicking and beating Cristina for about fifteen minutes. Finally, they took her to a remote location to abandon her. As one set of conspirators drove off, leaving Cristina with applicant, they heard a gunshot. Applicant later told his cohorts that he had shot her. Cristina's decomposed body was found almost two weeks later in a field. She had been shot three times in the head, and three 9–mm Luger casings were recovered from underneath her body. Police were able to match the shell casings to a 9 mm pistol that Mark Young had snatched from applicant over a month after the murder.

At the punishment phase, evidence of applicant's prior acts of violence was admitted, including evidence of the kidnapping of Mark Young and two little girls at a Chevron station. Evidence showed that applicant was accompanied by two other men, and he was armed and in charge. He made Mr. Young get into the back seat of his own car while applicant drove that car with the two little girls jammed in the front seat. He demanded money from Mr. Young and wanted to know where he lived, but, when the car stopped near some semi-abandoned apartments, Mr. Young was able to snatch applicant's semi-automatic pistol away from him. Then applicant and his two cohorts ran off.

In a different incident, Frank Condley testified that he was walking from his apartment near the Sherwood Forest Apartments to a convenience store when he saw some men with cocked guns in a nearby parked van. Mr. Condley turned away, but applicant came after him, armed with a .38 or 9 mm gun in each hand. Applicant ordered Mr. Condley to lie down and then shot the prostrate man four times as he begged for his life. He still has three bullets in his body because they were lodged so close to his spine.

Antonio Glenn testified that he lived across the street from applicant during 1995 and sold cocaine to him in the Sherwood Forest Apartments. Applicant would then cut it and resell it for a 50% profit. One time applicant came to Glenn's apartment with a sawed-off shotgun, forced Glenn to undress, tied him up, and held his shotgun to Glenn's head, demanding drugs. When Glenn said that he didn't have any drugs right then, applicant beat him up with the stock of the shotgun.

Albert Garcia testified that applicant knocked on the door of his Sherwood Forest townhouse one night in October 1995 and demanded to be let in. Mr. Garcia refused to open his door and told applicant to leave. Applicant then began banging on the sliding glass patio door. The door broke while Mr. Garcia was calling 911, and applicant came into his bedroom, demanding to know where “the dope” was kept. He left through the front door with another man when Mr. Garcia told him that he was on the phone with the police.

Applicant's sister, Charlotte, testified that he went to Blackshear Elementary School, Brian Middle School, and Yates High School. He was “average” and played a little football and a little baseball while growing up. According to Charlotte, he was a “nerd” because he “read a lot of books, stayed to himself a lot, [and] did a lot of drawing.” Applicant and his brother were kind of “spoiled,” and “they never went without.” Applicant was shy but “he opened up more to older people.” As far as she knew, applicant did well in school, but he dropped out when he was seventeen to marry Noaella. They had two children, but later divorced. While he was married, applicant sometimes worked for Charlotte's former husband, Luke Ezeh, at Dynamic Battery Exchange.

Mr. Ezeh testified that applicant worked for him “off and on” between 1991 and 1993, when applicant was twenty to twenty-three-years old. Mr. Ezeh said that applicant was a technician and a good, trustworthy worker who could also watch the shop when Mr. Ezeh made deliveries. Applicant was twenty-four when he committed this capital murder.

Applicant's school records showed that he was home schooled during most of third grade because he had tuberculosis

, but he kept up with his class work.¹⁰ Applicant's former middle-school teacher, Anne Smith, testified that she taught him Texas history and she remembered him as “such a very well behaved, very nice, very sweet young man.” He was shy, but well-liked by both boys and girls. He had “very good home training ... he was a very mannerable child.” In reviewing applicant's school records, Ms. Smith noted that his conduct was always “[v]ery good to excellent.” She stated that applicant, like most of his schoolmates, “was functioning slightly below grade level.”¹¹ His high school records showed that he functioned at about the 30th/40th percentile in math; “[h]e passed all three sections of the math, the reading, and writing of the TEAMS Test, but he was still seriously below grade level.” Ms. Smith noted...