ORDER
PER CURIAM.
On November 10, 1988, Applicant was convicted of the offense of capital murder. The jury answered the special issues submitted under Article 37.071 of the Texas Code of Criminal Procedure, and the trial court, accordingly, set punishment at death. The conviction was affirmed on direct appeal. Butler v. State, 872 S.W.2d 227 (Tex.Crim.App.1994). Applicant's initial writ, Ex parte Butler, No. WR–41,121–01, was denied on April 28, 1999. Applicant's first subsequent writ, Ex parte Butler, No. WR–41,121–02, in which he claimed that his execution would violate the Eighth Amendment's prohibition against the execution of the mentally retarded, was denied on June 27, 2007.
After the United States District Court for the Southern District of Texas denied federal habeas relief, Applicant appealed to the United States Court of Appeals for the Fifth Circuit. The record reflects that the Fifth Circuit has entered an order staying its proceedings in Cause Number 09–70003, styled Butler v. Thaler, for Applicant to return to state court to present his claim.
This Court denied Applicant's Atkins claim in 2007, after Dr. George Denkowski testified for the State at the hearing on the –02 writ application. See Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). In April 2011, Denkowski entered into a Settlement Agreement with the Texas State Board of Examiners of Psychologists, in which his license was “reprimanded.” Pursuant to this Settlement Agreement, Denkowski agreed to not accept any engagement to perform forensic psychological services in the evaluation of subjects for mental retardation or intellectual disability in criminal proceedings. Applicant thereafter submitted a suggestion that this Court “reconsider on its own initiative” its denial of his Atkins claim. On December 14, 2011, we exercised our authority to reconsider this cause on our own initiative. We remanded this cause to the trial court to allow it the opportunity to re-evaluate its initial findings, conclusions, and recommendation in light of the Denkowski Settlement Agreement.
On February 28, 2012, the trial court signed an order adopting the State's Proposed Findings of Fact and Conclusions of Law which recommended that relief be denied. We have reviewed the record and the February 28, 2012 findings of fact and conclusions of law. Based upon the trial court's findings and conclusions and our own review, we deny relief.
IT IS SO ORDERED.
COCHRAN, J., filed a concurring statement in which HERVEY, and ALCALA, JJ., joined.
PRICE, J., filed a dissenting statement in which JOHNSON, J., joined.
COCHRAN, J., filed a concurring statement in which HERVEY and ALCALA, JJ., joined.
I agree that applicant has not established, by a preponderance of the evidence, that he has that level and degree of intellectual disability “at which a consensus of Texas citizens would agree that a person should be exempted from the death penalty.” 1 He has not proven that he is mentally retarded for purposes of the Eighth Amendment bar upon execution. 2 I write separately to provide some factual context for that conclusion.
The evidence at applicant's 1988 capital murder trial showed that he was a successful, independent, “Stop–N–Rob” stick-up artist. The State presented evidence of a string of ten different robberies that applicant committed between May 2, 1986, and September 23, 1986. In this five-month period, applicant killed two clerks in separate robberies, shot a third clerk in another robbery, and sexually assaulted clerks in two other robberies. He had a simple, but effective, modus operandi that showed careful planning and thoughtful execution. Here are those robberies and the circumstances surrounding them:
| Robbery at the Stop–N–Go in Channelview (Shelton Road). |
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Applicant killed the clerk, Jeff Johnson, by shooting him in the stomach with a .38 revolver. Applicant confessed to the murder.3
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| Applicant hid his car behind the store and pulled out his gun only when he saw that the clerk was alone in the store. |
| Robbery at the Stop–N–Go in Channelview (River Road).4
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Applicant robbed the clerk, 20–year–old Renee Wallace. When she was alone in the store, he pointed a short, dark gun at her; she opened the cash register and applicant took out all the bills. |
| Robbery at the Stop–N–Go in Channelview (River Road). |
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Applicant returned to the same store and, once again, robbed the clerk, Renee Wallace, asking her if she remembered him. She did. Once again, she was alone in the store. |
| Applicant said, “You know what I'm here for.” She did. She once again opened the register, and he once again took all the bills. |
| Applicant told Ms. Wallace that the store “needed a better security system.”
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| Robbery at the Maxi–Stop 2 in Mont Belvieu off of I–10. |
| Applicant came into the store from across the road, and asked the clerk, Charlotte Jean Holloway, if she sold Slurpees. When she said, “No,” he bought a fountain drink and walked outside. |
| Applicant came back ten minutes later and asked if she would sell him a beer. Ms. Holloway said “No,” because it was a Sunday and not yet noon. He waited in the store until it was noon, then bought a bottle of beer and walked outside again. |
| Applicant came back a third time, when there were no customers in the store or the parking lot. He walked in very quickly and grabbed Ms. Holloway, pulling a gun out and sticking it in her ribs. |
| Applicant said, “Give me everything you've got. I want all the money.” 5 Ms. Holloway opened the register and applicant pulled out all the bills. As applicant left, he told Ms. Holloway, “If you touch that phone, I will kill you.” Then he walked out the door. |
| Capital murder (charged offense) at Fashion Cleaners on Woodforest Boulevard. |
| Applicant shot the clerk, Velma Clemons, in the stomach with his .38 Special when she refused to give him money.6 She was alone in the store when applicant came into the cleaners. |
| Robbery at C.W.'s Exxon Quick Stop in Winnie off of I–10. |
| Applicant parked his car on the north side of I–10 and crossed to the Exxon on the south side of I–10. Applicant walked in, saw that there were no other customers, went to the back of the store, picked up a Coke, and brought it to the clerk, Gwen Blackwell, at the register.
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According to his confession, applicant “pulled out [his] pistol, a blue steel 38 caliber revolver, snub nosed, and pointed it at the lady clerk.” He said, “Give me your money,” so she did. Applicant said that she gave him approximately $350.7
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| Robbery at the Phillips “Freeway 66” gas station on I–10 in Orange.8
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| Applicant parked east of the gas station, pulled up the hood of his car, and put on the emergency flashers to make it look like he had had car trouble.9
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| Applicant came in and asked the clerk, 73–year–old Boyd Ford, if there was a telephone. Mr. Ford said there was one outside, and applicant left when he saw there was a customer in the store. He came back inside after the customer and his small child left. |
| Applicant said, “Old man, this is it.” Mr. Ford looked down and saw the gun applicant was holding. Mr. Ford said, “It's not much here, but you sure in the hell can have it.” Applicant took $120 and walked out. Then he ran down the service road where his car was parked out of sight. |
| Robbery at the Amoco In–and–Out Minimart on I–10 in Jennings, Louisiana. |
| Applicant came into the store at about 8:15 p.m. when the 22–year–old clerk, Madonna Benoit, was alone and talking on the telephone. He walked around the store, then disappeared as Ms. Benoit heard him open and shut the storeroom door. Then applicant came up behind the counter and faced Ms. Benoit. He pulled a gun from his pants, pointed it at her stomach, and said, “Give me your money and you won't be hurt.” She opened the register and applicant took the money.
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As applicant was walking out the door, Ms. Benoit picked up the phone and told her girlfriend that she had just been robbed. Applicant turned around, said, “What did you say, white bitch?” Then he came back in, went around the counter, shot Ms. Benoit in the left hip, and left. |
| Robbery and sexual assault at the Fina Station in Winnie.10
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| Applicant came into the store after midnight when the clerk, Winnie Silcox, was alone. He walked to the beer cooler to get a Budweiser, but Ms. Silcox told him “Sir, I can't sell you no beer” because it was after midnight. Applicant said, “Oh, come on, mama, nobody will know.” He was dancing and “jiving,” but then he reached into his pants and pulled out a black gun. He put it at Ms. Silcox's head and said, “Give me all your money.” She opened the register and gave him the money. Then he said, “I want to get in your safe” which was in the storeroom. |
| Applicant made Ms. Silcox walk back to the storeroom, then he jerked her down by her hair, unzipped his pants, and said, “Come on, bitch, do it like you do your boyfriends. You're going to suck my dick.” She did so, as applicant kept pressing his gun into her head. She got sick and started throwing up. After he was done, applicant left. |
| Robbery and sexual assault at the C.W.'s Exxon Quick Stop (same store as the Aug. 28th robbery). |
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Applicant came “busting” in the door and confronted the clerk, Frances Hartman, who was alone. He said, “I told you I was coming back, you motherf* * * bitch.” He was holding a short, dark gun. Ms. Hartman had never seen applicant before and had no idea what he was talking about. Applicant came up to the register and said, “Open up the register.” She did. Then applicant said, “Is this all the money that there
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