Ex parte Tennard

• Decision Date: 18 December 1997
• Docket Number: No. 71678,71678
• Citation: 960 S.W.2d 57
• Parties: Ex parte Robert James TENNARD.
• Court: Texas Court of Criminal Appeals

Page 57

960 S.W.2d 57

Ex parte Robert James TENNARD.

No. 71678.

Court of Criminal Appeals of Texas En Banc.

Dec. 18, 1997.

Elizabeth Cohen, Austin, for appellant.

Kari Sckerl, Asst. Dist. Atty., Houston, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION

McCORMICK, Presiding Judge.

This is a post conviction application for writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P. We will deny relief.

In October 1986, a jury convicted applicant of capital murder, and sentenced him to die. This Court affirmed applicant's conviction and sentence on direct appeal. Tennard v. State, 802 S.W.2d 678 (Tex.Cr.App.1990). The United States Supreme Court denied applicant's petition for writ of certiorari on June 28, 1991. Tennard v. Texas, 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1077 (1991).

In this proceeding, applicant claims the Texas capital sentencing scheme applicable to his case ¹ was applied to him in violation of the Eighth and Fourteenth Amendments to the United States Constitution. He argues the special issues failed to provide his jury a vehicle to give mitigating effect to "relevant mitigating evidence" of his youth, "youthful incarceration" and what he claims is evidence of his mental retardation, all in violation of Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).

Viewed in the light most favorable to the verdict, the evidence shows applicant and two others brutally murdered two men in their home during a robbery. See Tennard, 802 S.W.2d at 679. Applicant lived behind the home of the victims, and he knew them. The victims had invited applicant and his two friends into their home approximately fifteen to thirty minutes before they were attacked. Applicant stabbed one of the victims fifteen times with a knife while one of applicant's friends killed the other victim with a hatchet. Applicant played a dominant role in disposing of the victims' stolen property. Applicant presented an alibi defense, and he presented other evidence from which the jury might have concluded that another person possibly could have committed the murders.

The evidence from the punishment hearing shows applicant had been on parole from a felony rape conviction for about three and one-half months when he committed this offense. The rape victim testified applicant and two others forced her into a car while she was at a bus stop. Just after she was forced into the car, applicant, who was displaying about a foot-and-a-half-long pipe-wrench, said to her, "[M]ove, white bitch, and you're dead."

The victim testified applicant and his friends took her to an abandoned apartment at some government project where applicant forced her to engage in oral, vaginal and anal sex with him. After that, applicant's two friends took turns sexually assaulting her.

Applicant and his friends then took the victim to another house where applicant began using drugs and discussing "pimping out" the victim. She asked applicant if she could go to the bathroom to take a bath, which he allowed her to do:

"Q. Now you told them that you wanted to take a bath?

"A. Yes, I did.

"Q. Did [applicant] say anything?

"A. He told me I wasn't going to try to run away, was I.

"Q. What did you tell him?

"A. I told him, 'No, baby. I like you. I wouldn't do that.' "

After applicant let the victim go to the bathroom, she escaped through a window, and applicant was arrested later that day. The victim testified applicant appeared to be the leader during her ordeal. Applicant impeached the victim's testimony with a prior statement she made from which the jury could have inferred one of applicant's friends was the leader.

Applicant's parole officer testified that a Texas Department of Correction's (TDC) record from applicant's incarceration for the rape conviction indicated he had a 67 IQ.

"Q. ... And did you in fact bring a documentation of what [applicant's] intelligence quotient is according to the test from the penitentiary?

"A. Yes, I did.

"Q. And what was the result of the test?

"A. It's a 67, sir."

During cross-examination of this witness, the State introduced the TDC record into evidence. This record appears to have been prepared approximately five years before applicant committed this offense, and there is a notation on the record indicating applicant had an IQ of 67. However, the witness could not say who prepared the report, or conducted the IQ test.

"Q. Mr. Kinard, this doesn't purport to be any report by any particular psychologist or anything, does it?

"A. No, sir.

"Q. It's basically just sort of, as its says, social and criminal history of [applicant]?

"A. Right, sir.

"Q. And it says, there's basically a line for IQ, and it says 67?

"A. That's correct.

"Q. And it has no indication of who may have given those tests or under what conditions?

"A. No sir, it doesn't."

This is all the evidence presented at applicant's 1986 trial on his "mental retardation." The term "mental retardation" is not mentioned anywhere in this record. Applicant also introduced evidence showing he was twenty-two years of age when he committed this offense, and he had spent most of his formative years incarcerated.

During closing arguments at the punishment phase, the prosecutor argued the facts of the crime itself showed applicant's "special dedication to violence."

"Look at the facts of the crime itself. You know pulling a pistol or pulling a trigger on a pistol is a fairly easy way to kill someone. Not easy, but it's a detached way. It takes a special dedication to violence to plunge a knife into a human body sixteen times."

Applicant referred to the IQ evidence twice during closing arguments at punishment. He referred to the evidence in responding to portions of the rape victim's testimony:

"... the information that they gave is that [appellant] has got a 67 IQ. The same guy that told this poor unfortunate woman that was trying to work that day, 'Well, if I let you in there, will you leave?' And he believed her. This guy with the 67 IQ, and she goes in and, sure enough, she escapes, just like she should have. That is uncontroverted testimony before you, that we have got a man before us that has got an intelligence quotient before us that is that low."

And, he asked the jury to take into account the IQ evidence in answering the special issues:

"... none of you are suffering from a 67 IQ. So you're going to have to try to judge this man and decide what his punishment would be as his peers."

Evidence of Youth and Previous Incarceration

Applicant argues the special issues failed to provide the jury a vehicle to give mitigating effect to evidence of his youth and evidence that he spent most of his formative years incarcerated. We disagree.

This Court and the United States Supreme Court have held the special issues allow the fact finder to give mitigating effect to evidence of a defendant's youth and good prison record. See Johnson v. Texas, 509 U.S. 350 Since the special issues allow the fact finder to give mitigating effect to this kind of evidence, they also allow the fact finder to consider and give mitigating effect to any mitigating qualities of evidence of "youthful incarceration." In any event, applicant has not established any "nexus" between his "youthful incarceration" and the "circumstances of the offense which tend[s] to excuse or explain the commission of this offense." See, e.g., Earhart v. State, 877 S.W.2d 759, 765 (Tex.Cr.App.1994), cert. denied, 513 U.S. 966, 115 S.Ct. 431, 130 L.Ed.2d 344 (1994). And, the proposition that evidence of "youthful incarceration" possesses any mitigating qualities is almost absurd. We hold the special issues provided the jury a vehicle to give effect to any mitigating qualities of the evidence of applicant's youth and "youthful incarceration."

367-69, 113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993); Jones v. State, 843 S.W.2d 487, 497 (Tex.Cr.App.1992), cert.denied, 507 U.S. 1035, 113 S.Ct. 1858, 123 L.Ed.2d 479 (1993); Ex parte Harris, 825 S.W.2d 120, 122 (Tex.Cr.App.1991). And, we have held the special issues allow the fact finder to consider and give mitigating effect to evidence of a troubled or abusive childhood. See Ex parte Jacobs, 843 S.W.2d 517, 520 (Tex.Cr.App.1992); Goss v. State, 826 S.W.2d 162, 166 (Tex.Cr.App.1992); Lewis v. State, 815 S.W.2d 560, 567 (Tex.Cr.App.1991).

Mental Retardation

Applicant also claims the special issues failed to provide the jury a vehicle to give mitigating effect to evidence of his "mental retardation." He claims this Court should "reaffirm its bright-line rule" that " 'evidence of mental retardation falls beyond the scope of the [former] statutory special issues.' " See, e.g., Earhart, 877 S.W.2d at 765. The first question we must ask is whether there is any evidence that applicant is mentally retarded. Applicant would have this Court hold under Penry that a five-year-old reference in an obscure TDC record to applicant's IQ score of 67 shows applicant is mentally retarded, and that evidence of an IQ of 70 or less is sufficient evidence to support a finding of mental retardation. We decline to do so.

According to the American Association on Mental Retardation (AAMR), a person is considered to be mentally retarded only when there is evidence of: (1) subaverage general intellectual functioning, (2) concurrent deficits in adaptive behavior, and (3) onset during the early development period. See David L. Rumley, Comment: A License to Kill: The Categorical Exemption of the Mentally Retarded from the Death Penalty, 24 St. Mary's Law Journal Number 4 1299, 1312-14 (1993). Texas has adopted the AAMR three-part definition of mental retardation in the "Persons With Mental Retardation Act." See V.T.C.A., Health & Safety Code, Section 591.003(13) ("mental retardation" means significantly subaverage general intellectual functioning that is concurrent with deficits in adaptive behavior and originates during the...