Neal v. State

• Decision Date: 18 June 2008
• Docket Number: No. AP-75406.,AP-75406.
• Citation: 256 S.W.3d 264
• Parties: Ronnie Joe NEAL, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

256 S.W.3d 264

Ronnie Joe NEAL, Appellant v. The STATE of Texas.

No. AP-75406.

Court of Criminal Appeals of Texas.

June 18, 2008.

Angela J. Moore, Bexar County Public Defender, San Antonio, for Appellant.

Daniel Thornberry, Asst. Crim. D.A., San Antonio, Jeffrey L. Van Horn, State's Attorney, Austin, for the State.

OPINION

KELLER, P.J., delivered the opinion of the Court in which WOMACK, KEASLER, HERVEY and HOLCOMB, JJ., joined.

A jury convicted appellant of capital murder.¹ Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure, Article 37.071, §§ 2(b) and 2(e), the trial judge sentenced him to death.² Direct appeal to this Court is automatic.³ Appellant raises twenty-six points of error. We find all of them to be without merit and therefore affirm.

I. DETERMINATION OF MENTAL RETARDATION

Appellant's first three points of error concern the absence of legislation implementing procedures consistent with the United States Supreme Court's holding in Atkins v. Virginia.⁴ In point of error one, appellant argues that Texas's death penalty scheme violates the Eighth and Fourteenth Amendments to the United States Constitution given the absence of such legislation.

The Supreme Court held in Atkins that the execution of a mentally retarded person violates the Eighth Amendment's prohibition on "cruel and unusual punishment."⁵ Recognizing that there is "serious disagreement" in "determining which offenders are in fact retarded," the Court "[left] to the States the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences."⁶ In response to Atkins, this Court created temporary judicial guidelines for trial courts in the absence of legislation.⁷ We set forth a substantive test (detailed below under points of error eight and nine) and procedural guidelines for trial courts to follow in determining whether a defendant is mentally retarded for the purposes of an Atkins claim.⁸ Over four years later, the Texas legislature still has not enacted any legislation on this matter.

Appellant argues that the use of judicial rather than statutory guidelines contravenes the mandate of Atkins. The Supreme Court repeatedly stated, however, that it was "leav[ing] up to the States" how to ensure that the death penalty not be imposed on mentally retarded defendants.⁹ The opinion never specified that this task must be performed exclusively by state legislatures rather than any other state government entity. Atkins specified the end result to be achieved; it did not delineate the mechanisms through which to achieve them, except that they are to occur at the state level. If the Court had intended to direct only legislatures to act, then it could have easily referred to "the state legislatures." Appellant's contention that the Supreme Court's references to "the States" actually meant "the state legislatures" is untenable.

Appellant argues that the Supreme Court itself, in Schriro v. Smith, reversed a Ninth Circuit opinion instructing a trial court on how to comply with Atkins.¹⁰ This argument misreads that case. The Supreme Court did not say that the Ninth Circuit was a judicial body usurping a function properly reserved to the legislature. Rather, the Court explained—in a short, per curiam opinion—that the Ninth Circuit was a federal body usurping a function that the Atkins opinion had plainly vested in "the States."¹¹ Schriro simply did not present any issue of whether a particular ruling by a state court might be subject to constitutional challenge.¹²

Appellant maintains that the continued application of our guidelines violates the separation of powers clause of the Texas Constitution,¹³ relying largely on our statement in Briseño that "[t]his Court does not, under normal circumstances, create law."¹⁴ Yet we included that dictum precisely because we faced not a "normal" situation but an extraordinary one.¹⁵ The holding in Atkins had compelled us, in the absence of any applicable legislation, to ensure that the procedures used in Texas conform to the Supreme Court's interpretation of the Eighth Amendment.¹⁶ Appellant does not take issue with that decision, but maintains that the procedures are no longer valid because we stated in Briseño that they would be merely "temporary judicial guidelines" during a "legislative interregnum."¹⁷ However, in the four years since we decided Briseño, nothing new has happened to invalidate those guidelines. We remain in the same situation we were in the day we decided Briseño: the legislature has not acted. The rationale set forth in that opinion thus continues to apply to capital cases in which mental retardation is at issue.

Unless legislative action is taken, the current guidelines remain in effect because there is no adequate alternative that would ensure that our judicial system complies with the Supreme Court's mandate. Appellant asks us to delay the administration of justice until some indeterminate point in the future, but we must remember that, as we observed in Briseño, "justice delayed is justice denied."¹⁸ Indeed, if we were to satisfy appellant's request, we would not know if that point would ever arrive, as it is impossible to know whether the legislature will ever take action. Appellant never clarifies what he would like to happen if no legislation is ever enacted, but the logical extension of his argument is that capital cases in which mental retardation is at issue would be relegated to a legal noman's land, unable to reach a final resolution. To avoid such a denial of justice, we uphold the Briseño framework unless and until relevant legislation is enacted. Point of error one is overruled.

In point of error two, appellant argues that the lack of statutory procedures for adjudicating Atkins claims violates equal protection by subjecting different defendants to different trial procedures. We have repeatedly held to the contrary.¹⁹ Appellant draws an analogy to the county-to-county discrepancies among election procedures at issue in Bush v. Gore,²⁰ but we have rejected precisely this analogy in previous cases.²¹ Point of error two is overruled.

In point of error three, appellant contends that the trial court erred in failing to abate the proceedings until the legislature enacts statutory guidelines for determining mental retardation. This point of error presupposes that the lack of such legislation violates appellant's constitutional rights. As we have already rejected appellant's claims to that effect, we reject this one as well. Point of error three is overruled.

In point of error six, appellant contends that the trial court erred in declining to empanel a separate jury to determine whether appellant is mentally retarded. Appellant argues that the jury had not been qualified at voir dire to determine the issue of mental retardation, but he forfeited this claim by failing to question the jurors on mental retardation at voir dire. Appellant further argues that the jury's determination was tainted because it had already found appellant guilty and was thus predisposed to find that he was not mentally retarded. We have found no authority for the proposition that mental retardation may not be determined by a jury that has already determined guilt, and appellant cites none. Indeed, we have noted that the nature of the offense itself may be relevant to a determination of mental retardation;²² thus, a jury already familiar with the evidence presented at the guilt stage might be especially well prepared to determine mental retardation. We see no basis on which to impose on trial courts a requirement to empanel a separate jury to determine whether a defendant is mentally retarded. Point of error six is overruled.

In points of error eight and nine, appellant contends that the jury's determination that appellant is not mentally retarded is against the great weight and preponderance of the evidence. For the purposes of an Atkins claim, we have defined mental retardation as "1) significant sub-average general intellectual functioning, usually evidenced by an IQ score below 70, that is accompanied by, 2) related limitations in adaptive functioning, 3) the onset of which occurs prior to the age of 18."²³ Factors relevant to evaluating the three prongs include:

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?²⁴

When an affirmative defense of mental retardation is asserted at trial, the defendant bears the burden to prove by a preponderance of the evidence that he is mentally retarded.²⁵ In reviewing the sufficiency of the evidence to support a finding on mental retardation, we examine whether the finding is "so against the great weight and preponderance of the evidence so as to be manifestly unjust."²⁶ We give "great deference" to the findings below, as the fact finder is in the best position to assess witnesses' credibility and resolve any conflicts in the evidence.²⁷

We turn now to the evidence pertaining to mental retardation. The defense presented two experts, but we will review only the testimony of Dr. Richard Garnett because he was the only one...