Petetan v. State

• Decision Date: 12 May 2021
• Docket Number: NO. AP-77,038,AP-77,038
• Citation: 622 S.W.3d 321
• Parties: US Carnell PETETAN, Jr., Appellant v. The STATE of Texas
• Court: Texas Court of Criminal Appeals

622 S.W.3d 321

US Carnell PETETAN, Jr., Appellant
v.
The STATE of Texas

NO. AP-77,038

Court of Criminal Appeals of Texas.

Filed: May 12, 2021

Sterling Alan Harmon, Seminole, for State.

Richard E. Wetzel, for Appellant.

Newell, J. filed an opinion in which Hervey, Richardson, Walker and McClure, JJ., joined.

Appellant was convicted of the capital murder of his wife, Kimberly Petetan. The jury rejected, in a special issue, Appellant's claim that he is intellectually disabled and therefore categorically ineligible for the death penalty.¹ And the jury answered the statutory special issues in such a manner that Appellant was sentenced to death. Appeal to this court is automatic. We affirmed.² Among the points of error we rejected were three relating to Appellant's claim that he is intellectually disabled: that the jury's answer to the intellectual disability special issue was against the great weight and preponderance of the evidence (claim 10); that he is ineligible for the death penalty due to intellectual disability (claim 11); and that he was entitled to a pre-trial determination of his intellectual disability (claim 27).

At the time of our decision, Texas's standard for evaluating claims of intellectual

622 S.W.3d 325

disability was being reviewed by the United States Supreme Court in the case of another Texas capital offender, Bobby James Moore. In 2015, we had held that Moore was not intellectually disabled and consequently was eligible for the death penalty.³ The question before the Supreme Court was whether Texas's legal standard for determining intellectual disability violated the Eighth Amendment's prohibition against the execution of intellectually disabled people.⁴ Before we issued our mandate in the instant case, the Supreme Court decided that it did.⁵

We granted rehearing in this case on our own motion to consider Appellant's tenth, eleventh, and twenty-seventh claims in light of Moore . We substitute this opinion on rehearing for our resolution of those three issues, but leave the resolution of the other issues in the original opinion intact. Here, we again reject the claim that Appellant was entitled to a pre-trial determination of his intellectual disability. Concerning the sufficiency of the evidence regarding the jury's rejection of his intellectual disability claims, we apply contemporary clinical standards—the framework set forth in the DSM–5⁶ —for assessing intellectual disability. We hold that, although legally sufficient, the evidence was factually insufficient to support the jury's rejection of the intellectual disability special issue. Appellant is therefore entitled to a new punishment hearing. Accordingly, we vacate Appellant's death sentence and remand this cause for a new punishment hearing.

Background

The United State Supreme Court has held that executing a defendant diagnosed with intellectual developmental disorder violates the Eighth Amendment. When the State seeks the death penalty, a criminal defendant wanting to raise this issue must prove, by a preponderance of the evidence, that he is intellectually disabled.⁷ He must prove that he has subaverage intellectual functioning, and significant limitations in adaptive skills such as communication, self-care, and self-direction—both manifest before age eighteen.⁸

Relevant to these criteria, the jury heard evidence at the punishment phase of Appellant's trial that all of Appellant's IQ scores, adjusted for the standard error of measurement, fell in the "significantly subaverage intellectual functioning" category, and that several experts had diagnosed

622 S.W.3d 326

Appellant with intellectual disability. First, the Texas Juvenile Justice Commission records showed that, in February of 1991, at age fifteen, Appellant was administered a child IQ test. The test yielded a full-scale IQ score of 61. It also yielded a verbal IQ score of 67 and a performance IQ score of 61.

Second, in November 1991, psychiatrist Dr. Harold Scott examined Appellant as he entered a juvenile justice facility. As a result of the examination and previous test scores, Dr. Scott diagnosed Appellant as having "mild [intellectual disability] versus borderline intellectual functioning." The phrase "versus borderline intellectual functioning" was a hedge on the intellectual diagnosis because Appellant's passive-aggressive nature and his stubbornness undermined the usefulness of the clinical interview as a measure of intellectual ability. Dr. Scott also diagnosed Appellant as having conduct disorder.

Third, psychologist Dr. Ray Coxe administered intelligence and achievement tests to Appellant at age sixteen in April 1992. This testing was for the Jefferson County Juvenile Probation Office. The intelligence tests for both children and adults were qualified for sixteen-year-olds, and Appellant took both tests. Appellant's full-scale IQ score on the child test was 64 and on the adult test was 74. Dr. Coxe testified that the first test—where he had doubts about whether Appellant was putting forth his full effort—was the child test, which yielded the lower IQ score. Dr. Coxe felt that the second test, the adult test that yielded an IQ score of 74, was a reliable indicator of Appellant's functioning. Nevertheless, Dr. Coxe testified that his "overall impression," based on the results of testing and on observations during interviews, was that Appellant "was mildly [intellectually disabled]." He also diagnosed him with "undersocialized aggressive conduct disorder."

Fourth, an IQ test was given to Appellant when he entered the adult prison system. Travis Turner, the Vice Chairman of Classification in the Texas Department of Criminal Justice, testified that an offender is given an initial IQ test upon entry. If the offender scores below a certain cutoff, then a "secondary test"—involving adaptive behavior screening—is given to determine whether the offender should be assigned to the "developmentally disabled" program in the Hodge Unit. Appellant's score on the IQ test was 69, so he was given the secondary test. There was no evidence of the results of that test. But Appellant was not assigned to the program; he was assigned to the prison's regular facilities.

Fifth, in 2012, IQ testing was done as part of a Social Security disability assessment. Appellant, by then age thirty-six, was administered the WAIS–III IQ test, which yielded a full-scale IQ score of 55. The psychologist who conducted the test, Dr. Mark Correia, did not testify at trial, but his report was admitted into evidence. Dr. Correia diagnosed Appellant as having mild intellectual disability and antisocial personality disorder. The "mild [intellectual disability]" diagnosis was provisional "due to lack of supportive documentation from the developmental period."

Sixth, neuropsychologist Dr. Joan Mayfield conducted IQ tests and other testing at the request of the defense. She administered the WAIS–IV IQ test and obtained a full scale IQ of 52. In light of all her testing, Dr. Mayfield concluded that Appellant "presents with global delays, global delays in intellectual ability and academic and attention and executive functioning and problem solving, memory, language, motor, and visual perception. There was global delays across all domains."

622 S.W.3d 327

And seventh, psychologist Dr. Ellis Craig conducted an evaluation at the request of the defense to determine whether Appellant had adaptive deficits. He used the Adaptive Behavior Assessment System II (ABAS–II), which uses people who know the subject (called "informants") to assess the subject's adaptive behavior in a number of areas. Dr. Craig conducted a "retrospective" screening, using reporting from family members. Dr. Craig concluded that the adaptive assessment scores fell within the range for moderate intellectual disability.

As defense counsel pointed out to the jury in closing, the State did not put on an opposing expert to say that Appellant was not intellectually disabled. The jury considered all the evidence related to Appellant's claim of intellectual disability and rejected it. The jury also found against Appellant on the mitigation special issue.

I. The Evolution of the Legal Framework for Determining Intellectual Disability

A. Atkins

In Atkins v. Virginia , the Supreme Court held that the Eighth Amendment bars the execution of intellectually disabled offenders.⁹ The Court stated that those intellectually disabled persons "who meet the law's requirements for criminal responsibility should be tried and punished when they commit crimes."¹⁰ But a death sentence is not a suitable punishment for an intellectually disabled criminal because the diminished capacity of the intellectually disabled criminal lessens his moral culpability.¹¹

The Court noted that clinical definitions of intellectual disability "require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18."¹² But the Court recognized that "[n]ot all people who claim to be [intellectually disabled] will be so impaired as to fall within the range of [intellectually disabled] offenders about whom there is a national consensus" regarding diminished moral culpability.¹³ It otherwise left to the States the task of developing appropriate ways to enforce this constitutional restriction.¹⁴

B. Hall

Later, in Hall v. Florida , the Court established rules, based on clinical standards, for interpreting IQ scores.¹⁵ Clinical definitions for intellectual disability, by their express terms, reject a strict IQ test score cutoff at 70 and include the standard error of measurement ("SEM").¹⁶ The SEM is "a statistical fact, a reflection of the inherent imprecision of the test itself."¹⁷ For purposes of most IQ tests, this imprecision in the testing instrument means that an individual's score is best understood as a range of scores on either side of the recorded score within which one may say an individual's true...