Rodriguez, Steve

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-44,330-02

EX PARTE STEVE RODRIGUEZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

NO. 91-CR-2045-W2

IN THE 227 TH JUDICIAL DISTRICT COURT

FROM BEXAR COUNTY

Cochran, J., filed a statement concurring in the denial of relief in which

Price, J. joined.

STATEMENT

In this subsequent writ application, filed pursuant to Article 11.071, § 5, of the Texas

Code of Criminal Procedure, applicant presents a claim of mental retardation under Atkins

v. Virginia. (1) After we remanded the application, the trial court conducted an evidentiary

hearing and considered a wealth of documentary information. The trial judge then signed

findings of fact and conclusions of law and recommended that relief be denied. We have

reviewed the record, and we adopt the trial judge's findings and conclusions. Therefore, we

deny relief.

Because this case presents a close question on the ultimate factual issue of mental

retardation, I add the following remarks.

I. Applicant was indicted for the murder of Agnes Herden committed in the course of

a burglary or robbery on July 4, 1990. Against his attorney's advice, applicant pleaded guilty

to the capital murder charge. At his 1992 trial, the jury answered the two "aggravating"

special issues affirmatively and the mitigation issue negatively, and the trial judge sentenced

applicant to death. This Court affirmed that conviction and sentence on direct appeal.

Rodriguez v. State , 899 S.W.2d 658 (Tex. Crim. App. 1995).

The evidence at trial showed that applicant had entered Ms. Herden's home in the

early hours of the morning, stabbed the 80-year-old woman in the face, neck, and upper

chest, hit her with a blunt object, and left her dead in her bed. He stole two television

sets-both of which were left abandoned outside the home-some jewelry, and a pistol. At

4:30 a.m., applicant arrived at his sister's trailer home where he sprinkled salt and pepper on

the steps in an apparent effort to cover his scent. He soaked his blood-stained clothes in

alcohol. Applicant told two friends who were in the trailer that he had stabbed a "black guy,"

and showed them the jewelry and pistol he had stolen, as well as a knife (later determined

to be the murder weapon) that he had taken with him. Applicant gave one of the men a dollar

to buy a can of spray paint, and the three friends inhaled paint fumes until noon, when police

officers came to the trailer. Applicant told his friends that he needed to hide from the police,

but he made no effort to do so. Instead, he lay down on the floor, closed his eyes and

pretended to sleep. The officers arrested him.

At first applicant denied committing the murder, but when a police officer confronted

him and told applicant that he knew that this was a lie, applicant gave a full confession. He

explained that

I just had a lot of things on my mind. I have a lot of family problems because

I can't never talk to my family. I did not rape the lady and I did not have any

sex with the lady. I just lost my mind. This statement is the complete truth as

best I can remember it. I am sorry that I killed the lady and I really didn't

mean to do it.

During the punishment phase, Dr. James Sherman testified for the State concerning

applicant's mental health testing in 1982 when, at the age of fourteen, he was in the Bexar

County Juvenile Detention Center for "sniffing glue" and auto theft. At that time, applicant

already had a four-year history as a runaway, committing various criminal mischief and theft

offenses. (2) In 1982, applicant described himself to Dr. Sherman as "being a discipline

problem," but he denied having ever been suspended from school or having been in special

education classes. He said that he had no idea what his grades in school were because he

always gave his report card to his sister and did not look at it. His mother had died when he

was five, and he did not know where his father was. He moved around and lived with

various relatives. Although he was only fourteen, he said that he got drunk frequently,

smoked marijuana, and used inhalants "a lot."

Dr. Sherman testified that his 1982 testing of applicant's overall level of functioning

was measured on the Wechsler Scale as being in the mild (50-70) range of mental

retardation. He had a full-scale IQ of 60, with a verbal score of 57 and a performance score

of 70. Although concluding that applicant was legally competent, Dr. Sherman diagnosed

him as having "overanxious disorder of adolescence," "undersocialized nonaggressive

conduct disorder of adolescence," and "borderline intellectual functioning with a repetitive

language deficit." He recommended that applicant be placed in a special education program

and a stable home, and that he enter into a "behavioral management contract" with his

juvenile probation officer. At the 1991 trial, Dr. Sherman explained that, in his opinion,

applicant's ability to function was "much higher" than his full-scale IQ score of 60 implied.

Applicant was "absolutely not" mentally retarded, rather he was functioning in the borderline

range.

Dr. John Sparks also testified for the State. In his opinion, applicant was competent

to stand trial, was not mentally retarded, and was not insane or suffering from any severe

mental disease or defect. He found no sign of organic brain damage which is often

associated with inhalant abuse. He stated that even though applicant's most recent IQ score

of 68 was in a "range that would normally be retarded," he believed that applicant "was much

more able to adapt to the community and function" than his IQ score suggested. Dr. Sparks

explained that applicant deals with things "on a primitive level," but "[h]e takes care of

himself. He is able to find a place to stay. He makes relationships reasonably well. He's not

an isolated, withdrawn person."

During closing arguments at the punishment stage, applicant's attorney argued that

applicant was both mentally ill and mentally retarded. Nonetheless, the jury did not find that

there were sufficient mitigating circumstances to warrant a sentence of life imprisonment

rather than a death sentence. (3) Therefore, the trial court imposed a sentence of death.

In his first habeas application, applicant claimed that his trial attorneys failed to

request the assistance of a "partisan" psychiatrist to evaluate his mental functioning, and,

therefore, they provided ineffective assistance of counsel. At this hearing, Dr. Michael

Arambula testified for applicant and stated that, in his opinion, applicant was mildly mentally

retarded and functioned "right at" the line that separates mild mental retardation from

borderline intellectual functioning. He found that applicant functioned like a six-to-eight-year-old child in some areas and a twelve-to-thirteen-year-old in others. In Dr. Arambula's

opinion, applicant had significant impairments in ten out of eleven specific adaptive behavior

categories. He had an "unfortunate upbringing" and a long history of depression and very

significant anxiety which made him have trouble concentrating, impaired his decisionmaking,

and led to low self-esteem and irritability. (4) With his long-term inhalant abuse, applicant

acted impulsively, was easily agitated, and could not think clearly. Because of the interaction

between a low intellectual level, clinical depression, and inhalant-affected behaviors, he was

going to be "more irritable, can't concentrate, be hyperactive .... He probably would be

disruptive in class because he can't sit still." However, Dr. Arambula also agreed that

applicant's impulsivity and poor judgment would "be a common characteristic of a 22 or 23-

year-old school drop out from a broken home with a history of drug use."

Dr. Margot Zuelzer, a psychologist who also testified for applicant at this first habeas

hearing, tested his IQ and believed that applicant's verbal IQ score of 68 indicated mental

retardation, even though his overall score of 71 was not in the retarded range, and his

performance IQ of 77 was outside the range of mental retardation. She noted that applicant

is "functionally illiterate" and has a "language positing problem."

Dr. Sparks testified again at the first habeas hearing and largely agreed with Drs.

Arambula and Zuelzer. He noted that everyone concurred that applicant was "at the

borderline" or "on the cusp" of mental retardation, but that "[t]here aren't any exact cutoffs

between the various groupings ... they blend sometimes into each other .... The borderline

really is a judgmental borderline. ... It's not an exact line separating one from the other." Dr.

Sparks believed that applicant fell on the "not mentally retarded" side of the line because he

functioned at a higher level than his IQ scores would otherwise indicate, except in the area

of academic achievement.

According to one of applicant's sisters who testified at the first habeas hearing,

applicant was a good student when he first started school, but he began having problems after

his mother died. She also knew he had problems with spray paint, but she never saw him

inhaling it. Another sister testified that applicant was sometimes a "troublemaker" who used

to fight when he was young. The mother of applicant's child testified that applicant used

spray paint "all the time" when they were living together. Applicant worked for his brother-in-law in the construction business, but couldn't get a good job because he wasn't very smart.

One of applicant's trial attorneys testified at the habeas hearing that he never noticed any

mental retardation disability in his client.

This court denied relief on that first habeas application on April 12, 2000. Applicant

then sought habeas relief in federal district court. While this writ was still pending, but after

the Supreme Court delivered its opinion in Atkins , applicant filed a subsequent federal writ

raising a mental retardation claim. On March 31, 2003, the federal district court dismissed

that petition without prejudice so that applicant could return to state court to raise his Atkins

claim and then, should it be necessary, he could return to federal court after exhausting state

remedies. Rodriguez v. Cockrell , Civil No. SA-00-CA-743EP (W.D. Tex. March 31, 2003).

On September 10, 2003, this Court entered an order finding that applicant had met the

threshold criteria for raising a subsequent claim under Tex. Code Crim. Proc. Art. 11.071,

§ 5, and we remanded the case to the trial court for further proceedings.

On remand, the trial court heard additional testimony concerning applicant's mental

abilities. Dr. Sherman testified again and stated that the fact that a person has a subaverage

IQ score does not necessarily mean that he is mentally retarded. An IQ score is indicative

of a lessened capacity for doing well in academics, but environmental factors-a stable home,

supportive parents, a stable school situation, the language spoken in the home, peer groups,

alcohol and drug abuse-all influence academic achievement and impact IQ scores. Dr.

Sherman believed that applicant was severely learning disabled and did not test well. He

noted that "the whole verbal spectrum of the IQ test is really culturally based," and therefore

a lack of academic achievement and a low reading ability will "inhibit your performance on

the test." Dr. Sherman also expressed his concern that the adaptive deficiencies prong of

mental retardation had no objective or quantifiable component.

Dr. Sparks testified again as well. He, too, expressed concern that the adaptive

functioning criteria of mental retardation are not objective: "There's a great deal of

subjective input. The observation of the individual, the history that he gives, the history

obtained from other sources like family or work history, if there is work history." The

determination of whether one has significant adaptive skills deficits is really "a judgment

call." Although admitting that it was "a close call," Dr. Sparks reiterated his opinion that

applicant was not mentally retarded. His opinion was based upon the facts that applicant

worked; had relationships with other people, including family; and had the "ability to adapt

to some level above what I would expect a retarded person to adapt in our society." Dr.

Sparks also explained that applicant "tested badly" because of his high anxiety and low

motivation levels. Dr. Sparks noted that applicant could communicate reasonably well while

in jail and that his "sick call requests" were written very logically and asked for specific

things. Applicant wrote his medical form information "at a level that's higher than any

retarded person could."

Dr. Jim Patton, an adjunct professor of special education at the University of Texas,

testified for applicant at the second writ hearing and he agreed with Dr. Sparks that there is

a "moderate" correlation between intellectual ability and adaptive behavior. Dr. Patton

interviewed applicant and some of his family members and concluded that applicant had

shown evidence of adaptive skill deficits before age eighteen, particularly in the areas of

communication and academic achievement. He had no opinion whether applicant was

presently mentally retarded.

The trial court also considered a written affidavit by Dr. Ruth Luckasson, a special

education professor at the University of New Mexico. She did not evaluate applicant

personally, but stated that the opinions of Drs. Sparks and Sherman that applicant was

"borderline and did not have deficits in adaptive skill areas," were not supported by their

records. She thought that the clinical data developed by Drs. Sparks and Sherman support

a diagnosis of mental retardation.

The State offered applicant's prison records that show he was a member of the

Mexican Mafia and that he had numerous disciplinary violations. A recent prison mental

status examination report concluded that applicant's adaptive skills were "normal" as to

coping ability and that he had no skills deficit.

II.

The trial court has now made its findings of fact and conclusions of law based upon

the entirety of the testimony and records. The trial court summarized its conclusion in the

following manner:

The applicant had the burden to establish by a preponderance of the

evidence each of the three elements of mental retardation: onset during the

developmental period, subaverage intellectual functioning, and significant

deficits in adaptive skills. The applicant has failed to establish significant

deficits in adaptive skills. The expert evidence is in conflict, but the question

is not necessarily controlled by expert testing. There is lay evidence in the

form of observations by prison and state school officials that applicant did not

have significant adaptive deficits. There is evidence that helps explain why

applicant could have poor I.Q. scores and yet not have adaptive skills deficits

and thus not be mentally retarded. There is evidence that applicant is not

docile or easily manipulated by others, and is in fact aggressive and

manipulative. There is evidence that applicant is able to communicate and

function in his environment.

Based upon those factual findings and legal conclusions, the trial court recommends that this

Court deny relief.

All of the experts agreed that applicant's numerical IQ level is at the borderline or

below the cut-off level for a diagnosis of mental retardation. There is also expert and lay

witness evidence in this record which would support a finding that applicant does suffer a

deficit in adaptive skills, and there is evidence in this record which supports the trial court's

finding that applicant does not suffer a deficit in adaptive skills. A finding on either side of

this question is supportable by the record evidence. But as a court reviewing only the cold

record, we must be especially deferential to the trial court's factual findings as he is "Johnny-on-the-Spot" and able to make credibility and demeanor determinations of the witnesses that

we are not capable of making on habeas review. (5) There are also statements in the two habeas

hearings that the trial court and advocates were personally familiar with both Drs. Sherman

and Sparks and their experience and expertise in the mental health field.

I nonetheless reiterate my concern that "[t]he adaptive behavior criteria are

exceedingly subjective, and undoubtedly experts will be found to offer opinions on both sides

of the issue in most cases." (6)

It seems to me that, with its decision in Atkins , the Supreme Court is moving back

toward the pre- Furman days of wholly subjective criteria in determining whether a particular

person is or is not subject to the death penalty. (7) As experts on both sides in this case

testified, there are no objectively verifiable standards by which to gauge whether a specific

person does or does not suffer the kind of significant "adaptive deficits" that a diagnosis of

mental retardation requires. Nor are there any scientifically verifiable standards by which

one might measure whether a person's academic, social, or functional deficits are related to

innate mental deficiencies, bad upbringing, impoverished environment, bad moral character,

emotional problems, poor habits, lack of motivation, drug or alcohol dependence, or other

factors.

As school children we were taught that King Solomon weighed all of the evidence

before him and made a reasoned decision; Nero divined merit on a whim and just pointed his

thumb up or down. I fear that, under Atkins and the subjective legal definition of the

"adaptive deficits" prong of mental retardation, we are moving farther from King Solomon

and closer to Nero. If there is evidence in the record to support the factfinder's conclusion,

by a preponderance of the evidence, that a person does or does not suffer from significant

"deficits in adaptive behavior"-- whatever that may mean to the factfinder-that conclusion

must be affirmed.

In Atkins , the Supreme Court may have intended to create a "bright-line" rule that

those who are mentally retarded are, because of their lesser moral culpability, exempt from

the death penalty. But I fear that there is no such bright line. There is, on the contrary, broad

agreement among mental health experts that determining whether a person suffers from the

type and level of "adaptive deficits" that qualifies for a mental retardation diagnosis is highly

subjective and largely a matter of individual judgment. Under Atkins , the ostensible issue

for the factfinder in a death penalty case is, "Is this person mentally retarded?" As we see

in this case, there may be no clear-cut answer to that question. Absent the possibility of a

rigorous, scientifically reliable and verifiable "yes-or-no" determination, the relevant

question perhaps ought to be, "Do you believe that the defendant is sufficiently mentally

responsible for his conduct such that the death penalty is an appropriate punishment?" This

is analogous to the Texas statutory mitigation question which, at bottom, asks "Do you

believe that the defendant is sufficiently morally responsible for his conduct such that the

death penalty is an appropriate punishment?"

In any event, the "evolving standards of decency" of the Eighth Amendment (8) depends

upon the collective judgment of the twelve ordinary citizens who sit in judgment of the case

before them. Their assessment is the best determinant of fairness in assessing both mental

and moral responsibility in cases of capital crimes committed by those whose mental capacity

and competency is in doubt. Thomas Jefferson had it right: "I know of no safe depository

of the ultimate powers of the society but the people themselves, and if we think them not

enlightened enough to exercise that control with a wholesome discretion, the remedy is not

to take it from them, but to inform their discretion." (9) Expert testimony and various mental

retardation criteria may inform the factfinder's discretion. But it is nonetheless the factfinder

who must ultimately decide whether a particular person "who claim[s] to be mentally

retarded will be so impaired as to fall within the range of mentally retarded offenders about

whom there is a national consensus" (10) that the death penalty is an inappropriate punishment.

Based upon the evidence in the record, I agree that the trial court did not err in

concluding that applicant failed to prove, by a preponderance of the evidence, that he is

mentally retarded. Therefore, I join the Court in denying applicant relief on his mental

retardation claim.

Cochran, J.

Filed: June 15, 2005

Publish

1. 536 U.S. 304 (2002).

2. Evidence at the capital murder trial showed that applicant and his friends accosted other,

smaller children, stole their bikes, and threatened to beat them up with chains and sticks.

3. Tex. Code Crim. Proc. art. 37.0711, §3(e).

4. Dr. Arambula testified that applicant's extensive record for prison disturbances,

including one incident in which he stabbed a fellow inmate five times, may have been the result

of his depression and "because he was so anxious."

5.

Ex parte Briseno , 135 S.W.3d 1, 12-13 (Tex. Crim. App. 2004) (in habeas context, "we

afford almost total deference to the trial judge's determination of the historical facts supported by

the record, especially when those fact findings are based on an evaluation of credibility and

demeanor. However, if the trial court's ruling is not supported by the record, this Court may

reject the findings") (footnote omitted); Ex parte Franklin , 72 S.W.3d at 671, 675, n.5 (Tex.

Crim. App. 2002) ("although this Court is not bound by the findings of the trial court in post-conviction habeas corpus proceedings, such findings are considered if supported by the record");

Ex parte Evans , 964 S.W.2d 643, 648 (Tex. Crim. App. 1998) ("while this Court is not bound by

the findings of a habeas judge in a habeas corpus proceeding, where the findings are supported by

the record, they should be accepted by this Court").

6.

Ex parte Briseno , 135 S.W.3d at 8 .

7.

Furman v. Georgia , 408 U.S. 238, 310 (1972) (Stewart, J., concurring) (state death

penalty statutes were unconstitutional because they gave juries "open-ended, unstructured

discretion" in deciding whether to impose death penalty); compare Jurek v. Texas , 428 U.S. 262,

273-74 (1976) (joint opinion of Stewart, Powell, & Stevens, JJ.) (holding Texas death penalty

statute constitutional because it "guided and focused the jury's objective consideration of the

particularized circumstances and the individual offense and the individual offender").

8.

Atkins , 536 U.S. at 321 (holding that execution of those found to be mentally retarded is

excessive under the "evolving standards of decency" of the Eighth Amendment).

9. Thomas Jefferson, letter to William Charles Jarvis, September 28, 1820.

10.

Atkins , 536 U.S. at 317 .