Butler, Steven Anthony

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-41,121-02

EX PARTE STEVEN ANTHONY BUTLER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

IN CAUSE NO. 511112 FROM THE

185 TH DISTRICT COURT OF HARRIS COUNTY

Price, J., filed a dissenting statement in which Johnson, J., joined.

DISSENTING STATEMENT

On June 27, 2007, we denied post-conviction habeas corpus relief to this applicant, (1)

rejecting his Atkins claim that he cannot be executed consonant with the Eighth Amendment

because he is mentally retarded. (2) Without explicitly adopting the recommended findings of

fact and conclusions of law of the convicting court, we nevertheless agreed with the lower

court that the application should be denied on the merits, and we did so without further

comment. (3) The applicant filed a federal petition for writ of habeas corpus in federal district

court. That court, in a published opinion, rejected the applicant's challenge to our judgment

in the state habeas proceedings, under the highly deferential criteria of the Antiterrorism and

Effective Death Penalty Act [AEDPA], but was sufficiently troubled to grant the applicant

a certificate of appealability to the Fifth Circuit. (4)

The State's expert at the Atkins state habeas writ hearing was Dr. George Denkowski,

a licensed psychologist with experience in diagnosis and treatment of mental retardation. It

was largely on the basis of Dr. Denkowski's input that the convicting court was able to

recommend finding against the applicant with respect to all three of the diagnostic criteria

for mental retardation: general intellectual functioning, adaptive functioning, and onset

before age 18. (5) Although we did not adopt those findings, this Court's summary rejection

of the applicant's Atkins claim was surely based in equal measure on Denkowski's testimony

because, without it, it is fairly clear that the applicant presented evidence that would have

established mental retardation at least by a preponderance of the evidence. At the evidentiary

hearing, the applicant presented ample evidence, including expert testimony, that would have

served to establish all three prongs of the diagnostic criteria. Having reviewed the transcript

of the 2006 evidentiary hearing, I, for one, would readily have found that the applicant

demonstrated mental retardation to the requisite level of confidence--but for Denkowski's

rebuttal testimony. (6)

Since we rejected the applicant's Atkins claim in 2007, Denkowski's diagnostic

practices have come under considerable professional scrutiny. In April of last year, he

entered into a settlement agreement, in proceedings that were brought against him by the

Texas State Board of Examiners of Psychologists with the State Office of Administrative

Hearings, in which he agreed to discontinue forensic evaluations for mental retardation in

Atkins cases. (7) The applicant subsequently persuaded the Fifth Circuit to stay his appeal of

the federal district court's denial of his federal habeas petition to allow him to seek

reconsideration in this Court of the denial of relief in view of the settlement agreement.

While the Texas Rules of Appellate Procedure do not contemplate the filing of a motion for

rehearing following the denial of a post-conviction application for writ of habeas corpus, (8)

we are authorized, and on occasion have exercised our authority, to revisit final judgments

in such matters, on our own motion, under extraordinary circumstances. (9) We did so in this

case, remanding the cause to the convicting court "to allow it the opportunity to re-evaluate

its initial findings, conclusions, and recommendation in light of the Denkowski Settlement

Agreement." (10)

The convicting court has apparently refused to avail itself of this opportunity. Our

remand order invited the convicting court to "order affidavits or hold a live hearing if

warranted." (11) Accordingly, the applicant offered new affidavits and requested a hearing. The

convicting court made no ruling on these matters. According to the applicant (although we

have no official record of it), the convicting court simply announced from the bench that it

would not "reconsider its Atkins ruling." (12) Instead, the convicting court "directed the District

Attorney to submit a new set of proposed findings of fact and conclusions of law." (13)

Apparently, the convicting court did not invite the applicant to do the same. (14) The convicting

court then signed the State's Proposed Findings of Fact and Conclusions of Law on Remand

"without a single change." (15) Noting that the Denkowski settlement agreement "does not

contain a finding that Dr. Denkowski improperly evaluated the applicant for mental

retardation[,]" the recommended findings and conclusions on remand make reference to the

settlement agreement "only for historical background of the applicant's case and . . . not . .

. for purpose of relitigating the issue of the applicant's claim of mental retardation."

Otherwise, what we have now received is an only-slightly-reworked version of the original

forty-eight page recommended findings of fact and conclusions of law that we refused to

adopt back in 2007. At practically every point in the original findings of fact at which the

convicting court had previously made a recommended finding expressly "based on Dr.

Denkowski's credible affidavit," the recommended findings of fact on remand now simply

delete the word "credible." (16) What are we to make of this? Does the convicting court now

recommend that we once again make these numerous specific findings of fact on the basis

of Denkowski's affidavit--even though the convicting court apparently no longer

recommends that we regard that affidavit as "credible"? Beyond these amendments, the

convicting court has done little more than to add a phrase toward the end of its recommended

findings of fact by which it proposes that we find that the applicant has failed to establish the

three diagnostic criteria for mental retardation "even absent the testimony and evidence

elicited from Dr. George Denkowski during the habeas proceedings[.]" Neither the

amendments themselves nor the process by which they were made inspire confidence.

General Intellectual Functioning: With respect to the first prong of the diagnostic

criteria for mental retardation, Denkowski persuaded the convicting court that the results of

several IQ tests, including one that he himself had conducted, (17) should be discounted in favor

of an IQ test conducted when the applicant was a teenager that reaped an IQ score of 80, less

than two standard deviations below the mean of 100. Contrary to the testimony of the

applicant's experts, Denkowski maintained that even application of the so-called "Flynn

Effect" would not lower this particular score to below two standard deviations below the

mean, disagreeing with the applicant's experts (and, apparently, with diagnostic convention)

with respect to the precise numerical reduction that ought to apply (.13 of a point per year,

as opposed to .3, times the number of years since the particular testing instrument was last

normed). The convicting court now recommends that we find that "neither the Fifth Circuit

Court of Appeals nor" this Court has "recognized the Flynn Effect as scientifically valid."

But neither has this Court rejected the validity of the Flynn Effect and, like the federal

district court, we are therefore "left with the evidentiary record in this case." (18) Here, all of

the experts, including Denkowski, acknowledged the diagnostic legitimacy of the Flynn

Effect, disagreeing only with respect to how it should apply to adjust the applicant's scores.

As the federal district court observed, "[o]n this point the literature did not support Dr.

Denkowski's reduced discount factor," and did support that of the applicant's experts. (19)

Denkowski also convinced the convicting court that the applicant's score on a certain

achievement test indicated that the higher IQ score of 80 was the more reliable, despite

testimony from the applicant's experts that the data support a judgment that individuals with

IQ scores in the mild mental retardation range are capable of comparatively high scores on

achievement tests and that there is no direct correlation between IQ scores and achievement

test scores. Finally, he convinced the convicting court--again, against convention, if the

applicant's experts are to be credited--that the best measure of IQ is not always the full-scale

IQ score at all, but may instead be something called the Perceptual Organization Index,

which is apparently a sub-test of the WAIS-III IQ test that Denkowski himself had

administered to the applicant to obtain a full-scale IQ score of 69. In Ex parte Hearn , we

held that the kind of clinical judgment that Denkowski seems to have utilized to inflate the

applicant's IQ cannot serve "as a replacement for full-scale IQ scores in measuring

intellectual functioning." (20)

The federal district court was clearly troubled by the convicting court's reliance on

Denkowski's "heavily disputed opinions." (21) It deferred to those opinions only because

Denkowski was, after all, "qualified as an expert in mental retardation," and because the

applicant had not satisfied the onerous burden to refute his opinions by clear and convincing

evidence as required by the AEDPA. (22) That Denkowski has agreed to discontinue his Atkins

assessments in light of the many professional complaints that have been lodged against him

suggests to me that we ought to discount the convicting court's new recommended findings

of fact and conclusions of law with respect to the applicant's general intellectual functioning

precisely to the extent that they continue to rely, explicitly or implicitly, on Denkowski's

"heavily disputed opinions." (23)

Adaptive Deficits: The same may be said for the convicting court's reliance on

Denkowski's testimony with respect to the second prong of the diagnostic criteria for mental

retardation, adaptive deficits. There are at least two aspects of Denkowski's input with

respect to adaptive deficits that we should reject outright. First, the convicting court found

that two of the standardized instruments that were utilized in this case--one by the

applicant's main expert and the other by Denkowski himself--should not be taken into

account because they are not normed for the long-term incarcerated such as the applicant.

That left only the Vineland Adaptive Behavior Scales. (24) This instrument was administered

by the applicant's expert to yield a composite score of 39, with the mean being 100. (25) The

convicting court discounted this score, however, on the basis of Denkowski's assurances that

a score this low would indicate an individual with profound mental retardation, which the

applicant clearly is not. (26) In accepting Denkowski's judgment in this regard, the convicting

court flatly ignored testimony from several of the applicant's experts to the effect that the

Vineland is a very good instrument for discriminating those with borderline adaptive abilities

from those with at least mild mental retardation, but that it has far less power to distinguish

between levels of mental retardation itself. The applicant's main expert readily conceded

that the applicant's score of 39 was "probably a little too low," but he nevertheless believed

it to be a more than reliable indication that the applicant had at least two areas of significant

adaptive deficits. A second of the applicant's experts readily agreed. We should reject the

convicting court's recommendation to credit Denkowski's testimony over that of the

applicant's experts in the wake of the subsequent controversy surrounding Denkowski's

diagnostic practices.

Second, also with respect to the second prong, the convicting court expressly credited

Denkowski's testimony that evidence of criminal adaptability may properly be taken into

account in arriving at an ultimate clinical judgment with respect to adaptive deficits. But,

according to the applicant's experts, this is decidedly not the conventional view. In any

event, in rejecting the applicant's substantial evidence of adaptive deficits, both Denkowski

and the convicting court focused inordinately on the applicant's relative strengths rather than

ruling out manifest weaknesses in at least two adaptive skills areas. As I argued two years

ago, albeit in an unpublished dissent, this emphasis on adaptive strengths rather than adaptive

weaknesses runs contrary to standard diagnostic protocol, which I believe the courts are

obliged to follow in implementing Atkins . (27)

Onset Before 18: As for the third prong, onset before age 18, the convicting court

simply concluded that, because the applicant could not establish either of the first two prongs

at all , he had obviously failed to establish timely onset. By definition, this conclusion with

respect to the third prong is every bit as suspect as the convicting court's conclusions with

respect to the first two.

The evidence that remains after discounting Denkowski's influence convinces me that

the applicant has established all three of the diagnostic criteria for mental retardation by a

preponderance of the evidence and cannot constitutionally be executed under Atkins . Under

these circumstances, I do not believe that the State's usual weighty interest in the repose and

finality of its verdicts is sufficiently compelling to overcome the Eighth Amendment's

aversion to executing a mentally retarded offender. (28) With the controversy surrounding

Denkowski's forensic methods, I do not think that, as the court of return and the ultimate

arbiter of both the facts and the law in capital post-conviction habeas corpus proceedings, we

can be sufficiently confident of our original judgment to allow it to stand. Nor can we rely

on the federal courts to be our backstop--under the AEDPA, the federal courts are required

to pay almost insurmountable deference to our credibility determinations. (29) The applicant

will get no opportunity to present additional evidence in federal court. (30) I would reject the

convicting court's recommended findings of fact and conclusions of law as insupportable and

instead find that the applicant has satisfied his burden to establish that he is a person

suffering mental retardation and is therefore immune from execution under the Eighth

Amendment. Failing that, if the Court is determined to pay deference to the convicting

court's recommendations, we should at least take up the applicant's suggestion that we

remand the case once again to the convicting court for a more searching reevaluation than

it conducted on the original remand. Because the Court does neither, I respectfully dissent.

FILED: June 27, 2012

PUBLISH

1. Ex parte Butler , No. WR-41,121-02, 2007 WL 1847377 (Tex. Crim. App., delivered June

27, 2007) (not designated for publication).

2. Atkins v. Virginia , 536 U.S. 304 (2002).

3. See Ex parte Butler , supra , at *1 ("The trial court held a hearing and made findings of fact

and conclusions of law recommending that this application be denied because Applicant has failed

to show that he is mentally retarded. We have reviewed the record of the hearing and the trial court's

findings of fact and conclusions of law and agree that this application should be denied.")

4. Butler v. Quarterman , 576 F. Supp. 2d 805, 816-17 (S.D. Tex. 2008).

5. E.g. , Ex parte Hearn , 310 S.W.3d 424, 428 (Tex. Crim. App. 2010).

6. In the context of post-conviction habeas corpus, the convicting court is the "original" fact-finder, and we ordinarily pay great deference to that court's findings of fact and conclusions of law

when supported by the record. But that deference is not boundless, and we do not simply rubber-stamp the convicting court's recommendations. This Court is the "ultimate" fact-finder, with the

prerogative to reject the convicting court's recommendations on those rare occasions when we deem

it appropriate, even when they are supported by the record, if we think another disposition is

manifestly better supported by the record. Ex parte Spencer , 337 S.W.3d 869 , 879-80 n.1 (Tex.

Crim. App. 2011) (Price, J., concurring); Ex parte Robbins , 360 S.W.3d 446 , 467 n.14 (Tex. Crim.

App. 2011) (Price, J., concurring).

7. See Maldonado v. Thaler , 625 F.3d 229, 234 (5 th Cir. 2010) (noting the proceedings brought

against Denkowski in the State Office of Administrative Hearings); Pierce v. Thaler , 604 F.3d 197,

213 (5 th Cir. 2010) (noting that this Court had recently found Denkowski's credibility to be lacking

in Ex parte Plata , No. AP-75,820, 2008 WL 151296 (Tex. Crim. App., delivered Jan. 16, 2008) (not

designated for publication)).

8. Tex. R. App. P. 79.2(d).

9. Ex parte Moreno , 245 S.W.3d 419, 427-29 (Tex. Crim. App. 2008).

10. Ex parte Butler , No. WR-41,121-02, 2011 WL 6288411 , at *1 (Tex. Crim. App., delivered

Dec. 14, 2011) (not designated for publication).

11. Id .

12. Applicant's Objections to the District Court's Proposed Findings of Fact and Conclusions

of Law (hereinafter "Objections") at 1.

13. Id . at 2.

14. Under Article 11.071, Sections 8 and 9, both parties "shall" file proposed findings of fact

and conclusions of law for the convicting court to consider. Tex. Code Crim. Proc. art. 11.071, §§

8(b) & 9(e). See Jefferson v. Upton , 130 S.Ct. 2217, 2223 (2010) ("Although we have stated that

a court's verbatim adoption of findings of fact prepared by prevailing parties should be treated as

findings of the court, we have also criticized that practice." (citation and internal quotation marks

omitted)).

15. Objections at 2.

16. By my count, there are nineteen specific findings of fact that the convicting court originally

recommended we make based on "the credible affidavit of Dr. Denkowski" that it now recommends

we make based simply on "the affidavit of Dr. Denkowski[.]" In addition, two of the convicting

court's originally recommended conclusions of law with respect to the first prong of the diagnostic

criteria for mental retardation (general intellectual functioning) were based on, inter alia , "the

credible affidavit of Dr. Denkowski[.]" The convicting court continues to recommend these

conclusions of law to us, but has altogether removed any reference to Denkowski's affidavit.

17. Denkowski administered the Wechsler Adult Intelligence Scale, 3 rd edition (WAIS-III) to

the applicant in 2006, obtaining a full-scale IQ score of 69.

18. Butler v. Quarterman , supra , at 814.

19. Id . at 814-15.

20. 310 S.W.3d at 431 .

21. Butler v. Quarterman , supra , at 816.

22. Id .

23. Id .

24. In Ex parte Briseno , we acknowledged that adaptive behavior should be measured "by

clinical assessment and, usually, standardized scales." 135 S.W.3d 1 , 7 n.25 (Tex. Crim. App. 2004)

(quoting American Association on Mental Deficiency (AAMD), Classification in Mental

Retardation 1, 11 (Grossman ed. 1983)). The Vineland is one of the accepted scales. American

Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR) 42 (4 th ed. 2000).

25. A significant limitation in adaptive functioning may be "defined by a score of at least two

standard deviations below either (1) the mean in one of the three adaptive behavior skills areas or

(2) the overall score on a standardized measure of conceptual, social, and practical skills." Ex parte

Hearn , supra , at 428.

26. In its finding of fact number 157 on remand, the convicting court continues to find "that the

applicant's score of 39 is equivalent to an IQ score of 39[.]" Going to the particular page of the

habeas hearing record to which the convicting court cites, however, I find that Denkowski made no

such assertion. Instead, he simply said that a composite score of 39 on the Vineland should be

"interpreted just like an IQ score." By this I take Denkowski simply to mean that, in scoring the

Vineland, the mean is 100 (just as the mean in an IQ test is 100), such that a score of 39 would fall

more than four standard deviations below the mean--hence, the basis for agreement among all of

the experts at the applicant's writ hearing that it was a very low score.

27. See Lizcano v. State , No. AP-75,879, 2010 WL 1817772 , at *37 (Tex. Crim. App., delivered

May 5, 2010) (Price, J., joined by Johnson & Holcomb, JJ., concurring and dissenting) (not

designated for publication) (the presence of strengths in one or more adaptive skills areas does not

counter-indicate mental retardation so long as weaknesses are identified in at least two others).

28. Ex parte Moreno , supra , at 429.

29. See 28 U.S.C. § 2254 (d)(2) (federal habeas petition "shall not be granted" unless state court

adjudication of the claim "was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding").

30. Cullen v. Pinholster , 131 S.Ct. 1388, 1401 (2011).