# Petetan, US Carnell Jr. A/K/A Carnell Petetan, Jr. > Court of Appeals of Texas · August 27, 2015 URL: https://www.frixlaw.com/law-library/cases/4067004 ## Case - **Court:** Court of Appeals of Texas - **Decided:** August 27, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4067004 ## How later opinions describe it (automated extraction) - applying Mays to “reject[] the argument that Hall renders Briseno unconstitutional” - discussing Nev. Rev. Stat. § 174.098(7) - holding that the original competency hearing suffered from a flawed jury instruction, and cause remanded to the trial court for a determination whether, inter alia, a retrospective competency hearing was feasible ## Opinion text AP-77,038 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 8/27/2015 9:30:07 AM August 27, 2015 Accepted 8/27/2015 11:10:26 AM ABEL ACOSTA No. AP-77,038 CLERK IN THE TEXAS COURT OF CRIMINAL APPEALS AT AUSTIN, TEXAS _________________________________________________________ US CARNELL PETETAN, JR., a/k/a CARNELL PETETAN, JR., Appellant v. THE STATE OF TEXAS _________________________________________________________ DIRECT APPEAL FROM THE TH 19 DISTRICT COURT OF McLENNAN COUNTY TRIAL COURT CAUSE NUMBER 2012-2331-C1 _________________________________________________________ BRIEF FOR APPELLANT _________________________________________________________ Richard E. Wetzel State Bar No. 21236300 1411 West Avenue, Suite 100 Austin, Texas 78701 (512) 469-7943 (512) 474-5594 – facsimile wetzel_law@1411west.com Attorney for Appellant US Carnell Petetan, Jr. ORAL ARGUMENT REQUESTED Identity of Parties and Counsel Appellant: US Carnell Petetan, Jr. Appellate Counsel: Richard E. Wetzel Attorney at Law 1411 West Ave., Ste. 100 Austin, TX 78701 Trial Counsel: Russ Hunt, Sr. Attorney at Law P.O. Box 726 Waco, TX 76703-0726 Michelle Tuegel Attorney at Law P.O. Box 726 Waco, TX 76703-0726 Walter Reaves, Jr. . Attorney at Law 100 N. Sixth St., Ste. 802 Waco, TX 76701 Appellee: The State of Texas Trial Counsel: Abelino Reyna Criminal District Attorney 219 North Sixth St., Ste. 200 Waco, TX 76701 Gregory Davis Assistant Criminal District Attorney 219 North Sixth St., Ste. 200 Waco, TX 76701 Michael Jarrett Assistant Criminal District Attorney 219 North Sixth St., Ste. 200 Waco, TX 76701 ii Appellate Counsel: Sterling Harmon Assistant Criminal District Attorney 219 North Sixth St., Ste. 200 Waco, TX 76701 Trial Judge: Hon. Ralph Strother 19th District Court McLennan County, Texas iii Table of Contents Page Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . ii Table of Contents . . . . . . . . . . . . . . . . . . . . . . . iv Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . ix Statement Regarding Oral Argument ........................ 1 Statement of the Case ........................ 1 Issues Presented on Appeal ........................ 2 Statement of Facts ........................ 9 Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . 54 Point of Error One . . . . . . . . . . . . . . . . . . . . . . . 57 The trial court abused its discretion by allowing the State to invoke Petetan’s attorney-client privilege as to testimony he sought to offer from his former attorney on the issue of competency to stand trial (13 RR 57). Point of Error Two . . . . . . . . . . . . . . . . . . . . . . . 63 The trial court abused its discretion by excluding evidence Petetan sought to offer concerning the legal fate of those who obtain an incompetency determination through malingering (13 RR 60). Point of Error Three . . . . . . . . . . . . . . . . . . . . . . . 66 The trial court abused its discretion by denying a defense challenge for cause to prospective juror Richard Hester who had a bias against a life sentence without possibility of parole and a bias in favor of a sentence of death (28 RR 89). iv Point of Error Four . . . . . . . . . . . . . . . . . . . . . . . 72 The trial court abused its discretion by denying a defense challenge for cause to prospective juror Richard Hester who believed law enforcement officers to be more credible than other witnesses (28 RR 89). Point of Error Five . . . . . . . . . . . . . . . . . . . . . . . 75 The trial court abused its discretion by denying a defense challenge for cause to prospective juror Luther Fore who had a bias against a life sentence without possibility of parole and a bias in favor of a sentence of death (30 RR 174). Point of Error Six . . . . . . . . . . . . . . . . . . . . . . . 79 The evidence is insufficient to prove Petetan murdered the complainant while in the course of committing or attempting to commit the offenses of burglary, kidnapping, or retaliation. Point of Error Seven . . . . . . . . . . . . . . . . . . . . . . . 90 The trial court abused its discretion by admitting an extraneous offense showing that on the day of the murder, Petetan told Miller he was going to Waco to buy drugs and would give Miller drugs if he would drive Petetan to Waco (53 RR 31). Point of Error Eight . . . . . . . . . . . . . . . . . . . . . . . 90 The trial court abused its discretion by admitting an extraneous offense showing that on the day of the murder, Petetan told Mouton he was going to Waco to buy drugs and would give Mouton drugs if he would accompany Petetan to Waco (53 RR 31). Point of Error Nine . . . . . . . . . . . . . . . . . . . . . . . 98 The trial court abused its discretion by admitting evidence which undermined defense counsel before the jury and created a conflict of interest which denied Petetan his right to the effective assistance of counsel (59 RR 198). v Point of Error Ten . . . . . . . . . . . . . . . . . . . . . . .103 The jury’s answer to the intellectual disability special issue is against the great weight and preponderance of the evidence. Point of Error Eleven . . . . . . . . . . . . . . . . . . . . . . .147 Petetan’s intellectual disability renders him ineligible for the death penalty. Point of Error Twelve . . . . . . . . . . . . . . . . . . . . . . .148 The trial court erred by failing to define the term “militate” within the punishment charge as requested by Petetan (4 CR 1318, 4 CR 1330, and 59 RR 212). Point of Error Thirteen . . . . . . . . . . . . . . . . . . . . . . .148 The trial court erred by overruling Petetan’s objection to the instruction that 10 votes were required for the jury to return a “no” answer to the first special issue concerning future dangerousness (4 CR 1318, 4 CR 1330, and 59 RR 212). Point of Error Fourteen . . . . . . . . . . . . . . . . . . . . . . .149 The trial court erred by overruling Petetan’s objection to the “anti-sympathy” instruction insofar as the instruction would limit the scope of mitigating evidence and or circumstances that jury may consider in returning a life sentence (4 CR 1320, 4 CR 1330, and 59 RR 212). Point of Error Fifteen . . . . . . . . . . . . . . . . . . . . . . .159 The trial court erred by overruling Petetan’s request that the jury be instructed on the concept of mercy and the role it can play in deliberations (4 CR 1320, 4 CR 1330, and 59 RR 212). Point of Error Sixteen . . . . . . . . . . . . . . . . . . . . . . .151 The trial court erred by submitting a special issue on future dangerousness which was not found by the grand jury or alleged in the indictment returned against Petetan (1 CR 44, 4 CR 1321, 4 CR 1330, and 59 RR 212). vi Point of Error Seventeen . . . . . . . . . . . . . . . . . . . . . . .151 The trial court erred by failing to define the term “probability” within the punishment charge as requested by Petetan (4 CR 1321, 4 CR 1330, and 59 RR 212). Point of Error Eighteen . . . . . . . . . . . . . . . . . . . . . . .152 The trial court erred by failing to define the phrase “criminal acts of violence” within the punishment charge as requested by Petetan (4 CR 1322, 4 CR 1330, and 59 RR 212). Point of Error Nineteen . . . . . . . . . . . . . . . . . . . . . . .153 The trial court erred by failing to define the phrase “continuing threat to society” within the punishment charge as requested by Petetan (4 CR 1323, 4 CR 1330, and 59 RR 212). Point of Error Twenty . . . . . . . . . . . . . . . . . . . . . . .154 The trial court erred by failing to submit Petetan’s four requested instructions relative to the jury’s consideration of victim impact evidence (4 CR 1324, 4 CR 1330, and 59 RR 212). Point of Error Twenty-One . . . . . . . . . . . . . . . . . . . . . . .155 The trial court erred by failing to define the phrases “personal moral culpability” and “moral blameworthiness” within the punishment charge as requested by Petetan (4 CR 1325, 4 CR 1330, and 59 RR 212). Point of Error Twenty-Two . . . . . . . . . . . . . . . . . . . . . . .156 The trial court erred by overruling Petetan’s objection that the charge unduly limited what factors the jury could consider as mitigating (4 CR 1325, 4 CR 1330, and 59 RR 212). vii Point of Error Twenty-Three . . . . . . . . . . . . . . . . . . . . . . .156 The trial court erred by overruling Petetan’s objection that the mitigation special issue is unconstitutional for failing to assign a burden of proof and not being susceptible to a sufficiency of the evidence review on appeal (4 CR 1326, 4 CR 1330, and 59 RR 212). Point of Error Twenty-Four . . . . . . . . . . . . . . . . . . . . . . .157 The trial court erred by overruling Petetan’s objection that the jury should be instructed there is a presumption in favor of a life sentence rather than a sentence of death (4 CR 1327, 4 CR 1330, and 59 RR 212). Point of Error Twenty-Five . . . . . . . . . . . . . . . . . . . . . . .158 The trial court erred by overruling Petetan’s objection that the jury should be instructed that if it was unable to agree on a special issue, a mistrial would be declared and life sentence imposed (4 CR 1326, 4 CR 1330, and 59 RR 212). Point of Error Twenty-Six . . . . . . . . . . . . . . . . . . . . . . .159 Imposition of the death penalty violates Petetan’s Eighth Amendment and Fourteenth Amendment rights not to be subjected to cruel and unusual punishment. Point of Error Twenty-Seven . . . . . . . . . . . . . . . . . . . . . . .160 Petetan was denied equal protection of the law and due course of law due to the absence of a unified statutory procedure for pretrial litigation of an Atkins assertion of intellectual disability (18 RR 12, 4 CR 1228). Point of Error Twenty-Eight . . . . . . . . . . . . . . . . . . . . . . .162 The judgment should be modified to properly reflect Petetan was convicted of a capital felony offense rather than a first degree felony offense (4 CR 1343). Point of Error Twenty-Nine . . . . . . . . . . . . . . . . . . . . . . .163 The judgment should be modified to properly reflect punishment was assessed by the trial court rather than the jury (4 CR 1343). viii Prayer . . . . . . . . . . . . . . . . . . . . . . .165 Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . .166 Certificate of Service . . . . . . . . . . . . . . . . . . . . . . .166 ix Index of Authorities Page Constitution U.S. CONST. amend. VI . . . . . . . . . . . . 103 U.S. CONST. amend. VIII . . . . . . . . . passim U.S. CONST. amend. XIV . . . . . . . . . passim Cases Abdnor v. State, 871 S.W.2d 726 (Tex. Crim. App. 1994) . . . . . . . . . . . . . 92 Acosta v. State, 233 S.W.3d 349 (Tex. Crim. App. 2007) . . . . . . . . . . . . 102 Alba v. State, 905 S.W.2d 581 (Tex. Crim. App. 1995) . . . . . . . . . . . . . 93 Apprendi v. New Jersey, 530 U.S. 466 (2000) . . . . . . . . . . . . 151 Arnold v. State, 234 S.W.3d 664 (Tex. App.-Houston [14th Dist.] 2007, no pet.) . . . . . . . . . . . . . 94 Atkins v. Virginia, 536 U.S. 304 (2002) . . . . . . . . . passim Barber v. State, 737 S.W.2d 824 (Tex. Crim. App. 1987) . . . . . . . . . . . . . 62 Barefoot v. State, 596 S.W.2d 875 (Tex. Crim. App. 1980) . . . . . . . . . . . . 152 Bigley v. State, 865 S.W.2d 26 (Tex. Crim. App. 1993) . . . . . . . . . . . . 164 Bowling v. Commonwealth, 163 S.W.3d 361 (Ky. 2005) . . . . . . . . . . . . 139 Brown v. State, 554 S.W.2d 677 (Tex. Crim. App. 1977) . . . . . . . . . . . . 149 Brown v. State, 913 S.W.2d 577 (Tex. Crim. App. 1996) . . . . . . . . . . . . . 69 Brumfield v. Cain, 135 S. Ct. 2269 (2015) . . . . . . . . . . . . 130 Butcher v. State, 454 S.W.3d 13 (Tex. Crim. App. 2015) . . . . . . . . . . . . 127 Caballero v. State, 587 S.W.2d 741 (Tex. Crim. App. 1979) . . . . . . . . . . . . . 62 Camacho v. State, 864 S.W.2d 524 (Tex. Crim. App. 1993) . . . . . . . . . . . . 153 x Cantu v. State, 939 S.W.2d 627 (Tex. Crim. App. 1997) . . . . . . . . . . . . 156 Chase v. State, 2015 WL 1848126 (Miss. 2015) . . . . . . . . . . . . 139 Chester v. Thaler, 666 F.3d 340 (5th Cir. 2011) . . . . . . . . . . . . 129 Clark v. Quarterman, 457 F.3d 441 (5th Cir. 2006) . . . . . . . . . . . . 130 Coffey v. State, 979 S.W.2d 326 (Tex. Crim. App. 1998) . . . . . . . . . . . . 164 Coleman v. State, 341 S.W.3d 221 (Tenn. 2011) . . . . . . . . . . . . 139 Commonwealth v. Bracey, 2015 WL 3751733 (Pa. 2015) . . . . . . . . . . . . 139 Commonwealth v. DeJesus, 58 A.3d 62 (Pa. 2012) . . . . . . . . . . . . 139 Crane v. State, 786 S.W.2d 338 (Tex. Crim. App. 1990) . . . . . . . . . . . . . 94 Cuyler v. Sullivan, 446 U.S. 335 (1980) . . . . . . . . . . . . 102 Darkins v. State, 430 S.W.3d 559 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd) . . . . . . . . . . . . . 94 Demouchette v. State, 731 S.W.2d 75 (Tex.Crim.App.1986) . . . . . . . . . . . . . 70 Dobbs v. State, 434 S.W.3d 166 (Tex. Crim. App. 2014) . . . . . . . . . . . . . 81 Eppinger v. State, 800 S.W.2d 652 (Tex. App.—Austin 1990, pet. ref'd) . . . . . . . . . . . . . 83 Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004) . . . . . . . . . passim Ex parte Butler, 416 S.W.3d 863 (Tex. Crim. App. 2012) . . . . . . . . . . . . 136 Ex parte Cathey, 451 S.W.3d 1 (Tex. Crim. App. 2014) . . . . . . . . . passim Ex parte Chester, 2007 WL 602607 (Tex. Crim. App. 2007) . . . . . . . . . . . . 135 Ex parte Clark, 2004 WL 885583 (Tex. Crim. App. 2004) . . . . . . . . . . . . 136 Ex parte Henderson, 2006 WL 167836 (Tex. Crim. App.) . . . . . . . . . . . . 132 Ex Parte McFarland, 163 S.W.3d 743 (Tex. Crim. App. 2005) . . . . . . . . . . . . 102 xi Ex parte McKenzie, 582 S.W.2d 153 (Tex. Crim. App. 1979) . . . . . . . . . . . . . 63 Ex parte Sosa, 364 S.W.3d 889 (Tex. Crim. App. 2012) . . . . . . . . . . . . 134 Ex parte Taylor, 2006 WL 234854 (Tex. Crim. App. 2006) . . . . . . . . . . . . 133 Ex parte Tennard, 960 S.W.2d 57 (Tex.Cr.App.1997) . . . . . . . . . . . . 123 Ex parte Van Alstyne, 239 S.W.3d 815 (Tex. Crim. App. 2007) . . . . . . . . . . . . 129 Ex parte Weathers, 2014 WL 1758977 (Tex. Crim. App. 2014) . . . . . . . . . . . . 136 Ex parte Winfrey, 581 S.W.2d 698 (Tex. Crim. App. 1979) . . . . . . . . . . . . . 63 Ex parte Woods, 296 S.W.3d 587 (Tex. Crim. App. 2009) . . . . . . . . . . . . 136 Feldman v. State, 71 S.W.3d 728 (Tex. Crim. App. 2002) . . . . . . . . . . . . . 68 French v. State, 830 S.W.2d 607 (Tex. Crim. App. 1992) . . . . . . . . . . . . 164 Gallo v. State, 239 S.W.3d 757 (Tex. Crim. App. 2007) . . . . . . . . . . . . 126 Gardner v. State, 306 S.W.3d 274 (Tex. Crim. App. 2009) . . . . . . . . . . . . 158 Gaston v. State, 136 S.W.3d 315 (Tex. App.-Houston [1st Dist.] 2004, pet. struck) . . . . . . . . . . . . 103 Glossip v. Gross, 576 U.S. ___, 2015 WL 2473454. (2015) . . . . . . . . . . . . 159 Goodwin v. State, 191 S.W.3d 20 (Mo. 2006) . . . . . . . . . . . . 143 Green v. State, 934 S.W.2d 92 (Tex. Crim. App. 1996) . . . . . . . . . . . . . 70 Greene v. State, 264 S.W.3d 271 (Tex. App.—San Antonio 2008, pet. ref'd) . . . . . . . . . . . . . 62 Gregg v. Georgia, 428 U.S. 153 (1976) . . . . . . . . . . . . 159 Guevera v. Stephens, 577 F. App’x 364 (5th Cir. 2014) . . . . . . . . . . . . 138 Hall v. Florida, 134 S. Ct. 1986 (2014) . . . . . . . . . passim Henderson v. Stephens, 2015 WL 3965828 (5th Cir. 2015) . . . . . . . . . . . . 138 Hernandez v. State, 563 S.W.2d 947 (Tex. Crim. App. 1978) . . . . . . . . . . . . 138 xii Hernandez v. State, 969 S.W.2d 440 (Tex. App.—San Antonio 1998, pet. ref'd) . . . . . . . . . . . . . 82 Hernandez v. Thaler, 2011 WL 4437091 (W.D. Tex. 2011) aff’d, 537 F. App’x 531 (5th Cir. 2013) . . . . . . . . . . . . 136 Hines v. Thaler, 456 F. App’x 357 (5th Cir. 2011) . . . . . . . . . . . . 133 Holladay v. Allen, 555 F.3d 1346 (11th Cir. 2009) . . . . . . . . . . . . 140 Howell v. State, 563 S.W.2d 933 (Tex. Crim. App. 1978) . . . . . . . . . . . . 162 Hunter v. State, 243 S.W.3d 664 (Tex. Crim. App. 2007) . . . . . . . . . . . . 132 Ibanez v. State, 749 S.W.2d 804 (Tex. Crim. App. 1986) . . . . . . . . . . . . . 82 In re Allen, 462 S.W.3d 47 (Tex. Crim. App. 2015) . . . . . . . . . passim Isassi v. State, 330 S.W.3d 633 (Tex. Crim. App. 2010) . . . . . . . . . . . . . 81 Jackson v. State, 288 S.W.3d 60 (Tex. App. – Houston [1st Dist.] 2009, pet. ref’d) . . . . . . . . . . . . 163 Jackson v. Virginia, 443 U.S. 307 (1979) . . . . . . . . . . . . . 81 Johnson v. State, 43 S.W.3d 1 (Tex. Crim. App. 2001) . . . . . . . . . . . . . 96 Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998) . . . . . . . . . . . . . 95 Johnston v. State, 145 S.W.3d 215 (Tex. Crim. App. 2004) . . . . . . . . . . . . . 92 Jurek v. Texas, 428 U.S. 262 (1976) . . . . . . . . . . . . 159 King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997) . . . . . . . . . . . . . 61 Kotteakos v. United States, 328 U.S. 750 (1946) . . . . . . . . . . . . . 96 Ladd v. Thaler, 2013 WL 593927 (E.D. Tex. 2013) aff’d, 748 F.3d 637 (5th Cir. 2014) . . . . . . . . . . . . 134 Lambert v. State, 126 P.3d 646 (Okla. Crim. App. 2005) . . . . . . . . . . . . 130 xiii Land v. State, 291 S.W.3d 23 (Tex. App. – Texarkana 2009, pet. ref’d) . . . . . . . . . . . . 163 Lizcano v. State, 2010 WL 1817772 (Tex. Crim. App. 2010) . . . . . . . . . . . . 130 Lockhart v. State, 847 S.W.2d 568 (Tex. Crim. App. 1992) . . . . . . . . . . . . . 92 Lopez v. State, 200 S.W.3d 246 (Tex.App.-Houston [14th Dist.] 2006, pet. ref'd.) . . . . . . . . . . . . . 95 Luna v. State, 268 S.W.3d 594 (Tex. Crim. App. 2008) . . . . . . . . . . . . 155 Mann v. State, 718 S.W.2d 741 (Tex. Crim. App. 1986) . . . . . . . . . . . . . 93 Manning v. State, 766 S.W.2d 551 (Tex. App. – Dallas 1989) aff’d, 773 S.W.2d 568 (Tex. Crim. App. 1989) . . . . . . . . . . . . . 60 Martinez v. State, 924 S.W.2d 693 (Tex. Crim. App. 1996) . . . . . . . . . . . . 148 Matamoros v. Stephens, 783 F.3d 212 (5th Cir. 2015) . . . . . . . . . . . . 138 Matamoros v. Thaler, 2010 WL 1404368 (S.D. Tex. 2010) modified, 2012 WL 394597 (S.D. Tex. 2012) aff’d, 783 F.3d 212 (5th Cir. 2015) . . . . . . . . . . . . 136 Matlock v. State, 392 S.W.3d 662 (Tex. Crim. App. 2013) . . . . . . . . . . . . 127 Mays v. State, 318 S.W.3d 368 (Tex. Crim. App. 2010) . . . . . . . . . . . . 154 Mays v. Stephens, 757 F.3d 211 (5th Cir. 2014) . . . . . . . . . . . . 137 Meyer v. State, 366 S.W.3d 728 (Tex. App.—Texarkana 2012, no pet.) . . . . . . . . . . . . . 88 Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) . . . . . . . . . . . . . 59 Moore v. State, 999 S.W.2d 385 (Tex. Crim. App.1999) . . . . . . . . . . . . . 69 Moses v. State, 105 S.W.3d 622 (Tex. Crim. App. 2003) . . . . . . . . . . . . . 92 Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) . . . . . . . . . . . . . 97 Mozon v. State, 991 S.W.2d 841 (Tex. Crim. App. 1999) . . . . . . . . . . . . . 93 xiv Neal v. State, 256 S.W.3d 264 (Tex. Crim. App. 2008) . . . . . . . . . . . . 127 Osbourn v. State, 92 S.W.3d 531 (Tex. Crim. App. 2002) . . . . . . . . . . . . . 59 Patrick v. State, 906 S.W.2d 481 (Tex. Crim. App. 1995) . . . . . . . . . . . . . 68 Perillo v. Johnson, 79 F.3d 441 (5th Cir.1996) . . . . . . . . . . . . 102 Proffitt v. Florida, 428 U.S. 242 (1976) . . . . . . . . . . . . 159 Raby v. State, 970 S.W.2d 1 (Tex. Crim. App. 1998) . . . . . . . . . . . . 158 Rankin v. State, 953 S.W.2d 740 (Tex. Crim. App. 1996) . . . . . . . . . . . . . 92 Ransom v. State, 920 S.W.2d 288 (Tex. Crim. App. 1994) . . . . . . . . . . . . . 71 Ray v. State, 178 S.W.3d 833 (Tex. Crim. App. 2005) . . . . . . . . . . . . . 60 Riles v. State, 595 S.W.2d 858 (Tex. Crim. App. 1980) . . . . . . . . . . . . . 82 Ring v. Arizona, 536 U.S. 584 (2002) . . . . . . . . . . . . 151 Robinson v. State, 236 S.W.3d 260 (Tex. App. -Houston [1st Dist.] 2007, pet. ref’d) . . . . . . . . . . . . . 60 Rodriguez v. Quarterman, 2006 WL 1900630 (W.D. Tex. 2006) . . . . . . . . . . . . 136 Russeau v. State, 291 S.W.3d 426 (Tex. Crim. App. 2009) . . . . . . . . . . . . 153 Sasser v. Hobbs, 735 F.3d 833 (8th Cir. 2013) . . . . . . . . . . . . 140 Shannon v. State, 942 S.W.2d 591 (Tex. Crim. App. 1996) . . . . . . . . . . . . 157 Shaver v. State, 280 S.W.2d 740 (Tex. Crim. App. 1955) . . . . . . . . . . . . . 73 Smith v. State, 770 S.W.2d 70 (Tex. App. – Texarkana 1989, no pet.) . . . . . . . . . . . . . 59 Sorrells v. State, 343 S.W.3d 152 (Tex .Crim. App. 2011) . . . . . . . . . . . . . 82 Splawn v. State, 160 S.W.3d 103 (Tex. App. - Texarkana 2005, pet. ref’d) . . . . . . . . . . . . 162 State v. Lombardi, 303 S.W.3d 523 (Mo. 2010) . . . . . . . . . . . . 143 xv State v. White, 885 N.E.2d 905 (Ohio 2008) . . . . . . . . . . . . 139 Strickland v. Washington, 466 U.S. 668 (1984) . . . . . . . . . . . . 102 Temple v. State, 390 S.W.3d 341 (Tex. Crim. App. 2013) . . . . . . . . . . . . . 82 Thomas v. Allen, 607 F.3d 749 (11th Cir. 2010) . . . . . . . . . . . . 141 Thuesen v. State, 2014 WL 792038 (Tex. Crim. App. 2014) . . . . . . . . . . . . 150 Tong v. State, 25 S.W.3d 707 (Tex. Crim. App. 2000) . . . . . . . . . . . . 150 Torres v. State, 593 S.W.2d 717 (Tex. Crim. App. 1980) . . . . . . . . . . . . . 63 Turner v. State, 422 S.W.3d 676 (Tex. Crim. App. 2013) . . . . . . . . . . . . . 63 United States v. Fox, 613 F.2d 99 (5th Cir.1980) . . . . . . . . . . . . 103 Van Tran v. Colson, 764 F.3d 594 (6th Cir. 2014) . . . . . . . . . . . . 137 Van Tran v. State, 2006 WL 3327828 (Tenn. Crim. App. 2006) . . . . . . . . . . . . 139 Villanueva v. State, 711 S.W.2d 739 (Tex. App.—San Antonio 1986) pet. ref’d 725 S.W.2d 244 (Tex. Crim. App. 1987) . . . . . . . . . . . . . 83 Webb v. State, 36 S.W.3d 164 (Tex. App.-Houston [14th Dist.] 2000, pet. ref’d) . . . . . . . . . . . . . 96 Wheeler v. State, 67 S.W.3d 879 (Tex. Crim. App. 2002) . . . . . . . . . . . . . 59 Whitaker v. State, 286 S.W.3d 355 (Tex. Crim. App. 2009) . . . . . . . . . . . . 157 Whitaker v. State, 977 S.W.2d 869 (Tex. App.—Beaumont 1998, pet. ref'd) . . . . . . . . . . . . . 82 Williams v. Quarterman, 293 F. App’x 298 (5th Cir. 2008) . . . . . . . . . . . . 131 Williams v. State, 270 S.W.3d 112 (Tex. Crim. App. 2008) . . . . . . . . . . . . 136 Williams v. State, 273 S.W.3d 200 (Tex. Crim. App. 2008) . . . . . . . . . . . . 151 Wilson v. Thaler, 450 F. App’x 369 (5th Cir. 2011) . . . . . . . . . . . . 131 xvi Woods v. Quarterman, 493 F.3d 580 (5th Cir. 2007) . . . . . . . . . . . . 138 Wooldridge v. State, 653 S.W.2d 811 (Tex. Crim. App. 1983) 82 Ybarra v. State, 247 P.3d 269 (Nev. 2011) . . . . . . . . . . . . 139 Statutes IDAHO CODE ANN. § 19-2515A(1)(a) . . . . . . . . . . . . 139 KY. REV. STAT. ANN. § 532.130(2) . . . . . . . . . . . . 139 MO. REV. STAT. § 565.030(6) . . . . . . . . . . . . 139 N.C. GEN. STAT. § 15A-2005(a)(1)(B) . . . . . . . . . . . . 139 N.C. GEN. STAT. § 15A-2005(a)(2) . . . . . . . . . . . . 139 NEV. REV. STAT. § 174.098(7) . . . . . . . . . . . . 139 OKLA. STAT. TITLE 21, § 701.10b(A)(2) . . . . . . . . . . . . 139 TEX. CRIM. PROC. CODE art. 35.16(a)(9) . . . . . . . . . . . . . 73 TEX. CRIM. PROC. CODE art. 35.16(c)(2) . . . . . . . . . . . . . 68 TEX. CRIM. PROC. CODE art. 37.071§ 2(g) . . . . . . . . . . . . 164 TEX. CRIM. PROC. CODE art. 38.04 . . . . . . . . . . . . . 81 TEX. CRIM. PROC. CODE art. 42.01 § 14 . . . . . . . . . . . . 162 TEX. CRIM. PROC. CODE art. 44.29(a) . . . . . . . . . . . . . 74 TEX. CRIM. PROC. CODE art. 44.29(c) . . . . . . . . . . . . . 71 TEX. CRIM. PROC. CODE art. 46B.003(a)(1) . . . . . . . . . . . . . 61 TEX. CRIM. PROC. CODE art. 46B.003(b) . . . . . . . . . . . . . 61 TEX. HEALTH & SAFETY CODE § 591.003(1) . . . . . . . . . . . . 121 TEX. HEALTH & SAFETY CODE § 591.003(7) . . . . . . . . . . . . 123 xvii TEX. HEALTH & SAFETY CODE § 591.003(13) . . . . . . . . . . . . 121 TEX. PEN. CODE § 1.07(25) . . . . . . . . . . . . . 89 TEX. PEN. CODE § 12.04(a)(1) . . . . . . . . . . . . 162 TEX. PEN. CODE § 12.31(a) . . . . . . . . . . . . 162 TEX. PEN. CODE § 19.03(a)(2) . . . . . . . . . . . . 162 TEX. PEN. CODE § 20.01(2)(A) . . . . . . . . . . . . . 86 TEX. PEN. CODE § 20.01(2)(B) . . . . . . . . . . . . . 86 TEX. PEN. CODE § 20.03(b) . . . . . . . . . . . . . 84 TEX. PEN. CODE § 30.02(a) . . . . . . . . . . . . . 83 TEX. PEN. CODE § 36.06 . . . . . . . . . . . . . 87 TEX. PEN. CODE § 36.06(a)(1)(B) . . . . . . . . . . . . . 87 TEX. PEN. CODE § 36.06(a)(2)(A) . . . . . . . . . . . . . 87 VA. CODE ANN. § 19.2-264.3:1.1(B)(2) . . . . . . . . . . . . 140 Rules TEX. R. APP. P. 9.4 . . . . . . . . . . . . 166 TEX. R. APP. P. 9.10(a)(3) . . . . . . . . . . . . . 13 TEX. R. APP. P. 44.2(b) . . . . . . . . . . . . . 60 TEX. R. APP. P. 78.1(b) . . . . . . . . . . . . 163 TEX. R. EVID. 404(b) . . . . . . . . . . . . . 92 TEX. R. EVID. 503(b)(2) . . . . . . . . . . . . . 60 TEX. R. EVID. 503(c) . . . . . . . . . . . . . 59 DOCKETED CASE Lizcano v. Texas, No. 15-65 (U.S.) . . . . . . . . . . . . 128 xviii Other Authorities American Association of Intellectual and Developmental Disabilities, Intellectual Disability: Definition, Classification, and Systems of Supports (11th ed. 2010) . . . . . . . . . . . . 130 American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) . . . . . . . . . . . . 133 Blume, John H., et al., A Tale of Two (and Possibly Three) Atkins, 23 Wm. & Mary Bill Rts. J. 393 (2014) . . . . . . . . . . . . 129 Blume, John H., et al., Of Atkins and Men, 18 Cornell J.L. & Pub. Pol’y 689 (2009) . . . . . . . . . . . . 129 George E. Dix & John M. Schmolesky, 43 Texas Practice: Criminal Practice and Procedure § 31:81, at 89–90 & n. 10 (3rd ed.2011) . . . . . . . . . . . . . 63 Greenspan, Stephen, The Briseño Factors, in The Death Penalty and Intellectual Disability 219 (Edward A. Polloway ed., 2015) . . . . . . . . . . . . 130 Tobolowsky, Peggy M., A Different Path Taken, 39 Hastings Const. L.Q. 1 (2011) . . . . . . . . . . . . 139 xix Statement Regarding Oral Argument Argument is requested. The facts are voluminous and the issues on appeal are complex. It is respectfully suggested argument would assist the Court in its decisional process. Statement of the Case This is an appeal from a criminal proceeding. Petetan was indicted by a McLennan County grand jury for the offense of capital murder (1 CR 44). It was alleged Petetan murdered his wife, Kimberly Petetan, by shooting her with a firearm while he was in the course of committing or attempting to commit the offenses of burglary, kidnapping, and retaliation (1 CR 44). The State gave notice of its intent to seek the death penalty (2 RR 6). Petetan asserted he was incompetent to stand trial and sought a competency determination by a jury (2 CR 383). A competency jury was selected and sworn (10 RR 109, 110). The jury found Petetan competent to stand trial (2 CR 453, 13 RR 94). A jury was selected and sworn for trial on the charged offense of capital murder (48 RR 108, 50 RR 192, and 51 RR 16). Petetan entered a plea of not guilty to the indicted offense (51 RR 26). At the conclusion of the guilt or -1- innocence phase, the jury found Petetan guilty of capital murder as charged in the indictment (4 CR 1308, 54 RR 224). Punishment was tried to the same jury (55-60 RR). At the conclusion of the punishment phase, the jury returned answers to four special issues (4 CR 1336- 1339, 60 RR 67-68). Based on the jury’s answers to the special issues, punishment was assessed by the trial court at death and Petetan was sentenced in open court (60 RR 71). A motion for new trial was filed and denied (4 CR 1377, 1382). Appeal to this Court is automatic. Nonetheless, the trial court certified Petetan’s right to appeal and notice of appeal was timely filed (4 CR 1348, 1353). Issues Presented on Appeal Point of Error One The trial court abused its discretion by allowing the State to invoke Petetan’s attorney-client privilege as to testimony he sought to offer from his former attorney on the issue of competency to stand trial (13 RR 57). -2- Point of Error Two The trial court abused its discretion by excluding evidence Petetan sought to offer concerning the legal fate of those who obtain an incompetency determination through malingering (13 RR 60). Point of Error Three The trial court abused its discretion by denying a defense challenge for cause to prospective juror Richard Hester who had a bias against a life sentence without possibility of parole and a bias in favor of a sentence of death (28 RR 89). Point of Error Four The trial court abused its discretion by denying a defense challenge for cause to prospective juror Richard Hester who believed law enforcement officers to be more credible than other witnesses (28 RR 89). Point of Error Five The trial court abused its discretion by denying a defense challenge for cause to prospective juror Luther Fore who had a bias against a life sentence without possibility of parole and a bias in favor of a sentence of death (30 RR 174). -3- Point of Error Six The evidence is insufficient to prove Petetan murdered the complainant while in the course of committing or attempting to commit the offenses of burglary, kidnapping, or retaliation. Point of Error Seven The trial court abused its discretion by admitting an extraneous offense showing that on the day of the murder, Petetan told Miller he was going to Waco to buy drugs and would give Miller drugs if he would drive Petetan to Waco (53 RR 31). Point of Error Eight The trial court abused its discretion by admitting an extraneous offense showing that on the day of the murder, Petetan told Mouton he was going to Waco to buy drugs and would give Mouton drugs if he would accompany Petetan to Waco (53 RR 31). Point of Error Nine The trial court abused its discretion by admitting evidence which undermined defense counsel before the jury and created a conflict of interest which denied Petetan his right to the effective assistance of counsel (59 RR 198). -4- Point of Error Ten The jury’s answer to the intellectual disability special issue is against the great weight and preponderance of the evidence. Point of Error Eleven Petetan’s intellectual disability renders him ineligible for the death penalty. Point of Error Twelve The trial court erred by failing to define the term “militate” within the punishment charge as requested by Petetan (4 CR 1318, 4 CR 1330, and 59 RR 212). Point of Error Thirteen The trial court erred by overruling Petetan’s objection to the instruction that 10 votes were required for the jury to return a “no” answer to the first special issue concerning future dangerousness (4 CR 1318, 4 CR 1330, and 59 RR 212). Point of Error Fourteen The trial court erred by overruling Petetan’s objection to the “anti-sympathy” instruction insofar as the instruction would limit the scope of mitigating -5- evidence and or circumstances that jury may consider in returning a life sentence (4 CR 1320, 4 CR 1330, and 59 RR 212). Point of Error Fifteen The trial court erred by overruling Petetan’s request that the jury be instructed on the concept of mercy and the role it can play in deliberations (4 CR 1320, 4 CR 1330, and 59 RR 212). Point of Error Sixteen The trial court erred by submitting a special issue on future dangerousness which was not found by the grand jury or alleged in the indictment returned against Petetan (1 CR 44, 4 CR 1321, 4 CR 1330, and 59 RR 212). Point of Error Seventeen The trial court erred by failing to define the term “probability” within the punishment charge as requested by Petetan (4 CR 1321, 4 CR 1330, and 59 RR 212). -6- Point of Error Eighteen The trial court erred by failing to define the phrase “criminal acts of violence” within the punishment charge as requested by Petetan (4 CR 1322, 4 CR 1330, and 59 RR 212). Point of Error Nineteen The trial court erred by failing to define the phrase “continuing threat to society” within the punishment charge as requested by Petetan (4 CR 1323, 4 CR 1330, and 59 RR 212). Point of Error Twenty The trial court erred by failing to submit Petetan’s four requested instructions relative to the jury’s consideration of victim impact evidence (4 CR 1324, 4 CR 1330, and 59 RR 212). Point of Error Twenty-One The trial court erred by failing to define the phrases “personal moral culpability” and “moral blameworthiness” within the punishment charge as requested by Petetan (4 CR 1325, 4 CR 1330, and 59 RR 212). -7- Point of Error Twenty-Two The trial court erred by overruling Petetan’s objection that the charge unduly limited what factors the jury could consider as mitigating (4 CR 1325, 4 CR 1330, and 59 RR 212). Point of Error Twenty-Three The trial court erred by overruling Petetan’s objection that the mitigation special issue is unconstitutional for failing to assign a burden of proof and not being susceptible to a sufficiency of the evidence review on appeal (4 CR 1326, 4 CR 1330, and 59 RR 212). Point of Error Twenty-Four The trial court erred by overruling Petetan’s objection that the jury should be instructed there is a presumption in favor of a life sentence rather than a sentence of death (4 CR 1327, 4 CR 1330, and 59 RR 212). Point of Error Twenty-Five The trial court erred by overruling Petetan’s objection that the jury should be instructed that if it was unable to agree on a special issue, a mistrial would be declared and life sentence imposed (4 CR 1326, 4 CR 1330, and 59 RR 212). -8- Point of Error Twenty-Six Imposition of the death penalty violates Petetan’s Eighth Amendment and Fourteenth Amendment rights not to be subjected to cruel and unusual punishment. Point of Error Twenty-Seven Petetan was denied equal protection of the law and due course of law due to the absence of a unified statutory procedure for pretrial litigation of an Atkins assertion of intellectual disability (18 RR 12, 4 CR 1228). Point of Error Twenty-Eight The judgment should be modified to properly reflect Petetan was convicted of a capital felony offense rather than a first degree felony offense (4 CR 1343). Point of Error Twenty-Nine The judgment should be modified to properly reflect punishment was assessed by the trial court rather than the jury (4 CR 1343). -9- Statement of Facts A. Competency Trial Petetan filed a motion, supported by the affidavit of an expert, alleging he was incompetent to stand trial (2 CR 383). He sought a jury determination of his competency to be tried (2 CR 383). The trial court appointed an independent expert to examine Petetan’s competency to stand trial (2 CR 392). That expert opined Petetan was competent for trial (2 CR 414). In view of the conflicting opinions regarding Petetan’s competency, the trial court agreed a jury trial on competency was warranted (8 RR 5). A jury to pass on the issue of competency was selected and sworn (10 RR 109, 110). Dr. Ollie Seay is a psychologist from Austin (12 RR 32). She was employed by the defense to examine Petetan relative to his competency to stand trial (12 RR 49). She explained that in current practice the term intellectual disability is used rather than the outdated term mental retardation (12 RR 43). She agreed both terms have the same definition and three prongs to determine existence (12 RR 43). Intellectual disability alone will not render an individual incompetent for trial (12 RR 48). - 10 - She met with Petetan on three occasions and administered various assessment tests (12 RR 51). She reviewed police reports, medical reports, school records, and other psychological records (12 RR 53). Even though she did not administer an IQ test, previous IQ testing provided to her raised some concerns for her and those concerns were confirmed by her testing of and interaction with Petetan (12 RR 63, 99). Various test results from IQ tests administered to Petetan from childhood to 2012 were consistent in their results (12 RR 165). She administered a test designed to determine competency for those with intellectual disability (12 RR 67). Petetan scored 63% of the answers on the test correctly (12 RR 69). The score placed him within the range of those found incompetent to stand trial and below those found competent to stand trial (12 RR 70). Based on her examination, Petetan has limited capacity to understand the criminal charges against him (12 RR 71). He does not have the ability to consult with counsel (12 RR 73). She felt he would not be capable to testify because he becomes stuck on one topic or loses attention quickly (12 RR 83). Based on all of her activity in the case, Seay did not believe Petetan was competent to stand trial because his intellectual disability was interfering with his ability to be competent (12 RR 88-89). She did not believe he was subject to having his competency - 11 - restored due to his intellectual disability (12 RR 88, 148). Petetan rested (12 RR 171). Dr. Michael Pittman is a psychiatrist from Dallas (12 RR 172). He was appointed by the trial court to examine Petetan for competency (12 RR 174). He assessed Petetan in jail and reviewed various documents (12 RR 177). He did not administer a written examination to Petetan (12 RR 199). Pittman did not believe Petetan to be intellectually disabled, but did believe his intellect was below average and that he was a “little low in the IQ department” (12 RR 185). After his assessment, Pittman believed Petetan competent for trial (12 RR 186, 196). On September 23, 2012, Christopher Moutray, of the Bryan Police Department, interviewed Petetan with regard to the murder of his wife, Kimberly Petetan (12 RR 207). Petetan was given his Miranda warnings, which he appeared to understand (12 RR 211, 212). Petetan spoke with Moutray and another detective about the events which had transpired the day of his wife’s death (12 RR 215). During the interview, Petetan repeatedly told the detectives that Adrian Miller had killed Kimberly (12 RR 217). Petetan participated in a gunshot residue test, but refused to provide a DNA sample (12 RR 220, 223). Upon his arrest, Petetan invoked his right to counsel (12 RR 226). The recorded interview of - 12 - Petetan in Bryan was played for the jury (12 RR 228, 61 RR SX C). The State rested (13 RR 15). Seay was recalled by the defense (13 RR 16). She said that she believed Petetan was being honest with her during their three interviews (13 RR 22). After listening to the State’s evidence, she still believed Petetan incompetent for trial (13 RR 25). Both sides closed on the issue of competency (13 RR 61). No objection was voiced to the court’s charge (13 RR 12). The charge was read to the jury (13 RR 62). Argument was presented (13 RR 70, 75, and 84). The jury returned a verdict finding Petetan competent to stand trial (13 RR 94). B. Guilt or Innocence Phase The indictment alleges Petetan killed Kimberly Petetan on September 23, 2012, by shooting her with a firearm while in the course of committing burglary of Kimberly Petetan, retaliation of Kimberly Petetan, and kidnapping of Kimberly Petetan and her daughter, A. W.1 (1 CR 44, 51 RR 25). On September 23, 2012, at 6:30 pm in the evening, Waco Police Officer Rebecca Diaz responded to a report of shots fired at The Landing apartment 1 “A. W.” was a minor at the time of the offense and a pseudonym is used throughout this brief. See TEX. R. APP. P. 9.10(a)(3). - 13 - complex in Waco (51 RR 47). She and a fellow officer approached an apartment, knocked on the door, and opened the door when no one answered (51 RR 54). They saw the body of a white female on the floor as well as bloodstains near the body (51 RR 56). The victim had suffered multiple gunshot wounds (51 RR 56). Diaz and her fellow officer searched for other victims or a suspect in the apartment and found none (51 RR 57). There were no signs of forced entry into the apartment (51 RR 58). The gunshot victim died by the time paramedics arrived (51 RR 64). After speaking with a neighbor, Diaz learned the identity of the gunshot victim as Kimberly Petetan (51 RR 66). Diaz also learned that the victim had a young daughter and Diaz was concerned because the child was not in the apartment and her whereabouts were unknown (51 RR 67). While still at the scene, Diaz learned the child had been located in Bryan (51 RR 67). Ashley Roy, an evidence technician with the Waco Police Department, went to the scene of shooting (51 RR 117). She saw a body with gunshot wounds (51 RR 120). Roy found three .380 shell casings at the scene (51 RR 120-123). Inside the apartment, she noticed blood stains on the four lowest stairs near the front door (51 RR 123). The bloodstains led her to believe the person was already wounded when they climbed the four stairs (51 RR 133). She found no bloodstains upstairs - 14 - (51 RR 139). There was no sign of a forced entry or struggle in the apartment (51 RR 124-125). She recovered two cigarette butts and a cigar package outside the apartment (51 RR 153). Joyce Marek, a Waco Police Department crime scene technician, searched Petetan’s 1989 Suburban vehicle which had been seized by the Bryan Police Department (51 RR 164). She took photos of the vehicle and found what she thought to be bloodstains in the vehicle (51 RR 167). The vehicle contained numerous papers belonging to Petetan (51 RR 178). She also found maps in the vehicle showing directions from Port Arthur to Waco and to McLennan County Community College (51 RR 188). Drs. Chester Gwin and Allison Edgecombe, of the Southwestern Institute of Forensic Sciences, performed an autopsy on the body of Kimberly Petetan (51 RR 200-203). During the examination, they found evidence of two gunshot wounds (51 RR 206). The projectile from one of the wounds hit several major organs (51 RR 220). Gwin testified that Kimberly Petetan died from multiple gunshot wounds (51 RR 224). Lanelle Waley is a firearm and tool mark examiner with the Department of Public Safety in Austin (51 RR 229). He examined the three shell casings found in apartment and determined they were .380 Winchester cartridges (51 RR 235). All - 15 - of the casings had been fired from the same firearm which may have been a Bersa Thunder Model .380 (51 RR 237-238). Waley explained that the Department will not conduct a gunshot residue tests if the suspects hands were swabbed more than four hours after a weapon was allegedly fired (51 RR 242). Erin Casmus is a forensic scientist with the Department of Public Safety in Waco (51 RR 246). He examined evidence submitted in the case (51 RR 249). A cigarette butt at the scene of the shooting had DNA consistent with that of Kerrie Mouton (51 RR 253). A bloodstain found on the shirt Petetan was wearing at the time of his arrest contained DNA consistent with Petetan’s own DNA (51 RR 261). Kristin Warmack is the older sister of A. W.2 and daughter of Kimberly Petetan (52 RR 7). She and her mother met Petetan’s brother at a brake repair shop in Waxahachie and he suggested Kimberly write to Petetan to share her story and God’s love (52 RR 17-19). Her mother corresponded with Petetan in 2009 and 2010 and eventually began to have romantic feelings toward him (52 RR 20). They were married by proxy in September of 2010 with Warmack standing in for Petetan (52 RR 23). Petetan came to live with Kimberly and A. W. in April of 2012 (52 RR 26). 2 Warmack and “A. W.” do not have the same last name. - 16 - In August of 2012, Kimberly was planning to move to Port Arthur to be with Petetan (52 RR 28). She then decided to stay in Waco and rented an apartment at The Landing apartment complex (52 RR 33). Kimberly eventually moved to Port Arthur in early September of 2012 to be with Petetan (52 RR 34). On September 13, 2012, Warmack received a voice message from A. W. informing her that Petetan was threatening their mother with a knife (52 RR 36). The following day, her mother decided to leave Port Arthur and move back to Waco (52 RR 37). Her mother told her that in view of Petetan’s assault in front of A. W., she was leaving Petetan and intended to divorce him (52 RR 38). On September 23, 2012, A. W. called Warmack from a convenience store in Conroe and asked her to come pick her up (52 RR 42). On the way, Warmack received a call from her mother’s apartment manager in Waco informing her that her mother had been shot and was dead (52 RR 43). Warmack called 911 to report her sister’s call for help and upon investigation by the police; she was told A. W. was not at the convenience store (52 RR 44). Later in the day on September 23, 2012, Warmack received a telephone call from Kerrie Mouton informing her that the police in Bryan had A. W. (52 RR 45). She drove to Bryan that night and picked up her younger sister, A. W. (52 RR 46). A. W. now lives with her (52 RR 7). - 17 - Warmack went to her mother’s apartment in Waco a couple of days later to pick up some clothing for A. W. (52 RR 48). While at the apartment, she found her mother’s purse in the dishwasher (52 RR 49). On September 13, 2012, Ryan Kidwell, of the Port Arthur Police Department, responded to a domestic disturbance call (52 RR 83). Kimberly Petetan told Kidwell that Petetan assaulted her when she asked him to stop smoking in the apartment because her daughter has asthma (52 RR 85). She said Petetan had thrown her to the floor and held a kitchen knife close to her (52 RR 86). While holding the knife close to her, Petetan said “I could kill you, do you want to die in front of your child?” (52 RR 88). Petetan left the apartment by the time Kidwell arrived (52 RR 87). Kimberly told the officer she wanted to file assault charges against Petetan and she knew it would be a felony since he used a knife during the assault (52 RR 90). She also told the officer she was leaving Port Arthur and moving back to Waco (52 RR 93). On September 23, 2012, Jackie Musgrove was staying at a motel in Waco (52 RR 102). Petetan approached him and asked him to rent a room in Musgrove’s name for Petetan in return for ten dollars (52 RR 104). Musgrove did as asked and was paid by Petetan (52 RR 108). - 18 - On September 23, 2012, Cornelius Jefferson was at The Landing apartment complex in Waco washing clothes (52 RR 121). He was approached by a man who asked him to knock on an apartment door (52 RR 124). Jefferson agreed to do so because he thought it was a joke or prank (52 RR 124). He knocked on the door and two women looked out the window (52 RR 125). The man who asked him to knock was crouched down behind Jefferson (52 RR 126). Eventually one of the women opened the door of the apartment and the man who had been crouched down behind Jefferson ran into the apartment (52 RR 127). Jefferson identified Petetan as the man who asked him to knock on the door and eventually ran into the apartment (52 RR 132). Nichlos Lampkin previously lived in the same apartment complex as Kimberly and A. W. on Purvis Street in Waco (52 RR 147). Petetan later moved into the apartment and frequently argued with Kimberly (52 RR 153). Sometimes when Petetan was angry, he would tell Lampkin in reference to Kimerbly “man, I’m going to kill that bitch” (52 RR 154). Petetan and Kimberly eventually moved from the complex (52 RR 158). Morris Evans knew Petetan and Kimberly when they lived in an apartment complex on Purvis Street in Waco (52 RR 165). Evans recalled an occasion when - 19 - Petetan accused him of sleeping with Kimberly (52 RR 168). Evans remembered Petetan saying “I’m going to kill the bitch” (52 RR 169). Charles Gatlin was an inmate at the McLennan County Jail with Petetan following Petetan’s arrest for murder (52 RR 179). One morning in jail, Petetan bumped into Gatlin and Gatlin said “excuse me” to which Petetan replied “I killed my wife and I will kill you” (52 RR 179). On another occasion, Petetan asked Gatlin if the authorities could match a fingerprint from a gun based on a DNA sample (52 RR 181). Petetan asked Gatlin to explain a ballistics report and whether it meant the police had a gun (52 RR 182). On September 23, 2012, Officer Crystal O’Rear, of the Bryan Police Department, received a call of a possible kidnapping (53 RR 7). Within ten minutes she saw a vehicle matching the description of that involved in the possible kidnapping (53 RR 21). She stopped the vehicle which was occupied by four people, Petetan, A. W., Adrian Miller, and Kerrie Mouton (53 RR 8, 11). Backup officers arrived, the occupants were separated, and O’Rear had an opportunity to speak with A. W. about what had happened to her mother in Waco (53 RR 13, 15). While stopped on the roadway, Mouton called A. W.’s older sister in Conroe and told her A. W. was in Bryan and safe in the presence of law enforcement officers (53 RR 25). - 20 - At 9:43 pm on September 23, 2012, Officer Lance Matthews, of the Bryan Police Department, received a call that his assistance was needed in conducting some interviews (51 RR 72). Those to be interviewed had knowledge of a murder in Waco (51 RR 73). They had been stopped in a vehicle traveling through Bryan (51 RR 73). The individuals to be interviewed were A. W., Kerrie Mouton, Adrian Miller, and Petetan (51 RR 76). Matthews first obtained some information from a Waco Police Department detective before conducting the interviews (51 RR 77). Matthews first interviewed A. W., the daughter of Kimberly Petetan (51 RR 79). She had no difficulty describing the events leading to her mother’s shooting (51 RR 81). Matthew next spoke with Miller (51 RR 82). Miller was cooperative, provided a DNA sample, and took a gunshot residue test (51 RR 84, 86). After the interview, Matthews did not believe Miller was involved in the shooting (51 RR 87). Mouton was interviewed next (51 RR 87). He was cooperative, provided a DNA sample, and took a gunshot residue test (51 RR 88). After interviewing Mouton, Matthews did not believe him to be a suspect in the shooting (51 RR 90). Petetan was the last person interviewed (51 RR 91). He was cooperative and took a gunshot residue test (51 RR 92). He refused to provide a DNA sample (51 - 21 - RR 92). At the conclusion of the interviews, Matthews arrested Petetan for the murder of Kimberly Petetan based on a McLennan County arrest warrant (51 RR 92). Miller and Mouton were released and A. W. was turned over to her older sister (51 RR 93, 95). Adrian Miller and Petetan grew up together in Port Arthur (53 RR 34). In the early morning of September 23, 2012, Miller saw Petetan at a store in Port Arthur (53 RR 36). Petetan told him he was going to Waco to buy some drugs and he would give Miller an ounce of crack cocaine and some money if he would drive Petetan to Waco (53 RR 37). Kerrie Mouton agreed to come along in order to “watch Miller’s back” (53 RR 40). On the way to Waco, Petetan had a gun which he placed in the hood compartment of his Suburban (53 RR 41). The threesome arrived in Waco about noon and went to a motel (53 RR 43). Petetan paid a man to rent a room for them (53 RR 45). Petetan left the motel in his Suburban without Miller or Mouton (53 RR 52). When Petetan returned to the motel, he was driving Kimberly’s truck which was also occupied by Kimberly and A. W. (53 RR 52). Petetan told Miller and Mouton to get in the bed of the truck and they all drove to Kimberly’s apartment complex (53 RR 54). Miller noticed Petetan’s vehicle was at the complex (53 RR 55). - 22 - They entered Kimberly’s apartment (53 RR 56). Miller and Mouton stayed downstairs and watched television for two hours (53 RR 56). Petetan and Kimberly went upstairs and Miller never heard them arguing (53 RR 56). When Petetan and Kimberly came downstairs, Kimberly told Miller where he could find something to eat in the kitchen (53 RR 57). As Kimberly was trying to walk out the front door, Petetan slammed the door shut and struck her with his fist (53 RR 57). Petetan then produced a pistol and shot Kimberly multiple times (53 RR 59). Miller testified that Mouton ran out of the apartment after the first shot and A. W. did so after the second shot (53 RR 59). Miller believed Petetan shot Kimberly four times and he saw her fall to the floor in the apartment (53 RR 60). Miller and Petetan left the apartment and got in Petetan’s vehicle which was already occupied in the back seat by Mouton and A. W. (53 RR 61). Miller testified he got in the vehicle to drive because he was concerned Petetan would hurt A. W. or Mouton (53 RR 62). Miller stated that no one told A. W. and Mouton to get in Petetan’s Suburban, they simply did so after the shooting of Kimberly in the apartment (53 RR 90). With Miller driving, they stopped for gas (53 RR 63). Petetan gave Miller money to purchase gasoline after Petetan had rubbed the money on his hands (53 - 23 - RR 63). Petetan followed Miller into the gas station and Miller was not able to alert the clerk of the shooting in Waco (53 RR 65). In the vehicle, A. W. asked if her mother was dead (53 RR 68). Miller told her “no,” and Petetan said nothing (53 RR 68). Miller never heard Petetan apologize to A. W. for killing her mother (53 RR 68). After stopping at a store in Bryan, Miller intentionally engaged in aggressive driving in an effort to attract the attention of a nearby police officer (53 RR 70, 72). When the officer approached the vehicle, Miller told the officer that he needed to talk to the officer in private (53 RR 72). Petetan told Miller to only talk to the officer in the presence of Petetan (53 RR 72). When the officer took Miller to the rear of the vehicle, Miller told him what had happed in Waco (53 RR 73). Miller denied killing Kimberly or knowing of Petetan’s intent to do so (53 RR 77). In hindsight, Miller believes Petetan was trying to set him up or frame him for the murder of Kimberly (53 RR 74). He recalled that once they were on Highway 6 headed toward Bryan from Waco, Petetan had Miller pull over so he could dispose of the pistol and piece of pizza Miller had taken from Kimberly’s apartment (53 RR 66). Miller believed Petetan was trying to set him up with DNA from the pizza, or the pizza wrapper at the murder scene, and connect him to the - 24 - murder weapon (53 RR 66). Miller also recalled that a couple of weeks before shooting, Petetan offered him a rock of crack cocaine if he would call Kimberly and cuss her out on the phone (53 RR 91). Miller agreed to do so and he believes the call was recorded for possible later use by Petetan in implicating him the murder of Kimberly (53 RR 91). Kerrie Mouton first met Petetan in 2012 in Port Arthur (53 RR 98). Petetan asked Mouton to come with him on trip to Waco to buy drugs (53 RR 101). Petetan promised to give Mouton some drugs if he would come along on the trip (53 RR 101). Miller came with them on the trip to Waco (53 RR 102). When they arrived in Waco, they checked into a motel (53 RR 106). Petetan left the motel in his vehicle and later returned in a truck occupied by Kimberly and A. W. (53 RR 108, 109). Mouton and Miller got in the bed of Kimberly’s truck and she drove the five of them to her apartment (53 RR 110). Upon arriving, Kimberly opened the door and they all entered (53 RR 111, 131). While he and Miller were downstairs, Mouton heard Kimberly upstairs say “fuck you Carnell, if you are going to kill me, kill me” (53 RR 113). - 25 - When Kimberly and Petetan came downstairs, she tried to unlock and open the front door, but Petetan pushed her away and into a wall (53 RR 117). When Kimberly pushed Petetan, he shot her multiple times with a handgun (53 RR 118). After the shooting, Mouton and A. W. ran out the back door of the apartment and jumped into Petetan’s vehicle (53 RR 121). Mouton intended to drive the two of them away, but Miller and Petetan came outside and entered the vehicle before he could do so (53 RR 121). Mouton did not force A. W. to get in the vehicle with him; she simply followed him to the vehicle after the shooting of her mother (53 RR 135). The four of them drove away with Miller driving, Petetan in the front passenger seat, and Mouton and A. W. in the rear seat (53 RR 122). While they were traveling, Mouton was in fear for his life and A. W. was crying and asking for her older sister (53 RR 124). Eventually, they were stopped by the police in Bryan and Mouton told the police the details of the shooting in Waco (53 RR 125, 127). A. W. was eleven years old at the time of trial in April of 2014 (53 RR 143). At one time, she and her mother lived in an apartment on Purvis Street in Waco (53 RR 145). While living on Purvis, Petetan moved in with them (53 RR 145). Petetan would yell at her mother and say bad things to her (53 RR 147). She and her mother then moved to The Landing apartment complex in Waco (53 RR 148). - 26 - After moving to The Landing, her mother told her that they were moving to Port Arthur to be with Petetan because that was where he was on parole (53 RR 150). After moving to Port Arthur, her mother and Petetan fought and her mother would cry (53 RR 151). She recalled an argument in the apartment one night when Petetan refused her mother’s request to smoke outside rather than in the apartment because she has asthma (53 RR 155). Petetan pushed her mother to the floor and she was crying (53 RR 156). Petetan retrieved a knife from the kitchen, put the knife behind her mother, and asked “if she wanted to die in front of A. W.” (53 RR 158). Her mother ran to the bathroom and called the authorities concerning the assault and Petetan then cut himself on the stomach with the knife (53 RR 160). She saw Petetan call the police and then leave the apartment before the police arrived (53 RR 161). The next day, her mother told her they were leaving Port Arthur and moving back to Waco (53 RR 163). Her mother died on a Sunday after they had attended church and talked about Heaven (53 RR 168). They were at home and heard a knock on the door (53 RR 172). Looking out the window, they could tell it was a stranger knocking (53 RR 173). When her mother opened the door, Petetan pushed his way into the apartment without her mother inviting him in (53 RR 174). Petetan pulled a gun from his pocket and waved the gun around the apartment (53 RR 175). Petetan - 27 - told her mother to get dressed and “come with me” (53 RR 176). Petetan told her mother they were going to Port Arthur and she was “going to tell the cops what happened” (53 RR 177). The three of them got into her mother’s truck and her mother was driving (53 RR 177). Petetan still had the gun in his pocket while in the truck (53 RR 178). Petetan directed her mother to drive to a motel in Waco (53 RR 179). Once they arrived at the motel, Petetan told her mother to honk the horn of the truck (53 RR 180). Two men came out of a room and got in the bed of the truck (53 RR 180). She did not know the men (53 RR 180). They left the motel and returned to her mother’s apartment (53 RR 183). Once at the apartment, everyone went inside (53 RR 184). The two men stayed downstairs and her mother and Petetan went upstairs (53 RR 184). While upstairs, she saw Petetan try to kiss her mother (53 RR 185). Petetan told A. W. to go to her own bedroom and leave them alone (53 RR 186). Everyone went downstairs and her mother was washing dishes (53 RR 187). The men were outside on a patio smoking cigarettes (53 RR 187). When they came back into to the apartment, one of the men put a pizza in the microwave oven (53 RR 188). - 28 - When her mother tried to open the front door, Petetan ran toward the door, shut it, and pushed her mother into a wall (53 RR 190). Petetan told her mother to stand on the stairs, that it was “time for her dust away,” and then he shot her three times (53 RR 191). Her mother fell to the floor and “flopped around like a fish” (53 RR 192). The younger of two other men in the apartment grabbed her and took her out the back door of the apartment (53 RR 192). He told her that everything would be okay (53 RR 193). When they briefly went back into the apartment, she saw Petetan grabbing all of the cellphones in the apartment (53 RR 193). All four of them then got in Petetan’s white Suburban and left (53 RR 195). At one point, they stopped on the road by some trees and she saw Petetan wrap the gun used to shoot her mother in a sheet and then throw the sheet over a fence and into the woods (53 RR 198). After the Suburban was stopped by the police in Bryan, she told the police what had happened in Waco and her older sister then picked her up in Bryan and took her to Conroe (53 RR 201). The State rested (53 RR 224). On September 23, 2012, Chasity Hamilton was working as a clerk at the Big Gas Truck Stop in Bryan (54 RR 15). Petetan came into the store and was acting - 29 - in a nervous manner (54 RR 18). She obtained a description of his vehicle as well as the license plate number and called the police after he left the store (54 RR 19). Ricki Elliot met Petetan when he was living with Kimberly in an apartment on Purvis Street him Waco (54 RR 22). Her apartment was next door and she never heard Petetan and Kimberly arguing in their apartment (54 RR 23). Petetan testified his relationship started with Kimberly while he was a prisoner serving a 20 year sentence at the Ellis Unit of the TDCJ-ID (54 RR 31). They corresponded with one another and she would visit him in prison with her daughter, A. W. (54 RR 35). They eventually decided to marry and were married by proxy 18 months before he was paroled from prison (54 RR 37-38). He was in prison for five convictions, three aggravated assaults and two attempted murders (54 RR 84). He served 19 years and 8 months of a 20 year sentence before he was released on parole (54 RR 84). After being released on parole, he lived with Kimberly and A. W. in an apartment on Purvis Street in Waco (54 RR 40). He never threatened to kill his wife while living on Purvis Street (54 RR 43). They eventually moved to an apartment at The Landing in Waco because they were having problems with the neighbors on Purvis Street (54 RR 44). - 30 - He denied assaulting Kimberly in Port Arthur (54 RR 46). Rather, after she disapproved of him going to a recording studio, she slapped him, and then cut him on the chest with a knife (54 RR 49-50). He reported her assault of him to the police (54 RR 50). On the day of Kimberly’s death, Petetan came to Waco from Port Arthur to pick up some property and return some money to Kimberly (54 RR 52). Miller and Mouton came with him because he did not know the way from Port Arthur to Waco (54 RR 52). Once they arrived, he rented a motel room for Miller and Mouton (54 RR 55). Petetan drove to Kimberly’s apartment and she let him come inside (54 RR 57). He denied crouching down behind a man and rushing into her apartment when the door was opened (54 RR 57). He denied having a gun in the apartment (54 RR 123). He, Kimberly, and A. W., drove to the motel to pick up Miller and Mouton (54 RR 60). Before they went back to Kimberly’s apartment, they stopped for Kimberly to buy some marijuana (54 RR 63). Once they returned to Kimberly’s apartment, Pertetan and Kimberly went upstairs and Mouton and Miller remained downstairs (54 RR 63). Petetan did not have a gun, but Miller had brought a gun from Port Arthur for protection because this was his first trip to Waco (54 RR 63). - 31 - Eventually, Petetan and Kimberly went downstairs (54 RR 65). She became upset when she saw Miller eating her food (54 RR 66). Kimberly and Miller began to argue (54 RR 68). While Miller and Kimberly were near the front door, Petetan heard Miller say “fuck this bitch” and then saw Miller shoot Kimberly (54 RR 71). When Petetan tried to call 911, Miller pointed the gun at him and took his phone (54 RR 73). The four of them left with Miller driving and A. W. pleading with Petetan not to let Miller hurt her (54 RR 73). Petetan only got into the vehicle to protect A. W. from Miller (54 RR 144). Miller wanted to throw A. W. out of the vehicle while traveling down the highway or take her to Houston and kill her (54 RR 76). When they stopped at a truck stop in Bryan, Petetan told the clerk that his daughter was in the vehicle, she had been kidnapped, and his wife had been shot in Waco (54 RR 77). Eventually, Petetan’s vehicle was stopped because of the information he gave to the clerk at the truck stop (54 RR 78). When an officer approached the vehicle, Petetan told her that Miller had kidnapped his daughter and shot his wife (54 RR 79). When he was interrogated at the police station, Petetan repeated that Miller had kidnapped his daughter and shot his wife (54 RR 80). The defense rested (54 RR 156) - 32 - In rebuttal, the State called Michael Tovar who was an inmate at the McLennan County Jail with Petetan (54 RR 158). In jail, Petetan referred to Kimberly as “that bitch” (54 RR 162). Petetan told Tovar that he shot Kimberly “boom-boom-boom” (54 RR 166). Petetan said he was willing to talk about the murder because the State would be unable to charge him due to his “mental state” (54 RR 168). The State rested on rebuttal and both sides closed (54 RR 173). No objections were voiced to the court’s charge and it was read to the jury (54 RR 174, 176). Argument was presented (54 RR 188, 197, and 215). The jury found Petetan guilty of capital murder as charged in the indictment (54 RR 224). C. Punishment Phase Ramona Pitre is a public school teacher in Port Arthur (55 RR 21). In 1989, Petetan was in her in-school suspension program (55 RR 26). He was angry, resistant, and disruptive in class (55 RR 27). On May 24, 1989, Petetan threw a lunch tray full of food at her when she tried to make him sit in the correct seat (55 RR 29). She does not believe Petetan is mentally intellectually disabled (55 RR 31). She believed he cannot follow rules and misbehaves (55 RR 31). In twenty five years of teaching, she has never had a student with intellectual disability, mental problems, or mental illness in one of her classes (55 RR 32). - 33 - Edward Cockrell is with the Jefferson County Juvenile Probation Department (55 RR 36). In 1990, Petetan was placed in intensive supervision juvenile probation for assaulting Pitre and the offense of criminal mischief against another person (55 RR 41). Petetan did not comply with the terms of probation and was eventually committed to the Brownwood State School (55 RR 49). Petetan returned to Port Arthur on juvenile parole and continued engaging in criminal conduct (55 RR 50). Eventually, it was decided to pursue certification for prosecution as an adult after Petetan shot Fredrick Nico with a gun in March of 1992 (55 RR 50, 51, and 55). Cockrell’s certification analysis was admitted into evidence (55 RR 53, 62 RR SX 133). When Petetan was 16 years of age, an IQ test administered yielded a score of 64 on a child’s test and 74 on an adult test (55 RR 65, 62 RR SX 133). A doctor described Petetan as mildly intellectually disabled in connection with testing conducted relative to the certification proceeding (55 RR 66). Eventually, Cockrell recommended Petetan be certified and tried as an adult for various offenses he committed while under 17 years of age (55 RR 72). He was certified to stand trial as an adult (55 RR 82). Records from the former Texas Youth Commission regarding Petetan were admitted into evidence (55 RR 87, 62 RR SX 128). Those records reflect an IQ - 34 - score of 61 for Petetan when he was admitted to TYC at the age of 15 in 1991 (62 RR SX 128). The juvenile certification proceedings related to Petetan were admitted into evidence and published to the jury (55 RR 82, 62 RR SX 130). The exhibit reflects Petetan’s date of birth as February 7, 1976 (62 RR SX 130). Leonard Cucolo testified that Petetan was received by the Brownwood State School in 1991 after his juvenile probation for burglary was revoked (55 RR 84, 87). He was at the Brownwood School for four months before returning to Port Arthur on juvenile parole (55 RR 93). While at the Brownwood School, Petetan was diagnosed as mildly intellectually disabled (55 RR 103). Port Arthur Police Department Officer Brian Broussard responded to a shooting report on March 21, 1992 (55 RR 107-108). He spoke with the victim, Fredrick Nico, who told him that Petetan had shot him with a gun (55 RR 110). Petetan shot Nico twice, and then tried to shoot him in the head, but the gun misfired (55 RR 111-112). Nico related the shooting was unprovoked (55 RR 112). Petetan was arrested for the shooting of Nico (55 RR 113). When he was 16 years of age, Petetan was certified to stand trial as an adult and received a 20 year sentence for the attempted murder of Nico (55 RR 115). - 35 - On March 21, 1992, Fredrick Nico, was at Petetan’s house in Port Arthur drinking beer in the backyard (55 RR 124). Nico was carrying a pistol for protection (55 RR 122). When Nico put the pistol on a table, Petetan grabbed it and ran to an alley (55 RR 126). When Petetan returned from the alley, he pointed the pistol at Nico and shot him twice (55 RR 128). Nico denied that Petetan tried to shoot him a third time in the head (55 RR 129). Nico later learned that Petetan was prosecuted for his attempted murder (55 RR 131). Nico has known Petetan for 25 years and does not consider him to be intellectually disabled (55 RR 134). Judge Vi McGinnis previously served as a Justice of the Peace in Jefferson County (55 RR 150). His duties included giving warnings to arrested juveniles and reviewing any written statements given by juveniles to police before they were signed by the juvenile (55 RR 153). Following his arrest for the attempted murder of Nico, McGinnis gave Petetan his statutory warnings (55 RR 156). McGinnis also reviewed the statement Petetan provided to the police concerning the shooting of Nico (55 RR 157). The statement reflected Petetan shot Nico because Nico had previously beat him, Nico had laughed at Petetan’s mother, and Nico laughed when he learned that Petetan’s friend “Pee Wee” had been killed (55 RR 159). - 36 - Officer Tony Barker, of the Beaumont Police Department, responded to a call from the Jefferson County Juvenile Detention Center in April of 1992 (55 RR 165). He spoke with a teacher at the Center who reported that Petetan had physically assaulted her (55 RR 166). Barker arrested Petetan for assaulting the teacher (55 RR 168). Raffiel Dugas testified that when he was 15 or 16 year old, he fought with Petetan inside a club in Port Arthur (55 RR 173, 177). Petetan hit Dugas with a chair rendering Dugas unconscious (55 RR 179). Petetan then proceeded to beat Dugas with the chair while he was unconscious on the floor (55 RR 180). Dugas sustained multiple injuries and was in the hospital for a week (55 RR 180-182). He later learned that Petetan went to prison for assaulting him with a chair (55 RR 180). Max Wolgast, of the Port Arthur Police Department, responded to a shooting on January 14, 1993 (55 RR 186). Victor Loeb was shot in a drive-by shooting while walking in his neighborhood (55 RR 187). He sustained three gunshot wounds (55 RR 188). Petetan was arrested for the shooting three days later and the handgun used in the shooting was found in his mother’s home (55 RR 189). Petetan was sent to prison for shooting Loeb (55 RR 190). - 37 - Kari Biddix previously lived in Port Arthur (55 RR 192). She recalled an incident when she heard gunshots outside her home and saw an older man limping and grabbing his side on the sidewalk (55 RR 193). She approached the man and he said “I’ve been shot” (55 RR 196). After learning the man’s name, she and her sister drove to Loeb’s house and told his wife that her husband had been shot (55 RR 197). On June 28, 1992, Corey Mendoza was a detention officer in the Jefferson County Jail (55 RR 202). He responded to a fire set in a cell occupied by Petetan and another inmate (55 RR 203). After Mendoza extinguished the fire, Petetan said he would start another fire if he was not moved to a different cell (55 RR 204). Mendoza later received a report that Petetan was throwing water on other inmates as they walked by his cell (55 RR 206). Jail records reflect Petetan’s date of birth as February 7, 1976 (55 RR 203). On February 9, 1993, while working as a jailer in the Jefferson County Jail, Mark Beadle responded to an inmate who had been burned when Petetan threw hot water on him (55 RR 210-211). His records reflect Petetan assaulted another inmate in jail on May 28, 1993 (55 RR 213). The pen packets from Petetan’s five prior felony convictions were admitted into evidence (55 RR 217, 62 RR SX 131). The packets reflect that on July 7, - 38 - 1993, he pleded guilty to five felony offenses committed while he was a 16 year old juvenile (62 RR SX 131). Those offenses were two attempted murders and three aggravated assaults (62 RR SX 131). Pursuant to a plea bargain, he received two 20 year sentences and three 10 year sentences to be served concurrently (62 RR SX 131). He was received at the Department of Corrections when he was 17 years of age on August 27, 1993 (62 RR SX 131). Prison records reflected his IQ testing was scored at 69 with a notation he was expelled following the eighth grade (62 RR SX 130). Joseph Blanton was previously employed as a prison guard at the Ferguson Unit of TDCJ (55 RR 230). On December 5, 1993, Petetan was involved in a fracas in the dayroom with several other offenders (55 RR 233). He was eventually found guilty in an administrative hearing of assaulting four other inmates (55 RR 240). Darrel Musgrove was previously employed as a prison guard at the Ferguson Unit of TDCJ (55 RR 248). On February 24, 1994, Petetan assaulted him by striking him in the chest with his elbow (55 RR 250). Gilbert Mercado is a former prison guard from the McConnell Unit of TDCJ (55 RR 256). On April 5, 1995, Mercado saw Petetan in a fight with another inmate and repeatedly strike the other inmate with his fist (55 RR 259). - 39 - Billy Jordan previously worked at the Ferguson Unit of TDCJ as a prison guard (56 RR 6). On July 24, 1994, he responded to screams from a cell occupied by Petetan and Christopher Robinson (56 RR 7). Robinson was covered in blood and had injuries to his face and head (56 RR 9). Robinson was holding a sock which contained a padlock (56 RR 9). Petetan had no injuries (56 RR 9). Petetan was administratively charged with attacking another inmate with a weapon (56 RR 11). James Simmons previously worked as a prison guard at the Clements Unit of TDCJ (56 RR 19). On June 3, 1995, Petetan approached Simmons and asked to be his boyfriend (56 RR 19). Petetan told Simmons that he loved him and wanted to live with him when he was released from prison (56 RR 20). Petetan was administratively charged with soliciting an officer (56 RR 20). Kellie Dossett previously worked as a prison guard at the McConnell Unit of TDCJ (56 RR 26). On August 25, 1995, Petetan yelled at Dossett and threw a liquid on him because Petetan was not allowed to participate in recreation (56 RR 27, 30). Petetan was administratively charged with assaulting an officer (56 RR 30). On February 25, 1996, prison guard Jody Munn searched Petetan’s cell at the Coffield Unit for contraband (56 RR 34-35). When Petetan returned to his cell, - 40 - he found Munn inside his cell and he threated to “kick her ass” (56 RR 37). Petetan was administratively charged with threatening an officer (56 RR 38). Morris Lee was Petetan’s principal in elementary school (56 RR 44). Petetan was frequently sent to Lee’s office because he did not follow school rules (56 RR 45). According to Lee, Petetan had no mental disabilities other than being hard headed (56 RR 51). Speedy Bryant has served a sentence for aggravated robbery since 1993 (56 RR 63). On February 28, 1994, he and Petetan were cellmates at the Ferguson Unit of TDCJ (56 RR 64). Petetan sexually assaulted him in their cell after they had been cellmates for a week (56 RR 65). When Bryant reported the sexual assault to a guard, Petetan and his friends jumped on Bryant and beat him (56 RR 67). In January of 2004, Concepcion Rosas and Petetan were cellmates at the Ellis Unit of TDCJ (56 RR 74). One afternoon after they had been cellmates for two weeks, Petetan sexually assaulted Rosas in their cell (56 RR 77). Daniel Gunter was incarcerated at the McConnell Unit of TDCJ in 1995 (56 RR 83). Gunter overheard Petetan tell his cellmate that he wanted a sexual relationship with Gunter (56 RR 87). One afternoon, Gunter was knocked unconscious in his cell (56 RR 92). When he regained consciousness, he was in - 41 - Petetan’s cell with his pants pulled down and Petetan sexually assaulting him while holding a shank to Gunter’s throat (56 RR 92-94). Gunter reported the incident to a guard (56 RR 96). The State rested on punishment (56 RR 99). Ophelia Ortiz is Petetan’s mother (56 RR 107). He is the youngest of her children (56 RR 109). Petetan’s father was both intellectually disabled and crazy (56 RR 109). While a child, Petetan was physically abused by his father (56 RR 129). As an infant, Petetan would constantly cry and pitch a fit (56 RR 112-113). He would break his baby bottles (56 RR 112). His temper tantrums started as a baby and have never subsided (56 RR 121). Petetan has wet the bed since childhood and still does so (56 RR 114). He was slow as a child and his mother had to repeatedly tell him to bathe (56 RR 115). He was unable to take care of himself as a child and unable to tie his shoes (56 RR 116). As a child, he was unable to dress himself or brush his teeth (56 RR 116). He did not follow her directions (56 RR 118). She had to walk with him to school because if he went by himself, he would get lost or go the wrong way (56 RR 117). He did not do his school homework (56 RR 118). She could never send him to the store because he could not remember - 42 - what he was to purchase (56 RR 171). He never learned to make change when purchasing an item (56 RR 171). After his best childhood friend, “Pee Wee,” died, his nervousness and depression increased (56 RR 120). Petetan had no interest in television or games as a child (56 RR 122). He would simply sit on the floor or go walking by himself without first telling his mother where he was going (56 RR 122). He was committed to a psychiatric hospital at age 15 before he went to the Brownwood State School (56 RR 128). Petetan was never able to get a driver license because he was unable to pass the written portion of the test (56 RR 123). After he left prison, he could not take care of himself (56 RR 124). Her daughter would clean and wash his clothes because he could not operate a washing machine (56 RR 124). He was unable to figure out how to operate a cell phone (56 RR 125). He never learned to wash dishes (56 RR 127). Sabrina Mouton, Petetan’s older sister, testified that up to age two, Petetan would cry constantly, wet himself, and not pay attention (56 RR 182). He didn’t walk until three years old or talk until four or five years old (56 RR 184). Growing up, Petetan would not play outside with his sister (56 RR 185). He wandered around the neighborhood aimlessly by himself (56 RR 185). He never - 43 - watched television or played games (56 RR 186). He was overweight as a child and teased by others (56 RR 187). He never learned to ride a bicycle (56 RR 188). When Petetan came home from prison, she tried to teach him how to use a cell phone and he could not learn (56 RR 193). He never learned to count money (56 RR 198). His handwriting is poor (56 RR 201). At the apartment he obtained while on parole, Petetan did not know how to cook for himself or clean up after himself (56 RR 197). Cathy Gauthier, Petetan’s aunt from Lake Charles, testified that Petetan lived with her for a year when he was 13 or 14 years old (56 RR 241, 244). He was real quiet and slower than her children (56 RR 245-246). Petetan did not attend school for the year he spent with Gauthier (56 RR 251). Petetan’s cousin, Caston Gauthier, visited Petetan while he was in prison (56 RR 26). When Petetan told Gauthier that he wanted to be a bondsman or rapper when released from prison, Gauthier thought Petetan did not have the intellectual ability to engage in such professions (56 RR 263-264). He never thought Petetan was intellectually disabled (56 RR 265). Kimberly Jackson is Petetan’s cousin and the daughter of Cathy Gauthier (56 RR 272). She and Petetan are the same age (56 RR 272). She remembered - 44 - that when Petetan was living with her family, he was not on her level “mind-wise” and intellectually slower than her (56 RR 272, 274). Thomas Kemper is Petetan’s uncle (56 RR 276). Petetan has been intellectually slow since birth (56 RR 279). He was in special education classes in school (56 RR 280). As a child, Petetan refused to bathe or groom himself (56 RR 281). Dr. Ray Coxe is a psychologist from Beaumont (56 RR 313). In 1992, he was performing psychological examinations for the court system in Jefferson County in connection with whether juveniles should be certified as adults for purposes of prosecution (56 RR 315). He examined Petetan at the request of the juvenile probation department in connection with a pending attempted murder charge and whether Petetan should be certified as an adult (56 RR 316-317). Petetan was 16 years of age at the time of the examination (56 RR 316). In view of his age, Coxe administered IQ tests for both children and adults to Petetan (56 RR 318). He explained the child test goes up to age 17 while the adult test goes down to age 16 (56 RR 318). Petetan’s full scale IQ on the child version was 64 which places him in the lower three percent (56 RR 322). Petetan’s full scale IQ on the adult test was 74 which places him in the lower four percent (56 - 45 - RR 323). Due to testing differences between the two tests, it is not unusual for the adult test to be 10 points higher than the child test (56 RR 323). Coxe also administered achievement tests to Petetan (56 RR 354). The tests are scored like an IQ test (56 RR 354). Petetan scored 70 on reading, 61 on spelling, and 46 on mathematics (56 RR 354). Based on testing and evaluation in 1992, Coxe believed Petetan to be mildly intellectually disabled (56 RR 357). Dr. Harold Scott, a psychiatrist, was previously a consultant for the Texas Youth Commission at the Brownwood State School (57 RR 40. 43). He examined Petetan at the school in 1991 when Petetan was 15 years old (57 RR 45). Scott diagnosed Petetan with a conduct disorder and mild mental disability (57 RR 53). Scott explained that mild mental disability meant an IQ score between 55 and 69 (57 RR 55). The diagnosis was based in part on previous IQ testing of Petetan (57 RR 56). Edmond Stewart is a former professional boxer (57 RR 92). For the last five years, he has been a pastor at a jail ministry in the McLennan County Jail (57 RR 95). Stewart met with Petetan in jail and found it hard to have a conversation with him because his mind tends to “wander off” (57 RR 98). Ellis Craig is a psychologist with 47 years of experience working in the area of adaptive behavior assessments (58 RR 7). He performed an adaptive behavior - 46 - assessment of Petetan by administering a test, reviewing records, and speaking with Petetan’s relatives (58 RR 18, 34, and 38). When speaking with Petetan’s relatives, Craig sought to determine adaptive behavior before the time Petetan went to prison at 17 years of age (58 RR 67). Most of the answers provided to his questions were examples of adaptive deficits from the time Petetan was a youth of 14 or 15 years old and had not yet gone to prison (58 RR 68). Craig believed Petetan was forthcoming with him during the assessment and did not intentionally attempt to underestimate his abilities (58 RR 39). The information gathered from Petetan’s relatives was graded for adaptive disabilities (58 RR 40). The information from Petetan’s mother placed Petetan so low that Craig did not consider it reliable (58 RR 40). Petetan’s brother and sister ranked his social skills at the best, conceptual skills second, and practical skills at the lowest (58 RR 41). The scoring of adaptive assessment is similar to scoring on an IQ test with the norm in the 85 to 115 range (58 RR 42). The results of the assessment done by Craig were based on input from Petetan and his relatives and the scores were as follows: brother 53; uncle and sister 47; Petetan 42; and Petetan’s mother 40. Craig concluded Petetan’s adaptive limitations far outweigh his limited skills (58 RR 47). Craig had to rely on retrospective assessments because there was no - 47 - measure from when Petetan was a child other than one report noting his adaptive limitations without concurrent testing (58 RR 48). Based on his adaptive behavior deficits and the IQ scores he has seen, Craig considers Petetan to be moderately intellectually disabled which is more severe than mildly intellectually disabled (58 RR 48). Dr. Kevin Correia, a psychologist, examined Petetan on August 8, 2012, in connection with an application for Social Security disability benefits (58 RR 104, 63 RR DX 5). Correia administered an IQ test resulting in a full scale score of 55 (58 RR 104, 63 RR DX 5). Correia diagnosed Petetan as mildly intellectually disabled in view of his IQ score and adaptive behavior deficits (58 RR 104, 63 RR DX 5). Joan Mayfield is a neuropsychologist (58 RR 105). While Petetan was in the McLennan County Jail awaiting trial, she administered 16 different tests to him (58 RR 124). The tests covered areas such as IQ, intellectual ability, attention, executive functioning, academic achievement, memory, learning, language, visual spatial, and motor coordination (58 RR 117). She did not perform any adaptive behavior assessment testing and relied on the testing by Dr. Craig (58 RR 231). Mayfield explained that one of the components of intellectual disability is sub-average intellectual functioning as shown by a full scale IQ score of 70 or - 48 - below, namely, two standard deviations below the mean (58 RR 129). She also considered and looked for evidence of an onset of the condition before the age of 18 (58 RR 132). Mayfield was provided access to various records including Petetan’s school records and previous psychological testing (58 RR 133). She noted Petetan was required to repeat both the third and sixth grades in school (58 RR 133). He was socially promoted to the fourth grade rather than being required to repeat the third grade three times (58 RR 133). He ultimately dropped out of school in the ninth grade (58 RR 220). Her testing of Petetan revealed global delays in intellectual ability, academic, executive functioning, problem solving, memory, language, motor skills, and visual perception (58 RR 185). He suffers from sub-average intellectual functioning with an onset before the age of 18 (58 RR 185-186). Her testing revealed a full scale IQ score of 52 (58 RR 190). The IQ testing results were consistent with other IQ testing results of Petetan she was provided (58 RR 244). She explained that at the time Coxe administered the child and adult versions of an IQ test to Petetan, there was a problem in correlating the results and those scoring on the lower end of child’s IQ test typically scored 10 to 15 points better on the adult version (58 RR 228). When the tests were revised, the norms - 49 - for the tests were adjusted and there is now good reliability between the two tests so that the scores are now similar (58 RR 228). She believed Coxe found the child’s score of 64 to be more reliable than the adult score of 74 and that is the reason he diagnosed Petetan as mildly intellectually disabled (58 RR 228). The defense rested on punishment (58 RR 248). In rebuttal, the State called Meshia Hicks (59 RR 34). Hicks was a clerk at the C & E Motel in Waco on September 23, 2012 (59 RR 37). Petetan saw her at the motel and asked for a ride to The Landing apartment complex (59 RR 40). With Petetan in her car, they drove around the parking lot of the complex (59 RR 41). Petetan told her he was looking for a drug dealer driving a black car (59 RR 41). No such car was observed and they returned to the motel (59 RR 42). Dorothy Stamps is a retired public school teacher from Port Arthur (59 RR 45). Petetan was in her first grade class (59 RR 50). She did not believe him to be intellectually disabled (59 RR 50). Rather, he was a coward and tended to run away from trouble (59 RR 53). Eddie Fowler was the principal of the middle school attended by Petetan (59 RR 59). He recalled that he caught Petetan smoking in the bathroom and that Petetan shot another student off campus (59 RR 62). Petetan was placed in special - 50 - education classes because he was a discipline problem (59 RR 63). Otherwise, he was an average student and not intellectually disabled (59 RR 63-64). Petetan’s school records were admitted into evidence (59 RR 69, 63 RR DX 10). Those records reflect he failed two grades and was socially promoted in another grade (59 RR 66). He withdrew from school in the eighth grade (63 RR DX 10). Mattie Howe was Petetan’s parole officer in Beaumont from May to September of 2012 (59 RR 70-71). He was required to participate in anger management classes as part of his parole (59 RR 74). Howe does not believe Petetan is intellectually disabled (59 RR 75). Travis Turner works for the Classification Department of TDCJ (59 RR 80). When Petetan was initially received at TDCJ in 1993, he scored at 69 on an IQ test (59 RR 85). He took an adaptive behavior screening test, but was never assigned to a prison unit for intellectually disabled offenders (59 RR 85-86). Turner described the classification system for inmates and security measures in place for each group of inmates (59 RR 103). He explained that the Crips and Bloods are not part of Security Threat Groups which are automatically housed in administrative segregation (59 RR 104). - 51 - While Warren Kroll was working as a prison guard at the Ferguson Unit of TDCJ in 1994, he searched Petetan’s cell (59 RR 80. 111). He found a sharpened piece of steel and a padlock inside a sock (59 RR 111). Petetan was administratively charged with possessing a weapon (59 RR 114). While Robert Blanks was working as a prison guard at the Estelle Unit of TDCJ in 1998, he saw Petetan and another inmate stab two other inmates while in the dining hall (59 RR 124). Petetan was administratively charged with assaulting another inmate with a weapon (59 RR 126). Azikiw Daniels previously served a prison sentence at the Estelle Unit of TDCJ (59 RR 131). When he heard that Petetan wanted to fight him, Daniels struck Petetan on the head with a pipe two or three times (59 RR 138). Two days later, Petetan stabbed Daniels while he was working in the serving line of the kitchen (59 RR 143). Daniels knew that Petetan was a member of the Crips street gang (59 RR 144). Jay Hart is in charge of the TDCJ Security Threat Groups Office (59 RR 152). He explained TDCJ recognizes eight different security threat groups including the Crips (59 RR 154). Unlike some other threat groups, Crips are not automatically housed in administrative segregation and may have jobs in the general inmate population (59 RR 159). - 52 - Hart observed various tattoos on Petetan and said they were indicative of membership in the Crips (59 RR 161, 165). Petetan identified himself as a Crips member to prison authorities in 1999 (59 RR 172). Hart had no record of Petetan ever attempting to disassociate from the Crips or renounce his membership in the organization (59 RR 182). Mubarak Ali was in the McLennan County Jail on a drug charge while Petetan was awaiting his capital murder trial in March of 2014 (59 RR 199). Petetan told Ali that if he acted like he was mentally sick, he would not receive the death penalty (59 RR 203). When Ali asked Petetan to make a telephone call for him, Petetan declined by explaining his calls were recorded and he was telling the court he was mentally sick (59 RR 205). Ali admitted he told the State of his conversations with Petetan at the urging of his lawyer (59 RR 208). Ali’s drug charge remained pending at the time of Petetan’s trial (59 RR 200). The State rested on rebuttal and both sides closed (59 RR 209). The trial court sustained one of Petetan’s objections to the charge and the remaining objections were overruled (59 RR 212, 4 CR 1313). The charge was read to the jury (60 RR 5). Argument was presented (60 RR 15, 24, and 50). The jury returned answers to the four special issues submitted (60 RR 67-68, 4 CR - 53 - 1336-1339). Based on the jury’s answers to the special issues, punishment was assessed by the trial court at death (60 RR 71). Summary of the Argument Twenty-nine points of error are presented on direct appeal. The first two complain of the exclusion of evidence offered by Petetan during the competency trial. The trial court refused to allow former counsel to testify relative to Petetan’s competency to stand trial upon erroneously allowing the State to invoke Petetan’s attorney-client privilege to the admissibility of the evidence. In the second instance, after the State suggested Petetan was malingering in an effort to secure a finding of incompetency, the trial court refused to admit testimony as to the fate of those who secure an incompetency determination through malingering. Three points of error are presented urging the trial court erred by denying defense challenges for cause to prospective jurors during voir dire examination relative to the trial on the merits. One venireman had a bias in favor of the death penalty and a bias in favor of the credibility of law enforcement officers. The second venireman had a bias in favor of the death penalty. Petetan used peremptory strikes on both, was denied additional strikes, and identified an objectionable juror he would have stricken if afforded additional strikes. - 54 - Petetan challenges the sufficiency of the evidence to prove the underlying felonies which elevate the murder to the offense of capital murder. Even viewed in the light most favorable to the verdict, no rational juror could have found the murder occurred in the course of committing or attempting to commit burglary, kidnapping, or retaliation. Two points of error assert the trial court erred by admitting extraneous offenses during the guilt or innocence phase of trial. Those extraneous offenses were not relevant to the charged capital murder. The offenses improperly portrayed Petetan before the jury as a violent drug dealer. A point complains the trial court undermined Petetan’s right to conflict free counsel by admitting evidence from a former client of defense counsel during the punishment phase of trial. Trial counsel was placed in an impossible position of effectively representing Petetan while not revealing attorney-client confidences in cross-examination of his former client. Petetan complains the jury’s rejection of his claim of intellectual disability is manifestly unjust and against the great weight and preponderance of the evidence. Consequently he is not eligible for the death penalty. Overwhelming evidence of intellectual disability was presented to the jury. Petetan seeks for this Court to reconsider its flawed Briseno approach and adopt a clinical standards approach to - 55 - the issue as embraced by the Supreme Court in Atkins and Hall. However, under either standard, he has shown himself not to be eligible for a sentence of death. In fourteen points of error, Petetan maintains the trial court abused its discretion by denying his objections to the punishment phase jury charge. Petetan acknowledges the challenges have been previously rejected by this Court. They are presented for preservation of the errors and to avoid waiver. A point of error complains the death penalty violates the Eighth Amendment prohibition on cruel and unusual punishment. The point is based on Justice Breyer’s recent dissenting opinion in Glossip v. Gross. Petetan argues he was denied equal protection of the law and due course of law due to the absence of a unified statutory procedure for pretrial litigation of an Atkins assertion of intellectual disability. The point is based on this Court’s recent opinion in In re Allen recognizing disparity through the state in obtaining such a pretrial determination from a trial court. The final two points of error seek modification of erroneous recitations within the judgment. Those errors concern the degree of the offense and assessment of punishment by the jury. The Court has the necessary information and authority to reform the judgment. - 56 - Petetan prays this Court will reverse the judgment of conviction and reform to an acquittal, remand for a new trial, remand for a new punishment hearing, reform the sentence to a life sentence, remand for a new competency hearing, modify the judgment, or enter any other relief appropriate under the law and the facts. Point of Error One The trial court abused its discretion by allowing the State to invoke Petetan’s attorney-client privilege as to testimony he sought to offer from his former attorney on the issue of competency to stand trial (13 RR 57). During the competency trial, Petetan called his former attorney, Stan Schwieger (13 RR 43). Schwieger was initially appointed to represent Petetan when he was charged with the offense of murdering Kimberly (13 RR 45). He met with Petetan shortly after his appointment (13 RR 45). He met with Petetan a second time when the charge was upgraded to capital murder (13 RR 45). At that second meeting, he explained to Petetan that new counsel would be appointed because Schwieger was not on the list of counsel eligible for appointment on capital murder cases (13 RR 47). The State objected to any effort to present privileged information from Schwieger and the objection was sustained (13 RR 47). Petetan clarified that he - 57 - was simply attempting to determine whether Schwieger was able to communicate with Petetan (13 RR 47). The State’s objection was once again sustained (13 RR 48). Outside the jury, Petetan explained he was not seeking to offer confidential communications, he was simply attempting to show that Schwieger had difficulty communicating with Petetan (13 RR 50). The State again asserted such testimony, even going to a difficulty in communication, would violate the attorney-client privilege (13 RR 50). Outside the presence of the jury, Schwieger testified that Petetan could not understand the reason he was required to withdraw from representation (13 RR 52). When the State again objected, Petetan asserted the State had no standing to assert an objection based on the privilege and the testimony sought to be offered was not privileged (13 RR 53). The State responded that even if it had no right to assert the privilege, it “had a duty to protect it” (13 RR 53). Petetan claimed the evidence concerning difficulty in communicating with counsel went to the “heart of the reason” they were having a competency trial (13 RR 56). The trial court sustained the State’s objection and excluded the evidence Petetan sought to offer (13 RR 57). When the jury returned, the trial court instructed it to disregard the entirety of Schwieger’s testimony (13 RR 61). - 58 - A trial court's exclusion of evidence is reviewed for an abuse of discretion. Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002). In determining whether the trial court abused its discretion, an appellate court should consider whether the court acted without reference to guiding rules and principles—that is, whether the court acted arbitrarily or unreasonably. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1991). A trial court’s ruling must be upheld so long as it is “within the zone of reasonable disagreement.” Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002). The State has no authority to seek the exclusion of evidence on the basis its admission would violate a defendant’s attorney-client privilege. See TEX. R. EVID. 503(c) (specifying who may claim the privilege).3 Exclusion of evidence upon the State wrongly claiming it violates the attorney client privilege is error. Smith v. State, 770 S.W.2d 70, 71 (Tex. App. – Texarkana 1989, no pet.). Besides the lack of standing to voice an objection, the State’s objection was misguided. The attorney client-privilege is not violated when former counsel 3 (c) Who May Claim. The privilege may be claimed by: (1) the client; (2) the client's guardian or conservator; (3) a deceased client's personal representative; or (4) the successor, trustee, or similar representative of a corporation, association, or other organization or entity--whether or not in existence. - 59 - testifies relative to competency without revealing the substance of client communication. Manning v. State, 766 S.W.2d 551, 557 (Tex. App. – Dallas 1989, aff’d, 773 S.W.2d 568 (Tex. Crim. App. 1989). Nor is such testimony excludable under TEX. R. EVID. 503(b)(2) on the basis it is a fact which came to the knowledge of counsel by reason of the attorney-client relationship.4 Manning, 766 S.W.2d 558. Here, the trial court erroneously allowed the State to invoke Petetan’s attorney-client privilege upon excluding the evidence sought to be presented by former counsel. Moreover, Petetan did not seek to offer confidential communication, only observations by former counsel concerning Petetan’s difficulty in communicating with counsel. The evidence was admissible and the trial court abused its discretion by excluding it. Harm in the exclusion of evidence is reviewed as non-constitutional error. Ray v. State, 178 S.W.3d 833, 836 (Tex. Crim. App. 2005). For non-constitutional errors, an appellate court may disregard errors that do not affect the defendant’s substantial rights. TEX. R. APP. P. 44.2(b); Robinson v. State, 236 S.W.3d 260, 269 (Tex. App. -Houston [1st Dist.] 2007, pet. ref d). An error affects a substantial 4 (2) Special Rule in a Criminal Case. In a criminal case, a client has a privilege to prevent a lawyer or lawyer's representative from disclosing any other fact that came to the knowledge of the lawyer or the lawyer's representative by reason of the attorney-client relationship. - 60 - right only when the error had a substantial and injurious effect or influence on the jury's verdict. Robinson, 236 S.W.3d at 269 (citing King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)). In contrast, if the appellate court is fairly assured that the error did not influence the jury or had but a slight effect, it will conclude the error was harmless. Ray, 178 S.W.3d at 836. In the instant cause, Petetan had the substantial right to present all available admissible evidence in support of his claim of incompetency to stand trial. Recent former counsel occupied a unique position with regard to Petetan’s competency to stand trial in the instant case. Counsel was prevented from testifying to Petetan’s difficulty in communicating with his lawyer. As stated by trial counsel, such testimony goes to the heart of the competency inquiry. See TEX. CRIM. PROC. CODE art. 46B.003(a)(1) (sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding). Former counsel’s firsthand knowledge of Petetan’s difficulty in communicating with counsel is qualitatively different than the opinions expressed by the experts at the competency trial. It is likewise not comparable to the evidence at the competency trial showing Petetan is willing to lie to a police officer. The burden of proof in a competency proceeding is on the defendant to show by a preponderance of the evidence that he is incompetent. TEX. CRIM. PROC. CODE art. 46B.003(b). After considering the - 61 - relatively low burden of proof Petetan was prevented from successfully showing to the jury, this Court should find the exclusion of the evidence harmful. A retrospective competency determination may be conducted consistent with the requirements of due process in most cases. See Barber v. State, 737 S.W.2d 824, 828 (Tex. Crim. App. 1987) (recognizing a retrospective determination of the competency of an accused “can be made within the limits of due process depending upon the quality and quantity of the evidence available”). However, there are many difficulties inherent in making a retrospective determination of a defendant's competency to stand trial, including: (1) the passage of time; (2) the present recollection of expert witnesses who testified at the original hearing; and (3) the ability of the judge and jury to observe the subject of their inquiry. Id.; Caballero v. State, 587 S.W.2d 741, 743 (Tex. Crim. App. 1979). Petetan’s fluctuating mental condition, combined with the mounting passage of time, suggests that a retrospective competency inquiry is simply not feasible in this case and a new trial should be ordered. See Greene v. State, 264 S.W.3d 271, 272-73 (Tex. App.—San Antonio 2008, pet. ref'd) (finding remedy of new trial is appropriate remedy when retrospective competency determination is not feasible). In the alternative, Petetan seeks a remand to the trial court for a determination as to whether a retrospective competency hearing is feasible. See - 62 - Turner v. State, 422 S.W.3d 676, 697 (Tex. Crim. App. 2013): George E. Dix & John M. Schmolesky, 43 Texas Practice: Criminal Practice and Procedure § 31:81, at 89–90 & n. 10 (3rd ed.2011) (citing, e.g., Torres v. State, 593 S.W.2d 717, 719 (Tex. Crim. App. 1980) (remanding to trial court to decide, inter alia, whether “a nunc pro tunc determination of appellant's competency is not possible”); Ex parte McKenzie, 582 S.W.2d 153, 155 (Tex. Crim. App. 1979) (remanding case to the trial court to “determine if it is possible to conduct a nunc pro tunc competency hearing and, if it is, to hold such a hearing” under the then-extant competency-to- stand-trial statute); Ex parte Winfrey, 581 S.W.2d 698, 699 (Tex. Crim. App. 1979) (holding that the original competency hearing suffered from a flawed jury instruction, and cause remanded to the trial court for a determination whether, inter alia, a retrospective competency hearing was feasible). Point of Error Two The trial court abused its discretion by excluding evidence Petetan sought to offer concerning the legal fate of those who obtain an incompetency determination through malingering (13 RR 60). During cross-examination of Dr. Seay, the State sought to develop evidence Petetan was malingering when interacting with Seay. The State asserted a defendant facing a sentence of death would have a strong motive to lie or - 63 - exaggerate during a competency examination (12 RR 103). The State questioned whether Seay had the ability to determine whether Petetan lied to her during the examination (12 RR 104). It was noted he had already visited with counsel on several occasions before Seay saw him (12 RR 104). She relied on Petetan to be truthful and honest with her (12 RR 105). Seay acknowledged that if Petetan gave her incorrect or incomplete information, it would impact her opinion of his competency (12 RR 106). If a defendant was motivated to delay or avoid trial, Seay acknowledged he might give false information to the examiner (12 RR 111). The State’s malingering defense to Petetan’s assertion of incompetency continued with its examination of Dr. Pittman. The State initially stressed that Pittman was the court’s independent expert and had not been hired by the State (12 RR 174).5 Pittman felt Petetan was not reliable during his assessment and was not “giving it his best shot” (12 RR 181, 184). He was especially suspicious when Petetan was unable to name the Dallas Cowboys as the professional football team from Dallas (12 RR 181). On rebuttal, Petetan called his former attorney, Stan Schwieger, a criminal defense attorney from Waco (13 RR 43). Outside the presence of the jury, Petetan asked Schwieger whether he was familiar with the procedures in place at Vernon 5 The record reflects Pittman was appointed after being recommended by the State (7 RR 5). - 64 - State Hospital for those found incompetent to stand trial through malingering (13 RR 58). In response to the State’s relevancy objection, Petetan urged the testimony was admissible in response to the State’s claim he was malingering in an effort to be found incompetent (13 RR 59). Schwieger explained that those found to have been malingering before a determination of incompetency are deemed competent by the hospital staff and returned to the originating county for a competency finding and trial (13 RR 59-60). The trial court sustained the State’s objection and refused to allow Schwieger to testify as proffered (13 RR 60). In argument, the State claimed Petetan devised a plan to avoid both trial and the death penalty by claiming he was incompetent (13 RR 77). The State suggested Petetan manipulated Seay during her assessment (13 RR 80). The State claimed that Petetan lied to Pittman and faked his alleged incompetence (13 RR 82, 84). The prosecutor implored the jurors not to be fooled by Petetan’s game because a finding of incompetency means “he ain’t going to get tried” (13 RR 82, 84). That, of course, is not factually or legally true. Petetan relies on the same standard of review and harm standard as set forth in the preceding point of error complaining of the exclusion of admissible and relevant evidence. Here, Petetan had the substantial right to present all available admissible evidence in support of his claim of incompetence. The State urged its - 65 - defense of malingering during cross-examination of Seay, direct examination of Pittman, and during argument. In response to that defense, Petetan sought to demonstrate that a finding of incompetency based on malingering would be short-lived at best and would not mean “he ain’t going to get tried.” The burden of proof in a competency proceeding is on the defendant to show by a preponderance of the evidence that he is incompetent. TEX. CRIM. PROC. CODE art. 46B.003(b). After considering the relatively low burden of proof Petetan was prevented from successfully showing to the jury, this Court should find the exclusion of the evidence harmful. Petetan’s fluctuating mental condition, combined with the mounting passage of time, suggests that a retrospective competency inquiry is simply not feasible in this case and a new trial should be ordered. Point of Error Three The trial court abused its discretion by denying a defense challenge for cause to prospective juror Richard Hester who had a bias against a life sentence without possibility of parole and a bias in favor of a sentence of death (28 RR 89). Richard Hester was called as a prospective juror (28 RR 21). In his questionnaire, Hester indicated he was opposed to a life sentence without parole - 66 - because he saw no reason to keep someone in prison for their entire life (28 RR 62). He did not believe a life sentence without parole would be sufficient punishment for one convicted of capital murder (28 RR 63). When asked by the trial court if he could ever assess a punishment of life without parole, Hester responded that he believed he could, but it would go against his “grain” (28 RR 64). Defense counsel sought to explore Hester’s “grain” (28 RR 69). Under questioning by defense counsel, Hester agreed with the sentiment that one convicted of capital murder should be executed rather than have the taxpayers pay for incarceration for the rest of his life (28 RR 69). Hester said that despite his bias against a life sentence, he would try to answer the special issues truthfully based on what he believed the answer to be (28 RR 71). Hester made it clear he is in favor of the death penalty and did not believe enough sentences of death are assessed by juries (28 RR 81). Hester reiterated that he was opposed to a life sentence without parole and acknowledged he indicated on his questionnaire that life without parole is not an adequate punishment for capital murder and he saw no reason to keep a person in prison for his entire life following a conviction for capital murder (28 RR 83). - 67 - Petetan sought to challenge Hester based on his bias against a life sentence without parole (28 RR 88). The challenge was denied and Petetan used his seventh peremptory strike to remove Hester (28 RR 89). Petetan ultimately exhausted his peremptory strikes (47 RR 145). His request for an additional peremptory strike was denied (48 RR 109). Upon denying the request for an additional strike, Petetan identified prospective juror Ronald Brown as objectionable because of his work with law enforcement and previous employment as a prison guard (48 RR 109). Had Petetan been afforded an additional strike, he would have used it on Brown (48 RR 109). Brown was selected as the twelfth juror (48 RR 110). A defendant may properly challenge any prospective juror who has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof or of the punishment therefor. TEX. CRIM. PROC. CODE art. 35.16(c)(2). When reviewing a trial court's decision to grant or deny a challenge for cause, the entire record is to be considered to determine if there is sufficient evidence to support the trial court's ruling. Feldman v. State, 71 S.W.3d 728, at 743–45 (Tex. Crim. App. 2002); Patrick v. State, 906 S.W.2d 481, 488 (Tex. Crim. App. 1995). The test is whether the bias - 68 - or prejudice would substantially impair the prospective juror's ability to carry out his oath and instructions in accordance with the law. Feldman, 71 S.W.3d at 743– 45. Before a prospective juror may be excused for cause on this basis, however, the law must be explained to him and he must be asked whether he can follow that law regardless of his personal views. Id. Finally, the proponent of a challenge for cause has the burden of establishing that his challenge is proper. Id. at 747. The proponent does not meet his burden until he has shown that the veniremember understood the requirements of the law and could not overcome his or her prejudice well enough to follow it. Id. When the record reflects that a venireperson vacillated or equivocated on his or her ability to follow the law, the reviewing court must defer to the trial court. Moore v. State, 999 S.W.2d 385, 400 (Tex. Crim. App.1999); Brown v. State, 913 S.W.2d 577, 580, (Tex. Crim. App. 1996). Petetan maintains Hester was subject to a defense challenge for cause due to his opposition against a life sentence and preference for a sentence of death. Hester made it clear through the voir dire examination that: he was opposed to a life sentence without parole because he saw no reason to keep someone in prison for their entire life; he did not believe a life sentence without parole would be sufficient punishment; he agreed with the sentiment that one convicted of capital murder should be executed rather than have the taxpayers pay for incarceration for the rest of his life; he is in favor of the death penalty; he did not believe enough - 69 - sentences of death are assessed; he reiterated that he was opposed to a life sentence without parole; and finally, he acknowledged that he indicated on his questionnaire that life without parole is not an adequate punishment for capital murder and he saw no reason to keep a person in prison for his entire life. The record does not support the trial court’s determination Hester was not subject to a challenge for cause by the defense. The trial court abused its discretion by denying Petetan’s challenge. To preserve error on denied challenges for cause, the appellant must demonstrate on the record that: 1) he asserted a clear and specific challenge for cause; 2) he used a peremptory challenge on the complained-of venireperson; 3) all his peremptory challenges were exhausted; 4) his request for additional strikes was denied; and 5) an objectionable juror sat on the jury. Feldman, 71 S.W.3d at 743– 45; Green v. State, 934 S.W.2d 92, 105 (Tex. Crim. App. 1996). When the trial court errs in overruling a challenge for cause against a venireperson, the defendant is harmed if he uses a peremptory strike to remove the venireperson and thereafter suffers a detriment from the loss of the strike. Feldman, 71 S.W.3d at 743–45; Demouchette v. State, 731 S.W.2d 75, 83 (Tex.Crim.App.1986). Here, Petetan properly preserved the issue. He ultimately exhausted his peremptory strikes (47 RR 145). His request for additional peremptory strike was - 70 - denied (48 RR 109). Upon denying the request for an additional strike, Petetan identified prospective juror Ronald Brown as objectionable because of his work with law enforcement and previous employment as a prison guard (48 RR 109). Had Petetan been afforded an additional strike, he would have used it on Brown to prevent him from serving on the jury (48 RR 109). Brown was selected as the twelfth juror (48 RR 110). Petetan was harmed by the erroneous denial of his challenge for cause through the detrimental loss of a strike. The loss of that strike resulted in a juror Petetan found objectionable being seated on the jury. The error only impacts the punishment phase of trial and consequently Petetan seeks a new punishment hearing. See TEX. CRIM. PROC. CODE art. 44.29(c) (providing for new punishment hearing in the case of a capital murder conviction when error affects punishment only); Ransom v. State, 920 S.W.2d 288, 298 (Tex. Crim. App. 1994) (holding that voir dire error in a capital murder case on an issue the jury would only consider at punishment constitutes error affecting punishment and thus calling for a new punishment hearing). - 71 - Point of Error Four The trial court abused its discretion by denying a defense challenge for cause to prospective juror Richard Hester who believed law enforcement officers to be more credible than other witnesses (28 RR 89). Richard Hester was called as a prospective juror (28 RR 21). Hester’s brother is a police officer (28 RR 85). He felt police officers were more believable as witnesses as compared to others who are not law enforcement officers (28 RR 86). He felt that way with regard to any testimony as to training or expertise by a police officer (28 RR 86). As to general questions and personalities, he would not give preferential treatment to the testimony of a police office (28 RR 86). Petetan sought to challenge Hester based on his bias in favor of the believab [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4067004. Public record. Not legal advice.