Petetan, US Carnell Jr. A/K/A Carnell Petetan, Jr.

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-77,038

US CARNELL PETETAN, JR., Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL

FROM CAUSE NO. 2012-2331-C1

IN THE 19TH DISTRICT COURT

McLENNAN COUNTY

K ELLER, P.J., delivered the opinion of the Court in which K EASLER,

H ERVEY, R ICHARDSON, Y EARY, N EWELL, K EEL, and W ALKER, JJ., joined. A LCALA, J.,

filed a dissenting opinion.

Appellant was charged with the capital murder of his wife, Kimberly Petetan. The indictment

alleged that he intentionally caused her death during the course of committing or attempting to

commit the offenses of burglary, kidnapping (of Kimberly or her daughter A.W.), and retaliation.1

1

See TEX . PENAL CODE § 19.03(a)(2) (“A person commits an offense if the person commits

murder as defined under Section 19.02(b)(1) and . . . the person intentionally commits the murder

PETETAN — 2

A jury found appellant guilty of capital murder and answered the special issues in such a manner that

appellant was sentenced to death. Appeal to this court is automatic.2 Appellant raises thirty points

of error. We modify the judgment to reflect that appellant was convicted of a capital felony and

otherwise affirm.

I. SUFFICIENCY OF THE EVIDENCE – GUILT

In point of error six, appellant contends that the evidence was insufficient to prove that he

“murdered the complainant while in the course of committing or attempting to commit the offenses

of burglary, kidnapping, or retaliation.”

A. Standard of Review

In conducting a sufficiency review with respect to a defendant’s guilt, we view the evidence

in the light most favorable to the verdict to determine whether any rational trier of fact could have

found the elements of the offense beyond a reasonable doubt.3 “When the record supports

conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict, and we

defer to that determination.”4

B. The Evidence

Viewed in the light most favorable to the verdict, the evidence shows the following:

Kimberly had been married twice and had three children (including a now-adult daughter named

in the course of committing or attempting to commit kidnapping, burglary, . . . [or] retaliation.”).

2

TEX . CODE CRIM . PROC. art. 37.071, §2(h).

3

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Blea v. State, 483 S.W.3d 29, 33 (Tex.

Crim. App. 2016).

4

Blea, 483 S.W.3d at 33 (quoting Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App.

2014)).

PETETAN — 3

Kristen) before she entered into a relationship that ended because the couple became addicted to

crack cocaine. During this relationship, Kimberly had a fourth child, a daughter we shall call

“A.W.”5 With the help of a treatment center, Kimberly overcame her addiction, and she felt that God

had saved her and had called her to share her testimony. In 2009, Kimberly met appellant’s brother

at an auto repair shop, and she shared her recovery story. Appellant’s brother suggested that

Kimberly contact appellant, who was in prison, because her story might be inspiring for him.

Kimberly became pen pals with appellant, and their correspondence developed into a romance that

culminated in marriage by proxy in 2010.

In the spring of 2012, appellant first began living with Kimberly in her apartment in Waco.

Almost immediately, the couple began having arguments and fights, which resulted in the police

being called. Kimberly considered divorce, but she and appellant reconciled. During the time that

he lived with her in Waco, appellant would often get angry and tell Nichlos Lampkin (a casual

acquaintance), “Man, I’m going to kill that bitch.” Appellant made a similar statement to Morris

Evans, Lampkin’s brother-in-law.

In August 2012, Kimberly and appellant had a falling out. Appellant moved to Port Arthur,

and Kimberly moved to a different apartment in Waco. The next month, Kimberly moved in with

appellant in Port Arthur, but she kept her apartment in Waco in case things did not work out.

On September 13, 2012, appellant, Kimberly, and A.W. were at a rap studio. The smoking

at the studio bothered Kimberly, and she asked appellant to take her and A.W. back to his apartment.

An argument ensued, but eventually, appellant reluctantly agreed to do so. When appellant began

smoking inside the apartment, Kimberly asked him to smoke outside because A.W. had asthma.

5

A.W. was eleven years old at the time of trial in 2014.

PETETAN — 4

Becoming angry, appellant pushed Kimberly onto a couch and caused her to fall onto the ground.

When Kimberly got up, appellant pushed her into some boxes. Kimberly tried to leave, but appellant

pushed her up against a wall. She fell, and appellant grabbed a large kitchen knife. Holding the

knife close to Kimberly, he said, “I could kill you, I could kill you. Do you want to die in front of

[A.W.] tonight?” Kimberly tried to call the police, but appellant took the phone away. Kimberly

then ran to the bathroom and used a phone in there to call 9-1-1. While Kimberly was in the

bathroom, appellant cut himself in the stomach with the knife, called the police, and then left.

That night, Port Arthur Police Officer Ryan Kidwell received a dispatch about a possible

assault at appellant’s apartment. Upon arriving at the apartment, Officer Kidwell spoke with

Kimberly, who was scared and stressed. Kimberly told Officer Kidwell about her smoking

complaint, the escalating argument, appellant taking the phone away, and his brandishing the knife

and threatening her. Officer Kidwell saw a scratch on Kimberly’s arm, and she complained of

soreness. In consultation with Kimberly, Officer Kidwell filled out some forms that set up an assault

case, indicating that the victim wished to press charges and that the assault was a felony charge.

The next day, Kimberly and A.W. took a U-Haul back to Kimberly’s Waco apartment,

stopping by Kristen’s house on the way. Kimberly appeared to be “achey” and complained about

being sore, and Kristen felt some knots on Kimberly’s head. Kimberly told Kristen that, after being

threatened in front of A.W., she was “completely done” with appellant and was going to file for

divorce and pursue criminal charges against him. In fact, it was Kristen’s understanding that

“criminal charges had actually started.”6

6

At some point between this time and Kimberly’s death, appellant cut off the service to

Kimberly’s cell phone, which had been activated on a phone plan shared with him.

PETETAN — 5

On September 23, 2012, appellant approached Adrian Miller about going to Waco to get

some drugs. Seventeen-year-old Kerrie Mouton, a relative of appellant’s, told Miller that he wanted

to come along because he felt that something was wrong and that appellant was trying something.

The three of them traveled in appellant’s white Suburban and got to Waco around noon. Appellant

rented a room at the C & E Motel.

While at the motel, appellant, Miller, and Kerrie met a woman with an autistic son.

Appellant offered her money to give him a ride somewhere. He told Kerrie that he was going to

“check the scene out.” Leaving Miller and Kerrie at the motel, appellant and the woman drove off.7

Appellant later returned to the motel and drove his own vehicle to Kimberly’s apartment complex.

Cornelius Jefferson was washing clothes when he saw appellant hunched over in front of Kimberly’s

apartment door.8 At appellant’s request, Jefferson knocked on the door. A.W. looked out the

window, but she saw Jefferson, not appellant. When Kimberly answered the door, appellant forced

his way into the apartment.

Appellant then pulled a gun out of his pocket and started waving it around. He told Kimberly

to get dressed and come with him. Kimberly asked, “Where are we going?” Appellant responded,

“Shut up.” Kimberly then asked again, “No. Where are we going?” Appellant then responded,

“We’re going to Port Arthur, and you’re going to tell the cops what happened.” After Kimberly got

dressed, the three of them got into Kimberly’s truck, and, at appellant’s instruction, Kimberly drove

7

At the punishment stage of trial, Meshia Hicks testified that she was the woman who gave

appellant the ride, and she explained where they went and what they did. We detail her testimony

later in connection with appellant’s sufficiency challenges to the jury’s answer to the mental

retardation special issue.

8

Jefferson did not know appellant but identified him later in court.

PETETAN — 6

to the C & E Motel. During the drive, Kimberly once accidentally made a wrong turn and appellant

said, “Get your ass over there and turn this way.”

When they got to the motel, appellant told Kimberly to honk her horn, and Miller and Kerrie

got into the truck. At appellant’s direction, they stopped at a store. A.W. needed to use the

restroom, so Kimberly told appellant this and opened her door. Appellant cussed at her and directed

that they go instead to the apartment complex where Kimberly and appellant used to live. When they

arrived at the apartment complex, Kimberly, A.W., and appellant got out of the truck and met their

friend Jeanetta. When Jeanetta said “hi” to appellant, he told her to shut up. They stayed only a

short time and then returned to Kimberly’s current apartment. All of the occupants of the

truck—appellant, Kimberly, A.W., Miller, and Kerrie—went into Kimberly’s apartment.

Kimberly was nervous. At one point, appellant grabbed her head and forced her to kiss him.

Miller was hungry, so Kimberly told him to heat up a pizza. Then she said, “After you eat, I want

you all to leave.” After that, Kimberly remarked several times that she wanted appellant to leave,

and Miller also began telling appellant, “Let’s go.” At some point, Kimberly told appellant, “Fuck

you, Carnell. If you’re going to kill me, kill me.” When A.W. later told Kimberly that she needed

to use the restroom, Kimberly asked appellant, and appellant said, “Yeah, Bitch, go.” Kimberly then

grabbed her shoes, grabbed A.W.’s wrist, and acted as if both of them were heading up the stairs to

the bathroom on the second floor. Instead, Kimberly opened the front door, which was next to stairs.

Upon seeing this, appellant ran to the front door, slammed it shut, and pushed Kimberly up against

a wall. Appellant then told her to stand on the stairs and said, “It’s time to dust away.” Appellant

then shot Kimberly three times.

Kerrie grabbed A.W. and took her out the back door. He told her it would be ok, but they

PETETAN — 7

soon reentered the apartment and saw appellant grabbing everyone’s cell phones.9 Appellant, Miller,

Kerrie, and A.W. got into appellant’s Suburban, with Miller as the driver, appellant in the front

passenger seat, and Kerrie and A.W. in the back. A.W. and Kerrie were both scared. They stopped

at a gas station, and appellant took out three twenty-dollar bills and rubbed them all over his hands.

Smirking, he handed the money to Miller and told him to go pay for the gas.10 Later, they stopped

again, and appellant wrapped up his gun and threw it over a fence into a wooded area.

That day, Kristen received a call from A.W., who said she was at the corner store near

Kristen’s house and needed to be picked up. On the way to the corner store, Kristen received a call

from the manager of her apartment complex. The manager informed Kristen that she needed to

come to Waco because her mother had been shot and was dead. As it turned out, A.W. was not at

the corner store; she was in appellant’s Suburban in the city of Bryan.

Crystal O’Rear, a Bryan police officer working patrol that day, responded to a dispatch to

look for an older model Suburban, with a particular license plate number, that was involved in a

possible kidnapping. Officer O’Rear located and pulled over the vehicle, which was driven by Miller

and also occupied by appellant, A.W., and Kerrie.11 When the officer asked A.W. who hurt her

mother, A.W. answered without hesitation. Officer O’Rear also talked to appellant, with whom she

9

This was A.W.’s testimony. Kerrie testified that he grabbed the keys to the Suburban and

took A.W. to the vehicle in an attempt to get away, but that they were not able to move fast enough,

and “everybody was coming outside and everybody just got into the car.”

10

As we address later, appellant testified that Miller was the shooter. Appellant’s act of

rubbing the money with his hands and giving it to Miller could be construed as an attempt to transfer

gunshot residue to Miller’s hands.

11

Miller and Kerrie both testified that Miller, upon seeing the police car, swerved across the

lanes intentionally to provoke a stop.

PETETAN — 8

had no difficulty communicating and who did not appear to have any sort of intellectual disability.

Miller and Kerrie also told police officers that appellant had shot and killed someone.

A.W., Miller, and Kerrie all testified at appellant’s trial, and while their testimony sometimes

varied on details, they told the same basic story of what happened. All three saw appellant thwart

Kimberly and A.W.’s attempt to escape, and all three saw appellant shoot and kill Kimberly.

In addition, while in the McLennan County Jail, appellant bumped into inmate Charles

Gatlin. Gatlin said, “Excuse me,” and appellant responded, “I killed my wife. I’ll kill you.”

In speaking with Michael Tovar, a cellmate, appellant referred to Kimberly as “that bitch.”

Regarding the events of September 23, Appellant said that he had gone to Waco because he

suspected his wife was cheating on him and that, if he found anyone in her apartment, he was going

to kill them. Appellant further stated that, after entering Kimberly’s apartment, he went outside to

smoke, and, upon coming back inside, he already had the gun in his hand. Then, he “just shot,

boom-boom-boom”—killing Kimberly. At one point, Tovar asked why appellant was telling him

about the killing, and appellant responded that it did not matter, because “they” (the State) would

not be able to try him because of his mental state.

C. Analysis

Appellant concedes that his first entry into Kimberly’s apartment on September 23 was a

burglary. He also concedes that he kidnapped Kimberly and A.W. when he transported them from

their home to a motel. But he contends that these crimes were “so removed in time as to not have

a nexus to the later shooting of Kimberly sufficient to support the conviction for capital murder.”

Appellant also contends that the evidence does not show that he harmed or threatened to harm

Kimberly in retaliation for her reporting his previous assault of her or to prevent or delay her service

PETETAN — 9

as a witness or person who had reported a crime. Because the evidence need only be sufficient to

support one legal theory of capital murder to be sufficient to support the conviction,12 we choose to

address only appellant’s claim regarding the underlying offense of kidnapping.

A person commits a kidnapping “if he intentionally or knowingly abducts another person.”13

“Abduct” means “to restrain a person with intent to prevent his liberation by: (A) secreting or

holding him in a place where he is not likely to be found; or (B) using or threatening to use deadly

force.”14 “Restrain” means “to restrict a person’s movements without consent, so as to interfere

substantially with the person’s liberty, by moving the person from one place to another or by

confining the person.”15 “Restraint is ‘without consent’ if it is accomplished by . . . force,

intimidation, or deception.”16

As appellant concedes, he kidnapped Kimberly and A.W. when he waved his gun and

commanded them to go with him in Kimberly’s truck to the motel. He used the threat of deadly

force (from his gun) to intimidate them to move with him to a place they did not wish to go.17 But

the kidnapping did not end there. He continued to use the threat of deadly force to direct them back

12

Gardner v. State, 306 S.W.3d 274, 286-87 (Tex. Crim. App. 2009).

13

TEX . PENAL CODE § 20.03(a).

14

Id. § 20.01(2).

15

Id. § 20.01(1).

16

Id. § 20.01(1)(A).

17

See Swearingen v. State, 101 S.W.3d 89, 96 (Tex. Crim. App. 2003) (holding that

“through the use of the force or intimidation created by having hit her, he restrained her and

substantially interfered with her liberty by confining her in his truck while moving her to the forest

without her consent and that he did so with the intent to prevent her liberation by either secreting her

in a place where she was not likely to be found or by using or threatening to use deadly force”).

PETETAN — 10

to Kimberly’s apartment and to confine them there.18 Indeed, immediately before he shot Kimberly,

he thwarted an escape attempt.19 The evidence clearly and overwhelming shows that appellant

murdered Kimberly while he was kidnapping both Kimberly and A.W. Point of error six is

overruled.

II. SUFFICIENCY OF THE EVIDENCE – MENTAL RETARDATION

In point of error eleven, appellant contends that he is ineligible for the death penalty due to

“intellectual disability.” In point of error ten, he contends that the jury’s answer to the “intellectual

disability” special issue was against the great weight and preponderance of the evidence. Both of

these challenges are directed at what was labeled the “mental retardation” special issue at the

punishment stage of trial. That special issue asked, “Do you find, taking into consideration all of

the evidence, that the Defendant is a person with mental retardation?” A “no” answer to that issue

was required in order to assess the death penalty, and the jury answered that issue “no.”

A. Standard of Review

In Atkins v. Virginia, the Supreme Court held that the execution of mentally retarded

individuals violates the Eighth Amendment to the United States Constitution.20 The Constitution

is violated by the execution of a person of low intelligence when the person is “so impaired as to fall

18

See Hines v. State, 75 S.W.3d 444, 448 (Tex. Crim. App. 2002) (victim continued to be

under abduction while defendant threatened her physically “by pointing a gun at her and leading her

around by the neck”); Fitzgerald v. State, 782 S.W.2d 876, 881 (Tex. Crim. App. 1990) (referring

to offense of kidnapping as “a continuous, ongoing event”).

19

See Reyes v. State, 84 S.W.3d 633, 637 (Tex. Crim. App. 2002) (evidence sufficient to

show capital murder with underlying evidence of kidnapping when victim was alive while restrained

and assaulted two times before she was ultimately killed).

20

Atkins v. Virginia, 536 U.S. 304 (2002); Ex parte Moore, 470 S.W.3d 481, 486 (Tex.

Crim. App. 2015). See U.S. CONST . Amend. VIII (“nor cruel and unusual punishments inflicted”).

PETETAN — 11

within the range of mentally retarded offenders about whom there is a national consensus.”21 The

Supreme Court left to the States the task of tailoring appropriate ways to enforce this restriction.22

In Ex parte Briseno, we established interim guidelines for implementing Atkins in Texas until such

time as the Texas Legislature chooses to do so.23 Because the Legislature has not acted, we continue

to follow the Briseno guidelines.24

A demonstration of mental retardation that would exempt an offender from execution

requires showing the following by a preponderance of the evidence: (1) significantly subaverage

general intellectual functioning, generally shown by an intelligence quotient (IQ) of 70 or less; (2)

accompanied by related and significant limitations in adaptive functioning; and (3) the onset of the

above two characteristics having occurred before the age of eighteen.25 In evaluating the first prong,

we take into consideration the standard margin of error for IQ tests, which is generally five points.26

In determining whether related and significant limitations in adaptive functioning exist, courts can

look to standardized test scores but should also look to the following factors:

• Did those who knew the person best during the developmental stage—his family,

friends, teachers, employers, authorities—think he was mentally retarded at that time,

and, if so, act in accordance with that determination?

• Has the person formulated plans and carried them through or is his conduct

21

Atkins, 536 U.S. at 317.

22

Id.; Moore, 470 S.W.3d at 486.

23

135 S.W.3d 1, 4-5 (Tex. Crim. App. 2004).

24

Moore, 470 S.W.3d at 486.

25

Id.; Briseno, 135 S.W.3d at 7 & nn. 24-27.

26

Moore, 470 S.W.3d at 487.

PETETAN — 12

impulsive?

• Does his conduct show leadership or does it show that he is led around by others?

• Is his conduct in response to external stimuli rational and appropriate, regardless of

whether it is socially acceptable?

• Does he respond coherently, rationally, and on point to oral or written questions or

do his responses wander from subject to subject?

• Can the person hide facts or lie effectively in his own or others’ interests?

• Putting aside any heinousness or gruesomeness surrounding the capital offense, did

the commission of that offense require forethought, planning, and complex execution

of purpose?27

Appellant contends that we should abandon these factors in light of what he believes are the clinical

standards and the effect of the Supreme Court’s decision in Hall v. Florida.28 Appellant

acknowledges that we have refused to abandon the Briseno factors after Hall.29 We decline

appellant’s invitation to do so today.30

Appellant’s eleventh point of error alleges generally that appellant is ineligible for the death

penalty due to intellectual disability. To the extent this claim can be construed as a request to

conduct an independent review of the record similar to our review as the ultimate factfinder in a

27

Moore, 470 S.W.3d at 489; Briseno, 135 S.W.3d at 8-9.

28

134 S. Ct. 1986 (2014).

29

See Moore, 470 S.W.3d at 486-87 (“It may be true that the AAIDD’s and APA’s positions

regarding the diagnosis of intellectual disability have changed since Atkins and Briseno were

decided. Indeed, we have recently discussed the subjectivity surrounding the medical diagnosis of

intellectual disability and some of the causes for that subjectivity. But although the mental-health

fields and opinions of mental-health experts inform the factual decision, they do not determine

whether an individual is exempt from execution under Atkins.”).

30

As we shall see below, however, the evidence would nevertheless be legally and factually

sufficient even without considering the Briseno factors regarding adaptive functioning.

PETETAN — 13

habeas setting under Article 11.071,31 we decline to do so. The issue of mental retardation was

litigated at trial before a jury, and on direct appeal from that trial, we exercise appellate-style

deference to the determination made by the factfinder.32 To the extent that appellant’s eleventh point

of error can be construed as advancing a legal sufficiency challenge, we will address that complaint,

along with the factual sufficiency challenge advanced in point of error ten.

Mental retardation is a punishment-mitigation issue that is in the nature of an affirmative

defense, and the defendant shoulders the burden of proof to show mental retardation by a

preponderance of the evidence.33 In conducting a legal-sufficiency review of a jury’s finding against

an issue on which the defendant has the burden of proof, “[w]e first search the record for evidence

favorable to the finding, disregarding all contrary evidence unless a reasonable factfinder could not.

If we find no evidence supporting the finding, we then determine whether the contrary was

established as a matter of law.”34 In conducting a factual-sufficiency review,35 an appellate court

31

See Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008) (In article 11.071

proceedings, “this Court is the ultimate factfinder” and “[w]hen our independent review of the record

reveals that the trial judge’s findings and conclusions are not supported by the record, we may

exercise our authority to make contrary or alternative findings and conclusions.”); TEX . CODE CRIM .

PROC. art. 11.071.

32

See Ex parte Garcia, 353 S.W.3d 785, 787-88 (Tex. Crim. App. 2011) (finding a

significant distinction between habeas proceedings in which this Court is the ultimate finder of fact

and habeas proceedings in which the trial court is the sole finder of fact; concluding that there is

“less leeway” in the latter context to disregard findings of a trial court).

33

Neal v. State, 256 S.W.3d 264, 273 (Tex. Crim. App. 2008).

34

Matlock v. State, 392 S.W.3d 662, 669 (Tex. Crim. App. 2013).

35

Although Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010), abolished factual-

sufficiency review for elements of the offense that the State is required to prove beyond a reasonable

doubt, a factual-sufficiency review is still available for affirmative defenses or affirmative mitigating

issues upon which the defendant bears the burden of proof. Butcher v. State, 454 S.W.3d 13, 20

PETETAN — 14

views the evidence in a neutral light and determines whether the jury’s finding is “so much against

the great weight of the evidence as to be manifestly unjust, conscience-shocking, or clearly biased.”36

Even in a factual-sufficiency review, an appellate court may not substitute its judgment for the

factfinder’s assessment of the weight and credibility of the testimony of witnesses, and an appellate

court may find evidence to be factually insufficient only after setting out the relevant evidence and

explaining precisely how the contrary evidence greatly outweighs the evidence supporting the verdict

and why the verdict is manifestly unjust, conscience-shocking, or clearly biased.37

B. The Evidence

In addition to the evidence recited in connection with appellant’s sixth point of error, the

following evidence is relevant to appellant’s mental-retardation claims:

1. Appellant’s Guilt Stage Testimony

Appellant testified at the guilt stage of trial. His testimony appeared to be coherent and fluid.

He testified about becoming a pen pal with Kimberly. He stated that they wrote three or four letters

a week to each other. Appellant stated that he had different people helping him with the letters.

They would help him with spelling and, after he wrote what he wanted to say, they would “put it into

sentences and stuff” for him. Kimberly began to visit him in prison for two hours nearly every week.

Appellant gave exculpatory accounts of the incidents that occurred on September 13 and 23,

2012. Appellant claimed that, after he drove Kimberly home from the rap studio on September 13,

they got into an argument about whether he was going to return to the studio. Appellant claimed that

(Tex. Crim. App. 2015).

36

Matlock, 392 S.W.3d at 671.

37

Id.

PETETAN — 15

Kimberly started slapping him, and when he told her that he was returning to the studio, she grabbed

a knife and swung it at him. Appellant said that the knife cut his shirt and caused him to bleed a

little. Appellant further testified that A.W. said she was going to tell the police what Kimberly did

to appellant but that Kimberly started spanking her.

Appellant testified that he went to Waco on September 23 to retrieve a laptop, some clothes,

and a $300 deposit from a landlord. He said that Miller and Kerrie were with him because he did

not know how to get to Waco and had trouble reading a map. Appellant claimed that Kimberly

voluntarily opened the door for him and that he entered the apartment without incident. Appellant

said that he told Kimberly he could not stay for long because he came with some other people.

Appellant further testified that Kimberly said, “Let’s go get them,” and he and Kimberly drove to

the C & E Motel. Appellant said that Kimberly drove her truck because, “She don’t like driving that

big, old Suburban. She don’t like driving it. It’s too big.”

Appellant testified that Miller had a gun with him. He stated that Miller and Kimberly got

into an argument and that Miller shot her. Appellant said he threatened to call 9-1-1 but that Miller

pointed his gun at him and said they were going to Houston. According to appellant, when they

stopped at a gas station, he went in and told the clerk to call 9-1-1.38

Defense counsel also asked appellant about a written business plan, an autobiography (of

appellant), and a Facebook page purporting to belong to appellant. Appellant claimed that an inmate

named Ellis Randle wrote the business plan, that another inmate named William Dahl wrote the

autobiography, and that Kimberly set up the Facebook page.

38

A store clerk had previously testified that appellant walked into the store appearing

nervous and that the clerk later called 911. The trial court excluded any questioning regarding the

content of any conversation the clerk had with appellant.

PETETAN — 16

On cross-examination, appellant acknowledged that he spent nearly twenty years in prison

for attempted murders and aggravated assaults. He also acknowledged that he had told Kimberly

that with one phone call he could cause fifty to seventy-five people to show up on his behalf.

Appellant admitted that the letters from him to Kimberly were in his handwriting, but he maintained

that others wrote things for him that he copied into those letters. Appellant also admitted that he had

no trouble driving by himself from the C & E Motel to Kimberly’s apartment complex. Appellant

denied obtaining a ride from Meshia Hicks to drive around the apartment complex before driving

there himself.

2. Meshia Hicks

At the punishment stage of trial, Meshia Hicks testified that, on the day of Kimberly’s

murder, she was staying at the C & E Motel. Appellant offered to give her gas money in exchange

for a ride. She agreed, and appellant directed her to Kimberly’s Waco apartment. While there,

appellant directed Hicks to drive around the parking lot a few times, occasionally telling her to slow

or stop, and then they returned to the C & E Motel.

3. Appellant’s Criminal Record

Appellant committed a burglary when he was ten years old and a theft when he was eleven.

At age twelve, he committed the offenses of criminal mischief and assault causing bodily injury. At

age thirteen, he committed another assault causing bodily injury against Romona Sostand. When

he was fourteen, he committed another assault causing bodily injury, and he broke the window of

a truck owned by a school principal. For the assaults, appellant was adjudicated delinquent as a

juvenile and placed on probation. At age fifteen, appellant committed a burglary. About five

months later, appellant’s probation was revoked for truancy, electronic monitoring violations, and

PETETAN — 17

curfew violations, and he was sent to a juvenile facility.

At age sixteen, appellant committed two attempted murders and three aggravated assaults at

different times against different victims. The attempted-murder victims were Fredrick Nico and

Victor Loeb. The aggravated-assault victims were, Raffiel Dugas, Elizabeth Beale, and Alfred

Smith. Nico, Dugas, and Smith were acquaintances of appellant. Beal was a sixty-four-year-old

teacher at a juvenile detention center. Victor Loeb was a seventy-nine-year-old man who had no

prior relationship with appellant.

The offense against Nico involved appellant’s use of a gun that was sitting on a table.

Appellant had told authorities that Nico picked up the gun and pointed it at appellant and his brother,

that appellant wrestled the gun away, and that the gun fired several times during the struggle. But

according to Nico, appellant took the gun off the table without provocation, ran to the back of the

yard, and shot Nico. Other witnesses backed Nico’s version of events. Appellant later gave a

statement that was consistent with Nico’s account.

Loeb was a random victim of a drive-by shooting that was tied to appellant.

The offense against Dugas occurred at a nightclub. Dugas broke up a fight between appellant

and a friend of his, which then caused a fight between Dugas and appellant. Dugas won the fight,

and appellant ran off, but he returned later and beat Dugas with a chair. Dugas was in a coma for

a week. He had a broken jaw and a lost tooth, his lip was split up to his nose, and he underwent

surgery and received stitches. At trial twenty years later, Dugas still bore scars from that incident.

The incident with Beal occurred at the Jefferson County Detention Center when Beal

attempted to get appellant and several other males to quiet down in class. Appellant went to the front

of the room and slapped Beal in the head hard enough to cause her to fall over a desk. Beal suffered

PETETAN — 18

injuries to her head, left eye, and her thigh.

The incident with Smith occurred when appellant asked him where his cousin was. When

Smith said he did not know, appellant threatened him with a firearm.

Appellant was certified to stand trial as an adult for these offenses. He pled guilty and was

sentenced to ten years for the aggravated assaults and twenty years for the attempted murders, to run

concurrently. The judgments for all of these offenses were pronounced on July 6, 1993.

4. Substance Abuse History

The prosecutor read a penitentiary packet to the jury. A section of this packet, entitled

“Substance Abuse History,” explained that appellant started drinking alcohol at age sixteen.

Appellant had claimed that he drank “very rarely” and had no problem with alcohol, but a Port

Arthur police report indicated that appellant admitted to drinking nine to ten beers a day. Regarding

drug abuse history, the pen packet said that appellant had admitted to using marijuana three times

at age fifteen but denied any addiction to drugs. However, appellant had claimed that he started

selling crack cocaine at age fifteen and would make at least $500 a day. Appellant had claimed that

the money was spent to buy more cocaine and for partying.

5. Appellant’s Education Records

Appellant’s grades in reading and arithmetic in the first and second grades were below

average. His grades were average for other language arts, social studies, and science. Notations for

those two grades showed that appellant put forth average effort but was below average in citizenship.

Appellant was “retained” in the third, sixth, and ninth grades, which meant that he was

supposed to repeat those grades. Records admitted at trial did not show whether he actually went

to school when he was supposed to repeat the sixth grade. The records also indicated that appellant

PETETAN — 19

began ninth grade the year after he would have repeated sixth grade, effectively skipping seventh and

eighth grades.

In appellant’s initial third grade year, his grades (excluding physical education) were: 54, 45,

40, 71, 37, 78, 80, 79, 79, and 74. Appellant had twenty-nine absences from school. In his

subsequent third grade year, his corresponding grades were 63, 43, 53, S, 63, 60, 51, N, S, and N,

and he had seven absences.39 In fourth grade, appellant made grades of 72, 64, 62, S, 74, 70, 72, S,

S+, and N, and he had 30 absences. In fifth grade, his grades were 75, 76, 76, S, 75, 75, 75, S, S, and

N.40 On both the third and fifth grade versions of the TEAMS test, appellant passed the reading

section but did not pass the math and writing sections.

Appellant was below his grade equivalent on all of his scores on the California Achievement

Tests (CAT) taken in third through fifth grades. His CAT scores generally increased from his initial

third grade year to his subsequent third grade year and from his fourth grade year to his fifth grade

year, though there were a couple of exceptions where the score declined. Comparing the subsequent

third grade year with the fourth grade year yields a mixed result, with about an equal number of

scores increasing versus declining. His scores for the initial third grade year (3.6)41 ranged from a

grade level of 1.7 to 2.8, while his scores for the subsequent third grade year (also 3.6) ranged from

2.4 to 2.9. His scores from his fourth grade year (4.6) ranged generally from 2.0 to 3.6 with one

score of 0.8, while his scores from his fifth grade year (5.6) ranged generally from 2.0 to 3.8 with

39

Although the record does not make this clear, the designations “S” and “N” appear to

mean, respectively, “satisfactory” and “needs improvement.”

40

Appellant’s physical-education grades from his initial third grade year through fifth grade

were 85, N, N, and S.

41

3.6 appears to denote a point in time more than halfway through his third grade year.

PETETAN — 20

one score of 5.2.

In his initial sixth grade year, at middle school, appellant’s grades were in the 50s or low 60s.

His CAT scores were, with one exception, uniformly lower than they were in fifth grade. These

scores ranged from 1.7 to 4.1. In appellant’s initial ninth grade year, most of his grades were 50,

with a 55 and a 60. In his subsequent ninth grade year, some of his grades in his first grading period

were higher, with grades of 61, 62, 72, 57, 61, 53, and 72. In the second grading period, most of his

grades were 50, with a 56 and a 55.

6. Family Members’ Punishment Stage Testimony

a. Appellant’s Mother

Ophelia Ortiz, appellant’s mother, described appellant as “slow,” and she stated that she had

to give him more attention than her other children when he was growing up. Ophelia further

described appellant’s behavior, as a child and as an adult, as follows: As a baby, appellant cried all

the time. At age two months, he kicked a glass bottle and broke it. Appellant was a bedwetter, and

Ophelia did not “know if he has stopped yet. All his life he been peeing on himself.” When he was

a child, appellant could not tie his shoes, dress himself, take a bath, or brush his teeth.42

Even though the family lived “right by the school,” appellant would forget where to go and

“would go another direction.” Appellant had to be walked to school because he would not go on his

own. Not only would appellant skip school, sometimes he would be missing from home for as much

as three days at a time.

Ophelia was called about appellant’s school behavior all the time. Appellant would be absent

42

But Ophelia also testified that appellant had to be told when to take a bath, and she also

stated that appellant told her, “Mom, I can bath myself.”

PETETAN — 21

at school, and when he was at school, he could not do the work, so he was placed in Special

Education. Even in Special Education, however, he could not pass. Appellant had difficulty reading

and writing. He would not do his homework and would not follow instructions, even if given a list.

He had to repeat some grades in school. Appellant could not pass the driving test.

When appellant was a child, he did not play with toys, watch television, or play video games.

He would “just sit there” or walk out and leave, and family members would not know where he went.

Even as an adult, appellant had temper tantrums as if he were two years old. Appellant

would stomp, jump, cry, shake his head, and vomit. When appellant left prison, he could not keep

his apartment clean, so his sister would come over and clean it. Appellant did not wash dishes, did

not put food away, and left clothes strewn across the floor. He could not use a washing machine or

a dryer. He did not watch television or use a DVD player, and he could not operate a cell phone.

Appellant also could not be trusted with money because he could not make change.

The State cross-examined Ophelia about appellant’s writing ability:

Q. So it would surprise you if he was a prolific writer, wouldn’t it?

A. Yeah, it would.

Q. Would it surprise you to know that he’s a self-admitted writer of over 800 musical

songs?

A. (Laughing) That's funny. No, he’s not.

Q. He’s not?

A. No.

Q. Do you think it would be difficult for Carnell to even compose a simple letter to

another person?

A. It would. Somebody would have to help him.

PETETAN — 22

The prosecutor then showed Ophelia forty letters that appellant admitted to writing that were in his

handwriting. Ophelia replied that, if he wrote them, he must have improved while he was in prison.

The prosecutor further questioned Ophelia about appellant’s capabilities, saying, “[T]he way

you’ve described your son, the person you described was essentially a piece of meat that sat there.

He would pee on himself. Right?” Ophelia responded, “Well, that’s when he was younger, before

he went to prison. . . . I don’t know if he still pee on himself.” However Ophelia then corrected

herself, saying that appellant “probably did still pee on himself.”43 Later, she answered affirmatively

when the prosecutor asked her if she would be surprised to know that no one else who knew

appellant during his youth has said he peed on himself during the day. And she answered

affirmatively that she would be surprised that appellant made it through eight weeks of the current

trial without once having a peeing accident.

After the prosecutor suggested that Ophelia would do anything, including lie, for her son,

Ophelia responded, “I don’t lie,” but then said, “I know the police reports in Port Arthur said I had

a false report.” The prosecutor then questioned her about the incident in which appellant shot Nico.

Ophelia had told the police that Nico retrieved the gun from a rag on the table and that appellant

began wrestling Nico for it. At appellant’s current trial, Ophelia maintained that her story was

correct despite other evidence—from Nico, appellant, and other witnesses—that appellant had

snatched the gun off the table, walked some distance away, and then returned and shot Nico. The

prosecutor also questioned Ophelia about her helping appellant make a $100,000 bond in that case.44

43

Ophelia further testified, “I didn’t say he didn’t pee on himself. . . . He always did pee on

himself. . . . From a baby until he got out of prison.” (Prosecutor’s questions and interjections

omitted.).

44

Ophelia stated that she did not remember the exact amount.

PETETAN — 23

The prosecutor also questioned Ophelia about the fact that appellant was required to have a

job as a condition of parole. Ophelia responded that appellant worked with his uncle cutting yards.

The prosecutor asked Ophelia about the fact that appellant regularly had hundreds of dollars in small

bills in his possession. Ophelia responded that she gave him the money from garage sales.

Even though she contended that appellant did not know how to drive, Ophelia acknowledged

that she had bought him a white Suburban. She said that Kimberly wanted it, but admitted that

Kimberly already had a truck. However, Ophelia maintained that Kimberly loved driving the

Suburban. When the prosecutor questioned her about her testimony that appellant could not tie his

shoes, Ophelia responded, “I don’t know about today. Like I say, maybe he done learned.”

The prosecutor also asked Ophelia if appellant played sports as a child. When she responded

that he did not, the prosecutor asked about baseball. Ophelia acknowledged that appellant had tried

baseball but did not have the patience for it. She denied the prosecutor’s allegation that appellant

was, for a time, the starting pitcher on a baseball team. She also denied that appellant had any

interest in bowling or boxing. In letters written to Kimberly, however, appellant had said that he was

the starting pitcher of his baseball team at school and that he enjoyed boxing and bowling.

The prosecutor also asked Ophelia if appellant had a record company. Ophelia responded

that her other son had such a company. The prosecutor then asked, “And you know that Carnell has

written dozens, in fact, hundreds of rap songs, don’t you?” Ophelia responded, “Anybody can write

rap songs,” but later said she was not aware that appellant had written any.

b. Appellant’s Sister

Appellant’s sister, Sabrina Mouton, testified that appellant cried all the time when he was

a baby, that he did not start walking until he was two years old, and that he did not start talking in

PETETAN — 24

a way that others understood until age four or five. She said he wet himself even when he was older.

She also said that appellant never played sports and “always just wandered around” the

neighborhood. Appellant had no special interests, did not play games, and did not even watch

television. Sabrina also stated that appellant could not ride a bicycle and that he never knew how

to count money.

When appellant was released from prison, he was unfamiliar with eating at a buffet-style

restaurant and he did not know how to use a cell phone. Sabrina said that she tried to teach appellant

how to use a cell phone, but he could not figure it out. When asked, “Did he ever figure it out?”

Sabrina responded, “I never knew, but he probably did.” Sabrina further testified that she helped set

up and furnish an apartment for appellant because he did not know what he needed. She said that

appellant could not use a microwave, that she was not successful in teaching him how to use it, and

that “he would put the wrong things in it.” Sabrina said she would go over to the apartment twice

a day to make sure appellant had enough to eat and to clean up because appellant would not clean

up after himself, would leave clothes on the floor, would leave food out, and would leave candles

lit for no reason.

Sabrina testified that appellant would write to her from prison, but his letters were difficult

to understand unless he had someone write for him. When asked why she would think someone

wrote a letter for him, she said that appellant’s writing “looked like something a preschooler or

kindergartner” would write, but if someone wrote the letter for him, then the letter would be in good

handwriting. Sabrina also stated that appellant had unrealistic expectations about what he could do,

saying that he wanted to be rich, to do music, or to have a business.

On cross-examination, Sabrina admitted that the constant crying as a baby was diagnosed

PETETAN — 25

by a doctor as a stomach problem. After being cross-examined about appellant having an interest

in boxing, Sabrina agreed that appellant showed some interest in extracurricular activities as he got

older but not as a child. When asked if appellant started developing more adult feelings and enjoying

sporting activities, Sabrina responded, “I’m sure he did, but I wasn’t there for that. I didn’t see that.”

On the subject of appellant’s ability to write, the prosecutor asked if his writing had improved

while in prison. Sabrina admitted that it had improved “a little bit.” The prosecutor subsequently

told Sabrina, “I’m going to show you what I’ve admitted into evidence as State’s Exhibit 126, and

I’m going to do the Carnell Petetan letter grab bag. Go ahead and pick a letter, any letter.” Sabrina

drew out of the bag a letter postmarked January 24, 2011. The letter read, in part,

I Hope and Pray when this letter reaches you it finds you in the best of health as well

as spirits in God’s Care and Protection as well as your love ones. Kim I want you to

know I was Glad to hear about your School progress and them welcoming you to Join

they organization.45

Sabrina acknowledged that the letter was in appellant’s handwriting. She further stated that “those

letters look clearer than my letters, and Carnell writes up and down, up and down, and out of the

margin and not clear at all.” When confronted with the fact that the letter to Kimberly that the

prosecutor had Sabrina read did not conform to her “up and down” description, Sabrina stated, “His

45

This text is taken from the actual letter contained in State’s Exhibit 126. The reporter’s

record containing the prosecutor’s reading of the letter fails to capture variances in capitalization,

and there are a few instances in which the prosecutor simply misread the letter. The reporter’s record

rendition of the letter is as follows:

I hope and pray when this letter reaches you it finds you in the best of health as well

or spirits in God’s care and protection as well as your loved ones. Kim, I want you

to know I was glad to hear about your school progress and them welcoming you to

join the orientation.

(Prosecutor’s repetition of part of the letter and interruptions omitted).

PETETAN — 26

looks neater on hers than it does on ours.”

Sabrina also acknowledged that appellant had been in prison since the early 1990s and had

never lived on his own before he was released from prison. And she admitted that appellant had

tried to better himself in prison and that he was able to formulate business plans for when he got out

of prison from books he obtained from the prison library.

When asked on redirect whether appellant was “able to eventually figure things out,” Sabrina

responded, “Just slowly. Never right off the bat, can’t just grasp it just as quick as we do.”

Whenever he has to learn something new, appellant “gets frustrated or just like he loses interest in

it or he just – like his mind just go blank, like he looking off like he don’t care to hear it.”

c. The Gauthiers - Aunt and Cousins

Appellant came to live with the Gauthier family when he was thirteen or fourteen years old.

Cathy Gauthier was appellant’s aunt,46 and she had two children, Caston and Kimberly (“Kimberly

Jackson”).47 Cathy testified that appellant was a little bit slower than her own kids, but she never

had to discipline him. Appellant was just a little different, “real quiet all the time.” Cathy was a bail

bondsman, and appellant wanted to be a bail bondsman or a rap singer. Cathy explained to him that

he could not be a bail bondsman because of prior felony convictions, but appellant did not seem to

understand that. Appellant had “big dreams.”

On cross-examination, Cathy testified that, when appellant was staying with her, he once

expressed concern that he might have gotten a girl pregnant. She also testified that appellant mailed

46

His father’s sister.

47

We refer to Kimberly Jackson by her current first and last name to avoid confusion with

the victim, who was also named Kimberly.

PETETAN — 27

her an article about bail bondsmen while he was in prison.

Caston testified that he was eight or nine years old when appellant came to stay with them.

Appellant had talked about being a bail bondsman, but Caston thought that was not realistic because

“that’s too way advanced for him.” On direct examination, Caston described appellant as “slow,”

but on cross-examination, Caston stated that he did not remember thinking of appellant as a retarded

person. Caston acknowledged that appellant understood that one of the possible consequences of

having sex with a woman was that she might end up giving birth to a child. Caston also testified that

appellant played hide-and-seek with him and that they played games and had fun together.

Kimberly Jackson was fourteen years old when appellant came to live with them. She

described appellant as “a little different” and “not on the same level, mind-wise,” being “slower.”

Appellant was her age, but she said that he could not do the same things she could do. She could

not remember any examples. When asked if she remembered anything specific about appellant

staying clean and his hygiene, Kimberly Jackson replied, “[Y]ou had to stay on him about it.”

d. Appellant’s Uncle

Thomas Kemper, appellant’s uncle,48 testified that appellant was “really slow” and “had

problems making decisions on his own.” According to Kemper, younger children would manipulate

appellant. Kemper also said that appellant would crawl up under a train even though other children

would beg him not to. Kemper testified that appellant was in Special Education classes because “he

couldn’t comprehend like any other kid.” When he was twelve years old, appellant had to be told

not to open the door when someone knocked without first asking who it is. Appellant let his hair

grow long, he would not comb it, he would not take a bath, and he would not put on a belt.

48

His mother’s brother.

PETETAN — 28

When appellant was released from prison, he wanted to be a businessman, but Kemper

testified that appellant “couldn’t understand how to go from A to Point Z.” Kemper said that

appellant had “great big dreams” but simple things about business, such as getting a DBA49 or

Assumed Name Certificate, had to be explained to him, “and even if you explained it to him, he still

did not understand.”

On cross-examination, the prosecutor asked Thomas if he was aware that appellant had

obtained a DBA. Kemper responded, “No, I’m not.” When the prosecutor replied, “So if he did that,

apparently he was able to take your advice and . . . he did get the DBA,” Kemper responded,

“Through Kim.” The prosecutor replied, “Well, you don’t know that, do you, sir,” and Kemper

responded, “Yes, sir, I do” because Kimberly “called me.” Then the following colloquy occurred:

Q. No. Thank you, sir. Just a moment ago, Mr. Kemper, when I asked you if you

were aware that your nephew had gotten a DBA, you said, no, you weren’t aware of

that, and yet the very next questions that I asked you, you started to say that you knew

that Kim got a DBA for him.

A. No.

Q. Now, let me just ask you: Did you know or did you not know before I asked you

the question?

A. No, I didn’t. I didn’t know, sir.

Q. And that’s all that I need to know, sir.

A. I didn’t know.

7. Appellant’s Prison Pastor

Edmond Bolton Stewart was a pastor involved in jail ministry. He testified that appellant

was difficult to talk to, because his mind would “just wander off to something else”—with appellant

49

Doing Business As.

PETETAN — 29

suddenly switching to a subject having nothing to do with what the conversation had been focusing

on. Stewart testified that this happened with appellant on a regular basis. Stewart conceded that he

first came in contact with appellant just three to four weeks before his testimony at trial, and he

admitted that he opposed the death penalty.

8. Psychological Testimony and IQ Tests

a. IQ Test in February 1991

Texas Juvenile Justice Commission records show that, in February of 1991, at age fifteen,

appellant was administered a child IQ test. The test yielded a verbal IQ score of 67, a performance

IQ score of 61, and a full-scale IQ score of 61.

b. Dr. Scott - Evaluation in November 1991

Before arriving at a juvenile justice facility, appellant had been taking the antipsychotic

medication Mellaril. In November 1991, Dr. Harold Scott, a psychiatrist, examined appellant to

determine whether he should resume taking that medication. Dr. Scott determined that appellant did

not need to do so. As a result of the examination, Dr. Scott also diagnosed appellant as having

conduct disorder50 and, based in part on previous test scores, “mild mental retardation versus

borderline intellectual functioning.” Dr. Scott testified that mild mental retardation generally

referred to a full-scale IQ score of 55 to 69 while borderline intellectual functioning referred to a full-

scale IQ score of 70 to 74. The phrase “versus borderline intellectual functioning” was a hedge on

the intellectual diagnosis because appellant’s passive-aggressive nature and his stubbornness

undermined the usefulness of the clinical interview as a measure of intellectual ability. “In other

50

His notes also stated that appellant was diagnosed as having oppositional-defiant disorder,

but Dr. Scott testified that that diagnosis was redundant because someone with conduct disorder

would necessarily have oppositional-defiant disorder.

PETETAN — 30

words,” Dr. Scott stated, “I don’t know that he is as low as he appeared. Stubbornness can

contaminate that and someone can look worse than they really are.” Dr. Scott also affirmed that

someone who chooses not to gain an education can also appear lower than he really is. And he

agreed that it was possible to fake poor results on an IQ test.

The prosecutor posed hypothetical questions about whether an IQ score of 74, or a score

falling within the range of 71 to 77, would indicate mild mental retardation. Dr. Scott said that

would indicate borderline intellectual functioning instead of mental retardation.

c. Dr. Coxe - IQ tests in April 1992

Dr. Ray Coxe, a psychologist, administered intelligence and achievement tests to appellant

at age sixteen in April 1992. This testing was conducted pursuant to direction from the Jefferson

County Juvenile Probation Office. Because the intelligence tests for both children and adults were

qualified for sixteen-year-olds, and because appellant’s attitude suggested that he was not putting

forth his best efforts, appellant was required to take both tests.51 Dr. Coxe testified that, on some

items and some tests, appellant “gave up very quickly without making too much of an effort” and

had “a little bit of an attitude about the testing.” Appellant’s full-scale IQ score on the child test was

64 and on the adult test was 74. Dr. Coxe testified that, when a child is administered both tests, it

is not uncommon for the adult test score to be as high as ten points higher than the child test score.52

Dr. Coxe also testified that, when questioned by him, appellant appeared to understand the

51

The tests were the Wechsler Intelligence Scale for Children (WISC) and the Wechsler

Adult Intelligence Scale (WAIS).

52

Dr. Joan Mayfield, whose testimony we discuss in detail later, referred to this potential

differential as an “error that is associated with that scoring of that age range.”

PETETAN — 31

role of his attorney.53 Appellant also understood that the prosecutor was an adversary of his,54 and

he indicated an understanding of the consequences of being found “guilty” or “not guilty” of the

serious offenses of which he had been accused. Dr. Coxe also testified that he found no evidence

that appellant suffered any delusions or psychosis.

Dr. Coxe acknowledged that there were many reasons aside from mental retardation for an

individual to score below a 70 on an IQ test. These reasons include brain damage from a head injury,

mental illness, a physical health problem, undiagnosed visual impairment, and a severe

communication disorder. Although appellant did not appear to suffer from any of these conditions,

Dr. Coxe also acknowledged that “an individual, if they are so motivated, can make themselves

appear less intelligent than they really are.” The honesty of the subject during testing was an

important part of determining the reliability of the test, and Dr. Coxe’s belief that appellant’s

performance on the first test reflected “some question about motivation” and was the result of “less

than full effort” spurred him to administer a second test. When asked if someone could fake a score

of 70 on an IQ test, Dr Coxe responded affirmatively as follows:

I think any test can be faked, no question about it, and that’s what you consider when

[you’re] administering it. You don’t accept the fact that all scores are accurate, so

you’re paying attention to that, you’re looking for that, and if certain behaviors, if

they occur, you kind of suspect it and do additional work.

When asked if he thought appellant was “an honest individual,” Dr. Coxe said, “I don’t think so.”

Dr. Coxe further testified that the first test—where he had doubts about whether appellant

was putting forth his full effort—was the child test, which yielded the lower IQ score. Dr. Coxe felt

53

Appellant stated, “She fights for me and helps me get out of trouble.”

54

Appellant stated, “The District Attorney tries to get you.”

PETETAN — 32

that the second test, the adult test that yielded an IQ score of 74, was a reliable indicator of

appellant’s functioning. That test had a standard error measurement of three points, which could

yield an IQ score as high as 77 or as low as 71. Dr. Coxe stated that an IQ of 74 would probably not

be used to classify someone as mentally retarded. Rather, he stated, “It’s borderline.”

But Dr. Coxe also testified that his “overall impression,” based on the results of testing and

on observations during interviews, was that appellant “was mildly retarded.” Dr. Coxe felt that the

achievement test scores—a reading score of 70, a spelling score of 61, and an arithmetic score of

46—were consistent with falling within a lower range. Dr. Coxe did not, however, conduct any

adaptive behavior testing. And Dr. Coxe acknowledged that someone who did not attend school

much—like appellant–would not be expected to score well on achievement tests.

d. Testing by the Adult Prison System

Travis Turner, the Vice Chairman of Classification in the Texas Department of Criminal

Justice (TDCJ), testified that an offender is given an initial IQ test upon entering the prison system.

If the offender scores below a certain cutoff, then a “secondary test”—involving adaptive behavior

screening—is given to consider whether the offender should be assigned to the “developmentally

disabled” program in the Hodge Unit. Appellant’s score on the IQ test was 69, so he was given the

secondary test. Appellant was not assigned to the Hodge Unit.

e. Dr. Correia’s Report - IQ test in 2012

In 2012, IQ testing was done as part of a Social Security disability assessment. Appellant

was administered the WAIS-III55 IQ test, which yielded a full-scale IQ score of 55. The psychologist

who conducted the test, Dr. Mark Correia, did not testify at trial, but his report was admitted into

55

Wechsler Adult Intelligence Scale - Third Edition.

PETETAN — 33

evidence. Dr. Correia diagnosed appellant as having antisocial personality disorder and mild mental

retardation. The “mild mental retardation” diagnosis was provisional “due to lack of supportive

documentation from the developmental period.”

Dr. Correia’s report included many comments about appellant’s appearance and demeanor.

During the testing, appellant was “casually, but appropriately attired,” and his speech was “clear and

well-formed.” Appellant presented an “aloof, self-absorbed manner . . . was largely disinterested in

others, but responded to questions in a reasonably direct and appropriate manner.” Appellant’s

“disinterested and aloof demeanor” was maintained through much of the evaluation. Appellant was

“quite impatient and demonstrated a tendency to quickly become overloaded cognitively by

complexity and respond with significant frustration.” His behavior was “impatient and

unsophisticated, with limited intellectual functioning adding to his modest repertoire of social skills.”

Appellant “had little interest in the exam, requesting repeatedly to be allowed to leave to

smoke a cigarette, use the restroom and take cell phone calls.” He seemed to “put forth an effort to

cooperate minimally and superficially only.” Dr. Correia’s evaluation suggested that appellant “is

able to perform tasks completely and appropriately, within reasonable periods of time, when properly

motivated to do so. Motivation is likely to be problematic, however.”

Appellant was “able to adequately recall information when properly motivated.” But he “had

little interest or ability to mentally manipulate information [in] his working memory.” Appellant’s

overall memory was estimated to be commensurate with his mildly deficient level of intellect

generally. Appellant’s judgment and insight appeared to be distorted. Dr. Correia found that

appellant had little insight into how his behavior and attitude affected others and that appellant

consistently blamed his problems on others and refused to accept responsibility for them. However,

PETETAN — 34

appellant was “able to understand appropriate behavior.”

f. Dr. Craig - Defense-Ordered Adaptive Behavior Testing

Dr. Ellis Craig, a psychologist, conducted an evaluation at the request of the defense to

determine whether appellant had adaptive deficits. He used the Adaptive Behavior Assessment

System II (ABAS-II), which uses people who know the subject (called “informants”) to assess the

subject’s adaptive behavior in a number of areas. Dr. Craig used the version of the assessment

system that was normed for thirty to thirty-nine year olds.56 In addition, Dr. Craig conducted the

assessment retrospectively, because no one had ever before conducted a standardized adaptive

behavior scale on appellant, much less during appellant’s developmental period (i.e., prior to age

eighteen), but he said that there was an earlier non-scored assessment that he thought seemed

consistent with the results Dr. Craig obtained.57 Dr. Craig explained that a retrospective assessment

is having respondents describe how the defendant was during the developmental period (prior to age

eighteen). Dr. Craig asserted that a retrospective assessment of an incarcerated individual was

necessary because a current adaptive behavior assessment in a jail or prison setting was not feasible,

due to the lack of opportunity to see how the person performs in everyday life.

In conducting this assessment system, Dr. Craig obtained assessments of appellant’s adaptive

functioning from appellant, his mother, an older brother, an older sister, and an uncle. The rankings

from highest to lowest were: brother, 53; uncle, 47; sister, 47; appellant, 42; mother, 40. The lowest

56

Dr. Craig stated, “There are both children and adult forms. The adult form was normed

on the population of age 16 to 89, and there are different norms for each – basically every 10-year

span, and so I used the ones from the age 30 to 39, which is Mr. Petetan’s age.”

57

It is unclear whether this is a reference to Dr. Scott’s evaluation in November 1991, Dr.

Correia’s notes in connection with the 2012 IQ testing, or some other evaluation unknown to us.

PETETAN — 35

possible score was a 40. Dr. Craig did not use appellant’s score “because there are some problems

with self-reports.” He discounted the mother’s assessment because her score was at the floor of the

scale and because her responses were not consistent. Dr. Craig also noticed that the uncle’s scores

had a different pattern from the other respondents, which may have reflected that the uncle had only

limited contact with appellant and had a different set of standards. Dr. Craig thought that the

brother’s and sister’s assessments “were probably the most accurate and most reflective of what

[appellant’s] actual day-to-day functional skills really are.” The brother and sister ranked appellant’s

social skills the highest, his conceptual skills second, and his practical skills as his weakest area. The

norm for the population on the ABAS-II was a range of 85 to 115, similar to the norm for IQ tests.

From this assessment, Dr. Craig concluded that areas of strength within social skills were that

appellant had friends, had good relations with his family, was able to interpret other people’s

emotions, and showed some ability with leisure skills, such as listening to music. Limitations in the

social area included the inability to understand jokes, being easily led by others, not engaging in

games or watching television, and the inability to be polite, to offer assistance, or to give gifts. Dr.

Craig found appellant’s conceptual strengths to be his ability to talk in complete sentences, his ability

to write, his ability to at least appear to listen to what he is told, and his having “pretty good self-

direction” (being able to go out alone in the community). Limitations in this area included having

very limited conversational skills, being unable to read menus, being unable to calculate correct

change, and being irresponsible with time commitments. Dr. Craig found appellant’s practical skills

to be his ability to walk to familiar locations, make simple meals, take medications, and dress

himself. Limitations included being unable to use a map, being a terrible housekeeper, and being

unable to make his own bed or to operate appliances such as washers, dryers, and microwave ovens.

PETETAN — 36

Dr. Craig also noted that the only eating utensil appellant used was a spoon, that appellant mainly

ate sandwiches, and that appellant did not necessarily dress himself well. And Dr. Craig related that

appellant had difficulty with administering first aid.

Dr. Craig concluded that appellant’s adaptive limitations far outweighed his minimal skills.

Dr. Craig acknowledged that appellant “does have skill areas” and that “writing ability, for example,

is one that seems to stand out.” What caused the adaptive limitations, Dr. Craig said, was “hard to

say, but one likely explanation is that there were many missed opportunities to learn these skills” due

to appellant spending “the majority of his life incarcerated.” Dr. Craig also indicated that appellant’s

“parental supervision was not such that he was expected to do it, or, you know, the training was

given to him, so he simply didn’t learn those skills.” Dr. Craig concluded that the adaptive

assessment scores fell within the range for moderate mental retardation—below the “mild”

retardation level.

On cross-examination, Dr. Craig conceded that the ABAS-II is not normed for retrospective

assessments and that no test currently exists that is normed for that purpose. When asked what

percentage of the population aged thirty to thirty-nine for which the particular ABAS-II assessment

was normed had been incarcerated for twenty years of their life, Dr. Craig replied, “I would say

zero.” Nevertheless, Dr. Craig stated that he asked the informants to rate appellant’s abilities at the

time he went into prison. The prosecutor construed this to mean when the defendant entered juvenile

custody at age fourteen or fifteen, but it may have been when the defendant went to the penitentiary

when he was sixteen.

In any event, the prosecutor went through the ABAS-II questionnaire and pointed to items

that could be inappropriate for a fourteen to sixteen year old and for which appellant was given the

PETETAN — 37

low score of 1 out of a possible score of 0 to 3:

• Calls to find out if a repair or order is ready.

• Calls a repair person if, for instance, the air conditioner or heater is not working.

•Takes people on trips to nearby places; for example, takes a child or family member

to a park.

• Asks a store clerk for product information before buying an item.

• Reads and follows instruction to assemble new purchases.

• Makes reminder notes or lists.

• Completes forms for business or services; for example, obtains a lease.

• Reads important documents; for example, credit card applications or rental

agreements.

• Balances a checkbook.

• Follows the maintenance schedule for home or car.

• Reserves tickets in advance for activities such as concerts or sports events.

Dr. Craig also acknowledged that the ABAS-II was created in 1999, when the internet existed and

tickets could be reserved online. When asked by the prosecutor, “That didn’t exist back at the time

we’re assessing this man, did it?” Dr. Craig responded, “You could do it by telephone.”

The prosecutor also elicited testimony that, despite the fact that appellant was not reported

as playing games, the questionnaire also included the item “keeps score when playing games,” for

which appellant was given a score of 1. Appellant was also given a score of 1 for the item “shows

sympathy for others when they are sad or upset,” but Dr. Craig admitted that such a score would also

be consistent with having antisocial personality disorder and that appellant had been diagnosed (as

an adult) as having antisocial personality disorder, as well being diagnosed (as a child) as having

PETETAN — 38

conduct disorder.58

The prosecutor also questioned Dr. Craig about the fact that appellant received a score of 1

on almost every home living task, including folding clean clothes, taking out the trash, clearing the

table after a meal, making the bed, making minor repairs, putting things in their proper place,

sweeping the floor, cleaning his room, cleaning the bathroom, mixing and cooking fairly complex

foods, and dusting the furniture. The prosecutor quoted from the manual, ABAS-II, Clinical Use and

Interpretation, as saying: “It is not uncommon for adolescents and young adults with antisocial

personality disorder or conduct disorder to have adaptive skill problems in the area of health and

safety, occupational performance, daily living, self-direction, and interpersonal skills.” When asked

if he agreed with that statement, Dr. Craig responded, “I think there is some truth to it.” And Dr.

Craig acknowledged that an overprotective family could result in an individual not learning a lot of

adaptive behaviors because the family members do things for him.

Dr. Craig also admitted that the pool of informants used to rate appellant’s adaptive behavior

was identified by the defense team’s mitigation specialist, and that every single person in that pool

was related to the defendant. Dr. Craig also testified that one of the things to be careful about in

conducting an adaptive behavior assessment is that some of the informants may have a vested

interest in the outcome of the interview.59 And Dr. Craig admitted that the interviews (except for

58

Outside the presence of the jury, Dr. Scott had testified that antisocial personality disorder

was not considered an appropriate diagnosis for anyone under age eighteen, but someone who

displayed what would be diagnosed as antisocial personality disorder in an adult would be diagnosed

as having conduct disorder.

59

In direct examination, Dr. Craig had testified, “Well, you want to make sure that the

person, first off, doesn’t have a vested interest in giving you incorrect information, that you can

assume that they are going to give you correct information, and to some extent, that’s a bit of a leap

of faith.”

PETETAN — 39

appellant’s) were conducted by telephone but that, ideally, interviews would be conducted in person

because that allows the interviewer to “pick up cues from people by facial expressions, body

posture.” Nevertheless, Dr. Craig maintained that “you can get a lot of the same thing from just

listening to voice quality.” Dr. Craig also admitted that one of the ways to ensure the reliability of

interview results was to conduct the ABAS-II interview multiple times with the same informant,60

but Dr. Craig conducted the interview only once per informant. On redirect examination, Dr. Craig

noted that he had a difficult time locating appellant’s sister when trying to conduct an interview, and

he wanted to find a teacher or a peer from before appellant’s imprisonment but could not locate

anyone in those categories who remembered appellant well enough to give an assessment.

g. Dr. Mayfield - Defense-Ordered IQ and Other Testing

Dr. Joan Mayfield, a neuropsychologist, conducted IQ tests and other testing at the request

of the defense. She also reviewed appellant’s educational history and prior testing. Appellant’s

educational record showed that he had to repeat third and sixth grades and that he was socially

promoted to fourth grade. He dropped out during ninth grade. Dr. Mayfield testified that she

reviewed the 2012 test with a full-scale IQ score of 55 and stated that “the scores are really consistent

from the scores when he was 16.”

Dr. Mayfield administered the WAIS-IV61 IQ test and obtained a full scale IQ of 52. The

subtests showed verbal comprehension at 54, perceptual reasoning at 56, working memory at 71, and

processing speed at 52. She also administered other tests that used the same basic scoring system

as an IQ test. Achievement tests showed appellant to be in the high 50s or low 60s (Brief Reading

60

Dr. Craig stated, “That’s how the people that developed the test establish reliability.”

61

Wechsler Adult Intelligence Scale - Fourth Edition.

PETETAN — 40

score of 63, Brief Mathematics score of 56, and Brief Written Language score of 61). On the Brief

Written Language test, Dr. Mayfield found that appellant “had difficulty organizing sentences that

had full words in it and made a thought, a complete sentence.” The TOMAL-2,62 a memory test,

gave scores on several components of memory ranging from 52 to 72, with most scores being in the

50s and low 60s.63 Most of these memory test scores placed appellant below the lowest one percent

of the population. The CREVT,64 a language test, yielded a general vocabulary score of 45, which

also placed appellant below the lowest one percent of the population.65

Appellant scored low on various tests that measured attention and executive functioning,

which did not use the same scoring system as an IQ test. These tests included the Halstead-Reitan

Battery, the Delis-Kaplan Executive Function System, the Conners’ Continuous Performance Test -

Second Edition (CPT-II), the Wisconsin Card Sorting Test, and the Comprehensive Trail-Making

Test (CTMT). Appellant’s scores on the Halstead-Reiten Battery were in the impaired range, and,

with one exception, all of his scores on the Delis-Kaplan were a 1 or 2 when the average score would

be a 10.66 Appellant’s scores on various subtests in the CPT-II resulted in a score of 99.9 out of 100

that a significant attention problem exists. Scores on subtests within the Wisconsin Card Sorting test

62

Test of Memory and Learning - Second Edition.

63

Scores were as follows: Verbal Memory Index 63, Nonverbal Memory Index 54,

Composite Memory Index 52, Delayed Verbal Recall Index 51, Attention/Concentration Index 72,

Sequential Recall Index 62, Free Recall Index 54, Associative Recall Index 65, Learning Index 63.

64

Comprehensive Receptive and Expressive Vocabulary Test.

65

Appellant also had low scores on motor and visual perceptual tests: Motor-Reduced Visual

Perception of 53, Visual-Motor Integration of 42, and General Visual Perception of 44.

66

He scored a 7 on one subtest.

PETETAN — 41

placed appellant in percentiles ranging from the bottom 2 to 10 percent of the population. And

appellant’s scores on the CTMT were so bad that Dr. Mayfield chose to discontinue it.67

In light of all her testing, Dr. Mayfield concluded that appellant “presents with global delays,

global delays in intellectual ability and academic and attention and executive functioning and

problem solving, memory, language, motor, and visual perception. There was global delays across

all domains.”

However, Dr. Mayfield admitted that “it doesn’t do any good to take a test if somebody is

not putting forth their best effort.” In an attempt to measure whether appellant was putting forth his

best effort, Dr. Mayfield administered the Test of Memory Malingering (TOMM) and the Rey 15

test. The results of the TOMM test showed appellant to be in the category of “inadequate effort

strongly suspected.” Appellant was also below the cutoff for adequate effort in the Rey test, i.e. the

score was positive for malingering.68 But Dr. Mayfield discounted these scores. With respect to the

TOMM, she said, “The research supports that the TOMM is not really a good test to use with people

who are mentally retarded. It is still used, and I used it.” She believed the problem with the TOMM

is that “it tends to give false positives.” Regarding both the TOMM and the Rey 15, Dr. Mayfield

stated that “the research is not really good on any of them, that they are really good” that the tests

“give[] you a lot of false positives” and “most of the research, when they norm . . . the people who

have mental retardation are excluded from that sample.” She testified that the WAIS-IV also has an

67

Appellant also had below average scores on a “Tapping” test, a significantly impaired

score for his dominant hand on the “Grooved Pegboard” test, and a low average result for his non-

dominant hand on that test.

68

To show adequate effort on that test, a person was expected to get at least three sets of

three pictures correct, but appellant was correct on only two sets and part of a third set.

PETETAN — 42

embedded validity test called Reliable Digit Span. Appellant met the cutoff on two of the three

subtests, which indicated adequate effort, but missed the cutoff on the other subtest. The

combination of scores on the subtests yielded an overall score of 12, which exceeded the requirement

of an overall score of 10 or better to indicate adequate effort. Dr. Mayfield concluded that appellant

exerted good effort on all of the tests.

When asked on cross-examination whether any of the capital-murder defendants she had

previously tested and interviewed had been deceptive with her, Dr. Mayfield responded, “I think that

the majority of the ones – these last that I have seen, I have gotten valid testing.” Nevertheless, Dr.

Mayfield acknowledged that studies had been conducted to estimate the frequency of deception in

these types of settings and that the studies had demonstrated a combined rate of probable and definite

malingering for pre-sentenced males referred for neuropsychological assessment to be as high as 54

percent. Dr. Mayfield agreed that appellant had a documented history of deception and manipulation

starting at age ten, when he committed burglary. Dr. Mayfield also agreed that depression or lack

of education could lower an IQ score. And, finally, she acknowledged that appellant’s scores on her

intelligence tests were the lowest that he “has ever achieved in his lifetime.”69

9. Childhood Acquaintance – Fredrick Nico

Fredrick Nico, the childhood acquaintance whom appellant shot, did not ever consider

appellant to be mentally retarded:

Q. As a child, did you ever look at him as a mentally challenged person?

69

When asked for the lowest possible score that one could make on the WAIS-IV, Dr.

Mayfield, responded, “I don’t know if it’s less than 45 or less than 40.” When asked whether the

lowest possible score one could make on the WAIS-III was 47, Dr. Mayfield responded that she

did not know but “that could be right.”

PETETAN — 43

A. No.

Q. Did you ever think of him as a poor, disabled individual?

A. No.

Q. As a retarded kid?

A. No.

Q. How would you describe Carnell?

A. As far as a kid, he was an average kid, you know, until he started getting in high

school, middle school and start, you know, want to go run the streets wild like

everybody else did and took it a step further.

Q. Took it a step further?

A. Uh-huh.

Q. You said you wouldn’t describe him as retarded. Would you describe him as

mean?

A. Hateful. Not mean.

10. School Officials

Dorothy Stamps, appellant’s first grade teacher, was routinely assigned “bad” children that

other teachers could not handle. She was the last stop before a child was sent to an alternative

school. Appellant did not give Stamps any problems in the fall, but, in the spring, he began laughing

frequently during classes. One time Stamps said, “If you’re going to do that, stand up and laugh until

you get tired.” Appellant stood up and laughed for about five or six seconds and then ran out of the

room. When the prosecutor asked Stamps if she thought that appellant was “retarded,” Stamps

responded, “If he was, he was a smart retarded person. He was wise.” When asked what she meant

by “wise,” Stamps responded, “He knew what he was doing.” She also testified that appellant was

PETETAN — 44

capable of doing the schoolwork if he applied himself.

Morris Lee, an assistant principal at appellant’s elementary school, regularly came in contact

with appellant because he was an “uncooperative” student. Appellant showed defiance to “virtually

every adult in a supervisory position” at the school. Lee characterized appellant’s mother as an

“enabler” who “catered” to appellant. When asked if he thought appellant had a mental disability,

Lee said, “Beyond being hard headed, no, sir. He was a – he’s not stupid. I mean, he’s not. Now,

he was an average child” who did not apply himself in appropriate directions.

Eddie Fowler, a principal at a middle school that appellant attended, testified that appellant

was placed into a special education program called “the self-management program.” This placement

was “not necessarily because he was so far behind, but because he was a discipline problem.” Based

upon a review of the school records, Fowler concluded that appellant was “pretty average.” Fowler

said that appellant’s testing in grade 4.6 showed him to be at grade level 4.3 or 4, so appellant’s

placement into special education “wasn’t because of his academics.”70 When asked, “So he wasn’t

in Special Education because of any mental defect or because he was retarded, was he?” Fowler

responded, “No.”

Fowler characterized appellant’s behavior as “very poor.” Fowler once caught appellant

smoking in a school restroom. Appellant denied that he was smoking, but Fowler had seen the

smoke come out of appellant’s mouth.

In 1989, Ramona Pitre was appellant’s teacher at an alternative school for students with

behavioral problems. Appellant was angry and sometimes would not do his work. He would talk

70

Fowler’s recitation of scores for fourth grade as being only slightly below grade level

appears to be inconsistent with the CAT transcripts in the record. See supra at part II.B.5.

PETETAN — 45

back to Pitre, and he was “always veering away from the rules.” One time, appellant threw a tray

of food on Pitre’s head, an occurrence that she had never experienced before or since. When asked

whether she thought appellant was mentally retarded, Pitre replied, “Oh, no.” When asked to

elaborate, she explained, “Because his behavior was the norm of students who don’t want to be

punished for whatever they did to be out of the way of somebody else, yet be in the solitude area”

of the alternative school. When asked whether appellant appeared to be one of those students that

had a learning disability, she responded, “Oh, no, no.”

11. Criminal Justice Officials and Prison Inmates

In February of 1994, Speedy Bryant was appellant’s cellmate. He was appellant’s cellmate

for only a week and a half, because, during that time, appellant raped him.

Warren Kroll was working in the Ferguson Unit of TDCJ while appellant was incarcerated

there in 1994. On July 6 of that year, in a routine shakedown of appellant’s prison cell, Kroll

discovered two homemade weapons hidden underneath appellant’s mattress: (1) a sock with a

padlock attached to it and (2) a sharpened piece of steel five-and-a-half inches long with a towel

wrapped around part of it. Appellant admitted that the weapons were his and that he had memorized

the combination to the padlock, which was needed to remove the padlock from the sock. Appellant

made these weapons while he was in “closed custody,” which was an area of the prison unit for

chronic rule violators.

In March 1995, the first day inmate Daniel Gunter was assigned to the prison block in the

McConnell unit, he met appellant. Appellant told him that, if he needed anything, appellant could

get it. “It didn’t matter what it was or where it came from, he could get his hands on it.” Appellant

later indicated that he was interested in a sexual relationship with Gunter. When Gunter repeatedly

PETETAN — 46

turned him down, appellant began issuing threats. At some point, someone had knocked Gunter

unconscious, and he later awoke to find himself in appellant’s cell with his pants off and with

appellant holding a homemade weapon to his throat. The weapon was made out of a part of a frame

that was torn off the window in the day room of the prison. Something was wrapped around the

frame piece to serve as a handle. Appellant sexually assaulted Gunter and, brandishing the weapon,

threatened to kill him if he told anyone.

On September 27, 1998, appellant had a fight with another inmate, Azikiw Daniels, at the

Estelle Unit in TDCJ. Daniels hit appellant in the head with a pipe. However, after later discussions

in the day, Daniels believed that the altercation between him and appellant had been resolved.

Two days later, however, Robert Blanks, a TDCJ officer who worked in the food service

department, saw appellant and another inmate walk into the kitchen area wearing hairnets. Appellant

had previously worked in the kitchen, but he was no longer assigned there.71 A security guard,

assuming that the two men were assigned to work there, had let them in, but Blanks, knowing that

was not their work assignment, moved to intercept them. Before Blanks could do so, however,

appellant and his cohort pulled out homemade knives and stabbed two other inmates, one of whom

was Daniels.

Daniels had originally become acquainted with appellant in prison because appellant talked

about owning a record company called Cartel Records. Daniels had asked appellant “how you get

that started,” and appellant showed him how to file a DBA form. Daniels later read a book on the

subject, which confirmed that appellant’s instructions were correct. Appellant had also generally

explained that an artist receives only a percentage of money from each record sale.

71

The other inmate had never worked in the kitchen.

PETETAN — 47

In 2004, appellant sexually assaulted another cellmate, Concepcion Rosas.

Mattie Howe was appellant’s parole officer in 2012. Howe had one-on-one meetings with

appellant and was also a facilitator in an anger management class appellant attended. Howe had no

trouble communicating with appellant, and appellant had no trouble understanding concepts and

communicating in the anger management class. When asked whether he felt appellant was mentally

retarded, Howe responded, “Not from what I have seen of mentally retarded people, no, sir.” Howe

also testified that appellant never had a positive result on a drug test during his supervision.

Mubarak Ali was incarcerated for three to four days at the McLennan County jail with

appellant while appellant was awaiting trial in the present case in 2014. Ali testified, “Mr. Petetan

told me, he say if he act like he’s mentally sick, he cannot get the death penalty.” Appellant also said

that his aunt in Louisiana was a bondsman who could help Ali bond out of jail. When Ali asked

appellant to contact his aunt on Ali’s behalf, appellant said that he could not use the phone because

“he’s telling the Court that he’s mentally sick.” At Ali’s prodding, appellant later called his mother

and mentioned to her Ali’s bond situation. Ali bonded out of jail the next day.

12. Appellant’s Tattoos

Appellant had a number of tattoos that appeared to signify his understanding of various

subjects. He had a dollar sign between his eyes and three teardrops under his left eye. Jay Hart, a

gang expert employed by TDCJ, testified that the teardrops signify “doing time or the death of a

loved one.” The letters “TGR” were tattooed over appellant’s left eye and a cross was tattooed on

the right side of his neck. Appellant also appeared to have a tattoo of the letters “GC,” which may

have stood for his affiliation with the 357 Graveyard Crip gang. “Boss Hustler” was tattooed across

appellant’s neck, and Hart stated that “hustler” could refer to a gang member who deals drugs,

PETETAN — 48

hustles money, or engages in illegal activities. A crown was tattooed on the left side of appellant’s

neck, along with the words “PA Don,” which appeared to be a nickname. On appellant’s chest was

a picture of Jesus and the devil playing chess with the devil winning. On appellant’s stomach was

a portrait of Ulysses S. Grant, with the word “Underground” on top and “Legend” on the bottom.

On appellant’s back were the words, “Don Cartel.” Appellant also had tattoos of the words “Rolls

Royce” and “Bentley.” On appellant’s right shoulder was a portrait of Benjamin Franklin that is

commonly seen on the one-hundred-dollar bill. The Franklin portrait had tattoos corresponding to

a mirror image of the tattoos on appellants face. Appellant also had a tattoo of the character Tony

Montana in the movie Scarface. Underneath that portrait were the words “Tripple Gold” and “3G.”

Across appellant’s right arm was the word “Cartel,” and appellant had a fresher tattoo of “Kimberly.”

Appellant also had a tattoo of “409”—the Port Arthur area code. Appellant had tattoos of a

microphone and music notes. There were also tattoos of the words “Trill Life,” a money bag, a

spade, a street address, a couple of dice reading “3” and “5,” a marijuana leaf, a liquor bottle, the

words “Short Texas,” a skull on a poster, and the words “High Rollers.”

13. Appellant’s Letters

Several of appellant’s letters to Kimberly were read aloud by the prosecutor, and the jury had

access to many more written letters. It is not practical to include in this opinion all of the letters read

by the prosecutor, much less all of the letters to which the jury had access. But by way of example,

we include a portion of the first letter read by the State, which gives the reader a sense of appellant’s

writing style and of his ability to perform calculations and to think creatively (letter dated 10-31-10):

Kim, I Hope and Pray when this letter reaches you it finds you in the best of health

as well as spirits in God’s Care and Protection. as far as myself im Just takeing

things one day At a Time, staying solo and low key missing my baby. Check this out

PETETAN — 49

baby. I got an idea that will work only if you Put it to action and execute, it’s a

Raffle a watch its sold at wholesale price and when you Raffle it off you can sell

Tickets at 25.00 let’s say you sale 100 tickets that’s $2,500 all you will need is

some flyers the watch and a cell phone. I got a hundred on my books I’ll get that out

so you can order the watch. get the flyers printed up and Pass them out have a

Picture of the watch on their Real Diamond watch 0.12 carats. your cell #, and ticket

info your homegirl who do hair you told me about, she can hand out a few flyers,

Kristain, you can at school and other places. I wrote out a sample of how it goes. I

just wanna try DA come up with something to help out Just let me know whats up,

and I’ll come your way to get the watch.72

14. Documents in Appellant’s Suburban

After appellant was arrested for this offense, law enforcement found the several documents

in his white Suburban. One of those documents was a printed out set of directions, by Google or

Mapquest, from Waco to Port Arthur. There was also a document entitled “Cartel Boxing

Promotions Business Plan Prepared By Petetan.” The document included sections entitled,

“Executive Summary,” “Company Summary,” “Services,” “Marketing Analysis Summary,”

“Marketing Strategy,” “Management Summary,” “Financial Plan,” “Vision,” “Boxing,” and

“Biography.” The “Biography” section contained the following:

BIO

Born in Port Arthur, Texas, Carnell Petetan, Jr. has his share of ups-and-downs. The

tough street of his hometown groomed him into the dynamo he is today, and now,

armed with a wealth of resources, skills and abilities, he is set to launch the long

anticipated CARTEL BOXING PROMOTIONS.

Co-Founder of Tripple Gold Records, along with brother and business partner,

Herbert Mouton, Carnell Petetan has emerged with a vision so ambitious, success is

eminent [sic].

72

Stylistic errors in original. Two instances of “I’ll” may be read as “ill”—due to the

ambiguous nature of the handwriting. We have attempted to faithfully reproduce this passage from

appellant’s actual written letter contained in State’s exhibit 126 rather than from how this passage

appears in the court reporter’s record (see p. 335, pdf file, combined exhibit volumes).

PETETAN — 50

The key feature and strength behind Cartel rests in the fact that for eighteen years of

his life, he survived in Texas prisons; some of the deadliest in the nation. This is

where he honed his leadership abilities and educated himself.

Now this wise and intelligent young man is ready to take on the world. Surrounded

by a support team of experts, his Cartel Boxing Promotions will quickly become an

industry great in the years to come.

You’ve seen the rest, now prepare for the best.

Carnell enjoys reading, video games, and brainstorming. The author of over 800

songs, Carnell is also the respected and rising rap star, “Don Cartel”. Look for the

documentary, “unshackled”, [sic] coming soon. With success looming over him,

Carnell promises to stay grounded and Always put God First.

C. Analysis

1. General Intellectual Functioning (IQ)

The adult IQ test administered by Dr. Coxe in 1992, when appellant was sixteen years old,

yielded a full-scale IQ score of 74, which is above the score of 70 that is generally considered the

ceiling for mental retardation. If one accepts Dr. Coxe’s testimony that this IQ test had a three-point

margin of error, then the score at the low end of the margin-of-error range would be 71—still above

the general ceiling for mental retardation, albeit barely. This was some evidence that appellant’s

general intellectual functioning fell above the range for mental retardation.

Although every other IQ test that appellant took yielded lower scores that were within the

range of mental retardation, the jury had reason to believe that the adult test administered by Dr.

Coxe yielded the most reliable result of all the IQ tests that appellant had taken. Dr. Coxe believed

that the result was more reliable than the result obtained from the child version of the IQ test that he

had previously administered because appellant did not put forth his best efforts when taking the child

version of the test. Little is known about the circumstances surrounding the IQ test administered in

PETETAN — 51

1991 or the IQ test administered by TDCJ. Appellant had a motive to perform poorly on the 2012

IQ test in order to receive Social Security disability payments, and Dr. Correia observed that

appellant’s efforts during that testing were “to cooperate minimally and superficially only.”73

Appellant had an even greater incentive to score low on the tests administered by Dr. Mayfield, in

order to avoid the death penalty, and correspondingly, that testing yielded the lowest IQ score

appellant had ever received. And appellant’s scores on two tests administered by Dr. Mayfield to

detect malingering were positive for malingering.74 Dr. Coxe testified that he did not think that

appellant was an honest individual, and Dr. Mayfield acknowledged that appellant had a documented

history of deception and manipulation.

Also, the jury could reasonably infer from the testimony of psychological experts and

education personnel, and the up and down fluctuation of CAT scores from year to year, that appellant

was generally uninterested in exerting full effort on testing and that he became easily discouraged

when questions became somewhat difficult. As a result, the jury could have reasonably believed

that, even when he had no specific motive to lower his score, appellant’s test scores understated his

intelligence.

Further, the jury could have reasonably believed that appellant’s failure to score well on CAT

and the later achievement tests was due to his failure to learn the material that he was being taught

in school and that that failure to learn was in turn due to his failure to attend school and his attitude.

Notably, appellant’s grades and his scores on CAT tests seemed to be worse in general in years in

73

Evidence in the record suggests that appellant was successful in receiving social security

disability benefits.

74

Appellant’s performance on part of the digit-span subtest for the WAIS IV was also

positive for malingering, though his score on the digit-span subtest as a whole was acceptable.

PETETAN — 52

which appellant had more absences (his initial third grade year and his fourth grade year). Moreover,

appellant did not complete school beyond the ninth grade, and when he was in school, he was often

in special classes or an alternative school because of attitude problems. Consequently, even though

Dr. Coxe was influenced by appellant’s 1992 achievement test scores in concluding that appellant

was mildly mentally retarded, the jury could have reasonably believed that those low scores reflected

appellant’s failure to learn as a result of his attitude and were not an indication of mental retardation.

In addition, the jury could have given weight to the testimony of four different education

professionals—two teachers, a principal, and an assistant principal—that appellant was not mentally

retarded but was a person of average intelligence with major attitude problems. Appellant’s

diagnoses for conduct disorder and antisocial personality disorder further buttress these assessments

that appellant’s problem in school was caused by his attitude and not by a lack of intelligence. The

jury also had the testimony of childhood acquaintance Nico that appellant was not mentally retarded,

as well as the testimony of one of appellant’s cousins that he did not remember thinking of appellant

as a retarded individual. And the jury also had evidence that, at least at some point while growing

up, appellant abused alcohol.

The jury also had appellant’s letters, the documents found in his car, and his trial testimony

to evaluate. Although appellant’s letters are not the writings of a scholar, and they likely reflect his

substandard educational background, a jury could reasonably believe that these writings were not

the writings of a mentally retarded person. Appellant’s business plans revealed an individual who

thought strategically about making money. And the jury was in a position to observe appellant while

he testified. Although we are not in a position to evaluate his demeanor on the stand, appellant’s

testimony in the record seems to be reasonably coherent and effectively communicated.

PETETAN — 53

Appellant also showed a degree of sophistication in carrying out crimes, in prison life, and

in his relationship with Kimberly. He wore a hairnet to successfully lull a prison guard into allowing

him into the prison kitchen so he could stab a fellow inmate. While in prison, he created a weapon

out of a sock and a padlock and created a different weapon out of a part of a window frame and a

towel. He accurately explained to a fellow inmate how to file a DBA form. Through the

communications he had with Kimberly while he was in prison, appellant and Kimberly developed

a romantic relationship that led to marriage. When that relationship soured, appellant successfully

cut off Kimberly’s cell phone service. After he assaulted Kimberly in Port Arthur, appellant cut

himself with a knife to help supply evidence for a defensive theory that Kimberly was the aggressor,

which was consistent with his later testimony at trial.

And appellant engaged in a relatively sophisticated scheme to murder Kimberly and frame

Miller for that murder. Appellant used a stranger to help him scout out Kimberly’s apartment, and

he tricked a neighbor into knocking on Kimberly’s door so that she would open it without knowing

that appellant was there. Appellant schemed to frame Miller for the murder by using the false

promise of drugs to lure Miller to go with him to Waco, attempting to transfer gunshot residue to

Miller’s hands, and telling a clerk to call 9-1-1. This attempted frame-up of Miller was consistent

with appellant’s trial testimony that Miller was actually the murderer.

And after appellant was caught, he then conceived of the idea of eluding the death penalty

by claiming mental sickness. Appellant’s statement while awaiting trial on the current capital

murder charge that he could not get the death penalty if he was mentally sick—and supporting the

claim by refraining from using the phone—indicated an accurate understanding of either the

principle that mentally retarded persons could not be executed or the principle that a person could

PETETAN — 54

not be executed if he was mentally incompetent to stand trial or to be executed.75

It is true that three psychological experts—Dr. Coxe, Dr. Correia, and Dr.

Mayfield—diagnosed appellant as mentally retarded, with significantly subaverage intellectual

functioning. Dr. Scott also suggested that appellant was mentally retarded but hedged his bets with

the more ambiguous diagnosis of “mild mental retardation versus borderline functioning.” No

psychological expert testified definitively—during appellant’s capital murder trial—that appellant

was not mentally retarded.76 And we have recognized that test scores showing an IQ above 70 do

not necessarily preclude a diagnosis of mental retardation.77 But “[a]lthough experts may offer

insightful opinions on the question of whether a person meets the psychological diagnostic criteria

for mental retardation, the ultimate issue” is for the factfinder.78 We also recognize that Dr. Mayfield

somewhat discounted the test score of 74 because of a not uncommon variance that could occur

between child and adult versions of intelligence tests at the time the 1992 adult test was

administered. And we acknowledge that Dr. Mayfield also discounted the accuracy of the tests for

malingering. Nevertheless, we conclude that a finding that appellant did not suffer from significantly

75

See Owens v. State, 473 S.W.3d 812, 816 (Tex. Crim. App. 2015) (“It violates principles

of due process to put an incompetent person to trial.”); Mays v. State, 476 S.W.3d 454, 457 (Tex.

Crim. App. 2015) (“A person who is incompetent to be executed may not be executed.”).

76

During appellant’s incompetency trial, Dr. Michael Pittman testified that appellant was

not mentally retarded. See infra at part III.A. This testimony was not mentioned during appellant’s

capital murder trial.

77

Ex parte Cathey, 451 S.W.3d 1, 10-11 & nn. 21-22 (Tex. Crim. App. 2014).

78

Briseno, 135 S.W.3d at 9. See also Ex parte Moore, 470 S.W.3d 481, 487 (Tex. Crim.

App. 2015) (“opinions of mental-health experts inform the factual decision, [but] they do not

determine whether an individual is exempt from execution under Atkins.”); Cathey, 451 S.W.3d at

9-10 (“Although psychology and psychologists inform the factual decision, they do not determine

whether an inmate is exempt from execution under Atkins.”).

PETETAN — 55

subaverage general intellectual functioning sufficient to meet the first prong of Atkins was not

against the great weight and preponderance of the evidence so as to be manifestly unjust. We

conclude that there was legally and factually sufficient evidence for the jury to find that appellant

did not suffer from significantly subaverage general intellectual functioning because his IQ was

above 70 and his actual intelligence was in line with, or better than, the IQ test score of 74. This

conclusion alone is enough to reject appellant’s sufficiency claims because he must prevail on all

three prongs of the Atkins inquiry to obtain relief. However, we will also address the sufficiency of

the evidence on the issue of adaptive functioning.

2. Adaptive Functioning

The record indicates that, as a result of scoring 69 on an IQ test administered upon entry into

prison, appellant was administered a “secondary test” involving adaptive behavior screening. We do

not know the details of that test or how appellant scored, but the jury could have reasonably inferred

that the test results did not indicate significant adaptive deficits because appellant was not assigned

to the “developmentally disabled” program in the Hodge Unit.

We do have detailed testimony about the ABAS-II administered by Dr. Craig. However, the

administration of the ABAS-II in appellant’s case suffers from several general methodological flaws.

First, the assessments of appellant’s adaptive functioning were retrospective—based on informants’

memories of appellant’s adaptive functioning at around ages fourteen to sixteen. Dr. Craig admitted

that the ABAS-II was not normed for retrospective assessment. Second, Dr. Craig used the version

of the test normed for persons aged thirty to thirty-nine, but that age range far exceeded the age or

ages for which appellant was being assessed—ages fourteen to sixteen. One would expect that an

adult at or approaching middle age would have many more life skills than a teenager, so rating a

PETETAN — 56

teenager on such an adult test would seem to be inherently likely to produce a result indicating a lack

of adaptive skills. The State’s cross-examination addressed items in the ABAS-II questionnaire that

seemed appropriate for an adult but inappropriate for an adolescent. A third flaw is that the test was

normed in 1999, but the behavior being assessed occurred in 1993 or earlier. One major social and

technological change occurred between these years—the rapid expansion and widespread use of the

internet. A fourth general flaw in the administration of the ABAS-II to appellant is that only

appellant and family members were consulted. Dr. Craig acknowledged the need to be careful about

using informants with a vested interest in the outcome, but all of the informants here had a vested

interest—appellant to save himself and the others to save a family member from the death penalty.

A fifth flaw is that only one interview was conducted for each informant. Dr. Craig admitted that

one of the ways to ensure reliability was to conduct the interview with each informant multiple

times. Finally, Dr. Craig admitted that in-person interviews were the ideal, so that the interviewer

could pick up cues by looking at facial expressions and body language, but the interviews (except

for appellant’s) were conducted over the telephone.

There were also specific reasons to question the reliability of the ratings given by the various

informants. Dr. Craig discounted appellant’s mother’s assessment because it resulted in the lowest

possible score of 40 and because she was not consistent in her responses. He discounted the uncle’s

assessment because his responses reflected a different pattern than the other informants. And he did

not use appellant’s assessment because of problems with self-evaluation. We also observe that the

score from appellant’s self-assessment was 42, only two points higher than the floor of 40.

That leaves the assessments by appellant’s brother and sister. The brother did not testify, but

the sister’s (Sabrina’s) testimony provides several reasons to think that her assessment was

PETETAN — 57

inaccurate. Sabrina said that appellant had a problem with wetting himself, even when he was older,

but this assertion was not corroborated by any non-family member, and evidence from Dr. Correia’s

report indicates that appellant knew how to take restroom breaks. Sabrina said that appellant could

never count money, but appellant’s own statements and the testimony of Miller indicate that

appellant had no problem counting money. She suggested that appellant had no special interests and

did not play games, but appellant’s own statements indicated that he was interested in music, boxing,

and bowling. Sabrina indicated that appellant could not use a cell phone, but there was evidence

from several sources that appellant did in fact know how to use a cell phone. She made statements

about appellant’s writing, but those statements were contradicted by the letters he wrote to Kimberly.

At trial, Sabrina acknowledged that appellant might have improved in some of these areas but that

she had not observed it.

Moreover, appellant’s lack of some life skills after he was released from prison can be

explained by the fact that he simply lacked the opportunity to learn some of these life skills because

of his long incarceration in prison that began when he was a juvenile. Appellant’s initial lack of

familiarity with buffet restaurants and cell phones, and his failure to cook his meals and clean his

apartment, could all be explained in this fashion. Another explanation or partial explanation for

these things could be that appellant was lazy and self-centered and was content to allow others to do

these tasks for him.

For the above reasons, the evidence was both legally and factually sufficient for a jury to

conclude that appellant failed to show deficits in adaptive functioning indicative of mental

retardation. In any event, we also consider the factors outlined in Briseno to determine whether any

adaptive deficits are an indication of mental retardation or are, instead, an indication of a personality

PETETAN — 58

disorder.79 The psychological evidence indicates that appellant has had “antisocial personality

disorder” as an adult and “conduct disorder” as a juvenile, and almost all of the Briseno factors

weigh against a finding of mental retardation. Although all of the family members who testified at

trial said they considered appellant to be mentally “slow” when he was a child,80 and some of them

indicated that this was a serious problem that required him to be in special education classes, all of

the school personnel who testified said that appellant was an average student with attitude problems.

Others such as a childhood acquaintance (Nico) and appellant’s parole officer also did not perceive

appellant to be mentally retarded.

Some of appellant’s crimes (e.g., shooting Nico) might be considered impulsive acts, but

much of his criminal conduct, including raping or assaulting other prisoners, and murdering

Kimberly, showed forethought and planning. Although Dr. Craig concluded that appellant was

“easily led,” appellant’s criminal conduct uniformly indicates otherwise. Many crimes, such as the

rape of fellow inmates, were committed by appellant alone. Appellant had a co-conspirator when

he assaulted Daniels in the prison kitchen, but it was appellant who had the grudge against Daniels

and appellant who had previously worked in the kitchen. Appellant also acted in a leadership role

when he lured Miller into going with him to Waco pursuant to appellant’s plan to murder Kimberly.

In addition, the evidence shows appellant’s conduct in response to external stimuli to have

been rational, though often socially unacceptable, and appellant has shown the ability to respond

coherently, rationally, and on point to questioning. The main contrary evidence on the latter point

79

Griffin v. State, 491 S.W.3d 771, 799 (Tex. Crim. App. 2016); Ex parte Hearn, 310

S.W.3d 424, 428 (Tex. Crim. App. 2010); Briseno, 135 S.W.3d at 8.

80

Caston, however, had said that he had not considered appellant to be retarded.

PETETAN — 59

was the testimony of a prison pastor who met appellant only a few weeks before his capital murder

trial when appellant had every incentive to fake mental retardation or mental incompetency.

Further, appellant has repeatedly shown an ability to hide facts or to lie effectively in his own

interests. Appellant effectively hid weapons in prison and used them to assault and rape other

inmates. He effectively presented a false persona to Kimberly while he was in prison that caused

her to fall in love with him. He effectively lied to Miller to lure him to Waco and to a store clerk to

call 9-1-1 on his behalf as part of constructing a frame-up story. Appellant’s history is in fact one

of a deceptive and manipulative person. And finally, the present offense shows forethought,

planning, and complex execution of purpose, as we have already explained.81

We conclude that there was evidence that appellant did not suffer from deficits in adaptive

functioning that were indicative of mental retardation, and the conclusion that he did not suffer from

such deficits was not so against the overwhelming weight and preponderance of contrary evidence

so as to be manifestly unjust.

3. Conclusion

Having found the evidence to be legally and factually sufficient to support a negative finding

on both the general intellectual functioning and adaptive functioning prongs—when a negative

finding on either prong would suffice—we conclude that the evidence was legally and factually

sufficient to support the jury’s negative answer to the issue of mental retardation. Points of error ten

and eleven are overruled.

III. INCOMPETENCY TRIAL

A. General Background

81

See supra at part II.C.1.

PETETAN — 60

Before his capital murder trial, appellant had a jury trial on whether he was incompetent to

stand trial on the capital murder charge.82 In such a proceeding, commonly referred to as a

competency hearing, the defendant has the burden to prove incompetency by a preponderance of the

evidence.83 A person is incompetent to stand trial for a criminal offense if he does not have: (1)

sufficient present ability to consult with his lawyer with a reasonable degree of rational

understanding, or (2) a rational as well as factual understanding of the proceedings against him.84

This standard is required both by statute and by a defendant’s right to due process under the United

States Constitution.85

The parties presented conflicting expert testimony on whether appellant was incompetent to

stand trial. Dr. Ollie Seay, a psychologist hired by the defense, reviewed records, conducted a

clinical interview of appellant, and, because he believed appellant to be mentally retarded,

administered the Competency Assessment for Standing Trial for Defendants with Mental Retardation

(CAST-MR). Appellant’s scores on the CAST-MR were “just a little above persons found

incompetent to stand trial, still within that range of persons found incompetent to stand trial, but

below those found competent to stand trial.” Dr. Seay acknowledged that the test was just one tool

and not conclusive. He also said that labeling someone as intellectually disabled does not

automatically equate with being incompetent and that there has to be something specific that relates

82

See TEX . CODE CRIM . PROC. art. 46B.051.

83

Id. art. 46B.003(b).

84

TEX . CODE CRIM . PROC. art. 46B.003(a); Turner v. State, 422 S.W.3d 676, 689 (Tex.

Crim. App. 2013) (citing Dusky v. United States, 362 U.S. 402 (1960)).

85

Turner, 422 S.W.3d at 688-89.

PETETAN — 61

to the requirements for competency. Based on the totality of his work on appellant’s case, Dr. Seay

expressed the opinion that appellant had a limited capacity to understand the charges against him and

potential consequences and that appellant did not have sufficient capacity to consult with a lawyer.

Dr. Michael Pittman, a psychiatrist appointed by the Court, reviewed records and conducted

a clinical interview of appellant. Dr. Pittman concluded that appellant was not mentally retarded but

did seem to have a low intellect and that appellant was competent to stand trial.

B. Conversation about Replacement of Attorney

Stan Schwieger was appellant’s former defense attorney. In point of error one, appellant

contends that the trial court erred at the competency hearing in excluding Schwieger’s testimony

about a conversation with appellant about Schwieger being replaced as appellant’s attorney.

Appellant claims that the trial court improperly allowed the State to invoke appellant’s attorney-

client privilege.

1. Trial Proceedings

Schwieger was appointed to represent appellant when he was charged with murdering

Kimberly. But when appellant’s charge was upgraded to capital murder, Schwieger had to be

replaced because he was not on the list of attorneys eligible for appointment in death penalty cases.

At the competency hearing, the defense wanted Schwieger to testify about the difficulty he

had in explaining to appellant why Schwieger could no longer represent him. The State objected on

the basis of appellant’s attorney-client privilege:

Mr. Schwieger . . . is about to get into privileged matters that occurred between this

defendant and himself in violation of the attorney-client privilege, and I’m under no

understanding that that privilege has been waived, and, in fact, if he’s incompetent,

as the defense says, he’s not capable of even waiving that privilege.

PETETAN — 62

After some back-and-forth between the prosecutor and defense attorney, the trial court held a hearing

outside the presence of the jury.

The trial court began by saying, “Unless there is a knowing and intelligent waiver from this

defendant regarding any communication he has had with any counsel appointed to him, we’re not

even going to get close to this issue. You all better tell me why you think that you can go into these

matters.” After some arguments from the parties regarding the nature of the testimony to be elicited,

defense counsel proffered the following questions and answers that he wished to elicit:

Q. Stan, can you -- did you have any kind of difficulty at all communicating with

Carnell when you started to explain to him why you were having to withdraw from

representation?

A. Yes.

Q. Was he able to understand if you put it in common legal terms that you would

normally use with an average client?

A. No. I tried to explain that I was not qualified to handle a death penalty case and

that there were certain qualifications, just going through the general legalese of this,

and I was not getting through.

Q. Okay. In order to get through to him, what kind of terms did you have to use?

A. Well, I understand I was probably a bit more than blunt, but I basically told him

eventually that they were going to try to stick a spike in his arm and try to kill him

as a result of this offense.

Q. So very graphic terms before he could understand what you were saying?

A. Yes.

The State contended that the questioning involved communications protected by appellant’s attorney-

client privilege. Defense counsel responded that the State could not invoke appellant’s attorney-

client privilege and that, in any event, the content of communications were not being revealed.

PETETAN — 63

When the trial court expressed skepticism about the latter proposition, defense counsel proffered a

truncated version of questions and answers to elicit from Schwieger:

Q. Did you have difficulty communicating with him?

A. Yes.

Q. Were you finally able to get to him?

A. Yes.

Q. How?

A. By using very graphic terms.

The State contended that the truncated colloquy still revealed the content of communications. When

the trial court told defense counsel, “But you wanted the jury to hear exactly what was said,” defense

counsel responded, “I would have been satisfied with ‘graphic terms,’ Your Honor.”

The trial court then asked, “Well, how does that help you, anyway?” Defense counsel

responded, “Because it’s obvious to the jury then, that Mr. Petetan has difficulty communicating with

an attorney, which is the heart of why we’re here, isn’t it?” The trial court responded, “Unless you

talk to him in graphic terms. Then he gets it. Right?” Defense counsel responded that appellant

“got it that time.” But defense counsel contended that “this is one very little part of the whole

process, but it’s an example.” Responding that, “It’s not like a lay person came by and saw the

defendant beating his head against the wall,” the trial court sustained the State’s objection and

excluded the evidence.86

2. Analysis

86

The trial court also gave an instruction to disregard an initial question defense counsel had

asked Schwieger in the jury’s presence.

PETETAN — 64

We review a trial judge’s decision to admit or exclude evidence for abuse of discretion.87 A

trial judge’s decision is an abuse of discretion only when it falls outside the zone of reasonable

disagreement.88 An evidentiary ruling will be upheld if it is correct on any theory of law applicable

to the case.89 The first step in determining whether evidence is admissible is to determine whether

it is relevant.90 Evidence is relevant if it has any tendency to make a fact of consequence more or

less probable than it would be without the evidence.91

Schwieger’s testimony was offered by appellant for the purpose of showing that he was

incompetent to stand trial. But, while evidence that appellant was not able to grasp what counsel was

saying until counsel spoke in graphic language may have been relevant to show that appellant had

low intelligence, that evidence did not, without more, have any tendency to show that appellant was

incompetent. This is because the evidence did not indicate that appellant lacked sufficient present

ability to consult with his lawyer with a reasonable degree of rational understanding, nor did it

indicate that he lacked a rational as well as factual understanding of the proceedings against him.

Low intelligence is not, by itself, an indication of incompetency.92 The Supreme Court of

87

Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016).

88

Id. at 83.

89

Id. at 93.

90

Id. at 83.

91

TEX . R. EVID . 401; Henley, 493 S.W.3d at 83-84.

92

Alvarez v. State, 480 S.W.2d 646, 647 (Tex. Crim. App. 1972) (“[T]here is no competent

evidence in the record to show that the appellant was incompetent to stand trial or was insane at the

time of the commission of the offense. Testimony that one has a low I.Q. does not create a

presumption of insanity.”). See also United States v. Bernard, 708 F.3d 583, 593 (4th Cir. 2013)

(quoting Burket v. Angelone, 208 F.3d 172, 192 (4th Cir. 2000): “[N]either low intelligence, mental

PETETAN — 65

Alaska has observed that a defendant “must have some minimum ability . . . to understand the nature

of the proceedings sufficiently to participate in certain decisions about the conduct of his defense .

. . . But this does not mean that a defendant must possess any high degree of legal sophistication or

intellectual prowess . . . . Numerous persons are subjected to criminal prosecution, and properly so,

even though they are of relatively low intelligence or are suffering from significant emotional or

physical impairment.”93 And the Supreme Court of Idaho has observed that lack of sophistication

does not, by itself, render someone incompetent:

Many defendants lack the intelligence or the legal sophistication to participate

actively in the conduct of their defense. But enlarging the class of persons

deficiency, nor bizarre, volatile, and irrational behavior can be equated with mental incompetence

to stand trial.”); Lawrence v. Sec’y Fla. Dep’t of Corrections, 700 F.3d 464, 482 (11th Cir. 2012)

(quoting same sentence from Medina v. Singletary, 59 F.3d 1095, 1107 (11th Cir. 1995)); United

States v. Turner, 644 F.3d 713, 725 (8th Cir. 2011) (“Neither low intelligence, mental deficiency,

nor ‘bizarre, volatile, and irrational behavior’ compels a finding of incompetency.”); Eley v. Bagley,

604 F.3d 958, 966 (6th Cir. 2010) (“Nor does the penalty phase testimony about Eley’s limited

education and low intelligence suggest that Eley was incompetent.”); Nguyen v. Reynolds, 131 F.3d

1340, 1346 (10th Cir. 1997) (quoting Medina); Hodges v. State, 926 So. 2d 1060, 1069 (Ala. Crim.

App. 2005) (quoting Medina); Dolchok v. State, 639 P.2d 277, 293 n.34 (Alaska 1982) (quoting

Schade v. State, 512 P.2d 907, 914 (Alaska 1973)) (see infra); Newman v. State, 2014 Ark. 7, 25-26

(2014) (statement similar to Bernard); Wickham v. State, 124 So. 3d 841, 862 (Fla. 2013) (quoting

Medina); Tye v. State, 298 Ga. 474, 478, 782 S.E.2d 10, 14 (2016) (“[M]erely having a low IQ may

not render an individual incompetent to stand trial.”); State v. Bennett, 345 So. 2d 1129, 1136 (La.

1977) (on rehearing) (“Mere weakness of mentality or subnormal intelligence does not of itself

constitute legal insanity” that would render someone incompetent to stand trial.); Commonwealth

v. Chatman, 473 Mass. 840, 851, 46 N.E.3d 1010, 1021 (2016) (“One can both have a mental disease

or deficiency and still be competent to stand trial; the two are not mutually exclusive. The same is

true about a defendant with a low intelligence quotient.”) (citation omitted); State v. Lambert, 266

S.C. 574, 579, 225 S.E.2d 340, 342 (1976) (“While low intelligence or limited education may cause

an appellate court to review the defendant’s plea carefully, it does not necessarily preclude a valid

plea. The fact that appellant may have only a seventh grade education does not mean that he was

unable to understand the proceedings. A test for competency to plead guilty is no more stringent

than the test for competency to stand trial.”) (citations omitted); Dang v. Commonwealth, 287 Va.

132, 148, 172 S.E.2d 885,894 (2014) (quoting statement similar to Bernard).

93

Dolchok, 639 P.2d at 914 n.34 (quoting Schade, 512 P.2d at 914).

PETETAN — 66

considered incompetent to stand trial to include all such defendants would

fundamentally alter the administration of the criminal law. The standard of rational

understanding emphasized in Dusky must be taken to mean no more than that the

defendant be able to confer coherently with counsel and have some appreciation of

the significance of the proceeding and his involvement in it.94

To the extent that appellant’s allegedly low intelligence might combine with other factors to

make him incompetent to stand trial, that issue was explored by both the defense expert and the

Court’s expert at the competency hearing. Testimony that appellant was able to understand concepts

only after they were explained to him in simple or graphic language, however, does not have any

tendency to make more probable that he was incompetent to stand trial. Such evidence might, in

fact, make it more probable that appellant was competent, because it established that he did

understand what his attorney told him.95 The trial court did not err in failing to admit this evidence

for the purpose of supporting the conclusion that appellant was incompetent to stand trial.

Moreover, even if the trial court erred in failing to admit this evidence, we do not perceive

that appellant’s substantial rights were affected so as to constitute harm under the standard for non-

94

State v. Powers, 96 Idaho 833, 843, 537 P.2d 1369, 1379 (1975) (quoting Note,

Incompetency to Stand Trial, 81 HARV . L. REV . 454, 459 (1967)).

95

There has been no allegation that Schwieger’s testimony was relevant as evidence that

appellant was competent, and so we have no occasion to address whether the trial court would have

erred to exclude this evidence had it been offered for such a purpose. See Pierson v. State, 426

S.W.3d 763, 770 (Tex. Crim. App. 2014) (“[T]he proponent ordinarily has the burden of establishing

the admissibility of the proffered evidence.”). See also Cathleen C. Herasimchuck, The Relevancy

Revolution In Criminal Law: A Practical Tour through the Texas Rules of Criminal Evidence, 20

ST . MARY ’S L.J. 737, 749 n.32 (1989) (“The proponent of the evidence bears the burden of pointing

out the relevancy of the particular testimony.”); Tate v. Robbins & Meyers, Inc., 790 F.2d 10, (1st

Cir. 1986) (“A party may not claim error on appeal in the exclusion of evidence unless the district

court was told not only what the party intended to prove but also for what purpose.” Citing 1

Weinstein Evidence, § 103[03], at 103-33 (1985 ed.) and McCormick, Evidence § 51, at 112 (1972)).

PETETAN — 67

constitutional error.96 This Court will not overturn a criminal conviction for non-constitutional error

if, after examining the record as a whole, the court has fair assurance that the error did not influence

the jury, or influenced the jury only slightly.97 Although whether appellant was mentally retarded

was contested, both experts agreed that appellant was at least a person of low intellect. Evidence that

he needed extra help to understand a concept but was ultimately able to do so is not the sort of

evidence that would have had more than a slight influence on the jury. Even under the more

stringent harm standard for constitutional errors, we are confident beyond a reasonable doubt98 that

the excluded evidence would not have moved the jury from a state of non-persuasion to persuasion

regarding the issue of competency.99 Point of error one is overruled.100

C. Fate of Malingerers

In point of error two, appellant contends that the trial court erred at the competency hearing

in excluding evidence “concerning the legal fate of those who obtain an incompetency determination

through malingering.” Appellant wanted to call Schwieger to testify about procedures at Vernon

State Hospital for persons who are discovered to have feigned incompetency. When the prosecutor

asked how the evidence was “relevant to whether this individual is competent to stand trial,” defense

96

See TEX . R. APP. P. 44.2(b)

97

Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011).

98

See TEX . R. APP. P. 44.2(a).

99

See Snowden v. State, 353 S.W.3d 815, 825 (Tex. Crim. App. 2010) (error was harmless

under the constitutional standard when error would not have moved jury from a state of non-

persuasion to a state of persuasion on any material issue in the case).

100

Due to our conclusion that the evidence was not relevant on the ground it was offered

or that its exclusion, if error, was harmless, we need not address appellant’s claim that the trial court

was mistaken to exclude the evidence on the basis of the attorney-client privilege.

PETETAN — 68

counsel responded that the evidence would address “the issue that was raised by their witness, Dr.

Pittman, which inferred that he was malingering.” The prosecutor then objected that Schwieger was

not a mental health expert.

Then defense counsel proffered the following testimony:

Q. Stanley, have you had clients that have been or are you aware of clients that have

gone to Vernon State Hospital because they were declared incompetent and then

learned -- it was later learned at Vernon that they had been malingering?

A. Yes.

Q. And because of that, what happened as a result of their having been discovered?

A. The determination is made by the staff that they are malingering and therefore

competent to stand trial.

Q. And then they are sent back here as having been declared competent.

A. They are sent back and declared competent to stand trial.

The prosecutor questioned the relevance of this testimony, saying, “[I]t doesn’t mater what has

happened in some of his cases. We don’t know whether those cases are similar in nature to this case,

[or] completely different in nature.” The trial court sustained the prosecutor’s objection and

excluded the evidence.

Appellant cites no authority for the proposition that this type of evidence is admissible. He

claims only that it is relevant to rebut the prosecution’s claim that appellant was feigning

incompetency. But this evidence did not have any tendency to show that appellant was not

malingering. Instead, the apparent purpose of this evidence was to encourage a jury to abdicate its

responsibility to determine whether appellant was malingering on the ground that experts could later

make that determination after appellant has been committed to a mental institution.

PETETAN — 69

In the death penalty context, we have addressed a claim that the jury was entitled to receive

information that might make it feel less responsible for the decision it would make. In Davis v.

State, the defendant claimed that the jury should have been informed of the effect of a failure to

agree on an answer to one of the punishment special issues.101 We held that providing the jury with

any information that may be interpreted as relieving it of the responsibility to answer the special

issues “is considered an infraction upon the jury’s fact finding function.”102 Informing the jury of

the effect of its failure to agree would have been “an open invitation for the jury to avoid its

responsibility and to disagree.”103 We also saw no relevance in informing the jurors of the result of

their failure to agree. We said that, while the information was a correct statement of law, “it

concern[ed] a procedural matter and [was] not the proper subject of an instruction by the trial court

or comment upon by the litigants.”104

The present situation is analogous. The evidence appellant sought to admit would have

encouraged the jury to delegate its responsibility to determine whether appellant was feigning

incompetency because, if he was, the experts would figure it out later. The fact that a malingering

defendant would eventually be found out, however, has already been taken into account by the

Supreme Court when it determined what burden of proof a state may require the defendant to

101

782 S.W.2d 211, 221-22 (Tex. Crim. App. 1989).

102

Id.

103

Id. (quoting Justus v. Commonwealth, 220 Va. 971, 979, 266 S.E.2d 87, 92 (Va.

1980)).

104

Id. at 222.

PETETAN — 70

shoulder in proving incompetency.105 We find the reasoning in Davis to be applicable here and hold

that it is not appropriate to encourage a jury to avoid its responsibility to determine whether a

defendant is in fact incompetent by informing the jury of the effect of an erroneous incompetency

finding. Point of error two is overruled.

IV. JURY SELECTION

A. General Background and Standard of Review

Points of error three through five claim that the trial court erred in denying defense challenges

for cause during jury selection for the capital murder trial. Certain prerequisites for showing harm

must be established before we will consider such claims, but appellant has satisfied those

prerequisites here,106 so we address whether the trial court erred in denying the challenges.

A prospective juror is challengeable for cause if he has a bias or prejudice against the

defendant or against the law upon which the defense is entitled to rely.107 To establish a challenge

105

See Cooper v. Oklahoma, 517 U.S. 348, 365-67 (1996) (The “modest” effect of a

conclusion that the defendant is incompetent when he is in fact malingering (because he will be

found out) is why the defendant cannot be required to satisfy a heavier burden of proof of than

preponderance of the evidence.).

106

See Nava v. State, 415 S.W.3d 289, 305 (Tex. Crim. App. 2013) (“[T]he defendant must

(1) use a peremptory strike against the prospective juror upon whom the challenge for cause had been

made, (2) exhaust his peremptory strikes, and (3) request an additional peremptory strike to use upon

a specifically identified objectionable prospective juror, who, because the extra strike was denied,

actually sits on the jury.”). And because appellant asked for and was denied any additional

peremptory challenges, he is not required to show more than one meritorious challenge for cause for

the purpose of establishing harm. Cf. Busby v. State, 253 S.W.3d 661, 673 n.12 (Tex. Crim. App.

2008) (“We note that, assuming the conditions for establishing harm are met, appellant would have

to show that the trial court erroneously denied his challenges for cause to two of the three

veniremembers (Chang, Hedger, and Mahan), since appellant received an extra peremptory strike.”).

107

TEX . CODE CRIM . PROC. art. 35.16(a)(9) & (c)(2); Buntion v. State, 482 S.W.3d 58, 83-84

(Tex. Crim. App. 2016).

PETETAN — 71

for cause on one of these bases, the proponent must show that the prospective juror understood the

requirements of the law and could not overcome his bias or prejudice well enough to follow the

law.108 Before that can be shown, the law must be explained to the prospective juror, and he must

be asked whether he can follow the law, regardless of his personal views.109

On appeal, we review the trial court’s decision to overrule a challenge for cause for abuse

of discretion.110 Due to trial court’s ability to observe demeanor and listen to tone of voice, we afford

great deference to the trial court’s decision, particularly when the prospective juror’s answers are

vacillating, unclear, or contradictory.111

B. Bias For Death Penalty and Against Life Without Parole

In points of error three and five, appellant complains that venire members Hester and Fore

were challengeable for cause because they “had a bias against a life sentence without possibility of

parole and a bias in favor of a sentence of death.” A juror’s views may not be such that he would

automatically vote for the death penalty in every case.112 Instead, a juror must be able to answer the

special issues according to the evidence and the law.113 A juror need not agree with the law as long

as the juror’s personal views do not substantially interfere with his ability to abide by his oath and

108

Buntion, 482 S.W.3d at 84.

109

Id.

110

Id.

111

Id.

112

Morgan v. Illinois, 504 U.S. 719, 729 (1992) (The federal constitution requires a juror

to be excused for cause if he would “automatically vote for the death penalty in every case.”).

113

Rayford v. State, 125 S.W.3d 521, 532 (Tex. Crim. App. 2003).

PETETAN — 72

follow the law.114

1. Hester

In his written jury questionnaire, Hester stated, “No life without parole. I see no reason to

keep someone there their entire life.” Confronting him with those words, the prosecutor

subsequently explored that subject with Hester in jury selection:

Q. But basically what you’re telling us today is, “I can listen to the evidence and then

decide or make that decision”?

A. I believe I can, yes.

***

Q. You had mentioned in your questionnaire that life without parole is never

sufficient, but after explaining these questions [the special issues] to you and going

over the process, you’re saying that you can reserve judgment on anything until you

hear all of the evidence?

A. Yeah, I think so. I – my personal opinion being what it is, I still think that the way

the Court lays it out that I have to follow exactly what is there, not that I necessarily

like it, but I have to follow and answer the questions.

Q. And you could follow the law –

A. Yes, I believe I can.

Q. – and the Court’s instructions.

A. Yes.

Q. And you’re not leaning one way or another; you can be neutral until you hear all

the evidence.

A. I believe I can, yes.

THE COURT: Mr. Hester, if you thought the evidence justified a sentence of life

without parole, could you assess a sentence of life without parole?

114

Id.

PETETAN — 73

A. I believe I can. It would go against my grain, but I believe I could, because that’s

what the law requires.

***

Q. And in the event that we didn’t carry our burden of proof or you didn’t feel that

he was a future danger, that you could answer the question no and give him a

sentence of life without parole?

A. Yes.

***

Q. And if you felt like he, you know, wasn’t a party to any incident, that you could

answer the question no. Is that correct?

A. Yes.

***

Q. And if you felt that they [the defense] did meet their burden of proof [on the

mental retardation issue], you could answer that question yes, knowing that he would

get a life without parole sentence.

A. Yes.

***

Q. And then on the last question, the mitigation question, that if you felt – whether

taking into consideration all of the evidence and all of the stuff that we talked about

on Question Number 4, if you felt that the answer to that question was yes, there was

sufficient mitigating circumstances or there was sufficient mitigating circumstance,

that you could answer the question yes, knowing that it would be life without parole?

A. Yes.

Defense counsel also explored the subject with Hester:

Q. And if the truth is, “Well, I know me, and I know that my bias is, if somebody has

done that, they ought to die and I ought not to have to pay for them as a taxpayer, if

that’s how you feel, this is the time now that we need to know that.

A. Okay. The honest truth is, yes, that’s the way I feel. Now, whether that’s the way

PETETAN — 74

– I mean, I still believe – and I’m not going to – you know that I have time constraint

problems –

Q. Sure.

A. – and you know that this is not fun, and you know that most people don’t want to

be on one of these juries.

Q. Right?

A. So I’m fixing to say something that I really believe, even though I don’t want to

say it. While life on parole, I don’t necessarily agree with it, if I’m presented with

a question, if I’m presented with the evidence, I believe I have a moral obligation to

do it right.

***

A. But if I was to be on the jury, I have a moral obligation to this country, to the

people of this country, and to my God, to answer the questions as I see the answer.

***

Q. [Y]ou were asked – the question was, “Do you think life in prison without the

possibility of parole can ever be a sufficient punishment for somebody who, without

justification, kills another person,” and you put, “No,” and you said, “I see no reason

to keep a person there their entire life.”

A. I disagree with life without parole. I just do.

Q. Okay.

A. That doesn’t mean that I have a choice when it comes down to it.

Q. Well, actually it does mean that, and the reason I say that is that if a person

believes that they are biased toward a death sentence, they ought not to serve on a

jury. Does that make sense?

A. That’s – that makes sense. I mean, that’s fine. That’s your opinion. I mean, like

I said earlier, if I wanted out, that would have been my perfect out.

Q. Sure.

A. Unfortunately, I’m not sitting here saying that.

PETETAN — 75

Q. Okay. What I hear you saying, then, is, “If I’m on the jury, in spite of the fact that

I might feel like that, I’m going to answer the questions the way the law requires.

[PROSECUTOR]: Your Honor, that’s not what he said.

A. I’m going to try.

THE COURT: I believe this man has said that he’s going to follow the law and

answer the questions the way the evidence leads him.

In challenging Hester for cause, defense counsel stated, “I realize he didn’t – he answered the

questions saying that he could follow the law and that he would set everything aside, but it was clear

and obvious throughout his questioning that – he said repeatedly that he has got a bias, that he has

got a leaning towards the death penalty.” Later, defense counsel stated, “I understand that he said

he could follow the law, but I think it’s pretty clear that he may think that, but he’s going to have an

awfully hard time doing that.”

The trial court did not abuse its discretion in denying the challenge for cause. Even defense

counsel recognized that Hester said that he could follow the law, and the trial court was well within

its discretion to belie

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