# Ex Parte Modden

> Court of Criminal Appeals of Texas · April 21, 2004 · 147 S.W.3d 293

URL: https://www.frixlaw.com/law-library/cases/9596233

## Case

- **Full name:** Ex Parte Willie MacK MODDEN, Applicant
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** April 21, 2004
- **Citations:** 147 S.W.3d 293; 2004 WL 1462228
- **Precedential status:** Published
- **Opinion:** Dissent by Hervey
- **Judges:** Price, Hervey, Meyers, Womack, Johnson, Holcomb, Cochran, Keller, Hekvey, Keasler
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9596233

## How later opinions describe it (automated extraction)

- noting "the 70-75 score that generally indicates subaverage general intellectual functioning”

## Opinion text

HERVEY, J.,
dissenting, in which KEASLER, J., joined.
I respectfully dissent. The Court commutes applicant’s death sentence to a life sentence based upon its decision that the record supports a finding that applicant is mentally retarded. However, after a careful consideration of all of the evidence, I would hold that the record does not support this finding.
In Atkins v. Virginia, the United States Supreme Court decided that the Eighth Amendment’s “evolving standards of decency that mark the progress of a maturing society” prohibit executing mentally retarded people. See Atkins v. Virginia, 536 U.S. 304 , 122 S.Ct. 2242, 2247-52 , 153 L.Ed.2d 335 (2002). Atkins left to the states “the task of developing appropriate ways” to determine “which offenders are in fact retarded.” See Atkins, 122 S.Ct. at 2250 .
In response to this, this Court in Ex parte Briseno adopted the American Association on Mental Retardation (AAMR) criteria, which are codified in Tex. Health & Safety Code § 591.003(13), and some other evidentiary factors in addressing Atkins mental retardation claims. See Ex parte Briseno, 135 S.W.3d 1, 6, 8 (Tex.Cr.App., 2004) (mental retardation means “significant subaverage general intellectual functioning that is concurrent with deficits in adaptive behavior and originates during the developmental period”). 1 We also stat *300 ed in Briseno that “the ultimate issue of whether [a] person is, in fact, mentally retarded for purposes of the Eighth Amendment ban on excessive punishment is one for the finder of fact, based upon all of the evidence and determinations of credibility.” See Briseno, op. at 8.
This latter statement, however, does not quite apply to this habeas proceeding for several reasons. The record in this habeas proceeding reflects that, in exchange for applicant’s guilty plea to several criminal offenses, the State agreed to a commutation of applicant’s death sentence to a life sentence contingent on acceptance by the habeas court and this Court, of the parties’ agreed finding and agreed evidence that applicant is mentally retarded. The State reserved “the right to oppose a finding of mental retardation” if this agreement cannot be fulfilled. In relevant part, this agreement, in the form of a letter from the State to applicant’s lawyer, states:
It is anticipated, understood, and expected that once your client [applicant] has plead guilty to the above five (5) offenses, and the same day and at the same proceeding in which your client pleads, and only in the event that your client pleads to the above, the state will agree and stipulate that your client is mentally retarded and that the state and yourself will present the [ha-beas court] with Agreed Findings of Fact and Conclusions of Law, along with agreed evidence of your client’s mental retardation to that end. The state will further agree and request that your client’s sentence of death be commuted to life. The parties hereto further understand and stipulate that this agreement is contingent upon [the habeas court’s] acceptance of Agreed Findings of Fact and Conclusions of Law and the Court of Criminal Appeals’ adoption of Findings of Fact and Conclusions of Law that find [applicant] to be mentally retarded.
In the event that [applicant] does not plead guilty to the above referenced offenses or in the event [the habeas court] or the Court of Criminal Appeals does not accept or adopt the Agreed Findings of Fact and Conclusions of Law, the state reserves the right to oppose a finding of mental retardation.
(Emphasis added).
The agreed evidence between the State and applicant consists of Kartye’s 1985, Brownlee’s 1988, and Clark’s 1992 psychological evaluations of applicant which are discussed in the Court’s opinion. See Ex parte Modden, 147 S.W.3d 293, 296-97 (Tex.Cr.App. No. 74,715, delivered this date). Without hearing any live testimony, the habeas court apparently accepted these psychological evaluations and signed off on the parties’ agreed finding that applicant is mentally retarded. This finding tracks the AAMR and the Section 591.003(13) definitions of mental retardation. See Briseno, op. at 6, 8. But, none of these psychological evaluations state that they are based on the AAMR and the Section 591.003(13) definitions of mental retardation. And, neither Kartye, Brown-lee nor Clark have ever testified that their psychological evaluations and opinions are based on the AAMR and the Section *301 591.003(13) definitions of mental retardation.
The agreed finding in this habeas proceeding that applicant is mentally retarded also is not the result of “determinations of credibility’ at an adversarial live hearing meant to test the truth of applicant’s mental retardation claim. More important, the parties’ agreed evidence does not take into account all of the evidence pertinent to applicant’s claim of mental retardation from applicant's 1985 trial and his 1992 retrial. See Briseno, at 8 (mental retardation determination must be based upon all of the evidence). For example, the parties litigated applicant’s mental retardation claim in an adversarial setting before a jury at applicant’s 1992 retrial where the State presented its own psychological expert who testified that applicant is not mentally retarded. 2 It is fairly obvious from examining the 1992 record from applicant’s 1992 retrial that the jury rejected applicant’s claim that he is mentally retarded. 3 See Ex parte Taylor, 101 S.W.3d 434, 440-45 (Tex.Cr.App.2002) (determining from an examination of the record what a jury found by a general not guilty verdict). Briseno, therefore, does not require this Court to accept the agreed finding that applicant is mentally retarded based on Kartye’s 1985, Brownlee’s 1988, and Clark’s 1992 psychological evaluations of applicant. This is not to say that these evaluations are irrelevant, but they should be considered with all of the other relevant evidence that completes the inquiry into applicant’s claim of mental retardation. 4
Overwhelming evidence was presented at applicant’s 1985 and 1992 trials that applicant meets very few, if any, of the Briseno factors and that applicant is nothing like Steinbeck’s childlike Lennie. 5 See Briseno, at 6, 8. This evidence indicates that applicant has been a violent criminal for most of his adult life. Though the evidence does indicate that applicant may have limited intellectual capabilities, it also indicates that no one considered applicant to be mentally retarded while he was growing up and that upon reaching adulthood applicant has been able to take care of himself both in and out of prison where (even before he committed this capital offense in 1984) he spent a good part of his adult life. The thrust of his mental deficiency evidence at both his 1985 and 1992 trials is that applicant’s mental deficiencies cause him to have poor impulse control and to be influenced by others for their own means, and that all of this is exacerbated by applicant’s frequent use of alcohol. But the evidence shows that many of the criminal offenses that applicant has committed during his life were planned and carried out all by himself.
The evidence also indicates that applicant might even possess some leadership qualities. For example, a September 6, 1982, prison disciplinary report indicates that applicant was placed in Administrá- *302 tive Segregation for inciting other inmates not to perform their work duties.
On September 6, 1982, at approximately 3:15 P.M., I noticed that the trays in both the North and South Dishrooms were stacking up and not being washed. I then entered the dishroom and found that all of the inmates assigned to the Dishroom were refusing to wash any of the trays. These inmates were [applicant and five others]. These inmates stated that they were refusing to wash any dishes because they could not get any ice water in the Dishroom. [Applicant] was placed in Administrative Segregation in order to prevent the inciting of further work stoppages and to prevent the disruption of unit procedures.
The evidence also indicates that applicant is capable of responding “coherently, rationally and on point to oral or written questions.” See Briseno, op. at 8. For example, an October 5, 1982, prison disciplinary report states:
On October 5, 1982, at approximately 2:20 P.M. while A/L work force was cutting weeds, [applicant] was overheard to say “Fuck the boss and old motor mouth too.” Upon questioning [applicant] he again stated “Fuck you and the Captain because you’ll [sic] ain’t going to fuck with me.” I told [applicant] to go to work and he replied “If I get a case, I am not going to work and I am going to sue your ass.[”] [Applicant] was placed in adminsstrative [sic] segregation in order to prevent a disruption of unit procedures.
The record further indicates that applicant presented no evidence at his 1985 trial that he was mentally retarded. Kar-tye’s 1985 psychological evaluation, which was admitted into evidence at that trial, does not conclude that applicant is “mildly mentally retarded.” 6 And, Kartye never testified at applicant’s 1985 trial that applicant is “mildly mentally retarded.” Kar-tye never even used the term “mental retardation” at applicant’s 1985 trial. Kar-tye testified that applicant’s “limited intellectual resources” caused him to have “impulse control problems” but that applicant was also capable of acting deliberately. 7 It is also significant that applicant filed a coherent pro se brief on direct appeal from his 1985 capital murder conviction. 8
Applicant did claim that he was mentally retarded at his 1992 retrial after the United States Supreme Court had decided Penry v. Lynaugh which held that the then-existing Texas special issues framework failed to provide Penry’s jury with a vehicle to give mitigating effect to relevant mitigating evidence of Penry’s severe mental retardation. 9 Two psychological evaluations of applicant (Brownlee’s 1988 evaluation and Clark’s 1992 evaluation), concluding for the first time that applicant is “mildly mentally retarded,” 10 were ad *303 mitted into evidence at applicant’s 1992 retrial. Before this no one had ever previously noticed applicant’s mental retardation.
Brownlee did not testify at applicant’s 1992 retrial. According to Brownlee’s 1988 evaluation, applicant, unlike Steinbeck’s Lennie, enjoys torturing animals. This evaluation, among other things, states:
[Applicant] said that he tortured animals often, either by burning them or hanging them. Upon exploration of the feelings associated with that, he had no affective statement, but he said he did like to see them suffer and squirm.
Clark testified at applicant’s 1992 retrial. Among other things, she testified that she would place applicant “somewhere as far as functioning in the lower three to five percent of the population,” meaning apparently that, according to Clark, three to five percent of the population is “mildly mentally retarded” which interestingly is about three to five times more than that claimed by the defense expert in Atkins. See Atkins, 122 S.Ct. at 2245 n. 5 (forensic defense psychologist testified that mental retardation is “a relatively rare thing” affecting “about one percent of the population”). The State commented on this during closing jury arguments:
Now, let’s talk about psychologists a little bit. Dr. Frankie Clark came up here, and I think she testified as to her honest opinion. She says he’s retarded. She says about 50 people out of 1,000 would be about in the same boat as the Defendant. So if there are 30,000 people in our town, about 1,500 are in the same boat as Willie Mack Modden.
The State presented its own psychological expert at applicant’s 1992 retrial. This is the only psychological expert to testify on the issue of applicant’s mental retardation based on the AAMR and the Section 591.003(13) definitions of mental retardation. Mostly through the use of supported-by-the-evidence hypothetical, the State’s psychological expert testified at applicant’s 1992 retrial that applicant is not mentally retarded under the AAMR and the Section 591.003(13) definitions of mental retardation.
Q. Okay. Now, Dr. Quijano, you know that one of the things in controversy in this trial is the issue of mental retardation. Could you tell the jury, please, sir, what is mental retardation?
A. Mental retardation is a condition of an individual that has to meet three criteria, and all three must be met before the label of mental retardation can be legitimately given.
Number 1, the individual must have a subaverage or below-average intellectual functioning as measured by an individually administered intellectual test, intelligence test.
Number 2, which is very important, and that is, the individual must have an adaptive daily functioning skill that’s below average and that would require constant supervision.
Number 3, that these two deficits, the intellectual as well as the adaptive deficits, must occur before age 18 to rule out victims of stroke and accidents with brain trauma.
Q. Okay. Now, doctor, you mentioned functioning skills and adaptive behavior. What sort of things are you talking about?
A. By adaptive skills, we mean the skills needed by an individual to live on a day-to-day basis. And those are-the questions asked are as follows:
Are they able to take care of their own personal hygiene? Can they eat without assistance? Can they recognize hunger? Can they procure food for themselves? *304 Can they cook simple meals? Can they recognize danger in that you don’t cross the street when a big truck is coming your way? Can they go to a store and negotiate a purchase? Can they know if they’re being cheated by somebody else? Can they take medicine when they are told to or when they need to?
All of these things are considered adaptive skills, or some people call them daily skills of daily living.
Q. Okay. Dr. Quijano, let me ask you this. Assume, please, sir, that the person-the Defendant that we’re concerned with here today, Willie Mack Modden-assume that there is evidence that the Defendant is able to play dominoes, to keep score; assume that he is able to play chess. Assume that he is able to play basketball.
Assume that he is able to order materials and construct jewelry boxes out of matchsticks with designs. And assume that he is able to negotiate to sell those to people. Assume that he says, hey, buy this for your girl friend; I know you’ve got a girl friend or somebody you want to give this to; hey, will you give me $15; you won’t do that; will you give me 12.
Assume, doctor, that we’re dealing with an individual who, by himself, stashed a gun and kept it for some period of time and until he needed it; then he went and got the gun, and he went and hid in some bushes outside of a convenience store. And he waited until near closing time, and he waited until the lady took the trash out. And he pulled the gun on her, and he made her go back in the store. And he made her give him the money. And then assume, doctor, that he made the woman pull her clothes off so that she would have to re-dress to avoid embarrassment before she summoned help to give him more time to get away.
Assume, doctor, that this person, when they were incarcerated in TDC, learned the rules and regulations of the Texas Department of Corrections. And assume that if a guard did something that he didn’t approve of or that he felt was against the rules, that he would summon another guard. And if that guard was not able to answer his question, assume, doctor, that he would summon the supervisor, such as the sergeant, and that he would verbalize his complaint and say: this is against the rules; that man can’t do that to me.
And assume, doctor, that this person were incarcerated in jail. And assume that they decided that they wanted to escape. And assume that they got with other inmates, and assume that they battered a hole in the wall. And assume that the Defendant said, I’m going to get out, and I’m going to burn down the courthouse so there won’t be records on me. And assume, doctor, that this person said, I’m then going to go kill the people that helped put me in the penitentiary in the first place.[ 11 ]
And assume, doctor, that tins person were [sic] offended by somebody. Assume somebody hit this person when they were in the penitentiary. And assume that they procured razor blades, and assume that they melted them into the handle of a toothbrush. And assume that they waited until the next day when the offending person was in the shower and had their face lathered up. And assume that this person then went in and cut that person’s throat.
*305 Doctor, are these things consistent with a mentally retarded person?
A. No, they are not.
Q. Can you tell me why they’re not?
A. The hallmark of a mentally retarded person is simplicity of thinking; that they can maybe handle one thing at a time, maybe two. The mentally retarded people used to be called the simpleminded.
These behaviors that you have described are very complex behaviors. They require multiple steps in the mind. They require that you-that you keep four or five, six different things in mind and then manipulate them intellectually and mentally. Those are complex acts. The planning, the forethought, the anticipation of consequences, the thinking on the feet; all of those are complex mental activities that a true mentally retarded person, by definition, cannot do.[ 12 ]
This expert also provided several explanations on why applicant’s IQ test scores contained in his penitentiary records ranged from 57 to 83 before he got into this current trouble.
Q. Okay. Now, in this record where it shows the Defendant’s age of 18, which is marked as State’s Exhibit 26, it shows an IQ score of 57?
A. That’s correct.
Q. Okay. Now, in this record, which is State’s Exhibit Number 28, and it shows the Defendant’s age as 26. What IQ score does it show?
A. It shows 83.
Q. Now, I will-these records are here, doctor, if you need to look at them further to explain that; but I’d like to discuss that with the jury and-how do you account or can you account, sir, for the wide range in variations of IQ scores in the 57 range all the way up to 83. What’s the deal?
A. Okay. The-given this information, if I were asked to account for that-assuming that the tests were administered properly, and the only thing has changed would be the motivation of the person taking the test.
If you are tested before your trial, it is to your best interests to test down. If you are tested after the trial, once you’re in prison where you may be wanting a better job assignment, where you may be wanting to go to school, or where you may be wanting a more free living arrangement-the better you are off, the better your chances are because if you are retarded in a prison, then your movements are limited. You’re supervised more. You cannot get good jobs and so on and so forth.
So one possibility is that you are now-you are no longer playing to the problem of facing charges; that is all behind you, and you are testing better and maybe more accurately. However, there are prisoners who would say, I tested down, because these people may want to be assigned to Beto I, which is closer to their home, and that is where the mentally retarded program is; and you test down.
Or you may want to have other programs available for the mentally retarded that that is not available for general population. And people do that all the time. They get to the MR program; and they say, well, this is not what I expected; give me another test. And they test higher, and we kick them out.
Q. Dr. Quijano, let me ask you this. I believe that the test where the IQ score is 83 shows an interview on September the 10 th, 1974. Now, would there be *306 any change-is there any reason for a person to change their attitude toward testing between 1974 and now in the penitentiary system to your knowledge?
A. Yes.
Q. Could you explain that to the jury, please, sir?
A. Before 1984, when I went back to the system to implement the federal court orders, there was no specialized program for the mentally retarded, and there was no special arrangement for them. You were essentially treated, by the system the way the system thought mentally retarded people should be treated. And the motivation at that time was to test up because you have to compete with other inmates for better jobs. These days there is less motivation for that.
The motivation now, depending on what you want, is to test down because you have a richer environment in a specialized program. Our mentally retarded program is a very expensive program because you have case managers and music therapy and occupational therapy. You have your own gymnasium. • You have your own schools. It’s a lot richer program. You have basic janitorial skills training and job programs. So the motivation has shifted in the prison, depending on what you want to accomplish.
This expert also testified that a person cannot fake a higher IQ score “because you either know the answer or you don’t.”
Q. I’ve got a couple of things, Dr. Qui-jano, that I want you to look at. I’m going to try to be brief on this. This is Dr. Clark’s report, I believe. And we’ve got Dr. Kartye’s test here. And this, I believe, is a psychiatric evaluation by Dr. Brownlee. Okay?
First, I want to talk about the two tests which have scores on them. Now, doctor, I’ll ask you to-well, there’s a date on this. We don’t have to assume anything. Examined 1-26-1985; examination, 7-11-92. Now, you mentioned performance IQ. And I believe that Dr. Kartye’s report reflects a performance IQ of 74, and Dr. Clark’s report reflects a performance IQ of 65. Is this, the more recent test, lower?
A. Yes.
Q. What-how do you square that up?
A. Well, two possibilities. The most recent test is more suspect than the previous test for two reasons. Number one, a person cannot fake correct answers because, if you give the correct answers, you obviously know the correct answers. So it is-if you score high-if you’re asked questions, and you gave the answers, you obviously know at this level. It is much easier to say, I don’t know.
It’s easier to fake lower scores than to fake higher scores. You cannot fake higher scores because you either know the answer or you don’t. You can fake a lower score by saying, I don’t know, or if you don’t have enough motivation to complete the test, or if you’re not trying too hard.
The second possibility in which our profession is warned against is testing when one is in trouble. You must always suspect what we call malingering; that is, an exaggeration of symptoms when one is in trouble because of our human nature to protect ourselves. And so these scores can be explained by those two possibilities. '
The State’s expert also testified that his opinion about applicant’s mental capacity was based in part on applicant's prison records before he got into this current trouble and that any testing of applicant *307 after he got into this trouble would be of no benefit.
Q. Okay. Do you have sufficient information at your disposal to form an opinion about him and his mental capacity?
A. Yes, I do.
Q. Okay. And you have how many years’ worth of penitentiary records?
A. The Defendant’s records?
Q. Yes, sir.
A. Not mine. Okay. Four tenures in TDC.
Q. Okay.
A. I don’t know the exact number of years.
Q. And, doctor, do you have at your disposal the test results of other psychologists?
A. Yes, I do.
Q. Would it be of benefit to you to be able to test the Defendant?
A. At this late stage it would not be of benefit to me or anybody to test him because of the motivation factor. A person that’s in trouble-and the answers are now questionable, and we can repeat this over and over again, and we’ll get different test results, depending on what the situation is.
The best evidence that applicant is not mentally retarded came from applicant himself when he testified at his 1985 trial. 13 Applicant testified at the punishment phase of his 1985 trial how he robbed a convenience store clerk and stabbed her 16 times in the face and neck while she begged for her life and implored applicant to consider her three children. Applicant later, matter-of-factly, described to several friends how he murdered the sobbing and terrified victim. Applicant testified that he decided to kill the victim before he actually killed her (meaning that he “deliberately” killed her). He testified that he killed the victim because he did not want to leave any witnesses. Applicant’s testimony from the punishment phase of this trial also indicates that after the crime applicant was smart enough to destroy evidence and to “artfully dodge” police questioning about his involvement in the crime. 14 Applicant also testified about his plan to take a hostage and escape from the county jail.
*308 The State’s psychological expert testified at applicant’s 1992 retrial that, in forming opinions about a person’s mental ability, it is also important “to look at what the person actually does” and not to make judgments “about a person’s character on the basis of test results only.”
Q. Doctor, is it possible to look at what someone actually does and use that as a basis for an opinion as to that person’s mental ability or that person’s future behavior, just as you could use test results?
A. Well, it’s more important to look at what the person actually does. And it is not professional or ethical to make a judgment about a person’s character on the basis of test results only.
Responding to Kartye’s psychological testimony, the State argued during closing jury arguments at applicant’s 1985 trial:
Then you have to go toward the glimmer of hope that you can get somebody sidetracked on some collateral issue. As it turned out, it was totally insignificant in answering those two questions. And that is when in desperation, Joe Kartye was called to testify. You know, Joe Karty [sic]. I like Joe Karty [sic]. He’s a likeable type person. I didn’t agree with him on some things. Some things I don’t disagree with him on.
For instance, the report that you have shows that [applicant] has a low I.Q. and he is easy led [sic] and he strikes out and he acts impulsively. And I believe a lot of that. I don’t think that he is the most intelligent person in the world, but I think he is smarter than Mr. Kartye gives him credit for being.
And you saw him on the witness stand. On direct examination and cross examination and on many occasions he corrected what his attorney said. He would back up and re-phrase what I said or .whatever the situation was. This man is very alert as to what was going on, and he knows the consequences of what he was doing, and that is why we are here today on the issues of deliberate and probability.
Considered in its entirety, the record does not support the habeas court’s finding that applicant is mentally retarded. See Briseno, op. at 12 (this Court’s review of a trial court’s findings of fact and conclusions of law on a mental retardation claim “remains the same as it has always been on habeas corpus applications,” and this Court may reject the habeas court’s findings that the record does not support). The evidence overwhelmingly supports a finding that applicant is not mentally retarded, and the contrary opinions of applicant’s psychological experts can politely be described as “incredulous as a matter of law.” See Atkins, 122 S.Ct. at 2246 (noting that the dissenters in the Virginia Supreme Court rejected the state’s expert opinion that Atkins possesses average intelligence as “incredulous as a matter of law”).
The Court’s opinion makes much of the habeas court’s pre-Penry finding from a 1988 habeas proceeding that applicant is “mentally retarded” 15 and of this Court’s 1992 opinion from that proceeding deciding that applicant’s “evidence of mental retardation” entitled him to a new trial under Penry, 16 The record does indeed reflect that in 1988 applicant filed a habeas corpus application claiming, among many other things, that the execution of a mentally retarded person would violate the Eighth Amendment and that this very issue was then pending in the United States Su *309 preme Court in Penry. The record also reflects that the habeas court conducted a hearing on this habeas corpus application in November 1988. At this hearing Kar-tye testified on behalf of the State. Kar-tye actually used the term and, testified for the first time that applicant was suffering from, “mild mental retardation.”
Q. [STATE]: Dr. Kartye, you’re the same Dr. Kartye who previously examined [applicant], were you not?
A. [KARTYE]: Yes.
Q. According to your examination, did you make a determination as to his level of intelligence?
A. Yes, I did.
Q. And do you recall what that was?
A. Mild mental retardation.
Kartye also testified on direct examination that applicant was capable of acting “deliberately.”
Q. [STATE]: From having examined [applicant], Doctor, I would ask if whether or not you feel he could ever act deliberately?
A. [KARTYE]: Yes, I feel that he can.
On cross-examination, Kartye testified that applicant could adequately function outside an institutional environment but not without endangering himself or others.
Q. [DEFENSE]: Dr. Kartye, in the report that you provided during the trial of this case in 1985, you stated and I quote, “It would appear that [applicant] lacks cognitive and behavioral controls necessary to effectively regulate his behavior.” Do you recall that statement?
A. [KARTYE]: Yes, I do.
Q. Do you believe that that’s the truth?
A. Yes.
Q. And with regard to your testimony here this morning, did I understand you to state correctly that most mildly retarded persons can function adequately outside an institutional environment?
A. Yes, they can.
Q. Do you believe that [applicant] can?
A. He has functioned outside the environment all his life until he was arrested.
Q. You’re aware of his criminal record, aren’t you?
A. Yes.
Q. Do you think he could function outside a structured environment without endangering himself or others?
A. No.
On re-direct examination, Kartye testified that applicant’s inability to function outside of a structured environment without hurting other people was because of his past criminal history and not because of his degree of mental retardation.
Q. [STATE]: Dr. Kartye, just one question. You said a minute ago that, in your opinion, [applicant] could not function outside-in society without doing harm to himself or others; is that correct?
A. [KARTYE]: That is correct.
Q. Is that based-do you base that opinion on his degree of mental retardation or his past criminal history?
A. His past criminal history.
Brownlee testified at the November 1988 habeas hearing on applicant’s behalf. Brownlee testified that applicant is mentally retarded which causes applicant not to have the intellectual capability to act “deliberately” or “intentionally” or of being “sane.” For example, Brownlee testified how applicant’s mental retardation causes applicant not to have the intellectual capability to be “sane” in the sense of knowing the difference between right and wrong and that for applicant “hurting another person would be like soiling his pants.”
*310 Q. [STATE]: Why do-why would he try to hide his wrong if he didn’t know the difference?
A. [BROWNLEE]: Because there’s a higher level of wrong that we imply to being caught in doing something bad. You know, there is a certain degree of shame at messing your pants, and I’m sure that, you know, [applicant] would have that shame if he soiled his pants. And in his mind hurting another person would be like soiling his pants. It’s a thing that causes shame, but it’s not something that you feel so bad about because you understand the long-term implications of death, that you understand the impact on other people. Like he told me in my interview, he made [the victim] go to Heaven, and people should be happy about that. That’s an absurd assumption for a person who has a higher degree of intelligence.
Q. So you really think that he thinks he did nothing wrong, and they should be happy because he made her go to Heaven?
A. That’s what he told me, yeah.
Brownlee also testified that Kartye’s psychological report was “insufficient to help [him] in any way.”
Q. [DEFENSE]: Referring you back to Dr. Kartye’s report, based on your knowledge and experience as a psychiatrist, do you have an opinion as to the overall quality of his examination of [applicant]?
A. [BROWNLEE]: If this was a report prepared by a psychologist that I would ask-I’d have him redo it because it’s insufficient to help me in any way.
The State also presented several police witnesses who testified that, during their numerous interactions with applicant prior to his 1985 trial, they did not notice applicant’s mental retardation. One of these witnesses apparently surprised the defense when he testified that he has “personal knowledge of how a mentally retarded person might” act.
Q. [DEFENSE]: Have you had experience before in your work with mentally retarded defendants?
A. [MORRIS]: Would you-
Q. Have you ever-in the course of your investigation as an officer of the Department of Public Safety, have you ever dealt with mentally retarded defendants?
A. Not that I know of, sir.
Q. So you don’t-you don’t have any personal knowledge of how a mentally retarded person might interact with you as opposed to a person of normal intelligence?
A. Yes, I do.
Q. And what is that based on?
A. I have a son that’s [sic] mentally retarded.
Q. But you’ve never dealt with any mentally retarded defendants?
A. No, I have not.
Q. And you had no reason in your discussion with [applicant] to think that he was mentally retarded?
A. I do not.
[DEFENSE]: Pass the witness.
To the extent that the Court’s opinion suggests that the habeas court’s finding in the 1988 habeas proceeding that applicant is “mildly” mentally retarded is dispositive or collaterally estops a consideration of all of the other evidence, it is significant to point out that the habeas court made this finding before the United States Supreme Court decided Penry. This finding, therefore, was not essential to the habeas court’s determinations in the 1988 habeas proceeding, and the State did not need to fully and fairly adjudicate the issue of applicant’s mental retardation at this time. *311 Cf. Ex parte Watkins, 73 S.W.3d 264, 267 (Tex.Cr.App.2002) (collateral estoppel bars relitigation of “specific and discrete facts that have been fully and fairly adjudicated”); Johnston v. American Medical International, 36 S.W.3d 572, 576 (Tex.App.-Tyler 2000, no writ) (collateral estoppel bars relitigation of facts that were fully and fairly adjudicated and essential to the judgment in the first action). For these reasons, this Court’s 1992 opinion granting applicant habeas corpus relief also is not dispositive of whether applicant is mentally retarded.
That the issue of applicant’s mental retardation was not essential to the habeas court’s determinations in the 1988 habeas proceeding is underscored by the habeas court’s recommendation to deny habeas corpus relief despite its finding that applicant is “mildly” mentally retarded. The issue of applicant’s mental retardation was not fully and fairly adjudicated until applicant’s 1992 retrial. There the State litigated this issue with its own expert who is the only psychologist to express an opinion on applicant’s mental retardation based on the AAMR and the Section 591.003(13) definitions of mental retardation that this Court adopted in Briseno.
What this case really boils down to is whether this Court should stand in the way of the bargain the parties made in this habeas proceeding. At this point in the judicial process of this 20-year-old case, I do not believe that this Court has (or should exercise) the power to effectuate this bargain through the vehicle of a mental retardation claim which the record does not support. Just as executing a truly mentally retarded person would not advance any “evolving standards of decency that mark the progress of a maturing society,” allowing the parties to use a mental retardation claim not supported by the record as a bargaining chip to dispose of this case would not advance any evolving standards of decency either. See Atkins, 122 S.Ct. at 2247 . On the contrary, effectuating this bargain based on an unsubstantiated mental retardation claim would promote a sort of “devolving standard of decency” that marks a society indifferent to the dignity of the victim whom applicant so brutally murdered. Cf. Atkins, 122 S.Ct. at 2247 (basic concept underlying Eighth Amendment jurisprudence “is nothing less than the dignity of man”). 17
I respectfully dissent.
APPENDIX
This Appendix contains the following:
Reporter’s Record at 2169-2171 (Applicant’s direct examination outside the jury’s presence at the guilt/innocence phase of his trial on the issue of the voluntariness of his written statement).
Reporter’s Record at 2171-72 (Applicant’s cross-examination outside the jury’s presence at the guilt/innocence phase of his trial on the issue of the voluntariness of his written statement).
Reporter’s Record at 2483-2634 (Applicant’s direct examination in the jury’s presence at the punishment phase of his trial).
Reporter’s Record at 2676-2743 (Applicant’s cross-examination in the jury’s presence at the punishment phase of his trial).
WILLIE MACK MODDEN
the defendant, was called as a witness in his own behalf and, having been duly sworn by the Court, testified as follows to questions propounded to him by Counsel.
*312 DIRECT EXAMINATION
QUESTIONS BY MR. ASKINS:
Q Mr. Modden, is this your signature here?
A Yes, sir.
Q Do you recall down in Kirbyville, Texas, when you went before Mr. C.R. Dough-orty, Justice of the Peace down there?
A Yes, sir.
Q Do you remember him giving you this warning?
A Yes, sir.
Q That’s as to State’s Exhibit Forty?
A Yes, sir.
Q Now, what is marked State’s Exhibit Forty-one — excuse me. Forty-two. Do you recognize this to be your signature?
A Yes, sir.
Q Do you remember Judge Hulen McClure here in Angeline County, 15th day of October, 1984, 2:28 P.M. giving you this Magistrate’s warning?
A Yes, sir.
Q And did you give both of those — Did you hear both of those clearly and understand them—
A Yes, sir.
Q —when they were given to you?
And you heard Mr. Goodwin testifying about what is marked State’s Exhibit Forty-three, but which is not yet admitted.
Now, you had an opportunity to read over this statement in the past on occasions?
A Yes, sir.
Q Did you read it that day before you signed it?
A Yes, sir.
Q Did anybody force you to sign this statement?
A No, sir.
Q Did you give it voluntarily?
A Yes, sir.
Q Were you in threat of your life or freedom?
A Freedom.
Q Well—
A I wasn’t threatened.
Q You were in jail at the time, weren’t you?
A Yes, sir.
Q Nobody was threatening you, were they?
A No, sir.
Q Or were they?
A No, sir.
Q Did you have a lawyer with you at the time that you signed these papers?
A No, sir.
Q But you had not asked for one either, had you?
A No, sir.
Q Or had you?
A No, sir.
Q All right. But are you telling the court you signed all four pages of that voluntary statement that is dated October 15, 1984, freely and voluntarily and by your own choice?
A Yes, sir.
Q Without anybody forcing you to, but because you wanted to?
A No, sir.
Q Is that correct?
A Yes, sir.
MR. ASKINS: All right. Pass the witness.
*313 CROSS EXAMINATION
QUESTIONS BY MR. GOODWIN:
Q Mr. Modden, again, all of these, you understood what your rights were, did you, sir?
A Yes, sir.
Q And all of these things that were said to you, you knew what you were talking about, didn’t you?
A Yes, sir.
Q In the statement, Willie Mack, there was given voluntarily, wasn’t it?
A Yes, sir.
MR. GOODWIN: I have no further questions, Judge.
MR. ASKINS: We have no further questions, Your Honor.
THE COURT: You may step down. Any further witnesses?
MR. ASKINS: No, Your Honor.
THE COURT: Okay. I will make a finding that what is marked as State’s Exhibit Number Forty-three was made freely and voluntarily.
MR. ASKINS: Yes, sir. Your Honor, as to one Magistrate’s warning, I fail
WILLIE MACK MODDEN
the defendant, took the witness stand in his own behalf and, having been first duly sworn by the Court, testified as follows to questions propounded to him.
DIRECT EXAMINATION
QUESTIONS BY MR. ASKINS:
Q State your name, please.
A My name is Willie Mack Modden.
Q Mr. Modden, how old are you?
A Thirty-six.
Q Where were you born?
A Honey Island.
Q Where is Honey Island, Texas?
A Oh, over there close to Kountze, Texas.
Q Who is your natural mother?
A Dosie May Young.
Q Was that the lady who just testified?
A Yes, sir.
Q Do you call another woman momma?
A Yes, sir.
Q Who is that lady?
A Rosalie Modden.
Q And who raised you?
A Rosalie Modden.
Q And there is no question about — let me stop right there and ask you a question.
Do you understand you are not required to testify?
A Yes, sir.
Q You understand that you are on the stand now and you have commenced testifying?
A Yes, sir.
Q You understand that you are available for cross examination by District Attorney Gerald Goodwin or anybody substituting for him in this case?
A Yes, sir.
Q Do you realize that this jury has found you guilty of the offense of capital murder?
A Yes, sir.
Q And you do understand the range of punishment for this case, do you not?
A Yes, sir.
Q Do you understand that range of punishment to be life or death?
A Yes, sir.
Q Do you understand that if you testify, what you say will be considered by this *314 jury to the degree that they are willing to consider it?
A Yes, sir.
Q Do you understand that they are not required to give your testimony any more or any less value, as far as probative value, than any other witness that has taken the stand before you or any witness who might take the stand after you in this case?
A Yes, sir.
Q Is it still your desire to go forward and testify?
A Yes, sir.
Q All right, sir. And I believe you testified that Rosalie Modden raised you. Is that right?
A Yes, sir.
Q And do you recall when you moved from Honey Island?
A Well, sir, I was young. About the first grade, I think.
Q And you heard your momma’s testimony. Are you in agreement, from what you’ve been told in your childhood, that she basically turned you over to—
A I agreed to it.
Q Sir?
A Yes, sir.
Q What was my question?
A I agree about she turning me over to my auntie.
Q All right, sir. Listen to my question very carefully—
A Yes, sir.
Q —and answer them after I get through asking them.
A Yes, sir.
Q Did Rosalie Modden raise you?
A Yes, sir.
Q Who was her husband?
A L.C. Modden.
Q Did you ever live in your childhood anywhere other than Honey Island?
A Conroe. Then I moved from Conroe to Silsbee.
Q Were you always with Rosalie Mod-den’s family?
A Yes, sir.
Q Did you ever live with your natural mother, Dosie May Young?
A Yes, sir, but not — you know, live with her, you know, or stay with her.
You know, my auntie would take me up there.
Q Did Rosie Young live with her husband?
A Rosalie Modden?
Q Modden. I’m sorry.
A Repeat that again.
Q Was Rosalie Modden married?
A Yes, sir.
Q To whom?
A L.C. Modden.
Q Do they continue to live together today?
A Yes, sir.
Q To your knowledge.
A Yes, sir.
Q How many children did they have?
A They had five girls and one boy. I think five girls and one boy. Yes, sir. Because I make seven all together.
Q Was your momma correct when she said that there was a girl older than you, and all the rest of the kids were younger than you?
A Yes, sir.
*315 Q How did you get along with those children?
A I got along good.
Q You never had any fusses with any of them?
A Oh, yes, sir.
Q Did you ever have any fights with any of them?
A Yes, sir.
Q Who did you have the most fights with of those kids?
A I really can’t tell.
Q Did you get along real good or poorly with that older girl?
A We got along good until we got up in age.
Q How old?
A You know, whenever I went to the penitentiary the first time.
Q I didn’t understand you.
A Whenever I went to the penitentiary the first time.
Q Are you talking about the oldest daughter of L.C. and Rosalie?
A Yes, sir. Her name is Rozella.
Q Did you ever get a whipping because of fighting with Rozella?
A Yes.
Q Is that what you call getting along good?
A No, sir.
Q All right. How often would you and Rozella fight?
A Oh, you know, we — not too often.
Q Were you fighting over the usual things that kids fight over when they are kids?
A No. We were young then. I used to try to tell her what to do and not to do.
Q You had to raise her?
A No, sir. You know, the things she was doing, I didn’t like.
Q When you were little kids?
A Oh, no. I was grown then.
Q I was asking you about when you were a kid.
A Oh, no. We didn’t have no trouble.
Q You never got a whipping because of fighting with her?
A No, sir. Not right then. You know, when we were young, no, sir.
Q You mean you got a whipping for fighting with her after you got out of the penitentiary?
A Yes, sir.
Q Who whipped you?
A Rosalie.
Q You mean Rosalie still whipped you after you got out of the penitentiary?
A Yes, sir. You know, she hit me. She just didn’t whip me.
Q Now, how did you do in school?
A Well, I wasn’t doing too good because I was playing hooky from school.
Q Do you remember where you were going to school at that time?
A Yes.
Q Where?
A Waldo Matthew High School.
Q Where?
A Waldo Matthew, M-a-t-t-h-e-w.
Q Did you ever get in a fight with anybody because you couldn’t talk clearly?
A Oh, I had many occasions to fight.
Q What town .did you have those fights in?
*316 A Silsbee, Texas.
Q What school did you have the fights in?
A Waldo Matthews High School.
Q And where did you have the fights?
A On the school yards or maybe in the room.
Q All right. That is the school that you went to in Silsbee, Texas?
A Yes, sir.
Q That you are talking about. Right?
A Yes, sir.
Q Did you leave school or were you expelled from school?
A Leave.
Q All right. Do you recall ever being expelled from school?
A Yes, sir.
Q Why?
A Fighting.
Q Were you protecting yourself in those fights?
A Yes, sir.
Q You never did cause a fight, to your knowledge?
A Yes, sir, I remember causing — well, you know, we had a little gang, you know.
Q A game—
A Yes, sir.
Q Or gang?
A A gang, you know. I mean, you know, we stuck together.
Q Yes. So, you are talking about a gang and not a game?
A Yes, sir. A gang fight.
Q Gang fighting. But did you have these fights that I am asking about by yourself with another person?
A Oh, yes, sir, I have.
Q You also got off into gang fights, too. Is that right?
A Yes, sir.
Q When is the first time you can ever remember stealing anything?
A I was young. I don’t remember. I was young, though.
Q Well, were you in elementary school or before school?
A About in the fifth or sixth.
Q Do you recall yourself as a good child or a bad child?
A Good child.
Q Up to when?
A Until I got with bad company.
Q Are you saying that all of your trouble sprang from being around bad company?
A Yes, sir.
Q Nobody to blame but them. Is that correct?
A Yes, sir. My job, yes, sir.
Q As a child.
A Yes, sir.
Q You weren’t in any gangs, around bad company when you were at home at Rosalie’s, before you started to school, were you?
A No, sir. I just started after I moved to Silsbee. When I got up in age on Bonnie Street. I remember that on Bonnie Street.
Q What street?
A Bonnie. B-o-n-n-i-e.
Q And my question is, did you ever cause any of these one on one fights yourself?
A I can’t remember.
Q All right. How long were you out of school — let me ask you this: Did you ever *317 get in trouble with the law enforcement officers before you quit school?
A Yes, sir.
Q What kind of trouble did you get into?
A Well, my mother put me in jail. Not her. My aunt that I call momma.
I remember me and my sister, we ran off from home. Well, I had a bag and I headed for home with my daddy before he died. And I lived with him in Silsbee and Liberty when I was young.
Q Would you run off from Rosalie’s house to see your father? Is that what you are saying?
A Yes, sir. She would be talking about whipping me and I would leave.
Q Well, did she talk about whipping you few times or often when you were a kid?
A Often.
Q Did she whip you a few times or often when you were a kid?
A Yes, sir.
Q Which?
A Often.
Q Why did she whip you?
A Fighting and getting — I wasn’t doing nothing in school and playing hooky from school and things like that.
Q And Rosalie Modden was trying to make you do right?
A Yes, sir.
Q Is that what you understand?
A Yes, sir.
Q And did you ever think about whether you were doing right or doing wrong during this period of time?
A Yes, sir.
Q And did you reach a decision as to whether you were doing right or wrong?
A Yes, sir.
Q What was your decision?
A The decision, the more I kept doing what I was doing — well, I was doing right, I thought. I didn’t care, you know. I just thought I would run around with the big boys. I never did run with nobody my age when I was young. I always run with people older than me. I always did do that.
Q You always ran with people older than you?
A Yes, sir.
Q When you were running around with those older people that you were younger than, who decided what to do?
A A dude named James Pollard.
Q James Pollard.
Tell us about James. Was he a nice fellow to you?
A No, sir.
Q Well, did he buy you candy or soda water?
A No, sir.
Q Did he buy you bear claws?
A No, sir.
Q Did he get you in the picture show?
A No, sir.
Q Did he take you to church?
A No, sir.
Q Did he tell you what you all were going to do?
A Yes, sir.
Q Did he decide whether you all were going out running around or not?
A Yes, sir.
Q Did you ever just do something on your own?
A Yes, sir.
Q What?
*318 A Robbery.
Q As a child?
A Oh, no.
Q Did you ever do anything on your own besides robbery?
A No, sir. Well, not really. Mostly me and that dude would be together.
Q As a child—
A Yes, sir.
Q —Willie Mack—
A Yes, sir.
Q —did you ever do anything, that you can remember, just because you wanted to do it?
A Yes, sir. I usually take my sister and them money.
Q You used to take your sister money?
A Yes, sir. My step-sister.
Well, my cousin. I call her my sister.
Q That is the oldest sister?
A Yes. My auntie’s daughter. I call her sister. I call them sister and brother.
Q Rozella?
A Yes, sir.
Q You took Rozella money?
A Yes, sir.
Q Where did you get the money to take to Rozella?
A Where I get the money?
Q Yes.
A No. I used to take their money.
Q You used to take their money?
A Yes.
Q Did you ever do anything like taking flowers to Rosalie?
A Yes, sir. I bought her a lot of things.
Q Did you ever, as a child, just go along the side of the road and see a pretty flower and take it to Rosalie?
A No, sir.
Q Did you ever do anything for Rosalie?
A Oh, yes, sir.
Q What that was nice?
A Oh, me and this broad I was married to—
Q I can’t hear you.
A You talking about when I was a kid or grown?
Q As a child.
A No, sir. Not when I was young, no, sir. I can’t recall.
Q If you can recall it, can you remember who it was that gave you most of the whippings you got as a child?
A Rosalie Modden.
Q And that is momma? Even though she is not your momma, that is who you call momma, isn’t it?
A Yes, sir.
Q And did you ever — were you ever able to understand as a child that she was trying to do right?
A Yes, sir, because she was a Christian woman, and a respected lady.
Q Did you ever — were you ever able to realize as a child that she was trying to help you to become a better person?
A Yes, sir.
Q And did she do it by any other way than — Did she ever fuss at you?
A Yes, sir.
Q Did she ever talk to you?
A Yes, sir.
Q And did she ever whip you?
A Yes, sir.
*319 Q Did she ever whip you with a switch?
A No, sir.
Q Did she ever whip you with anything that you would think is less than a switch? Do you ever remember her spanking you?
A Extension cord; something like that.
Q Well, you can think of an extension cord. Can you think of anything else that she whipped you with as a child?
A No, sir.
Q All right. What was her husband’s name?
A L.C. Modden.
Q Was L.C. Modden living in that house where you were living—
A Yes, sir.
Q with Rosalie and their children all that time?
A Yes, sir.
Q And did he work regular—
A Yes, sir.
Q when he had a job?
A Yes, sir.
Q To your knowledge, does he work now?
A No, sir. He had been in the hospital for about twelve or thirteen years, I think, for TB.
Q Is he home now?
A Yes, sir.
Q To your knowledge?
A Yes, sir.
Q All right. Did Rosalie feed you?
A Yes, sir.
Q And did she wash your clothes?
A Yes, sir.
Q Did she wash her children’s clothes?
A Yes, sir.
Q Did she whip her children?
A Yes, sir.
Q Did she show love to her children?
A Yes, sir.
Q Did she show love to you?
A Yes, sir.
Q And you’re satisfied that she loves you?
A Yes, sir.
Q Right?
A Yes, sir.
Q Now, did those children that you were raised with show you love?
A Well, yes, sir.
Q And did they ever mention that you weren’t really one of them?
A Yes, sir.
Q Who would do that?
A All of them did it.
Q ■ All of them?
A Yes, sir.
Q How would they tell you?
A ‘You really ain’t, you know, my brother. You’re just my cousin.”
You know, it didn’t hardly upset me none because I been around so long.
Q Had you been around long when you were back there as a little child?
A Yes, sir.
Q You had been?
A Repeat that again.
Q Yes, sir. Back when you were a child, was that when they were telling you that you were just a cousin; you really weren’t one of them?
A No. I got up in age. About twelve or thirteen years old.
*320 Q Before they ever mentioned that to you?
A Yes, sir.
Well, I know all the time I wasn’t, you know, their brother.
Q All right. So, up until you’re about twelve or thirteen, they just dealt with you just like you were one of them. Is that right?
A Yes, sir.
Q Now, have any one of those children, to your knowledge, gotten in trouble with the law?
A No, not that I knows of, no, sir.
Q To your knowledge, are they out and about and good citizens?
A Yes, sir.
Q And to your knowledge, were you ever intentionally hurt by L.C. Modden or Rosalie Modden intentionally, just for the sake of hurting you?
A Depending on what you are talking about.
Q Well, then, what are you talking about?
A Well, whipping me or what?
Q Did any — did Rosalie or L.C. Modden, from your point of view, ever do anything intentionally to hurt you, except to discipline you—
A No, sir.
Q —for something that you had done?
A No, sir.
Q All right. Did you understand or did you not understand why you got a whipping every time you got a whipping?
A Yes, sir.
Q You understood it?
A Yes, sir.
Q You understood it real clear.
Did you ever understand how to stop getting those whippings?
A Yes, sir.
Q But when did those whippings cease?
Do you know what “cease” means?
A Yes, sir. When you — I mean you think about not doing this and that.
Q No. Cease means stop.
A Oh, stop.
Q When did you stop getting whippings?
A Well, you don’t never get stopped from getting no whippings, no matter how old you is.
Q You don’t stop getting whippings no matter how old you are?
A If you live under your people’s roof, you don’t.
Q All right. Does that people’s roof include your neighborhood where you live, in the comfortable place you know, the jailhouse, the penitentiary? That is the kind of neighborhood, isn’t it? That is where you are living, isn’t it?
A Yes, sir.
Q From your point of view, you are just going to get a whipping regardless of what happens. Is that your understanding?
A Yes, sir. Whatever I do, yes, sir.
Q Whatever you do, how ever far you go, you are going to get a whipping.
And do you know of any way to stop from getting those whippings?
A Yes, sir. Be good. Behave.
Q Well,—
A Stop doing the things I was doing.
Q That was as a child, Willie Mack.
And you are certainly not telling this jury that whippings would have stopped you from getting to the penitentiary for robbing, are you?
*321 A Yes, sir.
Q You think if somebody had come in and whipped you, then you would not have robbed that lady down in Silsbee?
A No. If somebody had stopped me, you know, that came to me before I did it.
Q Did it require somebody else to stop you from doing what you were doing there?
A Yes, sir.
Q That is back in Silsbee?
A Yes, sir.
Q Now, let’s get to the more recent events.
Do you remember going to — all right. Do you want to tell us about how you got along with Mr. Patton?
What was your older Mend there that you ran in that gang with?
A James Pollard.
Q Pollard?
A Yes, sir.
Q Okay. Where did you meet old James Pollard?
A At school.
Q How old was he?
A Oh, about fourteen.
Q How old were you, Willie Mack?
A About eleven or twelve.
Q Back then, that seems like he was a lot older than you, didn’t it?
A Yes, sir.
Q Well, how did you meet Pollard?
A Well, on the school yard. Me, James Pollard, R.C. Davis, Poo Davis, Rocko Davis, Jerry Jedd, Jimmy Jedd and Jerry Wilson. Oh, there was a lot — there was a lot of us together.
Q That’s a lot of people from your childhood. How can you remember so many people?
A Because we lived right around each other in that neighborhood.
Q And you were close to them, weren’t you?
A Yes, sir.
Q Will you tell us what Pollard did in your group and what you did in the group?
A Well, we burglarized a store.
Q Is that the first case you made?
A Yes, sir.
Q How old were you then, Willie Mack?
A Sixteen. I had just turned — I was sixteen. I stayed in jail until seventeen.
Q Well, was Pollard there at that operation?
A Yes, sir.
Q That burglary?
A Yes, sir.
Q Did Pollard get to go to jail?
A No, sir.
Q He didn’t?
What happened to Pollard because of his going with you to burglarize that store?
A I would not give him up.
Q Pardon me?
A I would not give him up.
Q You would not give him up?
A No, sir. He and the others.
Q Is that what you said, is what I am asking you?
A Yes, sir.
Q Well, being protective of him, weren’t you?
A What you mean?
Q Well, you didn’t give him up?
*322 A No. I ain’t going to do that.
Q All right. You sheltered him, didn’t you?
A Yes, sir.
Q Did Pollard ever step up and take responsibility for being in on that operation with you?
A No, sir.
Q Do you know where Pollard is now?
A Sir?
Q Do you know where Pollard is now? The last time you heard of him, where was he?
A Penitentiary.
Q How many times had he been to the penitentiary?
A I can’t count them.
Q Do you really know?
A No, sir.
Q All right. Did Pollard go to the penitentiary from Silsbee?
A I don’t know.
Q Did Pollard go to the penitentiary before you?
A No, sir.
Q You went to the penitentiary?
A Yes, sir.
Q All right. Were there some other people that were running with Pollard and you—
A Yes, sir.
Q even on the burglary of that store?
A Yes, sir.
Q Did any of these people get caught?
A No, sir.
Q And did any of them get punished for what they did?
A No, sir, because I wouldn’t tell it.
Q All right. And did you ever feel, back when you were a child, that it would be good to have somebody on your side there in Rosalie and L.C. Modden’s house?
A Yes, sir.
Q Did you ever have anybody on your side back when you were a little kid; a cousin in the L. C. — Rosalie Modden home with six other kids?
A Yes, sir. I had some kin folks on my side.
Q Were they grown people?
A Yes, sir, but she dead.
Q Are we talking about the little kids?
A Oh, no. I really — no.
Q Well, when you all would get in fights as kids, did you have anybody that would take your side?
A Oh, yes, sir. Effram Edwards. He is dead now.
Q How old was he when he died?
A I don’t know. I wasn’t — I was in the penitentiary when he died.
Q All right, sir. Let me ask you this: When you were a child, how did Rosalie and L.C. Modden issue out their punishment to you all kids? Were they fair to you?
A Oh, yes, sir.
Q And in being fair, if there’s two of you all fighting, both of you get the same kind of punishment?
A Yes, sir. If I was wrong, I get the whipping. If I was right, she get the whipping or he.
Q When the two of y’all kids were fighting, neither one was in the right, neither one was in the wrong, was there?
A Yes, sir.
*323 Q In that situation, would both of you get a whipping?
A Yes, sir.
Q You’re not even trying to tell this jury that Mr. and Mrs. Modden that raised you treated you any differently?
MR. GOODWIN: I object. That is leading and suggestive.
THE WITNESS: No, sir.
THE COURT: Sustained.
THE WITNESS: They treated me like they treated—
THE COURT: Excuse me. When one of the lawyers stands, it means he is going to make an objection. If you will, let me rule on the objection before you answer. If I sustain it, that means you can’t answer the question. If I overrule it, it means you can.
THE WITNESS: Yes, sir.
THE COURT: Ask your next question.
MR. ASKINS: Thank you.
Q (By Mr. Askms) Now, did you have any other friend to you that was like Pollard?
A Jerry Angel.
Q Where was that?
A In Silsbee.
Q When was that?
A We were teenagers then.
Q Well, was that before Pollard or after Pollard?
A That was before Pollard.
Q Well, tell this jury about you and— what’s his name?
A Jerry Angel.
Q Were you and Jerry the same age?
A No. I think he’s about two years or three years older than me.
Q Was that while you were still going to school?
A Yes, sir.
Q How old were you then?
A I was about fourteen, thirteen or fourteen.
Q Well, was that at or near the same time you met Pollard?
A Yes, sir. Almost.
Q Was that — excuse me. Is that right?
A Yes, sir.
Q Were they both about the same age; older than you?
A Yes, sir.
Q And tell us about you and Jerry Angel. What did you all do?
A Oh, we was — you know, we used to go in the store and pick up, you know, something we want.
Q What do you mean pick it up? You mean steal it?
A Yes, sir, steal it.
Q Shoplifting?
A Yes, sir. You can call it that.
Q Is that what you called it or you just called it picking stuff up?
A I just said stealing.
Q Stealing?
A Yes, sir.
Q All right, sir. Who taught you the difference between stealing and robbing?
A I can’t recall on that right now.
Q Did you learn that as a child or did you learn that as a grown man?
A Grown man.
Q What was it that taught you that? Do you know?
A Well, I really don’t know, but I hear people in the penitentiary talk about it.
*324 Q Okay. After you went in that store and burglarized it with Pollard and the other boys, did you have — did you break into any other stores?
A Yes, sir.
Q Were you alone or by yourself or with somebody else?
A Me and James Pollard. I mean Dalsie Eason.
Q That was after the drug store?
Where did you break into at this time that you are thinking about?
A A grocery store.
Q Did you get caught?
A No, sir.
Q Did you ever turn yourself in?
A No, sir.
Q Had you quit stealing stuff by then, just stealing stuff without breaking and entering or holding somebody up?
A Yes, sir, I stopped when they sent me .to the penitentiary.
Q For stealing?
A Yes, sir.
Q And the first robbery you ever did, where was it?
A Silsbee.
Q Who decided — who brought up the idea of the breaking in and burglary of the store that you and Pollard went into?
A James Pollard.
Q Well, why didn’t you just not go?
A I don’t know.
Q You knew what you were doing, didn’t you?
A Yes, sir.
Q You knew it wasn’t your store, didn’t you?
A No, sir. I knew it wasn’t.
Q You knew it was not, didn’t you?
A That’s right.
Q That grocery store that you all broke into and stole from, did you know that was not your store?
A Yes, sir. I know it wasn’t.
Q Did you know what you were doing when you did it?
A Yes, sir.
Q Did you go on in there anyhow?
A Yes, sir.
Q Who came up with the idea of breaking into that grocery store?
A I think Jerry Angel.
Q Well, make it simple. Was it you?
A No, sir. I was kind of a little nervous about stealing anyhow. Breaking in.
Q Why were you nervous about stealing anyhow?
A Because I — you know I realized, you know, that I ain’t used to stealing.
Q Back then when you were a little child?
A Yes, sir.
Q And right up to the time you went into that grocery store?
A Yes, sir.
Q Did you ever steal anything from Rosalie?
A Oh, like nickels and dimes.
Q Where from?
A Out of her piggy bank or something.
Q Did you ever get into her purse?
A No, sir.
Q Did you ever get caught?
A Yes, sir.
Q Stealing her pennies and nickels out of the piggy bank?
*325 A Yes, sir. For my friends.
Q For your friends?
A Yes, sir.
Q What happened to you when you got caught?
A I got a whipping.
Q Who gave you the whipping?
A Rosalie and L. C.
Q Both of them?
A Yes, sir. Sometimes.
Q I’m talking about for stealing from that purse. I mean the piggy bank at one time.
A Oh, Rosalie.
Q Well, what did L.C. catch you stealing and whip you for?
A The same thing.
Q The piggy bank?
Did you ever understand that the reason you were getting a whipping was because you were stealing?
A Yes, sir.
Q Do you think that might be what caused you to be a little bit nervous about breaking into somebody else’s grocery store?
A Yes, sir.
Q If you will, Willie Mack, what did you go to the penitentiary for the first time?
A Burglary.
Q Where?
A Silsbee.
Q Tell us about how that burglary came down, just all of it.
A James Pollard.
Q Who all was with you?
A Me, James Pollard, Dalsie Eason.
Q How do you do that Dalsie Eason?
A Dalsie Eason.
Q Dalsie Eason?
A Yes, sir.
Q E-a-s-o-n?
Anybody else?
A I can’t remember all of that, really.
Q Where did you — when did you find out you all were going to do that burglary?
A I think about seven or eight o’clock that night. We all got—
Q What time did you do the burglary?
A Oh, about nine or ten because they had the police right across the street to the Dairy Queen and we went on and did that, but we had two persons watching us.
Q You had what?
A We had two persons outside watching us.
Q Were you watching?
A No, sir.
Q What were you supposed to do?
A Well, I took the lock off the back door.
Q Okay. Who decided that was the way to go into the budding?
A I did. After we couldn’t get in the front — we saw the law. We went around the back way and I saw the lock.
Q Well, who decided to go in the front way?
A James Pollard.
Q And while you all — where were you when you decided not to go in the front way?
A We were going in the front way until we saw the law across the street in front of the Dairy Queen. From the store, there is a Dairy Queen that you be crossing in front of.
*326 Q And who decided not to go through the front with the police over there at the Dairy Queen?
A I did.
Q You did?
A Yes, sir.
Q So, you were looking out?
A Yes, sir.
Q You’re not saying that James Pollard told you to look, were you?
A No, sir.
Q And who decided to go around to the back?
A I did. Me and Dalsie Eason.
Q Where was old James Pollard?
A He was with us.
Q Okay. But he wasn’t touching that lock, was he?
A No, sir. I did it.
Q Did you know about things like fingerprints then?
A Yes, sir. Fingerprints? Oh, no, sir.
Q Fingerprints?
A No, sir.
Q You didn’t?
A No, sir.
Q Did you find out about them after that?
A No, sir.
Q You still don’t know anything about fingerprints?
A Right now I do.
Q Where did you learn about fingerprints?
A Penitentiary.
Q All right. Tell this jury, was that the burglary that you went to the penitentiary on?
A Yes, sir.
Q How long did you stay over at the penitentiary?
A Oh, about thirty months.
Q When was the next time — when—what did you do when you got out of the penitentiary?
A Went to work.
Q Where?
A In Silsbee at the hardwood mill in ’69.
Q 69.
A Yes, sir.
Q That’s Highway 69 South?
A No. That’s — I was working in ’69.
Q In 1969?
A Yes.
Q Do you remember when you went in the penitentiary?
A ’66,1 think.
THE COURT: Excuse me. Is this just as good as any place to break for lunch?
MR. ASKINS: Yes, Your Honor.
THE COURT: I assume you will have a number of other questions?
MR. ASKINS: Yes, Your Honor.
THE COURT: Ladies and gentlemen, we will take our noon recess at this time.
You are in recess until one-thirty. You are admonished that you are not to discuss this case among yourselves or with anyone else until after you’ve heard all the evidence and retired to consider your verdict.
You are in recess until one-thirty.
(A recess was taken at 12:00 P.M. until 1:30 P.M.)
*327 BE IT REMEMBERED that the following came on for hearing before The Honorable David V. Wilson, Judge of the 217th District Court, Angelina County Courthouse, Lufkin, Texas, on the 30th day of January, 1985, commencing at 1:30 P.M., pursuant to recess heretofore taken.
P-R-O-C-E-E-D-I-N-G-S
THE COURT: Are there any matters we need to take up before we bring the jury back in?
MR. ASKINS: Yes, Your Honor. May we approach the bench?
THE COURT: You may.
MR. ASKINS: Your Honor, we are ready to call our witness list, if it please the Court, trying to eliminate those persons—
MR. MC FARLAND: Why don’t we get the ones we want and dismiss all the rest of them?
MR. ASKINS: That will be fine.
We need to keep Rosalie Modden, who got in here about one o’clock, who has not been sworn in. Leroy McGrew, Linda McGrew, Lonnel and Evie Young and Joe Kartye.
THE COURT: Okay. Who does that exclude?
MR. ASKINS: That excludes Wilton — no. We didn’t have him here. George Houston, Larry Garrett, Lee Edward Bouton, Arthur English. We subpoenaed him. He’s never shown up, so he doesn’t need to be excused. Joe Tomas. Did I give you Arthur English?
THE COURT: Yes.
MR. ASKINS: Bryan Freeman. And we would — I’m sorry. There’s one on the list we need to keep, Paul Goforth.
MR. MC FARLAND: The rest of them can go.
THE COURT: Is Miss Modden in the courtroom? If you will, stand, please, Miss Modden, and raise your right hand.
(Miss Modden was duly sworn by the Court.)
THE COURT: You may be seated.
Would you advise in the hall George Houston, Larry Garrett, Lee Edward Bouton, Joe Tomas and Bryan Freeman that they may be excused.
THE BAILIFF: Yes.
THE COURT: Go ahead and get the jury in then.
THE BAILIFF: Yes, sir.
(The jury returned to the courtroom.)
THE COURT: Good afternoon, ladies and gentlemen. Prior to the noon recess, the defendant was testifying. If you will come back to the witness stand, please.
You may proceed.
MR. ASKINS: Thank you, Your Hon- or.
WILLIE MACK MODDEN
resumed the witness stand and testified further as follows.
DIRECT EXAMINATION CONTINUED
QUESTIONS BY MR. ASKINS:
Q Mr. Modden—
A Yes, sir.
Q what was the nature of the first case that you went to the penitentiary for?
A Burglary.
Q Do you recall when that was?
A ’66. I went to jail in ’67, though. I mean ’55, and stayed in jail until ’66.
Q And then you went on to prison without being released from jail. Is that correct?
*328 A Yes, sir.
Q And you were released, as I recall, thirty months later, as you recall?
A Yes, sir.
Q And then on your second trip to the penitentiary, when was that and what was it for?
A Burglary.
Q Where did the burglary occur?
A Diboll.
Q And who was involved in the burglary with you?
A Wilton Young and James — I mean Taylor. I forgot his last — his first name.
Q Is that Wilton Young the same Wilton Young that testified here in court with you?
A Yes.
Q I mean here in the courtroom yesterday?
A Yes, sir.
Q Was he ever arrested, tried or convicted of that offense?
A I don’t believe so.
Q Did you ever tell the police that Wilton Young was involved in that case with you?
A No, sir.
Q Why not?
A Well, I feel like they give me — first, I won’t tell on nobody. They got to get them before — in order to get me. As long as I do something and they get me, I will put all the weight on me.
Q Well—
A No matter who it would be.
Q Well, did you — did the other man go to the penitentiary?
A No, sir.
Q What was his name?
A Oh, his name is Philip Taylor.
Q Did Philip Taylor go to the penitentiary for that offense?
A No.
Q Did you tell on him?
A No, sir.
Q Why did you not tell on him?
A The same reason.
Q And Wilton Young is your uncle, is he not?
A Yes, sir.
Q And what kind of feelings do you have for the Young family generally?
A They are my people.
Q Has Wilton ever been in the penitentiary, to your knowledge?
A No, sir.
Q Now, on the robbery on the murder for which you have been found guilty— excuse me. Let’s come to the next event you were in.
What was the — what about the robbery down in Silsbee?
A What about it?
Q Did you have a robbery down in Sils-bee?
A Yes, sir.
Q And was that the first or second time you went to the penitentiary?
A The third time.
Q The third time?
A Yes, sir.
Q The last time that you went to the penitentiary?
A Yes, sir.
Q All right. Who was involved in that offense with you?
A Myself.
*329 Q You were by yourself on that one?
A Yes, sir.
Q And will you tell the jury what happened in that case?
Where did the robbery take place?
A In Silsbee.
Q Where in Silsbee?
A I think — I don’t know. A 7-11 or what. All I know, a store.
Q All right. And do you know whether the victim in that robbery was a man or woman?
A A woman.
Q And what were you using, if anything, as a weapon on that robbery?
A A pistol.
Q And did you shoot that woman?
A No, sir.
Q Did you threaten that woman with that pistol?
A No, sir.
Q Did you ever point it at her?
A Yes, sir.
Q You don’t consider that a threat?
A Yes, sir.
Q Do you feel like you threatened the woman?
A Yes, sir.
Q I’ll put it this way: Do you feel threatened when a pistol is pointed at you?
A Yes, sir.
Q For example, did you feel threatened enough to cooperate completely when the lady deputy got you out from under that bed down at Kirbyville?
A Yes, sir.
Q Now, was there anybody that talked with you about that robbery down at Sils-bee?
A No, sir.
Q Before you did it?
A No, sir.
Q How did you decide to do that robbery?
A Oh, I decided — I really can’t tell you like it was.
Q Why not?
A I mean, I just robbed them.
Q Well, how long had you been carrying the pistol before you robbed it?
A For some time.
Q Everywhere you went?
A No,sir. No, sir. I always stashed it until I needed it.
Q You always what?
A I always hid it until I needed it.
Q You said “stashed”, didn’t you?
A Yes, sir.
Q Where did you get the pistol and take it with you before you did the robbery? I’m saying—
Let me ask you this way: When did you go get the pistol and carry it with you to go do that robbery?
A Repeat that again.
Q You had a pistol at the robbery. How long had you had it on your body before you did that robbery?
A I went and got it.
Q Why did you get the pistol, Willie Mack?
A To rob.
Q Did you already know what you were going to rob?
A Yes, sir.
*330 Q Where was the gun hidden?
A Back behind my auntie’s house.
Q What time of day or night was that?
A About nine or ten o’clock that night.
Q Okay. And you went and robbed that lady at that store, didn’t you?
A Yes.
Q And did you — did you make her do anything other than give you the money from the cash register?
A Yes, sir, I did.
Q What was it?
A Made he pull off her clothes.
Q Did you make her pull off all of her clothes, Willie Mack?
A No, sir.
Q What clothes did she still have on when you stopped making her take her clothes off?
A Her brassiere and things.
Q Well, did she have her underpants on?
A Yes, sir.
Q Did she have a slip on?
A Yes, sir. White slip.
Q Did you let her leave it on?
A Yes, sir.
Q Did you have any ideas about making any sexual advances at her?
A No, sir. That ain’t my bag.
Q Why did you make her take her clothes off, Willie Mack?
A So I could get away.
Q How did you figure having her take her clothes off would let you get away?
A Yes, sir.
Q How do you figure that?
A Give me enough time to get away.
Q Well, did you feel she would be embarrassed to go get help if that’s all she had on?
A Yes, sir.
Q Where did you go from there?
A In the project.
Q How did you get to the store in the first place?
A Walked.
Q And how did you get away?
A Walked.
Q Did you walk or run?
A I ran.
Q Willie Mack, can you drive a car?
A No, sir.
Q Did you never learn how or you just don’t drive?
A I don’t know, and I don’t know how.
Q Did you ever try to learn to drive a car?
A Yes, sir. And got a ticket.
Q Where was that?
A In Silsbee when we burglarized that store. I went and bought me a car of my own.
Q You bought it with stolen money, though, didn’t you?
A Yes, sir.
Q How long did you keep that car?
A Oh, about two or three days.
Q And that is the length of time that you had that car then?
A Yes, sir.
Q Have you ever tried to drive or have anybody teach you how to drive a car?
A Yes, sir. I was working on a telephone company. You know, laying down cable in the ground, telephone cable.
Q Where?
*331 A In Kountze.
Q All right. How old were you then?
A About twenty-two, twenty-three; somewheres in there. About twenty-two.
Q Then, when you got out of the penitentiary that time, based on that robbery of the lady who you made take her clothes off, — was that when you were sent to the penitentiary for twenty-five years?
A Yes, sir.
Q How long were you free after you had robbed that lady before you went into jail?
A About a month and a half.
Q What happened to you on the car? Was that before that?
Did you work anywhere during that month and a half time?
A Yes, sir.
Q Where did you work, Willie Mack?
A At Louisiana Pacific.
Q What were you doing there?
A Tailing the saw.
Q Tailing the saw?
A Yes, sir.
Q Does that mean pulling boards off as the saw went through the wood?
A Yes, sir.
Q What other work have you done on the outside before going to the penitentiary the first time — anytime before the first time or in between the two times you’ve been in the penitentiary?
A Laying down telephone cable, hauling a little pulpwood. That’s all I remember.
Q When you were hauling pulpwood, who were you working for?
A I forgot that man’s name. He fives down from my mother’s house.
Q How did you learn to haul pulpwood?
A Well, you go out with — I forgot his name. He lives right down from my momma, too. I forgot his name. His wife is named Ernestine, though.
Q When you say “haul pulpwood”, you don’t mean literally haul it on the truck; you’re talking about loading and unloading those big stacks of pulpwood, aren’t you?
A Yes, sir. I would load it on there. I wouldn’t unload them.
Q You would just load them on?
A Yes, sir.
Q When did you get out of the penitentiary the last time?
A ’83.
Q Do you remember that it was before Christmas of ’88?
A December the 15th. December 18th.
Q And you had gone in when?
A August, ’74. August the twentieth-something, ’74.
Q All right. While you were in the penitentiary, — well, let me try this: How old were you when you went in the penitentiary the first time?
A Seventeen, I think.
Q And how old were you last December when you got out?
A Thirty-six.
Q Seventeen—
A Oh, thirty-five.
Q Thirty-five?
A Yes, sir.
Q From age seventeen to age thirty-five, how many years have you been on the ground outside the penitentiary?
A I think about four years.
Q Except for hauling pulpwood and working on the Louisiana Pacific laying cable, before you came out of the peniten *332 tiary the last time, what work have you done?
A Working at Mims Meat Company.
Q That was after you got out, wasn’t it?
A This last time, yes, sir.
Q Okay. Let’s just cover that.
You worked at Mims Packing Company after you got out of the penitentiary?
A Yes, sir.
Q When you got out of the penitentiary, where did you come this last time?
A Jessie Lee Young in Diboll.
Q All right. And you worked for Mims Packing Company when?
A A little before Christmas. About three days before Christmas.
Q When did you quit working for Mims?
A I can’t remember. It was in ’74. I mean ’84.
Q So, it was sometime over in ’84 when you left Mims?
A Yes, sir. In the summer time.
Q Do you know why you left Mims Packing Company?
A Oh, I was getting another job at Corri-gans. I mean in Cameron.
Q In what kind of work?
A Working on the gluing machine at the mill.
Q What kind of machine?
A Gluing machine.
Q Glue. Oh, glue machine?
A Yes, sir.
Q Did you ever get that job?
A Yes, sir.
Q How long did you work at that job?
A Two days. Two nights, I mean.
Q What was your work at Mims Packing Company?
A Spreading out cow hides.
Q Spreading out cow hides?
A Yes, sir.
Q And have you worked anywhere else in any kind of work than that outside the penitentiary?
A I was working in Cameron.
Q What did you do for Cameron?
A That’s at the sawmill. That’s the glue machine.
Q Where?
A Cameron, Texas.
Q Camden, Texas—
A Yes, sir.
Q you’re talking about.
That was after you got out of the penitentiary the last time?
A Yes, sir.
Q Let’s go back now to the first time you were in the penitentiary, and you tell this jury whether or not you had any disciplinary reports placed against you in your pen packet while you were in the penitentiary?
A I couldn’t — I don’t understand what you are talking about.
Q All right. Did you lose any good time?
A Yes, sir. A whole lot.
Q What for?
A Fighting.
Q Was that the first time you were there?
A Yes, sir.
Q What were the fights about, Willie Mack?
A Well, I was told, you know, I was going to leave — “I come here like a man and I am leaving like a man.”
*333 Q What do you mean by that?
A They wanted to make a punk out of me.
Q Who tried to do that?
A I don’t know the dude.
Q Well, were you successful in preserving your manhood?
A Yes, sir, I was successful.
Q And to your knowledge, did you ever lose it—
A No.
Q during any time you were in the penitentiary?
A No, sir.
Q That was one incident of fighting as regards the first time you were in the penitentiary.
Did you receive any other disciplinary reports for fighting? Did you lose anymore good time for fighting?
A Oh, yes, sir.
Q And was there any different reason for it than the reason you told us for this time now?
A Yes, sir.
Q Can you give us another instance of when you lost good time and why?
A Well, at that time, they had the lead row and the tell row. You know, they supposed to be tough guys.
Q Who were they?
A Lead row and the tell row.
Q Leroy and Tellrow?
A Yes, sir. Lead row and the tell row.
Q Oh, lead row and the tell row?
A Yes, sir. You know, they had the bad — you don’t keep up, they want to jump you. If you get in the front of them, they want to jump you, you know. And this dude and I — I know his last name. His last name is Thompson.
Q Are you talking about working in the field, Willie Mack?
A Yes, sir. I’m telling you about the fight.
Q That is what I wanted to ask you. Are you talking about the lead row and the front line of convicts?
A Yes, sir.
Q And the tell row is the back row?
A Yes, sir.
Q And anybody in any one of those rows is what, a tush hog?
A No. Them two.
Q Just those two in the line?
A Yes, sir.
Q Were you ever in either one of those lines, the lead line, the head line or the tail line?
A No, sir. I never did like it.
Q You were always in the middle?
A That’s right.
Q Tell us how that fight came about?
A Well, this dude name Tom, he was the lead row and this dude named Tone — I forgot the other dude’s name. And me, dude named Paul Johnson and Eddie Bray — in the morning time, you know, lead row and tell row, they start running up and down their rows, you know, so we got—
Q Who is “we”?
A Me, Eddie Bray and Paul Johnson.
Q Okay.
A And we got hit where we got his turn when they started running. They don’t want to run in the evening time because they be too tired. We rested up in the morning time and let them run, and in the evening time we start running up and *334 down the rows. And so he told us to slow down. I told him, “No. You run this morning. Let’s run today,” you know.
I said, “I ain’t tired.”
So he came up there and hit me and I swung the agate at him and missed him.
Q You did what?
A An agate, a hoe.
And I missed him. And they took the hoe from me. And I hit him up side the head and he fell and I started stomping him.
Q All right. Did you get tried in a court of law for that matter?
A No, sir. They took—
Q That was handled inside the prison, wasn’t it?
A Sir?
Q You lost your good time on that, didn’t you?
A Yes, sir.
Q So, you never were taken out of the prison for that matter to be handled?
A No, sir.
Q Did you ever — can you think of another situation where you lost good time during the first time you were at the penitentiary?
A The first time?
Q Yes.
A Oh, yes, sir. I hit a dude in the head with a can.
Q Why?
A He was trying to make a punk out of me. I show him I was a man. I ain’t no punk.
Q All right. Do you have another incident that you can tell us?
A That’s the only one I know the first time.
Q Then the second time, what?
A A dude named Comb, C-o-m-b, Comb — I forgot the other dude’s name.
Well, we were playing dominoes that night. And I don’t know his name. He came and asked me about didn’t I tell him something about — did I tell Comb about him. It come out, you know, Comb went and told him that I say he were a punk. I told, you know, Comb I didn’t know, you know, but Comb went back and told him a lie about I said it. So, we were playing double blank for' — •
Q You were playing what?
A Double blank.
Q What is double drank?
A Double blank. Dominoes.
MR. MC FARLAND: Double blank.
Q (By Mr. Askins) Double blank?
A Yes, sir.
Playing for, whoever has the most in their hand, drinks a jug of water. That’s what we were playing.
So, he came — the dude, what I don’t know his name, he came over there and told me he wanted to talk to me. He had a knife about that long. I didn’t know he had it between his legs. So, he asked me about it. He said, “Did you tell Comb anything about me?”
I said, “No.”
I said, ‘Where he at?”
So, he went and got Comb and Comb couldn’t tell him like it was, so he stabbed Comb instead of me. And they locked me up for that about six months because I refused not to—
Q Go ahead. I’m sorry.
A I had refused not to go back to work for something I didn’t do.
*335 Q Well, when you say they locked you up, that means you were taken off the work detail or what?
A Yes, sir. Good time taken.
Q Were you put in solitary for that?
A Yes, sir.
Q Is that solitary confinement?
A Yes, sir. For fourteen days.
Q Yes, sir. Now, did you ever get in — do you have any other situations where you had a fight while you were in the penitentiary?
A Yes, sir.
Q What happened?
A Well, I can’t call this dude’s name, but he always, you know, talked bull corn with me about the way I talked. I told him—
Q What do you mean by the way you talk?
A Yes, sir, the way I talk.
Q All right.
A You know, he be mocking me all the time and everybody be laughing. I get mad, so I went up side his head.
Q You went up side of his head with what?
A My hand.
Q All right. Was that the end of that fight?
A Yes, sir.
Q And did you lose good time for that?
A Yes, sir.
Q And is that the last instance you can recall having trouble with other inmates, where you were given a disciplinary report or lost good time?
A Oh, yes. We were working in the kitchen. I was working in the kitchen.
Q Was this a fight?
A Oh, no.
Q All right. Let me ask you a different question then.
Did you have any trouble by not following the directions of whoever was in charge of you in the penitentiary?
A Oh, no, sir. No, sir.
Q Well, if you feel you did not, will you then tell us about this incident in the kitchen.
A Well, I was working in the dish room.
Q Yes, sir.
A And, you know, it was hot in there. And we wanted some ice that day because we always keep ice, where we were stealing ice.
Q From where?
A Out of the kitchen. Back in the back.
Q Yes, sir.
A I was the lookout man.
Q Yes, sir.
A And my partner, he will go get a big old block of ice.
Q Yes, sir.
Q And we carried it in the dish room and locked the door and made sure nobody can’t come in there. And that day they wouldn’t give us none. We went and got to steal it, but we couldn’t find none. We went to the ice house, and wasn’t none in there.
Q Who is washing dished while y’all were out trying to steal—
A We weren’t washing right then.
Q I see.
A So we see we couldn’t get no ice, so they started putting trays through the little pan hole. We just let them pile up. And they asked what was wrong, and we told them we needed some ice. It was hot *336 in here. They told us to go to work. So all of us said, “We ain’t going to work.”
But on the end, I got all that fault on me.
Q Do you ever remember making any remarks to the guards while you were working out in the field?
A Yes, sir. Oh, yes, sir.
Q Did you ever lose good time for that?
A Yes, sir.
Q Will you tell the jury what happened in one of those?
A Well, this guard, he is from Alabama. Mr. — do I have to tell it like it is?
Q Clean up the language if you want to, but go ahead and tell it like it is, yes, sir.
A Well, he told me my momma should have died when she had me.
Q All right.
A That’s when I wait until he got to the back gate and I jumped him.
Q Jumped what?
A Jumped the guard.
Q Oh, you jumped the guard?
A Yes, sir.
Q Did you hit the guard?
A Yes, sir.
Q What happened to you as a result of doing that?
A They whipped me, locked me up.
Q Who whipped you?
A The warden and them.
Q How did they whip you?
A I don’t know his name, but they call him Big Foot. I don’t know his name. He hit me with one of his shoes. And they beat me in the stomach. And I had to go — when I got out of solitary, about twenty-something days, they had to rush me to the hospital. My stomach was messed up. So, I went to work that day on a Friday. I went to work that Friday evening and that Friday evening when I got off work, they had to rush me to the hospital.
Q But you knew better than to jump a guard, didn’t you?
A Yes, sir.
Q Why would you jump the guard?
A Because I didn’t like what he said about my momma.
Q All right. Were you ever — did you ever lose good time for talking bad language on the work line?
A Oh, no, sir.
Q You never cussed anybody on the work line?
A Oh, yes, sir.
Q All right, sir. You cussed somebody on the work line, didn’t you?
A Yes, sir. Depending on who you talking about.
Q Well, who did you cuss on the work line, where you had — where you got— where you lost good time?
A You talking about inmates or guards?
Q Either way where you lost good time.
A Inmates.
Q Did you lose good time because of that?
A Yes, sir. Fighting.
Q Did you — sir?
A We had a fight when I cussed them out.
Q All right. Can you think of any other incidents you did while over there where you lost good time?
A Yes, sir.
Q Tell the jury what it was.
*337 A Well, also, now, you know, most people call them guards. I call them officers.
Q Yes, sir.
A The officers over there kept harassing me.
Q Did what to you?
MR. MC FARLAND: Harassing him.
THE WITNESS: Well, I don’t want to use that word.
Q (By Mr. Askins) Was he harassing you?
A Yes, sir.
Q Harassing you?
A Yes, sir, harassing.
Q All right.
A I got tired of it. He threw my hat way across the field. I sit down. I say, “I ain’t going to do — ”, I ain’t going to say what I said. I just said, “I ain’t going to do no more work.”
I told him if he wanted to do — if he wanted anymore work to do, he can get off the horse and do it his self.
Q He didn’t do that, did he?
A No, sir.
Q Did you lose good time because of that remark—
A Yes, sir.
Q —and sitting down in the field?
A Yes, sir.
Q Did you ever have occasion to cut anybody while you were in the penitentiary?
A Yes, sir.
Q Will you tell the jury — one or more times?
A One time.
Q Will you tell the jury about that, please.
A Me and a dude got into it one Saturday — one Saturday, one Saturday evening. I don’t know who the — I know the dude I cut, but I don’t know the dude that was agitating and told him that I say somebody’s momma and me and — Jerry. That is the one I cut. And we were tight partners. And we were listening at a football game. I won’t ever forget that evening. And he walked up behind me. I still got that scar right here now. He hit me right here, and I fell and he kicked me in my side. And they stopped — they stopped, us and I had blood all over my face. And BT, that means Building Attendant. The Building Attendant rushed me in the shower — I mean in the wash room and washed the blood off of me and told me, “Don’t say nothing about it to the Warden now.”
I said, “Okay.”
But I had made up my mind I was going to do something to him, you know, so I went in my cell and got me two razor — four razor blades and a toothbrush, and I burned that toothbrush so they would melt to that razor blade, so that Sunday morning when I went to breakfast, a partner of mine named John Richards told me that my brother was locked up in solitary. So, he was over there with me. I asked, “For what?”
He say he was in the cell for Christmas and he ain’t supposed to come out of his cell for fourteen days. He was in the cell for Christmas for fourteen days, so he came out himself, so I said, Well,”—
Q Did you cut the other man that hit you?
A That’s what I’m fixing to tell you.
Q Yes, sir, but please tell me.
A So, we went to chow that Sunday morning, around about eight o’clock.
*338 Q Yes, sir.
A I waited until the dude put some soap in his face, on his face and eyes, and I went up to him and cut him up here.
Q On the side of his neck?
A Yes, sir.
Q All right. And did you lose good time for that?
A Yes, sir.
Q Was there anything that you ever did while in the penitentiary that caused you to be taken from that penitentiary and tried in a court of law?
A No, sir.
Q Now, I think we should ask you about the most important thing that we are here for.
Now, Mr. Modden, have you ever raised the point at anytime since it became clear to you that you were innocent of the killing of Deborah Davenport?
A Repeat that again.
Q Have you always said in truth that you killed Deborah Davenport?
A Yes, sir. Yes, sir.
Q Did you know — well, will you tell us why you killed Deborah Davenport?
A Because I wanted no witness.
Q Pardon me?
A I didn’t want no witness.
Q Where did you get the idea of not leaving a witness, Willie Mack?
A I been around a lot of dudes in the penitentiary. They been talking about them gangsters, you know.
Q Gangsters?
A Yes, sir.
Q Yes, sir.
A And, you know, I been hearing how they been doing this and that and robbing and things.
Q On June the 9th — July the 9th of 1984, were you involved in another robbery of a Jif-E Mart Store?
A Now, you got me messed. Which one are you talking about?
Q The first one.
A Yes.
Q All right, sir. And was that here in Lufkin, Texas?
A Yes, sir.
Q Who was with you on that occasion, in truth, only the truth, but all of the truth?
A Do I say it?
Q You tell the truth, whatever it is?
A Leroy McGrew and Mr. T.
Q Who is Mr. T?
Was that a man that you were introduced to as Lawrence—
A Lawrence Wyatt.
Q Lawrence Wyatt?
A Wyatt. I can’t pronounce that name.
Q All right. Regardless of that, where did you meet Leroy McGrew?
A Well, where I meet him?
Q I say when did you meet Leroy McGrew, the first time ever?
A Oh, over at his house when he was staying there in the apartment. I don’t know what the name of them apartments,. though.
Q Well, when did you meet Leroy McGrew?
A I think’84.
Q It was after you got out of the penitentiary, wasn’t it, Willie Mack?
A Yes, sir.
Q This last time?
*339 A Yes, sir.
Q And how — did you have occasion to see Leroy McGrew often or seldom?
Do you know what seldom means? Did you see him a lot or a little?
A Oh. Not at the particular time when he was staying over there. I didn’t hardly see him that much until he moved on Culverhouse. Over on Culverhouse I seen him most of the time.
Q Do you remember when it was? Was it the spring or summer?
A Well, it was winter time when I met— when he was staying in the apartments.
Q And did you get with Leroy any after you met him at that apartment?
A Yes, sir.
Q Where?
A Over to his house. Then we went over to my auntie’s house.
Q Who?
A Roosevelt.
Q I’m not talking about July the 29th.
A No, me neither.
Q Then when?
A When Roosevelt was living right there — they was living in the same apartments. I mean the same area as Leroy.
We went over there and sit around and drank some beer.
Q All right. And that was in the winter time?
A No. It was summer.
Q Summer time.
And when was the first time before that, that you remember seeing Leroy McGrew or being with him, more important?
A I can’t really can’t remember.
Q You said you met him sometime in the winter. Did you see him from the time you met him in the winter until that time you went over to Roosevelt’s house, drinking beer with him?
A That’s the time I saw him, I think the second time.
Q All right. Was that when you were introduced?
A No. I was introduced the first time.
Q Okay. Where was the first time? Was that over at the apartment where he was living?
A Yes, sir.
Q Who introduced you to him?
A Roosevelt Young.
Q Roosevelt Young any kin to you?
A Yes, sir.
Q What is he?
A Uncle.
Q Is he Wilt’s brother, too?
A Yes, sir.
Q Was Leroy working at the time?
A I don’t know. That particular time, I don’t know
Q Were you working at the time?
A Yes, sir. At Mims.
Q Do you remember when you worked at Mims?
A Yes, sir.
Q When did you work at Mims?
A December. About December the first or somewhere up in there.
Q And that is about when you finished working at Mims?
A Oh, no.
Q When did you quit working at Mims?
A Well, I don’t know. I think it was in the summer time.
*340 Q All right. Sometime while you were working for Mims, then, you met Leroy or Roach McGrew?
A Yes, sir.
Q And how long was that before you all went to do the first robbery?
A It was a pretty good while.
Q Did you do anything else illegal with Leroy or Roach before the first robbery?
A No, sir.
Q Do you remember anything about any air conditioners?
A Yes, sir.
Q All right. When — or what is this about the air conditioners, please, sir?
A Say that again.
Q Were you involved with Leroy in stealing some air conditioners or not?
A No, sir. Not with him.
Q You weren’t?
A No, sir.
Q Who were you with?
A Mr. T.
Q Mr. who?
A Mr. T.
Q Names Lawrence Wyatt?
A Yes, sir.
Q Is that true?
A Yes, sir.
Q All right. You never stole any air conditioners with Leroy?
A No, sir.
Q Did you ever steal anything else with Leroy before you went to the Jif-E Mart and robbed it on July the 9th, 1984?
A Yes, sir.
Q Well, did you answer me “yes” because you didn’t understand what I said?
A Say that again.
Q All right. Did you steal anything with Leroy McGrew before you did—
A No, sir.
Q —the first robbery?
A No, sir.
Q All right. Did you steal anything with anybody else other than Lawrence Wyatt?
A No, sir.
Q When did you steal anything with Lawrence Wyatt?
A I forgot when, what night it was.
Q Was it before or after the Jif-E Mart robbery?
A Before.
Q What kind of car were you in that night?
A Brown Cadillac.
Q Whose car was it?
A Mr. T.
Q Do you ever drive?
A I can’t drive.
Q Who came up with that idea of stealing the air conditioners?
A He did.
Q Why did you go with him?
A Make me a little money.
Q Does stealing seem natural to you?
A What you mean?
Q Is it usual for you to steal?
A For me to steal?
Q Yes, sir.
A Not occasionally, no.
Q Well, what did you do? When you went, tell us what you did, you and Mr. Wyatt?
*341 A I helped him tote the air conditioners in the car.
Q All right. Who took — what kind of air conditioner was it?
A I don’t know.
Q Well, I mean was it a central air conditioning unit or was it a window unit?
A Window.
Q Did you take it — was it sitting in a box or out in the open? Where was it?
A I really don’t know. It was in the window. I don’t know.
Q I mean was it in the window like a window unit?
A Sitting in the window.
Q Who unplugged it?
A I guess he did.
Q Were you there?
A No, sir. I was, you know, I was out front by the car.
Q All right. What did you all do with that air conditioner?
A Well, I don’t know what he did with it, but we went—
Q Did you load it in the car?
A Yes, sir. Oh, yes, I know. We went to the house, carried it to the house.
Q Whose house?
A Mr. T.
Q All right. Did you unload it from the car?
A Yes, sir.
Q Do you know what actually happened with that air conditioner after that?
A No, but—
Q Did you receive any money — did you receive any money from—
A Yes, sir.
Q —Mr. T. for helping with that set?
A Yes, sir.
Q How much?
A I think thirty-five, $40.00.
Q Do you know where the money came from?
A No, sir, but—
Q If you don’t — go ahead. I’m sorry.
A Well, we went to this store. He got him a long envelope at this store, a brown envelope.
THE COURT: Repeat your answer.
THE WITNESS: About two days after, you know, Red did it. About two days.
Q (By Mr. Askins) Well, how did you get back with Mr. T. on that occasion to get that money?
A On the Front. I was walking on the Front, and he stopped and seen me.
Q Was it daytime or night time?
A Day.
Q And you went with him where?
A I forgot the store name.
Q Well, did you go someplace with him? Was it a store?
A I guess it is a store.
Q Is it—
A I never been inside.
Q You didn’t go inside the store?
A No, sir.
Q Did you get in the car with Mr. T.—
A Yes, sir.
Q —two days after y’all stole that air conditioner?
A Yes, sir.
Q Did you go to some store in Mr. T’s car?
A Yes, sir.
*342 Q You don’t know where the store was?
A I know where it is, but I don’t know the, you know — it’s on 94. I think that’s where it is.
Q On Highway 94?
A Yes.
Q All right. And did Mr. T. get out of the car at the store at 94?
A Yes, sir.
Q Did he have anything in his hands when he was walking into the store?
A No, sir.
Q Did he have anything in his hands when we was walking out of the store?
A Yes, sir. A long brown envelope.
Q Did you see what was inside the long brown envelope?
A Money.
Q Did you get any of that money?
A Yes, sir.
Q Was that where you got that money you told us about already?
A Yes, sir.
Q Okay. Willie Mack-, where were the plans made to do the first robbery?
A Over at Roach’s house.
Q That is Leroy McGrew. Right?
A Yes, sir.
Q You heard his wife testify yesterday, didn’t you?
A Yes.
Q Is that the same Leroy McGrew that testified yesterday? I mean that — was that the Linda McGrew that testified yesterday, Leroy McGrow's wife?
A Yes, sir.
Q Same lady that was here yesterday?
A Yes, sir.
Q Okay. When you went over to Leroy’s house to plan that first robbery, who was there or who got there with you and Leroy, and who planned that robbery?
A Repeat that again.
Q How did you get to Leroy’s house?
A Walked.
Q Was Leroy there?
A Yes, sir.
Q Was anybody else there?
A Linda and her kids.
Q And did anybody else come up to work with you all to plan that robbery?
A No, not right then.
Q All right. Who brought it up, that there was going to be a robbery?
A Leroy.
Q Well, how did Leroy bring it up?
A He told me he know where a store is; a good store we can hit.
Q Well, did you go along with him on that idea?
A Yes, sir.
Q And who worked out when you were going to do it and how you were going to do it? Did you work with him on that plan?
A Yes, sir.
Q How did you work it out with him?
A You talking about going in the store or what?
Q Well, going in the store, how to get there—
A No. I didn’t. He was the one.
Q —how to leave?
A He was the one that furnished all that.
He is the one — he caught some dude in a blue car. I don’t know where they went. He was looking for a pistol or something; that guy get one for him or *343 something. He couldn’t find none. So, when I look up again, he had Mr. T. He was in the car with Mr. T.
I was standing across the street from the Front, under the shed when he picked me up.
Q And I take it you had already left Leroy McGrow’s house and had gone up to the Front?
A Yes, sir.
Q And whose car was Mr. T. in?
A His car.
Q Whose car — well, whose car was Leroy in?
A Mr. T’s.
Q And was anybody there that saw you get with them that evening?
A George Houston and somebody else. I forgot.
Q Okay. Is that the same George Houston that testified here yesterday?
A Yes, sir.
Q Do you remember George Houston telling you whether or not you should get in that car or not?
A Yes, sir.
Q What was George Houston’s advice to you?
A Told me don’t get in the car because Leroy is bad company. He’ll get me in trouble. And Leroy told me to come on.
Q Had you been in any trouble up to that time?
A No, sir.
Q Well, had you gone to steal that air conditioner with Mr. T. by that time?
A Yes, sir, but that — you know, it wasn’t nothing to me.
Q And what time of day or night was that?
A What?
Q That you got in the car with Leroy and Mr. T.?
A I really don’t know. It was late.
Q All right. What time was it then that you had been at Leroy’s and you all had decided to do the robbery?
A Repeat that again.
Q You got on the Front and they picked you up.
A Yes, sir.
Q How much time before that was it that you had been over to Leroy’s, working out that you were going to rob that first store?
A Oh, we been — I was over there for a good while, sitting down with them.
Q Do you remember what time it had been when you got to Leroy’s house?
A It was in the evening time.
Q Okay. Had you had anything to drink that day?
A No, sir.
Q Had you had anything to drink that night before you went to rob the Jif-E Mart store?
A That first store?
Q The first store?
A No, sir.
Q All right. Let me ask you this: When you went to the penitentiary the first time, — going back to that time in your life, did you drink?
A No, sir.
Q When was the first time you had any beer, gin or vodka or anything else to drink?
A The second time.
Q The second time what?
*344 A When I got out of the penitentiary.
Q And how much did you drink?
A Not too often.
Q Had you been drinking at the time you robbed that lady, where you made her take her outer clothes off?
A No, sir.
Q All right, sir.
A I don’t drink that much, you know. When I was in Silsbee, I never did hardly drink, really, you know.
Q Would your same answer apply, that you just gave, that you got back here from the penitentiary the last time, down in Diboll — have you had — since you got out of the penitentiary the last time, have you drunk a lot or a little bit?
A Well, I drink more this time than I did the other times.
Q What did you drink?
A Beer. Sometimes a little vodka or gin, but mostly beer. Schlitz Malt Liquor.
Q How did you think the drinking affected you?
A It affected me a whole lot.
Q Well, if you have a can of beer, can you feel it?
A Yes, sir.
Q If you have two cans of beer, can you feel it?
A Oh, yes, sir.
Q What happens if you have three cans of beer?
A It still bothers me.
Q Sir?
A It’s just I’m not the same Willie Mack.
Q All right. What did you do with the money that you got out of the first robbery, the Safeway robbery?
A Oh, I—
Q Excuse me. Not Safeway. The Jif-E Mart.
A Gamble.
Q All right, sir. And isn’t that the Jif-E Mart on 94, on Frank Street, that is kind of close to the Safeway store?
A Yes, sir.
Q All right. You never robbed the Safeway store, did you?
A No, sir.
Q All right. You said a while back that — well, I don’t know that you did.
What did you use to rob the — what weapon did you have at the Jif-E Mart store?
A A pistol. I don’t know what.
Q You don’t know what make, do you?
A No.
Q How big was that pistol?
A Pretty good size.
Q Hold your hands up to the jury so they can get a rough length.
A Well, the barrel was about that long.
Q From the handle up to the front end—
A Yes.
Q —of it, how long was it?
A The whole thing?
Q The whole thing.
A About like that.
Q Was it one of those — -did you ever see a Clint Eastwood picture show?
A Like one of them.
Q Was it that big?
A Yes, sir.
Q The kind Clint Eastwood uses or not?
A Yes, sir.
Q What color was it?
*345 A Silver.
Q Silver.
And did you use any kind of disguise on that robbery or a cover-up?
A Yes, sir.
Q What?
A A stocking cap, whatever they call it.
Q All right, sir. Where did you get that pistol? Who did you receive it from?
A Leroy.
Q Where did Leroy get the pistol?
A I don’t know the dude’s name.
Q Well, let me ask you this: Where does this person live? Does he Uve in a house?
A He lives in some — in some apartments.
Q And these apartments, do you know the main highway where those apartments are?
A All I know is Diboll. I just say by Diboll.
Q All right. And do you remember having been to those apartments once or more times? Been there one or more times?
A One.
Q You never — and when was that?
A When me and Leroy and Mr. T. went there and got the pistol.
Q Well, did you have any Mends that lived in that apartment—
A Well,—
Q —project?
A Well, my cousin had a partner. I never did see him. I don’t know who he looked like or what. We went over there one day.
Q Well, I say — that is what I asked you, had you ever been over there before you went to get the pistol?
A Yes, sir, but not over to that dude’s house.
Q Oh, no. You been to those apartments before, though, had you not?
A Yes, sir.
Q On the first time that you went over to those apartments, who did you go to see?
A Well, I went over there with my cousin, but we didn’t go to the apartments where we got the pistol from.
Q No, sir. I am just asking you, the first time you went over to those apartments, who did you go to see?
A I don’t know the dude’s name.
Q Did you go to visit with your cousin after you went over there and got the pistol?
A Oh, that was before.
Q When you went to see your cousin.
A Me and my cousin went over there.
Q To where?
A To a Mend of his.
Q All right. Who is the Mend?
A I don’t know his name. I never seen him.
Q All right, sir. Did he live in the same close area where the apartment was that— where Leroy got the pistol?
A Yes, sir.
Q Close to it?
A Yes, sir.
Q And on the first time you went over to that — all those apartments, did you go inside an apartment?
A No, sir. I never been in none of them.
Q All right. Why did you go over there the first time?
A Well, my cousin, he had a partner over there and he went over to see if he can get a beer, can of beer.
*346 Q Who is your cousin?
A Lonnel.
Q All right. And did you get any beer?
A We got one can.
Q Between the two of you?
A The three of us.
Q The three of you?
A Yes, sir.
Q Got one can of beer.
Do you know who furnished the beer?
A I don’t know who the dude — that dude.
Q Was he a friend of Lonnel’s?
A Yes, sir.
Q All right. Now, the second time you went over there, you went over there with Mr. T.?
A No. I had been over there two or three times before then.
Q Oh, you had?
A Yes, sir.
Q Always over to the same friend—
A Yes, sir.
Q —who furnished the beer?
Well, on the night that you and Roach and Mr. T. went over there together, had you ever been there before with them?
A No, sir.
Q All right. And did you know where you were going when you left to go over there to that apartment?
A No, sir. You know, I didn’t have no occasion about knowing where we were going until I got over there.
Q Who knew where they were going?
A Well, Leroy and Mr. T. know. I didn’t.
Q Why do you say that?
Who was driving?
A Mr. T.
Q Did he drive you all over to the apartments?
A Yes, sir.
Q Did he ask for any directions?
A I don’t know for that occasion.
Q Well, you were in the car. Do you remember?
A I don’t know.
Q Okay. Who went in the house or went inside?
A Leroy.
Q Did you and Mr. T. leave the car?
A We stayed in the car.
Q Did Leroy have a pistol when he went in the apartment?
A No, sir.
Q Did Leroy have a pistol when he came out of the apartment?
A Yes,sir.
Q Did you know who the man was that they were getting the pistol from?
A No, sir.
Q Where did you get the idea that it was a white dude?
A Because Leroy said it.
Q What did Leroy say?
A He said he was going to get a pistol from a friend of his who was a white dude.
Q Was that right before he went in there to get it—
A Yes, sir.
Q —or not?
A Before.
Q He got the pistol and you went over there to the Jif-E Mart on Frank Street, close to the loop. Right?
*347 A Yes, sir.
Q And did Mr. T. ever get out of his ear?
A No, sir.
Q Did Leroy McGrew ever get out of that car?
A No, sir.
Q Did you get out of that car?
A Yes, sir.
Q Did you get out of the car with the pistol?
A Yes, sir.
Q Did you go rob that store?
A Yes, sir.
Q And that is the Jif-E Mart store?
A Yes, sir.
Q And did you get any money out of that robbery?
A Yes, sir.
Q Did you hurt anybody?
A No, sir.
Q How much money did you get?
A I really don’t know right now.
Q Who divided the money?
A Me.
Q Okay. Is that what you are supposed to do as the highjacker?
A Well, you call it—
Q What do you call yourself when you do that?
A That is robbing.
Q Just a robber?
A Yes, sir.
Q Is the robber or the triggerman the one that gets to divide the money?
A I always do.
Q All right. You done it three times now. Is that correct?
A What do you mean three times?
Q Well, you done three robberies at least, haven’t you?
A Since I’ve been out?
Q No, sir. Since you got born?
A Yes, sir.
Q Have you done anymore?
A No, sir.
Q Are you sure?
A I’m positive.
Q All right. Now, on that night at the Jif-E Mart, you divided it.
Where did you divide that money?
A At Roach’s house. On the bed in his bedroom.
Q Was Linda around anywhere?
A In the front room.
Q Did Linda see the money divided up?
A No, sir.
Q Wfrere is the television in Linda’s and Leroy’s house?
A In the front room.
Q And did you all walk in the front door or the back door?
A Front door.
Q This is the first time?
A Yes, sir.
Q This is the first robbery?
A Yes, sir.
Q All right. Now, did Mr. T. and Leroy get their part of the money?
A Yes, sir.
Q Do you remember how you divided it, how much each one got?
A Well, I don’t — I gave Mr. T. the hundred because he told me he didn’t want but *348 fifty. I gave him a hundred. And Leroy — I don’t know how much I give Leroy. I kept the biggest portion.
And he was telling me he needed some more, you know, some money for his rent, rent money. And his wife was, you know, — you know, pregnant.
Q Okay. Threatening to have the baby?
A Yes, sir.
Q All right. And this was out of the Jif-E Mart robbery—
A Yes, sir.
Q —you’re talking about?
Now, when did you first get into — get involved in the planning and commission of the robbery that ended, at least for Deborah Davenport, that night of July the 29th, 1984?
A Leroy.
Q Where?
A At his house.
Q When?
A That same — that same day. That evening.
Q What evening?
A I forgot what day it was when we did it, really.
Q Are you talking about that Saturday?
A Yes, sir.
Q Well, you all hadn’t talked about robbing the place before that?
MR. GOODWIN: Your Honor, I object. It is a leading question.
MR. ASKINS: I agree, Your Honor. I will do the best I can.
Q (By Mr. Askins) If that is when it was, on a Saturday, then, let’s start Saturday morning.
What time did you get up that Saturday morning, July the 28th,, 1984?
A About eleven.
Q In the morning?
A Yes.
Q Had you had anything to drink the night before?
A No, sir.
Q What did you eat from the time you got up that morning until daylight the next morning?
A Well, I like a lot of sweet things. I don’t care too much about food too much. I like sweet things. Candy and stuff.
Q Sweets?
A Yes, sir.
Q Did you eat any sweets that day?
A I can’t recall.
Q Did you eat any food that day?
A Yes, sir. I ate breakfast that morning. My auntie told me to eat breakfast when I got up.
Q How much breakfast did you eat?
A I ate a pretty good amount.
Q What did you have?
A Eggs, sausage, toast and some butter.
Q Did you have any milk or anything else?
A Oh, milk, yes, sir.
Q All right. That was at your—
A Auntie’s house.
Q Your auntie’s house. Was that Clorine Cartwright?
A Yes, sir.
Q She is now deceased, isn’t she?
A Yes, sir.
Q She has died since July the 29th, hasn’t she?
A I don’t know, but I know she’s dead.
*349 Q All right. Did you have anything else to eat that day before you got to Diboll?
A I think. Yes, I had something, but I can’t remember what it was. We had stopped at that same filling station where we robbed it, the first one.
Q Yes.
A I can’t remember what it was. I believe Leroy got some gas there.
Q You bought something to eat there at the Jif-E Mart on Frank Street?
A Yes.
Q Well, did you have — you don’t remember what you ate. Do you remember anything else that you ate after you all stopped at the Jif-E Mart?
A No, sir.
Q All right. Then, let’s go back to this: After eleven o’clock, your auntie fed you breakfast. And I take it you got dressed, put your clothes on sometime in there.
What time did you get with Leroy McGrew?
A I really don’t know. It was after dinner.
Q All right. Where?
A At his house. I walked over to his house.
Q Do you remember who was there?
A Yes, sir.
Q I’m sorry. How far did you — how far was it from Miss Cartwright’s over to Leroy’s house?
A Ain’t but about a fifteen minute walk.
Q Okay. And who was at—
A Linda.
Q —at Roach’s house?
A Linda, his wife, and kids.
Q All right. Was there a conversation among you all?
A What you mean?
Q Did you talk to Leroy and Linda and the kids or did you talk to Leroy?
A Well, I played with Leroy’s little girl because everytime I go there, I always play with her, with the little girl because I always like kids.
Q You never had any kids, did you?
A No, sir, not really. I supposed to have one, but I haven’t say it’s mine.
Q Did you play — when did you stop playing with the little girl and decide where you — what you were going to do that day?
A Well, when Leroy and I went over there, that’s — the first time when I went over there, that’s when he told me he got a good place to hit.
Q He got a good place to hit?
A Yes.
Q All right. And did you all go someplace else that day?
A Yes, sir. We went to Diboll. They came by the house to get me.
Q Who?
A Leroy and his family.
Q How long did you stay at Leroy’s before you left, so they could come pick you up at your house?
A Oh, about an hour.
Q Did you eat anything over there?
A No, sir. If I ain’t made a mistake, I think I drunk a beer.
Q Where?
A Over at Leroy’s house. If I haven’t made a mistake, I think I drank a beer.
Q Was Linda around while you were drinking that beer?
A Yes, sir.
*350 Q Did she see you drinking the beer?
A Yes, sir.
Q Are you satisfied that she saw you drink the beer?
A Yes, sir.
Q Did Leroy have a beer?
A Yes, sir.
Q And did you have anything to drink over at your auntie’s house?
A No. She don’t allow me to drink over there. I give her respect.
Q You give her what?
A I give her respect.
Q When they picked you up, was any beer in the car?
A No, sir.
Q You all went to Diboll?
A Yes, sir.
Q Was there any beer at Diboll?
A Not at the particular time there wasn’t.
Q Where did y’all go, whose house?
A Lonnel.
Q And what was the occasion?
A What do you mean?
Q What were you all going to do down at Lonnel’s house?
A Oh, we — you know, they just went down there, you know, they — you know, sisters and brother-in-laws, you know, like that.
Q And Leroy — you heard Linda McGrew testify yesterday—
A Yes, sir.
Q —didn’t you?
A Yes, sir.
Q That her sister is married to Roosevelt Young. Is that right?
A Yes, sir.
Q And she, of course, married Leroy McGrew.
A Yes, sir.
Q Was this a gathering together of the Young family?
A Not really.
Q How many of them were there?
A Linda, Evie and Patricia. Three girls, Young ladies.
Q Were any of the — were there any other Youngs there?
A Lonnel.
Well, you talking about at the house or around?
Q Wherever you all went.
A Yes, sir. Like Lonnel. I may make a mistake. I think Roosevelt was. I don’t know for sure. And myself.
Q All right.
A And Roach.
Q What did you do while you were down there?
A Well, I sit around with them for a while until Deshawn say he want to get some beer.
You know, Roach said, “I will carry you to go get a case or a half case or something like that.”
So we left.
Q Who is Deshawn?
A I really don’t know his name. They call him Duck. I don’t know him.
Q All right. Did Deshawn or Duck come up to you all, talking about getting beer?
A Yes, sir.
Q Was he wanting to get beer or were you all wanting to get beer?
*351 A Well —
Q Or all of you were wanting to get beer?
A Yes, sir.
Q Which?
A All of us.
Q Where was this?
A At Lonnel’s house.
Q Did you all go get any beer?
A Yes, sir.
Q Whose car did you go in?
A Roach.
Q Was Roach’s car running all right?
A Yes, sir.
Q Where did you go to get the beer?
A I call it Slippery Hill or Goat Hill, whatever the name.
Q Goat Hill or Slippery Hill?
A

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9596233. Public record. Not legal advice.