# Appendix — Penry v. Johnson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0480%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2001 - **Citation:** 532 U.S. 916 ## Text : EDITOR'S NOTE THE FOLLOWING PAGES WERE POOR HARD COPY AT THE TIME OF FILMING. IF AND WHEN A BETTER COPY CAN BE OBTAINED, A NEW FICHE WILL BE ISSUED. ORIGINAL PAGINATION IS NOT CONTINUOUS. way APPENDIX A DECISION OF THE UNITED STATES COURT OF APPEALS , UNITED STATES COURT OF APPEALS For the Fifth Circuit U.S. COURT OF APPEALS FILED JUN 2 0 2000 No. 99-20868 CHARLES R. FULBRUGE if! - “ JOHNNY PAUL PENRY Petitioner-Appellant, VERSUS GARY L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent -Appellee. Appeal from the United States District Court for the Southern District of Texas, Houston Division s Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges. W. EUGENE DAVIS, Circuit Judge: Penry filed a motion for a certificate of appealability (COA)in this § 2254 capital habeas proceeding, alleging various constitutional violations. For the reasons that follow, we deny his motion. Be Penry was convicted of capital murder and sentenced to death in Texas state court for the rape and wiatne of Pamela Carpenter. Penry raped Carpenter and stabbed k-r with a pair of sciss~~s. He had met her several weeks earlier while helping to install CLERK appliances in her home. Penry matched the description Carpenter gave of her attacker before she died. After being given his Miranda warnings, Penry gave an oral confession and later a signed confession to the rape and murder. At trial, Penry offered mitigating evidence that he was mentally retarded and abused as a child. He was convicted and sentenced to death. The United States Supreme Court granted federal habeas relief and vacated his sentence, holding that Penry’s rights were violated by jury instructions the trial court gave at the punishment phase of his trial.* The court found that none of the three special statutory questions provided to the jury, under Texas law, allowed the jury to give effect to Penry’s mitigating evidence. “The jury was never instructed that it could consider the evidence offered by Penry as mitigating evidence and that it could give mitigating effect to that evidence.” Penry I, 492 U.S. at 320; 109 S.Ct. at 2947. In the second trial. the trial court followed the Texas statutory scheme and gave the jury the same three special questions it had given the jury in the first trial. However, the judge also provided supplemental instructions directing the jury to consider any other relevant mitigating evidence and explained how to give effect to that evidence. Penry was again convicted of capital > murder and sentenced to death. The sentence was again affirmed on 'Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934 (1989) (*Penry 1”). direct appeal’? and state habeas relief was denied. The district court also denied Penry’s application for a COA. Penry now seeks a COA from this court. We granted Penry’s motion for a stay of execution, in order to consider his motion for a COA. II. A COA may only issue if the petitioner makes a “substantial showing of the denial of a constitutional right .”* This burden can be met if the issues presented “are debatable among jurists of reason; ..a court could resolve the issues in a different manner; or .the questions are adequate to deserve encouragement to proceed further.”* A death sentence alone does not justify the automatic issuance of a COA, although it is a proper consideration.*® Any doubts as to whether the COA should issue are to be resolved in the petitioner's favor.‘ Penry’s petition was filed after the enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA). Thus, for questions of law or mixed questions of law and fact adjudicated on the merits in state court, we may grant federal habeas relief under *Penry v. State, 903 S.W.2d 715 (Tex. Crim. App. 1995). *28 U.S.C. § 2253(c) (2); Slack v. McDaniel, 120 S.Ct. 1595, 1603 (2000); United States v. Kimler, 150 F.3d 429, 431 (5 Cir. 1998). “Miller v. Johnson,200 F.3d 274, 280 (5™ Cir. 2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4, 103 S.Ct. 3383, 3394 n.4@ (1983)); Hicks v. Johnson, 186 F.3d 634, 636 (S™ Cir. 1999), cert denied 120 S.Ct. 976 (2000); see also Slack, 120 S.Ct. at 1603-4 (quoting Barefoot-v. Estelle, 463 U.S. 880, 893 and n. 4, 103 S.Ct. 3383). ‘Lamb v. Johnson, 179 F.3d 352, 356 (s** cir. 1999), cert denied 120 S.Ct. 522 (1999). *rd. 28 U.S.C. § 2254(d)(1) only if the state court decision “was contrary to, or involved an unreasonable application of, clearly established [Supreme Court precedent].”’ A state court decision is “contrary to” Supreme Court precedent if: (1) the state court’s conclusion is “opposite to that reached by [the Supreme Court] on a question of law” or (2) the “state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent” and arrives at an opposite result. Williams v. Taylor, 2000 WL 385369, at *23 (U.S. Apr. 18, 2000). A state court unreasonably applies Supreme Court precedent if: (1) it unreasonably applies the correct legal rule to the facts of a particular case or (2) it “unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Id. at: *25. In deciding whether a state court’s application was unreasonable, this court considers whether the application was “objectively unreasonable.” Id. at *26. We now turn to Penry’s specific arguments on appeal. III. Penry first argues that the jury instructions given during the punishment phase of his trial did not allow the jury to consider and give effect to mitigating evidence regarding his alleged mental retardation and severe child abuse; thus, the instructions violated "See Miller, 200 F.3d at 280-81. the Supreme Court’s directive in Penry v. Lynaugh,’ (“Penry I”). Penry explains that jurors could only give effect to his mitigating evidence, as the Supreme Court required in Penry I, and grant him a life sentence if they found that the evidence fit under one of the three special questions required by Texas law.” In Penry I, Penry’s federal habeas challenge to his first trial and conviction, the Supreme Court found that, under the trial court’s instruction, none of the three special statutory questions allowed the jury to give effect to Penry’s mitigating evidence. At Penry’s retrial, however, the trial court supplemented the instruction it gave in Penry I. The court instructed the jury to consider any mitigating circumstances supported by the evidence. The instruction stated, in part: (W)hen you deliberate on the questions posed in the special issues, you are to consider mitigating circumstances, if any, supported by the evidence... A mitigating circumstance may include, but is not limited to, any aspect of the defendant’s character and record or circumstances of the crime which you believe could make a death sentence inappropriate in this case. If you find.any mitigating circumstances..you must decide how much weight they deserve, if any, and.give effect and consideration to them in assessing the defendant’s personal culpability at the time you answer the "492 U.S. 302, 109 S.Ct. 2934 (1989). "The three questions were: 1. Was the conduct of the defendant that caused the death of the deceased committed deliberately and with the reasonable expectation that the death of the deceased or another would result? 2. Is there a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society? 3. Was the conduct of the defendant in killing the deceased unreasonable in response to the pr« vocation, if any, by the deceased? Since Penry, the statute has been revised to add a fourth question concerning mitigation. special issue. If you determine, when giving effect to the mitigating evidence, if any, that a life sentence, as reflected by a negative finding to the issue under consideration, rather than a death sentence, is an appropriate response to the personal culpability of the defendant, a negative finding should be given to one of the special issues. Penry correctly contends that the instruction still required the jury to give a negative answer to one of the three special issues in order for Penry to receive a life sentence. Penry argues that because childhood abuse and mental retardation do not necessarily fit within the scope of any of the special issues, this instruction did not allow the jury to give effect to these mitigating circumstances. However, on direct appeal, the Texas Court of Criminal Appeals found that the instruction satisfied the requirements of Penry I, and allowed the jury to give effect to those mitigating circumstances.*® We agree with the district court that the Texas Court of Criminal Appeals’ holding that the challenged instruction was constitutional was not an umreasonable application of clearly established law, namely Penry I. The instruction directed the jury to consider and give effect to any mitigating circumstances supported by the evidence by answering “no” to one of the special issues if they felt a life sentence was appropriate. This instruction satisfied the deficiency in the trial court’s “penry v. State, 903 S.W.2d 715, 765 (Tex. Crim. App. 1995). 6 - disbeussten identified in Penry I: “(t]he jury was never instructed that it could consider the evidence offered by Penry as mitigating evidence and that it could give mitigating effect to that evidence in imposing sentence.”* We are not writing on a clean slate on this issue. This court approved identical jury instructions on this point in Miller™ and Emery v. Johnson.*» In Miller, we concluded that the defendant failed to show that the same instructions given by the trial court in this case violated Penry I. We rejected the argument that the jury was prevented from considering the mitigating evidence.* “Miller’s jury, unlike Penry’s, was instructed that it should consider mitigating evidence when deliberating on the special issues....{It]) was instructed that if it determined when giving effect to the mitigating evidence, if any, that a life sentence rather than a death sentence was an appropriate response to Miller’s personal culpability, a negative finding should be given to the special issue under consideration.”* In the alternative, Penry argues that the jury charge was a “nullification instruction” and was therefore unconstitutional insofar as it instructed jurors to violate their oaths by rendering an untruthful answer to one of the special issues if they wished to “penry,492 U.S. at 320, 109 S.Ct. “at 2947. 2200 F.3d 274. 139 F.3d 191 (S™ Cir. 1997), cert denied 119 S.Ct. 418 (1998). #200 F.3d at 290. . , 200 F.3d at 290. eee ee give effect to the mitigating evidence presented in this case. We disagree. The jury was not told to disregard the law; rather, it was instructed on how to obey the law, as explained by the Supreme Court in Penry I. Iv. Next, Penry argues that the admission of certain psychiatric testimony and evidence offered by the state at trial violated his Fifth and Sixth Amendment rights. A. Penry’s Fifth Amendment challenge involves three categories of psychiatric testimony and evidence presented by the state: 1. the testimony of Dr. Fason admitted during the guilt/innocence phase of trial; 2. the testimony of Dr. Quijano admitted during the punishment phase of trial; and 3. the report of Dr. Peebles describing a court-ordered examination of Penry, which was admitted at the punishment phase of trial. 1. Penry’s primary challenge is to the testimony of Dr. Fason. Penry contends that Fason’s testimony was based on his court- ordered competency examination of Penry, and that the state’s use of the testimony to argue future dangerousness during the punishment phase violated Penry’s rights under Estelle v. Smith.” 451 U.S. 454, 101 S.Ct. 1866 (1981). Estelle held that the defendant’s Fifth Amendment right against compelled self-incrimination was violated because he was not told that any statements made during his competency exam could be used More particularly, Penry argues that his Fifth Amendment privilege against compelled self-incrimination was violated because he was not advised before Dr. Fason’s examination of his right to remain silent and that his statements could be used against him at the sentencing proceeding. On direct appeal, the Texas Court of Criminal Appeals found that Dr. Fason’s testimony fell within the Buchanan v. Kentucky”’ exception to Estelle. Under Buchanan, if a defendant presents psychiatric evidence, then the prosecution may present rebuttal psychiatric evidence without violating the Fifth Amendment. Penry contends that, as applied to this case, proper rebuttal evidence under Buchanan is limited to evidence tending to prove that Penry is not mentally retarded, and that the state’s evidence went beyond that scope. After a careful review of the record, we find that Fason’s testimony did fall within the Buchanan exception. At the guilt/innocence phase of trial, Penry offered various psychological records, including reports of his performance on a number of psychological and IQ tests. The records also included observations of his emotional status and social behavior. As demonstrated by the closing argument of Penry’s attorney, one reason these records were introduced was to lay a predicate for an argument that Penry’s confessions were not truly voluntary because against him at the punishment phase on the issue of future dangerousn. ss. 7483 U.S. 402, 107 S.Ct. 2906 (1987). Penry is mentally retarded and thus submissive to authority figures. The evidence was also offered to support Penry’s argument that his mental retardation made him less likely to act with the intent required for capital murder. Dr. Fason’s testimony was introduced to rebut these arguments. Fason testified that Penry had an antisocial personality disorder. He explained how that condition could affect Penry’s IQ scores, and that it was possible that Penry was not mentally retarded. Also, he testified that someone with an antisocial personality disorder would usually not be easily led by others and would likely disrespect and rebel against authority. Fason did not discuss any statements made by Penry during Fason’s examination, except whether Penry was able to identify his attorney at the interview. We disagree with Penry’s characterization of Fason’s testimony as a “sham rebuttal” by the state in order to introduce to the jury the idea that Penry was a “psychopath.” Penry’s defense centered around his diminished capacity -- his alleged mental retardation at the time of the offense -- and the idea that his mental status rendered his confessions involuntary. Therefore, we conclude that the Court of Criminal Appeals’ determination that Fason’s testimony was proper rebuttal under Buchanan is neither contrary to nor an unreasonable application of clearly established federal law.” “See Vardas v. Estelle, 715 F.2d 206, 209-10 (5 Cir. 1983) (finding no violation of defendant’s rifth Amendment privilege because state psychiatrists’ testimony was proper as rebuttal to defendant's insanity defense; psychiatrists 10 , 2. In addition to his challenge to Dr. Fason’s guilt phase testimony, Penry also challenges the court’s admission, at the guntehaeen phase, of the testimony of Dr. Quijano and the report of Dr. Peebles as violating Estelle. At the punishment phase, Penry called various relatives and neighbors who testified that they believed Penry was mentally retarded and abused as a child. He also called Dr. Randall Price, who had reviewed certain portions of Penry’s medical records, and had also administered various psychological tests to Penry. Dr. Price concluded that Penry had a brain impairment and was mentally retarded, and that the mental retardation could have influenced his involvement in criminal activity. Although he admitted that Penry had an antisocial history, he stated that Penry “looks more like people with brain damage...than those with antisocial personality.” In rebuttal, the state called Doctors Quijano and Samenow and introduced into evidence a number of Penry’s mental health records. Dr. Quijano conducted a court-ordered competency examination of Penry. He testified that Penry had an antisocial personality disorder which made him more likely to be violent in the future. However, he testified that he based his opinion only on Penry’s medical records including evaluations by others, and not on his own examination of Penry. Thus, the Texas Court of Criminal Appeals testified that defendant was not insane, but instead was a sociopath.). 11 found no Fifth Amendment violation. This finding was not contrary to nor an unreasonable application of clearly established federal law.’ The report of Dr. Peebles was admitted into evidence during the punishment phase, and was based on Dr. Peebles’ 1977 examination of Penry prior to his trial on an unrelated rape charge. The report determined that Penry would be dangerous in the future if released. At the time of Dr. Peebles’ examination, Penry was not yet in custody on the instant capital charge, and thus could not have been warned about the potential use of his statements at the punishment phase of the capital trial. The Texas Court of Criminal Appeals found no Fifth Amendment violation because Penry’s attorney had requested the examination; thus, Dr. Peebles was acting as an agent of the defense, not of the state, in conducting his examination.*®° We cannot say that the court’s conclusion was unreasonable or contrary to Supreme Court see Williams v. Lynaugh, 809 F.2d 1063, 1068 (S™ Cir. 1987) (finding no factual basis for Fifth Amendment violation where state psychologist’s testimony on future dangerousness was not based on his interview with the defendant.) See also Hughes v. Johnson, 191 F.3d 607, 616-17 (S™ Cir. 1999) (finding reasonable a state court’s conclusion that psychiatrist's testimony did not violate Estelle, despite his having conducted a prior improper interview, because it did not influence his testimony; also rejecting idea that “taint” of prior improper interview created absolute bar to any expression of opinion by that psychiatrist); cf. Flores v. Johnson, 2000 WL 426212, at *1, * 7 - *13 (5™ Cir. April 20, 2000) (Emilio M. Garza, J., specially concurring) (following but questioning Supreme Court authority allowing psychiatric testimony on future dangerousness deduced without examining the defendant). *°penry, 903 S.W.2d. at 759-60; see Nelson v. State, 848 S.W.2d 126, 135 (Tex. Crim. App. 1992); Estelle, 451 U.S. at 467-68, 101 S.Ct. at 1875-76 (noting that the defendant there did not initiate the examination and was not faced with a person acting solely in his interest). 12 sansetua.* B. Penry also argues that his Sixth Amendment right to effective assistance of counsel was violated by the use of testimony on future dangerousness from Doctors Quijano and Fason because Penry and his counsel were told that their examinations of him were solely for the purpose of determining competency. Under Powell v. Texas, “once a capital defendant is formally charged, the Sixth Amendment right to counsel precludes such an examination without first notifying counsel that ‘the psychiatric examination [will] encompass the issue of their client’s future dangerousness.’”” The Texas Court of Criminal Appeals concluded that Penry’s attorney was “on notice that if he intended to put on a ‘mental status’ defense, he would have to anticipate the use of psychological evidence by the prosecution in rebuttal.””? At a pretrial hearing, the trial court expressly warned Penry’s counsel that the testimony of Doctors Fason and Quijano might be admissible at trial if the 7*See Buchanan v. Kentucky, 483 U.S. 402, 422-23, 107 S.Ct. 2906, 2917-18 (1987) (finding that “if a defendant requests (the psychiatric] evaluation or presents psychiatric evidence...the prosecution may rebut this presentation with evidence from the reports of the examination that the defendant requested. The defendant would have no Fifth Amendment privilege against the introduction of this psychiatric testimony by the prosecution.”). (Emphasis added); see also Schneider _v. Lynaugh, 835 F.2d 570, 577 (5™ Cir. 1988) (finding that, under Buchanan, the fact that defendant requested the competency examination militated against the defendant’s assertion of the Fifth Amendment privilege, particularly when defendant had also introduced psychological evidence.) . 72492 U.S. 680, 681, 109 S.Ct. 3146, 3148 (1989) (quoting Estelle, 451 U.S. at 471, 101 S.Ct. at 1877). penry, 903 S.W.2d at 758. 13 defense put on psychiatric evidence.** At trial, Penry argued that he was mentally retarded; thus his confessions were involuntary. He also argued that mental retardation could have been a contributing cause of Penry’s violent criminal acts and that his mental retardation mitigated against the imposition of the death penalty. The state was entitled to rebut this evidence by offering psychiatric evidence that some condition other than mental retardation was a more sound explanation for Penry’s conduct. Thus, the Court of Criminal Appeals’ findings are not contrary to, nor an unreasonable application of, clearly established federal law. Vv. Penry next contends that his execution would violate the Eighth Amendment, based on his alleged mental retardation and severe child abuse. First, Penry makes a general argument that execution of the mentally retarded is a per se violation of the Eighth Amendment. We agree with the district court that this claim is procedurally barred because Penry did not make the argument in state court. However, even if this claim was not procedurally barred, it has been rejected by the Supreme Court .*5 Penry also argues that the death penalty would be cruel and 741d. at 759, n. 46. *SSee Andrews v. Collins, 21 F.3d 612, 632 (S™ Cir. 1994), cert. denied 513 U.S. 1114, 115 S.Ct. 908 (1995) (citing Penry v. Lynaugh, 492 U.S. 302, 109 $.ct. 2934 (1989)). 14 unusual as applied to him personally, because of his mental retardation and severe childhood abuse. This argument also fails. On Penry’s direct appeal, the Texas Court of Criminal Appeals (citing Penry I) concluded that constitutional requirements were met because the jury was able to consider and give effect to Penry’s mitigating evidence before determining that the death sentence was appropriate.** In Penry’s second trial, he presented extensive mitigating evidence and the jury was instructed to consider that evidence and told how to give it effect. More significantly, although Penry was the individual before the Supreme Court in Penry I, the Court did not suggest that his execution would be unconstitutional based on his mental retardation or childhood abuse. The Texas Court of Criminal Appeals’ conclusion that Penry’s execution would not violate the Eighth Amendment was neither contrary to nor an unreasonable application of clearly established Supreme Court precedent. vi. Penry makes several other arguments in support of his motion. He contends that: 1. the trial court violated his rights under Simmons _v. South Carolina®” by excluding his signed statement waiving any right to parole, while allowing the state to argue future dangerousness; 2. his confessions were taken involuntarily *penry, 903 S.W.2d at 766-67. 27612 U.S. 154, 114 S.Ct. 2187 (1994). 15 in violation of the Fifth Amendment; and 3. the jury instructions at his competency trial were unconstitutionally vague because they did mot define the toons “reasonable,” “rational,” and “understanding.” We find all of these arguments to be unpersuasive, essentially for the reasons given by the district court in its thorough opinion of March 29, 1999. VII. For the reasons stated above, we deny Penry’s motion for a certificate of appealability. We also vacate the stay of execution previously entered by this court. 16 Dennis, J., Gusnting: In Penry v. Lynaugh, 492 U.S. 302 (1989) (“Penry I’), the Supreme Court held that it is not enough simply to allow the defendant to present mitigating evidence to the sentencer. “The sentencer must also be able to consider and give effect to that evidence in imposing sentence.” Jd. at 319. Accordingly, the jury must be “instructed that it could consider the evidence offered by Penry as mitigating evidence and that it could give mitigating effect to that evidence in imposing. sentence.” Jd. at 320. The Court agreed with Penry “that his mitigating evidence of mental retardation and childhood abuse has relevance to his moral culpability beyond the scope of the special issues, and that the jury was unable to express its ‘reasoned moral response’ to that evidence in determining whether death was the appropriate punishment.” Jd. at 322. Moreover, in Penry J, the Court stated that in the absence of a special jury instruction “defining ‘deliberately’ in a way that would clearly direct the jury to consider fully Penry’s mitigating evidence as it bears on his personal culpability...a juror who believed that Penry’s retardation and background diminished his moral culpability and made imposition of the death penalty unwarranted would be unable to give effect to that conclusion if the juror also believed that Penry committed the crime ‘deliberately.’” Jd. at 323. Likewise, the Court observed, the mitigating evidence concerning Penry’s mental retardation, which indicated his inability to learn from his mistakes, was relevant to the second issue only as an aggravating factor because it suggests a “yes” answer to the question of future dangerousness. Jd. at 323. Consequently, the Court concluded, the second special issue “did not provide a vehicle for the jury to give mitigating effect to Penry’s evidence of mental retardation and childhood abuse.” Jd. at 324. With respect to the third special issue, the Court stated, a juror who found that Penry’s mental retardation and arrested emotional development rendered him less culpable for his crime than a normal adult would not necessarily l conclude that Penry’s conduct was reasonable in response to the provocation, if any, by the deceased. “Thus”, the Court reasoned, “a juror who believed Penry lacked the moral culpability to be sentenced to death could not express that view in answering the third special issue if she also concluded that Penry’s action was not a reasonable response to provocation.” /d. at 324-25. In light of the prosecutor’s —_— to the jurors that, under their oath to follow the law, they must follow the instructions they were given in answering the special issues, the Court concluded that, “in the absence of appropriate jury instructions, a reasonable juror could well have believed that there was no vehicle for expressing the view that Penry did not deserve to be sentenced to death based upon his mitigating evidence.” Jd. at 326. In Penry I, the State of Texas conceded at oral argument before the Supreme Court that ifa juror concluded that Penry acted deliberately and was likely to be dangerous in the future, but also concluded that because ofhis mental retardation he was not sufficiently culpable to deserve the death penalty, that juror would be unable to give effect to that mitigating evidence under the instructions given in the case. See id. at 326. Finally, the Court held that “[{iJn this case, in the absence of instructions informing the jury that it could consider and give effect to the mitigating evidence of Penry’s mental retardation and abused background by declining to impose the death penalty, we conclude that the jury was not provided with a vehicle for expressing its ‘reasoned moral response’ to that evidence in rendering its sentencing decision.” /d. at 328. Justice Scalia, in his concurring and dissenting opinion in Penry /, criticized the majority’s holding as follows: In providing for juries to consider all mitigating circumstances insofar as they bear upon (1) deliberateness, (2) future dangerousness, and (3) provocation, it seems to me Texas had adopted a rational scheme that meets the two concerns of our Eighth Amendment jurisprudence. The Court today demands that it be replaced, however, 2 with a scheme that simply dumps before the jury all sympathetic factors bearing upon the defendant's background and character, and the circumstances of the offense, so that the jury may decide without further guidance whether he “lacked the moral culpability to be sentenced to death,” ante, at 2950, “did not deserve to be sentenced to death,” ante, at 2951, or “was not sufficiently culpable to deserve the death penalty," ibid. The Court seeks to dignify this by calling it a process that calls for a “reasoned moral response,” ante, at 2949, 2951--but reason has nothing to do with it, the Court having eliminated the structure that required reason. It is an unguided, emotional "moral response” that the Court demands be allowed--an outpouring of personal reaction to all the circumstances of a defendant's life and personality, an unfocused sympathy. Id. at 359-60 (Scalia, J., concurring in part and dissenting in part). The sentencing scheme and instructions adopted by Texas in Penry’s second trial, the subject of the present case, do not satisfy the constitutional requirements described in Penry J. The jury was not clearly and directly instructed that it could consider and give effect to the mitigating evidence of Penry’s mental retardation, organic brain damage and abused background as a whole and beyond the scope of the special issues by declining to impose the death penalty. Texas did not replace its sentencing scheme with one which puts “before the jury all sympathetic factors bearing upon the defendant’s background arid character, and the circumstances of the offense, so that the jury may decide without further guidance whether he ‘lacked the moral culpability to be sentenced to death{.]’” Jd. at 360 (Scalia, J., concurring in part and dissenting in part). Instead, in the present case, the jury was instructed: “If you find that there are any mitigating circumstances in this case, you must decide how much weight they deserve, if any, and therefore, give effect and consideration to them in assessing the defendant's personal culpability at the time you answer the special issue. If you determine, when giving effect to the mitigating evidence, if any, that a life sentence, as reflected by a negative finding to the issue under consideration, rather than a death sentence, is an appropriate response to the personal culpability of the defendant, a negative finding should be given to one of the special issues.” These instructions require the jury to consider and use only mitigating _ 3 evidence — to the special issues, and permit the jury to decline to impose the death penalty only if that relevant mitigating evidence would cause the jury to change a “yes” answer to a “no.” Therefore, the sentencing scheme used in Penry’s second trial is subject to the same flaws pointed out by Penry I. It does not permit the jury to give effect to the mitigating evidence of retardation and abuse as a whole and beyond the scope of the special issues by declining to impose the death penalty despite its findings of “yes” to the three special issues questions. The jury’s consideration of the mitigating evidence of mental retardation, organic brain damage and extensive child abuse is still shackled and confined within the scope of the three special issues. Therefore, the trial court failed to comply with the dictates of the Supreme Court and again deprived the jury of the ability to give full and complete effect to Penry’s mitigating evidence of mental retardation, brain damage and child abuse. The Supreme Court in Penry / held that the jury was not adequately instructed to take into consideration all of Penry’s mitigating evidence and that the terms in the Texas special issues were not defined in such a way that the jury could consider and give effect to all of his mitigating evidence in answering them. When the Court reversed and remanded for these reasons, the district court and this court became bound by the mandate rule. The mandate rule is not, strictly speaking, merely a matter of law of the case. See United States v. Wells, 519 U.S. 482, 488 n.4 (1997). On remand, the district court and the court of appeals owe obedience to the mandate of the Supreme Court and must carry it into effect. See Vendo Co. v. Lektro-Vend Corp., 434 U.S. 425, 427-28 (1978) (once case is remanded, circuit court is bound by decree); MOORE’S FEDERAL PRACTICE 3D § 134.23{1){a]. Subsequently, the Supreme Court distinguished its holding from Penry / in cases involving other types of mitigating evidence. See Johnson v. Texas, 509 U.S. 350, 369 (1993) (“The evidence of petitioner’s youth, however, falls outside Penry’s ambit. Unlike Penry’s mental retardation, 4 which rendered him unable to learn from his mistakes, the ill effects of youth that a defendant may experience are subject to change and, as a result, are readily comprehended as a mitigating factor in consideration of the second special issue.”); Graham v. Collins, 506 U.S. 461, 475-76 (1993) (“The jury was not forbidden to accept the suggestion of Graham's lawyers that his brief spasm of criminal activity in May 1981 was properly viewed, in light of his youth, his background, and his character, as an aberration that was not likely to be repeated. Even if Graham's evidence, like Penry’s, had significance beyond the scope of the first special issue, it is apparent that Graham’s evidence — unlike Penry’s — had mitigating relevance to the second special issue concerning his likely future dangerousness. Whereas Penry’s evidence compelled an affirmative answer to that inquiry, despite its mitigating significance, Graham's evidence quite readily could have supported a negative answer.””). Accordingly, we are still bound by the mandate and the holding of Penry / and must carry them into effect now in the present case. Moreover, there is no circuit precedent which prevents this panel from owing obedience to the mandate and holding of Penry J. In our prior decisions, Penry / was not applicable because the proffered evidence either was not constitutionally mitigating evidence’ or was not beyond the scope of the special issues or beyond the effective reach of the jurors,’ or because the claim was procedurally barred.’ In Graham v. Collins, 950 F.2d 1009 (5" Cir. 1992) (en banc), this court explained that Penry - 'See Madden v. Collins, 18 F.3d 304, 398 (5* Cir. 1994) (citing Graham v. Collins, 950 F.2d 1009, 1029 (5* Cir. 1992) (en banc)). *See Graham v. Collins, 950 F.2d 1009, 1029 (5* Cir. 1992) (en banc); Miller v. Johnson, 200 F.3d 274, 289-90 (5* Cir. 2000). *See Emery v. Johnson, 139 F.3d 191, 199-200 (5* Cir. 1997). 5 I presented a “wholly different type of mitigating evidence. Net-evidence of good character, but of bad character; not evidence of potential for rehabilitation, but of its absence; not evidence of a transitory condition, but of a permanent one; but nonetheless evidence which was strongly mitigating becouse these characteristics were due to the uniquely severe permanent handicaps with which the defendant was burdened through no fault of his own, mental retardation, organic brain damage and an abused childhood. There was no way this type of evidence could be given any mitigating force under the second special issue.” Jd. at 1029. This court in Graham observed that “Penry can fairly be read as precluding use of the Texas statutory scheme in any such situation. But, Penry can also fairly be read as addressing only a situation where some major mitigating thrust of the evidence is substantially beyond the scope of any of the [special] issues.” /d. at 1027. Consequently, the use of the Texas statutory scheme was precluded in Penry’s situation and this panel has a duty to carry into effect the mandate and holding of Penry J. For these reasons, I would grant Penry’s application for a COA. I would also grant a certificate of appealability to consider the alleged violations of Penry’s 5” and 6" Amendment rights. I share the concerns articulated by Judge Emilio M. Garza’s special concurrence in Flores v. Johnson, 210 F.3d 456, 458-70 (5 Cir. 2000) (Judge Emilio M. Garza, specially concurring) and believe that Penry has made a substantial showing that the cumulative effect and reinforcement of the prohibited use of the Texas statutory scheme by the erroneous admission of the psychiatric testimony further violated his constitutional rights. APPENDIX B DECISION OF THE UNITED STATES DISTRICT COURT CLERK, ::. 3. i SOUTHEKN th 4 rr oO FF CO F Yes. And, what is your relationship with him? He is my brother. Are you older or younger? I am younger. By how much? Two years. Did you have another brother and sister? Yes. Now, you neve been convicted of a crime, is that right? Yes. What was thet? Burglary of a habitation. Okay. And, in what county was that? It was Eighty-Two, Eighty or Eighty-Two. And, how old were you? Probably about twenty, maybe. Lets talk about Johnny and his growing up a little bit. Dad Johnny go to school? Yes. Do you know what grade he attended? First grade. Did he attend school after that? Yes. oye PENGAD!I NOY. MUNCIE. H 4/8u8 21 23 rs oO +» O ry oO Fr O F* O FY 1081 Well, lets go back to the first grade. Did he complete the first grade? No, he didn't. He did not? He did not. And, you said that thereafter, he went to school again? Yes. And, where was that? Mexia State. What is Mexia State? It is a school for the mentally retarded. And, how old was Johnny there at Mexia? Close to fifteen, not quite sure on that, but, he was there a couple of years at least, the best I can remember. When you say twelve or fifteen, that was about how old he was? Yes. Now, did you and your brothers and sister attend school regularly? Repeat that, please. You and your brothers and sisters all went to school? Oh, yes. PENGAOI HOY MUNCIE '* *4/8u8 21 23 ei] > oO FF O »F 1082 In the normal course, first grade and on? Yes. Now, when Johnny was a little kid, did he learn to read anc write? No. And, when he got back from Mexia, could he read and write? He could spell his name, and I think he could spell cat, and maybe dog. Did you work with him to try to get him to read and write? Yes, we all did. Who was that? That was my dad, my aunt and us other kids. Do you now know that he can read and write at a relatively low level? Yes, from what you told me, yes. Do you think Johnny is retarded? Yes. what makes you think that? It is hard for him to comprehend things. They don't come easy with him. You have to sit there and talk to him for a while before they actually begin to sink in. Did Johnny spend lots of periods of time locked in PENGADIINOY MUNCIE. 1% 4/908 er-az-13 rr oO Fr OO FF Oo FF DO FF OF ODO FY o0o +>} Oo F O a ee 1083 @ room? Yes. And, where were you living when that happened? We were living on Brew Street in-Baycliff. That was before he went to Mexia? Yes. How long was he locked in this room? From eight hours on up. And, who would lock him in there? My mother. And, did you ever let him out? During the day while she was at work, yes. I couldn't understand. During the day while she was at work, when she went to work, we did let him out. Were you afraid, back then what would happen to you and/or Johnny if she found out that you had let him out? Several times she come home early and we got in trouble, Johnny got beat. Would the family have supper together? When Daddy was home, we all ate together. Did Johnny participate? We all ate together when Daddy was home. How often was Daddy home? PENGADIINOY MUNCIE I% 4/7 3uU8 SF-az-t3 oO Fy; Oo? Oo FF O °F 2 ” 2) ea > Oo ry OD FF ODO F DY eee “ee Maybe twice a week at supper time. Lots of times he was late coming home. Did he work long hours? Yes, he did. He was holding down many jobs, once. And, when he was not there, whet wc 4d Johnny do about supper? He would do without if he wasn't good. How long would he go without supper? About five days out of the week. Is there a bathroom in that room? No, there wasn't. Could he get to a bathroom? No. What would he do about going to the bathroom? He woulec go to the attic and take a poop. But, he could get to the attic from his room? Yes, the attic entrance. Did the room smell? Yes, it did. From what? From urine and bowels. Is your father still alive? Yes. What is the state of his health? Well, he has had another stroke, and they found 1084 PENGAO!INOY MUNCIE & 4/508 eF-az-13 24 25 -~ Oo Fr? O FF O 1085 some kind of a tumor or something on his brain. They don't know if it is malignant or not, still running test. Is your mother still alive? No. Now, when you had let Johnny out of the room, what sort of things would he enjoy doing? We would sit out underneath the fig trees and play cards with him and try to have fun with hin, you know. Was your mother affectionate with Johnny? No. Ever see her hug him? Twice. And, that's it, twice in over the years that you were growing up? Yes, ma'am. Did your mother call Johnny names? Yes. what words would she use? Well, the main thing, was “Blackie Carbon.” Why did she use that word? She got it off of a commercial, but, she would get hateful like, she was ashamed of him, like she didn't love him or something, you know. PENGADIINOY MUNCIE. 1% 4/38 SFr-aAz-i3 23 24 > oO FF O FF BO > OD FY 2D She called him other names? Yes, she called him short little bastard, and mother-fucker and all kinds of filthy words. What would the tone of her voice be? Hateful. Did you see your mother beat Johnny? Yes, I did. How much would she beat him? ’ After a while, it was practica’ly an everyday affair. And, was it normal discipline or just a beatinc? It was a beating. Belt buckles, belts, it didn't matter, brooms, toy brooms, sticks and mop sticks, and anything she could lay her hands on, or her feet, stomp on him and stuff, and didn't matter to her. Did she ever threaten to blind him? Yes. What would she do? He would look at her wrong or something and she would just threaten to scratch his little eyeballs out. Would she do it? No, we would stop her. She would put her nails on his face and stuff, and we would stop her. » 1036 i” a73ue PENGAOIINDY. MUNCIE. SFr-az-13 on +, OD FY PD Did your mother use punishment on him while kneeling? That was about an everyday affair, too. How long was Johnny forced to kneel? Sometimes, two hours, four hours, . ‘e hours. Always happened while Daddy was at work. What would trigger your mother's beatings of Johnny? Pardon me? What would trigger them, the beatings? Anything. She could be drinking, could look at her wrong and didn't matter, he would say I love you, Momny, Anything. You mentioned a time that your mother picked hinz up? Yes. Beat him with a mop that your aunt had given him. Can you describe the nop? It was a little mop and broom that my Aunt Jane got hin. How big was it? It was kiddie size, little biddie short thing. Can you tell me about how many feet it was? Probably about two and a half, maybe three. What was it made of? 10€7 ~™ afoul PENGAOIINOY MUNCIE Sf-Az-1% a > oO — a It was wood. And, what did you see your mother do with the mop and broom? Beating him with it and breaking it over his head and his back and his legs ana where it would hit. What did Johnny say? Please stop, Mommy, please, I love you, Mommy. Don't hurt me no more. Do you remember another time when your mother ran hot water on Johnny? Yes. Where were you? . I was sitting on the toilet taking a “pp” anc Mama went into Johnny's room and Johnny had wet the bed again and Mama started running hot bath water, and you could see the steam rising up out of the shower. She drug him by the nape of his neck, like a little dog, by the shirt, back of his shirt, and she threw him in the bathtub and she held his head down with his face in the drain, saying, I ought to just drowned you, you little bastard. She said, drowned you, little bastard? | Just drown you, little bastard. - ~~ af3ue8 PENGADIINOY. MUNCIE. SF-az-13 — a. 1069, What did Johnny do? He started fighting and that is when she wantce to -- his eyeballs out, pulled him out of the tub. , ; Do you remember another occasion wi the mother forced Johnny to drink his own urine? Yes, or he had to go and “pp” and he was banging on the door, wanting out to go to the bathroom. Ana, how old was Johnny at the time? I'm not sure. I think he was about five or Six. Five or six? but, it woke Mama up, him banging on the door, anc Mara come in there, and he said, Mama I have got to "pp" and I am thirsty. So, she made hin “pp” in the toilet and she made me go in there and watch. Why did she want you in there to watch? I don't. I guess she got a kick out of it or something, I don't know. She always did that. After he went to the bathroom, what did she do? | She ‘told Trudy to go get her a cup, and she went and got it. I can't remember exactly how she came in, came in with the cup, but, she dipped ™ araue8 PENGAOIINOY. MUNCIE. eF-AZ-13 , Oo FY CO A rr oO F © it in the commode and mace him drink it anc she said thac's all your getting for today, 80, you had better make it last. How full did she fill the cup? She filled it up to the rim. Did Johnny drink it? i saw hin drink it and I had to go outside of the door. Do you remember on another occasion your mother making your brother eat his own bowel movement? Yes, i do. How Old was he? ke was about four or five, then, and I had just had a nightmare and I wanted to crawl in bed with Mama, and Johnny was in the doorway, she was facing Johnny, with our heads up against the wali ana she was facing Johnny in the doorway. And, what was Johnny doing? tic Was kneeling on his knees. And, what did she make him do? I walked by and I smelled a bad smell and I looked at Johnny and he was sitting there, he was on his knees eating his own bowel movement out of his own drawers. 1090 ~ e/sue PENGADIINOY MUNCIE. SF-AzZ-13 I'm sorry, I didn't hear you. He was on his knees, eating his own bowel movement out of his own drawers, his panties. Q Was he wearing the panties he was eating something out of, or was he wearing a separat pair? A No, he was wearing a separate pair. What, did he hold the panties? A He held them in his hand, cupped them in his hands. Q What was his reaction to that? A He was holding it and he was looking everywhere but, Mama's direction, he looked like he was really ashamed. Q What did she do at this time? z. She wee sitting there on the bed drinking a Dr. Pepper and watching him. CY MRS. LICSB: = Pass the witness. CROSS EXAMINATION QUESTIONS BY MR. PRICE: \ Q Are you married, Mrs. Anderson? A Yes. Q Do you have children? A No. Q Do you recall -- well, you testified that your \ 10S] PENGAOIINOY MUNCIE ('% 4/3U8 eF-aAz-13 23 24 — a. 1992 brother went to the first grade, is that right? A Yes. 2) Do you recall that he actually went through the \ entire first grade year and failed? A No, I don't recall. Q You don't recall that? No. be 2 Q Do you recall, or do you know that in the second, -- the second time that he started through the first grade, thet the school officials recommended that he be put into a special education class because he was a pehavioral problem in school? Do you know anything about that? re I was down there -- DY MR. SNITH: Can we approach, Your Honor? BY THz COURT: Yes, Sir. “bY MR. PRICE: Why can't they state their objectio-, if they have got an objection, from here? BY THz COURT: You all can approach the bench. REPORTER'S NOTE: (WHEREUPON THE FOLLOWING CONVERSATION WAS HELD AT THe aa 1 PENGAOI NOY MUNCIE 4/808 21 1993 BY MR. SMITH: The Motion in Lemine, Your Honor, he is required to approach before he goes into prior bad acts, and what he is going to do, is to take a lot of hee ay that comes in from Johnny's mother and ask her if she knows, that is just to get it before the jury, and no way is that appropriate. BY MR. PRICE: | Behavioral problems in the first grade? 2Y THE COURT: Okay. So far, what he has asked I am going to overrule. If you have another objection. BY MR. SMITH: Yes, I do. BY THE COURT: That objection is overruled. (END OF CONVERSATION HELD AT THE BENCH.) Q Do you know whether or not that the reason -that he failed the first grade was because of behavioral problems? A I'm not sure. Ma‘am? PENGAOIINOY MUNCIE 4/ou8 21 23 > rm I'm not sure on that. Okay. Whatever the record shows on that, I guess that would be the way that it would be” I know my mom pulled him out. Okay. You think then he was put i: special education school down in Dickerson there, put in special education classes? I'm not sure on that. All I remember is that the first grade and Mexia. Well, that is a pretty good jump from the first grace, six years old, and how old was he when he went to Mexia? He Was about twelve, about. Talking about five or six years, you don't know what happened to hii in five or six years there? He was at home a let of times. He never aie go to school? I would think. You don't recall him going to any kind of special education school in Dickerson? No, I don't. Okay. You didn't know anything about his problem at school, behavioral problem, as opposed to mental retardation problems, did you know that? No. 1o9$ SF-az-t3 a Okay. Do you recall much about when he was in the first grade? Very vaguely. I remember Mama took him out because she was mac at him for some seesen. Would it surprise you to know that’ -: went the entire year to the first grade, and started the second time around in the first grade, and then, wes pet in a special education school? Is that the way the memory is? No, my memory is just the first grade. I remember Mama pulled him out. Okay. The records indicate the school recommeréed that he be pulled out because he was such a behavioral problem, he couldn't be controlled at sshool. Would you disagree with that any? I don't know. I was younc. That could have happened, then? Yeah. Okay. Possible. He was put in Mexia and stayed up there about three years didn't he? I‘m not sure how long he stayed up there. I know it was a while. I think you testified a while ago, that he was —— > oO + Oo +> OD > » © > 1996 how old when he went in Mexia? About twelve. | He was about bow old when he came out? Maybe fifteen, I'm not sure. About three years? Two or three, I don't know. Your father took him out of Mexia, though, didn't he? | Yes. They didn't discharge him? i‘a not sure. Daddy did all of the paperwork, We were ids. You were what, how much younger are you than him? Two years. m He was fifteen when he came out of there, then, you woule pe thirteen. You can't remember tha-? wo, there is a lot of things I don't remember about my life. but, you can remember all of that abuse that happened when you were two and three years old? i had to watch it. I see. But, you don't know anything about when he came out of Mexia? I remember we went up there to pick him up, that's PENGAOIINOY MUNCIE & «rue eF-az-t3 1097 all I know. Por Christmas in 1971, and brought him home. Does that sound about right to you? I‘m not sure on dates. Okay. You remember your father da ‘ring him home ? Yes. And, he didn't take him back? No, he didn't take him back. Do you krow why he didn't take him back? Well, I thought Johnny was released, I thought that they had called. You didn‘t know it was because of his homosexual activities? BY MR. SMITH: Objection, Your Honor. BY THE COURT: Overrule the objection. BY MR. SMITH: Move to strike the testimony. BY THE COURS: Q A Motion to Strike is denied. Your father never indicated that to you? I was young back then, I don't -- Thirteen years old? PENGAOIINOY MUNCIE ™ *ereuE SF-az.13 oO +} O FY Daddy never discussed things like that with the kids, alot. Okay. If that is what -- Lets talk about some of this abuse -his horrible abuse. He wanted -- mainly he wanted to make up for Johnny, what Johnny lost. Lets talk about back earlier when all of this horrible abuse that you so vividly described to the jury, you remember telling your father about all of that when he would come in? The other kids were scared. You never told your father at all about any of that? No, I didn't. He Goesn't know anything about it to this day does he? He does now, after Mama died. Talkinz about your father a while ago, he is not an invalid or anything is he? No, he's not. He is workinc, isn't he? Yes, he is. Where Goes he work? 1098 PENGADI NOY. MUNCIE IF 473u8 Sf-az-13 Cc Fr Oo > > 1099 He works at Walmart. He lives with you, doesn't he? Right. What would you say about the proposition that he doesn't know or doesn't agree w: you as to all of this abuse? Have you got an explanation for that? All I know is Daddy had a stroke, two strokes, since all of this has happened, and now, he has got the brain tumor in his head, if that is what it is. They are still running test. So, that has caused him to forget about all of this? Daddy is going blind in one eye, and he lost half of his memory. I see, the half he lost, I guess, must have been about all of the abuse? Daddy didn't know nothing about the abuse until after mom and dad divorced, and us kids got up enough nerve to tell hin. How many years did all of this abuse go on? Eighteen years because that is how long they were married. I'm talking about your mother, all of this abuse that you just said, tuld this jury your MUNCIE ™ 4/9uU8 PENGADIINOY SF-Az-'3 ©. A a) Geceased mother perpetrated on this Defendant over here. How many years did that go on? Until he was in Mexia State. And, you said that was about twelve years old? About. And, your father never knew about it? Never xnew. usa: often have you visited Johnny in the last ten years, since he has been in prison? Woll I have been out of state in California anc Arizco:4, so, it has been hard. Pow many tines have you visited him? None. when did your mother die? I think she @ied back in ‘80. You haven't, though, have you? No. Trudy testified for Johnny before, hasn't she? Yes. Would it surprise you that she does not, J yw | ently, dic not know anything about all of this MUNCIE. 6% 4/3U8 PENGAO!INOY SF-Az-13 mo rr, O + OD > ry, Cc FY DO abuse that you just described to the jury? Trudy? Richt. Wrong. She does know about it? She does. Okey. But, if she didn't testify about it pbeforc, thet would be one of those things? Is it vour testimony that your mother would lock Johnny in the room Curing the dav while your father was workins? And, wher your father woule come in at night, hat woulcé happen? if Johnny didn't have trouble, we would all ea: Johnny would eat if it was early ernouch, if supper had already been served or something, Mama would say Johnny has already eaten, make him go without eating. Your father ever talk to Johnny? Yes. Johnny Gidn't tell him about any problems? Johnny didn't comprehend :nuch, and Daddy wee away alot and he was holding two or three jobs down, plus Mama's foot operation, he was also PENGAOIINOY MUNCIE m™ «er908 eFr-az- ‘\ O looking after her. When was that? It was when we were living in Baycliff. I'm not guite sure of the date or time, and all of the abuse was going on, too. Then abuse that you described to this jury at some lenoth there awhile ago, was rather extensive nerri>le and lasted, based on your testimony, ac I understand it, for a period of about twelve years, is that correct? Car you repeat that? The abuse thet vou so vivicly described to thc Sury a few ininutes age, -- Yes -- was rather horrible, it was a constant thinc that occurrec on a regular basis, and lasted for about tvelve years, is that correct? It wes about -- alot constant, about, probably five cays cut of the week. Oxay. And, she would keep him locked in the roo: a 1~ | ee Os ay long, is that correct? When us kids were at school, I would imagine that is where Johnny was kept while she was at work. Your testimony, about he would be required to use the pethroom in his own room, there, she would MUNCIE. 6% 4/7308 PENGAO!INOY Sf-AzZ-13 | 1123 make him do that? No, he wasn't made to do that, just, he would bea= on the door, nobody was home, evidently, he would beat on his door, and beat on the door saying 1 got to go, I got to go, and then, was forced to use it in his rvonm. Dic your mother work during this period of time? Yes, she worked, like I said, she managed at times, she managed at one time a Stop and Go. She worked days or nights? Sometimes both. Didn't she work alot of nich shifts during tho: vears? I'm not aguite sure. You didn't remember that? No. I”~know she worked nights and days, she was manacina seven Stop and Go's, she had to visit all of then. She worked quite a bit, too? Yes. Okay. I take it you were in school several years durina the time that this abuse was going on, were you not? Yes. Did you ever report it to anybody at school? PENGAODIINOY MUNCIE ('% 4/908 23 24 » » nm “ EN A We were afraid back then. Back then, child abuse didn't seem like it was legal, because everybc-, was gettinc it. It is more open and out in the area now. So, I take it, the answer to my cu ‘ion is you Okey. Yor @icn't tell your father about it, either, your own father about it either? Afraid of who? MOw8. Okav. Afraid to tell your father because you rere afraid of your mother? Riekt. : Okay. Where were you convicted of burglary? In Gréinoerry, Texas. Bburclary of a habitation or burglary of a builiin-? Eabitation. Oka". First decree felony, isn't it? Ye Vhet kind of punishment ¢id you get for that? I got five years probation. When was that? It wes right after mom died, probably about PENGAOIINOY MUNCIE '% 4/8u8 ~ ~ 4 oO ry, OD FF 0 1193 "Gl, *°82, something like that. You never told any school officials about it, anc you never told your father about it. Who did you ever tell about it? We all kept it to ourselves. then was the first time that you ever told an;bo2y ia | Z When mom enc Gac finally got a divorce, we tole rIcnAt. When they got a divorce? then was that? mfter eighteen years, I'm not sure, not quite You agon't remember when they cot a divorce? I’m net sure. Kow cfc were you? In the seventies, sometime, I was about eleven or twelve. Thei's when you told him? Did he pvelieve it? Yes. Ee bowed his head in his hands and cried. Did your mother do anything physically to Johnny that caused cuts, scars, bruises, whatever, tl.:ncs ™~ ereue Penaanlinor wun sears 23 24 be ra of this nature tc him? He has got scars on the back of his legs, the pack of both legs. Asfaras hurting him, if it was an accident, I don't know, because I wasn't born then. Thac happened when he was two years old, when he gow. burned in the hot .water? She claéamce it was an accident. co, Cid your father claim it was an accident, toc, Ccicn's he? 3es. lc Was present when that happened, tco, he was hLouwc when that happened? i con't know. I wasn't born. O.n.cy. Asicc, -- since your recollection, since yCu were born, since you remember, you were telling the jury, @sout all of these bac instances. Whet i want you to do, is tell me about any instances about where she cid anything to him that was prysicai harm to him, causec bruises, cuts, burns? o..€ usec to beat him with an extension cord, belt buckles, delts. . Dic they leave marks on him? Lroomsticks. That ceave merks on hin? PENGeol Hor BUNCE se 8u8 or-azis 2) z > Oo FF O > Q o FF & yes. bruises or ham? bruises. Cuts? i'm not sure if he ever got cut. 1 hank she hat ham on top of the head, right on top. are you telling this jury, this type of activaty goes on for ten or twelve years anc your father never knew about it? My father worked full tine. twenty-four hours a Gay, seven Gays a week? hot iake you and I do now, wut, more. He had tO w@in hohe, Jexas Caty to baycliff. he Gic Cole hone? tes. he Cac See ya'il voccasionaliy? Yes. weexay 1 would assume, he would see you two or three Gays awhile ago, when he would come hoe tur SUpper two or three times a week? in tame for supper, 1 said. And, Johnny would eat wath you all, is that coriect? Jolmny would eat with us when Deddy was home for Supper. lle? ermwe ™~ wim PEN aanl mor er -az:3 rr » Rad be haS SHE abusive to you? -n duly sworn to tell the truth, testified on her oath as follows: DIRECT EXAMINATION QUESTIO..S cY Pn. SHKITH: Q wncre do you live, Mrs. Ross? ,. I live in Coolridse, Arizor:. Q arriec? : A 2eL. 2 Ci idren? a i have threc boys Q What was your name before you were married? a Psat, Q Are you related to Johnny Penry? A yes 2 You ari his sister? A 2¢@S. Q Olcer> or younger? A l am slider. Q Yoo are the oldest? aA Yes. 2 How much older than Johnny are you? A Two years. Q You crew up with Johnny? PENGLOIINOY MUNCIE © 4/5u8 Excuse me? Dic you grow up with Johnny? Yes, I dic. yOu tell the jury whether or not you think that Jolnny 15 mentally retarcedc? acS, he as. MR. SisiTil: . wish dese LY TH. cOVn: Pay a 2 &u Guang tO 4SK you to locx at Defencant's weedeat Nunber Ten, alreac; in evidence, that lias ween scentilcice as &@-photograph of the back of yous ovother's legs. Do you see the spots of esgncer Skat On that? ses. WY sue Lecusnsce those a5 scars? ave. Di. he have those scars wher he was growing uz? -us, Se did. bo yuu TemeMoer any incident in Johnny's chilcnooc that would account for those scars? ves. Can't remember, but, when I was about four ho Wes two, he was scolded in the sink, and then, these was another time, when he was about thre’ > > Oo + O ll or four, my mother made him stand on the sink an front of the heater, his legs facing the bacx of the heater, anc 1 can remenper blisters on the back of his legs. ° Now, when he was scolded in the si. you saic he was two? Yes. You were very lattle, yourself? Yes. You have a recollection about it?. I can remenmper pdeing fraghtened anc scaérec anc Johnny screaming. Who was scolaing him in the sink? My mocher. Do you rememper Johnny gcinc to the hospital after that? Yes. You also said that he woulc kneel in front of the heater. Who made him do that? My mother. Ana, where was she when she was doing this? She was in the same room, lying on the bed. And, did he say anything to her? He wanted to get up ana go you know, away from the heater, and he said that it was hot, she wouldn't - PENGAO!INOY MUNCIE 1% a4rau8 SFf-az-13 > A > rr Oo F oO 1114 let ham. You say, you remember plisters on his legs? Yes. in general, Mrs. Ross, how did your mother treat Jonnny? She was cruel to him. Dia she hit him? yes. What did sne hit him with? She nit hii wath a belt, usually, the side with the buckle, and switches, anything that she ccula tind, and slapped him, clawed him, hit him, ané one time she broke a child's broom on him, she hit ham with it. A chilc's prooin? Do you know who gave Johnny that proom? Yes, my Gaa's youngest sister, Jane, brought hi: a little broom and mop to keep his room clean wi:x: ana my mother broke the broom on him. Dia she beat him often? Yes. low often? Quate often. It seemed like he always had fresh marks On his back. Did she ever use cigarettes or anything like ~ a73u8 PENGAD!INOY MUNCIE uFr-Az-13 > Oo +? SO > 1115 that on him? Yes, she would put them to his skin. Did she beat her other children? Yes. Did she beat them the same way she at Johnny? She was cruel, but, not like with Johnny. It was quite different the way she treated Johnny. Did she seem to have some special feeling about Johnny? She had a hatred for him. Did she ever punish Johnny by making him eat or drink anything? Yes. She had -- I had witnessed her making him eat his own increment, and also, drinking his own urine. Can you remember specific times when she had made him drink his own urine? I can remember when we were out somewhere in the car and Johnny had used the restroom in a coke bottle, and she came out -- he was afraid to go outside of the car and do it, he was really afraid to do anything just, you know, what to do, he was always afraid, and she came out to the car, and she forced him to drink it, and she was real hateful and mean to him, and she even held the ™ aravue PENGADIINOY MUNCIE BF-AZ-13 1116 bottle and forced him to drink it. Was Johnny ever kept locked in his room when he was a child? Yes. Locked in there for a long time? Yes. At this time, it wasn't intentionally that way, it was suppose to be to protect him at night, but, Daddy didn't know that Mama was locking him in all the time and keeping him in there some- time for days without food or water. Did he come out when your father came home? When Daddy would come home and he was in time for Supper, my mother let him out before Daddy came in, and it was like he hadn't been in there, but, when Daddy would come home, we would eat together and it would be like, things weren't even happening, but, if Daddy didn't come in on time and mother, was the one that came, you know, he didn't come in before supper, late for supper it was like Johnny was put in his room after supper, and he would ask if he had eaten, and Mama would tell him yes, but, he really hadn't. When he was in that room, what was Johnny suppose to do if he had to go to the bathroom? Suppose to tell Mama so, she could let him out, ~™ a/aue8 PENGADIINOY MUNCIE SF-Az-13 24 25 | let him go to the bathroom. Okay. If he dadn't tell her, what happened? Well, when he had to go, he would beat on the door, Mama would come in there and be real angry at him, she would slam the door am tart beating on him wouldn't let him go to the bathroom, and sometimes, she would, and other times, I guess, it all depended on her mood, and then, she would beat him and lock him back in there, and he would go in the room and he would get a whipping, and she seemed to find a reason to go in there and see, find it and would spank him. How did that room smell? Atrocious. Do you remember an incident in your childhood, involving a knife? Yes. Tell us that story, as you remember it. I can remember my mother coming home, she was very enraged, she was home late, late hours of the night, and I can remember -- I don't remember if she started at Johnny first, or if I was the first. I just remember her kicking me and ripping my dress off, and my Dad sending me to my room, and my room was just right across from Johnny's ~™ arau8 PENGADIINOY MUNCIE SF-AzZ-13 24 25 | ry Oo F DO rr Oo F DOD sts - 1118 and I remember her in there, and she was saying I was going to cut his privates off, so, you won't do this anymore, and she went and got a knife and was actually going to do it. She was going to cut his privates . Yes. Did she use the word privates? No, she normally used fulgar language, when it concerned Johnny or when she was enraged. You said, she went and got a knife? Yes. Did she take that knife into Johnny's room? Yes, and I can't remember -- I don't remember how my Dad -- I just know that he was there, and I remember a lamp or some object being crashed to the floor, and I remember my Dad holding her and trying to take the knife from her, and my memory, I can remember him slapping her, but, my Dad was never violent with my mother, this is the only time I can ever remember him being violent with her, and he was trying to reason with her, and I can remember screaming, Johnny was screaming, please, no, Mama, please, and that's it. Could you describe the knife for us? I was about this long, had a black handle, and ™ a73u"8 PENGAO!INOY. MUNCIE. SF-Az-13 -r 0 FF} O F OO 1119 it was wide towards the handle and it came to a point at the end of the knife. Did you believe that she was really going to use the knife the way that she said? Yes, I was very scared, I was real. scared, I was even screaming. What did your mother use to call Johnny? Seems like her favorite was Little Bastard. Did she use that name affectionately? No. Did she ever show love to Johnny? Sometimes after she had been beating him, which was very seldom that-she did do this, but, she would hold him to her and say I'm sorry, Momny loves you and he would say I know that you love me, I love you too, Mama, and then, there was times when around Dad that she would be a little stand offish, but, show more love towards him than normal, and around other people she would be different. When there was visitors at your house, did her treatment of Johnny change? Yes, she always made sure that he had a shirt on whenever there were other people there be like nothing was happening. ™ Drother, have you not? Yes. And, as Counsel just pointed out, you didn't testify about all of these details of abuse at that time, did you? . No. Are you telling this Court and this jury, now, under oath, that the reason for that was because your mother also happened to be in the same town PEnaandlinoyv eurcrt © 4/508 erat 24 25 eo ry O °F oO ry, OD FY DO = am 1129 or in the same Courthouse? She was in the same Courthouse, yes. So, what effect did that have on you? It scared me, it frightened me. When you were in the Courtroom tes. ‘ying, she was outside, she couldn't come in just like this trial, other witnesses can‘t come in, can they? Yes. And, that was the way that it was at that time, wasn't it? e Yes. But, she didn't know what you were testifying to? You know, I would not know if someone, somehow would tell her something. I was afraid. Alright. How old were you then? I am thirty-six. You were twenty-six then, I quess? About that. Okay. Your father knew about all of this abuse I take it, then, didn't he? He was working all the time. He really didn't know the extent of it. He was trying to help mother, he knew that mother had mental problems, and, he tried to help her, he tried to help her. ™~ «4/eu8 PENGADIINOYT MUNCIE © > Oo +? OD FY 1123 What is the answer, did he know about the abuse, or didn't he know about the abuse? I don't think he knew the extent of it. I really don't know. Working all the time, when he came in, everything was normal, when he uld come home. You are two years older than this Defendant, are you not? Yes, Sir. What period of time, over what period of time, did all of this abuse take place, that you recall? The first I recall it was when Johnny was scolded, in the sink, that is from the first that I remember that it started. When his legs got burned in the sink? Yes. Your father was home when that occurred, wasn't he? I don't remenber. Ma ‘am? I don't remember. You do not remember that? I just remember being frightened, is all that I remember. I remember what happened. I do not remember who let him.in or anything, I just don't remember that part. PENGAOI NOY MUNCIE eF-az.i3 23 24 llo«~ You remember when he got burned in the sink, is that right? Yes. You don't recall how it happened? I was only four, barely four, I jus a child myself, I just remember, -- Well, it would just kind of kept kind of quiet, but, I know that my mother was bathing him, he was screaming, I can remember that, and I can remember him coming home from the hospital. Can you also remember that what she did was leave out of the room and he got the water turned on, Or not? I don't remember. And, he was on the other side of the sink, and he actually got into the water and burned himself? No, I don't remember that. I just remember that I was frightened and scared. Well, opviously, anytime anybody is injured like that, you were four years old, that would stand to reason you were frightened. You are not setting here and telling the jury, you are not testifying under oath that she intentionally burned his legs lixe that are you? Yes. PENGADIINOY MUNCIE 4/308 oO Fr} O F O 1125 You are telling the jury that? So many things that she did do to hin. How do you know that? Because I saw it. - Oh. Maybe I just misunderstood yc. testimony. I thought that you said that you couldn't remember anything but, just -- I saw him there in the sink, with my brother. I said I didn't remember my father being there. But, you remember your mother? What did she do, hold his legs under the water and burn then, is that what she did? ° She was standing there while he was screaming. Ma ‘am? I remember her standing there while he was screaming. Yes ma'am, but, there is a difference between that and if she testified that she had gone out of the room and he got in the hot water and she came running back in the room and got him out of the water and then, she carried him to the hospital? She didn't run back to rescue him, no. What do you remember? I remember her staying there over him while this PENGAOIINOY MUNCIE ™ 4/3U8 | > oO +» O >» oOo Fry Oo F Oo FF ODO F OC 1126 was happening. So, you are telling this jury, that she just burned him? Yes. Okay. But, you didn't tell that ur oath the last time that you testified, did you? No. Sure didn't. You said she always made sure that he had a shirt on, is that right? Yes, she did. Because he had marks on him? Yes. What were these marks from? From belts, switches, he had claw marks on him, too. My mother had long nails, and she clawed him. Clawed him? Yes. And, she hit him with belts? Yes. Did they ever cut him? Yes, he had deep marks in his back, deep marks. So, she kept shirts on him all the time? Yes. You didn't testify about that, before, either, did ™~ 4790 PENGAO! (NOY. MUNCIE. SF-Az-'3 24 25 > Oo FF» OO FF ODO FY oO > Oo FF ODO YF a 1127 you? I don't remember. You haven't read your testimony from before? No. You haven't? No. Okay. I really don't remember what all I said last time. : Do you remember testifying before Johnny was mean to his brother, little brother Jesse? No, I don't recall. Do you recall that now, that he was mean to Jesse? No, Johnny was never intentionally mean. Never was? Excuse me? Never was? No. I am going to direct your attention back to one time previously that you testified and in response to a question from me, I.asked you, “Ms. Penry,” and I believe your name was Penry at that time, is that right? Yes. ™ 4/3ue PENGAOI (NOY MUNCIE SF-aAz-t3 "Isn't it a fact that Johnny Penry was mean towards his younger brother, Jesse, is that correct? “Yes.” My mother was mean to him, to my younger brother Jesse. The question here was, whether Johnny Penry, this Defendant, was mean to Jesse, and your answer was yes, it was? He was never intentionally mean to hin. Then, I said, “Did this go on for several years?" Anc, your answer, "Yes, Sir." “Question, He also had problems with other children in his own peer group or his own age, didn't he? Answer: Yes." Well, he was mentally retarded and he was abused at home. Yes, ma'am. I am asking you about violence, now. I never said he was mean and cruel to other children. He just didn't act normal around them. Are you saying that this testimony didn't occur, that I just read to you? . No, but, I am telling you what I meant by what I said. I am just going by just what you were asked and what you answered. You were asked, “Was he mean ™ 4/ave PENGAOIINOY. MUNCIE. SF-AZ-19 on +, O YF — . ae, n ' 1129 towards your brother, Jesse? And, your answer was "Yes," and I asked you then, “Did this go on for several years,” and your answer was “Yes, Sir." Also, do you recall testifying about him taking a sharp object and picking : skin off the bottom of his brother's feet? Do you remember that? 2 I don't recall testifying to that. You don't? Do you ever recall that you testified that he would get violent at time at home with you all? No, I don't. See if this refreshes your recollection. "Question, of course, this information had to be related to the doctor by someone. Would you say that waeoves cave that information was in error?" And, we were talking about some information that was given to doctors about child abuse, and you said, "Well, no, because he would get violent sometimes with us at home.” ‘ I don't recall saying that. You don't recall saying that? No, Sir. ; Okay. Do you recall when he got out of prison on that rape charge in 1979? | ery 1130 -— siete 1131 ' A Yes, I recall that. ; 1 room in your home? 2 Q And, you recall that he went to live with his 2 A He said, he would tell Johnny to keep his room 3 Aunt and Uncle? 3 clean and to tell Mama when he had to go to the ‘ A Vaguely. I don't remember everything that happened 4 bathroom. , 5 at that time. I was kept pretty b - myself. 5 Q He never thought that was because. stunk like . Q Okay. We are not talking about thirty years ago 6 that, that your mother was abusing the child? ? mow, we are talking about ten years. Do you ? A At the time I was just a child myself. I don't ° remember, that, when he lived with your aunt 8 know what Daddy knew at the time that I was a 9 and uncle for a little while? 3 child. 10 a I remember that vaguely. 10 Q Okay. Well -- we Q Do you remember that he had to move out from 1 A All I knew is I was afraid to say anything myself. 12 your aunt and uncle's move back in with your 12 Q Could it be, Mrs. Ross, that Johnny was a real 13 father, because they couldn't control him? 13 bad behavioral problem? , 14 You remember testifying to that? . 14 A No. : 15 A I remember him coming back to live with Dad, 15 Q That's not true? ; 16 Q Okay. You remember testifying that was because 16 A No. we your aunt and uncle couldn't control him? ; 7 Q How do you know that? a A They didn't know how to handle Johnny. Not that 18 A Because Johnny was loving and affectionate and : ad he was mean or anything, .that wasn't the case. : 19 he liked to be around people and he liked to be 20 They didn't --it was a burden on then. 20 treated just like every other child would. : a Q What did your father have to say about that : 21 Q You got a good memory of that, but, you couldn't . a2 stinking room that he was kept in? : 22 remember the other side af it? 23 A At what point are you talking about? I don't 23 A Well, mainly because the others were the bad 24 understand. ; | : 24 things, were more numerous, and they were wrapped = Q During the whole time that he was locked in that 25 more around my child-life than ten years ago. Alot ™ arevue PENGADI (NOY MUNCIE. SF-Az-13 24 25 non +r, O FY o a 1132 of things I try to forgec. In other words, you remember more now than you did ten years ago, or you remember less now? I remember more ten years ago than I would now. I was afraid to say a lot then. You sure didn't testify this way ten years ago, though, did you? I didn't testify against hin. You didn't? It was clear that my mother did abuse hin. You and your mother both testified for him, didn't you? I don't know how she testified. I didn't hear her testimony. She didn't know how you esenétted ether. did she? Not that I know of. You are telling this Court that you went into that Courtroom and committed perjury, in effect, because you were afraid of your mother? No, at that time I told what I felt. I just withheld some things. If you said that he was violent then, then, your memory was better then than it is now, is that what you just got through saying? m™ arave PENGAD/INOY MUNCIE. SF-Az-13 on ,r, OO FY 1133 No. That's not it? Not it. How many times have you visited him in prison in the last ten years? I have been out of the State of Texas for seven to eight years, and I went to see him a couple of times before I did get married cnd leave Texas. What, ten years ago? Yes. And, since then, how many times have you been to see him? I haven't seen him until today. You haven't seen him? No. I have talked to him on the phone a couple of times, but, I have not seen hin. Was his room fiirly bare asfaras furniture anc things of that nature? Well, at one time, it was a bed and a chester drawers in there and eventually there was just a bed and then, there was, I can just remember the frame of the bed, and then, I can remember just a mattress being in there and then, I can remember a time when there was nothing in there. PENGAOIINOY MUNCIE. 1% 4/308 SF-Az-13 — 23 24 oO Fy, O 1134 Why did they keep stuff out of his bedroom? I don't know. It was just -- it was like it was Mama didn't want Johnny to have anything. Okay. Let me see if this refreshes your memory ten years ago. You probably had : retter memory then than you do now. "Question: Was there any reason that she kept things out of there?” Talking about the room, and your answer was, "Yes. What was that reason? Answer: So, he wouldn't hurt himself.” That was the reason that we were given when we were children. Okay. Okay. But, older, I can understand that, that wasn't really the reason. Well, you were twenty-six years old when you gave that testimony under oath, were you not? Yes. You were older then, weren't you? Yes. And, you were under oath to tell the truth, weren't you? Also, I was reluctant because of my mother being there. I did tell the truth, but, I didn't tell the surrounding, the reason why. PEnceol mor sUNCIE © 4/308 21 2 rr, Oo +> ODO YY 1135 Well, is it true that the reason that the room was kept bare was so that he wouldn't hurt himself? That was what reason that we were given as children. Is that true as a twenty-six year \. | woman, did you believe that was the truth when you testified under oath to that? No, Sir. Okay. So, you then, lie, then, under oath? No, I didn't, lie. Oxay. I just cidn't give the surroundings of the statement. Were you living with your father in 1979, when this Defendant came pack home, after he had been living with your aunt and uncle and they couldn't control him? . Yee. Okay. You were living there, and I think, he stayed there about nine days before he was arrested for this murder, is that about right, nine or ten days? I don't recall how long it was. How long had he been out of prison on that rape charge before he was arrested on this case? PENGAD! NOY euecrt wm 4/508 23 24 o r, O F+ ODO > = = 1136 It was a short time. I can't remember how long. A couple of months, something like that? Something like that. You are two years older then the Defendant? Yes. Dic you know that your parents, your mother included, took him to the University of Texas Medical Branch in Galveston for testing when he was about eight or nine years old? I remember that they were getting him prepared to go to a state school to get help, but, I don't -- I don't remember when he went. I just remember him going there at one point in his life. Lets back up. Do you remember when he went to the first grade? I wouldn't remember when he was in the first grade. You would have been, what, the third grade? Third, yeah. He failed the first grade the first year, did he not? Yes. Actually, he wasn't really in school that much, though. Do you recall that the problem that he was having ™~ «/3u8 PENGAOIINOY MUNCIE er-az-i3 at school was behavioral problems? Yes. And, then, they suggested that he be put in a special education school, did they not? Well, I remember him being put into ne, and I don't remember why, or exactly when. Okey. Your mother and father were doing that, were they not? Yes. Okay. All of this abuse going on during this time? Yes. Okay. When he was going to school and going to the special education school, when, he was in the first grade? Yes. A lot of times he wasn't -- I remember Mama took him to Dickinson to a special school, I believe, and a lot of times she didn't take hin. What about the first grade? Alot of times she didn't send him to school, either. If the records indicate it was because he was a behavioral problem, is that consistent with your memory? 1137 ™ «4rtue PEnGeol nor MUNCIE That is, I remember, yes, it had to do with sone behavioral problems, but, nothing to do with mental problems or anything like that, just he was an emotionally disturbed child. Oxay. But, he wasn't emotionally . *turbed arounc the house, he was abused at home, but, he was at school, he was emotionally disturbed? If you were abused, you would probably be emotionally disturbed, and other people, too. What I am saying, you say at home, that he was a loving, tender child, never did anything of that type? As long a3 my mother when she was gone, we would sneak him out of the room, and yes, he triec, he tried to be -- to play with us and stuff, anc enjoy himseif, but, yes, he still had problems. He would scared wondering if my mother was coming, anc he was scared, frightenec. But, he wasn't mean? ho. So, if you testified to that ten years ago, what is your explanation now? I Gon't believe I testified to him being meen, when we were children or anything like that, 1138 PENGADI (NOY MUNCIE * *' ve SF -Az-13 a 23 24 or in the sense, that he was intentionally mean. Q What about his violence towards Jesse and others? oa He wasn't trying to hurt Jesse, h vould be -- they would both be trying to occupy themselves they had no toys there, they had nothing there. BY MR. PRICE: May I approach the witness, Your Honor? BY THe COURT: Yes, Sir. Q I want to show you your testimony, Ms. Penry, just so that you won't think that I am inventins this some way or another. BY MR. SMITH: What page? BY MR. PRICE: Page 454, cross examination, about the third question, fourth question. Q I ask you, and you read along with me here, "Ms. Penry, isn't it a fact that Johnny Penry was mean towards his younger brother, Jesse, is that correct?” And, what was your answer? > oO FF» CSC > PENGADI NOY MUNCIE © «4/508 Sf-az.13 _— a 1140 141 "Yes." ' A That was not testified, was he mean to other Okay. Is that your answer today? 2 children. Yes. 3 Q Okay. Okay. I want to direct your attention Was he mean towards Jesse? 6 to Page 456, of the transcript. He wasn't mean intentionally towas. his younger 5 "Question: There have been sc medical brother. I did not surround that answer with 6 records that Johnny's lawyers introduced some another comment. I didn't specify the happenings ? wedical records here yesterday, and in those of what things went on, what happened, I just 8 records there are some indications that there mesely enewases the questions. 9 was @ lot of violence conduct that he exhibited And, the next question,"Did this, go on for 10 particularly towards other children and I am several years?" And, your enswer was, " talking about over a period of several years, “Yes, Sir." 12 Starting back in the first grade area. Okay. 13 BY MR. SMITH: But, I was probably thinking about the whole 14 May I approach, Your Honor? thine that was going on with my younger brother, ; 15 BY THD COURT: not just that, but, the thing with my mother, - 16 Yes, Sir. What do you need? and everything surrounding it. ; 17 REPORT:R'S NOTE: (WHEREUPON THE FOLLOWING Then, the next question says, “He also hac 18 CONVERSATION WAS HELD AT THE problems with other children in his own peer i 19 BENCH.) groups or his own age, didn't he?" And, what 20 BY MR. SMITH: was your answer? : 21 Before the jury, reading a question "Yes," but I didn’t say it was because he was 22 from a document in evidence from a prior mean to then. 23 trial, which is not in evidence in that Well, I think, that was what we were talking 24 trial, being prejudicial and requests to about, wasn't it, being mean to Jesse? 25 strike it. ! FPENGAOIINOY MUNCIE '% 4/308 SF-Az-13 24 25 BY MR. PRICE: Proper cross examination. She has indicated that he wasn't mean or violent towards anybody, and in her prior testimony, just a one hundred eight degre .ifference. Bx MR. SMITH: Those questions, I didn't object to that. That question, just recites that there were records that were in evidence, the trial record, but, no such records in evidence here, and I am going to oppose any records comino in here. BY TH: COURT: Let me see the question. And, a couple of answers. This is a competency hearing, and incidentl;;, this is not the capital murder trial. BY THE COURT: Objection is overruled. BY MR. SMITH: Just for the record, the objection is under the Fifth, Sixth, Eighth and | Fourteenth Amendments to the constitution, corresponding with the Texas Constitution 2.42 ™ araue PENGADIINOY. MUNCIE SF-Az-13 24 25 1143 ' and Texas Code of Criminal Procedure. BY THE COURT: A Still overruled. I am going to direct your attention back to the question, Line 15, Page 456 of the “anscript. "There have been some medical records that Johnny's lawyers have introduced, some medical records here yesterday, and in those records, there are some indications that were a lot of violent conduct that he exhibited, particularly, towards other children, and I am talking about over a period of several years, starting out back in the first ocrade area." Was your answer, “Yes, Sir"? I wasn't answering yes, thet he was being mean to the children. I wes answering the question that are based on the medical records. Okay. Next question. “But, of course, this information had to be related to the doctors by someone? Would you say that whoever gave that information was in error? Answer: Well, no, because he would get violent sometimes with us at home.” Is that your answer? I don't remember. ™ «areue8 PENGAOIINOY MUNCIE SF-az-13 ono Fr, OO »Y on ry, ODO FY OD Don't remember, oh, okay. I didn't misread is, though, did I? No. , You were still living at home when he went to Mexia State School, were you no? Yes. o Your parents got him into the Mexia State School, did thev not? Yes. They took him up there, did they not? As I remember it. And, occasionally they would go visit him or get him and bring him home, on a furlough type thinc? I don't ever remember them brincing him hone, Don't remember moments of ever wanting to bring him home, and I remember .goine to visit hin, and taking him out for maybe a couple of hours, I don't recall bringing him home. We could have but, I don't remember. How many years was he in the Mexia State School? I don't remember that either. Was it about three, be a ball-park figure? Perhaps, but, I don't remember. You know about what age he was when he went in? 1144 i~ a/3u8 PENGAD/INOY. MUNCIE. BF-AZ-13 1145 I don't remember, except maybe around twelve or something like that. .I don't remember. Did you ever go to the Mexia State School? Yes. That is a school, too, is it not? . * is not a hospital for the mentally ill or eomethinet We were just explained that as children that it was just like a little community that he lived in. I really don't know what it was. I just know what Dad would tell us. Did he evezr sell you about any problems that he had up there at the schcol? I don't remember. Do you recall testifying before that he told you that he didn't like it because he couldn't get along with the boys, with some of the boys up there? I remember him savino that he didn't like being there. I don't remember .as to why at this date. You also,recall that he also told you that he didn't like the teachers up there? I don't remember. Okay. If you testified to that before, would that be accurate? ™ «arsue8 PENGADIINOY MUNCIE SF-Az-13 N 23 24 1146 A I don't even remember. Q Let me show you your testimony from before and see if it refreshes your memory, a little bit. BY MR. SMITH: Can we have the page? BY THE COURT: What page, Mr. Price? BY MR. PRICE: Page 467. Start with Line 18. Q “Did he ever talk to you about the Mexia State School? Answer: Once in awhile. Question: Did he like it? Answer: No. He talked about a lot of things that happened to him that weren't good and thincs like that. Question: What were some of the thincs that he would tell you about that? Answer: Well, he couldn't get along with the boys, there. He didn't like the teachers.” Is that your answers? B Yes, Q Is that pretty well the way that you remember it now? A Yes. Q Okay. Your father took him out of Mexia State School, did he not? ~™ araue PENGADIINOY. MUNCIE. SF-AZ-13 Nn _ 24 25 on +, O > rr Oo FY O 2. ‘ 1147 Yes. I don't think my Dad ever really wanted him to be there. It was just to protect him. Do you recall why your father took him out of the Mexia State School? Because he learned everything that. ~sn't proper. Like homosexuality? | Yes. You think he learned it up there, is that what your father thought? That is what I was told. I don't know if that is what Johnny learned. I just know that is what Dad told me at the time when we were children. And, when he took him out of the Mexia State School, your mother wasn't around at the time, was she? I can't remember. I remember he being there when we moved to Goodrich, and I remember my mom being there but I don't remember at what point in life. Didn't they get a divorce shertly after that? My mother left. And, didn't they -- Shortly after we moved to Goodrich, my mother left. ™ araue8 PENGADIINOY MUNCIE. SF-AzZ-13 + nN uo ~ 12 13 oO rr, 0D Yr OD FY OC oO FY, ND 114% And, they got a divorce sometime after that? Yes. Did they get into a custody dispute also? Yes. It was a fight between the two of then. Okey’. For a period of time. Do you recall when your brother may have gone to Austin State Hospital, and Pusk State Hospital on a commitment out of Harris County? I remember him beince there; but, I don't remember why or when, or when he came home. I just remember that part in life. He wasn't at home when he cot committed to those -- to that hospital, was he? I don't remember. Okay. Your memory is bad in thet area? Well, I just -- I remember a2 lot of the incidents, but, sometimes, I don't remember before or after the incident. You don't remember him cettinc into any kind of trouble in Houston, Texas? I don't re:nember. Don't remember that? What nespened, 20. When he was seventeen vears old, how old would PENGAO!INOY. MUNCIE. 1H 4/3U8 SF-az-13 r Oo F VD oO ry OO F YD A 1149 you have been? Nineteen. And, you can't remember whet happened when you were nineteen? No, I can't remember what haprened that time. Okay. But, you can remember what happened when you were four years old, wher he got burned? Because I was scared. And, all of those others? And, I was abused as a child, elso, that is why I remember those thincs so well. What effect has it had on you? Well, I, me, being abused, as a child? Yes, ma‘ar. Well, it hasn't had a very s00d effect. It has made me want to do my children better than my mother did me. better or the same way? No, definitely not the same way. Better? Yes, Sir. And, you haven't gone out here and killed anyone, either, have you? No. BY MR. PRICE: ™ «reve PENGAO! IWOY MUNCIE 23 24 1150 I pass the witness. BY THE COURT: Any other questions of this witness? BY MR. SMITH: Yes, Your Honor. REDIRECT EXAMINATION QUESTIONS BY MR. SMITH: Q Mrs. Ross, is it hard for you to talk about all of these things that your mother dii as a child? A Very hare. ¢ When Mr. Price reed you a question talking about a me@ical record, you remember that? A Yes. Cc And, the cuestion said, information had to be related to the doctors by someone. Do you remember that? B Yes. Q Do you know who the someone was that gave the information to the doctor? A No. Qo You don't know whether it was your mother? A I don't remember. I don't know. I don't remember. BY MR. SMITE: Pass the witness. ~ «e/eue8 PENGADI NOY MUNCIE SF-Az-13 BY THE COURT: Does the State have any other guestions of this witness? BY MR. PRICC: Just a moment, Your Honc No further questions, Your Honor. BY THE COURT: Okay. You can sten-down, Mrs. Ross. You are not to discuss your testimony with any other witnesses. You are under the rule, you understand?. PY MRS. ROSS: Yes, Sir. BY THE COURT: Not to ask ther whet they said. At this time, we wil! recess for about fifteen minutes. You are still not to Ciscuss the case amons yourselves or with anyone else. REPORTER'S NOTE: (WHEREUPON AT 10:30 A.M, A FIFTEL™N MINUTE RECESS WAS HELD.) (JURY IN AT 10:50 A.M.) BY THE COURT: Who is your next witness, Mr. Wright? 1151 ™~ «ereue PENGAOI NOY MUNCIE SF-At.13 f 1152 BY MR. WRIGHT: Jesse Penry. BY THE COURT: If you will raise your right hand and be sworn in. REPORTER'S NOTE: (WHEREUPC!! THE WITNESS WAS DULY SWOOP: IN EY THE CLERi.) BY THE COURT: Just have a seat. Okay. Mr. Wright, you can proceed. JOSSE Pisi.v callec as 4 witness by the Defense, having first been Guly sworn to tell the truth, testified on his oath as follows: DIRECT OMMINATION QUESTIONS EY Mi... WRIGHT: Q Woulc you state your full name for the record, please, Sir? Jesse DeWayne Penry. Where do you live, Sir? 464 West Army, in Coolridce, Arizona. How cio a man are you? I am twenty-eight. How are you employed? » 0 Fr DO Fy OD » I am manager to a pizza place in Coolridge. ™ arave PENGAO! NOY MUNCIE SF-az-t3 r Oo FF ODO FF ODO FF oOoOOFrmUmUOUCUMPOMUCOUCPOhUC)HOMhCéCéC CPCS Are you related to Johnny Paul Penry? Yes, I am. And, how are ycu related to him? Brother. Okay. Are you older or youncer? Younger. About how many years younger are you? I don't know exactly. Alright. A few years? Yeah. Did you grow up with Johnny? Yes, I did. Is Johnny mentally retarded? Yes, he is. How do you know? Just by trying to teach him to read and write. I have always known more on reading and writinc than he did. Okav. Was Johnny treated the same by his mother as you and the other siblings? We were both treated badly. But, Johnny was the worse. Okay. Is it to believe that Johnny was really your father's child? | No. 1153 PENGAO! (NOY MUNCIE % 478908 24 25 1154 Q Sir, for the purposes of the printed record, does Johnny look strikingly different from the rest of Kis Siblincs? A Yes, Sir, he does. Q Over all, Jesse, speaking of Johnn, was he mean and violent? B No, he was not. Q Dic Johnny have any tendencies to take the blame for thines other than hic? P Yes, he eid. Q Jesse, some years back, isn't it a fact that you €id ect 2 conviction for burclary? Yee, Sir. Ie that in Granberry? Yes, it was. Here in Texas? Yes. Di@ you cet 2 probation? Yes. Die you successfully serve ovt your probation? >» oO F OB F DB F DO °F Yes. BY MR. WRIGHT: Pass the witness. CROSS EXAMINATION QUESTIONS EY MR. PRICE: PENGADI NOY MUNCIE. 1% 4/35U8 SF-az-13 24 25 oO Fy, On FF OF DOF DOF 0OeOhUPrrmUmUCUCOCOUCPFOUCOTUhU—C(Ct OOWUCUC a il 1155 Is that burglary of a building or burglary of a habitation? Burglary of a habitation. And, how many years probation did you get? Five years. When was that? About ten or twelve years ago. You live down the probation, okey? Yes, Sir. No problems? No. Were you with vour sister? Yes, I was. When that was committed? | Yes, Sir. Oxay. That is the same offense, or both together? Yes. You got no other convictions, I take it? No. Okay. And, certainly no violent crimes or whatever in your past? No. How old were you when this Defendant went to the Mexia State School, if you recall? Or do you remember much about that? ™ araue8 PENGADO!INOY MUNCIE SF-Az-13 rr Oo F BD I don't know when Johnny left and came back, I know when he was there, but, then, disappeared and I don't -- I don't really remember how it came in like that. Do you remember when he came back “er he got out of Mexia State School? I remember, yes, in Goodrich. Okay. And, ne lived there with you and your father for awhile? Yes, all of the girls and us two boys lived in Goo?grich. And, were you also, living with one of your aunts? My aunt was living with us, well, -- The other way around? Whet I am saying, steyino at one of my aunt's houses. What aunt was that? Evelyn. Whet is her last nane? Young. Was she the one that was living with you? No, she was livino beside us. She had her house and, well, this was her house that we were stayino in, too. a PENGADIINOY MUNCIE. IX 4/908 Sf-az-i3 ma FF» D °F That was after he got out of Mexia? Yes. Okay. And, how long did he live there with you and your father and sisters after he got out of Mexia? I don't know. I was being pulled between the two parents, so, -- You go to your mother's some? Right. They were having a custody dispute between them over the Givorce, is that fair to say? Yes. Were you around when he went to Austin State Hospital on a commitment out of Harris County? I wes gone. No, I don't remember that. I mean, I remember it, but, I don't. JI wasn't around. Oka:". You do know that he @ie co to the Austin State Hosriteal? Yes. Transferred there to Rusk? Yes. Were you gone from home, the entire time he was in those two hospitals? Yes. It was about a four or five month period, I 1157 ™ «ersue PENGAOIINOY. MUNCIE SF-Az-t3 Q 1158 guess, is all that it amounted to, but, you were not home at that time? Right. Do you know why he went to the hospital? Just bits and pieces. I never did ‘ar the whole story of it. What are the bits and pieces that you remember? BY MR. SMITH: Objection, speakino hearsay. BY MR. PRICE: I didn't understand the objection. BY MR. SMITH: Hearsay. BY THE COURT: Sustain the objection. Did you know that he had left home before he wound up in the Austin State Hospital? No. You didn't know that he had lived in Lufkin, for a while, worked at a restaurant there in Lufkin? No, not at the time. I was in Ohio. Okay. Is that where your mother was at that time? Yes. PENGAOIINOY. MUNCIE. Ik 4/3VU8 SFf-Az-13 on +r, ODO FY on ry» O F ODO YF When did your mom pass away? Eleven or twelve years ago. I think it was in 1980, December, or richt before Christmas. How old were you -- well, you are six years youncer than, or approximately six years y, “er than Mr. Penry is? I am twenty-eight, Yes, Sir. Somewhere in that area. You don't, I guess you don't remember much about his early childhood then, do you? Well, I remember bits and pieces of, you know, the little things, that a kid will remember. How old were you when you have your first recollection? I don't know how old I was, Two or three years old? I don't know how old I was. Okay. Do you remember him coing over to Mexia State School? No, I don't. I remember going to visit hin. Okay. With your parents? Right. That includes your mother? Yes. Are you married? 115 ™ arsvue PENGADIINOY MUNCIE. eFr-az-13 Oe ee oe a oe ° ©) - a 1160 Yes, I an. Do you have children? I have a step-daughter. Are you employec? Yes, Sir, I an. Who are you employed by? Ricardo's Pizza. In your recollection, your eariiest recollection of this Defendant, do you recé:! him being violent? Ro, ZI dor.*t. Do you recall 4m instance where he took a sharp object anc peelec the skir. off the bottom of ycur feet? Yes, I dc. If he ever went -- he did this, but at wasn't as if he ever mace me cry or anything. Ke woulc always pet me anc say be dicn't mean tc. Ke did hurt you some? I can only remember one or two instances, yes. You were a very young chile at that time, weren't you? Yes, I was. Eut, it sticks out in your mind, though? Yes. PENGAO!INOY. MUNCIE. IN 4/508 Sf-AzZ-13 24 25 - f 1161 BY MR. PRICE: I have no further questions. BY THi COURT: Any other questions? BY MR. WRIGHT: Nothing further, Your Honor. BY THE COURT: Okay. You can step-down. You are not to Ciscuss your testimony with any cther witness. Who is your next witness? Lucille Anderson. BY THe CCURT: Lucille Anderson. REPORTIR'S WNOTL: (WEFROUPOM THE WITNESS WAS DULY SWORN IN BY THE CLERK.) BY THE COUR: Just have a seat and if you would, when you sit Gown would you move that mic around where you can speak into it sO everyone on the jury can hear. Alright. ™ «a/aue8 PENGADIINOY MUNCIE. BP-Az-13 24 25 LUCILLE ANDERSON called as a witness by the Defense, having first been duly sworn to tell the truth, testified on her oath as follows: a DIRECT EXAMINATION QUESTIONS BY MRS. LIEB: » co >} 0 > O > OO 2) rr oO FY OD FY DOD » Please state vour name? Lucille Anderson. And, what town do you live? Willis, Texas. Are you related to Johnnv? I am Johnny's aunt. And, that is on his father's side, is that right? Yes. Do you remember your brother's first wife, Shirley? Yes, I remember Shirley. She is Johnny's mother, is that right? Right, uh-huh. How olé was she when she married your brother? About sixteen. Can you describe her personality at that time? Well, at the time, she was very unhappy because her mother had passed away. PENGAOI NOT MUNCIE ™ 4/8U8 SFf-Az-'3 23 24 - Oo F OD oO Fy, OO F DO When was the first time you saw Johnny? 1163 The first time I saw Johnny was when he was brought to me from Laughton,Oklahoma, as an infant baby, three weeks old, his mother was in the hospital, hac to be put in a mental hospita, ¢t the time. And, you saw him when he was three weeks old? Yes. And, who brought him to you? My brother and some of his friends from Laughton, brought the children to me because the mother had to be put in the hospital. You were livine in Texas at the time? Yes, in Houston. Did you take care of the child? Yes, for eight months. Ol:at’. Can you describe hin prwsically as a child? Beautiful). They broucht hir to me in a bassinet beautiful little baby boy. Did there come a time when your brother and Shirley returned from Oklahoma? Yes. After they released her from the hospital, mental hospital in Laughton, they came to home to take the responsibility of their little children. PEHGAOIINOY. MUNCIE ™ 4/7 8u8 SF -at. > Oo F DO ~ ) 1164 And, you were taking care of another child, also? Trudy and Johnny. ad And, Gid they live with vor? Yes, fur about two months, until they could get on their own. When Shirley returned, did she take-over the responsibility for Johnny? She tried, but, it wes ver; hard because the children were lookins to me, I was like maaa, and it wes hard for her, but, she tried. Did you se2 Shirley show Johnry affection? At times she was affectionate, not any long perioc of time, she would kiss them and love Dic you ever hear Shirle: cal! Johnny any ‘het would she cal} hir? il ittle Nut, the Little Spoil Brat, the Little The only meaning that I could put behind that, is that she said, that is my brother, she come home with us, precnancy, two months pregnant “UNCIE ( e/9u8 PENGAD! NOY 24 25 nal 1165 with Little Johnny, and she knew I knew it. You knew that? So that would be behind the words, I suppose, that she would use, and there was jealousy because there was affection toward: ~~ like mama, and I could see, you know, why she would feel that way, because it was very hard to turn to the real mama. Did you ever see Shirley sler Jchnny when he was a little bab? Yes. Not just a slap, she wovld sock him when he worle be sittince in the hich chair eating, ricrt in the movth. See thet on more then one occasion? I just saw it thet one time, erd I don't know how man: more times it could have happened. How old was he when she socked him in the mouth? fhe had been in ovr place abovt two months, after they came home from Lauchton, and it was sometimes between those two months that they had to stey with us, until they could get on their own. So, you saw Shirley sock him when he was about ter months old? Just a little baby in a hich chair. PENGAD! NOY “uNcrt mm 4/908 SF az. > oO > — 2) 2) > You were eating at the time? Yes. What happened to the food in his mouth? If you have a mouth full in your mouth, you are going to spit it out if you ere gl: sed in the mouth. You know what triggered the sian? She didn't like the way’ he was chewing it, or eatinc. I guess it was kind of, you know, little babies, takes tine to learn. Did you sec a Giscipliner; sien, Or something vorse? iI can only talk about whet I saw. Fight. But, was that a norma! disciplinary Net towarcs a little babv, re. it was roucher than that? Dic you say something to Shirley when you saw ‘cll, since we already knew, that I knew that Little Johnny -- she was precnant with him when she came home and my brother forgave her and took him in, gave him his name and to be his feather, he tried to be e cood father, but, 1166 PENGAODIINOY MUNCIE mm «4/au8 SF -az. mr) ») ©) EY a (— 11€7 she knew I knew that he was not my brother's son. Okay. Dic you séy sorethine to her? I tole her, I said, thet he couldn't pay for what she done wrons, that wes her ccing, ot hin, anc he wasn't to blame. Meaning that Johnny wasr.'t tc blame? Littie Johnny wes not to blaze for the way thet he wes brought into this wicke2 systen. she Gicr't sey anythins, che just locked at me. inc, you scic that the feril; moved out when Cohnny was e>out ter months clé or so? Something like thet. souctims thereafter, ¢€ic you sce Johnay with é trokesu erm? Well, Gonctime within thet first year, I saw Lic arm in &@ cast. I @id not see the accident, z &@shec about it, the answer thet I got, was Objection, Your Honor, to hearsay. THU COURT: Okay. Don‘t tell us what someone else told you. ™ «rave PENGADI NOY MUNCIE Sf-az-i3 24 25 > oO > But, you didn't see what happened? No, I didn't see it. But, you saw his arm? I saw his arm in a cast, right. Was there a time later on when Shi: y left one or more of her children with you again? Well, she left my brother again some time later, this was after they were situated in their own little home, she left again and was gone for guite some time, I do not remember how long, ana she took only Trudy with her and not Johnny, and left Johnny ana chen, later Trucy was dropped off at my house with impetigo and I, as soon as I got her well, over the impetigo, she came back to get Trudy. Did she want to get Johnny also? No, she didn't mention Johnny. Was there a time ever that Shirley physically attacked you? Yeah, this one time when she came back just to get Trudy, after I had gotten her well over the impetigo, yes, she attacked me and was accusing me of stealing her children's affection. I knew that she was not well, I knew that she was mentally ill, by the way she acted, but, 1168 ™ «rsue PENGAO! NOY MUNCIE. SFf-az-13 rr Oo F DO A I did have to ward off some blows. She actually, -- She actually attacked me. Did the police come? My son had called the police becaus ‘e was afraid for his mother, naturally, yes. The police came and they had her to leave because she was Gisturbine the peece, and a man was parked down the road a little ways in a truck, waitine for her and she left with hin. And, after Johnny was no rore than a little baby, you physically lost touch with him, didn't see him too much? I would see him occasionally at family reunions. BY MRS. LILM: I pass the witness, CROSS EXAMINATION QUESTIO?’S [TY MP. PRICE: Q Mrs. Rnderson, I believe back when Johnny was severteen years old, did he run away from home? I hearé that he had, but, I don't know that he had. You don't? You do know that he got arrested in Houston, don't you? BY MR. SMITH: APPENDIX G EXCERPT FROM CROSS-EXAMINATION OF DR. PRICE PENGAO!INOY. MUNCIE. IN 47308 SF-Az-13 24 25 objection, and Ninety-Seven is admitted -- it was admitted yesterday, and it is admitted again, we the right .that you will have the right to look at it .over your objection. BY MR. SMITH: —_ Alright. (END OF CONVERSATION HELD AT THE BENCH.) A And, it was actually from Dr. Pebbles, also, MHMR. Q I think they are in. Can I see your MHMR records? A “(Witness Handing). REPORTER'S NOTE: (WHEREUPON STATE'S EXHIBIT NUMBERS ONE HUNDRED ONE AND ONE HUNDRED ONE (A) WERE MARKED FOR IDENTIFICATION BY THE REPORTER.) Q Dr. Price, 1 am going to show you first of all what has been marked as State's Exhibit Number 101 (A), and ask you are those the documents from MHMR that you relied upon? A Yes, they are. Q Now, I want to show you State's Exhibit Number 101, and I am going to direct your attention to a couple of documents in there that I marked already about half way through, The first 1429 PEnacadli~oy. MUNCIE. In 473908 SF-Az-13 23 24 | REPORTER'S NOTE: ys 1430 document there, does that appear to be the same document that is a letter from Dr. Pebbles, that is part of State's Exhibit Number 10] (A)? A Yes, it appears to be. Q And, if you would, the next documer does that appear to be the same document in 101 (A) which is a document signed by Mary Cochran, psychologist? A Yes, it is. BY MR. PRICE: Your Honor, we would offer into evidence, State's Exhibits 101, the Defendant's records from Texas Department of Mental Health and Retardation in Polk County, and State's Exhibit Number 101 (A) which is the document which the witness relied upon. (WHEREUPON THE FOLLOWING CONVERSATION WAS HiLD AT THe BENCH.) BY MR. PRICE: Judge, for the purposes of the record, for all of these exhibits, on the Punishment Phase Exhibits, we would agree for Counsel to make objections out of the presence of the jury. ™ 47308 PENGAD!INOY. MUNCIE. SF-Az-13 1431 BY MR. SMITH: As to i0l (A), Judge, we object on the grounds of insufficient, we usually go earlier, and also, the Fifth Amendment etc. BY THE COURT: State's Exhibit 101 (A) is admitted over the Defendant's objection, and 101 is admitted over the objection, subject to making further inspection of it. BY MR. PRICE: Yes, Sir. For the purposes of the record, I might add. that State's Exhibit 101 has previously heen introduced in these proceedings under Defendant's Exhibit Number Four. (END OF CONVERSATION HELD AT THE BENCH.) Q Do you_have any Texas Rehabilitation? A Yeah. (Handing). REPORTER'S NOTE: (WHEREUPON STATE'S EXHILIT NUMBERS 102 and 102 (A) WERE MARKED FOR IDENTIFICATION BY .THE REPORTER.) Q Dr. Price, I will show you what has been marked as State's Exhibit 102 (A) and ask you if that APPENDIX H EXCERPT FROM THE REDIRECT EXAMINATION OF DR. PRICE PENGAO!INOY. MUNCIE. IW 4739028 SF-Az-'3 24 25 would love for him to take them back to Dallas. BY THE COURT: He has enough records, l]¢*s proceed. Q Now, in 1965, try to do this so eve. one can see, try to write legibly, which I very rarely ao. . | In 1965, there was a verbal and a performance and an overall score, right? A Yes, that's correct. Q Okay. 1 am going to write up here, "V" for verbal, and "P" for performance, okay? Can you reac my writing? Yes, Sir. Does my “P" show signs of brain damage? It might. ono Fry, O YF Tnank you. BY MR. PRICE: At least impairment. Q What was his verbal score in 1965? 72. Oxay. And, what was his performance score in 19657 A 47. Ana, what was the fuli scaie score in 1965? PENGAO!INOY. MUNCIE. IN 47908 23 24 on ry Oo Yr OOUMPrYrhmUOUUCUMPOhUCO]C* 5G. And, that is consistent or inconsistent with your conclusion thet Johnny Perry is mentally retarded?. Consistent. Oxay. What is the next i¢ score ti you are aware of? 1968. 19€t? We have gor a twelve year old row, ccrrect? Yes, that's ccrrect. and, we have a verbal there? 5. , - © th - uw 25. What is the performance score? It is élso 55. enc, whet is the full scale? and, somecay, not now, because it would take woo long, to ex,lain to me how a professional everages 55 and 55 anc gctz 51? It is not an average, it is a different set of forms for the £211 scale 12. : Oney. Eut, that happens? i have seen that happen before. Does that happen sometime? And, what is that consistent or inconsistent? That is consistent. Pencaclimoy MUNCIE. ™ 47908 SF-AZ.(s With your view that he is mentally retarded? It is consistent. Okay. What is the next time, asfaras you know, that anyone ever gave him an IQ test or give him any kind of a IQ scorc? 1$73. Well, before you get to ‘73, let me show you Defendant's Exhibit Seven already in evidence, a copy which is dated June 10, 1971. Have you seen that before? Yes, I have. Ané, what is that? This is an educational prescription that I believe was from the school. Does that say anything about his IQ in 1971? Yes, it says that the results were generally in line with his measureé IQ of 51, which they actually obtained from doinc a chronological age, comparing his mental age, and as a result with have a general IQ score there of 5). So, they did some kind of a proce... that they said was consistent with the 51 IQ? That's correct, yes. They didn't do a separate IQ test, but, they took a look and looked back and said it looks 4431 Pencaolimoy. MUNCIE m™ 47908 21 23 % 1532 consistent with the 51 score in 1968? A Yes, that's correct. Q Okay. Tell me again where the cut-off for mental retardation according to the standard case? . A It is 70, is the cut-off. Now, will you tell me about this 1973? In 1973, there are a few different documents there. A Yes, these were -- it was the first set that ca... from the school system, the Goose Creek Indepencen: School District. Okay. Boounents there dated January 23, '73? January 23, of ‘73, overall IQ was less than 30. Q Okay. Gave him some kind of a test in Goose Creek, then, in January of ‘73, came out less than 50, right? BY MR. PRICE: Could I see that document, please? BY MR. SMITH: That is Defencunt's Exhibit Number Three in evidence. BY MR, PRICE: Could I see it? Q If it had showed something less than 50, -- PEnGacl wor MUNCIE. mw 47908 eF-az.i3 21 oO rr, oO > » or OF OF CO 6 > Less than 50. Get the idea? Yes, Sir. And, then, you have an IQ cf some kind of IQ test in September of ‘73? Yes, Sir, the Austin Stere Hospital. At Austin? Yeah. They Cie a short form of the IC test ané said that the IQ was épproximately 3. Qxay. About 50. And, then, in October of ‘73, €id they do another onc? Yes, that was at Rusk State Hospital. Oxay. That they gave a verbal and performance an &@ full scale, right? ves, that's correct. What was the verbal? The verba. was 50 -- 69. 4 > $$. What was the \perforssarcc? Anc, what was the full sccic? Go. And, was that consistent or inconsistent with mental retardation? That is consistent. Cxay. Now, in November cf 1976, did somebody renweaeolimor MUNCIE. & 47908 eF-az.:3 test him agai? A Yes, that was MEMR in Deep Last Texas. Ana, what score did they get there? A They gave a Stanford-binet, which *¢ the other major IQ test, and came out with an Q of 43. Q they saiac that was 43, and they said that was iow? A They saic that they feit that was ancrther estimate of antellectua. ability. . BY MR. FPRiICc: Where as that document? Where did you get that document from? A Also, that one goes back to -- I don't know tie Lxhabit Nunoer, on the MM. BY MR. SMITH: You may put it in, provably. Alright, under ¢..amate next to the 43. BY MR. FRiCe: Specifically it says, “This appears te be am under estanuation of has avpility.~ bY THe WITNLSS: Mx. Smith, let me write under estimation or under estimate. . BY MR. FRICE: ~534 PENGAO!INOY. MUNCIE. IW 47908 SF-az-13 2) or OF? OF Oo FF Oo Okay. Okay. And, is that consistent or inconsistent with mental retardation? It is consistent with mental retardation. Even if 43, is an under estimate he is still retarded, is that correct? Yes, that would be correct. Then [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0480%3A03. Public record. Not legal advice.