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Jared Tyler
Texas Bar No. 24042073
Tyler Law Firm, PLLC
P.O. Box 764
Houston, Texas 77001
TEL: (832) 606-2302
jptyler@tylerlawfirm.org
Counsel for Jeffery Lee Wood
TABLE OF CONTENTS
APPLICATION FOR A WRIT OF HABEAS CORPUS ......................................1
I.
II.
2.
A jury believed Wood incompetent to stand trial because of Woods delusional and paranoid thinking ............ 30
a.
Mr. Wood seemed to believe that his statements were true, no matter how outrageous
they seemed. ............................................................. 30
b.
I believe that Mr. Wood has a delusional system, an inability to grasp the reality surrounding the issues specific to this case, his role in it,
in the crime, as well as other things that present a direct threat to his own well-being, his
own sense of self. ...................................................... 33
c.
d.
4.
B.
CLAIM 2: APPLICANTS SENTENCING TRIAL VIOLATED DUE PROCESS BECAUSE THE TRIAL COURT WAS
AWARE OF FACTS THAT REQUIRED AN INQUIRY INTO WOODS COMPETENCE BUT FAILED TO CAUSE
ANY INQUIRY TO BE UNDERTAKEN ...................................... 42
C.
2.
3.
4.
D.
E.
CLAIM 5: THE EIGHTH AMENDMENT CATEGORICALLY EXEMPTS APPLICANT FROM PUNISHMENT BECAUSE HIS PARTICIPATION AND CULPABILITY ARE
TOO MINIMAL TO WARRANT THE DEATH PENALTY ......... 57
ii
III.
F.
G.
H.
AUTHORIZATION .................................................................................. 82
A.
B.
CLAIM 2: APPLICANTS SENTENCING TRIAL VIOLATED DUE PROCESS BECAUSE THE TRIAL COURT WAS
AWARE OF FACTS THAT REQUIRED AN INQUIRY INTO WOODS COMPETENCE BUT FAILED TO CAUSE
ANY INQUIRY TO BE UNDERTAKEN ...................................... 84
C.
D.
iii
IV.
E.
CLAIM 5: THE EIGHTH AMENDMENT CATEGORICALLY EXEMPTS APPLICANT FROM PUNISHMENT BECAUSE HIS PARTICIPATION AND CULPABILITY ARE
TOO MINIMAL TO WARRANT THE DEATH PENALTY ......... 86
F.
G.
H.
CONCLUSION ......................................................................................... 91
iv
TABLE OF EXHIBITS
Exhibit
Document
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
Woods IQ has repeatedly and consistently been tested at approximately 80, which
is more than one full standard deviation below normal. There are marked similarities between the situation of people with intellectual disabilities and those with borderline intellectual functioning. Eric Emerson, et. al., The Mental Health of Young Children With Intellectual Disabilities or Borderline Intellectual Functioning, 45 SOC. PSYCHIAT. EPIDEMIOLOGY 579 (2010). These similarities include significantly higher rates of mental health needs,
similar patterns of service response to mental health disorders, and increased risk of exposure to socioeconomic disadvantage. Another study found that [b]oys with externalizing
symptoms and a subaverage IQ displayed an impulsive-response style with deficiencies in
their information-processing capacity. The authors concluded that children with problems
of conduct and BIF [borderline intellectual functioning] belong to one of the most vulnerable groups of youth in Western society. Elisabeth Fernell and Ulla Ek, Borderline Intellectual Functioning in Children and Adolescents Insufficiently Recognized Difficulties, 99
Acta Paediatrica 748 (2010).
2
Id.
Id.
Id. at 3.
Id. at 5.
Id. at 56.
10
Id. at 6.
11
Id. at 7.
12
Id. at 6.
sions during these times will likely be fruitless.13 The middle school
thereafter placed Wood in special education.
Wood was assessed by a different school psychologist in 1990 at age fifteen.14 The psychologist observed that teachers found Wood to be seemingly
happy and socially appropriate with classmates, but easily distracted and
restless.15 He needs instructions repeated. He looses [sic] his papers.16 The
psychologist further reported about Woods behavior,
This examiner observed that Jeff looked his age but acted like a
middle school boy. . . . During both test sessions Jeff chewed gum
so vigorously that his ears wiggled. His facial and body movements were loose. Sometimes he mumbled or distorted his
speech. Jeff was anxious about his test performance and frequently he asked how he was doing. He worded it negatively,
though, as, I flunked, didnt I? On the Rorschach Jeff nervously
rotated the cards and took a long time to respond. He was reluctant to risk an initial answer on the Rorschach. Rather, after a
minute he asked the examiner, What do you think it looks
like?17
Six years later, at age 21, Wood would be charged with capital murder for
Daniel Reneaus decision to murder Kris Keeran. Woods debilitating emotional and intellectual impairments made him vulnerable to Reneau and se-
13
15
Id. at 2.
16
Id.
17
Id.
verely diminished his capacity to anticipate what Reneau was capable of doing inside the convenience store.
Daniel Earl Reneau
Daniel Reneau was a drifter with an unstable personality who wandered into Kerrville, Texas during the summer of 1995. A psychiatrist retained by Reneaus lawyer during his capital murder trial attributed this
unstable personality to Reneaus having a severe personality disorder,
which included some, what we call, narcissistic features, borderline features
and some antisocial features with a history of depression, a history of alcohol abuse, a history of drug abuse.18 Reneau was twenty years old when he
came to Kerrville. He had been confined in a juvenile mental health facility in
San Marcos, Texas, until he turned eighteen.19 Homeless in Kerrville, Reneau
was allowed by an employee of the Save Inn Motel to sleep in its office.20 A
man named David Warner subsequently took him in. Warner allowed Reneau
to stay in his home from August 1995 until the end of October 1995, when he
was asked to leave.21
Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 21: 177. Wood did not
do drugs and did not abuse alcohol. App. 4 at 2 (Affidavit of Nadia Howell, Mar. 25, 2000).
18
19
20
21
It was in early November 1995 that Reneau met Wood.22 Wood at the
time was living with his long-term girlfriend Nadia Mireles and their daughter in an apartment in Kerrvile.23 Although Wood at this time struggled to
hold a job and was unemployed, he had not been engaged in any criminal activity.24 That was about to change due to Reneaus influence. Reneau first
came over to Woods and Mireless apartment with Woods friend Terry.25 In
late November, Wood, Mireles, Terry, and Reneau went on a two-week trip to
Washington State to visit Mireless sister.26 Reneau began a romantic relationship with Mireless sister while there, and she returned to Kerrville with
them.27 Around November 26, 1995, Wood, Mireles, her sister, and Reneau
moved into a trailer owned by Mireless grandfather.28
It was at this point that Mireles believed Reneaus personality began to
change. Whereas Mireles initially found Reneau nice and polite, he became
increasingly erratic and threatening. Mireles became worried about [her]
safety, as well as [her] daughters and [her] sisters. [Reneau] became very
Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 21: 27. Although Wood
was one year biologically older than Reneau, Wood was (and remains) mentally far younger
than his biological age.
22
23
Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 19: 146; Vol. 21: 27.
See also App. 4 at 1.
24
25
Id.
26
27
28
Id.
aggressive, angry all the time.29 It was during this period that Reneau began
arming himself and committing crimes. On November 30, 1995, Reneau had
Wood drop him off at a convenience store in Kerr County, where Reneau used
a pellet gun to rob it of approximately $600. In December, Reneau influenced
Wood and two juveniles to steal firearms out of two buildings known to the
juveniles to contain guns.30 Reneau pointed a firearm at each of the juveniles
and threatened to kill them if they turned him in.31 Reneau kept the stolen
firearms and stored them at Mireless trailer, and always insisted on carrying
one on him.32 During this period, Mireles tried to get Reneau to leave the
trailer.33 Reneau pointed a gun at her and told her that if she ever turned
him in for his criminal activity, he would kill her and her daughter.34
There wasnt really a plan.
Although there was a desire to obtain the safe in which thousands of
dollars had accumulated from the Texaco store, there was no plan, in any
meaningful sense, to rob the Texaco. The store was within walking distance
from the trailer they lived in, and neither owned a car.35 They scratched lot29
30
Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 21: 3336, 49, 5253.
31
Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 21: 43, 58.
32
Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 21: 21; 25 RR 84.
33
34
35
tery tickets and befriended the stores employees, William Bunker and Kris
Keeran, who gave Wood and Reneau free drinks.36 Wood considered them
friends. The talk between all four eventually turned to how to defraud the
store of money.
Then-32-year-old William Bunker was the assistant manager of the 24hour Texaco store. Bunker violated company policy by allowing Reneau and
Wood into the store office, including while Bunker counted out the days money.37 He participated in discussions with them about a plan to commit theft in
which he would leave the back door unlocked and walk outside while Reneau
and Wood would slip in and remove the stores safe and security recording.38
He showed Reneau and Wood where the safe and the recording equipment in
the office were located.39 He told Reneau and Wood approximately how much
money would be in the safe after a holiday weekend (Ten or $20,000), and
when it would be removed for deposit (January 2).40 He was to be given a cut
of the money.41 There was never mention about violence or anyone getting
hurt.42
36
37
24 RR 7677, 86.
38
24 RR 75, 89.
39
24 RR 76, 86.
40
24 RR 77.
41
24 RR 88.
42
24 RR 90; 25 RR 84.
24 RR 88.
44
24 RR 92.
45
46
10
Reneau grew increasingly frustrated and began to brainstorm ideas to get the
money without his cooperation.47 One plan formulated by Reneau before the
robbery was for Mireles and her sister to enter the store and distract Keeran
while Reneau entered through the back and take the safe.48
Wood had borrowed his brothers truck over the holiday. He had to return it early on January 2, so that his brother could drive to work.49 In the
early morning hours of January 2, Wood and Reneau drove to the convenience store and parked outside it. Reneau, as usual, carried a gun. Wood, as
usual, did not.50 Reneau first made an attempt to discretely steal the safe. He
pried open the office door at the back of the store with the intent to wait until
it got busy and then slip inside and take the safe. However, Keeran shut and
locked the door before he had the opportunity to do so. The pair ultimately
gave up and returned to the trailer.51
At about 5:15 a.m., Reneau and Wood got ready to leave the trailer
again.52 Wood told Mireles that they were going to stop at the Texaco and
47
Id.
48
Id.
49
25 RR 87.
Reneau had always insisted that he be armed regardless of what they were doing.
25 RR 84.
50
51
52
11
then go to Devine so Wood could return his brothers truck.53 When Reneau
picked up a gun to take with him, Wood asked him to leave it and said they
were not going to try to get the safe.54 Reneau put the gun under the couch
and Wood walked outside to his brothers truck.55 After Wood left, Reneau
picked up the gun, stuck it in his pants, and told Mireles he was going to get
the money, one way or the other, if he had to kill him.56
Back at the Texaco, Wood told Reneau he would go inside the store and
ask Keeran to let them take the safe like they had all previously talked
about. But Wood returned a few minutes later and told Reneau that he did
not ask him.57 Reneau told Detective Fleming that, at this point, there
wasnt really a plan.58 Reneau told the detective that when he went back into the store, his intention was simply to scare Keeran into giving him the
money.59 He was not thinking about hurting Keeran.60
53
Id.
54
Id.; 25 RR 88.
55
56
Id.
57
58
59
Id.
60
12
While Wood sat in the truck, Reneau entered the store, pointed the gun
at Keeran, and told him to go to the back room.61 His finger was on the trigger.62 Keeran did not respond, but stood motionless.63 Then, the gun fired.64
Reneau told Detective Fleming that shooting Keeran was not what he wanted
to do.65 When, for whatever reason, Reneau shot Keeran, Wood was outside
the store, oblivious to what Reneau was capable of doing and to what he
would do to Keeran.66 After the gun fired, Wood entered the store, confused,
with a look of real shock on his face.67 After Reneau shot and killed Keeran,
he threatened Wood that he would kill Woods girlfriend and daughter if he
did not assist him.68
Daniel Reneaus Trial
Reneau was tried first, convicted, and sentenced to death. The State relied heavily on Mireless testimony during Reneaus trial to persuade the jury
to find Reneau guilty and sentence him to death. It elicited her testimony
that
61
62
Id.
63
64
Id.
65
66
24 RR 219.
67
24 RR 220.
68
25 RR 100.
13
[Reneau and Wood] had told me they were going to stop at the
Texaco and go to Devine, and Danny was going to take the gun
with him and Jeff told him to leave it there, and Danny put it
under the couch and Jeff walked out and Danny picked up the
gun and stuck it in his pants and said he was going to get the
money, one way or the other, if he had to kill him.69
The State told Reneaus jury, [Reneau] was frustrated, because this planning had been going on for at least a couple of weeks, maybe longer, and he
was just tired of all this planning and all of these plans falling through, so he
decided that one way or another, even if he had to kill someone, he was going
to get that money.70 The State repeatedly vouched for Mireless credibility,
telling Reneaus jury that she told the truth. She told exactly what happened.71
The State also elicited testimony in Reneaus trial about threats made
by Reneau against the lives of Woods wife and child, as well as against the
lives of other people with whom Reneau had committed crimes.72 The State
told Reneaus jury during the sentencing phase of his trial, [Reneau] knows
right from wrong and he knew the consequences of his actions. Thats why he
threatened several people. He threatened to kill them if they ever turned him
69
70
Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 20: 44. See also Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 22: 34 (Shes telling the truth under
oath and she has told the truth .).
71
Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 19: 154 (testimony by
Nadia Mireles that Reneau had threatened to kill her and her daughter if she ever told anybody what he was doing).
72
14
into the police.73 The State also recognized Reneaus presence as the impetus
for Woods involvement in crime, including the underlying capital offense:
Its amazing to me that Jeff Wood []is being blamed [by Reneaus
lawyer] for all this stuff, and yet you heard the witnesses. You
have seen the time frame. . . . When did all this criminal conduct
begin? It just happens to begin when Daniel Earl Reneau enters
the picture. Now, its always everybody elses fault. They drag
[Reneau] in and did it, but none of these crimes were happening.
You heard Toledo say, I dont remember anyone doing all this
stuff until Reneau shows up, and then the little crime wave begins. . . . Wood apparently was [not] doing that stuff until Reneau
shows up and after that two months of Reneau coming into the
picture, bam, bam, bam, burglary, burglary, burglary, robbery,
murder. Whats the common equation?74
Reneau was convicted and sentenced to death. He was executed in 2002.
Jeffery Woods Trial
At Woods pre-trial bond hearing, an investigating officer testified that
Wood had no prior felonies and no prior history of violent crime. Nevertheless, Woods bond was set at $350,000. The Fourth Court of Appeals found
this to be excessive and reduced it to $50,000, in part on the basis of its finding that Wood was not a danger to the victim or community. Ex parte Wood,
952 S.W.2d 41, 43 (Tex. App.San Antonio 1997).
Also before trial, the court found sufficient doubt about Woods competency to stand trial to warrant a jury trial. Evidence from the competency
hearing reflected that Wood was functioning academically at an elementary
73
74
15
school level in reading and spelling.75 A neuropsychologist concluded that Wood was
75
76
5 RR 13839.
77
5 RR 183.
78
5 RR 187.
79
5 RR 188.
80
1 CR 8081.
16
days after being admitted.81 The records from the hospital reflect that evaluators noted difficulty with Woods ability to communicate rationally, especially
with respect to his case. Wood did not receive any treatment at the facility.
The discharge decision was based on Woods passing of competency training
materials that tested Woods factual understanding of legal proceedings, but
not his rationality or ability to communicate with counsel.82 After Wood was
discharged, a second competency hearing was held. A neuropsychologist
maintained that Woods delusional thinking and inability to rationally consult with his counsel about his case had remained unchanged.83 Moreover,
nothing in the Vernon State Hospital records suggested to the neuropsychologists that doctors there had evaluated Wood in any manner that would
have brought his delusional system to the fore.84 Nevertheless, a jury found
him competent and his trial began.
Although the State had relied upon Woods girlfriend Mireles to testify
about important events leading up to the offense, including Reneaus dominating influence, his frustration and determination to obtain the safe from
the Texaco, and threats made to harm her and her child, the State did not
81
1 CR 86.
82
83
7 RR 19596.
84
7 RR 203.
17
call her in its case against Wood.85 Instead, it relied primarily on Bunkers
testimony and Woods uncounseled custodial statements as evidence of his liability as a party.
Woods counsel sought to present three witnesses to establish two defenses: (1) that Wood himself backed out of any conspiracy to steal money
from the Texaco; and (2) that Wood participated under duress due to threats
by Reneau to kill Woods daughter and girlfriend if he did not help him. First,
the defense called Woods girlfriend, Nadia Mireles. The defense sought to
present the same testimony the State had elicited in Reneaus earlier trial:
that, before Reneau and Wood left on the morning of the shooting, Wood had
told Reneau not to bring any firearms; that Wood had told Reneau they were
not going to go through with taking the money but were just going to return
the truck to Woods brother; and that Reneau had pretended to leave the firearm, only retrieving it after Wood had exited the trailer.86 Even though it had
previously vouched for the veracity and reliability of Mireless testimony, the
State now objected to that same testimony on hearsay grounds.87 Trial counsel argued only that the statement constituted an exception to hearsay beDuring Reneaus trial the prosecutor told the jury during closing argument, Well,
let me tell you, ladies and gentlemen, if Nadia Mireles is lying to help Jeff, as [Reneaus
lawyer] infers [sic] here, she didnt do a very good job, because she will be on that stand
when we try Jeff Wood, because she puts him right in the middle of the capital murder . . .
. Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 20: 44.
85
86
25 RR 88.
87
25 RR 89.
18
88
25 RR 100.
89
25 RR 101.
90
25 RR 105.
19
Finally, the defense also tried to present the testimony of a neuropsychologist that Wood was not a person of reasonable firmness.91 The court excluded the testimony as not legally relevant.92 Thus, no defense case was presented to the jury. Charged with a parties instruction that permitted it to
find Wood responsible for the conduct of Reneau, the jury returned a guilty
verdict on the capital murder charge.
Wood was unable to reconcile his delusions that he could not be convicted with the reality of the guilty verdict, causing him to break down. He
asked to discharge his lawyers and proceed pro se immediately after the verdict. When the trial court expressed hesitancy about allowing Wood to proceed without representation, Wood expressed his desire to cease defending
himself: I aint going to cross-examine nobody. Im just going to let them do
what they want. They can call anybody they want. Im not going to ask them
any questions.93
The court denied Woods request to represent himself because it believed him insufficiently mentally competent to do so.94 The next day, after
91
25 RR 115.
92
25 RR 118.
93
26 RR 51.
20
Wood filed a formal motion seeking the same, the court again denied it. The
court said,
Based on the testimony Ive heard about your educational background and your experience with the criminal justice system, Im
of the opinion that you still need to have counsel with you that
you could ask questions of and make sure that you know whats
going on and that youre not taken advantage of by this proceeding, so I note that you have requested to represent yourself and
Im going to deny that request and continue these gentlemen as
your counsel . . . . 95
Although the trial judge ruled Wood too mentally incompetent to represent
himself, the court failed to inquire into Woods broader competency to proceed
to sentencing. Instead, the proceeding continued unabated, and although
Woods counsel had not been removed or made stand-by counsel, they followed Woods irrational requests and refrained from cross-examining any of
the States witnesses and from presenting any evidence on his behalf.
During the sentencing proceeding, the State presented the extraneous
robbery that Daniel Reneau committed on November 30.96 It also presented
the testimony of psychiatrist James Grigson. Grigson had earned the nicksevere mental illness to the point where they are not competent to conduct trial proceedings
by themselves. Id. at 178.
95
30 RR 10.
30 RR 1638. The evidence the State presented did not establish any criminal liability beyond a reasonable doubt attributable to Wood for this crime. The only evidence of
Woods involvement was his custodial statement that he dropped Reneau off at the store
and picked him back up 15 minutes later. 30 RR 3637. Wood did not receive any proceeds
from Reneaus robbery. Id. The State also presented allegedly overheard discussions in the
jail between Wood and Reneau about escaping, 30 RR 4044, but these alleged discussions
about escaping were not remotely credible or serious.
96
21
name of Dr. Death because of the number of times he ha[d] testified on behalf of the State at the punishment stage of a capital murder trial and the
number of times the jury has returned affirmative answers to the submitted
special issues. Bennett v. State, 766 S.W.2d 227, 23132 (Tex. Crim. App.
1989) (Teague, J., dissenting). When testifying for the State, Grigson always
testified that the defendant certainly or absolutely or with 100% certainty would commit future acts of violence.97
In 1988, the Dallas County District Attorneys Office created a report
analyzing the behavior of eleven death-sentenced persons from Dallas County
who had had their sentence commuted to a life sentence or a term of years.98
Grigson had testified in nine of the cases that the individual certainly
would be dangerous in the future. The report reflected that almost all of these individuals had little to no disciplinary infractions in prison.
97
When Grigson died in 2004, the Houston Chronicle wrote about him,
Nicknamed Dr. Death" for his willingness to testify against capital murder
defendants, Grigson was a witness in hundreds of death penalty cases. His
pleasant manner, down-to-earth vocabulary and air of certainty helped persuade juries that the defendant -- just about every defendant -- would kill
again if given the chance. That Grigson often had not met with the defendant
did not deter him from forming an opinion about him and defending it to the
hilt.
Mike Tolson, Effect of Dr. Death and His Testimony Lingers, HOU. CHRON., June 17, 2004
(available at http://www.chron.com/news/houston-texas/article/Effect-of-Dr-Death-and-histestimony-lingers-1960299.php) (last visited July 29, 2016).
98
22
For example, Grigson had testified in William Hovilas capital trial that
Hovila is as severe a sociopath as you can be. He is extremely severe and he
is extremely dangerous.99 He further testified that, if given an opportunity,
Hovila absolutely will kill again.100 The report reflected that Hovila had no
disciplinary violations and [a]pproaches the model inmate category.101
Grigson testified in James Piersons capital murder trial that Pierson would
present a continuing threat no matter where they would be, whatever society they would be in, a penal institution or outside the free world.102 The report reflected that Pierson was in a minimum custody facility and is no problem.103 Grigson testified in Anderson Hughess case that Hughes will only
continue his previous behavior and pose a very serious threat to the lives of
other human beings.104 The report described Hughes as the cream of the
crop.105
Grigson also testified in the capital murder trial of Randall Adams. Adams was found guilty of killing a police officer and sentenced to death. Adamss only criminal record at the time Grigson made his prediction was a
99
100
101
App. 6 at 2.
102
103
App. 6 at 3.
104
105
App. 6 at 3.
23
Adams v. State, 577 S.W.2d 717, 731 (Tex. Crim. App. 1979).
107
108
App. 6 at 2.
109
24
gage in fraud or deceptions. Annotation 3 provided, A psychiatrist who regularly practices outside his/her area of professional competence should be
considered unethical. Its report concluded that the Society was required to
act against Grigson because a willfully narrow rendition of psychiatric
knowledge misleads and distorts the judicial systems understanding of the
substantial, but not absolute, insights a comprehensive medical, psychiatric
approach could offer for evaluating the presence of mental illness and it[s]
possible future impact [o]n accused defendants.110
Specifically, the investigation faulted Grigson for arriving at a psychiatric diagnosis without first having examined the individuals in question,
and for indicating, while testifying in court as an expert witness, he could
predict with 100% certainty that the individuals would engage in future violent acts.111 As well, the TSPP Ethics Committee concluded that the hypothetical questions on which Grigson based predictions were grossly inadequate to elucidate a competent medical, psychiatric differential diagnostic
understanding adequate for diagnosing a mental illness according to current
standards.112 Following investigation and hearing, the TSPP imposed a
App. 8 (Summary Report of Ethics Complaint Investigation, Hearing, Deliberation and Decision of the Texas Society of Psychiatric Physicians, Sep. 12, 1993).
110
111
App. 7.
112
App. 7.
25
Id. According to psychiatrist James L. Knoll IV, [Grigsons] example lives on,
most notably every year at the American Academy of Psychiatry and the Law Review
Course, where videos of his testimony are shown to aspiring forensic psychiatrists to teach
them about unethical practices. James L. Knoll IV, Deaths Conviction, Psychiatric Times,
Mar.
12,
2010
(available
at
http://www.psychiatrictimes.com/forensicpsychiatry/death%E2%80%99s-conviction) (last visited July 29, 2016).
114
115
24 RR 2043.
26
been charged with capital murder; that [e]ighty-five percent of the examinations [he does] are at the request of the various judges; that he had testified in criminal trials probably over 4,000 times; and that he had testified
in 163 capital murder cases.116 Grigson further testified that in forty someodd percent of the capital defendants he had examined, he had found them
not to constitute a continuing threat.117 Thus, he told the jury, he state[s]
[his] honest opinion irrespective of . . . whether its going to be favorable to
the State or to the defense.118
With the doctors experience represented to the lay jurors to be vast
and his objectivity beyond dispute, the prosecutor posed to Grigson a hypothetical that laid out the facts of the offense.119 Following the hypothetical,
the prosecutor asked, Now, is the hypothetical I have given you thorough
enough for you to form an opinion on whether or not that individual in that
hypothetical would be a future danger to society because there is a probability that he will commit criminal acts of violence that would constitute a continuing threat to society?120 Knowing that the scientific consensus of his profession in 1998 was that the truthful answer to this question was no,
116
30 RR 59.
117
30 RR 71.
118
30 RR 72.
119
30 RR 6167.
120
30 RR 6768.
27
Grigson answered, simply, Right, its sufficient.121 When asked what his
opinion was, Grigson violated his professions ethics and falsely answered,
That the individual you described will most certainly commit future acts of
violence and does represent a threat to society.122 The prosecutor next asked
Grigson whether it was necessary as an expert testifying on the issue of future dangerousness to examine a defendant personally.123 Although he had
been expelled from professional associations for doing just that, Grigson answered, No, if you can get sufficient amount of information in a hypothetical,
then you can make an opinion.124
No cross-examination of Grigson occurred, and the State did not elicit
from Grigson the fact that, at the time of his testimony, he had been expelled
from professional associations for testifying to psychiatric opinions about an
individuals future dangerousness based on a hypothetical question and to a
certainty. After Grigsons testimony, the State rested. The defense then rested without presenting a case. The jury answered the special issues in a way
that required a judgment imposing death.
121
30 RR 68.
122
Id.
123
30 RR 71.
124
Id.
28
II.
CLAIMS FOR RELIEF
A.
ing. Although every participant in the trial, from his own counsel to the court
itself, appeared to recognize his incompetency at this time, no competency
hearing was ever sought or held.
1.
Woods susceptibility to reality-distorting mental illness was first observed by mental health professionals when Wood was a child.125 A school
psychologist even recommended that corporal punishment not be used
against Wood because this will only make Jeff feel more helpless, causing a
further break from reality.126 Teachers were recommended to provide Wood
with alternatives, because Jeff tends to narrow his focus when upset. Discussions during these times will likely be fruitless.127 Finally, the school psy-
125
126
App. 2.
127
Id.
29
chologist noted that, without appropriate help, Wood was at risk for developing more serious difficulties.128
2.
Woods defense counsel retained neuropsychologist Michael Roman before trial to evaluate Woods cognitive and neurobehavioral functioning. In
the course of his evaluation, Dr. Roman came to believe that Wood possessed
significant impairments in reasoning and rationality that impacted his competency to stand trial.
a.
Dr. Roman evaluated Wood on June 11, 1996, and June 18, 1996. He
administered several psychological and neuropsychological instruments, conducted a clinical interview, and reviewed records relating to Woods social
history and the criminal offense. Dr. Roman observed that Woods statements
about the offense were unusual based on what he had read about the offense.
Despite the seriousness of the charges against him, Mr. Wood
stated that he was confident he would be found innocent after he
had a chance to tell his story to the court. He was very candid in
his responses to questions, but seemed highly prone to exaggeration. While some of this seemed to [be] mere bravadosuch as
his assertion that he had built his fathers househe was also
quite naive and unrealistic in many of his statements. For example, he claimed that he could not trust his attorney because he
knew that he was a close personal friend of the district attorney.
128
Id.
30
He also stated that the Texas Ranger who had taken his statement following his arrest had admitted that he knew he was not
guilty and would likely come forth to clarify his position.129
Dr. Roman observed that, During the interview, Mr. Wood seemed to
believe that his statements were true, no matter how outrageous they
seemed. He was quite paranoid and suspicious of other people . . . . While
some of his more outrageous comments were likely fabrications, he seemed to
believe them wholeheartedly in an almost delusional manner.130
He also seemed relatively unconcerned about gaining sympathy
for his position, appearing totally convinced that his version of
the truth would prevail once he could present it to people not involved in the conspiracy. He even stated that this would create
an embarrassment and public humiliation for the criminal justice
system, adding that he believed they would abandon their conspiratorial planningbecause they had no case for prosecuting
himonce they realized they would be harmed by public opinion.131
Dr. Romans testing reflected an IQ in the borderline range, consistent
with prior testing. Id. Although he was out of high school, achievement testing placed Wood at a fourth grade level in spelling and fifth grade level in
reading.132
Mr. Woods responses to projective testing indicate significantly
disordered thinking patterns. There is substantial reason to believe that his judgment is impaired, particularly when he encoun129
130
Id.
131
Id.
132
Id.
31
133
Id.
134
Id.
32
The trial court held a pretrial hearing to determine whether Wood was
competent to stand trial on May 6, 1997. Dr. Roman testified at the hearing.
When asked to explain why Mr. Wood was incompetent to stand trial, Dr.
Roman explained:
... I believe that many things about Mr. Woods personality organization, if you will, his history of emotional difficulties, as documented through his school records, his prior patterns of responses to other circumstances in which he has been threatened, and
analysis of his thinking ability and other pertinent issues related
to facts in the case, indicate that he simply does not acknowledge
the possibility that he could in any way be found responsible for
any aspect of this crime and, therefore, has been generally unwilling to accept the need to assist or the advantage of assisting
in his defense.
Furthermore, I believe that when it is pressed on him that he
must go forth and assist in his defense, he takes it as a very personal threat and what I have described as extremely paranoid
thinking, makes him believe that any individual so pressing him
is a part of what he believes is a conspiracy against him to frame
him into accepting wrongdoing for something with which he believes he was not involved.136
135
Id.
136
5 RR 13738.
33
Dr. Roman further explained that Wood had a delusional system, an inability to grasp the reality surrounding the issues specific to this case, his role in
it, in the crime, as well as other things that present a direct threat to his own
well-being, his own sense of self.137
I believe that that manifests in extremely paranoid thinking,
where he believes that anyone who suggests that he would be responsible is out to get him, and I believe that at that point he loses his rational ability to be able to accept and understand beyond
what you would expect from someone who simply would not agree
with that position. He is in my opinion unable to agree with that
position at the present time.138
Woods delusions only manifested themselves depending on what he was talking about:
Its my belief that in issues that specifically threaten his sense
ofits hard to explainthe good guy that he believes himself to
be, he is absolutely unable to maintain enough grasp of reality to
be able to follow you through a line of thinking, and I believe that
its in that vein that his delusional system would be manifest.139
Woods lawyer Scott Monroe also testified that he had experienced what
Dr. Roman described. In the course of his professional interaction with Wood,
Monroe noticed that Wood had a delusional thought process that affects his
ability to appreciate culpability.140 Monroe explained,
137
5 RR 13839.
138
5 RR 139.
139
5 RR 13940.
140
5 RR 183.
34
141
5 RR 18385.
35
142
5 RR 185.
143
5 RR 186.
144
5 RR 187.
145
5 RR 188.
146
1 RR 7681.
36
c.
Wood was admitted to the hospital on May 27, 1997. After an initial assessment, a nurse immediately flagged him as having delusional thoughts.147
Despite that, Wood was deemed competent just 15 days later, without having
received any treatment.148
The records from the hospital reflect that evaluators noted difficulty
with Woods ability to communicate rationally, especially with respect to his
case. Dr. William Cromack wrote that Wood insists that . . . the truth [regarding his current charges] is that he never did anything, and was an innocent bystander. He is very insistent in repeating this story.149 The discharge
decision was based on Woods mastery of competency training materials that
tested Woods factual understanding of legal proceedings but not his rationality.150
147
148
1 CR 86.
149
150
37
d.
After Woods discharge by Vernon State Hospital, the trial court held a
second competency hearing. The government presented Dr. John Quinns testimony, a forensic psychologist at Vernon Hospital. Dr. Quinn opined that
Wood was competent to stand trial.151 However, his conclusions were primarily based on a competency interview and test that only inquired about Woods
factual understanding of the proceedings.152
Dr. Roman re-evaluated Wood before the hearing.153 He continued to
hold the opinion that Wood lacked sufficient ability to rationally aid in his defense.154 Describing exactly what a school psychologist had earlier observed
about Woods narrowing focus in the school context, Dr. Roman testified,
Mr. Wood in my opinion has a delusion that he can do no wrong,
that he was a passive participant, at worst, within the offense
that occurred. Im not suggesting that has any bearing on whether or not he can be held responsible for his actions. However, I believe that it makes it such that whenever anyone attempts to
press him on the point of, Here are the realities of what were
dealing with. Fine, youre innocent and youre getting framed. Ill
give you that, but we have to move forward to deal with what we
151
7 RR 113.
152
7 RR 125.
153
7 RR 19293.
154
7 RR 19596.
38
have available to us, this gentleman cannot and will not do that.
He will shut down. He will become angry. He will withdraw from
you.155
Nothing in the Vernon State Hospital records suggested to Dr. Roman that
doctors there had evaluated Wood in any manner that would have brought
his delusional system to the fore.156
Woods attorney also continued to believe that Wood could not rationally aid his defense. During the competency hearing, the government attempted to portray Wood as a person who reasonably disagreed with his counsel
about his prospects due to the particular circumstances of his case. But Monroe admitted that he had clients disagree with him before, and he believed
that Wood was not like other clients, explaining that he had never before
had a client like Wood with whom he could not reason.157 Whenin an attempt to portray Woods persecutory beliefs as reasonably held and nondelusional due to his not having been the shooterthe government suggested
to Monroe that Wood had a good understanding of the law of parties and that
this might be the basis for rational disagreement in his case, Monroe interjected:
I dont agree with that. I dont think hes got a good understanding of the law of parties. I think we get the same thing on the law
155
7 RR 19798.
156
7 RR 203.
157
7 RR 239.
39
Following trial on the merits, the jury returned a guilty verdict. Wood,
unable to reconcile his delusional thinking that it was impossible for him to
be found guilty with the reality that a jury had just done so, broke down. Incapable of processing what had happened, Wood ceased participating in the
trial altogether. He attempted to proceed pro se, and, when the state court
judge found Wood too mentally incompetent to represent himself, Wood directed his lawyers to do nothing, to cross-examine no witnesses, present no
witnesses, and make no arguments. Bowing to Woods irrational direction,
Woods appointed lawyers declined to cross-examine any witnesses or present
any evidence on Woods behalf.
4.
The conviction of an accused person while he is legally incompetent violates due process. Bishop v. United States, 350 U.S. 961 (1956). Four years
after Bishop, the Supreme Court articulated the test of competence to stand
158
7 RR 240.
40
Woods behavior reaffirmed [his] earlier opinion that Mr. Wood was incompetent to stand trial and that his competency to assist counsel in his defense
had not been restored.159 It is Dr. Romans opinion that Wood was not competent during sentencing. Accordingly, Wood lacked the capacity to rationally
consult with counsel and to assist in preparing his defense at sentencing.
Drope, 420 U.S. at 171.
B.
right not to be tried while incompetent. Pate v. Robinson, 383 U.S. 375
(1966). A Pate violation is different from a claim that a person was tried
while incompetent. A Pate violation occurs where, in the light of what was
known to the trial court, the failure to make further inquiry into the defendants competence to stand trial denied him a fair trial. Porter v. Estelle, 702
F.2d 944, 950 (5th Cir. 1983) (citing Drope, 420 U.S. at 174).
[I]f the trial court received evidence, viewed objectively, that should
have raised a reasonable doubt as to competency, yet failed to make further
inquiry, the defendant has been denied a fair trial. Mata v. Johnson, 210
F.3d 324, 329 (5th Cir. 2000). See also Lokos v. Capps, 625 F.2d 1258, 1261
159
42
(5th Cir. 1980) (noting that the Pate-Drope inquiry is: Did the trial judge receive information which, objectively considered, should reasonably have
raised a doubt about defendants competency and alerted him to the possibility that the defendant could neither understand the proceedings or appreciate their significance, nor rationally aid his attorney in his defense.).
[E]vidence of a defendants irrational behavior, his demeanor at trial, and
any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required, but [] even one of these factors
standing alone may, in some circumstances, be sufficient. Drope, 420 U.S. at
180.
In light of all of the evidence that had emerged from the pretrial proceedings on Woods competence, the trial court should have recognized the irrationality of Woods behavior, attributed it to his complex mental health and
impairments, and inquired further into his competency to stand trial once
Wood, in the immediate aftermath of the verdicts being read, requested to
fire his lawyers and told the court, I aint going to cross-examine nobody. Im
just going to let them do what they want. They can call anybody they want.
Im not going to ask them any questions.160 Pre-trial evidence reflected that
Wood had impairments which affected his ability to appreciate culpability
and which gave rise to persecutory delusions. A jury initially found him in160
26 RR 51.
43
competent on the basis of this evidence. Moreover, the judge plainly had
doubt about Woods mental competency. It denied Woods request to represent himself because I dont feel comfortable with you understanding all the
concepts of whats going on and not having legal counsel that you can rely
on.161
When Wood re-raised his request to represent himself after the weekend and before the sentencing phase was to start, the judge again denied his
request, saying Im of the opinion that you still need to have counsel with
you that you could ask questions of and make sure that you know whats going on and that youre not taken advantage of by this proceeding.162 Thus,
not only should the information before the court have raised a doubt about
Woods competency, it raised one in fact. Despite that, no further inquiry was
made into Woods competency to stand trial at sentencing, in violation of due
process.163
C.
26 RR 52.
162
30 RR 10.
For the same reasons, trial counsel were ineffective for failing to move for a competency determination at this point in the proceeding.
163
44
294 U.S. 103, 11213 (1935); Napue v. Illinois, 360 U.S. 264, 269 (1959); Ex
parte Ghahremani, 332 S.W.3d 470, 477 (Tex. Crim. App. 2011); Ex parte
Chabot, 300 S.W.3d 768, 77071 (Tex. Crim. App. 2009). The use of false testimony at the punishment phase is also a due-process violation. Ghahremani,
332 S.W.3d at 477. It does not matter that the falsehood goes to an issue of
credibility. Duggan v. State, 778 S.W.2d 465, 469 (Tex. Crim. App. 1989) (citing Napue, 360 U.S. at 270). When false testimony is unknowingly presented
by the State, the applicant has the burden to prove by a preponderance of the
evidence that the error contributed to his conviction or punishment.
Ghahremani, 332 S.W.3d at 482; Chabot, 300 S.W.3d at 771.
Grigsons testimony in Woods sentencing proceeding was false or materially misleading in five different respects. First, Grigsons testimony concerning his forensic experience, especially in capital cases, was exaggerated
and false. Second, Grigsons testimony concerning his neutrality in predicting
future dangerousness was false. Third, Grigsons testimony concerning the
certainty of his prediction was false. Fourth, Grigson testified falsely about
his ability to form a reliable psychiatric opinion based on a hypothetical question posed to him. Finally, the omission of Grigsons expulsion from the APA
was materially misleading. Wood has no good faith basis to assert that the
prosecution had knowledge of the falsity of Grigsons testimony, and accordingly alleges unknowing use.
45
1.
46
In Woods capital murder trial in 1998, Grigson told the jury he had examined either 404 or 405 people charged with capital murder. Grigsons
purported experience was false in two respects. First, the number of evaluations that Grigson testified he had conducted was grossly exaggerated and
misleading. Second, Grigson rarely examined any of the capital defendants in
the cases in which he was retained. In a 1994 deposition, Grigson testified
that he had testified in about 90 cases since 1980, and that in those cases he
did so by way of hypothetical and had not examined the defendant.165 Thus,
Grigsons testimony about his experience in examining capital defendants
was false and misleading.
Remarkably, in most all cases in which Grigson testified, the number of
defendants Grigson testified he had found not to constitute a future danger
was always approximately 40% of the total examined. In Damon Richardsons
1988 trial, Grigson testified he had examined 187 defendants and had found
74 of them not to be dangerous. Unsurprisingly, this is exactly 40%. But in
Adolph Hernandezs 1990 capital murder trialthe first trial in which
Grigson is known to have boosted the number of capital examinations he
1978. App. 12 at 13 (Excerpts of 1994 James Grigson Deposition). And in March of 1978,
Grigson testified in John Burkss case that he had evaluated just 50 or 60 capital murder
defendants at that time, a number that was itself likely greatly inflated in light of the relatively few capital murder prosecutions occurring during this period and the relatively rare
use of expert witnesses at sentencing during the era.
165
App. 12 at 246.
47
Date of Testimony
Feb. 9, 1991
Number of Capital
Defendants Evaluated
388
393
392
158 (40%)
Feb. 2, 1990
391
70 (18%)
189
Oct. 5, 1988
187
74 (40%)
156
40%
180-82
48
Number/Percent of
Capital Defendants
Found Not Dangerous
178 (46%)
No. AP-70,031
Banda v. State,
No. AP-69,827
James v. State,
No. AP-69,653
Upton v. State,
No. AP-69,717
Bennett v. State,
No. AP-69,645
Holloway v. State,
No. AP-68,925
Burks v. State,
No. AP-70,971
170
40%
170
162
42%
Nov. 4, 1985
176
85 (48%)
Sep. 1981
120
30 (40%)
50 or 60
5 or 6 (10%)
amined over 400 individuals charged with capital murder.166 He also testified that, of the over 400 he had examined, he had determined that 180 of
them (~40%) did not present a future danger.167 In that case as in Woods
case, Grigson testified to his opinion that certainly the defendant described
by the prosecutions hypothetical was going to commit future acts of violence.168 In view of the same information contained in this application, United
States District Judge for the Eastern District of Texas Thad Heartfield concluded in 2004:
[T]he Court finds by a preponderance of the evidence that
Grigsons testimony was false in three respects: he exaggerated
the number of capital murder defendants he had examined, he inflated the number of defendants he determined would not be likely to be dangerous in the future, and he exaggerated the degree of
his certainty that [the defendant] would be dangerous in the future. The Court also finds that Grigsons inflating the number of
defendants he determined would not likely be dangerous in the
future was a conscious attempt to mislead the jury as to his objectivity.
Memorandum Opinion at 34, Summers v. Director, No. 6:01-cv-00139-TH
(E.D. Tex. Mar. 4, 2004) (Docket No. 26) (internal citations omitted).
166
Statement of Facts, State v. Gregory Summers, No. AP-71,338, at Vol. 17: 9192.
167
Statement of Facts, State v. Gregory Summers, No. AP-71,338, at Vol. 17: 100.
168
Statement of Facts, State v. Gregory Summers, No. AP-71,338, at Vol. 17: 97.
50
2.
169
App. 12 at 22.
170
App. 12 at 33.
171
App. 9.
51
tees decision, which explained that the decision was based on the manner in
which Grigson made and testified about predictions of future dangerousness.
Specifically, the TSPP cited Grigsons (1) making psychiatric diagnoses without first having examined the individuals in question; (2) giving testimony
that he could predict with certainty that individuals would engage in future
violent acts; and (3) basing his predictions of future dangerousness on hypothetical questions that contained grossly inadequate information to form a
reliable psychiatric opinion.172
Following notice of the decision, Grigson even sued the APA and TSPP
seeking to prevent his expulsion, claiming irreparable harm from such an
event. See Grigson v. American Psychiatric Association, et. al., No. 94-07736
(14th District Court, Dallas County, Texas). The lawsuit was ultimately unsuccessful and dismissed. Id. He testified under oath in his deposition that he
thought the TSPPs investigation and hearing that resulted in his expulsionwhich he had attended and at which he was afforded an opportunity to
be heardhad been fair.173 Thus, Grigson knew his testimony to Woods jury
that he could form a reliable psychiatric opinion based on a hypothetical
question was false.
172
Id.
173
App. 12 at 16970.
52
App. 12 at 242.
175
30 RR 58.
53
his 1994 deposition, Grigson himself recognized that the expulsion was relevant to his credibility as an expert.176
4.
177
54
Juror 2 believed that [it] is terrible that Dr. Grigson was allowed to
testify as an expert witness to the future dangerousness of Wood. After
hearing of his expulsion from the [TSPP], this discredits him as an expert.
Knowledge of this would have affected my deliberations.178
Juror 3 has declared under oath that the inclusion of Grigsons testimony was unfair due to his expulsion from the [TSPP] and that his incompetency as an expert should have been presented. Further, the special issues
in light of the testimony allowed little wiggle room and punishment was
out of the jurys hands.179
Court of Criminal Appeals Judge Odom once characterized Dr.
Grigsons testimonyeven when subject to cross-examinationas prejudicial beyond belief.180 Smith v. State, 534 S.W.2d 895 (Tex. Crim. App. 1976),
withdrawn on rehearing by 540 S.W.2d 693 (Tex. Crim. App. 1976). Judge
Teague of that Court once wrote that to even conclude that Dr. Grigsons testimony may be harmless is ludicrous. Bennett v. State, 766 S.W.2d 227, 232
(Tex. Crim. App. 1989) (Teague, J., dissenting). Absent Grigsons testimony,
and given Woods lack of any violent criminal history, a jury may well have
found that the State had not proved future dangerousness beyond a reasona178
179
Judge Odom was unable to find that much of [Grigsons] testimony offered was
from this side of the twilight zone. Id. See also John Bloom, Killers and Shrinks, Tex.
Monthly, July 1978, at 66.
180
55
CLAIM 4: APPLICANTS JUDGMENT WAS OBTAINED IN VIOLATION OF DUE PROCESS BECAUSE IT WAS BASED ON
FALSE SCIENTIFIC EVIDENCE
Woods judgment violates due process because it was secured through
CLAIM 5: THE EIGHTH AMENDMENT CATEGORICALLY EXEMPTS APPLICANT FROM PUNISHMENT BECAUSE HIS
PARTICIPATION AND CULPABILITY ARE TOO MINIMAL TO
WARRANT THE DEATH PENALTY
The Eighth Amendment prohibits a sentence that is disproportionate to
the offense. In Enmund v. Florida, 458 U.S. 782 (1982), and Tison v. Arizona,
481 U.S. 137 (1987), the United States Supreme Court ruled that a criminal
57
defendant who was not the person who actually killed the victim; intended
that lethal force be used; intended to kill; or, was a major participant in an
underlying felony offense and showed a reckless indifference for human life is
categorically exempt from the death penalty.
In Enmund, the Court ruled that the defendant was categorically exempt from the death penalty, despite facts that showed he was at least as
culpable as Wood, if not more so. Earl Enmund had previously been convicted
of a violent felony (armed robbery). Enmund at 805 (OConnor, J., dissenting). The trial court had found that Enmund was the one who planned the
robbery. Id. at 806. As Enmund stood by a few hundred feet from the crime
scene, his accomplice robbed, shot, and killed an 86-year-old man and a 74year-old woman. Id. at 784-86. After the murders, Enmund personally disposed of the murder weapon. Id. at 806 (OConnor, J., dissenting).
The Supreme Court explained why under these facts the death penalty
would be disproportionate:
Armed robbery is a serious offense, but one for which the penalty
of death is plainly excessive; the imposition of the death penalty
for robbery, therefore, violates the Eighth and Fourteenth
Amendments proscription against all punishments which by
their excessive length or severity are greatly disproportioned to
the offenses charged. Weems v. United States, 217 U.S. 349, 371
(1910) (quoting O'Neil v. Vermont, 144 U.S. 323, 339-340 (1892));
cf. Coker v. Georgia, 433 U.S. 584 (1977) (holding the death penalty disproportional to the crime of rape). Furthermore, the Court
found that Enmund's degree of participation in the murders was
so tangential that it could not be said to justify a sentence of
58
shooting. Instead, he chose to assist the killers in their continuing criminal endeavors, ending in a gun battle with the police in
the final showdown.
Ricky Tisons behavior differs in slight details only. Like Raymond, he intentionally brought the guns into the prison to arm
the murderers. He could have foreseen that lethal force might be
used, particularly since he knew that his fathers previous escape
attempt had resulted in murder. He, too, participated fully in the
kidnaping and robbery and watched the killing after which he
chose to aid those whom he had placed in the position to kill rather than their victims.
Id. at 15152.
The Tison Court further described by way of example what it meant by
major participation and reckless indifference to human life, which permitted a death sentence, and contrasted it with a situation which did not:
Far from merely sitting in a car away from the actual scene of the murders acting as the getaway driver to a robbery, each petitioner was actively involved in every element of
the kidnaping-robbery and was physically present during the
entire sequence of criminal activity culminating in the murder of the Lyons family and the subsequent flight.
Id. at 158 (emphasis added). See also People v. Banks, 61 Cal. 4th 788, 809,
351 P.3d 330, 343 (2015) (The Supreme Court . . . made clear felony murderers . . . who simply had awareness their confederates were armed and armed
robberies carried a risk of death[] lack the requisite reckless indifference to
human life.). A summary of cases in which courts have found defendants
lacked the requisite culpability under Tison is attached as Appendix 16.
60
See Death Penalty Information Center, Those Executed Who Did Not Directly
Kill the Victim, available at http://www.deathpenaltyinfo.org/those-executed-who-did-notdirectly-kill-victim (last visited July 29, 2016).
181
182
In some cases, it remains unclear which participant actually caused the death.
61
Moreover, no reliable evidence reflects that Wood acted with reckless indifference to human life or that he ever thought anything moregiven his welldocumented impairments and the employees prior participation in the
schemethan that Keeran would simply allow Reneau to take the safe. As
Reneau told investigating officers, there was not any plan before Reneau
went into the store and shot Keeran.
Enmunds reasoningwhich Tison did not overruleapplies with
equal force to Mr. Wood:
The question before us is not the disproportionality of death as a
penalty for murder, but rather the validity of capital punishment
for Enmunds own conduct. The focus must be on his culpability,
not on that of those who committed the robbery and shot the victims, for we insist on individualized consideration as a constitutional requirement in imposing the death sentence, Lockett v.
Ohio, 438 U. S. 586, 605 (1978) (footnote omitted), which means
that we must focus on relevant facets of the character and record
of the individual offender. Woodson v. North Carolina, 428 U. S.
280, 304 (1976). Enmund himself did not kill or attempt to kill;
and, as construed by the Florida Supreme Court, the record before us does not warrant a finding that Enmund had any intention of participating in or facilitating a murder. Yet under Florida
law death was an authorized penalty because Enmund aided and
abetted a robbery in the course of which murder was committed.
It is fundamental that causing harm intentionally must be punished more severely than causing the same harm unintentionally. H. Hart, Punishment and Responsibility 162 (1968). Enmund
did not kill or intend to kill and thus his culpability is plainly different from that of the robbers who killed; yet the State treated
them alike and attributed to Enmund the culpability of those who
killed the Kerseys. This was impermissible under the Eighth
Amendment.
62
Enmund, 458 U.S. at 798. Indeed, the conflating of Woods and Reneaus culpability was palpable throughout Woods trial.183
As in Enmund, Putting [Wood] to death to avenge [a] killing[] that he
did not commit and had no intention of committing or causing does not measurably contribute to the retributive end of ensuring that the criminal gets his
just deserts. 458 U.S. at 801.
F.
CLAIM 6: NOTWITHSTANDING WHETHER TISONS STANDARD WAS VIOLATED, THE COURT SHOULD HOLD THAT
EVOLVING STANDARDS OF DECENCY NOW PROHIBIT THE
EXECUTION OF A PERSON WHO NEITHER KILLED NOR INTENDED TO KILL
Notwithstanding whether Tison precludes Woods execution, standards
of decency have evolved such that the execution of a person who did not kill
During the sentencing phase of Woods trial in which Woods individual moral
culpability was to be judged, the State and its witnesses repeatedly conflated Woods and
Reneaus acts by referencing what theynot Jeffery Woodhad done. Grigson, in opining
about Woods purported future dangerousness, conflated Woods and Reneaus acts. When
asked by the prosecutor whether the fact that the individual in the hypothetical returned
home to get a quieter gundespite the fact that Reneau, not Wood, had done thisfactored
into his opinion, Grigson responded, Well, it only adds to the fact that they knew they
were going to be shooting the gun and that the clerk was going to be dead, so, you know,
they didnt want to draw attention by a loud gun going off, apparently. 30 RR 70. During
the States closing argument, the shooter, Reneau, was ever present. The State concluded
its closing:
183
You know, if someone can kill a friend, you know, I submit to you they can
kill anyone. If they can plan the murder of a friend, they can kill someone
else just spur of the moment.
And this is a heinous crime, because it involved premeditated, planned-out
murder of a good friend. You know, one minute hes taking drinks from him
and the next hes laughing, the fact that they have killed him.
30 RR 8384. No similar collective culpability arguments were made by the State during
Daniel Reneaus trial. (There was no evidence before Woods jury that this was a premeditated, planned-out murder. Additionally, there was no evidence that Wood ever laughed at
the fact that they have killed him.)
63
See Joseph Trigilio & Tracy Casadio, Executing Those Who Do Not Kill: A Categorical Approach to Proportional Sentencing, 48 Am. Crim. L. Rev. 1371, 1401 (2011) (identifying thirty-three jurisdictions in 2011 as Pennsylvania, 18 PA. CONS. STAT. 2502(b);
Missouri, MO. STAT. 565.021; Washington, WASH. REV. CODE 9A.32.030(1)(a) & (c),
10.95.020; Maryland, MD. CODE CRIM. LAW 2-201(a)(4); Oregon, OR. REV. STAT.
163.115(1)(b) & 5(a), 163.095(2)(d); Georgia, Hulme v. State, 544 S.E.2d 138, 141 (Ga. 2001);
Virginia, Briley v. Commonwealth, 273 S.E.2d 57, 63 (Va. 1980); Alabama, Ex parte
Woodall, 730 So. 2d 652, 657 (Ala. 1998); Connecticut, State v. Johnson, 699 A.2d 57 (1997);
Indiana, Ajabu v. State, 693 N.E.2d 921, 935 (Ind. 1998); Kansas, KAN. STAT. 21-3439;
Louisiana, State v. Bridgewater, 823 So.2d 877, 890-91 (La. 2002); Mississippi, Randall v.
State, 806 So.2d 185, 233-34 (Miss. 2001); Montana, Vernon Kills on Top v. State, 928 P.2d
182, 200-07 (Mont. 1996); Ohio, State v. Taylor, 612 N.E.2d 316, 325 (Ohio 1993); Wyoming,
Engberg v. Meyer, 820 P.2d 70, 87-91 (Wyo. 1991); and seventeen jurisdictions which have
banned the death penalty for everybody: Alaska, Hawaii, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, North Dakota, Rhode Island, Vermont, Washington, D.C., West Virginia, and Wisconsin). Since publication, Connecticut, Maryland, and Nebraska have banned the death penalty for everybody. Connecticut and Maryland were included in the jurisdictions which prohibit execution of persons
who did not kill or intend to kill. Nebraska, however, was not previously in that category,
bringing to thirty-four the number of jurisdictions which do not permit executions of persons who did not kill or intend to kill.
184
64
See id. at 140304 (reflecting the authors finding that as of 2011, only three such
executions have occurred post-Tison). The authors conclude that only five states are actively pursuing or obtaining the death penalty for felony-murder non-triggermen who lack intent to kill. Id. at 1404. The Death Penalty Information Center does not reflect any additional executions of non-triggermen since 2011.
185
65
measurably deters one who does not kill and has no intention or purpose that
life will be taken. 458 U.S. at 79899.
As for retribution as a justification for executing Enmund, we
think this very much depends on the degree of Enmunds culpabilitywhat Enmunds intentions, expectations, and actions
were. American criminal law has long considered a defendants
intentionand therefore his moral guiltto be critical to the
degree of [his] criminal culpability . . .
Id. at 800 (quoting Mullaney v. Wilbur, 421 .S. 684, 698 (1975).
In Tison, the Court found the depth of participation in the underlying
felonyhere, the robberykey to whether the goals of both retribution and
deterrence are served by the imposition of the death penalty upon a person
who did not kill or intend to kill. Here, Wood did not have any active participation at all in the robbery. He did not arm himself. He did not arm Reneau;
in fact, he asked Reneau not to take a gun with him. He did not accompany
Reneau into the store. He did not physically harm anybody or commit any
other felonies. And his intellectual and neuropsychological impairments
made it difficult for him to predict what Reneau was capable of doing and
what he would do. The goals of retribution and deterrence are simply not
served by executing Wood.
66
F.
Woods counsel about how Woods delusional thinking impacted his ability to
make rational decisions about his defense, no inquiry into Woods competence
was made.
At the uncontested sentencing proceeding, the State presented perjured
testimony from a discredited psychiatrist. The psychiatrist was expelled from
the Texas Society of Psychiatric Physicians and the American Psychiatric Society for the very unethical conduct he committed in Woods case. Without
having ever met or personally evaluated Wood, the expert falsely told the jury that Wood certainly would be dangerous in the future based on a hypothetical presented to him by the prosecutor.186 The psychiatrist was not crossexamined, and the jury never learned that his testimony should be disregarded, and was rejected by his peers. Although the jury did not want to, it
had no choice but to answer the special issues in a way that death would be
imposed.
***
[C]apital punishment [must] be imposed fairly, and with reasonable
consistency, or not at all. Eddings v. Oklahoma, 455 U.S. 104, 112 (1982). It
must be limited to those offenders who commit a narrow category of the
most serious crimes and whose extreme culpability makes them the most de-
Like many of the psychiatrists other predictions, this one turned out to be wrong,
as Wood does not have violence in his disciplinary record in prison.
186
68
serving of execution. Roper v. Simmons, 543 U.S. 551, 568 (2005) (internal
quotations omitted). Capital punishments use also must not be arbitrary.
Where there is no meaningful basis for distinguishing the few cases in which
[capital punishment] is imposed from the many cases in which it is not, the
punishment is arbitrary. Furman v. Georgia, 408 U.S. 238, 313 (1972) (White,
J., concurring).
Woods case is the embodiment of the arbitrariness of capital punishment in Texas. It is impossible to hazard a guess how many thousands of individuals in Texas have committed more disturbing crimes than Wood; who
played a far greater, more culpable role in those crimes than Wood; who had
a far worse criminal record than Wood; and who received a term of years or
life as a sentence. Yet Wood, an impaired individual who neither killed anybody, intended that anybody be killed, or even meaningfully anticipated that
anybody would be killed, has found himself convicted of capital murder and
sitting on Texass death row. It is cases like this that prompted Justice Stewarts 1972 observation that
[t]hese death sentences are cruel and unusual in the same way
that being struck by lightning is cruel and unusual. For, of all the
people convicted of [death-eligible crimes], many just as reprehensible as these, the[se] petitioners are among a capriciously selected random handful upon which the sentence of death has in
fact been imposed.
69
70
(1) whether the conduct of the defendant that caused the death of
the deceased was committed deliberately and with the reasonable
expectation that the death of the deceased or another would result;
(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing
threat to society; and
(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the
provocation, if any, by the deceased.
Id. at 269 (citing Tex. Code Crim. Proc., Art. 37.071 (b) (Supp. 1975-1976)).
The Court observed that, while Texas had not adopted a list of statutory aggravating circumstances the existence of which can justify the imposition of
the death penalty as other states had done, its action in narrowing the categories of murders for which a death sentence may ever be imposed serve[d]
much the same purpose. Id. at 270. And as the Texas Court of Criminal Appeals had indicated it would interpret the future dangerous special issue so
as to allow a defendant to bring to the jury's attention whatever mitigating
circumstances he may be able to show, the Court held that the Texas scheme
suitably directed and limited discretion so as to avoid rendering arbitrary
punishments.
Today, the statute has changed. As Justice Alcala recently observed,
The capital-murder statute provides for around one hundred different ways that a person can be convicted of capital murder. The
list of ways in which a person may commit capital murder is
twice as long when one considers that a defendant may be con71
victed not only as a principal actor, but also as a party by, for example, aiding or attempting to aid another person to commit the
offense. And the list is thrice as long when one considers that a
defendant may be convicted of capital murder even if he lacked
any intent to commit that offense but was part of a conspiracy to
commit a felony under certain circumstances.
Ex parte Murphy, --- S.W.3d ---, slip op. at 23, 2016 WL 3356280 (Tex. Crim.
App. June 15, 2016) (Alcala, J., concurring and dissenting) (internal citations
omitted). When the Supreme Court decided Jurek, it did not consider the impact of Texass law of parties when it held the scheme to protect against arbitrariness. Indeed, it understood the scheme to be limited to those who intentional[ly] and knowing[ly] murder. Jurek, 428 U.S. at 268. Moreover, the
then-first special issue effectively precluded persons who did not intend to
commit murder under the law of parties from being sentenced to death, because it required both that the individual caused the death and that their
conduct causing it was deliberate. The Texas scheme no longer asks whether
the conduct of the defendant that caused the death of the deceased was committed deliberately. Woods jury would not have been able to answer this
question affirmatively, as Wood did not cause anybodys death.187
In its brief before the Supreme Court in Jurek, Texas wrote about the
then-scheme that the Texas legislature ha[d] purposely limited the availabilWoods jury was required to answer a so-called anti-parties special issue. But
this special issue is far broader than the former deliberateness special issue, as it requires
only that the jury find that an individual anticipated that a human life might result. TEX.
CODE CRIM. PROC., art. 37.071 2(b)(2).
187
72
ity of the death penalty to categories of murder wherein the deterrent effect
can reasonably be thought to be maximized and wherein there is a significant
need for retribution.188 As to the latter, Texas told the Court, the need for
retribution increases with the amount of harm inflicted on society, its moral
fiber and its members. Similarly, the greater the conscious infliction of that
harm, the greater the need for retribution.189 Moreover, the future dangerous
special issue was intended as a way to reinforce that the killing was in fact
the calculated elimination of a human being, in the absence of mitigating factors, at which the imposition of the death penalty in Texas is aimed.190
In a footnote, Texas observed that the Texas death penalty statutes
unquestionably . . . hit their mark.191 It then gave examples of the kinds of
offenses and heightened culpability which the statute was intended to be directed:
Among those sentenced to die are Kenneth Granviel, who murdered two small children, raped and murdered their mother and
aunt, and murdered a second aunt; and who, two months later,
raped three more women and murdered two of them; Mark
Moore, who abducted a secretary during a robbery, raped her,
unsuccessfully attempted to sink a car with her in the trunk, and
then shot her with a shotgun in the face, chest and vagina; James
188
Brief for the Respondent at 25, Jurek v. Texas, No. 75-5394 (Mar. 25, 1976).
Id. at 24. Thus, in cases where the law of parties is used to hold an individual responsible for the conduct of another where the party being held responsible did not consciously inflict the harm, Texas recognized that the need for retribution is lower.
189
190
191
73
Id. at 30 n.27.
74
75
This Court should decide whether the Texas death penalty still passes
constitutional muster under the standards announced in Furman, Gregg, and
Jurek.
G.
In some states, the prosecution maybut need notput predictions of a defendants future conduct in issue. See, e.g., VA. CODE 19.2-264.4(C); OKLA. STAT. ANN. tit. 21,
701.12(7); WYO. STAT. ANN. 6-2- 102(h) (xi).
194
76
meaningful way; administrative segregation looks to present and future rather than to past, and it involves prediction of what inmate will probably do
or have done to him if he is permitted to return to population after period of
segregation; reason for segregation must not only be valid at outset but must
continue to subsist during period of segregation); Mercer v. Mitchell, 908 F.2d
763, 770-71 (11th Cir. 1990) (court violated due process when it held state
prison in contempt for exceeding population cap set in prior order without
first holding hearing on whether circumstances upon which prior order had
been based had changed so as to make existing populationdespite its being
in excess of prior ordered capunproblematic).
Although criminal judgments procured in accordance with due process
are said to extinguish liberty interests of defendants, a person who has been
sentenced to death nevertheless retains some interest in his life until his execution. See Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 288 (1998)
(OConnor, J., concurring in part and concurring in the judgment, joined by
Souter, J., Ginsburg, J., and Breyer, J.) (death-sentenced prisoners retain life
interest); id. at 291 (Stevens, J., dissenting) (same). If circumstancesbe
they attributes of the defendant or other relevant circumstances, e.g., conditions of confinementmaterially change between the time the verdict is rendered and when the State tries to enforce the capital judgment against the
individual, then due process prevents the execution in the absence of a reas78
sessment of future dangerousness that is predicated on the current circumstances and known information.
Texass judgment sentencing Wood to death was predicated on the jurys answer to the question, Is there a probability that the defendant,
JEFFERY LEE WOOD, would commit criminal acts of violence that would
constitute a continuing threat to society?195 More than 18 years have elapsed
since a jury made the prediction that Wood would commit criminal acts of violence constituting a continuing threat to society, a period of time during
which Texas has successfully incarcerated Wood and during which no criminal acts of violence have been committed by him. At the time the jury answered this question in 1998, Wood was 23 years old. The verdict was based,
in part, on evidence provided by an expert who was given a hypothetical
about a 21-year-old actor in a non-custodial environment and at a time when
death row inmates were not kept in 23-hour-per-day/7-days-per-week isolation.
Wood will be 42 years old when the State intends to execute him on
August 24, 2016. The connection between age and criminality is one of the
most thoroughly examined topics in both the psychological and legal academies. As one scholar has written,
195
2 CR 319.
79
Many criminologists have written about the link between age and
crime, prompting Flowers to write, [t]he demographic correlate
most strongly associated with crime is age. Siegel has concurred,
observing that [t]here is general agreement that age is inversely
related to criminality. Further, Hirschi and Gottfredson noted,
[a]ge is everywhere correlated with crime. Of course, the relationship between age and crime is not linear; very young children
rarely commit crimes. Rather, the relationship between age and
crime is curvilinear, with the highest rates of arrest for property
crime occurring at age sixteen (and dropping to half of the apex
by age twenty), and the highest rates of violent crime occurring
at age eighteen. Those between the ages of about fifteen or sixteen and twenty-four or twenty-five appear to be at greatest risk
of offending, but after that period, for a variety of possible reasons, adults gradually age out of crime.196
Increasingly, statisticians have focused their efforts on determining the
connection between age and potential criminality in the prison environment
itself.197 Statistical surveys have established a strong inverse relationship between inmate age and the number of general disciplinary infractions committed.198 The same inverse relationship is true of inmate age and more serious
J.C. Oleson, Risk in Sentencing: Constitutionally Suspect Variables and Evidence-Based Sentencing, 64 SMU L. Rev. 1329, 136162 (2011) (citations omitted).
196
Although the predictive capacity of age is often the focus of studies in the prison
environment, data demonstrates that the period of incarceration is also germane to statistical probability of a rule infraction. For example, an inmate is the most likely to commit a
violent rule infraction within his initial period of incarceration. See Mark Douglas Cunningham & Jon R. Sorensen, Capital Offenders in Texas Prisons: Rates, Correlates, and an
Actuarial Analysis of Violent Misconduct, 31 L. & Hum. Behav. 553, 562 (2007).
197
See Mark D. Cunningham & Jon R. Sorensen, Actuarial Models for Assessing
Prison Violence Risk: Revisions and Extensions of the Risk Assessment Scale for Prison
(RASP), 13 ASSESSMENT 253, 254 (2006) (citing Lawrence L. Bench & Terry D. Allen, Investigating the Stigma of Prison Classification: An Experimental Design, 83 PRISON J. 367
(2003); Timothy J. Flanagan, Time Served and Institutional Misconduct: Patterns of Involvement in Disciplinary Infractions Among Long-Term and Short-Term Inmates, 8 J. OF
CRIM. JUST. 357 (1980); Travis Hirschi, & Michael Gottfredson, Age and the Explanation of
Crime, 89 AM J. OF SOC. 552 (1983)).
198
80
Cunningham, supra note 39, at 254 (citing Robert P. Cooper & Paul D. Werner,
Predicting Violence in Newly Admitted Inmates: A Lens Model Analysis of Staff Decision
Making, 17 CRIM. JUST. & BEHAV. 431 (1990); Jonathan R. Sorensen, & Rocky L. Pilgrim,
An Actuarial Risk Assessment of Violence Posed by Capital Murder Defendants, 90 J. OF
CRIM. L. & CRIMINOLOGY 1251 (2000); Jon Sorensen & Robert D. Wrinkle, No Hope for Parole: Disciplinary Infractions among Death-Sentenced and Life-Without-Parole Inmates, 23
CRIM. JUST. & BEHAV. 542 (1996); J.D. Wooldredge, Correlates of Deviant Behavior among
Inmates of U.S. Correctional Facilities, 14 J. OF CRIME & JUST. 1 (1991)).
199
200
Cunningham, supra note 38, at 567 (concluding that age was a useful predictor of
institutional violence for inmates less than 21 years of age and those over 35 years of age).
201
202
Id.
81
The verdict the jury rendered in 1998 was based on circumstances that
have materially changed and does not authorize, consistent with due process,
the States execution of 42-year-old Jeffery Wood in 2016.
III.
AUTHORIZATION
A court may not consider the merits of a subsequent application for a
writ of habeas corpus unless the application contains sufficient specific facts
establishing that: (1) the current claims and issues have not been and could
not have been presented previously in a timely initial application or in a previously considered application filed under this article or Article 11.07 because
the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application; (2) by a preponderance of the evidence,
but for a violation of the United States Constitution no rational juror could
have found the applicant guilty beyond a reasonable doubt; or (3) by clear and
convincing evidence, but for a violation of the United States Constitution no
rational juror would have answered in the States favor one or more of the
special issues that were submitted to the jury in the applicants trial under
Article 37.071, 37.0711, or 37.072. TEX. CODE CRIM. PROC. art. 11.071 5.
To satisfy 5(a)(1), a subsequent application must show that (1) the
factual or legal basis for the claims was unavailable as to all the applicants
previous applications; and (2) the specific facts alleged, if established, would
82
constitute a constitutional violation that would likely require relief from either the conviction or sentence. Ex parte Campbell, 226 S.W.3d 418, 421 (Tex.
Crim. App. 2007). To satisfy 5(a)(3), a subsequent application may be authorized if it shows by clear and convincing evidence a constitutional violation but for which no rational juror would have answered at least one of the
statutory special punishment issues in the States favor. Ex parte Blue, 230
S.W.3d 151, 161 (Tex. Crim. App. 2007).
A.
federal constitution. See Pate v. Robinson, 383 U.S. 375, 384 (1966) ([I]t is
contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently waive his right to have the court determine his capacity
to stand trial.). As Wood may never knowingly or intelligently waive his
right not to be tried while incompetent, 5 may not be applied as to Claim 1
consistent with due process. See Medina v. Singletary, 59 F.3d 1095, 1107
(11th Cir. 1995) (procedural default rule does not preclude review of a trialincompetency claim on the merits notwithstanding the failure to raise it earlier); Nguyen v. Reynolds, 131 F.3d 1340, 1346 (10th Cir. 1997) (same); Sena
v. New Mexico State Prison, 109 F.3d 652 (10th Cir. 1997).
83
C.
mony by the prosecution violates due process. Ex parte Chabot, 300 S.W.3d
84
768, 77071 (Tex. Crim. App. 2009). Chabot was the first case in which the
Texas Court of Criminal Appeals recognized an unknowing-use due-process
claim. Ex parte Chavez, 371 S.W.3d 200, 205 (Tex. Crim. App. 2012). Woods
first and last habeas corpus application was filed in 2000. Accordingly, the
claim could not have been presented previously in a timely initial application
or in a previously considered application because its legal basis was unavailable on the date Wood filed his previous application.
D.
CLAIM 4: APPLICANTS JUDGMENT WAS OBTAINED IN VIOLATION OF DUE PROCESS BECAUSE IT WAS BASED ON
FALSE SCIENTIFIC EVIDENCE
Claim 4 relies on a legal basis that was not previously available. The
Texas Court of Criminal Appeals has never expressly recognized that the
presentation of false scientific evidence violates the due process clause. In Ex
parte Roberson, No. WR-63-081-03 (Tex. Crim. App. June 16, 2016), however,
the TCCA authorized a claim that the States introduction of false forensic
science testimony violates the right to a fundamentally fair trial under the
due process clause. To be authorized, the Court must have concluded that
Robersons claim constitute[d] a constitutional violation that would likely
require relief from either the conviction or sentence. Campbell, 226 S.W.3d
at 421. The Court should similarly authorize Woods claim premised on the
same legal basis.
85
E.
CLAIM 6: NOTWITHSTANDING WHETHER TISONS STANDARD WAS VIOLATED, THE COURT SHOULD HOLD THAT
EVOLVING STANDARDS OF DECENCY NOW PROHIBIT THE
EXECUTION OF A PERSON WHO NEITHER KILLED NOR INTENDED TO KILL
Claim 6 satisfies the requirements of 5(a)(1) and 5(a)(3). First, the
factual basis of the claimlegislative and judicial pronouncements that reflect an evolving standard of decencypostdate the filing of Woods first and
last application for a writ of habeas corpus in 2000. Second, a determination
that the Eighth Amendment prohibits the execution of a person who neither
killed nor intended to kill represents a new legal basis that did not exist at
86
the time Wood filed his last application. Thus, the requirements of 5(a)(1)
are satisfied.
The requirements of 5(a)(3) are also met for the same reason as Claim
5.
G.
relies on facts that have developed since Woods prior application filed in
2000. Thus, its factual basis was previously unavailable. Moreover, these allegations may be likely to show that the death penalty is now an unacceptable form of punishment based on societys evolving standards of decency that
inform the Eighth Amendment of the federal Constitution. Murphy, slip op.
at 11. Thus, the 5(a)(1) exception is present.
Claim 6 also satisfied 5(a)(3). If the modern Texas death penalty is
unconstitutional, then no jury would even have occasion to answer the statutory special issues. Blue, 230 S.W.3d at 161. Accordingly, the 5(a)(3) exception is present.
87
H.
74,960, 2006 WL 1235088, at *4 (Tex. Crim. App. May 10, 2006)). Thus, the
factual basis for Woods claim was unavailable when he filed his previous application in 2000, just two years after his judgment.
Third, the legal basis for Mr. Smiths claim was unavailable as to his
previous applications because his claim was not ripe then. An unripe claim,
by definition, must be considered to have an unavailable legal basis.
Alternatively, 5 does not apply to Woods claim because it was not
ripe when his prior application was filed. By enacting 5, the Legislature intended that all death-sentenced habeas applicants get one bite at the apple
and that all available claims be raised in an initial application. Ex parte
Torres, 943 S.W.2d 469, 474 (Tex. Crim. App. 1997). Section 5, which prohibits the consideration of subsequent applications under most circumstances,
therefore advances the interest of finality by limiting the number of petitions
a person is able to file. This principle, however, does not apply to Woods
claim, because the claim was not ripe when he filed his previous application.
A statute should be interpreted in accordance with the plain meaning
of its language unless that language is ambiguous or the plain meaning leads
to absurd results that the Legislature could not possibly have intended.
Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991); Whitelaw v.
State, 29 S.W.3d 129, 131 (Tex. Crim. App. 2000). Section 5 was not intended
by the Legislature to apply to claims that were not ripe when previous appli89
cations were filed. The one bite at the apple for these claims can only occur
once they ripen. Section 5 is meant to regulate the consideration of claims
where extraordinary circumstances such as legal and/or factual unavailability and innocence justify a second bite. Butunless the unavailability of a
legal/factual basis is construed to encompass claims that were not ripe when
previous applications were filedSection 5 leads to absurd results when applied to a claim that was unripe when prior applications were filed. In short,
whether reasonable diligence was exercised to locate a factual basis, TEX.
CODE CRIM. PROC. art. 11.071 5(e), and whether a court could recognize or
reasonably formulate a legal basis of a claim, id., 5(d), are irrelevant inquiries when, regardless of the answers to those questions, the claim was not
ripe and could not have been brought in a prior application.
Helpfully, the Supreme Court recently addressed the issue of limitations on second or successive habeas petitions contained in the Antiterrorism and Effective Death Penalty Act in the context of Ford claims in federal
habeas corpus proceedings brought pursuant to 28 U.S.C. 2254. In Panetti
v. Quarterman, 127 S.Ct. 2842 (2007), the Court decided that the habeas petition, though chronologically the second in time the petitioner had filed, did
not constitute a second or successive petition within the language of 28
U.S.C. 2244(b). Panetti, 127 S.Ct. at 2853 (The phrase second or successive is not self-defining. It takes its full meaning from our case law, includ90
92