Attorney Notes; Memorandum to Counsel; Court Orders; Envelope to Guinier and Karlan

    Supreme Court. U.S.
F I L E D
FEB M 1

JOSEnri F. SP̂.NIOL, JR- 
CLERK

NO. 87-6177

IN THE
UNITED STATES SUPREME COURT 

OCTOBER TERM, 1987

JOHNNY PAUL PENRY,
, Petitioner,
v.

JAMES A. LYNAUGH, DIRECTOR, 
TEXAS DEPARTMENT OF CORRECTIONS,

Respondent.

On Petition For Writ Of Certiorari 
To The United States Court Of Appeals 

For The Fifth Circuit

RESPONDENT'S BRIEF IN OPPOSITION

JIM MATTOX MICHAEL P. HODGE
Attorney General of Texas Assistant Attorney General

Chief, Enforcement Division
MARY F. KELLER 
First Assistant 

Attorney General
CHARLES A. PALMER* 

Assistant Attorney General

LOU MCCREARY 
Executive Assistant 

Attorney General
P.O. Box 12548, Capitol Station 

Austin, Texas 78711 
(512) 463-2080

* Counsel of Record



QUESTIONS PRESENTED

I. Whether the Texas capital-sentencing statute 
is unconstitutional for failing to require 
specific instruction regarding balancing of 
aggravating and mitigating circumstances and 
for failing to define some of the terms used 
in the special issues on punishment.

II. Whether the execution of a death sentenced 
inmate who has limited mental capacity but 
who was adjudged competent at trial violates 
the eighth amendment proscription against 
cruel and unusual punishment.

III. Whether Penry's confessions were voluntarily 
given and whether he knowingly relinquished 
his right against self-incrimination.

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TABLE OF,CONTENTS

QUESTIONS PRESENTED ....................................
TABLE OF AUTHORITIES ..................................
OPINION BELOW ...........................................
JURISDICTION ...........................................
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED . . .
STATEMENT OF THE CASE ..................................

A. Course of Proceedings and
Disposition Below ..............................  2

B.
SUMMARY OF ARGUMENT....................................  8
REASONS FOR DENYING THE W R I T ..........................  8

I. THE QUESTIONS PRESENTED FOR REVIEW ARE
UNWORTHY OF THIS COURT'S ATTENTION............. 8

II. THE TEXAS CAPITAL-SENTENCING STATUTE 
AS APPLIED MEETS THE CONSTITUTIONAL 
REQUIREMENT OF INDIVIDUALIZED SEN­
TENCING WITHOUT THE NECESSITY OF A 
SPECIAL INSTRUCTION ON MITIGATING
EVIDENCE. . ,>..................................  9

III. EXECUTION OF A MENTALLY RETARDED PERSON 
DOES NOT CONSTITUTE AN EIGHTH AMENDMENT
VIOLATION........................................ I3

IV. PENRY'S CLAIM THAT HIS CONFESSIONS WERE
INVOLUNTARY BECAUSE HE DID NOT KNOWINGLY
RELINQUISH HIS RIGHT TO REMAIN SILENT IS
MERITLESS IN LIGHT OF THE FACTUAL FINDINGS
OF THE STATE COURTS.............................  15

CONCLUSION

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■WBrTHSMu. - rfMM



Cases EflSS
Barclay v. Florida, 463 U.S. 939 (1983) . . . . . . . .  12
Colorado v. Spring, ___ U.S. ___,

107 S.Ct. 851 (1987)..............................  18
Cordova v. State, 733 S.W.2d 175

(Tex.Crim.App. 1987) ............................ • 12
Cupp v. Naughten, 414 U.S. 141 (1973).................  13
Eddings v. Oklahoma, 455 U.S. 104 (1982).............. 11,12
Enmund v. Florida, 458 U.S. 782 (1982)................. 12
Ford v. Wainwright, ___ U.S. ___,

106 S.Ct. 2595 (1986)..............................  13,14,15
Gardner v. Florida, 430 U.S. 349 (1977) . . . . . . . .  12
Graver Mfg. Co. v. Linde Co., 336 U.S. 271 (1949) . . .  15
Gregg v. Georgia, 428 U.S. 153 (1976).................  9
Johnson v. Cabana, 818 F.2d 333 (5th Cir.), cert.

denied. ___ U.S. ___, 107 S.Ct. 2207 (1987). . . .  15
Johnson v. State, 691 S.W.2d 619

(Tex.Crim.App. 1984) ..............................  11
Jurek v. State, 522 S.W.2d 934

(Tex.Crim.App. 1975) . ........................  11
Jurek v. Texas, 428 U.S. 262 (1976)..................... 10,11
Lockett v. Ohio, 438 U.S. 586 (1978)...................  9,12
Maggio v. Fulford, 462 U.S. Ill (1983).................  14
Miller v. Fenton, ___ U.S. ___,

106 S.Ct. 445 (1986)..............................  16
Milton v. Procunier, 744 F.2d 1091 (5th Cir. 1984), 

cert, denied. ___ U.S. ___, 105 S.Ct. 2040
(1985).............................................  13

Miranda v. Arizona, 384 U.S. 436 (1966) ...............  passim
. Moran v. Burbine, ___ U.S. ___,

106 S.Ct. 1135 (1986)..............................  16,17
North Carolina v. Butler, 441 U.S. 370 (1979) ......... 18
Roberts (Stanislaus) v. Louisiana, 428 U.S. 325

(1976) .............................................  9
Stewart v. State, 686 S.W.2d 118

(Tex.Crim.App. 1984) ..............................  11
Tacon v. Arizona, 410 U.S. 351 (1973)...................  15
Woodson v. North Carolina, 428 U.S. 280 (1976)......... 9
Zant V. Stevens, 462 U.S. 862 (1983)...................  12

TABLE OF AUTHORITIES

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mmmmm



TABLE OF AUTHORITIES , CONTINUED

Constitutions. Statutes and Rules Page
U. S. Const., amend. V  ..............................  2,18
U. S. const., amend. V I I I .............................  2,13
28 U.S.C. § 1254 ( 1 ) ....................................  2
28 U.S.C. § 2254 ( d ) ....................................  14,16
Sup. Ct. R. 17...........................................  8
Tex. Code Crim. Proc. Ann. art. 11.07 §2

(Vernon Supp. 1 9 8 4 ) . . . .  ........  . ........... 3
Tex. Code Crim. Proc. Ann. art. 37.071

(Vernon Supp. 1987)................................  2,3,10
Tex. Code Crim. Proc. Ann. art. 46.02 §l(a)

(Vernon 1981).................................... . . 14
Tex. Penal Code Ann. art. 8.01 (Vernon 1974)............  14
Tex. Penal Code Ann. § 19.03 (Vernon Supp. 1988). . . .  10

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■r s :■i. ■l mm■ m s m m m m m



JUL-01-’88 16:06 ID:PAUL WEISS WASH DC TEL NO:202-223-7420 8846 P08

NO. 87-6177

IN THE
UNITED STATES SUPREME COURT 

OCTOBER TERM, 1987

JOHNNY PAUL PENRY,
Petitioner,

v.
JAMES A. LYNAUGH, DIRECTOR, 

TEXAS DEPARTMENT OF CORRECTIONS,
Respondent.

On Petition For Writ of Certiorari 
To The United States Court Of Appeals 

For The Fifth Circuit

RESPONDENT'S BRIEF IN OPPOSITION

TO THE HONORABLE JUSTICES OF THE SUPREME COURT:
NOW COMES James A. Lynaugh, Director, Texas Department of 

Corrections, Respondent1 herein, by and through his attorney, the 
Attorney General of Texas, and files this Brief in Opposition.

OPINION BELOW
The opinion of the Court of Appeals for the Fifth Circuit 

affirming the district court's denial of habeas relief is 
attached to the petition as Appendix A. Penrv v. Lvnauah. 832 
F.2d 915 (5th Cir. 1987). The unpublished opinion of the dis­
trict court is attached to the petition as Appendix B. Penrv v. 
Lynaugh No. L-86-89-CA (E.D. Tex. 1987).

^ o r  clarity, Respondent is referred to as "the state," and Petitioner as "Penry."

........



JURISDICTION
Penry seeks to invoke the jurisdiction of this Court pursu­

ant to 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 

Penry relies on the fifth and eighth amendments to the 
Constitution. Also at issue here is the Texas statute which sets 
out the special issues at the punishment phase of a capital 
trial. Tex. Code Crim. Proc. Ann. art. 37.071 (Vernon Supp. 
1987) .

STATEMENT OF THE CASE
A. Course of Proceedings _and^ispp^ti9JD^e-low 
The state has lawful custody of Penry pursuant to a judgment 

and sentence of the 258th Judicial District Court of Trinity
County, Texas, in cause No. 6572, styled The State of Texas__j l
Johnny Paul Penrv. On November 7, 1979, Penry was indicted for. 
the offense of capital murder of Pamela Carpenter while in the 
course of committing and attempting to commit the offense of 
aggravated rape, to which he entered a plea of not guilty (SF 
XIII 1344).2

Penry's pretrial motions were heard on January 11, 1980 (SF 
III 28-83), including a motion for change of venue which was 
granted on that date (SF III 84-101). His pretrial motions were 
continued on February 29, 1980, and a hearing was held on his 
motions to suppress his confessions (SF IV). Detailed findings 
of fact and conclusions of law denying the motion to suppress 
were filed on March 25, 1980 (Tr. 94). An extensive hearing on 
Penry's challenge to his competency to stand trial was held 
before a jury on March 10-13, 1980 (SF V-VII), and the jury found 
him competent (SF VII 944-45). 2

2|,Tr." refers to the transcript of Penry's state court 
proceedings located in Volume I. "ST" refers to the statement of 
facts, with reference made to the volume number typewritten on 
the bottom of the cover of each volume and page number as 
reflected in the lower right hand corner of each page. The 
appendices attached to Penry's petition are referred to as "A" 
and "B" with the appropriate page numbers following.

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f? 11Mb— ûa»



Trial began on March 24, 1980, and on April 1, 1980, the 
jury found Penry guilty of the capital offense (Tr. 111? SF 
2533). On April 1, 1980, after a punishment hearing, the jury
answered affirmatively the special issues submitted pursuant to 
Article 37.071, Tex. Code Crim. Proc. Ann. (Vernon Supp. 1987) 
(Tr. 118-119; SF XVII 2698-2703).

Penry appealed this conviction and sentence to the Court of 
Criminal Appeals of Texas, which affirmed on January 9, 1985.
Penrv v. State, 691 S.W.2d 636 (Tex. Crim. App. 1985) (en banc). 
Rehearing was denied on May 2, 1985. Certiorari was denied on
January 13, 1986. Penrv v. Texas, ___ U.S. ___, 106 S.Ct. 834
(1986).

Penry was formally sentenced to be executed before sunrise 
on May 7, 1986. he-filed an application pursuant to Tex. Code 
crim. Proc. Ann. art. 11.07 §2 (Vernon Supp. 1984) on April 10, 
1986. The state convicting court recommended denial on April 25, 
1986. The Texas Court of Criminal Appeals denied the application 
and motion for stay of execution on May 5, 1986. Ex parte Penry., 
Application No. 15918-01.

On May 5, 1986, Penry filed an application for writ of 
habeas corpus and a motion for stay of execution in the United 
States District Court for the Eastern District of Texas, Lufkin 
Division. Penrv v. McCotter. No. L-86-89-CA. United States 
District Judge William M. Steger entered a stay of execution on 
May 6, 1986. An order denying all habeas relief was entered on 
April 28, 1987, and the stay of execution was vacated. The
district court granted Penry's request for certificate of proba­
ble cause to appeal, and on November 25, 1987, the Court of
Appeals for the Fifth Circuit affirmed. Penrv v. Lvnaudh. 832 
F.2d 915 (5th Cir. 1987). Rehearing and rehearing en banc were 
denied on December 23, 1987.

B. Statement of Facts
Johnny Paul Penry was hired by Harold Stubblefield to 

deliver a freezer to the home of the deceased, Pamela Carpenter. 
Penry assisted with the delivery on October 9, 1979 (SF XIII

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1351-65, 1377).
On October 25, 1979, between 9:00-9:30 a.m., the deceased

spoke with her mother, Mrs. Rossie Moseley (SF XIII 1384). At 
about 10:00 a.ro. she phoned a friend, Cindy Peters, and stated 
"This is Pam. I've been stabbed and raped. Mother's at the 
church. Help me and hurry.” (SF XIII 1391-92, 1397-99, 1407). 
Peters went immediately to the deceased's residence and observed 
the deceased on her bed, covered with blood and moaning for help 
(SF XIII 1393, 1399-403). An ambulance was immediately called
(SF XIII 1428-30).

Officer E . G. Page of the Livingston Police Department 
arrived on the scene at 10:26 a.m. (SF IV 255; XIII 1441), and 
spoke to the deceased (SF IV 253-54; XIII 1443), who told him her
attacker was a white male, about twenty years old, short, thin
with short, dark curly hair, and was wearing a plaid shirt, 
•'possible flowers" and blue jeans (SF XIII 1446, 1449-50) . The 
emergency technicians arrived soon thereafter to discover the 
deceased in a state of shock and bleeding (SF XIII 1481-85, XIV 
1822).

The deceased received extensive emergency treatment in the 
hospital (SF XIII 1502-18). During the first hour, she was 
conscious and talking (SF XIII 1513-15, 1558). She stated that
she had been stabbed with scissors and raped by a white male,
short, thin with black hair. She stated that she had seen him 
before but did not know his name3 (SF XIII 1524-26, 1558 ). The 
deceased's condition deteriorated and she died around noon during 
the emergency treatment. The cause of death was massive hemor­
rhage and the chest injury (SF XV 2081), which was consistent 
with having been stabbed with a pair of scissors (SF XIII 
1519-20, 1563; XV 2077-79, 2094). The deceased also had a large 
bruise on her left side of her eye consistent with having been

3j|gj» description given to Dr. McLendon was not admitted 
before the jury (SF XIII 1533).

-4-



struck by a fist, multiple bruises on her legs, a bruise on her 
throat consistent with hand strangulation, a bruise on the left 
rib cage about the size of a man's shoe heel, and a defensive 
wound on her hand (SF XIII 1506, 1557; XV 2063-81). Semen was 
observed on the genital area during the emergency treatment (SF
XIII 1563-64); however, the deceased had extensive urinary tract 
hemorrhaging and no semen was found during the autopsy (SF XV 
2082).

Deputy Sheriffs Billy Ray Nelson and Bob Grissom received a 
description of the assailant over the patrol car radio at approx­
imately 11:00 a.a. (SF IV 136-37, 159-62, 173; XIV 1568-69, 
1639-40). Nelson was familiar with Penry, who fit the dispatched 
description and had recently been released from the Texas Depart­
ment of corrections for rape (SF IV 138; XIV 1569). They pro­
ceeded to Penry's father's home, spoke with Penry and inquired of 
his whereabouts. Penry responded that he had been home about an 
hour (SF XIV 1570, 1639, 1641). The officers informed him that a 
girl had been possibly cut or stabbed and raped (SF IV 139-40;
XIV 1572). Penry denied any knowledge (SF XIV 1570-72), but he 
agreed to accompany the officers to the police station* (SF IV 
140; XIV 1573-75, 1594-95, 1643, 1656-57). No questions were 
asked on the way to the station (SF XIV 1586) .

Within moments after their arrival, Ted Everitt, an investi­
gator for the district attorney's office, advised Penry of his 
Miranda* 5 rights off the standard police-issued card (SF IV 142, 
145-47; XIV 1579, 1589, 1669-75). Penry did not request a lawyer 
(SF XIV 1589). At this time Officer Grissom noticed blood on the 
upper back shoulder of Penry's shirt and asked him about it. 
Penry responded that he had fallen on a stick while riding his 
bicycle earlier that morning. Because there was no tear in the

*During the time at the Penry house, the officers never saw 
Penry's back (SF XIV 1572-76).

5Miranda v. Arizona. 384 U.S. 436 (1966).

-5-



shirt he was wearing, the officers asked him to show them the 
shirt he was wearing when the accident occurred. Penry responded 
that he'd be glad to and informed them the shirt was at his house 
(SF IV 142-44; XIV 1579-81, 1645-46, 1676-77). Miranda rights
were again read in connection with Penry's signing a consent to 
search form at 12:10 p.m. (SF IV 144-47; XIV 1581-83, 1601-03,
1646, 1677-86; XVIII St.EX. 7; XX St.EX. 18).

The officers and Penry returned to the house and retrieved 
the shirt (SF IV 148-49? XIV 1604, 1646, 1686-88). Penry was
then asked if he would accompany them to the crime scene and he 
agreed (SF IV 150; XIV 1604-05, 1648, 1689-90). Penry said,
"I'll go with you, just don't try to pin anything on me I didn't 
do" (SF XIV 1648, 1690). The officer responded he wouldn't do
that. At the deceased's house, Penry remained in the car unre­
strained. After about thirty to forty minutes, Penry initiated a 
conversation by stating, "I want to tell you about it" (SF IV 
151-52; XIV 1608-10, 1618). Officer Nelson testified, "I told
him to just to be guiet. I didn't want to hear it. I told him 
to just shut up." Penry responded, "No, I want to get it off my 
conscience. I done it, and I want to get it off my conscience" 
(SF IV 151-52, 154; XIV 1618). Penry was placed under arrest (SF 
XIV 1625) and Officer Grissom then re-read Penry his MiEflUfla 
rights (SF IV 153-54; XIV 1619-20, 1651-53). Penry then reiter­
ated his desire to tell the truth (SF IV 154). Penry was taken 
into the house, where he described the crime, pointed out the 
scissors used to stab the deceased, and identified his pocket- 
knife6 (SF IV 154-55, 181-82; XIV 1620, 1723-24). He was subse­
quently searched, returned to the station (SF IV 181—82; XIV 
1622, 1717-18), and turned over to Chief William F. Smith (SF XIV 
1719).

$The officer's description of Penry's actions at the crime 
scene was not admitted before the jury (SF XIV 1742) .

6



A formal complaint was filed and an arrest warrant obtained 
(SF IV 252)• Penry was taken before Judge Galloway for adminis­
tration of magistrate's warnings on a charge of capital murder 
and they were twice read (SF IV 183, 203-12; XIV 1787-88, 
1802-09, 1813-18). At the initial reading, Penry's father and 
step-mother appeared in court and "hollered not to sign it or 
make any statements" (SF IV 205). Penry's father read the 
magistrate's warnings to his son (SF IV 184; VI 537; XIV 1788-90, 
1806, 1844) and when told he was charged with capital murder, 
Penry asked, "Did she die?" (SF IV 205; XIV 1815). Mr. Penry 
quit reading to his son and asked his son if he had committed the 
crime. Penry responded that he had. Mr. Penry, Sr., "stormed 
out of the office, out of the courtroom and told him he was 
through with him. He could go to jail as far as he was con­
cerned" (SF IV 184-85; 205-07; XIV 1845). Penry subsequently 
signed the magistrate's warning in Judge Galloway's presence (SF 

IV 207).
Miranda warnings were again read and individually explained 

to Penry by Chief Smith at about 3:25 p.m. (SF IV 185-89, 200-01; 
XIV 1709, 1828-32, 1846-49? XV 1889-90). Penry then gave a 
confession which was reduced to writing (SF IV 185-89; XIV 
1833-34, 1850). Smith knew that Penry could not read or write. 
The statement was read to him twice in its entirety including the 
warnings, with witnessing and signing by Penry occurring after 
the second reading at 6:05 p.m. on October 25, 1979 (SF IV 
189-93, 214-15? XIV 1835-36, 1850-53, XV 1872-93, 1979).7

On October 26, 1979, Penry agreed to give hair samples, was 
again administered Miranda warnings, and signed a consent to 
search form (SF IV 195-96). On that date, Texas Ranger Maurice 
Cook again read and explained to Penry his Miranda warnings (SF 
IV 223-25; XV 1865, 1874-77, 1988-91). Penry gave a second

7This statement as it was presented to the jury appears in 
Vol. XV 1895-1902.

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sJ LJL_ CJ X  — o o  ±  o  • i  u  • r  r—n_ii_ iaii_  i  j «j lA ir iw J i i i-^'w

verbal confession, which was reduced to writing and read to him 
in its entirety, including the warnings. An addition was made by 
Penry and the statement was witnessed and signed (SF XV 227-32, 
240-44; XV 1866, 1877-78, 1992-99, 2043-47, 2050-53),8

SUMMARY OF ARGUMENT
There are no special or important reasons to consider the 

questions presented.
The Texas capital-sentencing statute is constitutional. 

Because the special issues submitted to the jury on punishment 
are narrowly drawn so as to focus the jury's attention, and the 
defendant is allowed to present all relevant mitigating evidence 
for the jury's consideration in answering the special issues, 
there is no need for specific instructions on mitigating evi­
dence.

Execution of a mentally retarded person does not violate the 
Constitution. Penry's low I.Q. notwithstanding, there is no 
question that he knows that he is to be executed and the reason 
why. No decision of this Court precludes the execution of a 
person of Penry's mental status.

There is no merit to Penry's challenge to the voluntariness 
of his confessions, Given the factual findings of the state 
courts, which were accepted by the federal habeas course, this 
claim must fail.

REASONS FOR DENYING THE WRIT
I.

THE QUESTIONS PRESENTED FOR REVIEW ARE 
UNWORTHY OF THIS COURT'S ATTENTION.

Rule 17 of the Rules of the Supreme Court provides that 
review on writ of certiorari is not a matter of right, but of 
judicial discretion, and will be granted only when there are

8This second statement appears in evidence at the guilt 
phase with reference to extraneous offenses removed (SF XV 1999, 
2022-31).

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JUL-01-’88 16:15 ID:PAUL UEISS WASH DC TEL NO:202-223-7420 4846 P16

special and important reasons therefor. Panry has advanced no 
special or important reason in this case, and none exists.

II.
THE TEXAS CAPITAL-SENTENCING STATUTE AS 
APPLIED MEETS THE CONSTITUTIONAL REQUIREMENT 
OF INDIVIDUALIZED SENTENCING WITHOUT THE 
NECESSITY OF A SPECIAL INSTRUCTION ON MITI­
GATING EVIDENCE.

Penry contends that the special issues a jury must answer in 
deciding punishment in a capital case are so narrowly drawn that, 
absent a specific instruction on how to consider mitigating 
evidence, the jury can be prevented from considering relevant 
mitigating evidence and from engaging in the type of individual­
ized sentencing mandated by the Constitution. Because the trial 
court in his case gave no such instruction, he argues that the 
jury could have excluded relevant mitigating evidence from its 
punishment deliberations so that his resulting death sentence was 
unconstitutionally imposed.

A capital-sentencing statute must meet two requirements to 
pass constitutional scrutiny. First, the statute must be struc­
tured so that the death penalty is not imposed in an arbitrary 
and unpredictable fashion. Gregg v . Georgia. 428 U.S. 153, 189
(1976). It must provide "objective standards to guide, regular­
ize, and make rationally reviewable the process for imposing a 
sentence of death." ftpodson v. North-Carolina, 428 U.S. 280, 303 
(1976). Second, a capital-sentencing statute must provide for 
individualized sentencing by allowing the defendant to present 
evidence in mitigation of a sentence of death. Mandatory capital 
punishment statutes have been struck down because of their "lack 
of focus on the circumstances of the particular offense and the 
character and propensities of the offender," Roberts
(Stanislaus') v. Louisiana. 428 U.S. 325, 333 (1976) ? and sen­
tences under guided-discretion statutes have been vacated, when 
the sentencer was prevented from considering aspects of the 
defendant's character or record or the circumstances of the 
offense. See Lockett v. Ohio, 438 U.S. 586 (1978).

-9-



The Texas statute was found to satisfy both requirements in 
Jurek v. Texas, 428 U.S. 262 (1976). First, the offenses for 
which the state may seek to impose the death penalty are limited 
to intentional murders committed under strictly defined circum­
stances. Tex. Penal Code Ann. § 19.03 (Vernon Supp. 1988). Once 
a defendant is found guilty of capital murder, a separate sen­
tencing hearing is conducted to determine whether the punishment 
will be life imprisonment or death. Tex. Code Crim. Proc. Ann. 
art. 37.071(b) (Vernon Supp. 1987). Finally, all convictions 
that result in a sentence of death are automatically reviewed by 
the Texas Court of Criminal Appeals. , art. 37.071(f). The
Texas statute was thus structured so as to prevent the sentencing 
authority from imposing a sentence of death in an arbitrary and 
unpredictable fashion. Jurek. 428 U.S. at 276. Penry does not 
challenge the validity of this aspect of the statute.

This Court also found that the Texas procedure provides for
individualized sentencing. In Texas, after finding a defendant
guilty of capital murder, the jury is not directly asked whether

,0

the punishment should be life imprisonment or death. Rather, the 
following 3et of special issues is submitted:

(1) whether the conduct of the defendant that 
caused the death of the deceased was commit­
ted 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.

Tex. Code Crim. Proc. Ann. art. 37.071(b). The jury must be
persuaded beyond a reasonable doubt before a question may be
answered affirmatively. If all of the issues submitted are
answered "yes," the court sentences the defendant to death;
otherwise, the sentence is life imprisonment.

In Jurek the Court noted that the special issues do not 
explicitly speak of mitigating circumstances. However, the Texas

-10-

•R



JU L -U I- 'b b  Ib i lY  iJj:rHUL ujclidd whon

Court of Criminal Appeals had interpreted the second question so 
as to allow the defendant to present to the jury whatever miti­
gating evidence he might wish:

'In determining the likelihood that the 
defendant would be a continuing threat to 
society, the jury could consider whether the 
defendant had a significant criminal record.
It could consider the range and severity of 
his prior criminal conduct. It could further 
look at the age of the defendant and whether 
or not at the time of the commission of the 
offense he was acting under duress or under 
the domination of another. It could also 
consider whether the defendant was under an 
extreme form of mental or emotional pressure, 
something less, perhaps, than insanity, but 
more than the emotions of the average man, 
however inflamed, could withstand.'

Jurek, 428 U.S. at 272, quoting Jurek v. State. 522 S.W.2d 934,
939-40 (Tex.Crim.App. 1975). The Texas statute puts before the
jury "all possible relevant information about the individual
defendant whose fate it must decide." jLurfiJii 428 U.S. at 276.
In thus providing for individualized sentencing, Texas' procedure
meets the requirements imposed by the Constitution.

Penry argues that the structure of the special issues might 
convince jurors that they are unable to consider certain evi­
dence. He relies on certain statements in the opinion of the 
court below similar to those expressed by three dissenting 
members of the Texas Court of Criminal Appeals. In Stewart v. 
State. 686 S.W.2d 118, 125-26 (Tex.Crim.App. 1984), Judge
Clinton, joined by Judges Teague and Miller, noted that evidence 
of mental illness and childhood deprivation could be introduced 
by the defendant as mitigating circumstances, but could also be 
viewed as weighing in favor of a death sentence. The dissent 
opined that the jury ought to be-instructed by the trial court 
that the evidence had to be considered as mitigating. See also 
Johnson v. State. 691 S.W.2d 619, 627 (Tex.Crim.App. 1984)
(Clinton, J., dissenting).

The minority members of the Court of Criminal Appeals 
themselves recognized, however, what this Court stated in Eddinqs 
V. Oklahoma. 455 U.S. 104 (1982): that evidence of difficult 
family history and of emotional disturbance is frequently

-11-



introduced by defendants in mitigation, and juries can easily 
grasp its significance. Eflfllnqs, 455 U.S. at 115. Although the 
sentencing authority cannot refuse to or be precluded from 
considering certain evidence as mitigating, nothing in the 
Constitution requires that it be considered only as mitigating. 
This much is evident from the Court's recognition in pnmund 
Florida. 458 U.S. 782 (1982), that, while a vicarious felony
murderer may be executed in some states absent an intent to kill 
if sufficient aggravating factors are present, some of those same 
states make it a pitioatina factor that the defendant was an 
accomplice to the murder and his own participation was relatively 
minor. Enmund, 458 U.S. at 791-92. It also follows from the 
requirement that the defendant be allowed to explain any evidence 
the state introduces_ in favor of the death sentence. (?atdn.S£—  
Florida. 430 U.S. 349, 362 (1977). Like any circumstantial
evidence, that introduced at the punishment phase of a capital 
murder trial can be susceptible of more than one interpretation.

is for the jury to determine the weight such evidence re­
ceives. S£e Eddinos. 455 U.S. at 114-15 ("[t]he sentencer, and 
the Court of Criminal Appeals on review, may determine the weight 
to be given relevant mitigating evidence"); — ElorMa,
463 U.S. 939, 961 n. 2 (1983) (Stevens, J., concurring) (neither 
Lockett nor Eddinos held that any particular weight must be given 
by the sentencer to mitigating evidence) ; Zflhfr .Yj S~tfeYfiIlS> 462 
U.S. 862, 891 (1983) (Constitution does not require states to
adopt specific standards for instructing jury how to consider 
aggravating and mitigating circumstances).

The Constitution requires the sentencer to listen to the 
defendant's mitigating evidence but does not usurp the sen- 
tencer's role in assessing the value of that evidence. Sim­
ilarly > the Texas statute allows the defendant to submit to the 
jury whatever mitigating evidence he chooses to and requires the 
jury to consider that evidence in deciding punishment, but leaves 
to the jury the determination of what weight to give to it. Sfe.fi 
Cordovp v. State. 733 S.W.2d 175, 189 (Tex.Crim.App. 1987) (in

- 12-

m msrnrnm  tu**., m m



■ J U L  U i V_M_J I i—  <—>

Texas, mitigating evidence is given effect by the influence it
has on the jury during deliberations).

Penry also argues that the state convicting court erred in 
failing to define certain terms used in the special issues on 
punishment. The Fifth Circuit has consistently recognized that 
these words "are sufficiently common that their definition is not 
required in a jury charge under the capital murder statute." 
fl-ilton v. Procunier. 744 F.2d 1091, 1095 (5th Cir. 1984), £££t.
denied. ___ U.S. ___, 105 S.Ct. 2040 (1985). The court's jury
instructions on the punishment issues were not objectionable 
under Texas law or as a matter of federal constitutional law. 
Certainly, the instructions were not so defective as to render 
the punishment hearing as a whole fundamentally unfair. Cupp y.,. 
Nauahten. 414 U.S. 141 (1973).

III.
EXECUTION OF A MENTALLY RETARDED PERSON DOES 
NOT CONSTITUTE AN EIGHTH AMENDMENT VIOLATION.

Penry contends that his execution would violate the eighth 
amendment proscription against cruel and unusual punishment 
because he is mentally retarded. In support of his claim, he 
argues that the Court's decision in ford v- Wainwri.gUt , --- U.S.

106 S.Ct. 2595 (1986), precludes the execution of "idiots 
and lunatics." He asserts that execution of such persons offends 
contemporary notions of decency, citing to the American Associa­
tion of Mental Deficiencies standards, a Florida survey and 
Texas' prohibition against the execution of persons who are under 
the chronological age of 17 when they commit the offense.

The evidence that Penry has limited mental capacity is not 
in dispute. As the district court found, psychological testing 
conducted on Penry from the age of eight through his i960 trial 
places his IQ somewhere between 50-63, a range of moderage to 
mild mental retardation, and supports the district court's 
characterization of Penry as having "the mind of a six or seven- 
year-old child and the social maturity of an eight to ten-year- 
old child (B. 4). Notwithstanding the evidence of Penry's

-13-



JUL-01-’88 16:21 ID:PAUL WEISS WASH DC TEL NO:202-223-7420 4846 P21

limited mental capacity, the district court denied habeas relief, 
reasoning primarily that "the [Constitution] does not proscribe 
[a death] sentence for the mentally deficient" and "the prohibi­
tion against execution of those unable to understand the reason 
for their punishment apparently does not apply to a person like 
p^nry who has been adjudicated a competent man" (B. 5)• The 
court below affirmed on the basis of well settled law of that 
circuit (A. 3).

The district court correctly found that prior to trial a 
comprehensive, separate competency hearing was held in state 
court (SF v-VII), and it presumed correct the jury's finding that 
Penry had sufficient present ability to consult with his lawyers 
with a rational degree of understanding and had a rational as 
well as factual understanding of the proceedings against him, or 
in other words, that he met the Texas standard for competence to 
stand trial. Tex. Code crim. Proc. Ann. art. 46.02 §l(a) (Vernon 
1981) (ROA 14? SF VII 944). ££e 28 U.S.C. § 2254 (d)? MfiSgifl— JL 
Fulford, 462 U.S. Ill, 117 (1983). In addition, Penry raised an 
insanity defense at the guilt phase of his trial (SF XVI 
2114-2321? XVII 2398-2422), and offered evidence of his dimin­
ished mental capacity to the jury for its consideration in the 
sentencing proceeding (SF XVII 2642-55). Both his guilt and 
punishment defenses were rejected by the trial jury, thus con­
firming the jury's belief that Penry knew right from wrong, was 
capable of conforming his conduct to the requirements of the law, 
committed the capital murder deliberately and with reasonable 
expectation of his victim's death, and constituted a future 
threat to society. Tex. Penal Code Ann. art. 8.01 (Vernon 1974); 
Tex. Code Crim. Proc. Ann. art. 37.071 (Vernon Supp. 1987).

Penry's sole challenge is to the legal conclusion of the 
courts below that a defendant who has been adjudged competent at 
his trial does not qualify as an "idiot" under Ford. In fact, 
Ford itself does not support Penry's position, while the plural­
ity opinion of four justices deferred developing standards for 
the enforcement of the constitutional restriction o the state's

-14-



limited mental capacity, the district court denied habeas relief, 
reasoning primarily that "the [Constitution] does not proscribe 
[. death] sentence for the mentally deficient" and "the prohibi­
tion against execution of those unable to understand the reason 
for their punishment apparently does not apply to a person like 
penry who has been adjudicated a competent man" <B. 5). The
court below affirmed on the basis of well settled law of that

circuit (A. 3).
The district court correctly found that prior to trial a 

comprehensive, separate competency hearing was held in state 
court <SF V-VII), and it presumed correct the jury's finding that 
Penry had sufficient present ability to consult with his lawyers 
with a rational degree of understanding and had a rational as 
well as factual understanding of the proceedings against him, or 
in other words, that he met the Texas standard for competence to 
stand trial. Tex. Code Crim. Proc. Ann. art. 46.02 51(a) (Vernon 
„ 81, (POA 14; SF VII 944). SUS 28 U.S.C. 5 2264(d);
P M  ford. 462 U.S. HI, 117 (1983). In addition, Penry raised an 
insanity defense at the guilt phase of his trial (SF XVI 
2114-2321; XVII 2398-2422), and offered evidence of his dimin­
ished mental capacity to the jury for its consideration in the 
sentencing proceeding (SF XVII 2642-55). Both his guilt and 
punishment defenses were rejected by the trial jury, thus con
firming the jury's belief that Penry knew right from wrong, was 
capable of conforming his conduct to the requirements of the law, 
committed the capital murder deliberately and with reasonable 
expectation of his victim's death, and constituted a future 
threat to society. Tex. Penal Code Ann. art. 8.01 (Vernon 1974); 
Tex. code crim. Proc. Ann. art. 37.071 (Vernon Supp. 1987).

Penry's sole challenge is to the legal conclusion of the 
courts below that a defendant who has been adjudged competent at 
his trial does not qualify as an "idiot" under Eaid. In £act' 
Ford itself does not support Penry's position, while the plural­
ity opinion of four justices deferred developing standards for 
the enforcement of the constitutional restriction o the state's

14-



execution of its sentences, Ford v. Wainwricrtlt, --- U.S. at ---,
106 s.Ct. at 2606, the pivotal concurring opinion of . Justice 
Powell states a "precise formula for determining what process is 
due." Johnson v. Cabana. 818 F.2d 333, 337 (5th Cir.), 
denied. ___ U.S. ___, 107 S.Ct. 2207 (1987). As Johns.<2fl recog­
nizes, Ford precludes the execution of a defendant who is unable 
"to perceive the connection between his crime and punishment."

336. Or in Justice Powell's terms: "the Eighth Amendment
forbids the execution only of those who are unaware of the 
punishment they are about to suffer and why they are to suffer 
it." ___ u.s. at ___, 106 s.Ct. at 2608-09.

Both the state courts and the federal habeas courts below 
found as a factual matter that Penry does not meet this standard. 
Thus, his argument is based on nothing more than disagreement 
with these factual findings, a matter clearly insufficient to 
warrant exercise of the Court's certiorari jurisdiction. The 
record clearly reveals that the courts below applied the correct 
constitutional standard in rejecting Penry's claim. The issues 
raised by Penry concern only the application of well-settled 
constitutional principles to his particular factual situation. 
This Court sits to decide important, novel or recurring ques­
tions, not to review evidentiary determinations founded on 
settled principles of law. Penry's claims do not justify the
exercise of this Court's certiorari jurisdiction. T&SPJ3 Yls-
Arizona. 410 U.S. 351, 352 (1973); Graver M fo. Co. v. Linde— Cô ., 
336 U.S. 271, 275 (1949).

IV.
PENRY'S CLAIM THAT HIS CONFESSIONS WERE 
INVOLUNTARY BECAUSE HE DID NOT KNOWINGLY 
RELINQUISH HIS RIGHT TO REMAIN SILENT IS 
MERITLESS IN LIGHT OF THE FACTUAL FINDINGS OF 
THE STATE COURTS.

Penry contends that both of his confessions should have been 
suppressed because they were made without a Knowing relinquish­
ment of his privilege against self-incrimination. The proper

15



standard of review for determining waiver was recently discussed 
by this Court in Moran v.-Burhina., ___ U,S.---, --- , 106 S.Ct.
1135, 1141 (1986):

Echoing the standard first articulated in 
Johnson v - Zerbst, 304 U.S. 458,
S.Ct- 1019, 1023, 82 L.Ed. 1461 (1938),
Miranda holds that "[t]he defendants may 
waive effectuation" of the rights conveyed in 
the warnings "provided the waiver is made 
voluntarily, knowingly and intelligently." 
384 U.S. at 444, 475, 85 S.Ct. at 1612, 1628. 
The inquiry has two distinct dimensions. 
Edwards v. Arizona, gupra, 451 U.S. at 482, 
101 S.Ct. at 1883; Brewer v- williams, 430 
U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 
L.Ed.2d 424 (1977). First, the relinquish­
ment of the right must have been voluntary in 
the sense that it was product of a free and 
deliberate choice rather than intimidation, 
coercion or deception. Second, the waiver 
must have been made with a full awareness 
both of the nature of the right being aban­
doned and the consequences of the decision to 
abandon it. Only if the "totality of the circumstances surrounding the interrogation1* 
reveal both an uncoerced choice and the 
requisite level of comprehension may a court 
properly conclude that the Miranda rights 
have been waived.

The issue of voluntariness of a confession and waiver is a legal 
question requiring iftdependent federal determination. Mil ley— v_j_
Fenton. ___ U.S. ___, ___ , 106 S.Ct. 445, 450 (1986). The
factual determinations subsidiary to the determination are 
entitled to a presumption of correctness under 28 u.S.C.
§ 2254(d). Id-

The first aspect of the test set forth in Burkina is that 
"the relinquishment must have been voluntary in the sense that it 
was the product of a free and deliberate choice rather than 
intimidation, coercion or deception." The trial court found that 
’•from all the evidence that the Defendant was not induced or 
coerced by any person to give or make such written statement[s] 
by threats, persuasion, compulsion, intimidation, promises, 
unlawful detention, or anything else." ’(Tr. 94-95). The record 
evidence reflects more than fair support for the trial court's 
finding's. The law enforcement authorities involved in the 
investigation and the witnesses to the signing each testified 
that no such inducements were given (SF IV 147, 217-18, 230-31,

16

HUBS! SUB



<\
t

243; XIV 1722, 1834; XV 1881, 1891, 1981, 2046). Penry testified 
at the competency hearing that there was no coercion or induce­
ments (SF VI 533), and that he told the officers what to write 
(SF VI 543, 546-48). Until Penry admitted to having committed
the crime, he was unrestrained and accompanied the officers of 
his own volition (SF IV 140-41, 144, 150-52, 156, 163, 175-78;
XIV 1576, 1587-88, 1624-27, 1659).

It is undisputed that Penry initiated the conversation 
resulting in his first admission, over Officer Nelson's admoni­
tion to be quiet (SF IV 154; XIV 1608 — 10, 1618) .
Burbine, ___ U.S. at ___, 106 S.Ct. at 1141. When Penry made the
oral statement confessing to the crime in the magistrate s 
courtroom it was in response to his father's questioning, not the 
law enforcement authorities (SF IV 184, 205-07; XIV 1845). Penry 
never invoked any of his rights. Further, the words in the 
confessions were Penry's, as he himself testified (SF VI 543). 
Any subtle coercion which might be present in police interroga­
tion was simply absent here.

The second aspect of the test is the "awareness of the right 
being abandoned and the consequence of the decision to abandon 
it." The record does reflect, as Penry contends, that Penry is 
of low intellect and that his IQ falls in the mild-moderate 
mental retardation range. However, each of the persons who came 
in contact with Penry testified that at no time did he act in an 
emotional, bizarre or crazy manner; that he appeared to under­
stand questions asked and responded in a rational manner; that 
they were able to understand and communicate with Penry; that 
Penry stated that he understood his rights; that he freely gave 
detailed information; and, that he had no trouble with recall (SF 
IV 157, 170, 189-90, 205, 226; XIV 1628, 1632-36, 1653, 1659, 
1675, 1307-09, 1833, 1849, 1855? XV 1881, 1890, 1980, 1982-83, 
1990-91, 1997, 2015, 2018, 2046).

The officers were aware that Penry was illiterate and
"little Blow." His Miranda rights were 
standard issued card, but explained

recognized that he was a 
not only read off the

-17



individually to him in simple terms numerous times prior to and 
during the giving of the statements (SF IV 165-67, 16B-69, 183,
185, 190, 196, 203, 212, 223-26; VII 826-28: XV 1995, 2020, 1982,
198 4-85) . Penny's father, who certainly would be aware of his 
intellectual limitations, told Penny in the magistrate's court-

-a. _J__ _ i. _ la. 4 «nroom not to sign the acknowledgement of rights form given to
by the magistrate. The magistrate informed the father that the 
rights had been read and that Penny said he understood, to this 
the father responded that Penny "can't write" and Us then admin­
istered the warnings (SF IV 184,205-07; XIV 1845). Finally, 
penny stated he understood he was charged with capital murder and 
the consequences of those charges (SF VI 487, 490; VII 782, 785,
850). psychiatric testimony indicated Penny had the capacity to
understand Miranda warnings. The statements were read to Penny 
before signing in their entirety, including the warnings and 
waivers, slowly and carefully because Penny could not read (SF IV 
190-92, 216-17, 228-30, 241-42). Express statements of waiver

are contained in both.
The evidence underlying the state and federal courts' 

conclusions is not disputed in Penry's petition to this Court. 
His claim rests entirely on his assertion that "capital murder 
was [n]ever explained to him in terms he could understand [and] 
that he was [never] cautioned that signing the statement^] could 
be used to give him the death penalty." (Petition at 20). This 
claim, however, is foreclosed by the Court's recent decision in 
d o r a d o  v. soring. _  U.S. 107 S.ct. 851 (1987), wherein
the Court rejected the proposition that the Constitution requires 
that a criminal suspect Know and understand every possible 
consequence of a waiver of the fifth amendment privilege.

The totality of the circumstances reflect a non-coercive 
situation and express waivers of Penry's Miranda rights. While 
an express waiver "is not inevitably either necessary or suffi­
cient to establish waiver," it is "usually strong proof of the 
validity of the waiver." EflCth fiftraUna Y. BMtlgE, 441 U.S. 370, 
373 (1979). This, coupled with the absence of deliberate means

-18-



calculated to break Fenry's will, his desire to confess, the 
repeated and individualized administration of warnings, the 
explanation of rights in simple terms, and an ability on Penry's 
part to understand the proceedings and nature of his crime and 
the effect of confessing is more than sufficient to support the 
conclusion of the courts below that Penry knowingly relinquished 
his privilege against self-incrimination. Penry again asks the
Court to review factual matters resolved against him by the 
courts below. To do so would be an unwarranted exercise of the 
Court's certiorari jurisdiction.

CQKCmSI.QN
For these reasons, the state respectfully requests that the 

petition for writ of certiorari be denied.
Respectfully submitted,
JIM MATTOX
Attorney General of Texas
MARY F. KELLER
First Assistant 

Attorney General
LOU MCCREARY
Executive Assistant 

Attorney General
MICHAEL P. HODGE 
Assistant Attorney General

P.O. Box 12548, Capitol Station 
Austin, Texas 78711 
(512) 463-2080
ATTORNEYS FOR RESPONDENT

19*

US 25EE