Penry v. Lynaugh Petition for Writ of Certiorari

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87 -  6177

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

JOHNNY PAUL PENRY,

Petitioner

V.

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

Respondent

PETITION FOR WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

OCTOBER TERM 1987

CURTIS C. MASON 
Attorney for Petitioner 
Staff Counsel for Inmates 
P.0. Box 99
Huntsville, Texas 77342-0099 
(409) 295-6371 ext. 1370 
Texas Bar No. 13150700

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QUESTIONS PRESENTED FOR REVIEW

1. At the punishment phase of a Texas capital murder trial, must the trial 

court upon a proper request, (a) Instruct the jury that they are to take into 

consideration all evidence that mitigates against the sentence of death and 

(b) define terms in the three statutory questions 1n such a way that 1n 

answering these questions all mitigating evidence can be taken Into 

consideration?

2. Is it cruel and unusual punishment to execute an Individual with the 

reasoning capacity of a seven year old?

3. Given Penry's degree of mental retardation were his two confessions a 

voluntary rel1nqu1shment of his right to remain silent?

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TABLE OF CONTENTS

PAGE

Questions Presented for Review........ .. ......................... 1

Opinions Below....................................................  1

Jurisdiction....................................................... 1

Constitutional and Statutory Provisions Involved..................  1

Statement of the C a s e ................   2

Proceeding and Disposition in the Courts Below ..............  2

Statement of Facts..................     2

Argument and Authorities. . . . .  ................................  4

The Texas Capital Punishment Statute as Applied to 
Penry was a Violation of the Cruel and Unusual 
Punishment Clause of the Eighth Amendment to the 
United States Constitution..............................  4

Execution of a Mentally Retarded Person
1$ Cruel and Unusual Punishment ........................  14

Given Penry1s Degree of Mental Retardation 
his two Confessions were not a Voluntary
Relinquishment of his Right to Remain Silent. . . . . . .  17

Summary....................................   20

Certificate of Service. . *...................... • . ...............  21

BOUND SEPARATELY

Appendix A, Opinion of the Fifth Circuit..........................  A-l

Appendix B, Order Denying First Amended Petition for Writ of
Habeas Corpus..........................   B-l

Appendix C, Order Denying Suggestion for Rehearing En Banc........  C

TABLE OF AUTHORITIES

CASES PAGE

Blansett v. State. 556 S.W.2d 322 (Tex.Cr.App. 1977)..............  3

Brogdon v. Butler. 824 F.2d 338 (5th Cir. 1987) ................... 14

Cannon v. State, 691 S.W.2d 664 (Tex.Cr.App. 1985), . . .  ........  5

Clark v. State, 717 S.W.2d 910 (Tex.Cr.App. 1986) ................  5

Cooper v. Griffin, 455 F.2d 1142 (5th Cir. 1972)........................ 19

Cordova v. State, 733 S.W.2d 175, (Tex.Cr.App. 1987)..............  5, 8

Drew v. State, __ S.W.2d __, No. 69249 (Tex.Cr.App. Sept. 30, 1987) 10, 11

Eddings v. Oklahoma. 455 U.S. 104 (1982). .........................  5, 8

Ford v. Wainwright, _  U.S. 106 S. Ct. 2595 (1986)............  14, 15, 16

Franklin v. Lynauqh. 823 F.2d 98.'....................... , . . . . 6, 12, 13

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TABLE OF AUTHORITIES CON'T

PAGE

Gardner v. State, 730 S.W.2d 575 (Tex.Cr.App. 1987) ..............  10

Godfrey v. Georgia, 446 U.S. 420 (1980)................ .......... 11

Granviel v. Estelle, 655 F.2d 673 (5th Cir. 1981)................  8

Granviel v. State, 723 S.W.2d 141 (Tex.Cr.App. 1986). . . . . . . .  9

Hitchcock v. Dugger, ___ U.S. __, 107 S.Ct. 1821 (1987).......... .. 12

Jurek v. Estelle. 623 F.2d 929 (5th C1r. 1980)....................  18, 19 20

Jurek v. Texas, 428 U.S. 262 (1976)..............................  5, 8, 11

Kind v. State. 553 S.W.2d 105 (Tex.Cr.App. 1977)..................  5

Lane v. State, __ S.W.2d , No. 69,254 (Tex.Cr.App. Dec. 9, 1987). . 10

Penry v. Lynauqh, __F.2d __, (5th C1r. Nov. 25, 1987)............  2

Penry v. State, 691 S.W.2d 636 (Tex. Cr. App, 1985)............ - 2, 5, 6

Ruiz v. Estelle, 679 F.2d 1115 (5th Cir. 1982)....................  15

Stewart v. State, 686 S.W.2d 118 (Tex.Cr.App. 1984) ..............  5

Thompson v. Oklahoma, __ U.S. __ 107 S.Ct. 1284 (1987)............  14

Ex Parte Walker, 13 S.W. 861 (1890)...................... .. 16

Williams v. State, 674 S.W.2d 315 (TEx.Cr.App. 1984)..............  6

Woodson v. North Carolina, 428 U.S. 280 (1976)....................  5, 15

\

CONSTITUTES AND STATUTES

Eighth Amendment to the United States Constitution ................  1

Article 37.071 Texas Code Criminal Procedure........ .............. 2,5

JOURNAL ARTICLES

Manual on Terminology and Classification in Mental Retardation. . . 14

Mentally Retarded Criminal Defendant,
53 Geo. Wash. L. Rev. 414 (1985)............................  16

ABA Standards for Criminal Justice 7-9.3 2d Ed. 1980........ .. 14

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IN THE

SUPREME COURT OF THE UNITED STATES 

October Term, 1987 

JOHNNY PAUL PENRY,

Petitioner

v.

JAMES A. LYNAUGH,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED 
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

The petitioner respectfully prays that a writ of certiorari issue to 

review the judgment and opinion of the United States ’Court of Appeals for the 

Fifth Circuit entered in the above entitled proceeding*

OPINIONS BELOW

The opinion of the Court of Appeals for the Fifth Circuit is reported at

___F.2d___ (5th Cir. 198J). A copy of the opinion is attached as Appendix A.

(p.A-1 to A-21).

The memorandum decision of the United States District Court for the 

Eastern District of Texas has not been reported. It is attached as Appendix 

B. (p. B-l to B-49).

JURISDICIQN

Invoking federal jurisdiction under 28 U.S.C. §2254 and 28 U.S.C. §1254, 

petitioner filed a petition for writ of habeas corpus by a person in state

custody in the United States District Court, Eastern District of Texas, Lufkin

Division on .April 28, 1987. In a memorandum opinion the writ was denied on 

May 8, 1987 final judgment was entered and certificate of probably cause to 

appeal to the United States Court of Appeals for the Fifth Circuit was 

granted. The Fifth Circuit rendered its judgment denying relief on November 

25, 1987. Suggestion for Rehearing En Banc and Rehearing were denied on

December 23, 1987. (Appendix C). The Fifth Circuit has decided an Important 

question of federal law which has not been but should be decided by this 

Court.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves the Eighth Amendment to the United States

Constitution.

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"Excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishment inflicted."

and Art. 37.071 Texas Code of Criminal Proc. Ann.

(b) On conclusion of the presentation of the evidence, 
the court shall submit the following three issues to the 
jury:

(1) whether the conduct of the defendant that cause 
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 1s a probability that the defendant 
would commit criminal acts of violence that would con­
stitute a continuing threat to society; and
(3) 1f raised by the evidence, whether the conduct of 
the defendant 1n killing the deceased was unreasonable 
1n response to the provocation, 1f any, by the deceased.
(4) The state must prove each issue submitted beyond a 
reasonable doubt, and the jury shall return a special 
verdict of "yes" or "no" on each issue submitted.

STATEMENT OF THE CASE

Proceeding and Disposition in the Courts Below:

Penry was tried on a change of venue in the 258th Judicial District

Court, Trinity County, Texas. The jury answered all three special Issues yes

and Penry was sentenced to death on April 18, 1980. His conviction was

affirmed, in a published opinion, by the Court of Criminal Appeals of Texas

May 1, 1985. Penry v. State, 691 S.W.2d 636 (Tex. Cr. App. 1985). Petition

for Writ of Certiorari was denied by the United States Supreme Court on

January 13, 1986. ____U.S.______, 106 S.Ct. 834 (1986). Writ of Habeas Corpus

was denied by the Court of Criminal Appeals of Texas without written opinion

on May 5, 1986. A Writ of Habeas Corpus under 28 U.S.C. §2254 was denied by

the United States District Court, Eastern District of Texas, Lufkin Division

on April 28, 1987 with final judgment entered (ROA 3)1 2 and certificate of

probable cause granted on May 8, 1987. ROA 1. The United States Court of
2

Appeals for the Fifth Circuit panel decision was rendered November 25, 1987, 

Suggestion for Rehearing En Banc and Rehearing were denied on December 23, 

1987.

Statement of Facts

"On the morning of October 25, 1979, Pamela Carpenter 
was brutally beaten, raped, and stabbed with a pair of 
scissors 1n her own home 1n Livingston, Polk County,
Texas. She died a few hours later, ..."

Penry v. Lynaugh, ____ F.2d _____, slip opinion Appendix A p. A-2 (5th c1r.

Nov. 25, 1987).

1. The number after ROA is the page number of the Record on Appeal filed in 
Fifth Circuit.

2. Due to his death Judge H111 did not participate in this decision,

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Before she died she gave a description of her assailant. Two local 

sneriff's deputies decided the description was that of Johnny Paul Penry. 

They picked him up at his father's house took him first to the police station 

where they were joined fay several other law enforcement officers, they all 

went back to the house where Penry lived and then to the crime scene. At the 

crime scene Penry made a verbal admission after which he was taken before a 

magistrate following which a statement was reduced to writing which Penry, a 

retarded Illiterate, signed. The next day another more detailed statement was 

reduced to writing and signed by Penry. Slip opinion Appendix A p. A-l to 

A-2.

At the punishment phase of Penry's trial the following objections were 

made to the jury Instructions;

OBJECTION 2: The Defendant objects and excepts to the Charge
on the grounds that it fails to define the term 
deliberately.

* ★ *

OBJECTION 4: The Defendant excepts and objects to the Court's
Charge on the grounds that it does not define the 
terms that defendant would commit "criminal acts 
of violence."

* * *

OBJECTION 5: The Defendant objects and excepts to the Charge
on the grounds that the Charge of the Court falls 
to define the term continuing threat to society.

* * *

OBJECTION 11: The next objection to the Court's Charge

* * *

is that the Court's Charge fails to instruct the jury to the 
following effect: "you may taken into consideration all of the
evidence, whether aggravating or mitigating in nature, if any, 
submitted to you in the full trial of the case, that is all of 
the evidence submitted to you in the trial of the first part of 
this case wherein you were called up[on] to determine the guilt 
or innocence of the Defendant and all of the evidence, whether 
mitigating or aggravating 1n nature, 1f any, as permitted for 
you in the second part of the trial wherein you are called upon 
to determine the special issues hereby submitted to you.

★ * *

OBJECTION 13: The twelfth [sic] objection and exception to the
Court's Charge 1s that it.fails to require as a 
condition to the assessment of the death penalty 
that the State prove beyond a reasonable doubt 
whether the aggravating circumstances outweigh 
any mitigating circumstances so as to render

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Improbable that the Defendant can be 
rehabi11tated.

(V.17 R. 2653 - 2564)3

These objections to the charge were overruled.

(V.17 R.2654 1. 20-22).

The mitigating evidence in Penny's case was discussed by the U.S. 

District Court below as follows;

The evidence Indicates his I.Q. falls somewhere 
between 50 and 63, meaning he has the mind of a six or 
seven-year-old child and the social maturity of an eight 
to ten-year-old child. As a telling example of his mental 
deficiency petitioner refers to the fact that working 
daily with h1s aunt, 1t still required a year to teach him 
how to write h1s name.

Other examples abound. There can be no question that 
petitioner does not think like a "normal" person, but then no 
normal person would have committed a crime like the, one of 
which Penry was convicted. The blame for Penry's condition 
probably lies at several doorsteps. There was evidence 
"suggesting he was frequently and severely beaten by his mother, 
spent much of h1s childhood in state schools, and in his teens 
was victimized by other men who treated him like a slave. The 
ultimate doorstep must be Penry's, however, because he is the 
one who stands convicted of taking Pamela Carpenter's life.

Although Penry may be mentally abnormal, h1s upbringing 
was also abnormal. He has treated others as others have 
treated him. It may never be clear what role societal factors 
played in causing Penry's condition.

Memorandum opinion Appendix B p, B-3 to B-4..

ARGUMENT AND AUTHORITIES

The Texas Capital Punishmnet Statute as Applied to Penry was a Violation of 
the Cruel and Unusual Punishment Clause of the Eighth Amendment to the United 
States Constitution “

In finding that the execution of a mentally retarded person was not cruel 

and unusual punishment the United States District Court below found that 

mental retardation was nothing more than one of the mitigating factors to be 

considered. Appendix B p. B-5 to B-6. In Texas the punishment phase of a 

capital murder trial consists of the jury ’answering three narrowly drawn 

questions;

(b) On conclusion of the presentation of the evidence, 
the court shall submit the following three Issues to the 
jury:

(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

3T The number after V. 1s the volume number of the state trial court record. 
The number after R. is the page number in that volume. The number after 1,
Is the line number on the page. The state trial court record is an exhibit 
filed in this cause.

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the defendant 1n killing the deceased was unreasonable in 
response to to the provocation, if any, by the deceased.

(4) The state must prove each Issue submitted beyond a 
reasonable doubt, and the jury shall return a special 
verdict of "yes" or "no" on each Issue submitted.

Art. 37.071 Tex. Code Crim. Proc. Ann.

Any death penalty statute that fails to require that the trier of fact at

the punishment phase must consider all mitigating circumstances before

assessing the death penalty is in violation of the Eighth and Fourteenth

Amendments to the U.S. Constitution's prohibition of cruel and unusual

punishment. Eddlngs v. Oklahoma, 455 U.S. 104 (1982), Woodson v. North

Carolina, 428 U.S. 280 (1976) In Jurek v. Texas, 428 U.S, 262, 272 (1976)

this Court held that although, The Texas Statute does not explicitly speak of

mitigating circumstances, that,

By authorizing the defense to bring before the jury at the 
separate sentencing hearing whatever mitigating
circumstances relating to the individual defendant can be 
adduced, Texas has ensured that the sentencing jury will 
have adequate guidance to enable it to perform its 
sentencing functions.

428 U.S. at 276. This Court further observed that at that time,

The Texas Court of Criminal Appeals has yet to define 
precisely the meanings of such terms as "criminal acts of 
violence" or "tontlnulng threat to society." In the 
present case, however, it indicated that it will interpret 
this second question so as to allow a defendant to bring 
to the jury's attention whatever mitigating circumstances 
he may be able to show:

id. at 272

Almost eleven years has past since Jurek was decided and not only has the 

Texas Court of Criminal Appeals failed to define the meanings of "criminal 

acts of violence" and "continuing threat to society" but 1s has also 

steadfastly refused to find error when, after timely motion by the defendant, 

the trial court has failed to Instruct the jury on the meaning of these 

Phases. Penry v. State. 691 S.W.2d at 653-4, Cannon v. State. 691 S.W,2d 

664, 667-8 (Tex. Cr. App. 1985), King v. State, 553 S.W.2d 105, 107 (Tex. Or. 

App. 1977). In addition the Texas Court of Criminal Appeals has refused to 

find error, when after a timely motion by the defendant, the trial court has 

failed to instruct the jury that 1n answering the questions on the defendant's 

deliberateness and continuing threat to society they are to take into 

consideration all mitigating circumstances. Cordova v. State. 733 $.W.2d 175, 

(Tex. Cr. App. 1987), Clark v. State. 717 S.W.2d 910, 920 (Tex. Cr. App. 

1986), Stewart v. State, 686 S.W.2d 118, 126 Clinton dissenting (Tex. Cr. App. 

1984).

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made a timely request for the following jury Instructions.

OBJECTION 2: The Defendant objects and excepts to the Charge
on the grounds that it falls to define the term 
deliberately.

* * *

OBJECTION 4: The Defendant excepts and objects to the Court's
Charge on the grounds that it does not define the 
terms that defendant would commit "criminal acts 
of violence."

* * *

OBJECTION 5: The Defendant objects and excepts to the Charge
on the grounds that the Charge of the Court fails 
to define the term continuing threat to society.

•* * *
4

OBJECTION 11: The next objection to the Court's Charge.

* ★ *

1s that the Court's Charge fails to instruct the jury to the 
following effect: "you may taken into consideration all of the
evidence, whether aggravating or mitigating 1n nature, if any, 
submitted to you in the full trial of the case, that is all of 
the evidence submitted to you 1n the trial of the first part of 
this case wherein you were called up[on] to determine the guilt 
or innocence of the Defendant and all of the evidence, whether 
mitigating or aggravating in nature, 1f any, as permitted for 
you in the second part of the trial wherein you are called upon 
to determine the special issues hereby submitted to you. '

* ★ ★

OBJECTION 13: The twelfth [sic] objection and exception to the
Court's Charge is that it fails to require as a 
condition to the assessment of the death penalty 
that the State prove beyond a reasonable doubt 
whether the aggravating circumstances outweigh 
any mitigating circumstances so as to render 
improbable that the Defendant can be 
rehabilitated.

V.17 R. 2659 - 2664

In accordance with agreement these objections were reduced to writing and 

signed by Penry's attorneys. (V.17 R. 2664 1. 16-17). These objections to 

the Charge were overruled, (V.17 R. 2664 T. 20-22), and the Texas Court of 

Criminal Appeals found no error, holding all the requested terms were to be 

given their common definitions. Penry v. State, 691 S.W.2d at 653-4. [It 

should be noted that in Williams v. 5tate, the Texas Court of Criminal Appeals

4. This Court granted certiorari 1n Franklin v. Lynauch, 823 F.2d 98 (5th
Cir. 1987) Cert, granted 56 U.S.L.W. 3287 (Oct. 9, 1987) on the question of whether
a jury instruction like the one in this objection 13 must be given.

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admitted tnat the term "deliberate" has a limited meaning. 674 S.W.2d 315, 

322 (Tex. Cr. App. 1984}.] The following Charge was then given the jury;

* * *

The burden of proof 1n this phase of the trial still rests 
upon the State and never shifts to the defendant. Each Special 
Issue submitted must be proved by the State beyond a reasonable 
doubt; therefore, before any Issue may be answered "Yes", all 
Jurors must be convinced by the evidence beyond a reasonable 
doubt that the answer to such issue should be "Yes". If the 
jury unanimously determines (and only if such determination 1s 
unanimous) that the State has proved an Issue beyond a 
reasonable doubt, then the Foreman will so record the Jury's 
answer to such issue by signing h1s name to the finding 
reflecting such answer on the form: provided for that purpose.

You are further instructed that If any juror, after 
considering the evidence and these Instructions, has a 
reasonable doubt as to whether the answer to a Special Issue 
should be answered "Yes", then such juror should vote "No" to 
that Special Issue in the Jury’s deliberations.

* * *

You are further instructed that in determining each of 
these Special Issues you may take into consideration all of the 
evidence submitted to you in the full trial of the case, that 
1s, all of the evidence submitted to you 1n the first part of 
this case wherein you were called! upon to determine the guilt 
or innocence of the defendant, and ail of the evidence, 1f any, 
admitted before you 1n the second part of the trial wherein you 
are called upon to determine the answers to Special Issues 
hereby submitted to you.

*  *  *

special issue n o . I

Was the conduct of the defendant, JOHNNY PAUL PENRY, that 
caused the death of the deceased, PAMELA CARPENTER, committed 
deliberately and with the reasonable expectation that the death 
of the deceased or another would result?

* * *

SPECIAL ISSUE NO.2

Is there a probability that the defendant, JOHNNY PAUL 
PENRY, would commit criminal acts of violence that would 
constitute a continuing threat to society?

*  *  *

SPECIAL ISSUE NO. 3

Was the conduct of the defendant, JOHNNY PAUL PENRY, 1n 
killing PAMELA CARPENTER, the deceased, unreasonable in 
response to the provocation, if any, by the deceased?

TR. 117 - U S A 5

Penry was permitted to argue all the mitigating circumstances to the jury

but without any specific Instructions from the Court as to where or how

5. The number after TR. is the page number of the state court Transcript 
Included as an exhibit 1n this cause.

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mitigating circumstances are to be applied in deciding the three special 

issues. Penry could only suggest to the Jury that if they did not believe a 

mentally retarded person should get the death penalty they should pick one or 

more special issues and vote "no" even if they believed the answer should be 

yes. That is, Penry could only suggest jury nullification of the law. As the 

Court of Criminal Appeals tacitly admits in Slansett v. State. 556 S.W.2d 322, 

327 n.6 (Tex. Cr. App. 1577), jury nullification 1s the only way all 

mitigating circumstances, can be taken Into consideration by the Texas death 

penalty statute. See also Granvlel v. Estelle 655 F.2d 673, 676 (5th C1r. 

1981). Unless it is assumed Texas jurors will readily violate their oath to 

follow the law as given by the trial judge, having to depend on jury 

nullification places an intolerable burden on Penry. "A jury must be allowed 

to consider on the basis of all relevant evidence not only why a death 

sentence should be imposed, but also why it should not be imposed.11 Jurek, 

428 U.S. at 271. There is no reason to believe that Texas juries will not do 

as the judge did in Eddinqs v. Oklahoma, supra, and follow the law as they 

understand it by reading the charge and ignore any evidence that does not 

directly relate to the answering of the three Issues given 1n the jury 

Instructions. This is especially true since this 1s precisely what the state 

told the jury they were required to do during its final argument. (V.17 R. 

2,688 1. 22-2690 1. 15).

The rationale used by the Texas Court of Criminal Appeals in holding no 

special instructions on mitigating evidence 1s required was discussed in 

Cordova v. State as follows:

Our understanding of both Eddinqs [455 U.S. 104], supra, and 
Lockett [438 U.S. 586], supra, 1s that the Supreme Court did 
not mandate that a prospective juror must give any amount of 
weTght to any particular fact that might be offered 1n 
mitigation of punishment, nor has our research to date revealed 
where this Court has ever laid down such a requirement. We 
believe that when properly read, Eddinqs, supra, and Lockett, 
supra, merely held that the fact-finder must not be precluded 
or prohibited from considering any relevant evidence offered 1n 
mitigation of the punishment to be assessed, or 1n answering 
the special issues. The decisions of the Supreme Court, and of 
this Court, do not, however, require an affirmative Instruction 
that the fact-finder must give any specified weight to a 
particular piece of evidence, as appellant's counsel appears to 
contend. The amount of weight that the fact-finder might give 
any particular piece of mitigating evidence is left to "the 
range of judgment and discretion exercised by each juror. See 
Adams v. Texas, supra, 448 U.S. at 46. Under our capital 
punishment scheme and procedures, mitigation 1s given effect by 
whatever Influence it might have on a juror 1n his deciding the 
answers to the special Issues.

* * *

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Although the issue has been presented 1n may different forms, 
this Court has consistently rejected the contention that the 
Texas statutory capital murder scheme, and the Fifth, Eighth, 
and Fourteenth Amendments to the Federal Constitution require 
that the trial court give an affirmative instruction that the 
jury must consider or apply mitigating evidence 1n their 
deliberations. As previously pointed out, we find nothing 1n 
either Eddings, supra, or Lockett, supra, that would mandate 
the giving or a general or special instruction on mitigating
evidence. E.g., Demouchette v. State, S.W.2d ____ (Tex.
Cr. App., No. 69,143, September '24,'"l98FTT Also see Quinones 
v. State. 592 S.W.2d 933, 947 (Tex. Cr. App. 1980), in which 
this Court held that no such affirmative instruction was 
necessary because "The jury can readily grasp the logical 
relevance of mitigating evidence to the Issue of whether there 
1s a probability of future criminal acts of violence. No 
additional charge 1s required."

733 S.W.2d at 189-190.

The above discussion must be considered, along with the fact that the jury

panel in a capital murder case Is still requested to take the following oath:

Prospective jurors shall be Informed that a sentence of 
life imprisonment or death is mandatory on conviction of a 
capital felony. A prospective juror shall be disqualified from 
serving as a juror unless he states under oath that the 
mandatory penalty of death or Imprisonment for life will, not 
affect his deliberations on any issue of fact.

§12.31(b) Texas Penal Code, even though no juror that refuses to take the oath 

will be disqualified. However, the jurors are .not informed of this fact. 

Granviel v. State, 723 S.W.2d 141, 154-5 (Tex. Cr. App. 1986).

Although Granviel's argument was directed at the giving of the above oath 

over timely objection, his argument also should be considered 1n the light of 

the Texas Court of Criminal Appeal's refusal to instruct the jury on the 

consideration of mitigating evidence. Granviel's argument against giving the 

oath 1s as follows:

Although the State has stopped questioning Jurors about 
the oath required under 12.31(b) and therefore no one 1s 
excused for failure to take the oath (because they are not told 
they can avoid taking the oath), the harm attendant to 
administering the oath is still present. It does not make much 
sense to prevent some one from being excused for failure to 
take the oath because to do so would deprive the accused of a 
fair and impartial jury but then to allow the trial court to 
require the jury swear an oath not to let the imposition of the 
death penalty affect their deliberations. The oath not only 
violates the spirit of Adams v. Texas, supra, but also violates 
the tenets of Edmund ["sic] v. M o n d a , supra, [458 U.S. 782,
102 S.Ct. 3368, 73 L.Ea.2d 1140J in that it forces the jury to 
swear not to consider [sc. allow?] their feelings about the 
death penalty to affect their deliberations nor does the oath 
allow the jurors to consider mitigating evidence 1n determining 
whether to answer the questions yes or no. By giving the oath, 
the trial court has forced the jury to consider only the 
evidence which goes directly to the answering of the questions 
and to ignore the juror's feelings and arguments against the 
death penalty.

id. This argument was rejected. 1d at 155-6.

9
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P I 0 • 38dd 80=81 88.  08 NDf

Further Indications that the Texas Court of Criminal Appeals is applying 

the statutory question of Art. 37.071 in a manner that restricts the 

consideration of mitigating evidence are found 1n Gardner v. State, 730 S.W.2d

675 (Tex. Cr. App. 1987} and Drew v. State, ____S.W.2d. _____ , No. 69249 (Tex.

Cr. App, Sept. 30, 1987). In Gardner a potential juror during voir dire was 

questioned on whether having found a person had Intentionally killed some one 

she would automatically answer question No. 1, yes. After the potential juror 

first said she would, the state on cross-vo1r dire got her to say she would 

not, after which the trial judge cut off further questioning. 730 S.W.2d at 

685 - 688. The Court of Criminal Appeals found;

A venireman who falls to perceive a difference 
between "Intentional" and "deliberate..." will certainly 
have problems reconsidering guilty stage evidence for Its 
probativeness toward special issues, or for that matter, 
considering any new evidence presented at the punishment 
phase with the requisite degree of Impartial1ty.

Judging from its final pronouncement, the trial court 
was apparently of a mind that it 1s "entirely impossible" 
that any reasonable juror would fail to discern a 
difference between the statutory terms. That is hardly a 
tenable position in view of the fact that at least four 
current members of this Court would favor submitted a 
requested jury instruction which would instruct jurors, 
inter alia, that "the word 'deliberately1 has a meaning 
different and distinct from the "intentionally" as that 
word was previously defined 1n the charge...

id. at 689. On December 9, 1987 the Texas Court of Criminal Appeals in Lane

v. State ___S.W.2d___, ___n.7, No. 69, 254 (Tex.Cr.App. Dec. 9, 1987} admitted

the term deliberate needs to be defined stating,

V.T.C.A., Penal Code Sec. 6.03(a) sets out:

"A person acts Intentionally, or with intent, with 
respect to the nature of his conduct or to a result of h1$ 
conduct when it is his conscious objective or desire to 
engage in the conduct or cause the result, (emphasis 
added) It seems appropriate to comment here on how 
beneficial it would be to this Court in resolving voir 
dire points of error for the Legislature to accept its 
responsibility, and define the term "deliberately" as 
it is set out in Art. 37.071(b)(1)."

In Drew the Texas Court of Criminal Appeals held that a potential juror 

that would not answer Question No. 2 yes unless the state proved that the 

future dangerousness Involved a danger to human life, could not follow the law 

stating; "Although the phrase 'criminal acts of violence that would 

constitute a continuing threat to society' is not defined 1n the Code of 

Criminal Procedure, there 1s nothing in our case law to limit this portion of 

Article 37.071(b)(2), supra, to future murders." Drew slip opinion at 4 - 6.

The voir dire in Gardner and the footnote in Lane illustrates the

10
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difficulty involvec 1n distinguishing Intentional and deliberate. In Drew a 

potential juror who states he would consider it a mitigating factor 1f the 

States failed to prove future dangerousness to human life was excused for 

cause. Both cases illustrate the futility of relying on the statutory 

question as a vehicle for considering all mitigating evidence. This is 

particularly true in the light of the fact that Penry's jury, after a timely 

request, was given no Instructions on the application of all mitigating 

circumstances.

The mitigating evidence in Penry's case was discussed by the U.S. 

District Court as follows;

This evidence indicates h1s I.Q. falls somewhere between 
50 and 63, meaning he has the mind of a six or seven-year-old 
child and the social maturity of an eight to ten-year-old 
child. As a telling example of h1s mental deficiency 
petitioner refers to the fact that working daily with h1s aunt, 
it still required a year to teach him how to write his name.

Other examples abound. There can be no question that 
petitioner does not think like a "normal" person, but then no 
normal person would have committed a crime like the one of 
which Penry was convicted. The blame for Penry's condition 
probably lies at several doorsteps. There was evidence 
suggesting he was frequently and severely beaten by his mother, 
spent much of his childhood in state schools, and in his teens 
was victimized by other men who treated him like a slave. The 
ultimate doorstep must be Penry's, however, because he is the 
one who stands convicted of taking Pamela Carpenter's life.

Although Penry may be mentally abnormal, his upbringing 
was also abnormal. He has treated others as others have 
treated him. It may never be clear what role societal factors 
played 1n causing Penry's condition.

Memorandum opinion, Appendix B p. B-3 to B-4. Without Instructions on the 

necessity for considering all mitigating evidence and without proper 

definitions of terms it is simply Impossible for Texas' three statutory 

questions to encompass all mitigating circumstances. In Jurek v. Texas, this 

Court upheld the three questions on the assumption that proper definitions 

would be forthcoming. 428 U.S. at 272. (1976.) None of the terms have been

given definitions by the Texas Court of Criminal Appeals and no Instructions
i

on consideration of all mitigating evidence is ever given. The Texas Court of 

Criminal Appeals having defaulted on its promise, the Texas statute should be 

held a violation of the Eighth Amendment to the United States Constitution as 

applied. See Godfrey v, Georgia, 446 U.S. 420 (1980.) With jury

nullification the only way for all the mitigating evidence to be considered, 

too great a burden was placed on Penry. By restricting the jury to answering 

the three statutory questions without any definitions of Instructions on

11
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9 l 0 • 3 9 y d S 0 : a i  a s ,  03 N n r

consideration of all mitigating circumstances Penry's jury was Just as 

effectively precluded from consideration of all mitigating evidence as was the 

Florida jury in Hitchcock v. Dugger, _ _ _  U.S. i 107 S.Ct. 1821 (1987).

The Fifth Circuit in their decision questioned whether after Hitchcock 

the Texas Capital punishment statute was constitutional stating,

It 1s therefore abundantly clear that a sentencing 
authority must not be precluded from considering any, or 
almost any, mitigating evidence. The issue here is what 
the term "consider'1 means. The Supreme Court has held 
that presentation of mitigating circumstances to the 
sentencing authority is not enough:. "[n]ot only did the 
Eighth Amendment require that capital-sentencing schemes 
permit the defendant to present any relevant mitigating 
evidence, but 1 Lockett requires the sentencer to listen1 
to that evidence." [citation omitted]

Penry v. Lynaugh at A-10

In Texas the punishment phase of a capital murder trial consists of the jury 

answering three narrowly drawn questions. Art. 37.071 Tex. Code Crim, Proc. 

Ann.
i

The Fifth Circuit discussed these questions as follows;

The Issue, then, is whether the questions, within 
their common meaning, permit the jury to act on all of the 
mitigating evidence in any manner they choose. In other 
words, is the jury precluded from the individual 
sentencing consideration that the Constitution mandates?
The jury may only find whether the murder was deliberate 
with a reasonable expectation of death and whether there 
is a probability that the defendant will 1n the future 
commit criminal acts of violence that constitute a threat 
to society. Although most mitigating evidence might be 
relevant in answering these questions, some arguably 
mitigating evidence would not necessarily be. The jury, 
then, would be effectively precluded from acting on the 
latter. Actually, these questions are directed at 
additional aggravating circumstances. Once found beyond a 
reasonable doubt, the death penalty 1s then mandatory.
The jury cannot say, based on mitigating circumstances, 
that a sentence less than death is appropriate. How can a 
Jury act on its "discretion to consider relevant evidence 
that might cause 1t to decline to Impose the death 
penalty"? McCleskey. 107 S.Ct. at 1773. Where, 1n the 
Texas scheme 1s' the^'moral inquiry" of the "individualized 
assessment of the appropriateness of the death penalty"?
Brown. 107 S.Ct. at 841 (O'Connor, J., concurring).

We recognize that Jurek specifically upheld the Texas 
statute, as the state argues. Developing Supreme Court 
law, however, recognizes a constitutional right that the 
jury have some discretion to decline to Impose the death 
penalty. There is a question whether the Texas scheme 
permits the full range of discretion which the Supreme 
Court may require. Perhaps, 1t is time to reconsider 
Jurek 1n light of that developing law.

Penry's conviction is a good example of mitigating 
circumstances that pose a problem under the Texas scheme.
Penry Introduced evidence of his mental retardation and 
his inability to read or write. He had never finished the 
first grade. His emotional development was that of a 
child. He had been beaten as a child, locked in his room

9T -d
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without access to a toilet for considerable lengths of 
time. He had been in and out of a number of state 
schools. One effect of his retardation was hi $ inability 
to learn from his mistakes.

id at A—11 to A-12.

We do not see how the evidence of Penry's arrested 
emotional development and troubled youth could, under the 
instructions and the special issues, be fully acted upon 
by the jury. There is no place for the jury to say "no" 
to the death penalty based on a principal mitigating force 
of those circumstances.

The state argues that Penry's counsel could, and did, 
argue the mitigating circumstances to the jury. The 
defense attorney 1n Hitchcock also argued to the jury to 
"consider the whole picture, the whole ball of wax." 107 
S.Ct. at 1824. The prosecutor in Hitchcock then stood up 
and argued to the jury to consider the mitigating 
circumstances by number. Id. Likewise, here, the 
prosecutor was able to trump the defense counsel's 
argument:

I didn't hear Mr. Newman or Mr. Wright 
[defense attorneys] say anything to you 
about what your responsibilities are. In 
answering these questions based on the evidence 
and following the law, and that's all that I 
asked you to do, 1s go out and look at the evidence.
The burden of proof Is on the State as it has 
been from the beginning, and we accept that 
burden. And I honestly believe that we have 
more than met that burden, and that's the reason 
you didn't hear Mr. Newman argue. He didn't pick 
out these Issues and point out to you where the 
State had failed to meet this burden. He didn't 
point out £he weaknesses in the state's case because, 
ladles and gentlemen, I submit to you we've met 
our burden.

As 1n Hitchcock, the mere fact that defense counsel 
argued mitigating circumstances does not conclude the 
matter. The question 1s whether the jury could act on the 
mitigating circumstances and not impose the death penalty.
The prosecutor's argument would exclude that 
consideration.

* * *

We think that a strong argument can be made that 
developing law, see, e.g., Hitchcock, 1s Inconsistent.
However, even if we were free to decide that Inconsistency 
and reach a different result, see Brock v. McCotter, 781 
F.2d 1152, 1157 n. 5 (5th Cir.), cert, denied. U.S.
____, 106 S.Ct. 2259, 90 L.Ed.2d 704 (1986), we are not
free to do so because prior Fifth Circuit decision have 
rejected claims similar to Penry’s. Riles v. McCotter,
799 F.2d 947, 952 - 53 (5th C1r. 198571 Granviel v.
Estelle. 655 F.2d 673, 675 - 77 (5th Cir. 1981), cert, 
denied, 455 U.S. 1003, 102 S.Ct. 1636, 71 L.Ed.2d 870 
(1982). The prior panel holdings bar a different holding 
by us.

id. at A-13 to A-14.

For the above reasons the Texas Capital punishment statue, as applied to 

Penry should be found to. violate the Eighth Amendment as being cruel and 

unusual punishment.

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Execution of a Mentally Retarded Person 1s Cruel and Unusual Punishment:

The United States Court of Appeals for the Fifth Circuit summarily 

rejected the argument that execution of a mentally retarded person is cruel 

and unusual punishment stating, "An identical claim has recently been 

rejected by this Court. Broqdon v. Butler, 824 F.2d 338 (5th Cir. 1987)." 

1d. at A-3. This Court is presently considering 1f execution of a person that 

was 15 years old at the time of the crime 1s cruel and unusual punishment.

Thompson v. Oklahoma, _____ U.S. ____, 107 S.Ct. 1284 (1987). This is a

parallel issue.

Mental retardation 1s not the same type of mental defect as insanity. 

The two are vastly different mental defects. Mental retardation 1s defined 

as:

significantly subaverage general Intellectual functioning 
existing concurrently with deficits 1n adaptive behavior, 
and manifested during the developmental period.

GENERAL INTELLECTUAL FUNCTIONING 1s defined as the 
results obtained by assessment with one or more of the 
Individually administered general intelligence tests 
developed for that purpose.

SIGNIFICANTLY SUBAVERAGE is defined as IQ more than 
two standard deviations below the mean for the test.

ADAPTIVE BEHAVIOR 1s defined as the effectiveness or 
degree with which an individual meets the standards or 
personal independence and social responsibility expected 
for age and cultural group.

DEVELOPMENTAL PERIOD is defined as the period of time 
between birth and the 18th birthday.

Manual on Terminology and Classification in Mental Retardation, 1977 Revision, 

Herbert J. Grossman, M.D., Editor, American Association on Mental 

Deficiencies, 5101 Wisconsin Ave., N.W., Washington, D.C. 20016, Publisher, p. 

11. See also Standard 7-10.1 ABA Standard for Criminal Justice.

Since insanity and mental retardation are two different phenomena, the 

reasons why execution of an insane person and a mentally retarded person is 

cruel and unusual, are different. An insane person cannot be executed, 

because to execute someone that is so out of touch with reality that he 1s not 

aware of why he 1s being executed is cruel and unusual punishment. Ford v,

WainwHght. _____ U.S. _____, 106 S.Ct. 2595, (1986), The reason for not

executing a mentally retarded person 1s that he has a deficit in adaptive 

behavior and accordingly should not be held fully accountable for his mistake, 

Mental retardation is a factor that mitigates against assessing the maximum 

punishment of death. Standard 7-9.3 ABA Standard for Criminal Justice.

14

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Accordingly the test for determining if a mentally retarded defendant can be 

executed should be whether because of mental retardation the defendant has a 

deficit in adaptive behavior that significantly reduces h1s ability to learn

from mistakes.

In the Brief of Respondent-Appellee filed in the Fifth Circuit on pages 

C-2 to C-5 1s a summary of Penry treatment by the Texas Mental Health/Mental 

Retardation (MHMR) system and penal system. When Penry was 9 years old MHMR 

became aware that Penry was mentally retarded, had been subjected to child 

abuse and had violent and aggressive tendencies. This initial contact was 

followed by five more essential Identical diagnoses and treatment at three 

different MHMR facilities. Penry then spent 2 years Incarcerated in the Texas 

Department of Corrections after which he was once again diagnosed by MHMR 

which recommended treatment at a halfway house. The diagnosis concluded that 

Penry was mentally retarded with antisocial tendencies. Starting when Penry 

was 9 years old and continuing for 12 years MHMR knew they were dealing with a 

mentally retarded child that had been subjected to child abuse and who had 

aggressive tendencies. In his early twenties this short, thin, (V.13 R. 1525 

1. 20-22) person with the mental ability of a 6 or 7 year old spent two years 

in a prison system where, " ... inmates'are routinely subjected to brutality, 

extortion, and rape by their cellmates." Ruiz v. Estelle, 679 F.2d 1115, 1141 

(5th Cir. 1982). Penry is now on death row convicted of raping and murdering 

a woman. There can hardly be a more classic example of the failure of the 

Texas MHMR and prison system.

The Eighth Amendment to the II.S. Constitution assures that the State's 

power to punish is exercised within the limits of civilized society' and 

central to any determination of whether punishment is cruel and unusual 1s the

use of contemporary standards. Ford v. Wainwright, ____ U.S. _106 S.Ct.

2595, 2600 (1986), Woodson v. North Carolina, 428 U.S. 280, 288 (1976), The 

U.S. District Court found that Penry1s I.Q. was between 50 and 63, meaning he 

has the mind of a six or seven year old child and the social maturity of an 

eight and tan year old child. Memorandum opinion, Appendix B p. B-3 to B-4. 

This finding 1s adequately supported by the trial court record.

Contemporary standards can be determined by legislative enactments, court 

opinions, public opinion surveys and the position taken by recognized 

professional organizations. For at least the last 100 years Texas by statute

15
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has prohibited the execution of a person that was under 17 years of age at the 

time of the offense. Tex. Penal Code Ann. § 8.07(d), Ex parte Walker, 13 S.W.

861 (1890). This Court in Ford v. Wainwriaht, ______ U.S. ________, 106 S.Ct.

2595 (1986) held the Eighth Amendment prohibits the execution of the Insane. 

In so doing this Court used as Its starting point the common law principal 

that, "[Ijdlots and lunatics are not chargeable for their own acts, ..." j_d at 

2600. Under the common law,

[An idiot isj a person who cannot account or number twenty 
pence, nor can tell who is h1s father or mother, nor how 
old he 1s, etc., so as it may appear he hath no 
understanding of reason what shall be for h1s profit, or 
what for h1s loss. But 1f he have such understanding that 
he know and understand h1s letters, and do read by 
teaching of another man, then it seems he is not a sot or 
natural fool.

Mentally Retarded Criminal Defendants. 53 Geo. Wash. L. Rev. 414,.416 (1985).

A recent survey commissioned by Amnesty International found that in

Florida 71% were against a mental retarded defendant being put to death while

only 12% were 1n favor. ROA between pages 63 and 64.' A study by Center for

Public and Urban Research, Georgia State University obtained similar results.

(See Rule 28 (J) Authority filed in the Fifth Circuit) January 10-12, 1986 at

the Council Meeting of the American Association of Mental Deficiencies (AAMD)

the Council unanimously endorsed the following resolution,

The imposition of capital punishment on Individuals with 
mental retardation raises troubling legal and moral 
Issues. The AAMD supports legal reforms in the States 
that comport with the standard of civilized Common Law 
nations.

Mental Retardation, Vol. 24 No. 1 P.47 (ROA 126.)

Following the execution of Jerome Bowden 1n Georgia on June 24, 1986 the 

AAMD issued a press release condemning the execution. (ROA 128a), It should 

be noted that the AAMD 1s a professional association that has nearly 10,000 

members.

The U.S. District Court, in denying relief on the cruel and unusual 

punishment ground, found that for Penry to be entitled to relief he would have 

to be so retarded that he was not competent to stand trial. Memorandum 

opinion at B-6 to B-7. This finding is not supported by the common law which 

held that the test was whether or not the person could learn by h1s mistakes. 

It is not supported by contemporary standards either. Accordingly to execute 

a person with Penry’s degree of mental retardation would be cruel and unusual 

punishment.

02 ’d
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Given Penry's Degree of Mental Retardation h1s two Confessions Were Not a
Voluntary Relinquishment of M s  Right to Remain Silent.

Penny was the subject of a psychiatric examination performed by Jose G.

Garda, M.D., on February 25, 1380. Among other things Dr. Garda concluded

Petitioner, "... is a person who can be made to say anything that he is asked

under any slight pressure and can be so easily led." TR. 91. At the

competency hearing, evidence of Penry's susceptibility to suggestions was

presented. David Finch, who had known Penry since 1973 (V.fi R. 415 1. 22-23)

testified Penry was very gullible (V.6 R. 421 1. 7-8) and:

“He can be led In anything. Just like signing a confession.
If somebody said, here, sign this or do this, he'd do 1t. If 
he felt you were superior, and had authority over him, he'd do 
it."

(V. 6 R. 435 1. 13-17).

Jerome £. Brown, Ph.D., a clinical psychologist testified that in 1973 Penry 

had been diagnosed as , "... subject to influence and manipulation by people 

more intelligent and sophisticated than he was.” (V.5 R. 553 1. 1-3). There 

was documentation of a history of "... abuse and history of being taken

advantage of, ..." (V.5 R. 554 1. 8- 9), and "They could coerce him Into 

saying that he did things when he didn't do them." (V.5 R. 566 1. 9-10).

"Ideas can be put Into h1s head. Ideas can be taken away." (V6. R. 5BD 1.

6-7). "He'll tell you whatever story that he thinks is the right thing to say

at that moment." (V.6 R. 620 1. 19-21).

Penry's confession taken by Ranger Cook (ROA 181 - 183) was the product 

of a mentally retarded person's desire to tell Ranger Cook, a person in 

authority, what Ranger Cook wanted to hear rather than an accurate confession.

The accuracy of the confession taken; by Ranger Cook on 10-26-79 is

questionable for the following reasons: (1) The victim of the attempted rape

discussed in the last paragraph on ROA 181 did not identify Penry as the one 

that attempted to rape her. V. 17 R. 2617 1. 9-23; (2) In the first full 

paragraph on ROA 182 Penry confessed to raping another woman, threatened to 

kill her 1f she told the police and then a few weeks later he returned, beat 

her up and tried to kill her because she told the police, yet the rape was not 

reported to any of the law enforcement officials of Polk County. Respondent's 

Answers to Interrogatories No. 1(A) ROA 85-6. This portion of the confession 

reads like a six year old telling a “whopper." (3) The rape described in the 

second full paragraph of page 2 1s Inaccurate in that rather than turning

17

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himself over to "2 guys who came by" the victim told two men who gave them a 

ride that she had been raped and the two men held Penry at gun point until two 

officers arrived. State's Answers to Interrogatories No. 2 ROA 86-7. In 

describing how he raped and killed the victim 1n the present offense Penry 

stated that the victim knocked a still open knife out of h1s hand. (Middle of 

ROA 183) The officer investigating the crime scene stated the knife on the 

floor at the scene was closed when found. V.4 R. 255 1. 15-20. If the rest 

of the rape and murder happened as described in the confession 1t 1s clear 

that Petitioner could not have picked up the knife, closed 1t and dropped 1t 

again.

Prior to Chief of Police William Smith taking Penry's statement, 

Petitioner had been read a "Miranda Warning" several times and had been taken 

before a magistrate where he was told he was charged with capital murder and 

given a standard "Magistrate's warning." V. 4 R. 204 1. 1-22. After which 

the magistrate asked Penry if he understood, Penry said he did, and the 

warning form was then handed to Penry to sign. V. 4 R. 205 1. 2-6, Penry's 

father spoke up to stop the signing, stating Penry could not read, h1s father 

then read the rights to Penry, asked him if he did it and after receiving an 

affirmative answer, told Penry "well you belong in jail, I'm gone." and 

Penry's father left. V. 4 R. 205 1. 3-207 1.5. No detailed explanation of 

the warning was given Penry by the magistrate. V. 4 R. 212 1. 14-20.

After Penry was given the magistrate's warning Chief Smith and District 

Attorney Price read another warning to Penry from a form used to take 

statements. V. 4 R. 186 1. 4 - R. 188 1. 19i Penry stated he understood the 

warning. V. 4 R. 189 1. 2-12. The taking; of Penry's statement started at 

3:25 p.m. and ended at 6:05 p.m. V. 4 R. 193 1. 2-9. Neither the magistrate 

nor Chief Smith explained to Penry the seriousness of the charge "capital 

murder" or make any detail inquiry as to the extent Penry understood h1$ 

constitutional rights. Chief Smith did testify at the trial on the merits 

that there was some explanation of Penry's rights. V. 14 R. 1831 1. 2 - R. 

1833 1.3,

The statement taken by Chief Smith was first taken in handwritten version 

which was then given to his secretary Alice Tleman to type. V. 14 R. 1836 1. 

15 - R. 1837 1. 8. Alice Tleman was not present during the taking of the 

statement. V. 14 R. 1836 1. 19-21.

In Ourek v. Estelle, the Fifth Circuit stated',

18
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0  • 3 9 « d f  t : S I 8 8  . 0 8  N f l f

\

In considering the voluntariness of a confession, this 
court must take Into account a defendant's mental limitations, 
to determine whether through susceptibility to surrounding 
pressures or inability to comprehend the circumstances, the 
confession was not a product of his own free will.

623 F.2d 929, 937 (5th Cir. 1980).

* * *

The concern 1n a case involving a defendant of subnormal 
intelligence is one of suggestibility. [Citations omitted] 
Doubtless, 1f the prosecutors pursue a specific object in the 
interrogation of such an accused, and the resulting confession 
bears the precise fruit of their aims, it will be doubly 
suspect.

•k * *

We must view Incredulously, however, any suggestion that 
the second confession came directly from the accused. It 1s 
noteworthy that the second was taken 1n longhand by a 
prosecutor and then typed.

The panel majority was doubtless correct 1n Its statement 
that prosecution-composed confessions are highly suspect, 
particularly where the accused 1s of below normal intelligence, 
[Citations omitted]

id. at 938.

We must be alert, as the panel majority stated, to the 
"manifest attitude" of the police toward the defendant. 
[Citations omitted] The Supreme Court has mandated "the most 
careful scrutiny" where the primary aim of prosecutors was 
"securing a statement from defendant on which they could 
convict [the defendant]" as opposed to solving the crime.

id. at 939.

In Cooper v. Griffin, the Fifth Circuit stated,

The requirement of "knowing and intelligent" waiver 
implies a rational choice based upon some appreciation of the 
consequences of the decision. See: Molignaro v. Smith, 5 Cir.,
1969, 408 F.2d 795. Here the boys surely had no appreciation 
of the options before them or of the consequences of their 
choice. Indeed 1t is doubtful that they even comprehended all 
of the words that were read to them. Thus, they could not have 
made a "knowing and intelligent" waiver of their rights.

455 F.2d 1142, 1146 (5th Cir. 1972).

In Jurek the defendant was mildly retarded with possible organic brain 

damage, supra at 936. In Cooper the defendant had I.Q, in the 60 to 68 

range. Mr. Penry 1s moderately to mildly retarded with possible organic brain 

damage with I.Q. of 50 to 60. Accordingly Penry is more severely retarded 

than the defendants 1n either Jurek or Cooper.

District Attorney Price stated that the reason Penry was given so many 

Miranda warning was that they wanted to be sure they got a statement that 

would hold up in court* V. 7 R. 830 1. 19 - R. 831 1. 7. Penry's 

susceptibility to pressure was discussed in the previous section. Nothing in

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the record Indicates that capital murder was ever explained to him in terms he 

could understand or that he was cautioned that signing the statement prepared 

by Chief Smltn could be used to give him the death penalty. Chief Smith 

prepared Penry's statement in long hand and then had his secretary type 1t. 

This statement, accordingly, is highly suspect and was not the product of 

Penry's own free will, following a knowing and intelligent waiver based on a 

rational choice by Penry who at the time had little awareness of the 

consequences of signing the statement. The statement taken by Chief Smith

should have been suppressed.

The argument and authority as to why the statement taken by Chief Smith 

should have been suppressed also applies to the statement taken by Ranger Cook 

with the exception that Ranger Cook typed the statement himself. However, 

Ranger Cook admitted he did not use Penry's exact words 1n the statement. V. 

4 R. 227 1. 17-21. District Attorney Price was also present when Ranger Cook 

took the second statement. This statement was taken at District Attorney

Price's suggestion because there was some additional information that was 

available then that was not available when Chief Smith took the first

statement. V. 4 R. 234 1. 13-20. Ranger Cook spent 6 or 7 hours with Penry

on the day he took the statement. V 15 R. 2014 1, 17-20. The additional

information added at District Attorney Price's suggestion increased the 

probability that Penry would receive the death penalty rather than life in 

prison in that this additional Information made Penry's actions appear more 

deliberate and he would appear more likely to continue committing acts of 

violence. In Jurek, the second statement was obtained for prosecutorial

purposes in their drive for the death penalty, supra at 940, So too in 

Penry’s case the second statement was taken for the purpose of obtaining the 

death penalty. This second statement should have been suppressed.

SUMMARY

For the above reasons this Petition for Writ of Certiorari should be 

granted and the Texas capital punishment statute as applied to Penry should be 

declared unconstitutional.

In the alternative the execution of a person with Penry's degree of 

mental retardation should be declared cruel and unusual punishment. -

PZ'd
20

ID dCIS Sn 2T :90 88, 08 Nflf



0 • 3 9 h d s i = a i e e , 0S Nnr

Penny's two confessions should have been suppressed.

Respectfully submitted,

BY; P.
Curtis C. Mason 
Attorney for 
Petitioner-Appel lant 
Staff Counsel for Inmates 
P.0. Box 99
Huntsville, TX 77342-0099
409-294-2370
Bar No. 13150700

CERTIFICATE OF SERVICE

I, Curtis C. Mason, Attorney for Petitioner-Appellant, do hereby certify 

that a true and correct copy of the above and foregoing Petition for Writ of 

Certiorari, has been forwarded by United States Mall, postage prepaid, first 

class, to the Attorney General of Texas, P. 0, Box 12548, Austin, Texas 78711, 

on this the 30th day of December, 1987.

<3>-
Curtis C. Mason 
Attorney for 
Petitioner-Appellant

S 2 ‘d
21 ID dns sn 21:90 88. 08 NOT