            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                      NO. AP–75, 406


                             RONNIE JOE NEAL, Appellant

                                               v.

                                 THE STATE OF TEXAS

                                 ON DIRECT APPEAL
                                FROM BEXAR COUNTY


              MEYERS, J., filed a concurring opinion.

                                 CONCURRING OPINION

       In Appellant’s sixth point of error, he argues that the trial court erred in failing to

empanel a separate jury to determine whether he is mentally retarded. I agree that when

the issue of mental retardation is raised, a separate jury should consider whether the

defendant is mentally retarded prior to the beginning of a capital murder trial.1 A jury



       1
        This should only be done when the defendant has made a prima facie showing that he is
mentally retarded.
                                                                       Neal concurrence–Page 2

who has already decided that a defendant is guilty of capital murder, and that he is a

future danger and has no mitigating factors in his favor may not be in the best position to

make the determination of whether the defendant is mentally retarded. Because the

special issues in a capital murder trial are so intertwined, hearing the evidence related to

the special issues may result in undue influence on the jury when considering the

defendant’s claim of mental retardation. Thus, the jury’s answers to the special issues

may prejudice them against the defendant for the purpose of a mental retardation

determination. Alternatively, it is also possible that the defendant’s presentation of

evidence related to a mental retardation claim could adversely affect the jury’s decision

on the mitigation issue. I feel that the determination of whether a defendant is mentally

retarded should be conducted in a manner similar to a hearing regarding competency to

stand trial.

       However, in the case before us, I do not disagree with the conclusion that the

defendant is not mentally retarded and I do not dispute the jury findings on the special

issues. Due to the facts of this specific case, I agree that there was no need for a separate

jury to consider the mental retardation issue. Therefore, I concur in point of error six and

otherwise join the opinion of the majority.

                                                          Meyers, J.




Filed: June 18, 2008
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