









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. WR-41,121-02


EX PARTE STEVEN ANTHONY BUTLER, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS IN CAUSE
NO. 511112 IN THE 185TH JUDICIAL DISTRICT COURT

HARRIS COUNTY



 Cochran, J., filed a concurring statement in which Hervey and Alcala, JJ.,
joined.

	I agree that applicant has not established, by a preponderance of the evidence, that he
has that level and degree of intellectual disability "at which a consensus of Texas citizens
would agree that a person should be exempted from the death penalty." (1)  He has not  proven
that he is mentally retarded for purposes of the Eighth Amendment bar upon execution. (2)  I
write separately to provide some factual context for that conclusion.

I.

	The evidence at applicant's 1988 capital murder trial showed that he was a successful,
independent, "Stop-N-Rob" stick-up artist.  The State presented evidence of a string of ten
different robberies that applicant committed between May 2, 1986, and September 23, 1986. 
In this five-month period, applicant killed two clerks in separate robberies, shot a third clerk
in another robbery, and sexually assaulted clerks in two other robberies.  He had a simple,
but effective, modus operandi that showed careful planning and thoughtful execution.  Here
are those robberies and the circumstances surrounding them:
May 2		Robbery at the Stop-N-Go in Channelview (Shelton Road).

			Applicant killed the clerk, Jeff Johnson, by shooting him in the stomach
with a .38 revolver. Applicant confessed to the murder. (3)

			Applicant hid his car behind the store and pulled out his gun only  
when he saw that the clerk was alone in the store.

July 3		Robbery at the Stop-N-Go in Channelview (River Road). (4)

			Applicant robbed the clerk, 20-year-old Renee Wallace.  When she was
alone in the store, he pointed a short, dark gun at her; she opened the
cash register and applicant took out all the bills.

July 28		Robbery at the Stop-N-Go in Channelview (River Road).

			Applicant returned to the same store and, once again, robbed the clerk,
Renee Wallace, asking her if she remembered him.  She did.  Once
again, she was alone in the store.

			Applicant said, "You know what I'm here for." She did.  She once
again opened the register, and he once again took all the bills.

			Applicant told Ms. Wallace that the store "needed a better security
system."

Aug. 17		Robbery at the Maxi-Stop 2 in Mont Belvieu off of I-10.

			Applicant came into the store from across the road, and asked the clerk, 
Charlotte Jean Holloway, if she sold Slurpees. When she said, "No," he 
bought a fountain drink and walked outside.

			Applicant came back ten minutes later and asked if she would sell him
a beer.  Ms. Holloway said "No," because it was a Sunday and not yet
noon.  He waited in the store until it was noon, then bought a bottle of
beer and walked outside again.

			Applicant came back a third time, when there were no customers in the
store or the parking lot.  He  walked in very quickly and grabbed Ms.
Holloway, pulling a gun out and sticking it in her ribs.

			Applicant said, "Give me everything you've got.  I want all the
money." (5)  Ms. Holloway opened the register and applicant pulled out
all the bills.  As applicant left, he told Ms. Holloway, "If you touch that
phone, I will kill you."  Then he walked out the door.

Aug. 27		Capital murder (charged offense) at Fashion Cleaners on Woodforest
Boulevard. 

			Applicant shot the clerk, Velma Clemons, in the stomach with his .38
Special when she refused to give him money. (6)  She was alone in the
store when applicant came into the cleaners.

Aug. 28		Robbery at C.W.'s Exxon Quick Stop in Winnie off of I-10.

			Applicant parked his car on the north side of I-10 and crossed to the
Exxon  on the south side of I-10.  Applicant walked in, saw that there
were no other customers, went to the back of the store, picked up a
Coke, and brought it to the clerk, Gwen Blackwell, at the register. 

			According to his confession, applicant "pulled out [his] pistol, a blue
steel 38 caliber revolver, snub nosed, and pointed it at the lady clerk."
He said, "Give me your money," so she did.  Applicant said that she
gave him  approximately $350. (7)

Sept. 8	Robbery at the Phillips "Freeway 66" gas station on I-10 in Orange. (8)

		Applicant parked east of the gas station, pulled up the hood of his car, and put
on the emergency flashers to make it look like he had had car trouble. (9)

		Applicant came in and asked the clerk, 73-year-old Boyd Ford, if there was a 
telephone.  Mr. Ford said there was one outside, and applicant left when he 
saw there was a customer in the store.  He came back inside after the customer
		and his small child left.  

		Applicant said, "Old man, this is it."  Mr. Ford looked down and saw the gun
applicant was holding.  Mr. Ford said, "It's not much here, but you sure in the
hell can have it."  Applicant took $120 and walked out.  Then he ran down the
service road where his car was parked out of sight.

Sept. 10	Robbery at the Amoco In-and-Out Minimart on I-10 in Jennings, Louisiana.

		Applicant came into the store at about 8:15 p.m. when the 22-year-old clerk,
Madonna Benoit, was alone and talking on the telephone.  He walked around 
the store, then disappeared as Ms. Benoit heard him open and shut the 
storeroom door.  Then applicant came up behind the counter and faced Ms.
Benoit.   He pulled a gun from his pants, pointed it at her stomach, and said,
"Give me your money and you won't be hurt."  She opened the register and
applicant took the money.  

		As applicant was walking out the door, Ms. Benoit picked up the phone and
told her girlfriend that she had just been robbed.  Applicant turned around,
said, "What did you say, white bitch?"  Then he came back in, went around the
counter, shot Ms. Benoit in the left hip, and left.

Sept. 17	Robbery and sexual assault at the Fina Station in Winnie. (10)

		Applicant came into the store after midnight when the clerk, Winnie Silcox, 
was alone.  He walked to the beer cooler to get a Budweiser, but Ms. Silcox 
told him "Sir, I can't sell you no beer" because it was after midnight. Applicant
said, "Oh, come on, mama, nobody will know."  He was dancing and "jiving,"
but then he reached into his pants and pulled out a black gun.  He  put it at Ms.
Silcox's head and said, "Give me all your money."  She opened the register
and gave him the money.  Then he said, "I want to get in your safe" which was
in the storeroom.

		Applicant made Ms. Silcox walk back to the storeroom, then he jerked her 
down by her hair, unzipped his pants, and said, "Come on, bitch, do it like you
do your boyfriends.  You're going to suck my dick."  She did so, as applicant
kept pressing his gun into her head.  She got sick and started throwing up. 
After he was done, applicant left.

Sept. 23 	Robbery and sexual assault at the C.W.'s Exxon Quick Stop (same store as the
Aug. 28th robbery).

		Applicant came "busting" in the door and confronted the clerk, Frances
Hartman, who was alone.  He said, "I told you I was coming back, you
motherf*** bitch."  He was holding a short, dark gun.  Ms. Hartman had never
seen applicant before and had no idea what he was talking about.  Applicant
came up to the register and said, "Open up the register."  She did.  Then
applicant said, "Is this all the money that there is in the till?"  When Ms.
Hartman said that it was, applicant said, "You're lying," but he scooped the
money out.

		Applicant then grabbed Ms. Hartman by the wrist and took her into the utility
room where he told her, "You've got five seconds to get down on your knees." 
When Ms. Hartman cried, "Oh, God, I don't think I can do this," applicant
pointed his gun at her head, and she performed oral sex on him as he held his
gun to her head.  

		After he was done, applicant told Ms. Hartman she had five seconds to take off
her clothes, and he made her turn around and bend over as he sexually
assaulted her.  After that, applicant grabbed Ms. Hartman's hand and took her
across the store to the walk-in cooler where he raped her again.  Applicant then
dragged her to the bathroom where he made her perform oral sex on him for
a second time.  Finally, "he just walked out the door and left." (11)

	During his 1988 trial, not a single defense witness hinted that applicant might be
mentally retarded or intellectually disabled.  His father, the owner of an independent
insurance agency, testified that, during his childhood, applicant was a "very normal, active
young man."  He was trustworthy and the family never had any problems with him. 
Applicant had received an honorable discharge from the Army; he had obtained a G.E.D.;
he had gone to the Job Corps.  Applicant's mother, a nurse, testified that applicant was "a
very attentive boy. . . . He was a good son."  He played football, and ran track in high school. 
"He was an average student.  He wasn't an 'A' student.  He was average."  He quit school
in the twelfth grade and then obtained a G.E.D.  He was a "good" child, "respectful."  He
learned the plumbing trade when he was in the Job Corps in Gulfport, Mississippi, and got
a plumbing job, but then quit and went to Houston.  She could not think of anything in
applicant's life that would have caused him to commit capital murder because "[h]e was
never in even minor trouble, you know, not even juvenile."  Applicant's sister, a college
graduate, also testified to his good qualities.  Applicant's grandfather, a retired school-bus
driver, testified that applicant came from a good family and had never been in trouble.  Other
family members and neighbors uniformly testified that applicant had never been in trouble
before.  They could not understand his sudden change.
	The jury convicted applicant of capital murder and, based upon the answers to the
special issues, the trial judge sentenced him to death.  This Court upheld applicant's
conviction and sentence on direct appeal and denied relief on his first application for a writ
of habeas corpus.   After the Supreme Court delivered its opinion in Atkins, applicant raised
a claim of mental retardation in his federal writ proceeding.  The federal district court 
remanded the case to this Court to review that unexhausted claim, and we sent the case to the
judge of the convicting court for an evidentiary hearing.  
	The trial judge held a seven-day evidentiary hearing in 2006,  and she issued a forty-eight-page set of factual findings, concluding that applicant failed to prove that he was
mentally retarded.  A significant number of those findings relied upon the affidavit of Dr.
George Denkowski, a psychologist and expert for the State.  After reviewing the record, we
denied relief on applicant's mental retardation claim. (12) 
	The federal district court then denied applicant relief on all of his federal claims, but
granted a certificate of appealability on the Atkins claim. (13)  While the appeal was pending in
the Fifth Circuit, applicant obtained a stay in the proceedings to return to this Court to seek
reconsideration of his Atkins claim because, after the 2006 evidentiary hearing, Dr.
Denkowski had reached a Settlement Agreement with the Texas Board of Examiners of
Psychologists concerning his work in several death-penalty cases. (14)  We again remanded the
case to the convicting court "to allow it the opportunity to re-evaluate its initial findings,
conclusions, and recommendation in light of the Denkowski Settlement Agreement." (15)  The
trial judge largely reaffirmed her original factual findings and legal conclusions.   
	Applicant then filed objections to the convicting court's findings of fact and
conclusions of law, arguing that the judge continued to rely upon Dr. Denkowski's
evaluations and opinions.  To cut through any Gordian knot of disagreement concerning the
"battle of the experts," I would simply ignore all of Dr. Denkowski's work in this case
because the rejection of applicant's mental retardation claim does not turn upon those
opinions or analyses.   Like the Court, I do not expressly adopt all of the trial judge's findings
of fact and conclusions of law, but I do accept her ultimate factual conclusion that applicant
is not mentally retarded and her legal conclusion that his execution is not barred by Atkins.
II.

	In Atkins v. Virginia, (16) the United States Supreme Court held that those who are
mentally retarded may be tried and punished when they commit crimes, but, "[b]ecause of
their disabilities in areas of reasoning, judgment, and control of their impulses . . . they do
not act with the level of moral culpability that characterizes the most serious adult criminal
conduct." (17)  Additionally, the impairments that the mentally retarded suffer from may
"jeopardize the reliability and fairness of capital proceedings[.]" (18) Thus, the Court held that
the "cruel and unusual punishments" provision of the Eighth Amendment bars the imposition
of the death penalty on a mentally retarded criminal. (19)
	In reaching this conclusion, the Court canvassed a number of states whose legislatures
had enacted statutes prohibiting the execution of those who are mentally retarded and
concluded that this "consensus unquestionably reflects widespread judgment about the
relative culpability of mentally retarded offenders[.]" (20) The Court noted that mentally
retarded persons "have diminished capacities to understand and process information, to
communicate, to abstract from mistakes and learn from experience, to engage in logical
reasoning, to control impulses, and to understand the reaction of others." (21)  They frequently
act on impulse "rather than pursuant to a premeditated plan, and . . . in group settings, they
are followers rather than leaders." (22)  Therefore, they are less morally culpable for their
crimes. (23)  They are not capable of the "'cold calculus that precedes the decision'" to commit
murder like those who are most deserving of the death penalty. (24)  Thus, they cannot be easily
deterred because of their lessened ability "to understand and process information, to learn
from experience, to engage in logical reasoning, or to control impulses[.]" (25) 
	Not only are they less culpable than those most deserving of execution, they are more
likely to unwittingly confess to crimes that they have not committed and unlikely to give
"meaningful assistance to their counsel." (26)  They are "typically poor witnesses, and their
demeanor may create an unwarranted impression of lack of remorse for their crimes." (27)
	The Supreme Court noted that, while there may be a consensus concerning the
lessened culpability of the mentally retarded, "[t]o the extent there is serious disagreement
about the execution of mentally retarded offenders, it is in determining which offenders are
in fact retarded." (28)
	Because the Texas Legislature had not adopted specific legislation, we established
guidelines in Ex parte Briseno (29) for determining whether a defendant had "that level and
degree of mental retardation at which a consensus of Texas citizens would agree that a
person should be exempted from the death penalty." (30)  In doing so, we posed, but did not 
answer, the question of whether there was "a national or Texas consensus that all of those
persons whom the mental health profession might diagnose as meeting the criteria for mental
retardation are automatically less morally culpable than those who just barely miss meeting
those criteria?" (31) We adopted the criteria for "mental retardation" then in use by the
American Association on Mental Deficiency (AAMR) and the Texas Health & Safety
Code. (32) Those criteria are: (1) significantly subaverage general intellectual functioning,
generally shown by an IQ of 70 or less, (2) accompanied by related limitations in adaptive
functioning, (3) the onset of which occurs prior to the age of 18.  We stated that, while
experts-psychologists and clinicians-and their diagnostic opinions may inform and assist in
that determination, the ultimate decision concerning mental retardation is one for the
factfinder-judge or jury-based upon a totality of the available information. (33)  As with a
finding of insanity, lay-witness testimony may be considered in proving or disproving mental
retardation. (34)  And the Supreme Court has recently reiterated the truism that "expert
testimony does not trigger a conclusive presumption of correctness," thus factfinders may
consider and resolve the tension between expert testimony and their own common-sense
understanding. (35)
	Whether a defendant meets the first criteria is largely determined by IQ scores, which
provide a reasonably objective basis for assessment. (36)  The question of whether a defendant
has limitations in adaptive functioning, however, is "exceedingly subjective," so we listed
seven factors that "factfinders in the criminal trial context might also focus upon in weighing
evidence as indicative of mental retardation or of a personality disorder." (37)  While
consideration of any or all of these factors is not mandatory, they reflect our concern that the
mental-retardation criteria should not be considered in isolation, but rather in the context of
the concerns expressed by the Supreme Court in Atkins. (38)
III.

	Applicant argues that we should reconsider his Atkins claim without reference to Dr.
Denkowski, his testing, his analysis, and his opinions.  I have re-analyzed the totality of the
evidence without consideration of Dr. Denkowsi and concluded that the record supports the
trial judge's factual conclusion that applicant is not mentally retarded for purposes of
Atkins. (39)

Significant Subaverage Intellectual Functioning.

	Applicant argues that he has established that he has significantly subaverage
intellectual functioning based upon his IQ scores.  Applicant scored an IQ of 80 on the
Wechsler Intelligence Scale for Children ("WISC") in 1974 when he was eleven years old. 
This is the only IQ test applicant took before the Atkins decision in 2002.  Applicant and his
expert, Dr. Keyes, argue that this score should be reduced to 72 because of "The Flynn
Effect." (40)  Dr. Keyes administered the WAIS-III to applicant in 2003 and he obtained a
Verbal IQ of 70, a Performance IQ of 79, and a Full-Scale IQ of 72.  Applicant argues that,
considering the five-point standard deviation of error, his true IQ could be as low as 67 (or
as high as 77).  The judge concluded that a 72 IQ was not consistent with applicant's results
on the Woodcock-Johnson Psychoeducational Battery which Dr. Keyes also administered to
applicant.  On that test, which is scored in the same manner as an IQ test, applicant scored
89 in Oral Language, 83 in Broad Reading, 94 in Math Calculation Skills, 84 in Academic
Skills, 79 in Academic Fluency, 80 in Word Letter Identification, 85 in Reading Fluency, 96
in Story Recall, (41) 88 in Understanding Directions, 94 in Calculation, 94 in Math Fluency, 88
in Spelling, 79 in Writing Fluency, and 90 in Passage Comprehension.  These scores are
internally consistent and consistently higher than one who had mental retardation would
likely achieve.  The judge found that "applicant's Woodcock-Johnson scores indicate that the
applicant's general intellectual functioning is not significantly sub-average."  Although the
Woodcock-Johnson test is not a true IQ test and should not be considered in a vacuum, the
judge was not precluded from considering it as having some probative value on the question
of "significant subaverage intellectual functioning."  
	The judge also noted that evidence at the Atkins hearing showed that, at age 11,
applicant was referred for a special-education assessment by Ms. Strozier, one of his
teachers. Although she could not recall the specific reason for the referral, (42) "it would not
have been something she would have gone into lightly because it required a lot of
paperwork."  After Applicant obtained an 80 on the WISC, however, he was not placed in
special education classes.  Applicant's school records showed that he received all B's in the
fourth grade and all C's in the fifth grade.   His elementary teachers gave him high marks for 
"responsibility" and "initiative."   However, by middle and high school, applicant started to 
receive very low marks for "responsibility" and "initiative."  His grades fell, and he received
mainly C's and D's in the seventh through eleventh grades.  It was also during this time that
applicant began drinking and using drugs.  The trial judge found that these habits affected
applicant's academic performance.  
	Several of applicant's former school friends testified at the Atkins hearing that
applicant put forth little effort in class, that he "would not discuss the work or participate in
class," and that he did not do his homework.  There were special education classes in the
school district, but applicant was not in them. (43)
	Based upon this record, the trial judge could have concluded that applicant had
significant subaverage intellectual functioning before the age of eighteen.  She did not. 
Because the trial judge personally saw the witnesses and evaluated their demeanor and
credibility, (44) I accept her ultimate factual finding: Applicant did not have significant
subaverage intellectual functioning before the age of eighteen.  That finding is supported by
the record, and while a different factfinder might have concluded otherwise, such speculation
is just that-speculation. (45)


Adaptive Deficits.

	Assessing adaptive deficits in a retrospective Atkins hearing is an extremely difficult
task.  First, there is a tremendous incentive for those closest to the defendant to remember
him as being deficient.  Because a finding of mental retardation will prevent imposition of
a death sentence, it is understandable that those who wish to spare the defendant's life  recall
and focus on previously unnoted deficits or downplay competencies, consciously or
otherwise.  Second, the guidelines for assessing adaptive deficits are so vague and subjective
that beauty frequently is in the eye of the beholder.  In the context of Atkins hearings, experts
routinely disagree about which behaviors to focus on and what significance different
behaviors have.
	In reference to the first problem, which might be called "secondary gain" or the
unconscious exaggeration of symptoms of mental retardation for the understandable purpose
of derailing a death sentence, the judge discounted the testimony of applicant's friends and
family members at the Atkins hearing and did not give great weight to applicant's experts
concerning adaptive deficits.  For example, Dr. Keyes, one of applicant's experts,
administered the Vineland Adaptive Behavior Scales to two of applicant's closest childhood
friends.  Their 2006 memories of applicant's childhood behavior some twenty-five to thirty
years earlier resulted in a composite test score of 39 when the average would be 100.  Even
Dr. Keyes agreed that these scores were "spuriously low." (46)   Dr. Keyes also dismissed the
1988 trial testimony of applicant's father (and presumably that of his other family and
friends) as looking through "[r]ose-colored glasses" and concluded that applicant's father
"probably didn't know his son very well."  
	As the federal district judge noted in his review of the Atkins hearing, "Although Dr.
Keyes was qualified as an expert by education and experience, the adversarial slant to his
testimony gave the state trial judge ample reasons to reject many of his conclusions." (47)  The
trial judge would have been entirely within her discretion to conclude that this same, perhaps
unconscious, slant affected the 2006 testimony of applicant's friends and family members. 
She stated, "The Court finds unpersuasive, and, at times, contradictory, the 2006 writ hearing
testimony of the applicant's family/friends offered in an attempt to show mental retardation."
She also found that, during his youth, "applicant was neither considered nor treated as
mentally retarded, notwithstanding any academic deficiencies."  We normally do not reweigh
the evidence or second guess the credibility determinations of the trial judge. (48)
	Turning to the second difficulty, that of objectively assessing the defendant's adaptive
behavior and abilities, experts, friends, and family may once again reasonably disagree on
which behaviors matter and what those behaviors demonstrate.  It was partly for this reason
that we adopted the Briseno factors to assist the factfinder-both the trial judge and this Court
in the context of habeas cases (49)-in considering pre-existing objective data that has not been
collected for the sole purposes of deciding the question of mental retardation in the context
of an Atkins hearing.  Those factors focus on the defendant's behavior and competency in
"the real world" before people are seeking specific evidence for (or against) a finding of
mental retardation that would bar the defendant's execution. (50) 
	In this case, the trial judge could rely, in part,  upon applicant's remarkably competent
crime-spree behavior.  This was behavior that was well-documented by both applicant and
the various crime victims. (51)   Did this conduct paint the portrait of a mentally retarded
person?  Applicant was a professional robber.  There were no deficiencies in his ability to
understand or process information during his numerous armed robberies, murders, and rapes. 
He  "cased" his stores before robbing the clerks.  He parked his car out of sight so that his
victims could not identify it.  He never committed a robbery when there were other customers
or clerks in the store.   He killed only clerks who refused to obey him.  He wounded one clerk
who "dissed" him.  He raped two young and attractive female clerks by threatening to kill
them and by pointing his gun at their heads to force them to perform oral sex on him.  He
shot at a deputy sheriff who tried to arrest him.  In his various written confessions, applicant
had perfect recall of even minor details, including the clothes that he was wearing during
each of his many robberies.  Those crimes also show that he was not acting under the
influence of some other, dominant personality.  His was a one-man show, acting alone and
keeping his exploits to himself.  He saved newspaper articles about his robberies.  
	Applicant was able to "abstract from mistakes and learn from experience."  He took
the license plate off his Buick and stole another plate to replace it after he heard on TV that
a witness had obtained his license plate number when applicant escaped from the capital
murder at the cleaners.  Applicant showed no deficit in  logical reasoning when he developed
a remarkably successful scheme to commit a lengthy series of aggravated robberies. 
Applicant was caught only because a deputy sheriff fortuitously stopped to investigate what
he thought was an "abandoned" car and discovered that the license plate was stolen.  Even
then, applicant was quick-witted and managed to stall the deputy while he maneuvered
around the side of his car to use it as a shield before shooting at the deputy, then fled across
the highway to steal a pick-up truck from another convenience-store clerk.  This is a man
with steely presence of mind.  When he realized that the jig was up and he would be caught
by the pursuing patrol cars, he jettisoned  his .38 Special out the passenger window.
	As for applicant's communication skills, the trial judge noted that applicant had
testified coherently, chronologically, and in great detail at his earlier trial for the Chambers
County aggravated sexual assault.  The trial judge found that he "was able to effectively
communicate; that he responded logically and appropriately to questions; that the applicant
understood the questions being asked of him; and, that applicant was able to devise a story
of mistaken identity and police coercion to obviate his guilt."  Applicant's expert, Dr. Keyes,
discounted this ability by suggesting "that he had been very carefully coached on what to
say" or that these events constituted "a particularly dramatic moment in his life" and
therefore his memory, reasoning, and communication skills during that testimony were
enhanced. (52)  Another expert testified that applicant's testimony in that trial was not
grammatically sophisticated and that his vocabulary was comparable to the complexity of a
language-impaired child of eight or ten.  The trial judge could have accepted those
explanations, but she  was not required to do so.  Based on applicant's trial testimony and his
confessions, the trial judge concluded that "applicant demonstrated an  ability to understand
questioning, to respond coherently and rationally, to sequence events, and to communicate."
	Even during the 2006 writ hearing, applicant's father, although admitting that
applicant got bad grades in school, testified to his various social, work, and communication
skills during his formative years.  He stated that applicant was a good driver and had had a
car since he was 16 or 17;  applicant understood and obeyed traffic rules.  He was active in
the community and would run errands for elderly people, such as going to the grocery store,
mowing lawns, and raking leaves.  Applicant was able to remember items he needed to
purchase and could read a grocery list.  Applicant could use a gas lawn mower and was paid
for his work.  Finally, applicant's father had no concerns about his son moving away and
caring for himself.  
	Anthony Minor testified that he met applicant in junior high and that, while he had a
limited vocabulary, he was "an average kid."  At Mr. Minor's suggestion, applicant moved
to Houston and stayed with Mr. Minor for three to four months.  Mr. Minor got tired of
applicant's messy habits, so he helped him find his own apartment, buy his own car, and fill
out a job application with AMF Tubascope doing physical labor.  Applicant saved his own
money to buy his car, and he had a driver's license.  Mr. Minor thought applicant could live
on his own without trouble.
	The trial judge also noted that applicant completed basic training in the Army National
Guard in 1982.  He "was trained in the use of an M-16 rifle and hand grenades[.]"  He was
required to listen to instructions and follow them in "learning how to fire, clean, assemble
and dissemble a firearm, keeping one's uniform orderly, and keeping one's bunk area clean
and neat."  Applicant had written a "coherent note" to his commanding officer explaining
why he had missed duty, explaining that he had to baby-sit his nephew, and recognizing that
he was wrong for missing drill.
	The trial judge pointed to objective evidence in applicant's prison cell that would
support a finding that applicant had normal reading and writing skills as well as logical and
rational thinking skills: a newspaper article entitled "Penry Sentencing Trial Focuses on
Mental History, Child Abuse"; ten issues of Slam magazine, three issues of ESPN, one issue
of Men's Journal, and one issue of Sporting News, all of which were specifically addressed
to him.  Applicant also had numerous books, pamphlets, and newsletters, including Biblical
materials, The Echo, The Death Row Journal, and The Texas Coalition to Abolish the Death
Penalty.  He had completed TDCJ-ID commissary order slips,  Inmate Trust Fund Account
information, and numerous photos and correspondence.  He also kept various health and self-care items in his cell, including a toothbrush, toilet tissue, Speed Stick deodorant, a hairbrush,
AmerFresh Balsam & Protein Shampoo, Colgate toothpaste, Blue Duchess hair pomade,
Texas Star Cocoa Butter Lotion, and Dial soap.  The trial judge found that "applicant's
commissary order slips show that applicant ordered numerous items from the prison
commissary; that applicant did not exceed the limit and/or overdraw his trust fund account;
and, that one commissary order slip reflects that applicant ordered, in part, 24 soft
drinks-root beer at 40 cents each for a total of $9.60, 5 1 oz. Bars of soap at 15 cents each
for a total of 75 cents, and two cheese puffs at 95 cents each for a total of $1.90."  This is 
some evidence that applicant can itemize, add, and multiply.
	The trial judge also referred to TDCJ health records, which showed that applicant was
"functioning at an average intellectual level; that applicant was able to explain the meaning
of proverbs, such as '[b]irds of a feather flock together;' and that applicant was administered
the MMPI-2, resulting in an invalid profile suggesting that the applicant was 'overendorsing'
symptoms of mental disorders."  His health records consistently showed that "applicant's
speech and thought processes are normal, and the applicant is of normal intelligence."
	Applicant argues that the trial judge was wrong to rely upon objective examples of
applicant's strengths, competencies, and skills.  Instead, he argues, we should focus on
evidence of limitations and deficiencies. (53)  Were applicant's methodology required, then any
evidence of a purported limitation would prevent the factfinder from balancing that evidence
against evidence of competency in that particular area.  Such is not the law. (54)  Instead, in
making her determination, the trial judge used "the proper methodology of examining all
evidence pertaining to a possible deficit in adaptive behavior," including evidence of
applicant's "strengths that clearly rebutted allegations of his limitations." (55)
IV.

	The trial judge was entitled to, and did, consider objective data and information that
was not filtered through, as Dr. Keyes put it, the "rose-colored glasses" of family, friends,
or experts who might have consciously or unconsciously slanted their testimony and opinions
in an understandable effort to protect applicant from a death sentence.  Although there is
evidence from which one could infer applicant did have intellectual and adaptive deficits,
there is also ample evidence in the record-excluding any reference to Dr. Denkowski and his
analyses or opinions-to support the trial judge's ultimate factual conclusion that applicant
did not prove that he was mentally retarded. (56)  Because the record supports the trial judge's
determination, I agree that we must deny relief on applicant's claim.
Filed: June 27, 2012
Publish	
1.  Ex parte Briseno, 135 S.W.3d 1, 6 (Tex. Crim. App. 2004); see also Ex parte Sosa, ___
S.W.3d ___, No. AP-76674, 2012 WL 1414121, at * 1 (Tex. Crim. App. April 25, 2012).
2.  Atkins v. Virginia, 536 U.S. 304, 321 (2002).
3.  Applicant's written confession to this extraneous capital murder stated, in part, that he
parked his 1974 light blue Buick behind the Stop-N-Go and then walked around to the front and
looked inside to see that the "kinda fat" clerk was the only person in the store.

	I walked up to the counter with the gun (a .38 Special blue steel with a snub nose
barrel) out in my right hand and asked for the money.  The clerk then put both
hands on the counter and just looked at me.  I again asked him for the money and I
cocked the gun and I told him "now."  The clerk did not say anything and just
stood there with his hands on the counter.  I then pulled the trigger on the gun and
walked out of the store and then ran to my car that I had parked in back.
4.  This Stop-N-Go was two blocks from the Stop-N-Go where applicant had killed Jeff
Johnson two months earlier. 
5.  Ms. Holloway said that applicant had "cold" eyes.  "He looked as though he had no
feeling whatsoever."
6.  Applicant's written confession set out the chronology of the incident:

	On August 27, 1986 about 4:00 p.m. I parked my car, which is a 1974 Buick light
blue in color with license plates LBQ-612, on the bank parking lot on Sheldon
Road.  The bank is located directly across from the cleaners.  I walked from the
bank parking lot and went to the cleaners. I walked inside and saw the clerk who
was a white lady about 50 years old who was wearing glasses and she may have
had black hair.  I told her that I was there to pick up the cleaning for George
Holmes and she went to look for the clothes.  She then told me that she could not
find the clothes.  She came back to the counter and I then pulled out my gun,
which was a .38 Special that is blue steel and with a snub nose barrel.  I pointed
the gun at her and told her to "give me everything."  The lady told me "no" and
for me to get out of there.  I then walked around behind the counter where the lady
was at and asked her again to give me everything and she slapped at me and hit
me on the right shoulder.  I grabbed her around the neck with my left hand as I
had the gun in my right hand, I threw her to the ground and then shot her one time.
After I shot her I ran out the door and went to my car on the bank parking lot.

Applicant then drove home and watched the television reports of the murder.  

	[I] learned that I had been followed and that some one had gotten my license plate
number.  I then parked my car in the apartment parking lot next to my apartments
and took off the license plates and put them in the trunk.  I then stole another set
of plates off an old model Pontiac from the Woodhollow apartments in Baytown
and put them on my car.
7.  In his confession, applicant stated,

	I put the money in my left rear pocket of my blue jeans.  I left the Exxon Station,
taking my coca-cola and walked back across IH-10.  I drank my coca-cola
throwing the bottle on the side of the road.  I saw some little kids on the side of
the road, playing in the mud, as I was walking back to my blue Buick.  I got back
to the blue Buick and went south, crossed IH-10 and went through Winnie, by the
Police Station.
8.  What appears to be applicant's handwritten confession to this robbery is replete with
specific details.  
9.  In his confession, applicant stated that he had stopped his car east of the service station
and "raised the hood so that it would look like I had car trouble.  I turned the flashers on."  After
the robbery, applicant explained that "I got to my car, put the hood down.  I went west down the
service road and got on I-10 toward Louisiana.  I went into Louisiana.  Later I checked the
money, and it was a little bit over $100."
10.  The Fina Station is located one mile from the C.W. Quick Stop where applicant had
robbed Gwen Blackwell some three weeks earlier and where he committed his final robbery on
September 23rd.
11.  Applicant had left his blue Buick parked down the road from the gas station.  A
Chambers County deputy stopped to check what he thought was an abandoned car and
discovered that the license plates were stolen.  The deputy then saw applicant walking toward
him from the C & W Quick Stop.  Applicant related this incident in his confession:

	I walked back toward my light blue 1974 Buick and saw a police car and pulled
his pistol [sic].  
		The officer told me to put my hands up.  I kept walking around my car,
and I asked him why he had pulled his gun.  I didn't raise my hands like he had
told me to.
		I went around the side of my car, pulled out my 38 caliber revolver and
shot at the officer.  I shot him two (2) or three (3) times.  The officer shot back at
me, I think twice.  I heard some glass shatter.  I then ran north toward the Gulf
Station across IH-10.  I saw a Firebird and a pick up truck parked on the parking
lot.  I asked the lady clerk whose Firebird.  She said that the owner was gone.  I
then pulled out my .38 caliber pistol and made her give me the keys to the pick up
truck, a brown Ford with floor shift standard.
		The police chased me, about 5-6 cars, and I finally realized after a few
miles that I couldn't get away.  I leaned over and rolled down the pass[e]nger
window and threw my 38 caliber blue steel revolver, snub nose, out the passenger
window.
		I stopped the brown Ford pick up and was arrested after being told to get
on the ground.
12.  We did not expressly adopt the trial judge's factual findings or conclusions.
13.  Butler v. Quarterman, 576 F.Supp.2d 805 (S.D. Tex. 2008).
14.  The Settlement Agreement does not specify the basis for the agreement except to say
that Dr. Denkowski had "provided forensic psychological services in capital murder Atkins
proceedings, having been retained to evaluate certain convicted capital murder Defendants for
the existence of mental retardation (intellectual disability)."  The Agreement explicitly states that
it "is not admissible for any purpose in civil or criminal litigation, including but not limited to
any habeas corpus or other proceedings seeking to re-litigate an Order that a convicted capital
murder defendant was or was not mentally retarded."  I will not speculate outside the record on
the basis for this Settlement Agreement, and it expressly stipulates that it is not admissible in any
proceeding.
15.  Ex parte Butler, No. WR-41121-02, 2011 WL 6288411, *1 (Tex. Crim. App. Dec. 14,
2011) (not designated for publication).
16.  536 U.S. 304 (2002).
17.  Id. at 306.
18.  Id. at 306-07.
19.  Id. at 307.
20.  Id. at 317.
21.  Id. at 318.
22.  Id.
23.  Id.
24.  Id. at 319 (quoting Gregg v. Georgia, 428 U.S. 153, 186 (1976)).
25.  Id. at 320.
26.  Id.
27.  Id. at 321.
28.  Id. at 317.
29.  135 S.W.3d 1 (Tex. Crim. App. 2004).
30.  Id. at 6.
31.  Id.
32.  Id. at 8.  See Tex. Health & Safety Code § 591.003(13) (2003) ("'mental
retardation' means significantly subaverage general intellectual functioning that is concurrent
with deficits in adaptive behavior and originates during the developmental period.").
33.  Id. ("Although experts may offer insightful opinions on the question of whether a
particular person meets the psychological diagnostic criteria for mental retardation, the ultimate
issue of whether this person is, in fact, mentally retarded for purposes of the Eighth Amendment
ban on excessive punishment is one for the finder of fact, based upon all of the evidence and
determinations of credibility.").
34.  See Bigby v. State, 892 S.W.2d 864, 878 (Tex. Crim. App. 1994) ("Ultimately the issue
of insanity at the time of the offense excusing criminal responsibility lies in the province of the
jury, not only as to the credibility of the witnesses and the weight of the evidence, but also as to
the limits of the defense itself.") (quotation marks and internal citation omitted); see also Kansas
v. Crane, 534 U.S. 407, 413 (2002) (noting that "the science of psychiatry, which informs but
does not control ultimate legal determinations, is an ever-advancing science, whose distinctions
do not seek precisely to mirror those of the law"); In re Hawthorne, 105 P.3d 552, 558 (Cal.
2005) (mental retardation for purposes of Atkins "is not measured according to a fixed
intelligence test score or a specific adaptive behavior deficiency, but rather constitutes an
assessment of the individual's overall capacity based on a consideration of all the relevant
evidence."); State v. Williams, 831 So.2d 835, 859 (La. 2002), superseded by statute as stated in
State v. Turner, 936 So.2d 89 (La. 2006) (in Atkins mental-retardation hearing, "the trial court
must not rely so extensively upon this expert testimony as to commit the ultimate decision of
mental retardation to the experts.").
35.  Parker v. Matthews, 567 U.S. ___, No. 11-845, 2012 WL 2076341, at *4 (June 11,
2012) (per curiam).
36.  Ex parte Briseno, 135 S.W.3d at 7 n.4.
37.  Id. at 8-9.  Those factors are:

	Did those who knew the person best during the developmental stage--his family,
friends, teachers, employers, authorities--think he was mentally retarded at that
time, and, if so, did they act in accordance with that determination?
	Has the person formulated plans and carried them through or is his conduct
impulsive?
	Does his conduct show leadership or does it show that he is led around by others?
	Is his conduct in response to external stimuli rational and appropriate, regardless
of whether it is socially acceptable?
	Does he respond coherently, rationally, and on point to oral or written questions or
do his responses wander from subject to subject?
	Can the person hide facts or lie effectively in his own or others' interests?
	Putting aside any heinousness or gruesomeness surrounding the capital offense,
did the commission of that offense require forethought, planning, and complex
execution of purpose? 

Id.
38.  See Ex parte Sosa, No. AP-76674, 2012 WL 1414121, at *2 (Tex. Crim. App. April 25,
2012).
39.  Tellingly, the trial judge also explicitly found, in her finding No. 176, that "even absent
the testimony and evidence elicited from Dr. George Denkowski during habeas proceedings, the
applicant fails to show by a preponderance of the evidence that he meets the three-prong
definition of mental retardation and fails by a preponderance of the evidence to prove mental
retardation."
40.  "The Flynn Effect" is the name given to the tendency of IQ test scores to rise over time
in the years after a particular I.Q. test has been devised and normed for one specific cohort.  It is
generally attributed to normal educational advances and increasing sophistication of the test-taking populace over time.  It is not that individual test takers are necessarily smarter than those
who took the test shortly after it was developed, but rather that the questions themselves are less
intellectually demanding to each succeeding cohort of test-takers.  See generally, James R. Flynn,
Tethering the Elephant, Capital Cases, IQ and the Flynn Effect, 12 Psych. Pub. Poly. & L. 170
(2006).  We have not addressed the scientific validity of "The Flynn Effect" and need not do so
in this case.  
41.  This was applicant's highest score and is consistent with his remarkable recall of detail
from the various robberies he had committed in 1986.
42.  There was a notation of "educable mentally retarded" on one school record, but there is
no explanation as to who made that entry or the basis for it.  An IQ score of 80 is well above
what one would classify as "educable mental retarded," which is the former term for "mild
mental retardation" and is characterized by an IQ score between 50 or 55 to 70.  See DSM-IV
Sourcebook 155 (1997); Randolph P. Schiffer et al., Neuropsychiatry 553 ("Mild MR
(coded 317 in DSM-IV) is diagnosed when IQ is in the range from 55 to 69.  These individuals
sometimes have been referred to as the educable mentally retarded.").
43.  One of applicant's former friends, who became an educator, testified at the Atkins
hearing that she would have referred applicant for testing based upon his poor school work.
44.  See Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008); see also Ex parte
Chavez, ___ S.W.3d ___, No. AP-76,665, 2012 WL 1858948, at *6 (Tex. Crim. App. May 23,
2012); Ex parte Miller, 330 S.W.3d 610, 617 (Tex. Crim. App. 2009).
45.  See Ex parte Lewis, 223 S.W.3d 372, 378 (Tex. Crim. App. 2006) (Cochran, J.,
concurring statement) ("[W]hile there is significant expert opinion testimony, documentary
materials, and lay testimony in this record that might support a finding of mental retardation,
there is also sufficient evidence, including expert and lay opinion testimony, as well as written
records, to support the trial court's finding that applicant failed to prove that he is mentally
retarded. In such a situation, I defer to the trial court's credibility determinations and . . . adopt its
ultimate findings of fact. Based on those findings and my independent review, I agree with the
Court's decision to deny relief.").
46.  Applicant argues that, while the Vineland test results may not be reliable, the trial judge
had no basis to reject the information provided by applicant's childhood friends.  But the trial
judge could reject that information for the same reason that a jury may reject the alibi testimony
of the defendant's mother.  She is, after all, the defendant's mother.
47.  Butler, 576 F.Supp.2d at 824.
48.  Ex parte Reed,  271 S.W.3d 698, 727 (Tex. Crim. App. 2008) ("Uniquely situated to
observe the demeanor of witnesses first-hand, the trial judge is in the best position to assess the
credibility of witnesses.  Therefore, in most circumstances, we will defer to and accept a trial
judge's findings of fact and conclusions of law when they are supported by the record.")
(footnote omitted).
49.  Id. ("For over forty years, our writ jurisprudence has consistently recognized that this
Court is the ultimate factfinder in habeas corpus proceedings.  The trial judge on habeas is the
"'original factfinder.'") (footnote omitted).
50.  One of those factors is whether "those who knew the person best during the
developmental stage-his family, friends, teachers, employers, and authorities-think he was
mentally retarded at that time, and, if so, did they act in accordance with that determination?" 
That is, what contemporaneous documentation, from the person's childhood and youth, is there
to support a finding that, long before any death penalty issue arose, those who knew the person
thought and acted as if the person was mentally "slow."  The issue is not whether the defendant's
family now, at an Atkins hearing, can recall examples of past deficiencies.
51.  Applicant refers to a paragraph from the AAMR/AAID User's Guide that states

	Do not use past criminal behavior or verbal behavior to infer level of adaptive
behavior or about having MR/ID.  Greenspan and Switzky (in press) discuss two
reasons for this guideline.  First, there is not enough available information;
second, there is a lack of normative information.

Greenspan and Switzky have elaborated on this concern in their chapter on Lessons From the
Atkins Decision:

	There are two reasons why one should avoid basing diagnostic inferences about a
defendant's level of adaptive functioning, and about having MR, on information
about his or her past criminal acts. The first reason has to do with the fact that not
enough information is typically available (on a precise microlevel) regarding the
exact situational demands and the level of cognitive skills required to navigate
those demands. Among the situational factors we do not typically know about is
the extent to which the defendant may have been coached and trained by a less
impaired "robbery coach," as opposed to figuring out these things for himself. The
second reason is that we simply do not possess normative information, adaptive
behavior scales notwithstanding, about whether someone with MR can fire a gun,
drive a car, case out a crime scene, or assert his will on victims.  One of the
lessons of the "support revolution" is that people with MR can do many things,
including aspects of work and independent living, that previously one would not
have thought they could do. Without meaning to be flip, one can think of a crime
as a form of work. Just as people with mild MR have been found able to do jobs
that previously might have been viewed as beyond their capabilities, it is possible
that people with mild MR have a greater potential for a successful criminal career
than might previously have been believed possible.

H.N. Switzky & S. Greenspan, What Is Mental Retardation? Ideas For an Evolving
Disability in the 21st Century 288 (2006).
	In this case, the necessary "microlevel" information is available, and the situational
factors are well-known.  As for the second, "normative" concern, applicant's criminal career can
fairly be characterized as not just competent but remarkably astute.   At any rate, while clinicians
might not use such behaviors in their diagnostic analysis, factfinders in the judicial system are
not precluded from doing so.
52.  The trial judge explicitly found "unpersuasive Dr. Keyes' assertion that the applicant
possesses deficits in adaptive behavior."
53.  Applicant argues that the trial judge's methodology, "finding some islands of skill in
the relative sea of Mr. Butler's limitations in a domain of adaptive behavior and ignoring the
sea-reflects the court's invalid and inaccurate frame of reference."  Applicant's Objections to the
District Court's Proposed Findings, at 30.
54.  See Dufour v. State, 69 So.3d 235, 249-50 (Fla. 2011) (rejecting view that courts, in
Atkins hearing, must focus only on limitations in evaluating adaptive behavior).
55.  Id.
56.  See Ex parte Lewis, 223 S.W.3d 372, 378 (Tex. Crim. App. 2006) (Cochran, J.,
concurring statement).
