                                                                                      AP-77,038
                                                                  COURT OF CRIMINAL APPEALS
                                                                                   AUSTIN, TEXAS
                                                                  Transmitted 8/27/2015 9:30:07 AM
August 27, 2015                                                    Accepted 8/27/2015 11:10:26 AM
                                                                                    ABEL ACOSTA
                                   No. AP-77,038                                            CLERK

          IN THE TEXAS COURT OF CRIMINAL APPEALS
                       AT AUSTIN, TEXAS
    _________________________________________________________

                             US CARNELL PETETAN, JR.,
                       a/k/a CARNELL PETETAN, JR., Appellant

                                        v.

                      THE STATE OF TEXAS
    _________________________________________________________

                   DIRECT APPEAL FROM THE
                  TH
          19 DISTRICT COURT OF McLENNAN COUNTY
           TRIAL COURT CAUSE NUMBER 2012-2331-C1
    _________________________________________________________

                     BRIEF FOR APPELLANT
    _________________________________________________________




                                             Richard E. Wetzel
                                             State Bar No. 21236300

                                             1411 West Avenue, Suite 100
                                             Austin, Texas 78701

                                             (512) 469-7943
                                             (512) 474-5594 – facsimile
                                             wetzel_law@1411west.com

                                             Attorney for Appellant
                                             US Carnell Petetan, Jr.

                          ORAL ARGUMENT REQUESTED
                     Identity of Parties and Counsel

Appellant:                              US Carnell Petetan, Jr.

Appellate Counsel:                      Richard E. Wetzel
                                        Attorney at Law
                                        1411 West Ave., Ste. 100
                                        Austin, TX 78701

Trial Counsel:                          Russ Hunt, Sr.
                                        Attorney at Law
                                        P.O. Box 726
                                        Waco, TX 76703-0726

                                        Michelle Tuegel
                                        Attorney at Law
                                        P.O. Box 726
                                        Waco, TX 76703-0726

                                        Walter Reaves, Jr. .
                                        Attorney at Law
                                        100 N. Sixth St., Ste. 802
                                        Waco, TX 76701

Appellee:                               The State of Texas

Trial Counsel:                          Abelino Reyna
                                        Criminal District Attorney
                                        219 North Sixth St., Ste. 200
                                        Waco, TX 76701

                                        Gregory Davis
                                        Assistant Criminal District Attorney
                                        219 North Sixth St., Ste. 200
                                        Waco, TX 76701

                                        Michael Jarrett
                                        Assistant Criminal District Attorney
                                        219 North Sixth St., Ste. 200
                                        Waco, TX 76701
                                   ii
Appellate Counsel:         Sterling Harmon
                           Assistant Criminal District Attorney
                           219 North Sixth St., Ste. 200
                           Waco, TX 76701

Trial Judge:               Hon. Ralph Strother
                           19th District Court
                           McLennan County, Texas




                     iii
                                  Table of Contents
                                                                                                Page

Identity of Parties and Counsel                       . . . . . . . . . . . . . . . . . . . . . . . . ii

Table of Contents                                      . . . . . . . . . . . . . . . . . . . . . . . iv

Index of Authorities                                  . . . . . . . . . . . . . . . . . . . . . . . . ix

Statement Regarding Oral Argument                     ........................ 1

Statement of the Case                                 ........................ 1

Issues Presented on Appeal                            ........................ 2

Statement of Facts                                    ........................ 9

Summary of the Argument                               . . . . . . . . . . . . . . . . . . . . . . . 54

Point of Error One                                    . . . . . . . . . . . . . . . . . . . . . . . 57

The trial court abused its discretion by allowing the State to invoke Petetan’s
attorney-client privilege as to testimony he sought to offer from his former attorney
on the issue of competency to stand trial (13 RR 57).

Point of Error Two                                    . . . . . . . . . . . . . . . . . . . . . . . 63

The trial court abused its discretion by excluding evidence Petetan sought to offer
concerning the legal fate of those who obtain an incompetency determination
through malingering (13 RR 60).

Point of Error Three                                  . . . . . . . . . . . . . . . . . . . . . . . 66

The trial court abused its discretion by denying a defense challenge for cause to
prospective juror Richard Hester who had a bias against a life sentence without
possibility of parole and a bias in favor of a sentence of death (28 RR 89).




                                         iv
Point of Error Four                                 . . . . . . . . . . . . . . . . . . . . . . . 72

The trial court abused its discretion by denying a defense challenge for cause to
prospective juror Richard Hester who believed law enforcement officers to be
more credible than other witnesses (28 RR 89).

Point of Error Five                                 . . . . . . . . . . . . . . . . . . . . . . . 75

The trial court abused its discretion by denying a defense challenge for cause to
prospective juror Luther Fore who had a bias against a life sentence without
possibility of parole and a bias in favor of a sentence of death (30 RR 174).

Point of Error Six                                  . . . . . . . . . . . . . . . . . . . . . . . 79

The evidence is insufficient to prove Petetan murdered the complainant while in
the course of committing or attempting to commit the offenses of burglary,
kidnapping, or retaliation.

Point of Error Seven                                . . . . . . . . . . . . . . . . . . . . . . . 90

The trial court abused its discretion by admitting an extraneous offense showing
that on the day of the murder, Petetan told Miller he was going to Waco to buy
drugs and would give Miller drugs if he would drive Petetan to Waco (53 RR 31).

Point of Error Eight                                . . . . . . . . . . . . . . . . . . . . . . . 90

The trial court abused its discretion by admitting an extraneous offense showing
that on the day of the murder, Petetan told Mouton he was going to Waco to buy
drugs and would give Mouton drugs if he would accompany Petetan to Waco (53
RR 31).

Point of Error Nine                                 . . . . . . . . . . . . . . . . . . . . . . . 98

The trial court abused its discretion by admitting evidence which undermined
defense counsel before the jury and created a conflict of interest which denied
Petetan his right to the effective assistance of counsel (59 RR 198).




                                         v
Point of Error Ten                                    . . . . . . . . . . . . . . . . . . . . . . .103

The jury’s answer to the intellectual disability special issue is against the great
weight and preponderance of the evidence.

Point of Error Eleven                                 . . . . . . . . . . . . . . . . . . . . . . .147

Petetan’s intellectual disability renders him ineligible for the death penalty.

Point of Error Twelve                                 . . . . . . . . . . . . . . . . . . . . . . .148

The trial court erred by failing to define the term “militate” within the punishment
charge as requested by Petetan (4 CR 1318, 4 CR 1330, and 59 RR 212).

Point of Error Thirteen                               . . . . . . . . . . . . . . . . . . . . . . .148

The trial court erred by overruling Petetan’s objection to the instruction that 10
votes were required for the jury to return a “no” answer to the first special issue
concerning future dangerousness (4 CR 1318, 4 CR 1330, and 59 RR 212).

Point of Error Fourteen                               . . . . . . . . . . . . . . . . . . . . . . .149

The trial court erred by overruling Petetan’s objection to the “anti-sympathy”
instruction insofar as the instruction would limit the scope of mitigating evidence
and or circumstances that jury may consider in returning a life sentence (4 CR
1320, 4 CR 1330, and 59 RR 212).

Point of Error Fifteen                                . . . . . . . . . . . . . . . . . . . . . . .159

The trial court erred by overruling Petetan’s request that the jury be instructed on
the concept of mercy and the role it can play in deliberations (4 CR 1320, 4 CR
1330, and 59 RR 212).

Point of Error Sixteen                                . . . . . . . . . . . . . . . . . . . . . . .151

The trial court erred by submitting a special issue on future dangerousness which
was not found by the grand jury or alleged in the indictment returned against
Petetan (1 CR 44, 4 CR 1321, 4 CR 1330, and 59 RR 212).


                                           vi
Point of Error Seventeen                            . . . . . . . . . . . . . . . . . . . . . . .151

The trial court erred by failing to define the term “probability” within the
punishment charge as requested by Petetan (4 CR 1321, 4 CR 1330, and 59 RR
212).

Point of Error Eighteen                             . . . . . . . . . . . . . . . . . . . . . . .152

The trial court erred by failing to define the phrase “criminal acts of violence”
within the punishment charge as requested by Petetan (4 CR 1322, 4 CR 1330, and
59 RR 212).

Point of Error Nineteen                             . . . . . . . . . . . . . . . . . . . . . . .153

The trial court erred by failing to define the phrase “continuing threat to society”
within the punishment charge as requested by Petetan (4 CR 1323, 4 CR 1330, and
59 RR 212).

Point of Error Twenty                               . . . . . . . . . . . . . . . . . . . . . . .154

The trial court erred by failing to submit Petetan’s four requested instructions
relative to the jury’s consideration of victim impact evidence (4 CR 1324, 4 CR
1330, and 59 RR 212).

Point of Error Twenty-One                           . . . . . . . . . . . . . . . . . . . . . . .155

The trial court erred by failing to define the phrases “personal moral culpability”
and “moral blameworthiness” within the punishment charge as requested by
Petetan (4 CR 1325, 4 CR 1330, and 59 RR 212).

Point of Error Twenty-Two                           . . . . . . . . . . . . . . . . . . . . . . .156

The trial court erred by overruling Petetan’s objection that the charge unduly
limited what factors the jury could consider as mitigating (4 CR 1325, 4 CR 1330,
and 59 RR 212).




                                         vii
Point of Error Twenty-Three                          . . . . . . . . . . . . . . . . . . . . . . .156

The trial court erred by overruling Petetan’s objection that the mitigation special
issue is unconstitutional for failing to assign a burden of proof and not being
susceptible to a sufficiency of the evidence review on appeal (4 CR 1326, 4 CR
1330, and 59 RR 212).

Point of Error Twenty-Four                           . . . . . . . . . . . . . . . . . . . . . . .157

The trial court erred by overruling Petetan’s objection that the jury should be
instructed there is a presumption in favor of a life sentence rather than a sentence
of death (4 CR 1327, 4 CR 1330, and 59 RR 212).

Point of Error Twenty-Five                           . . . . . . . . . . . . . . . . . . . . . . .158

The trial court erred by overruling Petetan’s objection that the jury should be
instructed that if it was unable to agree on a special issue, a mistrial would be
declared and life sentence imposed (4 CR 1326, 4 CR 1330, and 59 RR 212).

Point of Error Twenty-Six                            . . . . . . . . . . . . . . . . . . . . . . .159

Imposition of the death penalty violates Petetan’s Eighth Amendment and
Fourteenth Amendment rights not to be subjected to cruel and unusual punishment.

Point of Error Twenty-Seven                          . . . . . . . . . . . . . . . . . . . . . . .160

Petetan was denied equal protection of the law and due course of law due to the
absence of a unified statutory procedure for pretrial litigation of an Atkins assertion
of intellectual disability (18 RR 12, 4 CR 1228).

Point of Error Twenty-Eight                          . . . . . . . . . . . . . . . . . . . . . . .162

The judgment should be modified to properly reflect Petetan was convicted of a
capital felony offense rather than a first degree felony offense (4 CR 1343).

Point of Error Twenty-Nine                           . . . . . . . . . . . . . . . . . . . . . . .163

The judgment should be modified to properly reflect punishment was assessed by
the trial court rather than the jury (4 CR 1343).

                                          viii
Prayer                           . . . . . . . . . . . . . . . . . . . . . . .165

Certificate of Compliance        . . . . . . . . . . . . . . . . . . . . . . .166

Certificate of Service           . . . . . . . . . . . . . . . . . . . . . . .166




                            ix
                              Index of Authorities
                                                                                 Page

Constitution
U.S. CONST. amend. VI                                       . . . . . . . . . . . . 103
U.S. CONST. amend. VIII                                     . . . . . . . . . passim
U.S. CONST. amend. XIV                                      . . . . . . . . . passim

Cases
Abdnor v. State, 871 S.W.2d 726 (Tex. Crim. App. 1994)      . . . . . . . . . . . . . 92

Acosta v. State, 233 S.W.3d 349 (Tex. Crim. App. 2007)      . . . . . . . . . . . . 102

Alba v. State, 905 S.W.2d 581 (Tex. Crim. App. 1995)        . . . . . . . . . . . . . 93
Apprendi v. New Jersey, 530 U.S. 466 (2000)                 . . . . . . . . . . . . 151

Arnold v. State, 234 S.W.3d 664
(Tex. App.-Houston [14th Dist.] 2007, no pet.)              . . . . . . . . . . . . . 94
Atkins v. Virginia, 536 U.S. 304 (2002)                     . . . . . . . . . passim

Barber v. State, 737 S.W.2d 824 (Tex. Crim. App. 1987)      . . . . . . . . . . . . . 62
Barefoot v. State, 596 S.W.2d 875 (Tex. Crim. App. 1980)    . . . . . . . . . . . . 152

Bigley v. State, 865 S.W.2d 26 (Tex. Crim. App. 1993)       . . . . . . . . . . . . 164

Bowling v. Commonwealth, 163 S.W.3d 361 (Ky. 2005)          . . . . . . . . . . . . 139
Brown v. State, 554 S.W.2d 677 (Tex. Crim. App. 1977)       . . . . . . . . . . . . 149

Brown v. State, 913 S.W.2d 577 (Tex. Crim. App. 1996)       . . . . . . . . . . . . . 69

Brumfield v. Cain, 135 S. Ct. 2269 (2015)                   . . . . . . . . . . . . 130

Butcher v. State, 454 S.W.3d 13 (Tex. Crim. App. 2015)      . . . . . . . . . . . . 127

Caballero v. State, 587 S.W.2d 741 (Tex. Crim. App. 1979)   . . . . . . . . . . . . . 62
Camacho v. State, 864 S.W.2d 524 (Tex. Crim. App. 1993)     . . . . . . . . . . . . 153
                                      x
Cantu v. State, 939 S.W.2d 627 (Tex. Crim. App. 1997)            . . . . . . . . . . . . 156

Chase v. State, 2015 WL 1848126 (Miss. 2015)                     . . . . . . . . . . . . 139

Chester v. Thaler, 666 F.3d 340 (5th Cir. 2011)                  . . . . . . . . . . . . 129

Clark v. Quarterman, 457 F.3d 441 (5th Cir. 2006)                . . . . . . . . . . . . 130

Coffey v. State, 979 S.W.2d 326 (Tex. Crim. App. 1998)           . . . . . . . . . . . . 164

Coleman v. State, 341 S.W.3d 221 (Tenn. 2011)                    . . . . . . . . . . . . 139

Commonwealth v. Bracey, 2015 WL 3751733 (Pa. 2015)               . . . . . . . . . . . . 139

Commonwealth v. DeJesus, 58 A.3d 62 (Pa. 2012)                   . . . . . . . . . . . . 139

Crane v. State, 786 S.W.2d 338 (Tex. Crim. App. 1990)            . . . . . . . . . . . . . 94
Cuyler v. Sullivan, 446 U.S. 335 (1980)                          . . . . . . . . . . . . 102
Darkins v. State, 430 S.W.3d 559
(Tex. App.—Houston [14th Dist.] 2014, pet. ref'd)                . . . . . . . . . . . . . 94

Demouchette v. State, 731 S.W.2d 75 (Tex.Crim.App.1986)          . . . . . . . . . . . . . 70

Dobbs v. State, 434 S.W.3d 166 (Tex. Crim. App. 2014)            . . . . . . . . . . . . . 81

Eppinger v. State, 800 S.W.2d 652
(Tex. App.—Austin 1990, pet. ref'd)                              . . . . . . . . . . . . . 83

Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004)            . . . . . . . . . passim

Ex parte Butler, 416 S.W.3d 863 (Tex. Crim. App. 2012)           . . . . . . . . . . . . 136

Ex parte Cathey, 451 S.W.3d 1 (Tex. Crim. App. 2014)             . . . . . . . . . passim

Ex parte Chester, 2007 WL 602607 (Tex. Crim. App. 2007)          . . . . . . . . . . . . 135

Ex parte Clark, 2004 WL 885583 (Tex. Crim. App. 2004)            . . . . . . . . . . . . 136

Ex parte Henderson, 2006 WL 167836 (Tex. Crim. App.)             . . . . . . . . . . . . 132

Ex Parte McFarland, 163 S.W.3d 743 (Tex. Crim. App. 2005) . . . . . . . . . . . . 102


                                           xi
Ex parte McKenzie, 582 S.W.2d 153 (Tex. Crim. App. 1979)      . . . . . . . . . . . . . 63

Ex parte Sosa, 364 S.W.3d 889 (Tex. Crim. App. 2012)          . . . . . . . . . . . . 134

Ex parte Taylor, 2006 WL 234854 (Tex. Crim. App. 2006)        . . . . . . . . . . . . 133

Ex parte Tennard, 960 S.W.2d 57 (Tex.Cr.App.1997)             . . . . . . . . . . . . 123
Ex parte Van Alstyne, 239 S.W.3d 815 (Tex. Crim. App. 2007)   . . . . . . . . . . . . 129

Ex parte Weathers, 2014 WL 1758977 (Tex. Crim. App. 2014)     . . . . . . . . . . . . 136

Ex parte Winfrey, 581 S.W.2d 698 (Tex. Crim. App. 1979)       . . . . . . . . . . . . . 63

Ex parte Woods, 296 S.W.3d 587 (Tex. Crim. App. 2009)         . . . . . . . . . . . . 136

Feldman v. State, 71 S.W.3d 728 (Tex. Crim. App. 2002)        . . . . . . . . . . . . . 68
French v. State, 830 S.W.2d 607 (Tex. Crim. App. 1992)        . . . . . . . . . . . . 164

Gallo v. State, 239 S.W.3d 757 (Tex. Crim. App. 2007)         . . . . . . . . . . . . 126
Gardner v. State, 306 S.W.3d 274 (Tex. Crim. App. 2009)       . . . . . . . . . . . . 158

Gaston v. State, 136 S.W.3d 315
(Tex. App.-Houston [1st Dist.] 2004, pet. struck)             . . . . . . . . . . . . 103
Glossip v. Gross, 576 U.S. ___, 2015 WL 2473454. (2015)       . . . . . . . . . . . . 159
Goodwin v. State, 191 S.W.3d 20 (Mo. 2006)                    . . . . . . . . . . . . 143
Green v. State, 934 S.W.2d 92 (Tex. Crim. App. 1996)          . . . . . . . . . . . . . 70

Greene v. State, 264 S.W.3d 271
(Tex. App.—San Antonio 2008, pet. ref'd)                      . . . . . . . . . . . . . 62
Gregg v. Georgia, 428 U.S. 153 (1976)                         . . . . . . . . . . . . 159

Guevera v. Stephens, 577 F. App’x 364 (5th Cir. 2014)         . . . . . . . . . . . . 138

Hall v. Florida, 134 S. Ct. 1986 (2014)                       . . . . . . . . . passim
Henderson v. Stephens, 2015 WL 3965828 (5th Cir. 2015)        . . . . . . . . . . . . 138
Hernandez v. State, 563 S.W.2d 947 (Tex. Crim. App. 1978)     . . . . . . . . . . . . 138
                                          xii
Hernandez v. State, 969 S.W.2d 440
(Tex. App.—San Antonio 1998, pet. ref'd)                   . . . . . . . . . . . . . 82

Hernandez v. Thaler, 2011 WL 4437091 (W.D. Tex. 2011)
aff’d, 537 F. App’x 531 (5th Cir. 2013)                    . . . . . . . . . . . . 136

Hines v. Thaler, 456 F. App’x 357 (5th Cir. 2011)          . . . . . . . . . . . . 133

Holladay v. Allen, 555 F.3d 1346 (11th Cir. 2009)          . . . . . . . . . . . . 140

Howell v. State, 563 S.W.2d 933 (Tex. Crim. App. 1978)     . . . . . . . . . . . . 162

Hunter v. State, 243 S.W.3d 664 (Tex. Crim. App. 2007)     . . . . . . . . . . . . 132

Ibanez v. State, 749 S.W.2d 804 (Tex. Crim. App. 1986)     . . . . . . . . . . . . . 82
In re Allen, 462 S.W.3d 47 (Tex. Crim. App. 2015)          . . . . . . . . . passim

Isassi v. State, 330 S.W.3d 633 (Tex. Crim. App. 2010)     . . . . . . . . . . . . . 81
Jackson v. State, 288 S.W.3d 60
(Tex. App. – Houston [1st Dist.] 2009, pet. ref’d)         . . . . . . . . . . . . 163

Jackson v. Virginia, 443 U.S. 307 (1979)                   . . . . . . . . . . . . . 81

Johnson v. State, 43 S.W.3d 1 (Tex. Crim. App. 2001)       . . . . . . . . . . . . . 96
Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998)    . . . . . . . . . . . . . 95

Johnston v. State, 145 S.W.3d 215 (Tex. Crim. App. 2004)   . . . . . . . . . . . . . 92
Jurek v. Texas, 428 U.S. 262 (1976)                        . . . . . . . . . . . . 159
King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997)       . . . . . . . . . . . . . 61

Kotteakos v. United States, 328 U.S. 750 (1946)            . . . . . . . . . . . . . 96

Ladd v. Thaler, 2013 WL 593927 (E.D. Tex. 2013)
aff’d, 748 F.3d 637 (5th Cir. 2014)                        . . . . . . . . . . . . 134

Lambert v. State, 126 P.3d 646 (Okla. Crim. App. 2005)     . . . . . . . . . . . . 130


                                         xiii
Land v. State, 291 S.W.3d 23
(Tex. App. – Texarkana 2009, pet. ref’d)                           . . . . . . . . . . . . 163

Lizcano v. State, 2010 WL 1817772 (Tex. Crim. App. 2010)           . . . . . . . . . . . . 130

Lockhart v. State, 847 S.W.2d 568 (Tex. Crim. App. 1992)           . . . . . . . . . . . . . 92
Lopez v. State, 200 S.W.3d 246
(Tex.App.-Houston [14th Dist.] 2006, pet. ref'd.)                  . . . . . . . . . . . . . 95

Luna v. State, 268 S.W.3d 594 (Tex. Crim. App. 2008)               . . . . . . . . . . . . 155

Mann v. State, 718 S.W.2d 741 (Tex. Crim. App. 1986)               . . . . . . . . . . . . . 93
Manning v. State, 766 S.W.2d 551
(Tex. App. – Dallas 1989)
aff’d, 773 S.W.2d 568 (Tex. Crim. App. 1989)                       . . . . . . . . . . . . . 60

Martinez v. State, 924 S.W.2d 693 (Tex. Crim. App. 1996)           . . . . . . . . . . . . 148

Matamoros v. Stephens, 783 F.3d 212 (5th Cir. 2015)                . . . . . . . . . . . . 138
Matamoros v. Thaler, 2010 WL 1404368 (S.D. Tex. 2010)
modified, 2012 WL 394597 (S.D. Tex. 2012)
aff’d, 783 F.3d 212 (5th Cir. 2015)                                . . . . . . . . . . . . 136

Matlock v. State, 392 S.W.3d 662 (Tex. Crim. App. 2013)            . . . . . . . . . . . . 127
Mays v. State, 318 S.W.3d 368 (Tex. Crim. App. 2010)               . . . . . . . . . . . . 154

Mays v. Stephens, 757 F.3d 211 (5th Cir. 2014)                     . . . . . . . . . . . . 137

Meyer v. State, 366 S.W.3d 728
(Tex. App.—Texarkana 2012, no pet.)                                . . . . . . . . . . . . . 88
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) . . . . . . . . . . . . . 59

Moore v. State, 999 S.W.2d 385 (Tex. Crim. App.1999)               . . . . . . . . . . . . . 69

Moses v. State, 105 S.W.3d 622 (Tex. Crim. App. 2003)              . . . . . . . . . . . . . 92

Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002)             . . . . . . . . . . . . . 97

Mozon v. State, 991 S.W.2d 841 (Tex. Crim. App. 1999)              . . . . . . . . . . . . . 93
                                          xiv
Neal v. State, 256 S.W.3d 264 (Tex. Crim. App. 2008)        . . . . . . . . . . . . 127

Osbourn v. State, 92 S.W.3d 531 (Tex. Crim. App. 2002)      . . . . . . . . . . . . . 59

Patrick v. State, 906 S.W.2d 481 (Tex. Crim. App. 1995)     . . . . . . . . . . . . . 68

Perillo v. Johnson, 79 F.3d 441 (5th Cir.1996)              . . . . . . . . . . . . 102

Proffitt v. Florida, 428 U.S. 242 (1976)                    . . . . . . . . . . . . 159

Raby v. State, 970 S.W.2d 1 (Tex. Crim. App. 1998)          . . . . . . . . . . . . 158

Rankin v. State, 953 S.W.2d 740 (Tex. Crim. App. 1996)      . . . . . . . . . . . . . 92

Ransom v. State, 920 S.W.2d 288 (Tex. Crim. App. 1994)      . . . . . . . . . . . . . 71

Ray v. State, 178 S.W.3d 833 (Tex. Crim. App. 2005)         . . . . . . . . . . . . . 60
Riles v. State, 595 S.W.2d 858 (Tex. Crim. App. 1980)       . . . . . . . . . . . . . 82

Ring v. Arizona, 536 U.S. 584 (2002)                        . . . . . . . . . . . . 151

Robinson v. State, 236 S.W.3d 260
(Tex. App. -Houston [1st Dist.] 2007, pet. ref’d)           . . . . . . . . . . . . . 60

Rodriguez v. Quarterman, 2006 WL 1900630 (W.D. Tex. 2006)   . . . . . . . . . . . . 136

Russeau v. State, 291 S.W.3d 426 (Tex. Crim. App. 2009)     . . . . . . . . . . . . 153

Sasser v. Hobbs, 735 F.3d 833 (8th Cir. 2013)               . . . . . . . . . . . . 140

Shannon v. State, 942 S.W.2d 591 (Tex. Crim. App. 1996)     . . . . . . . . . . . . 157
Shaver v. State, 280 S.W.2d 740 (Tex. Crim. App. 1955)      . . . . . . . . . . . . . 73

Smith v. State, 770 S.W.2d 70
(Tex. App. – Texarkana 1989, no pet.)                       . . . . . . . . . . . . . 59

Sorrells v. State, 343 S.W.3d 152 (Tex .Crim. App. 2011)    . . . . . . . . . . . . . 82

Splawn v. State, 160 S.W.3d 103
(Tex. App. - Texarkana 2005, pet. ref’d)                    . . . . . . . . . . . . 162

State v. Lombardi, 303 S.W.3d 523 (Mo. 2010)                . . . . . . . . . . . . 143
                                           xv
State v. White, 885 N.E.2d 905 (Ohio 2008)                   . . . . . . . . . . . . 139

Strickland v. Washington, 466 U.S. 668 (1984)                . . . . . . . . . . . . 102

Temple v. State, 390 S.W.3d 341 (Tex. Crim. App. 2013)       . . . . . . . . . . . . . 82

Thomas v. Allen, 607 F.3d 749 (11th Cir. 2010)               . . . . . . . . . . . . 141
Thuesen v. State, 2014 WL 792038 (Tex. Crim. App. 2014)      . . . . . . . . . . . . 150

Tong v. State, 25 S.W.3d 707 (Tex. Crim. App. 2000)          . . . . . . . . . . . . 150

Torres v. State, 593 S.W.2d 717 (Tex. Crim. App. 1980)       . . . . . . . . . . . . . 63

Turner v. State, 422 S.W.3d 676 (Tex. Crim. App. 2013)       . . . . . . . . . . . . . 63
United States v. Fox, 613 F.2d 99 (5th Cir.1980)             . . . . . . . . . . . . 103
Van Tran v. Colson, 764 F.3d 594 (6th Cir. 2014)             . . . . . . . . . . . . 137

Van Tran v. State, 2006 WL 3327828 (Tenn. Crim. App. 2006)   . . . . . . . . . . . . 139
Villanueva v. State, 711 S.W.2d 739
(Tex. App.—San Antonio 1986) pet. ref’d
725 S.W.2d 244 (Tex. Crim. App. 1987)                        . . . . . . . . . . . . . 83

Webb v. State, 36 S.W.3d 164
(Tex. App.-Houston [14th Dist.] 2000, pet. ref’d)            . . . . . . . . . . . . . 96

Wheeler v. State, 67 S.W.3d 879 (Tex. Crim. App. 2002)       . . . . . . . . . . . . . 59
Whitaker v. State, 286 S.W.3d 355 (Tex. Crim. App. 2009)     . . . . . . . . . . . . 157

Whitaker v. State, 977 S.W.2d 869
(Tex. App.—Beaumont 1998, pet. ref'd)                        . . . . . . . . . . . . . 82

Williams v. Quarterman, 293 F. App’x 298 (5th Cir. 2008)     . . . . . . . . . . . . 131
Williams v. State, 270 S.W.3d 112 (Tex. Crim. App. 2008)     . . . . . . . . . . . . 136

Williams v. State, 273 S.W.3d 200 (Tex. Crim. App. 2008)     . . . . . . . . . . . . 151
Wilson v. Thaler, 450 F. App’x 369 (5th Cir. 2011)           . . . . . . . . . . . . 131

                                             xvi
Woods v. Quarterman, 493 F.3d 580 (5th Cir. 2007)            . . . . . . . . . . . . 138

Wooldridge v. State, 653 S.W.2d 811 (Tex. Crim. App. 1983)   82

Ybarra v. State, 247 P.3d 269 (Nev. 2011)                    . . . . . . . . . . . . 139

Statutes
IDAHO CODE ANN. § 19-2515A(1)(a)                             . . . . . . . . . . . . 139

KY. REV. STAT. ANN. § 532.130(2)                             . . . . . . . . . . . . 139

MO. REV. STAT. § 565.030(6)                                  . . . . . . . . . . . . 139

N.C. GEN. STAT. § 15A-2005(a)(1)(B)                          . . . . . . . . . . . . 139

N.C. GEN. STAT. § 15A-2005(a)(2)                             . . . . . . . . . . . . 139

NEV. REV. STAT. § 174.098(7)                                 . . . . . . . . . . . . 139

OKLA. STAT. TITLE 21, § 701.10b(A)(2)                        . . . . . . . . . . . . 139

TEX. CRIM. PROC. CODE art. 35.16(a)(9)                       . . . . . . . . . . . . . 73

TEX. CRIM. PROC. CODE art. 35.16(c)(2)                       . . . . . . . . . . . . . 68

TEX. CRIM. PROC. CODE art. 37.071§ 2(g)                      . . . . . . . . . . . . 164

TEX. CRIM. PROC. CODE art. 38.04                             . . . . . . . . . . . . . 81
TEX. CRIM. PROC. CODE art. 42.01 § 14                        . . . . . . . . . . . . 162

TEX. CRIM. PROC. CODE art. 44.29(a)                          . . . . . . . . . . . . . 74

TEX. CRIM. PROC. CODE art. 44.29(c)                          . . . . . . . . . . . . . 71

TEX. CRIM. PROC. CODE art. 46B.003(a)(1)                     . . . . . . . . . . . . . 61

TEX. CRIM. PROC. CODE art. 46B.003(b)                        . . . . . . . . . . . . . 61

TEX. HEALTH & SAFETY CODE § 591.003(1)                       . . . . . . . . . . . . 121
TEX. HEALTH & SAFETY CODE § 591.003(7)                       . . . . . . . . . . . . 123
                                            xvii
TEX. HEALTH & SAFETY CODE § 591.003(13)        . . . . . . . . . . . . 121

TEX. PEN. CODE § 1.07(25)                      . . . . . . . . . . . . . 89

TEX. PEN. CODE § 12.04(a)(1)                   . . . . . . . . . . . . 162

TEX. PEN. CODE § 12.31(a)                      . . . . . . . . . . . . 162
TEX. PEN. CODE § 19.03(a)(2)                   . . . . . . . . . . . . 162

TEX. PEN. CODE § 20.01(2)(A)                   . . . . . . . . . . . . . 86

TEX. PEN. CODE § 20.01(2)(B)                   . . . . . . . . . . . . . 86

TEX. PEN. CODE § 20.03(b)                      . . . . . . . . . . . . . 84

TEX. PEN. CODE § 30.02(a)                      . . . . . . . . . . . . . 83
TEX. PEN. CODE § 36.06                         . . . . . . . . . . . . . 87

TEX. PEN. CODE § 36.06(a)(1)(B)                . . . . . . . . . . . . . 87
TEX. PEN. CODE § 36.06(a)(2)(A)                . . . . . . . . . . . . . 87

VA. CODE ANN. § 19.2-264.3:1.1(B)(2)           . . . . . . . . . . . . 140

Rules
TEX. R. APP. P. 9.4                            . . . . . . . . . . . . 166
TEX. R. APP. P. 9.10(a)(3)                     . . . . . . . . . . . . . 13

TEX. R. APP. P. 44.2(b)                        . . . . . . . . . . . . . 60

TEX. R. APP. P. 78.1(b)                        . . . . . . . . . . . . 163

TEX. R. EVID. 404(b)                           . . . . . . . . . . . . . 92

TEX. R. EVID. 503(b)(2)                        . . . . . . . . . . . . . 60

TEX. R. EVID. 503(c)                           . . . . . . . . . . . . . 59

DOCKETED CASE

Lizcano v. Texas, No. 15-65 (U.S.)             . . . . . . . . . . . . 128
                                       xviii
Other Authorities
American Association of Intellectual and Developmental Disabilities, Intellectual
Disability: Definition, Classification, and Systems of Supports (11th ed.
2010)                                                              . . . . . . . . . . . . 130

American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders (5th ed. 2013)                                        . . . . . . . . . . . . 133

Blume, John H., et al., A Tale of Two (and Possibly Three) Atkins, 23 Wm. &
Mary Bill Rts. J. 393 (2014)                                       . . . . . . . . . . . . 129

Blume, John H., et al., Of Atkins and Men,
18 Cornell J.L. & Pub. Pol’y 689 (2009)                                  . . . . . . . . . . . . 129

George E. Dix & John M. Schmolesky, 43 Texas Practice: Criminal Practice and
Procedure § 31:81, at 89–90 & n. 10 (3rd ed.2011)          . . . . . . . . . . . . . 63
Greenspan, Stephen, The Briseño Factors, in The Death Penalty and Intellectual
Disability 219 (Edward A. Polloway ed., 2015)              . . . . . . . . . . . . 130

Tobolowsky, Peggy M., A Different Path Taken,
39 Hastings Const. L.Q. 1 (2011)                                         . . . . . . . . . . . . 139




                                             xix
                      Statement Regarding Oral Argument


      Argument is requested. The facts are voluminous and the issues on appeal

are complex. It is respectfully suggested argument would assist the Court in its

decisional process.


                               Statement of the Case


      This is an appeal from a criminal proceeding. Petetan was indicted by a

McLennan County grand jury for the offense of capital murder (1 CR 44). It was

alleged Petetan murdered his wife, Kimberly Petetan, by shooting her with a

firearm while he was in the course of committing or attempting to commit the

offenses of burglary, kidnapping, and retaliation (1 CR 44). The State gave notice

of its intent to seek the death penalty (2 RR 6).


      Petetan asserted he was incompetent to stand trial and sought a competency

determination by a jury (2 CR 383). A competency jury was selected and sworn

(10 RR 109, 110). The jury found Petetan competent to stand trial (2 CR 453, 13

RR 94).


      A jury was selected and sworn for trial on the charged offense of capital

murder (48 RR 108, 50 RR 192, and 51 RR 16). Petetan entered a plea of not

guilty to the indicted offense (51 RR 26). At the conclusion of the guilt or


                                         -1-
innocence phase, the jury found Petetan guilty of capital murder as charged in the

indictment (4 CR 1308, 54 RR 224).


      Punishment was tried to the same jury (55-60 RR). At the conclusion of the

punishment phase, the jury returned answers to four special issues (4 CR 1336-

1339, 60 RR 67-68). Based on the jury’s answers to the special issues, punishment

was assessed by the trial court at death and Petetan was sentenced in open court

(60 RR 71).


      A motion for new trial was filed and denied (4 CR 1377, 1382). Appeal to

this Court is automatic. Nonetheless, the trial court certified Petetan’s right to

appeal and notice of appeal was timely filed (4 CR 1348, 1353).


                            Issues Presented on Appeal


Point of Error One


The trial court abused its discretion by allowing the State to invoke Petetan’s

attorney-client privilege as to testimony he sought to offer from his former

attorney on the issue of competency to stand trial (13 RR 57).




                                         -2-
Point of Error Two


The trial court abused its discretion by excluding evidence Petetan sought to

offer concerning the legal fate of those who obtain an incompetency

determination through malingering (13 RR 60).


Point of Error Three


The trial court abused its discretion by denying a defense challenge for cause

to prospective juror Richard Hester who had a bias against a life sentence

without possibility of parole and a bias in favor of a sentence of death (28 RR

89).


Point of Error Four


The trial court abused its discretion by denying a defense challenge for cause

to prospective juror Richard Hester who believed law enforcement officers to

be more credible than other witnesses (28 RR 89).


Point of Error Five


The trial court abused its discretion by denying a defense challenge for cause

to prospective juror Luther Fore who had a bias against a life sentence

without possibility of parole and a bias in favor of a sentence of death (30 RR

174).
                                      -3-
Point of Error Six


The evidence is insufficient to prove Petetan murdered the complainant while

in the course of committing or attempting to commit the offenses of burglary,

kidnapping, or retaliation.


Point of Error Seven


The trial court abused its discretion by admitting an extraneous offense

showing that on the day of the murder, Petetan told Miller he was going to

Waco to buy drugs and would give Miller drugs if he would drive Petetan to

Waco (53 RR 31).


Point of Error Eight


The trial court abused its discretion by admitting an extraneous offense

showing that on the day of the murder, Petetan told Mouton he was going to

Waco to buy drugs and would give Mouton drugs if he would accompany

Petetan to Waco (53 RR 31).


Point of Error Nine


The trial court abused its discretion by admitting evidence which undermined

defense counsel before the jury and created a conflict of interest which denied

Petetan his right to the effective assistance of counsel (59 RR 198).
                                         -4-
Point of Error Ten


The jury’s answer to the intellectual disability special issue is against the great

weight and preponderance of the evidence.


Point of Error Eleven


Petetan’s intellectual disability renders him ineligible for the death penalty.


Point of Error Twelve


The trial court erred by failing to define the term “militate” within the

punishment charge as requested by Petetan (4 CR 1318, 4 CR 1330, and 59

RR 212).


Point of Error Thirteen


The trial court erred by overruling Petetan’s objection to the instruction that

10 votes were required for the jury to return a “no” answer to the first special

issue concerning future dangerousness (4 CR 1318, 4 CR 1330, and 59 RR

212).


Point of Error Fourteen


The trial court erred by overruling Petetan’s objection to the “anti-sympathy”

instruction insofar as the instruction would limit the scope of mitigating

                                       -5-
evidence and or circumstances that jury may consider in returning a life

sentence (4 CR 1320, 4 CR 1330, and 59 RR 212).


Point of Error Fifteen


The trial court erred by overruling Petetan’s request that the jury be

instructed on the concept of mercy and the role it can play in deliberations (4

CR 1320, 4 CR 1330, and 59 RR 212).


Point of Error Sixteen


The trial court erred by submitting a special issue on future dangerousness

which was not found by the grand jury or alleged in the indictment returned

against Petetan (1 CR 44, 4 CR 1321, 4 CR 1330, and 59 RR 212).


Point of Error Seventeen


The trial court erred by failing to define the term “probability” within the

punishment charge as requested by Petetan (4 CR 1321, 4 CR 1330, and 59

RR 212).




                                      -6-
Point of Error Eighteen


The trial court erred by failing to define the phrase “criminal acts of violence”

within the punishment charge as requested by Petetan (4 CR 1322, 4 CR 1330,

and 59 RR 212).


Point of Error Nineteen


The trial court erred by failing to define the phrase “continuing threat to

society” within the punishment charge as requested by Petetan (4 CR 1323, 4

CR 1330, and 59 RR 212).


Point of Error Twenty


The trial court erred by failing to submit Petetan’s four requested instructions

relative to the jury’s consideration of victim impact evidence (4 CR 1324, 4

CR 1330, and 59 RR 212).


Point of Error Twenty-One


The trial court erred by failing to define the phrases “personal moral

culpability” and “moral blameworthiness” within the punishment charge as

requested by Petetan (4 CR 1325, 4 CR 1330, and 59 RR 212).




                                      -7-
Point of Error Twenty-Two


The trial court erred by overruling Petetan’s objection that the charge unduly

limited what factors the jury could consider as mitigating (4 CR 1325, 4 CR

1330, and 59 RR 212).


Point of Error Twenty-Three


The trial court erred by overruling Petetan’s objection that the mitigation

special issue is unconstitutional for failing to assign a burden of proof and not

being susceptible to a sufficiency of the evidence review on appeal (4 CR 1326,

4 CR 1330, and 59 RR 212).


Point of Error Twenty-Four


The trial court erred by overruling Petetan’s objection that the jury should be

instructed there is a presumption in favor of a life sentence rather than a

sentence of death (4 CR 1327, 4 CR 1330, and 59 RR 212).


Point of Error Twenty-Five


The trial court erred by overruling Petetan’s objection that the jury should be

instructed that if it was unable to agree on a special issue, a mistrial would be

declared and life sentence imposed (4 CR 1326, 4 CR 1330, and 59 RR 212).


                                       -8-
Point of Error Twenty-Six


Imposition of the death penalty violates Petetan’s Eighth Amendment and

Fourteenth Amendment rights not to be subjected to cruel and unusual

punishment.


Point of Error Twenty-Seven


Petetan was denied equal protection of the law and due course of law due to

the absence of a unified statutory procedure for pretrial litigation of an Atkins

assertion of intellectual disability (18 RR 12, 4 CR 1228).


Point of Error Twenty-Eight


The judgment should be modified to properly reflect Petetan was convicted of

a capital felony offense rather than a first degree felony offense (4 CR 1343).


Point of Error Twenty-Nine


The judgment should be modified to properly reflect punishment was assessed

by the trial court rather than the jury (4 CR 1343).




                                      -9-
                                 Statement of Facts


                               A. Competency Trial


       Petetan filed a motion, supported by the affidavit of an expert, alleging he

was incompetent to stand trial (2 CR 383). He sought a jury determination of his

competency to be tried (2 CR 383). The trial court appointed an independent

expert to examine Petetan’s competency to stand trial (2 CR 392). That expert

opined Petetan was competent for trial (2 CR 414). In view of the conflicting

opinions regarding Petetan’s competency, the trial court agreed a jury trial on

competency was warranted (8 RR 5). A jury to pass on the issue of competency

was selected and sworn (10 RR 109, 110).


       Dr. Ollie Seay is a psychologist from Austin (12 RR 32). She was employed

by the defense to examine Petetan relative to his competency to stand trial (12 RR

49).


       She explained that in current practice the term intellectual disability is used

rather than the outdated term mental retardation (12 RR 43). She agreed both

terms have the same definition and three prongs to determine existence (12 RR

43). Intellectual disability alone will not render an individual incompetent for trial

(12 RR 48).



                                         - 10 -
       She met with Petetan on three occasions and administered various

assessment tests (12 RR 51). She reviewed police reports, medical reports, school

records, and other psychological records (12 RR 53). Even though she did not

administer an IQ test, previous IQ testing provided to her raised some concerns for

her and those concerns were confirmed by her testing of and interaction with

Petetan (12 RR 63, 99). Various test results from IQ tests administered to Petetan

from childhood to 2012 were consistent in their results (12 RR 165).


       She administered a test designed to determine competency for those with

intellectual disability (12 RR 67). Petetan scored 63% of the answers on the test

correctly (12 RR 69). The score placed him within the range of those found

incompetent to stand trial and below those found competent to stand trial (12 RR

70).


       Based on her examination, Petetan has limited capacity to understand the

criminal charges against him (12 RR 71). He does not have the ability to consult

with counsel (12 RR 73). She felt he would not be capable to testify because he

becomes stuck on one topic or loses attention quickly (12 RR 83). Based on all of

her activity in the case, Seay did not believe Petetan was competent to stand trial

because his intellectual disability was interfering with his ability to be competent

(12 RR 88-89). She did not believe he was subject to having his competency


                                        - 11 -
restored due to his intellectual disability (12 RR 88, 148). Petetan rested (12 RR

171).


        Dr. Michael Pittman is a psychiatrist from Dallas (12 RR 172). He was

appointed by the trial court to examine Petetan for competency (12 RR 174). He

assessed Petetan in jail and reviewed various documents (12 RR 177). He did not

administer a written examination to Petetan (12 RR 199).


        Pittman did not believe Petetan to be intellectually disabled, but did believe

his intellect was below average and that he was a “little low in the IQ department”

(12 RR 185). After his assessment, Pittman believed Petetan competent for trial

(12 RR 186, 196).


        On September 23, 2012, Christopher Moutray, of the Bryan Police

Department, interviewed Petetan with regard to the murder of his wife, Kimberly

Petetan (12 RR 207). Petetan was given his Miranda warnings, which he appeared

to understand (12 RR 211, 212). Petetan spoke with Moutray and another

detective about the events which had transpired the day of his wife’s death (12 RR

215). During the interview, Petetan repeatedly told the detectives that Adrian

Miller had killed Kimberly (12 RR 217). Petetan participated in a gunshot residue

test, but refused to provide a DNA sample (12 RR 220, 223). Upon his arrest,

Petetan invoked his right to counsel (12 RR 226). The recorded interview of

                                         - 12 -
Petetan in Bryan was played for the jury (12 RR 228, 61 RR SX C). The State

rested (13 RR 15).


      Seay was recalled by the defense (13 RR 16). She said that she believed

Petetan was being honest with her during their three interviews (13 RR 22). After

listening to the State’s evidence, she still believed Petetan incompetent for trial (13

RR 25).


      Both sides closed on the issue of competency (13 RR 61). No objection was

voiced to the court’s charge (13 RR 12). The charge was read to the jury (13 RR

62). Argument was presented (13 RR 70, 75, and 84). The jury returned a verdict

finding Petetan competent to stand trial (13 RR 94).


                            B. Guilt or Innocence Phase


      The indictment alleges Petetan killed Kimberly Petetan on September 23,

2012, by shooting her with a firearm while in the course of committing burglary of

Kimberly Petetan, retaliation of Kimberly Petetan, and kidnapping of Kimberly

Petetan and her daughter, A. W.1 (1 CR 44, 51 RR 25).


      On September 23, 2012, at 6:30 pm in the evening, Waco Police Officer

Rebecca Diaz responded to a report of shots fired at The Landing apartment

1
  “A. W.” was a minor at the time of the offense and a pseudonym is used
throughout this brief. See TEX. R. APP. P. 9.10(a)(3).
                                       - 13 -
complex in Waco (51 RR 47). She and a fellow officer approached an apartment,

knocked on the door, and opened the door when no one answered (51 RR 54).

They saw the body of a white female on the floor as well as bloodstains near the

body (51 RR 56). The victim had suffered multiple gunshot wounds (51 RR 56).


      Diaz and her fellow officer searched for other victims or a suspect in the

apartment and found none (51 RR 57). There were no signs of forced entry into

the apartment (51 RR 58). The gunshot victim died by the time paramedics arrived

(51 RR 64).


      After speaking with a neighbor, Diaz learned the identity of the gunshot

victim as Kimberly Petetan (51 RR 66). Diaz also learned that the victim had a

young daughter and Diaz was concerned because the child was not in the

apartment and her whereabouts were unknown (51 RR 67). While still at the

scene, Diaz learned the child had been located in Bryan (51 RR 67).


      Ashley Roy, an evidence technician with the Waco Police Department, went

to the scene of shooting (51 RR 117). She saw a body with gunshot wounds (51

RR 120). Roy found three .380 shell casings at the scene (51 RR 120-123). Inside

the apartment, she noticed blood stains on the four lowest stairs near the front door

(51 RR 123). The bloodstains led her to believe the person was already wounded

when they climbed the four stairs (51 RR 133). She found no bloodstains upstairs

                                        - 14 -
(51 RR 139). There was no sign of a forced entry or struggle in the apartment (51

RR 124-125). She recovered two cigarette butts and a cigar package outside the

apartment (51 RR 153).


      Joyce Marek, a Waco Police Department crime scene technician, searched

Petetan’s 1989 Suburban vehicle which had been seized by the Bryan Police

Department (51 RR 164). She took photos of the vehicle and found what she

thought to be bloodstains in the vehicle (51 RR 167). The vehicle contained

numerous papers belonging to Petetan (51 RR 178). She also found maps in the

vehicle showing directions from Port Arthur to Waco and to McLennan County

Community College (51 RR 188).


      Drs. Chester Gwin and Allison Edgecombe, of the Southwestern Institute of

Forensic Sciences, performed an autopsy on the body of Kimberly Petetan (51 RR

200-203). During the examination, they found evidence of two gunshot wounds

(51 RR 206). The projectile from one of the wounds hit several major organs (51

RR 220). Gwin testified that Kimberly Petetan died from multiple gunshot wounds

(51 RR 224).


      Lanelle Waley is a firearm and tool mark examiner with the Department of

Public Safety in Austin (51 RR 229). He examined the three shell casings found in

apartment and determined they were .380 Winchester cartridges (51 RR 235). All

                                      - 15 -
of the casings had been fired from the same firearm which may have been a Bersa

Thunder Model .380 (51 RR 237-238). Waley explained that the Department will

not conduct a gunshot residue tests if the suspects hands were swabbed more than

four hours after a weapon was allegedly fired (51 RR 242).


       Erin Casmus is a forensic scientist with the Department of Public Safety in

Waco (51 RR 246). He examined evidence submitted in the case (51 RR 249). A

cigarette butt at the scene of the shooting had DNA consistent with that of Kerrie

Mouton (51 RR 253). A bloodstain found on the shirt Petetan was wearing at the

time of his arrest contained DNA consistent with Petetan’s own DNA (51 RR 261).


       Kristin Warmack is the older sister of A. W.2 and daughter of Kimberly

Petetan (52 RR 7). She and her mother met Petetan’s brother at a brake repair shop

in Waxahachie and he suggested Kimberly write to Petetan to share her story and

God’s love (52 RR 17-19). Her mother corresponded with Petetan in 2009 and

2010 and eventually began to have romantic feelings toward him (52 RR 20).

They were married by proxy in September of 2010 with Warmack standing in for

Petetan (52 RR 23). Petetan came to live with Kimberly and A. W. in April of

2012 (52 RR 26).




2
    Warmack and “A. W.” do not have the same last name.
                                     - 16 -
      In August of 2012, Kimberly was planning to move to Port Arthur to be with

Petetan (52 RR 28). She then decided to stay in Waco and rented an apartment at

The Landing apartment complex (52 RR 33). Kimberly eventually moved to Port

Arthur in early September of 2012 to be with Petetan (52 RR 34).


      On September 13, 2012, Warmack received a voice message from A. W.

informing her that Petetan was threatening their mother with a knife (52 RR 36).

The following day, her mother decided to leave Port Arthur and move back to

Waco (52 RR 37). Her mother told her that in view of Petetan’s assault in front of

A. W., she was leaving Petetan and intended to divorce him (52 RR 38).


      On September 23, 2012, A. W. called Warmack from a convenience store in

Conroe and asked her to come pick her up (52 RR 42). On the way, Warmack

received a call from her mother’s apartment manager in Waco informing her that

her mother had been shot and was dead (52 RR 43). Warmack called 911 to report

her sister’s call for help and upon investigation by the police; she was told A. W.

was not at the convenience store (52 RR 44).


      Later in the day on September 23, 2012, Warmack received a telephone call

from Kerrie Mouton informing her that the police in Bryan had A. W. (52 RR 45).

She drove to Bryan that night and picked up her younger sister, A. W. (52 RR 46).

A. W. now lives with her (52 RR 7).

                                        - 17 -
       Warmack went to her mother’s apartment in Waco a couple of days later to

pick up some clothing for A. W. (52 RR 48). While at the apartment, she found

her mother’s purse in the dishwasher (52 RR 49).


       On September 13, 2012, Ryan Kidwell, of the Port Arthur Police

Department, responded to a domestic disturbance call (52 RR 83). Kimberly

Petetan told Kidwell that Petetan assaulted her when she asked him to stop

smoking in the apartment because her daughter has asthma (52 RR 85). She said

Petetan had thrown her to the floor and held a kitchen knife close to her (52 RR

86). While holding the knife close to her, Petetan said “I could kill you, do you

want to die in front of your child?” (52 RR 88).


       Petetan left the apartment by the time Kidwell arrived (52 RR 87).

Kimberly told the officer she wanted to file assault charges against Petetan and she

knew it would be a felony since he used a knife during the assault (52 RR 90). She

also told the officer she was leaving Port Arthur and moving back to Waco (52 RR

93).


       On September 23, 2012, Jackie Musgrove was staying at a motel in Waco

(52 RR 102). Petetan approached him and asked him to rent a room in Musgrove’s

name for Petetan in return for ten dollars (52 RR 104). Musgrove did as asked and

was paid by Petetan (52 RR 108).

                                       - 18 -
      On September 23, 2012, Cornelius Jefferson was at The Landing apartment

complex in Waco washing clothes (52 RR 121). He was approached by a man

who asked him to knock on an apartment door (52 RR 124). Jefferson agreed to do

so because he thought it was a joke or prank (52 RR 124). He knocked on the door

and two women looked out the window (52 RR 125). The man who asked him to

knock was crouched down behind Jefferson (52 RR 126). Eventually one of the

women opened the door of the apartment and the man who had been crouched

down behind Jefferson ran into the apartment (52 RR 127). Jefferson identified

Petetan as the man who asked him to knock on the door and eventually ran into the

apartment (52 RR 132).


      Nichlos Lampkin previously lived in the same apartment complex as

Kimberly and A. W. on Purvis Street in Waco (52 RR 147). Petetan later moved

into the apartment and frequently argued with Kimberly (52 RR 153). Sometimes

when Petetan was angry, he would tell Lampkin in reference to Kimerbly “man,

I’m going to kill that bitch” (52 RR 154). Petetan and Kimberly eventually moved

from the complex (52 RR 158).


      Morris Evans knew Petetan and Kimberly when they lived in an apartment

complex on Purvis Street in Waco (52 RR 165). Evans recalled an occasion when




                                      - 19 -
Petetan accused him of sleeping with Kimberly (52 RR 168). Evans remembered

Petetan saying “I’m going to kill the bitch” (52 RR 169).


      Charles Gatlin was an inmate at the McLennan County Jail with Petetan

following Petetan’s arrest for murder (52 RR 179). One morning in jail, Petetan

bumped into Gatlin and Gatlin said “excuse me” to which Petetan replied “I killed

my wife and I will kill you” (52 RR 179). On another occasion, Petetan asked

Gatlin if the authorities could match a fingerprint from a gun based on a DNA

sample (52 RR 181). Petetan asked Gatlin to explain a ballistics report and

whether it meant the police had a gun (52 RR 182).


      On September 23, 2012, Officer Crystal O’Rear, of the Bryan Police

Department, received a call of a possible kidnapping (53 RR 7). Within ten

minutes she saw a vehicle matching the description of that involved in the possible

kidnapping (53 RR 21). She stopped the vehicle which was occupied by four

people, Petetan, A. W., Adrian Miller, and Kerrie Mouton (53 RR 8, 11). Backup

officers arrived, the occupants were separated, and O’Rear had an opportunity to

speak with A. W. about what had happened to her mother in Waco (53 RR 13, 15).

While stopped on the roadway, Mouton called A. W.’s older sister in Conroe and

told her A. W. was in Bryan and safe in the presence of law enforcement officers

(53 RR 25).


                                       - 20 -
       At 9:43 pm on September 23, 2012, Officer Lance Matthews, of the Bryan

Police Department, received a call that his assistance was needed in conducting

some interviews (51 RR 72). Those to be interviewed had knowledge of a murder

in Waco (51 RR 73). They had been stopped in a vehicle traveling through Bryan

(51 RR 73). The individuals to be interviewed were A. W., Kerrie Mouton, Adrian

Miller, and Petetan (51 RR 76). Matthews first obtained some information from a

Waco Police Department detective before conducting the interviews (51 RR 77).


       Matthews first interviewed A. W., the daughter of Kimberly Petetan (51 RR

79). She had no difficulty describing the events leading to her mother’s shooting

(51 RR 81).


       Matthew next spoke with Miller (51 RR 82). Miller was cooperative,

provided a DNA sample, and took a gunshot residue test (51 RR 84, 86). After the

interview, Matthews did not believe Miller was involved in the shooting (51 RR

87).


       Mouton was interviewed next (51 RR 87). He was cooperative, provided a

DNA sample, and took a gunshot residue test (51 RR 88). After interviewing

Mouton, Matthews did not believe him to be a suspect in the shooting (51 RR 90).


       Petetan was the last person interviewed (51 RR 91). He was cooperative and

took a gunshot residue test (51 RR 92). He refused to provide a DNA sample (51
                                       - 21 -
RR 92). At the conclusion of the interviews, Matthews arrested Petetan for the

murder of Kimberly Petetan based on a McLennan County arrest warrant (51 RR

92). Miller and Mouton were released and A. W. was turned over to her older

sister (51 RR 93, 95).


      Adrian Miller and Petetan grew up together in Port Arthur (53 RR 34). In

the early morning of September 23, 2012, Miller saw Petetan at a store in Port

Arthur (53 RR 36). Petetan told him he was going to Waco to buy some drugs and

he would give Miller an ounce of crack cocaine and some money if he would drive

Petetan to Waco (53 RR 37). Kerrie Mouton agreed to come along in order to

“watch Miller’s back” (53 RR 40).


      On the way to Waco, Petetan had a gun which he placed in the hood

compartment of his Suburban (53 RR 41). The threesome arrived in Waco about

noon and went to a motel (53 RR 43). Petetan paid a man to rent a room for them

(53 RR 45).


      Petetan left the motel in his Suburban without Miller or Mouton (53 RR 52).

When Petetan returned to the motel, he was driving Kimberly’s truck which was

also occupied by Kimberly and A. W. (53 RR 52). Petetan told Miller and Mouton

to get in the bed of the truck and they all drove to Kimberly’s apartment complex

(53 RR 54). Miller noticed Petetan’s vehicle was at the complex (53 RR 55).

                                      - 22 -
      They entered Kimberly’s apartment (53 RR 56). Miller and Mouton stayed

downstairs and watched television for two hours (53 RR 56). Petetan and

Kimberly went upstairs and Miller never heard them arguing (53 RR 56). When

Petetan and Kimberly came downstairs, Kimberly told Miller where he could find

something to eat in the kitchen (53 RR 57).


      As Kimberly was trying to walk out the front door, Petetan slammed the

door shut and struck her with his fist (53 RR 57). Petetan then produced a pistol

and shot Kimberly multiple times (53 RR 59). Miller testified that Mouton ran out

of the apartment after the first shot and A. W. did so after the second shot (53 RR

59). Miller believed Petetan shot Kimberly four times and he saw her fall to the

floor in the apartment (53 RR 60).


      Miller and Petetan left the apartment and got in Petetan’s vehicle which was

already occupied in the back seat by Mouton and A. W. (53 RR 61). Miller

testified he got in the vehicle to drive because he was concerned Petetan would

hurt A. W. or Mouton (53 RR 62). Miller stated that no one told A. W. and

Mouton to get in Petetan’s Suburban, they simply did so after the shooting of

Kimberly in the apartment (53 RR 90).


      With Miller driving, they stopped for gas (53 RR 63). Petetan gave Miller

money to purchase gasoline after Petetan had rubbed the money on his hands (53

                                        - 23 -
RR 63). Petetan followed Miller into the gas station and Miller was not able to

alert the clerk of the shooting in Waco (53 RR 65).


      In the vehicle, A. W. asked if her mother was dead (53 RR 68). Miller told

her “no,” and Petetan said nothing (53 RR 68). Miller never heard Petetan

apologize to A. W. for killing her mother (53 RR 68).


      After stopping at a store in Bryan, Miller intentionally engaged in aggressive

driving in an effort to attract the attention of a nearby police officer (53 RR 70,

72). When the officer approached the vehicle, Miller told the officer that he

needed to talk to the officer in private (53 RR 72). Petetan told Miller to only talk

to the officer in the presence of Petetan (53 RR 72).


      When the officer took Miller to the rear of the vehicle, Miller told him what

had happed in Waco (53 RR 73). Miller denied killing Kimberly or knowing of

Petetan’s intent to do so (53 RR 77).


      In hindsight, Miller believes Petetan was trying to set him up or frame him

for the murder of Kimberly (53 RR 74). He recalled that once they were on

Highway 6 headed toward Bryan from Waco, Petetan had Miller pull over so he

could dispose of the pistol and piece of pizza Miller had taken from Kimberly’s

apartment (53 RR 66). Miller believed Petetan was trying to set him up with DNA

from the pizza, or the pizza wrapper at the murder scene, and connect him to the
                                         - 24 -
murder weapon (53 RR 66). Miller also recalled that a couple of weeks before

shooting, Petetan offered him a rock of crack cocaine if he would call Kimberly

and cuss her out on the phone (53 RR 91). Miller agreed to do so and he believes

the call was recorded for possible later use by Petetan in implicating him the

murder of Kimberly (53 RR 91).


        Kerrie Mouton first met Petetan in 2012 in Port Arthur (53 RR 98). Petetan

asked Mouton to come with him on trip to Waco to buy drugs (53 RR 101).

Petetan promised to give Mouton some drugs if he would come along on the trip

(53 RR 101).


        Miller came with them on the trip to Waco (53 RR 102). When they arrived

in Waco, they checked into a motel (53 RR 106). Petetan left the motel in his

vehicle and later returned in a truck occupied by Kimberly and A. W. (53 RR 108,

109).


        Mouton and Miller got in the bed of Kimberly’s truck and she drove the five

of them to her apartment (53 RR 110). Upon arriving, Kimberly opened the door

and they all entered (53 RR 111, 131). While he and Miller were downstairs,

Mouton heard Kimberly upstairs say “fuck you Carnell, if you are going to kill me,

kill me” (53 RR 113).



                                        - 25 -
      When Kimberly and Petetan came downstairs, she tried to unlock and open

the front door, but Petetan pushed her away and into a wall (53 RR 117). When

Kimberly pushed Petetan, he shot her multiple times with a handgun (53 RR 118).


      After the shooting, Mouton and A. W. ran out the back door of the apartment

and jumped into Petetan’s vehicle (53 RR 121). Mouton intended to drive the two

of them away, but Miller and Petetan came outside and entered the vehicle before

he could do so (53 RR 121). Mouton did not force A. W. to get in the vehicle with

him; she simply followed him to the vehicle after the shooting of her mother (53

RR 135).


      The four of them drove away with Miller driving, Petetan in the front

passenger seat, and Mouton and A. W. in the rear seat (53 RR 122). While they

were traveling, Mouton was in fear for his life and A. W. was crying and asking for

her older sister (53 RR 124). Eventually, they were stopped by the police in Bryan

and Mouton told the police the details of the shooting in Waco (53 RR 125, 127).


      A. W. was eleven years old at the time of trial in April of 2014 (53 RR 143).

At one time, she and her mother lived in an apartment on Purvis Street in Waco (53

RR 145). While living on Purvis, Petetan moved in with them (53 RR 145).

Petetan would yell at her mother and say bad things to her (53 RR 147). She and

her mother then moved to The Landing apartment complex in Waco (53 RR 148).

                                      - 26 -
After moving to The Landing, her mother told her that they were moving to Port

Arthur to be with Petetan because that was where he was on parole (53 RR 150).


      After moving to Port Arthur, her mother and Petetan fought and her mother

would cry (53 RR 151). She recalled an argument in the apartment one night when

Petetan refused her mother’s request to smoke outside rather than in the apartment

because she has asthma (53 RR 155). Petetan pushed her mother to the floor and

she was crying (53 RR 156). Petetan retrieved a knife from the kitchen, put the

knife behind her mother, and asked “if she wanted to die in front of A. W.” (53 RR

158). Her mother ran to the bathroom and called the authorities concerning the

assault and Petetan then cut himself on the stomach with the knife (53 RR 160).

She saw Petetan call the police and then leave the apartment before the police

arrived (53 RR 161). The next day, her mother told her they were leaving Port

Arthur and moving back to Waco (53 RR 163).


      Her mother died on a Sunday after they had attended church and talked

about Heaven (53 RR 168). They were at home and heard a knock on the door (53

RR 172). Looking out the window, they could tell it was a stranger knocking (53

RR 173). When her mother opened the door, Petetan pushed his way into the

apartment without her mother inviting him in (53 RR 174). Petetan pulled a gun

from his pocket and waved the gun around the apartment (53 RR 175). Petetan


                                       - 27 -
told her mother to get dressed and “come with me” (53 RR 176). Petetan told her

mother they were going to Port Arthur and she was “going to tell the cops what

happened” (53 RR 177).


      The three of them got into her mother’s truck and her mother was driving

(53 RR 177). Petetan still had the gun in his pocket while in the truck (53 RR

178). Petetan directed her mother to drive to a motel in Waco (53 RR 179). Once

they arrived at the motel, Petetan told her mother to honk the horn of the truck (53

RR 180). Two men came out of a room and got in the bed of the truck (53 RR

180). She did not know the men (53 RR 180).


      They left the motel and returned to her mother’s apartment (53 RR 183).

Once at the apartment, everyone went inside (53 RR 184). The two men stayed

downstairs and her mother and Petetan went upstairs (53 RR 184). While upstairs,

she saw Petetan try to kiss her mother (53 RR 185). Petetan told A. W. to go to her

own bedroom and leave them alone (53 RR 186).


      Everyone went downstairs and her mother was washing dishes (53 RR 187).

The men were outside on a patio smoking cigarettes (53 RR 187). When they

came back into to the apartment, one of the men put a pizza in the microwave oven

(53 RR 188).



                                       - 28 -
      When her mother tried to open the front door, Petetan ran toward the door,

shut it, and pushed her mother into a wall (53 RR 190). Petetan told her mother to

stand on the stairs, that it was “time for her dust away,” and then he shot her three

times (53 RR 191). Her mother fell to the floor and “flopped around like a fish”

(53 RR 192).


      The younger of two other men in the apartment grabbed her and took her out

the back door of the apartment (53 RR 192). He told her that everything would be

okay (53 RR 193). When they briefly went back into the apartment, she saw

Petetan grabbing all of the cellphones in the apartment (53 RR 193).


      All four of them then got in Petetan’s white Suburban and left (53 RR 195).

At one point, they stopped on the road by some trees and she saw Petetan wrap the

gun used to shoot her mother in a sheet and then throw the sheet over a fence and

into the woods (53 RR 198). After the Suburban was stopped by the police in

Bryan, she told the police what had happened in Waco and her older sister then

picked her up in Bryan and took her to Conroe (53 RR 201). The State rested (53

RR 224).


      On September 23, 2012, Chasity Hamilton was working as a clerk at the Big

Gas Truck Stop in Bryan (54 RR 15). Petetan came into the store and was acting



                                        - 29 -
in a nervous manner (54 RR 18). She obtained a description of his vehicle as well

as the license plate number and called the police after he left the store (54 RR 19).


      Ricki Elliot met Petetan when he was living with Kimberly in an apartment

on Purvis Street him Waco (54 RR 22). Her apartment was next door and she

never heard Petetan and Kimberly arguing in their apartment (54 RR 23).


      Petetan testified his relationship started with Kimberly while he was a

prisoner serving a 20 year sentence at the Ellis Unit of the TDCJ-ID (54 RR 31).

They corresponded with one another and she would visit him in prison with her

daughter, A. W. (54 RR 35). They eventually decided to marry and were married

by proxy 18 months before he was paroled from prison (54 RR 37-38).


      He was in prison for five convictions, three aggravated assaults and two

attempted murders (54 RR 84). He served 19 years and 8 months of a 20 year

sentence before he was released on parole (54 RR 84).


      After being released on parole, he lived with Kimberly and A. W. in an

apartment on Purvis Street in Waco (54 RR 40). He never threatened to kill his

wife while living on Purvis Street (54 RR 43). They eventually moved to an

apartment at The Landing in Waco because they were having problems with the

neighbors on Purvis Street (54 RR 44).



                                         - 30 -
      He denied assaulting Kimberly in Port Arthur (54 RR 46). Rather, after she

disapproved of him going to a recording studio, she slapped him, and then cut him

on the chest with a knife (54 RR 49-50). He reported her assault of him to the

police (54 RR 50).


      On the day of Kimberly’s death, Petetan came to Waco from Port Arthur to

pick up some property and return some money to Kimberly (54 RR 52). Miller

and Mouton came with him because he did not know the way from Port Arthur to

Waco (54 RR 52). Once they arrived, he rented a motel room for Miller and

Mouton (54 RR 55).


      Petetan drove to Kimberly’s apartment and she let him come inside (54 RR

57). He denied crouching down behind a man and rushing into her apartment

when the door was opened (54 RR 57). He denied having a gun in the apartment

(54 RR 123). He, Kimberly, and A. W., drove to the motel to pick up Miller and

Mouton (54 RR 60). Before they went back to Kimberly’s apartment, they stopped

for Kimberly to buy some marijuana (54 RR 63).


      Once they returned to Kimberly’s apartment, Pertetan and Kimberly went

upstairs and Mouton and Miller remained downstairs (54 RR 63). Petetan did not

have a gun, but Miller had brought a gun from Port Arthur for protection because

this was his first trip to Waco (54 RR 63).

                                        - 31 -
      Eventually, Petetan and Kimberly went downstairs (54 RR 65). She became

upset when she saw Miller eating her food (54 RR 66). Kimberly and Miller began

to argue (54 RR 68). While Miller and Kimberly were near the front door, Petetan

heard Miller say “fuck this bitch” and then saw Miller shoot Kimberly (54 RR 71).

When Petetan tried to call 911, Miller pointed the gun at him and took his phone

(54 RR 73).


      The four of them left with Miller driving and A. W. pleading with Petetan

not to let Miller hurt her (54 RR 73). Petetan only got into the vehicle to protect A.

W. from Miller (54 RR 144). Miller wanted to throw A. W. out of the vehicle

while traveling down the highway or take her to Houston and kill her (54 RR 76).

When they stopped at a truck stop in Bryan, Petetan told the clerk that his daughter

was in the vehicle, she had been kidnapped, and his wife had been shot in Waco

(54 RR 77).


      Eventually, Petetan’s vehicle was stopped because of the information he

gave to the clerk at the truck stop (54 RR 78). When an officer approached the

vehicle, Petetan told her that Miller had kidnapped his daughter and shot his wife

(54 RR 79). When he was interrogated at the police station, Petetan repeated that

Miller had kidnapped his daughter and shot his wife (54 RR 80). The defense

rested (54 RR 156)


                                        - 32 -
      In rebuttal, the State called Michael Tovar who was an inmate at the

McLennan County Jail with Petetan (54 RR 158). In jail, Petetan referred to

Kimberly as “that bitch” (54 RR 162). Petetan told Tovar that he shot Kimberly

“boom-boom-boom” (54 RR 166). Petetan said he was willing to talk about the

murder because the State would be unable to charge him due to his “mental state”

(54 RR 168).


      The State rested on rebuttal and both sides closed (54 RR 173). No

objections were voiced to the court’s charge and it was read to the jury (54 RR

174, 176). Argument was presented (54 RR 188, 197, and 215). The jury found

Petetan guilty of capital murder as charged in the indictment (54 RR 224).


                               C. Punishment Phase


      Ramona Pitre is a public school teacher in Port Arthur (55 RR 21). In 1989,

Petetan was in her in-school suspension program (55 RR 26). He was angry,

resistant, and disruptive in class (55 RR 27). On May 24, 1989, Petetan threw a

lunch tray full of food at her when she tried to make him sit in the correct seat (55

RR 29). She does not believe Petetan is mentally intellectually disabled (55 RR

31). She believed he cannot follow rules and misbehaves (55 RR 31). In twenty

five years of teaching, she has never had a student with intellectual disability,

mental problems, or mental illness in one of her classes (55 RR 32).

                                        - 33 -
      Edward Cockrell is with the Jefferson County Juvenile Probation

Department (55 RR 36). In 1990, Petetan was placed in intensive supervision

juvenile probation for assaulting Pitre and the offense of criminal mischief against

another person (55 RR 41). Petetan did not comply with the terms of probation

and was eventually committed to the Brownwood State School (55 RR 49).

Petetan returned to Port Arthur on juvenile parole and continued engaging in

criminal conduct (55 RR 50).


      Eventually, it was decided to pursue certification for prosecution as an adult

after Petetan shot Fredrick Nico with a gun in March of 1992 (55 RR 50, 51, and

55). Cockrell’s certification analysis was admitted into evidence (55 RR 53, 62

RR SX 133). When Petetan was 16 years of age, an IQ test administered yielded a

score of 64 on a child’s test and 74 on an adult test (55 RR 65, 62 RR SX 133). A

doctor described Petetan as mildly intellectually disabled in connection with

testing conducted relative to the certification proceeding (55 RR 66). Eventually,

Cockrell recommended Petetan be certified and tried as an adult for various

offenses he committed while under 17 years of age (55 RR 72). He was certified

to stand trial as an adult (55 RR 82).


      Records from the former Texas Youth Commission regarding Petetan were

admitted into evidence (55 RR 87, 62 RR SX 128). Those records reflect an IQ


                                         - 34 -
score of 61 for Petetan when he was admitted to TYC at the age of 15 in 1991 (62

RR SX 128).


        The juvenile certification proceedings related to Petetan were admitted into

evidence and published to the jury (55 RR 82, 62 RR SX 130). The exhibit reflects

Petetan’s date of birth as February 7, 1976 (62 RR SX 130).


        Leonard Cucolo testified that Petetan was received by the Brownwood State

School in 1991 after his juvenile probation for burglary was revoked (55 RR 84,

87). He was at the Brownwood School for four months before returning to Port

Arthur on juvenile parole (55 RR 93). While at the Brownwood School, Petetan

was diagnosed as mildly intellectually disabled (55 RR 103).


        Port Arthur Police Department Officer Brian Broussard responded to a

shooting report on March 21, 1992 (55 RR 107-108). He spoke with the victim,

Fredrick Nico, who told him that Petetan had shot him with a gun (55 RR 110).

Petetan shot Nico twice, and then tried to shoot him in the head, but the gun

misfired (55 RR 111-112). Nico related the shooting was unprovoked (55 RR

112).


        Petetan was arrested for the shooting of Nico (55 RR 113). When he was 16

years of age, Petetan was certified to stand trial as an adult and received a 20 year

sentence for the attempted murder of Nico (55 RR 115).
                                        - 35 -
      On March 21, 1992, Fredrick Nico, was at Petetan’s house in Port Arthur

drinking beer in the backyard (55 RR 124). Nico was carrying a pistol for

protection (55 RR 122). When Nico put the pistol on a table, Petetan grabbed it

and ran to an alley (55 RR 126). When Petetan returned from the alley, he pointed

the pistol at Nico and shot him twice (55 RR 128). Nico denied that Petetan tried

to shoot him a third time in the head (55 RR 129).


      Nico later learned that Petetan was prosecuted for his attempted murder (55

RR 131). Nico has known Petetan for 25 years and does not consider him to be

intellectually disabled (55 RR 134).


      Judge Vi McGinnis previously served as a Justice of the Peace in Jefferson

County (55 RR 150). His duties included giving warnings to arrested juveniles and

reviewing any written statements given by juveniles to police before they were

signed by the juvenile (55 RR 153). Following his arrest for the attempted murder

of Nico, McGinnis gave Petetan his statutory warnings (55 RR 156). McGinnis

also reviewed the statement Petetan provided to the police concerning the shooting

of Nico (55 RR 157). The statement reflected Petetan shot Nico because Nico had

previously beat him, Nico had laughed at Petetan’s mother, and Nico laughed

when he learned that Petetan’s friend “Pee Wee” had been killed (55 RR 159).




                                       - 36 -
        Officer Tony Barker, of the Beaumont Police Department, responded to a

call from the Jefferson County Juvenile Detention Center in April of 1992 (55 RR

165). He spoke with a teacher at the Center who reported that Petetan had

physically assaulted her (55 RR 166). Barker arrested Petetan for assaulting the

teacher (55 RR 168).


        Raffiel Dugas testified that when he was 15 or 16 year old, he fought with

Petetan inside a club in Port Arthur (55 RR 173, 177). Petetan hit Dugas with a

chair rendering Dugas unconscious (55 RR 179). Petetan then proceeded to beat

Dugas with the chair while he was unconscious on the floor (55 RR 180). Dugas

sustained multiple injuries and was in the hospital for a week (55 RR 180-182).

He later learned that Petetan went to prison for assaulting him with a chair (55 RR

180).


        Max Wolgast, of the Port Arthur Police Department, responded to a shooting

on January 14, 1993 (55 RR 186). Victor Loeb was shot in a drive-by shooting

while walking in his neighborhood (55 RR 187). He sustained three gunshot

wounds (55 RR 188). Petetan was arrested for the shooting three days later and the

handgun used in the shooting was found in his mother’s home (55 RR 189).

Petetan was sent to prison for shooting Loeb (55 RR 190).




                                        - 37 -
      Kari Biddix previously lived in Port Arthur (55 RR 192). She recalled an

incident when she heard gunshots outside her home and saw an older man limping

and grabbing his side on the sidewalk (55 RR 193). She approached the man and

he said “I’ve been shot” (55 RR 196). After learning the man’s name, she and her

sister drove to Loeb’s house and told his wife that her husband had been shot (55

RR 197).


      On June 28, 1992, Corey Mendoza was a detention officer in the Jefferson

County Jail (55 RR 202). He responded to a fire set in a cell occupied by Petetan

and another inmate (55 RR 203). After Mendoza extinguished the fire, Petetan

said he would start another fire if he was not moved to a different cell (55 RR 204).

Mendoza later received a report that Petetan was throwing water on other inmates

as they walked by his cell (55 RR 206). Jail records reflect Petetan’s date of birth

as February 7, 1976 (55 RR 203).


      On February 9, 1993, while working as a jailer in the Jefferson County Jail,

Mark Beadle responded to an inmate who had been burned when Petetan threw hot

water on him (55 RR 210-211). His records reflect Petetan assaulted another

inmate in jail on May 28, 1993 (55 RR 213).


      The pen packets from Petetan’s five prior felony convictions were admitted

into evidence (55 RR 217, 62 RR SX 131). The packets reflect that on July 7,

                                        - 38 -
1993, he pleded guilty to five felony offenses committed while he was a 16 year

old juvenile (62 RR SX 131). Those offenses were two attempted murders and

three aggravated assaults (62 RR SX 131). Pursuant to a plea bargain, he received

two 20 year sentences and three 10 year sentences to be served concurrently (62

RR SX 131). He was received at the Department of Corrections when he was 17

years of age on August 27, 1993 (62 RR SX 131). Prison records reflected his IQ

testing was scored at 69 with a notation he was expelled following the eighth grade

(62 RR SX 130).


      Joseph Blanton was previously employed as a prison guard at the Ferguson

Unit of TDCJ (55 RR 230). On December 5, 1993, Petetan was involved in a

fracas in the dayroom with several other offenders (55 RR 233). He was

eventually found guilty in an administrative hearing of assaulting four other

inmates (55 RR 240).


      Darrel Musgrove was previously employed as a prison guard at the Ferguson

Unit of TDCJ (55 RR 248). On February 24, 1994, Petetan assaulted him by

striking him in the chest with his elbow (55 RR 250).


      Gilbert Mercado is a former prison guard from the McConnell Unit of TDCJ

(55 RR 256). On April 5, 1995, Mercado saw Petetan in a fight with another

inmate and repeatedly strike the other inmate with his fist (55 RR 259).

                                       - 39 -
       Billy Jordan previously worked at the Ferguson Unit of TDCJ as a prison

guard (56 RR 6). On July 24, 1994, he responded to screams from a cell occupied

by Petetan and Christopher Robinson (56 RR 7). Robinson was covered in blood

and had injuries to his face and head (56 RR 9). Robinson was holding a sock

which contained a padlock (56 RR 9). Petetan had no injuries (56 RR 9). Petetan

was administratively charged with attacking another inmate with a weapon (56 RR

11).


       James Simmons previously worked as a prison guard at the Clements Unit of

TDCJ (56 RR 19). On June 3, 1995, Petetan approached Simmons and asked to be

his boyfriend (56 RR 19). Petetan told Simmons that he loved him and wanted to

live with him when he was released from prison (56 RR 20). Petetan was

administratively charged with soliciting an officer (56 RR 20).


       Kellie Dossett previously worked as a prison guard at the McConnell Unit of

TDCJ (56 RR 26). On August 25, 1995, Petetan yelled at Dossett and threw a

liquid on him because Petetan was not allowed to participate in recreation (56 RR

27, 30). Petetan was administratively charged with assaulting an officer (56 RR

30).


       On February 25, 1996, prison guard Jody Munn searched Petetan’s cell at

the Coffield Unit for contraband (56 RR 34-35). When Petetan returned to his cell,

                                       - 40 -
he found Munn inside his cell and he threated to “kick her ass” (56 RR 37).

Petetan was administratively charged with threatening an officer (56 RR 38).


       Morris Lee was Petetan’s principal in elementary school (56 RR 44).

Petetan was frequently sent to Lee’s office because he did not follow school rules

(56 RR 45). According to Lee, Petetan had no mental disabilities other than being

hard headed (56 RR 51).


       Speedy Bryant has served a sentence for aggravated robbery since 1993 (56

RR 63). On February 28, 1994, he and Petetan were cellmates at the Ferguson

Unit of TDCJ (56 RR 64). Petetan sexually assaulted him in their cell after they

had been cellmates for a week (56 RR 65). When Bryant reported the sexual

assault to a guard, Petetan and his friends jumped on Bryant and beat him (56 RR

67).


       In January of 2004, Concepcion Rosas and Petetan were cellmates at the

Ellis Unit of TDCJ (56 RR 74). One afternoon after they had been cellmates for

two weeks, Petetan sexually assaulted Rosas in their cell (56 RR 77).


       Daniel Gunter was incarcerated at the McConnell Unit of TDCJ in 1995 (56

RR 83). Gunter overheard Petetan tell his cellmate that he wanted a sexual

relationship with Gunter (56 RR 87). One afternoon, Gunter was knocked

unconscious in his cell (56 RR 92). When he regained consciousness, he was in
                                       - 41 -
Petetan’s cell with his pants pulled down and Petetan sexually assaulting him while

holding a shank to Gunter’s throat (56 RR 92-94). Gunter reported the incident to

a guard (56 RR 96). The State rested on punishment (56 RR 99).


        Ophelia Ortiz is Petetan’s mother (56 RR 107). He is the youngest of her

children (56 RR 109). Petetan’s father was both intellectually disabled and crazy

(56 RR 109). While a child, Petetan was physically abused by his father (56 RR

129).


        As an infant, Petetan would constantly cry and pitch a fit (56 RR 112-113).

He would break his baby bottles (56 RR 112). His temper tantrums started as a

baby and have never subsided (56 RR 121).


        Petetan has wet the bed since childhood and still does so (56 RR 114). He

was slow as a child and his mother had to repeatedly tell him to bathe (56 RR 115).

He was unable to take care of himself as a child and unable to tie his shoes (56 RR

116). As a child, he was unable to dress himself or brush his teeth (56 RR 116).

He did not follow her directions (56 RR 118).


        She had to walk with him to school because if he went by himself, he would

get lost or go the wrong way (56 RR 117). He did not do his school homework (56

RR 118). She could never send him to the store because he could not remember



                                        - 42 -
what he was to purchase (56 RR 171). He never learned to make change when

purchasing an item (56 RR 171).


      After his best childhood friend, “Pee Wee,” died, his nervousness and

depression increased (56 RR 120). Petetan had no interest in television or games

as a child (56 RR 122). He would simply sit on the floor or go walking by himself

without first telling his mother where he was going (56 RR 122). He was

committed to a psychiatric hospital at age 15 before he went to the Brownwood

State School (56 RR 128).


      Petetan was never able to get a driver license because he was unable to pass

the written portion of the test (56 RR 123). After he left prison, he could not take

care of himself (56 RR 124). Her daughter would clean and wash his clothes

because he could not operate a washing machine (56 RR 124). He was unable to

figure out how to operate a cell phone (56 RR 125). He never learned to wash

dishes (56 RR 127).


      Sabrina Mouton, Petetan’s older sister, testified that up to age two, Petetan

would cry constantly, wet himself, and not pay attention (56 RR 182). He didn’t

walk until three years old or talk until four or five years old (56 RR 184).


      Growing up, Petetan would not play outside with his sister (56 RR 185). He

wandered around the neighborhood aimlessly by himself (56 RR 185). He never
                                        - 43 -
watched television or played games (56 RR 186). He was overweight as a child

and teased by others (56 RR 187). He never learned to ride a bicycle (56 RR 188).


      When Petetan came home from prison, she tried to teach him how to use a

cell phone and he could not learn (56 RR 193). He never learned to count money

(56 RR 198). His handwriting is poor (56 RR 201). At the apartment he obtained

while on parole, Petetan did not know how to cook for himself or clean up after

himself (56 RR 197).


      Cathy Gauthier, Petetan’s aunt from Lake Charles, testified that Petetan

lived with her for a year when he was 13 or 14 years old (56 RR 241, 244). He

was real quiet and slower than her children (56 RR 245-246). Petetan did not

attend school for the year he spent with Gauthier (56 RR 251).


      Petetan’s cousin, Caston Gauthier, visited Petetan while he was in prison (56

RR 26). When Petetan told Gauthier that he wanted to be a bondsman or rapper

when released from prison, Gauthier thought Petetan did not have the intellectual

ability to engage in such professions (56 RR 263-264). He never thought Petetan

was intellectually disabled (56 RR 265).


      Kimberly Jackson is Petetan’s cousin and the daughter of Cathy Gauthier

(56 RR 272). She and Petetan are the same age (56 RR 272). She remembered



                                      - 44 -
that when Petetan was living with her family, he was not on her level “mind-wise”

and intellectually slower than her (56 RR 272, 274).


        Thomas Kemper is Petetan’s uncle (56 RR 276). Petetan has been

intellectually slow since birth (56 RR 279). He was in special education classes in

school (56 RR 280). As a child, Petetan refused to bathe or groom himself (56 RR

281).


        Dr. Ray Coxe is a psychologist from Beaumont (56 RR 313). In 1992, he

was performing psychological examinations for the court system in Jefferson

County in connection with whether juveniles should be certified as adults for

purposes of prosecution (56 RR 315). He examined Petetan at the request of the

juvenile probation department in connection with a pending attempted murder

charge and whether Petetan should be certified as an adult (56 RR 316-317).

Petetan was 16 years of age at the time of the examination (56 RR 316).


        In view of his age, Coxe administered IQ tests for both children and adults to

Petetan (56 RR 318). He explained the child test goes up to age 17 while the adult

test goes down to age 16 (56 RR 318). Petetan’s full scale IQ on the child version

was 64 which places him in the lower three percent (56 RR 322). Petetan’s full

scale IQ on the adult test was 74 which places him in the lower four percent (56



                                         - 45 -
RR 323). Due to testing differences between the two tests, it is not unusual for the

adult test to be 10 points higher than the child test (56 RR 323).


      Coxe also administered achievement tests to Petetan (56 RR 354). The tests

are scored like an IQ test (56 RR 354). Petetan scored 70 on reading, 61 on

spelling, and 46 on mathematics (56 RR 354). Based on testing and evaluation in

1992, Coxe believed Petetan to be mildly intellectually disabled (56 RR 357).


      Dr. Harold Scott, a psychiatrist, was previously a consultant for the Texas

Youth Commission at the Brownwood State School (57 RR 40. 43). He examined

Petetan at the school in 1991 when Petetan was 15 years old (57 RR 45). Scott

diagnosed Petetan with a conduct disorder and mild mental disability (57 RR 53).

Scott explained that mild mental disability meant an IQ score between 55 and 69

(57 RR 55). The diagnosis was based in part on previous IQ testing of Petetan (57

RR 56).


      Edmond Stewart is a former professional boxer (57 RR 92). For the last five

years, he has been a pastor at a jail ministry in the McLennan County Jail (57 RR

95). Stewart met with Petetan in jail and found it hard to have a conversation with

him because his mind tends to “wander off” (57 RR 98).


      Ellis Craig is a psychologist with 47 years of experience working in the area

of adaptive behavior assessments (58 RR 7). He performed an adaptive behavior
                                        - 46 -
assessment of Petetan by administering a test, reviewing records, and speaking

with Petetan’s relatives (58 RR 18, 34, and 38). When speaking with Petetan’s

relatives, Craig sought to determine adaptive behavior before the time Petetan went

to prison at 17 years of age (58 RR 67). Most of the answers provided to his

questions were examples of adaptive deficits from the time Petetan was a youth of

14 or 15 years old and had not yet gone to prison (58 RR 68). Craig believed

Petetan was forthcoming with him during the assessment and did not intentionally

attempt to underestimate his abilities (58 RR 39).


      The information gathered from Petetan’s relatives was graded for adaptive

disabilities (58 RR 40). The information from Petetan’s mother placed Petetan so

low that Craig did not consider it reliable (58 RR 40). Petetan’s brother and sister

ranked his social skills at the best, conceptual skills second, and practical skills at

the lowest (58 RR 41).


      The scoring of adaptive assessment is similar to scoring on an IQ test with

the norm in the 85 to 115 range (58 RR 42). The results of the assessment done by

Craig were based on input from Petetan and his relatives and the scores were as

follows: brother 53; uncle and sister 47; Petetan 42; and Petetan’s mother 40.


      Craig concluded Petetan’s adaptive limitations far outweigh his limited skills

(58 RR 47). Craig had to rely on retrospective assessments because there was no

                                         - 47 -
measure from when Petetan was a child other than one report noting his adaptive

limitations without concurrent testing (58 RR 48). Based on his adaptive behavior

deficits and the IQ scores he has seen, Craig considers Petetan to be moderately

intellectually disabled which is more severe than mildly intellectually disabled

(58 RR 48).


      Dr. Kevin Correia, a psychologist, examined Petetan on August 8, 2012, in

connection with an application for Social Security disability benefits (58 RR 104,

63 RR DX 5). Correia administered an IQ test resulting in a full scale score of 55

(58 RR 104, 63 RR DX 5). Correia diagnosed Petetan as mildly intellectually

disabled in view of his IQ score and adaptive behavior deficits (58 RR 104, 63 RR

DX 5).


      Joan Mayfield is a neuropsychologist (58 RR 105). While Petetan was in

the McLennan County Jail awaiting trial, she administered 16 different tests to him

(58 RR 124). The tests covered areas such as IQ, intellectual ability, attention,

executive functioning, academic achievement, memory, learning, language, visual

spatial, and motor coordination (58 RR 117). She did not perform any adaptive

behavior assessment testing and relied on the testing by Dr. Craig (58 RR 231).


      Mayfield explained that one of the components of intellectual disability is

sub-average intellectual functioning as shown by a full scale IQ score of 70 or

                                        - 48 -
below, namely, two standard deviations below the mean (58 RR 129). She also

considered and looked for evidence of an onset of the condition before the age of

18 (58 RR 132).


      Mayfield was provided access to various records including Petetan’s school

records and previous psychological testing (58 RR 133). She noted Petetan was

required to repeat both the third and sixth grades in school (58 RR 133). He was

socially promoted to the fourth grade rather than being required to repeat the third

grade three times (58 RR 133). He ultimately dropped out of school in the ninth

grade (58 RR 220).


      Her testing of Petetan revealed global delays in intellectual ability,

academic, executive functioning, problem solving, memory, language, motor

skills, and visual perception (58 RR 185). He suffers from sub-average intellectual

functioning with an onset before the age of 18 (58 RR 185-186). Her testing

revealed a full scale IQ score of 52 (58 RR 190). The IQ testing results were

consistent with other IQ testing results of Petetan she was provided (58 RR 244).


      She explained that at the time Coxe administered the child and adult

versions of an IQ test to Petetan, there was a problem in correlating the results and

those scoring on the lower end of child’s IQ test typically scored 10 to 15 points

better on the adult version (58 RR 228). When the tests were revised, the norms

                                        - 49 -
for the tests were adjusted and there is now good reliability between the two tests

so that the scores are now similar (58 RR 228). She believed Coxe found the

child’s score of 64 to be more reliable than the adult score of 74 and that is the

reason he diagnosed Petetan as mildly intellectually disabled (58 RR 228). The

defense rested on punishment (58 RR 248).


      In rebuttal, the State called Meshia Hicks (59 RR 34). Hicks was a clerk at

the C & E Motel in Waco on September 23, 2012 (59 RR 37). Petetan saw her at

the motel and asked for a ride to The Landing apartment complex (59 RR 40).

With Petetan in her car, they drove around the parking lot of the complex (59 RR

41). Petetan told her he was looking for a drug dealer driving a black car (59 RR

41). No such car was observed and they returned to the motel (59 RR 42).


      Dorothy Stamps is a retired public school teacher from Port Arthur (59 RR

45). Petetan was in her first grade class (59 RR 50). She did not believe him to be

intellectually disabled (59 RR 50). Rather, he was a coward and tended to run

away from trouble (59 RR 53).


      Eddie Fowler was the principal of the middle school attended by Petetan (59

RR 59). He recalled that he caught Petetan smoking in the bathroom and that

Petetan shot another student off campus (59 RR 62). Petetan was placed in special



                                        - 50 -
education classes because he was a discipline problem (59 RR 63). Otherwise, he

was an average student and not intellectually disabled (59 RR 63-64).


      Petetan’s school records were admitted into evidence (59 RR 69, 63 RR DX

10). Those records reflect he failed two grades and was socially promoted in

another grade (59 RR 66). He withdrew from school in the eighth grade (63 RR

DX 10).


      Mattie Howe was Petetan’s parole officer in Beaumont from May to

September of 2012 (59 RR 70-71). He was required to participate in anger

management classes as part of his parole (59 RR 74). Howe does not believe

Petetan is intellectually disabled (59 RR 75).


      Travis Turner works for the Classification Department of TDCJ (59 RR 80).

When Petetan was initially received at TDCJ in 1993, he scored at 69 on an IQ test

(59 RR 85). He took an adaptive behavior screening test, but was never assigned

to a prison unit for intellectually disabled offenders (59 RR 85-86).


      Turner described the classification system for inmates and security measures

in place for each group of inmates (59 RR 103). He explained that the Crips and

Bloods are not part of Security Threat Groups which are automatically housed in

administrative segregation (59 RR 104).



                                        - 51 -
      While Warren Kroll was working as a prison guard at the Ferguson Unit of

TDCJ in 1994, he searched Petetan’s cell (59 RR 80. 111). He found a sharpened

piece of steel and a padlock inside a sock (59 RR 111). Petetan was

administratively charged with possessing a weapon (59 RR 114).


      While Robert Blanks was working as a prison guard at the Estelle Unit of

TDCJ in 1998, he saw Petetan and another inmate stab two other inmates while in

the dining hall (59 RR 124). Petetan was administratively charged with assaulting

another inmate with a weapon (59 RR 126).


      Azikiw Daniels previously served a prison sentence at the Estelle Unit of

TDCJ (59 RR 131). When he heard that Petetan wanted to fight him, Daniels

struck Petetan on the head with a pipe two or three times (59 RR 138). Two days

later, Petetan stabbed Daniels while he was working in the serving line of the

kitchen (59 RR 143). Daniels knew that Petetan was a member of the Crips street

gang (59 RR 144).


      Jay Hart is in charge of the TDCJ Security Threat Groups Office (59 RR

152). He explained TDCJ recognizes eight different security threat groups

including the Crips (59 RR 154). Unlike some other threat groups, Crips are not

automatically housed in administrative segregation and may have jobs in the

general inmate population (59 RR 159).

                                       - 52 -
      Hart observed various tattoos on Petetan and said they were indicative of

membership in the Crips (59 RR 161, 165). Petetan identified himself as a Crips

member to prison authorities in 1999 (59 RR 172). Hart had no record of Petetan

ever attempting to disassociate from the Crips or renounce his membership in the

organization (59 RR 182).


      Mubarak Ali was in the McLennan County Jail on a drug charge while

Petetan was awaiting his capital murder trial in March of 2014 (59 RR 199).

Petetan told Ali that if he acted like he was mentally sick, he would not receive the

death penalty (59 RR 203). When Ali asked Petetan to make a telephone call for

him, Petetan declined by explaining his calls were recorded and he was telling the

court he was mentally sick (59 RR 205). Ali admitted he told the State of his

conversations with Petetan at the urging of his lawyer (59 RR 208). Ali’s drug

charge remained pending at the time of Petetan’s trial (59 RR 200). The State

rested on rebuttal and both sides closed (59 RR 209).


      The trial court sustained one of Petetan’s objections to the charge and the

remaining objections were overruled (59 RR 212, 4 CR 1313). The charge was

read to the jury (60 RR 5). Argument was presented (60 RR 15, 24, and 50). The

jury returned answers to the four special issues submitted (60 RR 67-68, 4 CR




                                        - 53 -
1336-1339). Based on the jury’s answers to the special issues, punishment was

assessed by the trial court at death (60 RR 71).


                            Summary of the Argument


      Twenty-nine points of error are presented on direct appeal. The first two

complain of the exclusion of evidence offered by Petetan during the competency

trial. The trial court refused to allow former counsel to testify relative to Petetan’s

competency to stand trial upon erroneously allowing the State to invoke Petetan’s

attorney-client privilege to the admissibility of the evidence. In the second

instance, after the State suggested Petetan was malingering in an effort to secure a

finding of incompetency, the trial court refused to admit testimony as to the fate of

those who secure an incompetency determination through malingering.


      Three points of error are presented urging the trial court erred by denying

defense challenges for cause to prospective jurors during voir dire examination

relative to the trial on the merits. One venireman had a bias in favor of the death

penalty and a bias in favor of the credibility of law enforcement officers. The

second venireman had a bias in favor of the death penalty. Petetan used

peremptory strikes on both, was denied additional strikes, and identified an

objectionable juror he would have stricken if afforded additional strikes.



                                         - 54 -
      Petetan challenges the sufficiency of the evidence to prove the underlying

felonies which elevate the murder to the offense of capital murder. Even viewed in

the light most favorable to the verdict, no rational juror could have found the

murder occurred in the course of committing or attempting to commit burglary,

kidnapping, or retaliation.


      Two points of error assert the trial court erred by admitting extraneous

offenses during the guilt or innocence phase of trial. Those extraneous offenses

were not relevant to the charged capital murder. The offenses improperly

portrayed Petetan before the jury as a violent drug dealer.


      A point complains the trial court undermined Petetan’s right to conflict free

counsel by admitting evidence from a former client of defense counsel during the

punishment phase of trial. Trial counsel was placed in an impossible position of

effectively representing Petetan while not revealing attorney-client confidences in

cross-examination of his former client.


      Petetan complains the jury’s rejection of his claim of intellectual disability is

manifestly unjust and against the great weight and preponderance of the evidence.

Consequently he is not eligible for the death penalty. Overwhelming evidence of

intellectual disability was presented to the jury. Petetan seeks for this Court to

reconsider its flawed Briseno approach and adopt a clinical standards approach to

                                          - 55 -
the issue as embraced by the Supreme Court in Atkins and Hall. However, under

either standard, he has shown himself not to be eligible for a sentence of death.


      In fourteen points of error, Petetan maintains the trial court abused its

discretion by denying his objections to the punishment phase jury charge. Petetan

acknowledges the challenges have been previously rejected by this Court. They

are presented for preservation of the errors and to avoid waiver.


      A point of error complains the death penalty violates the Eighth Amendment

prohibition on cruel and unusual punishment. The point is based on Justice

Breyer’s recent dissenting opinion in Glossip v. Gross.


      Petetan argues he was denied equal protection of the law and due course of

law due to the absence of a unified statutory procedure for pretrial litigation of an

Atkins assertion of intellectual disability. The point is based on this Court’s recent

opinion in In re Allen recognizing disparity through the state in obtaining such a

pretrial determination from a trial court.


      The final two points of error seek modification of erroneous recitations

within the judgment. Those errors concern the degree of the offense and

assessment of punishment by the jury. The Court has the necessary information

and authority to reform the judgment.



                                         - 56 -
         Petetan prays this Court will reverse the judgment of conviction and reform

to an acquittal, remand for a new trial, remand for a new punishment hearing,

reform the sentence to a life sentence, remand for a new competency hearing,

modify the judgment, or enter any other relief appropriate under the law and the

facts.


                                  Point of Error One


The trial court abused its discretion by allowing the State to invoke Petetan’s

attorney-client privilege as to testimony he sought to offer from his former

attorney on the issue of competency to stand trial (13 RR 57).


         During the competency trial, Petetan called his former attorney, Stan

Schwieger (13 RR 43). Schwieger was initially appointed to represent Petetan

when he was charged with the offense of murdering Kimberly (13 RR 45). He met

with Petetan shortly after his appointment (13 RR 45). He met with Petetan a

second time when the charge was upgraded to capital murder (13 RR 45). At that

second meeting, he explained to Petetan that new counsel would be appointed

because Schwieger was not on the list of counsel eligible for appointment on

capital murder cases (13 RR 47).


         The State objected to any effort to present privileged information from

Schwieger and the objection was sustained (13 RR 47). Petetan clarified that he
                                         - 57 -
was simply attempting to determine whether Schwieger was able to communicate

with Petetan (13 RR 47). The State’s objection was once again sustained (13 RR

48). Outside the jury, Petetan explained he was not seeking to offer confidential

communications, he was simply attempting to show that Schwieger had difficulty

communicating with Petetan (13 RR 50). The State again asserted such testimony,

even going to a difficulty in communication, would violate the attorney-client

privilege (13 RR 50).


      Outside the presence of the jury, Schwieger testified that Petetan could not

understand the reason he was required to withdraw from representation (13 RR

52). When the State again objected, Petetan asserted the State had no standing to

assert an objection based on the privilege and the testimony sought to be offered

was not privileged (13 RR 53). The State responded that even if it had no right to

assert the privilege, it “had a duty to protect it” (13 RR 53). Petetan claimed the

evidence concerning difficulty in communicating with counsel went to the “heart

of the reason” they were having a competency trial (13 RR 56). The trial court

sustained the State’s objection and excluded the evidence Petetan sought to offer

(13 RR 57). When the jury returned, the trial court instructed it to disregard the

entirety of Schwieger’s testimony (13 RR 61).




                                        - 58 -
      A trial court's exclusion of evidence is reviewed for an abuse of discretion.

Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002). In determining

whether the trial court abused its discretion, an appellate court should consider

whether the court acted without reference to guiding rules and principles—that is,

whether the court acted arbitrarily or unreasonably. Montgomery v. State, 810

S.W.2d 372, 380 (Tex. Crim. App. 1991). A trial court’s ruling must be upheld so

long as it is “within the zone of reasonable disagreement.” Wheeler v. State, 67

S.W.3d 879, 888 (Tex. Crim. App. 2002).


      The State has no authority to seek the exclusion of evidence on the basis its

admission would violate a defendant’s attorney-client privilege. See TEX. R.

EVID. 503(c) (specifying who may claim the privilege).3 Exclusion of evidence

upon the State wrongly claiming it violates the attorney client privilege is error.

Smith v. State, 770 S.W.2d 70, 71 (Tex. App. – Texarkana 1989, no pet.).


      Besides the lack of standing to voice an objection, the State’s objection was

misguided. The attorney client-privilege is not violated when former counsel


3
 (c) Who May Claim. The privilege may be claimed by:
 (1) the client;
 (2) the client's guardian or conservator;
 (3) a deceased client's personal representative; or
 (4) the successor, trustee, or similar representative of a corporation, association,
or other organization or entity--whether or not in existence.

                                        - 59 -
testifies relative to competency without revealing the substance of client

communication. Manning v. State, 766 S.W.2d 551, 557 (Tex. App. – Dallas

1989, aff’d, 773 S.W.2d 568 (Tex. Crim. App. 1989). Nor is such testimony

excludable under TEX. R. EVID. 503(b)(2) on the basis it is a fact which came to

the knowledge of counsel by reason of the attorney-client relationship.4 Manning,

766 S.W.2d 558.


      Here, the trial court erroneously allowed the State to invoke Petetan’s

attorney-client privilege upon excluding the evidence sought to be presented by

former counsel. Moreover, Petetan did not seek to offer confidential

communication, only observations by former counsel concerning Petetan’s

difficulty in communicating with counsel. The evidence was admissible and the

trial court abused its discretion by excluding it.


      Harm in the exclusion of evidence is reviewed as non-constitutional error.

Ray v. State, 178 S.W.3d 833, 836 (Tex. Crim. App. 2005). For non-constitutional

errors, an appellate court may disregard errors that do not affect the defendant’s

substantial rights. TEX. R. APP. P. 44.2(b); Robinson v. State, 236 S.W.3d 260,

269 (Tex. App. -Houston [1st Dist.] 2007, pet. ref d). An error affects a substantial

4
  (2) Special Rule in a Criminal Case. In a criminal case, a client has a privilege
to prevent a lawyer or lawyer's representative from disclosing any other fact that
came to the knowledge of the lawyer or the lawyer's representative by reason of the
attorney-client relationship.
                                       - 60 -
right only when the error had a substantial and injurious effect or influence on the

jury's verdict. Robinson, 236 S.W.3d at 269 (citing King v. State, 953 S.W.2d 266,

271 (Tex. Crim. App. 1997)). In contrast, if the appellate court is fairly assured

that the error did not influence the jury or had but a slight effect, it will conclude

the error was harmless. Ray, 178 S.W.3d at 836.


      In the instant cause, Petetan had the substantial right to present all available

admissible evidence in support of his claim of incompetency to stand trial. Recent

former counsel occupied a unique position with regard to Petetan’s competency to

stand trial in the instant case. Counsel was prevented from testifying to Petetan’s

difficulty in communicating with his lawyer. As stated by trial counsel, such

testimony goes to the heart of the competency inquiry. See TEX. CRIM. PROC.

CODE art. 46B.003(a)(1) (sufficient present ability to consult with the person’s

lawyer with a reasonable degree of rational understanding). Former counsel’s

firsthand knowledge of Petetan’s difficulty in communicating with counsel is

qualitatively different than the opinions expressed by the experts at the competency

trial. It is likewise not comparable to the evidence at the competency trial showing

Petetan is willing to lie to a police officer. The burden of proof in a competency

proceeding is on the defendant to show by a preponderance of the evidence that he

is incompetent. TEX. CRIM. PROC. CODE art. 46B.003(b). After considering the



                                         - 61 -
relatively low burden of proof Petetan was prevented from successfully showing to

the jury, this Court should find the exclusion of the evidence harmful.


      A retrospective competency determination may be conducted consistent with

the requirements of due process in most cases. See Barber v. State, 737 S.W.2d

824, 828 (Tex. Crim. App. 1987) (recognizing a retrospective determination of the

competency of an accused “can be made within the limits of due process

depending upon the quality and quantity of the evidence available”). However,

there are many difficulties inherent in making a retrospective determination of a

defendant's competency to stand trial, including: (1) the passage of time; (2) the

present recollection of expert witnesses who testified at the original hearing; and

(3) the ability of the judge and jury to observe the subject of their inquiry. Id.;

Caballero v. State, 587 S.W.2d 741, 743 (Tex. Crim. App. 1979). Petetan’s

fluctuating mental condition, combined with the mounting passage of time,

suggests that a retrospective competency inquiry is simply not feasible in this case

and a new trial should be ordered. See Greene v. State, 264 S.W.3d 271, 272-73

(Tex. App.—San Antonio 2008, pet. ref'd) (finding remedy of new trial is

appropriate remedy when retrospective competency determination is not feasible).


      In the alternative, Petetan seeks a remand to the trial court for a

determination as to whether a retrospective competency hearing is feasible. See


                                         - 62 -
Turner v. State, 422 S.W.3d 676, 697 (Tex. Crim. App. 2013): George E. Dix &

John M. Schmolesky, 43 Texas Practice: Criminal Practice and Procedure § 31:81,

at 89–90 & n. 10 (3rd ed.2011) (citing, e.g., Torres v. State, 593 S.W.2d 717, 719

(Tex. Crim. App. 1980) (remanding to trial court to decide, inter alia, whether “a

nunc pro tunc determination of appellant's competency is not possible”); Ex parte

McKenzie, 582 S.W.2d 153, 155 (Tex. Crim. App. 1979) (remanding case to the

trial court to “determine if it is possible to conduct a nunc pro tunc competency

hearing and, if it is, to hold such a hearing” under the then-extant competency-to-

stand-trial statute); Ex parte Winfrey, 581 S.W.2d 698, 699 (Tex. Crim. App. 1979)

(holding that the original competency hearing suffered from a flawed jury

instruction, and cause remanded to the trial court for a determination whether, inter

alia, a retrospective competency hearing was feasible).


                                Point of Error Two


The trial court abused its discretion by excluding evidence Petetan sought to

offer concerning the legal fate of those who obtain an incompetency

determination through malingering (13 RR 60).


      During cross-examination of Dr. Seay, the State sought to develop evidence

Petetan was malingering when interacting with Seay. The State asserted a

defendant facing a sentence of death would have a strong motive to lie or

                                       - 63 -
exaggerate during a competency examination (12 RR 103). The State questioned

whether Seay had the ability to determine whether Petetan lied to her during the

examination (12 RR 104). It was noted he had already visited with counsel on

several occasions before Seay saw him (12 RR 104). She relied on Petetan to be

truthful and honest with her (12 RR 105). Seay acknowledged that if Petetan gave

her incorrect or incomplete information, it would impact her opinion of his

competency (12 RR 106). If a defendant was motivated to delay or avoid trial,

Seay acknowledged he might give false information to the examiner (12 RR 111).


      The State’s malingering defense to Petetan’s assertion of incompetency

continued with its examination of Dr. Pittman. The State initially stressed that

Pittman was the court’s independent expert and had not been hired by the State (12

RR 174).5 Pittman felt Petetan was not reliable during his assessment and was not

“giving it his best shot” (12 RR 181, 184). He was especially suspicious when

Petetan was unable to name the Dallas Cowboys as the professional football team

from Dallas (12 RR 181).


      On rebuttal, Petetan called his former attorney, Stan Schwieger, a criminal

defense attorney from Waco (13 RR 43). Outside the presence of the jury, Petetan

asked Schwieger whether he was familiar with the procedures in place at Vernon

5
  The record reflects Pittman was appointed after being recommended by the State
(7 RR 5).
                                      - 64 -
State Hospital for those found incompetent to stand trial through malingering (13

RR 58). In response to the State’s relevancy objection, Petetan urged the

testimony was admissible in response to the State’s claim he was malingering in an

effort to be found incompetent (13 RR 59). Schwieger explained that those found

to have been malingering before a determination of incompetency are deemed

competent by the hospital staff and returned to the originating county for a

competency finding and trial (13 RR 59-60). The trial court sustained the State’s

objection and refused to allow Schwieger to testify as proffered (13 RR 60).


      In argument, the State claimed Petetan devised a plan to avoid both trial and

the death penalty by claiming he was incompetent (13 RR 77). The State

suggested Petetan manipulated Seay during her assessment (13 RR 80). The State

claimed that Petetan lied to Pittman and faked his alleged incompetence (13 RR

82, 84). The prosecutor implored the jurors not to be fooled by Petetan’s game

because a finding of incompetency means “he ain’t going to get tried” (13 RR 82,

84). That, of course, is not factually or legally true.


      Petetan relies on the same standard of review and harm standard as set forth

in the preceding point of error complaining of the exclusion of admissible and

relevant evidence. Here, Petetan had the substantial right to present all available

admissible evidence in support of his claim of incompetence. The State urged its


                                         - 65 -
defense of malingering during cross-examination of Seay, direct examination of

Pittman, and during argument. In response to that defense, Petetan sought to

demonstrate that a finding of incompetency based on malingering would be

short-lived at best and would not mean “he ain’t going to get tried.”


       The burden of proof in a competency proceeding is on the defendant to show

by a preponderance of the evidence that he is incompetent. TEX. CRIM. PROC.

CODE art. 46B.003(b). After considering the relatively low burden of proof

Petetan was prevented from successfully showing to the jury, this Court should

find the exclusion of the evidence harmful. Petetan’s fluctuating mental condition,

combined with the mounting passage of time, suggests that a retrospective

competency inquiry is simply not feasible in this case and a new trial should be

ordered.


                               Point of Error Three


The trial court abused its discretion by denying a defense challenge for cause

to prospective juror Richard Hester who had a bias against a life sentence

without possibility of parole and a bias in favor of a sentence of death (28 RR

89).


       Richard Hester was called as a prospective juror (28 RR 21). In his

questionnaire, Hester indicated he was opposed to a life sentence without parole
                                       - 66 -
because he saw no reason to keep someone in prison for their entire life (28 RR

62). He did not believe a life sentence without parole would be sufficient

punishment for one convicted of capital murder (28 RR 63). When asked by the

trial court if he could ever assess a punishment of life without parole, Hester

responded that he believed he could, but it would go against his “grain” (28 RR

64).


       Defense counsel sought to explore Hester’s “grain” (28 RR 69). Under

questioning by defense counsel, Hester agreed with the sentiment that one

convicted of capital murder should be executed rather than have the taxpayers pay

for incarceration for the rest of his life (28 RR 69). Hester said that despite his bias

against a life sentence, he would try to answer the special issues truthfully based on

what he believed the answer to be (28 RR 71). Hester made it clear he is in favor

of the death penalty and did not believe enough sentences of death are assessed by

juries (28 RR 81). Hester reiterated that he was opposed to a life sentence without

parole and acknowledged he indicated on his questionnaire that life without parole

is not an adequate punishment for capital murder and he saw no reason to keep a

person in prison for his entire life following a conviction for capital murder (28 RR

83).




                                         - 67 -
      Petetan sought to challenge Hester based on his bias against a life sentence

without parole (28 RR 88). The challenge was denied and Petetan used his seventh

peremptory strike to remove Hester (28 RR 89).


      Petetan ultimately exhausted his peremptory strikes (47 RR 145). His

request for an additional peremptory strike was denied (48 RR 109). Upon

denying the request for an additional strike, Petetan identified prospective juror

Ronald Brown as objectionable because of his work with law enforcement and

previous employment as a prison guard (48 RR 109). Had Petetan been afforded

an additional strike, he would have used it on Brown (48 RR 109). Brown was

selected as the twelfth juror (48 RR 110).


      A defendant may properly challenge any prospective juror who has a bias or

prejudice against any of the law applicable to the case upon which the defense is

entitled to rely, either as a defense to some phase of the offense for which the

defendant is being prosecuted or as a mitigation thereof or of the punishment

therefor. TEX. CRIM. PROC. CODE art. 35.16(c)(2). When reviewing a trial court's

decision to grant or deny a challenge for cause, the entire record is to be considered

to determine if there is sufficient evidence to support the trial court's ruling.

Feldman v. State, 71 S.W.3d 728, at 743–45 (Tex. Crim. App. 2002); Patrick v.

State, 906 S.W.2d 481, 488 (Tex. Crim. App. 1995). The test is whether the bias


                                         - 68 -
or prejudice would substantially impair the prospective juror's ability to carry out

his oath and instructions in accordance with the law. Feldman, 71 S.W.3d at 743–

45. Before a prospective juror may be excused for cause on this basis, however,

the law must be explained to him and he must be asked whether he can follow that

law regardless of his personal views. Id. Finally, the proponent of a challenge for

cause has the burden of establishing that his challenge is proper. Id. at 747. The

proponent does not meet his burden until he has shown that the veniremember

understood the requirements of the law and could not overcome his or her

prejudice well enough to follow it. Id. When the record reflects that a venireperson

vacillated or equivocated on his or her ability to follow the law, the reviewing

court must defer to the trial court. Moore v. State, 999 S.W.2d 385, 400 (Tex.

Crim. App.1999); Brown v. State, 913 S.W.2d 577, 580, (Tex. Crim. App. 1996).


      Petetan maintains Hester was subject to a defense challenge for cause due to

his opposition against a life sentence and preference for a sentence of death.

Hester made it clear through the voir dire examination that: he was opposed to a

life sentence without parole because he saw no reason to keep someone in prison

for their entire life; he did not believe a life sentence without parole would be

sufficient punishment; he agreed with the sentiment that one convicted of capital

murder should be executed rather than have the taxpayers pay for incarceration for

the rest of his life; he is in favor of the death penalty; he did not believe enough
                                         - 69 -
sentences of death are assessed; he reiterated that he was opposed to a life sentence

without parole; and finally, he acknowledged that he indicated on his questionnaire

that life without parole is not an adequate punishment for capital murder and he

saw no reason to keep a person in prison for his entire life. The record does not

support the trial court’s determination Hester was not subject to a challenge for

cause by the defense. The trial court abused its discretion by denying Petetan’s

challenge.


      To preserve error on denied challenges for cause, the appellant must

demonstrate on the record that: 1) he asserted a clear and specific challenge for

cause; 2) he used a peremptory challenge on the complained-of venireperson; 3) all

his peremptory challenges were exhausted; 4) his request for additional strikes was

denied; and 5) an objectionable juror sat on the jury. Feldman, 71 S.W.3d at 743–

45; Green v. State, 934 S.W.2d 92, 105 (Tex. Crim. App. 1996). When the trial

court errs in overruling a challenge for cause against a venireperson, the defendant

is harmed if he uses a peremptory strike to remove the venireperson and thereafter

suffers a detriment from the loss of the strike. Feldman, 71 S.W.3d at 743–45;

Demouchette v. State, 731 S.W.2d 75, 83 (Tex.Crim.App.1986).


      Here, Petetan properly preserved the issue. He ultimately exhausted his

peremptory strikes (47 RR 145). His request for additional peremptory strike was


                                        - 70 -
denied (48 RR 109). Upon denying the request for an additional strike, Petetan

identified prospective juror Ronald Brown as objectionable because of his work

with law enforcement and previous employment as a prison guard (48 RR 109).

Had Petetan been afforded an additional strike, he would have used it on Brown to

prevent him from serving on the jury (48 RR 109). Brown was selected as the

twelfth juror (48 RR 110).


      Petetan was harmed by the erroneous denial of his challenge for cause

through the detrimental loss of a strike. The loss of that strike resulted in a juror

Petetan found objectionable being seated on the jury.


      The error only impacts the punishment phase of trial and consequently

Petetan seeks a new punishment hearing. See TEX. CRIM. PROC. CODE art.

44.29(c) (providing for new punishment hearing in the case of a capital murder

conviction when error affects punishment only); Ransom v. State, 920 S.W.2d 288,

298 (Tex. Crim. App. 1994) (holding that voir dire error in a capital murder case

on an issue the jury would only consider at punishment constitutes error affecting

punishment and thus calling for a new punishment hearing).




                                         - 71 -
                                Point of Error Four


The trial court abused its discretion by denying a defense challenge for cause

to prospective juror Richard Hester who believed law enforcement officers to

be more credible than other witnesses (28 RR 89).


      Richard Hester was called as a prospective juror (28 RR 21). Hester’s

brother is a police officer (28 RR 85). He felt police officers were more believable

as witnesses as compared to others who are not law enforcement officers (28 RR

86). He felt that way with regard to any testimony as to training or expertise by a

police officer (28 RR 86). As to general questions and personalities, he would not

give preferential treatment to the testimony of a police office (28 RR 86).


      Petetan sought to challenge Hester based on his bias in favor of the

believability of police officers (28 RR 88). The challenge was denied and Petetan

used his seventh peremptory strike to remove Hester (28 RR 89).


      Petetan ultimately exhausted his peremptory strikes (47 RR 145). His

request for additional peremptory strike was denied (48 RR 109). Upon denying

the request for an additional strike, Petetan identified prospective juror Ronald

Brown as objectionable because of his work with law enforcement and previous

employment as a prison guard (48 RR 109). Had Petetan been afforded an



                                        - 72 -
additional strike, he would have used it on Brown (48 RR 109). Brown was

selected as the twelfth juror (48 RR 110).


      Petetan maintain Hester was subject to a challenge for cause. See TEX.

CRIM. PROC. CODE art. 35.16(a)(9) (providing for challenge for cause for any

juror who has a bias or prejudice in favor of or against the defendant). In this case,

there is no doubt that venireman Hester’s attitude toward police officers constituted

a bias against Petetan. His voir dire examination revealed he believed a police

officer would be more believable than other witnesses as to matters of training and

expertise. When considering the fact that eight of the nineteen State's witnesses

were police officers, these responses become especially important. Those eight

police officers testified to matters unique to their expertise and training as law

enforcement officers; the very matters to which Hester indicated he would view

with greater credibility and believability.


      A defendant is entitled to a juror who will impartially judge the credibility of

the witnesses. Shaver v. State, 280 S.W.2d 740, 742 (Tex. Crim. App. 1955).

Venireman Hester’s testimony revealed that his predisposition to believe police

officers would have prevented him from impartially judging the credibility of those

witnesses. Such responses effectively demonstrated bias against Petetan. Under

the circumstances, Petetan’s challenge for cause was improperly denied. See


                                         - 73 -
Hernandez v. State, 563 S.W.2d 947, 950 (Tex. Crim. App. 1978) (finding defense

challenge improperly denied as to prospective juror based on her attitude toward

the credibility of police officers constituted a bias against the defendant).


      Petetan properly preserved the issue. He ultimately exhausted his

peremptory strikes (47 RR 145). His request for an additional peremptory strike

was denied (48 RR 109). Upon denying the request for an additional strike,

Petetan identified prospective juror Ronald Brown as objectionable because of his

work with law enforcement and previous employment as a prison guard (48 RR

109). Had Petetan been afforded an additional strike, he would have used it on

Brown (48 RR 109). Brown was selected as the twelfth juror (48 RR 110).


      Petetan was harmed by the erroneous denial of his challenge for cause

through the detrimental loss of a strike. The loss of that strike resulted in a juror

Petetan found objectionable being seated on the jury.


      The error impacts both phases of trial and Petetan should be awarded a new

trial. See TEX. CRIM. PROC. CODE art. 44.29(a) (providing for new trial when an

error affects either the guilt or innocence phase or both phases of trial). Petetan

should be awarded a new trial.




                                         - 74 -
                                 Point of Error Five


The trial court abused its discretion by denying a defense challenge for cause

to prospective juror Luther Fore who had a bias against a life sentence

without possibility of parole and a bias in favor of a sentence of death (30 RR

174).


        Luther Fore was called as a prospective juror (30 RR 90). In response to

questions from the prosecutor in voir dire, Fore stated he is “not a big fan” of life

without parole for one convicted of capital murder (30 RR 131, 164). If the death

penalty is available, he does not, as a taxpayer, want to pay for someone to live in

prison for the rest of his life (30 RR 131, 164). He agreed that while not a fan of

life without parole, he would hold the State to its burden of proof with regard to the

punishment phase special issues (30 RR 132). On his juror questionnaire, Fore

indicated a sentence of life without parole would never be a sufficient punishment

for the offense of capital murder because “they should pay the same price” (30 RR

133). Fore would expect the defense to prove the answer to the first special issue

regarding future dangerousness should be “no” (30 RR 167). If he was serving as

a juror and reached the final special issue on mitigation, he feels a sentence of

death would be appropriate in view of his answers to the previous special issues

(30 RR 168).


                                        - 75 -
      The defense voiced a challenge for cause to Fore based on his bias against a

life sentence without the possibility of parole and bias in favor of a sentence of

death (30 RR 174). The challenge for cause was denied by the trial court (30 RR

174). Petetan used his eighth peremptory strike on Fore (30 RR 174).


      Petetan ultimately exhausted his peremptory strikes (47 RR 145). His

request for an additional peremptory strike was denied (48 RR 109). Upon

denying the request for an additional strike, Petetan identified prospective juror

Ronald Brown as objectionable because of his work with law enforcement and

previous employment as a prison guard (48 RR 109). Had Petetan been afforded

an additional strike, he would have used it on Brown (48 RR 109). Brown was

selected as the twelfth juror (48 RR 110).


      A defendant may properly challenge any prospective juror who has a bias or

prejudice against any of the law applicable to the case upon which the defense is

entitled to rely, either as a defense to some phase of the offense for which the

defendant is being prosecuted or as a mitigation thereof or of the punishment

therefor. TEX. CRIM. PROC. CODE art. 35.16(c)(2). When reviewing a trial court's

decision to grant or deny a challenge for cause, the entire record is to be considered

to determine if there is sufficient evidence to support the trial court's ruling.

Feldman, 71 S.W.3d at 743–45; Patrick, 906 S.W.2d at 488. The test is whether


                                         - 76 -
the bias or prejudice would substantially impair the prospective juror's ability to

carry out his oath and instructions in accordance with the law. Feldman, 71

S.W.3d at 743–45. Before a prospective juror may be excused for cause on this

basis, however, the law must be explained to him and he must be asked whether he

can follow that law regardless of his personal views. Id. Finally, the proponent of

a challenge for cause has the burden of establishing that his challenge is proper. Id.

at 747. The proponent does not meet his burden until he has shown that the

veniremember understood the requirements of the law and could not overcome his

or her prejudice well enough to follow it. Id. When the record reflects that a

venireperson vacillated or equivocated on his or her ability to follow the law, the

reviewing court must defer to the trial court. Moore, 999 S.W.2d at 400; Brown,

913 S.W.2d at 580.


      Petetan maintains Fore was subject to a defense challenge for cause due to

his opposition against a life sentence and preference for a sentence of death. Fore

made it clear through the voir dire examination that: he is “not a big fan” of life

without parole for one convicted of capital murder; if the death penalty is

available, he does not, as a taxpayer, want to pay for someone to live in prison for

the rest of his life; in his juror questionnaire, Fore indicated a sentence of life

without parole would never be a sufficient punishment for the offense of capital

murder because “they should pay the same price;” Fore would expect the defense
                                          - 77 -
to prove the answer to the first special issue regarding future dangerousness should

be “no;” and if he was serving as a juror and reached the final special issue on

mitigation, he feels a sentence of death would be appropriate in view of his

answers to the previous special issues. The record does not support the trial court’s

determination Fore was not subject to a challenge for cause by the defense. The

trial court abused its discretion by denying Petetan’s challenge to prospective juror

Fore.


        To preserve error on denied challenges for cause, the appellant must

demonstrate on the record that: 1) he asserted a clear and specific challenge for

cause; 2) he used a peremptory challenge on the complained-of venireperson; 3) all

his peremptory challenges were exhausted; 4) his request for additional strikes was

denied; and 5) an objectionable juror sat on the jury. Feldman, 71 S.W.3d at 743–

45; Green, 934 S.W.2d at 105. When the trial court errs in overruling a challenge

for cause against a venireperson, the defendant is harmed if he uses a peremptory

strike to remove the venireperson and thereafter suffers a detriment from the loss

of the strike. Feldman, 71 S.W.3d at 743–45; Demouchette, 731 S.W.2d at 83.


        Here, Petetan properly preserved the issue. He ultimately exhausted his

peremptory strikes (47 RR 145). His request for additional peremptory strike was

denied (48 RR 109). Upon denying the request for an additional strike, Petetan


                                        - 78 -
identified prospective juror Ronald Brown as objectionable because of his work

with law enforcement and previous employment as a prison guard (48 RR 109).

Had Petetan been afforded an additional strike, he would have used it on Brown

(48 RR 109). Brown was selected as the twelfth juror (48 RR 110).


      Petetan was harmed by the erroneous denial of his challenge for cause

through the detrimental loss of a strike. The loss of that strike resulted in a juror

Petetan found objectionable being seated on the jury.


      The error only impacts the punishment phase of trial and consequently

Petetan seeks a new punishment hearing. See TEX. CRIM. PROC. CODE art.

44.29(c) (providing for new punishment hearing in the case of a capital murder

conviction when error affects punishment only); Ransom, 920 S.W.2d at 298

(holding that voir dire error in a capital murder case on an issue the jury would

only consider at punishment constitutes error affecting punishment and thus calling

for a new punishment hearing).


                                 Point of Error Six


The evidence is insufficient to prove Petetan murdered the complainant while

in the course of committing or attempting to commit the offenses of burglary,

kidnapping, or retaliation.



                                         - 79 -
      The grand jury returned an indictment charging Petetan with the offense of

capital murder (1 CR 44). Specifically, it was alleged he murdered Kimberly

Petetan while in the course of committing or attempting to commit the offense of

burglary of Kimberly Petetan’s habitation, the kidnapping of Kimberly Petetan or

A. W., and retaliation against Kimberly Petetan (1 CR 44). See TEX. PEN. CODE

§ 19.03(a)(2). At the conclusion of the guilt or innocence phase of trial, the court

charged the jury (4 CR 1300). The jury was instructed it could convict if it found

beyond a reasonable doubt that Petetan murdered Kimberly while in the course of

committing or attempting to commit the offenses of burglary, kidnapping, or

retaliation (4 CR 1300). The jury was instructed it did not have to unanimously

agree on a particular underlying felony, just that the murder occurred during one or

more of the underlying and alleged felonies (4 CR 1300). The jury found Petetan

guilty of capital murder as charged in the indictment (4 CR 1308).


       This point of error challenges the sufficiency of the evidence to prove

Petetan murdered while in the course of committing or attempting to commit one

of the underlying felonies alleged in the indictment. The state of the evidence is

such that no rational juror could have found beyond a reasonable doubt that Petetan

committed one of the underlying felonies. Petetan seeks to have the judgment




                                        - 80 -
reformed to a conviction for the offense of murder and the cause remanded for a

new punishment hearing.6


       In a due-process review of the sufficiency of the evidence to support a

conviction, the reviewing court is to view all of the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319 (1979); Dobbs v. State, 434 S.W.3d 166, 170 (Tex.

Crim. App. 2014). This standard gives full play to the responsibility of the trier of

fact to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319;

Dobbs, 434 S.W.3d at 170.


       The trier of fact is the sole judge of the weight and credibility of the

evidence. See TEX. CRIM. PROC. CODE art. 38.04; Dobbs, 434 S.W.3d at 170.

Thus, when performing an evidentiary sufficiency review, a reviewing court may

not re-evaluate the weight and credibility of the evidence and substitute its

judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). Instead, the reviewing court must determine whether the

necessary inferences are reasonable based upon the cumulative force of the


6
    The jury was charged on the lesser included offense of murder (4 CR 1300).
                                        - 81 -
evidence when viewed in the light most favorable to the verdict. Sorrells v. State,

343 S.W.3d 152, 155 (Tex .Crim. App. 2011); Temple v. State, 390 S.W.3d 341,

360 (Tex. Crim. App. 2013). It is presumed that the factfinder resolved any

conflicting inferences in favor of the verdict and the reviewing court must defer to

that resolution. Jackson, 443 U.S. at 326; Dobbs, 434 S.W.3d at 170.


      This Court has held “in the course of committing” an offense listed in §

19.03(a)(2), means conduct occurring in an attempt to commit, during the

commission, or in the immediate flight after the attempt or commission of the

offense. Wooldridge v. State, 653 S.W.2d 811, 816 (Tex. Crim. App. 1983); Riles

v. State, 595 S.W.2d 858, 862 (Tex. Crim. App. 1980). Moreover, the State must

prove a nexus between the murder and the aggravating offense; that is, the State

must show that, during the commission of the offense or while in immediate flight,

the defendant killed the victim to facilitate the underlying felony offense. Ibanez v.

State, 749 S.W.2d 804, 807 (Tex. Crim. App. 1986); Whitaker v. State, 977

S.W.2d 869, 873 (Tex. App.—Beaumont 1998, pet. ref'd); Hernandez v. State, 969

S.W.2d 440, 444 (Tex. App.—San Antonio 1998, pet. ref'd).


      At the outset, Petetan maintains the evidence does not show a burglary of

Kimberly’s apartment. Evidence at trial showed Petetan told Miller and Mouton to

get in the bed of the truck and they all drove to Kimberly’s apartment complex and


                                        - 82 -
they entered the apartment when Kimberly opened the door (53 RR 54, 56).

Mouton testified that he and Miller got in the bed of Kimberly’s truck and she

drove the five of them to her apartment and they all entered the apartment when

Kimberly opened the door to the apartment (53 RR 110, 111, and 131). A. W.

stated that the five of them left the motel, returned to her mother’s apartment, and

everyone went inside (53 RR 183, 184). Kimberly was shot two hours after they

arrived at the apartment (53 RR 56).


      The evidence fails to support the allegation of a burglary of Kimberly’s

apartment. The undisputed evidence shows that before the shooting, Kimberly

opened her apartment for Petetan, Miller, Mouton, and her daughter to enter. In

view of that evidence, the State failed to show Petetan entered the apartment

without the effective consent of Kimberly. See TEX. PEN. CODE § 30.02(a)

(providing for the offense of burglary if one enters a habitation without the

effective consent of the owner); Villanueva v. State, 711 S.W.2d 739, 740 (Tex.

App.—San Antonio 1986) pet. ref’d 725 S.W.2d 244 (Tex. Crim. App. 1987);

Eppinger v. State, 800 S.W.2d 652, 653 (Tex. App.—Austin 1990, pet. ref'd)

(finding evidence insufficient in burglary prosecution after owner expressly

assented to defendant entering his apartment).




                                        - 83 -
      Petetan concedes the evidence shows that hours before the shooting, he

pushed his way into the apartment without Kimberly inviting him in, pulled a gun

from his pocket, and waved the gun around the apartment (53 RR 174, 175).

While that conduct constituted a burglary, it was so removed in time as to not have

a nexus to the later shooting of Kimberly sufficient to support the conviction for

capital murder. The evidence clearly shows the complainant was not killed during

Petetan’s initial burglarious conduct. She was only killed after having left her

apartment and then later consented to Petetan’s entry before her shooting. The

evidence does not show the complainant was killed while Petetan was in the course

of committing or attempting to commit burglary of a habitation.


      The evidence also fails to demonstrate Petetan restrained either Kimberly or

A. W. with intent to prevent their liberation in the course of the capital murder.

See TEX. PEN. CODE §§ 20.01(2) and 20.03(b). Absent such evidence, the

evidence will only support a conviction for the offense of murder.


      Miller testified that as Kimberly was trying to walk out the front door,

Petetan slammed the door shut, struck her with his fist, and then shot her multiple

times (53 RR 57, 59). Miller stated that no one told A. W. and Mouton to get in

Petetan’s Suburban, they simply did so after the shooting (53 RR 90).




                                        - 84 -
      Mouton testified that when Kimberly and Petetan came downstairs in her

apartment, she tried to unlock and open the front door, but Petetan pushed her

away and into a wall (53 RR 117). When Kimberly pushed Petetan back, he shot

her multiple times with a handgun (53 RR 118). After the shooting, Mouton and

A. W. ran out the back door of the apartment and jumped into Petetan’s vehicle

(53 RR 121). Mouton intended to drive the two of them away, but Miller and

Petetan came outside and entered the vehicle before he could do so (53 RR 121).

Mouton did not force A. W. to get in the vehicle with him; she simply followed

him out of the apartment after the shooting of her mother (53 RR 135).


      A. W. testified that when her mother tried to open the front door, Petetan

ran toward the door, shut it, and pushed her mother into a wall (53 RR 190).

Petetan told her mother to stand on the stairs, that it was “time for her dust away,”

and then he shot her three times (53 RR 191). Her mother fell to the ground and

“flopped around like a fish” (53 RR 192).


      The younger of two other men in the apartment, Mouton, grabbed her and

took her out the back door of the apartment (53 RR 192). He told her that

everything would be okay (53 RR 193). All four of them then got in Petetan’s

white Suburban and left (53 RR 195).




                                        - 85 -
      Even viewing the evidence in the light most favorable to the verdict, Petetan

maintains the evidence is insufficient to prove he committed or attempted to

commit the offense of kidnapping against either Kimberly or A. W. Neither was

secreted or held in a place where they were not likely to be found. See TEX. PEN.

CODE § 20.01(2)(A). Neither was restrained by the use of or threat to use deadly

force. See TEX. PEN. CODE § 20.01(2)(B).


      Petetan concedes the evidence shows that hours before the shooting, he

pushed his way into the apartment without Kimberly inviting him in, pulled a gun

from his pocket, and started waving it around the apartment (53 RR 174, 175).

Petetan told Kimberly to get dressed and “come with me” (53 RR 176). The three

of them got into Kimberly’s truck and Kimberly was driving (53 RR 177). Petetan

still had the gun in his pocket while in the truck (53 RR 178). Petetan directed

Kimberly to drive to a motel in Waco (53 RR 179). Once they arrived at the motel,

Petetan told Kimberly to honk the horn of the truck (53 RR 180). Two men came

out of a room and got in the bed of the truck (53 RR 180). All five individuals left

the motel and returned to her mother’s apartment (53 RR 183). While that conduct

constituted a kidnapping of both Kimberly and A. W., it was so removed in time as

to not have a nexus to the later shooting of Kimberly sufficient to support the

conviction for capital murder. The evidence clearly shows the complainant was

not killed during Petetan’s initial kidnapping. She was only killed after having left
                                        - 86 -
her apartment and then later returning to her own apartment before the shooting.

Petetan was not shown to have restrained Kimberly or A. W. in the apartment

upon returning and before the shooting. Finally, A. W. was shown to have

voluntarily left with Mouton following the shooting of her mother. The evidence

does not show the complainant was killed while Petetan was in the course of

committing or attempting to commit the offenses of kidnapping against either

Kimberly or A. W.


      Finally, the evidence fails to demonstrate Petetan murdered Kimberly while

in the course of attempting or committing the offense of retaliation. See TEX. PEN.

CODE § 36.06. The evidence fails to show he threatened to harm Kimberly in

retaliation for her reporting his assault of her in Port Arthur. § 36.06(a)(1)(B).

Likewise, there is insufficient evidence to show Petetan harmed or threated to harm

Kimberly to prevent or delay her service as a witness or a person who had reported

a crime. § 36.06(a)(2)(A) &(B). Absent such evidence, the evidence will only

support a conviction for the offense of murder rather than capital murder.


      On September 13, 2012, Ryan Kidwell, of the Port Arthur Police

Department, responded to a domestic disturbance call (52 RR 83). Kimberly

Petetan told Kidwell that Petetan assaulted her when she asked him to stop

smoking in the apartment because her daughter has asthma (52 RR 85). She said


                                        - 87 -
Petetan had thrown her to the floor and held a kitchen knife close to her (52 RR

86). While holding the knife close to her, Petetan said “I could kill you, do you

want to die in front of your child?” (52 RR 88).


       Petetan had left the apartment by the time Kidwell arrived (52 RR 87).

Kimberly told the officer she wanted to file assault charges against Petetan and she

knew it would be a felony since he used a knife during the assault (52 RR 90). She

also told the officer she was leaving Port Arthur and moving back to Waco (52 RR

93).


       A. W. testified that when her mother opened the door in Waco 10 days after

her assault in Port Arthur, Petetan pushed his way into the apartment without her

mother inviting him in (53 RR 174). Petetan pulled a gun from his pocket and

started waving it around the apartment (53 RR 175). Petetan told her mother to get

dressed and “come with me” (53 RR 176). Petetan told her mother they were

going to Port Arthur and she was “going to tell the cops what happened” (53 RR

177). Rather than go to Port Arthur, they traveled to a motel in Waco in picked up

Miller and Mouton (53 RR 180). The five of them left the motel and returned to

Kimberly’s apartment (53 RR 183).


       For purposes of the retaliation statute, the State must prove harm or a threat

to harm in retaliation or to prevent service. Meyer v. State, 366 S.W.3d 728, 731

                                        - 88 -
(Tex. App.—Texarkana 2012, no pet.). “Harm” is defined as “anything reasonably

regarded as loss, disadvantage, or injury....” TEX. PEN. CODE § 1.07(25).


      Here, the evidence fails to show Petetan harmed or threatened to harm

Kimberly in retaliation for reporting his assault of her. Likewise, there is

insufficient evidence to show Petetan harmed or threated to harm Kimberly to

prevent or delay her service as a witness or a person who had reported a crime. At

most, the evidence simply shows Petetan intended to take Kimberly to Port Arthur

and she was “going to tell the cops what happened” (53 RR 177). Such a stated

intention does not constitute harm or a threat of harm. On the contrary, taken at

face value, the stated intent is to safely transport her to Port Arthur to provide

information to the authorities on the previously reported assault. Absent evidence

of harm or threaten to harm in relation to the prior assault, the evidence does not

support a conviction for capital murder.


      Petetan has demonstrated that none of the underlying aggravating elements

find evidentiary support in the record. This Court should reform the judgment to

the offense of murder and remand the cause to the trial court for a new punishment

proceeding.




                                         - 89 -
                              Point of Error Seven


The trial court abused its discretion by admitting an extraneous offense

showing that on the day of the murder, Petetan told Miller he was going to

Waco to buy drugs and would give Miller drugs if he would drive Petetan to

Waco (53 RR 31).


                              Point of Error Eight


The trial court abused its discretion by admitting an extraneous offense

showing that on the day of the murder, Petetan told Mouton he was going to

Waco to buy drugs and will give Mouton drugs if he would accompany

Petetan to Waco (53 RR 31).


      The State proffered evidence it sought to present showing Petetan told Miller

he was coming to Waco on the day of the murder to buy drugs and would give

Miller drugs in return for driving him to Waco (53 RR 28). The State claimed such

evidence was admissible to show Miller’s motive for coming to Waco on the day

of the murder and to rebut the defense assertion in opening that Miller murdered

Kimberly (53 RR 28). The defense objected that such evidence was an

inadmissible extraneous offense (53 RR 29). The trial court overruled Petetan’s

objection and granted him a running objection to the evidence the State sought to

offer (53 RR 31-32).
                                       - 90 -
      In the presence of the jury, Miller testified he and Petetan have known each

other since they grew up in Port Arthur (53 RR 34). Early in the morning of

September 23, 2012, Miller saw Petetan at a convenience store in Port Arthur (53

RR 36). Petetan told Miller he was going to Waco to buy some drugs and needed

Miller to drive him to Waco (53 RR 36-37). Petetan offered to give Miller an

ounce of crack cocaine and some money if he would drive him to Waco (53 RR

37). Miller did not know Petetan was married or his wife’s name (53 RR 39, 53).

He met Kimberly and A. W. for the first time when they picked him up at the

motel in Waco with Petetan (53 RR 52). He did not kill Kimberly, never had any

intention to kill her, and did not know her before they met in Waco on the day of

her death (53 RR 75, 78).


      Mouton testified that Petetan asked him to accompany him to Waco on the

day of the murder (53 RR 100). Petetan said he was going to Waco to buy five

ounces of drugs and would give Mouton two of the five ounces if he would come

with him to Waco (53 RR 101). They went to a convenience store, picked up

Miller, and started driving toward Waco (53 RR 102). Mouton did not know

Petetan was married or had a wife in Waco (53 RR 103).


      An extraneous offense is any act of misconduct, whether resulting in

prosecution or not, that is not shown in the charging papers and shown to have


                                       - 91 -
been committed by the accused. Rankin v. State, 953 S.W.2d 740, 741 (Tex. Crim.

App. 1996). A trial court should be diligent and forever mindful of the devastating

impact of extraneous offense evidence on the jury's rational disposition towards

other evidence because of the jury's natural inclination to infer guilt to the charged

offense from the extraneous offenses. Abdnor v. State, 871 S.W.2d 726, 738 (Tex.

Crim. App. 1994). In fact, to ensure that a defendant is tried only for the crime

with which he is charged and not for criminal propensity, evidence of extraneous

offenses is normally inadmissible. Moses v. State, 105 S.W.3d 622, 626 (Tex.

Crim. App. 2003).


      The general rule of law is that evidence of extraneous offenses or prior

wrongful acts is inadmissible as evidence of a person's character—and rightly so—

because of the inherent prejudice that such evidence could unsuspectingly have on

jurors. Johnston v. State, 145 S.W.3d 215, 219 (Tex. Crim. App. 2004).

Generally, an accused may only be tried for the offense with which he is charged

and not for being a criminal generally. Lockhart v. State, 847 S.W.2d 568, 570

(Tex. Crim. App. 1992). TEX. R. EVID. 404(b) seeks to protect the defendant from

the inherent dangers presented by the admission of extraneous offenses.


      A trial court has broad discretion in determining the admissibility of

evidence, and its decision will not be disturbed absent a showing that discretion


                                        - 92 -
was abused. Mozon v. State, 991 S.W.2d 841 (Tex. Crim. App. 1999).

Extraneous-offense evidence is admissible if that evidence satisfies a two-pronged

test: (1) whether the extraneous-offense evidence is relevant to a fact of

consequence in the case aside from its tendency to show action in conformity with

character; and (2) whether the probative value of the evidence is not substantially

outweighed by unfair prejudice. Mann v. State, 718 S.W.2d 741, 743 (Tex. Crim.

App. 1986). To be admissible, extraneous offense evidence must be relevant apart

from its proof of character conformity. Alba v. State, 905 S.W.2d 581, 585 (Tex.

Crim. App. 1995).


      Petetan maintains the evidence of other crimes, wrongs, and acts of which he

now complains was erroneously admitted contrary to TEX. R. EVID. 404(b) as

character conformity evidence. The extraneous offenses and bad acts had no

relevance to the capital murder charge pending against Petetan.


      The State claimed such evidence was admissible to show Miller’s motive for

coming to Waco on the day of the murder and to rebut the defense assertion in

Petetan’s opening statement that Miller murdered Kimberly (53 RR 28). Neither

of the reasons supports admission of the extraneous offenses involving Miller and

Mouton. Their motive for coming to Waco on the day of the murder was irrelevant

to the charged offense. A review of the defense opening statement does not


                                        - 93 -
support the State’s claim that Petetan suggested Miller was responsible for the

murder (51 RR 40-44).


      The trial court agreed the extraneous offences were admissible to show

motive, intent, and preparation (53 RR 32). Petetan disagrees.


      The extraneous conduct was not necessary to prove intent in the instant

prosecution. Petetan’s intent to cause serious bodily injury or death could be

inferred from the use of a deadly weapon, a firearm. See Arnold v. State, 234

S.W.3d 664, 672 (Tex. App.-Houston [14th Dist.] 2007, no pet.); Darkins v. State,

430 S.W.3d 559, 565 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd). The

State was erroneously permitted to portray Petetan as a drug dealer and a criminal

in general.


      Likewise, the complained of evidence was inadmissible to prove motive to

kill Kimberly. Though motive is not an element of capital murder, the prosecution

may offer evidence to show motive for the commission of the offense because it is

relevant as a circumstance to prove the commission of the offense. See Crane v.

State, 786 S.W.2d 338, 349–50 (Tex. Crim. App. 1990). Once the opponent of

extraneous-acts evidence raises an appropriate character-evidence objection, the

proponent of the evidence must satisfy the trial court that the evidence has

relevance apart from proving character conformity. Johnston, 145 S.W.3d at 220;

                                       - 94 -
Lopez v. State, 200 S.W.3d 246, 252 (Tex.App.-Houston [14th Dist.] 2006, pet.

ref'd.); Montgomery v. State, 810 S.W.2d 372, 387 (Tex.Crim.App.1991).

Petetan’s extraneous bad acts involving Miller and Mouton have no logical

relevance to the shooting of Kimberly. The State was erroneously permitted to

portray Petetan as a dope-dealing criminal in general.


      Finally, Petetan argues the extraneous offenses were not admissible on the

issue of preparation. The extraneous offenses did not prove the existence of a

larger plan of which the capital murder was a part. The evidence was not shown to

have furthered the capital murder of Kimberly or in contemplation of the offense.

The evidence was erroneously admitted and portrayed Petetan as a dope-dealing

criminal in general.


      Petetan has demonstrated an abuse of discretion in the admission of the

complained of evidence. The evidence was erroneously admitted and painted him

as a criminal in general.


      Error under the rules of evidence in the admission of evidence constitutes

nonconstitutional error. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.

1998). A reviewing court is to disregard nonconstitutional error that does not

affect the substantial rights of the defendant. TEX. R. APP. P. 44.2(b). A

substantial right is affected when the error had a substantial and injurious effect or

                                        - 95 -
influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271

(Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776

(1946)). In Kotteakos, the United States Supreme Court explained:


      “[I]f one cannot say, with fair assurance, after pondering all that
      happened without stripping the erroneous action from the whole, that
      the judgment was not substantially swayed by the error, it is
      impossible to conclude that substantial rights were not affected. The
      inquiry cannot be merely whether there was enough to support the
      result, apart from the phase affected by the error. It is rather, even so,
      whether the error itself had substantial influence. If so, or if one is left
      in grave doubt, the conviction cannot stand.” 328 U.S. at 765.


      The Supreme Court has defined “grave doubts” to mean “in the judge's

mind, the matter is so evenly balanced that he feels himself in virtual equipoise as

to the harmlessness of the error.” Webb v. State, 36 S.W.3d 164, 182 (Tex. App.-

Houston [14th Dist.] 2000, pet. ref’d). If the reviewing court is unsure whether the

error affected the outcome, the court should treat the error as harmful, that is, as

having a substantial and injurious effect or influence in determining the jury's

verdict. Id.


      The defendant is not required to prove harm from an error. Johnson v. State,

43 S.W.3d 1, 4 (Tex. Crim. App. 2001). Indeed, there ordinarily is no way to

prove “actual” harm. Id. It is instead the duty of the reviewing court to assess

harm from the context of the error. Id. Thus, the proper inquiry is whether the

trial court's error in allowing the State to introduce evidence of other crimes,
                                           - 96 -
wrongs, and acts by Petetan substantially swayed or influenced the jury's verdict,

or whether this Court is left in grave doubt as to whether this extraneous offense

evidence substantially swayed or influenced the jury's verdict. See Kotteakos, 328

U.S. at 765; Johnson, 43 S.W.3d at 4. In making that determination, this Court

should consider the trial court's erroneous admission of the extraneous offense

evidence in the context of the entire record and not just whether there was

sufficient or overwhelming evidence of Petetan’s guilt. See Motilla v. State, 78

S.W.3d 352, 355 (Tex. Crim. App. 2002).


      Extraneous offense evidence can have a devastating impact on the jury's

rational disposition towards other evidence because of the jury's natural inclination

to infer guilt to the charged offense from the extraneous offenses. Abdnor, 871

S.W.2d at 738. Here, the erroneous admission of the other crimes, wrongs, and

acts, was of such a magnitude that in all probability it disrupted the jury's orderly

evaluation of the evidence and had a devastating impact on the jury's rational

disposition towards other evidence. The natural inclination of the jury was to infer

Petetan’s guilt of capital murder because he was portrayed as a criminal in general

due to his other criminal activity.


      After reviewing the entire record, this Court will be unable to find with fair

assurance that the erroneous admission of other crimes, wrongs, and acts did not


                                        - 97 -
have a substantial and injurious effect or influence on the jury's verdict. This Court

cannot say, with fair assurance, after considering the entire record without

stripping it of the erroneous admission of the extraneous matters, that the judgment

was not substantially swayed by the errors. The errors were harmful under TEX. R.

APP. P. 44.2(b). Petetan should be awarded a new trial free of such errors.


                                Point of Error Nine


The trial court abused its discretion by admitting evidence which undermined

defense counsel before the jury and created a conflict of interest which denied

Petetan his right to the effective assistance of counsel (59 RR 198).


      Outside the presence of the jury, Petetan’s lead counsel, Russ Hunt, told the

court he had recently represented Mubarak Ali, a witness the State might call at the

punishment phase of trial (52 RR 188). The trial court told second chair defense

counsel, Skip Reaves, to conduct the cross-examination of Ali if he was called as a

witness by the State (52 RR 190).


      A hearing was held outside the presence of the jury on Petetan’s objection to

the State calling Mubarak Ali as a rebuttal witness at the punishment phase of trial

(59 RR 6). Lead counsel for Petetan, Russ Hunt, stated he represented Ali for

three or four weeks on a synthetic marijuana charge while also representing

Petetan on his pending capital murder charge (59 RR 7). It was urged that
                                        - 98 -
permitting Ali’s testimony before the jury would create an actual conflict of

interest for Hunt by having a former client testify against a current client (59 RR

8).


       Specifically, it was urged that information Hunt learned from Ali could not

be used by Hunt or shared with fellow counsel in order to effectively cross-

examine Ali (59 RR 9). Hunt represented that he learned facts about Petetan from

Ali while he was representing Ali (59 RR 9). Allowing Ali to testify would place

Hunt in the position of being called as a rebuttal witness to Ali’s testimony (59 RR

11).


       Still outside the presence of the jury, Ali testified Petetan talked to him in

jail and told him that Hunt was his lawyer (59 RR 16). Petetan told Ali that he was

charged with murdering his wife and that Hunt had told him to act like he was

mentally sick so he would not get the death penalty (59 RR 17). Petetan also told

Ali that Hunt had told Petetan not to use the jail phone and to act like he was

mentally sick (59 RR 18, 19). Ali hired Hunt on his drug case when he was

released from jail on bond (59 RR 19). He initially hired Hunt because Petetan had

said he was a good lawyer (59 RR 22). He did not otherwise provide any

information to Hunt concerning Petetan (59 RR 21-22).




                                         - 99 -
      He met with Hunt once and then hired another lawyer (59 RR 19). He was

dissatisfied with Hunt because Hunt was never in the office and did not return

Ali’s calls (59 RR 26). Hunt ultimately returned Ali’s retainer (59 RR 26). After

hiring new counsel and at the urging of his new lawyer, Ali went to the District

Attorney’s Office to reveal Petetan’s statements to him in jail (59 RR 24).


      Petetan continued to express a concern that Hunt had a conflict of interest

because he was a potential rebuttal witness to Ali’s assertion Petetan said that Hunt

told him to feign mental illness (59 RR 26). Hunt was further hampered because

he could not reveal any confidential information learned from Ali while

representing him on the drug charge (59 RR 26). Petetan further complained the

testimony from Ali would undermine Hunt’s credibility before the jury with

respect to the intellectual disability defense put forth at punishment (59 RR 27-28).

Hunt said that at the time he was representing Ali, Ali did not know that Petetan

was charged with murdering his wife (59 RR 29).


      The State offered to limit Ali’s testimony by not revealing that Petetan said

counsel told him to act mentally ill to avoid the death penalty (59 RR 31). Petetan

continued to object that even with such a limitation, the jury would be left to

speculate as to who had told Petetan to feign mental illness and that defense

counsel would be a prime target of that speculation (59 RR 32). Hunt complained


                                       - 100 -
that Ali did not know Petetan had been charged with murder at the time he

allegedly made the statements to Ali in the jail (59 RR 33-34).


      Overruling all of Petetan’s previous objections, the trial court permitted Ali

to testify in the presence of the jury (59 RR 198). Ali testified he was in the

McLennan County Jail with Petetan in March of 2014 (59 RR 199). He knew

Petetan by his nickname “Big Boy” (59 RR 202). Petetan told Ali that if he acted

like he was mentally sick, he would not receive the death penalty (59 RR 203).

Petetan told Ali that he had a relative in Louisiana who was a bondsman and would

help Ali get out of jail (59 RR 204). When Ali asked Petetan to call the bondsman

for him, Petetan declined by explaining his calls were recorded and he was telling

the court he was mentally sick (59 RR 205). Upon the urging of Ali, Petetan called

his mother concerning Ali’s need for a bond (59 RR 205).


      Ali testified he was familiar with Petetan’s lawyer, Russ Hunt, through

Petetan (59 RR 207-208). Ali admitted he told the State of his conversations with

Petetan at the urging of the lawyer representing him on a pending drug charge (59

RR 208). Those revelations came about 10 days before Ali’s testimony at

Petetan’s trial (59 RR 208). Ali’s drug charge remained pending at the time of

Petetan’s trial (59 RR 200). Ali was the State’s only rebuttal witness and final

witness in the punishment phase of trial (59 RR 209).


                                       - 101 -
      Ordinarily, to prevail on a claim of ineffective assistance of counsel, a

defendant must show by a preponderance of the evidence that counsel's

performance (1) was so deficient that it fell below an objective standard of

reasonableness and (2) prejudiced the defense, meaning there is a reasonable

probability that, but for counsel's errors, the outcome of the proceeding would have

been different. Strickland v. Washington, 466 U.S. 668, 687 (1984). However,

when an applicant claims that ineffective assistance resulted from a conflict of

interest, the Strickland test does not apply. Acosta v. State, 233 S.W.3d 349, 356

(Tex. Crim. App. 2007). Instead, the defendant must show that (1) counsel had an

actual, not merely potential, conflict of interest and (2) that conflict adversely

affected counsel's performance. Cuyler v. Sullivan, 446 U.S. 335, 349 (1980).


      An actual conflict exists when “counsel is required to make a choice

between advancing his client's interest in a fair trial or advancing other interests ...

to the detriment of his client's interest.” Acosta, 233 S.W.3d at 355. A showing of

a potential conflict of interest is not sufficient to constitute an actual conflict of

interest. Cuyler, 446 U.S. at 350; Ex Parte McFarland, 163 S.W.3d 743, 759 n.52

(Tex. Crim. App. 2005). “The petitioner must specifically identify instances in the

record that reflect that his counsel made a choice between possible alternative

courses of action such as eliciting (or failing to elicit) evidence helpful to one

client but harmful to another.” Perillo v. Johnson, 79 F.3d 441, 447 (5th Cir.1996)
                                         - 102 -
(quoting United States v. Fox, 613 F.2d 99, 102 (5th Cir.1980)); Gaston v. State,

136 S.W.3d 315, 318 (Tex.App.-Houston [1st Dist.] 2004, pet. struck).


      Petetan maintains the facts presented demonstrate he was denied the

effective assistance of counsel due to Hunt’s representation of both Petetan and Ali

as well as Hunt’s efforts to defend against the accusation he was sponsoring false

testimony concerning Petetan’s intellectual disability. Hunt was precluded from

cross-examining Ali with confidential information he acquired while representing

Ali. The jury was left with the clear impression that someone, probably counsel,

had coached Petetan on feigning mental illness in an effort to avoid the death

penalty. Such occurrence placed Hunt in the untenable position of attempting to

save Petetan’s life with an intellectual disability defense while at the same time

defending himself from implications he was sponsoring false testimony. An actual

conflict of interest is shown which adversely affected Hunt’s performance during

the punishment phase of trial. A sentence of death under such circumstances

cannot stand under the Sixth Amendment right to the effective assistance of

counsel. Petetan is entitled to a new punishment hearing with conflict free counsel.


                                Point of Error Ten


The jury’s answer to the intellectual disability special issue is against the great

weight and preponderance of the evidence.

                                       - 103 -
      A. The evidence relevant to Petetan’s intellectual disability.


      Ramona Pitre is a public school teacher in Port Arthur (55 RR 21). In 1989,

Petetan was in her in-school suspension program (55 RR 26). She does not believe

Petetan is intellectually disabled;7 he just cannot follow rules and misbehaves (55

RR 31). In twenty five years of teaching, she has never had a student with

intellectual disability, mental problems, or mental illness in one of her classes (55

RR 32).


      Edward Cockrell is with the Jefferson County Juvenile Probation

Department (55 RR 36). It was decided to pursue certification for prosecution as

an adult after Petetan shot Fredrick Nico with a gun in March of 1992 (55 RR 50,

51, and 55). Cockrell’s certification analysis was admitted into evidence (55 RR

53, 62 RR SX 133). When Petetan was 16 years of age, an IQ test administered

yielded a score of 64 on a child’s test and 74 on an adult test (55 RR 65, 62 RR SX

133). The doctor administering the test described Petetan as mildly intellectually

disabled (55 RR 66).


      Records from the former Texas Youth Commission regarding Petetan were

admitted into evidence (55 RR 87, 62 RR SX 128). The records state Petetan’s


7
  Pitre was not provided with a definition of “intellectual disability” or shown to
be competent to render such an opinion. No objection was voiced to the question,
her qualification to answer, or her answer.
                                       - 104 -
date of birth as February 7, 1976 (62 RR 128). Those records reflect a previous IQ

score of 61 for Petetan from the Port Arthur Independent School District when he

was admitted to TYC at the age of 15 in 1991 (62 RR SX 128). The records

further note that on November 7, 1991, Dr. Antonio Bartonico made reference to a

previous diagnosis of possible mild intellectual disability (62 SX 128). While at

the Brownwood State School, Petetan was diagnosed with mild intellectual

disability (62 RR SX 128).


      The juvenile certification proceedings related to Petetan were admitted into

evidence and published to the jury (55 RR 82, 62 RR SX 130). The exhibit reflects

Petetan’s date of birth as February 7, 1976 (62 RR SX 130).


      Leonard Cucolo testified that Petetan was received by the Brownwood State

School in 1991 after his juvenile probation for burglary was revoked (55 RR 84,

87). He was at the Brownwood School for four months before returning to Port

Arthur on juvenile parole (55 RR 93). While housed at the Brownwood School,

Petetan was diagnosed as mildly intellectually disabled (55 RR 103, 62 SX 128).


      On March 21, 1992, Fredrick Nico was at Petetan’s house in Port Arthur

drinking beer in the backyard (55 RR 124). While at Petetan’s house, Petetan




                                      - 105 -
pointed a pistol at Nico and shot him twice (55 RR 128). Nico has known Petetan

for 25 years and does not consider him to be intellectually disabled (55 RR 134).8


      The pen packets from Petetan’s five prior felony convictions were admitted

into evidence (55 RR 217, 62 RR SX 131). He was received at the Department of

Corrections when he was 17 years of age on August 27, 1993 (62 RR SX 131).

Prison records reflected his IQ testing was scored at 69 with a notation he was

expelled following the eighth grade (62 RR SX 130).


      Morris Lee was Petetan’s principal in elementary school (56 RR 44).

Petetan was frequently sent to Lee’s office because he did not follow school rules

(56 RR 45). According to Lee, Petetan had no mental disabilities other than being

hard-headed (56 RR 51).9


      Ophelia Ortiz is Petetan’s mother (56 RR 107). As an infant, Petetan would

constantly cry and pitch a fit (56 RR 112-113). While upset, he would break his

baby bottles (56 RR 112). His temper tantrums started as a baby and have never

subsided (56 RR 121).

8
  Nico was not provided with a definition of “intellectual disability” or shown to
be competent to render such an opinion. No objection was voiced to the question,
his qualification to answer, or his answer.
9
  Lee was not provided with a definition of “mental disabilities” or shown to be
competent to render such an opinion. No objection was voiced to the question, his
qualification to answer, or his answer.

                                      - 106 -
      Petetan has wet the bed since childhood and still does so (56 RR 114). He

was slow as a child and his mother had to repeatedly tell him to bathe (56 RR 115).

He was unable to take care of himself as a child and unable to tie his shoes (56 RR

116). As a child, he was unable to dress himself or brush his teeth (56 RR 116).

He did not follow her directions (56 RR 118).


      She had to walk with him to school because if he went by himself, he would

get lost or go the wrong way (56 RR 117). He did not do his school homework (56

RR 118). She could never send him to the store because he could not remember

what he was to purchase (56 RR 171). He never learned to make change when

purchasing an item (56 RR 171).


      After his best childhood friend, “Pee Wee,” died, his nervousness and

depression increased (56 RR 120). Petetan had no interest in television or games

as a child (56 RR 122). He would simply sit on the floor or go walking without

first telling his mother where he was going (56 RR 122). He was committed to a

psychiatric hospital at age 15 before he went to the Brownwood State School (56

RR 128).


      Petetan was never able to get a driver’s license because he was unable to

pass the written portion of the test (56 RR 123). After he left prison, he could not

take care of himself (56 RR 124). Her daughter, Petetan’s sister, would clean and

                                       - 107 -
wash his clothes because he could not operate a washing machine (56 RR 124).

He was unable to figure out how to operate a cell phone (56 RR 125). He never

learned to wash dishes (56 RR 127).


      Sabrina Mouton, Petetan’s older sister, testified that up to age two, Petetan

would cry constantly, wet himself, and not pay attention (56 RR 182). He didn’t

walk until three years old or talk until four or five years old (56 RR 184).


      Growing up, Petetan would not play outside with his sister; he just wandered

around the neighborhood aimlessly by himself (56 RR 185). He never watched

television or played games (56 RR 186). He was fat as a child and teased by others

(56 RR 187). He never learned to ride a bicycle (56 RR 188).


      When Petetan came home from prison, she tried to teach him how to use a

cell phone and he could not learn (56 RR 193). He never learned to count money

(56 RR 198). His handwriting is poor (56 RR 201). At the apartment he obtained

while on parole, Petetan did not know how to cook for himself or clean up after

himself (56 RR 197).


      Cathy Gauthier, Petetan’s aunt from Lake Charles, testified that Petetan

lived with her for a year when he was 13 or 14 years old (56 RR 241, 244). He

was real quiet and slower than her children (56 RR 245-246). Petetan did not

attend school for the year he spent with Gauthier (56 RR 251).
                                       - 108 -
        Petetan’s cousin, Caston Gauthier, visited Petetan while he was in prison (56

RR 26). When Petetan told Gauthier that he wanted to be a bondsman or rapper

upon release from prison, Gauthier thought Petetan did not have the intellectual

ability to engage in such professions (56 RR 263-264). He never thought Petetan

was intellectually disabled (56 RR 265).10


        Kimberly Jackson is Petetan’s cousin and the daughter of Cathy Gauthier

(56 RR 272). She and Petetan are the same age (56 RR 272). She remembered

that when Petetan was living with her family, he was not on her level “mind-wise”

and intellectually slower than her (56 RR 272, 274).


        Thomas Kemper is Petetan’s uncle (56 RR 276). Petetan has been

intellectually slow since birth (56 RR 279). He was in special education classes in

school (56 RR 280). As a child, Petetan refused to bathe or groom himself (56 RR

281).


        Dr. Ray Coxe is a psychologist from Beaumont (56 RR 313). In 1992, he

was performing psychological examinations for the court system in Jefferson

County in connection with whether juveniles should be certified as adults for

purposes of prosecution (56 RR 315). He examined Petetan at the request of the

10
   Gauthier was not provided with a definition of “intellectual disability” or shown
to be competent to render such an opinion. No objection was voiced to the
question, his qualification to answer, or his answer.

                                        - 109 -
juvenile probation department in connection with a pending attempted murder

charge in an effort to determine whether Petetan should be certified as an adult (56

RR 316-317). Petetan was 16 years of age at the time of the examination (56 RR

316).


        In view of his age, Coxe administered IQ tests for both children and adults to

Petetan (56 RR 318). He explained the child test goes up to age 17 while the adult

test goes down to age 16 (56 RR 318). Petetan’s full scale IQ on the child version

was 64 which places him in the lower three percentile (56 RR 322). Petetan’s full

scale IQ on the adult test was 74 which places him in the lower four percent (56

RR 323). Due to testing differences between the two tests, it is not unusual for the

adult test to be 10 points higher than the child test (56 RR 323).


        Coxe also administered achievement tests to Petetan (56 RR 354). The tests

are scored like an IQ test (56 RR 354). Petetan scored 70 on reading, 61 on

spelling, and 46 on mathematics (56 RR 354). Based on testing and evaluation in

1992, Coxe believed Petetan to be mildly intellectually disabled (56 RR 357).


        Dr. Harold Scott, a psychiatrist, was previously a consultant for the Texas

Youth Commission at the Brownwood State School (57 RR 40. 43). He examined

Petetan at the school in 1991 when Petetan was 15 years old (57 RR 45). Scott

diagnosed Petetan with a conduct disorder and mild intellectual disability (57 RR

                                        - 110 -
53). Scott explained that mild intellectual disability meant an IQ score between 55

and 69 (57 RR 55). The diagnosis was based in part on previous IQ testing of

Petetan (57 RR 56).


      Edmond Stewart is a former professional boxer (57 RR 92). For the last five

years, he has been a pastor at a jail ministry in the McLennan County Jail (57 RR

95). Stewart met with Petetan in jail and found it hard to have a conversation with

him because his mind tends to “wander off” (57 RR 98).


      Ellis Craig is a psychologist with 47 years of experience working in the area

of adaptive behavior assessments (58 RR 7). He performed an adaptive behavior

assessment of Petetan by administering a test, reviewing records, and speaking

with Petetan’s relatives (58 RR 18, 34, and 38).


      Craig explained that adaptive behavior involves the ability to “get along” in

everyday life and the ability to do things everyone else is able to do (58 RR 19).

When conducting an assessment, he measures social skills, conceptual skills, and

practical skills (58 RR 19-20). Conceptual skills include language, numbers, and

time (58 RR 20). Social skills involve interpersonal relationships, social

responsibility, gullibility, and naiveté (58 RR 22). Practical skills involve daily

living, hygiene, feeding, use of money, and the ability to follow schedules and

routines (58 RR 23). Fighting, arguing, and a lack of cooperation are more

                                        - 111 -
common among those with intellectual disability than the general population (58

RR 24). The testing is conducted in such a way that the score of 100 is average and

a score of 70 or below would indicate significant limitations in adaptive behavior

(58 RR 21).


       Craig used the ABAS-II assessment test when seeking to determine

retrospectively whether Petetan had adaptive behavior deficits in his

developmental period (58 RR 33-34). The test measures adaptive behavior in a

number of areas including: communication; community use; functional academics;

home living; health; safety; leisure; self-care; self-direction; and social (58 RR 35).


       When speaking with Petetan’s relatives, Craig sought to determine adaptive

behavior before the time Petetan went to prison at 17 years of age (58 RR 67).

Most of the answers provided to his questions were examples of adaptive deficits

from the time Petetan was a youth of 14 or 15 years old and had not yet gone to

prison (58 RR 68). Craig believed Petetan was forthcoming with him during the

assessment and did not intentionally attempt to underestimate his abilities (58 RR

39).


       The information gathered from Petetan’s relatives was graded for adaptive

disabilities (58 RR 40). The information from Petetan’s mother placed Petetan so

low that Craig did not consider it reliable (58 RR 40). Petetan’s brother and sister

                                        - 112 -
ranked his social skills as the best, conceptual skills the second best, and practical

skills at the lowest level (58 RR 41).


      The scoring of adaptive assessment is similar to scoring on an IQ test with

the norm in the 85 to 115 range (58 RR 42). The results of the assessment done by

Craig were based on input from Petetan and his relatives and the scores were as

follows: brother 53; uncle and sister 47; Petetan 42; and Petetan’s mother 40 (58

RR 40).


      Craig summarized some of the adaptive behavior limitations he found during

testing and information supplied by informant relatives in the following manner:


      [H]e was easily led by other people, that the basic social skills of
      being polite and offering to help people, he simply doesn't do it. He
      doesn't say thank you. He doesn't give gifts. He doesn't offer
      assistance to people. And this was a uniform finding too.

      He didn't engage in games. The only games we ever heard that he
      played were with a cousin who played Hide and Seek with him, and
      this was when he was older, too. But he simply didn't understand any
      kind of simple kind of games that, you know, kids play.

      He showed no interest in most -- what a lot of people use for leisure,
      which is TV. I mean, he has consistently over the years never shown
      the least bit of interest in TV.

      [He has] very limited conversational skills. It's really hard to engage
      in a conversation with him. He just won't follow the conversation.
      You can't get a response to what you're saying.

      In terms of getting along in the world, it was routinely noted that he
      was unable to read menus. I mean, he would have to order things -- if
                                       - 113 -
he went out to, you know, a fast food restaurant or something, he
would have to order by the picture, just saying what he knew it was.

He could not calculate the correct change. And you really couldn't
depend on him time-wise. He was irresponsible regarding time
commitments.

Again, in his neighborhood he could get along just fine. I mean, he
knew how to find places. He couldn't necessarily tell you street
names, but he knew where things were geographically. He could make
simple meals for himself, and this was kind of like a little
idiosyncratic thing about him.

He never learned to use a fork. I mean, he would sometimes use a
spoon, but every bit of food that you gave him, he would wrap up in
bread. That's how he ate. I mean, he made a sandwich out of
everything. So in terms of the typical or just lack of ability, he didn't
do. It's fairly common for people, even with mild mental retardation,
to have difficulties cutting their food into bite-size portions.
Somebody may have to do that for them. I'm not sure if that was the
case with him, because he didn't use a knife. He just used a spoon.

He was able to take medications. He was able to swallow them. He
didn't resist that. And he could dress himself. He didn't necessarily
dress himself well, but he could do the physical act.

Even though he could get around the community, he was unable to
use a map. He relied on the ability to -- either people tell him familiar
locations or whatever, and he got lost fairly easily.

He did not do housekeeping. He was described as a terrible
housekeeper and never made his own bed, was unable to learn how to
operate most common appliances, broke microwaves because he
didn't know how to use them, put the wrong things in them, had no
conception about how to use a washer or a dryer.

And even in the area of first aid, I mean, when asked what he would
do if he cut his finger, he said he would sop it up. "Sop the blood up,"
that was his response. So he didn't -- he just wasn't worried that way

                                  - 114 -
      where he would know to put a Band-Aid and some Bactine or
      something on it (58 RR 43-47).

      He doesn't understand jokes. I mean, it's too complex. You know, I
      asked him, you know, "Do people tell you things that make you
      laugh," and he said, "No."


      Adaptive behavior strengths as found by Craig included:


      He got along well with family members. He could navigate his
      community pretty well. He could present himself in a reasonably good
      -- I mean, you know, although his personal hygiene was not
      particularly good, he dressed and he could blend in with the
      neighborhood. It may be that in that environment he was not really
      that atypical in terms of how he dressed and his personal hygiene. I
      don't really know.

      He had good social skills in general. I mean, he could make friends
      and he could hang out with a group that he felt comfortable with (58
      RR 97).


      Based on the test results he obtained, Craig concluded Petetan’s adaptive

limitations far outweigh his limited skills (58 RR 47). Craig had to rely on

retrospective assessments because there was no measure from when Petetan was a

child other than one report noting his adaptive limitations without concurrent

testing (58 RR 48). Based on his adaptive behavior deficits and the IQ scores he

has seen, Craig considers Petetan to be moderately intellectually disabled which is

more severe than mildly intellectually disabled (58 RR 48).




                                       - 115 -
      Dr. Kevin Correia, a psychologist, examined Petetan on August 8, 2012, in

connection with an application for Social Security disability benefits (58 RR 104,

63 RR DX 5). Correia administered an IQ test resulting in a full scale score of 55

(58 RR 104, 63 RR DX 5). Correia diagnosed Petetan as mildly intellectually

disabled in view of his IQ score and adaptive behavior deficits (58 RR 104, 63 RR

DX 5).


      Joan Mayfield is a neuropsychologist (58 RR 105). While Petetan was in

the McLennan County Jail awaiting trial, she administered 16 different tests to him

(58 RR 124). Multiple tests, rather than simply an IQ test, were administered to

determine how Petetan’s whole brain was functioning across a number of different

areas (58 RR 170). The tests covered areas such as IQ, intellectual ability,

attention, executive functioning, academic achievement, memory, learning,

language, visual spatial, and motor coordination (58 RR 117). She did not perform

any adaptive behavior assessment testing and relied on the testing by Dr. Craig (58

RR 231). She thought Petetan gave his best effort during the testing she

administered (58 RR 186).


      Mayfield explained that one of the components of intellectual disability is

sub-average intellectual functioning as shown by a full scale IQ score of 70 or

below, namely, two standard deviations below the mean (58 RR 129). She also


                                       - 116 -
considered and looked for evidence of an onset of the condition before the age of

18 (58 RR 132).


      Mayfield was provided access to various records including Petetan’s school

records and previous psychological testing (58 RR 133). She noted Petetan was

required to repeat both the third and sixth grades in school (58 RR 133). He was

socially promoted to the fourth grade rather than being required to repeat the third

grade for the second time (58 RR 133). He ultimately dropped out of school in the

ninth grade (58 RR 220).


      Her testing of Petetan revealed global delays in intellectual ability,

academic, executive functioning, problem solving, memory, language, motor

skills, and visual perception (58 RR 185). He suffers from sub-average intellectual

functioning with an onset before the age of 18 (58 RR 185-186). Her testing

revealed a full scale IQ score of 52 (58 RR 135). The IQ testing results were

consistent with previous IQ testing results of Petetan she was provided (58 RR

186, 244). Mayfield explained that different scores may be obtained on different

versions of the same test (58 RR 243).


      She explained that at the time Coxe administered the child and adult

versions of an IQ test to Petetan, there was a problem in correlating the results and

those scoring on the lower end of child’s IQ test typically scored 10 to 15 points

                                         - 117 -
higher on the adult version (58 RR 228). When the tests were revised, the norms

for the tests were adjusted and there is now greater reliability between the two tests

so that the scores are now similar (58 RR 228). She believed Coxe found the

child’s score of 64 to be more reliable than the adult score of 74 and that is the

reason he diagnosed Petetan as mildly intellectually disabled (58 RR 228).


      Although she did not perform any adaptive behavior limitations assessment,

on cross-examination, Mayfield was asked questions concerning adaptive behavior

limitations in relation to the Briseno factors created by this Court in relation to

adaptive behavior (58 RR 232). She noted that her role was not that of assessing

adaption functioning because Dr. Craig had taken on that role (58 RR 233, 236).

Nevertheless, she assumed that facts within a hypothetical posed by the prosecutor

concerning the instant cause would show an ability to hide facts and material

evidence (58 RR 236). She assumed an ability to lie about a companion would

show an ability to lie in anticipation of being arrested (58 RR 236). Although not

present for Petetan’s trial testimony, based on the prosecutor’s representations of

that testimony, she assumed the ability to respond coherently to questions (58 RR

237). Based on Petetan’s criminal history, as represented by the prosecutor, he has

the ability to act alone in criminal conduct (58 RR 238). Based on the facts of the

instant offense as represented by the prosecutor, Petetan was not working under the



                                        - 118 -
directions of others at the time of the offense (58 RR 238). The defense rested on

punishment (58 RR 248).


      Dorothy Stamps is a retired public school teacher from Port Arthur (59 RR

45). Petetan was in her first grade class (59 RR 50). She did not believe him to be

intellectually disabled (59 RR 50).11


      Eddie Fowler was the principal of the middle school attended by Petetan (59

RR 59). Petetan was placed in special education classes because he was a

discipline problem (59 RR 63). Otherwise, he was an average student and not

intellectually disabled (59 RR 63-64).12


      Petetan’s school records were admitted into evidence (59 RR 69, 63 RR DX

10). Those records reflect he failed two grades and was socially promoted in

another grade (59 RR 66). He withdrew from school in the eighth grade (63 RR

DX 10).




11
   Stamps was not provided with a definition of “intellectual disability” or shown
to be competent to render such an opinion. No objection was voiced to the
question, her qualification to answer, or her answer.

12
   Fowler was not provided with a definition of “intellectual disability” or shown
to be competent to render such an opinion. No objection was voiced to the
question, his qualification to answer, or his answer.

                                        - 119 -
      Mattie Howe was Petetan’s parole officer in Beaumont from May to

September of 2012 (59 RR 70-71). Howe does not believe Petetan is intellectually

disabled (59 RR 75).13


      Travis Turner works for the Classification Department of TDCJ (59 RR 80).

When Petetan was initially received at TDCJ in 1993, he scored a 69 on an IQ test

(59 RR 85). He took an adaptive behavior screening test, but was never assigned

to a prison unit for intellectually disabled offenders (59 RR 85-86).


      B. The trial court’s charge on intellectual disability.


      At the close of the punishment phase, the trial court presented a charge to the

jury (60 RR 5, 4 CR 1330). With respect to the issue of intellectual disability, the

court charged the jury as follows:


      "You are instructed that in answering Special Issue Number 3, you
      shall answer yes or no.

      "The Defendant has the burden of proving by a preponderance of the
      evidence that Special Issue Number 3 should be answered yes.

      "By the term 'preponderance of the evidence' is meant the greater
      weight of the credible evidence.



13
   Howe was not provided with a definition of “intellectual disability” or shown to
be competent to render such an opinion. No objection was voiced to the question,
her qualification to answer, or her answer.

                                       - 120 -
      "You may not answer Special Issue Number 3 unless you agree --
      you may not answer Special Issue Number 3 yes unless you agree
      unanimously.

      "You may not answer Special Issue Number 3 no unless you agree
      unanimously.

      "In deliberating on Special Issue Number 3, you shall consider all
      evidence admitted at the guilt/innocence stage and the punishment
      stage of this trial.

      "Mental retardation14 is a disability characterized by:
      "1. Significant subaverage general intellectual functioning;15

      "2. Accompanied by related limitations in adaptive functioning;16

      "3. The onset of which occurs prior to the age of 18.

14
   The trial court sustained the State’s objection to the use of the term “intellectual
disability” rather than “mental retardation” during trial (57 RR 109-110). See Hall
v. Florida, ___ U.S. ___, ___, 134 S.Ct. 1986, 1991, 188 L.Ed.2d 1007 (2014)
(“Previous opinions of this Court have employed the term ‘mental retardation.’
This opinion uses the term ‘intellectual disability’ to describe the identical
phenomenon.”). The term “mentally retarded” has been changed to “intellectually
disabled,” as mental health advocates decided that the former term had pejorative
connotations. Ex parte Cathey, 451 S.W.3d 1, 5 n.4 (Tex. Crim. App. 2014). See
TEX. HEALTH & SAFETY CODE§ 591.003(13) (providing mental retardation
means intellectual disability).
15
  No objection was voiced by counsel to the trial court’s failure to include the
instruction that significant subaverage intellectual functioning is generally
evidenced by an IQ of 70 or below. Likewise, counsel did not request an
instruction or object to the lack of a definition of “significant subaverage general
intellectual functioning” (4 CR 1313).
16
  No objection was voiced by counsel to the trial court’s use of the term “adaptive
functioning” rather than “adaptive behavior.” Counsel also failed to object to the
absence of a definition for the term “adaptive behavior” or request a definition of
the term (4 CR 1313). See TEX. HEALTH & SAFETY CODE § 591.003(1).

                                        - 121 -
      "You are instructed that if you return a negative finding, that is, a no
      answer, to Special Issue Number 2, then and only then --" that should
      be "Special Issue Number 3," ladies and gentlemen. I'm going to
      correct the copy here, if you want to correct yours.

      "You are instructed that if you return a negative finding, that is a no
      answer, to Special Issue Number 3, then and only then are you to
      answer Special Issue Number 4 (60 RR 7-9).

      "Special Issue Number 3: Do you find, taking into consideration all
      of the evidence, that the Defendant is a person with mental
      retardation?"

      If the answer is unanimous, and it has to be unanimous for a yes or a
      no answer, it should be signed by the Presiding Juror (60 RR 14).
      Ultimately, the jury returned a “no” answer to the third special issue (60 RR

68, 4 CR 1338). Based on the jury’s answers to the special issues, Petetan was

sentenced to death in open court (60 RR 71).


      C. The standard of review and burden of proof.


      In Atkins v. Virginia, 536 U.S. 304, 321 (2002), the United States Supreme

Court decided that it violates the United States Constitution for a state to execute a

mentally retarded murderer. The Court simultaneously left to the individual states

the substantive and procedural mechanisms to implement the Atkins decision.

Atkins, 536 U.S. at 317.


      In view in the absence of legislation and the Atkins decision, this Court

adopted the American Association on Mental Retardation (AAMR) definition of

                                        - 122 -
mental retardation for Atkins claims presented in Texas death-penalty cases. See Ex

parte Briseno, 135 S.W.3d 1, 7–8 (Tex. Crim. App. 2004). The AAMR defines

mental retardation as a disability characterized by: (1) “significantly subaverage”

general intellectual functioning, which is usually evidenced by an IQ “of about 70”

or below,17 (2) accompanied by “related” limitations in adaptive functioning,18 (3)

the onset of which occurs prior to the age of 18. See id;.19 see also Ex parte

Tennard, 960 S.W.2d 57, 61 (Tex.Cr.App.1997) (third part of AAMR definition

17
     See Briseno, 135 S.W.3d at 7 n.24.
18
   See Briseno, 135 S.W.3d at 7 n. 25 (“Impairments in adaptive behavior are
defined as significant limitations in an individual's effectiveness in meeting the
standards of maturation, learning, personal independence, and/or social
responsibility that are expected for his or her age level and cultural group, as
determined by clinical assessment and, usually, standardized scales.”) (internal
quotes omitted).
19
  In Briseno, 135 S.W.3d at 7–8, we also adopted the definition of mental
retardation contained in the Texas Health and Safety Code, which, similar to the
AAMR definition, defines mental retardation as “significantly subaverage general
intellectual functioning that is concurrent with deficits in adaptive behavior and
originates during the developmental period.” See TEX. HEALTH & SAFETY CODE
§ 591.003(13).
The most recent amendment to the Texas Health and Safety Code definition of
“mental retardation” defines it as “intellectual disability,” and it defines
“intellectual disability” as “significantly subaverage general intellectual
functioning that is concurrent with deficits in adaptive behavior and originates
during the developmental period.” TEX. HEALTH & SAFETY CODE §§
591.003(13) & (7–a). See In re Allen, 462 S.W.3d 47, 56 (Tex. Crim. App. 2015)
(Yeary, J., concurring).




                                          - 123 -
requires a person to exhibit parts one and two of the AAMR definition during the

developmental period).


      This Court used Briseno to “define [from its own perspective] 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.” Id. at 6. The Court

recognized that, the term “mental retardation” as defined in the DSM–IV included

those categorized as mildly, moderately, severely, and profoundly mentally

retarded, and that “some 85% of those officially categorized as mentally retarded

fall into” the mildly mentally retarded range. Id. at 5. The Court observed that

“mental retardation is not necessarily a lifelong disorder.” Id. at 6. And it noted

that “those in the mental health profession” might understandably “define mental

retardation broadly to provide an adequate safety net for those who are at the

margin” and who “might well become mentally-unimpaired citizens if given

additional social services support.” Id. The Court questioned whether “a consensus

of Texas citizens” would agree “that all persons who might legitimately qualify for

assistance under the social services definition of mental retardation” should be

“exempt from an otherwise constitutional penalty.” Id. But in the absence of

legislative guidance, it adopted the definitions of “mental retardation” then




                                        - 124 -
promulgated by the American Association on Mental Retardation (AAMR)20 and

section 591.003(13) of the Texas Health and Safety Code. Id. Those definitions

were very similar.


      In Briseno, the Court stated the adaptive behavior criteria are exceedingly

subjective, and undoubtedly experts will be found to offer opinions on both sides

of the issue in most cases. Briseno, 135 S.W.3d at 8. Seemingly from whole cloth

and without scientific, clinical, or other authority, the Court declared there are

other evidentiary factors which factfinders in the criminal trial context might also

focus upon in weighing evidence as indicative of mental retardation or of a

personality disorder:


      Did those who knew the person best during the developmental stage—
      his family, friends, teachers, employers, authorities—think he was
20
  The Supreme Court referred to the AAMR definition of mental retardation in
Atkins. 536 U.S. at 308 n.3 & 317 n.22. That organization has now changed its
name to the American Association on Intellectual and Developmental Disabilities
(AAIDD). The Supreme Court also referred to the American Psychiatric
Association (APA) definition of mental retardation as it was then described in the
Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM
IV–TR): “The essential feature of Mental Retardation is significantly subaverage
general intellectual functioning (Criterion A) that is accompanied by significant
limitations in adaptive functioning in at least two of the following skill areas:
communication, self-care, home living, social/interpersonal skills, use of
community resources, self-direction, functional academic skills, work, leisure,
health, and safety (Criterion B). The onset must occur before age 18 years
(Criterion C).” American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders p. 41 (4th ed. 2000). See In re Allen, 462 S.W.3d 47,
56 (Tex. Crim. App. 2015) (Yeary, J., concurring).

                                        - 125 -
      mentally retarded at that time, and, if so, 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?
      See Briseno, 135 S.W.3d at 8.


      This Court has decided that a defendant, presenting an Atkins intellectual

disability claim at trial, has the burden to prove by a preponderance of the evidence

that he is intellectually disabled. See Williams v. State, 270 S.W.3d 112, 114 (Tex.

Crim. App. 2008); Gallo v. State, 239 S.W.3d 757, 769–70 (Tex. Crim. App.

2007). When reviewing a defendant’s assertion the jury’s rejection of an issue is

against the great weight and preponderance of the evidence, an appellate court

views the entirety of the evidence in a neutral light, and may not usurp the function

of the jury by substituting its judgment in place of the jury's assessment of the

                                       - 126 -
weight and credibility of the witnesses' testimony. Matlock v. State, 392 S.W.3d

662, 671 (Tex. Crim. App. 2013). A finding rejecting a defendant's issue upon

which he had the burden of proof by a preponderance of the evidence cannot be

overruled unless, after setting out the relevant evidence supporting the verdict, the

court clearly states why the verdict is so much against the great weight of the

evidence as to be manifestly unjust, conscience-shocking, or clearly biased.

Butcher v. State, 454 S.W.3d 13, 20 (Tex. Crim. App. 2015). Thus, in reviewing a

jury's finding that a defendant is not intellectually disabled, it is appropriate to

consider all of the evidence relevant to the intellectual disability issue and

determine, with “great deference” to the jury's finding, whether this finding is “so

against the great weight and preponderance of the evidence so as to be manifestly

unjust.” See Neal v. State, 256 S.W.3d 264, 273 (Tex. Crim. App. 2008) (noting

appellate court affords “great deference” to jury's finding that defendant is not

intellectually disabled because jury is in the best position to assess witness

credibility and to resolve conflicts in the evidence); Williams, 270 S.W.3d at 114;

Gallo, 239 S.W.3d at 769–70.




                                         - 127 -
     D. This Court’s flawed practice when reviewing sufficiency of the evidence

claims relative to showing intellectual disability by a preponderance of the

evidence.21


        This Court routinely applies the Briseno factors instead of clinical diagnostic

criteria to evaluate intellectual disability. As Hall v. Florida confirmed, however,

clinical standards “were a fundamental premise of Atkins.” 134 S. Ct. 1986, 1999

(2014). Like Florida, Texas departs from those standards in several respects,

including by disregarding a defendant’s adaptive deficits if the defendant also

exhibits adaptive strengths and by giving effect to lay stereotypes of how

intellectually disabled persons ought to appear or behave. Even after Hall, this

Court has relied on that nonclinical approach to uphold death sentences when

defendants concededly meet the clinical definition of intellectual disability.


         In contrast to this Court, the vast majority of death penalty States have

made clear that clinical standards should govern the determination of the second

prong of the definition of intellectual disability; just as Hall confirmed they should

apply at the first prong. In cases presenting facts very similar to this one, courts in

those States have held that the Eighth Amendment forecloses the death penalty.



21
  These arguments are largely taken from a petition for writ of certiorari currently
pending before the Supreme Court in Lizcano v. Texas, No. 15-65.
                                     - 128 -
      This Court’s outlier status continues to defy the Supreme Court’s

holding in Hall that “persons who meet the ‘clinical definitions’ of intellectual

disability ‘by definition’” are ineligible for the death penalty. 134 S. Ct. at 1999.

This Court invented the Briseno factors because it deemed the clinical diagnostic

criteria too “subjective.” Ex parte Briseno, 135 S.W.3d 1, 8 (Tex. Crim. App.

2004). Briseno cited no authority for these factors—scientific or otherwise— and

offered n o g u i d a n c e on h o w t h e y s h o u l d be weighed. Id. at 8-9. No

clinical authority supports them.    Yet Briseno’s standard governs all Atkins

claims in Texas, even after Hall. E.g., In re Allen, 462 S.W.3d 47, 51-52 (Tex. Crim.

App. 2015). Applying that standard, this Court has sustained death sentences even

where defendants meet clinical definitions of intellectual disability.


    The Briseno factors do not merely “flesh out the AAMR definition” of

intellectual disability. Chester v. Thaler, 666 F.3d 340, 346 (5th Cir. 2011). They

supplant it. Texas’s approach presents “an array of divergences from the clinical

definitions.” Blume et al., Of Atkins and Men, 18 Cornell J.L. & Pub. Pol’y 689,

712 (2009). It is concededly “non-diagnostic.” Ex parte Van Alstyne, 239

S.W.3d 815, 820 (Tex. Crim. App. 2007) (per curiam). It “bear[s] no

resemblance to the AAMR or APA adaptive functioning criteria.” Chester, 666 F.3d

at 361 (Dennis, J., dissenting). And it invites “factfinders in Texas to adjust the

clinical criteria … to conform to their own normative judgments with respect to
                                        - 129 -
which mentally retarded offenders are deserving of the death penalty and which are

not.” Lizcano v. State, 2010 WL 1817772, at *35 (Tex. Crim. App. 2010) (Price,

J., concurring and dissenting).


       Strengths and weaknesses. Clinicians recognize that “adaptive skill

limitations often coexist w i t h strengths.” AAIDD Manual 45. Observed

limitations in one area therefore cannot be “outweighed” by potential strengths in

others. Id. at 47. Under clinical standards, meeting minimum thresholds for deficits

yields a diagnosis of intellectual disability, regardless whether a defendant is

“competent in other adaptive domains.” Greenspan, The Briseño Factors, in The

Death Penalty and Intellectual Disability 219, 221 (Polloway ed., 2015).22

There are no “prong t w o deficits that ‘make or break’ an [intellectual-disability]

diagnosis.” Id.; see also Brumfield v. Cain, 135 S. Ct. 2269, 2281 (2015)




22
   Strengths in an area in which the defendant claims to have limitations are clinically
relevant. Clark v. Quarterman, 457 F.3d 441, 447 (5th Cir. 2006). But “[b]ecause
limitations define mental retardation, adaptive strengths are relevant only insofar as
they offset particular adaptive weaknesses.” Blume, 18 Cornell J.L. & Pub. Pol’y at
707. “Unless a defendant’s evidence of particular limitations is specifically
contradicted by evidence that he does not have those limitations, then the defendant’s
burden is met no matter what evidence the State might offer that he has no deficits
in other skill areas.” Lambert v. State, 126 P.3d 646, 651 (Okla. Crim. App. 2005).

                                         - 130 -
(acknowledging clinical guidance explaining that “intellectually disabled persons

may have ‘strengths in … some adaptive skill areas’”).23


      Texas courts, in contrast, have dismissed serious deficits in adaptive skills

as “insignificant” when weighed against evidence of skills in unrelated areas, such

as renting an apartment, purchasing a car, or washing clothing. Williams v.

Quarterman, 293 F. App’x 298, 312-314 (5th Cir. 2008) (per curiam) (describing

these as “substantial adaptive strengths”); see also Wilson v. Thaler, 450 F. App’x

369, 376 (5th Cir. 2011) (per curiam); Ex parte Cathey, 451 S.W.3d 1, 27 (Tex.

Crim. App. 2014); (Price, J., concurring and dissenting). Under Texas law, if a

factfinder “concludes that the [defendant] met one of the Briseno factors even in a

limited period of time or situation, the factfinder may then overlook the

[defendant’s] limitations and conclude that the [defendant] is not mentally retarded.”

Chester, 666 F.3d at 367 (Dennis, J., dissenting).


      Lay stereotypes. Contrary to objective clinical criteria, Texas both allows

and encourages the factfinder to treat lay stereotypes as dispositive of intellectual


23
  In Brumfield, the Court held that the state court had reached an
unreasonable determination of the facts in light of “substantial grounds” in the
record to “question [the petitioner’s] adaptive functioning,” and that the petitioner
was entitled to an evidentiary hearing on the issue in federal court. 135 S. Ct. at
2281-2282. The Court “assume[d]” without deciding the adequacy of Louisiana’s
adaptive-functioning standard. Id. at 2279; see also id. at 2277 n.3.


                                         - 131 -
disability. The first Briseno factor, for instance, asks whether family or friends

who knew the defendant during his developmental stage “th[ought]” he was

“mentally retarded.” 135 S.W.3d at 8. Atkins cases in Texas consequently often

turn on testimony from individuals with no clinical training about whether they

personally considered the defendant “retarded.” E.g., Hunter v. State, 243

S.W.3d 664, 668, 671 (Tex. Crim. App. 2007) (defendant’s “former neighbor …

did not think there was anything wrong with [him] mentally”); Williams, 293 F.

App’x at 309 (lay witnesses “did not believe that [defendant] was mentally

retarded”); Wilson, 450 F. App’x at 376 (defendant’s family and acquaintances “at

most” “considered him slow”).


      Other Briseno factors also permit factfinders to reject an Atkins claim based on

“stereotypes of what persons with intellectual disability can (and cannot) do,”

Blume et al., A Tale of Two (and Possibly Three) Atkins, 23 Wm. & Mary Bill Rts.

J. 393, 405 (2014), particularly “lay stereotype[s] of … moderate or severe”

intellectual disability, Greenspan 219. Whether a defendant has “formulated plans,”

“respond[s] coherently” to questions, or can “hide facts or lie effectively,” Briseno,

135 S.W.3d at 8, are not factors considered in any known clinical assessments.

But in Texas, this Court can simply “identify [intellectual disability] when it sees it.”

Ex parte Henderson, 2006 WL 167836 , at *4 (Tex. Crim. App. Jan. 25, 2006)

(Cochran, J., concurring).
                                         - 132 -
       Typical performance. “Adaptive behavior … is the collection of conceptual,

social, and practical skills that have been learned and are performed by people in their

everyday lives.” AAIDD Manual 45 (emphasis added); see also DSM-5, at 33. The

clinical diagnosis of deficits in adaptive functioning therefore “focuses on the

individual’s typical performance,” often assessed using a standardized diagnostic

test, rather than the individual’s “best or assumed ability or maximum

performance.” AAIDD Manual 47.


       This Court, in contrast, both encourages and allows the factfinder to focus

on a particular event—the commission of the offense—regardless of whether it

exemplifies behavior that is typical of the individual’s functioning in everyday life.

See, e.g., Gallo v. State, 239 S.W.3d 757, 777 (Tex. Crim. App. 2007) (“[M]any of

the Briseno factors pertain to the facts of the offense and the defendant’s behavior

before and after the commission of the offense.”); Ex parte Taylor, 2006 WL

234854, at *3-6 (Tex. Crim. App. 2006) (Johnson, J., concurring) (focusing on the

facts of the crime to deny Atkins claim); Hines v. Thaler, 456 F. App’x 357, 372

(5th Cir. 2011) (similar).


       Personality disorders. This Court’s approach also invites a clinically

unfounded distinction between intellectual disability and personality disorders. The

Court treats the Briseno factors as “indicative of mental retardation or of a


                                        - 133 -
personality disorder.” 135 S.W. 3d at 8 (emphasis added). Some courts have

applied them to conclude that adaptive deficits merely reflect personality disorder

“as opposed to” intellectual disability. Ladd v. Thaler, 2013 WL 593927, at *8

(E.D. Tex. Feb. 15, 2013), aff’d, 748 F.3d 637 (5th Cir. 2014). Yet clinical guidance

indicates that a person can have both. “Co-occurring mental … conditions are

frequent in intellectual disability[.]” DSM-5, at 40; see also Brumfield, 135 S. Ct. at

2280.


        Relying on Briseno, this Court has rejected Atkins claims even where—as

here—the defendant appears to satisfy the clinical criteria for a diagnosis of

intellectual disability. In Ex parte Sosa, this Court relied on a single Briseno factor

to reverse a finding of intellectual disability. 364 S.W.3d 889, 895-896 (Tex. Crim.

App. 2012). An expert clinician had testified in state habeas proceedings that the

petitioner’s “adaptive functioning was within the lowest 1% of individuals.” Id. at

892. The trial court credited and adopted that testimony. Id. at 893. This Court

declined to grant habeas relief, relying solely on the expert’s failure to consider

one Briseno factor: the facts of the underlying offense. Sosa, 364 S.W.3d at 894-

895; see also id. at 896 (remanding with instructions to consider that factor). In

the Court’s view, a defendant who satisfies clinical standards for deficits in

adaptive functioning nonetheless might not be “less morally culpable, less responsive

to deterrence, and less capable of assisting in his own defense, such that it would
                                        - 134 -
violate the Eighth Amendment to execute him.” Id. at 892. The Court explained that

the Briseno factors address this “concern” by ensuring that, in Texas, clinical

standards will not be dispositive. Id.


      In Ex parte Chester, this Court denied Atkins relief based solely on Briseno.

2007 WL 602607, at *4 (Tex. Crim. App. 2007). The Court acknowledged that

the petitioner had “demonstrat[ed] significant limitations in intellectual

functioning.” Id. at *3. Both parties’ experts agreed that he “would be correctly

diagnosed as mildly mentally retarded” based on the results of a recognized test

of adaptive functioning, the Vineland Adaptive Behavior Survey. Id. Despite this

clinical assessment, the Court denied relief based on the “seven evidentiary factors

listed in Briseno.” Id. at *4. The court emphasized the facts of the crime, the

defendant’s ability to converse coherently, and the defendant’s classification during

his school years as merely “learning disabled.” Id. at *4-9; see also Chester, 666

F.3d at 365 (Dennis, J., dissenting) (Atkins claim denied where “the seventh Briseno

factor, and nothing else” was found to be “sufficient by itself to uphold a denial of

relief”). This Court and federal courts have similarly denied Atkins relief based in




                                         - 135 -
part on the Briseno factors in numerous other cases despite clinical evidence of

intellectual disability.24


       This Court has refused to reconsider Briseno in light of Hall. In Hall, the

Supreme Court confronted a Florida law that “define[d] intellectual disability to

require an IQ test score of 70 or less,” without regard to the measurement error

inherent in such scores. 134 S. Ct. at 1990, 1995-1996. Florida argued that Atkins

gave the States “leeway” to enact “substantive definitions of mental retardation”

that did not conform to clinical definitions.


       Hall thus addressed not simply how to interpret IQ scores, but rather “how

intellectual disability must be defined in order to implement … the holding of

Atkins.” 134 S. Ct. at 1993. Observing that “Atkins did not give the States

unfettered discretion to define the full scope of the constitutional protection,” id. at


24
   See, e.g., Ex parte Clark, 2004 WL 885583, at *3 (Tex. Crim. App. 2004) (per
curiam); Taylor, 2006 WL 234854, at *4-5 (Johnson, J., concurring); Gallo, 239
S.W.3d at 774; Williams v. State, 270 S.W.3d 112, 114-132 (Tex. Crim. App.
2008); Ex parte Woods, 296 S.W.3d 587, 610-613 (Tex. Crim. App. 2009); Ex parte
Butler, 416 S.W.3d 863, 875-876 (Tex. Crim. App. 2012) (Cochran, J., concurring);
Ex parte Weathers, 2014 WL 1758977, at *8-10 (Tex. Crim. App. 2014) (Alcala,
J., concurring); Cathey, 451 S.W.3d at 26-28. Federal courts in Texas have denied
collateral relief on similar grounds. See, e.g., Wilson, 450 F. App’x at 376-377;
Rodriguez v. Quarterman, 2006 WL 1900630, at *13-14 (W.D. Tex. 2006);
Matamoros v. Thaler, 2010 WL 1404368, at *10-15 (S.D. Tex. 2010), modified,
2012 WL 394597 (S.D. Tex. 2012), aff’d, 783 F.3d 212 (5th Cir. 2015);
Hernandezv. Thaler, 2011 WL 4437091, at *20, *22-24 (W.D. Tex. 2011), aff’d,
537 F. App’x 531 (5th Cir. 2013) (per curiam).
                                        - 136 -
1998, the Court held that Florida’s unscientific rule “create[d] an unacceptable

risk that persons with intellectual disability will be executed, and thus [was]

unconstitutional,” id. at 1990; see also, e.g., Van Tran v. Colson, 764 F.3d 594, 612

(6th Cir. 2014) (“In Hall, the Court reasoned that the Constitution requires the

courts and legislatures to follow clinical practices in defining intellectual disability.”).


       Former Judge Price of this Court predicted soon after Hall that “the writing

is on the wall for the future viability of Ex part e Briseno.” Cathey, 451 S.W.3d

at 28 (concurring). Despite that prediction, the Court ignored Lizcano’s

repeated pleas to reconsider Briseno in light of Hall’s renewed emphasis on the

importance of clinical norms. See Ex parte Lizcano, 2015 WL 2085190 (Tex.

Crim. App. 2015). Likewise, the Court refused to reconsider Briseno in light of

Hall in Cathey as well. 451 S.W.3d at 19-20, 26-27.25


       The Fifth Circuit has also refused to reconsider the continued validity of this

Court’s approach in light of Hall, declaring that Hall “in no way affects …
25
  The Supreme Court denied certiorari in Cathey, 83 U.S.L.W. 3912 (U.S. June
22, 2015), but that case did not squarely present the question whether Hall
forecloses continued use of the Briseno factors because the petitioner had also failed
to meet the first prong of the definition of intellectual disability, 451 S.W.3d at 19.
Moreover, according to the State, the Court of Criminal Appeals “relied on and
credited [expert] testimony—not the Briseno factors” to deny relief. Cases
decided by the Fifth Circuit after Hall similarly provide poor vehicles for this
Court to address the continued rejection of clinical criteria because they raise the issue
only through AEDPA’s deferential lens. E.g., Mays v. Stephens, 757 F.3d 211, 217-
218 (5th Cir. 2014), cert. denied, 135 S. Ct. 951 (2015).

                                          - 137 -
application of Briseno.” Mays v. Stephens, 757 F.3d 211, 218 (5th Cir. 2014).26 The

court reasoned that Hall “does not implicate Texas” because “the word ‘Texas’

nowhere appears in the opinion” and because “no reasonable jurist could theorize

that the reasoning animating Hall could possibly be extended to Briseno.” Id. at

218; see also Guevera v. Stephens, 577 F. App’x 364, 372-373 (5th Cir. 2014) (per

curiam) (following Mays); Matamoros v. Stephens, 783 F.3d 212, 218-219 (5th Cir.

2015) (applying Mays to “reject[] the argument that Hall renders Briseno

unconstitutional”); Henderson v. Stephens, 2015 WL 3965828, at *16 (5th Cir.

2015) (Hall “does not call into question the constitutionality of the Briseno

standard”).


      This Court continues to apply factors that have no basis in clinical practice to

allow the execution of defendants whom mental health and medical professionals

would diagnose with intellectual disability. And it continues to demonstrate a

reluctance to conform to the holding in Hall. This Court stands virtually alone in

this approach.




26
  The Fifth Circuit had endorsed Briseno against Eighth Amendment challenge on
several occasions before Hall. See, e.g., Chester, 666 F.3d at 346-347 (“on their
face, nothing about [the Briseno factors] contradicts Atkins”); Woods v.
Quarterman, 493 F.3d 580, 587 n.6 (5th Cir. 2007) (“nothing in Briseno” is
“inconsistent with Atkins”).


                                        - 138 -
      This Court “has clearly taken a path that differs from the other states” on

this issue. Tobolowsky, A Different Path Taken, 39 Hastings Const. L.Q. 1, 142

(2011). No other state legislature or court has devised its own nonclinical evidentiary

factors to govern the evaluation of adaptive functioning for Atkins purposes. Only

two States’ courts have even suggested approval of this Court’s Briseno approach.27


      Many States have enacted statutory definitions of intellectual disability that

incorporate established clinical definitions, including the adaptive-functioning

prong. See, e.g., Idaho Code Ann. § 19-2515A(1)(a); Mo. Rev. Stat. § 565.030(6);

N.C. Gen. Stat. § 15A-2005(a)(1)(b), (2); Okla. Stat. tit. 21, § 701.10b(A)(2);

Ybarra v. State, 247 P.3d 269, 273-275 & n.6 (Nev. 2011) (discussing Nev. Rev.

Stat. § 174.098(7)); Bowling v. Commonwealth, 163 S.W.3d 361, 369-370 & n.8

(Ky. 2005) (discussing Ky. Rev. Stat. Ann. § 532.130(2)). Other States have

adopted clinical standards by judicial decision. See, e.g., Chase v. State, 2015 WL

1848126, at *2-3 (Miss. 2015); State v. White, 885 N.E.2d 905, 907-908 (Ohio

2008). Virginia requires not only a clinical definition, but also—where feasible—the



27
  An intermediate appellate court in Tennessee has cited Briseno approvingly,
Van Tran v. State, 2006 WL 3327828, at *23-24 (Tenn. Crim. App. 2006), but
Tennessee’s highest court has not, see Coleman v. State, 341 S.W.3d 221, 248
(Tenn. 2011). The Pennsylvania Supreme Court has “adopted the clinical definitions
of mental retardation,” but has also “approve[d] the[] use” of the Briseno factors at
the factfinder’s discretion. Commonwealth v. DeJesus, 58 A.3d 62, 82, 86 (Pa.
2012); see also Commonwealth v. Bracey, 2015 WL 3751733, at *15-16 (Pa. 2015).
                                         - 139 -
use of a standardized clinical assessment to evaluate adaptive functioning. Va. Code

Ann. § 19.2-264.3:1.1(B)(2).


      State and federal courts outside of Texas have stressed the importance of

adhering to clinical guidance on adaptive functioning to reach accurate conclusions.

For example, contrary to this Court’s approach, courts have recognized that a

defendant’s possession of some adaptive skills is “in no way inconsistent with” a

diagnosis of intellectual disability, White, 885 N.E.2d at 914, because adaptive

deficits often coexist with strengths, see supra pp. 20-21. These courts have

explained that the factfinder “‘must therefore look at [the defendant’s] weaknesses

instead of at his strengths.’” Van Tran, 764 F.3d at 609; see also, e.g., Sasser v.

Hobbs, 735 F.3d 833, 845 (8th Cir. 2013) (“Consistent with nationally accepted

clinical definitions of mental retardation, the Arkansas standard does not ask

whether an individual has adaptive strengths to offset the individual’s adaptive

limitations.”); Holladay v. Allen, 555 F.3d 1346, 1363 (11th Cir. 2009) (“Individuals

with mental retardation have strengths and weaknesses …. Indeed, the criteria for

diagnosis recognizes this by requiring a showing of deficits in only two of ten

identified areas of adaptive functioning.”); White, 885 N.E.2d at 914 (“The mentally

retarded are not necessarily devoid of all adaptive skills. Indeed, ‘they may look

relatively normal in some areas and have certain significant limitations in other

areas.’”); Lambert v. State, 126 P.3d 646, 651 (Okla. Crim. App. 2005) (“[T]he State
                                        - 140 -
need not present any evidence that a capital defendant can function in areas other than

those in which a deficit is claimed.”).


       Courts outside of Texas have also rejected reliance on the lay stereotypes that

this Court both allows and encourages factfinders to consider. In Thomas v. Allen,

607 F.3d 749, 759 (11th Cir. 2010), the Eleventh Circuit rejected the State’s

argument that an Atkins claimant’s ability to “drive cars and hold menial jobs”

weighed against a finding of intellectual disability. And courts have emphasized the

importance of expert clinical judgment in evaluating an Atkins claim. See, e.g., Van

Tran, 764 F.3d at 605 (“The reliable and professionally vetted methods presented

by … experts, from which the legal standards draw their substance, must guide the

court’s inquiry.”); id. at 612 (“Tennessee law does not permit the state trial court

to use its independent judgment to disregard uncontroverted expert analyses,

consider factors that the experts have testified are unreliable, or declare to be

dispositive a factor irrelevant to the clinical definitions employed by the

experts.”). Factfinders in these States “may not disregard credible and

uncontradicted expert testimony in favor of either the perceptions of lay witnesses or

of the court’s own expectations of how a mentally retarded person would behave.”

White, 885 N.E.2d at 915.




                                          - 141 -
       The distinction between Texas’s approach and that of most other death-

penalty States can make the difference between life and death in factually similar

cases. In particular, defendants situated similarly to Petetan have succeeded on

Atkins claims in other States. In White, the Supreme Court of Ohio held that the

trial court abused its discretion when it denied White’s Atkins claim on the basis of

lay testimony and perceived strengths. 885 N.E.2d at 915-916. Both experts at trial

concluded that White met all three prongs of the clinical definition of intellectual

disability. Id. At 909-910. To rebut evidence of adaptive deficits, the State cited

testimony from White’s ex-girlfriend that he “possessed … adaptive skills

inconsistent with retardation” and “was not perceived by those who knew him as

having significant adaptive disorders.” Id. at 911. White had bought a truck, could

drive, held a job, and dated; he also had other “skills” including playing games

involving coordination and lying to his landlord. Id. at 910, 914. On that basis, the trial

court concluded that White did not satisfy the adaptive-functioning prong.


       Applying clinical standards, the state Supreme Court of Ohio reversed. 885

N.E.2d at 908, 915-916. The court admonished that “rejecting the uncontradicted

testimony of two qualified expert witnesses in the field of psychology” based on

lay perceptions of intellectual disability is “arbitrary [and] unreasonable.” Id. at

915-916. Because “[t]he mentally retarded are not necessarily devoid of all

adaptive skills,” “one must focus on those adaptive skills the person lacks, not on
                                          - 142 -
those he possesses.” Id. at 914. The court cautioned that “laymen cannot easily

recognize” intellectual disability. Id. at 915.


       In State v. Lombardi, the Supreme Court of Missouri prohibited the

execution of an Atkins claimant after holding that he met the adaptive-

functioning prong based on evidence of adaptive deficits, without considering his

strengths. 303 S.W.3d 523, 526-527 (Mo. 2010) (per curiam). The defendant

presented evidence that he had trouble communicating and was quiet and

withdrawn. Id. And school records indicated that the defendant had repeated tenth

grade for three consecutive years. Id. at 527. Missouri’s statutory definition of

adaptive behavior mirrors the previous APA standard and requires a claimant to

demonstrate deficits in at least two of ten skill areas. Id. At 526; see also

Goodwin v. State, 191 S.W.3d 20, 30-32 (Mo. 2006). Applying this standard to the

defendant’s case, the court concluded that the evidence of “deficits and limitations

in two or more adaptive behaviors”— communications and functional

academics—sufficed to demonstrate the defendant’s intellectual disability regardless

of any strengths in adaptive functioning. 303 S.W.3d at 527.


       No two Atkins claimants are identical. But this Court systematically departs

from the clinical norms that govern Atkins claims in the vast majority of other

States by giving dispositive weight to factors that have no scientific grounding. Had


                                          - 143 -
White or Lombardi arisen in Texas, their outcomes would almost certainly have

been different. This Court should cease its defiance of the Supreme Court’s

endorsement of the clinical standards approach to intellectual disability approved

by the Supreme Court in Atkins and Hall.


      E. Petetan proved by a preponderance of the evidence that he is

intellectually disabled under both the flawed Briseno approach and a clinical

standards approach as approved by the Supreme Court in Atkins and Hall.


       There should be no dispute Petetan has “‘significantly sub average general

intellectual functioning’” and meets the first clinical prong of intellectual disability.

His IQ scores have consistently fallen within the range of intellectual disability.

When he was 15 years of age, he scored a 61 on a school administered IQ test. When he

was 16 years of age, he scored a 64 on a child’s version of an IQ test and 74 on an adult

version.28 When he arrived at prison at the age of 17 he scored 69 on a prison

administered test. Following his release from prison in 2012, he scored 55 on an IQ test

administered in connection with an application for disability benefits. Finally, before

trial, he scored 52 on an IQ test administered by Dr. Mayfield.



28
   The variance in those scores with regard to a child taking the adult version and
problems with norming the child and versions of the test were explained by Drs.
Coxe and Mayfield (56 RR 357 and 58 RR 228). In any case, after administering
both tests, Coxe diagnosed Petetan as mildly intellectually disabled (56 RR 357).
                                       - 144 -
       The evidence of Petetan’s significant deficits in adaptive behavior is

overwhelming. Achievement tests administered by Dr. Coxe in 1992 revealed deficits.

Dr. Craig’s testing sought to determine, retrospectively, whether Petetan suffered from

adaptive behavior deficits at the ages of 14 and 15 before he went to prison at the age of

17. His testing revealed significant adaptive behavior limitations far outweighing any

adaptive behavior strengths. Craig was provided with a report from Petetan’s childhood

noting limitations in adaptive behavior.


       A multitude of mental health and medical professions have diagnosed

Petetan as intellectually disabled. They include Dr. Antonio Bartonico at the

Brownwood School in 1991; Dr. Harold Scott at the Brownwood State School in

1991; Dr. Ray Coxe in connection with juvenile certification proceedings in 1992;

Dr Kevin Correia in connection with an application for Social Security Disability

Benefits in 2012; Dr. Ellis Craig in connection with testing performed in

anticipation of the instant prosecution; and Dr. Joan Mayfield in connection with

testing performed in anticipation of the instant prosecution.29


       Lay witnesses confirmed the experts’ diagnosis. Family members recalled

Petetan’s adaptive behavior limitations from his childhood including poor hygiene;

29
   Petetan further notes that in the pretrial competency proceeding, Dr. Ollie Seay
diagnosed Petetan as suffering from intellectual disability (12 RR 62, 88). Petetan
concedes that evidence was not before the jury which answered the special issue
concerning intellectual disability.
                                        - 145 -
poor school attendance and performance; inability to dress himself; inability to tie

his shoes; inability to get himself to school; inability to make purchases or count

change; a lack of interest in television or games as a child; wandering the

neighborhood alone aimlessly; delayed ability to walk or talk as a child; and never

learning to ride a bicycle.


      Tellingly, State did not call a single expert during the punishment phase to

rebut Petetan’s clinical evidence of intellectual disability. Rather, it called and

cross-examined a series of lay witnesses and asked them if Petetan was “mentally

retarded.” None of those lay witnesses were provided with a definition of “mental

retardation” or shown to be competent to render such an opinion. No objections

were voiced to the questions, their qualification to answer, or their answers.


      On the basis of the arguments set out above, Petetan urges this Court to

reject the intellectual disability approach of Briseno and adopt the clinical

standards approach of intellectual disability as embraced by the Supreme Court in

Atkins and Hall. Under a clinical standards approach as advocated, Petetan would

unquestionable prevail on this point of error.


      Even if the Court is not willing to reconsider the Briseno approach, Petetan

nevertheless argues he should prevail on this claim. Viewing the entirety of the

evidence relative to intellectual disability in a neutral light, the jury’s rejection of

                                         - 146 -
the special issue is against the great weight and preponderance of the evidence and

manifestly unjust. The Court should reform the sentence to a life sentence.


                                Point of Error Eleven


Petetan’s intellectual disability renders him ineligible for the death penalty.


      As demonstrated in the preceding point of error, Petetan proved by a

preponderance of the evidence at trial that he is intellectually disabled. The jury‘s

rejection of his assertion of intellectual disability is against the great weight and

preponderance of the evidence.


      In Atkins v. Virginia, decided in 2002, the United States Supreme Court

discerned a national consensus against the execution of “mentally retarded”

offenders and declared that such offenders are categorically immune from the

death penalty. 536 U.S. 304 (2002). Hall v. Florida further addressed not simply

how to interpret IQ scores, but rather “how intellectual disability must be defined

in order to implement … the holding of Atkins.” 134 S. Ct. at 1993. The record

shows Petetan is intellectually disabled either under the flawed Briseno approach

or a clinical standards approach as approved by the Supreme Court in Atkins and

Hall. Accordingly, Petetan is not eligible for the death penalty under the Eighth

and Fourteenth Amendments to the United States Constitution. The Court should

reform his death sentence to a life sentence.
                                        - 147 -
                                Point of Error Twelve


The trial court erred by failing to define the term “militate” within the

punishment charge as requested by Petetan (4 CR 1318, 4 CR 1330, and 59

RR 212).


        Petetan objected to the trial court’s failure to define the term “militate”

within the punishment charge. He proposed a definition which would prevent the

jury from return a sentence of death for unconstitutional reasons. The request was

denied by the trial court. Petetan maintains the denial of his objection was error

resulting in a due process violation under the Fourteenth Amendment to the United

States Constitution and not harmless beyond a reasonable doubt. Petetan

acknowledges there is authority against this point of error. See Martinez v. State,

924 S.W.2d 693, 698 (Tex. Crim. App. 1996) (rejecting similar claim). The point

of error is presented to avoid waiving the claim on appeal and for exhaustion of the

claim before this Court.


                                Point of Error Thirteen


The trial court erred by overruling Petetan’s objection to the instruction that

10 votes were required for the jury to return a “no” answer to the first special

issue concerning future dangerousness (4 CR 1318, 4 CR 1330, and 59 RR

212).
                                         - 148 -
      Petetan objected to the trial court’s instruction that 10 votes were required

from the jurors to return a “no” answer to the first special issue. The number is

artificial and hides the fact a single “no” answer will result in a sentence of life

rather than death. The objection was denied by the trial court. Petetan maintains

the denial of his objection was error resulting in a due process violation under the

Fourteenth Amendment to the United States Constitution and not harmless beyond

a reasonable doubt. Petetan acknowledges there is authority against this point of

error. See Brown v. State, 554 S.W.2d 677, 678 (Tex. Crim. App. 1977) (rejecting

similar claim). The point of error is presented to avoid waiving the claim on

appeal and for exhaustion of the claim before this Court.


                              Point of Error Fourteen


The trial court erred by overruling Petetan’s objection to the “anti-sympathy”

instruction insofar as the instruction would limit the scope of mitigating

evidence and or circumstances that jury may consider in returning a life

sentence (4 CR 1320, 4 CR 1330, and 59 RR 212).


      Petetan objected to the trial court’s “anti-sympathy” instruction to the extent

that it limited the jury’s consideration of the mitigation special issue. The

objection was denied by the trial court. Petetan maintains the denial of his

objection was error resulting in a due process violation under the Fourteenth

                                        - 149 -
Amendment to the United States Constitution and not harmless beyond a

reasonable doubt. Petetan acknowledges there is authority against this point of

error. See Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000) (rejecting

similar claim). The point of error is presented to avoid waiving the claim on

appeal and for exhaustion of the claim before this Court.


                              Point of Error Fifteen


The trial court erred by overruling Petetan’s request that the jury be

instructed on the concept of mercy and the role it can play in deliberations (4

CR 1320, 4 CR 1330, and 59 RR 212).


      Petetan sought to have the jury instructed that it may consider, as a

mitigating circumstance, any personal moral judgment it may have to grant mercy

to Petetan. The request was denied by the trial court. Petetan maintains the denial

of his objection was error resulting in a due process violation under the Fourteenth

Amendment to the United States Constitution and not harmless beyond a

reasonable doubt. Petetan acknowledges there is authority against this point of

error. See Thuesen v. State, AP-76,375, 2014 WL 792038, at *49 (Tex. Crim. App.

2014) (rejecting similar claim). The point of error is presented to avoid waiving

the claim on appeal and for exhaustion of the claim before this Court.



                                       - 150 -
                              Point of Error Sixteen


The trial court erred by submitting a special issue on future dangerousness

which was not found by the grand jury or alleged in the indictment returned

against Petetan (1 CR 44, 4 CR 1321, 4 CR 1330, and 59 RR 212).


      Citing Ring v. Arizona, 536 U.S. 584 (2002) and Apprendi v. New Jersey,

530 U.S. 466 (2000), Petetan sought to prevent submission of the future

dangerousness special issue because it was not alleged in the indictment. The

request was denied. Petetan maintains the denial of the objection was error

resulting in a due process violation under the Fourteenth Amendment to the United

States Constitution and not harmless beyond a reasonable doubt. Petetan

acknowledges there is authority against this point of error. See Williams v. State,

273 S.W.3d 200, 214 (Tex. Crim. App. 2008) (rejecting similar claim). The point

of error is presented to avoid waiving the claim on appeal and for exhaustion of the

claim before this Court.


                             Point of Error Seventeen


The trial court erred by failing to define the term “probability” within the

punishment charge as requested by Petetan (4 CR 1321, 4 CR 1330, and 59

RR 212).



                                       - 151 -
      Petetan objected to the trial court’s failure to define the term “probability”

within the punishment charge. He proposed a number of possible definitions. All

were denied by the trial court. Petetan maintains the denial of his objection was

error resulting in a due process violation under the Fourteenth Amendment to the

United States Constitution and not harmless beyond a reasonable doubt. Petetan

acknowledges there is authority against this point of error. See Barefoot v. State,

596 S.W.2d 875, 887 (Tex. Crim. App. 1980) (rejecting similar claim). The point

of error is presented to avoid waiving the claim on appeal and for exhaustion of the

claim before this Court.


                              Point of Error Eighteen


The trial court erred by failing to define the phrase “criminal acts of violence”

within the punishment charge as requested by Petetan (4 CR 1322, 4 CR 1330,

and 59 RR 212).


      Petetan objected to the trial court’s failure to define the phrase “criminal acts

of violence” within the punishment charge. He proposed a number of possible

definitions. All were denied by the trial court. Petetan maintains the denial of the

objection was error resulting in a due process violation under the Fourteenth

Amendment to the United States Constitution and not harmless beyond a

reasonable doubt. Petetan acknowledges there is authority against this point of

                                       - 152 -
error. See Camacho v. State, 864 S.W.2d 524, 536 (Tex. Crim. App. 1993)

(rejecting similar point). The point of error is presented to avoid waiving the

claim on appeal and for exhaustion of the claim before this Court.


                             Point of Error Nineteen


The trial court erred by failing to define the phrase “continuing threat to

society” within the punishment charge as requested by Petetan (4 CR 1323, 4

CR 1330, and 59 RR 212).


      Petetan objected to the trial court’s failure to define the phrase “continuing

threat to society” within the punishment charge. He proposed a number of possible

definitions. All were denied by the trial court. Petetan maintains the denial of the

objection was error resulting in a due process violation under the Fourteenth

Amendment to the United States Constitution and not harmless beyond a

reasonable doubt. Petetan acknowledges there is authority against this point of

error. See Russeau v. State, 291 S.W.3d 426, 435 (Tex. Crim. App. 2009)

(rejecting similar point). The point of error is presented to avoid waiving the claim

on appeal and for exhaustion of the claim before this Court.




                                       - 153 -
                               Point of Error Twenty


The trial court erred by failing to submit Petetan’s four requested instructions

relative to the jury’s consideration of victim impact evidence (4 CR 1324, 4

CR 1330, and 59 RR 212).


      Petetan objected to the trial court’s failure to submit his four requested

instructions relative to the jury’s consideration of victim impact evidence. The

instructions would have charged the jury thusly: (1) “That its consideration of

victim impact evidence should not be conducted in connection with the future

dangerousness issue”; (2) “That its consideration of victim impact evidence did not

relieve the state of its burden to prove the ‘future dangerousness' special issue

beyond a reasonable doubt”; (3) “To disregard victim impact evidence that was not

shown to be within the knowledge or reasonable expectation of the defendant”; (4)

“Not to make a comparative worth analysis of the value of the victims to their

families and community compared to the defendant or other members of society.”

All of the requested instructions were denied by the trial court. Petetan maintains

the denial of the victim impact evidence instructions was error resulting in a due

process violation under the Fourteenth Amendment to the United States

Constitution and not harmless beyond a reasonable doubt. Petetan acknowledges

there is authority against this point of error. See Mays v. State, 318 S.W.3d 368,


                                        - 154 -
391 (Tex. Crim. App. 2010) (rejecting similar point). The point of error is

presented to avoid waiving the claim on appeal and for exhaustion of the claim

before this Court.


                           Point of Error Twenty-One


The trial court erred by failing to define the phrases “personal moral

culpability” and “moral blameworthiness” within the punishment charge as

requested by Petetan (4 CR 1325, 4 CR 1330, and 59 RR 212).


      Petetan objected to the trial court’s failure to define the phrases “personal

moral culpability” and “moral blameworthiness” within the punishment charge.

Petetan maintains the denial of the objection was error resulting in a due process

violation under the Fourteenth Amendment to the United States Constitution and

not harmless beyond a reasonable doubt. Petetan acknowledges there is authority

against this point of error. See Luna v. State, 268 S.W.3d 594, 609 (Tex. Crim.

App. 2008) (rejecting similar point). The point of error is presented to avoid

waiving the claim on appeal and for exhaustion of the claim before this Court.




                                       - 155 -
                           Point of Error Twenty-Two


The trial court erred by overruling Petetan’s objection that the charge unduly

limited what factors the jury could consider as mitigating (4 CR 1325, 4 CR

1330, and 59 RR 212).


      Petetan complained the charge unduly limited the jury’s consideration of

mitigating evidence to evidence which would reduce moral blameworthiness. He

sought a charge instructing the jury it could consider any circumstance thought to

be appropriate by the jury could be mitigating and justify a life sentence. Petetan

maintains the denial of the objection was error resulting in a due process violation

under the Fourteenth Amendment to the United States Constitution and not

harmless beyond a reasonable doubt. Petetan acknowledges there is authority

against this point of error. See Cantu v. State, 939 S.W.2d 627, 640 (Tex. Crim.

App. 1997) (rejecting similar point). The point of error is presented to avoid

waiving the claim on appeal and for exhaustion of the claim before this Court.


                          Point of Error Twenty-Three


The trial court erred by overruling Petetan’s objection that the mitigation

special issue is unconstitutional for failing to assign a burden of proof and not

being susceptible to a sufficiency of the evidence review on appeal (4 CR 1326,

4 CR 1330, and 59 RR 212).
                                       - 156 -
         Petetan complained at trial that the mitigating special issue was

unconstitutional because it does not provide for a burden of proof and does not

allow for a sufficiency of the evidence review on appeal. The objections were

overruled. Petetan maintains the denial of the objection was error resulting in a

due process violation under the Fourteenth Amendment to the United States

Constitution and not harmless beyond a reasonable doubt. Petetan acknowledges

there is authority against this point of error. See Whitaker v. State, 286 S.W.3d

355, 369 (Tex. Crim. App. 2009) and Shannon v. State, 942 S.W.2d 591, 599 (Tex.

Crim. App. 1996) (rejecting similar complaints). The point of error is presented to

avoid waiving the claim on appeal and for exhaustion of the claim before this

Court.


                              Point of Error Twenty-Four


The trial court erred by overruling Petetan’s objection that the jury should be

instructed there is a presumption in favor of a life sentence rather than a

sentence of death (4 CR 1327, 4 CR 1330, and 59 RR 212).


         Petetan complained at trial of the trial court’s refusal to instruct the jury that

there is a presumption of a life sentence rather than a sentence of death. The

objection was overruled. Petetan maintains the denial of the objection was error

resulting in a due process violation under the Fourteenth Amendment to the United

                                           - 157 -
States Constitution and not harmless beyond a reasonable doubt. Petetan

acknowledges there is authority against this point of error. See Gardner v. State,

306 S.W.3d 274, 303 (Tex. Crim. App. 2009) (rejecting similar complaint). The

point of error is presented to avoid waiving the claim on appeal and for exhaustion

of the claim before this Court.


                            Point of Error Twenty-Five


The trial court erred by overruling Petetan’s objection that the jury should be

instructed that if it was unable to agree on a special issue, a mistrial would be

declared and life sentence imposed (4 CR 1326, 4 CR 1330, and 59 RR 212).


      Petetan complained at trial of the trial court’s refusal to instruct the jury that

a mistrial would be declared and life sentence imposed if the jury was unable to

agree on a special issue. The objection was overruled. Petetan maintains the

denial of the objection was error resulting in a due process violation under the

Fourteenth Amendment to the United States Constitution and not harmless beyond

a reasonable doubt. Petetan acknowledges there is authority against this point of

error. See Raby v. State, 970 S.W.2d 1, 7 (Tex. Crim. App. 1998) (rejecting

similar complaint). The point of error is presented to avoid waiving the claim on

appeal and for exhaustion of the claim before this Court.



                                        - 158 -
                             Point of Error Twenty-Six


Imposition of the death penalty violates Petetan’s Eighth Amendment and

Fourteenth Amendment right not to be subjected to cruel and unusual

punishment.


      Petetan maintains imposition of the death penalty violates his Eighth

Amendment and Fourteenth Amendment right to be free from cruel and unusual

punishment. In support of the claim, Petetan relies on Justice Breyer’s recent

dissenting opinion in Glossip v. Gross, 576 U.S. ___, ___ (2015); 2015 WL

2473454. at *27 (2015). There, it was recognized it is highly likely the death

penalty violates the Eighth Amendment prohibition on cruel and unusual

punishment. Specifically, Justice Breyer, joined by Justice Ginsburg, observed

that today’s administration of the death penalty involves three fundamental

constitutional defects: (1) serious unreliability; (2) arbitrariness in application; (3)

unconscionably long delays that undermine the death penalty’s penological

purpose; and perhaps as a result of those defects, most places within the United

States have abandoned its use. Id.


      Petetan acknowledges there is authority against this point of error. See

Gregg v. Georgia, 428 U.S. 153, 187 (1976); Proffitt v. Florida, 428 U.S. 242, 247

(1976); and Jurek v. Texas, 428 U.S. 262, 268 (1976). The point of error is

                                         - 159 -
presented to avoid waiving the claim on appeal and for exhaustion of the claim

before this Court.


                             Point of Error Twenty-Seven


Petetan was denied equal protection of the law due to the absence of a unified

statutory procedure for pretrial litigation of an Atkins assertion of intellectual

disability (18 RR 12, 4 CR 1228).


      Petetan filed a motion for a pretrial Atkins determination (4 CR 1228). The

trial court considered the request by Petetan for a pretrial determination by the

court of whether Petetan suffers from intellectual disability (18 RR 4). Counsel

noted the absence of legislation in Texas addressing the issue and conflicting case

law on the subject in Texas (18 RR 5). As noted in the motion, most states which

have enacted legislation in response to Atkins allow for a pretrial determination of

intellectual disability (18 RR 5, 4 CR 1228). Noting the procedural difficulty of

the request, the lack of a clear statute, and that he could go either way, the trial

court denied Petetan’s request for a pretrial intellectual disability determination by

the court (18 RR 7-8, 12).


      This Court recently considered a complaint by the State regarding a trial

court’s intent to determine an Atkins assertion pretrial in a hearing before the trial

court. See In re Allen, 462 S.W.3d 47 (Tex. Crim. App. 2015). Finding no clear
                                         - 160 -
violation of a ministerial duty in conducting such a proceeding, mandamus relief

was denied to the State. Id. at 51.


      Lamenting the absence of a statutory scheme addressing the procedure

challenged in Allen, the Court noted:


      While we withhold normative judgment, the need for a statutory
      scheme on this score is readily apparent, and its continued absence
      portends serious consequences for our criminal-justice system.
      Without a unified procedure, intellectual-disability
      determinations may vary from county to county, court to court,
      and case to case. As the present cases and authorities cited in this
      opinion illustrate, some judges may prefer to address the issues
      pretrial, others by submission of a special issue to the jury. The
      gravity of defendants' intellectual-disability claims are too
      weighty to be subject to such disparity. . . . We now make explicit
      what we before expressed only tacitly: Legislation is required. Id. at
      54. (Emphasis added).


      The disparity recognized by a majority of this Court in Allen is the basis for

Petetan’s assertion of a denial of equal protection of the law. He should not have

been denied a pretrial Atkins determination by the trial court simply because his

case was prosecuted in McLennan County rather than Dallas County. There is a no

rational relationship between the disparity of treatment between equally situated

defendants asserting a pretrial intellectual disability claims and some legitimate

governmental purpose. The disparity in treatment denied Petetan equal treatment

under the law and due process of law. The conviction should be reversed and


                                        - 161 -
remanded to the trial court for a pretrial intellectual disability determination before

the court.


                           Point of Error Twenty-Eight


The judgment should be modified to properly reflect Petetan was convicted of

a capital felony offense rather than a first degree felony offense (4 CR 1343).


      This point of error seeks modification of Petetan’s judgment because it

erroneously states he was convicted of a first degree felony offense (4 CR 1343).

Petetan was convicted of a capital felony and punishment was assessed at death.

See TEX. PEN. CODE §§ 12.04(a)(1), 12.31(a), and 19.03(a)(2). He was not

convicted of a first degree felony as recited in the judgment.


      Even if a defendant is not being harmed by a deficiency in a judgment, he

nevertheless has an interest in having the judgment correctly reflect the findings of

the trial court and the jury. Howell v. State, 563 S.W.2d 933, 936 (Tex. Crim. App.

1978). A judgment should properly recite the degree of the offense for which the

defendant was convicted. TEX. CRIM. PROC. CODE art. 42.01 § 14.


      The general rule is that if an appellate court has the necessary data and

evidence before it, the judgment may be modified or reformed on appeal. Splawn

v. State, 160 S.W.3d 103, 107 (Tex. App. - Texarkana 2005, pet. ref’d). This Court


                                        - 162 -
has the authority to modify the judgment of a trial court. TEX. R. APP. P. 78.1(b).

The authority to modify a judgment includes reformation of a judgment which fails

to correctly reflect the degree of the offense for which the defendant was

convicted. Land v. State, 291 S.W.3d 23, 31 (Tex. App. – Texarkana 2009, pet.

ref’d); Jackson v. State, 288 S.W.3d 60, 64 (Tex. App. – Houston [1st Dist.] 2009,

pet. ref’d).


       The record contains the necessary data and information for modification of

the judgment. This Court should modify the judgment to properly reflect the

degree of felony for which Petetan was convicted was that of a capital felony

rather than that of a first degree felony offense.


                            Point of Error Twenty-Nine


The judgment should be modified to properly reflect punishment was assessed

by the trial court rather than the jury (4 CR 1343).


       At the conclusion of the punishment phase, the jury returned answers to the

four special issues submitted in the court’s charge (60 RR 67-68, 4 CR 1336-

1339). Based on the jury’s answers to the special issues, punishment was assessed

by the trial court at death (60 RR 71). Despite the trial court’s assessment of

punishment, the judgment erroneously recites the jury assessed punishment (4 CR

1343).
                                        - 163 -
      When there is a variation between the oral pronouncement of sentence and

the written memorialization of the sentence, the oral pronouncement controls.

Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). An appellate court

is authorized to reform or modify the judgment to conform to the record of the

proceedings and to render an appropriate judgment, in accordance with its

authority under TEX. R. APP. P. 78.1(b). See French v. State, 830 S.W.2d 607, 609

(Tex. Crim. App. 1992) (appellate court has authority to reform a judgment to

include an affirmative finding to make the record speak the truth when the matter

has been called to its attention by any source); Bigley v. State, 865 S.W.2d 26, 27

(Tex. Crim. App. 1993) (appellate court has the power to modify incorrect

judgments when the necessary data and information are available to do so).


      Petetan suggests it is appropriate to modify the trial court's judgment to

reflect that the trial court, and not the jury, assessed the sentence in this case, in

accordance with the trial court's oral pronouncement at trial and the provisions of

TEX. CRIM. PROC. CODE art. 37.071§ 2(g) (providing for court sentencing based

on the jury’s responses to the special issues submitted within the court’s charge).




                                         - 164 -
                                      Prayer

      Appellant prays this Court will reverse the judgment of conviction and

reform to an acquittal, remand for a new trial, remand for a new punishment

hearing, reform the sentence to a life sentence, remand for a new competency

hearing, modify the judgment, or enter any other relief appropriate under the law

and the facts.


                                                   Respectfully submitted,

                                                   /s/Richard E. Wetzel
                                                   Richard E. Wetzel
                                                   State Bar No. 21236300

                                                   1411 West Ave., Suite 100
                                                   Austin, Texas 78701

                                                   (512) 469-7943
                                                   (512) 474-5594
                                                   wetzel_law@1411west.com

                                                   Attorney for Appellant
                                                   US Carnell Petetan, Jr.




                                      - 165 -
                           Certificate of Compliance


      This pleading complies with TEX. R. APP. P. 9.4. According to the word
count function of the computer program used to prepare the document, the brief
contains 36,879 words excluding the items not to be included within the word
count limit.

                                                  /s/ Richard E. Wetzel
                                                  Richard E. Wetzel
                                                  State Bar No. 21236300


                             Certificate of Service

       This is to certify a true and correct copy of this pleading was mailed to
Counsel for the State of Texas, Sterling Harmon, Assistant Criminal District
Attorney, at his email address maintained at Sterling.Harmon@co.mclennan.tx.us
on this the 27th day of August, 2015.


                                                  /s/Richard E. Wetzel
                                                  Richard E. Wetzel
                                                  State Bar No. 21236300




                                     - 166 -
