








IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





No. WR-37,145-03


EX PARTE SCOTT LOUIS PANETTI, Applicant




ON SUBSEQUENT APPLICATION FOR WRIT OF HABEAS CORPUS
IN CAUSE NO. 3310 IN THE 216TH JUDICIAL DISTRICT COURT

GILLESPIE  COUNTY



Holcomb, J., filed a dissenting statement, in which Johnson, J., joined.


	In Indiana v. Edwards, 554 U.S. 164, 177-78 (2008), the United States Supreme Court first
recognized a mental-illness-related limitation on a defendant's Sixth Amendment right to self-representation:
		"[T]he Constitution permits judges to take realistic account of the particular
defendant's mental capacities by asking whether a defendant who seeks to conduct
his own defense at trial is mentally competent to do so.  That is to say, the
Constitution permits States to insist upon representation by counsel for those
competent enough to stand trial under Dusky [v. United States, 362 U.S. 402 (1960),]
but who still suffer from severe mental illness to the point where they are not
competent to conduct trial proceedings by themselves."

Given the Supreme Court's decision in Indiana v. Edwards, I would file and set Scott Louis Panetti's
first subsequent application for writ of habeas corpus in order to consider his claim that the trial court
violated the Eighth Amendment when it allowed him, though severely mentally ill, to represent
himself at his capital murder trial.  
	In September 1992, Panetti shot and killed his in-laws, Joe and Amanda Alvarado, during
a single criminal transaction.  Soon thereafter a Gillespie County grand jury returned an indictment
charging Panetti with the capital murder of the Alvarados under Texas Penal Code § 19.03(a)(7)(A). 
	In September 1994, the trial court, at defense counsel's request, impaneled a jury to
determine whether Panetti was competent to stand trial under the indictment.  At that competency
hearing, two witnesses testified for the defense.  The first witness, Richard Mosty, was one of
Panetti's defense counsel.
	"Mosty testified that the court appointed him to represent [Panetti] in September
1992.  He stated that during this two year period he had no useful communication
with [Panetti] regarding case proceedings, [Panetti's] thought processes were bizarre,
and [Panetti] had multiple personalities.  Mosty further stated that when [Panetti] was
in a stable environment, [he] became better at communicating on a basic level. 
However, when [Panetti] entered a stressful environment such as the courtroom or
switching jails, [he] would again become delusional.  Finally, Mosty testified that
[Panetti] had been the best Mosty had ever seen in the few days preceding the
[competency] hearing.  Nevertheless, [Panetti] would still 'blank out' when counsel
tried to discuss the case."  Panetti v. State, No. 72,230 (Tex.Crim.App. - Dec. 3,
1997), slip. op. at 22-23 (not designated for publication).

	The second witness for the defense was Dr. Richard Coons, a psychiatrist.

	"Coons examined [Panetti] on five occasions from March 1993 through September
1994.  Coons concluded [Panetti] tended to decompensate[ (1)] and his thinking became
inefficient when under stress.  He described [Panetti's] thought process as
'tangential,' meaning [he] would go off on tangents and never return to the original
subject being discussed.  Coons further noted [Panetti] had been diagnosed as a
schizophrenic and had been in and out of various State and V.A. [Veterans
Administration] hospitals since 1981.  After concluding [Panetti] was not competent
to stand trial, Coons noted that schizophrenia can be controlled and felt [Panetti]
should be hospitalized in order to receive the proper medications."  Id. at 23.

	Another psychiatrist, Dr. Lee Simes, testified for the State.
	"Simes concluded [Panetti] was mentally ill and agreed with [Panetti's] previous
diagnosis as a schizophrenic.  He noted [Panetti] was very concerned about what
medication he might be able to get after the hearing and equated the hearing to a
chess game between two doctors.  Simes further admitted [Panetti] had delusional
thinking which could interfere with [his] communications with his attorneys. 
However, Simes stated that as of his final evaluation one day before the instant
hearing, [Panetti] was competent to stand trial."  Id. at 24-25.

	At the conclusion of the competency hearing, the jury found Panetti competent to stand trial. 
Sometime thereafter Panetti asked the trial court to dismiss his two court-appointed counsel and
allow him to represent himself.  The trial court, acting under Faretta v. California, 422 U.S. 806
(1975), a non-capital case, admonished Panetti regarding the nature of his right to counsel and the
many disadvantages of waiving that right, especially in a capital case. (2)  The trial court also informed
Panetti that it would prefer that he not waive his right to counsel.  The State and defense counsel also
stated that they preferred that Panetti not waive his right to counsel.  Nevertheless, Panetti insisted
on representing himself.  At that point, the trial court, under Faretta, had no choice but to grant
Panetti's request, and so it did.  The court appointed standby counsel in an order that strictly limited
him to procedural advice. (3)
	At the guilt stage of trial, Panetti pled not guilty by reason of insanity.  In support of that
defense, Panetti presented numerous witnesses, including himself. (4)
		"[Panetti] testified [that] when he awoke on the morning of [the offense], his
alternate personality, 'Sergeant Ironhorse' or 'Sarge,' had control.  It was Sarge who
decided to shave his head, dress in military attire, and gather weapons [with which
to commit the offense]. [Panetti] claimed he could remember everything Sarge did,
even though Sarge is a different personality.  He further claimed he argued with
Sarge about what Sarge was doing, but Sarge won.
 *     *     *

		"Richard Mosty, [Panetti's] former trial counsel, testified that [Panetti's]
mental health records reflected the following: committed in 1981 at Kerrville State
Hospital for dependent personality disorder; committed in 1986 at Starlight Village
Hospital for schizophrenia, delusions, disorientation as to time and place, seriously-impaired judgment, hostility, psychosis, and trying to 'extract' the Devil from his
home by taking his furniture outside and spraying it with water; treatment at the
Waco Veterans Administration Hospital; treatment at Tomah Hospital in Wisconsin
in 1986; recommitted to Kerrville State Hospital in 1990 for threatening to kill [his]
wife, baby, father-in-law, and self and starting to use the name Sergeant Ironhorse.
		"Marcie Panetti, [Panetti's] sister-in-law, testified she met [Panetti] about
fifteen years before and knew immediately [he] was mentally ill.  She did not see him
again until the trial, but did speak to him on the phone a few months before her
instant testimony.  She stated that it was obvious he was mentally ill by the way he
rambled and talked constantly.
		"Dr. John Ramsey, [Panetti's] former family physician, testified he had seen
[Panetti] several times for psychiatric problems.  He stated that in 1984 and 1985
[Panetti] began to come into the office becoming more demanding, rambling, and
clearly suffering from a manic depressive illness exhibiting extreme ideas and grand
schemes.  To Dr. Ramsay's knowledge, after this, [Panetti] entered a psychiatric
facility and was seen by Ramsey on only a few occasions.
*     *     *

		"Dr. Eugene waters, a contract psychiatrist with the Bell County Jail, stated
he first saw [Panetti] in July 1994.  He testified [Panetti] was delusional and talked
about 'almost mythologcal characters that [he] appeared to identify with.'  Dr. Waters
felt [Panetti] was preoccupied with these characters.  Waters further stated [Panetti]
began refusing his medications in April 1995.
		"Evonne Panetti, [Panetti's] mother, testified the last time [he] came with
Sonja [his wife] and his daughter to visit, he was fine at first and then all of a sudden
changed.  He started 'talking off the wall' and ranting and raving.  She said [Panetti]
would be 'Ironhorse' and 'would just look; [he] would be in a daze a lot and glaring.' 
She further testified Sonja told her that Ironhorse [was] the other person that live[d]
with them.
		"Dr. F. E. Seale testified he treated [Panetti] for thought disorder and
schizophrenia at Starlight Village Hospital.  He stated it took up to 2400 milligrams
of thorazine per day to keep [Panetti] under control where '100 milligrams would
knock the average person out.'  He further testified that without proper medication
for a period of three or four days, [Panetti] could lapse into a severe psychosis. . . . 
		"Finally, Dr. Wolfgang Selck testified. . . .  Selck stated that in 1986 . . .
[Panetti] was diagnosed as psychotic."  Panetti v. State, supra, at 5, 7-9.

	On direct appeal, Panetti argued that the trial court had erred in allowing him to represent
himself.  We disagreed, holding that the trial court had satisfied the requirements of Faretta.  Panetti
v. State, supra, at 25-28.
	In his initial post-conviction application for writ of habeas corpus, Panetti argued that his
conviction was void because he had been incompetent to waive his right to counsel.  We held,
however, that Panetti's argument had been raised and addressed on direct appeal.  Ex parte Panetti,
No. WR-37,145-01 (Tex.Crim.App.-May 28, 1998) (not designated for publication).
	In his first subsequent post-conviction application for writ of habeas corpus, Panetti, citing
Indiana v. Edwards, 554 U.S. 164, argued that the trial court's decision to permit him to represent
himself violated his rights under the Eighth Amendment.  We disagreed, holding that the Indiana
v. Edwards decision was not new law and that, therefore, Panetti's application was barred by Texas
Code of Criminal Procedure article 11.071, § 5.  Ex parte Panetti, No. WR-37,145-02
(Tex.Crim.App.-Oct. 21, 2009) (not designated for publication).
	Now we have before us Panetti's second subsequent post-conviction application for writ of
habeas corpus.  In that application, Panetti cites Chadwick v. State, 309 S.W.3d 558 (Tex.Crim.App.
2010), in which this Court recognized, for the first time, the fact that a finding of mental illness can
trump the right of self-representation.  Panetti argues again that the trial court's decision to permit
him to represent himself violated his rights under the Eighth Amendment.  I would probably agree
with the majority that our Chadwick decision was not new law and that, therefore, Panetti's
application could be considered  barred by Article 11.071, § 5.
	However, I now realize that we erred in dismissing Panetti's first subsequent post-conviction
application on the basis of Article 11.071, § 5.  Indiana v. Edwards did constitute new law, because
it was the first case in which the Supreme Court recognized a mental-illness-related limitation on
the Sixth Amendment right of self-representation:  
		"[A]n individual [who is severely mentally ill] may well be able to satisfy
[the] mental competence standard [of Dusky v. United States, 362 U.S. 402], for he
will be able to work with counsel at trial, yet at the same time he may be unable to
carry out the basic tasks needed to present his own defense without the help of
counsel . . . 
		"The American Psychiatric Association (APA) tells us (without dispute) in
its amicus brief filed in support of neither party that '[d]isorganized thinking, deficits
in sustaining attention and concentration, impaired expressive abilities, anxiety, and
other common symptoms of severe mental illnesses can impair the defendant's ability
to play the significantly expanded role required for self-representation even if he can
play the lesser role of represented defendant' . . .
		"Moreover, insofar as a defendant's lack of capacity threatens an improper
conviction or sentence, self-representation in that exceptional context undercuts the
most basic of the Constitution's criminal law objectives, providing a fair trial." 
Indiana v. Edwards, 554 U.S. at 175-77.

	The Indiana v. Edwards mental-illness-related limitation on the Sixth Amendment right of
self-representation is the very basis of Panetti's Eighth Amendment claim.  In other words, it was
in Indiana v. Edwards that the Supreme Court first suggested that the Sixth Amendment right to self-representation was not absolute and that it could be trumped by severe mental illness.  We should,
therefore, reconsider, on our own initiative, Panetti's first subsequent application.  See Ex parte
Moreno, 245 S.W.3d 419, 420 (Tex.Crim.App. 2008).
	The Eighth Amendment requires heightened reliability in the adjudicative process leading
up to a death sentence.  Lowenfield v. Phelps, 484 U.S. 231, 238-39 (1988); Lockett v. Ohio, 438
U.S. 586, 604 (1978) (plurality opinion).  Such heightened reliability is inconsistent with allowing
a severely mentally ill defendant to represent himself at trial, Faretta notwithstanding, no matter how
well he may appear to the trial court at that time.  The risk of an unfair trial is too great to tolerate. 
The trial record in this case establishes conclusively that Panetti is severely mentally ill and has been
so for a very long time.  The Eighth Amendment was thus violated when the trial court permitted
Panetti to represent himself.
	In addition, the judiciary has an independent interest in ensuring that criminal trials appear
fair to all who observe them.  Indiana v. Edwards, 554 U.S. at 177; Wheat v. United States, 486 U.S.
153, 160 (1988).  That interest was not served by what occurred at Panetti's trial.
	I would file and set Panetti's first subsequent post-conviction application for writ of habeas
corpus in order to consider his Eighth Amendment claim.  Because the majority does not do so, I
respectfully dissent.

FILED DECEMBER 15, 2010
PUBLISH
1.   Our opinion on direct appeal did not explain what "decompensate" meant in this
context.
2.   In Faretta v. California, 422 U.S. 806 (1975), a non-capital case, the Supreme Court
held that an accused has a Sixth Amendment right to conduct his own defense.  To proceed pro
se, a defendant must voluntarily and intelligently waive the right to counsel.  Id. at 835.  To
ensure a valid waiver, the trial court must ensure that the defendant is aware of the dangers and
disadvantages of self-representation.  Ibid.
3.   The trial court's order to standby counsel read, in relevant part, as follows:

	"1.  Unless otherwise requested by the Defendant, standby counsel is to be seen
and not heard.	
 
	"2.  Standby counsel is not to sit at the counsel table with Defendant unless
Defendant asks him to do so.
 
	"3.  Standby counsel, when requested by the Defendant, may advise Defendant on
procedural matters only.  Standby counsel shall not, at any time, advise Defendant
on any substantive matters, even if requested to do so by Defendant.
 
	"4.  Standby counsel may not participate in any part of the trial process unless
specifically requested to do so by the Defendant, and then only on procedural
matters by way of giving advice to the Defendant.
 
	"5.  Standby counsel shall not question any prospective jurors nor make any
suggestions or offer advice as to which prospective jurors might be favorable to
the Defendant or Prosecution.
 
	"6.  Standby counsel shall not exercise any peremptory challenges or challenges
for cause on any prospective jurors.
 
	"7.  Standby counsel shall not advise Defendant as to any particular areas of
inquiry during voir dire.
 
	"8.  Standby counsel shall not make any objections unless requested to do so by
the Defendant.
 
	"9.  Standby counsel shall not make any motions for mistrial unless requested to
do so by the Defendant.
 
	"10.  Standby counsel shall not advise Defendant of any procedural irregularities,
either by the State or by the Defendant, unless requested to do so by the
Defendant.
 
	"11.  Standby counsel shall not volunteer any procedural assistance to Defendant.
 
	"12.  Standby counsel shall not do any other act or take any other action, which in
the opinion of either standby counsel or the Defendant, would in any way interfere
with or affect the right of the Defendant to represent himself."
4.   Panetti's standby counsel at trial has filed an affidavit in this case, which reads, in part,
as follows:

		"[Scott Panetti's] incompetence affected his case.  Bruce Curry, the DA,
had put Scott's ex-wife, Sonja Alvarado on the stand on the first day of testimony. 
She was the first witness.  It was her parents that Scott had killed.  After Scott's
bizarre questions and actions to Sonja, the Jury was ready to give him the death
penalty.  Scott angered the Jury by his demeanor and actions.  I tried to advise
Scott on the method of questioning his ex-wife, but he did not listen.  I told him
not to go over the shooting and other details of the family that were not relevant. 
It did no good to advise Scott.
		"Scott was repeating questions.  He was splitting hairs with the witnesses
on the confession.  Scott was calling witnesses that had nothing to do with
insanity.  Scott was really upset over the release of [State's witness] Dr. Simes. 
Judge Ables had warned Scott that Dr. Simes would not be available and to call
him since he was present.  Scott said he did not understand what the Judge had
told him and he was confused.
		"When Scott testified, it looked like he went into a trance.  Scott was
sitting in the witness chair with [Texas] Ranger Cleat Buckelew between him and
the Jury.  Scott had his head down, not looking at the Jurors although he was
seated directly by them.  Scott recalled in his trance-like state, the details of the
shooting, reciting what happened in the third person as a dialogue.  Scott said,
'Sarge ran into the room.  What was Sarge doing?  Where is Birdie?'  Scott was
pointing his hand out across the jury box like he was shooting as he recited,
'Boom, Boom, Boom.'  Scott's head was down as he spoke while he pointed at
the jury with his booms.  He could not see the reaction of the Jury.  The Jury was
visibly upset by the pointing demonstration.  I had seen the Jurors who were
sitting closest to Scott, move away when he sat down.  Now he was blindly
pointing at the panel while he spoke of 'Sarge shooting Joe and Amanda
Alvarado.'  This was a show of a mentally incompetent man and did more to give
him the death penalty than any other event in trial.
		"This was not a case for the death penalty.  Scott's life history had long
term mental problems and made an excellent case for mitigating evidence.  Scott
did not present any mitigating evidence because he did not understand the
proceeding.  He obviously thought that this courtroom 'show' would be enough. 
Although many friends and family were available to testify, Scott only called me
at punishment to rebut a statement that Dep. Gideon made about Scott.  I tried to
make Scott realize what mitigation meant.  I do not think that he understood the
concept or how to present evidence or argue for mitigation in his own case.  In my
opinion, there was much to present, but he was mentally incapable of showing the
evidence.
 *     *     *

		"Scott dressed in a 'Tom Mix' style costume like an old TV western. 
Scott wore his hat in Court.  He had pants that looked like leather suede tucked
into his cowboy boots.  He wore a cowboy style shirt with a bandana.  The shirt
was the double fold over type western shirt.  One shirt was a green color, the other
was burgundy.  Scott wore a big cowboy hat that hung on a string over his back. 
It was a joke.  It was like out of a dime store novel.  Scott constantly used an old
west vernacular in his speech.  He used words like 'bronc steer,' 'run away mule,'
and 'shoe the bosses' hosses.'
 *     *     *

		"Scott was not able to represent himself due to his mental incompetence. 
His bizarre actions and words affected witnesses and the Jury.  Scott was not able
to rationally understand his death penalty trial.  I believe that his incompetence
brought him the death penalty.  In simple terms, by representing himself he hung
himself.  Scott's incompetence prevented him from asking for or using my
assistance as his standby.  I was not able to assist Scott in any meaningful way
because he was so mentally incompetent.  As a result, his trial was truly a judicial
farce, and a mockery of self-representation.  It should have never been allowed to
happen, or, at least, stopped."
