     Case: 14-70033      Document: 00513147904         Page: 1    Date Filed: 08/10/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-70033                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
ROBERT LESLIE ROBERSON, III,                                              August 10, 2015
                                                                           Lyle W. Cayce
              Petitioner - Appellant                                            Clerk

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent - Appellee




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 2:09-CV-327


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM:*
       Petitioner-Appellant Robert Leslie Roberson, III, appeals the district
court’s denial of his petition for a writ of habeas corpus. Roberson argues that
the Texas courts’ exclusion of his expert witness’s testimony violated his right
to due process of law and to present witnesses in his own defense. Because we
conclude that the exclusion of his witness’s testimony was not an unreasonable



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                        No. 14-70033
application of clearly established Federal law as determined by the Supreme
Court of the United States, we AFFIRM the judgment of the district court.
                                               I.
      The underlying facts are set out in our earlier opinion regarding the
certificate of appealability in this case. See Roberson v. Stephens, --- F. App’x
---, No. 14-70033, 2015 WL 3396822, at *1–*8 (5th Cir. May 27, 2015)
(unpublished) (per curiam).
      In brief, Roberson was convicted of capital murder and sentenced to
death for killing his two-year-old daughter, Nikki Curtis. During his trial,
Roberson attempted to call an expert witness, Dr. John Claude Krusz, to testify
that Roberson suffered from an organic brain disorder, specifically post-
concussional syndrome. During voir dire by the state and an offer of proof, Dr.
Krusz testified that Roberson’s condition affected his impulse control and
reasoning ability. 1 The trial court excluded the proffered testimony, and the
Texas Court of Criminal Appeals affirmed on direct appeal.
      The Court of Criminal Appeals stated that while “Texas does not
recognize ‘diminished capacity’ as an affirmative defense, i.e., a ‘lesser form of
the defense of insanity,’” the situation is different where “mental-health
evidence is presented, not as part of an attempted affirmative defense, but
instead as an attempt to negate the mens rea element of the charged offense.”
Roberson v. State, No. AP-74671, 2002 WL 34217382, at *7 (Tex. Crim. App.
June 20, 2007) (unpublished) (quoting Jackson v. State, 160 S.W.3d 568, 573
(Tex. Crim. App. 2005)). Under Texas law, evidence of the latter sort “is
admissible, assuming it meets the requirements of Rule 403.”                    Id.   After
summarizing the Supreme Court’s decision in Clark v. Arizona, 548 U.S. 735
(2006), the court stated “[a]cknowledging this ruling, we adhere to our decision


      1   Dr. Krusz also testified in mitigation at sentencing.
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                                   No. 14-70033
in Jackson and will continue to give the trial judge discretion to determine
whether mental-health evidence proposed by the defendant is relevant to mens
rea and admissible.” Id. at *8. The court concluded, however, that Dr. Krusz’s
“proposed testimony regarding organic brain syndrome and poor impulse
control is not relevant as to [Roberson]’s ability to form the requisite mens rea
for the offense,” but rather “was merely being used as a mental-health defense
not rising to the level of insanity.” Id. at *8.
      In his petition for a writ of habeas corpus to the United States District
Court for the Eastern District of Texas, Roberson argued, inter alia, that the
trial court’s exclusion of Dr. Krusz’s testimony violated his Constitutional right
to present a complete defense. The district court denied his petition, and we
granted a certificate of appealability as to that issue only. See Roberson v.
Stephens, 2015 WL 3396822, at *12–*13.
                                         II.
      A state prisoner must satisfy the standard set out in the Anti-terrorism
and Effective Death Penalty Act (“AEDPA”) in order to obtain a writ of habeas
corpus from a federal court. 28 U.S.C. § 2254. AEDPA requires the petitioner
to show that the state court decision pursuant to which he is held in custody
“was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States” or “was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). “A
state court’s decision is deemed contrary to clearly established federal law if it
reaches a legal conclusion in direct conflict with a prior decision of the Supreme
Court or if it reaches a different conclusion than the Supreme Court on
materially indistinguishable facts.” Matamoros v. Stephens, 783 F.3d 212, 215
(5th Cir. 2015) (quoting Gray v. Epps, 616 F.3d 436, 439 (5th Cir. 2010)). “A
state court’s decision involves an ‘unreasonable application’ of clearly
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established federal law if ‘the state court identifies the correct governing legal
principle from [the Supreme Court’s] decisions but unreasonably applies that
principle to the facts of the prisoner’s case.’” Garcia v. Stephens, --- F.3d ---, --
-, No. 14-70035, 2015 WL 4393871, at *4 (5th Cir. July 17, 2015) (alteration in
original) (quoting Hoffman v. Cain, 752 F.3d 430, 437 (5th Cir. 2014)).
                                        III.
      Roberson argues that the state trial court’s exclusion of his expert
witness’s testimony violated his due process rights and his right to present a
complete defense. Roberson argues that the state had the burden of proving,
beyond a reasonable doubt, that he acted intentionally or knowingly when he
killed his daughter in order to prove capital murder. See Tex. Penal Code
§ 19.03(a); Tex. Penal Code § 19.02(b)(1). Roberson contends that Dr. Kruz’s
testimony tended to negate that element and was therefore unconstitutionally
excluded by the trial court.
      “[T]he Constitution guarantees criminal defendants a meaningful
opportunity to present a complete defense.” Holmes v. South Carolina, 547
U.S. 319, 324 (2006) (internal quotation marks omitted).             “This right is
abridged by evidence rules that ‘infring[e] upon a weighty interest of the
accused’ and are ‘“arbitrary” or disproportionate to the purposes they are
designed to serve.’” Id. (quoting United States v. Scheffer, 523 U.S. 303, 308
(1998)). Per that constitutional guarantee, the Supreme Court in Crane v.
Kentucky held that the state court erred in excluding “competent, reliable
evidence bearing on the credibility of [the defendant’s] confession” merely
because the trial court had ruled the confession voluntary. 476 U.S. 683, 690
(1986); see id. at 690–91 (“Th[e] opportunity [to be heard] would be an empty
one if the State were permitted to exclude competent, reliable evidence bearing
on the credibility of a confession when such evidence is central to the
defendant’s claim of innocence. In the absence of any valid state justification,
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                                  No. 14-70033
exclusion of this kind of exculpatory evidence deprives a defendant of the basic
right to have the prosecutor’s case encounter and survive the crucible of
meaningful adversarial testing.” (internal quotation marks omitted)); see also
Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (“The testimony rejected by
the trial court here bore persuasive assurances of trustworthiness and thus
was well within the basic rationale of the exception for declarations against
interest. That testimony also was critical to Chambers’ defense. In these
circumstances,    where     constitutional   rights    directly   affecting   the
ascertainment of guilt are implicated, the hearsay rule may not be applied
mechanistically to defeat the ends of justice.”); Washington v. Texas, 388 U.S.
14, 23 (1967) (“We hold that the petitioner in this case was denied his right to
have compulsory process for obtaining witnesses in his favor because the State
arbitrarily denied him the right to put on the stand a witness who was
physically and mentally capable of testifying to events that he had personally
observed, and whose testimony would have been relevant and material to the
defense.”).
      Yet the general principle announced in Holmes and its forebears is
complicated when applied in the context of expert witnesses testifying to a
defendant’s mental health issues. In Clark, the Supreme Court confronted a
state rule of evidence that excluded all expert testimony regarding the
defendant’s mental health unless it was offered to prove an insanity defense;
i.e., such evidence could not be offered to refute mens rea. 548 U.S. at 756–57.
In rejecting the defendant’s challenge to that rule, the Supreme Court noted
that “the right to introduce relevant evidence can be curtailed if there is a good
reason for doing that.” Id. at 770; see also id. (“‘While the Constitution . . .
prohibits the exclusion of defense evidence under rules that serve no legitimate
purpose or that are disproportionate to the ends that they are asserted to
promote, well-established rules of evidence permit trial judges to exclude
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                                       No. 14-70033
evidence if its probative value is outweighed by certain other factors such as
unfair prejudice, confusion of the issues, or potential to mislead the jury.’”
(alteration in original) (quoting Holmes, 547 U.S. at 326)). The court found
four reasons for Arizona’s rule that rendered it constitutionally permissible.
The first reason was that allowing expert mental health evidence as to mens
rea would undermine the state’s “authority to define its presumption of sanity
(or capacity or responsibility) by choosing an insanity definition, . . . and by
placing the burden of persuasion on defendants who claim incapacity as an
excuse from customary criminal responsibility.” Id. at 771. 2 The court then
found three other “characteristics of mental-disease and capacity evidence that
may reasonably be hedged by channeling the consideration of such evidence to
the insanity issue” on which the defendant generally bears the burden of proof.
Id. at 774. The first is that the diagnosis of mental disease “may mask vigorous
debate within the profession about the very contours of the mental disease
itself,” leading to “a general caution in treating psychological classifications as
predicates for excusing otherwise criminal conduct.” Id. at 774–75. The second
is “the potential of mental-disease evidence to mislead jurors (when they are
the factfinders) through the power of this kind of evidence to suggest that a
defendant suffering from a recognized mental disease lacks cognitive, moral,
volitional, or other capacity, when that may not be a sound conclusion at all.”


       2  The Court also held that this rationale was insufficient on its own:
        An insanity rule gives a defendant already found guilty the opportunity to
        excuse his conduct by showing he was insane when he acted, that is, that he
        did not have the mental capacity for conventional guilt and criminal
        responsibility. But, as the dissent argues, if the same evidence that
        affirmatively shows he was not guilty by reason of insanity (or “guilty except
        insane” under Arizona law, Ariz.Rev.Stat. Ann. § 13–502(A) (West 2001)) also
        shows it was at least doubtful that he could form mens rea, then he should not
        be found guilty in the first place; it thus violates due process when the State
        impedes him from using mental-disease and capacity evidence directly to rebut
        the prosecution’s evidence that he did form mens rea.
Id. at 773–74.
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Id. at 775. The last concerns the “particular risks inherent in the opinions of
the experts who supplement the mental-disease classifications with opinions
on incapacity,” namely, the required judgment-calls in making the inference
from the diagnosis to an opinion on the defendant’s mental state at the time of
the offense and from “the concepts of psychology, which are devised for
thinking about treatment, to the concepts of legal sanity, which are devised for
thinking about criminal responsibility.” Id. at 776–77. As the rule in question
“serve[d] to preserve the State’s chosen standard for recognizing insanity as a
defense and to avoid confusion and misunderstanding on the part of jurors,”
there was “no violation of due process under Chambers and its progeny, and no
cause to claim that channeling evidence on mental disease and capacity offends
any principle of justice so rooted in the traditions and conscience of our people
as to be ranked as fundamental.”        Id. at 779 (internal quotation marks
omitted).
      Clark does not, however, resolve Roberson’s challenge in this case, as the
State contends, because Texas has not adopted a rule channeling all expert
testimony on mental disease and capacity into an insanity defense and
excluding it from consideration as to mens rea.        See Roberson, 2002 WL
34217382, at *8. Though “Texas does not recognize ‘diminished capacity’ as an
affirmative defense, i.e., a ‘lesser form of the defense of insanity,’” where
“mental-health evidence is presented, not as part of an attempted affirmative
defense, but instead as an attempt to negate the mens rea element of the
charged offense,” under Texas law, “such evidence is admissible, assuming it
meets the requirements of Rule 403.” Id. at *7 (quoting Jackson, 160 S.W.3d
at 573). Thus, while Clark recognized that there are justifications that allow
a state to constitutionally channel expert mental health evidence away from
disputing mens rea and into the insanity defense, Texas does not rely on any
such justifications and follows no such rule.       Roberson’s challenge thus
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presents a question as to whether the fact that a state has not followed a path
that is open to it is of constitutional significance.
      Yet while that question may demand resolution in a different context,
our review in this case is governed by the deferential standard of AEDPA.
Given the ambiguity created by the gap between Holmes and Clark, as well as
the minimal probative value of Dr. Krusz’s testimony on the issue of mens rea,
we conclude that the Texas courts’ denial of Roberson’s claim was not an
unreasonable application of clearly established Federal law, as determined by
the United States Supreme Court. Dr. Krusz diagnosed Roberson with an
organic brain disorder, more specifically, post-concussional syndrome. On voir
dire during the guilt phase of the trial, Dr. Krusz testified that the syndrome
would affect Roberson’s ability to carry out an act intentionally or knowingly.
He also testified that he could relate the diagnosis to the relevant culpable
mental states under the law. But Dr. Krusz’s testimony during the offer of
proof for the bill of exceptions did not deliver on that promise. Dr. Krusz
testified that, as a result of Roberson’s condition, a small child who was ill and
fussy would be a stressor that would affect Roberson differently than normal
individuals given Roberson’s lack of child caring capability or prior child caring
experience. Dr. Krusz also testified that the effect of such a stressor would be,
to use the diction of defense counsel’s question, an emotional control over
Roberson’s behavior.      He also testified that Roberson’s post-concussional
syndrome would affect Roberson’s reasoning capability, “[s]pecifically with
respect to what we term inhibition of behaviors by frontal lobe [sic] of the
brain.”   Roberson elicited no testimony connecting those conclusions to
Roberson’s ability to form knowledge or intent. Based on Dr. Krusz’s testimony
during voir dire and Roberson’s offer of proof, we cannot conclude that the
Court of Criminal Appeals’ conclusion that Dr. Krusz’s “proposed testimony
regarding organic brain syndrome and poor impulse control is not relevant as
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to [Roberson]’s ability to form the requisite mens rea for the offense,” but rather
“was merely being used as a mental-health defense not rising to the level of
insanity” was contrary to or an unreasonable application of clearly established
Federal law, as determined by the Supreme Court. The district court therefore
did not err in denying Roberson’s petition for a writ of habeas corpus.
      As a matter of completeness, we also consider Dr. Krusz’s testimony
during the sentencing phase. During that phase, Dr. Krusz again turned to
his conclusions regarding Roberson’s ability to form knowledge or intent:
            Q.     Would that go to affecting his intent or his knowledge,
      awareness of what he’s doing?
            A.     Not necessarily.      People who sometimes have
      alterations in their behavior often don’t have a direct awareness of
      it. Just as an example, different context, but actually the
      underpinning of brain injury is the commonality. I’ve had people
      drive three states and not have any memory of the act of driving
      there. They obviously got there safe and began to wonder how they
      arrived, but sometimes the brain can get into a state where it’s not
      quite connected to its environment.
            Q.     Do you believe that that’s possible in this situation?
            A.     Theoretically, yes.
            Q.     All right. And without actually having been there and
      seen all sorts of diagnostic things going on at the time of the
      incident, is there any way really to tell?
            A.     No.
            Q.     Okay. But the base material is kind of there; it’s brain
      damage?
            A.     Yes.
            Q.     The emotional issues?
            A.     Correct.
            Q.     The limitation of IQ?
            A.     Yes. The acumen is limited.
            Q.     And some of the traumatic events that you talked
      about?
            A.     Yes. They were present, at least in the history.
Given the ambiguous and equivocal nature of Dr. Krusz’s opinion, which was
merely that Roberson’s post-concussional syndrome “theoretically” could have

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                                  No. 14-70033
affected his formation of intent or knowledge, but that it did “[n]ot necessarily”
do so, and that there was not any way really to tell, Dr. Krusz’s testimony at
sentencing does not alter our conclusion that, under the deferential standard
of review articulated in AEDPA, the decision of the Court of Criminal Appeals
was not “contrary to, or . . . an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1).
                                       IV.
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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