ON APPLICATION FOR A WRIT OF HABEAS CORPUS
FROM WEBB COUNTY

I dissent from the majority's opinion regarding both the resolution of this case and the judicial guidelines pronounced therein, particularly that the judge of the convicting court shall determine the factual merit of an Atkins⁽¹⁾ claim raised on habeas corpus. (Maj. op. Part II B). United States Supreme Court decisions and Texas legal tradition require a jury determination on the issue of mental retardation if the applicant is able to make a prima facie showing sufficient to raise the issue. This Court found that applicant made a prima facie showing of mental retardation, but the trial court, not a jury, made the factual determination during the habeas proceeding. Thus, the procedure employed, though consistent with Texas Code of Criminal Procedure art. 11.071, § 9, was not sufficient to protect the applicant's constitutional rights.

I agree with the majority that this Court does not, under normal circumstances, create law. Our role is to interpret and apply the law as written by the Texas Legislature or as announced by the United States Supreme Court. Where such statutes do not provide procedures sufficient to protect an applicant's constitutional rights, we have an overriding duty to uphold the Constitution. Where constitutionally required procedures are not forbidden by statute, but are also not expressly permitted, the two are not necessarily in conflict.⁽²⁾ In those situations, the courts must temporarily provide a remedy until the Legislature explicitly provides a constitutionally sufficient procedure.⁽³⁾ Therefore, although there is no authority in the Code of Criminal Procedure either for this Court to order the trial court to conduct a hearing before a jury on the issue of mental retardation in a habeas proceeding or for the trial court to hold such a hearing on its own accord,⁽⁴⁾ we possess the authority, and the responsibility, to recognize the courts' ability to hold such a hearing if the Sixth and Eighth Amendments so require. I find that they do.

The Supreme Court has consistently recognized the uniqueness of the death penalty, and that Court requires a greater degree of reliability when the death sentence is imposed.⁽⁵⁾ In Furman, Justice Stewart described the unique character of the death penalty:

The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.⁽⁶⁾

This heightened need for reliability requires a procedure that allows for a jury determination of the facts in evidence, with the convicting court acting as a gatekeeper and not as the fact-finder.

While some courts have found that Ring⁽⁷⁾ is not retroactive, at least one has found that it is.⁽⁸⁾ I am likewise persuaded that Ring is retroactive.

Even if Ring is not retroactively applicable as to other issues, Ring and Atkins were decided in the same month, and Atkins most assuredly is retroactive. Although potential applicants' convictions may be final, they should be able to raise Atkins claims for the first time post-conviction. Of overriding importance regarding the issue of retroactivity under Teague is the finality of convictions.⁽⁹⁾ Post-conviction Atkins claims do not allege error in the process used to obtain the convictions or sentences, so there is no issue of reviewing the correctness of procedures that did not follow procedural rules that had not yet been annunciated. What will be determined is if the applicant is eligible for the death penalty, under Atkins, and the process used to address this decision does not alter the fact that the issue must be addressed. Involving a jury to determine the Atkins claims does not threaten the finality of the final conviction any more than does having a trial court determine the Atkins claim without a jury. Because these claims are being addressed for the first time, there is no reason to proceed under rules as they were understood at the time the conviction became final. The applicant stands in the same position as defendants currently at trial and those on direct appeal whose Atkins claims are being heard for the first time. The process used to address these claims should be subject to the law as it stands influenced by Ring.

Ring is also applicable to the determination of mental retardation. Although a conviction for capital murder authorizes a maximum penalty of death in a formal sense, the defendant may not be sentenced to death unless certain findings are made. The Legislature has enumerated some of these findings in the statutory special issues, which have changed over time.⁽¹⁰⁾ After Atkins, when the issue of mental retardation is raised, the defendant cannot be put to death - in effect is ineligible for the death penalty - if it is determined, through an as-of-yet undetermined process, that the defendant is mentally retarded. Surely the Sixth Amendment guarantee would apply to a factual determination that the Supreme Court held the Eighth Amendment required. In Penry, the Supreme Court reaffirmed the requirement that the jury be able to consider and give effect to all mitigating evidence.⁽¹¹⁾ While evidence of mental retardation could and can be considered as a mitigating factor in the jury's sentencing determination, such factors are discretionary. Determining whether the defendant is mentally retarded is not an exercise of the jury's discretion, but rather an act of fact finding. In this way, when raised by the defendant, the issue of mental retardation functions as an aggravating circumstance and not a mitigating circumstance.

Aside from the Federal Constitutional implications, the Texas Constitution⁽¹²⁾ and Code of Criminal Procedure demonstrate a consistent public policy that juries should make factual determinations, especially in death penalty cases where the State does not even permit the defendant to waive the right to a jury trial.⁽¹³⁾ Juries are employed in determining a defendant's mental illness as well as incompetency.⁽¹⁴⁾ Although there is no statute setting forth the procedure for determining pre-trial or during trial whether a defendant is mentally retarded, it is unfathomable that juries will not be involved. Though no jury is required post-conviction to determine incompetency to be executed,⁽¹⁵⁾ the question of whether a defendant may be executed requires heightened procedural safeguards that the question of when a defendant may be executed does not.⁽¹⁶⁾ The Fifth Circuit also recognized this distinction when it upheld the constitutionality of the Texas statute providing a procedure to determine competency to be executed.⁽¹⁷⁾

Because many petitioners were convicted and sentenced to death before Atkins, they have not been afforded a jury determination of their claims of mental retardation. Even if such an applicant's trial strategy included presenting evidence of mental retardation during the punishment phase, the jury would have had discretion to determine whether the evidence warranted imposition of a sentence less than death. However, the jury would not have been instructed to determine whether the defendant was mentally retarded - the positive finding of which would disallow jury discretion regarding punishment based on the Supreme Court's decision. The Supreme Court found that there is a national consensus that execution of mentally retarded defendants constitutes cruel and unusual punishment. Unfortunately, national consensus does not necessarily translate to the consensus of a given jury. Because such applicants have the right to a jury determination on the issue of mental retardation, and the determination was not made at trial, it must be provided post-conviction in order to satisfy Atkins and Ring. Unless we determine that post-conviction Atkins claims fall outside the statutory habeas proceedings, we must incorporate the jury proceedings into our habeas corpus process and determine whether the applicant is entitled to relief in the form of commutation of his sentence from death to life in prison.

  When the issue of mental retardation is raised post-conviction in a death penalty case, the Sixth and Eighth Amendments require that either the convicting court or the Court of Criminal Appeals review the evidence provided in the writ application to determine whether the evidence propounded by the applicant is sufficient to make a prima facie showing of mental retardation, and, if so, whether the evidence argued in the party's brief conclusively establishes that the appicant is mentally retarded. If the court finds, based on the pleadings, that the applicant has conclusively proven mental retardation, the court may, without empaneling a jury, grant the relief to which applicant is entitled. The applicant would receive no greater relief from a jury determination. If the applicant has only established a prima facie case, the Sixth and Eighth Amendments require the convicting court to empanel a jury and hold a hearing for the limited purpose of resolving the factual issue of mental retardation. At that hearing, the applicant carries the burden of proof and the jury is required to come to a unanimous conclusion regarding whether the applicant has shown by preponderance of the evidence that he is mentally retarded. Depending on the jury's answer, the convicting court must then provide this Court with a recommendation to either deny relief on the applicant's allegation of mental retardation or commute the applicant's sentence to life.

Because I differ with the majority both on the resolution of this case and the judicial guidelines pronounced herein, I respectfully dissent.

DELIVERED: FEBRUARY 11, 2004

PUBLISH

1. Atkins v. Virginia, 536 U.S. 304 (2002).

2. See State v. Patrick, 86 S.W.3d 592, 600-603 (Tex. Crim. App. 2002) (Cochran, J., dissenting) (mandamus was inappropriate where action taken by trial court was neither permitted nor prohibited by statute and did not harm the interests of society, the State, or the orderly administration of justice).

3. State v. McPherson, 851 S.W.2d 846, 850 (Tex. Crim. App. 1992) (trial court did not err in providing a judicially created fourth special issue in a death penalty case to comply with Penry I when the Constitution required an additional vehicle and neither the Supreme Court nor Texas Court of Criminal Appeals had provided guidance on the what vehicle to provide the jury.)

4. The Code of Criminal Procedure art. 11.071, § 9 states:

"If the convicting court determines that controverted, previously unresolved factual issues material to the legality of the applicant's confinement exist, the court shall enter an order . . . designating the issues of fact to be resolved and the manner in which the issues shall be resolved. To resolve the issues, the court may require affidavits, depositions, interrogatories, and evidentiary hearings and may use personal recollection." Tex. Code Crim. Proc. art. 11.071 § 9.