Hernandez v. Johnson

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-50908

RODOLFO BAIZA HERNANDEZ,
Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.

Appeal from the United States District Court
For the Western District of Texas

April 11, 2001

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

A jury in the 207th Judicial District Court for Comal County,

Texas, on September 25, 1985, convicted Rodolfo Baiza Hernandez of

the capital murder of Victor Cervan. The jury gave affirmative

answers to the questions required in Texas at the sentencing phase

of the trial, and he was sentenced to death. After direct and

collateral review by the state courts of his conviction and

sentence, Hernandez brings this appeal from a denial of federal
habeas relief by the United States District Court. He urges two

points.

First, he urges that he was denied his Sixth Amendment right

to counsel because a court-appointed psychiatrist testified at the

sentencing phase of this trial regarding his future dangerousness,

although the State refused to allow his counsel to be present at

the doctor’s examination of Hernandez. Second, he urges that the

statutory questions asked the jury in the sentencing phase did not

allow the jury to consider in mitigation his evidence that he was

abused as a child and suffered chronic paranoid schizophrenia. We

find these two contentions to be without merit and affirm dismissal

of his federal petition.

I

Victor Cervan was one of five Mexican nationals attempting to

make their way into this country by illegal passage across the Rio

Grande northward to the area of Denton, Texas, in search of jobs on

local ranches. There is little dispute about their encounter with

Hernandez, who happened upon them as they left a boxcar in the rail

yard in San Antonio. He offered to give them a ride north, for a

fee. Instead, assisted by Jesse Garibay, his brother-in-law,

Hernandez took them to a remote area where he robbed them and shot

them at close range, execution style. All but Cervan survived, and

2
two of them testified against Hernandez at trial.1 The Texas Court

of Criminal Appeals affirmed on direct review and the Supreme Court

denied certiorari.2 In 1991 Hernandez filed a state petition for

habeas relief, and in 1993 a special master filed proposed findings

of fact and conclusions of law. The state trial court adopted the

master’s proposals and recommended denial of all relief. The Texas

Court of Criminal Appeals determined that the findings of fact were

supported by the record and denied relief. The Supreme Court

declined review a second time.3 The federal petition followed. Two

and one-half years later the district denied relief and granted a

certificate of appealability on the two issues now before us.

II

Since Hernandez filed his federal petition for habeas relief

after the effective date of the AEDPA, his petition is controlled

by that act. Its most immediate provision4 limits the authority of

federal courts in habeas proceedings as follows:

(d) An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim –

1
See Hernandez v. State, 805 S.W.2d 409, 410-11 (Tex. Crim.
App. 1990).
2
See id.; Hernandez v. Texas, 500 U.S. 960 (1991).
3
Hernandez v. Texas, 513 U.S. 1086 (1995).
4
28 U.S.C. § 2254(d) (2000).

3
 (1) resulted in a decision that was contrary
to, or involved an unreasonable application of,
clearly established Federal law, as determined
by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an
unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.

In Williams v. Taylor,5 the Supreme Court explained 2254(d)(1)

as follows:

Under the “contrary to” clause, a federal habeas court
may grant the writ if the state court arrives at a
conclusion opposite to that reached by this Court on a
question of law or if the state court decides a case
differently than this Court has on a set of materially
indistinguishable facts. Under the “unreasonable
application” clause, a federal habeas court may grant the
writ if the state court identifies the correct governing
legal principle from this Court’s decisions but
unreasonably applies that principle to the facts of the
prisoner’s case.

III

Before trial Hernandez’s counsel filed a motion requesting

Judge R.T. Pfeuffer, the state trial judge, to appoint a “qualified

disinterested expert at County expense to conduct a mental

examination of the Defendant with regard to the Defendant’s

competency to stand trial, to file a written report in this Court

within 30 days of the Order of Examination, and to testify regarding

same at any trial or hearing upon such issue . . . [and] that this

Court furnish defense counsel with copies of said report as soon as

it becomes available.” The motion also requested money to “enable

5
529 U.S. 362, 412-13 (2000).

4
the Defendant to select an expert of his own choice to examine the

Defendant relative to his competency to stand trial” and “that

Hernandez’s counsel be notified of the time and place of the

examination and he be allowed to attend, alternatively, that the

examination be video taped and he be furnished a copy of the tape.”

Significantly, the motion also requested that the examiner file

separate reports regarding the examiner’s opinion of whether

Hernandez was mentally ill or retarded and whether he required

treatment. The latter request plainly looks beyond questions of

competency to stand trial to the sentencing phase of the trial. The

motion also requested that the examiner testify at trial or at a

hearing on the issues.

Judge Pfeuffer granted the motion in part, appointing Dr. John

Sparks with instruction to examine for competency to stand trial and

for sanity at the time of the offense. He denied the request for

appointment of an “independent” doctor, the request that counsel be

notified and be allowed to be present, as well as the alternative

request for videotaping.

Dr. Sparks conducted the examination. He gave Hernandez the

required warnings that his statements could be used against him at

trial, except, apparently, a specific caution that any statements

could be used in the sentencing phase of a trial. Dr. Sparks gave

no notice to defense counsel, and counsel was not present during the

examination. The following month, in September, the trial judge

convened a competency hearing before a jury at which both sides

5
offered evidence and Dr. Sparks testified regarding competency. The

jury found that Hernandez was competent to stand trial. Defense

counsel made no further requests for psychiatric assistance and did

not attempt an insanity defense at trial.

Dr. Sparks made no appearance until the punishment phase of the

trial, when the State called him as a witness. The State’s direct

examination made no mention of any examination by Dr. Sparks.

Rather, the State proceeded by asking a narrative hypothetical

question as a basis for Dr. Sparks’ opinion as to whether a person

with a similar history would be a danger to society. Dr. Sparks

expressed the opinion that such conduct reflected an anti-social

personality and that a person with this history would likely

continue to be a danger to society. The difficulties began when

defense counsel seized the opportunity to develop on cross-

examination a mitigation theory that rested on an old diagnosis of

chronic schizophrenia made of Hernandez during an earlier prison

stay for robbery. He presented prison records to Dr. Sparks

reflecting the diagnosis, eliciting testimony about periods of

remission and its responsiveness to drugs and therapy. Dr. Sparks

acknowledged the differences in the illnesses but maintained that

nonetheless his earlier answers in response to the hypothetical

“appear[ ] to be closest to a description that is labeled the anti-

social personalty.” He argued that such an afflicted person can

experience periods of remission and with proper treatment live a

productive life.

6
 On redirect the State demonstrated that Dr. Sparks also had the

benefit of the examination of Hernandez ordered by the court at

Hernandez’s request; and that in concluding that Hernandez was

competent to stand trial, Dr. Sparks had decided that Hernandez had

an anti-social personality. The Texas Court of Criminal Appeals

described this exchange at trial as follows:

[T]he State elicited redirect testimony from Dr. Sparks
concerning appellant’s competency evaluation in response
to appellant’s introduction of psychiatric evidence on
cross-examination. By introducing appellant’s TDC
psychiatric records and soliciting Dr. Sparks’ opinion
concerning those records, appellant “opened the door” to
the State’s use of the results of his competency exam for
rebuttal purposes. . . .

By creating the impression that appellant may have been
suffering from paranoid schizophrenia, appellant paved
the way for the State to rebut that impression with
psychiatric testimony tending to show that appellant was
instead suffering from an anti-social personality
disorder.6

The Texas court also concluded that Dr. Sparks did not express

an opinion regarding future dangerousness, and that the trial court

had specifically instructed the prosecutor that he could not do so.

The Texas court explained:

When the State began to elicit testimony concerning Dr.
Sparks’ competency examination, appellant immediately
objected. At the subsequent hearing outside the jury’s
presence, the trial court ruled that the witness could
testify as to his medical findings, but not as to whether
appellant would likely commit future acts of violence
that would constitute a danger to society. The essence
of Dr. Sparks’[ ] testimony before the jury was his

6
Hernandez v. State, 805 S.W.2d 409, 412 (Tex. Crim. App.
1990) (en banc).

7
 diagnosis of anti-social personality disorder, along with
a comment that had he been informed of appellant’s prison
psychiatric records, his diagnosis would have been a
primary finding of paranoid schizophrenia in remission
along with a secondary finding of an anti-social
personality disorder. This testimony, while relevant to
the issue of future dangerousness, was not a direct
assertion of an expert opinion concerning future
dangerousness.7

We agree with this reading of the record by the Texas court. At the

least, it is both an objectively reasonable interpretation of the

relevant events at trial and reasonable application of the decision

of the Supreme Court in Buchanan v. Kentucky.8

The primary contention here is that the introduction of Dr.

Sparks’ testimony that he had examined Hernandez before the

competency hearing denied Hernandez’s right to counsel secured by

the Sixth Amendment.9

7
Id. at 412 n.3.
8
483 U.S. 402, 424-25 (1987) (stating that the focus of the
Sixth Amendment right is not on the use of the doctor’s report and
that “the proper concern of this amendment [is] the consultation
with counsel, which petitioner undoubtedly had. Such consultation,
to be effective, must be based on counsel’s being informed about
the scope and nature of the proceeding. . . . Given our decision
in Smith, however, counsel was certainly on notice that if . . . he
intended to put on a ‘mental status’ defense . . . he would have to
anticipate the use of psychological evidence by the prosecution in
rebuttal.”)
9
There are suggestions that these events also violated
Hernandez’s right to not incriminate himself under the Fifth
Amendment, although that separate contention has not been made to
us. Regardless, neither contention, although resting upon distinct
doctrines, can survive the analysis of Buchanan.

8
 Hernandez initiated the examination for competency and other

evidence of mental illness through his counsel and had a full

opportunity to cross-examine Dr. Sparks at the competency hearing

before trial. There is no suggestion that Hernandez did not have

a full opportunity to consult with counsel about the scope of the

examination, both with regard to its use to demonstrate competency

and to develop possible mitigating evidence. As Buchanan teaches,

defense counsel was on notice that if he attempted to put mental

status in play, the State might draw upon the examination in

rebuttal.

At the sentencing phase of trial on direct examination by the

State’s attorney, Dr. Sparks expressed an opinion based upon a

hypothetical question and not upon his prior examination. The

defense lodged no objection to the use of the hypothetical, apart

from an error in the recitation, which was promptly corrected. The

only deviation from that presentation came on redirect examination

where Dr. Sparks’ prior examination was disclosed in a shoring of

Dr. Sparks’ opinions regarding the relative play of schizophrenia,

in remission and when treated by drugs, as compared to the diagnosis

of anti-social disorder. We find no violation of the Fifth or Sixth

Amendment in this circumstance.

These events differ from those of White v. Estelle,10 and

Hernandez’s reliance upon it is misplaced. It is true that, as

10
720 F.2d 415 (5th Cir. 1983).

9
here, the examiner of White testified in the sentencing phase in

response to hypothetical questions, but little else of importance

is similar. Defense counsel in White objected to the testimony,

urging the trial court that the tailoring of the hypothetical was

calculated to inform the jury of the earlier examination ordered on

a motion by the State, not the defendant.11 The federal habeas

trial court later found that the examination “reasonably indicated

that the psychiatric prognosis of White’s future dangerousness was

influenced by and derived from the court-ordered pretrial

psychiatric examinations.”12 This was not the case with the

hypothetical put to Dr. Sparks. Indeed, sensitive to Estelle,

Judge Pfeuffer here instructed the prosecutor that he was to not ask

Dr. Sparks “whether [Hernandez] would likely commit future acts of

violence that would constitute a danger to society,”13 for the

reason that Judge Pfeuffer had not allowed defense counsel to be

present when Dr. Sparks conducted the ordered examination of

Hernandez. Disclosure of the court-ordered examination came here

only in response to defense counsel’s cross-examination which opened

the door for its receipt. As applied here, this trial court ruling

was no mechanical application of the familiar “you opened the door.”

Rather, it was a practical necessity to avoid the unfairness of

11
See id. at 417 & n.1.
12
Id. at 417.
13
Hernandez, 805 S.W.2d at 412 n.3.

10
tying the prosecutor’s hands while leaving defense counsel free to

attack Dr. Sparks’ opinions as lacking an informed basis.

IV

Hernandez contends that the jury could not give effect to

evidence that he was subjected to sustained child abuse and chronic

mental disease. The argument is that the jury could not give effect

to these mitigating circumstances under the questions asked them as

explained in Penry v. Lynaugh.14 As demonstrated by defense counsel

in closing argument, the evidence of chronic schizophrenia could be

considered by the jury in answering the question of future

dangerousness, an argument counsel had carefully laid the support

for in his cross-examination of Dr. Sparks. With medication and

treatment, remission can be sustained.

We have repeatedly held that evidence of child abuse alone,

unlinked to the offense, is not mitigating.15

V

We have heard argument in this case and carefully considered

the opinions of the courts that have previously decided these

14
492 U.S. 302 (1989).
15
See Davis v. Scott, 51 F.3d 457, 461-62 (5th Cir. 1995)
(evidence of child abuse, alone, without demonstrating any link to
the crime, does not constitute “constitutionally relevant
mitigating evidence”); Madden v. Collins, 18 F.3d 304, 308 (5th
Cir. 1994) (evidence of troubled childhood not constitutionally
relevant mitigating evidence when not linked in any way to the
crime); Barnard v. Collins, 958 F.2d 634, 638-39 (5th Cir. 1992)
(rejecting Penry claim where crime not attributable to the
proffered evidence of troubled childhood).

11
questions, including a detailed opinion by the district court below,

and find no error. We affirm the dismissal of the writ of habeas

corpus and dissolve the stay of execution.

AFFIRMED.

12
DENNIS, Circuit Judge, dissenting:

The questions presented are whether U.S.C. § 2254(d)(1) (1994 & Supp. 2000).

Rodolfo Baiza Hernandez’s Sixth Because these questions should be answered

Amendment right to counsel, as defined in affirmatively, instead of negatively as in the

Estelle v. Smith, 451 U. S. 454 (1980), was majority opinion, I respectfully dissent.

violated; whether he was sentenced to death

in violation of the Eighth Amendment I.

because the jury was not instructed that it

could consider and give effect to the The majority opinion’s analysis is flawed

mitigating evidence of his abused childhood because of its failure to recognize that the state

by declining to impose the death penalty, as habeas trial court made no ruling on

required by Penry v. Lynaugh, 409 U.S. 302 Hernandez’s Sixth Amendment claim; and that

(1989); and whether the judgment of the the Texas Court of Criminal Appeals’s per

Texas Court of Criminal Appeals refusing to curiam order adopting the state habeas trial

set aside his death sentence “was contrary court’s “findings and conclusions” therefore

to, or involved an unreasonable application either had no legal basis whatsoever or else

of, clearly established Federal law, as unconstitutionally conflated its analysis of the

determined by the Supreme Court of the defendant’s Fifth and Sixth Amendment rights,

United States,” within the meaning of 28 contrary to the clearly established Federal law

13
as determined by the Supreme Court of the expert’s testimony is ‘not a direct assertion of

United States. an expert’s opinion concerning future

The majority opinion mistakenly relies on dangerousness’, but rather, some other form of

the opinion of the Texas Court of Criminal mental health diagnosis harmful to the

Appeals on direct appeal in Hernandez v. defendant’s case.” The special master and the

State, 805 S.W.2d 409 (Tex. Crim. App. state habeas trial court did not–as the majority

1990), as if it were the factual findings and opinion expresses–recommend the denial of

rulings of law of that court with respect to relief, but recommended that “the Texas Court

Hernandez’s Sixth Amendment habeas of Criminal Appeals should review this issue

corpus claim. On direct appeal, the Texas closely to det ermine if there is such a

Court of Criminal Appeals reviewed only requirement.”

Hernandez’s Fifth Amendment claim. The Texas Court of Criminal Appeals, on

Regarding his Sixth Amendment state habeas the state habeas appeal, did not review the

claim, the state habeas trial court and the issue or make any additional factual findings

special master found additional facts relating from the record. That court, without oral

specifically to the Sixth Amendment claim. argument, merely issued a per curiam order

But the trial court clearly deferred any ruling holding that “[t]he findings and conclusions [of

on that claim, noting that “the question is the special master adopted by the trial court]

presented as to whether or not the decisions are supported by the record and upon such

of Estelle v. Smith . . . and Powell v. Texas basis the relief sought is denied.”

[492 U.S. 680 (1989)] require the presence Accordingly, the majority opinion of this

of counsel where the state’s mental health court mistakenly assumes that the full opinion

14
of the Texas Court of Criminal Appeals on and Sixth Amendment claims and a conclusion

direct appeal, which pertained only to that they can both be rejected constitutionally

Hernandez’s Fifth Amendment argument on for the same reason. That decision, however,

appeal, was that court’s ruling on is one that is contrary to, and an unreasonable

Hernandez’s Sixth Amendment habeas claim. application of, clearly established Federal law,

Of course, it was not. On Hernandez’s as determined by the Supreme Court of the

habeas appeal, the Texas Court of Criminal United States. This issue, and the reasons that

Appeals said it was denying relief based on the majority opinion also misapprehends

the findings of fact and conclusions of the Hernandez’s Eighth Amendment claim, are

habeas trial court. But because the trial addressed in detail below. Before addressing

court did not make any ruling or reach any these major legal issues in more detail,

conclusion, the decision of the Texas Court however, it is first necessary to point out the

of Criminal Appeals presently under review majority’s errors in misconstruing the

really has no tangible legal basis. procedural and factual context of this case.

Only by a highly creative assumption can The majority opinion quotes a small,

this court read into the Texas Court of selected portion of the defense counsel’s

Criminal Appeals’s terse per curiam order pretrial motion for a qualified disinterested

any kind of a reasoned disposition of expert to conduct a mental examination of the

Hernandez’s Sixth Amendment habeas claim. defendant with regard to his competency to

The only reasonable creative assumption stand trial and his sanity at the time of the

would be that the per curiam represents a offense. The majority opinion then

conflation of analysis of Hernandez’s Fifth mischaracterizes the defense motion as

15
containing a request that “looks beyond request for testimony at trial on the issues, the

questions of competency to stand trial to the defense motion specifically limited the request

sentencing phase of the trial. The motion for testimony on Hernandez’s competency to

also requested that the examiner testify at stand trial–not for testimony at the guilt or

trial or at a hearing on the issues.” Maj. Op. penalty phases of a capital murder trial.

at 5. The defense motion, however, contains The majority opinion mischaracterizes the

no reference to the sentencing phase but is state trial court’s ruling on the defense pretrial

clearly aimed only at gaining expert motion as “grant[ing] the motion in part.”

assistance to evaluate whether Hernandez Maj. Op. at 5. The court, in fact, denied the

was competent to stand trial or whether to defense counsel’s motion entirely and sua

advise him to plead not guilty by reason of sponte entered an order sharply inconsistent

insanity. The state habeas trial court made with the objects of the motion. The state

the factual finding that Hernandez’s habeas trial court made this clear when it

counsel’s “request for the appointment of an found as a fact that the “trial court den[ied]

expert was made solely for the purposes of this motion.” (Emphasis in original).

examining the defendant relative to his The majority opinion’s statement that

competency, filing a report, and testifying “[t]he State’s direct examination made no

regarding competency at any trial or mention of any examination by Dr. Sparks . .

hearing.” (Emphasis in original) (internal . ,” Maj. Op. at 6, is misleading. Dr. Sparks,

quotations and brackets omitted). And, in presenting his qualifications as an expert in

contrary to the majority opinion’s predicting future dangerousness of criminals,

characterization of the defense motion as a told the jury that he had examined and testified

16
with respect to approximately 1500 persons develop on cross-examination a mitigation

charged with crimes to evaluate their theory that rested on an old diagnosis of

competency to stand trial and their sanity at chronic schizophrenia made of Hernandez

the time of their alleged offenses. The during an earlier prison stay for robbery.”

prosecutor, in his “hypothetical” question, Maj. Op. at 6. It is easy to understand why the

described a criminal and a crime matching in prosecution would advocate this view. But in

minute detail Hernandez and the evidence truth the difficulties began when the

introduced against him at the guilt phase of prosecution called Dr. Sparks, who had

the trial. It is almost certain that reasonable examined Hernandez without giving notice to

jurors would have understood that Dr. his enrolled defense counsel, and had the

Sparks’s prediction of future dangerousness doctor, under the guise of a transparent

referred to Hernandez or someone identical hypothetical, diagnose Hernandez as a person

to him who had committed a crime identical having an “antisocial personality” and predict

to his. It is also highly probable that that “there’s a high likelihood that he would

reasonable jurors would have inferred that continue to perform acts that are a danger to

Hernandez was one of the 1500 persons society.” Defense counsel introduced

charged with crimes who had been examined Hernandez’s prior medical records without any

psychiatrically by Dr. Sparks. objection by the prosecution. Defense counsel

The majority opinion does not present properly used these records to impeach the

the facts objectively or impartially when it testimony of Dr. Sparks that Hernandez was a

states that “[t]he difficulties began when sociopathic menace to society as erroneous

defense counsel seized the opportunity to because he had not taken into account the

17
reliable diagnoses of Hernandez as a chronic FEDERAL HABEAS CORPUS PRACTICE AND

paranoid schizophrenic. The prosecutor PROCEDURE § 31.2, at 1322 (1998 & Supp.

then aggravated those “difficulties” by 2000) (“[T]he state . . . bears the burden of

attempting to rehabilitate his witness on proving by a preponderance of the evidence all

redirect by asking Dr. Sparks about his dispositive facts necessary to establish the

pretrial psychiatric examination of prerequisites for a defense on which it

Hernandez and the doctor’s diagnosis of relies.”); see, e.g., Satterwhite v. Texas, 486

Hernandez’s mental condition at that time. U.S. 249, 255 (1988) (rejecting State’s

There is no legal or factual basis for the argument that a defendant may be

majority’s assertion that, “There is no constructively notified of the scope of a

suggestion that Hernandez did not have a pretrial examination). Factually, the assertion

full opportunity to consult with counsel that there has been “no suggestion” that

about the scope of the examination, both Hernandez was not given the opportunity to

with regard to its use to demonstrate consult with his counsel about the possibility

competency and to develop possible that the pretrial psychiatric examination might

mitigating evidence.” Maj. Op. at 9. The encompass the penalty phase future

burden is on the State to prove its defense to dangerousness issue is also incorrect. The

Hernandez’s Sixth Amendment claim–that Texas Court of Criminal Appeals found

Hernandez had actual notice of the scope of unequivocally that “[t]he record does not

the pretrial psychiatric examination–not on demonstrate that Dr. Sparks warned

Hernandez to prove his lack of knowledge. [Hernandez] that anything [he] said could be

2 JAMES S. LIEBMAN & RANDY HERTZ, used against him at a sentencing proceeding.”

18
Hernandez v. State, 805 S.W.2d 409, 411 found that Hernandez or his counsel had

n.2 (Tex. Crim. App. 1990) (en banc). And, notice that the pretrial psychiatric examination

as recognized by the federal district court in could encompass the future dangerousness

these proceedings, “it is uncontested issue, and it is error for the majority to make

petitioner’s trial counsel w[ere] never such an inference from the record here.

advised Dr. Sparks’[s] competency The majo rity opinion also

evaluation would also address the issue of micharacterizes the facts of the state

petitioner’s future dangerousness.” proceedings when it states that “[t]he defense

Memorandum Opinion and Order at 103. lodged no objection to the use of the

Indeed, there was ample evidence hypothetical, apart from an error in the

that neither Hernandez nor his counsel were recitation.” Maj. Op. at 9. Defense counsel

informed that his statements could be used also objected to the hypothetical question on

by Dr. Sparks at a capital penalty trial to the grounds that it called for Dr. Sparks to

predict his future dangerousness. The state express an expert opinion on future

trial court, in its pretrial psychiatric dangerousness without first establishing the

examination order, did not give Hernandez medical knowledge, techniques, and data in the

or his counsel such notice. Dr. Sparks particular case upon which his opinion was

testified that he did not give Hernandez based; and to Dr. Sparks’s testimony to

notice prior to the psychiatric examination whether Hernandez will have a future mental

that the examination data could be used by state or condition because that is an ultimate

the doctor to testify against him at the death issue for the jury alone.

penalty hearing. The state courts never In order to understand the significance

19
of the legal errors the majority opinion On August 23, 1985, defense counsel

leaves uncorrected, the factual and for Hernandez filed a motion alleging that (1)

procedural background of Hernandez’s the defendant was not competent to stand trial

claims must be fully and accurately set forth. due to his inability to understand the

proceedings or to rationally consult with

II. counsel; (2) the defendant had been examined

and treated for mental disorders from 1969 to

A. 1985 by medical experts of the United States

Army, the Texas Department of Corrections

On May 15, 1985, Rodolfo Baiza (“TDC”), and Bexar County, Texas; and (3)

Hernandez was charged by indictment with counsel had not been able to determine

the March 7, 1985, murder of Victor whether to present an insanity defense.

Cervan, one of five Mexican nationals whom The defense counsel’s motion

he had robbed, shot, and abandoned in a requested that the court (1) appoint a

remote area of Comal County, Texas. On “qualified disinterested expert at County

April 8, 1985, the 207th Judicial District expense to conduct a mental examination of

Court for Comal County, Texas, in New the Defendant with regard to [his] competency

Braunfels, appointed two attorneys in private to stand trial,” and to file a written report of

practice to represent him. At his the examination with the court and counsel;

arraignment, Hernandez pleaded not guilty. (2) grant defense counsel funds and permission

The State announced its intention to seek the to select an expert to examine the defendant

death penalty. relative to his competency to stand trial; (3)

20
notify defense counsel as to the date, time, capacity, advance notice of the time and

and place of the examination to enable location of the examination, the right to attend

counsel to attend the examination; (4) take the examination, and the right to select a

notice that defense counsel “specifically court-appointed expert; (2) appointing Dr.

objects to any such examination unless the John C. Sparks, a psychiatrist employed by the

defense counsel are afforded an opportunity Bexar County, Texas, courts, “whose address

to be present”; (5) alternatively, order the is 2nd Floor, Bexar County Jail, San Antonio,

entire examination video-recorded for Texas,” to conduct a mental examination of

defense counsel’s use and benefit; (6) order Hernandez regarding competency to stand

the medical examiner to include in his report trial, file a written report with the court, and

observations and findings regarding furnish a copy to defense counsel no later than

Hernandez’s competence to stand trial, his August 30, 1985; (3) ordering the Comal

status as to mental illness and retardation, County Sheriff’s Department to transport

and required or recommended observation, Hernandez to Dr. Sparks’s office for the

treatment, or hospitalization; and (7) examination; (4) declaring that Dr. Sparks

schedule a hearing to determine whether the would be advised by the court of the facts and

defendant was competent to stand trial. circumstances of Hernandez’s charged offense

The state trial court on August 23, “and the meaning of incompetency to stand

1985, entered an order (1) denying defense trial”; (5) ordering Dr. Sparks to include in his

counsel’s requests for funds with which to written report a description of the

employ an independent psychiatrist to examinations and procedures used, the

examine and report on Hernandez’s mental doctor’s observations and findings pertaining

21
to competence to stand trial, the doctor’s defense within twenty-four hours after receipt

opinion as to Hernandez’s mental illness or of the expert’s report.

retardation, and the doctor’s prescription of Hernandez was transported to San

needed observation, treatment, or Antonio, Texas, by the Comal County

hospitalization; (6) ordering Dr. Sparks to Sheriff’s Department, where, on August 26,

complete and submit a Certificate of Medical 1985, Dr. Sparks, a forensic psychiatrist

Examination for Mental Illness, if necessary; employed full-time by the Bexar County

(7) ordering Dr. Sparks to conduct a mental courts, interviewed Hernandez in custody at

examination of Hernandez as to the issue of the Bexar County jail in San Antonio for

insanity at the time of the alleged offense and approximately eighty minutes and concluded

file a written report in this regard with the that he was competent to stand trial. Dr.

court and counsel, containing a description Sparks did not obtain or review Hernandez’s

of the examination procedures, observations U.S. Army or TDC psychiatric or medical

and findings pertaining to the insanity records, although defense counsel’s motion

defense; (8) ordering that a pretrial hearing put the court and Dr. Sparks on notice of

on the defendant’s mental competency to them. Dr. Sparks obtained and reviewed a

stand trial be held by the trial court on single report by Dr. Richard Cameron, an

September 9, 1985, at the Comal County employee of the Bexar County courts, dated

Courthouse, New Braunfels, Texas; and (9) April 2, 1974, regarding a psychiatric

ordering that the defendant be permitted to examination conducted for the purposes of

notify the court and the State whether he determining Hernandez’s competency to stand

intended to offer evidence of the insanity trial for two aggravated robbery charges. Dr.

22
Cameron’s report concluded that Hernandez psychiatric examination of Hernandez by Dr.

“present[ed] the clinical picture of Sparks on August 26, 1985, would encompass

schizophrenia, schizo-affective type, with the issue of Hernandez’s future dangerousness.

paranoid ideation.” In a letter to the trial The court’s August 23, 1985, order did not

judge attached to his official report, Dr. notify defense counsel that the examination

Sparks reported his findings that Hernandez would include an inquiry into Hernandez’s

was mentally competent to stand trial and future dangerousness. Defense counsel’s

probably had been since March 7, 1985; that motion had not asked for an inquiry into future

Hernandez was neither mentally ill nor dangerousness, and they had specifically

mentally retarded; and that Hernandez objected to any examination unless they were

suffered from an antisocial personality afforded notice and an opportunity to be

disorder. In the body of the report itself, Dr. present. The trial court denied the defense

Sparks observed that he “found no evidences counsel’s motion entirely. Therefore, the

[sic] from []his examination to suggest the pretrial psychiatric examination of Hernandez

presence of the psychosis described in was not the kind of examination his counsel

1974”; but he did not otherwise refer to or had requested. Instead, it was the type of

discuss Dr. Cameron’s 1974 diagnosis of examination to which defense counsel had

Hernandez’s schizophrenia. The record expressly objected.

reflects that Dr. Sparks’s report was mailed Moreover, contrary to the majority’s

to defense counsel on August 27, 1985. assertion, Hernandez’s counsel’s original

Hernandez’s defense counsel were request for a separate report regarding mental

not informed that the scope of the illness or retardat ion did not in any way

23
indicate that they expected, were given examining the defendant relative to his

notice, or agreed that future dangerousness competency, filing a report, and testifying

would be within the scope of the pretrial regarding competency at any trial or hearing.”

examination by a disinterested expert that (Emphasis in original) (internal quotations and

they requested. Defense counsel’s motion brackets omitted).

cited its uncertainty about whether to pursue Furthermore, Dr. Sparks testified that he

an insanity defense at trial, and made no did not warn Hernandez before the

mention of sentencing issues; therefore, the examination that anything he said could be

record only supports reading the request for used against him at a sentencing phase. See

a separate report on mental illness and Hernandez v. State, 805 S.W.2d 409, 411 n.2

retardation as preparation of a mental status (Tex. Crim. App. 1990) (en banc) (noting that

defense at trial, and not as an anticipation of deficiency in the record, and citing Powell, 492

the sentencing issue of future dangerousness. U.S. at 681 (in turn citing Estelle v. Smith,

By reading such anticipation into the defense supra, which precludes a State’s psychiatric

counsel’s motion, the majority jumps to a examination of a capital defendant

conclusion that has no support in the record. encompassing the issue of his future

Indeed, the state habeas trial court’s fact- dangerousness unless his counsel is notified in

findings, to which we are bound to accord a advance of the scope of the examination and

presumption of correctness, 28 U.S.C. § the defendant is also forewarned)).

2254 (e)(1) (2000), state clearly that the At the competency trial, Dr. Sparks

“request for the appointment of an expert testified that he had examined Hernandez on

was made solely for the purposes of August 26, 1985. Dr. Sparks testified that,

24
despite suffering from an antisocial Sparks’s penalty phase testimony.

personality disorder, Hernandez was On September 12, 1985, the competency

mentally competent to stand trial. In the trial jury found Hernandez competent to stand

report filed by Dr. Sparks and introduced trial, and the trial court rendered judgment to

into evidence at the competency hearing, he that effect, which was signed on September

concluded that Hernandez was neither 16, 1985.

mentally ill nor retarded. The defense

counsel agreed to the introduction of the B.

report “for the purposes of [the competency]

hearing only.” The majority incorrectly After a three-day guilt-phase trial,

faults Hernandez’s counsel for not objecting Hernandez was convicted by a jury of capital

to Dr. Sparks’s testimony during the murder on September 25, 1985.

competency hearing. The hearing was At Hernandez’s capital punishment

limited to Hernandez’s competency to stand sentencing hearing on September 26, 1985, the

trial. That is all Dr. Sparks testified to at prosecution introduced additional evidence:

that hearing; he said nothing about (1) the testimony of two law enforcement

Hernandez’s future dangerousness. officers that Hernandez had a bad reputation in

Therefore, Dr. Sparks’s testimony regarding the community regarding peace and law-

the pretrial psychiatric examination was not breaking; (2) a “pen packet” identifying

objectionable, and Hernandez’s counsel had Hernandez as having been convicted in 1974

no reason to believe that that examination for two separate armed robberies; (3)

would later be used improperly during Dr. testimony of Hernandez’s former parole officer

25
that Hernandez’s parole from his prison crimes to evaluate their competency to stand

sentence for the armed robbery convictions trial and their sanity at the time of their alleged

had been revoked in 1983 for possession of offenses.

two handguns; and (4) the testimony of Dr. Dr. Sparks was not tendered to defense

Sparks. counsel for cross-examination on his

Dr. Sparks was called as an expert qualifications or on the relevance and

witness in the field of forensic psychiatry by reliability of his opinion; nor does the record

the prosecution. He testified that he was a show that the court found him to be qualified

psychiatrist employed by Bexar County, or his opinion reliably and relevantly based on

Texas; that he graduated from the University the methodology of his field of expertise and

of Illinois College of Medicine in 1953 and the facts and data in the particular case.

had completed a residency in psychiatry at Defense counsel, however, did not make any

the Illinois Psychiatrist Institute in 1960; that threshold objection to Dr. Sparks’s testimony.

he was licensed in Michigan and Texas and On direct examination, the prosecution

certified by the American Board of asked Dr. Sparks what it termed a

Psychiatry; that he had worked in the “hypothetical” question. First, the prosecutor

military as a psychiatrist for twenty years; asked Dr. Sparks to assume as true a detailed

and that for the past five years he had description of a capital murder by a so-called

worked for the state courts in Bexar County “hypothetical” offender, as well as a detailed

as a forensic psychiatrist engaged in description of the prior criminal record of that

examining and testifying with respect to offender. Second, Dr. Sparks was asked to

approximately 1500 persons charged with express his opinion as to whether the offender

26
would commit criminal acts of violence that “there’s a high likelihood that he would

would constitute a continuing threat to continue to perform acts that are a danger to

society. The defense counsel objected that society.”

the prosecution had failed to establish an The prosecution’s question plainly referred

evidentiary or medical basis for such an to the particular evidence that had been

opinion; that the opinion would either be a presented against Hernandez in both the guilt

baseless conclusion or else would be based and penalty phases of the trial. The criminal

on extrajudicial evidence in violation of record Dr. Sparks was asked to assume

Hernandez’s right to confront the witnesses mirrored Hernandez’s “pen packet,”

against him; and that Dr. Sparks’s answer introduced into evidence at the penalty phase.

would constitute an opinion upon the The detailed description of the so-called

ultimate issue of future dangerousness and “hypothetical” murder identically matched the

thus an invasion of the province of the jury. unique details and circumstances of the capital

After the trial court overruled the objection, murder of which the jury had found Hernandez

defense counsel moved for a mistrial on guilty. 1 6 Consequentl y, the jury

grounds that the jury would be unfairly and
16
The prosecutor described the
unduly prejudiced by Dr. Sparks’s opinion as criminal conduct of the hypothetical offender
as follows:
to future dangerousness for which the [P]lease assume the
following[:] That on March 7,
prosecution had established no evidentiary 1985, this man introduced
himself to five illegal aliens in
basis, but the court overruled that objection San Antonio, that he made a
deal to take them to Dallas and
also. Pursuant to t he trial court’s rulings, that he got his brother-in-law
out of bed who then along with
Dr. Sparks testified that, in his opinion, this person drove the five men
to a remote area in northwest

27
Comal County[.] firing the gun once
Assume further that more at the men on the
this person and his ground[.] Assume
brother-in-law got further that this person
the five men out of and his brother-in-law
the car and at then left all five men
gunpoint walked who had been seriously
them up a small injured by gunfire and
hill[.] Assume drove away[.] Further
further that in assume that this person
walking them up that arrived at his mother’s
hill one of the five house and upon
men stumbled and hearing the news of the
was shot by this shooting of the five
person in the back[.] illegal aliens on the day
Assume that this of the crime, he stated
person then made all that President Reagan
five men lay down had called him and that
face up[.] Assume the President had told
further that this him, had called him
person then at personally to his house
gunpoint demanded and said that the State
their possessions or was overpopulated and
property and then asked him to help him
began systematically get rid of some of the
shooting each of aliens that were
them[.] Assume coming over here to
further that on at San Antonio, to the
least two of the men United States, and that
that the gun was no he then began
more than two to laughing, twirling a
four inches from gun and stating he was
their throats when he a gun-slinger[.]
fired the gun into Assume further that
their body[.] shortly thereafter this
Assume further that person was with
after this person another man and that
emptied the first gun this person was
of bullets, he went to twirling two guns with
his brother-in-law his hands, and after
and exchanged guns hearing another
and then returned broadcast about the

28
must have understood that Dr. Sparks was basis in fact and medical knowledge to support

referring to Hernandez or an offender such an opinion. See, e.g., Satterwhite v.

identical to him when he said “there’s a high Texas, 486 U.S. 249, 259 (1988).

likelihood that he would continue to perform On cross-examination, without objection

acts that are a danger to society.” Also, it is by the prosecution, defense counsel introduced

likely that the jurors reasonably assumed that Hernandez’s TDC medical records showing

a psychiatrist possessing Dr. Sparks’s that he had been diagnosed and treated while

qualifications must have had an adequate in prison, for chronic paranoid schizophrenia;

and that Hernandez’s treatment had included

shooting of antipsychotic drugs (Stelazine and Thorazine),
the five
illegal aliens electro-convulsive treatments, neurotone
this person
said he had treatments, and psychotherapy. Further,
killed one of
the illegal defense counsel elicited testimony from Dr.
aliens and
shot the Sparks that chronic paranoid schizophrenia
others, that
President fluctuates between stages of acuteness and
Reagan had
called him remission, but is considered to be a lifelong
and said that
the United illness; that the symptoms of the disease can be
States is
overpopulate reversed or controlled, however, by
d, that so
many people medication, psychotherapy, and environmental
needed to be
killed during changes; that unrealistic or illogical thinking
a certain
time, and and auditory hallucinations, as, for example, a
was laughing
and talking belief in hearing spoken commands or
about it.

29
instructions by an authority figure, such as science like mathematics, Dr. Sparks replied

the President, are common symptoms of the that it was “[n]ot exactly guesswork but

disease; and that, if Hernandez had been experience and use of what contacts we’ve had

correctly diagnosed as having chronic with the person.” Thus, the jury may have

paranoid schizophrenia, it was possible that gathered that Dr. Sparks’s opinion regarding

he was besieged by hallucinations before, Hernandez’s future dangerousness was based

during, and after his commission of the on actual contacts with Hernandez.

capital murder and related offenses. With On redirect examination, the prosecutor

this evidence, defense counsel sought to asked Dr. Sparks for his opinion as to the type

demonstrate that Dr. Sparks’s opinion could of “personality behavioral problem[ of] the

not relevantly or reliably assist the jury in man that was described in my hypothetical to

deciding whether there was a probability that you . . . would have?” Dr. Sparks testified:

Hernandez would commit criminal acts of “Assuming a great deal, because it did not

violence that would constitute a continuing describe him but it described certain things in

threat to society, because in forming his his life, the behavior appears to be closest to a

opinion Dr. Sparks had been asked to description that is labeled the antisocial

assume only the offender’s criminal acts and personality.” Thus, at this point, Dr. Sparks,

had not been asked to assume the significant by “assuming a great deal” that had not been

factor of chronic paranoid schizophrenia that introduced into evidence, made a psychiatric

was present in Hernandez’s medical history. diagnosis of the “hypothetical” offender as

Also, when asked by defense counsel having an antisocial personality. Accepting the

whether forensic psychiatry was an exact prosecutor’s invitation to elaborate on “love

30
and compassion relative to these confinement there; and that, “at that time []

individuals,” Dr. Sparks added, “they have [h]is diagnosis was schizophrenic, paranoid

very little concern about others. They tend type, chronic, moderately severe; and his

to be focused on their own desires and prognosis . . . was guarded, meaning that the

forget any consequences that might occur or doctor did not know whether he would

the effect on other people.” Further, Dr. continue to function well or would again have

Sparks agreed with the prosecutor’s an illness as severe as he had had.”

suggestion that it would “be fair to say then On redirect examination, the prosecutor

that this type of person could kill without abruptly abandoned the posture of asking

any problem whatsoever.” hypothetical questions and immediately asked

On recross examination, Dr. Sparks Dr. Sparks if he had examined Hernandez in

agreed with defense counsel that a person August 1985. When the doctor answered in

with paranoid schizophrenia can have the affirmative, the prosecutor asked: “Based

problems with love, marriage, legal on that examination what was your

violations, fear of other people, and bizarre impression?”

behavior. At defense counsel’s request, Dr. The court interrupted and asked counsel to

Sparks examined Hernandez’s TDC medical approach the bench. In the bench conference,

records and testified that Hernandez the defense counsel stated that he would

appeared to have been confined in the object to “all of this[.]” The prosecutor

prison’s psychiatric treatment unit between argued that the defense counsel had “opened

September 10 and November 11, 1975; that the door” by going “into his medical past

Hernandez was on medication during his which we didn’t touch.” The jury was sent

31
out. Hernandez read it through and he signed a

Out of the presence of the jury, defense form that I have provided for that purpose

counsel objected to the question on the indicating that he understood what was on the

grounds that Hernandez had made form.” During these proceedings, the State

statements prejudicial to his penalty phase did not offer any evidence to show that

defense during the examination without valid defense counsel had been notified or given an

waivers of Hernandez’s rights under the opportunity to confer with Hernandez prior to

Fifth and Sixth Amendments. The court Dr. Sparks’s psychiatric examination of him.

invited the prosecutor to examine the doctor The court ruled that the witness would be

concerning the advice of rights. Dr. Sparks allowed “to testify as to his medical findings,

testified that, prior to the examination, he all of which have been opened up by questions

reviewed with Hernandez an outline of the presented by” defense counsel. However, the

advice of rights, had him read it, and court also ruled that, because it had denied the

Hernandez signed it. The doctor further defense counsel’s request to be present during

testified that the rights as he had them listed the examination, “this witness will not be

were the right to remain silent, to have his allowed to testify about any probabilities that

attorney present during the examination, and Hernandez would be a continuing threat to

to terminate the examination, but that the society based upon the interview.” The court

rights did not include a warning that noted that defense counsel had re-urged his

anything Hernandez said during the objection and would have a continuing bill of

examination could be used against him at the exception.

penalty phase of the trial; and that “Mr. When the jury returned, Dr. Sparks, on

32
redirect examination, testified that he had medical records prior to his examination,

examined Hernandez in August 1985 and rather than for the first time during the penalty

diagnosed “the type of personality or type of hearing, he would have made two diagnoses

problem” he had as “301.70 antisocial instead of one: “The initial diagnosis would

personality disorder.” On recross, he have been paranoid schizophrenia in remission,

testified that he conducted a “mental status the second diagnosis would be antisocial

examination” of Hernandez for eighty personality disorder.” On recross, Dr. Sparks

minutes; that a mental status examination testified that Hernandez’s chronic paranoid

does not cover any family history; that he schizophrenia could have been in an acute

asked for but did not obtain or review stage, rather than in remission, at the time of

Hernandez’s TDC medical records for the crime on March 7, 1985. On redirect, the

purposes of his examination, report, and court overruled defense counsel’s objection to

competency hearing testimony; that he lack of proper predicate and allowed the

would like to have had them during the prosecutor to elicit the following testimony

examination because they were important; from Dr. Sparks:

that he would like to have known if

Hernandez was taking a drug like Doxepin at People who have [chronic paranoid

that time because that was important; and schizophrenia] . . . are generally well

that he did not examine Hernandez organized, are generally reasonably

physically or perform any medical tests on intelligent, and although the plans may

him. On redirect, Dr. Sparks testified that, be part of the illness, they can make

if he had reviewed Hernandez’s prison and do make plans. When they’re free

33
 of the illness the plans other things that would seem to be

deal with a real situation, normal . . . and be suffering from the

during the illness they disease of paranoid schizophrenia.

frequently deal with

delusional ideas. In summary, Dr. Sparks testified that he

had previously examined Hernandez for mental

He also testified, “In the description given to competency and, based on that examination

me in the [prosecutor’s initial hypothetical and Hernandez’s TDC medical records

question,] there was no indication of any introduced at the penalty hearing, was of the

illness; there was indication of a particular opinion that (1) Hernandez had an antisocial

kind of behavior, and that is the type of personality; (2) Hernandez also had chronic

behavior found in antisocial person [sic] paranoid schizophrenia; (3) chronic paranoid

disorder.” On final recross, the doctor schizophrenia is a continuing, fluctuating,

agreed with defense counsel that incurable mental illness that can be controlled

by antipsychotic medication, therapy, and

it’s possible for someone [with environmental changes; (4) an antisocial

paranoid schizophrenia] to think or personality is a permanent mental condition

believe that they’re President that cannot be cured by any treatment or

Reagan’s right-hand man, a gun- medication; (5) at the time of Dr. Sparks’s

slinger, and they have heard voices mental competency examination, Hernandez’s

of President Reagan and carry out a chronic paranoid schizophrenia was in

plan for [him] and still be able to do remission and was not being suppressed by

34
medication; (6) at the time of the crime it is The cousin testified to two particular incidents

possible that Hernandez’s chronic paranoid she had witnessed. When Hernandez was still

schizophrenia was active, rather than in a small child, she said, his mother had beaten

remission, although Dr. Sparks could not him with a broom, breaking the broom handle

opine as to which; and (7) anyone having an over his head and leaving him lying on the

antisocial personality such as Hernandez’s, floor. In another incident, she testified, he had

as determined by Dr. Sparks from his been taken into a bedroom by his parents and

examination of Hernandez and the beaten severely with a large-buckled belt.

information supplied him about Hernandez’s Defense counsel also introduced drug records

criminal activity, probably would present a from the county jail, which showed that

continuing threat to society. Hernandez had regularly signed receipts for

In Hernandez’s defense at the penalty doses of Doxepin, a tranquilizer and

hearing, his attorney elicited the testimony of antidepressant, for five days prior to his mental

his cousin, who had lived with his family examination by Dr. Sparks.

while he was a child. She testified that In accord with the capital sentencing

Hernandez had been the victim of severe statute then in effect,17 Hernandez’s jury was

physical and mental abuse between the ages
17
TEX. CODE CRIM. PROC. ANN. art.
of three and thirteen years. The cousin 37.071(b)(1) & (2) (Vernon 1981). The third
special issue authorized by article
indicated that Hernandez, as the oldest child, 37.071(b)(3)–“if raised by the evidence,
whether the conduct of the defendant in killing
received the brunt of his mother’s physical the deceased was unreasonable in response to
the provocation, if any, by the
abuse, which in turn stemmed from her own deceased[]”–was not presented to Hernandez’s
jury. Neither the State nor Hernandez
continual physical abuse by her husband. objected to its omission. In 1991, the Texas
Legislature substantially amended the statute

35
instructed that it was to answer two “special HERNANDEZ, would com mit

issues”: criminal acts of violence that would

constitute a continuing threat to

[1] Was the conduct of the society?

Defendant, RODOLFO BAIZA

HERNANDEZ, that caused the The jury was also instructed that

death of the deceased, VICTOR

MANUEL SERRANO CERVAN, in determining each of these Special

committed deliberately and with the Issues you may take into consideration

reasonable expectation that the death all of the evidence submitted to you in

of the deceased or another would the full trial of the case, that is, all of

result? the evidence submitted to you in the

* * * first part of this case wherein you were

[2] Is there a probability that the called upon to determine the guilt or

Defendant, RODOLFO BAIZA innocence of the Defendant, and all of

the evidence, if any, admitted before
by, inter alia, adding a requirement that the
jury, after returning an affirmative finding on you in the second part of the trial
each special issue, answer: “Whether, taking
into consideration all of the evidence, wherein you are called upon to
including the circumstances of the offense,
the defendant’s character and background, determine the answers to Special
and the personal moral culpability of the
defendant, there is a sufficient mitigating Issues hereby submitted to you.
circumstance or circumstances to warrant
that sentence of life imprisonment rather
than a death sentence be imposed.” TEX.
CODE CRIM. PROC. ANN. art. 37.071(e)(1) The jury was not specifically instructed that it
(Vernon 2000).

36
could consider or give effect to “mitigating III.

evidence.”

The jury unanimously answered “yes” to A.

the two requisite questions, and, as required

by Texas law, the trial court sentenced After unsuccessfully seeking a writ of

Hernandez to death. The Texas Court of habeas corpus in the Texas state courts,

Criminal Appeals affirmed Hernandez’s Hernandez filed the instant petition for federal

conviction and death sentence. Hernandez habeas relief in the United States District for

v. State, 805 S.W.2d 409 (Tex. Crim. App. the Western District of Texas. Because

1990) (en banc). On motion for rehearing, Hernandez filed his petition on April 16, 1997,

Hernandez objected to the court’s failure to his case is governed by the habeas statute as

address the issue of whether he had been amended by the Antiterrorism and Effective

deprived of his Sixth Amendment right to Death Penalty Act of 1996 (“AEDPA”).

counsel, although it arose from the same Lindh v. Murphy, 521 U.S. 320, 326-27

conduct complained of in his Fifth (1997). Section 2254 of the habeas statute, in

Amendment claim based on Estelle v. Smith. pertinent part, now provides:

The court of criminal appeals denied

rehearing without comment. The United (d) An application for a writ of habeas

States Supreme Court denied Hernandez’s corpus on behalf of a person in

petition for a writ of certiorari on June 3, custody pursuant to the judgment of a

1991. Hernandez v. Texas, 500 U.S. 960 State court shall not be granted with

(1991). respect to any claim that was

37
 adjudicated on the merits involved an unreasonable application of . . .

in State court clearly established Federal law, as determined

proceedings unless the by the Supreme Court of the United States.”

adjudication of the Williams v. Taylor, 529 U.S. 362, 404-05

claim– (2000) (O’Connor, J., delivering the opinion of

(1) resulted in a decision that was the Court with respect to Part II (except as to

contrary to, or involved an the footnote)).

unreasonable application of, clearly A state-court decision will be contrary to

established Federal law, as the Supreme Court’s clearly established

determined by the Supreme Court of precedent if the state court applies a rule that

the United States. contradicts the governing law set forth in the

Supreme Court’s cases. Id. at 405. Also, a

28 U.S.C. § 2254(d)(1) (1994 & Supp. state-court decision will be contrary to the

2000). Court’s clearly established precedent if the

A state prisoner may obtain federal state court “confronts a set of facts that are

habeas relief with respect to a claim materially indistinguishable from a decision of

adjudicated on the merits in two categories th[e] Court and nevertheless arrives at a result

of cases defined by subsection (d)(1): cases different from [the Court’s] precedent.” Id.

in which “the relevant state-court decision “Accordingly, in either of these two scenarios,

was either (1) contrary to . . . clearly a federal court will be unconstrained by §

established Federal law, as determined by the 2254(d)(1) because the state-court decision

Supreme Court of the United States, or (2) falls within that provision’s ‘contrary to’

38
clause.” Id. at 406. federal law was objecti vely

In general, a state-court decision unreasonable. The federal habeas

involves an unreasonable application of the court should not transform the inquiry

Court’s precedent if the state court into a subjective one by resting its

“identifies the correct governing legal rule determination instead on the simple

from the [Supreme Court’s] cases but fact that at least one of the Nation’s

unreasonably applies it to the facts of the jurists has applied the relevant federal

particular state prisoner’s case.” Id. at 407. law in the same manner the state court

The majority correctly identifies this did in the habeas petitioner’s case.

standard, but neglected to note that a state-

court decision also involves an unreasonable Id. at 409-10. The Court disapproved the “all

application of Supreme Court precedent if reasonable jurists” standard as misleading

the state court either unreasonably extends a federal habeas courts into a subjective inquiry.

legal principle from that precedent to a Id. at 410. “Under § 2254(d)(1)’s

context where it should not apply or ‘unreasonable application’ clause . . . a federal

unreasonably refuses to extend that principle habeas court may not issue the writ simply

to a context where it should apply. Id. because that court concludes in its independent

judgment that the relevant state-court decision

[A] federal habeas court making the applied clearly established federal law

“unreasonable application” inquiry erroneously or incorrectly. Rather, that

should ask whether the state court’s application must also be unreasonable.” Id. at

application of clearly established 411.

39
 “[C]learly established Federal law, as of review and examine its interplay with the

determined by the Supreme Court of the particular facts and proceedings here.

United St ates [] refers to the holdings, as

opposed to the dicta, of [the] Court’s B.

decisions as of the time of the relevant state-

court decision.” Id. at 412. Thus, the 1.

source of clearly established law is restricted

by section 2254(d)(1) to the Supreme In his first claim, Hernandez contends that

Court’s jurisprudence. Id. he was denied his constitutionally guaranteed

The majority’s recitation of the Williams Sixth Amendment right to counsel because (1)

standard of review is incomplete, in that it the state court subjected him to a custodial

does not fully examine the meaning of the examination by a state psychiatrist, without

“unreasonable application” prong of section advance notice to his defense counsel of the

2254(d)(1), nor does it emphasize the time, place, scope, or nature of the

statute’s explicit instruction that the law to examination; (2) the state psychiatrist

be applied to habeas petitioners’ claims be concluded from the examination that

limited to clearly established Supreme Court Hernandez had an antisocial personality

precedent. Moreover, after reciting the disorder and probably would commit crimes of

incomplete passages from Williams prior to violence and be a continuing threat to society;

analyzing Hernandez’s claims, the majority and (3) the prosecution elicited testimony from

fails in the body of its analysis of those the psychiatrist at the capital penalty hearing

claims to incorporate the Williams standard that he (a) had examined Hernandez prior to

40
trial, (b) had diagnosed Hernandez as having Supreme Court precedents.18

an untreatable antisocial personality The Court held in Estelle v. Smith that a

disorder, and (c) was of the opinion that formally charged capital defendant’s Sixth

Hernandez, or a sociopath who had Amendment right to counsel precludes the

committed the crimes ascribable to
18
Hernandez, probably would commit crimes In limiting its legal focus regarding
Hernandez’s Sixth Amendment claim to White
of violence and be a continuing threat to v. Estelle, 720 F.2d 415 (5th Cir. 1983), the
majority’s analysis of that claim is flawed on
society. several levels. First, we are mandated by the
AEDPA and by the Supreme Court in Williams
The threshold question under the to restrict our analysis of habeas petitioners’
legal claims to the application of clearly
AEDPA is whether Hernandez seeks to established federal law as established in
Supreme Court precedent, not circuit court
apply a rule of law that was clearly precedent. Second, Estelle v. Smith has been
extended and clarified by the intervening
established at the time his state-court precedent of Satterwhite and Powell in 1988
and 1989, respectively, as I discuss infra, such
conviction became final on June 3, 1991. that the majority’s analysis of the 1983
decision of White v. Estelle is largely
That question is easily answered because the irrelevant. The majority, indeed, does not
even mention Powell or Satterwhite in its
merits of his claim are squarely governed by analysis. Third, Hernandez does not rely
exclusively on White for the main thrust of his
the Supreme Court’s holdings in Estelle v. argument, citing it only twice for the
proposition that a thinly veiled hypothetical
Smith, 451 U.S. 454 (1981); Satterwhite, presentation of the future dangerousness issue
will not suffice to remove the State from the
supra; and Powell v. Texas, 492 U.S. 680 strictures of Estelle v. Smith. Hernandez,
indeed, argues much more extensively that
(1989). The majority completely and Powell and Satterwhite control the issue of
whether his Sixth Amendment rights were
erroneously ignores these control ling violated. Accordingly, the majority’s methods
in bringing up White are at best questionable.
It only sets up White as a strawman to tear
down in an effort to further confuse and avoid
the legal issues presented by Estelle v. Smith,
Satterwhite, and Powell.

41
State from subjecting him to a psychiatric because the psychiatric examination on which

examination yielding evidence of his future [the psychiatrist] testified at the penalty phase

dangerousness without first notifying proceeded in violation of the [defendant’s]

defense counsel that the psychiatric Sixth Amendment right to the assistance of

examination will encompass the issue of their counsel.” 451 U.S. at 471; see also Powell,

client’s future dangerousness. See Powell, 492 U.S. at 686; Satterwhite, 486 U.S. at 255-

492 U.S. at 681 (citing Estelle v. Smith, 451 56.

U.S. at 461-69). The Court has consistently The rule set forth in the Estelle v. Smith

recognized that, for a capital defendant, line of Supreme Court cases is “clearly

whether to submit to a psychiatric established Federal law, as determined by the

examination encompassing the issue of his Supreme Court of the United States.” 28

future dangerousness “is ‘literally a life or U.S.C. § 2254(d)(1). Because that clear

death matter’ which the defendant should establishment occurred before Hernandez’s

not be required to face without the ‘guiding state-court conviction became final, the

hand of counsel.’” Id. (quoting Smith v. Court’s precedent “dictated” that the Texas

Estelle, 602 F.2d 694, 708 (5th Cir. 1979); Court of Criminal Appeals apply those

Powell v. Alabama, 287 U.S. 45, 69 (1932)) holdings at the time that court entertained

(citing Satterwhite, 486 U.S. at 254). Hernandez’s Sixth Amendment right to

Consequently, when the Sixth Amendment counsel habeas claim. Williams, 529 U.S. at

notice requirement set out in Estelle v. 391 (citing Teague v. Lane, 489 U.S. 288, 301

Smith was not met, the Court held that “the (1989)). Hernandez is therefore entitled to

death penalty was improperly imposed relief if the decision of the Texas Court of

42
Criminal Appeals rejecting his Sixth . must defer any ruling with regard to [the

Amendment habeas claim was either Sixth Amendment right to counsel] issue to the

“contrary to, or involved an unreasonable Texas Court of Criminal Appeals, since the

application of,” that established law. It was related issues with regard to Dr. Sparks’[s]

both. evaluation of Petitioner were raised and

rejected on direct appeal”; (3) “the question is

2. presented as to whether or not the decisions of

Estelle v. Smith . . . and Powell v. Texas . . .

In the state habeas proceedings, the trial require the presence of counsel where the

court in effect suggested, without definitely state’s mental health expert’s testimony is ‘not

recommending, that the court of criminal a direct assertion of an expert’s opinion

appeals could, if it had not already implicitly concerning future dangerousness,’ but rather,

done so, reject Hernandez’s Sixth some other form of mental health diagnosis

Amendment right to counsel claim for the harmful to the defendant’s case”; and (4) it

same reasons that it had rejected his Fifth could “find no case law authority indicating

Amendment claim on direct appeal. that there are Fifth or Sixth Amendment rights

Essentially, the state habeas trial court attaching to psychiatric opinions not directly

found and concluded that (1) “[p]etitioner’s going to the Texas ‘special issues,’ but, the

claim of error under Estelle v. Smith, 451 trial court believes that the Texas Court of

U.S. 454, was raised and rejected on direct Criminal Appeals should review this issue

appeal” (citing Hernandez v. State, 805 closely to determine if there is such a

S.W.2d at 411-12); (2) “[t]he Trial Court . . requirement.”

43
 On appeal from the state habeas trial we must refer to the court of criminal

court’s findings and conclusions, including appeals’s decision of Hernandez’s direct

those concerning Hernandez’s Sixth appeal to identify the rule of law that the court

Amendment claim, the Texas Court of of criminal appeals, by adopting the state

Criminal Appeals issued a per curiam order habeas trial court’s findings and conclusions,

stating that the findings and conclusions of applied or extended to reject Hernandez’s

the trial court “are supported by the record Sixth Amendment right to counsel habeas

and upon such basis the relief sought is claim.

denied.” Consequently, the Texas Court of

Criminal Appeals’s decision rejecting 3.

Hernandez’s Sixth Amendment right to

counsel habeas claim on appeal adopted the On direct appeal, the Texas Court of

findings and conclusions of the Texas habeas Criminal Appeals had rejected Hernandez’s

trial court, viz., that the court of criminal Fifth Amendment right against self-

appeals’s rejection of Hernandez’s Sixth incrimination claim in a full opinion that was

Amendment right to counsel claim could be silent with respect to his Sixth Amendment

justified as an application or extension of its right to counsel claim. Hernandez v. State,

holding in rejecting Hernandez’s Fifth 805 S.W.2d 409 (Tex. Crim. App. 1990) (en

Amendment right against self-incrimination banc) (direct appeal). The court of criminal

claim on direct appeal. See Hernandez v. appeals formulated the rule of law it applied in

State, 805 S.W.2d 409 (Tex. Crim. App. reaching the conclusion that Hernandez’s Fifth

1990) (en banc) (direct appeal). Therefore, Amendment right had not been violated as

44
follows. introducing excerpts of a psychiatric

First, the Texas Court of Criminal evaluation of the defendant to rebut the

Appeals observed that the Supreme Court in defendant ’s affirmative “mental status”

Estelle v. Smith noted that some courts had defense, because defense counsel had joined in

held that the Fifth Amendment does not the State’s motion to obtain the evaluation and

prevent a defendant who offers psychiatric had introduced evidence from it in support of

testimony in an insanity defense from being the affirmative defense. Id. (citing Buchanan,

required to submit to a sanity examination by 483 U.S. at 423). Third, the Texas Court of

the prosecution’s psychiatrist, 805 S.W.2d at Criminal Appeals inferred from the language in

412 (citing Estelle v. Smith, 451 U.S. at Buchanan and Smith that, “[b]y introducing

465); and further noted that the court of [Hernandez]’s TDC psychiatric records and

appeals in Estelle v. Smith had left open the soliciting Dr. Sparks’[s] opinion concerning

possibility of a similar requirement for a those records, appellant ‘opened the door’ to

defendant who wishes to use psychiatric the State’s use of the results of his competency

evidence defensively on the issue of future exam for rebuttal purposes.” Id. Fourth, the

dangerousness, id. (citing Estelle v. Smith, Texas Court of Criminal Appeals concluded

451 U.S. at 466 n.10, in turn citing Smith v. that Dr. Sparks’s testimony based on his

Estelle, 602 F.2d at 705). Second, the Texas psychiatric examination was relevant to, i.e.

Court of Criminal Appeals noted that the tended to prove, Hernandez’s future

Supreme Court in Buchanan v. Kentucky, dangerousness, but that the trial court had

483 U.S. 402 (1987), had held that the State prevented Dr. Sparks from expressing an

did not violate the Fifth Amendment by expert opinion directly or specifically upon

45
Hernandez’s future dangerousness. Fifth, future acts of violence that would constitute a

based on all of these circumstances, the continuing threat to society. Id. In affirming

Texas Court of Criminal Appeals concluded his death sentence, the Texas Court of

that Hernandez’s Fifth Amendment right Criminal Appeals held that Powell’s Fifth and

against self-incrimination had not been Sixth Amendment rights were not violated

violated. because he waived those rights by introducing

psychiatric testimony in support of his insanity

4. defense. Id. at 682-83 (citing Powell v. State,

767 S.W.2d 759, 762 (Tex. Crim. App. 1989)

The facts and legal issues of Powell and (en banc)). The Texas Court of Criminal

the present case are very similar. Powell, a Appeals held that Powell not only waived the

capital defendant, was subjected to court- right to object to the State’s use of the

ordered examinations by a court-designated testimony of the state psychiatrist and

psychiatrist and a psychologist chosen by psychologist to rebut his insanity defense, but

that doctor, to determine competency to that he also waived the right to object to the

stand trial and sanity at the time of the State’s use of this testimony to satisfy its

offense. Powell, 492 U.S. at 681. Powell burden at sentencing of proving the separate

and his counsel were not notified that he issue of future dangerousness. Id. (citing

would be examined on the issue of future Powell v. State, 742 S.W.2d 353, 357-58

dangerousness. Id. at 682. The State’s (Tex. Crim. App. 1987) (en banc)). The

psychiatrist and psychologist testified at the Supreme Court reversed the judgment of the

penalty phase that Powell would commit Texas Court of Criminal Appeals because the

46
state court had “conflated the Fifth and Sixth raise a Fifth Amendment challenge to the

Amendment analyses, and provided no prosecution’s use of other evidence from the

support for its conclusion that petitioner same evaluation to rebut the defense. 483

waived his Sixth Amendment right[.]” Id. at U.S. at 422-23.

683. But, as the Powell Court explained, the

The Supreme Court in Powell Sixth Amendment right to counsel, once it has

emphasized the important distinction attached, unlike the Fifth Amendment Miranda

between the appropriate Fifth and Sixth right, cannot be waived by a capital defendant

Amendment analyses. The Court noted its acting on his own without the guidance of

dictum in Estelle v. Smith that a defendant counsel:

could waive his Fifth Amendment right by

asserting the insanity defense “and [T]he waiver discussions contained in

introduc[ing] supporting psychiatric Smith and Buchanan deal solely with

testimony, [because] his silence may deprive the Fifth Amendment right against

the State of the only effective means it has of self-incrimination. Indeed, both

controverting his proof on an issue that he decisions separately discuss the Fifth

has injected into the case,” 451 U.S. at 465, and Sixth Amendment issues so as not

and its holding in Buchanan that a defendant to confuse the distinct analyses that

whose defense counsel joined in a request apply. No mention of waiver is

for a psychiatric evaluation and then contained in the portion of either

introduced evidence from it to prove a opinion discussing the Sixth

mental-status defense waived the right to Amendment right. This is for good

47
reason. While it may be directing that the defendant

unfair to the state to submit to examination by a

permit a defendant to use state-appointed

psychiatric testimony psychiatrist. There would

without allowing the be no justification,

state a means to rebut however, for also directing

t hat testimony, it that defense counsel

certainly is not unfair to receive no notice of this

require the state to examination.

provide counsel with The distinction between the

notice before examining appropriate Fi fth and Sixth

the defendant concerning Amendment analyses was recognized

future dangerousness. in the Buchanan decision. In that case,

Thus, if a defendant were the Court held that the defendant

to surprise the waived his Fifth Amendment privilege

prosecution on the eve of by raising a mental-status defense.

trial by raising an insanity This conclusion, however, did not

defense to be supported suffice to resolve the defendant’s

by psychiatric testimony, separate Sixth Amendment claim.

the court might be Thus, in a separate section of the

justified in ordering a opinion the Court went on to address

continuance and the Sixth Amendment issue,

48
 concluding that on the upon the Supreme Court’s Sixth Amendment

facts of that case counsel holdings in Powell, Estelle v. Smith, and

knew what the scope of Satterwhite that govern Hernandez’s Sixth

the examination would Amendment right to counsel claim. Under

be before it took place. those cases, if the State, although exercising

Indeed, defense counsel due diligence, had been genuinely surprised by

himself requested the the introduction of Hernandez’s medical

psychiatric examination records as evidence of his chronic paranoid

at issue in Buchanan. In schizophrenia, the trial court might have been

contrast, in this case justified in ordering a continuance and

counsel did not know directing Hernandez to submit to examination

that the [] examinations by a state-appointed psychiatrist. Even in such

[by the state psychiatrist a case, however, the State would be required

and psychologist] would by the Sixth Amendment right to counsel to

involve the issue of give Hernandez’s counsel notice of the

future dangerousness. examination and its scope and an adequate

opportunity to confer with and advise

Powell, 492 U.S. at 684-85 (citations Hernandez prior to the examination. The

omitted). Supreme Court’s cases emphatically do not

Consequently, contrary to the majority’s permit the State to introduce evidence of

erroneous reading and misplaced reliance, future dangerousness derived from an

Buchanan is distinguishable and has no effect unconstitutional examination of a capital

49
defendant through a violation of his Sixth motion for funds to employ a defense

Amendment right to counsel, even when the psychiatric expert, defense counsel notified the

State has been diligent and can genuinely court and the State of Hernandez’s mental

claim surprise. illness and prior psychiatric treatment in the

Consequently, under t he actual TDC and the military. Dr. Sparks admitted in

circumstances of Hernandez’s case, the his penalty phase testimony that he was aware

denial by the Texas Court of Criminal of the TDC psychiatric medical records prior

Appeals of Hernandez’s Sixth Amendment to his pretrial examination of Hernandez. Dr.

claim was markedly contrary to and in Sparks revealed his knowledge of Dr.

conflict with the Supreme Court’s decisions Cameron’s prior diagnosis of Hernandez’s

in Powell, Estelle v. Smith, and Satterwhite. paranoid schizophrenia in his pretrial report

The majority, in its exclusive reliance upon and competency hearing testi mony.

Buchanan, repeats this error. The State in Furthermore, Dr. Sparks was aware of the

Hernandez’s case did not and could not facts of the case involving Hernandez’s

claim surprise or justifiably ask for a penalty auditory hallucinations and bizarre conduct

phase examination of the defendant. Both indicating active paranoid schizophrenia before

the State and Dr. Sparks were placed on he began his testimony. And later in his

notice and had actual knowledge of testimony Dr. Sparks acknowledged that in his

Hernandez’s prior diagnoses of and field of expertise Hernandez’s behavior was

treatment for chronic paranoid schizophrenia consistent with a classic manifestation of

by state doctors at the TDC and the county paranoid schizophrenia.

psychiatrist, Dr. Cameron. In their pretrial

50
 5. defendant’s future dangerousness at the

penalty phase based on the examination, the

The adjudication by the court of criminal resulting death penalty is improperly imposed

appeals in the present case repeated the error and must be reversed.

it had made in Powell of conflating the Fifth The habeas decision by the Texas Court of

and Sixth Amendment analyses, resulting in Criminal Appeals was contrary to the Estelle v.

a decision that was contrary to, and involved Smith, Powell, and Satterwhite definition of

an unreasonable application of, the Supreme the Sixth Amendment right to counsel, to the

Court’s clearly established precedents. extent that it held that language in Buchanan

The Supreme Court in Estelle v. Smith, and Estelle v. Smith created an exception to

Powell, and Satterwhite clearly established the rule of the Supreme Court cases, viz., that

federal law that (1) once a capital defendant when the defendant introduces psychiatric

is formally charged, the Sixth Amendment evidence at the penalty phase and uses it to

right to counsel precludes the State from cross-examine the State’s expert, he “opens

subjecting him to a psychiatric examination the door” to the State’s use of evidence of

yielding evidence of his future future dangerousness of the defendant that had

dangero usness without first notifying been obtained in violation of his Sixth

defense counsel that the psychiatric Amendment right to counsel, so long as the

examination will encompass that issue; and state expert does not express any opinion

(2) when the psychiatric examination directly upon the defendant’s future

proceeds in violation of that right and the dangerousness based on the examination of the

State’s expert presents evidence of the defendant.

51
 The Sixth Amendment exception or presumably consulted with the defendant about

waiver rule applied by the Texas Court of the nature and scope of the proceeding

Criminal Appeals in deciding Hernandez’s beforehand. Third, the scope of the pretrial

habeas appeal conflicts with the Supreme examination in the non-capital Buchanan case

Court’s decision in Buchanan and dictum in could not have encompassed the issue of

Estelle v. Smith, as well as the Sixth future dangerousness, which the Court had

Amendment right to counsel as defined by been concerned with in the Estelle v. Smith

the Court’s holdings in Estelle v. Smith, line of cases as a literal life-or-death issue, and

Powell, and Satterwhite. the Buchanan decision therefore cannot be

First, as the Court made clear in Powell, read reasonably as modifying the right to be

those “waiver discussions contained in Smith informed of the scope of a pretrial examination

and Buchanan deal solely with the Fifth that would encompass the death penalty future

Amendment right against self-incrimination. dangerousness issue. Fourth, the Supreme

. . . No mention of waiver is contained in the Court has never held or suggested that a

portion of either opinion discussing the Sixth capital defendant who introduces mitigating

Amendment right.” 492 U.S. at 684-85. psychiatric evidence at the penalty phase

Second, unlike the defendants in Estelle v. waives his right to counsel at any critical stage

Smith, Powell, Satterwhite, and this case, of the prosecution or “opens the door” to the

the defendant in Buchanan was not deprived State’s introduction of the fruits of a violation

of his Sixth Amendment right to counsel of his Sixth Amendment right to counsel.

because his defense counsel joined in Fifth, the Supreme Court has never held or

requesting the psychiatric evaluation and suggested that a state can circumvent the Sixth

52
Amendment holdings in Estelle v. Smith, Amendment right to counsel that requires the

Powell, and Satterwhite by simply having its State to afford advance notice to defense

expert avoid expressing a direct opinion counsel of the examination and its scope and

upon the defendant’s future dangerousness an opportunity for a pre-exam ination

while giving testimony that is indirectly, but consultation between the defendant and his

highly, probative of the defendant’s future counsel. Consequently, the Court’s opinions

dangerousness. clearly indicate that a capital defendant who

Moreover, the Court in Powell introduces such evidence at the penalty phase

concluded that “[n]ot hing in Smith, or any does not waive rights and remedies with

other decision of this Court, suggests that a respect to the State’s introduction of evidence

defendant opens the door to the admission of obtained by a prior breach of his Sixth

psychiatric evidence on future dangerousness Amendment right to counsel. See Powell, 492

by raising an insanity defense at the guilt U.S. at 685 & n.3, 686; Satterwhite, 486 U.S.

stage of trial.” 492 U.S. at 685 n.3. The at 255; Estelle v. Smith, 451 U.S. at 465, 466

Court suggested, without holding, that a n.10.

capital defendant who introduces future The Texas Court of Criminal Appeals’s

dangerousness evidence defensively in the decision in Hernandez’s state habeas appeal

penalty phase may be required to submit to also involved an unreasonable application of

examination by a state-appointed the United States Supreme Court cases of

psychiatrist. Even in such a case, however, Buchanan and Estelle v. Smith, by

the Court’s opinions indicate that the unreasonably formulating and extending legal

defendant does not waive his Sixth principles from those precedents to a new

53
context where they should not apply. The was not aware that the examination

Court in Buchanan held that, when defense would include an inquiry into Smith’s

counsel joins the State in submitting the future dangerousness. Thus, in our

defendant to a psychiatric evaluation, after view, Smith had not received the

consulting with the defendant about its opportunity to discuss with his counsel

nature and scope, and then introduces the examination or its scope. Here, in

psychiatric evidence in a non-capital guilt contrast, petitioner’s counsel himself

trial in support of an affirmative mental requested the psychiatric evaluation . .

status defense, the prosecution’s . . It can be assumed . . . that defense

introduction of excerpts from the report of counsel consulted with petitioner

the pretrial psychiatric evaluator in rebuttal about the nature of this examination.

does not constitute a violation of the Fifth or

Sixth Amendments. The Buchanan Buchanan, 483 U.S. at 424. Only by

precedent cannot be reasonably extended to unreasonably ignoring the same crucial

Hernandez’s capital case, as the Buchanan dissonance between the Fifth Amendment

Court itself made clear by contrasting it with decision in Buchanan and Hernandez’s Sixth

Estelle v. Smith: Amendment claim could the Texas Court of

Criminal Appeals purport to shoehorn

[I]t was unclear whether Smith’s Hernandez’s case into the narrow Buchanan

counsel had even been informed holding. For the same reason, and another,

about the psychiatric examination. . Estelle v. Smith does not reasonably support

. . [I]n any event, defense counsel the application by the Texas Court of Criminal

54
Appeals of a “door opening” exception or effect to the mitigating evidence of his abused

waiver rule to reject Hernandez’s Sixth childhood. The threshold question under the

Amendment claim. Not only was the Smith AEDPA again is whether Hernandez seeks to

language relied on by the Texas habeas trial apply a rule of law that was clearly established

and appellate courts addressed to the waiver at the time his conviction became final on June

of the Fifth Amendment right against self- 3, 1991. Because the merits of Hernandez’s

incrimination, rather than the more Eighth Amendment claim are directly

indispensable Sixth Amendment right to governed by the Supreme Court’s decision in

counsel, but it was also dicta, as opposed to Penry v. Lynaugh, 492 U.S. 302 (1989) the

the holding, of the Supreme Court’s answer to that question is yes. Therefore, the

decision, and therefore not part of the majority opinion defaults upon its duty to

“clearly established law” under section apply the clearly established Federal law, as

2254(d)(1). Williams, 529 U.S. at 412. determined by the Supreme Court’s decision in

Penry, by applying its own interpretation of

C. federal law and by resolving Hernandez’s

Eighth Amendment claim in a manner opposite

1. to the resolution of Penry’s Eighth

Amendment claim by the Supreme Court.

Hernandez also claims that he was

sentenced to death in violation of the Eighth 2.

Amendment because the jury’s instructions

did not allow it to give full consideration and In Penry v. Lynaugh, the Supreme Court

55
held that (1) “at the time Penry’s conviction Eddings is the principle that punishment

became final, it was clear from [Lockett should be directly related to the personal

v.Ohio, 438 U.S. 586 (1978)] and [Eddings culpability of the criminal defendant[,]” id. at

v. Oklahoma, 455 U.S. 104 (1982)] that a 319; (4) “it is not enough simply to allow the

State could not, consistent with the Eighth defendant to present mitigating evidence to the

and Fourteenth Amendments, prevent the sentencer[–][t]he sentencer must also be able

sentencer from considering and giving effect to consider and give effect to that evidence in

to evidence relevant to the defendant’s imposing sentence[,]” id.; (5) “[i]n order to

background or character or to the ensure reliability in the determination that

circumstances of the offense that mitigate death is the appropriate punishment in a

against imposing the death penalty[,]” 492 specific case, the jury must be able to consider

U.S. at 318; (2) “[t]he rule Penry and give effect to any mitigating evidence

[sought]—that when such m itigating relevant to a defendant’s background and

evidence [of his mental retardation and character or the circumstances of the crime[,]”

abused childhood] is presented, Texas juries id. at 328; and (6) therefore, “in the absence of

must . . . be given jury instructions that make instructions informing the jury that it could

it possible for them to give effect to that consider and give effect to the mitigating

mitigating evidence in determining whether evidence of Penry’s mental retardation and

the death penalty should be imposed—is not abused [childhood] background by declining to

a ‘new rule’ under Teague because it is impose the death penalty, . . . the jury was not

dictated by Eddings and Lockett[,]” id. at provided with a vehicle for expressing its

318-19; (3) “[u]nderlying Lockett and reasoned moral response to that evidence in

56
rendering its sentencing decision[,]” id. at because the term “deliberately” had not been

328. (Internal quotations and citations defined by the Texas Legislature, the Texas

omitted). Court of Criminal Appeals, or the trial court’s

Thus, the Supreme Court in Penry instructions. Id. at 322. Assuming that the

agreed with Penry’s argument “that his jurors “understood ‘deliberately’ to mean

mitigating evidence of mental retardation something more than . . . ‘intentionally’

and childhood abuse has relevance to his committing murder, those jurors may still have

moral culpability beyond the scope of the been unable to give effect to Penry’s

special issues, and that the jury was unable mitigating evidence in answering the first

to express its reasoned moral response to special issue.” Id. The Court concluded that

that evidence in determining whether death the jury could not give full effect to Penry’s

was the appropriate punishment.” Id. at evidence under the first special issue because

322. The Court explained in detail why it “deliberately” was not defined “in a way that

rejected the State’s contrary argument that would clearly direct the jury to consider fully

the jury was able to consider and give effect Penry’s mitigating evidence as it bears on his

to all of Penry’s mitigating evidence in personal culpability.” Id. at 323. Thus, the

answering the three special issues. Id. evidence had relevance beyond the scope of

The first special issue, which asked the first special issue. Id. at 322. The Court

whether the defendant acted “deliberately made it clear that both Penry’s mental

and with the reasonable expectation that the retardation and his history of abused childhood

death of the deceased . . . would result,” constituted relevant mitigating evidence:

impermissibly limited the jury’s function “Because Penry was mentally retarded . . . and

57
thus less able than a normal adult to control “whether there is a probability that the

his impulses or to evaluate the consequences defendant would commit criminal acts of

of his conduct, and because of his history of violence that would constitute a continuing

childhood abuse, that same juror [who threat to society,” permitted the jury to

concluded that Penry acted ‘deliberately,’] consider and give effect to Penry’s mental

could also conclude that Penry was less retardation and childhood abuse as “relevant

morally culpable than defendants who have only as an aggravating factor[.]” Id. But the

no such excuse[.]” Id. Consequently, the second special issue was not inadequate simply

Court concluded, unless there are “jury because it only gave effect to Penry’s evidence

instructions defining ‘deliberately’ in a way as an aggravating factor; it was dysfunctional

that would clearly direct the jury to consider because it did not allow the jury to give full

fully Penry’s mitigating evidence as it bears effect to Penry’s mitigating evidence. Id. at

on his personal culpability, we cannot be 323. “The second special issue, therefore, did

sure t hat the jury was able to give effect to not provide a vehicle for the jury to give

the mitigating evidence of Penry’s mental mitigative effect to Penry’s evidence of mental

retardation and history of abuse in answering retardation and childhood abuse.” Id. at 324.

the first special issue.” Id. at 323. “Thus, The third special issue, which asked

we cannot be sure that the jury’s answer to “whether the conduct of the defendant in

the first special issue reflected a reasoned killing the deceased was unreasonable in

moral response to Penry’s mitigating response to provocation, if any, by the

evidence.” Id. (internal quotation omitted). deceased,” likewise did not provide a vehicle

The second special issue, which asked for the jury to fully consider and give effect to

58
the mitigation evidence by sparing his life that it could consider and give effect to the

because of his diminished personal mitigating evidence of Penry’s mental

culpability. “Thus, a juror who believed retardation and abused background by

Penry lacked the moral culpability to be declining to impose the death penalty, . . . the

sentenced to death could not express that jury was not provided with a vehicle for

view in answering the third special issue if expressing its ‘reasoned moral response’ to

she also concluded that Penry’s action was that evidence in rendering its sentence.” Id. at

not a reasonable response to provocation.” 328.

Id. at 324-25. The Court in Penry expressly rejected the

As the justices who dissented in part in State’s argument that any defect in the jury

Penry acknowledged, the Penry majority instructions should be disregarded because

held “that the constitutionality [of a death Penry’s defense counsel was able to argue that

sentence under the Texas special issues] jurors who believed that Penry, because of his

turns on whether the questions allow mitigating evidence of mental retardation and

mitigating factors not only to be considered childhood abuse, did not deserve a death

(and, of course, given effect in answering the sentence should vote “no” on one of the

questions), but also to be given effect in all special issues regardless of the State’s proof

possible ways, including ways that the on that the answer. Id. at 325. The Court

questions do not permit.” Id. at 355 (Scalia, pointed out that “the prosecution countered by

J., dissenting in part and concurring in part). stressing that the jurors had taken an oath to

Or, as the majority concluded, “in the follow the law, and that they must follow the

absence of instructions informing the jury instruction they were given in answering the

59
special issues.” Id. “In light of the evidence introduced by a defendant.” Id. at

prosecutor’s argument, and in the absence of 327 (also quoting Justice White’s opinion

appropriate jury instructions,” the Court concurring in the judgment in Gregg, 428 U.S.

concluded, “a reasonable juror could well at 222 (“The Georgia legislature has plainly

have believed that there was no vehicle for made an effort to guide the jury in the exercise

expressing the view that Penry did not of its discretion, while at the same time

deserve to be sentenced to death based upon permitting the jury to dispense mercy on the

his mitigating evidence.” Id. at 326. basis of factors too intangible to write into a

Finally, the Court in Penry rejected the statute, and I cannot accept the naked

State’s argument that “to instruct the jury assertion that the effort is bound to fail.”)).

that it could render a discretionary grant of Further, the Court reaffirmed and quoted its

mercy, or say ‘no’ to the death penalty, opinion in McCleskey v. Kemp: “‘In contrast

based on Penry’s mitigating evidence, would to the carefully defined standards that must

be to return to the sort of unbridled narrow a sentencer’s discretion to impose the

discretion that led to Furman v. Georgia.” death sentence, the Constitution limits a

Id. (citing 408 U.S. 238 (1972)). “[A]s we State’s ability to narrow a sentencer’s

made clear in [Gregg v. Georgia, 428 U.S. discretion to consider relevant evidence that

153, 197-99 (1976)], so long as the class of might cause it to decline to impose the death

murders subject to capital punishment is sentence.’” Id. (quoting 481 U.S. 279, 304

narrowed, there is no constitutional infirmity (1987)). Consequently, the Court concluded:

in a procedure that allows a jury to

recommend mercy based on the mitigating Indeed, it is precisely because the

60
punishment should be crime.

directly related to the

personal culpability of Id. at 327-28 (internal citations and quotations

the defendant that the omitted).

jury must be allowed to

consider and give effect 3.

to mitigating evidence

relevant to a defendant’s Hernandez first raised his Penry claim in

character or record or his application for state post-conviction relief.

the circumstances of the As I observed, supra, the Texas Court of

offense. . . . In order to Criminal Appeals denied Hernandez’s

ensure reliability in the application for post-conviction relief in a brief

determination that death per curiam order stating, in pertinent part,

is the appropriate “The trial court has entered findings of fact

punishment in a specific and conclusions of law. We have examined

case, the jury must be the record. The findings and conclusions are

able to consider and give supported by the record and upon such basis

effect to any mitigating the relief sought is denied.” Therefore, we

evidence relevant to a should consider the findings and conclusions

defendant’s background of the state habeas trial court to determine

and character or the whether the denial of relief by the court of

circumstances of the criminal appeals was contrary to or an

61
unreasonable application of clearly she asked him to seek “psychiatric

established Supreme Court jurisprudence. help” and also indicated that Petitioner

In connection with Hernandez’s Eighth had only received a fifth or sixth grade

Amendment Penry claim, the state habeas educat ion (2518), which was

trial court, in the 207th District Court of corroborated by school records

Comal County, Texas, found the following indicating that Petitioner may have

facts: received education through the seventh

grade (2519 - 2522)[.]

Judy Mendiola, a San Antonio Park

Ranger, and cousin of Petitioner’s, (Internal enumeration omitted; record citations

testified that when she was a young included).

child, she and Petitioner had lived In regard to Hernandez’s Penry claim, the

together for a period of state habeas trial court adopted the following

approximately 10 years, and that pertinent conclusions of law:

during that time, Petitioner’s father

was an alcoholic, who beat This Court finds that there is some

Petitioner’s mother, which resulted evidence before the jury of child abuse

in Petitioner’s mother causing perpetrated against Petitioner over a

physical abuse to Petitioner, (2513 - 10 year period. See testimony of

2516); Defense witness Mendiola;

Witness Mendiola indicated that * * * With regard to the Court of

after Petitioner’s release from prison, Criminal Appeals’ interpretation of the

62
Penry decision, it childhood, abnormal

appears that, in the past, mental and emotional

the Court has generally condition, and sexual

required a showing of aberrations.” See Bribble

mental retardation before v. State, 808 S.W.2d 65;

holding that a defendant The Penry decision is still valid law.

is entitled to a Penry See Johnson v. Texas, [509 U.S. 350

instruction, see Ramirez (1993)];

v. State, 815 S.W.2d The United States Supreme Court

636; Ex Parte McGee, granted certiorari, vacated the Court

817 S.W.2d 77; Rios v. of Criminal Appeals judgments, and

State, 846 S.W.2d 310; remanded to the Texas Court of

McPherson v. State, 851 Criminal Appeals at least five cases for

S.W.2d 846; Ex Parte reconsideration in light of Johnson v.

Richard, 842 S.W.2d Texas, and those cases are,

279; Ex Parte Goodman, presumably, still pending before the

816 S .W.2d 383; Texas Court of Criminal Appeals;

however, the Court has Since the trial court has found “some

also granted relief under evidence” of child abuse, and “some

the Penry doctrine where evidence” that Petitioner was a long

there is cumulative time sufferer of “paranoid

evidence of “troubled schizophrenia,” to which he could have

63
 been suffering at the time that it “file and set” the case for submission on

of the commission of this briefs and arguments regarding Hernandez’s

crime, then the trial court Penry claim. Instead, as I have noted, the

must defer any further court of criminal appeals simply denied the

conclusions of law to the relief sought based on the findings and

ultimate judgment of the conclusions of the trial court, after determining

Texas Court of Criminal that they were supported by the record.

Appeals, and Therefore, we should review the habeas

However, the trial court does decision of the court of criminal appeals as

recommend that the Texas Court of adopting and incorporating the state habeas

Criminal Appeals “file and set” this trial court’s findings and conclusions.

case for submission before the Court

for further briefs and arguments with 4.

regard to the merits of Petitioner’s

Penry claim as raised herein under The state habeas trial court’s findings and

the evidence. conclusions, upon which the state criminal

court of appeals based its per curiam denial of

(Paragraph enumeration and emphases habeas relief to Hernandez, were ambivalent

omitted). and inconclusive. The state habeas trial court

On Hernandez’s habeas appeal, however, did not, as the majority mistakenly asserts,

the court of criminal appeals disregarded the recommend a denial of relief. The state habeas

state habeas trial court’s recommendations trial court (1) found that “there is some

64
evidence before the jury of child abuse criminal appeals’s denial of Hernandez’s Penry

perpetrated against Petitioner over a 10 year claim based on such ambivalent and

period[]”; (2) concluded that “the Penry indeterminate conclusions is both contrary to

decision is still valid law[]”; (3) concluded and an unreasonable application of Penry in

that the state court of criminal appeals had several respects. The state-court decision was

“generally required a showing of mental contrary to the Supreme Court’s clearly

retardation before . . . a defendant is entitled established precedent because it may be read

to a Penry instruction, . . . [but] has also either as reaching a different result from that

granted relief under the Penry doctrine precedent after confronting a set of facts

where there is cumulative evidence of materially indistinguishable from the

‘troubled childhood, abnormal mental and precedent’s facts or as applying a rule that

emotional condition, and sexual contradicts the governing law set forth in the

aberrations[]’” (emphasis in original); and Supreme Court’s cases. On the other hand,

(4) concluded that, because it had found the state-court decision may be interpreted as

some evidence that Hernandez suffered from involving an unreasonable application of the

both an abused childhood and paranoid Court’s precedent because it either identified

schizophrenia, “to which he could have been the correct governing legal rule from the

suffering at the time of the commission of Court’s cases but unreasonably applied it to

this crime,” it must defer any further the facts of Hernandez’s case or it

conclusions of law to the ultimate judgment unreasonably refused to extend the principle of

of the state court of criminal appeals. Penry to a context where it should apply.

As a consequence, the state court of

65
 a. Hernandez was beaten regularly between

the ages of three and thirteen. He received

Hernandez’s evidence of an abused most of his continual beatings from his mother

childhood was materially indistinguishable after she had been beaten by her alcoholic

from Penry’s history of maltreatment. The husband, Hernandez’s father. On at least one

Supreme Court concluded such a occasion his mother had beaten him with a

background of abused childhood was broom handle, breaking it over his head and

relevant mitigating evidence that the jury leaving him lying on the floor. On at least one

must be instructed it may fully consider and other occasion, Hernandez’s father had joined

give effect to in deciding whether to impose his mother in beating him viciously with a belt

a sentence less than death. Consequently, by and large belt buckle.

denying Hernandez’s claim, the decision by Penry’s mother had frequently beaten him

the Texas Court of Criminal Appeals was over the head with a belt when he was a child.

contrary to clearly established federal law as He was also regularly locked in a bedroom

determined by the Supreme Court. without access to a toilet for long periods. He

Williams, 529 U.S. at 405 (“A state-court was in and out of state schools and hospitals,

decision will also be contrary to this Court’s until his father removed him from state schools

clearly established precedent if the state when he was twelve. Penry, 492 U.S. at 309.

court confronts a set of facts that are Regarding the first special issue, in

materially indistinguishable from a decision Hernandez’s case, as in Penry, the jury was not

of this Court and nevertheless arrives at a provided with a definition of the term

result different from our precedent.”). “deliberately” or given any instruction that

66
would indicate that the jury could regard Hernandez’s abused childhood; even if the jury

Hernandez’s history of abused childhood as found that he did not deserve the death penalty

evidence that might cause it to decline to because the effects of his maltreatment in early

impose the death sentence. Therefore, Penry childhood reduced his personal culpability, the

dictates that, “[i]n the absence of jury jury would still be bound to answer “yes” to

instructions defining ‘deliberately’ in a way the second special issue if it also found he

that would clearly direct the jury to consider would probably be dangerous and a threat to

fully [Hernandez’s] mitigating evidence as it society.

bears on his personal culpability, we cannot Neither the first nor the second special

be sure that the jury was able to give effect issue, therefore, provided a vehicle for the jury

to the mitigating evidence of [Hernandez’s] to give mitigating effect to Hernandez’s

. . . history of abuse in answering the first relevant mitigating evidence of childhood

special issue.” Id. at 323. abuse. Because the third special issue,

Also, as in Penry, Hernandez’s whether the defendant acted unreasonably in

mitigating evidence of childhood abuse was response to provocation, was not presented to

relevant to the second special issue only as the jury, the State does not contend that it

an aggravating factor because it appears to provided a vehicle for the jury to give full

increase the possibility of future behavioral mitigative effect to the evidence of

problems and dangerousness. More Hernandez’s abused childhood. Thus, the

importantly, however, the second special state co urt of criminal appeals in Hernandez

issue prevented the jury from giving full was confronted by facts of abused childhood

mitigative effect to the evidence of that were materially indistinguishable from

67
those upon which the Supreme Court retardation and childhood abuse had relevance

reached a different result. Consequently, the to his moral culpability beyond the scope of

denial by the Texas Court of Criminal the special issues, and that the jury was unable

Appeals of state habeas relief was contrary to express its reasoned moral response to that

to clearly established Supreme Court evidence in determining whether death was the

precedent. appropriate punishment.” Id. at 322. The

Penry Court throughout its opinion indicated

b. that it considered Penry’s abused childhood, as

well as his mental retardation, to be

Because the state habeas trial court, in its independently relevant mitigating evidence that

conclusions, referred to some of the the jury should have been instructed that it

decisions by the state court of criminal could consider and give effect to in

appeals as holding that a showing of mental determining whether to impose the death

retardation is prerequisite to a Penry penalty. Id. at 312 (listing as separate

instruction, it is arguable that the court of evidence of Penry’s possible reduced personal

criminal appeals applied such a rule in culpability “his mental retardation, arrested

denying Hernandez relief. If so, its decision emotional development, and abused

was contrary to and an unreasonable background”); see also id. at 317 (approvingly

application of the Supreme Court’s clearly quoting Lockett for the premise that a

established precedent in Penry. The sentencer must “‘not be precluded from

Penry Court agreed with Penry’s argument considering, as a mitigating factor, any aspect

that “his mitigating evidence of mental of a defendant’s character or record’”)

68
(quoting 438 U.S. at 604) (emphasis added); id. at 318 (emphasis added); and that “the jury

id. at 318 (approvingly quoting Eddings that must be able to consider and give effect to any

“‘[j]ust as the State may not by statute mitigating evidence relevant to a defendant’s

preclude the sentencer from considering any background and character or the

mitigating factor, neither may the sentencer circumstances of the crime[,]” id. at 328

refuse to consider, as a matter of law, any (emphasis added).

relevant mitigating evidence.’”) (quoting 455 Penry constitutes “clearly established

U.S. at 113-14) (emphasis added); id. at 322 Federal law, as determined by the Supreme

(holding that the jury must be able to give Court of the United States” that in the capital

effect to “all” of the defendant’s mitigating penalty phase the sentencer may not be

evidence). The Court did not hold or precluded from considering, and may not

suggest that either the factor of mental refuse to consider, any constitutionally

retardation or childhood abuse by itself relevant mitigating evidence; that evidence of

would fail to constitute relevant mitigating mental retardation or an abused childhood,

evidence that the jury must be able to individually or in combination, qualifies as

consider and give effect to in deciding constitutionally relevant mitigating evidence;

Penry’s fate. Moreover, the Court and that when mitigating evidence of mental

repeatedly emphasized that “a sentencer may retardation or an abused childhood is

not be precluded from considering, and may presented, Texas juries must be given

not refuse to consider, any relevant instructions that allow them to give effect to

mitigating evidence offered by the defendant that mitigating evidence in determining

as the basis for a sentence less than death[,]” whether to impose the death penalty. A state-

69
court decision will be contrary to Penry if it evidence of mental retardation, it would

applies a rule that contradicts the Supreme constitute an unreasonable refusal to apply or

Court’s ho lding by requiring such extend that principle to a context where it

instructions only in cases involving evidence should apply. In either case, the state-court

of mental retardation. decision would involve an unreasonable

application of the clearly established law of

c. Penry.

Finally, for the foregoing reasons, if the d.

decision of the state court of criminal

appeals is read as identifying the correct The more recent Supreme Court cases, to

governing legal rule by adopting in isolation the extent they are relevant, are not to the

the state trial habeas court’s conclusion that contrary. See Graham v. Collins, 506 U.S.

“[t]he Penry decision is still valid law,” its 461 (1993), and Johnson v. Texas, 509 U.S.

decision amounts simply to an unreasonable 350 (1993). Under the AEDPA, we are

application of Penry to the facts of required to determine whether the decision of

Hernandez’s case. Alternatively, for the the Texas Court of Criminal Appeals is

same foregoing reasons, if the state-court contrary to or an unreasonable application of

decision is read as a refusal to extend the clearly established Supreme Court precedent at

principle of Penry to Hernandez’s case the time Hernandez’s conviction became final.

because it involves relevant mitigating Hernandez’s conviction became final with the

evidence of an abused childhood, and not denial of a writ of certiorari by the Supreme

70
Court on direct review on June 3, 1991. answering the special issues, the Court

Consequently, the 1993 cases of Graham and concluded that Penry was constitutionally

Johnson are not directly applicable to the entitled to further instructions informing the

present case. Moreover, the Court in jury that it could consider and give effect to

Graham and Johnson specifically Penry’s evidence . . . by declining to impose

distinguished the mitigating evidence of the the death penalty.) (internal quotations,

defendant’s youth at the time of the offense citations, and brackets omitted). But the

in those cases from the mitigating evidence Court in Graham distinguished the effect of the

of abused childhood and mental retardation Texas special issues upon the jury’s ability to

presented in Penry. consider and give effect to Graham’s

The Graham Court reaffirmed that mitigating evidence of youth. Id. at 475-76

Penry was still valid law requiring that, when (“Even if Graham’s evidence, like Penry’s, had

a capital defendant presents mitigating significance beyond the scope of the first

evidence of either mental retardation or an special issue, it is apparent that Graham’s

abused childhood in a penalty phase under evidence—unlike Penry’s—had mitigating

the Texas special issues, the jury must be relevance to the second special issue

given instructions that allow it to give effect concerning his likely future dangerousness.

to that mitigating evidence in determining Whereas Penry’s evidence compelled an

whether to impose the death penalty. affirmative answer to that inquiry, despite its

Graham, 506 U.S. at 473-75 (“Because it mitigating significance, Graham’s evidence

was impossible to give meaningful mitigating quite readily could have supported a negative

effect to Penry’s evidence by way of answer.”).

71
 Graham’s relevance, if any, has also A.

been attenuated by the AEDPA’s abrogation

of the “reasonable jurist” standard applied in The decisions of the Texas Court of

that case. See Williams, 529 U.S. at 410 Criminal Appeals regarding Hernandez’s Sixth

(interpreting the AEDPA as expressly and Eighth Amendment claims were “contrary

disapproving the “reasonable jurist” standard to, and involved an unreasonable application

used in Graham, Drinkard v. Johnson, 97 of, clearly established Federal law, as

F.3d 751, 769 (5th Cir. 1997), and other determined by the Supreme Court,” 28 U.S.C.

cases; holding instead that the AEDPA § 2254(d)(1). The next appropriate step in the

requires the application of an “objective required analysis is to determine whether and

unreasonable” standard). to what extent any harmless error rule is

The Johnson Court also reaffirmed applicable to the constitutional error

Penry, but distinguished the mitigating underlying each state-court decision.

evidence of capital defendant Johnson’s In Arizona v. Fulminante, 499 U.S. 279,

youth at the time of the offense from the 307-08 (1991), the Supreme Court recognized

abused childhood and the mental retardation two categories of constitutional violations,

of Penry as being a different type of evidence which it characterized as “trial error” and

to which a jury could give full mitigative “structural defects.” Trial error “occur[s]

effect under the Texas special issues. during the presentation of the case to the

Johnson, 509 U.S. at 369. jury,” and is amenable to harmless-error

analysis because it “may . . . be quantitatively

IV. assessed in the context of other evidence

72
presented in order to determine [the effect it would prevail. O’Neal v. McAninch, 513 U.S.

had on the trial].” Id. Structural defects “in 432, 436 (1995). “We recognize[d] . . . that if

the constitution of the trial mechanism, our minds are ‘in virtual equipoise as to the

which defy analysis by ‘harmless-error’ harmlessness,’ under the Brecht standard, of

standards[,]” id. at 309, “require[] the error, then we must conclude that it was

automatic reversal of the conviction because harmful.” Woods v. Johnson, 75 F.3d 1017,

they infect the entire trial process.” Brecht 1026-27 (5th Cir. 1996) (citing O’Neal, 513

v. Abrahamson, 507 U.S. 619, 629-30 U.S. 432 (1995)).

(1993) (citing Fulminante, 409 U.S. at 309). There is a division among circuits as to

Prior to the AEDPA, in reviewing whether the Brecht-O’Neal standard survived

petitions for habeas relief with respect to the AEDPA. The Sixth Circuit has held that

constitutional “trial” errors, we determined “the test set out by the Supreme Court in

whether a constitutional violation was Kotteakos and explicitly reiterated in Brecht

harmless error by asking whether the error quite precisely captures Congress’s intent as

“‘had substantial and injurious effect or expressed in the AEDPA and, therefore,

influence in determining the jury’s verdict.’” continues to be applicable.” Nevers v.

Brecht, 507 U.S. at 623 (quoting Kotteakos Killinger, 169 F.3d 352, 371 (6th Cir. 1999).

v. United States, 328 U.S. 750, 776 (1946)). The Eighth Circuit has noted, however, that,

Under this standard, however, “where the even in the wake of the Supreme Court’s

record [was] so evenly balanced that a decision in Williams, it is “not convinced that

conscientious judge is in grave doubt as to the AEDPA did not abrogate the requirement

the harmlessness of the error,” the petitioner that federal habeas courts conduct a harmless

73
error analysis under Brecht.” Whitmore v. for concluding that a prisoner is entitled to the

Kenna, 213 F.3d 431, 433 (8th Cir. 2000). remedy of habeas.” Williams, 529 U.S. 375

The Tenth Circuit has recognized the (citing Brecht, supra).

possible tension between the Brecht-O’Neal The issue of a possible Brecht-O’Neal-

standard and the AEDPA, but has expressly AEDPA tension or conflict is not present in

declined to determine whether application of this case, however, because the State’s

Brecht-O’Neal in an AEDPA case is violation of Hernandez’s Eighth Amendment

erroneous. See Anderson v. Cowan, 227 right is a structural defect that requires

F.3d 893, 898 n.3 (10th Cir. 2000); Thomas automatic reversal, and the State’s violation

v. Gibson, 218 F.3d 1213, 1226 n.12 (10th of his Sixth Amendment right to counsel

Cir. 2000); Bryson v. Ward, 187 F.3d 1193, cannot be regarded as harmless, even under

1206 n.10 (10th Cir. 1999). the most state-friendly Brecht standard.

Though the Supreme Court in Williams

does not expressly confront the tension B.

between Brecht-O’Neal and the AEDPA in

its analysis of the effects of the AEDPA on 1.

the federal habeas scheme, it does appear to

implicitly recognize Brecht’s vitality: “It is, A Penry violation is a structural defect

of course, well settled that the fact that defying analysis by harmless error standards

constitutional error occurred in the and requires automatic reversal of the death

proceedings that led to a state-court sentence because it infected the entire penalty

conviction may not alone be sufficient reason phase. The Supreme Court, upon finding that

74
a jury in a capital murder case was precluded sentencing trial mechanism itself creates the

by a Penry-type defect in the constitution of constitutional violation. Consequently, the

the penalty trial mechanism from being able defect is not amenable to harmless-error

to give effect to constitutionally relevant analysis because it cannot be quantitatively

mitigating evidence, in violation of the assessed in the context of other evidence

Eighth Amendment, has never subjected the presented in a constitutional system that

defect to a harmless error analysis. See, e.g., permits the jury to give full effect to relevant

Penry, 492 U.S. at 328; Skipper v. South mitigating evidence. Thus, a Penry violation is

Carolina, 476 U.S. 1, 8-9 (1986); Eddings v. a structural defect that defies harmless error

Oklahoma, 455 U.S. 104, 116-17 (1982); analysis and requires automatic reversal

Lockett v. Ohio, 438 U.S. 586, 608-09 because it infects the entire penalty trial

(1978); see generally 2 JAMES S. LIEBMAN & process.

RANDY HERTZ, FEDERAL HABEAS CORPUS

PRACTICE AND PROCEDURE § 32.3, at 1345 2.

& n. 43 (3d ed. 1998). This result inheres in

the nature of the Penry violation itself. Under the Supreme Court’s precedents,

When the Eighth Amendment’s proscription however, Hernandez’s Sixth Amendment

against cruel and unusual punishment is violation is subject to a harmless error analysis.

violated because a jury must determine The Supreme Court observed in Satterwhite

whether to impose a death sentence without that “[o]ur conclusion [that there is an Estelle

being able to fully give effect to relevant v. Smith error] does not end the inquiry

mitigating evidence, the structure of the because not all constitutional violations

75
amount to reversible error.” 486 U.S. at the closing argument; and the unequivocal

257-58 (holding that a harmless error nature of the improperly admitted psychiatric

analysis applies to Sixth Amendment testimony. Id. at 259-60.

violations when the “violation is limited to Although I have examined the Sixth

the admission of particular evidence at Amendment violation in Hernandez’s case

trial.”). In det ermining whether a similar under the Brecht-O’Neal standard, the same

violation was harmful under the Chapman factors that the Supreme Court examined in

standard for errors on direct review, the Satterwhite in its Chapman review appear to

Satterwhite Court employed several factors, be relevant here as well. First, the prosecution

rejecting the approach of the court of relied solely on Dr. Sparks’s testimony for

appeals, which had simply examined the expert evidence of Hernandez’s future

record to determine whether the properly dangerousness, eliciting no testimony from any

admitted evidence was sufficient to support other psychiatrist or psychologist.

the jury’s verdict. 486 U.S. at 258-59. The Second, in eliciting Dr. Sparks’s testimony

Court instead considered the properly and in its closing argument, the prosecution

admitted psychiatric evidence relevant to placed great emphasis on his expertise. For

future dangerousness; the amount of weight two-and-a-half pages of the trial record, Dr.

the prosecution placed on the expertise of Sparks elaborated on his background and

the psychiatrist who had impermissibly expertise, discussing his twenty-five years as a

testified at the punishment phase; the amount psychiatrist, his years o f work in the criminal

of weight the prosecution placed on the justice system, and his examination as a

improperly admitted psychiatric evidence in forensic psychiatrist of more than 1500 people

76
accused of crimes in the previous five years. stands out because of his qualifications as a

Cf. id. at 259 (finding significant Dr. medical doctor specializing in psychiatry . . .

Grigson’s testimony that he had taught .”).

psychiatry in a Dallas medical school and Further, the prosecution placed a great

had practiced psychiatry for twelve years). deal of weight on Dr. Sparks’s testimony in its

In its closing argument, the prosecution closing argument:

emphasized these expert credentials, stating,

“Here’s a man trained in forensic psychiatry, [Dr. Sparks] told you, yes, “Yes, he

here’s a man who has examined over 1500 does constitute a continuing threat to

people and testified in court over 400 times, society.” “What is your impression,

a man who’s not the average psychiatrist Doctor, relative to your diagnosis?”

who sits behind a desk and talks about our “He’s antisocial, he’s a sociopath, he’s

phobias and our problems, but a man who what we used to call psychopathic.”

has seen the inner mind of the primitive “What does that mean, Doctor?”

man.” Cf. id. at 260 (finding significant that “Well, that means he cannot love, he

“[t]he District Attorney highlighted Dr. has no compassion, he can kill

Grigson’s credentials . . . in his closing indiscriminately.”

argument.”). That Dr. Sparks’s expertise

was emphasized has direct bearing on the After detailing this section of Dr. Sparks’s

question of whether his testimony was a testimony, the prosecution elaborated on the

substantial influence on the jury’s verdict. implications of Dr. Sparks’s diagnosis of

Cf. id. at 259 (“[Dr. Grigson’s] testimony Hernandez as a sociopath. Cf. id. at 260

77
(quoting the District Attorney’s closing attributable to the antisocial personality

argument about Dr. Grigson’s testimony: disorder, conceding only that he would have

“‘[Satterwhite is a] [s]evere sociopath. altered his diagnosis to reflect paranoid

Extremely dangerous. A continuing threat schizophrenia in remission, in addition to the

to our society. Can it be cured? Well, it’s antisocial personality disorder.

not a disease. It’s not an illness. That’s his Taking all of the foregoing relevant factors

personality.”). into account, and viewing the Penry violation

Dr. Sparks was unequivocal in his within the context of the entire record, I

testimony regarding Hernandez’s future believe we should conclude that Dr. Sparks’s

dangerousness. He stated that an offender testimony in violation of Hernandez’s Sixth

who had committed a crime identical in Amendment right had a substantial and

every detail with Hernandez’s offense had an injurious influence on the jury’s determination

antisocial personality disorder and was of the issue of future dangerousness, and was

therefore a continuing threat to society. He therefore not a harmless error under Brecht.

revealed that, based on his examination of

Hernandez, Hernandez had an antisocial Conclusion

personality disorder. Even when confronted

with records that might have indicated that For the reasons assigned, the decision of

Hernandez’s behavior was attributable to the Texas Court of Criminal Appeals rejecting

paranoid schizophrenia, he adhered to his Hernandez’s Sixth and Eighth Amendment

original conclusion based on his examination claims was contrary to and an unreasonable

of Hernandez that Hernandez’s behavior was application of clearly established Federal law

78
as determined by the decisions of the remanding this case to that court for the

Supreme Court; and the majority opinion of issuance of a writ of habeas corpus.

this court is in error in not reversing the

decision of the district court and in not

79