IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
v.
THE STATE OF TEXAS
THE SUPREME COURT OF THE UNITED STATES
O P I N I O N
I do not dispute that, in general, this Court can properly take judicial notice on direct appeal of a habeas proceeding, consider the evidence developed at a hearing on habeas, and afford almost total deference to a trial judge's determination of the historical facts supported by the record. However, in this case, determining appellant's claim of mental retardation by considering the evidence developed on habeas in addition to that adduced at trial does not provide appellant with a constitutionally sufficient opportunity and process to resolve his claim. Also, based on the deficiencies in the habeas proceeding, we should not, in this case, afford the trial court's finding on habeas almost total deference.
I discussed many of my reasons for these conclusions in my dissent in Ex parte Briseno, 2004 Tex. Crim. App. LEXIS 199, including the fact that Ring v. Arizona, 536 U.S. 584 (2002), requiring a jury determination of certain issues, applies to mental retardation. Recognizing that this Court's majority holding in Briseno is now the law, I continue to find deficiencies in the habeas proceeding on which this Court relies in deferring to the trial court's determination and in arriving at its own conclusion.
Nowhere in Hall's habeas proceeding was there a burden of proof or standard of review enunciated. The convicting court made findings and conclusions, but we do not know under what standard of proof the court made its conclusions- preponderance of the evidence, clear and convincing evidence, or beyond a reasonable doubt. Furthermore, Hall was not provided with a live evidentiary hearing. Hall was not able to cross examine the affiants and the judge was not able to evaluate their credibility. By according almost complete deference to the trial court's determination based on the procedure used on habeas, and by reaching our own conclusions based in part on the evidence adduced by affidavit on habeas, we fail to provide a procedure that reflects the need for heightened procedural requirements in determining whether a defendant may be put to death.
I think this Court should reconsider, sua sponte, our determination on Hall's writ of habeas corpus and order the convicting court to conduct a live evidentiary hearing and evaluate the evidence under the preponderance of the evidence standard articulated in Briseno. Barring that course of action, I would find that a rational jury could have found that the significant evidence adduced in favor of a finding of mental retardation outweighed the significant evidence adduced against such finding. I would therefore find that appellant has met his burden to be granted the relief he seeks, commutation to a life sentence. Because this Court follows neither course I have laid out, I respectfully dissent.
Date delivered: May 5, 2004
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