Opinion
No. WR-69,859-01
March 18, 2009. DO NOT PUBLISH.
On Application for Writ of Habeas Corpus, In Cause No. 051858-15-A, In the 15th Judicial District Court, Grayson County.
COCHRAN, J., filed a concurring statement.
ORDER
This is a post-conviction application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure article 11.071. In March 2005, a jury convicted Applicant of the offense of capital murder. The jury answered the special issues submitted under Article 37.071 of the Texas Code of Criminal Procedure, and the trial court, accordingly, set punishment at death. This Court affirmed Applicant's conviction and sentence on direct appeal. Thomas v. State, No. AP-75,218 (Tex.Crim.App. October 8, 2008). Applicant presents forty-four allegations in his application in which he challenges the validity of his conviction and resulting sentence. The trial court did not hold an evidentiary hearing. The trial court entered findings of fact and conclusions of law and recommended that the relief sought be denied. This Court has reviewed the record with respect to the allegations made by applicant. We adopt the trial judge's findings and conclusions. Based upon the trial court's findings and conclusions and our own review, the relief sought is denied. Applicant has also filed a motion to remand his case, or in the alternative, to stay the proceedings, to develop further evidence on applicant's mental illness. Applicant's motion is likewise denied. IT IS SO ORDERED THIS THE 18th DAY OF MARCH, 2009.
This is an extraordinarily tragic case. I concur in the denial of relief because applicant has not shown that he is being illegally restrained or that his capital murder conviction or death sentence was obtained in violation of the constitution. Applicant was well represented at trial, on appeal, and, most especially, on this writ application. In his writ application, he raises forty-four potential claims for relief. Those claims have been fully addressed by the trial judge whose lengthy Findings of Fact and Conclusions of Law are supported by the record. After reviewing the application, the trial record, the direct appeal, and other associated materials, I, like the Court, adopt those findings and conclusions. But two of applicant's groups of claims-claims relating to his insanity defense and incompetency to be tried-deserve greater explanation.
I.
Applicant has a severe mental illness. He suffers from psychotic delusions and perhaps from schizophrenia. He also has a long history of drug and alcohol abuse. Because of his drug abuse, he was frequently truant, quit school in the ninth grade, and had a series of juvenile and adult arrests. Dr. Axelrad, called by both the State and defense, testified that the twenty-one-year-old applicant told him that he had been abusing alcohol since age ten and marijuana since age thirteen, and, in the month before the murders, had been taking large doses of Coricidin, a cold medicine, for recreational purposes. Applicant's behavior in the months before the killings became increasingly "bizarre": He put duct tape over his mouth and refused to speak; he talked about how the dollar bill contains the meaning of life; he stated that he was experiencing deja vu and reliving events time and again; he had a religious fixation and heard the voice of God. In the weeks before the murders, applicant was heard by others talking about his auditory and visual hallucinations of God and demons. About twenty days before the killings, he took Coricidin and then tried to commit suicide by overdosing on other medications. He was taken to the local MHMR facility, but then walked away before he could be treated. Two days before the killings, he drank vodka and took about ten Coricidin tablets and then stabbed himself. His mother took him to the local hospital. But again, applicant left the hospital before he could be committed for observation or psychiatric treatment. On two occasions in the days before the killings, applicant was seen by friends to be highly intoxicated; they described him as vomiting, delirious, incapacitated, and lying on the floor. At around 7:00 p.m. on March 26th, just one day after stabbing himself, applicant went to his estranged wife's apartment where she and her boyfriend, Bryant Hughes, were listening to religious audiotapes. According to applicant's statement to police, he had come to believe that God wanted him to kill his wife, Laura, because she was "Jezebel," to kill his four-year-old son, Andre, Jr., because he was the "Anti-Christ," and to kill his wife's daughter, thirteen-month old Leyha, because she, too, was evil. That evening, applicant saw Bryant twisting an extension cord as they listened to the religious tapes, and he thought that Bryant also wanted to strangle Laura and the children. Applicant wanted to make "the first move," so he walked into Laura's kitchen to find a knife, but then decided that it was not the right time. Bryant drove applicant home around 10:00 p.m. Applicant reported that the next morning he woke up and heard a voice that he thought was God telling him that he needed to stab and kill his wife and the children using three different knives so as not to "cross contaminate" their blood and "allow the demons inside them to live." He walked over to Laura's apartment. He saw Bryant drive by and wave, so applicant believed that this was a signal that he was doing "the right thing" by killing his wife and the children. He burst into the apartment, then stabbed and killed Laura and the two children. He used a different knife on each one of the victims, and then he carved out the children's hearts and stuffed them into his pockets. He mistakenly cut out part of Laura's lung, instead of her heart, and put that into his pocket. He then stabbed himself in the heart which, he thought, would assure the death of the demons that had inhabited his wife and the children. But he did not die, so he walked home, changed his clothes, and put the hearts into a paper bag and threw them in the trash. He walked to his father's house with the intention of calling Laura, whom he had just killed. He called Laura's parents instead and left a message on their answering machine: Um, Sherry, this is Andre. I need y'alls help, something bad is happening to me and it keeps happening and I don't know what's going on. I need some help, I think I'm in hell. I need help. Somebody needs to come and help me. I need help bad. I'm desperate. I'm afraid to go to sleep. So when you get this message, come by the house, please. Hello? Applicant then walked back to his trailer where his girlfriend, Carmen Hayes, and his cousin, Isaiah Gibbs, were waiting for him. He told them that he had just killed his wife and the two children. Ms. Hayes took him to the Sherman Police Department and he told the police what he had done. After he was hospitalized for his chest wound, he was taken to jail, and he gave a videotaped statement to the police. In that videotaped statement, applicant gives a very calm, complete, and coherent account of his activities and his reasons for them. Five days after the killings, applicant was in his cell with his Bible. After reading a Bible verse to the effect that, "If the right eye offends thee, pluck it out," applicant gouged out his right eye. Applicant was examined for competency to stand trial by two psychologists and was evaluated by a treating psychologist in jail, all of whom agreed that applicant was not then competent to stand trial. All three provided a diagnosis or opinion of "Schizophreniform Disorder with a Rule out of Substance Induced Psychotic Disorder due to [applicant's] recent history of abusing Coricidin." After approximately five weeks of treatment and medication in the Vernon State Hospital, applicant was found to have regained his competency to stand trial. During his stay at Vernon, applicant was placed on Zyprexa, a strong anti-psychotic medication, and did not display "bizarre or unusual behaviors," but he did make "hyper-religious statements throughout his stay." The attending psychiatrist at Vernon updated applicant's diagnosis as being Substance-Induced Psychosis with Delusions and Hallucinations. He also diagnosed applicant as malingering (as did a psychologist). Applicant was returned to Grayson County to stand trial. Several different psychiatrists and psychologists-both for the State and applicant-interviewed and tested applicant in anticipation for the capital murder trial. By that time, applicant was fully alert, conversant, and attentive. His memory tested well, he spoke at a level consistent with his tested I.Q. of 112, and he behaved appropriately during the interviews. He told one psychiatrist in December 2004 that he had not experienced any hallucinations since September, although he was severely depressed. At trial, the jury rejected his insanity plea and found applicant guilty of the capital murder of thirteen-month-old Leyha. Based upon the jury's answers to the special punishment issues, the trial judge sentenced him to death.II.
In his first twelve claims, applicant complains of the trial court's jury instruction on the law of voluntary intoxication. He asserts that this instruction should not have been given and that his trial counsel's failure to object to this instruction showed ineffective assistance of counsel. He argues that the evidence did not support an instruction on voluntary intoxication and that the instruction "erroneously suggest[ed] that intoxication precludes an insanity defense." Applicant's claims that his two trial attorneys were ineffective for failing to object to the voluntary intoxication instruction are without merit. First, an attorney is not constitutionally ineffective if his conduct was not deficient. Here, applicant's counsel properly did not object to the voluntary intoxication instruction because its submission was, as the trial judge found, supported by the law and the evidence. Applicant admitted that he consumed a combination of alcohol, marijuana, and Coricidin some thirty-six hours before the murders. A toxicologist testified that he still had a trace of DXM (the active ingredient in Coricidin) in his blood after the murders. Numerous witnesses testified about applicant's drug use. The State's experts thought that applicant's psychosis was substance-induced. According to one psychiatrist, there appears to be "a strong association between [applicant's] drug and alcohol abuse problems and his affective disfunction" and that applicant's use of Coricidin in the days before the murders accentuated his mental problems. He concluded, "All of [applicant's] psychiatric problems, which occurred at the time of the commission of the alleged offenses, are the result of voluntary intoxication with alcohol, cannabis, and Coricidin[.]" This voluntary-intoxication instruction, as the trial court's findings state, "was not erroneous, misleading or a misstatement of the law." The trial court had included the instruction pursuant to article 8.04(a) and (d) of the Texas Penal Code. This definition does not require that the intoxicating substance still be in the body at the time of the offense. The State's theory was that applicant's psychosis was caused by, or aggravated by, his voluntary use of alcohol, drugs, and Coricidin. Accordingly, if applicant's pre-existing, "weakened" condition of mind was not such as would have rendered him legally insane at the time of the murders, but his recent use of intoxicants aggravated that "weakened" condition-was the "last straw" so to speak-then insanity at the time of the offense would not be a defense. That position is in accord with prior Texas law, as well as law from other states. This legal proposition was accepted by the trial court, the State, and the defense. The defensive theory, however, was that applicant's actions were committed as the result of insane delusions caused solely by his mental disease. This is precisely what Dr. Gripon, the defense expert, stated: Although applicant had previously used drugs and alcohol, his insanity was not substance-induced. The State's experts, Drs. Scarano and Axelrad, testified that applicant was psychotic when he committed the offense, but that his psychosis was triggered by his substance abuse in the preceding days and weeks. It was also their opinion that applicant knew that his conduct was wrong at the time of the offense. There was ample evidence to reject an insanity defense and support a jury finding that applicant knew that his conduct was wrong at the time he murdered his wife and the children. There was also evidence that applicant did not know that his conduct was wrong at the time. This was a quintessential fact issue for the jury to decide, and it did so. Neither on appeal nor in this habeas application does applicant contend that there was such "overwhelming evidence" that applicant did not know that what he was doing was wrong as to make the jury verdict "manifestly unjust." While there is no dispute that applicant was, in laymen's terms, "crazy" at the time he killed his wife and the children, the legal question is whether he knew that what he was doing was "wrong" or a "crime" at the time he acted. There is no dispute that applicant knew that it was his wife and the children that he was stabbing to death. He may have thought that he was morally justified in doing so because she was a "Jezebel," his son was the "Anti-Christ," and Leyha was somehow evil also. He said, "I thought I was doing the will of God." But religious fervor, whether the result of a severe mental disease or inspired by a jihadist fatw or KKK rally, does not provide a legal excuse for the knowingly "wrongful" murder of a person. Applicant's trial counsel submitted an affidavit stating that it was his understanding that the submission of an instruction on voluntary intoxication was legally proper under these circumstances. He is correct. An attorney is not constitutionally deficient when he declines to make a legally meritless objection. Applicant's ineffective assistance claims are without merit. Nonetheless, this is a particularly tragic case because these horrendous deaths could have been avoided. Those around applicant realized that he was mentally ill, and he was twice taken to hospitals to obtain help. In each instance, he left before he could be involuntarily committed for observation, diagnosis, or treatment. The hospitals cannot be faulted; they cannot detain someone involuntarily without legal authority, and applicant voluntarily left while they were trying to obtain that mental health warrant. Of course, there is no direct relationship between the failure to detain applicant for involuntary mental health treatment and the deaths of applicant's wife and the two children, while there is a direct relationship between his intentional conduct and their deaths. The jury was given the proper instructions, and it was entitled to reject his insanity defense and find him criminally responsible for that murderous conduct.III.
Applicant also claims that (1) he was not competent to stand trial and (2) his trial attorneys were constitutionally ineffective for failing to request a second competency exam. Applicant's first claim is procedurally barred, but the need for clarity in the law concerning ineffective assistance warrants discussion of the second claim. At the time of applicant's trial in March 2005, Texas law stated, "A person is incompetent to stand trial if the person does not have:• sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding; or
• a rational as well as factual understanding of the proceedings against the person.Texas law, in accord with decisions by the United States Supreme Court, has intentionally set the threshold for competency very low. A person may be suffering from a severe mental disease or defect or he may be highly medicated, but he will be competent to stand trial if he still has the ability to meaningfully consult with his attorney and he has a rational as well as factual understanding of the charged offense and the trial proceedings. Applicant was initially found incompetent to stand trial and sent to Vernon State Hospital on June 23, 2004. While there, he was placed on Zyprexa, a medication used for the treatment of schizophrenia and related psychotic disorders. After the dosage was increased to 40 mg a day and applicant was enrolled in a psychosocial educational program to improve his trial competence, he was found to meet the six criteria for trial competency. At Vernon, applicant was diagnosed with Substance-Induced Psychosis with Delusions. He was also diagnosed with Malingering because he "has clearly exaggerated symptoms that he might be experiencing, and may have even fabricated some symptoms of psychosis." He was returned to Grayson County for trial. For the first time, applicant argues that the 40 mg dosage of Zyprexa during the trial exceeded the normal maximum therapeutic amount, and therefore he could have been overly sedated and unable to consult with his trial counsel. Trial counsel, however, disputes that conclusion. In his post-trial affidavit, lead counsel stated that he did not file a second claim of incompetency after applicant returned from Vernon State Hospital because he believed that applicant was, in fact, competent. Counsel stated that, "[a]lthough [applicant was] heavily medicated and still suffering from a mental illness, I was able to talk to applicant and discuss the case with him." Applicant was able to participate in their conversations, he recalled events, and helped with his defense. When the judge explicitly asked counsel, during the trial, if he was claiming that applicant was again incompetent, counsel tried to avoid the question, but finally had to admit that he was not going to challenge applicant's present competency "because [he] had no new evidence to dispute the findings at Vernon or suggest the applicant was incompetent. Although I will work diligently for my clients, I will not lie to the court or file motions, the basis of which I know are not true." Applicant's lead counsel would usually be the single most reliable and important source of information about whether he and applicant could discuss the factual and legal aspects of the case and develop an appropriate defense. Although others who worked with counsel in developing evidence and testimony for the trial disagreed with counsel's assessment and thought that applicant was not totally responsive to them during the trial, the trial judge credited counsel's affidavit and found that applicant was competent to stand trial. Applicant has failed to show that his counsel was constitutionally deficient for failing to raise a second claim of incompetency to be tried when both his counsel and the trial court concluded that applicant was competent to stand trial. Although reasonable people might well differ on the questions of whether this applicant was sane at the time he committed these murders or competent at the time he was tried, those issues were appropriately addressed by the defense, the prosecution, trial judge, and the jury during the trial. The evidentiary basis for those sanity and competency issues could have been addressed on direct appeal, thus they are procedurally barred (as well as without merit). His ineffective assistance claims are, as the trial judge found, without merit. In sum, applicant has failed to prove that he is entitled to relief on his application for a writ of habeas corpus. This is a sad case. Applicant is clearly "crazy," but he is also "sane" under Texas law.