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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.16 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 ] l e a s e a s s u m e t h e
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
h e t h e n b e g a n
more than two to
laughing, twirling a
four inches from
gun and stating he was
their throats when he
a g u n - s l i n g e r [ . ]
fired the gun into
Assume further that
t h e i r b o d y [ . ]
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
h e a r i n g a n o t h e r
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),
t h e f i v e
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
s h o t t h e
Sparks that chronic paranoid schizophrenia
others, that
P r e s i d e n t
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
S t a t e s i s
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 c e r t a i n
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 . . .
i n S t a t e c o u r t
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
Hernandez, probably would commit crimes
18 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
s t a t e - a p p o i n t e d
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
t o s u r p r i s e t h e
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
c o n t i n u a n c e a n d
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-examination
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 court 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.
T h e
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 determining 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