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Howard v. Director, TDCJ-CID

United States District Court, E.D. Texas, Beaumont Division

September 20, 2019

JAMAAL HOWARD, Petitioner,



         Petitioner Jamaal Howard (“Howard”), a death row inmate confined in the Texas prison system, filed the above-styled and numbered petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is challenging his capital murder conviction and death sentence imposed by the 356th Judicial District Court of Hardin County, Texas, in Cause Number 15114-A, in a case styled The State of Texas vs. Jamaal Howard. For reasons set forth below, the Court finds that the petition should be denied.


         The Texas Court of Criminal Appeals discussed the factual background of the case as follows:

[Howard] stole a gun from his grandfather the night before the murder and hid it. Despite his family’s efforts to persuade him to turn over the gun, [Howard] refused. The following morning, [Howard] retrieved the gun and walked several blocks from his house to the Chevron store. After peering in the windows, he entered the store, went into the secured office area where the victim was sitting, cocked the gun, and shot the victim in the chest. [Howard] stole $114.00 from the cash register and reached over the dying victim to steal a carton of cigarettes before leaving. The offense was recorded on videotape. [Howard] denied committing the offense until he was told it was videotaped. He told the officer who took his statement that he was not sorry for committing the offense.
At the punishment stage of the trial, the State presented evidence that [Howard] demonstrated a disregard for authority and school rules despite the continued efforts of his mother and educators. During one incident, [Howard] punched a pregnant teacher in the chest with his fist when she asked him to return to his seat. When [Howard] was assigned to an alternative school, he refused to comply with its rules and standards, and he was defiant and disruptive. The State also presented evidence of [Howard’s] possession of controlled substances, his fighting with police officers and resisting arrest, his committing of several burglaries as a juvenile, and his fighting with other inmates. Dr. Edward Gripon testified for the State that [Howard] was not suffering from schizophrenia, but rather was suffering from antisocial personality disorder.

Howard v. State, 153 S.W.3d 382, 383–84 (Tex.Crim.App. 2004) (en banc).


         Howard was convicted and sentenced to death for the capital murder of Vicki Swartout, a Chevron convenience store clerk, who Howard intentionally killed during the course of a robbery or attempted robbery on May 12, 2000. (1 C.R. 3, 114, 128).[1]

         Evidence in the capital murder trial began on April 9, 2001. (20 R.R.). The trial was recessed the following day after defense-sponsored testimony from Dr. James Duncan, [2] a clinical psychologist, in order to determine if Howard was competent. (21 R.R. 47). A separate trial on competency began on April 11, 2001 (29 R.R.), but ended with the jury deadlocked. (30 R.R. 37). A second competency trial began on April 16, 2001 (31 R.R.), and concluded with the jury finding that Howard was competent to proceed. (32 R.R. 134–35).

         Trial on the merits resumed on April 18, 2001. (22 R.R.). Defense counsel called an additional eleven lay witnesses to testify about Howard’s mental health issues and odd or unusual behavior to support an insanity defense. The State called Dr. Edward Gripon in rebuttal. The jury rejected the defense and on April 20, 2001, convicted Howard of capital murder. (24 R.R. 55; 3 C.R. 601–04). Based on the jury’s answers to the special issues set forth in the Texas Code of Criminal Procedure Article 37.071, the trial court sentenced Howard to death on April 25, 2001.

         Howard moved for a new trial, but was denied relief following a hearing. (3 C.R. 598–99; 28 R.R. 24). The Texas Court of Criminal Appeals affirmed the conviction. Howard, 153 S.W.3d at 389. The United States Supreme Court denied his petition for a writ of certiorari. Howard v. Texas, 546 U.S. 1214 (2006).

         While his direct appeal was proceeding, Howard applied for a state writ of habeas corpus raising 22 claims. (SHCR 21–183). In June 2012, the trial court issued findings of fact and conclusions of law without conducting an evidentiary hearing. The trial court recommended that relief be denied. (Supp. SHCR 20–36). The Court of Criminal Appeals denied relief based upon the findings and conclusions of the trial court and its own review. Ex parte Howard, No. WR–77, 907–01, 2012 WL 6200688 (Tex.Crim.App. Dec. 12, 2012) (unpublished).

         Howard’s federal petition for a writ of habeas corpus was timely filed on December 13, 2013. (Dkt. #16). In order to give Howard the opportunity to develop and prove his claims under Martinez and Trevino, the Court authorized funding for a mitigation specialist, Gina Vitale, MSW (see Dkt. ##7, 15, 32), and for three mental health experts, Dr. George Woods, a neuropsychiatrist[3] (see Dkt. #56), Richard O. Temple, Ph.D., a neuropsychologist (Dkt. #56), and James Patton, Ed. D., an intellectual disability expert (Dkt. #56). Howard filed an amended petition for a writ of habeas corpus (Dkt. #76) on September 25, 2017. The State filed an answer (Dkt. #79) on November 27, 2017. Howard filed a response (Dkt. #80) on December 22, 2017.


         Howard brings the following grounds for relief:

1. Trial counsel provided constitutionally ineffective representation by failing to adequately investigate, develop, and present evidence of Howard’s life history and mental health in mitigation of punishment;
2. Trial counsel provided constitutionally ineffective representation by failing to thoroughly investigate Howard’s psycho-social history and seek timely and relevant evaluations of his mental condition regarding: (a) competence to stand trial, (b) criminal responsibility for capital murder, and (c) whether his waiver of Miranda[4] rights and subsequent confession were knowing and intelligent;
3. Trial counsel’s lack of, and failure to conduct the necessary research to develop, a reasonable understanding of the difference between competency to stand trial and mental defenses to criminal responsibility deprived Howard of his right to effective assistance of counsel;
4. The prosecutor’s closing argument violated Howard’s Eighth and Fourteenth Amendment rights to have the jury give effect to mitigating evidence even if the evidence had no causal relationship to the capital crime; and
5. Assuming the Supreme Court did not announce a new rule in Tennard v. Dretke, 542 U.S. 274 (2004), Howard was denied his right to effective assistance of counsel because his attorney failed to object to the prosecutor’s nexus argument.


         In order to discuss and analyze Howard’s grounds for relief, the Court reviewed the evidence presented at the sentencing hearing of Howard’s capital trial. Below is a summary of that review:

         A. The State’s case-in-chief.

         1. Howard’s assault of a teacher, disregard for authority and school rules, and persistent defiance.

         In 1993, when Howard was in middle school, he punched a pregnant teacher in the chest with his fist when she asked him to return to his seat. (25 R.R. 3–5). Starla Alexander testified that she entered a classroom to help get students settled down after a fight had broken out. (25 R.R. 4). Howard was out of his desk and would not return to his seat despite being asked to do so. (25 R.R. 4). Ms. Alexander testified that when she asked Howard if he needed an escort to his seat and touched his arm, he got “very offended” by her touch. (25 R.R. 4). Howard pushed Ms. Alexander and she pushed back. (25 R.R. 4). He then struck her in the chest, leaving a round bruise. (25 R.R. 4). The incident ended when the school nurse arrived and Howard went to the office. (25 R.R. 5).

         Joann Ferrell, Special Services Director for the Silsbee Independent School District, testified that Howard was a special education student; his behavior and academic progress were reviewed and discussed at admission, review, and dismissal (ARD) committee meetings; and Howard’s mother would attend. (See 25 R.R. 7, 9). She agreed that Howard’s mother did everything she could to help her son conform to the rules and that the school exhausted every resource it had in dealing with Howard, but Howard failed to comply. (25 R.R. 10). Ms. Ferrell believed that Howard had the ability to follow the rules and pass his classes had he wanted to do so. (25 R.R. 10).

         Laura Elizando, an educational diagnostician at Silsbee High School, testified that school records (33 R.R. at SX-49) show Howard was admitted to the special education program on December 15, 1995. (25 R.R. 19). However, by February 1996, Howard was placed in the student alternative center (SAC) as a result of “constant persistent misbehavior.” (25 R.R. 19–20). SAC is used when a student’s behavior becomes so disruptive that other students can no longer learn. (25 R.R. 22–23). According to Ms. Elizando, Howard refused to comply with the rules at SAC, and was defiant and disruptive. (25 R.R. 20). Howard was also taking medication for ADHD, but admitted to the ARD committee that he was also using alcohol and illegal drugs. (25 R.R. 20–21).

         ARD records from April 1996 show that after two months at SAC, Howard was still not conforming to rules, would talk across the room, and laughed and played with his peers. (25 R.R. 22). Nevertheless, Howard passed the math and reading portions of the exit level of the TAAS exam, the Texas Assessment of Academic Skills achievement-type test that a student must pass in order to graduate. (25 R.R. 23; 34 R.R. at SX-49). A passing score meant that Howard had the required minimal competencies, which is another way of saying his learning was appropriate for his grade level. (25 R.R. 23–24). Ms. Elizando testified that in May 1996, Howard was homebound from SAC because his behavior was continually disruptive. (25 R.R. 22). Howard could have been expelled and lost his school credits for the year, but was instead given another chance by being placed on homebound. (25 R.R. 22, 24). In the program, a teacher would meet with Howard for four hours a week at his home, bring his work, and help keep him current in his classes. (See 25 R.R. 23).

         Ms. Elizando testified that Howard returned to high school from homebound on August 9, 1996, but was placed in SAC because he now had charges against him for delivery of crack cocaine, assault, and criminal mischief. (25 R.R. 24–25). Three weeks later, Howard was homebound again because of his constant and persistent misbehavior and defiance. (25 R.R. 25). However, Howard failed to meet with the homebound teacher. (25 R.R. 26). As a result, he was dismissed from the special education program on January 23, 1997, for noncompliance and nonattendance, and was expelled. (25 R.R. 26).

         According to Ms. Elizando, Howard came back to school briefly in August 1997 and re-entered the special education program. (25 R.R. 26). Howard was placed on in-school suspension (ISS) in September 1997 because of tardiness. (25 R.R. 27–28). While there, he wrote gang-related things on his desk regarding the “5-9 Hoover Crypts, ” a gang out of Beaumont. (25 R.R. 28–29). By October 1997, Howard was expelled because of his constant defiance and refusal to conform. (25 R.R. 29). Ms. Elizando believed that Howard’s actions were volitional because she had other students with ADHD who did follow the rules. (25 R.R. 30).

         Gwen Boyett, Assistant Principal for Silsbee High School, testified that she worked for three years as the coordinator at SAC. (25 R.R. 46). Ms. Boyett stated that Howard was not successful at SAC and did not follow the regulations and rules. (25 R.R. 48). She met with Howard and his mother when he was enrolled, gave them a copy of the rules, and discussed the rules with them. (25 R.R. 47). When Howard did not abide by the rules, Ms. Boyett talked with him and to his mother, but Howard continued not to abide so he was expelled from SAC. (25 R.R. 48). Ms. Boyett explained that it is “a continuous misbehavior of not following the rules that will take a student to expulsion.” (25 R.R. 53). She testified that Howard was never disrespectful or belligerent, but simply did not want to do the work and follow the rules. (25 R.R. 48). Ms. Boyett did not believe that Howard’s actions, such as not following the dress code, had anything to do with his handicapping condition of ADHD but were instead the result of Howard’s choices. (25 R.R. 48–49).[5]

         Rodney Cavness, a former Assistant Principal at Silsbee High School, testified that his main responsibility was enforcing discipline for the special education department. (25 R.R. 56–57). In that role, Mr. Cavness had many occasions to interact with Howard and worked with him extensively for about three years. (25 R.R. 57). Mr. Cavness testified that Howard was “very defiant, ” “chose not to follow the rules, ” and “[d]id pretty much what he wanted to do when he wanted to do it.” (25 R.R. 57). He described Howard’s mother as a “good lady” who really tried to help her son and did everything she could to help him succeed. (25 R.R. 57–58). By his account, the school “exhausted all resources that [it] had available to try to modify [Howard’s] behavior, from counseling with the young man, involving the parents, in school suspension, suspension out of school, placement in the alternative school, [and] expulsion.” (25 R.R. 58). However, Howard’s misbehavior persisted and resulted in serious infractions of the school rules. (25 R.R. 58). Mr. Cavness also recalled that during one ARD meeting, Howard admitted to experimenting with illegal drugs and/or alcohol. (25 R.R. 63).

         Tom Wakefield, a former director at SAC, testified that Howard was assigned to the school because of a felony offense for distribution of cocaine. (25 R.R. 104). Howard was defiant, completely disregarded the rules, and would not adhere to even the basic regulations of the program. (25 R.R. 100–01, 102). Mr. Wakefield explained that SAC had a rule requiring students to tuck in their shirttails because it allowed teachers to see if weapons were hidden in waistbands or pockets. (25 R.R. 103). When Howard was asked to tuck in his shirttail, he responded by saying he did not give an “F” what he was told to do. (25 R.R. 103). Howard also refused to take his medications and said he did not have to take them. (25 R.R. 103). Mr. Wakefield stated that when Howard wanted to complete his school work, he was capable of doing so. (25 R.R. 104).

         2. Howard’s criminal history and prior bad acts.

         The State presented evidence of Howard committing several burglaries as a juvenile, his possession of controlled substances, his fighting with police officers and resisting arrest, and his fighting with other inmates in jail while he was awaiting trial for capital murder.

         On December 1, 1993, when Howard was thirteen years old, he was placed on probation for one year after he was found to have engaged in delinquent conduct. (25 R.R. 89–90; 33 R.R. at SX-50). Specifically, Howard committed burglary of a motor vehicle on four separate occasions: at Colvin’s Transmission (June 1, 1993 and July 21, 1993), at Boddie’s Garage (August 1, 1993), and at Payne and Sons (August 15, 1994[6]).

         On September 25, 1997, Howard committed the offense of delivery of a controlled substance, cocaine. (25 R.R. 89; 33 R.R. at SX-51). He was convicted on January 28, 1998, and placed on deferred adjudication probation for four years.

         On December 30, 1997, Howard was arrested for possession of marijuana, resisting arrest, and failure to identify. Officer Carlos Montalvo of the Silsbee Police Department testified that he made a traffic stop of a vehicle in which Howard was the front seat passenger. (25 R.R. 65–67). Howard was not wearing a safety belt, which is a violation of Texas traffic laws. (25 R.R. 67). When Officer Montalvo asked Howard for identification, he refused. (25 R.R. 67). Howard eventually told the officer his name, but cursed at him and refused to give his birth date. (25 R.R. 67). Officer Montalvo arrested Howard for failure to identify, placed him in restraints, and took him to jail. (25 R.R. 67–68). At book-in, Officer Montalvo found a small baggy of marijuana in the pocket of Howard’s jacket. (25 R.R. 69). Officer Montalvo testified that Howard refused to enter the jail cell, jerked away from him, and started swinging when the officer grabbed his arm. (25 R.R. 70). Howard began fighting and kicking, so Officer Montalvo took him down to the floor. (25 R.R. 70). The officers used hand and leg restraints to get Howard into the cell, and monitored his behavior to make sure he did not hurt himself. (25 R.R. 70). Officer Montalvo thought Howard was possibly intoxicated and testified that Howard eventually calmed down inside the cell. (25 R.R. 71).

         On January 12, 1999, Howard ran from Officer Montalvo when he was on patrol. (25 R.R. 71). Officer Montalvo testified that he was patrolling in a marked police vehicle through an area with a lot of drug activity when he saw Howard leaning inside the window of a car. (25 R.R. 72–74). When the officer turned around to observe the vehicle, Howard took off running. (25 R.R.72). Officer Montalvo ordered him to stop but he failed to do so, and a foot chase ensued. (25 R.R. 72). Howard jumped over several fences and ran in every direction, but was eventually found behind a house. (25 R.R. 72–73, 74). Officer Montalvo had no trouble taking Howard into custody because Howard was tired. (25 R.R. 74).

         On April 29, 2000-less than two weeks before Howard’s capital crime-Howard was arrested for possession of crack cocaine. Deputy Andrew Cole testified that while he was on patrol, he saw Howard riding a bicycle. (25 R.R. 116). As the deputy approached, Howard threw down the bicycle and began running. (25 R.R. 117). Deputy Cole caught Howard and placed him in handcuffs to find out why Howard ran. (25 R.R. 118). During a pat down, Deputy Cole found a hard, rocky substance in Howard’s sock and arrested him for possession of crack cocaine. (25 R.R. 118–19). The DPS Crime Lab analyzed five individuals rocks and reported that it was .40 grams of cocaine. (25 R.R. 125–26).

         On May 30, 2000, while Howard was in jail awaiting trial for capital murder, he caused bodily injury to Quincy Dixon, a fellow inmate. Deputy Chris Robichaux, a jailer with the Hardin County Sheriff’s Department, testified that he saw Howard with his hands and fists raised, standing over Dixon who was on the floor. (See 25 R.R. 78). Deputy Robichaux stated that when he asked Howard what was going on, Howard said he was tired of Dixon mumbling remarks toward him, so Howard assaulted him. (25 R.R. 78).

         On January 4, 2001, Howard caused bodily injury to Shawn Benton, an inmate at the Hardin County Jail. Deputy Anthony Flowers testified that he responded to a radio call for assistance to break up a fight in the visitation room. (25 R.R. 82–83). When he reached the location, he saw Howard striking Benton about the face and head with a closed fist. (25 R.R. 84). The officers used pepper spray to break up the fight. (25 R.R. 84).

         Sheriff Ed Cain testified to difficulties escorting Howard to court. (25 R.R. 91–92). Once when Howard was being brought from the jail through the sally port, he jerked away when the Sheriff took him by the arm. (25 R.R. 92). Howard also jerked away when Sheriff Cain took hold of Howard’s sleeve. (25 R.R. 92). After that incident, the Sheriff ordered that Howard be placed in handcuffs when he was outside the courtroom door. (25 R.R. 93). Sheriff Cain testified that Howard would also stiffen up his arms so the handcuffs could not be positioned to fit the key inside the lock and would jerk away afterwards. (25 R.R. 94–95).

         B. Howard’s case for mitigation.

         During both stages of trial, Howard presented testimony from lay witnesses and experts regarding his background and mental health history.

         1. Testimony of family members.

         (a) Howard’s background and mental status.

         Shirley Howard, Howard’s mother, testified at both stages of trial. (23 R.R. 49–80; 26 R.R. 90–97). During the guilt/innocence stage, his mother testified that Howard has always had mental problems and that she first began noticing some problems when he was in the 3rd grade. (23 R.R. 50). Howard was diagnosed with ADHD in the 5th grade. (23 R.R. 50). He started taking medication for ADHD in the 6th grade, and it calmed him down a bit. (23 R.R. 51). Ms. Howard testified that Howard had problems in class at times because of his ADHD. (23 R.R. 51). When Howard was in the 7th or 8th grade, they began to see Dr. Laine who diagnosed Howard with depression. (23 R.R. 51). Dr. Laine prescribed Pamelor, but later switched Howard to Prozac. (23 R.R. 52). Ms. Howard testified that Howard took the medication and his behavior became better. (23 R.R. 52). Howard stopped seeing Dr. Laine in October or November of 1996 after Dr. Laine moved from the area. (23 R.R. 52). His mother made an appointment for Howard with a psychiatrist in Beaumont, Dr. Ned Groves, but Howard would not go. (23 R.R. 52–53). When Howard was sixteen years old, his mother learned that Howard was getting more disruptive in his afternoon classes and that he was not taking his 12:00 p.m. medication. (23 R.R. 53). She tried to have Howard hospitalized in order to get him back on his medication, but Howard refused to sign the papers to commit himself. (23 R.R. 53). Ms. Howard stated that she was told Howard had to voluntarily admit himself to the hospital or else she had to go to a county judge and say Howard was threatening to harm himself or others. (23 R.R. 54).

         Ms. Howard further testified that as time passed, her son’s mental condition worsened. (23 R.R. 54). When the family would be watching television, Howard would spontaneously laugh out loud for no apparent reason and did so on other occasions. (23 R.R. 54–55). Howard would sit and rock, but would bend his whole body like an autistic child. (23 R.R. 55). Ms. Howard stated that the biggest difference she noticed was the decline in Howard’s personal hygiene. (23 R.R. 56). She described Howard as a very clean and neat child who starched and ironed his jeans or shorts every day. (23 R.R. 55). More recently, he wore an old wool hat on his head in summertime, did not change his clothes or wash his clothes for days, and he did not take baths. (23 R.R. 55). The family had to repeatedly ask Howard to take a bath until he eventually did so. (23 R.R. 55). Ms. Howard testified that her son went from always willing to talk with her to where he only answered “yes” or “no, ” and even that had stopped. (23 R.R. 56). When Howard was placed in the homebound program, he went to live with his grandfather because he could make sure that Howard got up in the morning and took his medications. (23 R.R. 56–57). Howard was also there to help his grandfather, who is legally blind and has arthritis. (23 R.R. 57).

         At the punishment stage, Shirley Howard identified pictures of her son as he was growing up. (26 R.R. 90–93; 33 R.R. at DX-2 to DX-6). She also identified five sports trophies of Howard’s when he made All Stars in baseball and basketball. (26 R.R. 93–94; DX-7 to DX-11). Ms. Howard additionally testified about a fight Howard got into with another inmate while she was visiting him at jail on January 4, 2001. (26 R.R. 94–96). Howard had been looking at his mother during the visitation, but then looked away and started mumbling something. (26 R.R. 95). Ms. Howard asked what he had said, but Howard did not respond and turned away. (26 R.R. 95). She heard Howard saying, “What did you say? I told you to leave my stuff alone, ” then saw him jump up, go to the far end of the visitation room, stand over one of the other inmates, and heard him keep saying, “What did you say to me?” (26 R.R. 95). By the time the jailer came, Howard had hit the other inmate. (26 R.R. 95). Ms. Howard testified that there have been times when she is speaking to Howard but he does not respond and looks past her. (26 R.R. 95–96). Finally, Ms. Howard testified that she told school officials that Howard told her on one occasion that he heard voices. (26 R.R. 96).

         Sheanna Howard, Howard’s sixteen-year-old sister, testified at both stages of trial. (23 R.R. 17–26; 26 R.R. 88–89). During the guilt/innocence stage, Miss Howard testified that her brother had always had problems mentally. (23 R.R. 18). On some occasions, he did not take baths and that was not like him to do so. (23 R.R. 18). She agreed that Howard would go for long periods of time without bathing and that her family would have to tell him to take a bath. (23 R.R. 18). Miss Howard denied noticing anything unusual about how Howard would eat. (23 R.R. 19). At the punishment stage, Miss Howard testified that she knows her brother is charged with a very serious offense, the jury could kill him or give him life, she loves her brother, and she prays for both families. (26 R.R. 88–89).

         Pamela Fulton, Howard’s cousin, testified at the guilt/innocence stage that she has lived in Silsbee, Texas, all her life. (23 R.R. 2–3). She stated that she has seen Howard’s different mental states over his life and noticed recently that Howard would sit alone, talking and laughing to himself. (23 R.R. 3). Ms. Fulton testified that Howard would do this at her house, at his grandfather’s house, and while standing outside on the corner. (23 R.R. 3). According to Ms. Fulton, Howard’s behavior had started to concern the family. (23 R.R. 3).

         Jerry Howard, Jr., Howard’s older brother, testified at the guilt/innocence stage that he played basketball, baseball, and football; that Howard played the same sports he did; and that Howard tried to follow him sometimes and do the same things he did. (23 R.R. 27). He agreed that his brother had always had some sort of problem, even when he was really young. (23 R.R. 27–28). Howard was on medication for a long time, sometimes their mother had to force Howard to take his medication, and she gave Howard’s medication to the school nurse to make him take it. (23 R.R. 28). He recalled that Howard sometimes wore the same clothes for weeks and would not wash them, and that he gave Howard clothes to wear but Howard would not put them on. (23 R.R. 28). Jerry Howard testified that he would sometimes drive around with Howard and talk, but Howard would just sit there and not say anything in response. (23 R.R. 28–29). He agreed that the family was starting to become concerned about Howard’s behavior. (23 R.R. 29).

         R. C. Kyles, Howard’s eighty-four-year-old grandfather, testified at the guilt/innocence stage that he has eleven grandchildren and loves them all, but is the closest to Howard. (23 R.R. 82–83). He said he felt that way because Howard never could explain himself or defend himself, and other kids would blame Howard for things he did not do. (23 R.R. 83). Mr. Kyles testified that Howard lived with him. (23 R.R. 83). He stated that Howard had a small room air conditioner and two oscillating fans and sometimes would have them all turned on, but then Howard would also turn the big heater on and have it blasting at the same time. (23 R.R. 84–85). If Mr. Kyles was woken up by loud music on Howard’s record player, he would go into Howard’s room to turn the music down and would cutoff the heater. (23 R.R. 85).

         (b) Howard’s behavior the night before the capital crime.

         Several of Howard’s family members testified regarding his unusual behavior on May 11, 2000, the night before the murder, including his mother (23 R.R. 57–69), grandfather (23 R.R. 85–88), brother Jerry (23 R.R. 29–39), sister Sheanna (23 R.R. 19–22), and cousin Pamela Fulton (23 R.R. 3–10).

         Generally, these individuals testified that Howard’s grandfather, Mr. Kyles, called 911 to report that Howard had taken one of Mr. Kyles’ guns and fired it inside his residence. (23 R.R. 19, 59, 84). Mr. Kyles testified that he was afraid of his grandson that night and that Howard’s skin color had changed, his eyes were big and white, and his eyes had rolled up into the back of his head. (23 R.R. 84). When the police arrived at Mr. Kyles’ home, Howard was not present. (23 R.R. 19). Howard’s family did not want Howard arrested, but wanted help finding him because they were concerned that he had a gun. (23 R.R. 61). The police officers left, but said they would look for Howard while they were on patrol. (23 R.R. 60). Howard came back to the residence after the police had gone, looking wild eyed. (23 R.R. 19, 62–63). Family members tried to keep Howard distracted while they called the police. (23 R.R. 20, 62–66). No. officer appeared and the family did not call the police again. (23 R.R. 21, 66).

         Howard’s brother, Jerry, testified that when he arrived at their grandfather’s house, he talked with Howard to try to calm him down but Howard was “in his own world.” (23 R.R. 31–33). Shirley Howard told Jerry to take Howard away from the house because their grandfather was afraid. (23 R.R. 33). Pamela Fulton testified that Howard looked filthy and kept scratching himself, so she suggested they take him to her house so he could take a bath. (23 R.R. 8). Jerry got some clean clothes for Howard and told him to go take a bath, but Howard just stood there so Jerry turned on the water for him. (23 R.R. 35). When Jerry went to check on Howard’s progress, he found him standing in the shower fully clothed, with the water running, and acting like he was rubbing himself with soap. (23 R.R. 9, 37). Jerry told his brother to get cleaned up because he was going to get a girl over there for him, and Howard agreed to do so. (23 R.R. 38–39). Jerry ended up taking Howard and a cousin out driving until about 3:00 a.m., then dropped them both off at the cousin’s house. (23 R.R. 45). Howard’s mother testified that the following day, she was planning on talking with a judge to have Howard committed to a mental hospital because she felt he was a danger to himself and others. (23 R.R. 68–69).

         2. Testimony of friends and peers.

         Lisa Sanchez, Howard’s 4th grade teacher, testified for the defense at both stages of trial. (22 R.R. 6–9; 25 R.R. 146–56). During the guilt/innocence stage, Ms. Sanchez testified that when Howard was her student, she taught a self-contained classroom, which meant all subjects, all day long. (22 R.R. 8). Ms. Sanchez testified that she knows Howard very well and had known him and his mother before Howard ever became her student because her husband coached him in Little League the year before. (22 R.R. 9). Howard sometimes came to their home after school and played with their pets. (22 R.R. 9). Ms. Sanchez described Howard as “a very outgoing child, very busy, [who] had difficulty staying in his seat and completing his work. Mostly a happy-go-lucky child, but sometimes easily agitated.” (22 R.R. 9). Howard started taking medication for ADHD when he was in her class, and she saw his mental state both on and off medication. (22 R.R. 9).

         At the punishment stage, Ms. Sanchez testified that she taught a transition classroom where it was her job to work with students in math and reading to help bring them up to grade level. (25 R.R. 147). Howard was in her class because he had some learning difficulties, was below grade level, and had problems staying in his seat and getting his work done. (25 R.R. 147–48). Ms. Sanchez testified that Howard did not particularly like math and it took him a while to get his work done. (25 R.R. 149). As a reward, she frequently let Howard sit underneath the table beside her desk where it was quiet and he could finish his work. (25 R.R. 149). Ms. Sanchez further testified that Howard would come to their home and play with their Dalmatians, that he loved the dogs and drew pictures of himself and the dogs, and his pictures were hung up on the walls at school. (25 R.R. 150).

         Michael Sanchez, Lisa Sanchez’s husband, also testified at both stages of trial. (22 R.R. 10–12; 25 R.R. 141–45). At the guilt/innocence stage, Mr. Sanchez testified that he was Howard’s Little League baseball coach when Howard played on the team for eight year olds. (22 R.R. 8). By his account, Howard was a very good athlete and they played him everywhere, from outfield to infield to pitcher. (22 R.R. 11).

         Mr. Sanchez testified that when Howard was on his team, it was prior to his taking medication. (22 R.R. 11). Howard had a hard time focusing on the repetitive drills like batting practice, but he was very eager and very excited to play. (22 R.R. 12). The coaches tried to make it as fun as possible but also wanted everyone to learn, and they had a hard time keeping Howard on task. (22 R.R. 12). Mr. Sanchez testified that after Howard was medicated, his behavior settled down. (22 R.R. 12). He witnessed the positive change in Howard’s behavior first hand when he accompanied his wife’s class on a field trip the following year. (See 22 R.R. 12).

         During the punishment stage, Mr. Sanchez testified that he first met Howard when he was coaching Howard’s older brother, Jerry, and Howard would come out to the practices and ball games to watch his brother play. (25 R.R. 142). He described Howard as “very rambunctious, very excitable” and that he seemed to have a lot of nervous energy. (25 R.R. 143). Mr. Sanchez testified that he and Howard got along pretty well, that Howard came to the Sanchezes’ home a few times, and that Howard was respectful. (25 R.R. 144).

         Joel Neely, a civil structural engineer at DuPont, also testified for the defense at both stages of trial. (22 R.R. 13–16; 26 R.R. 70–75). During the guilt/innocence stage, Mr. Neely stated that he coached Little League baseball, softball, and basketball in Silsbee. (22 R.R. 14). He remembered Howard as probably one of the top three pitchers on his team and described Howard as a “game winner” and a “real good athlete.” (22 R.R. 15). Mr. Neely testified that most of the time, Howard was just one of the regular kids who liked to play baseball and have fun. (22 R.R. 15–16). However, there were occasions in practice when he could tell that Howard was not really motivated and was “not right” that day. (22 R.R. 16). Mr. Neely agreed that Howard’s behavior was stabilized on medication, but when Howard did not take his medication, his behavior became erratic. (22 R.R. 16).

         At punishment, Mr. Neely testified that Howard played on his Rangers team when he was ten or eleven years old. (26 R.R. 71). Mr. Neely had seen Howard play, knew he was a good athlete, and wanted him on his team. (26 R.R. 72). He swapped one of his team’s players for Howard’s older brother Jerry, who was a catcher, knowing that he would get Howard as a pitcher in a year or two because brothers get to play on the same team. (26 R.R. 72). Mr. Neely testified that the Howard brothers were always at practice and always had their gear, and he never had to worry about them being late. (26 R.R. 73). After all these years, Mr. Neely still had fond memories of Howard. (25 R.R. 73).

         Lola Thomas, a nurse manager at Christus St. Elizabeth Hospital, testified at the guilt/innocence stage. (22 R.R. 17). She stated that she had known Howard all his life and noticed his behavior changing over the last four or five years. (22 R.R. 18). Ms. Thomas described Howard as having become very withdrawn and isolated, and that he separated himself from his friends. (22 R.R. 19). Based on her training and experience as a nurse, she believed that Howard’s behaviors were symptomatic of someone with mental problems. (22 R.R. 19).

         Milton Young testified at the guilt/innocence stage that he had lived in Silsbee for the past twenty years, he knows the Howard family, and has known Howard since he was a little boy. (23 R.R. 13). About two weeks before the murder, Mr. Young saw Howard walk down the road and just stand there at the corner staring at folks. (23 R.R. 14). Mr. Young figured that Howard “had a little problem, ” so he talked to the Chief of Police because he figured that Howard needed some help. (23 R.R. 14–15).

         Deputy Sherry Harrison, a jailer with Hardin County Sheriff’s Department, testified at the punishment stage that Howard was the type of inmate who would follow directions, Howard followed her directions, and she never had any personal problems with him. (25 R.R. 135–36).

         Deputy Tyre Thomas, a jailer with the Hardin County Sheriff’s Department, testified at the punishment stage that he went to church with Howard when they were young, and he played baseball with Howard’s older brother, Jerry. (25 R.R. 137–38). The deputy saw Howard at the jail and had contact with him. (25 R.R. 138). Deputy Thomas testified that Howard acted differently from how he did years ago-he now talks to himself, has mood swings, and does not take a bath or brush his teeth unless he is told to do so. (25 R.R. 138). He also testified that he had not had any problems with Howard like fighting at the jail. (25 R.R. 140).

         William Bass testified at the punishment stage that he works for the Westvaco paper mill in Evadale. Mr. Bass testified that he was tired because he had been up for about twenty-four hours and, despite being tired, he wanted to come to court to make a statement for Howard. (26 R.R. 75–76). Mr. Bass knew Howard from Little Dribblers, the Little League basketball team. (26 R.R. 76). He stated that he has four sons and the next-to-the-youngest son was Howard’s classmate and they played basketball together. (26 R.R. 77). According to Mr. Bass, when Howard got the basketball in his hands, everyone knew he was going to score and that is how the team won games. (26 R.R. 76). Mr. Bass was not a coach but just a parent who watched the kids play. (26 R.R. 77). Mr. Bass stated that he had sympathy for the victim’s family and wished he could turn back the hands of time but also felt sorry for both the victim and for Howard. (26 R.R. 77).

         Tonya Moffett, Howard’s first cousin, testified at the punishment stage that she works at Helena Laboratories in Beaumont. (26 R.R. 78). She stated that in February 1989, Howard was a junior groomsman in her wedding and that he had always treated her with courtesy. (26 R.R. 79). Ms. Moffett understood that Howard’s jury could give him the death penalty and stated that both families were in her prayers. (26 R.R. 79).

         Sandra Johnson testified at punishment that she works as a correctional officer at the Stiles Unit in Beaumont, Howard’s mother and grandmother are her neighbors, and she has known Howard ever since his mother brought him home from the hospital as a baby. (26 R.R. 80–81). She understood the jury could give Howard life or death, and had sympathy for the other family. (26 R.R. 81).

         Denise Young testified at the punishment stage that she works in office administration for a Home Improvement warehouse. (26 R.R. 82). She stated that she has known Howard since he was about five years old. (26 R.R. 83). She understood the jury could give Howard life or death, she had sympathy for the victim’s family, and said they were in her prayers. (26 R.R. 83).

         Iby G. Young testified at punishment that she was fourteen years old and a “pretty good student” at Silsbee High School. (26 R.R. 84). Her mother is Denise Young, the witness who testified just before her. (26 R.R. 84). Ms. Young stated that she knew Howard “because he used to come around my house and visit a lot and he used to come play with me and my brother.” (26 R.R. 85). She testified that Howard told her to “always try my best and succeed at whatever I do” and “don’t let anyone tell me that I can’t do or be anything I want to be in life.” (26 R.R. 85). Ms. Young understood that the jury could give Howard life or death, and would pray for both families. (26 R.R. 85).

         Keesha McKinney testified at the punishment stage that she is the twenty-two-year-old daughter of Sandra Johnson, who testified earlier in the penalty phase. (26 R.R. 86–87). She stated that she has known Howard since childhood and they grew up together. (26 R.R. 87). Ms. McKinney testified that they played everything together, including kickball, baseball, and volleyball. (26 R.R. 87). Her aunt had a field right next to her house and all the neighborhood kids would come down there and play. (26 R.R. 87). Ms. McKinney always liked having Howard on her team because he could hit good, kick good, and they would win the game when Howard came to bat. (26 R.R. 87). She understood Howard could get life or death, and she prayed for both families. (26 R.R. 87–88).

         3. Testimony of expert witnesses.

         Dr. James Duncan, a clinical psychologist, testified for the defense at the guilt/innocence stage. (21 R.R. 18–44).[7] He was appointed by the trial court to conduct a mental status examination of Howard. (21 R.R. 25). On March 8, 2001, Dr. Duncan interviewed Howard for an hour-and-a-half to two hours at the Hardin County Jail and assessed his mental functioning, emotional functioning, intellectual functioning, concentration, and memory. (21 R.R. 20–21). He also provided a written report of his evaluation. (34 R.R. at DX-1). Dr. Duncan found Howard’s level of functioning to be inconsistent, i.e., he sometimes gave coherent responses but other times gave unintelligible or inappropriate responses. (21 R.R. 23–24). He testified that Howard would suddenly smile or chuckle when there was no obvious reason for the response. (21 R.R. 24). Dr. Duncan thought Howard might have been responding to an internal stimulus, as if he heard voices. (21 R.R. 25). He also expressed his concern about Howard’s ability to maintain concentration and found evidence of flattening or inappropriate affect. (21 R.R. 25). Dr. Duncan’s intellectual assessment of Howard was that he operates at a borderline to mildly impaired level of functioning. (21 R.R. 26). In his opinion, Howard had some deterioration in intellectual functioning which could be due to an organic condition like a blow to the head or a brain tumor, or else a biological condition like schizophrenia which usually occurs in late teens and early twenties. (21 R.R. 26–27). Given Howard’s age and the nature of symptoms displayed, Dr. Duncan thought Howard may well be exhibiting an emerging thought disorder, possibly schizophrenia. (21 R.R. 27–29). Dr. Duncan testified that Howard appeared to be in need of psychiatric treatment, and that he had questions about Howard’s competency to stand trial. (21 R.R. 29, 41–42). He also spoke to one of the jailers who had observed Howard and learned that his observations of Howard’s behavior were consistent with his own. (21 R.R. 40).

         Dr. Fred Fason, a psychiatrist, testified at the punishment stage regarding his mental health evaluation of Howard. (26 R.R. 9–69). Dr. Fason interviewed Howard twice, the first time in February 2001. (26 R.R. 20). When he began to administer one of the psychological tests, Howard did not know some of the words in the first few questions. (26 R.R. 22). Dr. Fason testified that this caused him to conclude that Howard could not read at the 6th grade level and questioned whether he was intellectually disabled. (26 R.R. 22–23).

         After reviewing Howard’s school records, Dr. Fason discovered, however, that Howard had started out as a “really bright student.” (26 R.R. 24). Howard was in the 90% in math in 2nd grade, but had dropped to the 30% in the 5th grade. (26 R.R. 24). Dr. Fason testified that “it was as if some malignant process started affecting [Howard’s] brain because he went downhill from there.” (26 R.R. 25). Dr. Fason theorized that Howard’s declining performance in school was due to the onset of schizophrenia. (26 R.R. 27). He reviewed Dr. Duncan’s report and testing materials, and testified that some of the behaviors observed by Dr. Duncan were characteristic of schizophrenic disorder. (26 R.R. 26). These included poverty of thought, inappropriateness of affect, and loose associations when Howard was pressed on questioning. (26 R.R. 26–27, 30–33). Dr. Fason believed that Howard’s diagnoses of ADHD and depression during adolescence were more consistent with schizo-affective schizophrenia, and that Howard possibly should have been hospitalized. (26 R.R. 33–34). Dr. Fason called Howard’s physician, Dr. Laine, in Florida, conferred with him about the possibility of schizophrenia, and reported that Dr. Laine thought, in retrospect, that Howard might have had a schizo-affective disorder or prodromal schizophrenia. (26 R.R. 28, 36).

         Dr. Fason did not agree with testimony provided at the guilt/innocence stage by the State’s expert, Dr. Edward Gripon, that Howard’s behaviors were indicative of antisocial personality disorder and instead believed Howard’s lack of caring was more consistent with depression. (26 R.R. 57, 65–66). Dr. Fason also testified about medicines used for treating patients with schizophrenia and stated that newer, atypical anti-psychotic medications are becoming available. (26 R.R. 60).

         C. The State’s case in rebuttal.

         Dr. Edward Gripon, a psychiatrist with twenty-six years experience, testified for the State during its case in rebuttal at both stages of trial. (23 R.R. 92–117; 26 R.R. 98–117). In addition to giving his opinion that Howard was not insane at the time of the crime, Dr. Gripon testified at the guilt/innocence stage that many of the symptoms or behaviors attributed to Howard-such as having wild eyes, flat affect, depression, talking to himself, poor hygiene, and laughing inappropriately-are symptoms of using crack cocaine. (23 R.R. 99–104). Dr. Gripon also found no evidence of Howard having a substantial mental illness or thought disorder when he clinically evaluated Howard in April 2001. (23 R.R. 104). Dr. Gripon stated that Howard’s records contained one reference to Howard being clinically depressed five years ago, but Dr. Gripon did not find evidence of clinical depression when he evaluated Howard prior to trial. (23 R.R. 106–07).

         During the punishment stage, Dr. Gripon testified for the State that Howard was not suffering from schizophrenia, but instead has antisocial personality disorder. (26 R.R. 101–08). He reported that Howard was diagnosed with ADHD in 1993 and treated until 1996; that Howard’s behavior improved and his grades were satisfactory when he took medication; and that when Howard was noncompliant, his grades declined and his behavior deteriorated. (26 R.R. 100–01). Based on his review of Howard’s school records, Dr. Gripon did not find anything to indicate that Howard was suffering from the early signs of schizophrenia. (26 R.R. 101). Dr. Gripon explained that in making a mental health diagnosis in 2000, such diagnosis must be based on the DSM-IV criteria-not psychological literature like that relied on by Dr. Fason. (26 R.R. 107). To be diagnosed with schizophrenia under the DSM-IV, a person must have two of the four criteria and must exhibit those behaviors consistently over a thirty-day period. (26 R.R. 107). Dr. Gripon testified that Howard does not suffer from schizophrenia because, although he does have flat affect, he does not exhibit any of the other three DSM-IV criteria.[8] (26 R.R. 107).

         Ken Thompson, a criminal investigator with the special prison prosecution unit, testified regarding the different types of prison settings for persons convicted of capital murder versus those convicted of murder and receiving a life sentence. (26 R.R. 117–121, 124–25). He also testified about prison gangs such as the Crips, how they recruit members, and the types of illegal activities that gangs are involved in within prisons. (26 R.R. 121–24). Finally, the State presented victim impact testimony from Joann Swartout, the victim’s mother, and Jennifer Buckley, a niece. (26 R.R. 129–37).

         At the close of the punishment hearing, the jury answered the special issues on future dangerousness and mitigation in a manner which required the trial court to assess Howard’s punishment at death by lethal injection. (27 R.R. 61–63; 3 C.R. 573–77, 601–04).

         D. Findings of Fact and Conclusions of Law

         In addition to reviewing the evidence presented during Howard’s capital trial, the Court reviews the Findings of Fact, Conclusions of Law and Order of the 356th District Court of Hardin County, Texas. The state habeas court findings are relevant to the issues of exhaustion and ineffective assistance of counsel. The state habeas court found:

1. The applicant, Jamaal Howard, was indicted and convicted of the felony offense of capital murder in cause number 15114 in the 356th District Court of Hardin County, Texas.
2. The applicant was represented during trial by counsel Tyrone Moncriffe.
3. On the 25th day of April, 2001, after the jury affirmatively answered the first special issue, and negatively answered the second special issue, the trial court assessed punishment at death.
4. The Court of Criminal Appeals affirmed [Howard’s] conviction in a published opinion delivered October 13, 2004. Howard v. State, 153 S.W.3d 382 (Tex.Crim.App. 2004).

         First Ground for Relief: [Howard’s] execution would violate the Eighth Amendment’s prohibition against the execution of the mentally retarded.

         Findings of Fact

5. [Howard] was interviewed by Dr. James Duncan, Ph.D., a licensed clinical psychologist.
6. During his education years, [Howard] was never placed in any type of class for students requiring special education.
7. [Howard] never failed any class nor educational year, and thus was never required to repeat any class nor educational year.
8. At the time of the offense sub judice, [Howard] knew the difference between right and wrong.
9. [Howard] informed Dr. Duncan that he attempted a robbery in Silsbee, Texas.
10. [Howard] informed Dr. Duncan that he intentionally shot a woman during the robbery, that he saw the shot hit her, and that he saw her fall on the floor.
11. [Howard] informed Dr. Duncan that he took money from the store and ran to his house.
12. [Howard] informed Dr. Duncan that he committed the offense because he was attempting to get money.
13. [Howard] was found to know the difference between right and wrong when he committed the offense.
14. [Howard] was able to provide Dr. Duncan with detailed familial history and denied any type of mental disorder.
15. [Howard] acted deliberately in committing the offense of capital murder.
16. [Howard] was subjected to only a portion of an I.Q. examination, which resulted in only an estimate of [Howard’s] I.Q.
17. [Howard] began as a bright student in school, but suffered from attention-deficit disorder, which responded well to medication.
18. [Howard’s] grades and behavior declined when he refused to take this [sic] medication for attention-deficit disorder.

         Conclusions of Law

19. [Howard’s] intellectual functioning and behavior are impaired to a slight degree.
20. [Howard’s] impairments do not rise to the level of mental retardation, and that [Howard] is not mentally retarded.
21. This issue has been previously litigated on direct appeal before the Court of Criminal Appeals.
22. The issue of [Howard’s] mental status has been previously litigated at both trial and direct appeal.
23. There is no controverted, previously unresolved factual issue material to the legality of [Howard’s] confinement.
24. [Howard] is not mentally retarded for purposes of the Eighth Amendment to the United States Constitution.
25. The execution of [Howard] is not barred by the Eighth Amendment to the United States Constitution.

         Second Ground for Relief: [Howard’s] death sentence violated the Sixth Amendment under Atkins and Ring, because the jury’s verdict did not include a determination of an essential element of capital murder that [Howard] is not mentally retarded.

         Findings of Fact

26. [Howard] was indicted for and convicted of the offense of capital murder for committing the murder of the complainant in the course of committing the robbery of the complainant.
27. [Howard] explicitly had no objections to the court’s charge to the jury at the guilt/innocence phase, which included in its definitions and application paragraph the essential elements of the offense of capital murder.
28. [Howard] objected to a portion of the court’s charge to the jury on punishment, but not regarding the issue of mental retardation.
29. [Howard] did not request a charge to the jury on the issue of mental retardation.

         Conclusions of Law

30. Mental retardation is not an essential element of the offense of capital murder.
31. [Howard] is procedurally barred from raising such a contention on habeas as he did not object to the trial court’s charge to the jury on the basis that it did not contain an issue of mental retardation.
32. The jury is not required to explicitly find [Howard] is not mentally retarded.
32.[9] [Howard’s] sentence of death does not violate the Sixth Amendment to the United States Constitution.

         Third Ground for Relief: [Howard] was denied a fair and impartial jury trial because of competing actual conflict of interests during his trial.

         Findings of Fact

33. [Howard] was previously represented by counsel who, at the time of the trial herein, was an Assistant District Attorney for Hardin County, Mr. Henry A. Coe, III.
34. Coe’s representation of [Howard] was prior to his employment as a Hardin County Assistant District Attorney.
35. Coe had no independent memory of having met nor spoken to [Howard] during his short representation of [Howard].
36. After learning of his previous representation of [Howard], Coe had no further involvement in the prosecution of [Howard] herein.
37. Coe did not possess any confidential information which could be used against [Howard] in the prosecution for capital murder.
38. [Howard] did not object to Coe representing the State of Texas if the extraneous offense in which Coe did represent [Howard] was not used as an extraneous offense herein.
39. [Howard’s] trial counsel was initially retained to represent [Howard] herein.
40. During the pendency of the trial, [Howard] became indigent and the court appointed [Howard’s] trial counsel to continue his representation herein.

         Conclusions of Law

41. The court finds there was no conflict between [Howard’s] previous representation by Henry A. Coe, III, and Coe’s employment as a Hardin County Assistant District Attorney.
42. The court finds there was no conflict between [Howard] and his trial counsel.
43. The court finds [Howard] was not denied a fair and impartial trial.

         Fourth Ground for Relief: [Howard’s] constitutional rights pursuant to the Eighth and Fourteenth Amendments to the United States Constitution were violated by the application of Article 37.071, Tex. Code Crim. Proc.

         Findings of Fact

44. [Howard] did not object to the court’s charge given to the jury in punishment, except for one unrelated issue.
45. [Howard] did not raise a complaint based upon Art. 37.071. Tex. Code Crim. Proc. during trial.

         Conclusions of Law

46. The court finds [Howard’s] constitutional rights pursuant to Eighth and Fourteenth Amendments to the United States Constitution were not violated.

         Fifth Ground for Relief: [Howard] was not provided a fair hearing at the guilt/innocence phase because his attorney provided ineffective assistance of counsel.

         Sixteenth Ground for Relief: [Howard’s] trial attorney did not render reasonable effective assistance of counsel at the most crucial state of [Howard’s] trial: the punishment phase. This failure actually and substantially prejudiced [Howard] in violation of the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Art. I, § 10 and § 19 of the Constitution of the State of Texas.

         Findings of Fact

47. [Howard’s] trial counsel presented evidence to the jury regarding [Howard’s] mental state and claim of mental retardation.
48. [Howard’s] trial counsel presented expert testimony regarding [Howard’s] mental state from Dr. James Duncan, Ph.D., a licensed psychologist.
49. [Howard’s] trial counsel presented non-expert testimony from [Howard’s] prior educators, coaches, friends, and family all regarding [Howard’s] behavior and mental capabilities in their individual interactions with him.
50. [Howard] was provided his Miranda rights by law enforcement prior to providing his statement.
51. [Howard] was cognizant of what he was doing at the time he gave his statement.
52. [Howard] indicated in writing that he was aware of his Miranda rights.
53. [Howard] did not object to the introduction of his statement into evidence.
54. [Howard’s] trial counsel cross examined law enforcement as to [Howard’s] behavior while providing his statement.
55. [Howard’s] trial counsel cross examined law enforcement as to the voluntariness of [Howard’s] statement.
56. [Howard] placed before the jury the issue of [Howard’s] mental issues through both cross examination of state’s witnesses and direct examination of defense witnesses.
57. [Howard] challenged before the jury the voluntariness of [Howard’s] statement through the cross examination of state’s witnesses.

         Conclusions of Law

58. [Howard’s] statement was given knowingly, intelligently, and voluntarily.
59. [Howard] was not mentally ill nor mentally retarded.
60. [Howard’s] trial counsel’s performance did not fall below an objective standard of reasonableness.
61. [Howard’s] trial counsel’s performance was not deficient.
62. [Howard’s] trial performance did not prejudice [Howard’s] defense.
63. [Howard’s] trial counsel provided effective assistance of counsel.

         Sixth Ground for Relief: [Howard’s] state and federal constitutional rights were violated when his statement was taken involuntarily.

         Findings of Fact

64. [Howard] was provided his Miranda rights by law enforcement prior to providing his statement.
65. [Howard] was cognizant of what he was doing at the time he gave his statement.
66. [Howard] indicated in writing that he was aware of his Miranda rights.
67. [Howard] did not object to the introduction of his statement into evidence.
68. [Howard’s] trial counsel cross examined law enforcement as to [Howard’s] behavior while providing his statement.
69. [Howard’s] trial counsel cross examined law enforcement as to the voluntariness of [Howard’s] statement.

         Conclusions of Law

70. [Howard’s] state and federal constitutional rights were not violated as [Howard’s] statement was provided intentionally, knowingly, and voluntarily.

         Seventh Ground from Relief: [Howard] was denied effective assistance of counsel on his appeal.

         Findings of Fact

71. [Howard’s] appellate counsel raised nine grounds of error on direct appeal.
72. Two justices dissented to the affirmation of the conviction herein by the Court of Criminal Appeals.
73. The Court finds [Howard’s] appellate counsel raised the errors which were arguably supported by the record.
74. The Court finds the performance of [Howard’s] appellate counsel was not deficient.
75. The Court finds that [Howard] was not prejudiced by his appellate counsel’s actions.

         Conclusions of Law

76. [Howard] received effective assistance of counsel on direct appeal.

         Eighth Ground for Relief: [Howard] was denied due process and a fair and impartial jury trial because of jury misconduct.

         Findings of Fact

77. The Court finds that [Howard] does not claim that any individual juror obtained knowledge about his competency, and that knowledge affected any individual juror’s deliberations.
78. The Court finds that [Howard] does not claim that any individual juror with knowledge of [Howard’s] competency shared his independent knowledge with any other juror.
79. This Court finds that [Howard] does not claim that the jury was aware of [Howard’s] competency or that [Howard’s] competency entered into the jury’s deliberations.
80. [Howard] does not allege that knowledge of [Howard’s] competency affected the jury’s verdict in either phase of the trial.
81. The Court finds that [Howard] has not shown jury misconduct.

         Conclusions of Law

82. [Howard] was not denied due process and did receive a fair and impartial jury, as there was no jury misconduct.
Ninth Ground for Relief: Article 37.071 because it prohibits against informing jurors that a single holdout juror could cause the imposition of a life sentence violated [Howard’s] rights under the Eighth and Fourteenth Amendments to the United States Constitution.
Tenth Ground for Relief: The trial court’s instructions at the punishment phase undermined the jury’s sense of responsibility for the consequences of its verdict.
Eleventh Ground for Relief: In view of the many different capital sentencing schemes that have been in operation in Texas since 1989, the Texas death penalty has been arbitrarily imposed, and thus is unconstitutional under the Eighth Amendment and Equal Protection Clause of the Fourteenth Amendment.
Twelfth Ground for Relief: The death penalty, at least as presently administered in Texas, is cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution.
Fifteenth Ground for Relief: The Texas capital murder sentencing statute’s definition of “mitigation evidence” is facially unconstitutional because it limits the Eighth Amendment concept of “mitigation” to factors that render a capital defendant less morally ...

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