United States District Court, E.D. Texas, Beaumont Division
MEMORANDUM OPINION AND ORDER OF DISMISSAL
L. MAZZANT UNITED STATES DISTRICT JUDGE.
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.
FACTUAL BACKGROUND OF THE CASE
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
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).
PROCEDURAL HISTORY OF THE CASE
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,
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,
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).
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.
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).
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).
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 (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,
GROUNDS FOR RELIEF
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 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
STATE COURT PROCEEDINGS
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:
The State’s case-in-chief.
Howard’s assault of a teacher, disregard for authority
and school rules, and persistent
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).
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).
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.
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).
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.
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).
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.
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).
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).
Howard’s criminal history and prior bad acts.
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.
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).
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.
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).
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).
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).
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).
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).
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).
Howard’s case for mitigation.
both stages of trial, Howard presented testimony from lay
witnesses and experts regarding his background and mental
Testimony of family members.
Howard’s background and mental status.
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).
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).
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).
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).
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).
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).
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
Howard’s behavior the night before the capital
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).
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).
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
Testimony of friends and peers.
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).
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).
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.
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).
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).
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).
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).
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).
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).
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).
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).
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).
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).
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).
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
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
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.
Testimony of expert witnesses.
James Duncan, a clinical psychologist, testified for the
defense at the guilt/innocence stage. (21 R.R.
18–44). 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).
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.
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).
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).
The State’s case in rebuttal.
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).
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. (26 R.R. 107).
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).
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).
Findings of Fact and Conclusions of Law
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
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,
2. The applicant was represented during trial by counsel
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.
Ground for Relief: [Howard’s] execution
would violate the Eighth Amendment’s prohibition
against the execution of the mentally retarded.
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
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
16. [Howard] was subjected to only a portion of an I.Q.
examination, which resulted in only an estimate of
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
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
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]
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.
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.
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
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.
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.
[Howard’s] sentence of death does not violate the Sixth
Amendment to the United States Constitution.
Ground for Relief: [Howard] was denied a fair
and impartial jury trial because of competing actual conflict
of interests during his trial.
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
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.
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
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
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.
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.
46. The court finds [Howard’s] constitutional rights
pursuant to Eighth and Fourteenth Amendments to the United
States Constitution were not violated.
Ground for Relief: [Howard] was not provided a
fair hearing at the guilt/innocence phase because his
attorney provided ineffective assistance of counsel.
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.
47. [Howard’s] trial counsel presented evidence to the
jury regarding [Howard’s] mental state and claim of
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
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
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
55. [Howard’s] trial counsel cross examined law
enforcement as to the voluntariness of [Howard’s]
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
57. [Howard] challenged before the jury the voluntariness of
[Howard’s] statement through the cross examination of
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
62. [Howard’s] trial performance did not prejudice
63. [Howard’s] trial counsel provided effective
assistance of counsel.
Ground for Relief: [Howard’s] state and
federal constitutional rights were violated when his
statement was taken involuntarily.
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
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
69. [Howard’s] trial counsel cross examined law
enforcement as to the voluntariness of [Howard’s]
70. [Howard’s] state and federal constitutional rights
were not violated as [Howard’s] statement was provided
intentionally, knowingly, and voluntarily.
Ground from Relief: [Howard] was denied
effective assistance of counsel on his appeal.
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.
76. [Howard] received effective assistance of counsel on
Ground for Relief: [Howard] was denied due
process and a fair and impartial jury trial because of jury
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
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
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
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
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
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 ...