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NO. 57,060-01




Cochran, J., delivered the order for a unanimous court.


Applicant presents thirty-seven allegations, including a claim of mental retardation, in his original application for habeas corpus relief in this death-penalty capital-murder case. The trial judge entered findings of fact and conclusions of law and recommended that relief be denied. We have reviewed the record, and we adopt the trial judge's findings and conclusions. Therefore, we deny relief. We also dismiss applicant's "Motion to Consider Additional Evidence of Mental Retardation" because that supplemental material was improperly and untimely filed with this Court instead of the convicting court. Article 11.071 (1) does not authorize piecemeal submission of evidence, nor does it permit the original filing of evidence with this Court rather than the convicting court. Because the trial judge's written findings were so thorough and complete, we need discuss only applicant's mental- retardation claim and the motions applicant filed directly in this Court.

I. Applicant was indicted for the robbery and murder of Geraldine Davidson on January 26, 2000. In November 2002, a jury convicted him of that capital murder and, based upon the jury's answers to the punishment special issues, the trial judge sentenced applicant to death.

The evidence at trial showed that the 20-year-old applicant, a member of the Southside Cryps gang, planned and executed a burglary at the Palestine, Texas, home of Mrs. Davidson, an 84-year-old widow and retired teacher. He had burglarized Mrs. Davidson's home before, but this time he enlisted the aid of his sixteen-year-old wife and thirteen-year-old cousin. Mrs. Davidson returned home during the burglary, so applicant and his cohorts tied her up with duct tape, put her into the trunk of her car, and then spent the afternoon driving around in her car buying and smoking formaldehyde-laced marijuana cigars. Later, they picked up applicant's younger brother and stopped at a Jack-in-the-Box, where applicant sent the others inside to buy food while he waited, outside surveillance camera range, in Mrs. Davidson's car. After the foursome ate and smoked more marijuana, applicant drove the car to the Neches River. He and his younger brother pulled Mrs. Davidson out of the trunk, tied her legs to a cinder block, beat her with her gardening shovel, kicked her in the head, and finally threw her in the river to drown. After dropping off his three cohorts, applicant "rented" Mrs. Davidson's car to friends in return for two rocks of crack cocaine. His friends were later pulled over in Mrs. Davidson's car, and they told the police about applicant "renting" them the stolen car. Police came to applicant's house to arrest him but he fled. The officers arrested applicant later that day, after he and his brother were found hiding in a neighborhood "dope house." Applicant was wearing Mrs. Davidson's gold wedding ring when he was booked into jail.

We affirmed applicant's conviction and sentence on direct appeal. (2) Meanwhile, on December 3, 2002, applicant filed his original writ of habeas corpus with the presiding judge of the convicting court. (3) Accompanying his writ application were two volumes of material, including various affidavits, treatise excerpts in support of his mental-retardation claim, documents from the underlying trial, and published law review and behavioral science articles. The State filed its response five months later. On June 23, 2003, after consulting with the attorneys, the trial judge entered an order that found that there were no factual issues that could not be resolved by using the trial record and the written writ materials. Thus he decided that a live evidentiary hearing was unnecessary. He ordered both the State and applicant to file proposed findings of fact and conclusions of law. On July 14, 2003, applicant filed an additional affidavit by Dr. Windel Dickerson who, based on a personal examination of applicant and his review of various other materials, concluded that applicant was mildly mentally retarded. Two weeks later the trial judge signed an order permitting both the State and applicant to acquire and file additional educational records for applicant. On that same day, the trial judge denied applicant's proposed findings of fact and conclusions of law and signed the State's proposed findings.

On August 7, 2003, applicant's special-education records were filed with the convicting court, and, one month later, applicant filed a videotaped statement made by Dr. Dickerson. (4) All of these materials were then forwarded to this Court on September 10, 2003. Applicant has continued to file additional motions in this Court, culminating, on May 19, 2004, with a "Motion to Consider Additional Evidence of Mental Retardation." Attached to this motion is a letter from Dr. Dickerson and an accompanying psychological-services test report, again setting out his opinion that applicant is mentally retarded.


Applicant contends that he is mentally retarded and thus, under Atkins v. Virginia, (5) he is exempt from execution. Here, as in Hall v. State, (6) the convicting court did not hold a live evidentiary hearing on applicant's post-conviction habeas corpus allegation of mental retardation. But, also as in Hall, the issue of mental retardation was fully litigated during the punishment phase of applicant's original capital-murder trial. Although applicant's trial took place before the Supreme Court decided Atkins, his able trial counsel presciently predicted the outcome of that case and presented extensive mental-retardation evidence as calling for a "Yes" answer to the mitigation special issue submitted to the jury. Applicant's habeas writ relies almost exclusively upon that extensive testimony. Although it is advisable to have an evidentiary hearing to determine mental-retardation claims raised for the first time in post-Atkins habeas applications, (7) it is not necessary where, as here, the habeas applicant relies primarily upon trial testimony. In this case, both sides had an opportunity to fully develop the pertinent facts at trial, and the habeas judge had an opportunity to assess the credibility and demeanor of the witnesses when he presided over the trial. Although the discrete fact of mental retardation was not an ultimate issue at the capital-murder trial, the punishment phase testimony fully developed that contested fact. (8)

During the punishment phase of applicant's trial, the defense called applicant's father, mother, and two sisters. Significantly, none of these witnesses-the persons who knew him best during his youth-testified that they had thought, during his formative years, that applicant was mentally retarded. (9) Applicant's father remembered that applicant had twice suffered head injuries as a child, but he did not know whether he suffered any brain injury as a result. He testified that applicant had had school truancy problems and usually got into trouble alone. While applicant's father stated that applicant had a history of seizures, his sister said that she did not believe that applicant had ever suffered seizures. Applicant's elder sister, a TDCJ-CID prison guard, said that there was very little good that she could say about him other than the fact that he attended church. Applicant's mother testified that applicant failed kindergarten and third grade, that he was sometimes placed in special-education classes, and that he was "very slow and had a learning disability." He missed a lot of school because he had headaches, felt bad about himself, and because she could not drive him to school all the time, as she had to work two jobs. She made him move out of her home about a year before the murder because he had sexually assaulted her adopted daughter.

The defense also called a psychologist, a pediatric neurologist, and a psychiatrist to testify to applicant's mental condition and abilities. Dr. Andrews, the psychologist, testified that applicant has borderline intellectual functioning. He stated that applicant's academic knowledge is "low" and that he reads at an early high-school level, and has a fifth-grade spelling ability and sixth-grade math ability. When applicant was 14 years old, his full-scale IQ score on the Wechsler Intelligence Scale for Children was 71, and he scored a 72 on the TONI. (10) The next year he received a 78 full-scale IQ score on the Wechsler and an 86 on the TONI-2. No one discussed the significance of this improvement in IQ scores.

Applicant dropped out of school in the ninth grade. His teachers consistently noted his high truancy rate as an educational impediment. Dr. Andrews stated that applicant has adaptive deficits and a low ability to complete planning and organization tests. He did not believe that applicant was faking mental deficiencies, but he did think that applicant is "a chronic liar" and that his manipulative conduct in jail demonstrated adaptive behavior. (11) Dr. Andrews concluded that applicant is in the "borderline mentally retarded range" and would not resolve complex situations very well. (12) Dr. Andrews also stated that applicant has an anti-social personality.

Dr. Wise, a pediatric neurologist, reviewed applicant's EEG (electroencephalogram) and testified that applicant has an abnormal neurological status, a generalized slowing of brain function. He stated that the brain changes as a person ages and is influenced by such things as diet, smoking, drug use, and trauma. He had not personally examined applicant.

Dr. Barry Mills, the chief psychiatrist for the Maximum Security Behavior Management Program at Vernon State Hospital, examined applicant and concluded that applicant has two subdural hematomas (blood clots on both sides of his brain) which have caused brain damage. As a result, applicant has poor judgment, an inability to learn from his mistakes or to change his actions in response to complicated situations, and an inability to control frustration or manage himself. Dr. Mills acknowledged that there is nothing in applicant's medical records to confirm any head injury. He did agree that smoking embalming fluid may cause EEG changes. Dr. Mills stated that applicant was not malingering during his examination but that he had been "manipulative and dishonest throughout a large part of his life." He testified that "I did not say [applicant] was mentally retarded. I said he was borderline mentally retarded, essentially functioning at that level, but his I.Q. score was not mentally retarded." He agreed that applicant had never been diagnosed by anyone as "borderline mentally retarded" until after he was charged with capital murder, and he stated that applicant's TONI IQ of 86 was "a more accurate measure of [applicant's] intelligence."

In rebuttal, the State called Dr. David Self, a psychiatrist, who had also examined applicant. In his opinion, applicant was malingering and faking his psychiatric symptoms. He stated that, during his interview, applicant spontaneously launched into a narrative of various mental complaints, including visual and auditory hallucinations, depression, an attempted suicide, and a history of head trauma. In Dr. Self's opinion, applicant's intellectual functioning is in the borderline-to-low average range and he does not have significant adaptive deficits. Dr. Self described applicant's letter-writing campaign from jail to various friends and relatives asking them to smuggle contraband to him as adaptive, albeit anti-social, behavior. In his opinion applicant's lack of empathy, his callous disregard for others, and his prior conduct, including his sexual assault of his adopted sister, his shooting at his ex-girlfriend, and his assaults on his wife and children, were traits consistent with a psychopathy. Dr. Self stated that applicant's MRI showed evidence of a prior "head trauma," but no evidence of any brain damage. He concluded that applicant has an anti-social personality disorder, but is not mentally retarded.

Additional evidence was timely submitted for the convicting court's consideration on the writ. This evidence included most of applicant's school records, his two written statements to police after his arrest for this murder, twenty inmate-request forms that applicant submitted while he was in jail awaiting trial, letters that he wrote to family and friends from jail, a letter that he had written from jail to a venireperson whose name and address he had memorized in the courtroom from his attorney's jury list, and applicant's medical and mental-health records from TDCJ-CID.

Applicant's school records showed that, in almost every year, he missed a large number of school days, but nonetheless he achieved passing grades in almost all classes. Seventeen "Notices of Concern" were sent to his family during one school year; they noted that applicant failed to complete assignments, failed to make up missed tests, and that he exhibited "excessive absences" and "lack of effort."

Applicant's jail letters are clear, coherent, and clever. In one, he explains to his cousin how to smuggle photographs of his three girlfriends into the jail by taping them to extra pages in an incoming letter. In letters to his brother, applicant writes jocularly in gang slang. In letters to his mother, on the other hand, applicant writes in standard English, without slang. He uses a polite tone as he instructs her on how to smuggle tobacco and rolling papers into the jail by putting them in envelopes labeled "Legal Mail," and having them delivered by his defense investigator. He tells his mother that he is working on getting joint custody of his son for her and his wife's mother, and asks her to call the defense investigator and have him bring applicant a small tape recorder so he can record his wife's custody concessions on the phone.

Applicant's TDCJ-CID medical and mental-health records show that applicant achieved an IQ result of 84 on a TONI test when he arrived on death row which, according to the records, "precluded other need for I.Q. testing."

The trial judge entered findings of fact, based on his review of the trial and writ evidence, that applicant failed to present a cognizable claim of mental retardation because he failed to show facts that prove he is mentally retarded. The trial judge found that Dr. Dickerson's affidavit concluding that applicant is mentally retarded was untimely submitted and therefore should not be considered. In the alternative, he found it unpersuasive. (13)

Although the trial court did not have the benefit of this Court's opinion in Ex parte Briseno, (14) it followed the methodology and legal standards set out in that opinion. Applicant claims that his execution would violate the Supreme Court's rulings in Atkins and Ring v. Arizona (15) unless a jury has found, beyond a reasonable doubt, that he is not mentally retarded, brain damaged, or otherwise lacking in mental culpability. This is a claim that we rejected in Briseno, (16) and it is a claim that the habeas judge in this case rejected as well.

In sum, although there was some evidence in the trial and writ record suggesting the possibility of mild mental retardation, there was also ample evidence in the record supporting the trial court's finding that applicant is not mentally retarded. We conclude that the trial court did not abuse its discretion in reaching this factual conclusion. Therefore, we deny applicant relief on his mental retardation claim.


We also dismiss applicant's recently filed "Motion to Consider Additional Evidence of Mental Retardation" because we do not have statutory authority to consider additional evidence.

Applicant's writ application, the State's response, all associated exhibits, and the trial court's written findings of fact and conclusions of law were received by this Court on September 10, 2003. Article 11.071, § 9(f) explicitly states that once all of the appropriate materials have been timely submitted to the trial court and the trial court has made its written findings of fact and conclusions of law, the clerk of the convicting court shall immediately transmit these materials to this Court. Then, under article 11.071, § 11, this Court shall "expeditiously review" the habeas application. We may (but need not) set the case for oral argument and we may (but need not) request further briefing. (17) "After reviewing the record" as it was developed in the trial court, this Court "shall enter its judgment remanding the applicant to custody or ordering the applicant's release, as the law and facts may justify." (18)

In the present case, applicant asks us to act outside of our statutory authority. On November 24, 2003, more than a month after the clerk of the trial court transmitted all of the appropriate writ materials to this Court, applicant filed a motion with this Court entitled "Motion to Declare Simpson Mentally Retarded under Atkins or Alternatively, Motion to Remand for Evidentiary Hearing to Determine Mental Retardation." This motion alleged that applicant's counsel was "trying to set up an appointment with Dr. Dickerson to re-examine Mr. Simpson." (19) He requested that this Court stay further action until Dr. Dickerson could file a new report directly with this Court.

On February 9, 2004, this Court received applicant's "Supplemental Reply to State's Response to Petitioner's Mental Retardation Summary." This document stated that Dr. Dickerson had completed his second examination of applicant and a preliminary report was attached. Although the document was filed with this Court, applicant asked that the habeas judge read the attached preliminary report and make supplemental findings. We do not know whether the habeas judge received and read this document, but he did not file any supplemental findings, presumably because he did not have statutory authority to do so.

Finally, on May 19, 2004, applicant filed his Motion to Consider Additional Evidence of Mental Retardation. He states that this motion is a supplement to the motion he filed with this Court on November 24, 2003. According to that motion and Dr. Dickerson's attached report, the results of this second mental-status test were obtained under better conditions than those under which earlier tests were taken. Dr. Dickerson again opines that applicant is mildly mentally retarded and suffers from organic brain damage.

There is no provision in article 11.071 that permits either the State or the habeas applicant to submit original evidence directly to this Court. Evidentiary affidavits, letters, transcripts, or other documents relating to a habeas claim should not be attached to motions or briefs, and they shall not, and will not, be considered by this Court. As we recently stated in another context:

An appellate court may not consider factual assertions that are outside the record, and a party cannot circumvent this prohibition by submitting an affidavit for the first time on appeal. While the record may be supplemented under the appellate rules if something has been omitted, the supplementation rules cannot be used to create new evidence. Moreover, an appellate court's review of the record itself is generally limited to the evidence before the trial court at the time of the trial court's ruling. (20)

In the ordinary case, if this Court were to consider evidentiary materials that were never submitted to, or considered by, the habeas court, the statutory purpose in having the convicting court gather the pertinent evidence and make the appropriate written findings of fact would be entirely frustrated. (21) The legislative framework of article 11.071 contemplates that the habeas judge is "Johnny-on-the-Spot." He is the collector of the evidence, the organizer of the materials, the decisionmaker as to what live testimony may be necessary, the factfinder who resolves disputed factual issues, the judge who applies the law to the facts, enters specific findings of fact and conclusions of law, and may make a specific recommendation to grant or deny relief. This Court then has the statutory duty to review the trial court's factual findings and legal conclusions to ensure that they are supported by the record and are in accordance with the law. (22) We are not the convicting trial court, and we are not the original factfinders. It is generally fruitless, if not counterproductive, to file original evidentiary materials relating to a habeas claim with this Court rather than the trial court. Although we might have the implicit authority to consider evidentiary materials filed directly with this Court, normally the jurisprudential considerations of efficiency, effectiveness, and comity to the habeas court counsel against such consideration. Because applicant has failed to offer proof of any compelling and extraordinary circumstances, we decline to consider the evidentiary materials that he has filed directly with this Court.

Therefore, based upon our review and our adoption of the trial court's ninety-five pages of thorough and comprehensive findings of fact and conclusions of law which were submitted to this Court, we deny relief and dismiss applicant's motions filed directly in this Court.


Filed: June 30, 2004.


1. Tex. Code Crim. Proc. art. 11.071.


Simpson v. State, 119 S.W.3d 262 (Tex. Crim. App. 2003).

3. In his writ application, applicant candidly admits that his claims 20-37 are ones that have been previously rejected by this Court and "are therefore segregated at the end of the application and need not delay the Court." Nonetheless, we have carefully reviewed those claims, as well as all of his other non-mental retardation claims, and deny them based upon the trial court's findings of fact and conclusions of law.

4. Applicant submitted these materials to the trial court

after that court had filed its findings of fact and conclusions of law and thus they are not discussed within the trial court's written findings. Nonetheless, we have independently reviewed the materials and conclude that they do not present any significant additional information that was not already before the trial court at the time he made his findings.

5. 536 U.S. 304 (2002).

6. ___ S.W.3d ___, ___ 2004 Tex.Crim.App. LEXIS 817 (Tex. Crim. App. 2004).


See Hall, __ S.W.3d at ___ (Price, J., concurring) (noting that "generally, for the review of a contested Atkins v. Virginia claim, the trial court will need to hold a live hearing and not base its decision solely on affidavits submitted by the parties"); id. at ___, (Johnson, J., dissenting) (noting that "[n]o trier of fact in this case has ever heard live testimony, subject to testing or cross-examination, on the specific issue of whether appellant is mentally retarded"); and id. at __ (Holcomb, J., dissenting) (noting that capital murder defendant "was not provided with a live evidentiary hearing ... [and] was not able to cross examine the affiants and the judge was not able to evaluate their credibility").


See Hall, ___ S.W.3d at ___. In Hall, as in the present case, mental retardation was not an ultimate discrete fact litigated during the capital-murder punishment phase. We noted that:

the parties introduced a significant amount of evidence regarding whether appellant was mentally retarded, mental retardation was not considered as a discrete issue by the trial judge or the jury. Although the parties certainly had incentive to litigate the question of appellant's intelligence, the litigation occurred as a question of degree: defense counsel could contend that appellant's low intelligence mitigated his moral culpability even if it did not amount to mental retardation, while the State could contend that, even if appellant were in the mental retardation range, he appreciated the consequences of his actions to a sufficient degree to deserve the death penalty. Had mental retardation been an ultimate issue, the parties may well have litigated the issue even more robustly than they did, as the issue would be a question of kind (which side of the mental divide appellant was on) rather than degree (how much did appellant appreciate the immorality of his conduct).

Id. Nonetheless, during this writ proceeding, both parties could, and did, present whatever additional evidence they believed supported or negated the fact of mental retardation. It was only after consulting with the attorneys that the trial judge determined that a live evidentiary hearing was not necessary.

9. LaTonya, one of applicant's sisters, did testify that applicant was twice held back in elementary school and "had a bunch of problems." She testified that he missed a lot of school: "I'm not saying he was retarded, but I'm just saying that he was slow." Applicant's other sister, Tangela, testified that applicant was slow "as far as educational level," but not in other things.

10. Test of Non-Verbal Intelligence.

11. Dr. Andrews agreed that applicant's conduct in writing his mother-in-law from jail saying that he would serve his time for this capital murder in a mental hospital by telling "my lawyer and the judge that I need some help and I'm having problems and seeing things and hearing things" was goal-directed and showed a knowledge of the legal system and how to avoid the death penalty. Dr. Andrews stated that he did not believe applicant when applicant told him he had auditory and visual hallucinations. Applicant also told Dr. Andrews that he had been hospitalized for psychiatric problems, but Dr. Andrews could not find corroboration for this assertion.

12. Concerning the issue of "significant adaptive deficits," Dr. Andrews explained:

Well, he was not able to function well in school. He was not able to function well in a work setting. These could be adaptive deficits. They might be problems with personality as well. I am not terming him mentally retarded but I do think he has some adaptive deficits.

He noted that applicant had been diagnosed with a learning disability, not mental retardation, by school officials based upon his IQ test of 78 and TONI results of 86.

13. Specifically, he found that the prison testing conditions "likely affected" the test scores; the IQ score of 59 that Dr. Dickerson reached was completely at odds with all prior test scores; only portions of tests were given; separate tests for malingering were not given; Dr. Dickerson's assertion that applicant was treated as a mentally retarded person in school was contrary to all other evidence which indicated applicant had a learning disability and truancy problem; Dr. Dickerson appeared not to have reviewed all of the trial testimony; his "adaptive behavior" assessment did not describe behavior that is necessarily the result of mental retardation; Dr. Dickerson's assessment was based largely upon applicant's self-reporting, but applicant's veracity to mental-health experts had been called into serious question by other experts. Dr. Dickerson's videotaped interview, which was submitted to the trial court after the written findings were signed, does not differ substantively from his affidavit.


Ex parte Briseno, ___ S.W.3d ___ , 2004 Tex. Crim. App. LEXIS 199 (Tex. Crim. App. 2004).

15. 536 U.S. 584 (2002) (holding that "if a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact-no matter how the State labels it-must be found by a jury beyond a reasonable doubt").


Ex parte Briseno, ___ S.W.3d at __ (concluding that Ring is inapplicable to claims of mental retardation because "[a] lack of mental retardation is not an implied element of the crime of capital murder which the State is required to prove before it may impose a sentence above the maximum statutory punishment for that crime").

17. Tex. Code Crim. Proc. art. 11.071, § 11.



19. Ostensibly, applicant's counsel wanted this re-examination because the trial judge discounted Dr. Dickerson's first untimely filed affidavit for the various reasons set out earlier.


Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004). Cf. Ex parte Harris, 825 S.W.2d 120 (Tex. Crim. App. 1991) (noting that Penry claims are limited to evidence contained in the record. "Evidence outside of the record is wholly irrelevant to such claim"); and Pye v. State, 71 Tex. Crim. 94, 101, 154 S.W. 222, 226 (1913) ("Should we consider these ex parte affidavits it would be necessary that we have the State served with a copy of them, and permit it to introduce evidence in rebuttal thereof; in fact, reopen the case and convert this court into a trial court on the merits of the case, and then substitute our finding on the facts as thus presented to us for that of the verdict of the jury. This we are not authorized to do. If such was the rule, very nearly every case that was appealed to this court would have to be tried de novo. This would be wholly impracticable, and it was never contemplated that this court should become a trial court").


See Pye, 71 Tex. Crim. at 101, 154 S.W. at 226.


See Hall, ___ S.W.3d at ___ (stating, in context of mental retardation claim raised in habeas application, that "we afford almost total deference to the trial judge's findings of fact, especially when those findings of fact are based upon credibility and demeanor").

Wednesday, July 16, 2008



The law, which is relevant provides strict oversight by the judge.

"(l) Proceedings commenced under this chapter may not proceed to hearing unless the judge who is to conduct the hearing is satisfied that this article has been complied with and that the attorney representing the state will introduce into evidence at the hearing any answer received from an inquiry required by Subsections (c)-(h) of this article. "

Judge Banales like every other trained judicial monkey proved he would sign his own death warrant. Judge Banales’ willingness to sign anything without insuring strict compliance with the law is a major cause for the corruption which has Cameron County by the short hairs. It is time Governor Perry rethink Judge Banales’ appointment and demand his resignation. Oh, that is right, Governor Perry is in a permanent state of holding is knees at the command of Dannenbaum.

The law required that the BND be given notice of the lawsuit, and in fact served a copy of the lawsuit.

"Furthermore, Arambula didn't mind that District Attorney Armando Villalobos did not give BND notice of the intended forfeiture of $1 million from Dannenbaum's firm, perhaps stripping BND's right to claim the money for itself."

"This is cover-up Brownsville style - "we are so confident we can get away with it, we are going to announce it publicly." Any BND Board Member unwilling to demand a criminal investigation into how DA Villalobos secured the forfeiture without being able to name the source of the money, is not fit for public office. In my opinion a deal was cut to protect Dannenbaum from further exposure in exchange for 1 million dollars.

Wednesday, July 02, 2008

Boy...the defense witness sure makes exposure to amateur hour our entertainment ton

Expert doubts exposure claims
Doctor admits he didn't seek sample from Citgo tanks

By Fanny S. Chirinos (Contact)
Originally published 04:00 a.m., July 1, 2008
Updated 04:00 a.m., July 1, 2008


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An occupational health expert with knowledge of chemical exposure testified Monday that 13 alleged victims of Citgo's emissions weren't exposed to chemicals coming from two of the refiner's oil/water separator tanks. But he admitted under oath that he didn't know exactly what was in the tanks and never requested a report on the tanks' contents.

The doctor was the sole defense witness to take the stand in U.S. District Judge John Rainey's courtroom. The sentencing hearing continues at 9 a.m. today on the third floor in federal court.

Citgo and its parent company, Citgo Petroleum Corp., were convicted last year of operating two tanks at the refiner's East Plant without the required roofs. Citgo is the first refiner in U.S. history found guilty by a jury of violating federal regulations.

Jeffrey D. Britton, a Houston physician, said that although many of the victims shared the same symptoms, their medical records rarely showed that they shared concerns about Citgo Refining and Chemicals Co.'s East Plant. He added that many of the alleged victims were taking medications for symptoms such as coughing and high blood pressure, that might have reacted with one another.

"I believe that they smelled something bad, but don't rely on what they claim it is," Britton said. "I did not find scientific evidence that (the) symptoms were caused by the refinery."

Dick DeGuerin, the lead defense attorney, went through several alleged victims' medical records with Britton attempting to discredit chemical exposure as the cause of their symptoms. Although parenthetical references by some physicians showed they could not rule out environmental or refinery emissions exposure, Britton said they didn't diagnose the patients with such.

Britton also said some of the patients were long-time smokers or had been treated for bacterial infections.

Howard Stewart, the Justice Department's lead prosecutor, countered that lab work, such as a throat culture, was not performed and, therefore, the doctors would not have been able to diagnose them accurately.

"Just because (someone) smokes doesn't mean she hasn't been exposed, does it?" Stewart asked.

Britton answered no.

Stewart also sought to establish that Britton could not be certain the alleged victims weren't exposed to emissions coming off the tanks because he didn't know their chemical content. During cross examination, Britton said he hadn't received a sample report for tanks 116 and 117 and was asked if he had ever sought one.

"I did not," he answered.

Contact Fanny S. Chirinos at 886-3759 or

Wednesday, January 16, 2008

we conclude that the evidence is not so weak that it seems clearly wrong and manifestly unjust, and after considering the conflicting evidence, the f

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NUMBER 13-05-004-CR








On appeal from the 105th District Court

of Kleberg County, Texas


Before Chief Justice Valdez and Justices Rodriguez and Garza

Memorandum Opinion by Justice Rodriguez

Appellant, Julie Anne Flowers a/k/a Julie Anne Richardson, was charged with twenty-two counts of forgery, a state jail felony. See Tex. Penal Code Ann. § 32.21(b), (d) (Vernon Supp. 2005). The jury returned a verdict of not guilty on counts 1, 2, and 5 through 22, and a verdict of guilty on counts 3 and 4, which charged forgery of a check in the amount of $253.08 made payable to Aaron's Rental. (1) See id. § 32.21(a)(1)(A)(i), (B). The trial court sentenced Flowers to one year confinement in a state jail facility, probated for a period of three years. It also assessed a $500.00 fine plus court costs and restitution in the amount of $253.08. By two points of error, Flowers challenges the legal and factual sufficiency of the evidence to support the verdict.

In our original opinion and judgment, we held that the evidence was legally sufficient but factually insufficient under the standards of review in effect at the time. Flowers v. State, No. 13-05-004-CR, 2006 Tex. App. LEXIS 4360 (Tex. App.--Corpus Christi May 18, 2006), rev'd and judgm't vacated, In re Flowers, PD-1298-06, 2007 Tex. Crim. App. LEXIS 41 (Tex. Crim. App. Jan. 10, 2007) (per curiam). On January 10, 2007, the Texas Court of Criminal Appeals vacated our opinion and judgment and remanded the case for reconsideration in light of its opinion in Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006), which re-articulated the factual sufficiency standard of review. Id. at 415-17. Reconsidering the factual sufficiency point of error in light of Watson, we affirm the trial court's judgment.

I. Standard of Review

In a legal sufficiency review, we consider all of the evidence in the record in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational jury could have found the accused guilty of the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003). The reviewing court considers all evidence admitted at trial, whether properly or improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). This standard applies regardless of whether the case is founded upon direct or circumstantial evidence. Earhart v. State, 823 S.W.2d 607, 616 (Tex. Crim. App. 1991); Rosillo v. State, 953 S.W.2d 808, 811 (Tex. App.-Corpus Christi 1997, pet. ref'd).

When reviewing the factual sufficiency of the evidence we look at all evidence in a neutral light and will reverse only if (1) the evidence is so weak that the finding seems clearly wrong and manifestly unjust or (2) considering conflicting evidence, the finding, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414-15. This Court will not reverse the jury's verdict unless, we can say with some objective basis in the record, the great weight and preponderance of the evidence contradicts the verdict. Id. at 415.

We measure the sufficiency of the evidence by the elements of the offense as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.--Corpus Christi 2002, pet. ref'd). "Such a charge would accurately set out the law, would be authorized by the indictment, and would not unnecessarily increase the State's burden of proof." Malik, 953 S.W.2d at 240.

Under either standard, the fact finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (en banc). We must give deference to the fact finder's decisions about the weight and credibility of evidence. See Johnson, 23 S.W.3d at 9.

II. Analysis

A. The Law

If a person forges a writing with intent to defraud or harm another, he commits an offense. Tex. Penal Code Ann. § 32.21(b) (Vernon Supp. 2005). Section 32.21 of the Texas Penal Code provides, in relevant part, that "forge" means "to make . . . or execute any writing so that it purports . . . to be the act of another who did not authorize that act." Id. § 32.21(a)(1)(A)(i). "Forge" also means to pass that writing. See id. § 32.21(a)(1)(B). Proof of intent to defraud is derivative of other elements; thus, in a forgery case, the culpable mental state of "intent to defraud or harm" can be inferred if the State proves that the defendant knew that the writing in question was forged. See Huntley v. State, 4 S.W.3d 813, 814 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd) (op. on reh'g) (en banc). Here, it is undisputed that Flowers executed the check at issue by signing Young's name to it and passing it to Aaron's Rental. The State's burden was therefore to prove that Flowers acted without Young's authorization. See id.

B. Testimony and Evidence Admitted at Trial

At trial, Flowers, who was hired as a bookkeeper but who also assumed other responsibilities at Young's bed and breakfast inn, admitted signing Young's name to check number 10530 dated January 12, 2004, that was made payable to Aaron's Rental for a payment on her big-screen television rental contract agreement. She also admitted passing the check to Aaron's Rental. Flowers testified, however, that she had Young's permission to sign and pass the check. Flowers testified that Young borrowed her television in order to honor a coupon being used by clients of the bed and breakfast inn. She explained that in mid-December/January, she and Young discussed reservations and the need for a big screen television. Flowers had a big screen television and was a payment behind on its rental. Flowers testified that "[Young] agreed to make the payment on . . . the big screen TV, and [Flowers] would make up the difference but [Young] would pay the entire amount, and that's exactly what happened . . . ." Flowers testified that they "had discussed it several times before." Additionally, Flowers's February 15, 2004 pay stub reflected a $120.36 deduction from her paycheck. This amount was approximately half of the $253.08 paid to Aaron's Rental.

Testifying at trial, Young agreed that he was aware Flowers was going to sign a check for the rental of a big screen television and that Flowers did so at his direction to ensure that his clients would have a television available to them during their stay at the bed and breakfast inn. Young testified that "[Flowers], at that point was more or less running what was going on" and he "trusted [his] business to [Flowers] to watch over these type of things." Young stated that he assumed Flowers had rented a television as they had done that in the past. He admitted that Flowers may have told him that they could use hers, "but in the confusion of everything, [he didn't] really remember." He may have known that they were going to use Flowers's television, but not that they were going to rent a television set for $250. Young testified that he thought the rental was for one night, not for a whole week. Flowers told him she would bring a big screen television, and Young assumed she was going to rent one for thirty or forty dollars a night. Young testified that he did not authorize Flowers to write a check for her account balance on the television.

Colby Urbanovsky, a former employee of the bed and breakfast inn, testified that he and another co-worker picked up a big screen television from Flowers's house and delivered it to the main house at the bed and breakfast inn. The television was there for about two weeks, even though the coupon used by the clients was for one weekend. Urbanovsky also testified that he believed Young knew the television had been brought from Flowers's house because Aaron's Rental did not deliver it.

Regarding the signing of business checks, Young testified that he would give Flowers permission to sign his name on certain checks, but then he would tell her not to sign any other checks. There is also testimony that on a number of occasions, after Flowers had signed his name on checks to vendors, Young authorized those acts as to regular vendors. Aaron's Rental, however, was not one of those vendors. Additionally, Young authorized Flowers to sign his name on a $3,100.00 check made payable to Flowers to be used to buy a new car. (2) Nonetheless, Young testified that he never gave Flowers carte blanche to sign checks. He testified that he told her, "Julie, do not - [y]ou know, if you're going to - [i]f you're in an emergency and you're going to sign one, you must call me and we must talk it over, and I must approve it on an individual basis." Flowers testified that Young did not tell her not to write anymore checks, although he would say not to sign any more of a specific type of check until they talked about it. Finally, Urbanovsky testified that, on occasion, he heard Young tell Flowers to sign a check because he was not there to do so. He also heard Young tell Flowers not to sign any more checks and if she had to, to call him. In addition, other employees testified that, some time after March 2004, they heard Young tell Flowers not to sign any more checks.

C. Legal Sufficiency

By her first point of error, Flowers contends that the evidence is legally insufficient to sustain her conviction for forgery. She asserts that no rational trier of fact could have found beyond a reasonable doubt (1) that claimant, Luther Young, III, had not authorized her to sign his name to a business check made payable to Aaron's Rental and (2) that Flowers passed a check with intent to defraud or harm Young. (3)

Considering all of the above evidence in the light most favorable to the verdict, we conclude that a rational jury could have found beyond a reasonable doubt that Young did not authorize Flowers to sign his name and pass check number 10530. See Jackson, 443 U.S. at 319; Swearingen, 101 S.W.3d at 95.

Young testified that although he authorized Flowers to sign his name on certain checks, he did not authorize a payment towards her Aaron's Rental account balance. Moreover, Aaron's Rental was not one of his regular vendors for which he would authorize her to sign checks. He assumed that Flowers, who performed numerous tasks in addition to the bookkeeping at the bed and breakfast inn, had rented a television as they had done in the past, for perhaps thirty or forty dollars a night. Although Flowers testified that Young agreed to make her payment to Aaron's Rental, questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact, and the jury could have given more credibility and weight to Young's testimony. See Wesbrook, 29 S.W.3d at 111; Johnson, 23 S.W.3d at 7.

Concluding that the jury could have found Young did not authorize the check at issue in this case, the jury was entitled to infer that Flowers possessed the culpable mental state of "intent to defraud or harm." See Huntley, 4 S.W.3d at 814. Accordingly, we hold that the evidence was legally sufficient to support the jury's verdict as to counts three and four of the indictment. Flowers's first point of error is overruled.

D. Factual Sufficiency

In her second point of error, Flowers complains that the evidence is factually insufficient to sustain her conviction for forgery. More specifically, Flowers complains that the evidence is factually insufficient to establish the "not authorized" element of the offense. We disagree.

In our original opinion in this appeal, our factual sufficiency review was largely guided by the following standard articulated by the court of criminal appeals in Zuniga v. State:

When reviewing a challenge to the factual sufficiency of the evidence to support the jury's finding, we must determine whether, considering all the evidence in a neutral light, the jury was rationally justified in its finding beyond a reasonable doubt. We may find the evidence to be factually insufficient in the following ways: (1) if the evidence supporting the finding, considered alone, is too weak to support the jury's finding beyond a reasonable doubt, then we must find the evidence insufficient; or (2) if, when we weigh the evidence supporting and contravening the finding, we conclude that the contrary evidence is strong enough that the State could not have met its burden of proof, we must find the evidence insufficient.

Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004), overruled by Watson, 204 S.W.3d at 417. In Watson, the court of criminal appeals stated the following:

Any holding that a criminal appellate court can reverse and remand for a new trial even when the evidence "preponderates" in favor of a conviction is inconsistent with that historically required high level of skepticism.

. . . We therefore disavow such language in Zuniga and reiterate that it is not enough that the appellate court harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence. An appellate court judge cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, he would have voted to acquit had he been on the jury. . . . We have always held that an appellate court must first be able to say, with some objective basis in the record, that the great weight and preponderance of the (albeit legally sufficient) evidence contradicts the jury's verdict before it is justified in exercising its appellate fact jurisdiction to order a new trial.

Watson, 204 S.W.3d at 417. Therefore, we must now apply the standard articulated in Watson to Flowers's factual sufficiency challenge.

Flowers argues that there was evidence that (1) Young allowed Flowers to handle business regarding the bed and breakfast inn, (2) Young gave Flowers prior authorization to sign checks, including this check, (3) Young directed her to get a television to honor a coupon, (4) Flowers acquired a big screen television for the bed and breakfast inn, (5) Young was aware that Flowers's television was to be used and was, in fact, used for his clients' stay at the bed and breakfast inn, and (6) Young took a deduction from Flowers's paycheck which equaled approximately half of the monthly rental amount paid to Aaron's Rentals for the television.

Young testified that although he gave Flowers permission to sign his name on certain checks, he told her several times not to sign his name on any checks without his prior authorization. Young testified that he told Flowers, "If you're in an emergency and you're going to sign one [a check], you must call me and we must talk it over, and I must approve it on an individual basis." Moreover, when the State asked Young, "Did you ever authorize Julie Richardson [Flowers] to write a check for the [Aaron Rentals'] account balance for this T.V.?" Young answered, "Absolutely not." Kirk Scott, a former employee of the bed and breakfast inn, testified that he overheard Young tell Flowers he did not want her signing his name on any checks. Leticia G. Ramirez, an employee of Young, testified she heard Young "tell Julli [sic] not to sign any more checks." Ramirez reiterated during re-cross examination that she heard Young tell Flowers, "Do not sign any checks."

As the sole judge of the credibility of the witnesses and the weight to be given their testimony, the jury was free to believe that Young did not authorize Flowers to sign his name to the check to pay her account balance with Aaron's Rentals. See Wesbrook, 29 S.W.3d at 111; Johnson, 23 S.W.3d at 7. Therefore, after reviewing all of the evidence in a neutral light, we conclude that the evidence is not so weak that it seems clearly wrong and manifestly unjust, and after considering the conflicting evidence, the finding is not against the great weight and preponderance of the evidence. See Watson, 204 S.W.3d 404, 414-15. We overrule Flowers's second point of error.

IV. Conclusion

Finding no error, we affirm the trial court's judgment. NELDA V. RODRIGUEZ


Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion on Remand delivered

and filed this 10th day of January, 2008.

In relevant part, Charge 3 of the indictment read as follows:

[D]efendant . . . on or about January 12, 2004, in, KLEBERG County, Texas, did then and there, with intent to defraud or harm another, make a writing so it purported to be the act of Luther Young, III, who did not authorize the act, and said writing was a check of the tenor following: #10530 payable to Aaron's Rental for $253.08 on 1/12/04, . . .

Charge 4 identified the elements identified in Charge 3 and added that Flowers passed "to Aaron's Rental a forged writing, knowing such writing to be forged."

2. Flowers told Young she was expecting a check from her insurance company which she would use to repay him. At the time of trial, Flowers had not repaid the loan.

3. Flowers also generally contends that the evidence is legally insufficient because the State failed to prove that this check was signed and passed in Kleberg County, Texas, as alleged in the indictment. However, in accordance with rule 38.1(h) of the Texas Rules of Appellate Procedure, we will only consider contentions that are supported by clear and concise arguments with appropriate citations to authorities and the record. See Tex. R. App. P. 38.1(h); Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996) (en banc).