In the Court
of Criminal Appeals of Texas
Jamaal Howard, Appellant,
The State of Texas
October 13, 2004
from Hardin County
Per Curiam. Meyers and Holcomb, JJ.,
appellant, Jamaal Howard, was convicted in April 2001
of capital murder,
(1) an offense
that was committed on May 12, 2000. Pursuant to the jury's answers
to the special issues set forth in Code of Criminal Procedure
Article 37.071, Sections 2(b) and 2(e), the trial judge sentenced
the appellant to death.
(2) Direct appeal
to this Court is automatic.
(3) The appellant
raises nine points of error. We affirm.
his sixth point of error, the appellant claims that the evidence
is legally insufficient to support the jury's verdict on the issue
of his future dangerousness. He argues that there was no evidence
of premeditation to commit the instant murder and that he has no
history of prior criminal violence. Following is a review of the
relevant evidence in a light most favorable to the verdict.
Jackson v. Virginia, 443 U.S. 307 (1991).
appellant 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, the appellant refused. The following morning,
the appellant 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. The appellant 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. The
appellant denied committing the offense until he was told it was
videotaped. He told the officer who took his statement that he was
not sorry for committing the offense.
the punishment stage of trial, the State presented evidence that
the appellant demonstrated a disregard for authority and school
rules despite the continued efforts of his mother and educators.
During one incident, the appellant punched a pregnant teacher in
the chest with his fist when she asked him to return to his seat.
When the appellant 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 the
appellant'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 the appellant was not
suffering from schizophrenia, but rather was suffering from
antisocial personality disorder.
evidence is sufficient to support the jury's verdict. The
appellant's actions in committing the crime were senseless and
deliberate; his actions immediately following its commission were
equally so. Given these actions, combined with his appellant's
past history of assaultive conduct, disregard for authority and
rules, drug offenses, and juvenile offenses, and the expert
testimony that the appellant displayed an antisocial personality
disorder, the jury rationally could have concluded beyond a
reasonable doubt that the appellant would probably commit criminal
acts of violence that would pose a continuing threat to society.
Point of error six is overruled.
his seventh point of error, the appellant claims that the evidence
is insufficient to support the jury's verdict on the mitigation
special issue. The appellant
argues that this Court's refusal to review the jury's verdict
denies him the right to a "meaningful appellate review." This
Court has repeatedly declined to review the sufficiency of the
mitigating evidence and has rejected the claim that it deprives a
defendant of a meaningful appellate review.
Salazar v. State, 38 S.W.3d 141, 146 (Tex. Cr.
cert. denied, 534 U.S. 855 (2001);
McGinn v. State, 961 S.W.2d 161, 166 (Tex. Cr.
cert. denied, 525 U.S. 967 (1998). Point of error seven is
his first point of error, the appellant claims that the trial
court erred in overruling his objection to the prosecutor's jury
argument at punishment. During the punishment stage, the
he is not waiting for capital murder trial and not going to have
to be on his best behavior, then what is he going to act like?
Gang activity, 5-9 Hoover Crypts [sic],
and Crypts [sic]
are in prison, too. He will fall right in with his old buds;
extortion, rape, drug trafficking --
appellant's objection to the argument as outside the record was
Previously, however, during the prosecutor's argument at the
punishment stage, the prosecutor made similar statements without
objection. For instance, the prosecutor opened his argument, with
no objection, as follows:
Dr. Laine's medical record came in through Dr. Fason and -- I
didn't know that the defendant had been stalking a girl and I
didn't know that he had told Dr. Laine that
he admitted to being a gang member, smoking marijuana,
drinking alcohol, carrying a gun.
added). The prosecutor further argued, without objection, that the
appellant would have the opportunity to join prison gangs and
participate in their activities, if he chose to:
gentleman from the prison prosecution unit told you also that
drugs are a big factor with prison gangs, that they sell drugs to
make money in prison gangs. So, this will be another indication
that [the appellant] would have the opportunity, if he wants to,
if he hadn't learned his lesson, that he is going to be a future
light of the jury's previous exposure to these similar arguments,
suggesting the potential for the appellant's participation in gang-related
activities in prison, any error is harmless.
Cf. Massey v. State, 933
S.W.2d 141, 149 (Tex. Cr. App. 1996) (holding that if defendant
objects to admission of evidence but same evidence is subsequently
introduced from another source without objection defendant waives
Point of error one is overruled.
his third point of error, the appellant claims that the trial
court erred in overruling his objection to the prosecutor's jury
argument at the punishment stage of trial. During closing argument,
the prosecutor made the following comments:
That's the type of person you're dealing with in Jamaal Howard.
And since that time not one feeling of remorse, not one word of
In fact, he told Ranger Wilson, "I'm not sorry." That's the type
of person you are dealing with in Jamaal Howard.
Appellant claims the prosecutor's argument was a comment on his
failure to testify, in violation of the Fifth Amendment to the
United States Constitution, and could not be understood as based
discussion with Ranger Wilson.
Ranger L.C. Wilson took the appellant's written statement.
Following is an excerpt from Wilson's testimony:
Did [appellant] give any reason why he did it?
[Wilson]: No. No, he never did.
Did he express any remorse to you?
No, he didn't, you know, because right at the end of that
statement I asked him, I said, "Jamaal, you know, in a year or so
from now a jury is going to hear this and they are going to want
to know why you did it. You know, now is your chance, you know.
I'm asking you to explain to anybody." He didn't have a reason. I
asked him, you know, "Do you have any remorse for this?" He said,
"No." And I said, "You're willing to sign that statement? You have
no remorse?" And he did.
cross-examination, defense counsel asked Wilson if he had asked
the appellant if he understood the meaning of the word "remorse."
Wilson responded that he did not specifically remember asking the
appellant if he understood the meaning of the word remorse,
but he remembered asking him,
"Do you feel sorry about what you did?"
Court has held that a prosecutor's comment on a defendant's
failure to show remorse is tantamount to a comment on his failure
Davis v. State, 782 S.W.2d 211, 222 (Tex. Cr.
Dickinson v. State, 685 S.W.2d 320, 324 (Tex. Cr.
cert. denied, 495 U.S. 940 (1990). However, if there is
evidence in the record supporting the comment, then no error is
Fearance v. State, 771 S.W.2d 486, 514 (Tex. Cr.
App. 1988)). Here, Wilson testified that the appellant told him he
had no remorse. The prosecutor's argument was therefore a proper
summation of the evidence.
See id. Point of error three is overruled.
his second point of error, the appellant claims that "[a]
procedure that permits the death penalty to be inflicted on
defendants with mental retardation despite their diminished
personal culpability violates the Eighth Amendment to the United
States Constitution." The appellant argues that the Eighth
Amendment requires that mentally retarded individuals, like
himself, be excluded as a class from execution. As evidence of his
mental retardation, he points to the testimony of Dr. James Duncan,
who testified that the appellant had borderline to mildly impaired
intellectual functioning. The appellant
argues that an individual put to death must be able to rationally
appreciate and evaluate the consequences of his actions. In a
Supplemental List of Authorities, the appellant cites to
Atkins v. Virginia, 536 U.S. 304 (2002).
Atkins, the United States Supreme Court concluded that the
execution of a mentally retarded individual is unconstitutionally
excessive under the Eighth Amendment.
Id., at 321. Recognizing that "not all people who claim to be
mentally retarded will be so impaired as to fall within the range
of mentally retarded offenders about whom there is a national
consensus," the Court left to the States "the task of developing
appropriate ways to enforce the constitutional restriction upon
its execution of sentences."
Id., at 317.
stop-gap measure for cases that we must decide in the absence of
legislation, this Court has set temporary guidelines for
determining mental retardation in the death penalty context.
Ex parte Briseno, 135 S.W.3d 1, 5 (Tex. Cr. App. 2004). We
apply the definition found in the "Persons with Mental Retardation
Act" (Health & Safety Code, Chapter 591): "'Mental retardation'
means significantly subaverage general intellectual functioning
that is concurrent with deficits in adaptive behavior and
originates during the developmental period."
definition is essentially the same as the one utilized by the
American Association of Mental Retardation (AAMR).
subaverage general intellectual functioning" is defined as an IQ
of 70 or below.
behavior' means the effectiveness with or degree to which a person
meets the standards of personal independence and social
responsibility expected of the person's age and cultural group."
developmental period is understood to be the period before age 18.
this case, there was little testimony bearing on the issue of the
appellant's limitations in adaptive behavior, other than the
testimony about his lack of personal hygiene which was presented
by the defense as indicative of the appellant's alleged
schizophrenia. Although there was testimony that the appellant was
unwilling to meet the rules imposed by the alternative school,
this testimony was presented as bearing on the issue of whether
the appellant was suffering from a mental illness, or whether his
actions were, as the State contended, volitional.
Fred Fason, a defense expert, testified that when he first met
with the appellant and began to administer one of the
psychological tests, the appellant did not know some of the words
in the first few questions. Fason testified that this caused him
to conclude that the appellant could not read at the sixth grade
level and to question whether the appellant was mentally retarded.
However, upon questioning defense counsel, talking to the
appellant's mother, and retrieving the appellant's school records,
Fason discovered that the appellant had started out in school as a
very bright student; the appellant was in the ninetieth percentile
in math in the second grade, but had dropped to about the
thirtieth percentile in the fifth grade. Fason theorized that the
appellant's declining performance in school was due to the onset
of the court's independent experts, Dr. Duncan, reached a similar
conclusion. At one of the appellant's competency hearings, Duncan
testified that he gave the appellant portions of an I.Q. test and
that the appellant tested in the borderline to mildly impaired
range which Duncan said was the level of an eleven or twelve year-old.
On cross-examination, however, it was emphasized that Duncan had
given the appellant only
portions of an I.Q. test on which he had based an
estimate of the appellant's I.Q. The State's expert, Dr.
Gripon, testified that the appellant's problems in school stemmed
solely from his attention-deficit disorder which was addressed
when he took his medication; when the appellant refused to take
his medication, his grades declined and his behavior deteriorated.
Gripon did not see any evidence that the appellant suffered from
Although experts for both the State and the defense testified that
the appellant's intellectual functioning and adaptive behavior
were impaired to some degree, the testimony was not sufficiently
developed to establish that appellant was "mentally retarded"
under the guidelines we set in
Briseno. Because the evidence does not support the
appellant's claim that he is mentally retarded, we reject his
Eighth Amendment claim.
See Stevenson v. State, 73 S.W.3d 914, 917 (Tex. Cr. App.
2002). Point of error two is overruled.
his fourth and fifth points of error, the appellant claims that he
was denied effective assistance of counsel as guaranteed by the
Sixth Amendment to the United States Constitution and Article I,
Section 10 of the Texas Constitution, respectively, when his trial
counsel failed to introduce expert-witness testimony that he had
an I.Q. in the range of 65 to 70.
appellant claims that, during the hearing on his competency to
stand trial, Dr. Duncan testified that he had assessed the
appellant's I.Q. in the range of 65 to 70. At the guilt phase of
trial, however, although Duncan testified about the appellant's "borderline
to mildly impaired functioning," he neither testified specifically
to his determination of the appellant's I.Q., nor was he
questioned by the appellant's counsel about the I.Q. test he had
administered. The appellant claims that his counsel was
ineffective in failing to elicit Duncan's testimony about his I.Q.
at the guilt or innocence phase.
establish ineffective assistance of counsel, the appellant must
meet the two-pronged test set forth in
Strickland v. Washington, 466 U.S. 668 (1984);
Ex parte Varelas, 45 S.W.3d 627 (Tex. Cr. App. 2001). First,
the appellant must demonstrate that counsel's performance was
Id., at 629.
Second, the appellant must show that counsel's performance
prejudiced his defense at trial.
Id. That is, he must show that there is a reasonable
probability that the result of the proceeding would have been
different but for the errors made by counsel.
Id. Allegations of ineffectiveness must be firmly founded in
the record as counsel is presumed to have rendered adequate
assistance and made all significant decision in the exercise of
reasonable professional judgment.
record from the competency hearing reflects that Duncan testified
that he administered to the appellant only "some portions" of an
I.Q. test in order to arrive at an "estimate" of the appellant's
I gave [the appellant] some portions of an I.Q. test to arrive at
that estimate, some of the verbal subtests of the Weschler [A]dult
* * *
Okay. And, so, were you able to arrive at a numerical I.Q. score?
would say in the range of 70; but because I didn't give the full
test, that number would be -- there would a range there. I would
say that based on the -- scoring the subtest that I gave and
figuring out that number, would be a 65 to 70 kind of I.Q. range.
that Duncan administered only "portions" of an I.Q. test to arrive
at an "estimate" of the appellant's I.Q., we presume that the
appellant's defense counsel was exercising reasonable trial
strategy by not eliciting such testimony from Duncan before the
jury, in light of the speculative weight of the testimony and its
susceptibility to cross-examination.
the appellant has not shown that the outcome of the trial would
have been different had the testimony been elicited. Points of
error four and five are overruled.
In his eighth and
ninth points of error, the appellant claims that his trial counsel
was ineffective under the Sixth Amendment and Article I, Section
10 of the Texas Constitution, respectively, by failing to object
to the prosecutor's argument that appellant had been "stalking"
someone when he claims no such evidence was introduced at trial.
During the punishment stage of trial, the prosecutor argued that
the appellant "had been stalking a girl": "Then we find out that
he was stalking a young lady. That's a threat of violence."
During the State's
cross-examination of defense witness Dr. Fred Fason, the
prosecutor questioned Fason about the factors he considered in
making his diagnosis of the appellant:
subsequent to that, as an adult, having charges related to
delivery of cocaine, possession of cocaine, would that be
important in making that diagnosis?
[Fason]: Well, it's
something you take into consideration; but it wouldn't be -- it's
not pathognomonic of -- of any social personality disorder.
Q. And even the
history that his mother gave you that he was stalking some young
Q. -- would that be
important in diagnosing antisocial personality?
A. Not in the way
it was presented, no. I mean it's significant. It's another
-- it's much like -- arriving at a diagnosis, in a way, is kind of
like working a jigsaw puzzle. You take a whole bunch of different
pieces and you see how they fit together to come out with a
picture; and that would be a piece of the puzzle.
Q. And taking that all
together, you know, a history from the age of 13, from theft, to
15, 16, dealing drugs, to stalking, to capital murder,
all that taken together doesn't that kind of suggest that there
may be an antisocial personality here?
Fason did not refute the suggestion that the appellant had
reportedly stalked a girl. Rather, Fason affirmed the prosecutor's
suggestion. Fason's affirmative response to the prosecutor's
question made the suggestion become evidence, albeit slight. Thus,
the prosecutor's argument referring to the evidence was not
objectionable. Points of error eight and nine are overruled.
The judgment of the
trial court is affirmed.
Delivered October 13,
See Tex. Penal Code § 19.03(a).
2. Tex. Code Crim. Proc.
art. 37.071, § 2(g).
3. Art. 37.071, § 2(h).
4. The appellant did not
complain at trial, nor does he complain in this appeal, about the
admission of Wilson's testimony concerning the appellant's
statements regarding his lack of remorse.
Id., § 591.003(13) (quoted in
Briseno, 135 S.W.3d, at 8).
See Briseno, 135 S.W.3d ,at 7.
Id., at 7, n.24.
Id., at 7, n.25 (quoting § 591.003(1)).
Id., at 7 (discussing AAMR definition).
Virginia, 536 U.S. 304 (2002), discussed in connection with
point of error two above, was decided on June 20, 2002. Appellant
was tried and convicted in April 2001.