July/August 2004 VOICE FOR THE DEFENSE 1

(3) the certainty of conviction absent the misconduct. COA
found the conduct to be severe because it violated a mandatory
statute and it was not an isolated incident, but was a repeated
reference to how the law of parole would be applied to appellant.
COA stated it could consider additional acts of misconduct in
conducting the harm analysis, and it counted four sustained
objections prior to the complained-of argument. COA stated
“these improper arguments resulted from arguments outside
the record, and on how parole was applied to appellant in an
earlier case.” In addition, COA faulted the prosecutor for making,
after the complained of argument, “yet another improper
argument on a subject outside the record to which appellant
objected and the trial judge instructed the jury to disregard.”
CCA first faults the COA for calling its analysis a harm analysis.
“A harm analysis is employed only when there is error,
and ordinarily, error occurs only when the trial court makes a
mistake. Here, the trial court sustained the defense objection
and granted the requested instruction to disregard. The only
adverse ruling - and thus the only occasion for making a mistake
- was the trial court’s denial of the motion for mistrial. Under
those circumstances, the proper issue is whether the refusal to
grant the mistrial was an abuse of discretion.” However, CCA
does agree with the COA that Mosley, a capital case, does apply
in the punishment phase of a non capital case:
We balance three factors: (1) the severity of the misconduct
(prejudicial effect), (2) curative measures, and (3) the certainty
of the punishment assessed absent the misconduct
(likelihood of the same punishment being assessed).
Then, in an unnecessarily lengthy opinion, CCA conducts
its own Mosley analysis and, after balancing the above factors,
decides the COA was wrong:
The error was isolated and not egregious. Curative action
was taken by the court with two immediate instructions,
by the prosecutor with an apology and retraction, and in
the jury charge with a correct statement of the law and an
admonition not to determine how good time and parole
law would apply to appellant. And appellant’s possession
of a deadly weapon in the present offense plus a string of
prior convictions handily explains the jury’s 18-year sentence
in this case. Under the circumstances, the trial court
was reasonable in believing that its instruction to disregard
was effective and that appellant suffered no prejudice from
prosecutor’s improper remark. We conclude that the trial
court did not abuse its discretion in denying the request
for a mistrial.
Judgment is reversed, and the case is remanded to COA so
that it may consider Appellant’s remaining points of error.
DEATH PENALTY OPINIONS:
Conviction affirmed on remand from Supreme Court: Affirmed,
5/5/04;
MICHAEL WAYNE HALL, __S.W.3d __ (Tex.Crim.App. No.
73,787, delivered 5/4/04) from Tarrant County, on Remand from
U.S. Supreme Court; Opinion: Keller, joined by Meyers, Price,
Womack, Keasler, Hervey and Cochran; Concurring opinion:
Price, joined by Cochran; Dissent: Johnson, joined by Holcomb;
Dissent: Holcomb.
Facts: Appellant and his friend abducted and killed 19-yearold
mentally-retarded Amy for no apparent reason. In a TV
interview Appellant bragged about how easy the killing was, and
said he did it because he had a “sucky-ass life” and wanted to
die. Appellant was convicted and sentenced to death in 2000.
Hall v. State, 67 S.W.3d 870 (Tex.Crim.App. 2002). Meanwhile,
the Supreme Court handed down Adkins v. Virginia, 536 U.S.
304 (2002), holding that execution of mentally retarded persons
violates the federal constitution. Appellant’s state writ asserting
he suffered from mental retardation was unsuccessful, but on
certiorari from this direct appeal, the Supreme Court remanded
the case in light of Adkins.
HELD: The Court can take judicial notice of evidence
developed on habeas corpus. CCA details the evidence introduced
at the punishment phase of trial and at the habeas corpus
proceeding. A substantial amount of evidence was introduced
indicating that Appellant functioned on the level of an 8 or
9-year-old, read at a 4th grade level, was in special education
classes, couldn’t count money, and had an IQ of 67. The state
introduced testimony indicating Appellant was not retarded.
CCA has previously addressed the issue of judicial notice in
Huffman v. State, 479 S.W.2d 62 (Tex.Crim.App. 1972).
The present case is on all fours with Huffman: as in that case,
we are faced in a direct appeal with an issue that has already
been presented to us on habeas corpus. Consequently, we
address appellant’s mental retardation in light of both the
direct appeal and the habeas records. In this vein, we reject
any notion that the direct appeal record in this case must
be viewed in isolation. The additional, habeas evidence is
before us; taking it into account is necessary for a complete
and accurate view of appellant’s intellectual capabilities.
HELD: Because the defendant has the burden to prove
mental retardation at trial and on appeal, the standard of
review for the appellate court is “almost total deference to
the trial court.”
[M]ental retardation is a single, discrete fact that by itself
mitigates the penalty for capital murder, just as sudden
passion, release in a safe place, and renunciation all are
discrete facts that by themselves mitigate the penalty for
their respective crimes. Given the legislative backdrop for
similar affirmative defenses and analogous punishment
mitigating factors, we find, absent further legislative guidance,
that mental retardation is the type of issue that must
be proven by the defendant by a preponderance of the
evidence — regardless of when the claim is presented. ***
Giving “almost total deference to a trial judge’s determina-
July/August 2004 VOICE FOR THE DEFENSE 41