Hernandez v. Johnson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50908
RODOLFO BAIZA HERNANDEZ,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
For the Western District of Texas
April 11, 2001
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
A jury in the 207th Judicial District Court for Comal County,
Texas, on September 25, 1985, convicted Rodolfo Baiza Hernandez of
the capital murder of Victor Cervan. The jury gave affirmative
answers to the questions required in Texas at the sentencing phase
of the trial, and he was sentenced to death. After direct and
collateral review by the state courts of his conviction and
sentence, Hernandez brings this appeal from a denial of federal

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2
habeas relief by the United States District Court. He urges two
points.
First, he urges that he was denied his Sixth Amendment right
to counsel because a court-appointed psychiatrist testified at the
sentencing phase of this trial regarding his future dangerousness,
although the State refused to allow his counsel to be present at
the doctor’s examination of Hernandez. Second, he urges that the
statutory questions asked the jury in the sentencing phase did not
allow the jury to consider in mitigation his evidence that he was
abused as a child and suffered chronic paranoid schizophrenia. We
find these two contentions to be without merit and affirm dismissal
of his federal petition.
I
Victor Cervan was one of five Mexican nationals attempting to
make their way into this country by illegal passage across the Rio
Grande northward to the area of Denton, Texas, in search of jobs on
local ranches. There is little dispute about their encounter with
Hernandez, who happened upon them as they left a boxcar in the rail
yard in San Antonio. He offered to give them a ride north, for a
fee. Instead, assisted by Jesse Garibay, his brother-in-law,
Hernandez took them to a remote area where he robbed them and shot
them at close range, execution style. All but Cervan survived, and

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1 See Hernandez v. State, 805 S.W.2d 409, 410-11 (Tex. Crim.
App. 1990).
2 See id.; Hernandez v. Texas, 500 U.S. 960 (1991).
3 Hernandez v. Texas, 513 U.S. 1086 (1995).
4 28 U.S.C. § 2254(d) (2000).
3
two of them testified against Hernandez at trial.1 The Texas Court
of Criminal Appeals affirmed on direct review and the Supreme Court
denied certiorari.2 In 1991 Hernandez filed a state petition for
habeas relief, and in 1993 a special master filed proposed findings
of fact and conclusions of law. The state trial court adopted the
master’s proposals and recommended denial of all relief. The Texas
Court of Criminal Appeals determined that the findings of fact were
supported by the record and denied relief. The Supreme Court
declined review a second time.3 The federal petition followed. Two
and one-half years later the district denied relief and granted a
certificate of appealability on the two issues now before us.
II
Since Hernandez filed his federal petition for habeas relief
after the effective date of the AEDPA, his petition is controlled
by that act. Its most immediate provision4 limits the authority of
federal courts in habeas proceedings as follows:
(d) An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim –

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5 529 U.S. 362, 412-13 (2000).
4
(1) resulted in a decision that was contrary
to, or involved an unreasonable application of,
clearly established Federal law, as determined
by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.
In Williams v. Taylor,5 the Supreme Court explained 2254(d)(1)
as follows:
Under the “contrary to” clause, a federal habeas court
may grant the writ if the state court arrives at a
conclusion opposite to that reached by this Court on a
question of law or if the state court decides a case
differently than this Court has on a set of materially
indistinguishable facts. Under the “unreasonable
application” clause, a federal habeas court may grant the
writ if the state court identifies the correct governing
legal principle from this Court’s decisions but
unreasonably applies that principle to the facts of the
prisoner’s case.
III
Before trial Hernandez’s counsel filed a motion requesting
Judge R.T. Pfeuffer, the state trial judge, to appoint a “qualified
disinterested expert at County expense to conduct a mental
examination of the Defendant with regard to the Defendant’s
competency to stand trial, to file a written report in this Court
within 30 days of the Order of Examination, and to testify regarding
same at any trial or hearing upon such issue . . . [and] that this
Court furnish defense counsel with copies of said report as soon as
it becomes available.” The motion also requested money to “enable

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5
the Defendant to select an expert of his own choice to examine the
Defendant relative to his competency to stand trial” and “that
Hernandez’s counsel be notified of the time and place of the
examination and he be allowed to attend, alternatively, that the
examination be video taped and he be furnished a copy of the tape.”
Significantly, the motion also requested that the examiner file
separate reports regarding the examiner’s opinion of whether
Hernandez was mentally ill or retarded and whether he required
treatment. The latter request plainly looks beyond questions of
competency to stand trial to the sentencing phase of the trial. The
motion also requested that the examiner testify at trial or at a
hearing on the issues.
Judge Pfeuffer granted the motion in part, appointing Dr. John
Sparks with instruction to examine for competency to stand trial and
for sanity at the time of the offense. He denied the request for
appointment of an “independent” doctor, the request that counsel be
notified and be allowed to be present, as well as the alternative
request for videotaping.
Dr. Sparks conducted the examination. He gave Hernandez the
required warnings that his statements could be used against him at
trial, except, apparently, a specific caution that any statements
could be used in the sentencing phase of a trial. Dr. Sparks gave
no notice to defense counsel, and counsel was not present during the
examination. The following month, in September, the trial judge
convened a competency hearing before a jury at which both sides

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6
offered evidence and Dr. Sparks testified regarding competency. The
jury found that Hernandez was competent to stand trial. Defense
counsel made no further requests for psychiatric assistance and did
not attempt an insanity defense at trial.
Dr. Sparks made no appearance until the punishment phase of the
trial, when the State called him as a witness. The State’s direct
examination made no mention of any examination by Dr. Sparks.
Rather, the State proceeded by asking a narrative hypothetical
question as a basis for Dr. Sparks’ opinion as to whether a person
with a similar history would be a danger to society. Dr. Sparks
expressed the opinion that such conduct reflected an anti-social
personality and that a person with this history would likely
continue to be a danger to society. The difficulties began when
defense counsel seized the opportunity to develop on cross-
examination a mitigation theory that rested on an old diagnosis of
chronic schizophrenia made of Hernandez during an earlier prison
stay for robbery. He presented prison records to Dr. Sparks
reflecting the diagnosis, eliciting testimony about periods of
remission and its responsiveness to drugs and therapy. Dr. Sparks
acknowledged the differences in the illnesses but maintained that
nonetheless his earlier answers in response to the hypothetical
“appear[ ] to be closest to a description that is labeled the anti-
social personalty.” He argued that such an afflicted person can
experience periods of remission and with proper treatment live a
productive life.

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6 Hernandez v. State, 805 S.W.2d 409, 412 (Tex. Crim. App.
1990) (en banc).
7
On redirect the State demonstrated that Dr. Sparks also had the
benefit of the examination of Hernandez ordered by the court at
Hernandez’s request; and that in concluding that Hernandez was
competent to stand trial, Dr. Sparks had decided that Hernandez had
an anti-social personality. The Texas Court of Criminal Appeals
described this exchange at trial as follows:
[T]he State elicited redirect testimony from Dr. Sparks
concerning appellant’s competency evaluation in response
to appellant’s introduction of psychiatric evidence on
cross-examination. By introducing appellant’s TDC
psychiatric records and soliciting Dr. Sparks’ opinion
concerning those records, appellant “opened the door” to
the State’s use of the results of his competency exam for
rebuttal purposes. . . .
By creating the impression that appellant may have been
suffering from paranoid schizophrenia, appellant paved
the way for the State to rebut that impression with
psychiatric testimony tending to show that appellant was
instead suffering from an anti-social personality
disorder.6
The Texas court also concluded that Dr. Sparks did not express
an opinion regarding future dangerousness, and that the trial court
had specifically instructed the prosecutor that he could not do so.
The Texas court explained:
When the State began to elicit testimony concerning Dr.
Sparks’ competency examination, appellant immediately
objected. At the subsequent hearing outside the jury’s
presence, the trial court ruled that the witness could
testify as to his medical findings, but not as to whether
appellant would likely commit future acts of violence
that would constitute a danger to society. The essence
of Dr. Sparks’[ ] testimony before the jury was his

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7 Id. at 412 n.3.
8 483 U.S. 402, 424-25 (1987) (stating that the focus of the
Sixth Amendment right is not on the use of the doctor’s report and
that “the proper concern of this amendment [is] the consultation
with counsel, which petitioner undoubtedly had. Such consultation,
to be effective, must be based on counsel’s being informed about
the scope and nature of the proceeding. . . . Given our decision
in Smith, however, counsel was certainly on notice that if . . . he
intended to put on a ‘mental status’ defense . . . he would have to
anticipate the use of psychological evidence by the prosecution in
rebuttal.”)
9 There are suggestions that these events also violated
Hernandez’s right to not incriminate himself under the Fifth
Amendment, although that separate contention has not been made to
us. Regardless, neither contention, although resting upon distinct
doctrines, can survive the analysis of Buchanan.
8
diagnosis of anti-social personality disorder, along with
a comment that had he been informed of appellant’s prison
psychiatric records, his diagnosis would have been a
primary finding of paranoid schizophrenia in remission
along with a secondary finding of an anti-social
personality disorder. This testimony, while relevant to
the issue of future dangerousness, was not a direct
assertion of an expert opinion concerning future
dangerousness.7
We agree with this reading of the record by the Texas court. At the
least, it is both an objectively reasonable interpretation of the
relevant events at trial and reasonable application of the decision
of the Supreme Court in Buchanan v. Kentucky.8
The primary contention here is that the introduction of Dr.
Sparks’ testimony that he had examined Hernandez before the
competency hearing denied Hernandez’s right to counsel secured by
the Sixth Amendment.9

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10 720 F.2d 415 (5th Cir. 1983).
9
Hernandez initiated the examination for competency and other
evidence of mental illness through his counsel and had a full
opportunity to cross-examine Dr. Sparks at the competency hearing
before trial. There is no suggestion that Hernandez did not have
a full opportunity to consult with counsel about the scope of the
examination, both with regard to its use to demonstrate competency
and to develop possible mitigating evidence. As Buchanan teaches,
defense counsel was on notice that if he attempted to put mental
status in play, the State might draw upon the examination in
rebuttal.
At the sentencing phase of trial on direct examination by the
State’s attorney, Dr. Sparks expressed an opinion based upon a
hypothetical question and not upon his prior examination. The
defense lodged no objection to the use of the hypothetical, apart
from an error in the recitation, which was promptly corrected. The
only deviation from that presentation came on redirect examination
where Dr. Sparks’ prior examination was disclosed in a shoring of
Dr. Sparks’ opinions regarding the relative play of schizophrenia,
in remission and when treated by drugs, as compared to the diagnosis
of anti-social disorder. We find no violation of the Fifth or Sixth
Amendment in this circumstance.
These events differ from those of White v. Estelle,10 and
Hernandez’s reliance upon it is misplaced. It is true that, as

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11 See id. at 417 & n.1.
12 Id. at 417.
13 Hernandez, 805 S.W.2d at 412 n.3.
10
here, the examiner of White testified in the sentencing phase in
response to hypothetical questions, but little else of importance
is similar. Defense counsel in White objected to the testimony,
urging the trial court that the tailoring of the hypothetical was
calculated to inform the jury of the earlier examination ordered on
a motion by the State, not the defendant.11 The federal habeas
trial court later found that the examination “reasonably indicated
that the psychiatric prognosis of White’s future dangerousness was
influenced by and derived from the court-ordered pretrial
psychiatric examinations.”12 This was not the case with the
hypothetical put to Dr. Sparks. Indeed, sensitive to Estelle,
Judge Pfeuffer here instructed the prosecutor that he was to not ask
Dr. Sparks “whether [Hernandez] would likely commit future acts of
violence that would constitute a danger to society,”13 for the
reason that Judge Pfeuffer had not allowed defense counsel to be
present when Dr. Sparks conducted the ordered examination of
Hernandez. Disclosure of the court-ordered examination came here
only in response to defense counsel’s cross-examination which opened
the door for its receipt. As applied here, this trial court ruling
was no mechanical application of the familiar “you opened the door.”
Rather, it was a practical necessity to avoid the unfairness of

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14 492 U.S. 302 (1989).
15 See Davis v. Scott, 51 F.3d 457, 461-62 (5th Cir. 1995)
(evidence of child abuse, alone, without demonstrating any link to
the crime, does not constitute “constitutionally relevant
mitigating evidence”); Madden v. Collins, 18 F.3d 304, 308 (5th
Cir. 1994) (evidence of troubled childhood not constitutionally
relevant mitigating evidence when not linked in any way to the
crime); Barnard v. Collins, 958 F.2d 634, 638-39 (5th Cir. 1992)
(rejecting Penry claim where crime not attributable to the
proffered evidence of troubled childhood).
11
tying the prosecutor’s hands while leaving defense counsel free to
attack Dr. Sparks’ opinions as lacking an informed basis.
IV
Hernandez contends that the jury could not give effect to
evidence that he was subjected to sustained child abuse and chronic
mental disease. The argument is that the jury could not give effect
to these mitigating circumstances under the questions asked them as
explained in Penry v. Lynaugh.14 As demonstrated by defense counsel
in closing argument, the evidence of chronic schizophrenia could be
considered by the jury in answering the question of future
dangerousness, an argument counsel had carefully laid the support
for in his cross-examination of Dr. Sparks. With medication and
treatment, remission can be sustained.
We have repeatedly held that evidence of child abuse alone,
unlinked to the offense, is not mitigating.15
V
We have heard argument in this case and carefully considered
the opinions of the courts that have previously decided these

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questions, including a detailed opinion by the district court below,
and find no error. We affirm the dismissal of the writ of habeas
corpus and dissolve the stay of execution.
AFFIRMED.

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13
DENNIS, Circuit Judge, dissenting:
The questions presented are whether
Rodolfo Baiza Hernandez’s Sixth
Amendment right to counsel, as defined in
Estelle v. Smith, 451 U. S. 454 (1980), was
violated; whether he was sentenced to death
in violation of the Eighth Amendment
because the jury was not instructed that it
could consider and give effect to the
mitigating evidence of his abused childhood
by declining to impose the death penalty, as
required by Penry v. Lynaugh, 409 U.S. 302
(1989); and whether the judgment of the
Texas Court of Criminal Appeals refusing to
set aside his death sentence “was contrary
to, or involved an unreasonable application
of, clearly established Federal law, as
determined by the Supreme Court of the
United States,” within the meaning of 28
U.S.C. § 2254(d)(1) (1994 & Supp. 2000).
Because these questions should be answered
affirmatively, instead of negatively as in the
majority opinion, I respectfully dissent.
I.
The majority opinion’s analysis is flawed
because of its failure to recognize that the state
habeas trial court made no ruling on
Hernandez’s Sixth Amendment claim; and that
the Texas Court of Criminal Appeals’s per
curiam order adopting the state habeas trial
court’s “findings and conclusions” therefore
either had no legal basis whatsoever or else
unconstitutionally conflated its analysis of the
defendant’s Fifth and Sixth Amendment rights,
contrary to the clearly established Federal law

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as determined by the Supreme Court of the
United States.
The majority opinion mistakenly relies on
the opinion of the Texas Court of Criminal
Appeals on direct appeal in Hernandez v.
State, 805 S.W.2d 409 (Tex. Crim. App.
1990), as if it were the factual findings and
rulings of law of that court with respect to
Hernandez’s Sixth Amendment habeas
corpus claim. On direct appeal, the Texas
Court of Criminal Appeals reviewed only
Hernandez’s Fifth Amendment claim.
Regarding his Sixth Amendment state habeas
claim, the state habeas trial court and the
special master found additional facts relating
specifically to the Sixth Amendment claim.
But the trial court clearly deferred any ruling
on that claim, noting that “the question is
presented as to whether or not the decisions
of Estelle v. Smith . . . and Powell v. Texas
[492 U.S. 680 (1989)] require the presence
of counsel where the state’s mental health
expert’s testimony is ‘not a direct assertion of
an expert’s opinion concerning future
dangerousness’, but rather, some other form of
mental health diagnosis harmful to the
defendant’s case.” The special master and the
state habeas trial court did not–as the majority
opinion expresses–recommend the denial of
relief, but recommended that “the Texas Court
of Criminal Appeals should review this issue
closely to det ermine if there is such a
requirement.”
The Texas Court of Criminal Appeals, on
the state habeas appeal, did not review the
issue or make any additional factual findings
from the record. That court, without oral
argument, merely issued a per curiam order
holding that “[t]he findings and conclusions [of
the special master adopted by the trial court]
are supported by the record and upon such
basis the relief sought is denied.”
Accordingly, the majority opinion of this
court mistakenly assumes that the full opinion

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of the Texas Court of Criminal Appeals on
direct appeal, which pertained only to
Hernandez’s Fifth Amendment argument on
appeal, was that court’s ruling on
Hernandez’s Sixth Amendment habeas claim.
Of course, it was not. On Hernandez’s
habeas appeal, the Texas Court of Criminal
Appeals said it was denying relief based on
the findings of fact and conclusions of the
habeas trial court. But because the trial
court did not make any ruling or reach any
conclusion, the decision of the Texas Court
of Criminal Appeals presently under review
really has no tangible legal basis.
Only by a highly creative assumption can
this court read into the Texas Court of
Criminal Appeals’s terse per curiam order
any kind of a reasoned disposition of
Hernandez’s Sixth Amendment habeas claim.
The only reasonable creative assumption
would be that the per curiam represents a
conflation of analysis of Hernandez’s Fifth
and Sixth Amendment claims and a conclusion
that they can both be rejected constitutionally
for the same reason. That decision, however,
is one that is contrary to, and an unreasonable
application of, clearly established Federal law,
as determined by the Supreme Court of the
United States. This issue, and the reasons that
the majority opinion also misapprehends
Hernandez’s Eighth Amendment claim, are
addressed in detail below. Before addressing
these major legal issues in more detail,
however, it is first necessary to point out the
majority’s errors in misconstruing the
procedural and factual context of this case.
The majority opinion quotes a small,
selected portion of the defense counsel’s
pretrial motion for a qualified disinterested
expert to conduct a mental examination of the
defendant with regard to his competency to
stand trial and his sanity at the time of the
offense. The majority opinion then
mischaracterizes the defense motion as

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containing a request that “looks beyond
questions of competency to stand trial to the
sentencing phase of the trial. The motion
also requested that the examiner testify at
trial or at a hearing on the issues.” Maj. Op.
at 5. The defense motion, however, contains
no reference to the sentencing phase but is
clearly aimed only at gaining expert
assistance to evaluate whether Hernandez
was competent to stand trial or whether to
advise him to plead not guilty by reason of
insanity. The state habeas trial court made
the factual finding that Hernandez’s
counsel’s “request for the appointment of an
expert was made solely for the purposes of
examining the defendant relative to his
competency, filing a report, and testifying
regarding competency at any trial or
hearing.” (Emphasis in original) (internal
quotations and brackets omitted). And,
contrary to the majority opinion’s
characterization of the defense motion as a
request for testimony at trial on the issues, the
defense motion specifically limited the request
for testimony on Hernandez’s competency to
stand trial–not for testimony at the guilt or
penalty phases of a capital murder trial.
The majority opinion mischaracterizes the
state trial court’s ruling on the defense pretrial
motion as “grant[ing] the motion in part.”
Maj. Op. at 5. The court, in fact, denied the
defense counsel’s motion entirely and sua
sponte entered an order sharply inconsistent
with the objects of the motion. The state
habeas trial court made this clear when it
found as a fact that the “trial court den[ied]
this motion.” (Emphasis in original).
The majority opinion’s statement that
“[t]he State’s direct examination made no
mention of any examination by Dr. Sparks . .
. ,” Maj. Op. at 6, is misleading. Dr. Sparks,
in presenting his qualifications as an expert in
predicting future dangerousness of criminals,
told the jury that he had examined and testified

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with respect to approximately 1500 persons
charged with crimes to evaluate their
competency to stand trial and their sanity at
the time of their alleged offenses. The
prosecutor, in his “hypothetical” question,
described a criminal and a crime matching in
minute detail Hernandez and the evidence
introduced against him at the guilt phase of
the trial. It is almost certain that reasonable
jurors would have understood that Dr.
Sparks’s prediction of future dangerousness
referred to Hernandez or someone identical
to him who had committed a crime identical
to his. It is also highly probable that
reasonable jurors would have inferred that
Hernandez was one of the 1500 persons
charged with crimes who had been examined
psychiatrically by Dr. Sparks.
The majority opinion does not present
the facts objectively or impartially when it
states that “[t]he difficulties began when
defense counsel seized the opportunity to
develop on cross-examination a mitigation
theory that rested on an old diagnosis of
chronic schizophrenia made of Hernandez
during an earlier prison stay for robbery.”
Maj. Op. at 6. It is easy to understand why the
prosecution would advocate this view. But in
truth the difficulties began when the
prosecution called Dr. Sparks, who had
examined Hernandez without giving notice to
his enrolled defense counsel, and had the
doctor, under the guise of a transparent
hypothetical, diagnose Hernandez as a person
having an “antisocial personality” and predict
that “there’s a high likelihood that he would
continue to perform acts that are a danger to
society.” Defense counsel introduced
Hernandez’s prior medical records without any
objection by the prosecution. Defense counsel
properly used these records to impeach the
testimony of Dr. Sparks that Hernandez was a
sociopathic menace to society as erroneous
because he had not taken into account the

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reliable diagnoses of Hernandez as a chronic
paranoid schizophrenic. The prosecutor
then aggravated those “difficulties” by
attempting to rehabilitate his witness on
redirect by asking Dr. Sparks about his
pretrial psychiatric examination of
Hernandez and the doctor’s diagnosis of
Hernandez’s mental condition at that time.
There is no legal or factual basis for the
majority’s assertion that, “There is no
suggestion that Hernandez did not have a
full opportunity to consult with counsel
about the scope of the examination, both
with regard to its use to demonstrate
competency and to develop possible
mitigating evidence.” Maj. Op. at 9. The
burden is on the State to prove its defense to
Hernandez’s Sixth Amendment claim–that
Hernandez had actual notice of the scope of
the pretrial psychiatric examination–not on
Hernandez to prove his lack of knowledge.
2 JAMES S. LIEBMAN & RANDY HERTZ,
FEDERAL HABEAS CORPUS PRACTICE AND
PROCEDURE § 31.2, at 1322 (1998 & Supp.
2000) (“[T]he state . . . bears the burden of
proving by a preponderance of the evidence all
dispositive facts necessary to establish the
prerequisites for a defense on which it
relies.”); see, e.g., Satterwhite v. Texas, 486
U.S. 249, 255 (1988) (rejecting State’s
argument that a defendant may be
constructively notified of the scope of a
pretrial examination). Factually, the assertion
that there has been “no suggestion” that
Hernandez was not given the opportunity to
consult with his counsel about the possibility
that the pretrial psychiatric examination might
encompass the penalty phase future
dangerousness issue is also incorrect. The
Texas Court of Criminal Appeals found
unequivocally that “[t]he record does not
demonstrate that Dr. Sparks warned
[Hernandez] that anything [he] said could be
used against him at a sentencing proceeding.”

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19
Hernandez v. State, 805 S.W.2d 409, 411
n.2 (Tex. Crim. App. 1990) (en banc). And,
as recognized by the federal district court in
these proceedings, “it is uncontested
petitioner’s trial counsel w[ere] never
advised Dr. Sparks’[s] competency
evaluation would also address the issue of
petitioner’s future dangerousness.”
Memorandum Opinion and Order at 103.
Indeed, there was ample evidence
that neither Hernandez nor his counsel were
informed that his statements could be used
by Dr. Sparks at a capital penalty trial to
predict his future dangerousness. The state
trial court, in its pretrial psychiatric
examination order, did not give Hernandez
or his counsel such notice. Dr. Sparks
testified that he did not give Hernandez
notice prior to the psychiatric examination
that the examination data could be used by
the doctor to testify against him at the death
penalty hearing. The state courts never
found that Hernandez or his counsel had
notice that the pretrial psychiatric examination
could encompass the future dangerousness
issue, and it is error for the majority to make
such an inference from the record here.
The majo rity opinion also
micharacterizes the facts of the state
proceedings when it states that “[t]he defense
lodged no objection to the use of the
hypothetical, apart from an error in the
recitation.” Maj. Op. at 9. Defense counsel
also objected to the hypothetical question on
the grounds that it called for Dr. Sparks to
express an expert opinion on future
dangerousness without first establishing the
medical knowledge, techniques, and data in the
particular case upon which his opinion was
based; and to Dr. Sparks’s testimony to
whether Hernandez will have a future mental
state or condition because that is an ultimate
issue for the jury alone.
In order to understand the significance

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20
of the legal errors the majority opinion
leaves uncorrected, the factual and
procedural background of Hernandez’s
claims must be fully and accurately set forth.
II.
A.
On May 15, 1985, Rodolfo Baiza
Hernandez was charged by indictment with
the March 7, 1985, murder of Victor
Cervan, one of five Mexican nationals whom
he had robbed, shot, and abandoned in a
remote area of Comal County, Texas. On
April 8, 1985, the 207th Judicial District
Court for Comal County, Texas, in New
Braunfels, appointed two attorneys in private
practice to represent him. At his
arraignment, Hernandez pleaded not guilty.
The State announced its intention to seek the
death penalty.
On August 23, 1985, defense counsel
for Hernandez filed a motion alleging that (1)
the defendant was not competent to stand trial
due to his inability to understand the
proceedings or to rationally consult with
counsel; (2) the defendant had been examined
and treated for mental disorders from 1969 to
1985 by medical experts of the United States
Army, the Texas Department of Corrections
(“TDC”), and Bexar County, Texas; and (3)
counsel had not been able to determine
whether to present an insanity defense.
The defense counsel’s motion
requested that the court (1) appoint a
“qualified disinterested expert at County
expense to conduct a mental examination of
the Defendant with regard to [his] competency
to stand trial,” and to file a written report of
the examination with the court and counsel;
(2) grant defense counsel funds and permission
to select an expert to examine the defendant
relative to his competency to stand trial; (3)

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21
notify defense counsel as to the date, time,
and place of the examination to enable
counsel to attend the examination; (4) take
notice that defense counsel “specifically
objects to any such examination unless the
defense counsel are afforded an opportunity
to be present”; (5) alternatively, order the
entire examination video-recorded for
defense counsel’s use and benefit; (6) order
the medical examiner to include in his report
observations and findings regarding
Hernandez’s competence to stand trial, his
status as to mental illness and retardation,
and required or recommended observation,
treatment, or hospitalization; and (7)
schedule a hearing to determine whether the
defendant was competent to stand trial.
The state trial court on August 23,
1985, entered an order (1) denying defense
counsel’s requests for funds with which to
employ an independent psychiatrist to
examine and report on Hernandez’s mental
capacity, advance notice of the time and
location of the examination, the right to attend
the examination, and the right to select a
court-appointed expert; (2) appointing Dr.
John C. Sparks, a psychiatrist employed by the
Bexar County, Texas, courts, “whose address
is 2nd Floor, Bexar County Jail, San Antonio,
Texas,” to conduct a mental examination of
Hernandez regarding competency to stand
trial, file a written report with the court, and
furnish a copy to defense counsel no later than
August 30, 1985; (3) ordering the Comal
County Sheriff’s Department to transport
Hernandez to Dr. Sparks’s office for the
examination; (4) declaring that Dr. Sparks
would be advised by the court of the facts and
circumstances of Hernandez’s charged offense
“and the meaning of incompetency to stand
trial”; (5) ordering Dr. Sparks to include in his
written report a description of the
examinations and procedures used, the
doctor’s observations and findings pertaining

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22
to competence to stand trial, the doctor’s
opinion as to Hernandez’s mental illness or
retardation, and the doctor’s prescription of
needed observation, treatment, or
hospitalization; (6) ordering Dr. Sparks to
complete and submit a Certificate of Medical
Examination for Mental Illness, if necessary;
(7) ordering Dr. Sparks to conduct a mental
examination of Hernandez as to the issue of
insanity at the time of the alleged offense and
file a written report in this regard with the
court and counsel, containing a description
of the examination procedures, observations
and findings pertaining to the insanity
defense; (8) ordering that a pretrial hearing
on the defendant’s mental competency to
stand trial be held by the trial court on
September 9, 1985, at the Comal County
Courthouse, New Braunfels, Texas; and (9)
ordering that the defendant be permitted to
notify the court and the State whether he
intended to offer evidence of the insanity
defense within twenty-four hours after receipt
of the expert’s report.
Hernandez was transported to San
Antonio, Texas, by the Comal County
Sheriff’s Department, where, on August 26,
1985, Dr. Sparks, a forensic psychiatrist
employed full-time by the Bexar County
courts, interviewed Hernandez in custody at
the Bexar County jail in San Antonio for
approximately eighty minutes and concluded
that he was competent to stand trial. Dr.
Sparks did not obtain or review Hernandez’s
U.S. Army or TDC psychiatric or medical
records, although defense counsel’s motion
put the court and Dr. Sparks on notice of
them. Dr. Sparks obtained and reviewed a
single report by Dr. Richard Cameron, an
employee of the Bexar County courts, dated
April 2, 1974, regarding a psychiatric
examination conducted for the purposes of
determining Hernandez’s competency to stand
trial for two aggravated robbery charges. Dr.

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23
Cameron’s report concluded that Hernandez
“present[ed] the clinical picture of
schizophrenia, schizo-affective type, with
paranoid ideation.” In a letter to the trial
judge attached to his official report, Dr.
Sparks reported his findings that Hernandez
was mentally competent to stand trial and
probably had been since March 7, 1985; that
Hernandez was neither mentally ill nor
mentally retarded; and that Hernandez
suffered from an antisocial personality
disorder. In the body of the report itself, Dr.
Sparks observed that he “found no evidences
[sic] from []his examination to suggest the
presence of the psychosis described in
1974”; but he did not otherwise refer to or
discuss Dr. Cameron’s 1974 diagnosis of
Hernandez’s schizophrenia. The record
reflects that Dr. Sparks’s report was mailed
to defense counsel on August 27, 1985.
Hernandez’s defense counsel were
not informed that the scope of the
psychiatric examination of Hernandez by Dr.
Sparks on August 26, 1985, would encompass
the issue of Hernandez’s future dangerousness.
The court’s August 23, 1985, order did not
notify defense counsel that the examination
would include an inquiry into Hernandez’s
future dangerousness. Defense counsel’s
motion had not asked for an inquiry into future
dangerousness, and they had specifically
objected to any examination unless they were
afforded notice and an opportunity to be
present. The trial court denied the defense
counsel’s motion entirely. Therefore, the
pretrial psychiatric examination of Hernandez
was not the kind of examination his counsel
had requested. Instead, it was the type of
examination to which defense counsel had
expressly objected.
Moreover, contrary to the majority’s
assertion, Hernandez’s counsel’s original
request for a separate report regarding mental
illness or retardat ion did not in any way

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24
indicate that they expected, were given
notice, or agreed that future dangerousness
would be within the scope of the pretrial
examination by a disinterested expert that
they requested. Defense counsel’s motion
cited its uncertainty about whether to pursue
an insanity defense at trial, and made no
mention of sentencing issues; therefore, the
record only supports reading the request for
a separate report on mental illness and
retardation as preparation of a mental status
defense at trial, and not as an anticipation of
the sentencing issue of future dangerousness.
By reading such anticipation into the defense
counsel’s motion, the majority jumps to a
conclusion that has no support in the record.
Indeed, the state habeas trial court’s fact-
findings, to which we are bound to accord a
presumption of correctness, 28 U.S.C. §
2254 (e)(1) (2000), state clearly that the
“request for the appointment of an expert
was made solely for the purposes of
examining the defendant relative to his
competency, filing a report, and testifying
regarding competency at any trial or hearing.”
(Emphasis in original) (internal quotations and
brackets omitted).
Furthermore, Dr. Sparks testified that he
did not warn Hernandez before the
examination that anything he said could be
used against him at a sentencing phase. See
Hernandez v. State, 805 S.W.2d 409, 411 n.2
(Tex. Crim. App. 1990) (en banc) (noting that
deficiency in the record, and citing Powell, 492
U.S. at 681 (in turn citing Estelle v. Smith,
supra, which precludes a State’s psychiatric
examination of a capital defendant
encompassing the issue of his future
dangerousness unless his counsel is notified in
advance of the scope of the examination and
the defendant is also forewarned)).
At the competency trial, Dr. Sparks
testified that he had examined Hernandez on
August 26, 1985. Dr. Sparks testified that,

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25
despite suffering from an antisocial
personality disorder, Hernandez was
mentally competent to stand trial. In the
report filed by Dr. Sparks and introduced
into evidence at the competency hearing, he
concluded that Hernandez was neither
mentally ill nor retarded. The defense
counsel agreed to the introduction of the
report “for the purposes of [the competency]
hearing only.” The majority incorrectly
faults Hernandez’s counsel for not objecting
to Dr. Sparks’s testimony during the
competency hearing. The hearing was
limited to Hernandez’s competency to stand
trial. That is all Dr. Sparks testified to at
that hearing; he said nothing about
Hernandez’s future dangerousness.
Therefore, Dr. Sparks’s testimony regarding
the pretrial psychiatric examination was not
objectionable, and Hernandez’s counsel had
no reason to believe that that examination
would later be used improperly during Dr.
Sparks’s penalty phase testimony.
On September 12, 1985, the competency
trial jury found Hernandez competent to stand
trial, and the trial court rendered judgment to
that effect, which was signed on September
16, 1985.
B.
After a three-day guilt-phase trial,
Hernandez was convicted by a jury of capital
murder on September 25, 1985.
At Hernandez’s capital punishment
sentencing hearing on September 26, 1985, the
prosecution introduced additional evidence:
(1) the testimony of two law enforcement
officers that Hernandez had a bad reputation in
the community regarding peace and law-
breaking; (2) a “pen packet” identifying
Hernandez as having been convicted in 1974
for two separate armed robberies; (3)
testimony of Hernandez’s former parole officer

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26
that Hernandez’s parole from his prison
sentence for the armed robbery convictions
had been revoked in 1983 for possession of
two handguns; and (4) the testimony of Dr.
Sparks.
Dr. Sparks was called as an expert
witness in the field of forensic psychiatry by
the prosecution. He testified that he was a
psychiatrist employed by Bexar County,
Texas; that he graduated from the University
of Illinois College of Medicine in 1953 and
had completed a residency in psychiatry at
the Illinois Psychiatrist Institute in 1960; that
he was licensed in Michigan and Texas and
certified by the American Board of
Psychiatry; that he had worked in the
military as a psychiatrist for twenty years;
and that for the past five years he had
worked for the state courts in Bexar County
as a forensic psychiatrist engaged in
examining and testifying with respect to
approximately 1500 persons charged with
crimes to evaluate their competency to stand
trial and their sanity at the time of their alleged
offenses.
Dr. Sparks was not tendered to defense
counsel for cross-examination on his
qualifications or on the relevance and
reliability of his opinion; nor does the record
show that the court found him to be qualified
or his opinion reliably and relevantly based on
the methodology of his field of expertise and
the facts and data in the particular case.
Defense counsel, however, did not make any
threshold objection to Dr. Sparks’s testimony.
On direct examination, the prosecution
asked Dr. Sparks what it termed a
“hypothetical” question. First, the prosecutor
asked Dr. Sparks to assume as true a detailed
description of a capital murder by a so-called
“hypothetical” offender, as well as a detailed
description of the prior criminal record of that
offender. Second, Dr. Sparks was asked to
express his opinion as to whether the offender

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27
would commit criminal acts of violence that
would constitute a continuing threat to
society. The defense counsel objected that
the prosecution had failed to establish an
evidentiary or medical basis for such an
opinion; that the opinion would either be a
baseless conclusion or else would be based
on extrajudicial evidence in violation of
Hernandez’s right to confront the witnesses
against him; and that Dr. Sparks’s answer
would constitute an opinion upon the
ultimate issue of future dangerousness and
thus an invasion of the province of the jury.
After the trial court overruled the objection,
defense counsel moved for a mistrial on
grounds that the jury would be unfairly and
unduly prejudiced by Dr. Sparks’s opinion as
to future dangerousness for which the
prosecution had established no evidentiary
basis, but the court overruled that objection
also. Pursuant to t he trial court’s rulings,
Dr. Sparks testified that, in his opinion,
“there’s a high likelihood that he would
continue to perform acts that are a danger to
society.”
The prosecution’s question plainly referred
to the particular evidence that had been
presented against Hernandez in both the guilt
and penalty phases of the trial. The criminal
record Dr. Sparks was asked to assume
mirrored Hernandez’s “pen packet,”
introduced into evidence at the penalty phase.
The detailed description of the so-called
“hypothetical” murder identically matched the
unique details and circumstances of the capital
murder of which the jury had found Hernandez
guilty.1 6 Consequentl y, the jury
16 The prosecutor described the
criminal conduct of the hypothetical offender
as follows:
[ P ] l e a s e a s s u m e t h e
following[:] That on March 7,
1985, this man introduced
himself to five illegal aliens in
San Antonio, that he made a
deal to take them to Dallas and
that he got his brother-in-law
out of bed who then along with
this person drove the five men
to a remote area in northwest

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28
Comal County[.]
Assume further that
this person and his
brother-in-law got
the five men out of
the car and at
gunpoint walked
them up a small
hill[.] Assume
further that in
walking them up that
hill one of the five
men stumbled and
was shot by this
person in the back[.]
Assume that this
person then made all
five men lay down
face up[.] Assume
further that this
person then at
gunpoint demanded
their possessions or
property and then
began systematically
shooting each of
them[.] Assume
further that on at
least two of the men
that the gun was no
more than two to
four inches from
their throats when he
fired the gun into
t h e i r b o d y [ . ]
Assume further that
after this person
emptied the first gun
of bullets, he went to
his brother-in-law
and exchanged guns
and then returned
firing the gun once
more at the men on the
ground[.] Assume
further that this person
and his brother-in-law
then left all five men
who had been seriously
injured by gunfire and
drove away[.] Further
assume that this person
arrived at his mother’s
house and upon
hearing the news of the
shooting of the five
illegal aliens on the day
of the crime, he stated
that President Reagan
had called him and that
the President had told
him, had called him
personally to his house
and said that the State
was overpopulated and
asked him to help him
get rid of some of the
aliens that were
coming over here to
San Antonio, to the
United States, and that
h e t h e n b e g a n
laughing, twirling a
gun and stating he was
a g u n - s l i n g e r [ . ]
Assume further that
shortly thereafter this
person was with
another man and that
this person was
twirling two guns with
his hands, and after
h e a r i n g a n o t h e r
broadcast about the

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29
must have understood that Dr. Sparks was
referring to Hernandez or an offender
identical to him when he said “there’s a high
likelihood that he would continue to perform
acts that are a danger to society.” Also, it is
likely that the jurors reasonably assumed that
a psychiatrist possessing Dr. Sparks’s
qualifications must have had an adequate
basis in fact and medical knowledge to support
such an opinion. See, e.g., Satterwhite v.
Texas, 486 U.S. 249, 259 (1988).
On cross-examination, without objection
by the prosecution, defense counsel introduced
Hernandez’s TDC medical records showing
that he had been diagnosed and treated while
in prison, for chronic paranoid schizophrenia;
and that Hernandez’s treatment had included
antipsychotic drugs (Stelazine and Thorazine),
electro-convulsive treatments, neurotone
treatments, and psychotherapy. Further,
defense counsel elicited testimony from Dr.
Sparks that chronic paranoid schizophrenia
fluctuates between stages of acuteness and
remission, but is considered to be a lifelong
illness; that the symptoms of the disease can be
reversed or controlled, however, by
medication, psychotherapy, and environmental
changes; that unrealistic or illogical thinking
and auditory hallucinations, as, for example, a
belief in hearing spoken commands or
shooting of
t h e f i v e
illegal aliens
this person
said he had
killed one of
the illegal
aliens and
s h o t t h e
others, that
P r e s i d e n t
Reagan had
called him
and said that
the United
S t a t e s i s
overpopulate
d, that so
many people
needed to be
killed during
a c e r t a i n
time, and
was laughing
and talking
about it.

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30
instructions by an authority figure, such as
the President, are common symptoms of the
disease; and that, if Hernandez had been
correctly diagnosed as having chronic
paranoid schizophrenia, it was possible that
he was besieged by hallucinations before,
during, and after his commission of the
capital murder and related offenses. With
this evidence, defense counsel sought to
demonstrate that Dr. Sparks’s opinion could
not relevantly or reliably assist the jury in
deciding whether there was a probability that
Hernandez would commit criminal acts of
violence that would constitute a continuing
threat to society, because in forming his
opinion Dr. Sparks had been asked to
assume only the offender’s criminal acts and
had not been asked to assume the significant
factor of chronic paranoid schizophrenia that
was present in Hernandez’s medical history.
Also, when asked by defense counsel
whether forensic psychiatry was an exact
science like mathematics, Dr. Sparks replied
that it was “[n]ot exactly guesswork but
experience and use of what contacts we’ve had
with the person.” Thus, the jury may have
gathered that Dr. Sparks’s opinion regarding
Hernandez’s future dangerousness was based
on actual contacts with Hernandez.
On redirect examination, the prosecutor
asked Dr. Sparks for his opinion as to the type
of “personality behavioral problem[ of] the
man that was described in my hypothetical to
you . . . would have?” Dr. Sparks testified:
“Assuming a great deal, because it did not
describe him but it described certain things in
his life, the behavior appears to be closest to a
description that is labeled the antisocial
personality.” Thus, at this point, Dr. Sparks,
by “assuming a great deal” that had not been
introduced into evidence, made a psychiatric
diagnosis of the “hypothetical” offender as
having an antisocial personality. Accepting the
prosecutor’s invitation to elaborate on “love

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31
and compassion relative to these
individuals,” Dr. Sparks added, “they have
very little concern about others. They tend
to be focused on their own desires and
forget any consequences that might occur or
the effect on other people.” Further, Dr.
Sparks agreed with the prosecutor’s
suggestion that it would “be fair to say then
that this type of person could kill without
any problem whatsoever.”
On recross examination, Dr. Sparks
agreed with defense counsel that a person
with paranoid schizophrenia can have
problems with love, marriage, legal
violations, fear of other people, and bizarre
behavior. At defense counsel’s request, Dr.
Sparks examined Hernandez’s TDC medical
records and testified that Hernandez
appeared to have been confined in the
prison’s psychiatric treatment unit between
September 10 and November 11, 1975; that
Hernandez was on medication during his
confinement there; and that, “at that time []
[h]is diagnosis was schizophrenic, paranoid
type, chronic, moderately severe; and his
prognosis . . . was guarded, meaning that the
doctor did not know whether he would
continue to function well or would again have
an illness as severe as he had had.”
On redirect examination, the prosecutor
abruptly abandoned the posture of asking
hypothetical questions and immediately asked
Dr. Sparks if he had examined Hernandez in
August 1985. When the doctor answered in
the affirmative, the prosecutor asked: “Based
on that examination what was your
impression?”
The court interrupted and asked counsel to
approach the bench. In the bench conference,
the defense counsel stated that he would
object to “all of this[.]” The prosecutor
argued that the defense counsel had “opened
the door” by going “into his medical past
which we didn’t touch.” The jury was sent

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32
out.
Out of the presence of the jury, defense
counsel objected to the question on the
grounds that Hernandez had made
statements prejudicial to his penalty phase
defense during the examination without valid
waivers of Hernandez’s rights under the
Fifth and Sixth Amendments. The court
invited the prosecutor to examine the doctor
concerning the advice of rights. Dr. Sparks
testified that, prior to the examination, he
reviewed with Hernandez an outline of the
advice of rights, had him read it, and
Hernandez signed it. The doctor further
testified that the rights as he had them listed
were the right to remain silent, to have his
attorney present during the examination, and
to terminate the examination, but that the
rights did not include a warning that
anything Hernandez said during the
examination could be used against him at the
penalty phase of the trial; and that “Mr.
Hernandez read it through and he signed a
form that I have provided for that purpose
indicating that he understood what was on the
form.” During these proceedings, the State
did not offer any evidence to show that
defense counsel had been notified or given an
opportunity to confer with Hernandez prior to
Dr. Sparks’s psychiatric examination of him.
The court ruled that the witness would be
allowed “to testify as to his medical findings,
all of which have been opened up by questions
presented by” defense counsel. However, the
court also ruled that, because it had denied the
defense counsel’s request to be present during
the examination, “this witness will not be
allowed to testify about any probabilities that
Hernandez would be a continuing threat to
society based upon the interview.” The court
noted that defense counsel had re-urged his
objection and would have a continuing bill of
exception.
When the jury returned, Dr. Sparks, on

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33
redirect examination, testified that he had
examined Hernandez in August 1985 and
diagnosed “the type of personality or type of
problem” he had as “301.70 antisocial
personality disorder.” On recross, he
testified that he conducted a “mental status
examination” of Hernandez for eighty
minutes; that a mental status examination
does not cover any family history; that he
asked for but did not obtain or review
Hernandez’s TDC medical records for
purposes of his examination, report, and
competency hearing testimony; that he
would like to have had them during the
examination because they were important;
that he would like to have known if
Hernandez was taking a drug like Doxepin at
that time because that was important; and
that he did not examine Hernandez
physically or perform any medical tests on
him. On redirect, Dr. Sparks testified that,
if he had reviewed Hernandez’s prison
medical records prior to his examination,
rather than for the first time during the penalty
hearing, he would have made two diagnoses
instead of one: “The initial diagnosis would
have been paranoid schizophrenia in remission,
the second diagnosis would be antisocial
personality disorder.” On recross, Dr. Sparks
testified that Hernandez’s chronic paranoid
schizophrenia could have been in an acute
stage, rather than in remission, at the time of
the crime on March 7, 1985. On redirect, the
court overruled defense counsel’s objection to
lack of proper predicate and allowed the
prosecutor to elicit the following testimony
from Dr. Sparks:
People who have [chronic paranoid
schizophrenia] . . . are generally well
organized, are generally reasonably
intelligent, and although the plans may
be part of the illness, they can make
and do make plans. When they’re free

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34
of the illness the plans
deal with a real situation,
during the illness they
frequently deal with
delusional ideas.
He also testified, “In the description given to
me in the [prosecutor’s initial hypothetical
question,] there was no indication of any
illness; there was indication of a particular
kind of behavior, and that is the type of
behavior found in antisocial person [sic]
disorder.” On final recross, the doctor
agreed with defense counsel that
it’s possible for someone [with
paranoid schizophrenia] to think or
believe that they’re President
Reagan’s right-hand man, a gun-
slinger, and they have heard voices
of President Reagan and carry out a
plan for [him] and still be able to do
other things that would seem to be
normal . . . and be suffering from the
disease of paranoid schizophrenia.
In summary, Dr. Sparks testified that he
had previously examined Hernandez for mental
competency and, based on that examination
and Hernandez’s TDC medical records
introduced at the penalty hearing, was of the
opinion that (1) Hernandez had an antisocial
personality; (2) Hernandez also had chronic
paranoid schizophrenia; (3) chronic paranoid
schizophrenia is a continuing, fluctuating,
incurable mental illness that can be controlled
by antipsychotic medication, therapy, and
environmental changes; (4) an antisocial
personality is a permanent mental condition
that cannot be cured by any treatment or
medication; (5) at the time of Dr. Sparks’s
mental competency examination, Hernandez’s
chronic paranoid schizophrenia was in
remission and was not being suppressed by

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35
medication; (6) at the time of the crime it is
possible that Hernandez’s chronic paranoid
schizophrenia was active, rather than in
remission, although Dr. Sparks could not
opine as to which; and (7) anyone having an
antisocial personality such as Hernandez’s,
as determined by Dr. Sparks from his
examination of Hernandez and the
information supplied him about Hernandez’s
criminal activity, probably would present a
continuing threat to society.
In Hernandez’s defense at the penalty
hearing, his attorney elicited the testimony of
his cousin, who had lived with his family
while he was a child. She testified that
Hernandez had been the victim of severe
physical and mental abuse between the ages
of three and thirteen years. The cousin
indicated that Hernandez, as the oldest child,
received the brunt of his mother’s physical
abuse, which in turn stemmed from her own
continual physical abuse by her husband.
The cousin testified to two particular incidents
she had witnessed. When Hernandez was still
a small child, she said, his mother had beaten
him with a broom, breaking the broom handle
over his head and leaving him lying on the
floor. In another incident, she testified, he had
been taken into a bedroom by his parents and
beaten severely with a large-buckled belt.
Defense counsel also introduced drug records
from the county jail, which showed that
Hernandez had regularly signed receipts for
doses of Doxepin, a tranquilizer and
antidepressant, for five days prior to his mental
examination by Dr. Sparks.
In accord with the capital sentencing
statute then in effect,17 Hernandez’s jury was
17 TEX. CODE CRIM. PROC. ANN. art.
37.071(b)(1) & (2) (Vernon 1981). The third
special issue authorized by article
37.071(b)(3)–“if raised by the evidence,
whether the conduct of the defendant in killing
the deceased was unreasonable in response to
the provocation, if any, by the
deceased[]”–was not presented to Hernandez’s
jury. Neither the State nor Hernandez
objected to its omission. In 1991, the Texas
Legislature substantially amended the statute

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36
instructed that it was to answer two “special
issues”:
[1] Was the conduct of the
Defendant, RODOLFO BAIZA
HERNANDEZ, that caused the
death of the deceased, VICTOR
MANUEL SERRANO CERVAN,
committed deliberately and with the
reasonable expectation that the death
of the deceased or another would
result?
* * *
[2] Is there a probability that the
Defendant, RODOLFO BAIZA
HERNANDEZ, would com mit
criminal acts of violence that would
constitute a continuing threat to
society?
The jury was also instructed that
in determining each of these Special
Issues you may take into consideration
all of the evidence submitted to you in
the full trial of the case, that is, all of
the evidence submitted to you in the
first part of this case wherein you were
called upon to determine the guilt or
innocence of the Defendant, and all of
the evidence, if any, admitted before
you in the second part of the trial
wherein you are called upon to
determine the answers to Special
Issues hereby submitted to you.
The jury was not specifically instructed that it
by, inter alia, adding a requirement that the
jury, after returning an affirmative finding on
each special issue, answer: “Whether, taking
into consideration all of the evidence,
including the circumstances of the offense,
the defendant’s character and background,
and the personal moral culpability of the
defendant, there is a sufficient mitigating
circumstance or circumstances to warrant
that sentence of life imprisonment rather
than a death sentence be imposed.” TEX.
CODE CRIM. PROC. ANN. art. 37.071(e)(1)
(Vernon 2000).

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37
could consider or give effect to “mitigating
evidence.”
The jury unanimously answered “yes” to
the two requisite questions, and, as required
by Texas law, the trial court sentenced
Hernandez to death. The Texas Court of
Criminal Appeals affirmed Hernandez’s
conviction and death sentence. Hernandez
v. State, 805 S.W.2d 409 (Tex. Crim. App.
1990) (en banc). On motion for rehearing,
Hernandez objected to the court’s failure to
address the issue of whether he had been
deprived of his Sixth Amendment right to
counsel, although it arose from the same
conduct complained of in his Fifth
Amendment claim based on Estelle v. Smith.
The court of criminal appeals denied
rehearing without comment. The United
States Supreme Court denied Hernandez’s
petition for a writ of certiorari on June 3,
1991. Hernandez v. Texas, 500 U.S. 960
(1991).
III.
A.
After unsuccessfully seeking a writ of
habeas corpus in the Texas state courts,
Hernandez filed the instant petition for federal
habeas relief in the United States District for
the Western District of Texas. Because
Hernandez filed his petition on April 16, 1997,
his case is governed by the habeas statute as
amended by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”).
Lindh v. Murphy, 521 U.S. 320, 326-27
(1997). Section 2254 of the habeas statute, in
pertinent part, now provides:
(d) An application for a writ of habeas
corpus on behalf of a person in
custody pursuant to the judgment of a
State court shall not be granted with
respect to any claim that was

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38
adjudicated on the merits
i n S t a t e c o u r t
proceedings unless the
adjudication of the
claim–
(1) resulted in a decision that was
contrary to, or involved an
unreasonable application of, clearly
established Federal law, as
determined by the Supreme Court of
the United States.
28 U.S.C. § 2254(d)(1) (1994 & Supp.
2000).
A state prisoner may obtain federal
habeas relief with respect to a claim
adjudicated on the merits in two categories
of cases defined by subsection (d)(1): cases
in which “the relevant state-court decision
was either (1) contrary to . . . clearly
established Federal law, as determined by the
Supreme Court of the United States, or (2)
involved an unreasonable application of . . .
clearly established Federal law, as determined
by the Supreme Court of the United States.”
Williams v. Taylor, 529 U.S. 362, 404-05
(2000) (O’Connor, J., delivering the opinion of
the Court with respect to Part II (except as to
the footnote)).
A state-court decision will be contrary to
the Supreme Court’s clearly established
precedent if the state court applies a rule that
contradicts the governing law set forth in the
Supreme Court’s cases. Id. at 405. Also, a
state-court decision will be contrary to the
Court’s clearly established precedent if the
state court “confronts a set of facts that are
materially indistinguishable from a decision of
th[e] Court and nevertheless arrives at a result
different from [the Court’s] precedent.” Id.
“Accordingly, in either of these two scenarios,
a federal court will be unconstrained by §
2254(d)(1) because the state-court decision
falls within that provision’s ‘contrary to’

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39
clause.” Id. at 406.
In general, a state-court decision
involves an unreasonable application of the
Court’s precedent if the state court
“identifies the correct governing legal rule
from the [Supreme Court’s] cases but
unreasonably applies it to the facts of the
particular state prisoner’s case.” Id. at 407.
The majority correctly identifies this
standard, but neglected to note that a state-
court decision also involves an unreasonable
application of Supreme Court precedent if
the state court either unreasonably extends a
legal principle from that precedent to a
context where it should not apply or
unreasonably refuses to extend that principle
to a context where it should apply. Id.
[A] federal habeas court making the
“unreasonable application” inquiry
should ask whether the state court’s
application of clearly established
federal law was objecti vely
unreasonable. The federal habeas
court should not transform the inquiry
into a subjective one by resting its
determination instead on the simple
fact that at least one of the Nation’s
jurists has applied the relevant federal
law in the same manner the state court
did in the habeas petitioner’s case.
Id. at 409-10. The Court disapproved the “all
reasonable jurists” standard as misleading
federal habeas courts into a subjective inquiry.
Id. at 410. “Under § 2254(d)(1)’s
‘unreasonable application’ clause . . . a federal
habeas court may not issue the writ simply
because that court concludes in its independent
judgment that the relevant state-court decision
applied clearly established federal law
erroneously or incorrectly. Rather, that
application must also be unreasonable.” Id. at
411.

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40
“[C]learly established Federal law, as
determined by the Supreme Court of the
United St ates [] refers to the holdings, as
opposed to the dicta, of [the] Court’s
decisions as of the time of the relevant state-
court decision.” Id. at 412. Thus, the
source of clearly established law is restricted
by section 2254(d)(1) to the Supreme
Court’s jurisprudence. Id.
The majority’s recitation of the Williams
standard of review is incomplete, in that it
does not fully examine the meaning of the
“unreasonable application” prong of section
2254(d)(1), nor does it emphasize the
statute’s explicit instruction that the law to
be applied to habeas petitioners’ claims be
limited to clearly established Supreme Court
precedent. Moreover, after reciting the
incomplete passages from Williams prior to
analyzing Hernandez’s claims, the majority
fails in the body of its analysis of those
claims to incorporate the Williams standard
of review and examine its interplay with the
particular facts and proceedings here.
B.
1.
In his first claim, Hernandez contends that
he was denied his constitutionally guaranteed
Sixth Amendment right to counsel because (1)
the state court subjected him to a custodial
examination by a state psychiatrist, without
advance notice to his defense counsel of the
time, place, scope, or nature of the
examination; (2) the state psychiatrist
concluded from the examination that
Hernandez had an antisocial personality
disorder and probably would commit crimes of
violence and be a continuing threat to society;
and (3) the prosecution elicited testimony from
the psychiatrist at the capital penalty hearing
that he (a) had examined Hernandez prior to

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41
trial, (b) had diagnosed Hernandez as having
an untreatable antisocial personality
disorder, and (c) was of the opinion that
Hernandez, or a sociopath who had
committed the crimes ascribable to
Hernandez, probably would commit crimes
of violence and be a continuing threat to
society.
The threshold question under the
AEDPA is whether Hernandez seeks to
apply a rule of law that was clearly
established at the time his state-court
conviction became final on June 3, 1991.
That question is easily answered because the
merits of his claim are squarely governed by
the Supreme Court’s holdings in Estelle v.
Smith, 451 U.S. 454 (1981); Satterwhite,
supra; and Powell v. Texas, 492 U.S. 680
(1989). The majority completely and
erroneously ignores these control ling
Supreme Court precedents.18
The Court held in Estelle v. Smith that a
formally charged capital defendant’s Sixth
Amendment right to counsel precludes the
18 In limiting its legal focus regarding
Hernandez’s Sixth Amendment claim to White
v. Estelle, 720 F.2d 415 (5th Cir. 1983), the
majority’s analysis of that claim is flawed on
several levels. First, we are mandated by the
AEDPA and by the Supreme Court in Williams
to restrict our analysis of habeas petitioners’
legal claims to the application of clearly
established federal law as established in
Supreme Court precedent, not circuit court
precedent. Second, Estelle v. Smith has been
extended and clarified by the intervening
precedent of Satterwhite and Powell in 1988
and 1989, respectively, as I discuss infra, such
that the majority’s analysis of the 1983
decision of White v. Estelle is largely
irrelevant. The majority, indeed, does not
even mention Powell or Satterwhite in its
analysis. Third, Hernandez does not rely
exclusively on White for the main thrust of his
argument, citing it only twice for the
proposition that a thinly veiled hypothetical
presentation of the future dangerousness issue
will not suffice to remove the State from the
strictures of Estelle v. Smith. Hernandez,
indeed, argues much more extensively that
Powell and Satterwhite control the issue of
whether his Sixth Amendment rights were
violated. Accordingly, the majority’s methods
in bringing up White are at best questionable.
It only sets up White as a strawman to tear
down in an effort to further confuse and avoid
the legal issues presented by Estelle v. Smith,
Satterwhite, and Powell.

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42
State from subjecting him to a psychiatric
examination yielding evidence of his future
dangerousness without first notifying
defense counsel that the psychiatric
examination will encompass the issue of their
client’s future dangerousness. See Powell,
492 U.S. at 681 (citing Estelle v. Smith, 451
U.S. at 461-69). The Court has consistently
recognized that, for a capital defendant,
whether to submit to a psychiatric
examination encompassing the issue of his
future dangerousness “is ‘literally a life or
death matter’ which the defendant should
not be required to face without the ‘guiding
hand of counsel.’” Id. (quoting Smith v.
Estelle, 602 F.2d 694, 708 (5th Cir. 1979);
Powell v. Alabama, 287 U.S. 45, 69 (1932))
(citing Satterwhite, 486 U.S. at 254).
Consequently, when the Sixth Amendment
notice requirement set out in Estelle v.
Smith was not met, the Court held that “the
death penalty was improperly imposed
because the psychiatric examination on which
[the psychiatrist] testified at the penalty phase
proceeded in violation of the [defendant’s]
Sixth Amendment right to the assistance of
counsel.” 451 U.S. at 471; see also Powell,
492 U.S. at 686; Satterwhite, 486 U.S. at 255-
56.
The rule set forth in the Estelle v. Smith
line of Supreme Court cases is “clearly
established Federal law, as determined by the
Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1). Because that clear
establishment occurred before Hernandez’s
state-court conviction became final, the
Court’s precedent “dictated” that the Texas
Court of Criminal Appeals apply those
holdings at the time that court entertained
Hernandez’s Sixth Amendment right to
counsel habeas claim. Williams, 529 U.S. at
391 (citing Teague v. Lane, 489 U.S. 288, 301
(1989)). Hernandez is therefore entitled to
relief if the decision of the Texas Court of

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43
Criminal Appeals rejecting his Sixth
Amendment habeas claim was either
“contrary to, or involved an unreasonable
application of,” that established law. It was
both.
2.
In the state habeas proceedings, the trial
court in effect suggested, without definitely
recommending, that the court of criminal
appeals could, if it had not already implicitly
done so, reject Hernandez’s Sixth
Amendment right to counsel claim for the
same reasons that it had rejected his Fifth
Amendment claim on direct appeal.
Essentially, the state habeas trial court
found and concluded that (1) “[p]etitioner’s
claim of error under Estelle v. Smith, 451
U.S. 454, was raised and rejected on direct
appeal” (citing Hernandez v. State, 805
S.W.2d at 411-12); (2) “[t]he Trial Court . .
. must defer any ruling with regard to [the
Sixth Amendment right to counsel] issue to the
Texas Court of Criminal Appeals, since the
related issues with regard to Dr. Sparks’[s]
evaluation of Petitioner were raised and
rejected on direct appeal”; (3) “the question is
presented as to whether or not the decisions of
Estelle v. Smith . . . and Powell v. Texas . . .
require the presence of counsel where the
state’s mental health expert’s testimony is ‘not
a direct assertion of an expert’s opinion
concerning future dangerousness,’ but rather,
some other form of mental health diagnosis
harmful to the defendant’s case”; and (4) it
could “find no case law authority indicating
that there are Fifth or Sixth Amendment rights
attaching to psychiatric opinions not directly
going to the Texas ‘special issues,’ but, the
trial court believes that the Texas Court of
Criminal Appeals should review this issue
closely to determine if there is such a
requirement.”

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44
On appeal from the state habeas trial
court’s findings and conclusions, including
those concerning Hernandez’s Sixth
Amendment claim, the Texas Court of
Criminal Appeals issued a per curiam order
stating that the findings and conclusions of
the trial court “are supported by the record
and upon such basis the relief sought is
denied.” Consequently, the Texas Court of
Criminal Appeals’s decision rejecting
Hernandez’s Sixth Amendment right to
counsel habeas claim on appeal adopted the
findings and conclusions of the Texas habeas
trial court, viz., that the court of criminal
appeals’s rejection of Hernandez’s Sixth
Amendment right to counsel claim could be
justified as an application or extension of its
holding in rejecting Hernandez’s Fifth
Amendment right against self-incrimination
claim on direct appeal. See Hernandez v.
State, 805 S.W.2d 409 (Tex. Crim. App.
1990) (en banc) (direct appeal). Therefore,
we must refer to the court of criminal
appeals’s decision of Hernandez’s direct
appeal to identify the rule of law that the court
of criminal appeals, by adopting the state
habeas trial court’s findings and conclusions,
applied or extended to reject Hernandez’s
Sixth Amendment right to counsel habeas
claim.
3.
On direct appeal, the Texas Court of
Criminal Appeals had rejected Hernandez’s
Fifth Amendment right against self-
incrimination claim in a full opinion that was
silent with respect to his Sixth Amendment
right to counsel claim. Hernandez v. State,
805 S.W.2d 409 (Tex. Crim. App. 1990) (en
banc) (direct appeal). The court of criminal
appeals formulated the rule of law it applied in
reaching the conclusion that Hernandez’s Fifth
Amendment right had not been violated as

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45
follows.
First, the Texas Court of Criminal
Appeals observed that the Supreme Court in
Estelle v. Smith noted that some courts had
held that the Fifth Amendment does not
prevent a defendant who offers psychiatric
testimony in an insanity defense from being
required to submit to a sanity examination by
the prosecution’s psychiatrist, 805 S.W.2d at
412 (citing Estelle v. Smith, 451 U.S. at
465); and further noted that the court of
appeals in Estelle v. Smith had left open the
possibility of a similar requirement for a
defendant who wishes to use psychiatric
evidence defensively on the issue of future
dangerousness, id. (citing Estelle v. Smith,
451 U.S. at 466 n.10, in turn citing Smith v.
Estelle, 602 F.2d at 705). Second, the Texas
Court of Criminal Appeals noted that the
Supreme Court in Buchanan v. Kentucky,
483 U.S. 402 (1987), had held that the State
did not violate the Fifth Amendment by
introducing excerpts of a psychiatric
evaluation of the defendant to rebut the
defendant ’s affirmative “mental status”
defense, because defense counsel had joined in
the State’s motion to obtain the evaluation and
had introduced evidence from it in support of
the affirmative defense. Id. (citing Buchanan,
483 U.S. at 423). Third, the Texas Court of
Criminal Appeals inferred from the language in
Buchanan and Smith that, “[b]y introducing
[Hernandez]’s TDC psychiatric records and
soliciting Dr. Sparks’[s] opinion concerning
those records, appellant ‘opened the door’ to
the State’s use of the results of his competency
exam for rebuttal purposes.” Id. Fourth, the
Texas Court of Criminal Appeals concluded
that Dr. Sparks’s testimony based on his
psychiatric examination was relevant to, i.e.
tended to prove, Hernandez’s future
dangerousness, but that the trial court had
prevented Dr. Sparks from expressing an
expert opinion directly or specifically upon

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46
Hernandez’s future dangerousness. Fifth,
based on all of these circumstances, the
Texas Court of Criminal Appeals concluded
that Hernandez’s Fifth Amendment right
against self-incrimination had not been
violated.
4.
The facts and legal issues of Powell and
the present case are very similar. Powell, a
capital defendant, was subjected to court-
ordered examinations by a court-designated
psychiatrist and a psychologist chosen by
that doctor, to determine competency to
stand trial and sanity at the time of the
offense. Powell, 492 U.S. at 681. Powell
and his counsel were not notified that he
would be examined on the issue of future
dangerousness. Id. at 682. The State’s
psychiatrist and psychologist testified at the
penalty phase that Powell would commit
future acts of violence that would constitute a
continuing threat to society. Id. In affirming
his death sentence, the Texas Court of
Criminal Appeals held that Powell’s Fifth and
Sixth Amendment rights were not violated
because he waived those rights by introducing
psychiatric testimony in support of his insanity
defense. Id. at 682-83 (citing Powell v. State,
767 S.W.2d 759, 762 (Tex. Crim. App. 1989)
(en banc)). The Texas Court of Criminal
Appeals held that Powell not only waived the
right to object to the State’s use of the
testimony of the state psychiatrist and
psychologist to rebut his insanity defense, but
that he also waived the right to object to the
State’s use of this testimony to satisfy its
burden at sentencing of proving the separate
issue of future dangerousness. Id. (citing
Powell v. State, 742 S.W.2d 353, 357-58
(Tex. Crim. App. 1987) (en banc)). The
Supreme Court reversed the judgment of the
Texas Court of Criminal Appeals because the

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47
state court had “conflated the Fifth and Sixth
Amendment analyses, and provided no
support for its conclusion that petitioner
waived his Sixth Amendment right[.]” Id. at
683.
The Supreme Court in Powell
emphasized the important distinction
between the appropriate Fifth and Sixth
Amendment analyses. The Court noted its
dictum in Estelle v. Smith that a defendant
could waive his Fifth Amendment right by
asserting the insanity defense “and
introduc[ing] supporting psychiatric
testimony, [because] his silence may deprive
the State of the only effective means it has of
controverting his proof on an issue that he
has injected into the case,” 451 U.S. at 465,
and its holding in Buchanan that a defendant
whose defense counsel joined in a request
for a psychiatric evaluation and then
introduced evidence from it to prove a
mental-status defense waived the right to
raise a Fifth Amendment challenge to the
prosecution’s use of other evidence from the
same evaluation to rebut the defense. 483
U.S. at 422-23.
But, as the Powell Court explained, the
Sixth Amendment right to counsel, once it has
attached, unlike the Fifth Amendment Miranda
right, cannot be waived by a capital defendant
acting on his own without the guidance of
counsel:
[T]he waiver discussions contained in
Smith and Buchanan deal solely with
the Fifth Amendment right against
self-incrimination. Indeed, both
decisions separately discuss the Fifth
and Sixth Amendment issues so as not
to confuse the distinct analyses that
apply. No mention of waiver is
contained in the portion of either
opinion discussing the Sixth
Amendment right. This is for good

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48
reason. While it may be
unfair to the state to
permit a defendant to use
psychiatric testimony
without allowing the
state a means to rebut
t hat testimony, it
certainly is not unfair to
require the state to
provide counsel with
notice before examining
the defendant concerning
future dangerousness.
Thus, if a defendant were
t o s u r p r i s e t h e
prosecution on the eve of
trial by raising an insanity
defense to be supported
by psychiatric testimony,
the court might be
justified in ordering a
c o n t i n u a n c e a n d
directing that the defendant
submit to examination by a
s t a t e - a p p o i n t e d
psychiatrist. There would
be no justification,
however, for also directing
that defense counsel
receive no notice of this
examination.
The distinction between the
appropriate Fi fth and Sixth
Amendment analyses was recognized
in the Buchanan decision. In that case,
the Court held that the defendant
waived his Fifth Amendment privilege
by raising a mental-status defense.
This conclusion, however, did not
suffice to resolve the defendant’s
separate Sixth Amendment claim.
Thus, in a separate section of the
opinion the Court went on to address
the Sixth Amendment issue,

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49
concluding that on the
facts of that case counsel
knew what the scope of
the examination would
be before it took place.
Indeed, defense counsel
himself requested the
psychiatric examination
at issue in Buchanan. In
contrast, in this case
counsel did not know
that the [] examinations
[by the state psychiatrist
and psychologist] would
involve the issue of
future dangerousness.
Powell, 492 U.S. at 684-85 (citations
omitted).
Consequently, contrary to the majority’s
erroneous reading and misplaced reliance,
Buchanan is distinguishable and has no effect
upon the Supreme Court’s Sixth Amendment
holdings in Powell, Estelle v. Smith, and
Satterwhite that govern Hernandez’s Sixth
Amendment right to counsel claim. Under
those cases, if the State, although exercising
due diligence, had been genuinely surprised by
the introduction of Hernandez’s medical
records as evidence of his chronic paranoid
schizophrenia, the trial court might have been
justified in ordering a continuance and
directing Hernandez to submit to examination
by a state-appointed psychiatrist. Even in such
a case, however, the State would be required
by the Sixth Amendment right to counsel to
give Hernandez’s counsel notice of the
examination and its scope and an adequate
opportunity to confer with and advise
Hernandez prior to the examination. The
Supreme Court’s cases emphatically do not
permit the State to introduce evidence of
future dangerousness derived from an
unconstitutional examination of a capital

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50
defendant through a violation of his Sixth
Amendment right to counsel, even when the
State has been diligent and can genuinely
claim surprise.
Consequently, under t he actual
circumstances of Hernandez’s case, the
denial by the Texas Court of Criminal
Appeals of Hernandez’s Sixth Amendment
claim was markedly contrary to and in
conflict with the Supreme Court’s decisions
in Powell, Estelle v. Smith, and Satterwhite.
The majority, in its exclusive reliance upon
Buchanan, repeats this error. The State in
Hernandez’s case did not and could not
claim surprise or justifiably ask for a penalty
phase examination of the defendant. Both
the State and Dr. Sparks were placed on
notice and had actual knowledge of
Hernandez’s prior diagnoses of and
treatment for chronic paranoid schizophrenia
by state doctors at the TDC and the county
psychiatrist, Dr. Cameron. In their pretrial
motion for funds to employ a defense
psychiatric expert, defense counsel notified the
court and the State of Hernandez’s mental
illness and prior psychiatric treatment in the
TDC and the military. Dr. Sparks admitted in
his penalty phase testimony that he was aware
of the TDC psychiatric medical records prior
to his pretrial examination of Hernandez. Dr.
Sparks revealed his knowledge of Dr.
Cameron’s prior diagnosis of Hernandez’s
paranoid schizophrenia in his pretrial report
and competency hearing testi mony.
Furthermore, Dr. Sparks was aware of the
facts of the case involving Hernandez’s
auditory hallucinations and bizarre conduct
indicating active paranoid schizophrenia before
he began his testimony. And later in his
testimony Dr. Sparks acknowledged that in his
field of expertise Hernandez’s behavior was
consistent with a classic manifestation of
paranoid schizophrenia.

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51
5.
The adjudication by the court of criminal
appeals in the present case repeated the error
it had made in Powell of conflating the Fifth
and Sixth Amendment analyses, resulting in
a decision that was contrary to, and involved
an unreasonable application of, the Supreme
Court’s clearly established precedents.
The Supreme Court in Estelle v. Smith,
Powell, and Satterwhite clearly established
federal law that (1) once a capital defendant
is formally charged, the Sixth Amendment
right to counsel precludes the State from
subjecting him to a psychiatric examination
yielding evidence of his future
dangero usness without first notifying
defense counsel that the psychiatric
examination will encompass that issue; and
(2) when the psychiatric examination
proceeds in violation of that right and the
State’s expert presents evidence of the
defendant’s future dangerousness at the
penalty phase based on the examination, the
resulting death penalty is improperly imposed
and must be reversed.
The habeas decision by the Texas Court of
Criminal Appeals was contrary to the Estelle v.
Smith, Powell, and Satterwhite definition of
the Sixth Amendment right to counsel, to the
extent that it held that language in Buchanan
and Estelle v. Smith created an exception to
the rule of the Supreme Court cases, viz., that
when the defendant introduces psychiatric
evidence at the penalty phase and uses it to
cross-examine the State’s expert, he “opens
the door” to the State’s use of evidence of
future dangerousness of the defendant that had
been obtained in violation of his Sixth
Amendment right to counsel, so long as the
state expert does not express any opinion
directly upon the defendant’s future
dangerousness based on the examination of the
defendant.

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52
The Sixth Amendment exception or
waiver rule applied by the Texas Court of
Criminal Appeals in deciding Hernandez’s
habeas appeal conflicts with the Supreme
Court’s decision in Buchanan and dictum in
Estelle v. Smith, as well as the Sixth
Amendment right to counsel as defined by
the Court’s holdings in Estelle v. Smith,
Powell, and Satterwhite.
First, as the Court made clear in Powell,
those “waiver discussions contained in Smith
and Buchanan deal solely with the Fifth
Amendment right against self-incrimination.
. . . No mention of waiver is contained in the
portion of either opinion discussing the Sixth
Amendment right.” 492 U.S. at 684-85.
Second, unlike the defendants in Estelle v.
Smith, Powell, Satterwhite, and this case,
the defendant in Buchanan was not deprived
of his Sixth Amendment right to counsel
because his defense counsel joined in
requesting the psychiatric evaluation and
presumably consulted with the defendant about
the nature and scope of the proceeding
beforehand. Third, the scope of the pretrial
examination in the non-capital Buchanan case
could not have encompassed the issue of
future dangerousness, which the Court had
been concerned with in the Estelle v. Smith
line of cases as a literal life-or-death issue, and
the Buchanan decision therefore cannot be
read reasonably as modifying the right to be
informed of the scope of a pretrial examination
that would encompass the death penalty future
dangerousness issue. Fourth, the Supreme
Court has never held or suggested that a
capital defendant who introduces mitigating
psychiatric evidence at the penalty phase
waives his right to counsel at any critical stage
of the prosecution or “opens the door” to the
State’s introduction of the fruits of a violation
of his Sixth Amendment right to counsel.
Fifth, the Supreme Court has never held or
suggested that a state can circumvent the Sixth

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53
Amendment holdings in Estelle v. Smith,
Powell, and Satterwhite by simply having its
expert avoid expressing a direct opinion
upon the defendant’s future dangerousness
while giving testimony that is indirectly, but
highly, probative of the defendant’s future
dangerousness.
Moreover, the Court in Powell
concluded that “[n]ot hing in Smith, or any
other decision of this Court, suggests that a
defendant opens the door to the admission of
psychiatric evidence on future dangerousness
by raising an insanity defense at the guilt
stage of trial.” 492 U.S. at 685 n.3. The
Court suggested, without holding, that a
capital defendant who introduces future
dangerousness evidence defensively in the
penalty phase may be required to submit to
examination by a state-appointed
psychiatrist. Even in such a case, however,
the Court’s opinions indicate that the
defendant does not waive his Sixth
Amendment right to counsel that requires the
State to afford advance notice to defense
counsel of the examination and its scope and
an opportunity for a pre-exam ination
consultation between the defendant and his
counsel. Consequently, the Court’s opinions
clearly indicate that a capital defendant who
introduces such evidence at the penalty phase
does not waive rights and remedies with
respect to the State’s introduction of evidence
obtained by a prior breach of his Sixth
Amendment right to counsel. See Powell, 492
U.S. at 685 & n.3, 686; Satterwhite, 486 U.S.
at 255; Estelle v. Smith, 451 U.S. at 465, 466
n.10.
The Texas Court of Criminal Appeals’s
decision in Hernandez’s state habeas appeal
also involved an unreasonable application of
the United States Supreme Court cases of
Buchanan and Estelle v. Smith, by
unreasonably formulating and extending legal
principles from those precedents to a new

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54
context where they should not apply. The
Court in Buchanan held that, when defense
counsel joins the State in submitting the
defendant to a psychiatric evaluation, after
consulting with the defendant about its
nature and scope, and then introduces
psychiatric evidence in a non-capital guilt
trial in support of an affirmative mental
status defense, the prosecution’s
introduction of excerpts from the report of
the pretrial psychiatric evaluator in rebuttal
does not constitute a violation of the Fifth or
Sixth Amendments. The Buchanan
precedent cannot be reasonably extended to
Hernandez’s capital case, as the Buchanan
Court itself made clear by contrasting it with
Estelle v. Smith:
[I]t was unclear whether Smith’s
counsel had even been informed
about the psychiatric examination. .
. . [I]n any event, defense counsel
was not aware that the examination
would include an inquiry into Smith’s
future dangerousness. Thus, in our
view, Smith had not received the
opportunity to discuss with his counsel
the examination or its scope. Here, in
contrast, petitioner’s counsel himself
requested the psychiatric evaluation . .
. . It can be assumed . . . that defense
counsel consulted with petitioner
about the nature of this examination.
Buchanan, 483 U.S. at 424. Only by
unreasonably ignoring the same crucial
dissonance between the Fifth Amendment
decision in Buchanan and Hernandez’s Sixth
Amendment claim could the Texas Court of
Criminal Appeals purport to shoehorn
Hernandez’s case into the narrow Buchanan
holding. For the same reason, and another,
Estelle v. Smith does not reasonably support
the application by the Texas Court of Criminal

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55
Appeals of a “door opening” exception or
waiver rule to reject Hernandez’s Sixth
Amendment claim. Not only was the Smith
language relied on by the Texas habeas trial
and appellate courts addressed to the waiver
of the Fifth Amendment right against self-
incrimination, rather than the more
indispensable Sixth Amendment right to
counsel, but it was also dicta, as opposed to
the holding, of the Supreme Court’s
decision, and therefore not part of the
“clearly established law” under section
2254(d)(1). Williams, 529 U.S. at 412.
C.
1.
Hernandez also claims that he was
sentenced to death in violation of the Eighth
Amendment because the jury’s instructions
did not allow it to give full consideration and
effect to the mitigating evidence of his abused
childhood. The threshold question under the
AEDPA again is whether Hernandez seeks to
apply a rule of law that was clearly established
at the time his conviction became final on June
3, 1991. Because the merits of Hernandez’s
Eighth Amendment claim are directly
governed by the Supreme Court’s decision in
Penry v. Lynaugh, 492 U.S. 302 (1989) the
answer to that question is yes. Therefore, the
majority opinion defaults upon its duty to
apply the clearly established Federal law, as
determined by the Supreme Court’s decision in
Penry, by applying its own interpretation of
federal law and by resolving Hernandez’s
Eighth Amendment claim in a manner opposite
to the resolution of Penry’s Eighth
Amendment claim by the Supreme Court.
2.
In Penry v. Lynaugh, the Supreme Court

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56
held that (1) “at the time Penry’s conviction
became final, it was clear from [Lockett
v.Ohio, 438 U.S. 586 (1978)] and [Eddings
v. Oklahoma, 455 U.S. 104 (1982)] that a
State could not, consistent with the Eighth
and Fourteenth Amendments, prevent the
sentencer from considering and giving effect
to evidence relevant to the defendant’s
background or character or to the
circumstances of the offense that mitigate
against imposing the death penalty[,]” 492
U.S. at 318; (2) “[t]he rule Penry
[sought]—that when such m itigating
evidence [of his mental retardation and
abused childhood] is presented, Texas juries
must . . . be given jury instructions that make
it possible for them to give effect to that
mitigating evidence in determining whether
the death penalty should be imposed—is not
a ‘new rule’ under Teague because it is
dictated by Eddings and Lockett[,]” id. at
318-19; (3) “[u]nderlying Lockett and
Eddings is the principle that punishment
should be directly related to the personal
culpability of the criminal defendant[,]” id. at
319; (4) “it is not enough simply to allow the
defendant to present mitigating evidence to the
sentencer[–][t]he sentencer must also be able
to consider and give effect to that evidence in
imposing sentence[,]” id.; (5) “[i]n order to
ensure reliability in the determination that
death is the appropriate punishment in a
specific case, the jury must be able to consider
and give effect to any mitigating evidence
relevant to a defendant’s background and
character or the circumstances of the crime[,]”
id. at 328; and (6) therefore, “in the absence of
instructions informing the jury that it could
consider and give effect to the mitigating
evidence of Penry’s mental retardation and
abused [childhood] background by declining to
impose the death penalty, . . . the jury was not
provided with a vehicle for expressing its
reasoned moral response to that evidence in

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rendering its sentencing decision[,]” id. at
328. (Internal quotations and citations
omitted).
Thus, the Supreme Court in Penry
agreed with Penry’s argument “that his
mitigating evidence of mental retardation
and childhood abuse has relevance to his
moral culpability beyond the scope of the
special issues, and that the jury was unable
to express its reasoned moral response to
that evidence in determining whether death
was the appropriate punishment.” Id. at
322. The Court explained in detail why it
rejected the State’s contrary argument that
the jury was able to consider and give effect
to all of Penry’s mitigating evidence in
answering the three special issues. Id.
The first special issue, which asked
whether the defendant acted “deliberately
and with the reasonable expectation that the
death of the deceased . . . would result,”
impermissibly limited the jury’s function
because the term “deliberately” had not been
defined by the Texas Legislature, the Texas
Court of Criminal Appeals, or the trial court’s
instructions. Id. at 322. Assuming that the
jurors “understood ‘deliberately’ to mean
something more than . . . ‘intentionally’
committing murder, those jurors may still have
been unable to give effect to Penry’s
mitigating evidence in answering the first
special issue.” Id. The Court concluded that
the jury could not give full effect to Penry’s
evidence under the first special issue because
“deliberately” was not defined “in a way that
would clearly direct the jury to consider fully
Penry’s mitigating evidence as it bears on his
personal culpability.” Id. at 323. Thus, the
evidence had relevance beyond the scope of
the first special issue. Id. at 322. The Court
made it clear that both Penry’s mental
retardation and his history of abused childhood
constituted relevant mitigating evidence:
“Because Penry was mentally retarded . . . and

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58
thus less able than a normal adult to control
his impulses or to evaluate the consequences
of his conduct, and because of his history of
childhood abuse, that same juror [who
concluded that Penry acted ‘deliberately,’]
could also conclude that Penry was less
morally culpable than defendants who have
no such excuse[.]” Id. Consequently, the
Court concluded, unless there are “jury
instructions defining ‘deliberately’ in a way
that would clearly direct the jury to consider
fully Penry’s mitigating evidence as it bears
on his personal culpability, we cannot be
sure t hat the jury was able to give effect to
the mitigating evidence of Penry’s mental
retardation and history of abuse in answering
the first special issue.” Id. at 323. “Thus,
we cannot be sure that the jury’s answer to
the first special issue reflected a reasoned
moral response to Penry’s mitigating
evidence.” Id. (internal quotation omitted).
The second special issue, which asked
“whether there is a probability that the
defendant would commit criminal acts of
violence that would constitute a continuing
threat to society,” permitted the jury to
consider and give effect to Penry’s mental
retardation and childhood abuse as “relevant
only as an aggravating factor[.]” Id. But the
second special issue was not inadequate simply
because it only gave effect to Penry’s evidence
as an aggravating factor; it was dysfunctional
because it did not allow the jury to give full
effect to Penry’s mitigating evidence. Id. at
323. “The second special issue, therefore, did
not provide a vehicle for the jury to give
mitigative effect to Penry’s evidence of mental
retardation and childhood abuse.” Id. at 324.
The third special issue, which asked
“whether the conduct of the defendant in
killing the deceased was unreasonable in
response to provocation, if any, by the
deceased,” likewise did not provide a vehicle
for the jury to fully consider and give effect to

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59
the mitigation evidence by sparing his life
because of his diminished personal
culpability. “Thus, a juror who believed
Penry lacked the moral culpability to be
sentenced to death could not express that
view in answering the third special issue if
she also concluded that Penry’s action was
not a reasonable response to provocation.”
Id. at 324-25.
As the justices who dissented in part in
Penry acknowledged, the Penry majority
held “that the constitutionality [of a death
sentence under the Texas special issues]
turns on whether the questions allow
mitigating factors not only to be considered
(and, of course, given effect in answering the
questions), but also to be given effect in all
possible ways, including ways that the
questions do not permit.” Id. at 355 (Scalia,
J., dissenting in part and concurring in part).
Or, as the majority concluded, “in the
absence of instructions informing the jury
that it could consider and give effect to the
mitigating evidence of Penry’s mental
retardation and abused background by
declining to impose the death penalty, . . . the
jury was not provided with a vehicle for
expressing its ‘reasoned moral response’ to
that evidence in rendering its sentence.” Id. at
328.
The Court in Penry expressly rejected the
State’s argument that any defect in the jury
instructions should be disregarded because
Penry’s defense counsel was able to argue that
jurors who believed that Penry, because of his
mitigating evidence of mental retardation and
childhood abuse, did not deserve a death
sentence should vote “no” on one of the
special issues regardless of the State’s proof
on that the answer. Id. at 325. The Court
pointed out that “the prosecution countered by
stressing that the jurors had taken an oath to
follow the law, and that they must follow the
instruction they were given in answering the

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60
special issues.” Id. “In light of the
prosecutor’s argument, and in the absence of
appropriate jury instructions,” the Court
concluded, “a reasonable juror could well
have believed that there was no vehicle for
expressing the view that Penry did not
deserve to be sentenced to death based upon
his mitigating evidence.” Id. at 326.
Finally, the Court in Penry rejected the
State’s argument that “to instruct the jury
that it could render a discretionary grant of
mercy, or say ‘no’ to the death penalty,
based on Penry’s mitigating evidence, would
be to return to the sort of unbridled
discretion that led to Furman v. Georgia.”
Id. (citing 408 U.S. 238 (1972)). “[A]s we
made clear in [Gregg v. Georgia, 428 U.S.
153, 197-99 (1976)], so long as the class of
murders subject to capital punishment is
narrowed, there is no constitutional infirmity
in a procedure that allows a jury to
recommend mercy based on the mitigating
evidence introduced by a defendant.” Id. at
327 (also quoting Justice White’s opinion
concurring in the judgment in Gregg, 428 U.S.
at 222 (“The Georgia legislature has plainly
made an effort to guide the jury in the exercise
of its discretion, while at the same time
permitting the jury to dispense mercy on the
basis of factors too intangible to write into a
statute, and I cannot accept the naked
assertion that the effort is bound to fail.”)).
Further, the Court reaffirmed and quoted its
opinion in McCleskey v. Kemp: “‘In contrast
to the carefully defined standards that must
narrow a sentencer’s discretion to impose the
death sentence, the Constitution limits a
State’s ability to narrow a sentencer’s
discretion to consider relevant evidence that
might cause it to decline to impose the death
sentence.’” Id. (quoting 481 U.S. 279, 304
(1987)). Consequently, the Court concluded:
Indeed, it is precisely because the

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61
punishment should be
directly related to the
personal culpability of
the defendant that the
jury must be allowed to
consider and give effect
to mitigating evidence
relevant to a defendant’s
character or record or
the circumstances of the
offense. . . . In order to
ensure reliability in the
determination that death
is the appropriate
punishment in a specific
case, the jury must be
able to consider and give
effect to any mitigating
evidence relevant to a
defendant’s background
and character or the
circumstances of the
crime.
Id. at 327-28 (internal citations and quotations
omitted).
3.
Hernandez first raised his Penry claim in
his application for state post-conviction relief.
As I observed, supra, the Texas Court of
Criminal Appeals denied Hernandez’s
application for post-conviction relief in a brief
per curiam order stating, in pertinent part,
“The trial court has entered findings of fact
and conclusions of law. We have examined
the record. The findings and conclusions are
supported by the record and upon such basis
the relief sought is denied.” Therefore, we
should consider the findings and conclusions
of the state habeas trial court to determine
whether the denial of relief by the court of
criminal appeals was contrary to or an

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62
unreasonable application of clearly
established Supreme Court jurisprudence.
In connection with Hernandez’s Eighth
Amendment Penry claim, the state habeas
trial court, in the 207th District Court of
Comal County, Texas, found the following
facts:
Judy Mendiola, a San Antonio Park
Ranger, and cousin of Petitioner’s,
testified that when she was a young
child, she and Petitioner had lived
together for a period of
approximately 10 years, and that
during that time, Petitioner’s father
was an alcoholic, who beat
Petitioner’s mother, which resulted
in Petitioner’s mother causing
physical abuse to Petitioner, (2513 -
2516);
Witness Mendiola indicated that
after Petitioner’s release from prison,
she asked him to seek “psychiatric
help” and also indicated that Petitioner
had only received a fifth or sixth grade
educat ion (2518), which was
corroborated by school records
indicating that Petitioner may have
received education through the seventh
grade (2519 - 2522)[.]
(Internal enumeration omitted; record citations
included).
In regard to Hernandez’s Penry claim, the
state habeas trial court adopted the following
pertinent conclusions of law:
This Court finds that there is some
evidence before the jury of child abuse
perpetrated against Petitioner over a
10 year period. See testimony of
Defense witness Mendiola;
* * * With regard to the Court of
Criminal Appeals’ interpretation of the

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Penry decision, it
appears that, in the past,
the Court has generally
required a showing of
mental retardation before
holding that a defendant
is entitled to a Penry
instruction, see Ramirez
v. State, 815 S.W.2d
636; Ex Parte McGee,
817 S.W.2d 77; Rios v.
State, 846 S.W.2d 310;
McPherson v. State, 851
S.W.2d 846; Ex Parte
Richard, 842 S.W.2d
279; Ex Parte Goodman,
816 S.W.2d 383;
however, the Court has
also granted relief under
the Penry doctrine where
there is cumulative
evidence of “troubled
childhood, abnormal
mental and emotional
condition, and sexual
aberrations.” See Bribble
v. State, 808 S.W.2d 65;
The Penry decision is still valid law.
See Johnson v. Texas, [509 U.S. 350
(1993)];
The United States Supreme Court
granted certiorari, vacated the Court
of Criminal Appeals judgments, and
remanded to the Texas Court of
Criminal Appeals at least five cases for
reconsideration in light of Johnson v.
Texas, and those cases are,
presumably, still pending before the
Texas Court of Criminal Appeals;
Since the trial court has found “some
evidence” of child abuse, and “some
evidence” that Petitioner was a long
time sufferer of “paranoid
schizophrenia,” to which he could have

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64
been suffering at the time
of the commission of this
crime, then the trial court
must defer any further
conclusions of law to the
ultimate judgment of the
Texas Court of Criminal
Appeals, and
However, the trial court does
recommend that the Texas Court of
Criminal Appeals “file and set” this
case for submission before the Court
for further briefs and arguments with
regard to the merits of Petitioner’s
Penry claim as raised herein under
the evidence.
(Paragraph enumeration and emphases
omitted).
On Hernandez’s habeas appeal, however,
the court of criminal appeals disregarded the
state habeas trial court’s recommendations
that it “file and set” the case for submission on
briefs and arguments regarding Hernandez’s
Penry claim. Instead, as I have noted, the
court of criminal appeals simply denied the
relief sought based on the findings and
conclusions of the trial court, after determining
that they were supported by the record.
Therefore, we should review the habeas
decision of the court of criminal appeals as
adopting and incorporating the state habeas
trial court’s findings and conclusions.
4.
The state habeas trial court’s findings and
conclusions, upon which the state criminal
court of appeals based its per curiam denial of
habeas relief to Hernandez, were ambivalent
and inconclusive. The state habeas trial court
did not, as the majority mistakenly asserts,
recommend a denial of relief. The state habeas
trial court (1) found that “there is some

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65
evidence before the jury of child abuse
perpetrated against Petitioner over a 10 year
period[]”; (2) concluded that “the Penry
decision is still valid law[]”; (3) concluded
that the state court of criminal appeals had
“generally required a showing of mental
retardation before . . . a defendant is entitled
to a Penry instruction, . . . [but] has also
granted relief under the Penry doctrine
where there is cumulative evidence of
‘troubled childhood, abnormal mental and
emotional condition, and sexual
aberrations[]’” (emphasis in original); and
(4) concluded that, because it had found
some evidence that Hernandez suffered from
both an abused childhood and paranoid
schizophrenia, “to which he could have been
suffering at the time of the commission of
this crime,” it must defer any further
conclusions of law to the ultimate judgment
of the state court of criminal appeals.
As a consequence, the state court of
criminal appeals’s denial of Hernandez’s Penry
claim based on such ambivalent and
indeterminate conclusions is both contrary to
and an unreasonable application of Penry in
several respects. The state-court decision was
contrary to the Supreme Court’s clearly
established precedent because it may be read
either as reaching a different result from that
precedent after confronting a set of facts
materially indistinguishable from the
precedent’s facts or as applying a rule that
contradicts the governing law set forth in the
Supreme Court’s cases. On the other hand,
the state-court decision may be interpreted as
involving an unreasonable application of the
Court’s precedent because it either identified
the correct governing legal rule from the
Court’s cases but unreasonably applied it to
the facts of Hernandez’s case or it
unreasonably refused to extend the principle of
Penry to a context where it should apply.

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66
a.
Hernandez’s evidence of an abused
childhood was materially indistinguishable
from Penry’s history of maltreatment. The
Supreme Court concluded such a
background of abused childhood was
relevant mitigating evidence that the jury
must be instructed it may fully consider and
give effect to in deciding whether to impose
a sentence less than death. Consequently, by
denying Hernandez’s claim, the decision by
the Texas Court of Criminal Appeals was
contrary to clearly established federal law as
determined by the Supreme Court.
Williams, 529 U.S. at 405 (“A state-court
decision will also be contrary to this Court’s
clearly established precedent if the state
court confronts a set of facts that are
materially indistinguishable from a decision
of this Court and nevertheless arrives at a
result different from our precedent.”).
Hernandez was beaten regularly between
the ages of three and thirteen. He received
most of his continual beatings from his mother
after she had been beaten by her alcoholic
husband, Hernandez’s father. On at least one
occasion his mother had beaten him with a
broom handle, breaking it over his head and
leaving him lying on the floor. On at least one
other occasion, Hernandez’s father had joined
his mother in beating him viciously with a belt
and large belt buckle.
Penry’s mother had frequently beaten him
over the head with a belt when he was a child.
He was also regularly locked in a bedroom
without access to a toilet for long periods. He
was in and out of state schools and hospitals,
until his father removed him from state schools
when he was twelve. Penry, 492 U.S. at 309.
Regarding the first special issue, in
Hernandez’s case, as in Penry, the jury was not
provided with a definition of the term
“deliberately” or given any instruction that

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67
would indicate that the jury could regard
Hernandez’s history of abused childhood as
evidence that might cause it to decline to
impose the death sentence. Therefore, Penry
dictates that, “[i]n the absence of jury
instructions defining ‘deliberately’ in a way
that would clearly direct the jury to consider
fully [Hernandez’s] mitigating evidence as it
bears on his personal culpability, we cannot
be sure that the jury was able to give effect
to the mitigating evidence of [Hernandez’s]
. . . history of abuse in answering the first
special issue.” Id. at 323.
Also, as in Penry, Hernandez’s
mitigating evidence of childhood abuse was
relevant to the second special issue only as
an aggravating factor because it appears to
increase the possibility of future behavioral
problems and dangerousness. More
importantly, however, the second special
issue prevented the jury from giving full
mitigative effect to the evidence of
Hernandez’s abused childhood; even if the jury
found that he did not deserve the death penalty
because the effects of his maltreatment in early
childhood reduced his personal culpability, the
jury would still be bound to answer “yes” to
the second special issue if it also found he
would probably be dangerous and a threat to
society.
Neither the first nor the second special
issue, therefore, provided a vehicle for the jury
to give mitigating effect to Hernandez’s
relevant mitigating evidence of childhood
abuse. Because the third special issue,
whether the defendant acted unreasonably in
response to provocation, was not presented to
the jury, the State does not contend that it
provided a vehicle for the jury to give full
mitigative effect to the evidence of
Hernandez’s abused childhood. Thus, the
state co urt of criminal appeals in Hernandez
was confronted by facts of abused childhood
that were materially indistinguishable from

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68
those upon which the Supreme Court
reached a different result. Consequently, the
denial by the Texas Court of Criminal
Appeals of state habeas relief was contrary
to clearly established Supreme Court
precedent.
b.
Because the state habeas trial court, in its
conclusions, referred to some of the
decisions by the state court of criminal
appeals as holding that a showing of mental
retardation is prerequisite to a Penry
instruction, it is arguable that the court of
criminal appeals applied such a rule in
denying Hernandez relief. If so, its decision
was contrary to and an unreasonable
application of the Supreme Court’s clearly
established precedent in Penry. T h e
Penry Court agreed with Penry’s argument
that “his mitigating evidence of mental
retardation and childhood abuse had relevance
to his moral culpability beyond the scope of
the special issues, and that the jury was unable
to express its reasoned moral response to that
evidence in determining whether death was the
appropriate punishment.” Id. at 322. The
Penry Court throughout its opinion indicated
that it considered Penry’s abused childhood, as
well as his mental retardation, to be
independently relevant mitigating evidence that
the jury should have been instructed that it
could consider and give effect to in
determining whether to impose the death
penalty. Id. at 312 (listing as separate
evidence of Penry’s possible reduced personal
culpability “his mental retardation, arrested
emotional development, and abused
background”); see also id. at 317 (approvingly
quoting Lockett for the premise that a
sentencer must “‘not be precluded from
considering, as a mitigating factor, any aspect
of a defendant’s character or record’”)

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69
(quoting 438 U.S. at 604) (emphasis added);
id. at 318 (approvingly quoting Eddings that
“‘[j]ust as the State may not by statute
preclude the sentencer from considering any
mitigating factor, neither may the sentencer
refuse to consider, as a matter of law, any
relevant mitigating evidence.’”) (quoting 455
U.S. at 113-14) (emphasis added); id. at 322
(holding that the jury must be able to give
effect to “all” of the defendant’s mitigating
evidence). The Court did not hold or
suggest that either the factor of mental
retardation or childhood abuse by itself
would fail to constitute relevant mitigating
evidence that the jury must be able to
consider and give effect to in deciding
Penry’s fate. Moreover, the Court
repeatedly emphasized that “a sentencer may
not be precluded from considering, and may
not refuse to consider, any relevant
mitigating evidence offered by the defendant
as the basis for a sentence less than death[,]”
id. at 318 (emphasis added); and that “the jury
must be able to consider and give effect to any
mitigating evidence relevant to a defendant’s
background and character or the
circumstances of the crime[,]” id. at 328
(emphasis added).
Penry constitutes “clearly established
Federal law, as determined by the Supreme
Court of the United States” that in the capital
penalty phase the sentencer may not be
precluded from considering, and may not
refuse to consider, any constitutionally
relevant mitigating evidence; that evidence of
mental retardation or an abused childhood,
individually or in combination, qualifies as
constitutionally relevant mitigating evidence;
and that when mitigating evidence of mental
retardation or an abused childhood is
presented, Texas juries must be given
instructions that allow them to give effect to
that mitigating evidence in determining
whether to impose the death penalty. A state-

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70
court decision will be contrary to Penry if it
applies a rule that contradicts the Supreme
Court’s ho lding by requiring such
instructions only in cases involving evidence
of mental retardation.
c.
Finally, for the foregoing reasons, if the
decision of the state court of criminal
appeals is read as identifying the correct
governing legal rule by adopting in isolation
the state trial habeas court’s conclusion that
“[t]he Penry decision is still valid law,” its
decision amounts simply to an unreasonable
application of Penry to the facts of
Hernandez’s case. Alternatively, for the
same foregoing reasons, if the state-court
decision is read as a refusal to extend the
principle of Penry to Hernandez’s case
because it involves relevant mitigating
evidence of an abused childhood, and not
evidence of mental retardation, it would
constitute an unreasonable refusal to apply or
extend that principle to a context where it
should apply. In either case, the state-court
decision would involve an unreasonable
application of the clearly established law of
Penry.
d.
The more recent Supreme Court cases, to
the extent they are relevant, are not to the
contrary. See Graham v. Collins, 506 U.S.
461 (1993), and Johnson v. Texas, 509 U.S.
350 (1993). Under the AEDPA, we are
required to determine whether the decision of
the Texas Court of Criminal Appeals is
contrary to or an unreasonable application of
clearly established Supreme Court precedent at
the time Hernandez’s conviction became final.
Hernandez’s conviction became final with the
denial of a writ of certiorari by the Supreme

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Court on direct review on June 3, 1991.
Consequently, the 1993 cases of Graham and
Johnson are not directly applicable to the
present case. Moreover, the Court in
Graham and Johnson specifically
distinguished the mitigating evidence of the
defendant’s youth at the time of the offense
in those cases from the mitigating evidence
of abused childhood and mental retardation
presented in Penry.
The Graham Court reaffirmed that
Penry was still valid law requiring that, when
a capital defendant presents mitigating
evidence of either mental retardation or an
abused childhood in a penalty phase under
the Texas special issues, the jury must be
given instructions that allow it to give effect
to that mitigating evidence in determining
whether to impose the death penalty.
Graham, 506 U.S. at 473-75 (“Because it
was impossible to give meaningful mitigating
effect to Penry’s evidence by way of
answering the special issues, the Court
concluded that Penry was constitutionally
entitled to further instructions informing the
jury that it could consider and give effect to
Penry’s evidence . . . by declining to impose
the death penalty.) (internal quotations,
citations, and brackets omitted). But the
Court in Graham distinguished the effect of the
Texas special issues upon the jury’s ability to
consider and give effect to Graham’s
mitigating evidence of youth. Id. at 475-76
(“Even if Graham’s evidence, like Penry’s, had
significance beyond the scope of the first
special issue, it is apparent that Graham’s
evidence—unlike Penry’s—had mitigating
relevance to the second special issue
concerning his likely future dangerousness.
Whereas Penry’s evidence compelled an
affirmative answer to that inquiry, despite its
mitigating significance, Graham’s evidence
quite readily could have supported a negative
answer.”).

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72
Graham’s relevance, if any, has also
been attenuated by the AEDPA’s abrogation
of the “reasonable jurist” standard applied in
that case. See Williams, 529 U.S. at 410
(interpreting the AEDPA as expressly
disapproving the “reasonable jurist” standard
used in Graham, Drinkard v. Johnson, 97
F.3d 751, 769 (5th Cir. 1997), and other
cases; holding instead that the AEDPA
requires the application of an “objective
unreasonable” standard).
The Johnson Court also reaffirmed
Penry, but distinguished the mitigating
evidence of capital defendant Johnson’s
youth at the time of the offense from the
abused childhood and the mental retardation
of Penry as being a different type of evidence
to which a jury could give full mitigative
effect under the Texas special issues.
Johnson, 509 U.S. at 369.
IV.
A.
The decisions of the Texas Court of
Criminal Appeals regarding Hernandez’s Sixth
and Eighth Amendment claims were “contrary
to, and involved an unreasonable application
of, clearly established Federal law, as
determined by the Supreme Court,” 28 U.S.C.
§ 2254(d)(1). The next appropriate step in the
required analysis is to determine whether and
to what extent any harmless error rule is
applicable to the constitutional error
underlying each state-court decision.
In Arizona v. Fulminante, 499 U.S. 279,
307-08 (1991), the Supreme Court recognized
two categories of constitutional violations,
which it characterized as “trial error” and
“structural defects.” Trial error “occur[s]
during the presentation of the case to the
jury,” and is amenable to harmless-error
analysis because it “may . . . be quantitatively
assessed in the context of other evidence

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73
presented in order to determine [the effect it
had on the trial].” Id. Structural defects “in
the constitution of the trial mechanism,
which defy analysis by ‘harmless-error’
standards[,]” id. at 309, “require[]
automatic reversal of the conviction because
they infect the entire trial process.” Brecht
v. Abrahamson, 507 U.S. 619, 629-30
(1993) (citing Fulminante, 409 U.S. at 309).
Prior to the AEDPA, in reviewing
petitions for habeas relief with respect to
constitutional “trial” errors, we determined
whether a constitutional violation was
harmless error by asking whether the error
“‘had substantial and injurious effect or
influence in determining the jury’s verdict.’”
Brecht, 507 U.S. at 623 (quoting Kotteakos
v. United States, 328 U.S. 750, 776 (1946)).
Under this standard, however, “where the
record [was] so evenly balanced that a
conscientious judge is in grave doubt as to
the harmlessness of the error,” the petitioner
would prevail. O’Neal v. McAninch, 513 U.S.
432, 436 (1995). “We recognize[d] . . . that if
our minds are ‘in virtual equipoise as to the
harmlessness,’ under the Brecht standard, of
the error, then we must conclude that it was
harmful.” Woods v. Johnson, 75 F.3d 1017,
1026-27 (5th Cir. 1996) (citing O’Neal, 513
U.S. 432 (1995)).
There is a division among circuits as to
whether the Brecht-O’Neal standard survived
the AEDPA. The Sixth Circuit has held that
“the test set out by the Supreme Court in
Kotteakos and explicitly reiterated in Brecht
quite precisely captures Congress’s intent as
expressed in the AEDPA and, therefore,
continues to be applicable.” Nevers v.
Killinger, 169 F.3d 352, 371 (6th Cir. 1999).
The Eighth Circuit has noted, however, that,
even in the wake of the Supreme Court’s
decision in Williams, it is “not convinced that
the AEDPA did not abrogate the requirement
that federal habeas courts conduct a harmless

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error analysis under Brecht.” Whitmore v.
Kenna, 213 F.3d 431, 433 (8th Cir. 2000).
The Tenth Circuit has recognized the
possible tension between the Brecht-O’Neal
standard and the AEDPA, but has expressly
declined to determine whether application of
Brecht-O’Neal in an AEDPA case is
erroneous. See Anderson v. Cowan, 227
F.3d 893, 898 n.3 (10th Cir. 2000); Thomas
v. Gibson, 218 F.3d 1213, 1226 n.12 (10th
Cir. 2000); Bryson v. Ward, 187 F.3d 1193,
1206 n.10 (10th Cir. 1999).
Though the Supreme Court in Williams
does not expressly confront the tension
between Brecht-O’Neal and the AEDPA in
its analysis of the effects of the AEDPA on
the federal habeas scheme, it does appear to
implicitly recognize Brecht’s vitality: “It is,
of course, well settled that the fact that
constitutional error occurred in the
proceedings that led to a state-court
conviction may not alone be sufficient reason
for concluding that a prisoner is entitled to the
remedy of habeas.” Williams, 529 U.S. 375
(citing Brecht, supra).
The issue of a possible Brecht-O’Neal-
AEDPA tension or conflict is not present in
this case, however, because the State’s
violation of Hernandez’s Eighth Amendment
right is a structural defect that requires
automatic reversal, and the State’s violation
of his Sixth Amendment right to counsel
cannot be regarded as harmless, even under
the most state-friendly Brecht standard.
B.
1.
A Penry violation is a structural defect
defying analysis by harmless error standards
and requires automatic reversal of the death
sentence because it infected the entire penalty
phase. The Supreme Court, upon finding that

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a jury in a capital murder case was precluded
by a Penry-type defect in the constitution of
the penalty trial mechanism from being able
to give effect to constitutionally relevant
mitigating evidence, in violation of the
Eighth Amendment, has never subjected the
defect to a harmless error analysis. See, e.g.,
Penry, 492 U.S. at 328; Skipper v. South
Carolina, 476 U.S. 1, 8-9 (1986); Eddings v.
Oklahoma, 455 U.S. 104, 116-17 (1982);
Lockett v. Ohio, 438 U.S. 586, 608-09
(1978); see generally 2 JAMES S. LIEBMAN &
RANDY HERTZ, FEDERAL HABEAS CORPUS
PRACTICE AND PROCEDURE § 32.3, at 1345
& n. 43 (3d ed. 1998). This result inheres in
the nature of the Penry violation itself.
When the Eighth Amendment’s proscription
against cruel and unusual punishment is
violated because a jury must determine
whether to impose a death sentence without
being able to fully give effect to relevant
mitigating evidence, the structure of the
sentencing trial mechanism itself creates the
constitutional violation. Consequently, the
defect is not amenable to harmless-error
analysis because it cannot be quantitatively
assessed in the context of other evidence
presented in a constitutional system that
permits the jury to give full effect to relevant
mitigating evidence. Thus, a Penry violation is
a structural defect that defies harmless error
analysis and requires automatic reversal
because it infects the entire penalty trial
process.
2.
Under the Supreme Court’s precedents,
however, Hernandez’s Sixth Amendment
violation is subject to a harmless error analysis.
The Supreme Court observed in Satterwhite
that “[o]ur conclusion [that there is an Estelle
v. Smith error] does not end the inquiry
because not all constitutional violations

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amount to reversible error.” 486 U.S. at
257-58 (holding that a harmless error
analysis applies to Sixth Amendment
violations when the “violation is limited to
the admission of particular evidence at
trial.”). In det ermining whether a similar
violation was harmful under the Chapman
standard for errors on direct review, the
Satterwhite Court employed several factors,
rejecting the approach of the court of
appeals, which had simply examined the
record to determine whether the properly
admitted evidence was sufficient to support
the jury’s verdict. 486 U.S. at 258-59. The
Court instead considered the properly
admitted psychiatric evidence relevant to
future dangerousness; the amount of weight
the prosecution placed on the expertise of
the psychiatrist who had impermissibly
testified at the punishment phase; the amount
of weight the prosecution placed on the
improperly admitted psychiatric evidence in
the closing argument; and the unequivocal
nature of the improperly admitted psychiatric
testimony. Id. at 259-60.
Although I have examined the Sixth
Amendment violation in Hernandez’s case
under the Brecht-O’Neal standard, the same
factors that the Supreme Court examined in
Satterwhite in its Chapman review appear to
be relevant here as well. First, the prosecution
relied solely on Dr. Sparks’s testimony for
expert evidence of Hernandez’s future
dangerousness, eliciting no testimony from any
other psychiatrist or psychologist.
Second, in eliciting Dr. Sparks’s testimony
and in its closing argument, the prosecution
placed great emphasis on his expertise. For
two-and-a-half pages of the trial record, Dr.
Sparks elaborated on his background and
expertise, discussing his twenty-five years as a
psychiatrist, his years o f work in the criminal
justice system, and his examination as a
forensic psychiatrist of more than 1500 people

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accused of crimes in the previous five years.
Cf. id. at 259 (finding significant Dr.
Grigson’s testimony that he had taught
psychiatry in a Dallas medical school and
had practiced psychiatry for twelve years).
In its closing argument, the prosecution
emphasized these expert credentials, stating,
“Here’s a man trained in forensic psychiatry,
here’s a man who has examined over 1500
people and testified in court over 400 times,
a man who’s not the average psychiatrist
who sits behind a desk and talks about our
phobias and our problems, but a man who
has seen the inner mind of the primitive
man.” Cf. id. at 260 (finding significant that
“[t]he District Attorney highlighted Dr.
Grigson’s credentials . . . in his closing
argument.”). That Dr. Sparks’s expertise
was emphasized has direct bearing on the
question of whether his testimony was a
substantial influence on the jury’s verdict.
Cf. id. at 259 (“[Dr. Grigson’s] testimony
stands out because of his qualifications as a
medical doctor specializing in psychiatry . . .
.”).
Further, the prosecution placed a great
deal of weight on Dr. Sparks’s testimony in its
closing argument:
[Dr. Sparks] told you, yes, “Yes, he
does constitute a continuing threat to
society.” “What is your impression,
Doctor, relative to your diagnosis?”
“He’s antisocial, he’s a sociopath, he’s
what we used to call psychopathic.”
“What does that mean, Doctor?”
“Well, that means he cannot love, he
has no compassion, he can kill
indiscriminately.”
After detailing this section of Dr. Sparks’s
testimony, the prosecution elaborated on the
implications of Dr. Sparks’s diagnosis of
Hernandez as a sociopath. Cf. id. at 260

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(quoting the District Attorney’s closing
argument about Dr. Grigson’s testimony:
“‘[Satterwhite is a] [s]evere sociopath.
Extremely dangerous. A continuing threat
to our society. Can it be cured? Well, it’s
not a disease. It’s not an illness. That’s his
personality.”).
Dr. Sparks was unequivocal in his
testimony regarding Hernandez’s future
dangerousness. He stated that an offender
who had committed a crime identical in
every detail with Hernandez’s offense had an
antisocial personality disorder and was
therefore a continuing threat to society. He
revealed that, based on his examination of
Hernandez, Hernandez had an antisocial
personality disorder. Even when confronted
with records that might have indicated that
Hernandez’s behavior was attributable to
paranoid schizophrenia, he adhered to his
original conclusion based on his examination
of Hernandez that Hernandez’s behavior was
attributable to the antisocial personality
disorder, conceding only that he would have
altered his diagnosis to reflect paranoid
schizophrenia in remission, in addition to the
antisocial personality disorder.
Taking all of the foregoing relevant factors
into account, and viewing the Penry violation
within the context of the entire record, I
believe we should conclude that Dr. Sparks’s
testimony in violation of Hernandez’s Sixth
Amendment right had a substantial and
injurious influence on the jury’s determination
of the issue of future dangerousness, and was
therefore not a harmless error under Brecht.
Conclusion
For the reasons assigned, the decision of
the Texas Court of Criminal Appeals rejecting
Hernandez’s Sixth and Eighth Amendment
claims was contrary to and an unreasonable
application of clearly established Federal law

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as determined by the decisions of the
Supreme Court; and the majority opinion of
this court is in error in not reversing the
decision of the district court and in not
remanding this case to that court for the
issuance of a writ of habeas corpus.

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