Jordan, Clarence Curtis

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-17,434-02

EX PARTE CLARENCE CURTIS JORDAN, Applicant

ON POST-CONVICTION APPLICATION FOR
WRIT OF HABEAS CORPUS FROM CAUSE NO. 276428-B
IN THE 184TH DISTRICT COURT
HARRIS COUNTY

Per curiam.

OPINION

Before the Court is Applicant Clarence Curtis Jordan’s application for a writ

of habeas corpus. See TEX. CODE CRIM. PROC. art. 11.071.1 In his primary claim

(Claim One), Applicant invokes Penry v. Lynaugh, 492 U.S. 302 (1989), arguing

that he is entitled to a new punishment trial due to inadequate jury instructions

1
Unless otherwise specified, all references to articles refer to the Texas Code of Criminal
Procedure.
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given at his 1983 trial. In an alternative claim (Claim Two), relying on Atkins v.

Virginia, 536 U.S. 304 (2002), Applicant alleges that he is intellectually disabled

and therefore categorically immune from execution.

For the reasons discussed below, we conclude that no additional fact finding

is needed regarding Claim One. Applicant is entitled to habeas relief on his Penry

claim and we accordingly remand his case to the trial court for a new punishment

trial. We further conclude that Applicant has waived his Atkins claim for purposes

of this proceeding and dismiss it.

I. BACKGROUND

In 1978, Applicant was convicted of capital murder and sentenced to death

for intentionally shooting to death Joe Williams while robbing or attempting to rob

Williams and other employees of a Houston food market. See TEX. PENAL CODE

§ 19.03. On direct appeal, this Court vacated the conviction and sentence and

remanded the matter for a new trial due to the erroneous denial of a challenge for

cause. Jordan v. State, 635 S.W.2d 522 (Tex. Crim. App. 1982).

The State retried Applicant in 1983 and again sought the death penalty. The

new jury also convicted Applicant of capital murder. At the punishment phase,

among other things, Applicant presented evidence that he suffered from paranoid
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schizophrenia and possibly Organic Brain Syndrome with delusions (a condition

involving organic brain damage). After the close of evidence, the trial court

submitted the following special issues to the jury:

i. Special Issue 1: Do you find from the evidence beyond a
reasonable doubt that the conduct of the Defendant that caused the
death of the deceased was committed deliberately and with the
reasonable expectation that the death of the deceased or another
would result?

ii. Special Issue 2: Do you find from the evidence beyond a
reasonable doubt that there is a probability the Defendant would
commit criminal acts of violence that would constitute a continuing
threat to society?

Based on the jury’s answers to the “deliberateness” and “future

dangerousness” special issues, the trial court sentenced Applicant to death. We

affirmed the conviction and sentence. Jordan v. State, 707 S.W.2d 641 (Tex. Crim.

App. 1986).

Applicant’s execution was scheduled for August 1987. Applicant filed a

habeas application, pursuant to Article 11.07, in June 1987. Applicant asserted one

claim: he was incompetent to be executed under the Supreme Court’s then-recent

opinion in Ford v. Wainwright, 477 U.S. 399 (1986). We deemed Applicant

incompetent under Ford to be executed and stayed Applicant’s execution until

such time that he regained competency. See Ex parte Jordan, 758 S.W. 250, 255
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(1988). Over the past thirty-five-plus years, Applicant has apparently remained

incompetent to be executed.

II. THE PRESENT APPLICATION

In October 2025, Applicant filed in the trial court the habeas application that

is now before this Court. In Claim One, relying on Penry and its progeny, Applicant

alleges that he “was deprived of his right to have a jury consider all mitigating

evidence before sentencing him to death in violation of the Eighth Amendment of

the U.S. Constitution.” In Claim Two, relying on Atkins, Applicant contends that

he “is intellectually disabled and ineligible for execution under the Eighth and

Fourteenth Amendment[s] of the U.S. Constitution.” He notes that the Supreme

Court decided both Penry (1989) and Atkins (2002) well after he filed his earlier

writ application in 1987.

In the application’s Conclusion, Applicant makes clear that Claim Two is an

alternative allegation that he wishes to pursue only under certain circumstances:

[Applicant] asks that this Court overturn his death sentence
[because] the jury who sentenced him to death did not have an
adequate vehicle through which it might assess the mitigating
evidence of cognitive and psychiatric dysfunction presented during his
trial and give [Applicant] the individualized sentencing determination
that the Eighth Amendment demands. In the event that this Court does
not grant relief on Claim One based on the allegations in this petition and
the strength of the record, but determines that further proceedings are
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necessary, [Applicant] asks that this Court authorize Claims One and Two
pursuant to Article 11.071 Section 5, remanding both for further
evidentiary development, discovery, and findings of fact and conclusions of
law.

Appl.-02 at 37–38 (emphasis added).

As discussed below, we conclude that Applicant is entitled to habeas relief

on his Penry claim and grant relief in the form of a remand to the trial court for a

new punishment trial. Because we grant relief on Applicant’s Penry claim without

requiring further factual development, we take Applicant at his word that he does

not wish to pursue his Atkins claim under these circumstances. We conclude that

he has waived his Atkins claim for purposes of this proceeding and dismiss it.

III. APPLICANT’S PENRY CLAIM IS MERITORIOUS

A. Applicable Law

In Penry, the Supreme Court determined that the defendant’s death

sentence offended the Eighth Amendment because the former punishment phase

special issues submitted to his jury did not provide an adequate vehicle for

meaningfully considering and giving effect to his double-edged evidence of

intellectual disability and childhood abuse. See 492 U.S. at 319–25. Since delivering

Penry, the Supreme Court has identified additional kinds of two-edged evidence

that require a separate mitigation instruction allowing the jury to give that evidence
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full consideration and effect. See Tennard v. Dretke, 542 U.S. 274, 288 (2004)

(intellectual disability, low intelligence falling short of intellectual disability); Smith

v. Texas, 543 U.S. 37, 44 (2004) (low intelligence, placement in special education

classes); Abdul-Kabir v. Quarterman, 550 U.S. 233, 239–42 (2007) (unhappy,

disturbed childhood; childhood neglect and abandonment; neurological damage);

Brewer v. Quarterman, 550 U.S. 286, 296 (2007) (mental illness, including

depression; substance abuse).

In the years following these Supreme Court decisions, this Court has also

found that the special issues as they existed in the pre-Penry era were inadequate to

allow a jury to consider and give effect to the types of mitigating evidence

described above. See Ex parte Hood, 304 S.W.3d 397, 400 (Tex. Crim. App. 2010)

(severe childhood injuries resulting in negative changes in behavior and permanent

physical disabilities, speech defects, learning disabilities and cognitive

impairments, low IQ, child abuse); Ex parte Smith, 309 S.W.3d 53, 61–62 (Tex.

Crim. App. 2010) (poverty, crime-ridden neighborhood, drug abuse); Ex parte

Moreno, 245 S.W.3d 419, 424–25 (Tex. Crim. App. 2008) (troubled or disruptive

childhood); Ex parte Martinez, 233 S.W.3d 319, 320 (Tex. Crim. App. 2008)

(psychiatric problems, alcohol abuse, and a troubled childhood).
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B. Analysis

Penry error occurred in this case. The mental and neurological health

evidence that Applicant presented at his trial is the type of evidence that both the

Supreme Court and this Court have come to regard as the kind of “two-edged”

mitigating evidence calling for a separate, mitigation-focused jury instruction.

See Abdul-Kabir, 550 U.S. at 239–42; Brewer, 550 U.S. at 296; Hood, 304 S.W.3d at

400; Martinez, 233 S.W.3d at 320. Applicant’s jury did not receive such an

instruction. And, whatever harm analysis rightly applies in this situation, we

conclude that the absence of a Penry-compliant jury instruction at Applicant’s trial

was harmful.2 Accordingly, Applicant’s death sentence can longer stand.

IV. CONCLUSION

For the reasons discussed above, we grant habeas relief on Applicant’s Penry

allegation (Claim One) and vacate his death sentence. Applicant is therefore

remanded to the custody of Harris County for a new punishment proceeding.

2
Compare Ex parte Hathorn, 296 S.W.3d 570, 572 (Tex. Crim. App. 2009)(“We
acknowledge that normally, an egregious harm standard is proper in analyzing an un-objected-to
charge error. However, rather than characterize this as a jury charge error, we interpret the
Supreme Court cases related to this particular issue to have broader due process implications.”),
with Olivas v. State, 202 S.W.3d 137, 145 (Tex. Crim. App. 2006) (“The appropriate standard for
all errors in the jury charge, statutory or constitutional, is that set out in Almanza.”) (some
punctuation omitted) (referring to Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)
(op. on reh’g)).
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Finding Applicant’s intellectual disability allegation (Claim Two) waived for

purposes of this proceeding, we dismiss it.

Delivered: April 9, 2026
Do Not Publish