IN THE 216TH JUDICIAL DISTRICT COURT

OF KERR COUNTY, TEXAS
AND
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
IN AUSTIN, TEXAS
__________________________________
EX PARTE JEFFERY LEE WOOD,
APPLICANT
__________________________________

§
§
§
§
§
§

CAUSE NO. ______________

APPLICATION FOR A WRIT OF HABEAS CORPUS
SEEKING RELIEF FROM A JUDGMENT IMPOSING DEATH

Jared Tyler
Texas Bar No. 24042073
Tyler Law Firm, PLLC
P.O. Box 764
Houston, Texas 77001
TEL: (832) 606-2302
jptyler@tylerlawfirm.org
Counsel for Jeffery Lee Wood

TABLE OF CONTENTS
APPLICATION FOR A WRIT OF HABEAS CORPUS ......................................1
I.

STATEMENT OF THE CASE ...................................................................1

II.

CLAIMS FOR RELIEF ............................................................................ 29
A.

CLAIM 1: APPLICANT WAS INCOMPETENT TO STAND
TRIAL AT SENTENCING ............................................................ 29
1.

Mental health professionals have recognized Wood’s
susceptibility to losing contact with reality since
childhood .............................................................................. 29

2.

A jury believed Wood incompetent to stand trial because of Wood’s delusional and paranoid thinking ............ 30
a.

“Mr. Wood seemed to believe that his statements were true, no matter how outrageous
they seemed.” ............................................................. 30

b.

“I believe that Mr. Wood has a delusional system, an inability to grasp the reality surrounding the issues specific to this case, his role in it,
in the crime, as well as other things that present a direct threat to his own well-being, his
own sense of self.” ...................................................... 33

c.

“Regarding his current charges, as indicated
above, he insists that . . . the truth is that he
never did anything, and was an innocent bystander. He is very insistent in repeating this
story.” .......................................................................... 37

d.

“I don’t think he’s got a good understanding of
the law of parties. I think we get the same
thing on the law of parties, is just a flat ‘That
doesn’t apply to me,’ and it doesn’t make any
difference how you explain it, how you get
i

through it. It is a brick wall that I have yet to
have been able to get through.” ................................. 38
3.

Trial and punishment: reality becomes irreconcilable
with delusion ........................................................................ 40

4.

Wood was incompetent to stand trial during sentencing ......................................................................................... 40

B.

CLAIM 2: APPLICANT’S SENTENCING TRIAL VIOLATED DUE PROCESS BECAUSE THE TRIAL COURT WAS
AWARE OF FACTS THAT REQUIRED AN INQUIRY INTO WOOD’S COMPETENCE BUT FAILED TO CAUSE
ANY INQUIRY TO BE UNDERTAKEN ...................................... 42

C.

CLAIM 3: APPLICANT’S CAPITAL SENTENCE IS
BASED ON FALSE AND MISLEADING TESTIMONY IN
VIOLATION OF DUE PROCESS ................................................. 44
1.

Grigson Testified Falsely Concerning His Experience,
Neutrality, and Predictive Confidence ............................... 46

2.

Grigson Testified Falsely Concerning His Ability to
Form a Reliable Psychiatric Opinion Based on a Hypothetical Question .............................................................. 51

3.

Grigson’s Omission That He Had Been Expelled
From the APA and TSPP for Conduct Identical to His
Work in Wood Was Misleading ........................................... 53

4.

The False and Misleading Testimony Contributed to
Wood’s Punishment ............................................................. 54

D.

CLAIM 4: APPLICANT’S JUDGMENT WAS OBTAINED
IN VIOLATION OF DUE PROCESS BECAUSE IT WAS
BASED ON FALSE SCIENTIFIC EVIDENCE ........................... 56

E.

CLAIM 5: THE EIGHTH AMENDMENT CATEGORICALLY EXEMPTS APPLICANT FROM PUNISHMENT BECAUSE HIS PARTICIPATION AND CULPABILITY ARE
TOO MINIMAL TO WARRANT THE DEATH PENALTY ......... 57
ii

III.

F.

CLAIM 6: NOTWITHSTANDING WHETHER TISON’S
STANDARD WAS VIOLATED, THE COURT SHOULD
HOLD THAT EVOLVING STANDARDS OF DECENCY
NOW PROHIBIT THE EXECUTION OF A PERSON WHO
NEITHER KILLED NOR INTENDED TO KILL ........................ 63

G.

CLAIM 7: THE COURT SHOULD DECLARE THE TEXAS
DEATH PENALTY UNCONSTITUTIONAL BECAUSE OF
ITS ARBITRARINESS AND INABILITY TO ENSURE
THAT ONLY THE WORST OF THE WORST RECEIVE
DEATH SENTENCES ................................................................... 67

H.

CLAIM 8: THE DUE PROCESS CLAUSE REQUIRES
THAT THE STATE OBTAIN A NEW VERDICT BECAUSE
ITS PRIOR VERDICT, WHICH WAS PREDICATED ON A
PREDICTION OF THE FUTURE, NO LONGER PERMITS
EXECUTION OF THE SENTENCE DUE TO THE PASSAGE OF TIME AND MATERIALLY CHANGED CIRCUMSTANCES .............................................................................. 76

AUTHORIZATION .................................................................................. 82
A.

CLAIM 1: APPLICANT WAS INCOMPETENT TO STAND
TRIAL AT SENTENCING ............................................................ 83

B.

CLAIM 2: APPLICANT’S SENTENCING TRIAL VIOLATED DUE PROCESS BECAUSE THE TRIAL COURT WAS
AWARE OF FACTS THAT REQUIRED AN INQUIRY INTO WOOD’S COMPETENCE BUT FAILED TO CAUSE
ANY INQUIRY TO BE UNDERTAKEN ...................................... 84

C.

CLAIM 3: APPLICANT’S CAPITAL SENTENCE IS
BASED ON FALSE AND MISLEADING TESTIMONY IN
VIOLATION OF DUE PROCESS ................................................. 84

D.

CLAIM 4: APPLICANT’S JUDGMENT WAS OBTAINED
IN VIOLATION OF DUE PROCESS BECAUSE IT WAS
BASED ON FALSE SCIENTIFIC EVIDENCE ........................... 85

iii

IV.

E.

CLAIM 5: THE EIGHTH AMENDMENT CATEGORICALLY EXEMPTS APPLICANT FROM PUNISHMENT BECAUSE HIS PARTICIPATION AND CULPABILITY ARE
TOO MINIMAL TO WARRANT THE DEATH PENALTY ......... 86

F.

CLAIM 6: NOTWITHSTANDING WHETHER TISON’S
STANDARD WAS VIOLATED, THE COURT SHOULD
HOLD THAT EVOLVING STANDARDS OF DECENCY
NOW PROHIBIT THE EXECUTION OF A PERSON WHO
NEITHER KILLED NOR INTENDED TO KILL ........................ 86

G.

CLAIM 7: THE COURT SHOULD DECLARE THE TEXAS
DEATH PENALTY UNCONSTITUTIONAL BECAUSE OF
ITS ARBITRARINESS AND INABILITY TO ENSURE
THAT ONLY THE WORST OF THE WORST RECEIVE
DEATH SENTENCES ................................................................... 87

H.

CLAIM 8: THE DUE PROCESS CLAUSE REQUIRES
THAT THE STATE OBTAIN A NEW VERDICT BECAUSE
ITS PRIOR VERDICT, WHICH WAS PREDICATED ON A
PREDICTION OF THE FUTURE, NO LONGER PERMITS
EXECUTION OF THE SENTENCE DUE TO THE PASSAGE OF TIME AND MATERIALLY CHANGED CIRCUMSTANCES .............................................................................. 88

CONCLUSION ......................................................................................... 91

iv

TABLE OF EXHIBITS
Exhibit

Document

1
2

Affidavit of Mitzie Wood, Mar. 24, 2000
Comprehensive Psychological Evaluation, Apr. 29,
1987
Comprehensive Individual Assessment and Psychological Evaluation, May 14, 1990
Affidavit of Nadia (Mireles) Howell, Mar. 25, 2000
Excerpt from Kerville Police Department Records
Kinne Report Re: Status of Inmates with Commuted
Sentences
American Psychiatric Association News Release, July
20, 1995
Summary Report of Ethics Complaint Investigation,
Hearing, Deliberation and Decision of the Texas Society of Psychiatric Physicians, Sep. 12, 1993
Letter from George Pazdral, M.D., J.D., Chair of
TSPP Ethics Committee, to James Grigson, Apr. 11,
1994
Excerpt from Vernon State Hospital Records
Declaration of Michael A. Roman, Ph.D., Aug. 1, 2016
Excerpts of 1994 James Grigson Deposition
SEALED Juror 1 Declaration
SEALED Juror 2 Declaration
SEALED Juror 3 Declaration
Summary of Cases in Which Courts Have Found Defendant Lacked Sufficient Culpability Under Tison v.
Arizona

3
4
5
6
7
8
9
10
11
12
13
14
15
16

v

IN THE 216TH JUDICIAL DISTRICT COURT
OF KERR COUNTY, TEXAS
AND
IN TE COURT OF CRIMINAL APPEALS OF TEXAS
IN AUSTIN, TEXAS
__________________________________

§
§
§ CAUSE NO. ________________
§
§
§

EX PARTE JEFFERY LEE WOOD,
APPLICANT
__________________________________

APPLICATION FOR A WRIT OF HABEAS CORPUS
SEEKING RELIEF FROM A JUDGMENT IMPOSING DEATH
Applicant Jeffery Lee Wood seeks relief from his judgment imposing
death in violation of the United States Constitution.
I.
STATEMENT OF THE CASE
Jeffery Wood was charged with capital murder for the January 2, 1996,
death of Kriss Keeran. Daniel Reneau shot Keeran in order to steal a safe
from the convenience store at which Keeran worked. The store’s assistant
manager and clerk had both taken part in planning the safe’s theft. Wood,
unaware that Reneau would harm anybody, sat in a truck parked outside the
store.

1

Wood is confined and sentenced to death pursuant to the judgment of
the 216th District Court of Bandera County, on a transfer of venue.1 The
judgment was affirmed by the Texas Court of Criminal Appeals (TCCA).
Wood v. State, 18 S.W.3d 642 (Tex. Crim. App. 2000). The TCCA denied his
initial state habeas application on May 9, 2001. Order, Ex parte Wood, No.
WR-45,500-01 (Tex. Crim. App. 2001). No other application has been filed.
Jeffery Lee Wood
Wood has borderline intellectual functioning, a severe disability.2 He is
described by his step-mother as an “eight-year-old in a man’s body.”3 As early
as elementary school, Wood was identified by the East Central Independent
School District in San Antonio as being in need of additional services. He was
tested and determined to be hyperactive. In sixth grade, at the age of twelve
and after a change in schools, Wood was again immediately identified as reThe case originated in Kerr County and was transferred back to Kerr County after
the trial.
1

Wood’s IQ has repeatedly and consistently been tested at approximately 80, which
is more than one full standard deviation below normal. There are “marked similarities between the situation of people with intellectual disabilities and those with borderline intellectual functioning.” Eric Emerson, et. al., The Mental Health of Young Children With Intellectual Disabilities or Borderline Intellectual Functioning, 45 SOC. PSYCHIAT. EPIDEMIOLOGY 579 (2010). These similarities include significantly higher rates of mental health needs,
similar patterns of service response to mental health disorders, and increased risk of exposure to socioeconomic disadvantage. Another study found that “[b]oys with externalizing
symptoms and a subaverage IQ displayed an impulsive-response style with deficiencies in
their information-processing capacity. The authors concluded that children with problems
of conduct and BIF [borderline intellectual functioning] belong to one of the most vulnerable groups of youth in Western society.” Elisabeth Fernell and Ulla Ek, Borderline Intellectual Functioning in Children and Adolescents – Insufficiently Recognized Difficulties, 99
Acta Paediatrica 748 (2010).
2

3

App. 1 (Affidavit of Mitzie Wood, Mar. 24, 2000).

2

quiring additional attention. Assessed by a psychologist, he was described as
“hyperactive,” “highly impulsive,” and having a “short attention span.” The
psychologist reported,
Hygiene and grooming are also often poor. During an observation, Jeff was very fidgety. He was seldom on task but did volunteer to answer questions and offered to loan another student a
pencil. He seemed to want attention from his math teacher, asking her for help on the testing activity. The observer’s opinion
was that Jeff seemed to want to have his teacher all to himself.4
The psychologist administered several tests, and observed that Wood presented a “challenging” case because his “behavior and attitudes fluctuated
rapidly.”5 He “constantly subvocalized self-derogatory statements and complaints usually with great expression and intensity.”6
Psychomotor testing reflected a visual-motor score “significantly below
his chronological age range,” which impacted Wood’s spelling and written expression.7 Personality assessment reflected that Wood “demonstrates the impulsivity and disorganization often noted in youngsters with some form of a
visual-motor deficit.”8
Additionally, excessive anxiety and fear create tension, and lead
to faulty reasoning and reality testing. The result is a youngster
who exercises exceptionally poor judgement which, along with
4

App. 2 at 2 (Comprehensive Psychological Evaluation, Apr. 29, 1987).

5

Id.

6

Id.

7

Id. at 3.

8

Id. at 5.

3

achievement failures, further results in negative consequences.
This, in turn, fosters self-doubt and recrimination. Jeff is not able
currently to pull himself out of this dilemma by using productive
problem solving strategies since self-introspection is so painful,
and an objective wholistic [sic] picture of reality is so difficult for
him to attain. His subjective perceptions seem to be fragmented
and filled with morbid, threatening elements. He seems to feel a
strong drive to retreat from emotional stimuli and emotionally
laden thoughts; if unable to do so, perceptions of reality become
even more distorted. ...
In summary, Jeff is a very troubled youngster who is at risk for
regressing to even a less functional state. The variety of problematic behaviors he displays are reflections of his extreme internal
discomfort created by his negative impressions of himself and his
world.9
The psychologist diagnosed Wood as having severe overanxious disorder with
avoidant features and determined him to meet the disability criteria for the
category of Emotionally Disturbed.10 Finally,
Parents are strongly encouraged to arrange for therapeutic intervention for Jeff. No matter what teachers can do for Jeff at
school, part of his problems stem from personal issues which he
will need to resolve. Without such help, Jeff is at risk for developing more serious difficulties.11
The psychologist further recommended that corporal punishment not be used
against Wood because “this will only make Jeff feel more helpless” and cause
reality-distortion.12 Teachers were also recommended to provide Wood with
alternatives, because “Jeff tends to narrow his focus when upset. Discus9

Id. at 5–6.

10

Id. at 6.

11

Id. at 7.

12

Id. at 6.

4

sions during these times will likely be fruitless.”13 The middle school
thereafter placed Wood in special education.
Wood was assessed by a different school psychologist in 1990 at age fifteen.14 The psychologist observed that teachers found Wood to be “seemingly
happy and socially appropriate with classmates,” but “easily distracted” and
“restless.”15 “He needs instructions repeated. He looses [sic] his papers.”16 The
psychologist further reported about Wood’s behavior,
This examiner observed that Jeff looked his age but acted like a
middle school boy. . . . During both test sessions Jeff chewed gum
so vigorously that his ears wiggled. His facial and body movements were loose. Sometimes he mumbled or distorted his
speech. Jeff was anxious about his test performance and frequently he asked how he was doing. He worded it negatively,
though, as, “I flunked, didn’t I?” On the Rorschach Jeff nervously
rotated the cards and took a long time to respond. He was reluctant to risk an initial answer on the Rorschach. Rather, after a
minute he asked the examiner, “What do you think it looks
like?”17
Six years later, at age 21, Wood would be charged with capital murder for
Daniel Reneau’s decision to murder Kris Keeran. Wood’s debilitating emotional and intellectual impairments made him vulnerable to Reneau and se-

13

Id. at 7 (emphasis added).

App. 3 (Comprehensive Individual Assessment and Psychological Evaluation, May
14, 1990).
14

15

Id. at 2.

16

Id.

17

Id.

5

verely diminished his capacity to anticipate what Reneau was capable of doing inside the convenience store.
Daniel Earl Reneau
Daniel Reneau was a drifter with an “unstable personality” who wandered into Kerrville, Texas during the summer of 1995. A psychiatrist retained by Reneau’s lawyer during his capital murder trial attributed this
“unstable personality” to Reneau’s having a “severe personality disorder,
which included some, what we call, narcissistic features, borderline features
and some antisocial features” with “a history of depression, a history of alcohol abuse, a history of drug abuse.”18 Reneau was twenty years old when he
came to Kerrville. He had been confined in a juvenile mental health facility in
San Marcos, Texas, until he turned eighteen.19 Homeless in Kerrville, Reneau
was allowed by an employee of the Save Inn Motel to sleep in its office.20 A
man named David Warner subsequently took him in. Warner allowed Reneau
to stay in his home from August 1995 until the end of October 1995, when he
was asked to leave.21

Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 21: 177. Wood did not
do drugs and did not abuse alcohol. App. 4 at 2 (Affidavit of Nadia Howell, Mar. 25, 2000).
18

19

Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 21: 176.

20

Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 21: 146–48.

21

Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 21: 130–33.

6

It was in early November 1995 that Reneau met Wood.22 Wood at the
time was living with his long-term girlfriend Nadia Mireles and their daughter in an apartment in Kerrvile.23 Although Wood at this time struggled to
hold a job and was unemployed, he had not been engaged in any criminal activity.24 That was about to change due to Reneau’s influence. Reneau first
came over to Wood’s and Mireles’s apartment with Wood’s friend Terry.25 In
late November, Wood, Mireles, Terry, and Reneau went on a two-week trip to
Washington State to visit Mireles’s sister.26 Reneau began a romantic relationship with Mireles’s sister while there, and she returned to Kerrville with
them.27 Around November 26, 1995, Wood, Mireles, her sister, and Reneau
moved into a trailer owned by Mireles’s grandfather.28
It was at this point that Mireles believed Reneau’s personality began to
change. Whereas Mireles initially found Reneau nice and polite, he became
increasingly erratic and threatening. Mireles became “worried about [her]
safety, as well as [her] daughter’s and [her] sister’s. [Reneau] became very
Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 21: 27. Although Wood
was one year biologically older than Reneau, Wood was (and remains) mentally far younger
than his biological age.
22

23

Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 19: 143.

Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 19: 146; Vol. 21: 27.
See also App. 4 at 1.
24

25

Id.

26

Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 19: 144.

27

Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 19: 145.

28

Id.

7

aggressive, angry all the time.”29 It was during this period that Reneau began
arming himself and committing crimes. On November 30, 1995, Reneau had
Wood drop him off at a convenience store in Kerr County, where Reneau used
a pellet gun to rob it of approximately $600. In December, Reneau influenced
Wood and two juveniles to steal firearms out of two buildings known to the
juveniles to contain guns.30 Reneau pointed a firearm at each of the juveniles
and threatened to kill them if they turned him in.31 Reneau kept the stolen
firearms and stored them at Mireles’s trailer, and always insisted on carrying
one on him.32 During this period, Mireles tried to get Reneau to leave the
trailer.33 Reneau pointed a gun at her and told her that if she ever turned
him in for his criminal activity, he would kill her and her daughter.34
“There wasn’t really a plan.”
Although there was a desire to obtain the safe in which thousands of
dollars had accumulated from the Texaco store, there was no plan, in any
meaningful sense, to rob the Texaco. The store was within walking distance
from the trailer they lived in, and neither owned a car.35 They scratched lot29

Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 21: 25–26.

30

Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 21: 33–36, 49, 52–53.

31

Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 21: 43, 58.

32

Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 21: 21; 25 RR 84.

33

Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 19: 154.

34

Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 19: 154–55.

35

Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 19: 152.

8

tery tickets and befriended the store’s employees, William Bunker and Kris
Keeran, who gave Wood and Reneau free drinks.36 Wood considered them
friends. The talk between all four eventually turned to how to defraud the
store of money.
Then-32-year-old William Bunker was the assistant manager of the 24hour Texaco store. Bunker violated company policy by allowing Reneau and
Wood into the store office, including while Bunker counted out the day’s money.37 He participated in discussions with them about a plan to commit theft in
which he would leave the back door unlocked and walk outside while Reneau
and Wood would slip in and remove the store’s safe and security recording.38
He showed Reneau and Wood where the safe and the recording equipment in
the office were located.39 He told Reneau and Wood approximately how much
money would be in the safe after a holiday weekend (“Ten or $20,000”), and
when it would be removed for deposit (January 2).40 He was to be given a cut
of the money.41 There was never mention about violence or anyone getting
hurt.42
36

Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 19: 57–58.

37

24 RR 76–77, 86.

38

24 RR 75, 89.

39

24 RR 76, 86.

40

24 RR 77.

41

24 RR 88.

42

24 RR 90; 25 RR 84.

9

Although Bunker would subsequently claim that he never took any of
the planning seriously, he testified he never told Reneau and Wood that he
was abandoning their joint effort to steal the store’s safe.43 When the police
approached Bunker to question him after Keeran’s death, Bunker lied and
said he did not know anything about it and did not know anybody who was
talking about it.44 As Kerrville Police Department Detective Harry Fleming
put it in his report, “Bunker lied, he could have prevented the death of his
friend and further that after the murder of Keeran, that when Bunker could
have assisted in the apprehension and identify the actors, Bunker did not
help or even be honest.”45 Although Keeran never would have been shot had
Bunker—a manager at the store—not invited and actively participated in
planning the stealing of the store’s safe, he was never charged criminally for
his role in Keeran’s death.
The morning of January 2, 1996, would be the last opportunity to obtain the money which had accumulated in the safe over the holiday period.
Although Keeran had been involved in discussions about taking the safe, he
had conveyed to Reneau and Wood that he would not participate in defrauding the store.46 As Keeran was to be on duty the morning of January 2,
43

24 RR 88.

44

24 RR 92.

45

App. 5 (Excerpt from Kerrville Police Department Records).

46

Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 19: 138.

10

Reneau grew increasingly frustrated and began to brainstorm ideas to get the
money without his cooperation.47 One plan formulated by Reneau before the
robbery was for Mireles and her sister to enter the store and distract Keeran
while Reneau entered through the back and take the safe.48
Wood had borrowed his brother’s truck over the holiday. He had to return it early on January 2, so that his brother could drive to work.49 In the
early morning hours of January 2, Wood and Reneau drove to the convenience store and parked outside it. Reneau, as usual, carried a gun. Wood, as
usual, did not.50 Reneau first made an attempt to discretely steal the safe. He
pried open the office door at the back of the store with the intent to wait until
it got busy and then slip inside and take the safe. However, Keeran shut and
locked the door before he had the opportunity to do so. The pair ultimately
gave up and returned to the trailer.51
At about 5:15 a.m., Reneau and Wood got ready to leave the trailer
again.52 Wood told Mireles that they were going to stop at the Texaco and

47

Id.

48

Id.

49

25 RR 87.

Reneau had always insisted that he be armed regardless of what they were doing.
25 RR 84.
50

51

Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 19: 231–33.

52

Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 19: 139.

11

then go to Devine so Wood could return his brother’s truck.53 When Reneau
picked up a gun to take with him, Wood asked him to leave it and said they
were not going to try to get the safe.54 Reneau put the gun under the couch
and Wood walked outside to his brother’s truck.55 After Wood left, Reneau
picked up the gun, stuck it in his pants, and told Mireles he was “going to get
the money, one way or the other, if he had to kill him.”56
Back at the Texaco, Wood told Reneau he would go inside the store and
ask Keeran to let them take the safe like they had all previously talked
about. But Wood returned a few minutes later and told Reneau that he did
not ask him.57 Reneau told Detective Fleming that, at this point, “there
wasn’t really a plan.”58 Reneau told the detective that when he went back into the store, his intention was simply to scare Keeran into giving him the
money.59 He was not thinking about hurting Keeran.60

53

Id.

54

Id.; 25 RR 88.

55

Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 19: 139.

56

Id.

57

Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 19: 235–36.

58

Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 19: 236.

59

Id.

60

Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 19: 237.

12

While Wood sat in the truck, Reneau entered the store, pointed the gun
at Keeran, and told him to go to the back room.61 His finger was on the trigger.62 Keeran did not respond, but stood motionless.63 Then, “the gun fired.”64
Reneau told Detective Fleming that shooting Keeran was not what he wanted
to do.65 When, for whatever reason, Reneau shot Keeran, Wood was outside
the store, oblivious to what Reneau was capable of doing and to what he
would do to Keeran.66 After the gun fired, Wood entered the store, “confused,”
with a look of “real shock on his face.”67 After Reneau shot and killed Keeran,
he threatened Wood that he would kill Wood’s girlfriend and daughter if he
did not assist him.68
Daniel Reneau’s Trial
Reneau was tried first, convicted, and sentenced to death. The State relied heavily on Mireles’s testimony during Reneau’s trial to persuade the jury
to find Reneau guilty and sentence him to death. It elicited her testimony
that

61

Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 19: 239.

62

Id.

63

Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 19: 240.

64

Id.

65

Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 19: 242.

66

24 RR 219.

67

24 RR 220.

68

25 RR 100.

13

[Reneau and Wood] had told me they were going to stop at the
Texaco and go to Devine, and Danny was going to take the gun
with him and Jeff told him to leave it there, and Danny put it
under the couch and Jeff walked out and Danny picked up the
gun and stuck it in his pants and said he was going to get the
money, one way or the other, if he had to kill him.69
The State told Reneau’s jury, “[Reneau] was frustrated, because this planning had been going on for at least a couple of weeks, maybe longer, and he
was just tired of all this planning and all of these plans falling through, so he
decided that one way or another, even if he had to kill someone, he was going
to get that money.”70 The State repeatedly vouched for Mireles’s credibility,
telling Reneau’s jury that “she told the truth. She told exactly what happened.”71
The State also elicited testimony in Reneau’s trial about threats made
by Reneau against the lives of Wood’s wife and child, as well as against the
lives of other people with whom Reneau had committed crimes.72 The State
told Reneau’s jury during the sentencing phase of his trial, “[Reneau] knows
right from wrong and he knew the consequences of his actions. That’s why he
threatened several people. He threatened to kill them if they ever turned him
69

Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 19: 139.

70

Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 20: 11–12.

Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 20: 44. See also Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 22: 34 (“She’s telling the truth under
oath and she has told the truth ….”).
71

Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 19: 154 (testimony by
Nadia Mireles that Reneau had threatened to kill her and her daughter if she ever told anybody what he was doing).
72

14

into the police.”73 The State also recognized Reneau’s presence as the impetus
for Wood’s involvement in crime, including the underlying capital offense:
It’s amazing to me that Jeff Wood []is being blamed [by Reneau’s
lawyer] for all this stuff, and yet you heard the witnesses. You
have seen the time frame. . . . When did all this criminal conduct
begin? It just happens to begin when Daniel Earl Reneau enters
the picture. Now, it’s always everybody else’s fault. They drag
[Reneau] in and did it, but none of these crimes were happening.
You heard Toledo say, “I don’t remember anyone doing all this
stuff until Reneau shows up,” and then the little crime wave begins. . . . Wood apparently was [not] doing that stuff until Reneau
shows up and after that two months of Reneau coming into the
picture, bam, bam, bam, burglary, burglary, burglary, robbery,
murder. What’s the common equation?74
Reneau was convicted and sentenced to death. He was executed in 2002.
Jeffery Wood’s Trial
At Wood’s pre-trial bond hearing, an investigating officer testified that
Wood had no prior felonies and no prior history of violent crime. Nevertheless, Wood’s bond was set at $350,000. The Fourth Court of Appeals found
this to be excessive and reduced it to $50,000, in part on the basis of its finding that Wood was “not a danger to the victim or community.” Ex parte Wood,
952 S.W.2d 41, 43 (Tex. App.—San Antonio 1997).
Also before trial, the court found sufficient doubt about Wood’s competency to stand trial to warrant a jury trial. Evidence from the competency
hearing reflected that Wood was functioning academically at an elementary
73

Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 22: 11

74

Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 22: 31-32.

15

school level in reading and spelling.75 A neuropsychologist concluded that Wood was

unable to appreciate the risks of conviction or rationally aid in his defense
due to delusional and paranoid thinking that caused him to reject out of hand
the possibility that he could be found guilty of capital murder. The neuropsychologist testified that Wood had “a delusional system” which caused him to
be unable to grasp “the reality surrounding the issues specific to this case”
and his role in it.76 Wood’s lawyer also testified at the hearing that Wood had
“a delusional thought process that affects his ability to appreciate culpability.”77 He perceived his lawyer as part of a conspiracy that was forming
against him.78 Wood opposed his lawyers’ raising his competency to stand trial as an issue “based on his delusion that he is going to be absolved at trial.”79
The jury found him incompetent to stand trial.
After this verdict, Wood was committed to the Texas Department of
Mental Health and Mental Retardation at Vernon State Hospital for a period
not to exceed 18 months.80 Although he was immediately flagged by a nurse
as having delusional thought processes, he was deemed competent just 15

75

State’s Exhibit No. 1, First Competency Trial.

76

5 RR 138–39.

77

5 RR 183.

78

5 RR 187.

79

5 RR 188.

80

1 CR 80–81.

16

days after being admitted.81 The records from the hospital reflect that evaluators noted difficulty with Wood’s ability to communicate rationally, especially
with respect to his case. Wood did not receive any treatment at the facility.
The discharge decision was based on Wood’s passing of competency training
materials that tested Wood’s factual understanding of legal proceedings, but
not his rationality or ability to communicate with counsel.82 After Wood was
discharged, a second competency hearing was held. A neuropsychologist
maintained that Wood’s delusional thinking and inability to rationally consult with his counsel about his case had remained unchanged.83 Moreover,
nothing in the Vernon State Hospital records suggested to the neuropsychologists that doctors there had evaluated Wood in any manner that would
have brought his delusional system to the fore.84 Nevertheless, a jury found
him competent and his trial began.
Although the State had relied upon Wood’s girlfriend Mireles to testify
about important events leading up to the offense, including Reneau’s dominating influence, his frustration and determination to obtain the safe from
the Texaco, and threats made to harm her and her child, the State did not

81

1 CR 86.

82

Defendant’s Competency Exhibit No. 1, Second Competency Hearing.

83

7 RR 195–96.

84

7 RR 203.

17

call her in its case against Wood.85 Instead, it relied primarily on Bunker’s
testimony and Wood’s uncounseled custodial statements as evidence of his liability as a party.
Wood’s counsel sought to present three witnesses to establish two defenses: (1) that Wood himself backed out of any conspiracy to steal money
from the Texaco; and (2) that Wood participated under duress due to threats
by Reneau to kill Wood’s daughter and girlfriend if he did not help him. First,
the defense called Wood’s girlfriend, Nadia Mireles. The defense sought to
present the same testimony the State had elicited in Reneau’s earlier trial:
that, before Reneau and Wood left on the morning of the shooting, Wood had
told Reneau not to bring any firearms; that Wood had told Reneau they were
not going to go through with taking the money but were just going to return
the truck to Wood’s brother; and that Reneau had pretended to leave the firearm, only retrieving it after Wood had exited the trailer.86 Even though it had
previously vouched for the veracity and reliability of Mireles’s testimony, the
State now objected to that same testimony on hearsay grounds.87 Trial counsel argued only that the statement constituted an exception to hearsay beDuring Reneau’s trial the prosecutor told the jury during closing argument, “Well,
let me tell you, ladies and gentlemen, if Nadia Mireles is lying to help Jeff, as [Reneau’s
lawyer] infers [sic] here, she didn’t do a very good job, because she will be on that stand
when we try Jeff Wood, because she puts him right in the middle of the capital murder . . .
.” Statement of Facts, State v. Reneau, No. AP-72,812, at Vol. 20: 44.
85

86

25 RR 88.

87

25 RR 89.

18

cause it was either a statement against interest or a statement of present
sense impression. Trial counsel failed to argue the statement constituted an
exception because it was a then-existing mental condition under thenapplicable Texas Rule of Criminal Evidence 803(3). Trial counsel also failed
to argue that exclusion of the statement violated Wood’s constitutional right
to present a defense. The court excluded the statement.
Second, trial counsel also sought to present testimony from Linette
Esensee. She was at Wood’s trailer when Wood and Reneau returned after
the robbery and would have testified that Wood told her Reneau had threatened to kill his daughter and girlfriend “if he did not go along with it.”88 Although the State understood Reneau to threaten the people he brought with
him to commit crimes, and presented such evidence in the trial against
Reneau, the State again sought to exclude the testimony on hearsay grounds.
Trial counsel argued only that the statement constituted an exception to the
hearsay rule because it was a statement against interest and an excited utterance.89 Trial counsel failed to argue that that the exclusion of the statement violated Wood’s constitutional right to present a defense. The court excluded the statement.90

88

25 RR 100.

89

25 RR 101.

90

25 RR 105.

19

Finally, the defense also tried to present the testimony of a neuropsychologist that Wood was not a person of reasonable firmness.91 The court excluded the testimony as not legally relevant.92 Thus, no defense case was presented to the jury. Charged with a parties instruction that permitted it to
find Wood responsible for the conduct of Reneau, the jury returned a guilty
verdict on the capital murder charge.
Wood was unable to reconcile his delusions that he could not be convicted with the reality of the guilty verdict, causing him to break down. He
asked to discharge his lawyers and proceed pro se immediately after the verdict. When the trial court expressed hesitancy about allowing Wood to proceed without representation, Wood expressed his desire to cease defending
himself: “I ain’t going to cross-examine nobody. I’m just going to let them do
what they want. They can call anybody they want. I’m not going to ask them
any questions.”93
The court denied Wood’s request to represent himself because it believed him insufficiently mentally competent to do so.94 The next day, after

91

25 RR 115.

92

25 RR 118.

93

26 RR 51.

26 RR 52 (“I don’t feel comfortable with you understanding all the concepts of
what’s going on . . . .”). In doing so, the trial judge anticipated the Supreme Court’s ruling in
Indiana v. Edwards, 554 U.S. 164 (2008). The Edwards Court held that “the Constitution
permits States to insist upon representation by counsel for those competent enough to
stand trial under Dusky [v. United States, 362 U.S. 402 (1960),] but who still suffer from
94

20

Wood filed a formal motion seeking the same, the court again denied it. The
court said,
Based on the testimony I’ve heard about your educational background and your experience with the criminal justice system, I’m
of the opinion that you still need to have counsel with you that
you could ask questions of and make sure that you know what’s
going on and that you’re not taken advantage of by this proceeding, so I note that you have requested to represent yourself and
I’m going to deny that request and continue these gentlemen as
your counsel . . . . 95
Although the trial judge ruled Wood too mentally incompetent to represent
himself, the court failed to inquire into Wood’s broader competency to proceed
to sentencing. Instead, the proceeding continued unabated, and although
Wood’s counsel had not been removed or made stand-by counsel, they followed Wood’s irrational requests and refrained from cross-examining any of
the State’s witnesses and from presenting any evidence on his behalf.
During the sentencing proceeding, the State presented the extraneous
robbery that Daniel Reneau committed on November 30.96 It also presented
the testimony of psychiatrist James Grigson. Grigson had “earned the nicksevere mental illness to the point where they are not competent to conduct trial proceedings
by themselves.” Id. at 178.
95

30 RR 10.

30 RR 16–38. The evidence the State presented did not establish any criminal liability beyond a reasonable doubt attributable to Wood for this crime. The only evidence of
Wood’s involvement was his custodial statement that he dropped Reneau off at the store
and picked him back up 15 minutes later. 30 RR 36–37. Wood did not receive any proceeds
from Reneau’s robbery. Id. The State also presented allegedly overheard discussions in the
jail between Wood and Reneau about escaping, 30 RR 40–44, but these alleged discussions
about escaping were not remotely credible or serious.
96

21

name of ‘Dr. Death’ because of the number of times he ha[d] testified on behalf of the State at the punishment stage of a capital murder trial and the
number of times the jury has returned affirmative answers to the submitted
special issues.” Bennett v. State, 766 S.W.2d 227, 231–32 (Tex. Crim. App.
1989) (Teague, J., dissenting). When testifying for the State, Grigson always
testified that the defendant “certainly” or “absolutely” or “with 100% certainty” would commit future acts of violence.97
In 1988, the Dallas County District Attorney’s Office created a report
analyzing the behavior of eleven death-sentenced persons from Dallas County
who had had their sentence commuted to a life sentence or a term of years.98
Grigson had testified in nine of the cases that the individual “certainly”
would be dangerous in the future. The report reflected that almost all of these individuals had little to no disciplinary infractions in prison.

97

When Grigson died in 2004, the Houston Chronicle wrote about him,

Nicknamed “Dr. Death" for his willingness to testify against capital murder
defendants, Grigson was a witness in hundreds of death penalty cases. His
pleasant manner, down-to-earth vocabulary and air of certainty helped persuade juries that the defendant -- just about every defendant -- would kill
again if given the chance. That Grigson often had not met with the defendant
did not deter him from forming an opinion about him and defending it to the
hilt.
Mike Tolson, Effect of “Dr. Death” and His Testimony Lingers, HOU. CHRON., June 17, 2004
(available at http://www.chron.com/news/houston-texas/article/Effect-of-Dr-Death-and-histestimony-lingers-1960299.php) (last visited July 29, 2016).
98

App. 6 (Kinne Report Re: Status of Inmates with Commuted Sentences).

22

For example, Grigson had testified in William Hovila’s capital trial that
Hovila is “as severe a sociopath as you can be. He is extremely severe and he
is extremely dangerous.”99 He further testified that, if given an opportunity,
Hovila “absolutely” will kill again.100 The report reflected that Hovila had no
disciplinary violations and “[a]pproaches the model inmate category.”101
Grigson testified in James Pierson’s capital murder trial that Pierson would
“present a continuing threat no matter where they would be, whatever society they would be in, a penal institution or outside the free world.”102 The report reflected that Pierson was “in a minimum custody facility and is no problem.”103 Grigson testified in Anderson Hughes’s case that Hughes “will only
continue his previous behavior and pose a very serious threat to the lives of
other human beings.”104 The report described Hughes as “the cream of the
crop.”105
Grigson also testified in the capital murder trial of Randall Adams. Adams was found guilty of killing a police officer and sentenced to death. Adams’s only criminal record at the time Grigson made his prediction was a
99

Statement of Facts, State v. Hovila, No. AP-56,989, at 343.

100

Statement of Facts, State v. Hovila, No. AP-56,989, at 358.

101

App. 6 at 2.

102

Statement of Facts, State v. Pierson, No. AP-63,437, at 950.

103

App. 6 at 3.

104

Statement of Facts, State v. Hughes, No. AP-51,827, at 2562.

105

App. 6 at 3.

23

conviction for driving while intoxicated.106 Nevertheless, Grigson testified, “I
would place Mr. Adams at the very extreme, worse or severe end of the scale.
You can’t get beyond that. . . . There is nothing known in the world today
that is going to change this man; we don’t have anything.”107 The report described Adams as “[a]n ideal inmate.”108 He was subsequently exonerated and
lived the rest of his life without any criminal record. The report was sent to
Grigson by First Assistant Dallas County District Attorney Jeff Shaw in
1988.
In 1993, the American Psychiatric Association’s (APA) district branch,
the Texas Society of Psychiatric Physicians’ (TSPP) Ethics Committee, began
an investigation into Grigson’s forensic psychiatric practice. It concluded that
Grigson’s practice of predicting future dangerousness and testimony in capital cases violated Section 1 and Section 2, Annotation 3 of The Principles of
Medical Ethics With Annotations Especially Applicable to Psychiatry.109 Section 1 provided, “A physician shall be dedicated to providing competent medical service with compassion and respect for human dignity.” Section 2 provided, “A physician shall deal honestly with patients and colleagues, and strive
to expose those physicians deficient in character or competence, or who en106

Adams v. State, 577 S.W.2d 717, 731 (Tex. Crim. App. 1979).

107

Statement of Facts, State v. Adams, No. AP-60,037, at 1410.

108

App. 6 at 2.

109

App. 7 (American Psychiatric Association News Release, July 20, 1995).

24

gage in fraud or deceptions.” Annotation 3 provided, “A psychiatrist who regularly practices outside his/her area of professional competence should be
considered unethical.” Its report concluded that the Society was required to
act against Grigson because “a willfully narrow rendition of psychiatric
knowledge misleads and distorts the judicial system’s understanding of the
substantial, but not absolute, insights a comprehensive medical, psychiatric
approach could offer for evaluating the presence of mental illness and it[s]
possible future impact [o]n accused defendants.”110
Specifically, the investigation faulted Grigson “for arriving at a psychiatric diagnosis without first having examined the individuals in question,
and for indicating, while testifying in court as an expert witness, he could
predict with 100% certainty that the individuals would engage in future violent acts.”111 As well, the TSPP Ethics Committee concluded that the hypothetical questions on which Grigson based predictions were “grossly inadequate to elucidate a competent medical, psychiatric differential diagnostic
understanding adequate for diagnosing a mental illness according to current
standards.”112 Following investigation and hearing, the TSPP imposed a

App. 8 (Summary Report of Ethics Complaint Investigation, Hearing, Deliberation and Decision of the Texas Society of Psychiatric Physicians, Sep. 12, 1993).
110

111

App. 7.

112

App. 7.

25

sanction of expulsion from the organization.113 The APA thereafter reviewed
and affirmed the TSPP’s decision. On July 8, 1995, the APA Board of Trustees voted to expel Grigson from the APA and TSPP in order to help protect
psychiatry’s perception “as a highly ethical and trustworthy profession.”114
Grigson did not testify in Daniel Reneau’s trial, but the government retained his services in Wood’s. The State added Grigson to its witness list well
after the date by which the court had ordered the parties to disclose their expert witnesses. It was a last-minute decision, made by the State in view of its
otherwise weak case for death against Wood. Wood’s attorneys objected to the
late notice, but the trial court nevertheless allowed the State to present his
testimony to the jury.115
Without cross-examination or objection, Grigson testified that he had
examined “close to about 500 individuals that have criminal charges against
them a year;” that he had “examined over 14,000 that had criminal charges
against them” in total; that he had “examined over 1,400 that was [sic]
charged with murder;” that he had “examined … either 404 or 405 that have
App. 9 (Letter from George Pazdral, M.D., J.D., Chair of TSPP Ethics Committee,
to James Grigson, Apr. 11, 1994).
113

Id. According to psychiatrist James L. Knoll IV, “[Grigson’s] example lives on,
most notably every year at the American Academy of Psychiatry and the Law Review
Course, where videos of his testimony are shown to aspiring forensic psychiatrists to teach
them about unethical practices.” James L. Knoll IV, Death’s Conviction, Psychiatric Times,
Mar.
12,
2010
(available
at
http://www.psychiatrictimes.com/forensicpsychiatry/death%E2%80%99s-conviction) (last visited July 29, 2016).
114

115

24 RR 20–43.

26

been charged with capital murder;” that “[e]ighty-five percent of the examinations [he does] are at the request of the various judges;” that he had testified in criminal trials “probably over 4,000 times;” and that he had “testified
in 163 capital murder cases.”116 Grigson further testified that in “forty someodd percent” of the capital defendants he had “examined,” he had found them
not to constitute a continuing threat.117 Thus, he told the jury, he “state[s]
[his] honest opinion irrespective of . . . whether it’s going to be favorable to
the State or to the defense.”118
With the doctor’s experience represented to the lay jurors to be vast
and his objectivity beyond dispute, the prosecutor posed to Grigson a hypothetical that laid out the “facts” of the offense.119 Following the hypothetical,
the prosecutor asked, “Now, is the hypothetical I have given you thorough
enough for you to form an opinion on whether or not that individual in that
hypothetical would be a future danger to society because there is a probability that he will commit criminal acts of violence that would constitute a continuing threat to society?”120 Knowing that the scientific consensus of his profession in 1998 was that the truthful answer to this question was “no,”

116

30 RR 59.

117

30 RR 71.

118

30 RR 72.

119

30 RR 61–67.

120

30 RR 67–68.

27

Grigson answered, simply, “Right, it’s sufficient.”121 When asked what his
opinion was, Grigson violated his profession’s ethics and falsely answered,
“That the individual you described will most certainly commit future acts of
violence and does represent a threat to society.”122 The prosecutor next asked
Grigson whether it was necessary as an expert testifying on the issue of future dangerousness to examine a defendant personally.123 Although he had
been expelled from professional associations for doing just that, Grigson answered, “No, if you can get sufficient amount of information in a hypothetical,
then you can make an opinion.”124
No cross-examination of Grigson occurred, and the State did not elicit
from Grigson the fact that, at the time of his testimony, he had been expelled
from professional associations for testifying to psychiatric opinions about an
individual’s future dangerousness based on a hypothetical question and to a
certainty. After Grigson’s testimony, the State rested. The defense then rested without presenting a case. The jury answered the special issues in a way
that required a judgment imposing death.

121

30 RR 68.

122

Id.

123

30 RR 71.

124

Id.

28

II.
CLAIMS FOR RELIEF
A.

CLAIM 1: APPLICANT WAS INCOMPETENT TO STAND TRIAL
AT SENTENCING
Mr. Wood was incompetent to be tried during his sentencing proceed-

ing. Although every participant in the trial, from his own counsel to the court
itself, appeared to recognize his incompetency at this time, no competency
hearing was ever sought or held.

1.

Mental health professionals have recognized Wood’s
susceptibility to losing contact with reality since
childhood

Wood’s susceptibility to reality-distorting mental illness was first observed by mental health professionals when Wood was a child.125 A school
psychologist even recommended that corporal punishment not be used
against Wood because “this will only make Jeff feel more helpless,” causing a
further break from reality.126 Teachers were recommended to provide Wood
with alternatives, because “Jeff tends to narrow his focus when upset. Discussions during these times will likely be fruitless.”127 Finally, the school psy-

125

See Statement of the Case, supra, at 8–11.

126

App. 2.

127

Id.

29

chologist noted that, without appropriate help, Wood was “at risk for developing more serious difficulties.”128
2.

A jury believed Wood incompetent to stand trial because
of Wood’s delusional and paranoid thinking

Wood’s defense counsel retained neuropsychologist Michael Roman before trial to evaluate Wood’s cognitive and neurobehavioral functioning. In
the course of his evaluation, Dr. Roman came to believe that Wood possessed
significant impairments in reasoning and rationality that impacted his competency to stand trial.
a.

“Mr. Wood seemed to believe that his statements
were true, no matter how outrageous they seemed.”

Dr. Roman evaluated Wood on June 11, 1996, and June 18, 1996. He
administered several psychological and neuropsychological instruments, conducted a clinical interview, and reviewed records relating to Wood’s social
history and the criminal offense. Dr. Roman observed that Wood’s statements
about the offense were unusual based on what he had read about the offense.
Despite the seriousness of the charges against him, Mr. Wood
stated that he was confident he would be found innocent after he
had a chance to tell his story to the court. He was very candid in
his responses to questions, but seemed highly prone to exaggeration. While some of this seemed to [be] mere bravado—such as
his assertion that he had built his father’s house—he was also
quite naive and unrealistic in many of his statements. For example, he claimed that he could not trust his attorney because he
knew that he was a close personal friend of the district attorney.
128

Id.

30

He also stated that the Texas Ranger who had taken his statement following his arrest had admitted that he knew he was not
guilty and would likely come forth to clarify his position.129
Dr. Roman observed that, “During the interview, Mr. Wood seemed to
believe that his statements were true, no matter how outrageous they
seemed. He was quite paranoid and suspicious of other people . . . . While
some of his more outrageous comments were likely fabrications, he seemed to
believe them wholeheartedly in an almost delusional manner.”130
He also seemed relatively unconcerned about gaining sympathy
for his position, appearing totally convinced that his version of
the truth would prevail once he could present it to people not involved in the conspiracy. He even stated that this would create
an embarrassment and public humiliation for the criminal justice
system, adding that he believed they would abandon their conspiratorial planning—because they had no case for prosecuting
him—once they realized they would be harmed by public opinion.131
Dr. Roman’s testing reflected an IQ in the borderline range, consistent
with prior testing. Id. Although he was out of high school, achievement testing placed Wood at a fourth grade level in spelling and fifth grade level in
reading.132
Mr. Wood’s responses to projective testing indicate significantly
disordered thinking patterns. There is substantial reason to believe that his judgment is impaired, particularly when he encoun129

State’s Exhibit No. 1, First Competency Trial.

130

Id.

131

Id.

132

Id.

31

ters complicated or ambiguous situations. There is also evidence
that he deals with things in a very intellectual, though not necessarily rational, manner. ...
His tendency to deny his feelings and his tendency toward delusional thinking are major reasons for his apparently high tolerance to stress. He also tends to view people and situations in a
narrow, oversimplified manner that serves to promote his own
perceptions, regardless of their accuracy or inaccuracy.
Mr. Wood demonstrates very low self-esteem. To compensate for
this, he appears to invest an extraordinary degree of energy to
maintain a strong outward appearance. His views of himself and
of his abilities are highly influenced by his own imagination rather than objective information and experiences. He also avoids
introspection, tending to promote his own inaccurate selfperceptions rather than more honestly explore his underlying
feelings, attitudes, and motives. It is this aspect of his personality
that seems to drive him to . . . see others as conspiring against
him.133
Dr. Roman further observed that Wood was “unusually hyper-vigilant to perceived threats from the environment” and that Mr. Wood “tend[s] to become
paranoid . . . . When this perception occurs, he cannot typically be persuaded
to reconsider his views.”134
Dr. Roman determined that Wood was incapable of rationally assisting
his defense because “he is totally unwilling to consider the possibility that he
may be found culpable in any way. The extent of his delusional thinking with
regard to this issue is consistent with other aspects of his personality and

133

Id.

134

Id.

32

does not seem to be simply a convenient creation to avoid responsibility for
the crimes with which he is charged.”135
b.

“I believe that Mr. Wood has a delusional system, an
inability to grasp the reality surrounding the issues
specific to this case, his role in it, in the crime, as
well as other things that present a direct threat to
his own well-being, his own sense of self.”

The trial court held a pretrial hearing to determine whether Wood was
competent to stand trial on May 6, 1997. Dr. Roman testified at the hearing.
When asked to explain why Mr. Wood was incompetent to stand trial, Dr.
Roman explained:
... I believe that many things about Mr. Wood’s personality organization, if you will, his history of emotional difficulties, as documented through his school records, his prior patterns of responses to other circumstances in which he has been threatened, and
analysis of his thinking ability and other pertinent issues related
to facts in the case, indicate that he simply does not acknowledge
the possibility that he could in any way be found responsible for
any aspect of this crime and, therefore, has been generally unwilling to accept the need to assist or the advantage of assisting
in his defense.
Furthermore, I believe that when it is pressed on him that he
must go forth and assist in his defense, he takes it as a very personal threat and what I have described as extremely paranoid
thinking, makes him believe that any individual so pressing him
is a part of what he believes is a conspiracy against him to frame
him into accepting wrongdoing for something with which he believes he was not involved.136

135

Id.

136

5 RR 137–38.

33

Dr. Roman further explained that Wood had “a delusional system, an inability to grasp the reality surrounding the issues specific to this case, his role in
it, in the crime, as well as other things that present a direct threat to his own
well-being, his own sense of self.”137
I believe that that manifests in extremely paranoid thinking,
where he believes that anyone who suggests that he would be responsible is out to get him, and I believe that at that point he loses his rational ability to be able to accept and understand beyond
what you would expect from someone who simply would not agree
with that position. He is in my opinion unable to agree with that
position at the present time.138
Wood’s delusions only manifested themselves depending on what he was talking about:
It’s my belief that in issues that specifically threaten his sense
of—it’s hard to explain—the good guy that he believes himself to
be, he is absolutely unable to maintain enough grasp of reality to
be able to follow you through a line of thinking, and I believe that
it’s in that vein that his delusional system would be manifest.139
Wood’s lawyer Scott Monroe also testified that he had experienced what
Dr. Roman described. In the course of his professional interaction with Wood,
Monroe noticed that Wood had “a delusional thought process that affects his
ability to appreciate culpability.”140 Monroe explained,

137

5 RR 138–39.

138

5 RR 139.

139

5 RR 139–40.

140

5 RR 183.

34

When we would discuss how a jury, depending on which witness
was talking about, was going to perceive Jeff, it was like you just
closed a curtain on that conversation. We just stopped talking at
that point in time. Sometimes it would be an argument. Sometimes it would be a change the subject, but I never could really
sink through that he might not be perceived the way he is perceiving himself, that he might not be accepted that way, and I
never seemed to be able to make connections like that, so when I
asked him questions about well, what do you think about this,
how should we handle this point, it was always come from point
of view almost well, you know, everybody is going to know that I you know, that I did this or I didn’t do that, and so it got where
you made no decisions with him, because everything that he expressed to you came from that point of view. This fixation that he
was blameless without responsibility in this case, and even the
discussion that somebody else may not perceive it that way, you
really couldn’t even have that conversation, either. You just met
a brick wall there.
So the question comes in your mind is well, then when I’m asking
questions about what do you think I ought to do or not do, are you
basing this perception that you are totally blameless on this
deal—are you looking at this rationally, that somebody else
might think you are, and it would always come back to the first
part, that it was blameless part, so now I find myself not having
any confidence in my ability to sit down with Jeff. Although, I
don’t think he—I don’t think it’s an intentional thing. I don’t
know where he’s coming from, and so I’m very concerned. I’m
very concerned, because this is a capital murder case and he is
confronted with the death penalty.141
Monroe perceived, for example, that with respect to deciding whether to testify in his own defense, Wood’s “thought process ... just has no basis in reality

141

5 RR 183–85.

35

as far as his belief of how he is going to be perceived.”142 Monroe testified that
Wood was very different from other criminally accused clients.
I mean, you don’t always tell [clients] things that they want to
hear, and sometimes the first rattle out of the bucket is they’re
upset with you and they’re mad and they don’t want to talk with
you about that, but generally with those people either after a few
minutes or certainly after a day or two or week or so of thinking
about it, the emotional level drops again and they’re able to see
what you’re talking about, understand and acknowledge the other side of the coin, so to speak, and at least discuss with you intelligently, even though they don’t like it, what the outcomes could
be, good and bad. I have not had that coming to that point with
Jeff. I have not had that happen yet where we’re okay, let’s look
at this “Maybe they might think I’m responsible.” We haven’t gotten there and it’s been fifteen months now.143
Wood sometimes perceived Monroe as “part of the conspiracy,” which
shut down the communication channel between them.144 Wood’s position on
the competency hearing was that he wanted to be found competent to stand
trial, and Monroe questioned the rationality of that decision “based on his delusion that he is going to be absolved at trial.”145
The jury determined that Wood was not competent to stand trial, and
the court ordered him committed to Vernon State Hospital.146

142

5 RR 185.

143

5 RR 186.

144

5 RR 187.

145

5 RR 188.

146

1 RR 76–81.

36

c.

“Regarding his current charges, as indicated above,
he insists that . . . the truth is that he never did anything, and was an innocent bystander. He is very insistent in repeating this story.”

Wood was admitted to the hospital on May 27, 1997. After an initial assessment, a nurse immediately flagged him as having delusional thoughts.147
Despite that, Wood was deemed competent just 15 days later, without having
received any treatment.148
The records from the hospital reflect that evaluators noted difficulty
with Wood’s ability to communicate rationally, especially with respect to his
case. Dr. William Cromack wrote that Wood “insists that . . . the truth [regarding his current charges] is that he never did anything, and was an innocent bystander. He is very insistent in repeating this story.”149 The discharge
decision was based on Wood’s mastery of competency training materials that
tested Wood’s factual understanding of legal proceedings but not his rationality.150

147

App. 10 (Vernon State Hospital Records Excerpt).

148

1 CR 86.

149

State’s Exhibit No. 4, Second Competency Hearing.

150

Defendant’s Exhibit No. 1, Second Competency Hearing.

37

d.

“I don’t think he’s got a good understanding of the
law of parties. I think we get the same thing on the
law of parties, is just a flat ‘That doesn’t apply to me,’
and it doesn’t make any difference how you explain
it, how you get through it. It is a brick wall that I
have yet to have been able to get through.”

After Wood’s discharge by Vernon State Hospital, the trial court held a
second competency hearing. The government presented Dr. John Quinn’s testimony, a forensic psychologist at Vernon Hospital. Dr. Quinn opined that
Wood was competent to stand trial.151 However, his conclusions were primarily based on a competency interview and test that only inquired about Wood’s
factual understanding of the proceedings.152
Dr. Roman re-evaluated Wood before the hearing.153 He continued to
hold the opinion that Wood lacked sufficient ability to rationally aid in his defense.154 Describing exactly what a school psychologist had earlier observed
about Wood’s “narrowing focus” in the school context, Dr. Roman testified,
Mr. Wood in my opinion has a delusion that he can do no wrong,
that he was a passive participant, at worst, within the offense
that occurred. I’m not suggesting that has any bearing on whether or not he can be held responsible for his actions. However, I believe that it makes it such that whenever anyone attempts to
press him on the point of, “Here are the realities of what we’re
dealing with. Fine, you’re innocent and you’re getting framed. I’ll
give you that, but we have to move forward to deal with what we
151

7 RR 113.

152

7 RR 125.

153

7 RR 192–93.

154

7 RR 195–96.

38

have available to us,” this gentleman cannot and will not do that.
He will shut down. He will become angry. He will withdraw from
you.155
Nothing in the Vernon State Hospital records suggested to Dr. Roman that
doctors there had evaluated Wood in any manner that would have brought
his delusional system to the fore.156
Wood’s attorney also continued to believe that Wood could not rationally aid his defense. During the competency hearing, the government attempted to portray Wood as a person who reasonably disagreed with his counsel
about his prospects due to the particular circumstances of his case. But Monroe admitted that he had clients disagree with him before, and he believed
that Wood was not like other clients, explaining that he had “never” before
had a client like Wood with whom he could not reason.157 When—in an attempt to portray Wood’s persecutory beliefs as reasonably held and nondelusional due to his not having been the shooter—the government suggested
to Monroe that Wood had a good understanding of the law of parties and that
this might be the basis for rational disagreement in his case, Monroe interjected:
I don’t agree with that. I don’t think he’s got a good understanding of the law of parties. I think we get the same thing on the law
155

7 RR 197–98.

156

7 RR 203.

157

7 RR 239.

39

of parties, is just a flat “That doesn’t apply to me,” and it doesn’t
make any difference how you explain it, how you get through it.
It is a brick wall that I have yet to have been able to get
through.158
Wood was found competent at the hearing, and a trial accordingly ensued.
3.

Trial and punishment: reality becomes irreconcilable with
delusion

Following trial on the merits, the jury returned a guilty verdict. Wood,
unable to reconcile his delusional thinking that it was impossible for him to
be found guilty with the reality that a jury had just done so, broke down. Incapable of processing what had happened, Wood ceased participating in the
trial altogether. He attempted to proceed pro se, and, when the state court
judge found Wood too mentally incompetent to represent himself, Wood directed his lawyers to do nothing, to cross-examine no witnesses, present no
witnesses, and make no arguments. Bowing to Wood’s irrational direction,
Wood’s appointed lawyers declined to cross-examine any witnesses or present
any evidence on Wood’s behalf.
4.

Wood was incompetent to stand trial during sentencing

“The conviction of an accused person while he is legally incompetent violates due process.” Bishop v. United States, 350 U.S. 961 (1956). Four years
after Bishop, the Supreme Court articulated the test of competence to stand
158

7 RR 240.

40

trial: “whether a criminal defendant ‘has sufficient present ability to consult
with his lawyer with a reasonable degree of rational understanding—and
whether he has a rational as well as factual understanding of the proceedings
against him.’” Dusky v. United States, 362 U.S. 402 (1960). In Drope v. Missouri, 420 U.S. 162, 171 (1975), the Court reiterated the constitutional prohibition against trying incompetent criminal defendants in these terms: “It has
long been accepted that a person whose mental condition is such that he
lacks the capacity to understand the nature and object of the proceedings
against him, to consult with counsel, and to assist in preparing his defense
may not be subjected to a trial.”
Wood’s irrational decision not to defend himself following the guilty
verdict flowed directly from the delusions Wood held and that a jury had previously determined caused him to be unable to rationally understand the proceedings against him or aid in his own defense at the guilt stage. Wood’s behavior was fully consistent with observations made about Wood when he was
child that physical punishment “will only make Jeff feel more helpless,” and
cause his already loose contact with reality to break even further. As the
school psychologist noted, “Discussions [with Wood] during these times will
likely be fruitless.”
Dr. Roman was present when the guilty verdict was returned against
Wood and when Wood sought to dismiss his lawyers and represent himself.
41

Wood’s behavior “reaffirmed [his] earlier opinion that Mr. Wood was incompetent to stand trial and that his competency to assist counsel in his defense
had not been restored.”159 It is Dr. Roman’s opinion that Wood was not competent during sentencing. Accordingly, Wood lacked the capacity to rationally
consult with counsel and to assist in preparing his defense at sentencing.
Drope, 420 U.S. at 171.
B.

CLAIM 2: APPLICANT’S SENTENCING TRIAL VIOLATED DUE
PROCESS BECAUSE THE TRIAL COURT WAS AWARE OF
FACTS THAT REQUIRED AN INQUIRY INTO WOOD’S COMPETENCE BUT FAILED TO CAUSE ANY INQUIRY TO BE UNDERTAKEN
State procedures must be adequate to protect a criminal defendant’s

right not to be tried while incompetent. Pate v. Robinson, 383 U.S. 375
(1966). A Pate violation is different from a claim that a person was tried
while incompetent. A Pate violation occurs where, in the light of what was
known to the trial court, the failure to make further inquiry into the defendant’s competence to stand trial denied him a fair trial. Porter v. Estelle, 702
F.2d 944, 950 (5th Cir. 1983) (citing Drope, 420 U.S. at 174).
“[I]f the trial court received evidence, viewed objectively, that should
have raised a reasonable doubt as to competency, yet failed to make further
inquiry, the defendant has been denied a fair trial.” Mata v. Johnson, 210
F.3d 324, 329 (5th Cir. 2000). See also Lokos v. Capps, 625 F.2d 1258, 1261
159

App. 11 (Declaration of Michael A. Roman, Ph.D., Aug. 1, 2016).

42

(5th Cir. 1980) (noting that the Pate-Drope inquiry is: “Did the trial judge receive information which, objectively considered, should reasonably have
raised a doubt about defendant’s competency and alerted him to the possibility that the defendant could neither understand the proceedings or appreciate their significance, nor rationally aid his attorney in his defense.”).
“[E]vidence of a defendant’s irrational behavior, his demeanor at trial, and
any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required, but [] even one of these factors
standing alone may, in some circumstances, be sufficient.” Drope, 420 U.S. at
180.
In light of all of the evidence that had emerged from the pretrial proceedings on Wood’s competence, the trial court should have recognized the irrationality of Wood’s behavior, attributed it to his complex mental health and
impairments, and inquired further into his competency to stand trial once
Wood, in the immediate aftermath of the verdict’s being read, requested to
fire his lawyers and told the court, “I ain’t going to cross-examine nobody. I’m
just going to let them do what they want. They can call anybody they want.
I’m not going to ask them any questions.”160 Pre-trial evidence reflected that
Wood had impairments which affected his ability to appreciate culpability
and which gave rise to persecutory delusions. A jury initially found him in160

26 RR 51.

43

competent on the basis of this evidence. Moreover, the judge plainly had
doubt about Wood’s mental competency. It denied Wood’s request to represent himself because “I don’t feel comfortable with you understanding all the
concepts of what’s going on and not having legal counsel that you can rely
on.”161
When Wood re-raised his request to represent himself after the weekend and before the sentencing phase was to start, the judge again denied his
request, saying “I’m of the opinion that you still need to have counsel with
you that you could ask questions of and make sure that you know what’s going on and that you’re not taken advantage of by this proceeding.”162 Thus,
not only should the information before the court have raised a doubt about
Wood’s competency, it raised one in fact. Despite that, no further inquiry was
made into Wood’s competency to stand trial at sentencing, in violation of due
process.163
C.

CLAIM 3: APPLICANT’S CAPITAL SENTENCE IS BASED ON
FALSE AND MISLEADING TESTIMONY IN VIOLATION OF
DUE PROCESS
A conviction procured through the use of false testimony is a denial of

the due process guaranteed by the Federal Constitution. Mooney v. Holohan,
161

26 RR 52.

162

30 RR 10.

For the same reasons, trial counsel were ineffective for failing to move for a competency determination at this point in the proceeding.
163

44

294 U.S. 103, 112–13 (1935); Napue v. Illinois, 360 U.S. 264, 269 (1959); Ex
parte Ghahremani, 332 S.W.3d 470, 477 (Tex. Crim. App. 2011); Ex parte
Chabot, 300 S.W.3d 768, 770–71 (Tex. Crim. App. 2009). The use of false testimony at the punishment phase is also a due-process violation. Ghahremani,
332 S.W.3d at 477. It does not matter that the falsehood goes to an issue of
credibility. Duggan v. State, 778 S.W.2d 465, 469 (Tex. Crim. App. 1989) (citing Napue, 360 U.S. at 270). When false testimony is unknowingly presented
by the State, the applicant has the burden to prove by a preponderance of the
evidence that the error contributed to his conviction or punishment.
Ghahremani, 332 S.W.3d at 482; Chabot, 300 S.W.3d at 771.
Grigson’s testimony in Wood’s sentencing proceeding was false or materially misleading in five different respects. First, Grigson’s testimony concerning his forensic experience, especially in capital cases, was exaggerated
and false. Second, Grigson’s testimony concerning his neutrality in predicting
future dangerousness was false. Third, Grigson’s testimony concerning the
certainty of his prediction was false. Fourth, Grigson testified falsely about
his ability to form a reliable psychiatric opinion based on a hypothetical question posed to him. Finally, the omission of Grigson’s expulsion from the APA
was materially misleading. Wood has no good faith basis to assert that the
prosecution had knowledge of the falsity of Grigson’s testimony, and accordingly alleges unknowing use.
45

1.

Grigson Testified Falsely Concerning His Experience,
Neutrality, and Predictive Confidence

A review of Grigson’s historical testimony reveals that his testimony in
Wood’s sentencing hearing concerning Grigson’s experience, neutrality, and
certainty was false. In the capital murder trial of Baby Ray Bennett in November 1985, Grigson swore that he had examined about 176 capital murder
defendants. Six months later, in Jackie Wayne Upton’s capital murder trial,
Grigson swore that he had examined 162 defendants charged with capital
murder. In October 1987, Grigson claimed in David Stoker’s case to have examined 180–82 persons charged with capital murder. But just seven months
later, Grigson testified in Hai Kein Vuong’s capital trial and claimed he had
examined “156 defendants charged with capital murder.” Thus, between Mr.
Stoker’s trial and Mr. Vuong’s, the total number of capital murder defendants
examined mysteriously shrank by at least 24.
About eighteen months after Vuong’s trial, Grigson testified in Adolph
Hernandez’s capital murder trial. This time, he testified under oath that he
had conducted no fewer than 391 examinations of persons charged with capital murder. The total number of examinations, by Grigson’s account, increased by 235 in a span of eighteen months.164
When cross-examined about his inconsistent numbers in Jack Clark’s trial in
April 1991, Grigson tried to shed light on his numbers, stating “that the majority of those
exams (156) with capital murder came prior to 1981.” However, in a 1994 sworn deposition,
Grigson testified that he had only begun doing forensic psychiatric work full time since
164

46

In Wood’s capital murder trial in 1998, Grigson told the jury he had examined “either 404 or 405” people charged with capital murder. Grigson’s
purported experience was false in two respects. First, the number of evaluations that Grigson testified he had conducted was grossly exaggerated and
misleading. Second, Grigson rarely examined any of the capital defendants in
the cases in which he was retained. In a 1994 deposition, Grigson testified
that he had testified in about 90 cases since 1980, and that in those cases he
did so by way of hypothetical and had not examined the defendant.165 Thus,
Grigson’s testimony about his experience in “examining” capital defendants
was false and misleading.
Remarkably, in most all cases in which Grigson testified, the number of
defendants Grigson testified he had found not to constitute a future danger
was always approximately 40% of the total examined. In Damon Richardson’s
1988 trial, Grigson testified he had examined 187 defendants and had found
74 of them not to be dangerous. Unsurprisingly, this is exactly 40%. But in
Adolph Hernandez’s 1990 capital murder trial—the first trial in which
Grigson is known to have boosted the number of capital examinations he

1978. App. 12 at 13 (Excerpts of 1994 James Grigson Deposition). And in March of 1978,
Grigson testified in John Burks’s case that he had evaluated just “50 or 60” capital murder
defendants at that time, a number that was itself likely greatly inflated in light of the relatively few capital murder prosecutions occurring during this period and the relatively rare
use of expert witnesses at sentencing during the era.
165

App. 12 at 246.

47

conducted dramatically upwards to 391—Grigson testified that he had found
just 70 persons not to be dangerousness, a percentage of only 18%. Grigson
forgot to inflate both numbers, resulting in a drastically reduced percentage.
He corrected the omission in the next case in which he testified. In Jose
Gutierrez’s case, Grigson increased the number of persons he had examined
by one to 392. This time, however, he testified he had found 158 persons not
to be dangerous, a ratio of exactly 40%. Grigson’s testimony in Wood’s case
that he had found “forty some-odd percent” of capital defendants he had examined not to constitute a continuing threat to society was false and designed
to mislead the jury about his objectivity.
The following table reflects Grigson’s testimony about his experience
and professed neutrality in various cases:
Case
Clark v. State,
No. AP-71,251
Talley v. State,
No. PD-1154-93
Gutierrez v. State,
No. AP-71,074
Hernandez v. State,
No. AP-71,083
Moody v. State,
No. AP-70,883
Richardson v. State,
No. AP-70,746
Vuong v. State,
No. AP-70,402
Stoker v. State,

Date of Testimony
Feb. 9, 1991

Number of Capital
Defendants Evaluated
388

May 29, 1990

393

Did not say

Apr. 16, 1990

392

158 (40%)

Feb. 2, 1990

391

70 (18%)

Feb. 28, 1989

189

Did not say

Oct. 5, 1988

187

74 (40%)

May 19, 1988

156

40%

Oct. 27, 1987

180-82
48

Number/Percent of
Capital Defendants
Found Not Dangerous
178 (46%)

Did not say

No. AP-70,031
Banda v. State,
No. AP-69,827
James v. State,
No. AP-69,653
Upton v. State,
No. AP-69,717
Bennett v. State,
No. AP-69,645
Holloway v. State,
No. AP-68,925
Burks v. State,
No. AP-70,971

Mar. 24, 1987

170

40%

July 24, 1986

170

Did not say

Apr. 28, 1986

162

42%

Nov. 4, 1985

176

85 (48%)

Sep. 1981

120

30 (40%)

Mar. 27, 1978

50 or 60

5 or 6 (10%)

Additionally, when testifying for the State, Grigson always testified
that the defendant “certainly” or “absolutely” or “with 100% certainty” would
commit future acts of violence. Grigson was well aware, however, that testimony to this level of certainty was both false and unethical. At the time of
Wood’s trial, Grigson had been reprimanded once by, and then eventually expelled from, the APA specifically for testifying in this manner. In short,
Grigson knew that medical science could not support certitude in predictions
of future behavior. Accordingly, his testimony that Wood “certainly” would
commit criminal acts of violence that would constitute a continuing threat to
society in the future was false.
In Summers v. Director, a federal district court in Texas found as a fact
that identical testimony from Grigson about his experience, neutrality, and
certitude in his prediction was false. Grigson testified in the Summers case in
August of 1991. There, he testified as he did in Wood’s case that he had ex49

amined “over 400” individuals charged with capital murder.166 He also testified that, of the “over 400” he had examined, he had determined that 180 of
them (~40%) did not present a future danger.167 In that case as in Wood’s
case, Grigson testified to his opinion that “certainly” the defendant described
by the prosecution’s hypothetical was going to commit future acts of violence.168 In view of the same information contained in this application, United
States District Judge for the Eastern District of Texas Thad Heartfield concluded in 2004:
[T]he Court finds by a preponderance of the evidence that
Grigson’s testimony was false in three respects: he exaggerated
the number of capital murder defendants he had examined, he inflated the number of defendants he determined would not be likely to be dangerous in the future, and he exaggerated the degree of
his certainty that [the defendant] would be dangerous in the future. The Court also finds that Grigson’s inflating the number of
defendants he determined would not likely be dangerous in the
future was a conscious attempt to mislead the jury as to his objectivity.
Memorandum Opinion at 34, Summers v. Director, No. 6:01-cv-00139-TH
(E.D. Tex. Mar. 4, 2004) (Docket No. 26) (internal citations omitted).

166

Statement of Facts, State v. Gregory Summers, No. AP-71,338, at Vol. 17: 91–92.

167

Statement of Facts, State v. Gregory Summers, No. AP-71,338, at Vol. 17: 100.

168

Statement of Facts, State v. Gregory Summers, No. AP-71,338, at Vol. 17: 97.

50

2.

Grigson Testified Falsely Concerning His Ability to Form
a Reliable Psychiatric Opinion Based on a Hypothetical
Question

Grigson also falsely testified concerning his ability to form a reliable
psychiatric opinion based on a hypothetical question. Grigson testified that
he could form a psychiatric opinion about Wood’s future dangerousness “if
you can get sufficient amount of information in a hypothetical.” 30 RR 71.
Grigson knew this to be false as a matter of science. In his 1994 deposition,
Grigson touted the credibility of the APA as an organization. When asked
why he had remained a member in the APA and TSPP for 31 years, Grigson
replied, “I always felt like that the APA was that specialty branch of medicine
that reflected the . . . highest degree of individuals in psychiatry.”169 He also
described it as the most elite psychiatric organization in the world.170
At the time he testified in Wood’s case, Grigson was aware of the reasons stated by the APA and TSPP for his expulsion. Grigson received notice
from the TSPP in a letter dated April 11, 1994, that it had decided to impose
a sanction of expulsion for violations of Section 1 and Section 2, Annotation 3
of the The Principles of Medical Ethics With Annotations Especially Applicable to Psychiatry.171 The letter included a copy of the TSPP Ethics Commit-

169

App. 12 at 22.

170

App. 12 at 33.

171

App. 9.

51

tee’s decision, which explained that the decision was based on the manner in
which Grigson made and testified about predictions of future dangerousness.
Specifically, the TSPP cited Grigson’s (1) making psychiatric diagnoses without first having examined the individuals in question; (2) giving testimony
that he could predict with certainty that individuals would engage in future
violent acts; and (3) basing his predictions of future dangerousness on hypothetical questions that contained “grossly inadequate” information to form a
reliable psychiatric opinion.172
Following notice of the decision, Grigson even sued the APA and TSPP
seeking to prevent his expulsion, claiming “irreparable harm” from such an
event. See Grigson v. American Psychiatric Association, et. al., No. 94-07736
(14th District Court, Dallas County, Texas). The lawsuit was ultimately unsuccessful and dismissed. Id. He testified under oath in his deposition that he
thought the TSPP’s investigation and hearing that resulted in his expulsion—which he had attended and at which he was afforded an opportunity to
be heard—had been fair.173 Thus, Grigson knew his testimony to Wood’s jury
that he could form a reliable psychiatric opinion based on a hypothetical
question was false.

172

Id.

173

App. 12 at 169–70.

52

Grigson’s testimony that he could form a reliable psychiatric opinion
based on the hypothetical provided by the State was false in another respect.
In his 1994 deposition, Grigson testified that one “always” must “rule out
other serious mental disorders that might present in some ways” before making a diagnosis. When asked how he does this when he has not personally
seen the subject, Grigson replied that it is “real easy,” because “you have two
opposing sides. One side is going to present all the negatives. One side is going to present all the positives.”174 In Wood’s trial, Grigson knew that only
one side had presented evidence and thus he was unable to take into account
“other serious mental disorders” before giving his psychiatric opinion about
Wood.
3.

Grigson’s Omission That He Had Been Expelled From the
APA and TSPP for Conduct Identical to His Work in Wood
Was Misleading

Grigson was presented to the jury as an expert in psychiatric medicine.
His first statement to the jury was, “I am a medical doctor. I specialize in
psychiatry.”175 Grigson did not, however, reveal that he had been expelled
from professional psychiatric organizations for precisely the kind of forensic
practices he engaged in on the witness stand in Wood’s case. This omission
misled the jury as to his forensic psychiatric competence and credibility. In
174

App. 12 at 242.

175

30 RR 58.

53

his 1994 deposition, Grigson himself recognized that the expulsion was relevant to his credibility as an expert.176
4.

The False and Misleading Testimony Contributed to
Wood’s Punishment

Notwithstanding that no defense of Wood occurred at sentencing due to
Wood’s incompetency, Grigson’s false testimony was prejudicially harmful.
The State’s case for future dangerousness was weak. This is what precipitated its last-minute decision to present Grigson’s testimony in the first place,
notwithstanding that Wood had asked his counsel not to defend him. Three
jurors from Wood’s trial would have discounted Grigson’s testimony in a
manner affecting their deliberations had they known he testified falsely and
misleadingly.
Juror 1 has declared under oath that he “no longer agree[s]” that “Wood
deserve the death penalty” because Grigson’s 1994 expulsion from the TSPP
was “fatal to his testimony.” The juror is “angered the D.A. put him on the
stand” and “feel[s] the government lied to the jury by presenting him as an
expert.”177

App. 12 at 72 (expulsion “weighed on the credibility of my testimony”); 128 (the
expulsion “hurt my credibility as an expert witness with the jury”); 136 (“the fact that
you’ve been reprimanded twice and you’ve been censured twice by the APA carries weight
with a jury”); 137 (expulsion “would hurt my credibility with jurors”).
176

177

SEALED App. 13.

54

Juror 2 believed that “[it] is terrible that Dr. Grigson was allowed to
testify as an expert witness to the future dangerousness” of Wood. “After
hearing of his expulsion from the [TSPP], this discredits him as an expert.”
Knowledge of this “would have affected my deliberations.”178
Juror 3 has declared under oath that the inclusion of Grigson’s testimony “was unfair due to his expulsion from the [TSPP]” and that “his incompetency as an expert should have been presented.” Further, the special issues
in light of the testimony “allowed little wiggle room” and “punishment was
out of the jury’s hands.”179
Court of Criminal Appeals Judge Odom once characterized Dr.
Grigson’s testimony—even when subject to cross-examination—as “prejudicial beyond belief.”180 Smith v. State, 534 S.W.2d 895 (Tex. Crim. App. 1976),
withdrawn on rehearing by 540 S.W.2d 693 (Tex. Crim. App. 1976). Judge
Teague of that Court once wrote that “to even conclude that Dr. Grigson’s testimony may be harmless is ludicrous.” Bennett v. State, 766 S.W.2d 227, 232
(Tex. Crim. App. 1989) (Teague, J., dissenting). Absent Grigson’s testimony,
and given Wood’s lack of any violent criminal history, a jury may well have
found that the State had not proved future dangerousness beyond a reasona178

SEALED App. 14.

179

SEALED App. 15.

Judge Odom was “unable to find that much of [Grigson’s] testimony offered was
from this side of the twilight zone.” Id. See also John Bloom, Killers and Shrinks, Tex.
Monthly, July 1978, at 66.
180

55

ble doubt. Grigson’s false and misleading testimony accordingly contributed
to Wood’s punishment verdict.
D.

CLAIM 4: APPLICANT’S JUDGMENT WAS OBTAINED IN VIOLATION OF DUE PROCESS BECAUSE IT WAS BASED ON
FALSE SCIENTIFIC EVIDENCE
Wood’s judgment violates due process because it was secured through

false psychiatric testimony concerning his future dangerousness. Recently,
the Ninth Circuit held that a due process violation occurs when a conviction
is based on junk science. See Gimenez v. Ochoa, No. 14-55681, 2016 WL
2620284 at *5-6 (9th Cir. May 9, 2016) (recognizing that a due process claim
based on faulty evidence “is essential in an age where forensics that were
once considered unassailable are subject to serious doubt”). The Ninth Circuit’s decision aligns with the Third Circuit’s Han Tak Lee v. Glunt, 667 F.3d
397 (3d Cir. 2012), holding that, if disproven, trial testimony based on unreliable science undermined fundamental fairness of petitioner’s entire trial,
making a prima facie case for habeas relief on due process claim. Id. at 407.
See also Gimenez, 2016 WL 2620284 at *6 (expressly noting Ninth Circuit’s
alignment with Third Circuit).
The Supreme Court has explained that the introduction of faulty evidence is unconstitutional when “its admission violates ‘fundamental conceptions of justice.’” Dowling v. United States, 493 U.S. 342, 352 (1990) (quoting
United States v. Lovasco, 431 U.S. 783, 790 (1977)). See also Estelle v.
56

McGuire, 502 U.S. 62, 70 (1991) (considering whether admission of battered
child syndrome evidence against defendant represented due process violation). To the extent that junk-science claims are a species of false-testimony
claims, the false-testimony standard of prejudice applies. As explained above,
under Chabot, an applicant must “prove by a preponderance of the evidence
that the error contributed to his conviction or punishment.” Id. at 771 (internal quotation marks and citations omitted).
The State presented scientific evidence to the jury when it presented
Grigson’s testimony. For the reasons explained above, this scientific evidence
was false. Not only could Grigson not do, scientifically, what he told the jury
he could do in terms of predicting with “certainty” whether Wood would be a
future danger to society based on a hypothetical given by the prosecutor, his
prediction itself turned out wrong, as Wood has not committed any violent
disciplinary infractions on death row. Accordingly, the Court should find that
the reliance by the jury on this false scientific evidence violates due process.
E.

CLAIM 5: THE EIGHTH AMENDMENT CATEGORICALLY EXEMPTS APPLICANT FROM PUNISHMENT BECAUSE HIS
PARTICIPATION AND CULPABILITY ARE TOO MINIMAL TO
WARRANT THE DEATH PENALTY
The Eighth Amendment prohibits a sentence that is disproportionate to

the offense. In Enmund v. Florida, 458 U.S. 782 (1982), and Tison v. Arizona,
481 U.S. 137 (1987), the United States Supreme Court ruled that a criminal
57

defendant who was not the person who actually killed the victim; intended
that lethal force be used; intended to kill; or, was a major participant in an
underlying felony offense and showed a reckless indifference for human life is
categorically exempt from the death penalty.
In Enmund, the Court ruled that the defendant was categorically exempt from the death penalty, despite facts that showed he was at least as
culpable as Wood, if not more so. Earl Enmund had previously been convicted
of a violent felony (armed robbery). Enmund at 805 (O’Connor, J., dissenting). The trial court had found that Enmund was the one who planned the
robbery. Id. at 806. As Enmund stood by a few hundred feet from the crime
scene, his accomplice robbed, shot, and killed an 86-year-old man and a 74year-old woman. Id. at 784-86. After the murders, Enmund personally disposed of the murder weapon. Id. at 806 (O’Connor, J., dissenting).
The Supreme Court explained why under these facts the death penalty
would be disproportionate:
Armed robbery is a serious offense, but one for which the penalty
of death is plainly excessive; the imposition of the death penalty
for robbery, therefore, violates the Eighth and Fourteenth
Amendments’ proscription “‘against all punishments which by
their excessive length or severity are greatly disproportioned to
the offenses charged.’” Weems v. United States, 217 U.S. 349, 371
(1910) (quoting O'Neil v. Vermont, 144 U.S. 323, 339-340 (1892));
cf. Coker v. Georgia, 433 U.S. 584 (1977) (holding the death penalty disproportional to the crime of rape). Furthermore, the Court
found that Enmund's degree of participation in the murders was
so tangential that it could not be said to justify a sentence of
58

death. It found that neither the deterrent nor the retributive
purposes of the death penalty were advanced by imposing the
death penalty upon Enmund. The Enmund Court was unconvinced “that the threat that the death penalty will be imposed for
murder will measurably deter one who does not kill and has no
intention or purpose that life will be taken.” 458 U.S. at 798–799.
In reaching this conclusion, the Court relied upon the fact that
killing only rarely occurred during the course of robberies and
such killing as did occur even more rarely resulted in death sentences if the evidence did not support an inference that the defendant intended to kill.
Tison, 481 U.S. at 148–49. As in Enmund, Wood’s degree of participation in
the murder was too tangential to justify a sentence of death.
On the other hand, Wood’s conduct is vastly different from the conduct
of the defendants in Tison, where the Supreme Court held the defendants
were not categorically ineligible for a death sentence. Ricky and Raymond
Tison were two brothers who helped their father, a convicted murderer, and
his cellmate, another convicted murder, escape from prison. Even though neither brother had personally killed any of the victims, the Court held both
were eligible for the death penalty:
Raymond Tison brought an arsenal of lethal weapons into the Arizona State Prison which he then handed over to two convicted
murderers, one of whom he knew had killed a prison guard in the
course of a previous escape attempt. By his own admission he
was prepared to kill in furtherance of the prison break. He performed the crucial role of flagging down a passing car occupied by
an innocent family whose fate was then entrusted to the known
killers he had previously armed. He robbed these people at their
direction and then guarded the victims at gunpoint while they
considered what next to do. He stood by and watched the killing,
making no effort to assist the victims before, during, or after the
59

shooting. Instead, he chose to assist the killers in their continuing criminal endeavors, ending in a gun battle with the police in
the final showdown.
Ricky Tison’s behavior differs in slight details only. Like Raymond, he intentionally brought the guns into the prison to arm
the murderers. He could have foreseen that lethal force might be
used, particularly since he knew that his father’s previous escape
attempt had resulted in murder. He, too, participated fully in the
kidnaping and robbery and watched the killing after which he
chose to aid those whom he had placed in the position to kill rather than their victims.
Id. at 151–52.
The Tison Court further described by way of example what it meant by
“major participation” and “reckless indifference to human life,” which permitted a death sentence, and contrasted it with a situation which did not:
Far from merely sitting in a car away from the actual scene of the murders acting as the getaway driver to a robbery, each petitioner was actively involved in every element of
the kidnaping-robbery and was physically present during the
entire sequence of criminal activity culminating in the murder of the Lyons family and the subsequent flight.
Id. at 158 (emphasis added). See also People v. Banks, 61 Cal. 4th 788, 809,
351 P.3d 330, 343 (2015) (“The Supreme Court . . . made clear felony murderers . . . who simply had awareness their confederates were armed and armed
robberies carried a risk of death[] lack the requisite reckless indifference to
human life.”). A summary of cases in which courts have found defendants
lacked the requisite culpability under Tison is attached as Appendix 16.

60

According to information from the Death Penalty Information Center
(DPIC), in the modern death penalty era, Texas has executed eight individuals who did not directly take human life.181 Three of these, however, were
people who contracted others to commit murder, and thus their intent to kill
was clear. The five other cases include Doyle Skillern, G.W. Green, Carlos
Santana, Jessie Gutierrez, and Robert Thompson. All were active, and
armed, participants in their offenses that resulted in the death of another.182
See Jackson v. State, 575 So.2d 181, 192 (Fla. 1991) (the facts in Tison “presented compelling evidence not only that each defendant actively participated
in their . . . crimes, but that each had a highly culpable state of mind”). Nationally, the DPIC cites only five other individuals have been executed who
did not directly take human life (other than contract killings). Like the Texas
cases, each involved active participation in the underlying felonious conduct
that led to the death. Counsel for Wood are aware of no person who has ever
been put to death in the nation with as tangential participation in the loss of
life as Wood.
Like the contrasting case offered by the Supreme Court in Tison, Wood,
unarmed, “merely s[at] in a car away from the actual scene of the murder.”

See Death Penalty Information Center, “Those Executed Who Did Not Directly
Kill the Victim,” available at http://www.deathpenaltyinfo.org/those-executed-who-did-notdirectly-kill-victim (last visited July 29, 2016).
181

182

In some cases, it remains unclear which participant actually caused the death.

61

Moreover, no reliable evidence reflects that Wood acted with reckless indifference to human life or that he ever thought anything more—given his welldocumented impairments and the employees’ prior participation in the
scheme—than that Keeran would simply allow Reneau to take the safe. As
Reneau told investigating officers, there was not any “plan” before Reneau
went into the store and shot Keeran.
Enmund’s reasoning—which Tison did not overrule—applies with
equal force to Mr. Wood:
The question before us is not the disproportionality of death as a
penalty for murder, but rather the validity of capital punishment
for Enmund’s own conduct. The focus must be on his culpability,
not on that of those who committed the robbery and shot the victims, for we insist on “individualized consideration as a constitutional requirement in imposing the death sentence,” Lockett v.
Ohio, 438 U. S. 586, 605 (1978) (footnote omitted), which means
that we must focus on “relevant facets of the character and record
of the individual offender.” Woodson v. North Carolina, 428 U. S.
280, 304 (1976). Enmund himself did not kill or attempt to kill;
and, as construed by the Florida Supreme Court, the record before us does not warrant a finding that Enmund had any intention of participating in or facilitating a murder. Yet under Florida
law death was an authorized penalty because Enmund aided and
abetted a robbery in the course of which murder was committed.
It is fundamental that “causing harm intentionally must be punished more severely than causing the same harm unintentionally.” H. Hart, Punishment and Responsibility 162 (1968). Enmund
did not kill or intend to kill and thus his culpability is plainly different from that of the robbers who killed; yet the State treated
them alike and attributed to Enmund the culpability of those who
killed the Kerseys. This was impermissible under the Eighth
Amendment.

62

Enmund, 458 U.S. at 798. Indeed, the conflating of Wood’s and Reneau’s culpability was palpable throughout Wood’s trial.183
As in Enmund, “Putting [Wood] to death to avenge [a] killing[] that he
did not commit and had no intention of committing or causing does not measurably contribute to the retributive end of ensuring that the criminal gets his
just deserts.” 458 U.S. at 801.
F.

CLAIM 6: NOTWITHSTANDING WHETHER TISON’S STANDARD WAS VIOLATED, THE COURT SHOULD HOLD THAT
EVOLVING STANDARDS OF DECENCY NOW PROHIBIT THE
EXECUTION OF A PERSON WHO NEITHER KILLED NOR INTENDED TO KILL
Notwithstanding whether Tison precludes Wood’s execution, standards

of decency have evolved such that the execution of a person who did not kill
During the sentencing phase of Wood’s trial in which Wood’s individual moral
culpability was to be judged, the State and its witnesses repeatedly conflated Wood’s and
Reneau’s acts by referencing what “they”—not Jeffery Wood—had done. Grigson, in opining
about Wood’s purported future dangerousness, conflated Wood’s and Reneau’s acts. When
asked by the prosecutor whether the “fact” that the individual in the hypothetical returned
home to get a quieter gun—despite the fact that Reneau, not Wood, had done this—factored
into his opinion, Grigson responded, “Well, it only adds to the fact that they knew they
were going to be shooting the gun and that the clerk was going to be dead, so, you know,
they didn’t want to draw attention by a loud gun going off, apparently.” 30 RR 70. During
the State’s closing argument, the shooter, Reneau, was ever present. The State concluded
its closing:
183

You know, if someone can kill a friend, you know, I submit to you they can
kill anyone. If they can plan the murder of a friend, they can kill someone
else just spur of the moment.
And this is a heinous crime, because it involved premeditated, planned-out
murder of a good friend. You know, one minute he’s taking drinks from him
and the next he’s laughing, the fact that they have killed him.
30 RR 83–84. No similar collective culpability arguments were made by the State during
Daniel Reneau’s trial. (There was no evidence before Wood’s jury that this was a “premeditated, planned-out murder.” Additionally, there was no evidence that Wood ever laughed at
“the fact that they have killed him.”)

63

or intend to kill should now be categorically precluded by the Eighth
Amendment. In 1987, when Tison was decided, the Court concluded that “the
majority of American jurisdictions clearly authorize[d] capital punishment”
for accomplices who were major participants and who exhibited a reckless
disregard for life, even if they did not have an intent to kill themselves. Currently, the opposite is true. Thirty-four jurisdictions (of 52, counting the federal government and Washington, D.C.) have made legislative or judicial decisions against the use of the death penalty for non-triggermen who lacked an
intent to kill.184 Moreover, death sentences against and executions of such
people are exceedingly rare, and becoming even rarer since the growth of life-

See Joseph Trigilio & Tracy Casadio, Executing Those Who Do Not Kill: A Categorical Approach to Proportional Sentencing, 48 Am. Crim. L. Rev. 1371, 1401 (2011) (identifying thirty-three jurisdictions in 2011 as Pennsylvania, 18 PA. CONS. STAT. § 2502(b);
Missouri, MO. STAT. § 565.021; Washington, WASH. REV. CODE §§ 9A.32.030(1)(a) & (c),
10.95.020; Maryland, MD. CODE CRIM. LAW §§ 2-201(a)(4); Oregon, OR. REV. STAT. §§
163.115(1)(b) & 5(a), 163.095(2)(d); Georgia, Hulme v. State, 544 S.E.2d 138, 141 (Ga. 2001);
Virginia, Briley v. Commonwealth, 273 S.E.2d 57, 63 (Va. 1980); Alabama, Ex parte
Woodall, 730 So. 2d 652, 657 (Ala. 1998); Connecticut, State v. Johnson, 699 A.2d 57 (1997);
Indiana, Ajabu v. State, 693 N.E.2d 921, 935 (Ind. 1998); Kansas, KAN. STAT. § 21-3439;
Louisiana, State v. Bridgewater, 823 So.2d 877, 890-91 (La. 2002); Mississippi, Randall v.
State, 806 So.2d 185, 233-34 (Miss. 2001); Montana, Vernon Kills on Top v. State, 928 P.2d
182, 200-07 (Mont. 1996); Ohio, State v. Taylor, 612 N.E.2d 316, 325 (Ohio 1993); Wyoming,
Engberg v. Meyer, 820 P.2d 70, 87-91 (Wyo. 1991); and seventeen jurisdictions which have
banned the death penalty for everybody: Alaska, Hawaii, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, North Dakota, Rhode Island, Vermont, Washington, D.C., West Virginia, and Wisconsin). Since publication, Connecticut, Maryland, and Nebraska have banned the death penalty for everybody. Connecticut and Maryland were included in the jurisdictions which prohibit execution of persons
who did not kill or intend to kill. Nebraska, however, was not previously in that category,
bringing to thirty-four the number of jurisdictions which do not permit executions of persons who did not kill or intend to kill.
184

64

without-parole sentences, an option which Wood’s sentencing jury did not
have.185
Finally, executing those who did not kill or intend to kill does not fulfill
the two distinct social purposes served by the death penalty: retribution and
deterrence of capital crimes. See Gregg, 428 U.S. at 173, 183, 187, 96 S.Ct.
2909 (joint opinion of Stewart, Powell, and Stevens, JJ.) (capital punishment
is excessive when it is grossly out of proportion to the crime or it does not fulfill the two distinct social purposes served by the death penalty: retribution
and deterrence of capital crimes); see also Coker, 433 U.S. 584, 592 (1977)
(plurality opinion) ("A punishment might fail the test on either ground”).
“Unless the death penalty when applied to those in [the defendant’s] position
measurably contributes to one or both of these goals, it ‘is nothing more than
the purposeless and needless imposition of pain and suffering,’ and hence an
unconstitutional punishment. Enmund, 458 U.S. at 798 (quoting Coker, supra, at 592).
In Enmund, which has not been overruled, the Supreme Court rejected
the notion that the threat the death penalty will be imposed for murder

See id. at 1403–04 (reflecting the authors’ finding that as of 2011, only three such
executions have occurred post-Tison). The authors conclude that only five states “are actively pursuing or obtaining the death penalty for felony-murder non-triggermen who lack intent to kill.” Id. at 1404. The Death Penalty Information Center does not reflect any additional executions of non-triggermen since 2011.
185

65

measurably deters one who does not kill and has no intention or purpose that
life will be taken. 458 U.S. at 798–99.
As for retribution as a justification for executing Enmund, we
think this very much depends on the degree of Enmund’s culpability—what Enmund’s intentions, expectations, and actions
were. American criminal law has long considered a defendant’s
intention—and therefore his moral guilt—to be critical to “the
degree of [his] criminal culpability . . . “
Id. at 800 (quoting Mullaney v. Wilbur, 421 .S. 684, 698 (1975).
In Tison, the Court found the depth of participation in the underlying
felony—here, the robbery—“key” to whether the goals of both retribution and
deterrence are served by the imposition of the death penalty upon a person
who did not kill or intend to kill. Here, Wood did not have any active participation at all in the robbery. He did not arm himself. He did not arm Reneau;
in fact, he asked Reneau not to take a gun with him. He did not accompany
Reneau into the store. He did not physically harm anybody or commit any
other felonies. And his intellectual and neuropsychological impairments
made it difficult for him to predict what Reneau was capable of doing and
what he would do. The goals of retribution and deterrence are simply not
served by executing Wood.

66

F.

CLAIM 7: THE COURT SHOULD DECLARE THE TEXAS
DEATH PENALTY UNCONSTITUTIONAL BECAUSE OF ITS
ARBITRARINESS AND INABILITY TO ENSURE THAT ONLY
THE WORST OF THE WORST RECEIVE DEATH SENTENCES
Jeffery Wood, a severely intellectually and emotionally impaired indi-

vidual with poor insight and judgment, had no intention of committing or
causing the death of any individual. He did not arm himself and no evidence
reflected he has never armed himself while committing any criminal activity.
There is no evidence that he has physically harmed another individual. Before leaving to go to the convenient store, Wood asked Reneau not to arm
himself, seeing no reason to bring a gun. Reneau made a decision to shoot the
store clerk while Wood was outside.
Wood was found incompetent to stand trial on the basis of delusional
thinking which impaired his ability to make rational decisions in aid of his
own defense; he was sent to a hospital where he received no treatment and
was returned to trial just two weeks later. He was convicted in a trial in
which important evidence about his involvement in a conspiracy—evidence
which had been sponsored and relied upon by the State in his codefendant’s
trial—was excluded from the jury’s consideration.
After the guilty verdict collided with Wood’s delusional views, the adversarial process entirely collapsed. Wood made an irrational decision to stop
defending himself. Notwithstanding all that was known to the judge and
67

Wood’s counsel about how Wood’s delusional thinking impacted his ability to
make rational decisions about his defense, no inquiry into Wood’s competence
was made.
At the uncontested sentencing proceeding, the State presented perjured
testimony from a discredited psychiatrist. The psychiatrist was expelled from
the Texas Society of Psychiatric Physicians and the American Psychiatric Society for the very unethical conduct he committed in Wood’s case. Without
having ever met or personally evaluated Wood, the expert falsely told the jury that Wood “certainly” would be dangerous in the future based on a hypothetical presented to him by the prosecutor.186 The psychiatrist was not crossexamined, and the jury never learned that his testimony should be disregarded, and was rejected by his peers. Although the jury did not want to, it
had no choice but to answer the special issues in a way that death would be
imposed.
***
“[C]apital punishment [must] be imposed fairly, and with reasonable
consistency, or not at all.” Eddings v. Oklahoma, 455 U.S. 104, 112 (1982). It
“must be limited to those offenders who commit a narrow category of the
most serious crimes and whose extreme culpability makes them the most de-

Like many of the psychiatrist’s other predictions, this one turned out to be wrong,
as Wood does not have violence in his disciplinary record in prison.
186

68

serving of execution.” Roper v. Simmons, 543 U.S. 551, 568 (2005) (internal
quotations omitted). Capital punishment’s use also must not be arbitrary.
Where “there is no meaningful basis for distinguishing the few cases in which
[capital punishment] is imposed from the many cases in which it is not,” the
punishment is arbitrary. Furman v. Georgia, 408 U.S. 238, 313 (1972) (White,
J., concurring).
Wood’s case is the embodiment of the arbitrariness of capital punishment in Texas. It is impossible to hazard a guess how many thousands of individuals in Texas have committed more disturbing crimes than Wood; who
played a far greater, more culpable role in those crimes than Wood; who had
a far worse criminal record than Wood; and who received a term of years or
life as a sentence. Yet Wood, an impaired individual who neither killed anybody, intended that anybody be killed, or even meaningfully anticipated that
anybody would be killed, has found himself convicted of capital murder and
sitting on Texas’s death row. It is cases like this that prompted Justice Stewart’s 1972 observation that
[t]hese death sentences are cruel and unusual in the same way
that being struck by lightning is cruel and unusual. For, of all the
people convicted of [death-eligible crimes], many just as reprehensible as these, the[se] petitioners are among a capriciously selected random handful upon which the sentence of death has in
fact been imposed.

69

Furman v. Georgia, 408 U.S. 238, 309–10 (concurring opinion). Although
Gregg v. Georgia, 428 U.S. 153 (1976), reinstated the death penalty based on
the passage of new capital statutes, it nevertheless reiterated Furman’s core
holding that the death penalty “could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner.” Id. at 188. It also required that the exercise of
discretion in death penalty decisions be “suitably directed and limited.”
In Jurek v. Texas, 428 U.S. 262 (1976), the Supreme Court held the
Texas capital punishment system then in place was permissible under the
Eighth and Fourteenth Amendments. The holding was based on the then-new
Texas Penal Code which “narrowed the scope of its laws relating to capital
punishment.” Id. at 268. Specifically, the then-new Texas Penal Code “limit[ed] capital homicides to intentional and knowing murders committed in
five situations: murder of a peace officer or fireman; murder committed in the
course of kidnapping, burglary, robbery, forcible rape, or arson; murder committed for remuneration; murder committed while escaping or attempting to
escape from a penal institution; and murder committed by a prison inmate
when the victim is a prison employee.” Id.
The decision was also based on a sentencing procedure which differed
from the current one. Specifically, the special issues then were:

70

(1) whether 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;
(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing
threat to society; and
(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.
Id. at 269 (citing Tex. Code Crim. Proc., Art. 37.071 (b) (Supp. 1975-1976)).
The Court observed that, while Texas had not adopted a list of statutory aggravating circumstances the existence of which can justify the imposition of
the death penalty as other states had done, “its action in narrowing the categories of murders for which a death sentence may ever be imposed serve[d]
much the same purpose.” Id. at 270. And as the Texas Court of Criminal Appeals had indicated it would interpret the future dangerous special issue “so
as to allow a defendant to bring to the jury's attention whatever mitigating
circumstances he may be able to show,” the Court held that the Texas scheme
suitably directed and limited discretion so as to avoid rendering arbitrary
punishments.
Today, the statute has changed. As Justice Alcala recently observed,
The capital-murder statute provides for around one hundred different ways that a person can be convicted of capital murder. The
list of ways in which a person may commit capital murder is
twice as long when one considers that a defendant may be con71

victed not only as a principal actor, but also as a party by, for example, aiding or attempting to aid another person to commit the
offense. And the list is thrice as long when one considers that a
defendant may be convicted of capital murder even if he lacked
any intent to commit that offense but was part of a conspiracy to
commit a felony under certain circumstances.
Ex parte Murphy, --- S.W.3d ---, slip op. at 2–3, 2016 WL 3356280 (Tex. Crim.
App. June 15, 2016) (Alcala, J., concurring and dissenting) (internal citations
omitted). When the Supreme Court decided Jurek, it did not consider the impact of Texas’s law of parties when it held the scheme to protect against arbitrariness. Indeed, it understood the scheme to be limited to those who “intentional[ly] and knowing[ly]” murder. Jurek, 428 U.S. at 268. Moreover, the
then-first special issue effectively precluded persons who did not intend to
commit murder under the law of parties from being sentenced to death, because it required both that the individual caused the death and that their
conduct causing it was deliberate. The Texas scheme no longer asks whether
the conduct of the defendant that caused the death of the deceased was committed deliberately. Wood’s jury would not have been able to answer this
question affirmatively, as Wood did not cause anybody’s death.187
In its brief before the Supreme Court in Jurek, Texas wrote about the
then-scheme that “the Texas legislature ha[d] purposely limited the availabilWood’s jury was required to answer a so-called “anti-parties” special issue. But
this special issue is far broader than the former deliberateness special issue, as it requires
only that the jury find that an individual “anticipated” that a human life might result. TEX.
CODE CRIM. PROC., art. 37.071 § 2(b)(2).
187

72

ity of the death penalty to categories of murder wherein the deterrent effect
can reasonably be thought to be maximized and wherein there is a significant
need for retribution.”188 As to the latter, Texas told the Court, “the need for
retribution increases with the amount of harm inflicted on society, its moral
fiber and its members. Similarly, the greater the conscious infliction of that
harm, the greater the need for retribution.”189 Moreover, the future dangerous
special issue was intended as “a way to reinforce that the killing was in fact
the calculated elimination of a human being, in the absence of mitigating factors, at which the imposition of the death penalty in Texas is aimed.”190
In a footnote, Texas observed that the Texas death penalty statutes
“unquestionably . . . hit their mark.”191 It then gave examples of the kinds of
offenses and heightened culpability which the statute was intended to be directed:
Among those sentenced to die are Kenneth Granviel, who murdered two small children, raped and murdered their mother and
aunt, and murdered a second aunt; and who, two months later,
raped three more women and murdered two of them; Mark
Moore, who abducted a secretary during a robbery, raped her,
unsuccessfully attempted to sink a car with her in the trunk, and
then shot her with a shotgun in the face, chest and vagina; James
188

Brief for the Respondent at 25, Jurek v. Texas, No. 75-5394 (Mar. 25, 1976).

Id. at 24. Thus, in cases where the law of parties is used to hold an individual responsible for the conduct of another where the party being held responsible did not consciously inflict the harm, Texas recognized that the need for retribution is lower.
189

190

Id. at 27 (emphasis added).

191

Id. at 24 n.23 (citations omitted).

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Burns, who abducted a welfare recipient, forced him to submit to
anal sodomy, forced him to eat excrement and kicked him to
death; Edward Corley, who broke into a trailer house,
shotgunned the woman and child who lived there, entered a
church one month later and abducted the organist, then took the
organist to an abandoned road where he raped her and shot her
twice in the head with a shotgun; Ronald O’Bryan, who murdered
his own son with poisoned Halloween candy in order to collect on
large insurance policies; and Robert Kleason, who murdered two
Mormon missionaries at his house, cut up their bodies with a
hacksaw and disposed of them.
As Texas put it, the Texas death penalty was supposed to ensnare only those
for whom there was “a need for incapacitation.”192
The Texas death penalty scheme is today, both on its face and in practice, far different from the one the Supreme Court held sufficient to protect
against arbitrary death sentences. It is one in which an impaired individual
sitting in a truck outside a convenient store may find himself on death row
when an individual who had been taking advantage of him, and without any
plan between them, entered a convenience store and shot a store clerk. Wood
asserts the present Texas death penalty scheme lacks “the ‘reasonable consistency’ legally necessary to reconcile its use with the Constitution’s commands.” Glossip v. Gross, 135 S.Ct. 2726, 2760 (2015) (Breyer, J., dissenting)
(quoting Eddings v. Oklahoma, 455 U.S. 104, 112 (1982)).
Additionally, and for the reasons identified by Judge Alcala in her concurring and dissenting opinion in Murphy, supra, evolving standards of de192

Id. at 30 n.27.

74

cency now compel the conclusion that the punishment is so disproportionate
as to be cruel and unusual. Those facts include (1) a majority of the jurisdictions in the United States now do not accept the death penalty as an acceptable form of punishment, as compared to the prevailing view in this country in
1976, when the Supreme Court observed in Gregg that the penalty was accepted by a majority of the jurisdictions in the United States; (2) since 1976,
nine states and the District of Columbia have joined the ten states that had
already abolished the death penalty, bringing the total to twenty jurisdictions
in the United States that now statutorily disallow the death penalty; (3) of
the remaining thirty-one states, six of them have not executed anyone in
more than a decade and have effectively abolished the penalty; (4) in addition
to these twenty-five states that have either statutorily or effectively abolished
the death penalty, governors in four states have said that they will not sign
death warrants during their terms because of the uneven way in which the
punishment is carried out; (5) the twenty-nine states that now disallow the
death penalty together comprise a majority of jurisdictions in the United
States; (6) only six states carried out an execution in 2015; (7) only five states
have carried out executions in 2016 to date; and (8) there has been a steep
decline in the number of death sentences imposed in Texas since 1999, with
only five new death sentences having been returned in Texas since 2015.

75

This Court should decide whether the Texas death penalty still passes
constitutional muster under the standards announced in Furman, Gregg, and
Jurek.
G.

CLAIM 8: THE DUE PROCESS CLAUSE REQUIRES THAT THE
STATE OBTAIN A NEW VERDICT BECAUSE ITS PRIOR VERDICT, WHICH WAS PREDICATED ON A PREDICTION OF THE
FUTURE, NO LONGER PERMITS EXECUTION OF THE SENTENCE DUE TO THE PASSAGE OF TIME AND MATERIALLY
CHANGED CIRCUMSTANCES
Texas is one of only two states that require that a capital judgment au-

thorizing the State to execute an individual be predicated on a prediction of
how the defendant will behave in the future.193 As such, Texas does not assess death strictly based on factual determinations about a defendant’s past
actions, behavior, and background. This conditioning of a capital judgment on
future behavior is not required by either the Texas or federal constitution.
Most states have backwards-looking capital sentencing statutes which condition death sentences strictly on the past behavior of the prisoner.194
The decision to condition the obtaining of a capital judgment on a prediction of the defendant’s future dangerousness has implications for the
Oregon is the other. See American Bar Association, Evaluating Fairness and Accuracy in State Death Penalty Systems: The Texas Capital Punishment Assessment Report
at
307
n.97
(2013)
(available
at
http://www.americanbar.org/content/dam/aba/administrative/death_penalty_moratorium/tx
_complete_report.authcheckdam.pdf) (last visited July 29, 2016).
193

In some states, the prosecution may—but need not—put predictions of a defendant’s future conduct in issue. See, e.g., VA. CODE § 19.2-264.4(C); OKLA. STAT. ANN. tit. 21, §
701.12(7); WYO. STAT. ANN. § 6-2- 102(h) (xi).
194

76

State’s power to execute. That prediction was made at a particular snapshot
in time, and was necessarily based on the attributes of the individual assessed, the relevant information available, and other circumstances that existed at the time it was made. The passage of time, however, alters not only
the information available on which a prediction may be made, but also may
alter material attributes of the individual assessed. Over time, a person ages.
Over enough time, the individual may become infirm. The individual may rehabilitate. The individual may change physically in important ways, e.g., become blind or otherwise physically disabled. Likewise, the circumstances of
confinement may change. Over time, prison regulations may change from less
restrictive, general population conditions to more restrictive, mandatory administrative segregation conditions.
When a decision authorizing State action impacting an individual’s liberty or life interests is predicated upon a prediction of future behavior, due
process requires that it be periodically reassessed. Indeed, “[t]he fundamental
requirement of due process is the opportunity to be heard ‘at a meaningful
time and in a meaningful manner.’” Mathews v. Eldridge, 424 U.S. 319, 333,
(1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)) (emphasis
added). See also Kelly v. Brewer, 525 F.2d 394, 399–400 (8th Cir. 1975)
(where inmate is held in administrative segregation for prolonged or indefinite period, due process requires that his situation be reviewed periodically in
77

meaningful way; administrative segregation looks to present and future rather than to past, and it involves prediction of what inmate will probably do
or have done to him if he is permitted to return to population after period of
segregation; reason for segregation must not only be valid at outset but must
continue to subsist during period of segregation); Mercer v. Mitchell, 908 F.2d
763, 770-71 (11th Cir. 1990) (court violated due process when it held state
prison in contempt for exceeding population cap set in prior order without
first holding hearing on whether circumstances upon which prior order had
been based had changed so as to make existing population—despite its being
in excess of prior ordered cap—unproblematic).
Although criminal judgments procured in accordance with due process
are said to extinguish liberty interests of defendants, a person who has been
sentenced to death nevertheless retains some interest in his life until his execution. See Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 288 (1998)
(O’Connor, J., concurring in part and concurring in the judgment, joined by
Souter, J., Ginsburg, J., and Breyer, J.) (death-sentenced prisoners retain life
interest); id. at 291 (Stevens, J., dissenting) (same). If circumstances—be
they attributes of the defendant or other relevant circumstances, e.g., conditions of confinement—materially change between the time the verdict is rendered and when the State tries to enforce the capital judgment against the
individual, then due process prevents the execution in the absence of a reas78

sessment of future dangerousness that is predicated on the current circumstances and known information.
Texas’s judgment sentencing Wood to death was predicated on the jury’s answer to the question, “Is there a probability that the defendant,
JEFFERY LEE WOOD, would commit criminal acts of violence that would
constitute a continuing threat to society?”195 More than 18 years have elapsed
since a jury made the prediction that Wood would commit criminal acts of violence constituting a continuing threat to society, a period of time during
which Texas has successfully incarcerated Wood and during which no criminal acts of violence have been committed by him. At the time the jury answered this question in 1998, Wood was 23 years old. The verdict was based,
in part, on evidence provided by an expert who was given a hypothetical
about a 21-year-old actor in a non-custodial environment and at a time when
death row inmates were not kept in 23-hour-per-day/7-days-per-week isolation.
Wood will be 42 years old when the State intends to execute him on
August 24, 2016. The connection between age and criminality is one of the
most thoroughly examined topics in both the psychological and legal academies. As one scholar has written,

195

2 CR 319.

79

Many criminologists have written about the link between age and
crime, prompting Flowers to write, “[t]he demographic correlate
most strongly associated with crime is age.” Siegel has concurred,
observing that “[t]here is general agreement that age is inversely
related to criminality.” Further, Hirschi and Gottfredson noted,
“[a]ge is everywhere correlated with crime.” Of course, the relationship between age and crime is not linear; very young children
rarely commit crimes. Rather, the relationship between age and
crime is curvilinear, with the highest rates of arrest for property
crime occurring at age sixteen (and dropping to half of the apex
by age twenty), and the highest rates of violent crime occurring
at age eighteen. Those between the ages of about fifteen or sixteen and twenty-four or twenty-five appear to be at greatest risk
of offending, but after that period, for a variety of possible reasons, adults gradually “age out” of crime.196
Increasingly, statisticians have focused their efforts on determining the
connection between age and potential criminality in the prison environment
itself.197 Statistical surveys have established a strong inverse relationship between inmate age and the number of general disciplinary infractions committed.198 The same inverse relationship is true of inmate age and more serious
J.C. Oleson, Risk in Sentencing: Constitutionally Suspect Variables and Evidence-Based Sentencing, 64 SMU L. Rev. 1329, 1361–62 (2011) (citations omitted).
196

Although the predictive capacity of age is often the focus of studies in the prison
environment, data demonstrates that the period of incarceration is also germane to statistical probability of a rule infraction. For example, an inmate is the most likely to commit a
violent rule infraction within his initial period of incarceration. See Mark Douglas Cunningham & Jon R. Sorensen, Capital Offenders in Texas Prisons: Rates, Correlates, and an
Actuarial Analysis of Violent Misconduct, 31 L. & Hum. Behav. 553, 562 (2007).
197

See Mark D. Cunningham & Jon R. Sorensen, Actuarial Models for Assessing
Prison Violence Risk: Revisions and Extensions of the Risk Assessment Scale for Prison
(RASP), 13 ASSESSMENT 253, 254 (2006) (citing Lawrence L. Bench & Terry D. Allen, Investigating the Stigma of Prison Classification: An Experimental Design, 83 PRISON J. 367
(2003); Timothy J. Flanagan, Time Served and Institutional Misconduct: Patterns of Involvement in Disciplinary Infractions Among Long-Term and Short-Term Inmates, 8 J. OF
CRIM. JUST. 357 (1980); Travis Hirschi, & Michael Gottfredson, Age and the Explanation of
Crime, 89 AM J. OF SOC. 552 (1983)).
198

80

“assaultive misconduct.”199 Fewer criminological studies examine the rates
and correlates between age and prison violence in “deep-end” populations
(e.g. homicide offenders), but those that have been conducted show a parallel
trend: age is a meaningful factor in determining the possibility of a violent
infraction.200 This age-violence trend in “high security inmates” appears to be
the most significant at “extremes of the distribution.”201 In other words, once
an inmate reaches 35, age becomes an increasingly potent factor as the prisoner continues to mature.202
Besides having now aged out, Wood has now been confined, almost exclusively in administrative segregation conditions (isolation), for over 18
years. Although Wood has had some disciplinary violations during that period, none have been of a character to present a risk of physical injury to a correctional officer or another prisoner.

Cunningham, supra note 39, at 254 (citing Robert P. Cooper & Paul D. Werner,
Predicting Violence in Newly Admitted Inmates: A Lens Model Analysis of Staff Decision
Making, 17 CRIM. JUST. & BEHAV. 431 (1990); Jonathan R. Sorensen, & Rocky L. Pilgrim,
An Actuarial Risk Assessment of Violence Posed by Capital Murder Defendants, 90 J. OF
CRIM. L. & CRIMINOLOGY 1251 (2000); Jon Sorensen & Robert D. Wrinkle, No Hope for Parole: Disciplinary Infractions among Death-Sentenced and Life-Without-Parole Inmates, 23
CRIM. JUST. & BEHAV. 542 (1996); J.D. Wooldredge, Correlates of Deviant Behavior among
Inmates of U.S. Correctional Facilities, 14 J. OF CRIME & JUST. 1 (1991)).
199

200

See generally, Cunningham, supra note 39.

Cunningham, supra note 38, at 567 (concluding that age was a useful predictor of
institutional violence for inmates less than 21 years of age and those over 35 years of age).
201

202

Id.

81

The verdict the jury rendered in 1998 was based on circumstances that
have materially changed and does not authorize, consistent with due process,
the State’s execution of 42-year-old Jeffery Wood in 2016.
III.
AUTHORIZATION
A court may not consider the merits of a subsequent application for a
writ of habeas corpus unless the application contains sufficient specific facts
establishing that: (1) the current claims and issues have not been and could
not have been presented previously in a timely initial application or in a previously considered application filed under this article or Article 11.07 because
the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application; (2) by a preponderance of the evidence,
but for a violation of the United States Constitution no rational juror could
have found the applicant guilty beyond a reasonable doubt; or (3) by clear and
convincing evidence, but for a violation of the United States Constitution no
rational juror would have answered in the State’s favor one or more of the
special issues that were submitted to the jury in the applicant’s trial under
Article 37.071, 37.0711, or 37.072. TEX. CODE CRIM. PROC. art. 11.071 § 5.
To satisfy § 5(a)(1), a subsequent application must show that (1) the
factual or legal basis for the claims was unavailable as to all the applicant’s
previous applications; and (2) the specific facts alleged, if established, would
82

constitute a constitutional violation that would likely require relief from either the conviction or sentence. Ex parte Campbell, 226 S.W.3d 418, 421 (Tex.
Crim. App. 2007). To satisfy § 5(a)(3), a subsequent application may be authorized if it shows by clear and convincing evidence a constitutional violation but for which no rational juror would have answered at least one of the
statutory special punishment issues in the State’s favor. Ex parte Blue, 230
S.W.3d 151, 161 (Tex. Crim. App. 2007).
A.

CLAIM 1: APPLICANT WAS INCOMPETENT TO STAND TRIAL
AT SENTENCING
First, Wood’s competency claim may not be waived consistent with the

federal constitution. See Pate v. Robinson, 383 U.S. 375, 384 (1966) (“[I]t is
contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently ‘waive’ his right to have the court determine his capacity
to stand trial.”). As Wood may never “knowingly or intelligently” waive his
right not to be tried while incompetent, § 5 may not be applied as to Claim 1
consistent with due process. See Medina v. Singletary, 59 F.3d 1095, 1107
(11th Cir. 1995) (procedural default rule does not preclude review of a trialincompetency claim on the merits notwithstanding the failure to raise it earlier); Nguyen v. Reynolds, 131 F.3d 1340, 1346 (10th Cir. 1997) (same); Sena
v. New Mexico State Prison, 109 F.3d 652 (10th Cir. 1997).

83

Notwithstanding the above, the claim also satisfies § 5(a)(3). In Blue,
the Court observed with respect to intellectual disability that,
Because the constitution absolutely prohibits imposing the death
penalty upon a mentally retarded or juvenile offender, once it has
been definitively shown at trial that the offender was in fact retarded or a juvenile, no jury would even have occasion to answer
the statutory special issues. In short, no rational juror would answer the special issues in favor of execution because no rational
juror could, consistent with the Eighth Amendment.
Blue, 230 S.W.3d at 161. Competency to stand trial is analogous. If Wood was
incompetent to stand trial, then perforce the jury could not have answered
the special issues in favor of execution because no rational juror could do so
consistent with due process. Indeed, no special issues would have been submitted to the jury at all. A jury may not pass any criminal judgment at all on
an incompetent person. Accordingly, the claim satisfies the exception contained in § 5(a)(3).
B.

CLAIM 2: APPLICANT’S SENTENCING TRIAL VIOLATED DUE
PROCESS BECAUSE THE TRIAL COURT WAS AWARE OF
FACTS THAT REQUIRED AN INQUIRY INTO WOOD’S COMPETENCE BUT FAILED TO CAUSE ANY INQUIRY TO BE UNDERTAKEN
Claim 2 should be authorized for the same reasons as Claim 1.

C.

CLAIM 3: APPLICANT’S CAPITAL SENTENCE IS BASED ON
FALSE AND MISLEADING TESTIMONY IN VIOLATION OF
DUE PROCESS
Claim 3 relies on the legal basis that the unknowing use of false testi-

mony by the prosecution violates due process. Ex parte Chabot, 300 S.W.3d
84

768, 770–71 (Tex. Crim. App. 2009). Chabot was the first case in which the
Texas Court of Criminal Appeals recognized an unknowing-use due-process
claim. Ex parte Chavez, 371 S.W.3d 200, 205 (Tex. Crim. App. 2012). Wood’s
first and last habeas corpus application was filed in 2000. Accordingly, the
claim could not have been presented previously in a timely initial application
or in a previously considered application because its legal basis was unavailable on the date Wood filed his previous application.
D.

CLAIM 4: APPLICANT’S JUDGMENT WAS OBTAINED IN VIOLATION OF DUE PROCESS BECAUSE IT WAS BASED ON
FALSE SCIENTIFIC EVIDENCE
Claim 4 relies on a legal basis that was not previously available. The

Texas Court of Criminal Appeals has never expressly recognized that the
presentation of false scientific evidence violates the due process clause. In Ex
parte Roberson, No. WR-63-081-03 (Tex. Crim. App. June 16, 2016), however,
the TCCA authorized a claim that the State’s introduction of false forensic
science testimony violates the right to a fundamentally fair trial under the
due process clause. To be authorized, the Court must have concluded that
Roberson’s claim “constitute[d] a constitutional violation that would likely
require relief from either the conviction or sentence.” Campbell, 226 S.W.3d
at 421. The Court should similarly authorize Wood’s claim premised on the
same legal basis.

85

E.

CLAIM 5: APPLICANT’S PERSONAL CULPABILITY IS TOO
LOW TO SATISFY THE EIGHTH AMENDMENT
Claim 5 satisfies the requirements of § 5(a)(3). Lacking the requisite

intent and participation level to warrant execution under the Eighth
Amendment is a categorical exemption like intellectual disability or being a
juvenile. See, e.g., Kennedy v. Louisiana, 554 U.S. 407 (2008) (categorically
excluding from capital punishment those who sexually assault children without intending to or causing death). Thus, once it has been definitively shown
at trial that the offender’s culpability and participation under Enmund,
Tison, and Kennedy was insufficient to make the death penalty proportionate,
no jury would even have occasion to answer the statutory special issues. Blue,
230 S.W.3d at 161. Accordingly, the § 5(a)(3) exception is present.
F.

CLAIM 6: NOTWITHSTANDING WHETHER TISON’S STANDARD WAS VIOLATED, THE COURT SHOULD HOLD THAT
EVOLVING STANDARDS OF DECENCY NOW PROHIBIT THE
EXECUTION OF A PERSON WHO NEITHER KILLED NOR INTENDED TO KILL
Claim 6 satisfies the requirements of § 5(a)(1) and § 5(a)(3). First, the

factual basis of the claim—legislative and judicial pronouncements that reflect an evolving standard of decency—postdate the filing of Wood’s first and
last application for a writ of habeas corpus in 2000. Second, a determination
that the Eighth Amendment prohibits the execution of a person who neither
killed nor intended to kill represents a new legal basis that did not exist at
86

the time Wood filed his last application. Thus, the requirements of § 5(a)(1)
are satisfied.
The requirements of § 5(a)(3) are also met for the same reason as Claim
5.
G.

CLAIM 7: THE COURT SHOULD DECLARE THE TEXAS
DEATH PENALTY UNCONSTITUTIONAL BECAUSE OF ITS
ARBITRARINESS AND INABILITY TO ENSURE THAT ONLY
THE WORST OF THE WORST RECEIVE DEATH SENTENCES
Claim 6 satisfies § 5(a)(1). As Judge Alcala noted in Murphy, this claim

relies on facts that have developed since Wood’s prior application filed in
2000. Thus, its factual basis was previously unavailable. Moreover, these allegations “may be likely to show that the death penalty is now an unacceptable form of punishment based on society’s evolving standards of decency that
inform the Eighth Amendment of the federal Constitution.” Murphy, slip op.
at 11. Thus, the § 5(a)(1) exception is present.
Claim 6 also satisfied § 5(a)(3). If the modern Texas death penalty is
unconstitutional, then no jury would even have occasion to answer the statutory special issues. Blue, 230 S.W.3d at 161. Accordingly, the § 5(a)(3) exception is present.

87

H.

CLAIM 8: THE DUE PROCESS CLAUSE REQUIRES THAT THE
STATE OBTAIN A NEW VERDICT BECAUSE ITS PRIOR VERDICT WHICH WAS PREDICATED ON A PREDICTION OF THE
FUTURE, NO LONGER PERMITS EXECUTION OF THE SENTENCE DUE TO THE PASSAGE OF TIME AND MATERIALLY
CHANGED CIRCUMSTANCES
This claim satisfies § 5(a)(1). First, the claim alleges facts that, if estab-

lished, would constitute a constitutional violation that would require relief
from Wood’s death sentence. Campbell, 226 S.W.3d at 421. Wood’s argument,
supra, explains why he would be entitled to relief should the facts he has alleged be established.
Second, the factual basis for the claim was unavailable as to his previous application. Wood’s claim is not one challenging the validity of his death
sentence as it was originally obtained. Rather, it was only the passage of time
between when it was obtained and when the State has sought to enforce it
that created the factual basis for the claim seeking relief from the judgment.
In short, Wood’s claim did not become ripe until the passage of enough time
rendered the verdict no longer a sufficient basis to empower execution consistent with due process. See, e.g., Colburn v. State, 966 S.W.2d 511, 513 (Tex.
Crim. App. 1998) (claim challenging competency to be executed not ripe until
execution is “imminent.”); Gallo v. State, 239 S.W.3d 757, 780 (Tex. Crim.
App. 2007) (claim challenging manner in which lethal injection administered
not ripe for review until execution is imminent) (citing Doyle v. State, No. AP88

74,960, 2006 WL 1235088, at *4 (Tex. Crim. App. May 10, 2006)). Thus, the
factual basis for Wood’s claim was unavailable when he filed his previous application in 2000, just two years after his judgment.
Third, the legal basis for Mr. Smith’s claim was unavailable as to his
previous applications because his claim was not ripe then. An unripe claim,
by definition, must be considered to have an unavailable legal basis.
Alternatively, § 5 does not apply to Wood’s claim because it was not
ripe when his prior application was filed. By enacting § 5, the Legislature intended that all death-sentenced habeas applicants get “one bite at the apple”
and that all available claims be raised in an initial application. Ex parte
Torres, 943 S.W.2d 469, 474 (Tex. Crim. App. 1997). Section 5, which prohibits the consideration of “subsequent” applications under most circumstances,
therefore advances the interest of finality by limiting the number of petitions
a person is able to file. This principle, however, does not apply to Wood’s
claim, because the claim was not ripe when he filed his previous application.
A statute should be interpreted in accordance with the plain meaning
of its language unless that language is ambiguous or the plain meaning leads
to absurd results that the Legislature could not possibly have intended.
Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991); Whitelaw v.
State, 29 S.W.3d 129, 131 (Tex. Crim. App. 2000). Section 5 was not intended
by the Legislature to apply to claims that were not ripe when previous appli89

cations were filed. The “one bite at the apple” for these claims can only occur
once they ripen. Section 5 is meant to regulate the consideration of claims
where extraordinary circumstances such as legal and/or factual unavailability and innocence justify a “second bite.” But—unless the unavailability of a
legal/factual basis is construed to encompass claims that were not ripe when
previous applications were filed—Section 5 leads to absurd results when applied to a claim that was unripe when prior applications were filed. In short,
whether “reasonable diligence” was exercised to locate a factual basis, TEX.
CODE CRIM. PROC. art. 11.071 § 5(e), and whether a court could “recognize” or
“reasonably formulate” a legal basis of a claim, id., § 5(d), are irrelevant inquiries when, regardless of the answers to those questions, the claim was not
ripe and could not have been brought in a prior application.
Helpfully, the Supreme Court recently addressed the issue of limitations on “second or successive” habeas petitions contained in the Antiterrorism and Effective Death Penalty Act in the context of Ford claims in federal
habeas corpus proceedings brought pursuant to 28 U.S.C. § 2254. In Panetti
v. Quarterman, 127 S.Ct. 2842 (2007), the Court decided that the habeas petition, though chronologically the second in time the petitioner had filed, did
not constitute a “second or successive” petition within the language of 28
U.S.C. § 2244(b). Panetti, 127 S.Ct. at 2853 (“The phrase ‘second or successive’ is not self-defining. It takes its full meaning from our case law, includ90

Texas Bar No. 24042073
TYLER LAW FIRM, PLLC
P.O. Box 764
Houston, Texas 77001
TEL: (832) 606-2302
jptyler@tylerlawfirm.org
Counsel for Jeffery Lee Wood

92