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r. Garrett also reported having been the victim of extreme sexual
abuse at the hands of his family, especially his third stepfather, a
Mr. Whiteside, and that man's friends. These events with the
stepfather reportedly occurred around 1977. Mr. Garrett reported
having been forced to perform acts of fellatio and having to submit to
frequent acts of anal intercourse. He also reported that Mr. Whiteside
and acquaintances of Mr. Whiteside (a man named "Kent" and another man
named "Darryl") forced him to engage in sex with adult men while being
filmed. He reportedly was also forced to engage in a sexual act with a
dog. Mr. Garrett reported that in the course of making these
pornographic films, he saw children as young as 7 years old being
filmed having sex with adults. These kinds of extreme sexual abuse
most probably contributed to the bizarre nature of his offense.
+++++++++
EX PARTE JOHNNY FRANK GARRETT
WRIT NO. 14,992-02
COURT OF CRIMINAL APPEALS OF TEXAS
831 S.W.2d 304; 1991 Tex. Crim. App. LEXIS 280
November 13, 1991, Decided
PRIOR HISTORY: [**1] Habeas Corpus Application from POTTER County
COUNSEL: Attorney(s) for applicant, Shelden B. Hale, III, Amarillo,
Tx., Eden B. Harrington, Austin, Tx., Robert L. McGlasson, Austin,
Tx., Scott W. Howe, Springfield, Mass.
Attorney(s) for State, Danny Hill, D.A., & James Farren, Asst. D.A.,
Amarillo, Tx., Robert Huttash, State's Attorney, Austin, Tx.
JUDGES: En Banc. CLINTON, Maloney, BAIRD
OPINIONBY: PER CURIAM
OPINION: [*304] ORDER
This is a post conviction application for writ of habeas corpus filed
pursuant to the provisions of Article 11.07, V.A.C.C.P.
The record reflects that on September 1, 1982, applicant was convicted
of the offense of capital murder. The jury answered the special issues
submitted in the affirmative and punishment was assessed at death.
Applicant's conviction was affirmed on direct appeal to this Court.
Garrett v. State, 682 S.W.2d 301 (Tex.Cr.App. 1984).
In the instant cause, applicant presents nine (9) allegations in which
he seeks to challenge the validity of his conviction or the imposition
of the [**2] death penalty. The trial court held an evidentiary
hearing and entered findings of fact and conclusions of law
recommending the relief sought be denied. This Court has reviewed the
record and finds that the findings and conclusions entered by the
trial court are supported by the record. n1
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 We specifically decline to adopt conclusion of law number one
entered by the trial court concerning applicant's alleged procedural
default. See Black v. State, 816 S.W.2d 350 (Tex.Cr.App. No. 69,648,
delivered May 29, 1991).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The relief sought is denied on the basis of the trial court's findings
and conclusions. The stay of execution previously granted by this
Court on November 8, 1988, is vacated.
IT IS SO ORDERED THIS THE 13TH DAY OF NOVEMBER, 1991.
PER CURIAM
En banc
Do Not Publish
DISSENTBY: CLINTON; BAIRD
DISSENT: DISSENTING OPINION
This is a post-conviction application for writ of habeas corpus
brought pursuant to Article 11.07, V.A.C.C.P. In 1982 applicant was
convicted of the offense of capital murder and his [**3] punishment
assessed at death. This Court affirmed his conviction in 1984. Garrett
v. State, 682 S.W.2d 301 (Tex.Cr.App. 1984). Applicant was seventeen
years old when he committed this offense.
Applicant contends, inter alia, that his sentence of death violates
the Eighth Amendment in that the jury at the punishment phase of trial
was provided no mechanism for effectuating evidence having mitigating
value either not relevant to or having relevance beyond the scope of
the special issues contained in Article 37.071, (b), V.A.C.C.P. In
its proposed conclusions of law the habeas court would hold that
applicant has forfeited this claim for failure to raise it at the
trial level. However, in Black v. State, 816 S.W.2d 350 (Tex. Cr.App.,
decided May 29, 1991), a majority of this Court held that such a claim
can be raised for the first time on appeal or on collateral attack, at
least so long as the trial occurred prior to the date of decision in
Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256
(1989). n1 In my view youth alone is a mitigating factor having
significance beyond the pale of the special issues. Ex parte Earvin,
816 S.W.2d 379 (Tex.Cr.App., No. 70,886, [**4] decided May 29, 1991)
(Clinton, J., dissenting). Because applicant [*305] was sentenced by
a jury given no means to prescribe, should it so choose, a sentence
less than death based on that factor, his death sentence violates the
Eighth Amendment. Gribble v. State, 808 S.W.2d 65, at 75 (Tex.Cr.App.
1990). Applicant is entitled to a new trial. Because the Court does
not grant that relief, I respectfully dissent.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 Odd, then, that in its order today the majority reviews the red and
"finds" that the conclusions of the trial court "are supported by the
record." Neither the convicting court nor, now, the majority addresses
the merits of applicant's Penry claim. Yet it is clear under Black and
Selvage v. Collins, 816 S.W.2d 390 (Tex.Cr.App., No. 71,024, delivered
May 29, 1991) (Opinion on Certified Question from the United States
Court of Appeals for the Fifth Circuit), that such a claim is not
procedurally barred.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Applicant also complains that what is now former Article 37.071
operated effectively to [**5] preclude other evidence in mitigation
that could have been, but was not presented at the punishment phase of
his trial. Because evidence he now proffers as to his history of
family violence and drug and alcohol abuse, and of his limited
intelligence and possible brain damage could only, under Article
37.071, have operated to his detriment, he was prevented as a
practical matter from producing that evidence at trial. Alternatively
he contends that his trial counsel was ineffective for failing to
investigate and adduce that evidence.
Applicant's trial attorneys arranged to have applicant examined prior
to trial by a psychologist, Dr. Thomas Milton Cannon, Jr. Dr. Cannon
performed a number of tests, including an I.Q. test, and concluded
applicant had a low average intelligence. He also concluded applicant
would represent a future danger to society. Cannon had not been made
aware of any history of child abuse, and was not privy to applicant's
records from the Texas Youth Council. One of applicant's trial
attorneys testified that a "tactical" decision was made not to utilize
Dr. Cannon at trial because his testimony would only have been
detrimental to applicant because "
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