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Click here for the full text of this decision FACTS:At Calvin Letroy Hunter’s trial on a charge of capital murder, Hunter offered a defense of mental retardation. Hunter presented expert witness Dr. Richard Garnett, a psychologist in private practice with 35 years of experience in the field of mental retardation. While Garnett did not administer any IQ or adaptive behavior tests to Hunter, he personally interviewed Hunter for two hours on May 21, 2004. Garnett testified that Hunter “communicated very well” verbally but that Hunter demonstrated “no understanding beyond [a] conversational hook.” In addition to interviewing Hunter and several members of his family, Garnett reviewed Hunter’s available school records, criminal justice records, job history records, reports from previous testing of Hunter and the results of testing conducted by the state’s expert. Garnett testified that when Hunter was 8 years old and in the third grade, a school psychologist administered intellectual and adaptive behavior tests to Hunter. Hunter achieved a verbal IQ score of 65, a performance IQ score of 68, and a full-scale IQ score of 64 on the Wechsler Intelligence Scale for Children. Hunter was identified as “educable mentally handicapped” and placed in his school district’s special-education program. Hunter progressed slowly academically, displayed behavior problems and was expelled from elementary school for fighting. Hunter continued with special-education classes through high school. He was required to repeat the 10th grade and graduated with a “special diploma” after completing the 11th grade. Apart from the testing conducted when he was in third grade, Hunter’s school records did not include any reports of any regular or repeated psychological testing. Garnett explained that Hunter wears a “cloak of competence” that masks his deficits in intellectual functioning and adaptive behavior. To illustrate his point, Garnett related how Hunter denied ever having been in special education classes. Hunter also told Garnett that he had learned about computers in prison, but he actually had taken only a basic keyboarding class. When Hunter told Garnett that he would “fix things at home,” it was no more than tightening a loose doorknob. Hunter also said that he could cook, but Garnett related that Hunter’s “cooking” was only chopping vegetables and pouring the contents of a can into a pot. However, on cross-examination, Garnett admitted that Hunter was able to explain to him the process of frying chicken. Because Hunter’s work history showed that he held 27 different jobs between 1989 and 2004, Garnett characterized Hunter as an itinerant worker who lacked regular attendance. Garnett additionally testified that Hunter lacked leadership qualities and had no close circle of friends but did have “many” marriages or relationships with women, which Garnett described as indicating low adaptive functioning. Garnett testified that Hunter had an IQ that falls within the range of subaverage intellectual functioning, limitations in several areas of adaptive behavior, and evident signs of mental retardation before the age of 18. Garnett concluded that Hunter was mentally retarded. The state presented expert witness Dr. George Carl Denkowski, a clinical psychologist who reviewed Hunter’s records and personally evaluated him. Denkowski did not administer an IQ test to Hunter, because Hunter had recently taken an IQ test and refused to undergo any further IQ testing. Interpreting the results from Hunter’s 2004 IQ test, Denkowski explained that, according to the testing manual, the band of confidence for this test is “four below and five above,” meaning that Hunter’s IQ score could range from 70 to 79. Denkowski found that Hunter’s scores indicate that he was “mildly depressed.” Denkowski explained that depression affects an individual’s IQ score and that “even mild depression can lower it by two or three points.” Denkowski believed that Hunter’s full scale IQ score was actually higher than 74, particularly after taking into account that Hunter was handcuffed during the testing, which hampered his performance. Denkowski testified that he also believed that the score artificially understated Hunter’s mental functioning, in part because the test included questions that are relevant only to school and not to daily life. Denkowski tested Hunter’s adaptive behavior in 2004 by having Hunter rate himself using the Adaptive Behavior Assessment System. Hunter achieved an adaptive score of 94 with a score range of 91 to 97. Denkowski testified that, even with a low score in the communication area of the exam, Hunter had “a normal ability” to meet the ordinary demands of everyday life. Denkowski concluded that Hunter was not mentally retarded. Two girlfriends, an aunt and a neighbor testified that they did not think there was anything wrong with Hunter mentally and that they were able to converse with him. Carl Deal, Hunter’s general foreman at Vanguard Plastics, also testified. Deal testified that Hunter fully filled out a three-page application and a medical questionnaire prior to being hired at Vanguard. Hunter’s job duties included monitoring the extrusion of plastic film for the proper thickness, width and color. Deal also testified that the company sent Hunter to a school to become certified as a forklift-operator, which required a written test. Hunter passed the test and received his forklift-operator certification. According to Deal, Hunter caused no problems on the job and had no troubles fulfilling his duties. In July 2004, a jury convicted Hunter of a capital murder committed on Oct. 25, 2003. Based on the jury’s answers to the special issues set forth in Texas Code of Criminal Procedure Art. 37.071, ��2(b) and 2(e), the trial judge sentenced Hunter to death. An automatic direct appeal to the CCA followed. HOLDING:Affirmed. In his first point of error, Hunter challenged the sufficiency of the evidence supporting the jury’s determination that he was not mentally retarded. The CCA stated that it defines mental retardation as a disability characterized by: 1. “significantly subaverage” general intellectual functioning; 2. accompanied by “related” limitations in adaptive functioning; 3. the onset of which occurs prior to the age of 18. In summary, the CCA noted that the case involved expert opinions and evidence both in favor of and against a finding of mental retardation. Sufficient evidence supported the jury’s determination that Hunter failed to prove mental retardation. The judgment was not so against the great weight and preponderance of the evidence so as to be manifestly unjust, the CCA stated. Next, Hunter challenged the legal sufficiency of the evidence supporting the jury’s determination regarding future dangerousness. Hunter urged the CCA to examine the issue of his future dangerousness in the context of a prison environment, because he would spend at least 40 years in prison. Hunter’s expert risk-assessment witness, Mary Alice Conroy, argued that Hunter was not a continuing threat in prison, because he had not been violent during previous periods of incarceration and his past violent acts were committed only in free society. The CCA, however, stated that good behavior in prison does not preclude a finding of future dangerousness. All that is required, the CCA stated, is that there be sufficient evidence for a rational trier of fact to conclude beyond a reasonable doubt that there is a probability the defendant would commit criminal acts of violence that would constitute a continuing threat to society. The CCA found that the record showed Hunter had a long history of violent offenses. In summary, the CCA found that Hunter shot five people, killing two of them, and assaulted numerous others. There was sufficient evidence presented from which a rational jury could conclude that Hunter posed a future danger to society, the CCA stated. OPINION:Meyers, J., delivered the opinion for a unanimous court.

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