Adanandus v. Johnson (947 F. Supp. 1021, 1996)

United States District Court for the Western District of Texas 1996-08-27

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

BIERY, District Judge.

The State of Texas seeks to put to death one of its citizens, Dwight Dwayne Adanan-dus. In his petition for federal habeas corpus relief, Mr. Adanandus raises twenty-one points requiring constitutional review by this Court and examination of current law on the issues raised. For reasons stated herein, relief is denied.

‡ ‡ ‡ ‡ ‡

Although in more detail later, the Court first addresses generally the assertion of ineffective assistance of trial counsel Steven Hilbig and the historical professional obligation of lawyers in criminal cases. In a nation whose landscape is dotted with synagogues and churches, the entreaties of “thou shalt not MU” and “forgive your enemies” are challenged by retribution and revenge, understandable responses to violent crime. The divergence between what is said on the Sabbath and what is done on election day has given secular America its macabre politics of death, collectively imposed upon the predators among us through the might of the State. Having democratically given vent to normal human emotions in the face of incredibly heinous acts, the legal exercise of the power to end a life requires careful scrutiny by some objective entity bound by the rule of law. The alternatives to the imposition of the ultimate punishment within a framework of due process are the anarchy of a lynch mob or the whim of a dictator and the concomitant devolution of society to the level of those deserving execution.

For the Constitution to be more than mere words, even those accused of capital murder must have competent advocacy against the strength and resources of government. Though frequently and pejoratively quoted out of context, Dick the Butcher recognized lawyers as protectors. of English rights; hence they must be killed to achieve illegitimate seizure of sovereignty. Based on the record before it, this Court concludes Mr. Hilbig and attorneys David Weiner, Julie Pollock and Stephanie Barclay Stevens ably fulfilled their professional responsibilities to Mr. Adanandus and to the rule of law which protects all citizens.

I. The Record

Before the Court are the following petitions and motions: (1) petitioner’s second amended petition for federal habeas corpus relief, filed June 25, 1996, (2) respondent’s answer and motion for summary judgment, filed September 12, 1995, (3) petitioner’s motion for evidentiary hearing, filed July 26, 1995, (4) respondent’s pleading opposing petitioner’s motion for evidentiary hearing, filed September 12, 1995, (5) petitioner’s reply to respondent’s opposition to an evidentiary hearing, filed October 16,1995, and (6) more than eight thousand pages of state court records from petitioner’s capital murder trial, direct appeal, and state habeas corpus proceeding.

II. Statement of the Case

On January 28, 1988, petitioner Dwight Dwayne Adanandus shot and killed Vernon Hanan while committing an armed robbery of the Continental National Bank [“CNB”] in San Antonio, Texas. Several eyewitnesses testified that bank teller Patricia Martinez began yelling she had been robbed immediately after petitioner left her window. Vernon Hanan entered the bank lobby, apparently heard the shouts, and lunged at petitioner as petitioner was attempting to exit the bank. The two men wrestled with each other from the bank lobby into the foyer where petitioner pushed Hanan away from himself and down, pointed his gun at Hanan, and fired the fatal shot. Bank security eam-eras recorded almost the entire series of events leading up to the fatal shooting. There has never .been any genuine dispute as to the operative facts. Petitioner was indicted in cause no. 88-CR-1454 on a charge of capital murder on April 12, 1988.

Jury selection in petitioner’s state court trial began on March 29, 1989. The guilt-innocence phase of petitioner’s trial began May 1, 1989. On May 9, 1989, the jury found petitioner guilty of the offense of capital murder. The next day, the punishment phase of petitioner’s trial began, and two days later, May 12, 1989, the jury returned its verdict on the punishment special issues. The trial court sentenced petitioner to death.

Petitioner appealed Ms conviction and sentence. In an opimon issued June 16, 1993, the Texas Court of Criminal Appeals affirmed petitioner’s conviction and sentence. The United States Supreme Court denied petitioner’s petition for certiorari on March 21,1994.

On September 7, 1994, petitioner filed Ms irntial application for state habeas corpus relief. On October 21, 1994, petitioner filed an amended application for state habeas corpus relief. The state trial court held an evidentiary hearing on petitioner’s state ha-beas corpus application on November 21, 1994. At the hearing, petitioner’s counsel introduced extensive medical records relating to petitioner’s childhood head trauma and also testified. In an Order issued January 9, 1995, the state trial court issued its findings of fact, conclusions of law, and recommended petitioner’s state habeas corpus application be denied. On February 21,1995, the Texas Court of Criminal Appeals denied petitioner’s state habeas corpus application in an unpublished per curiam opinion finding the state trial court’s findings and conclusions were supported by the record and denied relief on the basis of those findings and conclusions.

On May 3, 1995, petitioner filed his motion for leave to proceed In Forma Pauperis and for appointment of experts, motion for appointment of counsel, motion for stay of execution, and motion for time to amend, together with an initial petition for federal habeas corpus relief, setting therein some twenty-one (21) grounds for relief. In an Order issued May 4,1995, this Court granted petitioner’s motions for stáy of execution, for appointment of counsel, and for leave and time to file an amended petition.

On July 26, 1995, petitioner filed a motion requesting an evidentiary hearing. On that same day, petitioner also filed an amended petition for federal habeas corpus relief in which he asserted a single, multi-faceted ground for relief alleging ineffective assistance on the part of his trial counsel.

On September 12, 1995, respondent filed a pleading opposing petitioner’s request for an evidentiary hearing and an answer and motion for summary judgment. On October 16, 1995, petitioner filed a reply to respondent’s opposition to petitioner’s request for an evidentiary hearing and a reply to respondent’s answer and motion for summary judgment. In each of these replies, petitioner argued he had not been provided an expert witness during his state habeas corpus proceeding. On November 6, 1995, this Court issued an Order directing petitioner to state on the record whether he was withdrawing all of the grounds for relief contained in his initial federal habeas corpus petition. Petitioner filed a responsive pleading on November 21, 1995, advising the Court he still wished to assert all of the grounds for relief contained in his initial federal habeas corpus petition and requesting leave to file a second amended federal habeas corpus petition. The Court granted this request on June 25, 1996.

In his second amended federal habeas corpus petition, filed June 25, 1996, petitioner asserts some twenty-one grounds for relief consisting of the following arguments:

1.the petitioner’s trial counsel rendered ineffective assistance by (a) failing to introduce evidence showing petitioner had suffered a head injury during his childhood and (b) allowing his political ambitions to result in a conflict of interest in connection with petitioner’s case;

2. the state trial court erroneously failed to define the term “reasonable doubt” in the jury charge;

3. the state trial court erroneously denied petitioner’s requested jury instructions at the guilt-innocence phase of trial on the lesser-included offenses of felony murder, voluntary manslaughter, and involuntary manslaughter;

4. the state trial court erroneously denied petitioner’s requested definition of “deliberately” in the jury instructions at the punishment phase of trial;

5. the prosecution withheld potential exculpatory evidence from the defense relating to a prior competency hearing held in 1981 in another criminal proceeding against the petitioner;

6. petitioner’s sentence was based on an invalid prior conviction;

7. the prosecution violated equal protection principles when it used a peremptory challenge to strike the last remaining black member of the jury venire;

8. the state trial court erroneously admitted the testimony of three prosecution witnesses regarding petitioner’s bad reputation at the punishment phase of trial;

9. the jury instructions deprived petitioner’s jury of the opportunity to make a reasoned moral response to mitigating evidence;

10. the state trial court erroneously denied petitioner’s requested jury instructions regarding mitigating evidence;

11. the state trial court erroneously denied petitioner’s requested jury instructions regarding the effect of a hung jury;

12. the state trial court erroneously denied petitioner’s right to call witness William Stolhanske;

18. petitioner’s constitutional rights were violated by his forced medication during trial;

14. the state trial court erred in conducting a portion of the voir dire portion of trial in petitioner’s absence and in refusing to dismiss the array after so doing; and

15. the petitioner was incompetent to stand trial.

On July 9, 1996, respondent filed a pleading arguing this federal habeas corpus proceeding is now governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 and this Court must apply the provisions of that enactment to this cause despite the fact the Texas state statute which respondent identifies as satisfying the procedural prerequisites of the federal enactment did not become effective until after the disposition of petitioner’s state habeas corpus application.

III. Analysis and Authorities

A. Ineffective Assistance Arguments

In his initial ground for federal habeas corpus relief, petitioner argues his trial counsel rendered ineffective assistance by (1) failing to investigate, develop, and present at either the guilt-innocence or punishment phases of trial evidence showing that (a) due to a head injury he suffered as a child, petitioner suffers from a neuropsychological impairment and (b) petitioner suffered from an unstable family background, verbal and physical abuse as a child, and substance abuse, but still possesses redeeming qualities and (2) allowing said trial counsel’s political ambitions to create a conflict of. interest which interfered with said counsel’s ability to represent petitioner.

1. Standard of Review

The constitutional standard for determining whether a criminal defendant has been denied the effective assistance of counsel, as guaranteed by the Sixth Amendment, was announced by the Supreme Court in the case of Strickland v. Washington:

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

In order to establish counsel’s performance was constitutionally deficient, a convicted defendant must show counsel’s representation “fell below an objective standard of reasonableness.” In so doing, a convicted defendant must carry the burden of proof and overcome a strong presumption that the conduct of his trial counsel falls within a wide range of reasonable professional assistance. The courts are extremely deferential in scrutinizing the performance of counsel and make every effort to eliminate the distorting effects of hindsight. It is strongly presumed counsel has rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. An attorney’s strategic choices, usually based on information supplied by the defendant and a thorough investigation of relevant facts and law, are virtually unchallengeable. Counsel is required neither to advance every nonfriv-olous argument nor to investigate every conceivable matter into which inquiry could be classified as nonfrivolous.

The proper standard for evaluating counsel’s performance under the Sixth Amendment is “reasonably effective assistance.” “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” “Accordingly, any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.” In order to establish that he has sustained prejudice, the convicted defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” In addition, analysis of the second or “prejudice” prong of the Strickland test must include examination of whether counsel’s deficient performance caused the outcome to be unreliable or the proceeding to be fundamentally unfair. “Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him.”

In summary, in order to prevail on a claim of ineffective assistance of counsel, a convicted defendant must show (1) counsel’s representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

The two-part test of Strickland v. Washington, supra, has been applied by the Supreme Court and the Fifth Circuit in a wide variety of contextual challenges to the effectiveness of counsel’s performance. Given the language of Strickland itself, the test applies to the conduct of counsel both in preparation for and at trial. The test also has been applied to challenges to guilty pleas based on ineffective assistance of counsel allegations. Of course, the two-part test applies to sentencing proceedings because the Strickland opinion itself dealt with a sentencing proceeding. Additionally, the two-part Strickland test has also been applied to the performance of counsel on appeal.

Because a convicted defendant must satisfy both prongs of the Strickland test, a failure to establish either deficient performance or prejudice under that test makes it unnecessary to examine the other prong. Therefore, a failure to establish that counsel’s performance fell below an objective standard of reasonableness avoids the need to consider the issue of prejudice. It is also unnecessary to consider whether counsel’s performance was deficient when there is an insufficient showing of prejudice. Mere conclusory allegations in support of claims of ineffective assistance of counsel are insufficient, as a matter of law, to raise a constitutional issue.

2. The Setting

The deficiency prong of Strickland is judged by counsel’s conduct under the law existing at the time of the conduct. Prejudice within the meaning of Strickland is measured by current law and not by the law as it existed at the time of the alleged error. At the time of petitioner’s capital murder trial in May of 1989, the Texas capital sentencing procedure called for a bifurcated trial in which the guilt or innocence phase of the trial occurred prior to any consideration of punishment by the jury. If the jury found the defendant guilty of capital murder, the same jury would remain empaneled and the punishment phase of the trial would proceed. At the punishment phase of the capital trial, the Texas capital sentencing statute directed the trial court to submit the following issues to the jury:

(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;

(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.

At the time of petitioner’s trial, the Texas capital sentencing statute directed the trial court to instruct the jury that “(1) it may not answer any issue ‘yes’ unless it agrees unanimously; and (2) it may not answer any issue ‘no’ unless 10 or more jurors agree.” The Texas capital sentencing statute also provided as follows:

If the jury returns an affirmative finding on each issue submitted under this article, the court shall sentence the defendant to death. If the jury returns a negative finding or is unable to answer any issue submitted under this article, the court shall sentence the defendant to confinement in the Texas Department of Corrections for life.

Prior to the time of petitioner’s trial, a plurality of the Supreme Court had upheld the foregoing Texas capital sentencing scheme against a facial attack in Jurek v. Texas. In Júrek, The Supreme Court plurality held:

a sentencing system that allowed the jury to consider only aggravating circumstances would almost certainly fall short of providing the individualized sentencing determination that we today held in Woodson v. North Carolina [428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976)], to be required by the Eighth and Fourteenth Amendments. * * *

A jury must be allowed to consider on the basis of all relevant evidence not only why a death penalty should be imposed, but also why it should not be imposed.

Thus, in order to meet the requirements of the Eighth and Fourteenth Amendments, a capital-sentencing system must allow the sentencing authority to consider mitigating circumstances.

The Supreme Court also reviewed the opinions of the Texas Court of Criminal Appeals and interpreted them as allowing consideration of a wide range of mitigating circumstances under the second special issue, i.e., the inquiry relating to the future dangerousness of the defendant, in the course of the punishment phase of a Texas capital murder trial. The Supreme Court plurality’s decision in Jurek was later adopted by the a majority of that Court in Eddings v. Oklahoma.

Petitioner was tried in May of 1989 prior to the issuance by the' United States Supreme Court of its opinion in Penry v. Lynaugh. In Penry, the Supreme Court held the Texas capital sentencing scheme unconstitutional as applied to a defendant who had introduced evidence of his abusive childhood and mentál retardation. On June 26, 1989, more than a month after the petitioner’s trial ended, the Supreme Court majority concluded in Penry that, in answering the three special issues submitted to it during the punishment phase of Penry’s trial, the state court jury had not been able to consider and give effect to all of Penry’s mitigating evidence “without any jury instructions on mitigating evidence.” However, in subsequent decisions from Texas and other states, the Supreme Court has narrowed the holding in Penry.

In fact, in 1993, the Supreme Court held its opinion in Penry should not be construed as broadly suggesting the invalidity of the Texas special issue framework. Later the same year, the Supreme Court upheld a Texas prisoner’s capital murder conviction and death sentence against a claim that the former Texas capital murder statute precluded the jury from considering and giving effect to mitigating evidence of the defendant’s youth at the time of his offense. Thus, while a majority of the Supreme Court has not formally rejected its analysis in Penry, the Court has taken great pains in subsequent opinions to narrow the Penry holding.

As explained above, petitioner’s claims of ineffective assistance must be examined, first, in connection with thé first prong of Strickland with due recognition of the fact petitioner was tried before the Supreme Court’s opinion in Penry and, second, in conducting the prejudice analysis full recognition must be given to the many subsequent Supreme Court and Fifth Circuit opinions narrowing the Penry holding.

3. Failing to Develop and Introduce Mitigating Evidence

Prior to petitioner’s trial, petitioner’s trial counsel, Steven Hilbig, requested and obtained a mental examination of the petitioner by psychiatrist Dr. Kaymond M. Costello.

a. The Evidence in Question

Dr. Costello’s report includes observations, among others, that (1) he conducted a four and one-half hour face-to-face interview with petitioner on July 12, 1988, (2) petitioner understood all instructions, worked consistently without fatigue, and showed no obvious signs of dysfunction or injury except for a vocal tremor, occasional inarticulation of words, and a scar running lengthwise on his skull at the hairline above the right ear, (3) petitioner indicated he had acquainted himself with the law by reading books and talking with other inmates about the law, the judicial process, and police conduct, (4) petitioner understood the nature of the proceeding against him, was familiar with the judicial process, and understood the role of his attorney and the nature of the attorney-client privilege, (5) petitioner stated a metal plate was implanted in his head after he suffered a head injury in a horseback-riding accident and thereafter, his behavior deteriorated and became more erratic, (6) he had difficulty concentrating and dropped out of school after completing the tenth grade, (7) petitioner experienced periods of lost consciousness following his accident but was not diagnosed with epilepsy until 1978 or 1979 while incarcerated at the Bexar County Jail, (8) he was hospitalized in Chicago in 1986 after he again experienced a period of unconsciousness, (9) petitioner subsequently refused to submit to a CAT-scan, (10) petitioner characterized his own criminal conduct as impersonal acts of violence toward society as a whole similar in the nature to the actions of an “independent businessman,” and (11) petitioner performed very well on nearly every neuropsychological test, demonstrating (a) the ability to think abstractly and symbolically, (b) an exceptional memory for what he heard, (c) excellent learning ability, (d) good concentration, (e) the ability to catch on to novel tasks quickly, (f) an average intelligence, but (g) poor memory for visual symbolic information (which Dr. Costello linked to petitioner’s right parietal head injury). Dr. Costello concluded (1) petitioner had good ability to assess reality, to organize information, to process or think about information, to problem-solve, and to learn, (2) petitioner’s ability to plan and execute a rational course of action was not in question, (3) if a life-style change toward criminal activity pre-dated petitioner’s head injury, use of the head injury for mitigation purposes would be less plausible and would have to include evidence showing petitioner’s criminality was not a simple process of his unique maturation into adulthood, (4) there was no information indicating petitioner was unable to assist his attorney in the preparation of petitioner’s defense, (5) there was no information indicating petitioner lacked a rational and factual understanding of the proceedings against him, and (6) there was no information suggesting petitioner would not continue in his criminal career.

In addition to the foregoing information, attorney Hilbig met and consulted extensively with petitioner to discuss the case and explore defensive strategies. Nothing in Dr. Costello’s report or in any of his conferences with petitioner gave attorney Hilbig any reason to believe he should file a motion challenging petitioner’s mental competence. In addition, attorney Hilbig reviewed petitioner’s medical records from the Austin State School. These records addressed petitioner’s childhood head injury from the horseback-riding accident, the implanting of a metal plate in petitioner’s head, and petitioner’s mental health both prior to and following that accident. Attorney Hilbig made a tactical decision not to introduce those records into evidence because (1) strategically, the focus of the defense at the guilt-innocence phase of trial was on whether petitioner had acted intentionally and, at the punishment phase, on whether petitioner had acted deliberately in shooting the decedent, (2) the records in question contained information that could have been harmful to the petitioner because they arguably showed petitioner had engaged in violent behavior prior to the date of his head injury, i.e., petitioner had taken knives to school, threatened other students, and directed profanity toward teachers prior to his head injury, and (3) the records contained information showing that no specific behavioral or intellectual changes appeared to have resulted from petitioner’s head injury and parietal plate implant.

At the request of petitioner’s counsel in this federal habeas corpus proceeding, petitioner was examined in June, 1995 by psychologist Dr. Robert Geffher who, with the assistance of another person, prepared a report styled “Neuropsychological and Psychological Evaluation.” That report contains observations, among others, that (1) petitioner was the youngest of seven children, (2) the brother to whom petitioner was the closest and who was petitioner’s role model, Elmer Adanandus, was convicted and sent to the penitentiary in January, 1970 for armed robbery, (3) petitioner was sent to the Austin State School in September, 1970 with a diagnosis of borderline mental retardation, but an IQ test showed petitioner was in the average range of intellectual ability, (4) petitioner was diagnosed at the time of his discharge from the Austin State School as suffering from a “non-psyehotic organic brain syndrome with a personality disorder, NOS” possibly resulting from petitioner’s skull fracture in the right parietal region and the insertion of a plate in petitioner’s head in July, 1970, (5) medical records showed petitioner had undergone another craniotomy in 1974, possibly following a second head injury sustained in a motorcycle accident; petitioner began to experience headaches and a metallic cranialplasty device was placed in the right posterior parietal portion of petitioner’s skull, (6) a CAT-scan conducted in December, 1993 showed no intracranial abnormalities, (7) petitioner’s medical records from state prison and Bexar County indicated a long history of non-specific seizure disorder for which petitioner had been treated with Phenobarbital and Dilantin and petitioner had been treated in state prison with Midrin for chronic migraine headaches, (8) petitioner’s conduct disorder behaviors appear to predate his head injury but may have exacerbated petitioner’s condition, (9) petitioner completed only the ninth grade but earned a GED while incarcerated, (10) petitioner was employed for one year as a dishwasher when he was approximately 16-years-old, has also held other low-skill jobs, such as a baggage and freight handler for American Airlines, and worked for two years at an iron foundry, (11) petitioner once again tested within the normal range of intellectual functioning and within the normal range on the vast majority of neuropsychological tests administered, (12) there were some indications of a mild neuropsychological impairment, particularly in the areas of fine motor skills, abstract reasoning, and concept formation, (13) psychological testing revealed petitioner (a) is currently pessimistic, depressed, and possibly insecure in interpersonal relationships, (b) suffers from low self-esteem, marked anxiety, and possibly a thought disorder, (c) had attempted to injure himself on one or more occasions, (d) has difficulty with planning and judgment, (e) may also have difficulty controlling impulsiveness, (f) can best be described as having a confused self-identity, perfeetionistic traits, feelings of recklessness and uselessness, and tendencies toward being a loner with unstable- relationships, (g) displays a tendency toward insecurity, inde-eisiveness, and repression, (h) is motivated by a desire to strive for and achieve power, and (i) may suffer from significant trauma resulting in anxiety, depression, sleep disturbance, and sexual difficulties, (14) petitioner is currently experiencing significant emotional distress as well as mild neuropsychological impairment that appears to have produced significant disruptions in his behavior and functioning, (15) given petitioner’s history of impulsive behavior, interpersonal conflicts, polysubstance abuse, and personality dysfunction, petitioner may have organic personality disorder, (16) the decline in petitioner’s IQ score since 1970 may indicate a reduction in intellectual functioning possibly caused by a head injury in the mid-1970’s, (17) petitioner admitted to being prone to explosive and impulsive behaviors and his test scores indicate the possibility of an intermittent explosive disorder that may be related to childhood abuse or organic processes affecting neuropsychological functioning, (18) these disorders could lead to violent impulsive acts during periods of situational stress, (19) petitioner’s improved performance on some tests may be due to his living in a structured environment without the opportunity for substance abuse, (20) at the time of his offense in 1988, petitioner likely was suffering from an even greater loss of functional and cognitive abilities than at present, probably exacerbated by petitioner’s psychological disturbances and polysubstance abuse, (21) those Conditions likely rendered petitioner incapable of coping with stress and conflicts, (22) in 1988,- petitioner likely suffered from mild to moderate brain impairment while simultaneously suffering from severe emotional and psychological disturbances, and (23) with proper treatment and structuring of petitioner’s environment, it is unlikely petitioner would be a danger to himself or others.

b. At the Guilt-Innocence Phase

Petitioner argues his trial counsel should have introduced evidence of petitioner’s head injuries and neuropsychological deficiencies in mitigation at the guilt-innocence phase of trial.

(1) Deficient Performance

As previously discussed, the deficiency prong of Strickland is judged by counsel’s conduct under the law existing at the time of the conduct. Based on the foregoing evidence, the tactical decision by petitioner’s trial counsel not to assert either a diminished capacity defense or some other defense premised upon petitioner’s childhood head injury at the guilt-innocence phase of trial did not cause the performance of petitioner’s trial counsel to “fall below an objective standard of reasonableness.” On the contrary, based on the information then available to petitioner’s trial counsel, the tactical decision not to assert either of these defenses-at the guilt-innocence phase of trial fell well within the very broad range of tactical decision-making to which this Court must give deference. Petitioner’s trial counsel reviewed petitioner’s medical records from the Austin State School as well as Dr. Costello’s report and reasonably concluded that either a diminished capacity defense or a defense premised on petitioner’s childhood head injury could have been readily negated by petitioner’s medical history and the results of Dr. Costello’s examination. It is strongly presumed counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

Even assuming further independent investigation by petitioner’s trial counsel into petitioner’s psychosocial background in 1989 would have revealed all of the information contained in Dr. Geffiier’s 1995 report, the tactical decision by attorney Hilbig not to attempt to use petitioner’s head injuries as the basis for a defense at the guilt-innoeence phase of trial was well within the realm of reasonable trial strategy. Introduction by petitioner’s defense counsel of such psychological evidence at the guilt-innocence phase of trial would, necessarily, have opened the door to the admission of testimony and other evidence concerning petitioner’s entire criminal history, including his prior armed robberies. It was well within the parameters of a sound trial strategy for petitioner’s defense counsel to have avoided a course of action which would have permitted the prosecution to introduce evidence of petitioner’s prior criminal and violent acts at the guilt-innocence phase of petitioner’s capital murder trial. Furthermore, the conclusions regarding petitioner’s capacity for planning and executing a course of action contained in Dr. Geffner’s 1995 report are inconsistent with the conclusions contained in the report generated by Dr. Costello in 1988. Moreover, petitioner has not alleged facts showing attorney Hilbig’s reliance upon Dr. Costello’s conclusions was unreasonable or unjustified. In fact, attorney Hilbig reviewed petitioner’s medical records from the Austin State School, Dr. Costello’s report, conferred extensively with petitioner, and concluded there was no legitimate basis for a plea of insanity or a claim of mental incompetence. Therefore, attorney Hilbig was not required to conduct additional investigation into petitioner’s psychological condition. For the foregoing reasons, the failure of petitioner’s trial counsel to conduct further investigation into petitioner’s psychological and mental condition and to develop and introduce evidence at the guilt-innocence phase of trial relating to petitioner’s head injuries did not cause the performance of said counsel to fall below an objective level of reasonableness. Thus, this aspect of petitioner’s ineffective claim fails to satisfy the initial prong of Strickland.

(2) Prejudice

In addition, despite the length and breadth of Dr. Geffner’s report, nothing in that report clearly establishes petitioner was incapable on January 28,1988, of forming the intent to either rob a bank or shoot anyone who got in his way. As explained above, there was no genuine dispute petitioner robbed the bank and shot the decedent when the decedent attempted to stop the petitioner from leaving the bank. Instead, the critical issue at the guilt-innocence phase of trial was whether the actual shooting had been an intentional, as opposed to an accidental or negligent, act. The evidence introduced at the guilt-innocence phase of trial included photographs of the robbery and shooting taken by bank security cameras, as well as extensive eyewitness testimony. This evidence established that (1) petitioner planned his actions with forethought, first inspecting the bank the week before the robbery and meticulously printing a written note that directed the bank teller to take specific actions and included very specific threats, (2) on January 28,1988, petitioner entéred the bank with a fully loaded semiautomatic pistol and a bag concealed inside an expandable file folder, and made verbal and written threats on the life of bank teller Patricia Martinez, (3) petitioner obtained approximately thirteen thousand dollars from Martinez and began to walk away very quickly from Martinez toward the door, (4) after Martinez began yelling she had been robbed and threw a small sign at petitioner, petitioner pulled a gun from the waistband of his pants as he attempted to leave the bank, (5) Vernon Hanan attempted to tackle petitioner, petitioner dropped the bag containing the money, and the two men wrestled with each other from the bank lobby into the foyer, (5) petitioner pushed Hanan away from himself, (6) petitioner pointed his gun at Hanan, (7) petitioner pulled the trigger of his gun, which had a heavy trigger pull, and (8) petitioner fatally shot Hanan through the forearm, into the chest, and through the heart from a distance of approximátely two feet while Hanan was falling toward a sitting position. Nothing in Dr. Geffner’s report indicates petitioner was mentally incompetent or otherwise incapable, on January 28, 1988, of intentionally performing any of the foregoing acts. Petitioner offered no testimony or other direct evidence at the guilt-innocence phase of trial regarding his mental state. Prejudice within the meaning of Strickland is measured by current law and not by the law as it existed at the time of the alleged error.

The evidence introduced at the guilt-innocence phase of trial also established that (1) after petitioner shot Hanan, petitioner turned, pointed his gun at a bank customer, re-entered the bank lobby, and recovered the bag containing the money petitioner had dropped during his struggle with Hanan, (2) petitioner then fled out the front door of the bank, (3) petitioner then ran across an embankment, jumped down, paused and smiled at a couple parked in their automobile, and continued his flight into a nearby residential neighborhood, (4) because the crime occurred during the noon hour, a number of persons walking near the bank chased after petitioner and one bank employee gave pursuit in an automobile, (5) at one point during the chase, petitioner became entangled in a fence and pointed his gun at his pursuers as they approached, (6) after freeing himself from the fence, petitioner took off running again but slipped in the middle of the street, dropped some of the money from his bag, again pointed his gun at his pursuers, picked up some of the money he had dropped, and then ran off once again, (7) petitioner’s pursuers recovered some of the money petitioner dropped on the ground during his flight, (8) law enforcement authorities closed off the area, recovered additional money petitioner had taken in the robbery that was scattered on the ground as well as petitioner’s robbery note, recovered petitioner’s shoes and file folder, and began a search, of the neighborhood using trained dogs to locate petitioner, who was eventually found hiding beneath a house, (9) law enforcement officers found petitioner’s jacket inside a hole in the house under which petitioner was hiding and several thousand dollars in cash stuffed into the lining of the jacket, (10) after several hours of unsuccessfully attempting to coax petitioner out from underneath the house, police first sent in a trained dog and then an officer, and the shoeless petitioner crawled out from under the house, (11) law enforcement officers looked unsuccessfully for petitioner’s gun that day but returned to the house the following day and, with the aid of a metal detector, found petitioner’s pistol buried in several inches of soft dirt beneath the house in question, (12) a law enforcement officer recovered a spent shell easing from petitioner’s gun in the foyer of the bank, and (13) both the spent shell casing found in the foyer of the bank and the fatal bullet removed from the body of Vernon Hanan showed signs they had been fired by petitioner’s gun

There is no evidence or factual allegations currently before this Court establishing a reasonable probability that, but for the failure of petitioner’s trial counsel to conduct further investigation into petitioner’s psychological and mental condition and to develop and introduce evidence at the guilt-innocence phase of trial relating to petitioner’s head injuries, the outcome of the guilt-innocence phase of petitioner’s trial would have been different. The physical evidence introduced at the guilt-innocence phase of trial established the fatal shot was fired while petitioner and Hanan were separated by at least two feet and while Hanan was falling toward a sitting position. Nothing in Dr. Geffner’s report establishes a reasonable probability that either (1) petitioner was mentally incompetent or otherwise incapable on January 28, 1988, of intentionally performing any of the criminal acts with which he was charged or (2) petitioner’s criminal acts on January 28, 1988, were anything other than intentional. Thus, petitioner’s first ineffective assistance claim also fails to satisfy the prejudice prong of Strickland.

e. At the Punishment Phase

Petitioner argues further his trial counsel should have introduced available evidence concerning petitioner’s unstable childhood and head injuries as mitigating evidence at the punishment phase of his trial.

(1) Deficient Performance

The deficiency prong of Strickland is judged by counsel’s conduct under the law existing at the time of the conduct. As explained above, at the time of petitioner’s May, 1989 trial, the Supreme Court’s decision in Penny was not yet the law of the land. Thus, the only three issues before the jury at the punishment phase of petitioner’s trial were those listed above, i.e., questions asking whether petitioner’s conduct had been deliberate, whether petitioner posed a continuing threat of violence to society, and whether petitioner’s conduct in shooting Vernon Hanan had been unreasonable in response to Hanan’s actions toward petitioner. The goal of petitioner’s trial counsel at the punishment phase of trial was to obtain a negative answer to one or more of those jury issues.

As explained above, petitioner’s trial counsel obtained a psychiatric evaluation of petitioner in July, 1988 which, in pertinent part, included a finding that petitioner’s “ability to plan and execute a rational course of action ... is not in question.” In addition, attorney Hilbig also reviewed petitioner’s medical records from the Austin State School and noted that at least some portions of those records indicated petitioner had a history of violent behavior prior to any of his head injuries, and petitioner had not demonstrated any significant behavioral or intellectual deficiencies after his horseback-riding accident. The thrust of this portion of petitioner’s ineffective assistance claim amounts to an argument that attorney Hilbig should have disregarded Dr. Costello’s report and the contents of petitioner’s medical records and conducted a far-ranging search for psychological evidence that might have mitigating value at the punishment phase of trial. However, the fact that Dr. Geffner’s June, 1995 report contains arguably mitigating psychological evidence regarding petitioner’s psychosocial history does not establish that attorney nil-big’s performance was professionally deficient in 1988 and 1989. “The defense of a criminal case is not an undertaking in which everything not prohibited is required. Nor does it contemplate the employment of wholly unlimited time and resources.” Given the clarity of Dr. Costello’s conclusions with regard to petitioner’s ability to plan and execute a rational course of action, the contents of petitioner’s medical records, as well as petitioner’s long track record for violent offenses including robbery discussed below, attorney Hilbig could have rationally concluded in 1988-89 that further investigation into petitioner’s psychosocial history was not the most efficient use of the time and resources then available to defense counsel.

Even if petitioner’s trial counsel had conducted a more thorough investigation into petitioner’s psychosocial background in 1988-89 and had obtained evidence consistent with the findings and conclusions reported by Dr. Geffher in 1995, at best, such evidence would have represented a double-edged sword. While such evidence might have tended to support petitioner’s argument that petitioner’s shooting of Vernon Hanan had not been a deliberate act but rather a violent outburst resulting from a stressful situation, it would also have supported the prosecution’s contention that petitioner posed a continuing threat of violence to society. Furthermore, given the statements contained in both the reports of Dr. Costello and Dr. Geffher relating to petitioner’s normal intellectual functioning, psychological testimony or other evidence along the lines of that contained in Dr. Geff-ner’s report could have been used by the prosecution to bolster its contention that, when he entered the bank with a loaded weapon and note that included express death threats, petitioner deliberately placed himself in a situation in which he knew he might be required to use deadly force. Testimony such as that contained in Dr. Geffner’s report establishing that petitioner functioned within the normal intelligence range would have bolstered the prosecution’s contention that petitioner fully understood the gravity of his act of robbery and was fully prepared to use such force if necessary to complete his robbery. While the evidence relating to petitioner’s head injuries, neuropsychological and psychological deficiencies, and propensity toward violent, explosive behavior contained in Dr. Geffner’s report could have assisted petitioner’s trial counsel in its argument that petitioner’s action in shooting Vernon Hanan was not deliberate, there is nothing in Dr. Geffner’s report suggesting petitioner’s criminal actions on January 28,1988, were actually caused by or the product of those injuries, deficiencies, or propensities. In addition, Dr. Geffner’s report contains considerable information which would have supported positive answers to each of the three special punishment phase jury issues, such as indications that petitioner’s older-brother-role-model had been convicted of armed robbery and sent to the penitentiary, petitioner’s antisocial behavior predated his first head injury, petitioner had difficulty relating to others, and petitioner was capable of violent, explosive behavior.

Had petitioner’s trial counsel attempted to use petitioner’s medical records and history of head injuries to attack the prosecution’s position on the deliberateness or provocation issues, the prosecution could have cited to the very same portions of those records discussed by attorney Hilbig at the evidentiary hearing on petitioner’s state habeas corpus application. Those records arguably showed petitioner’s tendency toward violent behavior predated his head injuries and petitioner had not sustained any significant behavioral changes or diminution in intellectual capacity following his horseback-riding accident. Furthermore, while there was evidence indicating petitioner was treated initially for a seizure disorder and later for epilepsy after his horseback-riding accident, there was nothing contained in any of petitioner’s medical records establishing petitioner had sought or received any psychological care since his last stay at the Austin State Hospital in the early 1970’s. There was no evidence introduced at trial and there is no evidence in any of the material currently before this Court establishing that petitioner experienced any sort of epileptic seizure or other neurological dysfunction during the actual commission of his offense or that his criminal conduct was caused by his epileptic condition.

The evidence at the punishment phase of petitioner’s trial established that (1) on May 12, 1974, petitioner shot Lloyd Joe McGrew in the head during an altercation between petitioner and one of McGrow’s brothers, (2) petitioner was arrested on November 19, 1978, for unlawfully carrying a handgun and booked under the name “Paul Brown,” (3) petitioner was arrested in San Antonio, Texas, on September 28, 1979, while in the course of burglarizing a store, (4) petitioner robbed a convenience store at gun point on August 16, 1980, in Sweetwater, Texas, demanded the lone female store clerk’s car keys and purse, ripped the telephone off the wall before he left the store, and threatened to shoot the clerk if she left the store within ten minutes of petitioner’s departure, (5) also in August, 1980, petitioner robbed another lone female convenience store clerk in Abilene, Texas, at gun point, (6) on August 20, 1980, petitioner was arrested while driving a pickup truck that had been stolen just hours before from a residence in Amarillo, Texas, after a unknown person burglarized the residence and took the keys to that vehicle, (7) on August 21, 1986, petitioner robbed the Sunbelt Savings branch office in Hurst, Texas, by handing an employee a note containing almost verbatim the same death threats contained in the note petitioner used in his robbery of the Continental National Bank [“CNB”] in San Antonio on January 28, 1988, (8) during his robbery of the Sunbelt Savings branch, petitioner wore a brace over his forearm and wrist similar to the one he wore on January'28, 1988, when he robbed the CNB, (9) the wrist brace concealed a prominent and noticeable tatoo on the back •of petitioner’s hand, and (10) the note petitioner gave to Patricia Martinez at the CNB on January 28, 1988, was written in two different colors of ink and showed signs it had been drawn with a straight-edge and portions of it had been re-touched.

Petitioner testified at the punishment phase of his trial and admitted (1) he committed the two convenience store robberies in August, 1980 listed above, (2) he was also convicted of multiple counts of burglary and forgery, (3) he committed the pair of convenience store robberies in question while he was free on bond pending the disposition of his burglary and forgery charges, (4) he took the store clerk’s car when he robbed the convenience store in Sweetwater, (5) he did not intend to kill Vernon Hanan, although he did point his gun at Hanan and pull the trigger, (6) after he shot Hanan, he looked down at Hanan on the floor for four or five seconds before returning to the bank lobby to recover the bag containing the money and knew Hanan was hurt, and (7) he removed his wrist brace while underneath the house.

As explained above, attorney Hilbig requested and obtained a psychiatric evaluation of the petitioner in July, 1988 which resulted, in pertinent part, in Dr. Costello’s clear and unambiguous written finding that petitioner’s “ability to plan and execute a rational course of action ... is not in question.” Faced with that finding, the other evidence discussed above, the potential double-edged sword nature of the contents of petitioner’s medical records concerning head injuries, and the unavailability of a Penry instruction at the time of petitioner’s trial, the decision by petitioner’s trial counsel not to introduce petitioner’s medical records or to assert a defense at the punishment phase of trial based on petitioner’s prior head injuries was within the realm of reasonable trial tactics. Because petitioner was tried prior to the date of the Supreme Court’s opinion in Penry, the only way the jury could have given effect to any potentially mitigating evidence regarding petitioner’s prior head injuries would have been through the deliberateness and provocation issues. As explained above, however, the same medical records and psychological evaluations which petitioner now argues would have shown he shot Vernon Hanan reflexively rather than deliberately would also have shown that despite the fact his propensity toward violent behavior predated any of his head injuries and the fact he was prone to violent outbursts, petitioner had always performed within the normal range of intellectual functioning.

Under such circumstances, the failure of attorney Hilbig to conduct a more searching investigation into petitioner’s psychosocial history or to present other evidence then available showing petitioner had suffered a childhood head injury did not cause the performance of said counsel to fall below an objective level of reasonableness. In addition, given the evidence of petitioner’s extensive criminal record and long-term history of violent behavior, petitioner’s trial counsel did not act unreasonably in failing to present testimony from petitioner’s family members and close personal friends purportedly establishing petitioner was kind and gentle with others. Furthermore, petitioner’s trial counsel could reasonably have believed calling members of petitioner’s immediate family and close personal friends to testify.at the punishment phase of trial, and make a appeal for mercy, could alienate a jury which had already convicted petitioner of a capital murder. Thus, this aspect of petitioner’s ineffective assistance claim does not satisfy the initial prong of Strickland.

(2) Prejudice

As previously stated, prejudice within the meaning of Strickland is measured by current law and not by the law as it existed at the time of the alleged error. The Fifth Circuit has held that, in order to constitute “relevant” mitigating evidence for Penry purposes, evidence of a defendant’s background and character must relate to and diminish the defendant’s moral culpability for the offense with which he is charged. Mitigating evidence is “relevant” at the punishment phase of a Texas capital murder trial only if it implicates the basic concern of Penry—defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse. In order to meet this relevance standard, the evidence must show (1) a uniquely severe permanent handicap with which the defendant is burdened through no fault of his own and (2) the criminal act was attributable to this severe permanent condition.

It is unlikely the evidence of petitioner’s childhood head injuries would even qualify as “relevant” mitigating evidence for Penry purposes. As explained above, petitioner’s medical records from the Austin State School and other information contained in Dr. Geff-ner’s report, which petitioner now argues should have been introduced as “mitigating” evidence at the punishment phase of his trial, included information which established (1) petitioner’s violent, antisocial behavior predated his head injuries, (2) petitioner’s older brother and role model had been convicted of armed robbery when petitioner was thirteen years old, (3) petitioner had a long history of polysubstanee abuse beginning at an early age, and (4) despite petitioner’s head injuries, seizure disorder, and history of substance abuse, petitioner had completed the ninth grade, earned a GED, and always tested within the normal range of intellectual functioning. Thus, there was nothing in the medical records then available to petitioner’s trial cpunsel establishing petitioner’s criminal conduct on January 28, 1988, was the product of or attributable to the head injuries petitioner had sustained as a child.

Also as explained above, the evidence introduced during petitioner’s trial established that (1) petitioner carefully used two different pens and a straight edge to write a menacing note threatening the bank teller with death, (2) petitioner “cased” or inspected the bank the week before the robbery, (3) petitioner carried a fully loaded pistol in the waistband of his pants when he entered the CNB on January 28, 1988, (4) petitioner wore a wrist brace over his hand and wrist to conceal noticeable tatoos, (5) petitioner not only gave the teller the threatening note but also orally threatened to kill her if she ever identified him, (6) petitioner withdrew his gun after the teller began shouting and threw a sign at him, (7) before he had any physical contact with Vernon Hanan, petitioner told Vernon Hanan and a companion to “get out of my way,” (8) petitioner swung at Hanan several times immediately after Hanan lunged at petitioner, (9) the two men wrestled from the bank lobby into the foyer, and (10) petitioner shoved Hanan away from himself, pointed his gun at Hanan, pulled the heavy trigger, and shot Hanan through the heart while Hanan was falling in a sitting position at least two feet from petitioner’s outstretched arm and gun.

Eyewitnesses Patricia Martinez and Nehemiah Cantu both testified petitioner pointed his gun at Hanan. Petitioner admitted during his testimony at the punishment phase of trial he had pulled the trigger of his gun. A firearms expert testified at petitioner’s trial that petitioner’s gun had a heavy trigger pull. While petitioner did repeatedly state during his testimony at the punishment phase of trial he had not intentionally killed Hanan, he admitted to having pulled the trigger of his gun, admitted he refused to advise the police regarding the location of his gun at the time of his arrest, and admitted he returned to the bank lobby after shooting Hanan to retrieve the bag containing the money. During his testimony at the punishment phase of trial, petitioner specifically denied he was mentally incompetent, and the jury had the first-hand opportunity to view petitioner’s demeanor. In addition, no evidence was introduced at trial and there is no evidence in the record now before this Court establishing petitioner was suffering from any sort of epileptic seizure-related condition at the time he fired the fatal shot.

Petitioner did testify at the punishment phase of his trial he felt remorse for having caused the death of Vernon Hanan. Thus, there was at least some potentially mitigating evidence presented at the punishment phase of petitioner’s trial. For the reasons discussed above, however, given the potentially damaging evidence contained in petitioner’s records from the Austin State School, the tactical decision by petitioner’s trial counsel not to assert that petitioner’s head injuries lessened petitioner’s moral culpability for his crime was a reasonable one and well within the broad range of counsel's tactical discretion. Moreover, given the evidence contained in petitioner’s records from the Austin State School indicating petitioner had a long history of behavioral problems prior to the date of petitioner’s initial head injury and the findings made by Dr. Costello after his examination of the petitioner, there is no reasonable likelihood that, but for the decision by petitioner’s trial counsel not to present evidence or argue that petitioner’s head injuries mitigated petitioner’s moral culpability, the outcome of the punishment phase of petitioner’s trial would have been different.

Analysis of the second or “prejudice” prong of the Strickland test must include examination of whether counsel’s deficient performance caused the outcome to be unreliable or the proceeding to be fundamentally unfair. “Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him.” As explained above, the decision by petitioner’s trial counsel not to pursue further investigation into petitioner’s psychosocial history and background in search of potential mitigating evidence was a rational decision made after review of petitioner’s medical records, review of Dr. Costello’s report, and said counsel’s own examination of petitioner during their conferences prior to trial. The decisions by petitioner’s trial counsel not to introduce petitioner’s medical records into evidence at the punishment phase of petitioner’s trial and not to argue petitioner’s head injuries lessened petitioner’s moral culpability were rational ones based on the results of Dr. Costello’s examination of petitioner and the presence in those records of information which could have harmed petitioner’s chances of obtaining a negative answer to one or more of the special sentencing issues. Those decisions did not render the outcome of the punishment phase of petitioner’s trial unreliable and did not render that proceeding fundamentally unfair.

Given peti