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IV.

PROCEDURAL HISTORY

On September 13, 1983, Applicant was indicted for the offense of capital murder, as prescribed by Tex. Penal Code § 19.03(a)(2). Applicant entered a plea of not guilty and was tried before a jury in the 180th Judicial District Court of Harris County, Texas, Judge Patricia Lykos, presiding. Voir dire commenced on March 2, 1984, and concluded on April 9, 1984. (R.I-164-165). Testimony began on April 11, 1984, and concluded on April 18, 1984. (R.I-169-170). Final arguments were heard on April 19, 1984, and a verdict of guilty of the offense of capital murder was returned on the same date. (R.I-171). The punishment or sentencing phase began on April 23, 1984, and both sides rested and closed on April 25, 1984. (R.I-173). On the same date, the jury affirmatively answered the special issues submitted at the punishment phase. See former Tex. Code Crim. Proc. art. 37.071(b)(1) and (2). Applicant was thereafter sentenced to death by Judge Lykos. (R.I-174).

On May 9, 1984, Secrest was appointed to represent Applicant on appeal. Applicant's original Motion for New Trial was overruled by Judge Lykos on September 13, 1984. (R.I-175). Applicant appealed her conviction and sentence to the Court of Criminal Appeals, pursuant to Tex. Code Crim. Proc. arts. 4.04, § 2; 37.071. On December 7, 1988, a majority of the Court of Criminal Appeals affirmed Applicant's conviction and death sentence. Tucker v. State, 771 S.W.2d 523 (Tex.Crim.App. 1989). A Motion for Rehearing was denied on January 11, 1989. On June 26, 1989, Applicant's Petition for Writ of Certiorari was denied, Justices Brennan and Marshall dissenting. See Tucker v. Texas, 492 U.S. 912 (1989).

On or about August 29, 1989, a Joint Motion to Proceed in Habeas Litigation Without Execution Date was granted by Judge Lykos. In compliance with the court's scheduling order, Applicant filed a Petition for Writ of Habeas Corpus pursuant to Tex. Code Crim. Proc. art. 11.07 on December 15, 1989. After several requested extensions, the state finally filed its original answer on or about November 18, 1991. Applicant was permitted to file an amended petition by January 24, 1992, to address intervening legal developments. Applicant repeatedly sought an evidentiary hearing in the trial court to address the issues raised in the Petition and Amended Petition for Writ of Habeas Corpus which was opposed by the State. On February 27, 1992, Judge Lykos denied Applicant's requests for an evidentiary hearing and on the same date, signed the State's proposed order requiring Applicant's trial counsel (i.e., Mr. Mack Arnold and Mr. Henry Oncken) to submit affidavits. The State's proposed order did not address, nor did it require, any response by Applicant's trial counsel to Applicant's Fourth, Fifth, and Sixth Claims (Claims Six, Seven, Eight, and Nine in the Amended Petition for Writ of Habeas Corpus filed in state court), which complained of the failure of the trial court to instruct the jury as to mitigation of punishment and the failure of trial counsel to request such an instruction.

On April 20, 1992, Applicant filed her Motion to Reconsider Request for Evidentiary Hearing, arguing that the affidavits submitted by trial counsel were wholly insufficient to resolve the issue of ineffective assistance of counsel.

Habeas counsel (Secrest and Botsford) sought access to the files of Arnold and Oncken, and a request was made that the files be included in the state habeas record for later review by appellate tribunals. This was not done.

On April 29, 1992, Applicant filed her Response to the State's Proposed Findings of Fact and Conclusions of Law, objecting to various findings proffered by the State and/or seeking modifications to comport with the trial record. Judge Lykos adopted the State's Proposed Findings of Fact and Conclusions of Law in toto, transmitted the case to the Court of Criminal Appeals, and ordered that Applicant be brought to court from death row for the setting of an execution date. On Friday, May 29, 1992, Judge Lykos ordered that Applicant be executed before sunrise on June 30, 1992.

On June 3, 1992, Applicant filed her Motion to Stay Execution and Remand for Evidentiary Hearing in the Texas Court of Criminal Appeals. This was followed by the filing of Applicant's three Supplements to Motion to Stay Execution and Remand for Evidentiary Hearing, in the same court. The first supplement, filed on June 8, 1992, and supported by the affidavits of two attorneys who practiced before Judge Lykos, established that Judge Lykos would have given the jury a mitigation instruction in Applicant's trial had one been requested. In the second supplement, filed June 15, 1992, Applicant brought to the attention of the Court of Criminal Appeals the fact that the United States Supreme Court had only days before granted certiorari in Graham v. Collins, 506 U.S. ___, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993), a case which addressed the argument that lower federal courts had too narrowly construed Penry v. Lynaugh, 492 U.S. 302 (1989) which had applicability to Claims Four, Five, and Six in the "Amended Petition For Writ Of Habeas Corpus." The third supplement, filed on June 17, 1992, urged the Court of Criminal Appeals to consider a public proclamation, which occurred the previous day, by a crucial prosecution witness at Applicant's trial (James Leibrant) that he had perjured himself in determining whether to stay Applicant's impending execution and remand the cause for an evidentiary hearing.

On June 22, 1992, the Texas Court of Criminal Appeals granted a stay of execution and ordered that an evidentiary hearing be conducted "at which time the applicant will have an opportunity to prove allegations ten through twelve." Claims ten through twelve of the amended petition for writ of habeas corpus dealt with the aforementioned perjury of state's witness James Leibrant. Although the order directed Judge Lykos to hold an evidentiary hearing only on the perjury claims, three judges of the Court of Criminal Appeals were of the view that an evidentiary hearing should also be conducted on the ineffective assistance of counsel claims. The trial court ultimately held only a partial evidentiary hearing.

Immediately before the July 6, 1992, hearing, Applicant filed her "First Supplement To The Amended Petition For Writ Of Habeas Corpus." 1 HC 7-9. This supplemental pleading added two additional claims for relief (Thirteen and Fourteen).

On July 6 and 7, 1992, the partial evidentiary hearing was held before Judge Lykos. At the beginning of the proceedings of July 6, Judge Lykos made it clear that the hearing was limited solely to evidentiary matters relating to James Leibrant. 1 HC 9.

On November 19, 1992, Judge Lykos filed her "Supplemental Findings Of Fact And Conclusions Of Law And Order," which was submitted to the Court of Criminal Appeals. These findings of fact and conclusions of law addressed all of the claims contained in Applicant's pleadings, even though a hearing was held only on the claims relating to James Leibrant.

On January 4, 1993, Applicant Filed her post evidentiary hearing submission in the Texas Court of Criminal Appeals.

On October 19, 1993, while the Court of Criminal Appeals was considering the application, Judge Lykos, who at the time was running (unsuccessfully) for Attorney General of Texas, set another execution date, notwithstanding the previous stay entered by the Court of Criminal Appeals on June 22, 1992, and despite the fact that the State had not moved for an execution date.

On November 9, 1993, pursuant to Applicant's motion for stay, writ of mandamus and/or writ of prohibition, the Court of Criminal Appeals entered an order instructing Judge Lykos and the Texas Department of Corrections that the June 22, 1992, stay was still in force and effect pending further orders by the Court of Criminal Appeals. Accordingly, Applicant was not executed.

On January 27, 1995, the Court of Criminal Appeals entered a four paragraph, unpublished order denying Applicant relief and vacating its previous stay.

Relief was sought in the federal courts, but it was finally denied via a denial of her petition for writ of certiorari on December 8, 1997. Shortly thereafter, the District Court scheduled Applicant's execution for February 3, 1998.

Applicant now presents this her second state application/petition for writ of habeas corpus, under the authority of Tex. Code Crim. Proc. art. 11.071.

V.

PROCEDURAL ARGUMENTS

In the present successor application, Applicant presents eight claims for relief which have not been offered before. Claims for Relief Two through Six, all Eighth Amendment claims based upon Applicant's status, are eligible for merits review under the gateway provisions in Section 5 (a) (1) and (3) of Article 11.071, Texas Code of Criminal Procedure. Claim for Relief Number Seven (Substantive Due Process/Actual Innocence) is also reviewable under subsections (1) and (3). Claim for Relief Number One (Due Process) is eligible for merits review under Section 5 (a) (1). The eighth and final claim is one of fundamental fairness.

A. General Arguments for Merits Review of All Claims under Texas Code of Criminal Procedure Article 11.071, Section 5 (a) (1) and (3).

Claims Two through Seven comply with Section 5 (a) (3), because the facts underlying those claims establish that, had Applicant's clear and convincing evidence of radical rehabilitation and lack of dangerousness been available to her trial jury, no rational juror would have answered the second special issue (future dangerousness) in the State's favor.

Alternatively, Claims Two through Seven may be reviewed following Section 5 (a) (1) of Article 37.071, because their merit, in fact, depends upon the proof of Applicant's conduct over the entire time of her incarceration, a "factual basis" which only now is available almost a decade after Applicant filed her first state application for writ of habeas corpus and after Applicant has had full federal court review of her case without relief. The Eighth Amendment claims (Two through Six) were not ripe for review at the time of the first application, even though there was substantial evidence of Applicant's rehabilitation at that time, because the claims depend upon her status at the time of her prospective execution. Such status was unknown at the time of the first application, due to the fact that Applicant was not then under a serious threat of imminent execution, having a legitimate expectation of the state and federal court post-conviction review. Because Applicant's execution was temporally remote, her claims based upon her status were "factually" unavailable. Herrera v. Collins, 506 U.S. 390, 406 (1993) (pointing out that Eighth Amendment claims, by nature pertaining to punishment, are "properly considered in proximity to execution").

Claims for Relief Numbers One and Six -- the Substantive and Procedural Due Process and Equal Protection in Clemency claims -- may also be reviewed under Section 5 (a) (1) because Applicant, at the time of her first application, was not under the threat of serious harm and deprivation of her constitutional rights represented in this claim that now confronts her. The time of the first application was not appropriate for the filing of a Clemency request, because Applicant had not come even close to exhausting her avenues of relief in the court system. It follows that Applicant's claims based on an imminent deprivation of due process and equal protection rights in clemency were legally unavailable, because the Court of Criminal Appeals would have held them not at all ripe for review. See, e.g., Connor v. State, 877 S.W.2d 325, 325 n.1 (Tex. Crim. App. 1994) (holding a claim involving a punishment issue not ripe for review when the Court's remand with permission to refile motion for new trial might render it moot); Herrera, 506 U.S. at 406 (finding Eighth Amendment claims ripe, and therefore reviewable, at the time of punishment).

Most importantly, the Court of Criminal Appeals would have rejected consideration of all of Applicant's Claims for Relief at the time of the first application, because there then existed the potential that Applicant's conviction or sentence would be overturned by a court, rendering moot the issues of status at the time of execution and clemency rights. Connor, supra. All of the claims were legally unavailable at the time of the first application and, therefore, may be addressed on their merits now. Tex. Code Crim. Proc. art. 11.071, Section 5 (a) (1).

Refusal by the Court of Criminal Appeals to consider the merits of any of these six claims, given the facts, would be so great a violation of fundamental fairness as to "shock the conscience," the point made in Claim for Relief Number Eight. See Evans v. Muncy, supra.

B. Specific Argument for Merits Review of Applicant's Claims for Relief Two through Seven on the basis of Texas Code of Criminal Procedure Article 11.071, Section 5 (a) (3).

Applicant's Claims for Relief Two through Seven are eligible for merits consideration by this Court and the Court of Criminal Appeals, because Applicant can show "by clear and convincing evidence, [that] 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." Tex. Code Crim. Proc. art. 11.071, §5 (a) (3). The legislative history of Article 11.071 clearly demonstrates that its gateway provisions in Article 11.071, § 5 (a) (2) and (3), were intended to duplicate the U.S. Supreme Court's actual-innocence successor habeas rules. Ex parte Raymond Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997). Applicant is actually innocent of the death penalty because she no longer qualifies as a death-eligible offender. See, e.g., Sawyer v. Whitley, 505 U.S. 333, 342-47 (1992) (explaining "actual innocence of the death penalty").

The "actual innocence of the death penalty" standard in Sawyer -- which unquestionably forms the model for Tex. Code Crim. Proc. art. 11.071, §5 (a) (2) and (3) -- bases the former gateway procedures for federal court consideration of the merits of claims in a successor habeas petition on the Eighth Amendment requirement that states use objective factors in narrowing the class of offenders eligible for the death penalty. Whitley, 505 U.S. at 341-43. In outlining this federal court-created gateway, the Supreme Court explained in Sawyer that, in addition to showing "cause" and "prejudice," a petitioner could gain merits review in the federal courts by demonstrating her "actual innocence" with clear and convincing evidence. Sawyer, 505 U.S. at 339-41. The Court closely examined a number of possible permutations of "actual innocence" as a catalyst for court review in a capital case:

The present case requires us to further amplify the meaning of "actual innocence" in the setting of capital punishment. A prototypical example of "actual innocence" in a colloquial sense is the case where the State has convicted the wrong person of the crime. . . . [I]n rare instances it may turn out . . . that another person has credibly confessed to the crime, and it is evident that the law has made a mistake. . . .

It is more difficult to develop an analogous framework when dealing with a defendant who has been sentenced to death. The phrase "innocent of death" is not a natural usage of those words, but we must strive to construct an analog to the simpler situation represented by the case of a noncapital defendant. In defining this analog, we bear in mind that the exception for "actual innocence" is a very narrow exception. . . .

[T]here are three possible ways in which "actual innocence" might be defined. The strictest definition would be to limit any showing to the elements of the crime which the State has made a capital offense. The showing would have to negate an essential element of that offense. We reject this submission as too narrow, because it is necessary to the statement in Smith that the concept of "actual innocence" could be applied to mean "innocent" of the death penalty. 477 U.S., at 537, 106 S.Ct., at 2668. This statement suggested a more expansive meaning to the term of "actual innocence" than simply innocence of the capital offense itself. . . .

The most lenient of the three possibilities would be to allow the showing of "actual innocence" to extend not only to the elements of the crime, but also to the existence of aggravating factors, and to mitigating evidence that bore not on the defendant's eligibility to receive the death penalty, but only on the ultimate discretionary decision between the death penalty and life imprisonment. This, in effect, is what petitioner urges upon us. . . .

Sensible meaning is given to the term "innocent of the death penalty" by allowing a showing in addition to innocence of the capital crime itself a showing that there was no aggravating circumstance or that some other condition of eligibility had not been met.

But we reject petitioner's submission that the showing should extend beyond these elements of the capital sentence to the existence of additional mitigating evidence. . . . [P]etitioner's standard would so broaden the inquiry as to make it anything but a "narrow" exception to the principle of finality.

Sawyer, 505 U.S. at 343-45 (emphasis added). A proper showing of "actual innocence of the death penalty," therefore, "hones in on the objective factors or conditions that must be shown to exist before a defendant is eligible to have the death penalty imposed." Id. at 347.

The Supreme Court held that the "actual innocence" requirement must focus on the aggravating factors making a defendant eligible for the death penalty (their presence or absence), rather than on additional mitigating evidence that does not relate to those aggravating factors. Id. at 347-49. Sawyer had been convicted of first-degree murder in Louisiana, a state with a "balancing" capital sentencing statute, and the jury found two aggravating factors that elevated his punishment to death: "that the murder was committed in the course of an aggravated arson, and that the murder was especially cruel, atrocious, and heinous." Id. at 348. Sawyer had argued that ineffective assistance on the part of his trial counsel kept certain psychological evidence from consideration by the jury at punishment. Id. The Supreme Court found that this evidence related neither to Sawyer's guilt/innocence of the crime nor to either of the two aggravating factors found by the sentencing jury. Id. The Court held that "[e]ven if this evidence had been before the jury, it cannot be said that a reasonable juror would not have found both of the aggravating factors that make petitioner eligible for the death penalty." Id. at 348-49. Because neither aggravating factor was affected by Sawyer's evidence, the Court refused to entertain the merits of his claim, concluding:

We therefore hold that petitioner has failed to show by clear and convincing evidence that but for constitutional error at his sentencing hearing, no reasonable juror would have found him eligible for the death penalty under Louisiana law.

Id. at 350.

In Texas, the two special issues in former Tex. Code Crim. Proc. art. 37.071(b)(1) and (2), under which Applicant was sentenced, performed the constitutionally-required narrowing function. Jurek v. Texas, 428 U.S. 262 (1976). Texas law required the jury to answer "yes" to both of the special issues -- whether the defendant's crime was "deliberate" and whether the defendant posed a risk of future dangerousness -- in order to find the defendant to be death eligible. The Texas Court of Criminal Appeals holds that evidence of rehabilitation, or the prospect of rehabilitation, pertains to future dangerousness. Jackson v. State, 822 S.W.2d 18 (Tex. Crim. App. 1990) (holding that in "light of the absence of any evidence or any suggestion of rehabilitation . . . the error by the prosecutor during voir dire in limiting the veniremembers' consideration of rehabilitation to his view of what constituted a continuing threat to society in the context of special issue number two is harmless"); see Wilkerson v. State, 881 S.W.2d 321, 328, 344 (Tex. Crim. App. 1994) (Baird, J., dissenting) (finding weight of "evidence suggests that appellant has a reasonable chance of rehabilitation and is probably not a continuing threat to society"). The jury's "yes" answer to Special Issue Two, therefore, directly rejected the prospect that Applicant could ever be rehabilitated.

As the evidence developed infra will demonstrate, Applicant is now actually innocent of the death penalty because she no longer poses a danger to anyone, having been radically, completely rehabilitated. She also is ineligible because her execution would not serve the purposes of the capital sanction and society now rejects execution of capital inmates that are completely rehabilitated. She is ineligible because her execution would amount to the equivalent of a mandatory death penalty, which has been condemned by the Supreme Court. Had Applicant's jury been presented the clear and convincing evidence that now exists of Applicant's rehabilitation, no reasonable juror could have found her eligible for the death penalty under Texas law. See Sawyer, 505 U.S. at 350. The transformation is so complete that prosecutors who knew her at the time of her trial and codefendant Danny Garrett's trial no longer recognize her to be the same person who committed the offense. Applicant will show, infra, how her sentence of execution now violates the Eighth Amendment Cruel and Unusual Punishment Clause's proportionality requirement. As a threshold matter, however, it is important to stress that the evidence of Applicant's reformed character, unlike the evidence offered by the petitioner in Sawyer, is directly relevant to one of the two Texas statutory requirements for death-eligibility, and it negates that statutory requirement. Since execution of a defendant who was actually innocent of the death penalty would violate, in itself, the Eighth and Fourteenth Amendments, no additional constitutional violation, as implied by the language of §5 (a) (3), need be shown by Applicant's proof.

VI.

RELEVANT FACTUAL HISTORY

Evidence relevant to Applicant's claim that her status as an authentically and completely rehabilitated offender now renders her ineligible for punishment by the death penalty falls into three categories: 1) evidence of her intoxication at the time of the offense which the jury was effectively prevented from considering as diminishing her culpability under the first special issue at the punishment phase; 2) evidence of her beginnings toward rehabilitation at the punishment phase, which the jury may not have been able to fully apprehend as a basis for answering "no" to the second special issue in the absence of any specific instruction that they could consider mitigating evidence; and 3) evidence of Applicant's continued, remarkable, and total reformation, the convincing positive influence she currently has on youths and others as a result of her spiritual renewal, and recognition by the State's representatives, inter alia, of her moral and spiritual transformation.

1. Trial Record Evidence Relevant to Rehabilitation and Lack of Dangerousness.

Both Applicant and the State proved at the punishment stage that, when the offense occurred, she was very high on speed, alcohol, and a wide variety of other pharmaceuticals. Approximately two weeks prior to the offense and continuing through the night of the offense, Applicant was using methadone, heroin, dilaudid, valium, placidyls, somas, wygesics, percodan, mandrex, marijuana, as well as consuming large quantities of alcohol. 28 S.F. 313. On the weekend before the murders, Applicant ingested a routine array of pills -- valiums, placidyls, percodans, somas, and wygesics -- and also "was shooting a lot of speed." 28 S.F. 333. Because she was shooting speed, she used less dilaudids. 28 S.F. 334. At the time the offense occurred, Applicant had not slept for three nights. As she explained, "I was taking the pills, shooting more speed. The longer you stay awake, the more you need to keep you awake, of the speed." 28 S.F. 335.

Kari Garrett (recalled) ----- The State put on Kari Garrett and Douglas Garrett again at the punishment phase. Kari Garrett testified about a prior altercation Applicant had with Jerry Lynn Dean, when she punched him in the eye about a month before the offense. Id. at 7. She testified that Applicant and Danny Garrett mentioned killing Jimmy Leibrant and Ronnie Burrell, because they were afraid they would reveal the offense. Id. at 9. On cross-examination, Kari Garrett related that Dean had "called out" Applicant once after the time she hit him. Id. at 11. Kari expressed that she and Doug had been afraid of Applicant. Id. at 16. She testified that Applicant made part of her living as a prostitute, within three years of the offense. Id. at 18.

Douglas Garrett (recalled) ----- Doug Garrett added that Danny Garrett had talked to him about Ronnie Burrell in a manner that suggested Danny was going to frame and kill Burrell. Id. at 24. Doug alleged that Applicant, who was not present, later asked if Danny had talked to him about Burrell. Id. Doug corroborated Kari Garrett's fears about Danny and Applicant prior to their arrest. Id. at 35.

Dr. Barbara Felkins, M.D. ----- Barbara Felkins, M.D., a psychiatrist, testified for the defense. Id. at 38. Dr. Felkins related that Applicant started smoking marijuana and regular cigarettes around the age of eight. Id. at 66. At ten, she began her first use of "IV Heroin." Dr. Felkins described massive drug use as an adolescent with no break except for one two-week period. Id. Felkins revealed that, in the several hours prior to the crime, Applicant had done at least three separate injections of speed. Id. at 71. Felkins described drug-induced psychosis as producing circumstances in which "the person . . . [is] unable to distinguish reality, unable to ascertain the affect of their actions, whether their actions are right or wrong," and opined that, at the time of the offense, Applicant was "temporarily psycho[tic] due to the ingestion of drugs, especially the speed or the methamphetamine." Id. at 72-73. Felkins opined that Applicant would be able to control her behavior in the structured situation of prison. Id. at 81. She added that, if Applicant were "placed in prison [and] denied access to drugs" she would not be a threat to society. Id. at 82.

Felkins noted that Applicant was extraordinary in comparison with others whom she had known with similar backgrounds: "Karla didn't try to lie to me. She didn't try to manipulate me and she didn't try to mislead me in any way. I'm used to that out of drug addicts, that's their whole way of life, and Karla didn't do that." Id. at 83. Felkins testified that she was "more hopeful" about Applicant's future, because Applicant was not denying her (addiction) problem. Id.

On cross-examination, Dr. Felkins admitted that her medical opinion about Applicant could have been altered had Applicant manipulated her or given her false information. Id. at 88. The prosecutor, Joe Magliolo, attempted to get Dr. Felkins to admit to elements that might suggest intentionality (as opposed to temporary psychosis): that Applicant knew there was a motorcycle in Dean's apartment, that she knew someone had a map to the interior of the apartment, that she had a key to the apartment. Id. at 90-93. Felkins stated that Applicant said the key was in her pants, but that she was not sure who gained entry to the apartment. Id. at 93. Felkins admitted that Applicant had discussed with her how angry she had been with Dean for several weeks. Id. at 95-96. "[A]ll kinds of . . . threats and dares" were made. [T]hey were going to do this and they were going to do that." Id. at 96. Felkins admitted that Applicant may have made some threat against Dean's life earlier in the day. Id. She said Applicant did not talk about that before going over to the apartment, although she did talk about stealing Dean's motorcycle. Id. Dr. Felkins described the facts of the crime, as related to her by Applicant. Id. at 100-105. Felkins opined that Applicant was psychotic at the time of the offense, even though she made attempts to hide the stolen property. Id. at 112. Felkins conceded that Applicant's later discussions with others about getting rid of witnesses would not be an indicator of psychosis at that time. Id. at 115.

Dr. Felkins stated that Applicant would have developed a tolerance to all of her medications, except speed. Id. at 118. Applicant was taking speed, Dilaudid, and cocaine intravenously. Id. at 119. Felkins concluded that it was unlikely that Applicant actually received any sexual gratification from the crime, as her comments had suggested. Id. at 121. She found no perversity in Applicant. Id. at 122.

On redirect, Dr. Felkins stated that it was the "overall picture" of the offense that led her to believe that the drugs, especially speed, had such a strong impact on Applicant's participation. Id. at 125. Felkins affirmed that, based upon her experience, she could tell the difference between drug addicts that manipulated her and those that did not. Id. at 126. She stated that, without access to drugs, Applicant would not be a dangerous person. Id.

On re-cross, Felkins reiterated that she felt "very certain that Karla would not be a danger if she was not taking the quantities of speed that she had been taking prior to this incident." Id. at 127.

On redirect, Felkins said that Applicant described experiencing physical symptoms when she first went into jail that indicated drug withdrawal. Id. at 132.

Dr. James Hayden, M.D. ----- Dr. James Hayden, M.D., testified for the defense in support of Dr. Felkins' findings. Like Felkins, he had years of experience in treating persons having problems with drug abuse and dependency. Id. at 136. Hayden stated that, based upon the amount of drugs Applicant was using, she would have been very susceptible to drug psychosis. Id. at 139. He elaborated that persons in a drug psychosis are able to do purposeful actions as well as things persons generally would never consider doing. Id. at 143. Hayden stated that speed is the most common drug for causing psychotic reactions. Id. He described it as causing a great deal of anxiety and paranoia, and stated that the longer someone on speed does not sleep the more that person may become paranoid. Id. at 144.

Dr. Hayden testified that, under the controlled circumstances of prison where drugs were unavailable, someone like Applicant would not be likely to commit an offense like hers again. Id. at 151. "My impression is that there is probably no correlation between what is done by someone in a psychosis and what their long-term effect is going to be as members of society." Id. at 153. The key to rehabilitation, in Hayden's view, was removal of the drugs. Id. at 154. On cross-examination, Hayden defined psychosis as a state in which the individual was out of touch with reality, and agreed that there was a difference between psychosis and the legal definition requiring discernment of right from wrong. Signs of intentionality, however, would not necessarily indicate lack of psychosis (i.e., lack of detachment from reality). Id. at 164. Hayden explained that "people particularly in amphetamine psychosis are unusual in that they generally have a fairly clear consciousness, but their reality testing is all shot." Id. They can discern by way of consciousness who someone is in their presence and factually what is happening, while at the same time place an interpretation on the facts wholly contrary to reality. Id. at 165.

The prosecutor gave Dr. Hayden a detailed version of the State's theory of the offense, with a focus on elements indicating intentionality. Id. at 166-69. Hayden responded, again, that purposeful action did not rule out psychosis and also concluded that it would not be possible to tell if a person in such circumstances knew the difference between right and wrong. Id. at 169. Hayden suggested that the amount of violence in a crime would be an indicator of possible psychosis. Id. at 170. Hayden observed that "the most common problem with people who get into high doses of speed or cocaine for long periods of time . . . is that they become psychotic." Id. at 172.

On further cross examination, Hayden agreed that someone who was "a little mean to start with" could have their personality molded by drug use such that they would be more likely in the long term to commit criminal acts of violence. Id. at 180. On redirect examination, he also affirmed that, if someone is antisocial to begin with and she is put on drugs and taken off again, she will be as antisocial as when she started. Id. at 198. He added, however, that if a person is antisocial because of the drugs and she is taken off the drugs, "there is a greater chance [she's] going to improve." A "strong indication" of whether she would improve would be to look at her behavior after being removed from the drugs. Id. at 199, 200. Hayden agreed, on re-cross, that if a person was a "real good actor" she might "keep [her] act clean at least for a while." Id. at 202.

Glenn Michael Rogers ----- Glenn Michael Rogers, a real estate developer who had known Applicant for twelve years, testified that Applicant always had a reputation in the community as a nonviolent person. Id. at 205. Applicant rode horses at Mr. Rogers' family's farm, and he saw her every few weeks over the course of the year before the offense. Id. at 207. Rogers was aware of her drug abuse. Id. at 206. The prosecutor asked Rogers if he had been aware of some violent incidents -- a fight with a schoolmate, a reputation for challenging people in clubs to fight -- and he was unaware of these. Id. at 209. He was aware of the incident with Jerry Lynn Dean, and said that he had heard an explanation that Dean had provoked it by tearing up a "lot" of pictures of Applicant's mother whom Applicant had saved just after her mother's death. Id. at 210. Rogers described Applicant's assault on Dean (a month or so before the offense) as "unusual for Karla's behavior." Id. at 210. Rogers added that he had "never heard of Karla actually ever making violent threats to people, period." Id. at 212.

Zelda Donaldson ----- Zelda Donaldson, Applicant's grandmother, testified that she had been visiting Applicant regularly since she was incarcerated for the offense, and that she had seen "a big change in her attitude. . . her personality." Id. at 222-23. She described Applicant as more alert and interested than she had been in the previous two to three years. Id. at 225. Donaldson said Applicant's attitude had changed in that "she realizes what's going on around her now, where the last few years I don't think she, you know, really thought too much about it." Id. Donaldson reported that Applicant cared for a little girl, acting as her mother, over a four or five year period. Id. at 226. The child had been deserted by her parents in the middle of the divorce process. Id. After Applicant divorced her first husband, she left the "well-behaved" child with his parents. Id. at 227.

Lawrence Tucker ----- Lawrence Tucker, Applicant's father, testified that Applicant was ten when he and her mother separated. Id. at 232. Tucker reported that he was given custody of Applicant and her two sisters, but that after three years, the two older sisters were giving him "trouble" and Applicant was beginning to do likewise, so he sent them to their mother in hopes that she could "correct it." Id. Tucker did not see Applicant regularly after she went to live with her mother. He noted a big change in her attitude around the time of the end of her first marriage, illustrated by more pronounced foul language. Id. at 234. After Applicant was confined for the present offense, Tucker visited her regularly in the Harris County Jail, and noted a big change in attitude, this time for the better:

I have not heard one cuss word from her. She has told my wife and myself both, God bless us, which I never heard from her. She led the -- had called at Christmas and had lead [sic] the choir, sang Christmas carols and so forth. I doesn't seem like the same person that I knew.

Id. at 235.

Linda Willett ----- Linda Willett, Harris County Deputy Sheriff stationed in the general population area of the Harris County Jail, testified that Applicant had been on her floor for "quite a while," that she had known Applicant for "quite a while." Id. at 239. Willett testified that she had never had any problems with Applicant, and that she was not "at all a threat to other inmates or guards and to herself." Id. at 240. Willett expressed her opinion that, under the confined conditions of general prison populations, Applicant would not be a threat in the future to guards or inmates in any institution. Id. at 241, 263. She pointed out that, in the general population at the Harris County Jail, the only time prisoners were required to be in their individual cells was from 10:30 P.M. at night until the morning. Id. at 263-64. Willett affirmed that she based her opinion on her own observations of Applicant. Id. at 264.

Rebecca Lewis ----- Rebecca Lewis, Staff Chaplain at Harris County Jail, testified that she had known Applicant about four months, and first met her when she was attending Alcoholics Anonymous meetings in the jail. Id. at 267. Lewis stated that Applicant never missed her bible study meetings, and that she was training Applicant to go back into the tank and hold her own bible studies. Id. at 268. She stated that she had seen a positive change in Applicant. Id. at 269. Lewis testified that Applicant was not fooling her about the sincerity of her conversion or "playing church" with her as other inmates might. Id. at 271. Lewis stated:

I think she realizes that she's had some problems in her life. And she's working very hard on getting a handle on those problems. And her faith in God is giving her a basis for getting, for a beginning in that area.

Id. at 271. On cross-examination, the prosecutor asked if the fact that Applicant was "looking at the death penalty" had anything to do with her finding religion, and Lewis responded that she thought Applicant was "prepared for anything that happens." Id. at 274.

Oouida Dorr ----- Oouida Dorr, a volunteer alcohol and drug counsellor in the Harris County Jail, testified that she conducted weekly alcohol and drug counselling sessions attended by Applicant. Id. at 277. She had seen a positive change in Applicant since she first started coming in December 1983. Id. at 278.

Applicant ----- Applicant testified. Id. at 281-480. She stated that she dropped out of school before completing seventh grade. Id. at 282. Applicant started shooting heroin while living with her father and under the influence of her two older sisters who introduced her to their "biker" friends. Id. at 281-84. Applicant stated that her mother helped her "kick" her heroin habit, after discovering Applicant at her father's house, when she was twelve-years-old, with tracks all over her arms. Id. at 285. Applicant described a process of drug taking after she went to her mother's house in which she would get "strung out and kick," alternating heroin with pills and marijuana. Id. at 285. Applicant stated she was about thirteen-years-old when her mother first let her travel with the Allman Brothers Band on tour. Id. at 286. On those trips, she experienced her first cocaine use. Id. at 287. Applicant moved in with Steven Griffith, whom she later married, when she was fifteen or sixteen years old. Id. at 288. She and Steven kept and took care of the child of friend for the five years they were together. Id. at 290-91. About four months after splitting up with Griffith, Applicant took up prostitution to make her living. Id. at 292. She continued to work as a prostitute up until a few months before the murders. Id. Throughout all this time Applicant was on drugs. Id.

Applicant had known Jerry Lynn Dean's wife, Shawn Dean, for sixteen years. Id. at 293. Shawn Dean travelled with Applicant and the Allman Brothers. Id. at 294. Applicant testified that she and Shawn were like "Siamese Twins," they were so close. Id. She first met Jerry Lynn Dean right after she had split up with Griffith and had obtained an apartment with Shawn Dean (nee Jackson). Id. Applicant met Danny Garrett through a doctor the mutually used to get illegal prescriptions. Id. at 296. She explained that Shawn Dean was also heavily into drug use. Id. at 298. She described an incident, occurring about a year before the offense, in which Jerry Lynn Dean took the only photographs she had of herself with her mother and "stabbed up" Applicant in the pictures. Id. at 300. From the time this occurred until the time of the instant offense, Applicant said she saw Jerry Lynn Dean only once: on the occasion in which she assaulted him in his car. Id. at 302. Applicant stated that this happened because of her anger against Dean over the photographs. Id.

In February 1983, Applicant moved in with Danny Garrett and her sister Kari Burrell, who was married to Ronnie Burrell. Id. at 304-05. Applicant's drug use accelerated. Id. at 305-06. Applicant started using speed when Ronnie Burrell moved into their house, because Burrell was a "speed freak," who manufactured the drug along with Jimmy Leibrant. Id. at 308. Burrell and Leibrant were Applicant's sole source for the drug. Id. at 308. Applicant described heavy drug usage in the two-week period prior to the offense. Id. at 313.

Two to three weeks before the offense, also, Shawn Dean came to live with Applicant and the others after Jerry Lynn Dean had punched her. Id. at 315, 319. Discussions were had between Applicant, Danny Garrett, and Shawn Dean about Jerry Lynn Dean, and in one such discussion, Danny Garrett brought up the ideas of stealing Dean's motorcycle and, possibly, killing Dean in the process. Id. at 318, 322. Shawn Dean suggested that the best way to get back at Jerry Lynn Dean was to steal his motorcycle. Id. According to Applicant, at that point, Danny Garrett opined that Jerry Dean might have to be killed in the process of stealing the bike. Id. at 322. Applicant admitted to other conversations in which she discussed "offing people," stating that she, Danny, Jimmy Leibrant, and Ronnie Burrell were present. Id. at 323. These conversations were about killing people in the process of plundering methamphetamine labs. Id. at 326. According to Applicant, Jimmy and Ronnie were pushing these suggestions. Id.

Applicant obtained the key to Jerry Lynn Dean's apartment while washing her and Shawn Dean's clothes and put the key in her own pocket. Id. at 332.

Applicant described her drug use leading up to the night of the offense. She stated that speed made her particularly jumpy. Id. at 334. She described the sleepless nights, and the fact that she was wired and had to be doing something. Id. at 337. On the night of the offense, Jimmy Leibrant, Danny Garrett, and Applicant discussed going over to Jerry Lynn Dean's house to "case the place out," to prepare for a return trip to break in. Id. at 340. Danny Garrett drew out a floor plan of Dean's apartment. Id. Danny Garrett carried a shotgun with him when they left for Dean's place. Id. at 341. Jimmy, Danny, and Applicant split up when they arrived at the apartment complex, and Danny and Applicant subsequently met at Dean's door. Id. at 344. Garrett told Applicant to open the door with Shawn Dean's key, which Applicant had been carrying around with her own keys. Id. at 344-45.

Applicant testified that, after entering Dean's bedroom, she sat on Dean who was located on a mattress on the floor. Id. at 347. Dean recognized her in the dark, and told her, "We can work it out. . . . I didn't really file charges on Shawn. . . ." Id. Applicant and Dean wrestled, and then Garrett intervened, hitting Dean over the head repeatedly with a hammer. Id. at 348. Applicant found and turned on the lights to see Dean lying face down on the mattress, his body "gurgling." Id. at 351. Wanting to "stop him from making that noise," Applicant took a nearby pickax and hit him in the back with it four or five times. Id. Applicant denied Leibrant's testimony that he saw her smiling as she did this. Id. at 352. She admitted, otherwise, that Leibrant saw her, and added that was the last time she saw him at the apartment. Id. at 353. When Applicant told Garrett that Dean was still "making that noise," Garrett repeatedly struck Dean with the pickax and the noise stopped. Id. at 354-55.

Applicant then discovered that someone was "underneath some covers laying up against the wall by the door." Id. at 356. She swung the pickax and hit Deborah Thornton in the shoulder, not being able to discern whether Thornton was a man or woman at that moment. Id. Thornton rose up and struggled with Applicant, grabbing the pickax. Id. at 357. Garrett came in the room, grabbing the pickax too, and separated Applicant from Thornton. Applicant testified that she then went into the living room at that point and carried boxes out to Garrett's car. She then returned to the bedroom where she saw Garrett kill Thornton with the pickax. Id. at 359-60. After obtaining the motorcycle frame, she and Garrett left, Danny in his car, and Applicant driving Dean's vehicle. Id.

Applicant did not recall how she ended up making the decision to go to Doug Garrett's house to leave the motorcycle frame there. Id. at 361. She testified that she did go there, however, in order to hide the part. Id. Applicant admitted telling Doug Garrett then that she "got a nut" every time she swung the pickax at Dean. Id. at 362. Applicant stated that this was not true, and that she had exaggerated her account to Doug in order to meet up to the expectations of the crowd with which she was running. Id. at 363. Applicant exaggerated her in her story about the events to her sister Kari. Id. at 364.

Applicant admitted disposing of the hammer (murder weapon) in sand pits across the street from their house, after she discovered during a conversation with Ronnie Burrell, Jimmy Leibrant, and Danny Garrett that the hammer was in Leibrant's truck. Id. at 365. Applicant also admitted post-offense conversations about "getting rid" of witnesses: one between Ronnie Burrell, Danny Garrett, and Applicant (about Jimmy Leibrant); the other between Jimmy Leibrant, Danny Garrett, and Applicant (about Ronnie Burrell). Id. at 373. Applicant denied conversations about any kind of actual plan against these two, and ever discussing doing harm to Kari or Douglas Garrett. Id. at 374.

Applicant stated that she did not wear gloves any time before or during the offense, but that Danny Garrett had taken gloves over to Dean's apartment. Id. at 375.

Applicant expressed remorse, in part stating, "I've hurt a lot of people, and I wish that I could take the hurt out of everybody and put it all on myself." Id. at 382.

On cross-examination, the prosecutor questioned Applicant about being a prostitute, and in the process an actress, and whether she was putting on an act for the jury. Id. at 384. She denied putting on an act for the jury. Id. The prosecutor reminded her that, on her direct examination, she said she "had no quarrel" with the jury's verdict. He pointed out that the jury had found her guilty of capital murder, which meant she intentionally caused someone's death, and she agreed. Id. at 384. Applicant stated that she did not know what her intent was at the time she hit Dean with the pickax. Id. at 385-86. She denied saying to Douglas Garrett that she "run the axe home." Id. at 387-88. She admitting telling him she "come with every stroke," but added that it was exaggeration. Id. at 388. She admitted that, by the big talk, she hoped to impress her friends to include her on future escapades (raiding drug labs) in which more people might be killed. Id. at 388-89. Applicant stated that she did not know what she was thinking when she entered the apartment nor when she assaulted Dean. Id. at 388-93, 403. Applicant admitted hearing Danny Garrett say on tape there were no prints in the apartment because they had gloves on, but denied that she wore gloves or knew at the time whether Garrett wore any. Id. at 397-98.

Applicant denied a number of things the prosecutor alleged her sister Kari claimed Applicant had said about the crime: that Applicant had told her they went to the apartment to steal the motorcycle; that Applicant had said she killed Thornton because Dean had spoken Applicant's name; that Applicant had threatened Dean with the pickax; that Garrett had shoved Thornton down and told her to keep the covers over her head; that Applicant first picked Dean in the temple; that Applicant gave her sister Thornton's wallet for her birthday; that she got tired from picking Dean; that they left because the sun was coming up; that she told Kari someone butted Dean with the shotgun Garrett carried with him. Id. at 397-402, 409, 414, 455, 465. The prosecutor criticized Applicant for agreeing about her sister's testimony implicating Garrett and disagreeing about some of her sister's testimony about her. Id. at 404-05. Applicant admitted burning the title to Dean's car in the fireplace. Id. at 410-11. Applicant admitted taking out the parts stolen from Dean and wiping them clean of prints on the morning after the offense. Id. at 413.

Applicant did not deny that she hated Jerry Lynn Dean. Id. at 416. She described disliking him because he had refused to take his motorcycle out of her livingroom and it leaked on her carpet. Id. at 417. Applicant agreed that, on the occasion when she hit Dean in the eye, she had challenged him to fight her "fair and square," but Dean had refused to get out of his car. Id. at 419. Applicant described a physical tussle she had previously with Dean, in which Dean hit her first and she retaliated, hitting him in the jaw. Id. at 420. Applicant testified that, because there were a number of witnesses, Dean was prevented from harming her on that occasion. Id. Applicant stated that she could not have "held her own" with Dean, because he was a man. Id. at 421.

Applicant admitted that she had severely beaten a classmate when she was 14 years old. Id. at 421. She admitted to another fist fight "with a girl at a foosball place," when she was trying to protect Shawn Dean. Id. Applicant admitted to another fight, when she was fifteen, with a man and a woman who were in their thirties. Id. at 425. She admitted that, at the time of the deaths of Dean and Thornton, she was "no stranger to violence or to fighting." Id.

Applicant discussed again on cross-examination her drug use prior to the offense, her activities up to the offense, and the offense itself. Id. at 425-72. Applicant denied recalling any discussion on the day of the offense about killing Dean, although she admitted participating in such talk a couple of weeks before. Id. at 433. She agreed again with the jury finding against her of capital murder. Id. at 472. Applicant again admitted to bragging and big talk when she discussed going on other raids after the murders. Id. She said she was just talking big to impress Danny Garrett and his friends, when she talked about "getting rid of anybody." Id. at 473. At the close of cross-examination, Applicant admitted going to a lawyer to ask if she should talk to the police or not, and also agreed that, five weeks after the offense, she was still not aware that she had "done anything wrong [nor was she] aware of reality." Id. at 475.

On redirect, Applicant admitted her participation in the crime again, that she talked and bragged about it, but said her experience of it was like reading a book, putting herself "in the book and saying that I was the person that did that. It just wasn't real to me." Id. at 476. Applicant was asked, if she had not been arrested on July 21, 1983, would she have "continued at that point to be a threat, a danger to other people?" Id. at 476. Allowed to respond over the objection that her answer would probably be self-serving, Applicant stated "I probably would have been." Id. at 477. She affirmed:

[F]irst of all the drugs that I was doing were making me to the point where I really didn't care what I was doing. I had no feelings about anything. The people that I were [sic] around were always talking about stuff like this. The environment I was in, I was trying to put myself in that category.

Id. Applicant denied, however, that she was offering this analysis as an excuse for what she did. Id. at 478. She affirmed that, since incarceration, she had been sober, and that she now realized how terrible the things were that she had done. Id.

On re-cross, Applicant denied she was blaming the drugs for what she had done. Id. at 478. She did say, however, that "if you take away the drugs I would have never been in that situation from the time I was ten years old on up." Id. at 479. She also attributed her actions to her own state of mind and attitude. Id.

Dr. James Nottingham, M.D. ----- The State also put on the testimony of a physician, Dr. James Nottingham, Jr., who had interviewed Applicant and listened to the tape made by Douglas Garrett. Dr. Nottingham testified that he did not find Applicant to be suffering from a drug induced psychosis at the time of the offense (29 S.F. 488), and that he believed she had "an awareness of rightfulness and wrongfulness" at the time (29 S.F. 489). Dr. Nottingham also testified, however, that use of speed decreased inhibitions and made it more likely that someone would do something under its influence that they would otherwise not do. 29 S.F. 500. He stated that if someone who took drugs daily stopped their drug consumption, their normal inhibitions might return, assuming she was not originally a sociopath. Id. at 502-03. Nottingham held that, if a person was not a mean person, he or she could be made mean through drug usage. At the same time, however, if he or she stopped using the drugs there was a "good probability" he or she would return to normal. Id. at 503. Nottingham observed that an individual's basic personality structure is set by the age of seven, with most of it actually established by the age of five. Id. at 504. Nottingham asserted that it could not be said whether drug usage can make a person antisocial, although such usage can make someone behave in antisocial ways. Id. at 505. He concluded, "[T]he only way to really know is to stop the drug usage over an extended period of time and see what the person's like." Id. On redirect examination, Dr. Nottingham made the following observations from a hypothetical based on Applicant:

Magliolo: [I]f you could trace that history from fairly early, that violent history of beating up on people, whipping up on people, settling things with your fists out in the street; then once that is an established, acted-out personality then that's going to be something that may, that probably is going to be with a person forever?

Nottingham: Yes, sir.

Magliolo: And if that person were to take a bunch of drugs, they may just do a horrendous act as opposed to someone who was nonviolent and takes a lot of drugs?

Nottingham: And in general that's true, yes, sir.

Id. at 507-08. Immediately on re-cross, however, Dr. Nottingham added:

Arnold: . . . I want to talk about just basically the same person, this hypothetical person Mr. Magliolo was talking about. . . . Let's assume that the person does have this history, and this history starts at let's say the age of 14. And this history ends at the age of 23. And it's interspersed with things, one ending with something very violent bizarre thing. [sic] But this constant continued drug use that I had mentioned earlier, this virtually permanent state of intoxication that began when they were about 10, and by the time they were 12 . . . they're up to the point where they're shooting heroin. Basically you don't know or have any way of knowing, or do you, whether or not these violent acts are drug related as opposed to being just a mean person, do you?

Nottingham: Well, they're obviously drug related. If by your definition of what this person has been, they have essentially been on drugs since the age of 10, and on heavy drugs since the age of 12. Again, the person who would do that, who would engage in that activity, that tells us something also. And as to what that person -- obviously that person has missed an awful lot of maturation and growing up that most of us went through during those years, and if they were to stop drugs, we don't know what we would end up. [sic] Probably an adolescent. That person has not been through adolescence yet.

Id. at 508-09. Dr. Nottingham concluded that, in determining whether the person described was a nice person, information from before the age of 10 would be pertinent. Id. at 510. "A child's history . . . will give you some help in determining how they might behave later in life." Id. at 511. Nottingham stated that Magliolo had given him a significantly different hypothetical: one of an "individual who demonstrated this kind of behavior and then used drugs." Id. (emphasis added). Whereas, the hypothetical offered by Arnold was of a "person using drugs all through this." Id.

Dr. Jerome Brown ----- The State also introduced the testimony of Dr. Jerome Brown, a psychologist, who concurred with Dr. Nottingham that Applicant was not mentally ill, and that she could distinguish between right and wrong. 29 S.F. 553; I S.F. 264. On cross-examination, however, Dr. Brown stated that chronic abuse of drugs over an extended time could lead to mental illness, even psychosis. 29 S.F. 565-66. He filed a psychological summary regarding Applicant showing that she had been "chronically abusing illicit chemicals on an almost daily basis . . . since her early teens." I S.F. 263-64.

2. Post-Trial Evidence of Rehabilitation and Lack of Dangerousness.

Once locked up, Applicant slowly eased out of her drug fog. Beverly Lowry, Crossed Over: A Murder, A Memoir 147 (Knopf 1992). She attended her first Alcoholics Anonymous meeting with Chaplain Rebecca Lewis on December 6, 1983, in the Harris County Jail. Id. at 148. Rusty Hardin, Harris County Assistant District Attorney, who prosecuted Danny Garrett, has stated that he noted a difference in Applicant between her testimony at her own trial in April and her testimony at Danny Garrett's trial in November 1994. He described her as fuzzy in April and clear-headed by November. Id. at 147. In time Applicant began to make friends in the jail and recruit others to AA and bible study class. She began attending advanced bible study classes with the chaplain, designed to enable her to go back into the tank and lead other women in study. Id. at 149. Lewis continues to believe in the genuineness of Applicant's conversion. She told Applicant's biographer Lowry:

Karla needed the Lord for completion. I served as a character witness at [the punishment phase of] Karla's trial because she was consistent in her attitude and actions. I said that. But it doesn't help to be a character witness. Sometimes it does just the opposite. The prosecutor turns it around, he says, "But you only know her in jail, in special circumstances, you don't know her outside and you didn't know her when she committed the crime." And that's true. The way it's set up, if you tell the truth, they manipulate it. I did it for Karla. That was the first and the last time I testified for anybody.

Id. at 151.

As early as 1986, Lewis was joined by "defense attorneys, prosecutors, a police officer, even the U.S. Attorney [in Houston]" in a chorus of support by persons who have said they do not wish to see her executed. Christy Drennan, On Death Row, Pickax Murderer Finds a "New Life", Houston Chronicle, March 28, 1986. Applicant's testimony at co-defendant Danny Garrett's trial, after she had received the death penalty, was unusual for a capital inmate. Against skepticism about her motives, she stated that testifying was the "right thing to do." Id.

Applicant was alone on death row when she first arrived at the Mountain View Unit in December 1984, but was soon joined by others. She and the other women have fixed up their segregated area of the prison like an apartment, replete with table clothes and curtains. Id. They knit and produce "Parole Pal" dolls as a prison industry. Applicant took up reading, voraciously, and obtained her High School Equivalency Certificate. Applicant maintains a close relationship with Prosecutor Rusty Hardin and her trial attorneys, receiving regular visits from lead attorney Henry Oncken and his wife. She married Dana Brown, a prison ministry worker, on June 24, 1995. She participates regularly in a Christian anti-drug programs, writing letters to youths and other persons with drug problems. Applicant sends and receives a voluminous amount of mail. She receives a large number of visitors, many of whom come to see her for counselling regarding their own rehabilitation issues. A number of videos featuring Applicant have been produced for the purpose of drug abuse education. One that was produced by the Texas Department of Corrections "Scared Straight" program is widely distributed in the Texas prison system. Another was produced by Discipleship Unlimited, a prison ministry based in Wisconsin. Applicant has been featured repeatedly on the "700 Club" hosted by ex-Presidential Candidate Pat Robertson, who has made a personal plea with Governor Bush for her Clemency. Robertson is joined in his support for Applicant by President Nixon's aide Chuck Colson, who has brought his religion-based inmate rehabilitation program to Texas, with a pilot project in one of the Houston-area prisons.

Additional material supporting Applicant's rehabilitation and lack of dangerousness would include the following:

Applicant's Prison Record (Attached Exhibit 2) ----- Counsel for Applicant have obtained an entire copy of Applicant's TDCJ file, reviewed that file, and ascertained that Applicant has only two disciplinary writeups: one in February 1995 for giving another inmate a letter to mailed off of the Mountain View Unit; the other in September 1995 for failing to go to her cell when told (the record reflects that she believed she did comply with orders).

Psychological Profile Examination by Dr. George Parker, Ph.D. (Attached Exhibit 3) ----- On January 2, 1998, Dr. George Parker, an experienced forensic psychologist, did a comprehensive psychological assessment interview with Applicant, including two kinds of objective personality tests, and found that the results of his examination "support[ed] the opinion that [Applicant] has become a responsible, mature, caring, productive human being." He found nothing in his testing to suggest that Applicant was malingering or manipulative, nor that she had any psychopathic tendencies or poses any danger to anyone. Dr. Parker concluded:

[I]t is my best professional psychological opinion that Karla is no longer the same person who she was in the early 1980s. The records that I have reviewed support that opinion. The data from my examination of Karla compel that conclusion. Karla today is no longer the chemically-dependent, antisocial person who she was in the early 1980s. It is clear that she has constructively used her incarceration experience to rehabilitate herself. It is equally clear that Karla uses her time and energy today to assist in the rehabilitation of others. Karla's values, attitudes and worth as a contributing member of society are dramatically different from the way they were in the early 1980s. It is my opinion that Karla's faith in Jesus Christ is based on conviction and honesty. Finally, it is my opinion that Karla has become a productive member of our community.

Confidential Psychological Information, from Dr. George V.C. Parker, Ph.D. to David L. Botsford, dated January 7, 1998, at page 2. Dr. Parker referred to Applicant as posing an "unusual case." Id. at page 3.

Findings and Support of ex-Harris County Assistant District Attorneys Rusty Hardin and Charley Davidson (Attached Exhibits 4 and 5) ----- Hardin and Davidson tried Applicant's codefendant, Danny Garrett in 1985. Hardin notes in his affidavit that when they first approached Applicant in 1985 to see if she would testify against Garrett, he was impressed with "what appeared to be genuine remorse and a total refusal to minimize her own role and guilt." Hardin remarks: "Most testifying codefendants initially always try to minimize and qualify evidence that makes them personally look bad. Karla Tucker never did this and, in fact, was the most forthcoming and honest criminally culpable witness I have ever seen." Hardin states that Applicant was already transformed in 1985 and comments that she had been attempting to atone for what she did from that time and is "not a late blooming death row convert." Hardin says that, after Applicant's testimony at Garrett's trial, crucial to Garrett's conviction, most of the members of Garrett's jury told him they hoped one day Applicant's life would be saved. Hardin summarizes his opinion about Applicant in the following way:

The fact that a person who has already received a death sentence testified solely because it was the right thing to do is extremely relevant. This unprecedented step toward atonement should be strongly considered in assessing her fate. It is very possible that if Karla Tucker's own jury could have forecast that she was going to so honestly cooperate with law enforcement even after she had been sentenced to death, they might have thought it relevant to their determination as to whether she was a continuing threat to society. . . .

[I]f the concept of executive clemency is to have any meaning, and if the act of commutation from death to life is ever to be engaged in as an act of mercy, Karla Tucker is the most appropriate candidate I have seen.

Affidavit of Rusty Hardin, dated January 10, 1998, at 4.

Charley Davidson, Garrett's other prosecutor, notes that Applicant -- with her "very dark, lifeless eyes, like that of a shark" -- scared him at her initial court appearance with Judge Lycos. Affidavit of Charley A. Davidson, January 5, 1998, at 1. By the time of Garrett's trial in 1985, however, Applicant had totally changed. Davidson writes, "I remember commenting to Rusty that this was an illustration of what drugs, or in her case, being drug-free for the nine months she had been in jail, could do for a person. Had I not known myself what she had done to two people a year before, I would not have believed it possible of the person before us." Id. at 2. Davidson has corresponded by letters with Applicant since Garrett's trial. He writes that, although he is a strong believer in the death penalty, he also "strongly believes" that Applicant should not be executed. Id. at 3. Davidson concludes:

The Karla Tucker who killed Jerry Dean and Debra Thornton cannot be executed by the State of Texas because that person no longer exists. The Karla Tucker who remains on death row is a completely different person who, in my opinion, is not capable of those atrocities. I am comfortable enough with this belief that, if possible, I would welcome Karla into my house to meet my family. If the purpose of the death penalty is to execute an individual solely for a crime they have committed, then Karla Faye Tucker should be executed. However, if the purpose is to execute an individual for what they have done and what they now are, then Karla Faye Tucker should not die. She is no longer a threat to society. As such, even though she will not ask for it herself, I believe Governor Bush should commute her sentence to life. Based not only on what she did but what she has become, I feel justice would have been done.

Id. at 4.

Affidavit of Dr. Barbara Felkins (Attached Exhibit 6) ----- Dr. Felkins, who testified at the punishment stage of Applicant's trial, has reviewed additional information, including Dr. George Parker's report. Dr. Felkins' affidavit states, in pertinent part, that:

She had a diminished capacity from being on drugs all the time. In my testimony, I stated that Karla would not pose any risk of dangerousness if she were separated from the drugs. From examining Karla, I drew the conclusion that the speed pushed the events over the edge, leading to the murder.

Karla had already changed by the time that I interviewed her. I found her remarkably likeable, and it appears that at the present time she is a well adjusted young woman who has overcome great odds. I have worked with a lot of people who have committed crimes and have been drug addicts. Karla is different and special. I concur completely with the findings made by Dr. Parker in his recent examination of her.

Observations of Henry Oncken (Attached Exhibit 7) ----- Mr. Oncken, one of Applicant's trial counsel and a former Harris County prosecutor, a former State District Judge, and the United States Attorney for the Southern District of Texas, states that in the fourteen years since Applicant was convicted, he and his wife have traveled to Gatesville to visit with Applicant and has corresponded with Applicant. According to Oncken:

Those letter from Karla over the many years graphically display her present character and depth of her conversion. Each and every time I have visited with Karla, I come away amazed at the person I now see....

If Karla Faye Tucker was ever released from prison, I have absolutely no fear that she would be a threat to anyone. I would not hesitate to have her live in my home with my wife and me. She is no longer the person who took the lives of two people fourteen years ago. I feel she has much to offer to society today and she could, and would, be a positive influence in the lives of many people who are on the same path she was on.

These feelings come from a man who is, in every sense of the word, a law and order advocate.

Prison Guards' Petition (Attached Exhibit 8) ----- This petition, signed by a number of employees of the Texas Department of Criminal Justice, Institutional Division, Mountain View Unit, speaks for itself and demonstrates the belief that people who have been in an uncompromising position to ascertain Applicant's true character are convinced that she is rehabilitated.

Clemency Statement by Applicant to Governor Bush and the Chair of the Board of Pardons and Paroles (Attached Exhibit 9) ----- This eleven page statement should be read. Quoting even a paragraph or two would do severe injustice to the message that Applicant has sent to the Governor and the Chairman of the Board of Pardons and Paroles.

Statement by Victim Relative Ronald Carlson (Attached Exhibit 10) ----- These two letters -- one to Governor Bush and one to the Board of Pardons and Paroles -- demonstrate that relatives of one of the two victims do not want Applicant executed.

Letter by Mary Alice Wise describing Applicant's Rehabilitation (Attached Exhibit 11) ----- Ms. Wise, an eighteen year veteran of volunteer work in the Texas prisons, discusses Applicant's rehabilitation during the past years and notes that her rehabilitation should serve as a model and positive incentive to every inmate in the Texas Department of Corrections. It highlights, by implication, the negative message that an execution will send to every inmate in the Texas prisons: a message that there is no hope for clemency if Applicant is executed.

Affidavit by Linda L. Strom, cofounder of Discipleship Unlimited, Describing Applicant's Ministry from Death Row (Attached Exhibit 12) ----- This affidavit attests to the positive things that Applicant has effectuated through her ministry.

Videotape By Discipleship Unlimited, featuring Applicant (Attached Exhibit 13) ----- This videotape (which has been tendered to the Clerk of the District Court and the Clerk of the Court of Criminal Appeals) graphically displays the ramifications of Applicant's ministry and some of positive things that Applicant has done while incarcerated.

Support of 700 Club: Letter from Co-Founder Terry Meeuwsen to George Bush (Attached Exhibit 14) ----- Terry Meeuwsen discusses Applicant's conversion and the fact that she is "a walking, talking example of the miracle of redemption."

Letters of Support from Fellow Mountain View Death Row Inmates (Attached Exhibit 15) ----- These four letters are strong evidence of Applicant's rehabilitation and the effect she has had upon her fellow inmates.

Continued Correspondence with former Guards from Harris County Jail (Attached Exhibit 16) ----- These three notes/letters attest to the fact that Applicant even made an impact upon some of the guards at the Harris County Jail where she was incarcerated in the early 1980's.

Beverly Lowry, Crossed Over (Knopf 1992) ----- Describes Applicant as the most loving person she's ever met.

Letter from Juror Paul Ward (Attached Exhibit 29) ---- Mr. Ward, one of the jurors in Applicants case, describes the changes he has seen in Applicant since the time of the trial.

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