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Jeffery Henry CALDWELL





Classification: Murderer
Characteristics: Parricide
Number of victims: 3
Date of murder: July 25, 1988
Date of arrest: Next day
Date of birth: March 1, 1963
Victims profile: Henry, 47, and Gwendolyn Caldwell, 46 (his parents) and Kimberly Caldwell, 19 (his sister)
Method of murder: Stabbing with knife
Location: Dallas County, Texas, USA
Status: Executed by lethal injection in Texas on August 30, 2000


Jeffery Caldwell was convicted and sentenced to death for the July 1988 murders of his mother and father, Gwendolyn and Henry Porter Caldwell, Jr., and his sister, Kimberly Caldwell.

The bodies of all three were discovered wrapped in blankets and stuffed into a camper-trailer parked behind the family's south Dallas home.

Autopsies later revealed that Caldwell's parents were each stabbed once through the heart. Jeffery's sister Kimberly was stabbed twice in the chest, once through her heart. The victims had also been beaten on their heads with a blunt instrument.

The Caldwell's other son, who was not at home at the time of the murders, found the bodies of his family.

Caldwell was arrested the next day, driving his mother's car, and gave a voluntary statement to police. He told police that he was having an argument with his father because he gave money to his sister but not to him. During the argument, he said, all three family members accidentally fell onto his knife.

Caldwell had prior convictions of Burlary in 1983 (5 year sentence) and Robbery in 1986 (10 year sentence). He was released on parole in April 1988, 4 months before the murders.


Texas Attorney General

Media Advisory

Jeffery Caldwell scheduled to be executed

AUSTIN - Texas Attorney General John Cornyn offers the following information on Jeffery Caldwell who is scheduled to be executed after 6 p.m. Wednesday, August 30th:

Jeffery Caldwell was convicted and sentenced to death for the July 1988 murders of his mother and father, Gwendolyn and Henry Porter Caldwell, Jr.

The Caldwell's bodies along with the body of Kimberly Caldwell, Jeffery Caldwell's sister, were found wrapped in blankets and stuffed into a camper-trailer parked behind the family's south Dallas home.

Autopsies later revealed that Caldwell's parents were each stabbed once through the heart. Jeffery's sister Kimberly was stabbed twice in the chest, once through her heart. The victims had also been beaten on their heads with a blunt instrument.

Caldwell was arrested for the murders the morning after the bodies of his parents and sister were found. In a voluntary statement to police, Caldwell said that he accidentally killed his mother, father and sister after they refused to give him money for insulin. Caldwell had been out on parole for less than four months at the time of his offense.


In a recorded phone conversation with his brother, Caldwell said the murders accidentally happened after his parents and sister refused to give him money for insulin. Caldwell told his brother that had he not been caught, he would have run and gotten away with the murders. Caldwell signed a written statement, which he gave to police voluntarily, admitting to the murders.

Caldwell admitted in his written statement that he had lied about the fight with his parents being over not getting money for insulin. Caldwell told police that there was actually insulin in the family's refrigerator.

When Caldwell was in jail, awaiting his trial for the murders, he told a friend who was in jail with him, that he killed his parents but had been so good at hiding it that he would not be convicted.


  • Oct. 16, 1991 - Court of Criminal Appeals affirmed Caldwell's conviction and death sentence.

  • April 20, 1992 - United States Supreme Court denied Caldwell's petition for writ of certiorari.

  • April 4, 1994 - Trial court recommended denial of state writ of habeas corpus.

  • Oct. 31, 1994 - Court of Criminal Appeals adopted the trial court's findings and denied relief.

  • March 30, 1995 - The Court of Criminal Appeals denied second state habeas relief.

  • May 30, 1995 - Caldwell filed a federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Dallas Division.

  • Jan. 8, 1999 - District court agreed with recommendation of magistrate judge to deny relief.

  • Jan. 28, 1999 - District court denied motion to reconsider.

  • May 20, 1999 - District court denied Caldwell permission to appeal.

  • Feb. 18, 2000 - United States District Court of Appeals for the Fifth Circuit granted permission to appeal but affirmed the district court's denial of relief.


Henry Caldwell, one of Jeffery Caldwell's brothers, testified that Caldwell began stealing at an early age. Lewis Gipson, a high school friend of Caldwell's, testified that Caldwell would break into lockers and cars to steal money in order to "get high."

Gipson also said that Caldwell sold drugs and often carried a .38 revolver. Gipson also testified that on the morning he was scheduled to testify in Caldwell's punishment phase, Caldwell went to Gipson's holdover cell without authorization, told Gipson, "I teach you about testifying" and beat him up. In a phone conversation with his brother, Caldwell warned, "just remember, some day I'll be out."

An assistant principal testified that Caldwell once admitted to stealing a wallet and was also later suspended from school for possession of marijuana.

Terrence Strange, a friend of Caldwell's, testified that Caldwell took him to health clubs on several occasions and that Caldwell would break into lockers and steal money.

Strange said one time after he himself had robbed someone of their jewelry, Caldwell took the stolen jewelry and pawned it. Evidence was presented at the punishment phase of Caldwell's trial that he had been convicted of burglary of a habitation in 1983, and received a five year sentence; and that Caldwell had also been convicted of robbery in 1986, for which he received a ten year sentence.

Caldwell was released on parole in April of 1988, less than four months before the murder of his family. His parole officer testified that Caldwell repeatedly failed to meet his parole conditions.

Jeffery Henry Caldwell, a convicted burglar and sex offender originally from Chicago, confessed a day after stabbing and beating his parents, Henry and Gwendolyn Caldwell, and sister, Kimberly, in their Dallas home. All three victims were stabbed in the chest area and beaten in the head with a hammer.

Their bodies were concealed inside the family's motorhome, parked in the driveway. The Caldwell's other son, who was not at home at the time of the murders, found the bodies of his family. Caldwell was arrested the next day, driving his mother's car, and gave a voluntary statement to police.


Jeffery Henry Caldwell

Jeffery Henry Caldwell, 37, was executed by lethal injection on Wednesday, 30 August, in Huntsville, Texas, for the murders of his father, mother, and sister.

In July 1988, Henry Caldwell III went to check on his parents at their home in southwest Dallas, after neighbors told him they hadn't seen them in several days. He checked inside the house and found no one, but noticed a foul odor coming from the motor home parked in the driveway.

Looking inside, he discovered the bodies of his father, Henry, 47; his mother, Gwendolyn, 46; and his sister, Kimberly, 19. All three had been stabbed to death and beaten on the head with a hammer and another unknown blunt instrument. Mrs. Caldwell's car was also missing.

Henry's brother, Jeffery Caldwell, was arrested the next day and gave a voluntary statement to police. He told police that he was having an argument with his father because he gave money to his sister but not to him. During the argument, he said, all three family members accidentally fell onto his knife.

Jeffery Caldwell had an arrest record going back seven years and had been to prison twice in the previous five years. He served 15 months of a 3-year sentence for burglary and 1˝ years of an 8-year sentence for robbery. (At this time, early release was common in Texas because of strict prison population caps imposed by U.S. District Judge William Wayne Justice.)

Caldwell had been on parole for less than four months when he killed his family. After Caldwell was found guilty, Henry and another brother testified against him during the sentencing hearing. Prosecutors used the brothers' testimonies to show that Jeffery was a continuing threat to society who deserved the death penalty.

Over the years, Jeffery Caldwell gave conflicting accounts of the crime to authorities, reporters, and his family. The story he ended up settling on was that his family was killed by Jamaican mobsters. He said that he had stolen some drugs from the mobsters and they came looking for him. Not finding him, they killed his parents and sister.

He said that he didn't know his parents and sister were dead until after his arrest and that he was arrested and convicted because of his criminal past. In the days leading up to his execution, Caldwell's lawyers argued that he was incompetent to be executed. His requests for a stay were denied by the Texas Court of Criminal Appeals and the U.S. Supreme Court.

Prior to his execution, Caldwell issued a written statement in which he reiterated his claim of innocence. "I still to this day scream out that I did not kill them," he wrote. "Although these lifes [sic] being taken was my fault because I robbed some drug dealers three times, I accept the blame for what happened to my parents and my only sister but did not kill them or beat them or shoot them." He also spoke to Henry for the first time in over a decade. Henry Caldwell did not attend the execution. In the execution chamber, Caldwell expressed love for his family. He was pronounced dead at 6:25 p.m.


Amnesty International condems impeding execution of Texas inmate

(New York) -- Amnesty International USA today condemned the impending execution of Jeffery Caldwell. The execution is scheduled to take place at 6:00 pm on Wednesday evening, August 30th at the Walls Unit in Huntsville, Texas.

Caldwell was convicted of the murder of Henry, Gwendolyn and Kimberly Caldwell in March 1989.

Caldwell has no prior history of violent crime. According to reports, his lawyer contends that psychiatric testimony regarding future dangerousness that was used to convict his client was purely hypothetical. Apparently, the use of such testimony has been contested in subsequent cases.

"Amnesty International's campaign to stop the state of Texas from killing Jeffery Caldwell does not seek to excuse the crimes committed or their consequences," said Ajamu Baraka, Acting Director of Amnesty International USA's National Program to Abolish the Death Penalty. "As an organization that works on a daily basis with and on behalf of victims of human violence, Amnesty International has the utmost sympathy for those who have lost friends and relatives due to murder."

"However, Amnesty International urges the state of Texas to find a better response than to perpetuate a cycle of violence," said Baraka. "The death penalty is cruel, inhuman and degrading treatment regardless of whether the condemned inmate is guilty or innocent. The abolition of the death penalty is the only just solution."

The execution of Caldwell, should it proceed, will be the 32nd in Texas this year, and the 143rd execution since Governor George Bush took office in 1995. In the past 5 years, Texas has executed more prisoners than any other U.S. state in over more than 2 decades.


Parolee Executed for Killing Parents and Sister

By Michael Graczyk -

Associated Press

HUNTSVILLE, Texas (AP) — A paroled burglar who killed his parents and sister by beating them with a hammer and stabbing them with a butcher knife was executed in the Texas death chamber Wednesday evening.

In a lengthy statement, Jeffery Henry Caldwell expressed love for his family, love to his daughter, thanks to his attorneys and urged fellow death row inmates to “keep your heads up.” To his brothers, who testified against him at his trial, he said he loved them with all his heart. “You will have to face the justice of God,” he said. “I can forgive you all but you must ask for forgiveness from God. I leave now to join my parents and my only sister.”

As the drugs began taking effect, he coughed, gasped and then made a snoring sound. He was pronounced dead eight minutes later at 6:25 p.m. CDT. Caldwell, 37, was the sixth Texas prisoner to receive lethal injection this month and the 32nd this year.

He maintained his innocence in a statement he wrote shortly before he was given the lethal injection. “I still to this day scream out that I did not kill them,” he said. “I accept the blame for what happened to my parents and only sister but did not kill them or beat them or shoot them.” The three victims were found stuffed in a motor home parked in the driveway of their Dallas home.

Caldwell told police his parents, Henry and Gwendolyn Caldwell, and his 19-year-old sister, Kimberly, had run into his knife during an argument. It was remembered as “the 'magic knife' confession,” by former Dallas County assistant prosecutor Andy Beach this week. “But he forgot to say he had hit each of them a couple of times with a claw hammer,” Beach said.

Caldwell, who moved with his family to Texas in 1980 from their native Chicago, already was known to authorities. He had been convicted of burglary and robbery and had been on parole for about four months when he murdered his family members.

He repeated Wednesday claims that his criminal past prompted a jury to convict and condemn him and that the murders were committed by drug dealers he had ripped off. In late appeals to the courts, Caldwell's lawyers contended he was incompetent and should not be put to death.

Caldwell's execution attracted none of the attention given earlier this summer to condemned killer Gary Graham, whose claims of innocence and an unfair trial put the focus on Texas as the nation's most active capital punishment state and on support of the death penalty by Gov. George W. Bush, now the Republican presidential nominee.

Caldwell was arrested in a telephone booth while calling one of his brothers, who were helping police try to find him. Beach said Caldwell's two brothers also convinced prosecutors to seek capital murder charges, which would make Caldwell eligible for a death sentence.

His brothers testified at the punishment phase of the trial and told jurors they believed he would be a continuing threat to society, one of the elements a jury must consider before deciding on a death sentence. “They looked the jurors in the eyes and said 'yes,'” Beach said. “It was a very emotional case. They've lost three family members and now they're going to lose a fourth. But this was all about justice for them.” This week, one of the brothers talked to reporters about the execution.

“I don't want my brother to die,” Henry Caldwell III told The Dallas Morning News. “But nevertheless, he committed a wrong. He has to face judgment for this. We knew this day was going to come.” In his statement to police, Jeffery Caldwell said the fatal knifings began with an argument with his father over money.

Caldwell said he was upset because his father would give money to his sister but not to him. Years later, in an interview on death row, Caldwell blamed the fatal attacks on a Jamaican mob angry because he had stolen some of their drugs. “I had affiliated with drug individuals and I had ripped them off,” he said. “They came to my house and I wasn't there.”

He also insisted he didn't realize his parents and sister were dead until he was arrested for the murders and that his criminal past was responsible for his arrest. “The phrase used in the court system is innocent until proven guilty but it's totally reversed, especially for a parolee,” Caldwell said.

He declined to speak with reporters in the weeks leading up to his execution, but said earlier he would die in peace. “The first few years I was bitter, angry because my own family had abandoned me,” he said. “I'll let God handle everything. I don't feel depressed or upset about being executed. I don't say I'm glad about it. I know it's going to happen someday.”

At least seven more condemned murderers are scheduled to die in 2000. Their deaths would make this a record year, topping the 37 prisoners executed in the state in 1997.


226 F.3d 367 (5th Cir. 2000)

JEFFREY HENRY CALDWELL, Petitioner-Appellant,

No. 00-10934


August 30, 2000

HIGGINBOTHAM, Circuit Judge:

Today we examine Texas's response to the decision of the Supreme Court1 that the Constitution forbids the execution of an insane person. Securing this "right" turns the focus from validity of conviction and sentence with its search for historical fact to an inquiry into the present mental state of an accused, more precisely his present mental state, and at a point of time in the near future.

This elevation to constitutional status of common law and statutory rules and resulting shift in focus has prompted responses by the state and a procrustean enterprise of the judiciary to fit Ford issues within our procedural apparatus for post-trial review of conviction and sentence.2 That fit is the backdrop to today's decision. We conclude that Texas has afforded the petitioner all process constitutionally due. We refuse to issue a certificate of appealability or to stay the scheduled execution.

* Jeffrey Henry Caldwell is scheduled to be executed on August 30, 2000, by the State of Texas for the crime of capital murder. The Texas Court of Criminal Appeals affirmed his conviction and sentence in 1991. Caldwell v. State, 818 S.W.2d 790 (Tex. Crim. App. 1991), cert. denied, 112 S.Ct. 1684 (1992). Caldwell first sought federal habeas relief, but his petition was dismissed without prejudice for failure to exhaust state remedies by the Northern District of Texas on September 9, 1993.

Caldwell then filed a post-conviction application in the state trial court in November of 1993. That application was denied in 1994 by Judge Gerry Meier of the 291st District Court in Dallas County, Texas. A second post-conviction application was filed with Judge Meier on March 22, 1995. She denied relief on March 30, 1995. The Texas Court of Criminal Appeals affirmed that denial of relief on March 31, 1995.


On May 30, 1995, Caldwell filed a petition for writ of habeas corpus in the Northern District of Texas, asserting numerous claims. The district court denied all relief in January of 1999, declining Caldwell's motion for leave to amend the petition to include a claim under Ford v. Wainwright. On February 18, 1999, we granted a certificate of probable cause to appeal but affirmed the denial of relief on all claims and also affirmed the refusal ofleave to amend.

We concluded that Caldwell's Ford claim was premature, pointing out that the Texas legislature had recently provided a procedure for testing the competency of a person to be executed under Article 46.04 of the Texas Code of Criminal Procedure, effective September 1, 1999. On April 11, 1999, the trial court scheduled Caldwell's execution for August 30, 2000. The Supreme Court denied certiorari and a stay of execution on August 23, 2000.3


On June 28, 2000, the State of Texas filed with Judge Meier a "Request for Psychiatric Examinations and Determination of Competency," pursuant to the Texas Code of Criminal Procedure, Article 46.04.

The state's motion cited occasions in which Caldwell's competency had surfaced over the course of this prosecution. It observed that, while Caldwell did not offer a defense during the punishment phase, the State had called a psychiatrist who, responding to a hypothetical question, expressed the opinion that Caldwell was a sociopath. The witness explained that Caldwell knew right from wrong but chose to do wrong.

The State also pointed to the affidavit of Dr. Phillip J. Murphy, obtained in connection with the first application for writ of habeas corpus filed in the state trial court in 1993. In the affidavit Dr. Murphy swore that his preliminary examination demonstrated serious mental illness that could only be conclusively determined through further examination and testing; that he was unable to do so without funding.

Dr. Murphy expressed the view that "the defendant's reality level was best described as psychotic"; that his Bender-Gestalt test indicated brain damage; that while he needed additional tests, execution may not be appropriate for a person with these disorders.

The State pointed out that Caldwell in his first State petition had claimed that his counsel was ineffective for not investigating and offering evidence of his mental problems; that the trial court should have instructed the jury regarding a severe mental disorder. The State observed that the defendant raised the same issues in his second federal writ and that the district court, affirmed by this court, had rejected the claims of ineffective assistance of counsel.

In its motion of June 28 the State took the position that the prosecution did "not believe that the defendant is suffering from any mental disorders rendering him incompetent to be executed," but that "as a precautionary measure," the district court ought to appoint two qualified mental health professionals to evaluate his mental competence. Without opposition from Caldwell, the district court granted the motion on August 9, 2000. It appointed two psychiatrists to examine Caldwell. Both reported back to the district court that Caldwell did not cooperate and refused to confer with them.4


Caldwell filed an application for state writ of habeas corpus on August 16, claiming he is not competent and requesting funding to obtain mental health experts of his own choosing. As summarized in the State's response:In raising his claim of incompetency to be executed in the state courts, Caldwell relied upon a 1992 psychological evaluation performed by Philip Murphy and a 1998 affidavit of one of his attorneys, Peter MacMillan.

Without addressing the issue of competency to be executed (or to stand trial), Dr. Murphy was of the opinion that Caldwell possessed a low I.Q., suffers from organic brain damage, and presents a "serious thought disorder of either a paranoid or schizophrenic nature." MacMillan averred that correspondence he had received from Caldwell indicated to him that Caldwell failed to appreciate the factual basis that led to his conviction and the severity of the punishment for his crime.

On August 18, Judge Meier filed a "notation of subsequent writ application," concluding that:

This Court further finds that to the extent applicant's current subsequent writ application could be construed as a motion pursuant to Article 46.06 of the Texas Code of Criminal Procedure, the pleadings fail to make a substantial showing of Caldwell's incompetency to be executed as required by Article 46.04(f).

She then directed that the Clerk of the Court forward the relevant papers to the Texas Court of Criminal Appeals.


Caldwell's counsel then filed with the Texas Court of Criminal Appeals his "subsequent application for writ of habeas corpus, motion for appointment and compensation of counsel, and motion for funding for mental health experts." On August 28, a divided Texas Court of Criminal Appeals dismissed by written opinion Caldwell's application.

The court treated Caldwell's motion as an effort to invoke the procedures of Article 46.04. It first noted that Article 46.04 made no provision for the appointment of counsel, holding that while the "trial court could appoint counsel in any given case," it did not abuse its discretion here. The court explained it had neither the authority to remand for a hearing nor authority to grant funds to hire mental health experts to assist in the hearing.

By the Texas Court of Criminal Appeal's reading, it had authority under Art. 46.04 only to review a finding by the trial court that a defendant is incompetent; it had no jurisdiction to review a "finding of a substantial showing of incompetence or, after a hearing takes place, the finding that the defendant is competent to be executed."

Caldwell then filed a petition for writ of habeas corpus and stay of execution on August 29, 2000, with the United States District Court, Northern District of Texas. The return to federal court relies upon the Supreme Court's decision in Stewart v. Martinez-Villareal, 118 S.Ct. 1618 (1998) that "respondent's Ford claims here - previously dismissed as premature - shouldn't be treated in the same manner as the claim of a petitioner who returns to a federal habeas court after exhausting state remedies," 118 S.Ct. at 1622 - specifically that his Ford claim is not a successive petition. Texas concedes that the present petition is not successive.5


Caldwell's federal petition combines several contentions in a single narrative. As best we can discern, read most favorably to Caldwell, he attacks Article 46.04 on six grounds. He contends that, as construed by the Texas Court of Criminal Appeals, there is no right of appeal from a decision by a state trial court finding a petitioner to be competent for execution. Second, that the statute both facially and as applied denies Caldwell his right "to be evaluated by mental health professionals of his own choosing."

Third and relatedly, he contendsthat since Caldwell is indigent, he would be unable to hire such assistance and hence he is entitled to state funding for that purpose. Fourth, that Texas denied him the assistance of medical experts in preparing for his competency hearing and offering both expert advice and testing. Fifth, he broadly contends that since his Ford claim has never been determined on the merits by any court, he is entitled to a hearing in federal court. Finally, Caldwell appears to question the state trial court's holding that he did not make a substantial showing of competency.


The United States District Court for the Northern District of Texas denied a stay of execution and application for certificate of appealability on August 30, 2000. Judge Sanders concluded that petitioner had been dilatory in pursuing his Ford claims. He also concluded that the merits of the petition did not support a stay, specifically that the federal court was required to defer to the factual finding of the state trial court. Finally, the district court did not reach the constitutional claims but questioned "the lack of meaningful judicial review in § 46.04(k).


* A state prisoner may not obtain relief with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d) (2000). Section 2254(d)(1) provides the standard of review for questions of law and mixed questions of law and fact. Williams v. Taylor, 120 S. Ct. 1495, 1523 (2000).

Under the "unreasonable application" clause, the court may grant the writ if the state court identifies the correct governing legal principle but applies it incorrectly, or expands a legal principle to an area outside the scope intended by the Supreme Court. See id. at 1521, 1523. The state court's application of the law must be "unreasonable" in addition to being merely "incorrect." See id. at 1522. "Stated simply, a federal habeas court making the 'unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." See id. at 1521.

Under the "contrary to" clause of § 2254(d)(1), a federal court may grant the writ if the state court has arrived at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides a case differently than the Supreme Court on a set of materially indistinguishable facts. See id. at 1523.

On review of a state prisoner's federal habeas petition, "a determination of a factual issue made by a State court shall be presumed to be correct," and the petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(b)(2). "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states avalid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000).


Caldwell points us to no authority in support of his contention that he is entitled to appellate review in the state court of the trial court decision that he is competent. We know of no such authority. The constitutional footing for rights of appeal from criminal conviction has enjoyed an uneven history, initially resting on principles of equal protection.

Of course, since the absence of appellate review is across the board, no petitioner can appeal; there is no footing for an equal-protection-based right of access for indigents. To the extent a right of appeal is footed directly upon the assurance of a fair process in determining guilt and sentence, we see no principled basis for its extension to a determination by the state judiciary of the issue of competence for execution. Regardless, we lack the authority to do so in a habeas case.

Caldwell points to Ake v. Oklahoma, 470 U.S. 68 (1985), in support of his contention that he is entitled to medical assistance of his own choosing. The extension of Ake principles to a Ford hearing on competency to be executed aside, Ake itself disavowed any such right. Id. at 83.

His assertion that he is entitled here to Ake's assured access to medical assistance in evaluating and preparing a defense has more purchase, but ultimately is equally without merit. Ake v. Oklahoma held that an indigent criminal defendant who demonstrates "that his sanity at the time of the offense is to be a significant factor at trial," has a due process right to "a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and defense." Id.

This right extends to the sentencing phase of trial. It did not by its terms or reasoning extend to a Ford type hearing. Safeguards rooted in the Constitution's protection of a fair and accurate trial are not necessarily implicated by Eighth Amendment prohibitions of cruel and unusual punishment.

In Ford v. Wainwright, Justice Powell emphasized this distinction: "[T]he only question raised is not whether, but when, his execution may take place. This question is important, but it is not comparable to the antecedent question whether petitioner should be executed at all. It follows that this Court's decisions imposing heightened procedural requirements on capital trials and sentencing proceedings do not apply in this context." 477 U.S. at 425 (citations and footnote omitted).

Under 46.04 Judge Meier was not required to appoint medical experts absent a substantial showing by Caldwell, a showing Caldwell conceded he could not make assertedly for want of funds to engage medical assistance. Judge Meier, however, proceeded to appoint two experts. Caldwell did not object to the appointment of experts. Rather, he objected to the fact that Dr. Grigson was one of the two experts chosen. Then Caldwell refused to allow either of the two to examine him.


All else aside, there are overarching flaws in Caldwell's request for stay of execution. Caldwell is in no position to claim that Texas has prejudiced his ability to trigger the appointment under Art. 46.04 of two medical experts to examine his competency.6 That was done. Nor does he point to any impediment imposed by the state to an adversarial test of the experts' reports.

Ultimately, Caldwell's claimshrinks to claims that he was entitled to an expert of his choice or an expert to assist in any challenge of the opinion of the experts. This is no more and no less than a request that Ake be extended to Ford proceedings. In any event, such a new rule is not available in his federal habeas challenge to a state decision. Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989); 28 U.S.C. § 2254(d)(1).

We are persuaded that Art. 46.04 is valid, both facially and as applied. We reject a certificate of appealability and refuse to stay execution.




Ford v. Wainwright, 477 U.S. 399 (1986).


See e.g., Stewart v . Martinez-Villareal, 118 S. Ct. 1618 (1998), and Art. 46.04, Tex. Code of Crim. Proc.


Justice Stevens and Justice Ginsburg would have granted the stay for execution.


Judge Meier appointed Dr. James Grigson and Dr. Michael Pitman to evaluate Caldwell's competency to be executed. Caldwell asserts that he objected to the failure to appoint an "independent" professional and Dr. Grigson as being well known for his bias. We accept counsel's unchallenged assertion that an objection was made, although we have been pointed to nothing in the record supporting it.


Given the late hour and our disposition of this case, we do not here question this concession and will assume that the petition is not successive.


To the extent Caldwell challenges the state trial judge's holding that he had not made a substantial showing of incompetence, the challenge is without merit - even if we were not to accord that finding the deference it is due.



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