            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                    NO. WR-42,639-03



                 EX PARTE ROBERT CHARLES LADD, Applicant



  ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS
               AND MOTION TO STAY THE EXECUTION
  IN CAUSE NO. 114-80305-97-C IN THE 114TH JUDICIAL DISTRICT COURT
                            SMITH COUNTY



       A LCALA, J., filed a concurring statement.

                             CONCURRING STATEMENT

       Robert Charles Ladd, applicant, has filed a subsequent application for a writ of habeas

corpus challenging Texas’s procedures for determining intellectual disability in the wake of

Hall v. Florida, 134 S. Ct. 1986, 2001 (2014). Applicant asserts that his present claim falls

under Section 5(a)(1) of Article 11.071 of the Texas Code of Criminal Procedure, which

provides that the merits of a subsequent application for a writ of habeas corpus may be

considered if “the current claims and issues have not been and could not have been presented

previously . . . because the . . . legal basis for the claim was unavailable on the date the
                                                                            Ladd Concurrence -- 2

applicant filed the previous application.” T EX. C ODE C RIM. P ROC. art. 11.071, § 5(a)(1).

Applicant urges this Court to reconsider its holding in Ex parte Briseno in light of Hall and

to resolve his application on the merits. See Ex parte Briseno, 135 S.W.3d 1, 5-8 (Tex. Crim.

App. 2004). Although this Court’s discussion of certain “factors” in Briseno may warrant

reevaluation at some future point, I do not believe that the holding in Hall is inconsistent

with this Court’s overall standard for determining mental retardation as set forth in Briseno.1

Furthermore, after reviewing the analysis in the opinions by the federal courts, I conclude

that their analysis of the law is consistent with Hall in that it considers adaptive deficits as

well as applicant’s IQ score. Because applicant has failed to present a new legal basis to

overcome the procedural hurdle of Article 11.071, Section 5(a)(1) of the Code of Criminal

Procedure, I will join this Court’s order dismissing applicant’s application for a writ of

habeas corpus and denying the motion for a stay of execution.

                                         I. Background

       In 1978, applicant was convicted of murdering a woman and her two children and then

setting her house on fire. After serving 16 years of a 40-year prison sentence, he was released

from prison. On September 25, 1996, Vicki Ann Garner was found dead in her home. Garner

had been raped and strangled to death. In addition, her home was set on fire.2 In 1997, a jury


       1
         I recognize that the preferred terminology for mental retardation is now “intellectual
disability.” However, because the term mental retardation has been previously used in this case and
by relevant legal authority, I use the two terms interchangeably.
       2
        The information contained in the background section is taken largely from the Fifth
Circuit’s opinion in Ladd v. Stephens, 748 F.3d 637, 639 (5th Cir. 2014).
                                                                        Ladd Concurrence -- 3

convicted applicant of capital murder and imposed the death penalty. A direct appeal then

followed, which was denied in 1999.

       Applicant filed his first application for habeas relief, in which he alleged that his

counsel was ineffective for failing to raise evidence of mental retardation during the

punishment phase. The habeas court held an evidentiary hearing, at which applicant

presented testimony by his trial counsel, but did not present testimony from a psychiatric

expert. The State presented its psychologist and psychiatrist who had both testified at trial

that applicant presented a future danger. These experts generally opined that they would

discount applicant’s prior IQ score of 67, explaining that they did not know enough about the

administration of the test and that such a result was inconsistent with his later academic

achievement. But neither expert had tested applicant’s IQ, nor had they otherwise examined

him for mental retardation; rather, their testimony centered on their conclusion that the

additional information obtained about Ladd would not have changed their expert opinions

regarding his future dangerousness. The habeas court then issued its findings of fact and

conclusions of law, wherein it concluded:

       The information that Applicant had scored 67 on an IQ test as a juvenile did
       not support an inference that Applicant was mentally retarded because of a
       higher IQ score, the completion of the GED program and completion of barber
       school as an adult. . . . The information that Applicant scored 67 on an IQ test
       was not mitigating because of the other information that Applicant was not
       mentally retarded.

This Court denied applicant’s petition for habeas relief in 1999. Ex parte Ladd, No. 42,639-

01 (Tex. Crim. App. 1999).
                                                                         Ladd Concurrence -- 4

       Applicant filed his first petition for federal habeas relief in 2001, and the federal

district court denied relief. His application raised the claim that he received ineffective

assistance of counsel because his attorney had not raised evidence of his mental retardation

during the punishment phase. The Fifth Circuit affirmed, concluding that “the Texas court

was well-within the bounds of AEDPA reasonableness in concluding that Ladd suffered no

prejudice.” Ladd v. Cockrell, 311 F.3d 349, 361 (5th Cir. 2002).

       Following the Supreme Court’s decision in Atkins v. Virginia, 536 U.S. 304, 321

(2002), applicant filed his second application for state habeas relief in April 2003, arguing

that he was categorically excluded from the death penalty because of mental retardation. In

support of this claim, he attached several exhibits, including: (1) documentation from his

childhood institutionalization in the Gatesville State School, where his IQ had been tested

at 67; (2) psychiatric notes from this institutionalization wherein the psychiatrist noted that

applicant is “rather obviously retarded” and had “mental retardation, mild to moderate”; (3)

institutionalization records showing that he was functioning below his grade level in basic

academic skills and had social development problems; and (4) documentation that as a child,

he was prescribed Mellaril, an anti-psychotic medication, to control his impulsive behavior.

       Arguing that he had set forth a prima facie Atkins claim, applicant requested an

evidentiary hearing to refute any evidence the State might offer and to factually develop his

claim. Without granting an evidentiary hearing or opportunity to develop his claim, this Court

dismissed the application, explaining that he had failed to plead sufficient facts to permit a
                                                                         Ladd Concurrence -- 5

successive writ.

       Applicant sought authorization from the Fifth Circuit to file a second petition for

habeas relief in the federal district court. That court authorized the successive writ, and in

June 2003, applicant filed his second petition for federal habeas relief. The federal district

court conducted an evidentiary hearing on his claims. He presented several witnesses:

Richard Garnett, a licensed professional counselor; Lubertha Cephus, his mother’s first

cousin; Russell Pinckard, a death row corrections officer; and Nelma Thomas, his sister.

       Garnett testified that, in his expert opinion, applicant was mentally retarded. First,

Garnett explained that applicant had significantly sub-average intellectual functioning.

Garnett based this conclusion on applicant’s IQ score of 67 when he was tested at age 13 by

the Texas Youth Commission. Moreover, Garnett explained that the Texas Youth

Commission’s psychiatrist, Phillip Ash, noted that applicant appeared mentally retarded. In

addition, Garnett noted that applicant had a low birth weight, consistent with fetal alcohol

syndrome. Garnett acknowledged that Ladd later received an IQ score of 86, but he dismissed

that higher score on the basis that it was on a less comprehensive IQ test, the Beta test, which

is not as accurate as the previously administered Wechsler test. Garnett discounted a more

recent Wechsler test IQ score of 60 because there were signs of malingering.

       Second, Garnett testified that applicant had significant adaptive skills deficits. In

particular, Garnett testified that Ladd had deficits with money concepts, work-related skills,

using community resources, communications skills, and social skills. In addition, Garnett
                                                                         Ladd Concurrence -- 6

testified that applicant’s deficits were properly attributed to mental retardation, rather than

anti-social personality disorder. Although Garnett acknowledged that he could not use any

evaluative instruments for measuring the adaptive skills of an incarcerated individual, he

explained that he was able to make this assessment based on his clinical judgment and

experience. Additionally, Garnett discounted the facts that applicant had obtained a G.E.D.

and learned to play chess by explaining that those achievements were not outside the capacity

of a mildly intellectually disabled person. Although he also acknowledged that applicant had

written many letters, Garnett explained that, based on his conversations with applicant, he

believed that applicant had received substantial assistance in writing the letters. Third,

Garnett testified that, given applicant’s childhood IQ score of 67 and family reports of

adaptive functioning deficits, these deficits developed prior to the time when applicant turned

eighteen years old.

       On cross-examination, the State elicited from Garnett that (1) applicant was a

latch-key kid who had been able to take care of himself; (2) by eleven years old, applicant

could handle money; (3) his failure to make friends during childhood may have been a

product of his anti-social personality disorder, and not intellectual disability; (4) Ladd’s

reading-ability tests had scores above the tenth-grade level, as compared to the typical

reading scores for intellectually disabled individuals, which generally indicate an inability

to read above a seventh-grade level; (5) he had successfully completed vocational training

programs in prison; and (6) he was successful working in a structured environment when he
                                                                        Ladd Concurrence -- 7

was not in prison.

       Lubertha Cephus testified that applicant’s mother drank heavily while pregnant with

him. His sister, Nelma Thomas, testified that he had problems understanding the concepts

of games as a child: she explained that he did not understand the concept of suits in card

games and that he did not understand the need to run to first base while playing kickball. In

addition, Thomas testified that applicant often failed to dress himself appropriately for the

weather when he was twelve to fourteen years old, and that when her mother sent him to the

store, he could not remember what he was supposed to purchase.

       The State presented several witnesses: Al Matson, the manager of the vocational

program at which applicant had worked; Howard Alexander, a prison barber instructor; and

Dr. Thomas Allen, a forensic psychologist. Matson explained that he managed the vocational

division of the Andrews Center, a community mental health and healthcare center for

intellectually disabled individuals. Matson testified that applicant was referred to the

Andrews Center from a substance-abuse facility and was a capable worker. Matson explained

that applicant was placed into some of the more challenging positions, such as line leader and

quality control. During the course of his employment, applicant could operate an ultrasonic

welding machine, set up electronic weighing scales, and operate a forklift. Matson testified

that applicant did not require any special assistance or supervision and would have been

promoted but for his criminal background. Although he was initially started at below

minimum wage, applicant received several raises in the course of his work, resulting in
                                                                        Ladd Concurrence -- 8

above-minimum wage payment. These funds were paid into a trust account, but the Andrews

Center used trust accounts for both intellectually-disabled workers and non-intellectually-

disabled workers. Matson explained that applicant was eventually fired because of problems

with absenteeism and confrontations with supervisors.

       Howard Alexander testified that he taught a vocational barber training program in

prison. The program required at least a seventh-grade education, and, in Alexander’s opinion,

the program could not be completed by anyone with serious learning deficiencies. Although

Alexander does not remember instructing applicant, Alexander’s records indicate that

applicant completed the state barber exam and was one of Alexander’s better students.

       Dr. Thomas Allen, a forensic psychologist, testified that in his opinion applicant was

not mentally retarded. First, Dr. Allen explained that he did not trust the IQ score of 67

administered when applicant was 13 years of age because applicant had a propensity for

“prevarication” and low motivation, and there were no notes as to whether the degree of his

effort on the examination was observed. Relatedly, Dr. Allen explained that the IQ score of

86, although only measured by a screening tool, was instructive, as it placed applicant within

the average range of prisoners screened. Similar to Garnett, Dr. Allen opined that the recent

score of 60 was unreliable because of malingering.

       Second, Dr. Allen testified that applicant’s possible adaptive deficits were properly

explained as being caused by an anti-social personality disorder because the behavioral

observations predominantly focused on aggression and anti-social conduct, not on behavioral
                                                                         Ladd Concurrence -- 9

deficits typically associated with intellectual disability.

       Third, Dr. Allen explained that he administered the Vineland Adaptive Skills

Inventory, which he modified to adapt to applicant. Although this inventory has not been

normed on prisoners, Dr. Allen explained that applicant’s score placed him well within the

middle, or average, range of the population. Reviewing applicant’s history, Dr. Allen opined

that his adaptive deficits, including deficits related to functional academics, using community

resources, inter-personal skills, and communications skills, were due to behavioral problems

and were not attributable to intellectual disability. Finally, Dr. Allen opined that, although

possible, it would be very unusual for someone to suffer from both intellectual disability and

anti-social personality disorder.

       Following the evidentiary hearing, the federal district court issued a memorandum

opinion and order, wherein it concluded that it found the State’s expert witness to be more

persuasive. Accordingly, the district court denied the application in February 2013,

concluding that applicant had failed to establish by a preponderance of the evidence that he

was intellectually disabled. The district court then granted a certificate of appealability.

       Although it was first persuaded that applicant’s lower IQ score indicated sub-average

intellectual functioning, the federal district court determined that applicant had not

established an Atkins claim on the basis of its second consideration that he had failed to show

that his deficits in adaptive functioning were significant. First, the district court found “by

a preponderance of the evidence that Ladd has significantly sub-average intellectual
                                                                        Ladd Concurrence -- 10

functioning.” Ladd v. Thaler, No. 1:03cv239, 2013 WL 593927, at *8 (E.D. Tex. Feb. 13,

2013). The district court explained that this conclusion was compelled by (1) applicant’s

score of 67 on a Wechsler IQ test at age 13, and (2) the agreement by both parties’ experts

that both subsequently administered IQ tests, where applicant achieved scores of 86 and 60,

are less reliable because the higher score of 86 was achieved on a less accurate test

instrument and the lower score of 60 was likely the result of malingering. Id.

       Second, the district court found that “Ladd has failed to establish by a preponderance

of the evidence that any of his deficits in adaptive functioning are significant.” Id. at *10.

The district court explained that, although both applicant’s and the State’s experts agreed that

he “demonstrated deficits in adaptive behavior in functional academics, social skills, work,

and communication,” the experts disagreed as to whether these deficits were properly

attributed to his mental retardation or to his anti-social personality disorder. Id. at *8. The

district court considered the experts’ testimony as to each adaptive deficit and decided that

the State’s expert’s testimony was more persuasive. It then concluded that, as to his deficits

in functional academics, social skills, and work, applicant’s deficits were properly attributed

to his anti-social personality disorder. As to his deficit in adaptive behavior in

communications skills, the district court explained that neither expert claimed that a

deficiency in this skill could be related to his anti-social personality disorder, and it

determined that this deficit was related to his sub-average intellectual functioning. Although

applicant’s communications skills weighed in favor of a finding of intellectual disability in
                                                                           Ladd Concurrence -- 11

adaptive skills, the district court nonetheless determined that applicant had not established

intellectual disability in that he failed to show that his other deficits in functional academics,

social skills, and work were attributable to intellectual disability rather than to his anti-social

personality disorder. In addition, the district court found that, to the extent applicant has

deficits in his adaptive behavior, these deficits are not significant limitations. In this regard,

the district court found the State’s expert’s testimony to be more credible and persuasive.

       On appeal to the Fifth Circuit, that court upheld the district court’s order, explaining

that the district court did not err in finding that applicant was not intellectually disabled. Ladd

v. Stephens, 748 F.3d 637, 748 (5th Cir. 2014). It observed that the district court, having

heard and evaluated the testimony of each expert, found the State’s expert to be more

persuasive. Id. Considering that the district court was in the better position to reach such a

conclusion and that such a conclusion could be supported by the evidence, the Fifth Circuit

held that the district court’s determination was plausible and thus survived clear-error review.

Id.

                          II. Briseno Largely Undisturbed by Hall

       In Ex parte Briseno, this Court stated, “Until the Texas Legislature provides an

alternate statutory definition of ‘mental retardation’ for use in capital sentencing, we will

follow the AAMR [American Association on Mental Retardation] or section 591.003(13)

criteria in addressing Atkins mental retardation claims.” Briseno, 135 S.W.3d at 8; T EX.

H EALTH & S AFETY C ODE § 591.003(13). “Under the AAMR definition, mental retardation
                                                                          Ladd Concurrence -- 12

is a disability characterized by: (1) ‘significantly subaverage’ general intellectual functioning;

(2) accompanied by ‘related’ limitations in adaptive functioning; (3) the onset of which

occurs prior to the age of 18.” Briseno, 135 S.W.3d at 7. Section 591.003(13) of the Texas

Health and Safety Code stated, “‘[M]ental retardation’ means significantly subaverage

general intellectual functioning that is concurrent with deficits in adaptive behavior and

originates during the developmental period.” T EX. H EALTH & S AFETY C ODE § 591.003(13).

This Court determined that “the ultimate issue of whether [a] person is, in fact, mentally

retarded for purposes of the Eighth Amendment ban on excessive punishment is one for the

finder of fact, based upon all of the evidence and determinations of credibility.” Briseno, 135

S.W.3d at 9. In considering the totality of the evidence, however, this Court provided some

“evidentiary factors which factfinders in the criminal trial context might also focus upon in

weighing evidence as indicative of mental retardation or of a personality disorder.” Id. at 8.

Because this Court used the word “might” in setting forth the factors and also indicated that

the ultimate test was based on the totality of the circumstances, these “evidentiary factors”

were not intended as a definitive test for assessing intellectual disability, as they appeared to

be merely suggestive. See id. In denying relief in Briseno, this Court stated, “In sum, we

conclude that, while there is expert opinion testimony in this record that would support a

finding of mental retardation, there is also ample evidence, including expert and lay opinion

testimony, as well as written records to support the trial court’s finding that applicant failed

to prove that he is mentally retarded.” Id. at 18.
                                                                           Ladd Concurrence -- 13

       Applicant criticizes the Briseno factors in his current application for habeas relief,

arguing that they are in conflict with Hall. Hall was decided by the Supreme Court less than

one year ago, and about a decade after Briseno. Hall, 134 S. Ct. at 2001. Nothing in the

holding of Hall, however, appears to conflict with this Court’s approach in Briseno. Hall

held that Florida, by defining intellectual disability to require an IQ test score of 70 or less,

created a constitutionally unacceptable risk that a person with an intellectual disability would

be executed. Id. In contrast to Florida’s rule, Briseno did not set forth any particular IQ test

score at which a person would be categorized as per se not intellectually disabled. See

Briseno, 135 S.W.3d at 18. The Supreme Court also observed in Hall that in “determining

who qualifies as intellectually disabled, it is proper to consult the medical community’s

opinions.” Hall, 134 S. Ct. at 1993. This too is consistent with Briseno’s consultation of the

medical community’s opinions. See Briseno, 135 S.W.3d at 5-6 (incorporating the American

Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders into the

Court’s analysis). Furthermore, the Supreme Court “noted in Atkins, [that] the medical

community defines intellectual disability according to three criteria: significantly subaverage

intellectual functioning, deficits in adaptive functioning (the inability to learn basic skills and

adjust behavior to changing circumstances), and onset of these deficits during the

developmental period.” Hall, 134 S. Ct. at 1994. Those criteria are similar to the ones set

forth in Briseno. See Briseno, 135 S.W.3d at 8. In large part, therefore, Hall and Briseno

appear consistent.
                                                                          Ladd Concurrence -- 14

       It may be, however, that the factors set forth in Briseno should be reconsidered by this

Court in a future case to determine whether those criteria can more closely resemble the

Supreme Court’s discussions of evidentiary considerations in Hall. For example, in Hall, the

court stated,

       Pursuant to this mandatory cutoff, sentencing courts [in Florida] cannot
       consider even substantial and weighty evidence of intellectual disability as
       measured and made manifest by the defendant’s failure or inability to adapt to
       his social and cultural environment, including medical histories, behavioral
       record, school tests and reports, and testimony regarding past behavior and
       family circumstances. This is so even though the medical community accepts
       that all of this evidence can be probative of intellectual disability, including for
       individuals who have an IQ test score above 70.

Hall, 134 S. Ct. at 1994. The Supreme Court indicated that persons who meet the “clinical

definitions” of intellectual disability “by definition . . . have diminished capacities to

understand and process information, to communicate, to abstract from mistakes and learn

from experience, to engage in logical reasoning, to control impulses, and to understand the

reactions of others.” Id. at 1999 (citations omitted). Furthermore, the court noted that the

“legal determination of intellectual disability is distinct from a medical diagnosis, but it is

informed by the medical community’s diagnostic framework.” Id. at 2000. Briseno appears

to be largely consistent with the Supreme Court’s acknowledgment in Hall that it is proper

to consider the medical community’s diagnostic framework in conjunction with other

considerations such as adaptive skills for an ultimate legal determination by a fact finder.

See Briseno, 135 S.W.3d at 17-18. Perhaps it may be appropriate in the near future for this

Court to reexamine the parameters of the standard for intellectual disability set forth in
                                                                         Ladd Concurrence -- 15

Briseno to ensure that it fully complies with the dictates in Hall and Atkins. But to the extent

that applicant suggests that Texas state law for determining intellectual disability is

inconsistent with Hall, I disagree.

       Because the present application is a subsequent writ for habeas relief, before this

Court may consider the merits of his complaint, applicant must establish that Hall is a new

legal basis that meets the procedural hurdle, but he fails in this respect. See T EX. C ODE C RIM

P ROC. art. 11.071, § 5(a)(1). Hall is not a new legal basis for applicant’s challenge because

that decision is largely consistent with this Court’s decision in Briseno. To the limited extent

that there may be inconsistencies, applicant’s case likely would not be affected in that, in

affirming the federal district court’s ruling, the Fifth Circuit Court of Appeals examined the

evidence, including the IQ scores and the evidence on adaptive deficits, and upheld the

district court’s determination that was largely based on the district court’s finding that the

State’s expert’s conclusions were more credible than applicant’s experts. The federal courts

considered the evidence that applicant had been declared intellectually disabled while in the

Texas Youth Commission and they determined that, despite that assessment at that point in

time, applicant was not intellectually disabled based on the totality of the evidence that

included consideration of his adaptive skills.

       The district court’s factual determinations were premised on applicant’s failure to

show adaptive deficits that would warrant a conclusion that he is too intellectually disabled

to be constitutionally executed for capital murder. The evidence that showed that applicant
                                                                          Ladd Concurrence -- 16

did not have significant adaptive deficits included testimony that applicant could take care

of himself alone as a child; could handle money; had reading scores above the tenth-grade

level; successfully completed vocational training programs in prison; worked in the more

challenging positions such as line leader and quality control; could operate an ultrasonic

welding machine, set up electronic weighing scales and operate a forklift; received several

raises in the course of his work, resulting in above-minimum wage payment; and completed

the state barber exam and was one of the better students in that program. While Hall

cautions against relying solely on a precise IQ score, the federal courts’ analysis here did not

rely solely on a score, but instead considered whether applicant had shown significant

adaptive deficits and determined that he had failed in that burden.

                                        III. Conclusion

       Applicant’s eve-of-his-execution application relies on Hall as the basis for arguing

that the federal courts erred in their prior determination that he failed to establish that he was

too intellectually disabled to be constitutionally executed, but those courts considered the

totality of the evidence of intellectual disability, including adaptive deficits, in conformity

with the dictates of Hall. Hall, therefore, is not a proper basis upon which to stay this

execution or grant applicant’s subsequent application for habeas relief.             With these

comments, I join the order of this Court dismissing applicant’s application for a writ of

habeas corpus and denying his motion for a stay of execution.
                          Ladd Concurrence -- 17

Filed: January 27, 2015

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