              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS

                         NO. WR-45,746-02



                EX PARTE DAVID WOOD, Applicant

        ON APPLICATION FOR WRIT OF HABEAS CORPUS
                   CAUSE NO. 58486-171-2
           IN THE 171ST JUDICIAL DISTRICT COURT
                      EL PASO COUNTY

     N EWELL, J., filed a concurring opinion in which K ELLER, P.J.,
H ERVEY and K EEL JJ., joined.

     In deciding that intellectually disabled individuals are categorically

exempt from the death penalty, the United States Supreme Court

effectively held that a clinical determination of intellectual disability

lessens the moral culpability of a defendant. In Atkins v. Virginia, for

example, the Court explained that the only disagreement about the

execution of intellectually disabled offenders was determining who is, in
                                                         David Wood Concurring – 2

fact, intellectually disabled.1           The Court acknowledged that “[n]ot all

people who claim to be [intellectually disabled] will be so impaired as to

fall within the range of [intellectually disabled] offenders about whom

there is a national consensus.”2              Later, in Hall v. Florida, the Court

observed that defining “intellectual disability” is necessary to implement

the principles and holding of Atkins, including the principle that “[t]he

diminished      capacity      of    the    intellectually   disabled     lessens     moral

culpability.”3 In short, the Court believes that deficiencies attendant to

intellectual disability do not warrant exemption from criminal sanctions;

they simply diminish the personal culpability of the intellectually

disabled.4     But a clinical diagnosis has nothing to do with determining

moral culpability. This case is a prime example of why “clinicians, not

judges, should determine clinical standards; and judges, not clinicians,

should determine the content of the Eighth Amendment.” 5




     1
         Atkins v. Virginia, 536 U.S. 304, 317 (2002).

     2
         Id.

     3
         Hall v. Florida, 572 U.S. 701, 709 (2014).

     4
         Atkins, 536 U.S. at 318.

     5
         Moore v. Texas, 137 S. Ct. 1039, 1054 (2017) (Roberts, C.J., dissenting).
                                                            David Wood Concurring – 3

                                               I.

       In Atkins v. Virginia, the Court relied upon the “consistency of the

direction of change” by state legislatures regarding the execution of

intellectually disabled offenders to conclude that the only “serious

disagreement” on the issue centered around how to determine whether

a capital-murder defendant is intellectually disabled.6 Then, the Court

gave two reasons why intellectually disabled offenders should be

categorically excluded from execution. First, the Court explained that

executing a defendant who has been clinically diagnosed as intellectually

disabled does not further the goal of “retribution” normally used to justify

imposing the death penalty.7 This argument assumes the lessened moral

culpability of someone who is intellectually disabled.8

       The second justification offered by the Court was that executing a

defendant diagnosed as a intellectually disabled would not further the

goal of “deterrence.”9 The Court gave the following explanation:


       6
           Atkins, at 315-17.

       7
           Id. at 319.

       8
         Id. (“If the culpability of the average m urderer is insufficient to justify the m ost
extrem e sanction available to the State, the lesser culpability of the [intellectually disabled]
offender surely does not m erit that form of retribution.”).

       9
        Id. (“W ith respect to deterrence— the interest in preventing capital crim es by
prospective offenders— ‘it seem s likely that “capital punishm ent can serve as a deterrent
only when m urder is the result of prem editation and deliberation.”’”).
                                                           David Wood Concurring – 4

       Exempting the [intellectually disabled] from that punishment
       will not affect the “cold calculus that precedes the decision” of
       other potential murderers. Indeed, that sort of calculus is at
       the opposite end of the spectrum from behavior of
       [intellectually disabled] offenders. The theory of deterrence
       in capital sentencing is predicated upon the notion that the
       increased severity of the punishment will inhibit criminal
       actors from carrying out murderous conduct. Yet it is the
       same cognitive and behavioral impairments that make these
       defendants less morally culpable—for example, the diminished
       ability to understand and process information, to learn from
       experience, to engage in logical reasoning, or to control
       impulses—that also make it less likely that they can process
       the information of the possibility of execution as a penalty
       and, as a result, control their conduct based upon that
       information.10

The Court also pointed to the danger that intellectually disabled

defendants could face wrongful execution.                      According to the Court,

“[Intellectually disabled] defendants may be less able to give meaningful

assistance to their counsel and are typically poor witnesses, and their

demeanor may create an unwarranted impression of lack of remorse for

their crimes.” 11

                                              II.

       But the methodical way in which Applicant, by himself, carried out




       10
           Id. at 319-20 (internal citations om itted). In this regard, the Court appears to
have justified its categorical exem ption upon the sam e type of lay perceptions of intellectual
disability that should have “spark[ed] skepticism .” See Moore, 137 S. Ct. at 1051-52.

       11
            Atkins, 536 U.S. at 320-21.
                                                       David Wood Concurring – 5

his crimes paints the exact opposite picture.                  Applicant raped and

murdered six women between September 4, 1987 and March 14, 1988.12

All of the victims’ bodies were found buried in shallow graves in the same

desert area northeast of El Paso. They were all approximately 30 to 40

yards from one of the dirt roadways in the desert. Four of the bodies

were found in various states of undress, indicating that the killer had

sexually abused them. Five of the victims were seen by witnesses on the

day of their disappearance accepting a ride from a man with either a red

Harley-Davidson motorcycle or a beige pickup truck. Applicant owned

two vehicles matching those descriptions. Witnesses identified Applicant

as the last person seen with four of the victims. Applicant also kept a

burnt orange blanket and some shovels in the back of his pickup truck.

Orange fibers found on one of the victim’s clothing matched orange fibers

taken from a vacuum cleaner bag that Applicant and his then-girlfriend

left in their old apartment.

      But a seventh victim survived. Judith Kelly, a prostitute and heroin

addict, testified that in July 1987 she had been walking outside a

convenience store in the northeast part of El Paso when Applicant asked



      12
        W ood v. Quarterm an, 503 F.3d 408, 410 (5th Cir. 2007), cert. denied, 552 U.S.
1314 (2008).
                                              David Wood Concurring – 6

her if she needed a ride. Kelly got in Applicant’s truck, but Applicant did

not drive her home. Instead, he stopped at an apartment complex and

went inside while she stayed in the truck. When he returned, she noticed

a piece of rope hanging from one of his pockets. Applicant drove towards

the desert, and, after driving around awhile, stopped the truck, got out,

and ordered Kelly out as well.

     Kelly saw Applicant get a “brownish red” blanket and shovel out of

the back of his truck. Applicant then tied Kelly to the front of his truck

while he proceeded to dig a hole behind some bushes. This took ten to

fifteen minutes. Applicant then returned with the blanket and forced Kelly

to the ground, ripping her clothes. However, Applicant stopped when he

heard voices.    He ordered Kelly back into the truck and drove to a

different location in the desert.

     Applicant stopped his truck again, ordered Kelly out, spread the

blanket on the ground, and forced Kelly to remove her clothes. He then

gagged her, tied her to a bush, and raped her. Immediately afterwards,

Applicant stated he heard voices again. He threw his belongings back

into the truck and drove away. He left Kelly naked in the desert. His last

words to her were “[A]lways remember, I’m free.”

     Applicant told his cellmate, Randy Wells, about the murders.
                                                       David Wood Concurring – 7

Applicant described the victims as topless dancers or prostitutes and

detailed how he would lure each girl into his pickup truck by offering her

drugs. Then, according to Applicant, he would drive out into the desert,

tie the victim to his truck, and dig her grave. Then, he would tie her to

a tree and rape her. James Carl Sweeney, Jr., another cellmate, testified

that Applicant had kept news clippings about the murders.                  Applicant

confessed to Sweeney, Jr., that he had committed those murders.

                                           III.

     And yet, Applicant argues that he is categorically exempt from the

death     penalty     because,     under    clinical   diagnostic   criteria,   he   is

intellectually disabled. As the habeas court noted, Applicant’s IQ scores

range between 64 to 111. The Supreme Court has recently explained

that we are not allowed to look at “sources of imprecision in

administering the test to a particular individual” to narrow the test-

specific standard-error range.13 The Court made this observation to reject

the argument that courts can consider factors “unique” to the test-taker

when evaluating multiple IQ tests.14

     Here, the habeas court relied primarily upon the test administered


     13
          Moore, 137 S. Ct. at 1049.

     14
          Id.
                                              David Wood Concurring – 8

by Dr. Thomas Allen resulting in an IQ score of 75 because it was the only

test that was comprehensive and conducted properly. The habeas court’s

observations in this regard seem to place weight on the score of 75 not

because   of factors “unique” to      the test-taker, but because       the

methodology for that test was the most scientifically reliable. But Dr.

Allen also questioned whether that test undersold Applicant’s actual IQ

because of the possibility that Applicant was malingering.      This would

seem to rely upon the type of factors “unique” to the test-taker that the

Supreme Court believes we should not consider. So would placing less

weight on the other tests for similar reasons.

     With regard to the evidence of adaptive deficits, the habeas court

thoroughly details the evidence related to adaptive deficits in the areas

of functional academics, communication, self-care, home-living and

money management, social and interpersonal skills, use of community

resources, self-direction, work, leisure activities, and health and safety.

Certainly this evidence shows how Applicant has many adaptive

strengths.   But the Supreme Court, in rejecting our reliance upon the

infamous “Briseno factors,” noted that we are supposed to avoid lay
                                                         David Wood Concurring – 9

perceptions and stereotypes regarding intellectual disability. 15 Further,

we are required to focus upon adaptive deficits without placing “undue

emphasis” upon adaptive strengths.16

       Here, the habeas court noted a great amount of evidence showing

Applicant’s adaptive strengths, but a dearth of evidence demonstrating

adaptive deficits.             If we completely ignore the existence of evidence

demonstrating adaptive strengths, then this aspect of the inquiry

becomes nothing more than a legal choice to credit only mitigation

evidence that provides “a basis for a sentence less than death” 17

regardless of the strength of evidence demonstrating a defendant’s moral

blameworthiness.               It would seem to contradict the Supreme Court’s

requirement that the definition of intellectual disability be calibrated to

only include those whose degree of intellectual disability falls within a

national consensus regarding moral blameworthiness.18                      On the other

hand, we cannot rely solely upon the testimony of “a fourth grade



       15
            Id. at 1051-52.

       16
            Id. at 1052 n.9.

       17
          See Eddings v. Oklahom a, 455 U.S. 104, 110 (1982) (quoting Lockett v. Ohio, 438
U.S. 586, 607 (1978)) (effectively defining what constitutes m itigating evidence by holding
that the Eighth and Fourteenth Am endm ents require that a jury not be precluded from
considering m itigating evidence).

       18
            Atkins, 536 U.S. at 317.
                                                        David Wood Concurring – 10

teacher, a childhood friend, and Applicant’s sister” 19 to determine

adaptive deficits because that approach is built upon lay stereotypes of

the intellectually disabled.20 Ultimately, Moore does not prohibit courts

from considering adaptive strengths; it only prohibits placing “undue”

emphasis upon them.21 I do not believe that the habeas court, or this

Court, has placed undue emphasis on Applicant's adaptive strengths in

this case.

                                            IV.

       In the end, I join this Court’s opinion because I do not believe

Applicant has proven that the categorical exemption from the death

penalty applies to him. The Court rejects Applicant’s intellectual disability

claim by applying current diagnostic standards. But to the extent that

Applicant can build a claim of intellectual disability upon the shifting

sands of clinical psychological standards detailed in Moore, this case

demonstrates that the determination of intellectual disability has become

untethered from the original rationale for the exception to the imposition



       19
            Majority op. at 5.

       20
          Moore, 137 S. Ct. at 1051-52 (rejecting Briseno’s reliance upon lay perceptions of
intellectual disability because the m edical profession has endeavored to counter lay
stereotypes of the intellectually disabled).

       21
            See id. at 1052 n.9.
                                           David Wood Concurring – 11

of the death penalty announced in Atkins. Applicant is not intellectually

disabled. He is a serial killer.

      With these thoughts, I join the Court.

Filed: December 12, 2018

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