             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                        NO. AP-77,038

                        US CARNELL PETETAN, JR., Appellant

                                                v.

                                  THE STATE OF TEXAS

                                ON DIRECT APPEAL
                            FROM CAUSE NO. 2012-2331-C1
                            IN THE 19 TH DISTRICT COURT
                                MCLENNAN COUNTY

       A LCALA, J., filed a dissenting opinion.

                                  DISSENTING OPINION

       The question I address in this dissenting opinion is whether the evidence establishes

that US Carnell Petetan, Jr., appellant, is intellectually disabled so that he is categorically

barred from the death penalty for capital murder. The answer to that question likely turns on

the legal standard that is used to define what constitutes intellectual disability in this context,

and this is where I part from this Court’s majority opinion. Today, this Court’s majority

opinion answers that question by deciding that appellant is not intellectually disabled under
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Texas’s existing legal standard for assessing claims of intellectual disability as described in

Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004). For two reasons, I respectfully

disagree that it is appropriate to resolve appellant’s case under Briseno. First, I would not

decide this appeal at this juncture because, at best, the Texas standard is in flux with respect

to whether this state is currently applying an improper standard for determining intellectual

disability. I would defer resolution of this appeal until after the Supreme Court decides

Moore v. Texas, in which the issue there, as here, is whether Texas’s legal standard for

determining intellectual disability violates the Eighth Amendment’s prohibition against the

execution of intellectually disabled people. See Moore v. Texas, No. 15-797 (pet. granted

June 6, 2016, argued Nov. 29, 2016). I disagree with this Court’s judgment affirming this

death sentence through the application of a questionable standard to the facts of this case, and

I would not enter any judgment on this appeal at this time. In the alternative, I would hold

that Briseno is unconstitutional, and I would resolve appellant’s complaint under a

constitutionally compliant standard that is informed by the current medical diagnostic

framework and that does not resort to consideration of unscientific factors. Given the limited

amount of time that I have had to prepare this dissenting opinion, I confine my discussion in

this case to the proper standard for deciding intellectual-disability claims in Texas rather than

attempting to apply the law to the facts of this case. In light of these considerations, I

respectfully dissent from this Court’s judgment that affirms the conviction and sentence of

death imposed against appellant through the application of an improper standard.
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    I. At Best, Texas’s Standard for Determining Intellectual Disability is in Flux

       In his tenth and eleventh points of error, appellant contends that his intellectual

disability renders him categorically ineligible for the death penalty and that the jury’s

determination to the contrary at the punishment phase of his trial was against the great weight

and preponderance of the evidence. In the course of presenting those complaints, he also

asks this Court to reevaluate its substantive standard for addressing claims of intellectual

disability in light of recent guidance on that matter from the Supreme Court in Hall v.

Florida, 134 S. Ct. 1986 (2014). In rejecting appellant’s complaints, this Court’s majority

opinion applies this Court’s established standard for evaluating claims of intellectual

disability as set forth in Briseno, 135 S.W.3d at 7-8. This Court explains that, to establish

intellectual disability under the Briseno standard, appellant must show by a preponderance

of the evidence (1) significantly subaverage general intellectual functioning, generally shown

by an intelligence quotient (IQ) of 70 or less; (2) accompanied by related and significant

limitations in adaptive functioning; and (3) the onset of the above two characteristics having

occurred before the age of eighteen. Id. at 7. Applying the Briseno framework to appellant’s

case, this Court’s majority opinion concludes that the evidence is legally and factually

sufficient to support the jury’s negative answer to the issue on intellectual disability, and it

further declines appellant’s invitation to reconsider the Briseno standard in light of Hall

which, appellant contends, has called the validity of portions of that standard into question.

       Although this Court’s analysis suggests that the Briseno standard is fully compliant
                                                                                        Petetan - 4

with Supreme Court precedent defining the scope of the prohibition on the execution of

intellectually disabled people, I disagree that, at this juncture, it is appropriate to continue to

apply that standard as a basis for rejecting appellant’s intellectual disability claim. As I will

explain further below, the Supreme Court’s decisions in Atkins v. Virginia and Hall signal

that any assessment of intellectual disability must be informed by, and cannot be untethered

from, the current medical diagnostic framework for assessing intellectual disability, but this

Court’s standard in Briseno has strayed from that requirement. See Atkins v. Virginia, 536

U.S. 304, 307 (2002); Hall, 134 S. Ct. at 1999. In particular, although Briseno properly held

that claims of intellectual disability must be assessed in light of the three prongs described

above that comprise the clinical/medical framework for evaluating intellectual disability,

Briseno also incorporated additional non-medical “evidentiary factors” that could serve as

a basis for rejecting a defendant’s intellectual-disability claim, even if he satisfied the

medical definition of intellectual disability. See Briseno, 135 S.W.3d at 8. Because Briseno

incorporates considerations into the assessment of intellectual disability that are in direct

conflict with the clinical/medical framework for evaluating intellectual disability, it is in

tension with the Supreme Court’s opinions in Atkins and Hall. Moreover, given this tension

between Texas’s standard in Briseno and the Supreme Court’s holdings in Atkins and Hall,

the very issue that is at the heart of appellant’s complaint in this case—whether Texas’s

standard for evaluating claims of intellectual disability conforms with the requirements of

the Eighth Amendment—is currently being reviewed by the Supreme Court in the case of
                                                                                     Petetan - 5

another Texas capital offender, Bobby James Moore. See Ex parte Moore, 470 S.W.3d 481

(Tex. Crim. App. 2015), cert. granted sub nom. Moore v. Texas, No. 15-797, 136 S. Ct. 2407

(pet. granted June 6, 2016). Given these considerations, in my view, it would be proper for

this Court to delay resolution of this case until the Supreme Court issues its forthcoming

opinion in Moore that will, in all likelihood, be issued in the next few months, given that that

Court ordinarily decides its cases during the same term in which a case is heard. I explain

my rationale by detailing the pertinent cases discussing intellectual disability in the

chronological order of the decisions: Atkins, Briseno, Hall, Moore, and the instant case.

       A. The Supreme Court’s Announcement of a Categorical Prohibition Against
       Executing Intellectually Disabled Offenders in Atkins

       In Atkins, the Supreme Court held that it constitutes cruel and unusual punishment in

violation of the Eighth Amendment to execute an intellectually disabled person. 536 U.S.

at 307. The Supreme Court explained that, “[b]ecause of their disabilities in areas of

reasoning, judgment, and control of their impulses, [such individuals] do not act with the

level of moral culpability that characterizes the most serious adult criminal conduct.” Id. at

306; see also id. at 320 (explaining that intellectually disabled people exhibit “cognitive and

behavioral impairments that make [them] 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”). Looking to national trends in state legislation addressing

the suitability of imposing the death penalty against intellectually disabled people, the

Supreme Court observed that a large number of states had enacted legislation prohibiting the
                                                                                    Petetan - 6

execution of such individuals. Id. at 315-16. This trend, it explained, provided “powerful

evidence that today our society views [intellectually disabled] offenders as categorically less

culpable than the average criminal.” Id. at 316. In further explaining its reasoning, the

Supreme Court in Atkins indicated that the execution of intellectually disabled offenders was

inconsistent with the penological purposes served by the death penalty. Id. at 318. It stated

that such individuals

       frequently know the difference between right and wrong and are competent to
       stand trial. Because of their impairments, however, by definition they 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. . . .
       [T]here is abundant evidence that they often act on impulse rather than
       pursuant to a premeditated plan, and that in group settings they are followers
       rather than leaders. Their deficiencies do not warrant an exemption from
       criminal sanctions, but they do diminish their personal culpability.

Id. In light of these considerations, the Supreme Court observed that executing such

offenders would advance neither the retribution nor deterrence purposes of the death penalty.

Id. at 318-19. Construing the Eighth Amendment “in the light of our evolving standards of

decency,” the Supreme Court concluded that “such punishment is excessive and that the

Constitution places a substantive restriction on the State’s power to take the life” of an

intellectually disabled offender. Id. at 321 (citations omitted).

       Although it determined that a national consensus had emerged against the execution

of intellectually disabled offenders, the Supreme Court recognized that, “[t]o the extent there

is serious disagreement about the execution of [intellectually disabled] offenders, it is in
                                                                                       Petetan - 7

determining which offenders are in fact [intellectually disabled].” Id. at 317. Moreover, the

Court indicated 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.” Id. With these observations in mind, the Supreme Court stated that

it would “‘leave to the State[s] the task of developing appropriate ways to enforce the

constitutional restriction upon [their] execution of sentences.’” Id. (quoting Ford v.

Wainwright, 477 U.S. 399, 405, 416-17 (1986)).

        B. This Court’s Decision Implementing Atkins in Ex parte Briseno

        Subsequent to Atkins, this Court in Briseno formulated its method for applying

Atkins’s restriction on the execution of intellectually disabled offenders. See Briseno, 135

S.W.3d at 2. At the outset of its analysis in Briseno, this Court observed that it was necessary

to set forth a judicially created standard to implement Atkins in the absence of legislative

guidance as to the proper definition for assessing claims of intellectual disability. Id. at 4-5.

The standard set forth in Briseno was intended to provide “temporary judicial guidelines” for

addressing Atkins claims in the absence of legislation to implement the rule of that case. Id.

at 5.

        In closely examining the analysis in Briseno, as I explain more fully below, it appears

that the Court’s intention was to establish temporary guidelines that would address two

matters. First, the three-pronged standard would address who was intellectually disabled

under the medical criteria that was current at that time over a decade ago. Second, a court-
                                                                                      Petetan - 8

created legal standard that appears to have been interwoven into the second prong on

adaptive deficits would be used to identify individuals who, although perhaps considered

mildly intellectually disabled under the medical standard, would nevertheless be eligible for

execution because they did not exhibit the degree of intellectual disability that would exempt

them from the death penalty under Atkins. Id. at 8. In establishing those guidelines, this

Court focused on the fact that the vast majority of people with intellectual disability fall into

the range of having only a mild intellectual disability, as compared to those with moderate,

severe, or profound intellectual disability. Id. at 5-6 (citing the American Psychiatric

Association Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, also

referred to as the DSM-IV, and observing that “85% of those officially categorized as

[intellectually disabled] fall into the highest group, those mildly [intellectually disabled]”).

This Court explained that those who might be considered intellectually disabled “encompass[

] a large and diverse population suffering from some form of mental disability”; that

intellectual disability is “not necessarily a lifelong disorder”; and that the functioning level

of those who are mildly intellectually disabled is likely to improve with supplemental social

services and assistance. Id. at 5-6. As an apparent explanation for why it might be proper

to medically diagnose a person with mild intellectual disability but not abide by that

diagnosis as a basis to classify that person as ineligible for the death penalty, this Court

observed that it is “understandable that those in the mental health profession should define

[intellectual disability] broadly to provide an adequate safety net for those who are at the
                                                                                          Petetan - 9

margin and might well become mentally-unimpaired citizens if given additional social

services support.” Id. at 6. To attempt to separate the wheat from the chaff to determine

which people with borderline or mild intellectual disabilities could still be subject to the

death penalty, this Court applied (1) medical criteria and (2) legal criteria.

       1. The Medical Criteria Under the Three General Prongs

       In Briseno, this Court indicated that, to determine whether an individual falls within

the clinical definition of intellectual disability, it would rely primarily on the criteria

employed by the American Association on Mental Retardation (AAMR) and the definition

contained in section 591.003(13) of the Texas Health and Safety Code. Id. at 7.1 Pursuant

to those sources, intellectual disability is defined as (1) “significantly subaverage” general

intellectual functioning, generally defined as an IQ of 70 or below; (2) accompanied by

“related” limitations in adaptive functioning; (3) the onset of which occurs prior to the age

of 18. Id.

       With particular respect to the adaptive-functioning prong of the inquiry, this Court

stated that the relevant criteria are “exceedingly subjective, and undoubtedly experts will be

found to offer opinions on both sides of the issue in most cases.” Id. at 8; see also id. at 13

(suggesting that “determining what constitutes [intellectual disability] in a particular case

varies sharply depending upon who performs the analysis and the methodology used”). In



1
        See TEX . HEALTH & SAFETY CODE § 591.003(7-a) (“‘Intellectual disability’ means
significantly subaverage general intellectual functioning that is concurrent with deficits in adaptive
behavior and originates during the developmental period.”).
                                                                                     Petetan - 10

making this observation, the Court appeared to suggest that it was this inherent subjectivity

in the medical standard that necessitated resort to other, non-medical considerations that

would permit a fact-finder to determine whether an offender falls within the scope of Atkins.

       2. The Legal Criteria Used to Modify the Adaptive-Deficits Prong

       In order to reflect the portion of Atkins that arguably suggested that some borderline

intellectually disabled people might nevertheless be eligible for execution, it appears that this

Court created a legal standard to identify those individuals who were medically or clinically

determined to be intellectually disabled but who could nonetheless be eligible for execution

because they fell outside the “range of [intellectually disabled] offenders about whom there

is a national consensus.” Atkins, 536 U.S. at 317. That legal standard was incorporated into

and appeared to modify the second prong of the medical criteria addressing adaptive deficits.

       In Briseno, this Court opined that, unlike the task of a mental-healthcare provider to

provide services and support to intellectually disabled people, the legal question before the

Court was to “define that level and degree of [intellectual disability] at which a consensus

of Texas citizens would agree that a person should be exempted from the death penalty.”

Briseno, 135 S.W.3d at 6. In addressing that question, the Court stated,

       Most Texas citizens might agree that Steinbeck’s Lennie should, by virtue of
       his lack of reasoning ability and adaptive skills, be exempt. But, does a
       consensus of Texas citizens agree that all persons who might legitimately
       qualify for assistance under the social services definition of [intellectual
       disability] be exempt from an otherwise constitutional penalty? Put another
       way, is there a national or Texas consensus that all of those persons whom the
       mental health profession might diagnose as meeting the criteria for
       [intellectual disability] are automatically less morally culpable than those who
                                                                                     Petetan - 11

       just barely miss meeting those criteria? Is there, and should there be, a[n]
       [intellectual disability] bright-line exemption from our state’s maximum
       statutory punishment? As a court dealing with individual cases and litigants,
       we decline to answer that normative question without significantly greater
       assistance from the citizenry acting through its Legislature.

Id.

       Although this Court suggested in Briseno that it was not setting forth a “bright-line”

rule with respect to whether some mildly intellectually disabled offenders would nevertheless

be eligible for execution, in practice the rule of Briseno has operated as a definitive rule that

permits the execution of such individuals. The legal criteria used in Briseno to determine

which individuals with mild intellectual disability might still be subject to the death penalty

were described by this Court as “some other evidentiary factors which factfinders in the

criminal trial context might also focus upon in weighing evidence as indicative of

[intellectual disability] or of a personality disorder.” Those seven factors are:

•      Did those who knew the person best during the developmental stage—his family,
       friends, teachers, employers, authorities—think he was intellectually disabled at that
       time, and, if so, act in accordance with that determination?
•      Has the person formulated plans and carried them through or is his conduct
       impulsive?
•      Does his conduct show leadership or does it show that he is led around by others?
•      Is his conduct in response to external stimuli rational and appropriate, regardless of
       whether it is socially acceptable?
•      Does he respond coherently, rationally, and on point to oral or written questions or do
       his responses wander from subject to subject?
•      Can the person hide facts or lie effectively in his own or others’ interests?
•      Putting aside any heinousness or gruesomeness surrounding the capital offense, did
       the commission of that offense require forethought, planning, and complex execution
       of purpose?

Id. at 8-9. Without citing any authority or explanation for the conception of these particular
                                                                                     Petetan - 12

factors as a basis for determining intellectual disability or assessing a person’s adaptive

deficits, this Court appears to have created the criteria out of whole cloth.

       The insertion of the seven Briseno factors incorporating a subjective assessment of

non-diagnostic evidentiary considerations to modify the three-pronged medical standard for

intellectual disability has created a Frankenstein approach to determining intellectual

disability in Texas. Due to the insertion of the unscientific Briseno factors into the adaptive-

deficits prong for determining intellectual disability, Texas’s standard implementing the

categorical bar on executing intellectually disabled people is neither medical nor legal. The

standard was a creation of this Court, incorporating part medical and part legal considerations

to form a mutant standard for assessing intellectual disability that is disengaged from what

the Supreme Court intended when it decided Atkins.

       In all fairness to the Briseno Court, the standard announced in that case was intended

to be a temporary solution until the Legislature could act to implement a permanent standard,

and it made its decision thirteen years ago. The fault lies not with the Briseno Court but with

today’s Court that continues to apply that standard even after recent developments have

called into doubt whether Briseno remains a viable standard for deciding claims of

intellectual disability, given the Supreme Court’s indication in its recent decision in Hall that

any such determination must be closely tied to the current medical diagnostic criteria, rather

than being based on the types of subjective, non-clinical considerations that this Court

suggested were appropriate in Briseno.
                                                                                    Petetan - 13

       C. Supreme Court’s Reasoning in Hall v. Florida Suggests that Standard For
       Assessing Intellectual Disability Must Be Rooted In Current Medical Diagnostic
       Framework

       In Hall, the Supreme Court considered whether Florida’s standard for evaluating

claims of intellectual disability conformed to the substantive rule it had set forth in Atkins.

See Hall, 134 S. Ct. at 1990. The Florida rule had defined intellectual disability as requiring

an IQ test score of 70 or less, and, if an offender had an IQ score of 70 or above, all further

exploration of intellectual disability was foreclosed. Id. The Supreme Court in Hall rejected

this rule as being too “rigid” and as creating an “unacceptable risk that persons with

intellectual disability will be executed.” Id. In explaining its reasoning, the Hall Court first

acknowledged that courts and legislatures routinely “consult and are informed by the work

of medical experts in determining intellectual disability[,]” and it unequivocally stated that,

“[i]n determining who qualifies as intellectually disabled, it is proper to consult the medical

community’s opinions.” Id. at 1993. Applying that principle to Florida’s rule, the Supreme

Court observed that Florida’s use of a strict IQ score cutoff was impermissible because it

“disregard[ed] established medical practice” in two ways. Id. at 1995. First, the Supreme

Court noted that Florida’s rule was incompatible with medical standards because it “takes

an IQ score as final and conclusive evidence of a defendant’s intellectual capacity, when

experts in the field would consider other evidence,” including evidence of adaptive deficits.

Id. Second, the Court explained that the rule was problematic because it “relies on a

purportedly scientific measurement of the defendant’s abilities, his IQ score, while refusing
                                                                                       Petetan - 14

to recognize that the score is, on its own terms, imprecise.” Id. The Hall Court observed that

Florida’s strict IQ score cutoff was questionable because the “professionals who design,

administer, and interpret IQ tests have agreed . . . that IQ test scores should be read not as a

single fixed number but as a range,” based on the standard error of measurement (SEM). Id.

       In ultimately rejecting Florida’s rule as unconstitutional, the Supreme Court explained

that Atkins “did not give the States unfettered discretion to define the full scope of the

constitutional protection,” but instead required states to incorporate current medical

diagnostic standards in determining intellectual disability. Id. at 1998. In support, it

reviewed those portions of Atkins that had cited clinical definitions of intellectual disability,

which, “by their express terms, rejected a strict IQ test score cutoff at 70.” Id. The Court

further observed that “Atkins itself not only cited clinical definitions for intellectual disability

but also noted that the States’ standards, on which the Court based its own conclusion,

conformed to those definitions.” Id. at 1999. The Court stated,

       In the words of Atkins, those 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.” Thus, they bear
       “diminish[ed] . . . personal culpability.” The clinical definitions of intellectual
       disability, which take into account that IQ scores represent a range, not a fixed
       number, were a fundamental premise of Atkins.

Id. (quoting Atkins, 536 U.S. at 318). The Court thus interpreted Atkins as providing

“substantial guidance on the definition of intellectual disability,” and it further disavowed

any suggestion that Atkins had bestowed upon the states complete autonomy to “define
                                                                                     Petetan - 15

intellectual disability as they wished,” because, in that event, the Court’s decision in Atkins

“could become a nullity.” Id.

       In holding that Florida’s statute, as interpreted by its courts, was unconstitutional, the

Supreme Court indicated that its determination was “informed by the views of medical

experts.” Id. at 2000. Although it explained that those views did not “dictate the Court’s

decision,” the Court would not “disregard these informed assessments.” Id. It stated,

       It is the Court’s duty to interpret the Constitution, but it need not do so in
       isolation. The legal determination of intellectual disability is distinct from a
       medical diagnosis, but it is informed by the medical community’s diagnostic
       framework. Atkins itself points to the diagnostic criteria employed by
       psychiatric professionals. And the professional community’s teachings are of
       particular help in this case, where no alternative definition of intellectual
       disability is presented and where this Court and the States have placed
       substantial reliance on the expertise of the medical profession.

Id. The Supreme Court’s reasoning in Hall thus clearly signaled that, to be constitutionally

permissible, standards for assessing intellectual disability must be informed by the current

diagnostic framework and may not disregard the medical community’s informed assessments

regarding what constitutes intellectual disability. Id.

       As I explain more fully in Section II below, the Briseno standard fails to comport with

these requirements, given that the standard set forth in that case relies heavily on the seven

evidentiary factors which, as acknowledged by this Court, are not derived from the medical

diagnostic framework, but instead resort to lay stereotypes regarding what constitutes

intellectual disability. See Ex parte Van Alstyne, 239 S.W.3d 815, 820 (Tex. Crim. App.

2007) (describing Briseno evidentiary factors as “non-diagnostic”). This tension between
                                                                                    Petetan - 16

Hall and Briseno was discussed by this Court in Moore, and the Supreme Court’s subsequent

grant of certiorari in that case suggests that the apparent conflict between those cases is ripe

for resolution.

       D. Ex parte Moore and Subsequent Grant of Certiorari to Review Texas’s
       Standard for Assessing Intellectual Disability

       In Moore, this Court’s majority opinion indicated that, in spite of the Supreme Court’s

holding in Hall, it would continue to adhere to Briseno as the appropriate standard for

deciding intellectual-disability claims under Atkins. See Moore, 470 S.W.3d at 486. I

dissented from that holding, and, in Section II below, I will discuss my dissenting opinion

in that case. In Moore, the habeas court had recommended that habeas relief be granted to

Moore on the basis that he had proven his intellectual-disability claim in light of modern

clinical standards as set forth by the American Association on Intellectual and Developmental

Disabilities (AAIDD),2 but this Court’s majority opinion held that the habeas court’s use of

modern clinical standards was in conflict with Briseno. This Court’s majority opinion stated,

“Because our Legislature has not enacted legislation to implement Atkins’s mandate, we

continue to follow the AAMR’s 1992 definition of intellectual disability that we adopted in

Briseno for Atkins claims presented in Texas death-penalty cases . . . . The habeas judge

therefore erred by disregarding our case law and employing the definition of intellectual

disability presently used by the AAIDD[.]” Id. This Court further explained,



2
      This organization was formerly known as the American Association on Mental Retardation,
or AAMR.
                                                                                      Petetan - 17

        It may be true that the AAIDD’s and [American Psychological Association’s]
        positions regarding the diagnosis of intellectual disability have changed since
        Atkins and Briseno were decided. Indeed, we have recently discussed the
        subjectivity surrounding the medical diagnosis of intellectual disability and
        some of the causes for that subjectivity. See [Ex parte] Cathey, 451 S.W.3d at
        10 & nn. 22–23. But although the mental-health fields and opinions of
        mental-health experts inform the factual decision, they do not determine
        whether an individual is exempt from execution under Atkins. See id. at 9–10
        (stating that we must apply our own judgment on the appropriate ways to
        enforce the ultimately legal prohibition on executing intellectually disabled
        offenders). . . . We conclude that, at this juncture, the legal test we established
        in Briseno remains adequately “informed by the medical community’s
        diagnostic framework.” See Hall v. Florida, ––– U.S. ––––, 134 S.Ct. 1986,
        2000, 188 L.Ed.2d 1007 (2014).

Id. at 486-87. In rejecting the habeas court’s recommendation to grant relief on Moore’s

Atkins claim, this Court’s majority opinion held that the habeas court had failed to conduct

a proper “relatedness inquiry” by inadequately considering Briseno’s seven evidentiary

factors. Id. at 488-89 (citing Briseno, 135 S.W.3d at 8-9). This Court’s majority opinion

further indicated, with respect to the adaptive-functioning prong, that a court should consider

“all of the person’s functional abilities,” including “those that show strength as well as those

that show weakness.” Id. at 489. It held that the habeas court had erred to the extent that

it “considered only weaknesses in applicant’s functional abilities.” Id. After applying

Briseno to the facts of Moore’s case, this Court’s majority opinion rejected the habeas court’s

recommendation that had found Moore to be intellectually disabled, and this Court denied

relief. Id.

        Moore sought review of that decision by filing a petition for a writ of certiorari in the

Supreme Court, which was granted. See Moore v. Texas, No. 15-797 (pet. granted June 6,
                                                                                    Petetan - 18

2016, argued Nov. 29, 2016). Moore’s case remains pending in the Supreme Court. The

question before the Supreme Court in Moore is “whether it violates the Eighth Amendment

and this Court’s decision in Hall v. Florida, 134 S. Ct. 1986 (2014) and Atkins v. Virginia,

536 U.S. 304 (2002) to prohibit the use of current medical standards on intellectual disability,

and require the use of outdated medical standards, in determining whether an individual may

be executed.”

       In his arguments to the Supreme Court, Moore contends that Atkins and Hall require

a state’s standards for evaluating intellectual disability to be “informed by the medical

community’s diagnostic framework” and that a state’s determination may not “go against the

unanimous professional consensus” or “disregard established medical practice.” He contends

that this Court’s approach in Briseno conflicts with Atkins and Hall by “prohibit[ing]

consideration of current medical standards when evaluating the constitutionality of executing

an individual who claims intellectual disability,” and he further challenges Briseno’s

adoption of additional evidentiary considerations that are not rooted in the medical-diagnostic

framework and thus are “clinically unsound.” He states,

       [This Court’s] determination that Texas courts must not consider current
       medical standards—and must instead use its Briseno framework of superseded
       medical standards and non-clinical factors—runs headlong into [the Supreme
       Court’s] decisions. . . . It is a conspicuous outlier among state and federal
       courts considering intellectual disability, and squarely presents the deeply
       troubling prospect that intellectually disabled individuals . . . will be executed
       in violation of their Eighth Amendment rights.

Moore states that, just as there would be no valid medical reason for a clinician to make a
                                                                                   Petetan - 19

diagnosis of intellectual disability based on outdated or unscientific standards, there is no

valid legal reason for a court to use such a standard in evaluating a claim under Atkins. He

suggests that the difference between the outdated diagnostic standard and the current

standard is significant, in that the current standard places a greatly reduced emphasis on IQ

scores in the assessment of intellectual functioning and relies more heavily on an assessment

of adaptive functioning. As to adaptive functioning, Moore observes that, under the current

clinical definition of intellectual disability set forth in the DSM-5, adaptive deficits should

not be balanced or offset against perceived adaptive strengths in other areas. He further

contends that the DSM-5 “explicitly recognizes the difficulty in assessing deficits in adaptive

functioning in highly controlled settings such as prisons.” Moreover, he contends that both

the DSM-5 and the current AAIDD standards take the position that “street smarts, behavior

in jail or prison, or criminal adaptive functioning” should not be used to infer levels of

adaptive behavior.

       Further, to the extent that this Court had discounted Moore’s evidence of deficits in

adaptive functioning based on a determination that those deficits were “caused by a variety

of [other] factors,” including his troubled childhood and history of adolescent drug use,

Moore contends that this analysis “completely disregarded current clinical guidance that

environmental challenges and other disorders can, and frequently do, coexist with and

contribute to intellectual disability.” He states that this Court’s approach was flawed because

it
                                                                                   Petetan - 20

       treated risk factors and associated features of intellectual disability which
       support its diagnosis under clinical standards as refuting a diagnosis here. . .
       . Thus the very factors that the CCA used to dispense with Moore’s diagnosis
       of intellectual disability, actually support, under current medical standards, a
       diagnosis of intellectual disability . . . . By requiring Moore to prove that his
       deficits in adaptive functioning were caused specifically and exclusively by his
       intellectual deficits—where there is no such requirement in clinical guidelines
       and where the clinical guidance suggests that the unrelated factors, in fact,
       support a diagnosis of intellectual disability—[this Court] created an
       unacceptable risk that persons with intellectual disability will be executed.

       In sum, Moore’s arguments to the Supreme Court challenge both this Court’s refusal

to consider current medical standards in evaluating claims of intellectual disability and its

adherence to the Briseno evidentiary factors that are “inconsistent with clinical standards,”

based on impermissible lay stereotypes, and inject “unsound non-clinical criteria into Texas’s

diagnostic framework for assessing intellectual disability.” As shown below, Moore’s

contention that the Briseno standard is incompatible with the requirements of the Eighth

Amendment as set forth in Atkins and Hall due to that standard’s failure to reflect current

medical diagnostic standards is essentially the same as the contention raised by this appellant

in his direct appeal, in which he argues that this Court should cease its adherence to the

Briseno standard.

       E. Appellant’s Arguments in his Brief Are Encompassed Within the Issue
       Pending in Moore

       Because the Supreme Court’s opinion in Moore is imminent, and because the issues

to be resolved in that case are directly relevant to appellant’s arguments in the instant case,

I would not resolve appellant’s direct appeal until this Court has the benefit of the Supreme
                                                                                            Petetan - 21

Court’s forthcoming decision in Moore.

        Similar to the arguments that Moore has presented to the Supreme Court, in his brief

in this direct appeal, appellant challenges the Briseno standard’s use of “other evidentiary

factors” that are untethered from the medical/clinical definitions of intellectual disability.

See Briseno, 135 S.W.3d at 8. He states that these other factors were created “[s]eemingly

from whole cloth, and without scientific, clinical, or other authority[.]” He further asserts that

this Court “routinely applies the Briseno factors instead of clinical diagnostic criteria to

evaluate intellectual disability.” And, he suggests, Hall confirmed that “clinical standards

were a fundamental premise of Atkins” and must form the basis of any assessment of

intellectual disability. As in Moore, appellant contends that Texas’s current standard departs

from clinical standards “by disregarding a defendant’s adaptive deficits if the defendant also

exhibits adaptive strengths and by giving effect to lay stereotypes of how intellectually

disabled persons ought to appear to behave.” In particular, he notes that, contrary to the

Briseno standard, under clinical standards, observed limitations in one area cannot be

outweighed by potential strengths in other unrelated areas. Thus, he suggests, under clinical

standards, meeting minimum thresholds for deficits properly yields a diagnosis of intellectual

disability, regardless of whether a defendant is competent in other adaptive domains.3



3
        As appellant notes, strengths in an area in which the defendant claims to have limitations are
clinically relevant. Clark v. Quarterman, 457 F.3d 441, 447 (5th Cir. 2006). But “[b]ecause
limitations define [intellectual disability], adaptive strengths are relevant only insofar as they offset
particular adaptive weaknesses.” Blume et al., Of Atkins and Men, 18 CORNELL J.L. & PUB. POL’Y
689, 707 (2009).
                                                                                     Petetan - 22

Further, appellant contends that, by giving effect to lay opinions that rely on stereotyping, the

Briseno standard frequently means that “Atkins cases in Texas . . . turn on testimony from

individuals with no clinical training about whether they personally considered the defendant”

intellectually disabled. Several of the Briseno factors, he asserts, are “not factors considered

in any known clinical assessments.” In sum, he opines that this Court has not complied with

Atkins or Hall by continuing to rely on a “nonclinical approach to uphold death sentences

when defendants concededly meet the clinical definition of intellectual disability.” He

contends that “no other state legislature or court has devised its own nonclinical evidentiary

factors to govern the evaluation of adaptive functioning for Atkins purposes.” He argues that

this Court, by continuing to apply Briseno, “systematically departs from the clinical norms

that govern Atkins claims in the vast majority of other States by giving dispositive weight to

factors that have no scientific grounding.”

       By comparing the arguments presented in appellant’s brief with the arguments Moore

has presented to the Supreme Court, it should be apparent that the issue pending in Moore

is directly germane to the resolution of appellant’s complaint in this case. There can be little

doubt that the Supreme Court’s ruling will constitute new law that will apply to appellant’s

case. Accordingly, given all of the foregoing considerations that suggest, at best, that

Texas’s standard for evaluating intellectual disability is in flux, I would delay resolution of

this appeal until this Court receives a ruling as to whether the Briseno standard remains

viable at this juncture.
                                                                                    Petetan - 23

  II. Alternatively, Texas’s Standard for Intellectual Disability is Unconstitutional

       Because the Briseno standard relies heavily on the seven evidentiary factors which are

not derived from the medical diagnostic framework and instead are based on lay stereotypes

and subjective considerations regarding what constitutes intellectual disability, I conclude

that the Texas standard for determining intellectual disability is unconstitutional. Compare

Hall, 134 S. Ct. at 1999 (confirming that “clinical definitions of intellectual disability . . .

were a fundamental premise of Atkins”), with Van Alstyne, 239 S.W.3d at 820 (describing

Briseno evidentiary factors as “non-diagnostic”). I would entirely abandon the Briseno

standard employed by this Court to determine intellectual disability.

       As I stated in my dissenting opinion in Moore, “it is time for Texas to reevaluate the

decade-old, judicially created standard in Ex parte Briseno in light of a shift in the consensus

of the medical community regarding what constitutes intellectual disability, and in light of

the Supreme Court’s recent holding in Hall v. Florida indicating that courts are required to

consider that consensus in assessing intellectual-disability claims.” See Moore, 470 S.W.3d

at 528 (Alcala, J., dissenting); Hall, 134 S. Ct. at 1993. In my Moore dissent, I suggested that

this Court “should take this opportunity to modify the Briseno test to require a bifurcated

inquiry” consisting of a separate medical and legal test for intellectual disability. Moore, 470

S.W.3d at 530. Since I made that suggestion, however, I have, upon further reflection,

revised my position, and I now conclude that this Court should limit itself to a single inquiry

that is rooted solely in medical/clinical considerations. In my Moore dissent, I described that
                                                                                  Petetan - 24

medically-based inquiry as a determination “whether a defendant is intellectually disabled

based on the current standards employed by the medical community in the manual of the

American Association on Intellectual and Developmental Disabilities.” Id. Furthermore,

in my Moore dissent, I said, “Because this Court’s majority opinion continues to apply the

former medical standard that was in effect in 2004, rather than the prevailing views held by

the medical community today, I would modify this portion of Briseno to reflect the current

standards.” Id.

       In no circumstances would I permit the commingling of medical criteria with non-

medical criteria to ascertain who is intellectually disabled. I concluded in my dissenting

opinion in Moore that “the Briseno Court’s decision to place a legal standard into the medical

criteria for establishing adaptive deficits produced an unscientific standard that is

inconsistent with the requirement that any standard be informed by current medical criteria.”

Id. at 536-37. I, therefore, suggested that this Court should adopt a standard that would not

commingle the seven Briseno factors with the three-prong medical test for establishing

intellectual disability.

       In an effort to salvage some of this Court’s reasoning that gave rise to the seven

Briseno evidentiary considerations, in my Moore dissent I compared those factors to the

adaptive-deficits prong of the clinical inquiry, and I reiterate today that some of the

evidentiary considerations set forth in Briseno appear to attempt to correlate with the

adaptive-deficits prong. Id. But, upon further reflection since Moore, it seems clear to me
                                                                                    Petetan - 25

that the seven Briseno factors do more harm than good and thus should not form any part of

this Court’s assessment of intellectual-disability claims. By allowing a fact-finder to override

clinical considerations based on immaterial and stereotypical views of how an intellectually

disabled person should behave, the seven Briseno factors muddle what should be a three-

pronged inquiry based on the current medical diagnostic framework. The inquiry should be

whether the evidence proves that a person is intellectually disabled under a proper medical

standard, and, if it does, then Atkins and Hall require that the person be categorically exempt

from the death penalty. See Atkins, 536 U.S. at 304; Hall, 134 S. Ct. at 1999.

       Having determined that current medical standards should be employed to decide

intellectual disability in this context and that the seven Briseno considerations should be

removed from the medical standard, all that remains to be decided is whether each state may

apply its own legal standard for purposes of deciding who among those people who are

intellectually disabled may nonetheless be subject to the death penalty. Although some of

the discussion in Atkins and Hall appears to suggest that states may have some leeway in

creating their own legal standards, I am no longer convinced that a state may create a legal

standard that would permit the death penalty for someone who is considered intellectually

disabled under the medical standard. In Atkins, the Supreme Court said 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” against the

imposition of the death penalty. Atkins, 536 U.S. at 317. Furthermore, in Hall, the Supreme
                                                                                    Petetan - 26

Court stated that the “legal determination of intellectual disability is distinct from a medical

diagnosis, but it is informed by the medical community’s diagnostic framework.” Hall, 134

S. Ct. at 2000. I recognize that these statements could be interpreted as suggesting that states

have some discretion to create a legal standard permitting the death penalty against some

people who have a mild intellectual disability, as determined by the medical/clinical

framework. But I cannot reconcile these statements that might appear to permit the execution

of someone who is intellectually disabled under current medical standards, given the

Supreme Court’s clear categorical holding that a person who is intellectually disabled is not

subject to the death penalty, and given the Court’s more recent suggestion in Hall that a

state’s standard for assessing intellectual disability may not “disregard[ ] established medical

practice.” See Hall, 134 S. Ct. at 1995. Drawing a fine line between constitutionally

permissible imposition of the death penalty against some intellectually disabled people while

prohibiting it against others who fit the medical/clinical criteria—as some of the Supreme

Court’s statements may appear to suggest might be permissible under a legal standard and

as this Court has done in its Briseno standard—seems arbitrary and internally contradictory

with the clear-cut holding that an intellectually disabled person is categorically exempt from

the death penalty. In any event, I would not draw that fine line with a judicially created

guideline. Rather, I would hold that once a defendant has shown that he is intellectually

disabled under current medical standards, the death penalty is categorically barred. The best

scenario, of course, would be for the Texas Legislature to formulate a standard for deciding
                                                                                      Petetan - 27

intellectual-disability determinations in the context of capital murder cases, as long as it acted

in accordance with Supreme Court precedent. But, in the absence of such guidance, I would

not continue to apply a court-made standard that permits the execution of some mildly

intellectually disabled offenders, particularly given the serious questions that have arisen

regarding whether that legal standard comports with the Eighth Amendment.

       As I stated in my Moore dissent, “I do not attempt to formulate a precise standard to

replace the now-outdated Briseno standard. Any new or revised standard ultimately should

be made by the Legislature, but until then, in the absence of statutory guidance, a new

standard should be developed by a majority of the judges on this Court, and taking into

account the informed view of a consensus of the medical scientific community.” Moore, 470

S.W.3d at 543. Consistent with this view, I would not apply Briseno to appellant’s case, but

would instead hold that that standard is unconstitutional. Accordingly, I would consider the

merits of his claim under a revised standard that reflects the current medical diagnostic

framework.

                                        III. Conclusion

       The same standard that is currently being reviewed by the Supreme Court as being

possibly in violation of the Eighth Amendment is the one applied by the majority opinion in

this case. For all of the foregoing reasons, rather than hastily resolve this case without

receiving guidance from the Supreme Court on a crucial matter of constitutional law that is

directly relevant to appellant’s case, I would withhold resolution of this case in the interim.
                                                                                  Petetan - 28

Alternatively, I would hold that the Texas standard for determining intellectual disability as

articulated in Briseno is unconstitutional, and I would determine whether appellant is

intellectually disabled under a constitutional standard that is informed by current medical

standards and that does not resort to consideration of the unscientific Briseno factors.

Because the Court upholds appellant’s sentence of death through application of the Briseno

standard, I respectfully, dissent.

Filed: March 8, 2017

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