              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                     NO. WR-13,374-05



                   EX PARTE BOBBY JAMES MOORE, Applicant

           ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE
             NO. 314483-C IN THE 185 TH JUDICIAL DISTRICT COURT
                               HARRIS COUNTY

               ALCALA, J., filed a dissenting opinion.

                                 DISSENTING OPINION

       As recommended by the habeas judge, 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.1 See Ex parte Briseno, 135

S.W.3d 1, 6 (Tex. Crim. App. 2004); Hall v. Florida, __U.S.__, 134 S. Ct. 1986, 188 L. Ed.

2d 1007 (2014) . In the absence of any legislative guidance, this Court created the Briseno


       1
        Whereas older case law uses the term “mental retardation,” newer statutes and cases use
the term “intellectual disability.” I employ the latter term whenever possible.
                                                                                       Moore Dissent - 2

standard as a temporary solution to the problem of defining “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.” 2 Briseno, 135 S.W.3d at 6. The standard was

created in response to the Supreme Court’s two-part holding in Atkins v. Virginia that (1) the

Eighth Amendment of the federal Constitution prohibits the execution of a person with an

intellectual disability as cruel and unusual punishment, and (2) each state must devise its own

substantive and procedural mechanisms for determining which offenders are so intellectually

disabled that there is a national consensus that it would be cruel and unusual to execute them.

Atkins v. Virginia, 536 U.S. 304, 306, 321, 122 S. Ct. 2242 (2002). In response to Atkins’s

first holding, the Briseno Court applied the same three-pronged general standard that had

been employed by the Supreme Court to define intellectual disability. Briseno, 135 S.W.3d

at 8. The standard was based on the American Association on Mental Retardation (AAMR)

criteria,3 and it required an applicant to demonstrate evidence of (1) significantly subaverage


        2
        Merely lamenting the Texas Legislature’s failure to act in the decade since Atkins was
decided abdicates this Court’s responsibility to ensure that federal constitutional rights are fully
protected in Texas. See Atkins v. Virginia, 536 U.S. 304, 306, 321, 122 S. Ct. 2242 (2002). This
Court cannot continue to apply an outdated and erroneous standard in the wishful hope that the
Legislature will act soon, particularly in light of the fact that the legislative session just ended several
months ago, and the Legislature does not meet again for approximately two years. Although it would
obviously be preferable for the Legislature to set forth the policy with respect to who should be
exempted from the death penalty on the basis of intellectual disability, this Court is required to
uphold the federal Constitution as it has been interpreted by the Supreme Court. Doing what we
have always done simply because the Legislature has not told us to do it otherwise is not the right
answer.
        3
       See American Ass’n on Mental Retardation, Mental Retardation: Definition, Classification
& Systems of Supports (9th ed. 1992). This definition is substantively the same as the one in Texas
Health and Safety Code Section 591.003(13), and Briseno held that these definitions were
                                                                                     Moore Dissent - 3

general intellectual functioning, (2) related limitations in adaptive functioning, and (3) onset

of the two preceding prongs prior to the age of eighteen. Id at 7. In response to Atkins’s

second holding requiring each state to develop its own mechanisms for determining which

offenders should be exempt from the death penalty on the basis of their intellectual disability,

the Briseno Court initially “decline[d] to answer that normative question without

significantly greater assistance from the citizenry acting through its Legislature,” 4 but it then

went on to discuss a standard comprising seven evidentiary considerations, which, in

practice, has been applied to determine whether an applicant’s intellectual disability rises to

the “level and degree” that a consensus of Texas citizens would agree that the death penalty

would constitute cruel and unusual punishment. Id. at 6, 8-9. Thus, rather than separately

consider the two steps by keeping the medical considerations apart from the legal ones,

Briseno instead has been interpreted as conflating the two steps into a single analysis. By

placing the legal standard’s seven evidentiary considerations into the adaptive-deficits



appropriate as the general standard for deciding intellectual-disability claims in capital-murder cases.
Ex parte Briseno, 135 S.W.3d 1, 8 (Tex. Crim. App. 2004). Because the Briseno Court indicated
that the definition in the Health and Safety Code was interchangeable with the definition used by the
American Association on Mental Retardation, I refer only to the AAMR definition, even though the
analysis would also substantively apply to the definition in the Health and Safety Code.
        4
         See Briseno, 135 S.W.3d at 6; see also id. at 8 (“Some might question whether the same
definition of mental retardation that is used for providing psychological assistance, social services,
and financial aid is appropriate for use in criminal trials to decide whether execution of a particular
person would be constitutionally excessive punishment. However, that definitional question is not
before us in this case because applicant, the State, and the trial court all used the AAMR definition.
Until the Legislature provides an alternate statutory definition of mental retardation for use in capital
sentencing, we will follow the AAMR or Section 591.003(13) criteria in addressing Atkins mental
retardation claims.”).
                                                                                     Moore Dissent - 4

analysis in the medical standard, as this Court’s majority opinion does today, the Briseno

Court created a novel test for assessing claims of intellectual disability that has been widely

criticized as applying an unscientific standard.5 More importantly, Briseno conflicts with

the Supreme Court’s rationale in Hall in that its test for determining intellectual disability is

not grounded in the current consensus of the medical community. There is no authority,

medical or legal, that supports this kind of hybrid assessment of intellectual disability. This

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




        First, a court should determine whether a defendant is intellectually disabled based on



        5
          See, e.g., Nancy Haydt, Stephen Greenspan, & Bhushan Agharkar, Advantages of DSM-5
in the Diagnosis of Intellectual Disability: Reduced Reliance on IQ Ceilings in Atkins (Death
Penalty) Cases, 82 U. MISS-KANSAS CITY L. REV . 359, 384 (2014) (observing that Briseno set forth
a “list, for which no scientific justification was given” of “vaguely specified seven behaviors . . .
which the court believed could be used to rule out a diagnosis of ID”); John H. Blume, Sheri Lynn
Johnson, Paul Marcus, & Emily Paavola, A Tale of Two (and Possibly Three) Atkins: Intellectual
Disability and Capital Punishment Twelve Years after the Supreme Court’s Creation of a
Categorical Bar, 23 WM . & MARY RTS. J. 393, 399 (2014) (Texas’s Briseno factors make it
“extraordinarily difficult to prove deficits in adaptive functioning”); Kate Janse Van Rensburg, The
DSM-5 and Its Potential Effects on Atkins v. Virginia, 3 U. MEMPHIS SCHOOL OF L. MENTAL
HEALTH L. & POL’Y J. 61, 79 (2013) (“Texas’ definition has not been successful in achieving any
of Atkins’ aims but has been successful in severely limiting the number of defendants who were
actually found to be intellectually disabled.”); John H. Blume et al., Of Atkins and Men: Deviations
from Clinical Definitions of Mental Retardation in Death Penalty Cases, 18 CORNELL J.L. & PUB.
POL’Y 689, 710 (2009) (“The Briseno factors present an array of divergences from the clinical
definitions.”); James W. Ellis, Symposium, Atkins v. Virginia: A Dozen Years Later—A Report Card:
Hall v. Florida: The Supreme Court’s Guidance in Implementing Atkins, 23 WM . & MARY BILL RTS.
J. 383, 383-84 (2014) (“The Supreme Court’s emphasis on scientific and clinical understanding of
intellectual disability calls into question the approach by a few courts that rest heavily on stereotypes
about people with intellectual disability rather than on the scientific knowledge and experience
accumulated by professionals in the field.”).
                                                                               Moore Dissent - 5

the current standards employed by the medical community in the manual of the American

Association on Intellectual and Developmental Disabilities (AAIDD, formerly known as the

AAMR). 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.

In applying the current scientific standards to this case, I would hold that an IQ score is not

definitive evidence of a lack of intellectual disability in a case such as this, where the

majority of numerous IQ tests spanning decades have consistently indicated that applicant

is in the range of an intellectually disabled person, and the habeas court found that evidence

credible by determining that applicant has proven the first prong of his Atkins claim.

Furthermore, in determining whether a defendant is intellectually disabled, I would hold that

it is improper to commingle the seven evidentiary considerations that comprise the legal

standard described in Briseno with the analysis of adaptive deficits pertinent to the medical

community’s standard, and I would clarify that the legal and medical inquiries are separate

and should be subject to distinct analyses.

       Assuming that the evidence shows that a defendant is intellectually disabled according

to the current medical standards, then a court would progress to the second step that requires

a determination of whether the extent of his intellectual disability is such that, as a matter of

federal constitutional law, his execution for capital murder would constitute cruel and

unusual punishment in violation of the Eighth Amendment. It is only at this second step that
                                                                                   Moore Dissent - 6

a court should consider the type of evidence that is focused on the comparison and weighing

of positive skills against deficits, similar to the seven evidentiary considerations in Briseno,

so as to determine whether there would be a national consensus that a person at that level and

degree of disability should not be subject to the death penalty. Furthermore, with respect to

the second step, I would reformulate the seven evidentiary considerations described in

Briseno so that they more closely track the types of considerations that persuaded the

Supreme Court to decide that the execution of an intellectually disabled person would violate

the Eighth Amendment.

       In sum, I disagree with the majority opinion’s conclusions that this Court properly

“continue[s] to follow the AAMR’s 1992 definition of intellectual disability” and that the

Briseno standard “remains adequately ‘informed by the medical community’s diagnostic

framework.’”6 Because the decade-old Briseno standard was never intended to be permanent,

it has become necessary to examine whether its continued application remains consistent both

with the views currently held by the scientific community and with the societal consensus as

to those offenders who, by virtue of their intellectual disability, should be exempted from the

death penalty. See Briseno, 135 S.W.3d at 5 (“[W]e must act during this legislative

interregnum to provide the bench and bar with temporary judicial guidelines in addressing

Atkins claims.”). After reformulating the standard, I would remand this case for the habeas

court to consider whether, under the revised standard, it recommends granting relief to Bobby



       6
           See maj. op., at 5-6 (quoting Hall v. Florida, 134 S. Ct. 1986, 2000 (2014)).
                                                                            Moore Dissent - 7

James Moore, applicant. I, therefore, respectfully dissent.

     I. Step One: A Court Must Decide Whether a Defendant Has an Intellectual
                Disability By Applying Current Scientific Standards

       In light of both Atkins and Hall, a court reviewing an intellectual-disability claim is

compelled to consult current medical standards in determining whether a particular offender

falls within the medical definition of an intellectually disabled person. Although this Court

is applying (A) the Supreme Court’s same three prongs that make up the general standard for

deciding whether a person has an intellectual disability, this Court’s majority opinion is

flawed in its substantive assessment of the first two prongs because, in contravention of

current medical standards, (B) it improperly applies a strict cutoff based on IQ scores, and

(C) it erroneously applies unscientific criteria to assess whether a defendant has adaptive

deficits.

       A. The Supreme Court Requires a Court to Consider Current Medical
       Standards in Evaluating Whether the Evidence Establishes the Three-Pronged
       General Standard for Intellectual Disability

       Although it set forth a general standard, the Supreme Court in Atkins left it to the

states to devise a precise test for determining which offenders are so intellectually disabled

that there is a national consensus that it would be cruel and unusual to execute them. Atkins,

536 U.S. at 317 (explaining that prohibition on executing intellectually disabled individuals

extends to those “mentally retarded offenders about whom there is a national consensus,” but

leaving to the states “‘the task of developing appropriate ways to enforce the constitutional

restriction’”) (quoting Ford v. Wainwright, 477 U.S. 399, 405, 416 (1986)). But the Court
                                                                               Moore Dissent - 8

in Atkins did not permit States to have complete autonomy in making this determination. See

Hall, 134 S. Ct. at 1999 (“Atkins did not give the states unfettered discretion to define the full

scope of the constitutional protection”; “[i]f the States were to have complete autonomy to

define intellectual disability as they wished, the Court’s decision in Atkins could become a

nullity”).   In Hall, the Supreme Court characterized its Atkins decision as providing

“substantial guidance on the definition of intellectual disability.” Id. (citing Atkins, 536 U.S.

at 318). The Atkins Court observed that “clinical definitions of mental retardation require

not only subaverage intellectual functioning, but also significant limitations in adaptive skills

such as communication, self-care, and self-direction that became manifest before age 18.”

Atkins, 536 U.S. at 318. Recognizing that there is a wide range of individuals who might be

characterized as intellectually disabled, and recognizing that not all such individuals would

be constitutionally exempted from the death penalty, the Supreme Court described the group

of people whose executions would violate the federal Constitution as those who, “[b]ecause

of their impairments, [ ] 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. Further describing the class of intellectually disabled people who are exempt

from the death penalty, the Court also noted that “there is abundant evidence that [such

individuals] often act on impulse rather than pursuant to a premeditated plan, and that in

group settings they are followers rather than leaders.” Id. In providing these descriptions,
                                                                               Moore Dissent - 9

the Atkins Court acknowledged the standards set forth in the manual of the American

Association on Mental Retardation and the Diagnostic and Statistical Manual of Mental

Disorders-IV (DSM-IV).7 Id. at 308 n. 3.


       More than a decade after the Atkins decision, the Supreme Court reaffirmed the

general standard for determining intellectual disability in Hall. See Hall, 134 S. Ct. at 1994

(“As the Court noted in Atkins, the medical community defined 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.”). Addressing

the first prong in the general standard, the Hall Court held that, because the medical

community’s diagnostic framework does not quantify intellectual disability at an IQ score

of seventy or below, it would violate the federal Constitution to limit the protections of the

Eighth Amendment only to those offenders whose test scores are at or below that precise

level. Id. at 1998. In reaching that holding, the Court considered and was persuaded by the

medical community’s current diagnostic framework. Id. at 1993, 2000 (stating that the “legal

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

by the medical community’s diagnostic framework,” and further observing that “it is proper

to consult the medical community’s opinion”).


       7
       See American Ass’n on Mental Retardation, Mental Retardation: Definition, Classification
& Systems of Supports (9th ed. 1992); American Psychiatric Ass’n, Diagnostic and Statistical
Manual of Mental Disorders (4th ed. 2000).
                                                                             Moore Dissent - 10

       Viewed in conjunction, Atkins and Hall reveal that, for over a decade, the Supreme

Court has applied the same three-prong general standard for analyzing intellectual-disability

claims. Furthermore, Hall in particular signals that, even if a state is applying this same

general standard, as did Florida in Hall, the federal Constitution may nonetheless be violated

based on the particular analytical measures by which the state determines each of the three

prongs. Even though the purpose of Florida’s statute was to provide a legal standard that

would permit anyone with an IQ level above 70 to be subject to the death penalty, the

Supreme Court held that Florida’s standard was constitutionally invalid because it was “in

direct opposition to” the current medical standard for diagnosing intellectual disability, which

does not provide for a cutoff in that manner. See id. at 2001. Having permitted each state

to create its own test for deciding which people with intellectual disability would be exempt

from the death penalty, the Supreme Court nonetheless held that, in the implementation of

that policy decision, Florida had no discretion to misapply the current standards of the

medical community for assessing intellectual disability. See id.


       The present case presents a situation analogous to that in Hall in that, in the

implementation of a policy decision describing who should be constitutionally exempted

from the death penalty, Texas has no discretion to misapply the standard of the current

medical community for assessing intellectual disability. See id. at 1999-2001. I would hold

that this Court must consult the medical community’s current views and standards in

determining whether a defendant is intellectually disabled and that the reliance on a decade-
                                                                             Moore Dissent - 11

old standard no longer employed by the medical community is constitutionally unacceptable.


       To this end, I would modify this Court’s analysis in Briseno so that it conforms to the

current consensus of the medical community. Like the Supreme Court in Atkins, Briseno’s

analysis of intellectual disability was premised on the definition in the AAMR’s ninth

edition, but since the time that Atkins and Briseno were decided, the AAMR has been

renamed to the AAIDD, and it is now in its eleventh edition.8 Rather than rely on the older

editions, the Supreme Court discussed the AAIDD’s eleventh edition in Hall. See Hall, 134

S. Ct. at 1995. Similarly, like the Supreme Court in Atkins, Briseno’s analysis of intellectual

disability considered the American Psychiatric Association’s Diagnostic and Statistical

Manual of Mental Disorders, Fourth Edition (DSM-IV), but since the Atkins and Briseno

decisions, that manual has been superseded by the Fifth Edition, the DSM-5.9 Rather than

rely exclusively on the older scientific standards as this Court does today by continuing to

apply an unmodified Briseno standard, this Court, like the Supreme Court in Hall, should,

at a minimum, consider how the developments in the scientific standards during the past ten

years might affect a judicial determination of intellectual disability.10 See Hall, 134 S. Ct.


       8
        AAIDD, Intellectual Disability: Definition, Classification, and Systems of Supports
(11th ed. 2010).
       9
       American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders (5th
ed. 2013).
       10
           The substance of Section 591.003(13) remains as it was when Briseno was decided,
although some of the terminology has changed, such as the term “mental retardation,” which is now
called “intellectual disability.” See TEX . HEALTH & SAFETY CODE § 591.003(13), (7-a)
(“‘Intellectual Disability’ means significant subaverage general intellectual functioning that is
                                                                                 Moore Dissent - 12

at 2000 (explaining that, as compared to the DSM-IV, the DSM-5 places less emphasis on

a person’s IQ score than on the person’s adaptive deficits).                Because the medical

community’s views on the assessment of intellectual disability have changed in the last

decade, the Supreme Court in Hall considered the current consensus of the scientific

community in deciding the merits of that case. This Court should follow suit. As I explain

below, the DSM-5 has several important differences from the DSM-IV with respect to the

proof of intellectual disability, and these differences require this Court to modify the Briseno

standard.


               (B) Prong One: A Strict Cutoff Based on IQ Scores is Contrary to
               Current Medical Standards
       This Court’s majority opinion is contrary to the Hall Court’s holding that an

intellectual-disability claim should not be rejected by treating an IQ score as a precise

number because the medical community does not quantify intellectual disability at an IQ

score of seventy or below, nor does it treat an IQ score in the marginal range as being

dispositive of an intellectual-disability diagnosis. Hall, 134 S. Ct. at 1998-2001.                In




concurrent with deficits in adaptive behavior and originates during the developmental period.”); §
591.003(1) (“‘Adaptive behavior’ means the effectiveness with or degree to which a person meets
the standards of personal independence and social responsibility expected of the person’s age and
cultural group.”); § 591.003(20) (“‘Subaverage general intellectual functioning’ refers to measured
intelligence on standardized psychometric instruments of two or more standard deviations below the
age-group mean for the tests used.”). The changes to the terminology were enacted by House Bill
1481 in 2011 in order to make the language referring to intellectual disabilities more respectful, but
that legislation did not alter the substance of the definitions. See Tex. H.B. 1481, 82nd Leg., R.S.
(2011).
                                                                              Moore Dissent - 13

explaining its finding that applicant had significant limitations in intellectual functioning, the

habeas court made finding of fact number 78, in which it noted that IQ tests are not able or

even designed to produce a single and precise figure, but rather are best conceptualized as

a range of scores. The habeas court’s finding that IQ test results should be treated as a range

rather than as a precise number is consistent with the Hall Court’s holding, and, therefore,

this finding should be upheld by this Court. See id.


       Whereas the Court in Atkins had considered the views of the medical community in

the then-current DSM-IV, the Court in Hall considered the current DSM-5 in deciding that

Florida’s strict IQ cutoff was unconstitutional. Compare Atkins, 536 U.S. at 308 n. 3

(discussing DSM-IV), with Hall, 134 S. Ct. at 2000 (relying on the DSM-5 and quoting it for

the proposition that “‘IQ test scores are approximations of conceptual functioning but may

be insufficient to assess reasoning in real-life situations and mastery of practical tasks’”).

Furthermore, as support for its conclusion that it was “not sound to view a single factor as

dispositive of a conjunctive and interrelated assessment” of intellectual disability, and citing

to the DSM-5, the Supreme Court observed that “a person with an IQ score above 70 may

have such severe adaptive behavior problems . . . that the person’s actual functioning is

comparable to that of individuals with a lower IQ score.” Hall, 134 S. Ct. at 1995, 2001. By

applying a standard error of measurement but then using a strict cutoff based on IQ scores,

this Court’s majority opinion is effectuating the same type of standard that the Supreme

Court rejected in Hall as constitutionally unacceptable.
                                                                                Moore Dissent - 14

       Although analysis of IQ has not been completely removed from the diagnostic

determination of intellectual disability in the DSM-5, its importance has been greatly reduced

as compared to the DSM-IV. See id. Under the DSM-5, it is possible for a person with an

IQ test result higher than 75 to be characterized as intellectually disabled depending on his

adaptive functioning, as compared to the DSM-IV, which specifies that the 75 score would

be dispositive within the margin of error. Id. Here, according to this Court’s majority

opinion, taking into account the standard error of measurement and ignoring the Flynn effect,

the two tests it finds acceptable produced an IQ score range from 69-83, and this, therefore,

would constitute an adequate basis for rejecting applicant’s claim.11 For the limited purposes

of this discussion, I will accept the majority opinion’s conclusion that the only two valid

scores are applicant’s 1973 WISC score and his 1989 WAIS-R score, which are higher than

the other six scores. According to the DSM-5, applicant’s IQ score alone should not be

enough to reject his claim because it is necessary to also consider his adaptive functioning

in conjunction with his IQ score. Given the reasoning of Hall, which requires a court to at

least consult current medical standards in reaching a determination of intellectual disability,

I disagree with this Court’s majority opinion as to prong one of its intellectual-disability



       11
          See maj. op., at 71 (“taking into account the standard error of measurement, applicant’s
score range on the WISC is between 73 and 83”; taken altogether, there is “no reason to think that
applicant’s obtained IQ score of 78 on the WISC is inaccurate or does not fairly represent his
borderline intelligence during the developmental stage”); see also id. at 71-72 (“the score that
applicant obtained on the 1989 WAIS-R supports the conclusion that his WISC score accurately and
fairly represented his intellectual functioning during the developmental period”; his score range on
the WAIS-R “is between 69 and 79”).
                                                                               Moore Dissent - 15

analysis that holds that applicant’s IQ scores ranging from 69-83, part of which fall below

70, are alone an independent reason for finding that he is not intellectually disabled.


       I also disagree with this Court’s majority opinion for the two additional reasons, as

explained below, that (1) it cherry picks applicant’s two higher IQ scores and (2) it

disregards the other scores: the OLMAT (77), Slosson (57), WAIS-R (abbreviated) (71),

2013 RCPM (85), the WAIS-IV (59), and the derived scores on the Bender Gestalt (67) and

Goodenough (72). First, I disagree with the majority opinion that it is proper to dismiss the

WAIS-IV, the most recent and comprehensive test on which applicant scored a 59 in 2013,

a score impliedly determined to be credible by the habeas court. The majority opinion’s

rationale for rejecting that test is that applicant put forth suboptimal effort because the State’s

expert, Compton, indicated that applicant had a motive to do poorly and gave suboptimal

effort. The habeas court, however, impliedly found the evidence that applicant gave

suboptimal effort not to be persuasive. The State’s expert’s testimony that applicant gave

suboptimal effort was contradicted by a defense expert, Greenspan, who testified that it is

difficult to interpret effort-test results as to intellectually-disabled individuals because of

problems validating those tests, and such tests thus have reduced significance in this context.

Furthermore, even accepting the majority opinion’s analysis that the other scores are less

reliable because they were based on noncomprehensive instruments, they were

neuropsychological tests rather than IQ tests, and they used the now-disfavored concept of

mental age to arrive at the score, these scores should not be disregarded in their entirety in
                                                                                Moore Dissent - 16

that they provide some evidence that supports the habeas court’s findings that applicant had

significant limitations in intellectual functioning. These other tests also provide evidence

that supports the habeas court’s findings that applicant did not give suboptimal effort in

taking his most recent IQ test and that the State’s expert’s testimony on suboptimal effort

lacked credibility. In short, even if the five other tests showing applicant as intellectually

disabled do not stand alone as definitive evidence of intellectual disability, they, in

conjunction, support the habeas court’s fact finding that applicant’s most recent IQ score is

reflective of limitations in intellectual functioning. In the absence of the testimony from Dr.

Compton, which was implicitly found not credible by the habeas court with respect to

suboptimal effort, applicant’s most recent IQ test places him easily within the range of IQ

scores that show intellectual disability. And, although this Court is the ultimate fact finder,

the credibility determinations regarding which expert was most believable should be left to

the habeas court as the original fact finder in this case.


       Second, even if the majority opinion is correct in disregarding the applicant’s most

recent IQ score, and even if it is correct that this Court should rely solely on the WISC

administered at age 13 that produced a score of 78 and the WAIS-R at age 30 that produced

a score of 74, these scores, under the current medical standards, would still require this Court

to examine whether applicant has adaptive deficits.12 Taking into account the standard error


       12
         When the test took place, the administrator made a slight error that caused this test score
to originally be recorded as 74. The error has since been acknowledged, so we need only concern
ourselves with the correct score.
                                                                             Moore Dissent - 17

of measurement and ignoring the Flynn effect, these two tests produce a range from 69-83.

A diagnosis of intellectual disability is often indicated by an IQ score of 70 or below, but, as

the Supreme Court held in Hall, 70 is not a strict cutoff point beyond which the possibility

of intellectual disability is foreclosed. Hall, 134 S. Ct. at 1996. Even disregarding most of

the evidence that the habeas court found credible and relying only on applicant’s two highest

scores, the score range supports a finding that applicant has established the first prong.


         Although I conclude that the record appears to support the habeas court’s

determination that applicant has significantly subaverage general intellectual functioning

based on reliable IQ scores, I would not definitively decide that question today in order to

permit the original fact finder to apply the correct modified standard to the evidence in this

case.


              (C) Prong Two: Unscientific Criteria Should Not Be Used to Assess
              Adaptive Deficits
        The Briseno analysis of the adaptive-deficits prong makes Texas’s determination of

intellectual disability unconstitutional because, as observed by the Supreme Court in Atkins

and Hall, any such assessment should be informed by the current diagnostic standards

employed by the medical community. More specifically, in light of the Supreme Court’s

analysis on this subject, the majority opinion’s continued application of the Briseno standard

is constitutionally unacceptable because it relies on an unscientific assessment that (1)

considers adaptive deficits based on the DSM-IV alone, (2) includes a comparison to the
                                                                                Moore Dissent - 18

fictional character Lennie; and (3) considers seven evidentiary factors that are inapplicable

in this context.


               1. Adaptive Deficits Should Not Be Based on the DSM-IV Alone

       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. The DSM-5 altered

the “adaptive functioning requirement” by describing it as how well a person meets

community standards of personal independence and social responsibility in comparison to

others of similar age and sociocultural background. See American Psychiatric Ass’n, DSM-5

Intellectual Disability Fact Sheet (2013); see also Shelly Yeatts, Texas District and County

Attorneys Association, Significant Changes from the DSM-IV to the DSM-5 (November

2013). The DSM-5 relies more on adaptive functioning than the DSM-IV did, both for

diagnosing intellectual disability and for determining its level of severity. Id.; see also Walter

Kaufmann, Intellectual Disabilities’s DSM-5 Debut, S PECTRUM N EWS 2013. In terms of

diagnosis, the DSM-5 assesses the level of adaptive functioning in three domains: social,

conceptual, and practical skills,13 and it requires at least one domain that includes several



       13
          See APA Intellectual Disability Fact Sheet, at 1. The social skills domain considers the
awareness of others’ experiences, empathy, interpersonal communication skills, friendship abilities,
social judgment, and self-regulation, among others. The conceptual domain considers language,
reading, writing, math, reasoning, knowledge, and memory, among others, used to solve problems.
The practical domain considers self management across life settings, including personal care, job
responsibilities, money management, recreation, managing one’s behavior, and organizing school
and work tasks, among others.
                                                                            Moore Dissent - 19

skill areas of adaptive functioning versus two or more skill areas in the DSM-IV. In short,

the type of analysis for establishing adaptive functioning is different in the DSM-IV than in

the DSM-5, and this Court should modify the Briseno test to conform to the current scientific

standards. I, therefore, disagree with this Court’s majority opinion as to prong two of its

intellectual-disability analysis that rejects applicant’s claim based on his failure to prove

adaptive deficits under a standard that is no longer employed by the scientific community in

assessing intellectual-disability claims.

       Furthermore as to prong two, the DSM-5 appears to more readily acknowledge that

people with intellectual disabilities are often able to perform basic life functions and tasks,

such as holding jobs, driving cars, and supporting their families. See Wiley v. Epps, 625 F.3d

199, 203, 204 (5th Cir. 2010). People with intellectual disabilities may be able to (1) read,

write, and perform some rudimentary math; (2) have friends; (3) maintain personal hygiene;

(4) drive a car on occasion; (5) appropriately groom themselves and possess a driver’s

license; and (6) maintain a relationship.14 None of these skills or abilities are necessarily

inconsistent with intellectual disability. This Court’s majority opinion, however, gives heavy

weight to applicant’s ability to perform some of the functions listed above even though the

current scientific community would discount that type of behavior as dispositive evidence

of adaptive functioning. I disagree with this Court’s majority opinion as to prong two of its



       14
         See John H. Blume, Sheri Lynn Johnson, Paul Marcus, & Emily Paavola, A Tale of Two
(and Possibly Three) Atkins: Intellectual Disability and Capital Punishment Twelve Years after
the Supreme Court’s Creation of a Categorical Bar, 23 WM . & MARY RTS. J. 393, 408 (2014).
                                                                             Moore Dissent - 20

intellectual disability analysis that rejects applicant’s claim based on his failure to prove

adaptive deficits by giving great weight to evidence that is no longer credited by the scientific

community in assessing intellectual disability claims.


       Additionally as to proof of adaptive functioning or adaptive deficits, unlike the DSM-

IV that permitted evidence about a defendant’s behavior in prison, the DSM-V recommends

that this assessment be determined outside of a prison setting. Wiley, 625 F.3d at 203, 204.

The DSM-5 recognizes that people on death row operate within a world where choices are

extremely limited, even for such basic matters as when to wake up and when to go to bed,

what to eat, when to shower or change clothes, and other life basics. The DSM-5, therefore,

discounts much of the evidence about a defendant’s ability to function inside a prison setting.

This Court’s majority opinion, however, gives heavy weight to applicant’s ability to function

and work while on death row even though the current scientific standards in the DSM-5

would discount that type of behavior as evidence of adaptive functioning, because ordinarily

the kinds of tasks that are assigned can be performed by someone who is intellectually

disabled.


       But, perhaps, not all evidence obtained during a defendant’s prison stay is immaterial

to the question of his adaptive deficits or functioning. Any decision to consider a defendant’s

prison behavior must be examined closely for details that might show learned behavior from

the great repetition of an event or limited choices. For example, here, this Court’s majority

opinion considers applicant’s use of commissary slips in prison to suggest that he does not
                                                                            Moore Dissent - 21

have adaptive deficits because he could understand the math involved to manage his

commissary. The majority opinion relies on the testimony of Jerry LeBlanc, a prison official

who testified that applicant appeared to understand his commissary order and that applicant

did not receive any assistance from LeBlanc. But it is apparent that the habeas court was

unpersuaded that LeBlanc’s testimony demonstrated applicant’s lack of adaptive deficits.

In finding of fact number 169, the habeas court found that applicant had significant difficulty

in filling out his commissary slips and in negotiating the $85 spending limit. The habeas

court further mentioned that its examination of the commissary records revealed “numerous

mathematical and spelling errors” on the slips as well as commissary requests adding up to

significantly more than the spending limit on fifteen out of twenty-four slips in evidence.

The habeas court found that the repeated mathematical errors and consistent excessive

ordering combined with the simple, unchanging spending limit reflected a lack of

understanding of these basic concepts. I disagree with this Court’s majority opinion’s

analysis as to prong two that rejects applicant’s claim based on his purported failure to prove

adaptive deficits by considering his general ability to function on death row when much of

that type of evidence is no longer considered probative by the scientific community in

assessing intellectual disability claims due to the repetitive nature of the events and limited

choices, and, to the extent that certain jail-house evidence can be probative, the habeas court

found that the State’s evidence was lacking in credibility and unpersuasive.


       I also note that the majority opinion decides that applicant does not have adaptive
                                                                           Moore Dissent - 22

deficits, in part, by considering pro se documents that he presented for his writ application.

However, applicant’s counsel presented evidence that applicant may have had help in

preparing those documents. Again, the habeas court appears to have credited the applicant’s

evidence more than the State’s evidence. Ordinarily, this Court, as the ultimate fact finder,

defers to the habeas court, the original fact finder, on matters involving credibility of the

evidence.


       The majority opinion makes many observations that conflict with the habeas court’s

assessment of adaptive deficits, but it does so by applying the Briseno test that I conclude

does not comply with the Supreme Court’s requirements in Hall. Although I disagree with

some of the majority opinion’s analysis with respect to the lack of evidence of adaptive

deficits, I would not decide this question here but would instead remand for the habeas court

to reconsider the evidence under a new modified test that considers current medical

standards, and, as explained below, omits the Lennie standard and the seven evidentiary

considerations.


              2. The Second Prong on Adaptive Deficits Should Not Include a
              Comparison to Fictional Character
       Even if the literary reference to Lennie was simply an attempt to write colorfully gone

awry, its inclusion in Briseno suggests that people who are severely or profoundly

intellectually disabled would not be subject to the death penalty; that people who are mildly

intellectually disabled would be subject to the death penalty; and that people who are
                                                                           Moore Dissent - 23

moderately intellectually disabled may, depending on the circumstances, be subject to the

death penalty. See Briseno, 135 S.W.3d at 6. The Briseno Court discussed the then-existing

DSM-IV four subcategories for mental retardation: “mildly mentally retarded, moderately

mentally retarded, severely mentally retarded, and profoundly mentally retarded.” Id. This

Court then stated,


              The functioning level of those who are mildly mentally retarded
              is likely to improve with supplemental social services and
              assistance. It is thus understandable that those in the mental
              health profession should define mental retardation broadly to
              provide an adequate safety net for those who are at the margin
              and might well become mentally-unimpaired citizens if given
              additional social services support. We, however, must define
              that level and degree of mental retardation at which a consensus
              of Texas citizens would agree that a person should be exempted
              from the death penalty. 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
              mental retardation be exempt from an otherwise constitutional
              penalty? . . . 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. In referring to Lennie as someone who might be exempt from execution whereas others

unlike him would not be, this Court’s opinion has been read as implying or holding that those

individuals who are less than severely or profoundly intellectually disabled would not be

exempt from execution. Under that standard, Texas law creates a blanket rule that makes it

constitutionally permissible to execute someone who the DSM-IV would catagorize as mildly
                                                                            Moore Dissent - 24

or moderately intellectually disabled. I conclude that, to the extent that the Texas standard

categorically permits the execution of a mildly or moderately intellectually disabled person,

even one whose intellectual disability is such that he has a “diminished capacit[y] 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,” then the Texas standard is unconstitutional. See Atkins, 536 U.S. at 318

(discussing the justification for holding that the federal Constitution prohibits the execution

of intellectually disabled people). I would hold that the Lennie standard does not meet the

requirements of the federal Constitution because it potentially permits the execution of a

mildly or moderately intellectually disabled offender who meets the legal definition of Atkins,

and it categorically limits the protections of the Eighth Amendment to those offenders

determined to be severely or profoundly intellectually disabled. I conclude that any standard

set forth by Texas must at least contemplate the possibility that someone categorized as

mildly or moderately intellectually disabled in the DSM-IV might have the specific type of

adaptive deficits to make him ineligible for execution according to the Supreme Court’s

reasoning in Atkins. Therefore, I would set forth a standard that does not include any

reference to a fictional character as a basis of comparison for deciding whether a person is

exempt from the death penalty by reason of his intellectual disability.


       3. Adaptive Deficits Should Not Include the Seven Briseno Evidentiary
       Considerations
       The Briseno Court mentions seven evidentiary considerations that could be considered
                                                                           Moore Dissent - 25

as part of an assessment of a defendant’s adaptive deficits, but it did so without any

supporting authority. This Court stated,


       [S]ome other evidentiary factors which factfinders . . . might also focus upon
       in weighing evidence as indicative of mental retardation:
       •      Did those who knew the person best during the developmental stage —
              his family, friends, teachers, employers, authorities—think he was
              mentally retarded at the 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?
Briseno, 135 S.W.3d at 8.

       These seven questions do not belong in any determination about a defendant’s adaptive

deficits. Although they have similarity to some of the inquiries about adaptive deficits, these

seven questions have a different focus from a determination on adaptive deficits in that they

weigh a defendant’s positives against his negatives. The weighing of positives against

negatives is unlike a scientific determination of adaptive deficits, which looks solely at a

person’s inability to perform certain functions. Because it improperly conflated the legal
                                                                                     Moore Dissent - 26

standard with the medical standard in its decision permitting the injection of seven

unscientific questions to evaluate adaptive deficits, the Briseno standard erroneously applies

modern scientific principles. I, therefore, would hold that the seven questions have no

application to a decision about adaptive deficits.15


        Rather than conflate a legal policy standard with a medical standard, this Court should

limit the first step in its analysis to a determination whether the medical community would

consider an individual to be intellectually disabled. If a defendant fails to meet this test, then

his claim likewise fails. But if a defendant can show that the medical community would

consider him to be intellectually disabled, then the Court would progress to the second step.


  II. Step Two: Determination of the Legal Standard Whether There Is a National
   Consensus Against the Death Penalty For Someone at the Applicant’s Level of
                              Intellectual Disability
        I do not suggest that the type of information in the seven Briseno evidentiary

considerations must be entirely excluded from any analysis of intellectual disability, but

instead I would confine those kinds of questions to a second step in an analysis that occurs

only after finding that a defendant is, according to prevailing medical/scientific standards,

intellectually disabled. Furthermore, I would modify the seven questions so that they would

more closely reflect the underlying rationale for disallowing the execution of certain


        15
          Because my primary disputes with the majority opinion are with respect to the first two
prongs, and because I believe this case must be remanded for the habeas court to reconsider the
evidence under a revised standard for deciding intellectual-disability claims, I do not, at this juncture,
include an analysis of the third prong with respect to whether applicant has proven the onset of any
intellectual disability prior to age eighteen.
                                                                              Moore Dissent - 27

intellectually disabled offenders.


        The second, third, and fifth Briseno questions are appropriately founded on the

Supreme Court’s Atkins opinion. The second question asking about whether the defendant

can formulate plans or exhibits impulsive conduct, the third question about whether he is a

leader or a follower, and the fifth question about whether his communication is coherent or

irrational all target the reasons why the Supreme Court determined that the federal

Constitution prohibits the execution of intellectually disabled people. The Atkins Court

identified those reasons, observing that “[b]ecause 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 reaction of others.” See Atkins, 536 U.S.

at 318. The Court also noted that “there 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.” Id. These three Briseno factors track the legal rationale underpinning Atkins

and, I conclude, are appropriate considerations when deciding whether a person is legally

exempt from the death penalty.


       Turning to the remaining questions, the first and seventh factors may be appropriate

if they are modified. The first question asks, “Did those who knew the person best during the

developmental stage—his family, friends, teachers, employers, authorities—think he was

mentally retarded at the time, and, if so, act in accordance with that determination?” One
                                                                                     Moore Dissent - 28

problem with this question is that it appears to invite individuals to give their subjective

opinions comparing the defendant to a stereotype of how they believe an intellectually

disabled person would appear or behave. Although I conclude that it is appropriate to

consider evidence by a defendant’s family, friends, teachers, employers, authorities, and

anyone else who the defendant had contact with during his developmental period, I conclude

that the more appropriate inquiry should focus on those individuals’ observations about the

kinds of deficits and behaviors that made the defendant unlike his peers, what those deficits

were, and how they were addressed.16 See Hall, 134 S. Ct. at 1996 (factors that indicate

whether the person “had deficits in adaptive functioning . . . include evidence of past

performance, environment, and upbringing”). By targeting the evidence to specifically

address observations of a defendant’s adaptive deficits, the fact finder can decide whether the

level and degree of those deficits amount to a conclusion of intellectual disability such that

a defendant may not constitutionally be executed. The first Briseno question, therefore, may

        16
          In assessing adaptive functioning, clinicians focus on a variety of deficits. “AAIDD’s
classification manual emphasizes the actual impact of intellectual limitations on the individual’s life:
‘Adaptive behavior is the collection of conceptual, social, and practical skills that have been learned
and are performed by people in their everyday lives.’ Among the tools available to clinicians in
diagnosing adaptive deficits are standardized psychometric instruments known as adaptive behavior
scales. Unlike IQ tests, these instruments are not administered to the person who is being evaluated,
but rather focus on other sources of information, including information provided by teachers, family
members, and others familiar with the individual’s everyday functioning. Along with school and
social service records and similar evidence, these may permit an evaluator to determine whether the
reduced cognitive functioning measured by IQ tests constitutes a real-world disability in the
individual’s life. Since adaptive behavior inquiries in the context of a capital trial are, of necessity,
retrospective in nature, a thorough individual, educational, and family history becomes essential.”
James W. Ellis, Symposium, Atkins v. Virginia: A Dozen Years Later–A Report Card: Hall v.
Florida: The Supreme Court’s Guidance in Implementing Atkins, 23 WM . & MARY BILL RTS. J. 383,
388-89 (2014).
                                                                                   Moore Dissent - 29

be appropriately considered if it is modified to target adaptive deficits.


       The seventh Briseno question focuses on whether the defendant’s offense required

forethought, planning, and complex execution of purpose. That question could be of marginal

relevance if the offense required those things but the defendant’s particular role in the offense

did not. A more appropriate question would align with the rationale underlying Atkins by

asking whether the defendant’s acts in the commission of the offense show that he had a

diminished capacity to understand and process information, to communicate, to abstract from

mistakes, to learn from experience, to engage in logical reasoning, to control impulses, to

understand the reaction of others, and whether he was a follower rather than a leader (if the

offense was committed by a group). See Atkins, 536 U.S. at 318. The seventh Briseno

question, therefore, may be appropriately considered if it is modified to target the adaptive

deficits of the defendant that may have been exhibited during the commission of the offense

so as to permit a fact finder to determine whether the level and degree of his intellect warrants

a legal exemption from the death penalty.


       I also conclude that the remaining two questions are inappropriate and should be

eliminated as irrelevant. These two questions focus on the rationality of an offender’s

response to external stimuli and on whether he can hide facts and lie effectively.17 The


       17
          “A feature of adaptive behavior that causes some confusion is that the focus is exclusively
on deficits and not on strengths. At first blush, the exclusive focus on deficiencies may seem
counterintuitive, but clinicians have long recognized that for almost all individuals with intellectual
disability, functional weaknesses coexist with strengths, and there is no ‘list’ of things that no
individual with intellectual disability can do. With the increased focus on adaptive deficits after
                                                                                    Moore Dissent - 30

Supreme Court in Atkins did not specifically list either of these considerations as constituting

reasons why executing the intellectually disabled is unconstitutional. See Atkins, 536 U.S. at

318. It is unclear how information about a defendant’s response to external stimuli would

assist anyone is deciding whether he is constitutionally ineligible for execution. Perhaps the

question about a defendant’s ability to lie effectively was intended to target his ability to

understand and process information in that someone who can consistently maintain a lie

without contradiction might have higher intellectual reasoning. But maintaining a lie seems

to include a moral compass that is immaterial to whether someone has an intellectual deficit,

and the other questions seem to better reveal whatever might be relevant from this question

without its prejudicial component. I fail to see any sound reason why these two questions

would be proper evidentiary considerations in determining whether a particular individual has

demonstrated that he is ineligible for execution under the reasoning of Atkins.


        Some of these seven considerations, and perhaps other evidence, should be considered

as part of a second step that is addressed only after a court has determined that a defendant

has proven the three prongs in the AAIDD. The second step of an Eighth Amendment

intellectual-disability analysis should focus on whether a defendant who has proven that he




Hall, there is a substantial risk that triers of fact may fall into the trap of relying on unfounded and
inaccurate stereotypes about what people with intellectual disability can and cannot do. Courts will
need to be particularly careful not to rely, either directly or indirectly, on such stereotypes.” James
W. Ellis, Symposium, Atkins v. Virginia: A Dozen Years Later–A Report Card: Hall v. Florida: The
Supreme Court’s Guidance in Implementing Atkins, 23 WM . & MARY BILL RTS. J. 383, 388-89
(2014).
                                                                              Moore Dissent - 31

has an intellectual disability has also shown that, according to the reasoning of Atkins, the

extent of his disability is such that it would constitute cruel and unusual punishment to

execute him for capital murder. I would hold that only some of the seven Briseno factors may

remain viable, and only to the extent that they provide information relevant to the legal

determination whether the extent of a defendant’s intellectual disability rises to the level that

there is a national consensus against permitting him to be executed.


                                       III. Conclusion


       Because the habeas court’s findings of fact and conclusions of law were premised on

an attempt to apply parts and distinguish other parts of the Briseno standard, I would set forth

a new modified standard for deciding intellectual disability claims and remand this case to the

habeas court. I limit this dissenting opinion to voicing my concerns with the continued

application of the Briseno standard, which I believe does not conform to the requirements of

the federal Constitution, and to set forth some possibilities for a modified standard. 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 and the people of the State of Texas.


Filed: September 16, 2015
          Moore Dissent - 32

Publish
