            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                    NO. WR-45,746-02



                        EX PARTE DAVID WOOD, Applicant



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

       A LCALA, J., filed a dissenting opinion.

                                DISSENTING OPINION

       Unlike this Court’s majority opinion that declines to reconsider the -02 habeas

application filed by David Wood, applicant, I would instead reopen the application on our

own motion and remand it to the habeas court for further proceedings. I conclude that

applicant’s intellectual disability claim that was rejected by this Court in 2014 must be

reconsidered in light of the Supreme Court’s recent decision in Moore v. Texas, 137 S. Ct.

1039 (2017). Because I would order the habeas court to address applicant’s instant claim that

the prior assessment of his intellectual disability failed to conform with the diagnostic
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framework endorsed by the Supreme Court in Moore, I respectfully dissent.1 I explain my

conclusion by reviewing applicant’s arguments and why I find the majority opinion’s analysis

unpersuasive.

                                    I. Applicant’s Arguments

       Applicant asserts that he has significantly subaverage general intellectual functioning

and adaptive deficits such that his execution would violate the Eighth and Fourteenth

Amendments.       Applicant presented evidence at the 2011 Atkins2 hearing before the

convicting court showing that he had IQ scores of 64, 71, and 75, obtained from the

administration of WAIS instruments.3 These low IQ test results are consistent with his

performance as a young student. He failed the first, third, and ninth grades, he attended

special education classes, and he eventually dropped out of school in the ninth grade at the

age of seventeen, at which time he was three years behind his peers in school. He could not

read a clock or tell time, even as a teenager. His fourth grade teacher testified that in her

thirty-five years of teaching approximately 900 students, applicant was the sole person whom

she had required to sit next to her desk because he needed her to personally explain things

1
         It may be suggested that the facts of this offense are so extenuating and horrific that this
Court should be permitted to ignore Supreme Court precedent to ensure that bad people are punished
regardless of their possible intellectual disability. The determining factor for intellectual disability
is not the type of crime or horrific nature of it. Rather, the issue is whether the defendant is
intellectually disabled under the appropriate legal framework pursuant to current medical diagnostic
criteria. The proper way to handle this case is to remand it to the habeas court so that the court that
heard the facts can analyze it under the proper legal framework as set out by the Supreme Court.
2
       Atkins v. Virginia, 536 U.S. 304 (2002).
3
       Other testing placed applicant’s IQ at 111, 101, and 67.
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to him repeatedly. Applicant’s problems in school included the absence of close friends and

his association with children who were several years younger than him.

                                        II. Analysis

       In declining to remand this claim to the habeas court for further consideration, this

Court’s majority opinion employs the same type of incorrect intellectual disability analysis

that it has been conducting mistakenly for over a decade since issuing its opinion in Ex parte

Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004). The instant majority opinion continues to

selectively focus on only the IQ scores and adaptive strengths that would support a

determination that applicant is not intellectually disabled, despite current medical standards

suggesting that this is an inappropriate approach to intellectual-disability determinations.

       This Court’s majority opinion cherry picks certain IQ scores and treats those scores

as dispositive evidence of a lack of intellectual disability. This Court’s majority opinion

acknowledges that applicant’s IQ scores range from 64 to 111, but it dismisses low IQ scores

that would indicate subaverage general intellectual functioning as the product of malingering.

It uncritically assumes the validity of applicant’s higher IQ scores without addressing

whether the methods used to obtain those scores would still comport with current medical

diagnostic criteria. And perhaps more importantly, this Court’s cherry-picked IQ score of

75 provides a worst-case scenario IQ score of 71 based on the “measurement error range.”

This score is only one point above the cutoff score that would place someone in the range of

intellectually disability, when the low end of the IQ score error range is 70 or below. Under
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the current medical diagnostic framework, it is inappropriate to decide that someone is not

intellectually disabled by using a strict cutoff score taken from a cherry picked IQ test.

       I agree with applicant that Hall recognized that an IQ score is imprecise and should

not be read as a single, fixed, infallible number but rather as a range determined by a standard

error of measurement. See Hall v. Florida, 572 U.S. 701, 712 (2014). I also agree that Hall

instructed courts to consider the professional consensus of the medical community in

evaluating intellectual disability and that the medical community would not find that

applicant is not intellectually disabled merely because his low-end result on one IQ test

placed him one point above the range for a diagnosis of intellectual disability. Rather,

looking at the range of scores, I conclude that it is necessary to consider whether there is also

evidence of adaptive deficits before it could be ultimately determined whether applicant is

intellectually disabled. Id.

       Furthermore, the habeas court’s fact findings regarding adaptive deficits are

inadequate even if this Court disregards those findings that directly discuss Briseno. This

Court’s majority opinion acknowledges that the habeas court’s fact findings and conclusions

took into account diagnostic standards that are no longer accepted by the medical community,

as well as considered the non-medical Briseno factors that the Supreme Court expressly

rejected in Moore. See 137 S. Ct. at 1051. The majority opinion suggests that there is

enough information in the fact findings numbered one through 279 that it adopts in this case

and that it suggests are not based on the Briseno factors. I respectfully disagree because,
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despite the majority opinion’s suggestion, these findings adopted by this Court’s majority

opinion improperly focus on applicant’s adaptive strengths and his abilities in a controlled

prison setting. For example, the habeas court found that someone with intellectual disability

would not be able to “write coherent, correct sentences with decent punctuation,” use

sophisticated “words like ‘specialist,’” or communicate lucid thoughts in written letters.4

However, clinical experts have counseled against viewing the presence of adaptive strengths

as evidence of the absence of adaptive weaknesses. Further, they caution against considering

adaptive strengths arising in controlled settings like a prison. Additionally, the habeas court

found that applicant’s troubles in school could be due to factors other than intellectual

disability, such as “dyslexia or trouble reading, a poor home life, or being held back a

grade.”5 The Supreme Court in Moore expressly recognized that other mental or physical

impairments are common comorbidities in intellectually disabled persons and are “not

evidence that a person does not also have intellectual disability.” Moore, 137 S. Ct. at 1051.

Because the convicting court’s fact findings and conclusions fail to comport with the current

medical diagnostic framework, this Court’s majority opinion should not adopt them, and it

should instead remand this case for further evidentiary development and factual findings

under the proper standard.

                                      III. Conclusion



4
       Findings 62-66.
5
       Findings 113-115.
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       Because the Court declines to remand this case to the convicting court for fact

findings and conclusions of law that comport with the current medical diagnostic framework,

I respectfully dissent.




Filed: December 12, 2018

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