             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                    NO. WR-69,291-01



                 EX PARTE CALVIN LETROY HUNTER, Applicant



              ON APPLICATION FOR A WRIT OF HABEAS CORPUS
              CAUSE NO. 968719-C IN THE 230 TH DISTRICT COURT
                          FROM HARRIS COUNTY



       A LCALA, J., filed a concurring statement.

                             CONCURRING STATEMENT

       I concur in the Court’s decision to remand the application for a post-conviction writ

of habeas corpus filed by Calvin Letroy Hunter, applicant, to the habeas court for further fact

findings. I write separately to explain my view as to why the habeas court’s original findings

and conclusions are an inadequate basis upon which to resolve applicant’s claim, and to

clarify what I view as the proper legal standard applicable to this case.

       Applicant contends that the introduction of false expert testimony at his trial violated

his due-process rights by improperly persuading the jury to reject his claim that he is
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ineligible for the death penalty because of his intellectual disability. The habeas court

recommends that this Court grant applicant relief in the form of a new punishment trial based

on its determination that that stage of the proceedings was infected by the false testimony of

Dr. Denkowski, who opined that applicant’s IQ scores underestimated his true intellectual

functioning, and that such false testimony violated applicant’s due-process rights. My review

of the habeas court’s fact findings reveals that, in assessing whether there was a reasonable

likelihood that Dr. Denkowski’s false testimony affected the jury’s determination that

applicant did not have an intellectual disability, the habeas court extensively addressed

applicant’s subaverage IQ, but failed to adequately consider whether he had significant

adaptive deficits, and, therefore, I agree with this Court’s decision to remand this application

to the habeas court for further fact findings.

       In determining that Dr. Denkowski’s false testimony was material to the fact finder’s

decision that applicant was not intellectually disabled, the habeas court’s fact findings largely

focus on evidence of applicant’s subaverage IQ before the age of eighteen, but fail to address

whether applicant had significant adaptive deficits. See Ex parte Briseno, 135 S.W.3d 1, 7

(Tex. Crim. App. 2004) (proof of intellectual disability requires evidence of (1) significantly

subaverage general intellectual functioning that is (2) concurrent with deficits in adaptive

behavior, and (3) onset before age 18). The habeas court’s fact findings, therefore, are

inadequate in that they fail to consider the likely effect of Dr. Denkowski’s false testimony

based on the entire record with respect to whether applicant is intellectually disabled.
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       Based on the habeas court’s fact findings, applicant has presented an overwhelming

case that he has subaverage intellectual functioning with an onset before the age of eighteen.

The habeas court’s findings and conclusions indicate that,

•      On January 7, 1980, when he was eight years old, applicant’s verbal IQ was 65, his
       performance IQ was 68, and his full-scale IQ was 64 on the Wechsler Intelligence
       Scale for Children – Revised, which placed him within the range of subaverage
       intellectual functioning;

•      In 2004, applicant’s verbal IQ was 72, his performance IQ was 80, and his full-scale
       IQ was 74 on the Wechsler Adult Intelligence Scale – Third Edition, which placed
       him within the range of subaverage intellectual functioning;

•      In high school, applicant was classified as “educable mentally handicapped,” which
       is a “low functioning group equivalent to educable mentally retarded”;

•      Applicant was placed in special education and graduated with a “special education”
       high school diploma with a grade point average of 1.98;

•      Dr. Garnett conducted a medical review of applicant before trial and testified that
       applicant met the criteria for intellectual disability under the current, approved
       standards in use;

•      Dr. Denkowski, the State’s sole expert witness during the punishment phase of
       applicant’s capital-murder trial and the only expert to testify that applicant is not
       intellectually disabled, provided “unreliable and false testimony”;

•      Dr. Denkowski did not administer the WAIS-III to applicant himself “because
       applicant had taken the test one month prior, and the doctor did not feel any scores
       obtained would be a true measure of applicant’s intellectual functioning”;

•      Although Dr. Denkowski did not administer any IQ test to applicant, he opined that
       applicant’s IQ scores “underestimated his true intellectual functioning”;

•      Dr. Averill noted several errors in Dr. Denkowski’s methodology and testimony,
       including that Dr. Denkowski was “incorrect” in determining that applicant’s scores
       on the previously administered WAIS-III were not “an accurate reflection of his
       current level of functioning”;
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•      In 2007, the State Board of Psychiatric Examiners filed a complaint against Dr.
       Denkowski, asserting that the methods he used to evaluate whether death row inmates
       are mentally retarded were “unscientific, unethical, and in violation of several Board
       rules”;

•      In 2011, Dr. Denkowski entered into a settlement agreement with the Texas State
       Board of Examiners of Psychologists, in which his license was “reprimanded,” and
       he agreed not to perform forensic psychological services in the evaluation of subjects
       for intellectual disability in criminal proceedings;

•      Dr. Hays averred that Dr. Denkowski used a false title in describing himself as a
       clinical psychologist, deviated from “acceptable professional practice in the work that
       he performed,” did not adhere “to scientific testing approaches in his assessment,” and
       violated “several professional standards [with respect to his examination of] the
       defendant”; and

•      Dr. Murphy diagnosed applicant as having an intellectual disability after testing him
       on the Stanford-Binet Intelligence Scales, Fifth Edition, and determining that he had
       a 74 IQ score; she concluded that applicant’s overall intelligence is “borderline
       delayed” and is ranked in the fourth percentile.

       On the basis of these findings, the habeas court concluded that Dr. Denkowski’s false

testimony “more likely than not contributed to the jury’s rejection of [applicant’s] intellectual

disability claim” based on the record that showed that Dr. Denkowski was the sole witness

who claimed that applicant did not have a subaverage IQ.

       Although the habeas court has made extensive findings on the evidence of subaverage

intellectual functioning and onset before age 18, the habeas court failed to make adequate

findings discussing whether applicant has significant adaptive deficits and whether, in light

of the evidence pertaining to applicant’s adaptive deficits, it is reasonably likely that Dr.

Denkowski’s false testimony would have affected the jury’s determination that applicant was
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not intellectually disabled. By focusing largely on the IQ tests and multiple doctors’ opinions

about those tests, the habeas court does not discuss whether the evidence indicates that

applicant had significant adaptive deficits.

       The issue before us is whether applicant is entitled to a new punishment hearing based

on the false evidence that was presented by Dr. Denkowski. The habeas court has made

detailed fact findings and, on the basis of those findings, it concluded that Dr. Denkowski’s

false testimony likely would have affected the jury’s determination that applicant was not

intellectually disabled. But if Dr. Denkowski’s false evidence was inconsequential to the

defendant’s proof on the question of his significant adaptive deficits, then the defendant may

be eligible for the death penalty even if a fact finder believed that the defendant had

subaverage intellectual functioning and onset before the age of 18. See Briseno, 135 S.W.3d

at 7. It is important, therefore, for the habeas court to have considered all the evidence in the

record, including the evidence relating to applicant’s adaptive deficits, in determining

whether Dr. Denkowski’s false evidence would have likely affected the jury’s determination

with respect to the question of his intellectual disability. I also note that, to some extent, the

habeas judge misstated the law in his conclusions of law, for example, by too broadly

suggesting that, if “the jury considered Dr. Denkowski’s false/unreliable testimony at all,

then its determination that applicant was not mentally retarded violates applicant’s right to

be free from cruel and unusual punishment.” See Ex parte Chabot, 300 S.W.3d 768, 771

(Tex. Crim. App. 2009) (applicant must prove that use of false evidence caused him harm,
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not just that it was considered at all). Because the habeas court’s extensive findings and

conclusions fail to discuss the probable impact of Dr. Denkowski’s testimony in light of all

the evidence in the record pertaining to applicant’s intellectual-disability claim, I agree with

the Court’s decision to remand for additional findings.

Filed: April 22, 2015

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