                                                                         WR-68,348-03
                                                          COURT OF CRIMINAL APPEALS
                                                                           AUSTIN, TEXAS
                                                        Transmitted 1/16/2015 5:43:00 PM
                                                          Accepted 1/20/2015 9:21:51 AM
                                                                            ABEL ACOSTA
                          NO. WR-68,348-03                                          CLERK

                                                          RECEIVED
                                                   COURT OF CRIMINAL APPEALS
                          IN THE                          1/20/2015
             TEXAS COURT OF CRIMINAL         APPEALS ABEL ACOSTA, CLERK




                     EX PARTE JUAN LIZCANO,

                              APPLICANT



                 BRIEF IN SUPPORT OF
        POST CONVICTION WRIT OF HABEAS CORPUS
                  (ART. 11.07, V.A.C.C.P.)


      From the 282nd District Court, Dallas County, Texas,
    Cause No. W05-59563-S(A), Hon. Andy Chatham, presiding.



Debbie McComas                            Alma Lagarda
State Bar No. 00794261                    State Bar No. 24755810
Debbie.McComas@haynesboone.com            alagarda@texasdefender.org
Stephanie Sivinski                        TEXAS DEFENDER SERVICE
State Bar No. 24075080                    510 S. Congress, Suite 304
Stephanie.Sivinski@haynesboone.com        Austin, TX 78704
HAYNES & BOONE, LLP                       Telephone: 512-320-8300
2323 Victory Ave. Suite 700               Telecopier: 512-477-2153
Dallas, Texas 75219
Telephone: 214-651-5000
Telecopier: 214-651-5940

                      ATTORNEYS FOR APPLICANT
                                          TABLE OF CONTENTS

INTRODUCTION .....................................................................................................1

ARGUMENT .............................................................................................................4

I.       The trial court erred in finding Mr. Lizcano’s Atkins claim
         procedurally and factually barred despite new law and evidence
         establishing mental retardation. .......................................................................4

II.      Hall v. Florida mandates the application of clinical standards
         for determining intellectual disability. ............................................................7

III.     Hall v. Florida presents a change in the law that renders the
         legal basis for Mr. Lizcano’s Atkins claim newly available. ...........................9
IV.      Previous litigation of Mr. Lizcano’s intellectual disability was
         not informed by any diagnostic framework, in contravention of
         Hall. ...............................................................................................................14

V.       After Hall, clinical standards for establishing intellectual
         disability should apply in Texas and Mr. Lizcano should be
         granted relief on his Atkins claim. .................................................................19

CONCLUSION ........................................................................................................26

CERTIFICATE OF SERVICE ................................................................................28




                                                               i
                                       TABLE OF AUTHORITIES

                                                                                                                  Page(s)

Cases
Ex Parte Acosta,
   672 S.W.2d 470 (Tex. Crim. App.1984) .............................................................. 4

Atkins v. Virginia,
   536 U.S. 304 (2002) ....................................................................................2, 6, 15

Ex parte Blue,
   230 S.W. 3d 151 (Tex. Crim. App. 2007) ............................................................ 5

Ex Parte Briseno,
   135 S.W.3d at 7...................................................................................................15

Ex parte Briseño,
   No. AP-76,132, 2010 WL 2332150 (Tex. Crim. App. June 9, 2010)
   (not designated for publication) ..........................................................................12
Ex Parte Cathey,
   No. WR-55,161-02, 2014 WL 5639162 (Tex. Crim. App. Nov. 5,
   2014) ...................................................................................................................25

Ex parte Drake,
   883 S.W.2d 213 (Tex. Crim. App. 1994) ...........................................................10
Hall v. Florida,
  134 S.Ct. 1986, --- U.S. --- (2014) (slip op. attached)........................1, 3, 7, 8, 28
Hall v. State,
  160 S.W.3d 24 (2004) ...........................................................................................5

Ex parte Hood,
   304 S.W.3d 397 (Tex. Crim. App. 2010) ...........................................................12

Lizcano v. State,
   No. AP-75,879, 2010 WL 181772 (Tex. Crim. App. May 5, 2010) ............15, 16




                                                              ii
Lizcano v. State,
   No. AP-75,879, 2010 WL 1817772 (Tex. Crim. App. May 5, 2010)
   .....................................................................................................16, 17, 18, 19, 20
Ex parte Martinez,
   233 S.W.3d 319 (Tex. Crim. App. 2007) .....................................................12, 13
Ex parte Moreno,
   245 S.W.3d 419 (Tex. Crim. App. 2008) ...........................................................13
Ex parte Reynoso,
   257 S.W.3d 715 (Tex. Crim. App. 2008) ...........................................................10
Ex Parte Schuessler,
   846 S.W.2d 850 (Tex. Crim. App.1993) .............................................................. 4
Ex parte Stuart,
   653 S.W.2d 13 (Tex. Crim. App. 1983) .............................................................11
Ex parte Torres,
   943 S.W.2d 469 (Tex. Crim. App. 1997) ............................................................. 4

Ex parte Woods,
   296 S.W.3d 587 (Tex. Crim. App. 2009) .........................................................6, 7

Other Authorities
James W. Ellis, Mental Retardation and the Death Penalty: A Guide
   to State Legislative Issues ...................................................................................19
John H. Blume, Sheri Johnson, & Christopher W. Seeds, Of Atkins
   and Men: Deviations from Clinical Definitions of Mental
   Retardation in Death Penalty Cases, 18 Cornell J. L. & Pub. Pol’y
   689, 705 (2009) ...................................................................................................18

Mental & Physical Disability L. Rep. 11, 9 n. 25 (2003) ........................................19




                                                           iii
       Applicant, Juan Lizcano, respectfully submits this brief in support of his

post-conviction writ of habeas corpus for the specific purpose of bringing to the

Court’s attention (1) the United States Supreme Court’s decision in Hall v.

Florida, 134 S.Ct. 1986, --- U.S. --- (2014) (slip op. attached) and its effect on this

Court’s analysis of Mr. Lizcano’s Atkins claim and (2) the trial court’s legal error

in refusing to consider the evidence presented in the habeas proceeding and its

impact on Lizcano’s claims.            In the absence of finding that Mr. Lizcano is

intellectually disabled and therefore ineligible for the death penalty, counsel for

Mr. Lizcano respectfully request that this Court remand his case to the trial court

for consideration of the impact of Hall on his Atkins claim, or, in the alternative,

make a determination as to whether Hall constitutes new law.

                                     INTRODUCTION
       Notwithstanding:

       (1) Recent direction from the Supreme Court in Hall that a determination
       of intellectual disability1 must be “informed by the medical community’s
       diagnostic framework,”

1
  When Mr. Lizcano’s application for habeas corpus was filed in 2009, “mental retardation” was
the term commonly used term by the American Association on Mental Retardation (AAMR) and
the psychological community at large, to describe the disability. In 2010, the AAMR—now the
American Association on Intellectual and Developmental Disabilities (AAIDD)—published the
11th edition of its manual on mental retardation and began using the term “intellectual disability”
instead of mental retardation, in part to reflect the changed construct of disability and to align
better with professional practices. See AAIDD, Intellectual Disability: Definition, Classification,
and Systems of Supports xvi (11th ed. 2010) (hereinafter, 2010 AAIDD Manual). For purposes of
diagnosis, “intellectual disability” covers the same population of individuals who were diagnosed
previously with mental retardation, and every individual who is or was eligible for a diagnosis of
mental retardation is eligible for a diagnosis of intellectual disability. Id. Consistent with this
change in terminology by the medical community, the Supreme Court in Hall replaced the term


                                                1
       (2) a three-Justice dissent in Mr. Lizcano’s direct appeal noting the
       absence of that medical diagnostic framework in the jury’s determination of
       no intellectual disability at trial, and

       (3) undisputed evidence that Mr. Lizcano is intellectually disabled under
       the medical diagnostic standards, as confirmed by every mental health
       professional to test Juan Lizcano’s intellectual functioning,

the trial court recommended that relief be denied on Mr. Lizcano’s Atkins claim.

       On April 25, 2014, the trial court heard oral argument on Mr. Lizcano’s

Proposed Findings of Facts and Conclusions of Law. At that hearing, counsel for

Mr. Lizcano informed the Court of the anticipated Supreme Court opinion in Hall

and the potential effect it could have on Mr. Lizcano’s case. After Hall was

decided but before the trial court entered findings of fact and conclusions of law,

Mr. Lizcano requested an opportunity to present briefing on the impact of Hall on

Mr. Lizcano’s Atkins claim. See Notice of Additional Authority and Motion to

Present Further Briefing (filed May 28, 2014) (7 CR:2012).

       Without ruling on the motion or otherwise addressing the impact of Hall on

Mr. Lizcano’s Atkins claim, the trial court entered findings on June 18, 2014 and

recommended that relief be denied. 2 Specifically, the trial court found that Mr.



“mental retardation” with the term “intellectual disability” to describe those individuals with
such low intellectual functioning that they cannot be executed under Atkins v. Virginia, 536 U.S.
304 (2002).
2
  While not the subject matter of this Motion, the trial court’s recommendations with respect to
mental retardation are also problematic for reasons that have been fully briefed and are part of
the habeas record before this Court. See Applicant’s Response to State’s Proposed Findings of


                                               2
Lizcano’s Atkins claim was procedurally barred because he presented evidence of

mental retardation at trial and subsequently challenged the sufficiency of the

evidence to support the jury’s finding that he was not mentally retarded on direct

appeal. See Findings of Fact and Conclusions of Law, at ¶¶261-269 (filed June 18,

2014) (8CR: 2141-43). The trial court found, in the alternative, that Mr. Lizcano is

not mentally retarded. Id. at ¶¶270-287 (8CR:2143-46). Finally, the trial court

found that this Court has not decided to apply relief retroactively after a subsequent

change in the law. Id. at ¶266 (8CR:2142).

       Adhering to the medical diagnostic criteria for establishing intellectual

disability as instructed by Hall, Mr. Lizcano is intellectually disabled and the

“Eighth and Fourteenth Amendments to the Constitution forbid the execution of

persons with intellectual disability.” Hall, 134 S.Ct. at *1990 (citing Atkins v.

Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242 (2002)). As articulated in more detail

below, Mr. Lizcano urges the Court to disregard the trial court’s recommended

findings and find that Mr. Lizcano is intellectually disabled and cannot be put to

death.3 In the absence of doing so, Mr. Lizcano respectfully requests that this


Fact and Conclusions of Law (filed September 3, 2013) (7 CR:1847). (The trial court adopted
verbatim the State’s proposed findings of fact and conclusions of law.) In short, the trial court’s
findings (1) rely on the unscientific testimony of Dr. Price; (2) ignore new evidence of adaptive
deficits presented at the writ hearing; and (3) hold that risk factors—namely, evidence of mental
retardation in the extended family—have no bearing on applicant’s risk for mental retardation,
contrary to the AAIDD’s clinical definition of mental retardation.
3
 Intellectual disability is not the sole basis supporting Mr. Lizcano’s habeas petition. Indeed, Mr.
Lizcano’s constitutional rights were also violated by, inter alia, the prosecution’s presentment of


                                                 3
Court remand his case to the trial court for consideration of the impact of Hall on

his Atkins claim, or, in the alternative, determine whether Hall constitutes new law.

                                        ARGUMENT
         The trial court’s proposed findings essentially punt on Mr. Lizcano’s Atkins

claim because an Atkins claim was raised on direct appeal. This was error in light

of the new law established in Hall and the new evidence presented during the

habeas proceeding.

I.       The trial court erred in finding Mr. Lizcano’s Atkins claim procedurally
         and factually barred despite new law and evidence establishing mental
         retardation.
         Although an applicant is generally barred from raising the same claim on

habeas that it raised on direct appeal,4 this rule does not bar claims based on new

law and evidence not available to a defendant in his original case. See, e.g., Ex

parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997). Indeed, this Court has

held that the constitutional bar to the execution of persons with mental retardation

requires a reviewing court to consider all available evidence of mental retardation

regardless of whether it was presented in previous proceedings addressing that

issue.

untruthful testimony. These grounds have been fully briefed in the trial court and are part of the
habeas record before this Court. Mr. Lizcano raises separately the issue of his intellectual
disability because, although the Hall decision was brought to the trial court’s attention before
entry of his recommended findings, the trial court did not allow further briefing on the issue and
did not address Hall in the recommended findings.
4
  See Ex Parte Acosta, 672 S.W.2d 470, 472 (Tex. Crim. App.1984); see also Ex Parte
Schuessler, 846 S.W.2d 850, 852 n6 (Tex. Crim. App.1993)


                                                4
        For instance, in Hall v. State, 160 S.W.3d 24 (2004), this Court was

presented with the same evidence of mental retardation that had been previously

presented in the defendant’s habeas corpus proceedings. In that instance, this

Court explained that it was duty-bound to consider all relevant evidence before it

in resolving the merits of the claim:

        [W]e address appellant’s mental retardation in light of both the direct appeal
        and the habeas records. In this vein, we reject any notion that the direct
        appeal record in this case must be viewed in isolation. The additional,
        habeas evidence is before us; taking it into account is necessary for a
        complete and accurate view of appellant's intellectual capabilities.

Id. at 38.

        In Ex parte Blue, “the applicant filed his initial post-conviction application

for writ of habeas corpus almost a year after the Supreme Court decided Atkins, the

applicant failed to raise the issue of mental retardation in that initial writ

application.” 230 S.W.3d 151, 153 (Tex. Crim. App. 2007). Nonetheless, Blue

urged this Court to “reach the merits of his claim of mental retardation under

Article 11.071, Section (5)(a)(3).” Id. This Court held that, despite the availability

of Blue’s claim when he filed his initial application:

        through Article 11.071, Section 5(a)(3), the Legislature has provided a
        mechanism whereby a subsequent habeas applicant may proceed with
        an Atkins claim if he is able to demonstrate to this Court that there is
        evidence that could reasonably show, to a level of confidence by clear
        and convincing evidence, that no rational finder of fact would fail to
        find he is mentally retarded.




                                           5
Id. at 154. This Court went on to explain that the “language of Article 11.071,

Section 5(a)(3) is broad enough on its face to accommodate an absolute

constitutional prohibition against, as well as statutory ineligibility for, the death

penalty.” Id. at 161. Thus, a Texas applicant can use the § 5(a)(3) gateway to

obtain merits review of a death-ineligibility claim, regardless of whether the claim

was presented in a prior proceeding—in Blue, a prior habeas proceeding, in this

case, at trial and on direct appeal.

      In fact, following Blue, this Court has held that applicants may use § 5(a)(3)

to re-litigate the same constitutional ineligibility claim rejected on the merits in a

prior proceeding. Thus in Ex parte Woods, this Court allowed the applicant,

pursuant to § 5(a)(3), to litigate the same Atkins claim he had litigated three years

earlier: “Applicant’s execution date was set for October 23, 2008. Just two days

before this scheduled execution, applicant filed this successive habeas corpus

application presenting the same Atkins claim that this Court had rejected on the

merits more than three years before.” 296 S.W.3d 587, 605 (Tex. Crim. App. 2009)

(adjudicating the claim on the merits). Under § 5(a)(3), whether the claim was

previously available—even if it was previously raised and rejected—is of no

importance:

      The issue then is whether, considering the prior evidence and findings,
      applicant’s additional evidence reasonably shows, by clear and
      convincing evidence, that no rational finder of fact would fail to find
      that he is mentally retarded. Stated another way, the issue is whether a

                                          6
         rational finder of fact could still find that applicant is not mentally
         retarded based on the prior evidence and the additional evidence set
         out in applicant’s successive habeas corpus application

Ex parte Woods, 296 S.W.3d 587, 606 (Tex. Crim. App. 2009) (citing Ex parte

Blue).

         It would make no sense to apply a more circumscribed merits treatment here,

on review of Mr. Lizcano’s initial habeas petition, than he would be given,

pursuant to Woods and Blue, if he were to bring this claim anew in a subsequent

writ. Logic dictates that, at the very least, in concert with this line of authority, this

Court should address the merits of his mental retardation claim in light of all

evidence presented at trial and in habeas proceedings.

         Here, Lizcano’s Atkins claim on habeas arises from new law (see Hall) and

new evidence that was not before this Court when it considered the issue on direct

appeal. Accordingly, the resolution of the trial-based mental retardation claim on

direct appeal cannot be grounds for defaulting the newly-developed mental

retardation claim, and the trial court erred in applying such a procedural default.

II.      Hall v. Florida mandates the application of clinical standards for
         determining intellectual disability.
         In the final days of its most recent term, the Supreme Court decided Hall v.

Florida, 134 S.Ct. 1986, --- U.S. --- (2014). In Hall, the Supreme Court held that

Florida’s rigid cut off of a 70 IQ for determination of intellectual disability “creates

an unacceptable risk that persons with intellectual disability will be executed, and


                                            7
thus is unconstitutional.” Hall, 134 S.Ct. at *1990. Although the Hall case

focused on the first prong of the test for intellectual disability – the IQ score – and

it is undisputed in this case that Mr. Lizcano’s IQ falls well below the threshold

standards for establishing intellectual disability, Hall’s emphasis on medically

acceptable standards in defining intellectual disability is instructive in this case.

      Specifically, in rejecting Florida’s rigid approach, the Supreme Court relied

heavily on the medical community’s findings and instructed: “In determining who

qualifies as intellectually disabled, it is proper to consult the medical community’s

opinions.” Hall, 134 S.Ct. at *1993. But in the end, Hall went much further than

simply consulting the medical community’s standards; it required Florida to follow

those standards, explaining as follows:

      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. at *2000. The Court went on to find that “[b]y failing to take into account the

standard error of measurement” in IQ testing, as recognized by the medical

community, “Florida’s law not only contradicts the test’s own design but also bars

an essential part of a sentencing court’s inquiry in adaptive functioning.” Id. at




                                            8
2001. This statement is no less true when applying the second prong of the test

governing intellectual disability – adaptive deficits.

III.   Hall v. Florida presents a change in the law that renders the legal basis
       for Mr. Lizcano’s Atkins claim newly available.
       Mr. Lizcano maintains that, although premised on the same issue presented

at trial and on direct appeal—that Mr. Lizcano is intellectually disabled and thus is

ineligible for the death penalty—the Atkins claim raised on habeas corpus is

supported by new evidence that was not discovered before Mr. Lizcano’s capital

trial. In contrast to the evidence of adaptive deficits presented at trial which

focused primarily on Mr. Lizcano’s functioning as an adult living in Dallas, Texas,

undersigned counsel discovered and presented at the evidentiary hearing

substantial new evidence of adaptive deficits that manifested during his early

childhood and adolescence in Mexico.5                    Additionally, undersigned counsel

discovered and presented evidence of mental retardation and cognitive

impairments among several members of Mr. Lizcano’s paternal family residing in

Mexico, a significant risk factor for mental retardation.




5
  The testimony of six witnesses who were available to testify at the evidentiary hearing was
submitted by affidavit at the trial court’s request. After reviewing their affidavits, counsel for the
State were given the opportunity but chose not to cross-examine any of the witnesses, who
remained for the duration of the hearing. The trial court did not address any of these affidavits in
its findings of fact and conclusions of law.




                                                  9
       Taken together, the new evidence presented in state habeas proceedings

renders Mr. Lizcano’s Atkins claim new, because the evidence presented at this

juncture is of an entirely different character than what the jury heard during his

capital trial. Because the jury did not have before it the new evidence described

above, this Court should not give deference to the trial court’s recommended

findings that the claim is procedurally barred because it was presented at trial and

raised and rejected on direct appeal, and the Court should grant relief on Mr.

Lizcano’s Atkins claim based on the evidence presented at the writ hearing.6

       Notwithstanding the above, previous litigation of an issue does not

necessarily bar its reconsideration on state habeas. While it is generally true that

claims that were raised on direct appeal are not cognizable on habeas corpus, Ex

parte Reynoso, 257 S.W.3d 715, 723 (Tex. Crim. App. 2008), previously litigated

issues are subject to collateral attack where a prior judgment has been rendered

void, or where this Court has decided to apply relief retroactively after a

subsequent change in the law. Ex parte Drake, 883 S.W.2d 213, 215 (Tex. Crim.

App. 1994) (citing Ex parte Schuessler, 846 S.W.2d 850 (Tex. Crim. App. 1993)

(holding, in part, that writ of habeas corpus could be used to collaterally attack a

6
  Trial counsel’s failure to discover critical evidence related to his intellectual disability is
separately alleged as an IAC claim in Mr. Lizcano’s habeas application and was further
developed at the writ hearing. Regardless of whether this Court agrees that Mr. Lizcano’s Atkins
claim is procedurally barred, it must nonetheless consider the additional evidence of intellectual
disability for purposes of assessing prejudice on his IAC claim, an analysis that—at least with
respect to new evidence of adaptive deficits—the trial court did not undertake.


                                               10
previous decision and granting relief because original conviction was subsequently

held to be void) and Ex parte Stuart, 653 S.W.2d 13, 15 (Tex. Crim. App. 1983)

(granting post-conviction habeas relief after rejecting similar claims on

discretionary review and collateral attack).

       Although the cases above primarily involved a subsequent change in state

law, this Court has also relied on Supreme Court precedent in deciding to consider

a claim on state habeas that had been previously raised and rejected on direct

appeal. See Stuart, 653 S.W.2d at 14 (“In light of recent decisions of this Court

and the United States Supreme Court, we will examine the merits of this post-

conviction habeas corpus application.”) (emphasis added).                      It is therefore

conceivable that the sufficiency of the evidence claim raised and rejected on direct

appeal—and which the trial court found rendered Mr. Lizcano’s Atkins claim on

state habeas procedurally barred—could be reviewed collaterally in these

proceedings based on the Supreme Court’s decision in Hall v. Florida.7


7
  Mr. Lizcano did not raise a sufficiency of the evidence claim on state habeas and does not
concede that his Atkins claim is subject to a procedural bar. He puts forth this argument only
because the trial court determined that he is “essentially challenging the sufficiency of the
evidence supporting the jury’s rejection of the mental retardation special issue,” see Findings of
Fact and Conclusions of Law, at ¶¶262 (filed June 18, 2014) (8CR:2142), and used that finding
to procedurally bar his Atkins claim.




                                               11
      Similarly, this Court has considered the merits of numerous Penry claims

raised in subsequent applications because of new law announced by the Supreme

Court, where those Penry claims would have otherwise been procedurally barred

under Article 11.071, Section 5. In Ex parte Hood, this Court held that because

five Supreme Court decisions regarding Texas’ nullification instructions decided

after applicant filed his second habeas application announced new law directly

relevant to applicant’s Penry claim, applicant’s second subsequent habeas

application should not have been procedurally barred. Ex parte Hood, 304 S.W.3d

397, 398-99 (Tex. Crim. App. 2010). See also, Ex parte Briseño, No. AP-76,132,

2010 WL 2332150, *3 (Tex. Crim. App. June 9, 2010) (not designated for

publication) (holding that applicant’s Penry claim was not procedurally barred

because it relied on Tennard, and this Court held in Hood that Tennard announced

new law).

      Even prior to this Court’s 2010 decision in Hood, this Court had already

held in a handful of subsequent habeas applications that then-recent Supreme Court

cases regarding Texas’ nullification instructions announced new law and that those

death-row inmates were entitled to have the merits of their Penry claims addressed.

See Hood, 304 S.W.3d, at *404, n. 40 (citing cases where this Court addressed

Penry claims brought in successive litigation). In Ex parte Martinez, 233 S.W.3d

319 (Tex. Crim. App. 2007), this Court addressed the merits of a Penry claim



                                        12
raised in a subsequent habeas application decided after the claim had been

exhausted on direct appeal, reasoning that it was based on “binding and directly

relevant United States Supreme Court precedent”:

      We initially note that the Penry claim presented in applicant’s subsequent
      writ is based on binding and directly relevant United States Supreme Court
      precedent decided after applicant had exhausted this Penry claim at trial
      and on direct appeal and after applicant had filed his first state habeas
      application. Under these circumstances, we affirm our initial determination
      in our order of March 24, 2006, that applicant’s subsequent state habeas
      application is not procedurally barred as an abuse of the writ under Article
      11.071, Section 5(a).

Martinez, 233 S.W.3d at 322-23 (internal citations omitted) (emphasis added). See

also Ex parte Moreno, 245 S.W.3d 419 (Tex. Crim. App. 2008) (reconsidering

applicant’s previously dismissed Penry claim, concluding that Abdul–Kabir,

Brewer, Smith II, and Tennard constituted a new legal basis under 11.071, § 5, and

holding that those cases held that a defendant’s mitigating evidence of “a troubled

childhood” required special instructions so that the jury could fully consider its

mitigating value outside the statutory special issues).

      While Mr. Lizcano is raising his Atkins claim in an initial and not

subsequent habeas application, the same principles permitting consideration of

previously dismissed claims apply. The trial court failed to take into consideration

the change in law occasioned by the Supreme Court’s decision in Hall when it

made its recommended findings to this Court. Hall is a binding and directly

relevant Supreme Court decision that allows this Court to consider the merits of

                                          13
Mr. Lizcano’s Atkins claim. Although Hall focused on the first prong of the test

for intellectual disability – the IQ score – Hall’s emphasis on medically acceptable

standards in defining intellectually disability is instructive in this case. The prior

rejection of Mr. Lizcano’s claim that he is intellectual disabled and thus ineligible

for execution suffers from the same defects that the Supreme Court found

unconstitutional in Hall, because it disregarded medical practice and was not

informed by any diagnostic framework.

       Because Mr. Lizcano is intellectually disabled under the medical standard

dictated by Hall, Mr. Lizcano urges this Court to grant habeas relief on his Atkins

claim. At a minimum, this Court should remand his case to the trial court for

consideration of the impact of Hall on his Atkins claim, or, in the alternative,

determine whether Hall constitutes new law.

IV.    Previous litigation of Mr. Lizcano’s intellectual disability was not
       informed by any diagnostic framework, in contravention of Hall.
       Under the medical definition of intellectual disability, a person is disabled

when the following exists:

       (1) significant subaverage intellectual functioning (i.e., low IQ), existing
           concurrently with

       (2) limitations in adaptive functioning (“adaptive deficits”) in at least one of
           three categories of adaptive skills: conceptual, social, and practical; 8

8
  Representative conceptual skills relevant to the adaptive deficits analysis include language,
reading, writing, ability to manage money, and self-direction. Representative social skills include
interpersonal, responsibility, self-esteem, gullibility, naiveté, ability to follow rules and laws, and


                                                  14
         (3) which manifest before the age of eighteen (18).9

         Mr. Lizcano presented evidence during the punishment phase of his capital

trial that he is a person with intellectual disability. At the commencement of jury

deliberations, the trial court instructed the jury to answer three special issues, the

first of which was, “Do you find by a preponderance of the evidence that

Defendant is a person with mental retardation?” (Charge of the Court for the

Punishment Phase, p. 1).             The court defined mental retardation as follows:

“Mental retardation is a disability characterized by: (1) significantly subaverage

general intellectual functioning; (2) accompanied by related limitations in adaptive

functioning; (3) the onset of which occurs prior to the age of 18.” Id. at 2. The

instructions went on to define adaptive deficits as “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.” Id. 10 The jury

answered “no” to this special issue, and answered the remaining two special issues

in such a way as to return a death sentence.



ability to avoid victimization. Representative practical skills include daily living, occupational
skills, and ability to maintain a safe environment. See 6CR:1545 at ¶ 37.
9
    Atkins, 536 U.S. at 309, n3; Ex Parte Briseno, 135 S.W.3d at 7.
10
  Similarly, this Court also relied on the definition of “adaptive behavior” as defined by Section
591.003(1) of the Health and Safety Code when it evaluated Mr. Lizcano’s sufficiency of the
evidence claim regarding mental retardation on direct appeal. Lizcano v. State, No. AP-75,879,
2010 WL 181772, *12 (Tex. Crim. App. May 5, 2010).


                                                 15
      On direct appeal, Mr. Lizcano raised several points of error regarding the

jury’s failure to find mental retardation, including a claim that the jury’s answer on

that issue was against the great weight of the evidence, especially in light of the

expert testimony offered by the defense and the absence of any contrary expert

testimony from the State. Brief for Appellant at 100-101, Lizcano v. State, No. AP-

75,879, 2010 WL 1817772 (Tex. Crim. App. May 5, 2010). This Court found that

Mr. Lizcano “clearly satisfied” the first prong of the mental retardation definition

by a preponderance of the evidence. Lizcano, at *12. However, because it found

there was significant evidence admitted that “supported the appellant’s

effectiveness in meeting standards of personal independence and social

responsibility,” this Court affirmed the jury’s negative finding on mental

retardation. Id. at *15.

      Mr. Lizcano’s claim concerning intellectual disability on direct appeal was

not guided by the diagnostic criteria relied upon in Atkins and now required by

Hall. Indeed, this Court has not restricted juries to consideration of the clinical

factors for intellectual disability, thereby leaving the jury to decide “what the

Eighth Amendment standard for determining mental retardation is in the first

place.” Lizcano v. State, No. AP-75879, 2010 WL 1817772, at *32 (Tex. Crim.

App. May 5, 2010) (Price, J., concurring and dissenting) (emphasis in original).

This is in direct contravention of Hall.



                                           16
      The dissenting opinion in Mr. Lizcano’s direct appeal highlighted the

deficiencies in the intellectual disability standards as applied in Texas.

Specifically, the dissent criticized the majority for emphasizing in its analysis the

definition of “adaptive behavior” as used in § 591.003(1) of the Texas Health and

Safety Code and the AAMR, while ignoring the “specific diagnostic criteria

included in the AAMR definition.” Lizcano v. State, 2010 WL 1817772, at *33-34

(“Today the Court fails to take these diagnostic criteria into account in gauging

whether the jury’s rejection of mental retardation is against the great weight and

preponderance of the evidence. It is not entirely clear to me why.”). The dissent

went on to warn that “it is no solution to [the exceedingly subjective nature of the

adaptive-deficit criteria] to substitute the normative caprice of the fact-finder for

the comparative scientific objectivity inherent in the diagnostic criteria.” Id. at *40.

      Indeed, while the majority opinion recognized that there was evidence

presented at trial relevant to Mr. Lizcano’s limitations in adaptive functioning, it

also prescribed weight to Mr. Lizcano’s adaptive abilities. On the one hand, the

court noted that Mr. Lizcano “had trouble following instructions and performing

fairly simple tasks in the work environment;” “used limited vocabulary and did not

seem to understand humor;” “could not perform certain simple personal tasks such

as reading an analog clock, following directions to a location, or operating a

VCR;” and “had difficulty learning and socializing.” Id. at *15. It then went on to



                                           17
describe the ways in which Mr. Lizcano did not exhibit limitations in certain areas

of adaptive behavior, including evidence that he made regular payments on a car

that he purchased as a co-buyer; had romantic relationships with two women,

neither of whom considered him to be mentally retarded; and sent money home to

assist his family. Id.

      In assessing adaptive deficits, the focus is not on whether or not Mr. Lizcano

can perform one or more of these skills. It is presumed that even an intellectually

disabled individual will have strengths in some of these areas. 6CR:1545 at ¶ 38;

6RR:219-223; see also 2010 AAIDD Manual, at 47 (“Thus, in the process of

diagnosing ID, significant limitations in conceptual, social, or practical adaptive

skills is not outweighed by the potential strengths in some adaptive skills.”).

Rather, the clinical definitions ask whether an individual experiences “significant

limitations” in at least one category of adaptive skills. 6CR:1544-46 at ¶¶ 34-41;

John H. Blume, Sheri Johnson, & Christopher W. Seeds, Of Atkins and Men:

Deviations from Clinical Definitions of Mental Retardation in Death Penalty

Cases, 18 Cornell J. L. & Pub. Pol’y 689, 705 (2009) (“Science does not prescribe

a list of abilities that exclude mental retardation, but rather defines mental

retardation by what an individual cannot do.”). This allows the clinician to confirm

that the intellectual disability suggested by IQ scores impacts an individual’s

ability to function. As one of the nation’s leading experts on intellectual disability,



                                          18
cited in Atkins, explains “The sole purpose of the adaptive prong of the definition

for the criminal justice system is to ascertain that the measured intellectual

impairment has had real-life consequences, and thus it is the presence of

confirming deficits that must be the diagnostician’s focus.” James W. Ellis, Mental

Retardation and the Death Penalty: A Guide to State Legislative Issues, 27 Mental

& Physical Disability L. Rep. 11, 9 n. 25 (2003).

      This    loose   interpretation   of    adaptive   behavior   cannot    withstand

constitutional muster – a jury finding of no intellectual disability blessed by this

Court on direct appeal, despite overwhelming and undisputed evidence that Mr.

Lizcano meets the clinical, diagnostic criteria of intellectual disability as confirmed

by every mental health professional to have evaluated him with the use of

generally accepted, standardized instruments.

V.    After Hall, clinical standards for establishing intellectual disability
      should apply in Texas and Mr. Lizcano should be granted relief on his
      Atkins claim.
      Here, it is undisputed that Mr. Lizcano falls well below the standard

deviations for intellectual disability on his IQ tests. The State admitted this fact on

the record below and this Court found the same in its decision on direct appeal.

6RR:93-94; Lizcano v. State, 2010 WL 1817772 at *15 (Tex. Crim. App. May 5,

2010). Thus, the first prong of the test showing intellectual disability is met.




                                            19
      The American Association on Intellectual and Developmental Disability

defines adaptive deficits as “the collection of conceptual, social, and practical skills

that have been learned and are performed by people in their everyday lives.” 2010

AAIDD Manual at 43. The AAIDD further provides that for a diagnosis of

intellectual disability, significant limitations in adaptive behavior should be

established through the use of standardized measures normed on the general

population, including people with disabilities and people without disabilities. Id.

On these measures, “significant limitations” in adaptive behavior are defined as

performance that is approximately two standard deviations below the mean of

either (a) one of the following types of adaptive behavior: conceptual, social, or

practical or (b) an overall score on a standardized measure of conceptual, social,

and practical skills. Id. Representative conceptual skills are “language, reading

and writing, money concepts, and self-direction.” Id. at 44. Representative social

skills are “interpersonal, responsibility, self-esteem, gullibility, naiveté, follows

rules, obeys laws, avoids victimization.” Id. Representative practical skills are

“activities of daily living, instrumental activities of daily living, occupational

skills, and maintains safe environments.” Id.

      The AAIDD explains that in the event that standardized assessments cannot

be used, other information-gathering methods can be employed, including direct

observation; review of school records, medical records, and previous psychological



                                          20
evaluations; or interviews with individuals who know the person and have had the

opportunity to observe the person in the community but may not be able to provide

a comprehensive report regarding the individual’s adaptive behavior in order to

complete a standardized adaptive behavior scale. Id. at 48.

       At trial, Mr. Lizcano showed deficits in adaptive behavior across every

category of skills recognized by the AAIDD, including conceptual, practical, and

social domains. Indeed, the evidence of Mr. Lizcano’s adaptive deficits reveals that

while Mr. Lizcano may have been superficially functional in limited ways as an

adult, he actually performed few tasks alone or without substantial and meaningful

assistance from those around him. 11

       But in addition to the evidence presented at trial concerning Mr. Lizcano’s

adaptive behavior, substantial new evidence of adaptive deficits was introduced at

the habeas proceedings below. This includes a standardized assessment reflecting

that Mr. Lizcano’s skills were in the extremely low range; results of face-to-face

interviews that were conducted by mental health professionals with family

members; and clinical observations by two mental health professionals who

reported a lack of executive functioning skills. In all, Mr. Lizcano’s proposed




11
   See, e.g., 6CR:1612-13 at ¶¶ 324-327 (Mr. Lizcano needed help buying his truck, driving his
truck, paying his bills, and using his cell phone.)


                                             21
findings list some 25 pages of new evidence presented at the habeas stage

reflecting adaptive deficits. 12

         All in all, the examples of common every day skills that others in his

community performed but Mr. Lizcano could not are many. 13 For instance, people

who knew Mr. Lizcano as a young boy in Mexico where he was raised testified

that he could not:

             • use a talache, a common tool in his community, or a slingshot to hunt
               mice, even though others his age did it all the time.

             • measure medication needed to maintain the family’s goats, despite the
               fact that his brother repeatedly tried to teach him.

             • maintain sufficient focus to herd and guard the goats.

             • drive a plow using horses because he could not control the horses to
               make a straight line.

             • drive a plow using donkeys, which were considered the easiest of
               animals to drive.

             • prepare the animals for attaching the plow, despite the fact that his
               older brother repeatedly tried to teach him; he often put the collar
               harness on backward.

             • appropriately plant crops or lay seed, which was considered a girl’s
               job because it was easier than driving a plow.

             • appreciate the danger in taking goats out to pasture when it was
               raining, when his siblings knew that the goats could be swept away in
               the arroyos.

12
     6CR:1554-79.
13
     See 6CR:1603-10 at ¶¶ 282-315.


                                           22
             • scrape the fibers of the lechuguilla plant, a source of income for the
               family; he would scrape backwards, and the fibers would come out
               folded, curled up, and every which way.

             • change a tire or fix a chain on a bicycle, the family’s only mode of
               transportation.

             • lay a cement block, despite the fact that his older brother tried to teach
               him.


         In fact, he struggled so extensively with the daily chores that others his age

were expected to perform that he was relegated to the most rudimentary tasks

available: cleaning dirt out of water tanks and carrying firewood.14

         Additionally, witnesses testified that Mr. Lizcano exhibited deficits

encompassed within the conceptual domain of adaptive deficits, including that he:

             • had trouble writing in elementary school, compared to his younger
               sister Lucia; he would leave out letters or sometimes shorten the
               words.

             • read very slowly when he read out loud.

             • copied his homework from other children because he was “not good at
               learning.”

             • would run all of his letters together when he wrote.

             • could not tell a story in detail; if something happened to him, he
               would not say anything at all, or just give very short responses when
               asked.


14
     See 6CR:1554-57 at ¶¶ 74-86.


                                             23
             • did not have a big vocabulary and had a hard time expressing himself.

         Finally, within the social domain of adaptive deficits, Mr. Lizcano:

             • had trouble socializing with other children as a young boy and barely
               spoke.

             • was very bad at volleyball, a common game that the children played
               on the rancho, because he did not understand the rules; he repeatedly
               touched the line or the net, even though the children would yell “foul”
               every time he did.

             • would not talk in group settings, such that other children took
               advantage of him because he was timid and would not respond to
               anyone.

             • was a follower.

             • was timid and embarrassed around girls and never had a girlfriend in
               Mexico, even though it is customary to start showing interest in girls
               around 13-14 years of age.

         Mr. Lizcano’s struggles persisted into adulthood and have continued to this

day. 15 As an adult, he struggles to communicate, demonstrating below average

vocabulary, low content of speech, hesitancy in responding to interview questions,

and difficulty comprehending moderately complex task instructions.16 He takes

long pauses before responding to questions, inappropriately laughs when presented

with complex tasks, and has trouble maintaining eye contact. 17 He had extensive

difficulties at his landscaping job in Dallas, forgetting directions, his tasks, and

15
     See 6CR:1610-13 at ¶¶ 316-327.
16
     6CR:1562 at ¶ 110.
17
     6CR:1562 at ¶ 110-111.


                                            24
how to use a tape measure.18 He often would walk away from cash registers

without change.19 The list of Mr. Lizcano’s adaptive struggles both as a child and

as an adult runs on and on. 20

         There is a wealth of evidence (much presented in the habeas proceedings)

showing Mr. Lizcano’s adaptive deficits across a broad range of functional

activities. This is all that is required to declare him intellectually disabled under the

clinical standards that should govern this case. Yet, the jury—lacking the clinical

definition of intellectual disability—failed to find Mr. Lizcano intellectually

disabled.

         As a recent concurring decision from this Court points out, the criteria used

to evaluate adaptive deficits is “decidedly non-diagnostic.” Ex Parte Cathey, No.

WR-55,161-02, 2014 WL 5639162, at *20 (Tex. Crim. App. Nov. 5, 2014). It is

clear after Hall that the very problems with the Texas standards for intellectual

disability pointed out by the dissent in the opinion on direct appeal – the failure to

define intellectual disability within the framework of the clinical guidelines and the

commensurate deference to the jury’s fact findings made without reference to those

guidelines – led to an absurd and constitutionally infirm result that would allow a


18
     6CR:1611 at ¶ 321.
19
     6CR:1613 at ¶ 326.
20
 See 6CR:1603-10 at ¶¶ 282-315 (childhood adaptive deficits); 6CR:1617 at ¶ 347 (behavior in
US), 6CR:1618 at ¶¶ 348-349 (Marta relationship).


                                            25
clearly intellectually disabled man to be put to death. Hall and Atkins forbid such a

result as violative of the Eighth and Fourteenth Amendments to the Constitution.

      Here, the evidence presented at the writ hearing is undisputed and shows that

Mr. Lizcano suffered adaptive deficits in each category. The Court could,

therefore, find Mr. Lizcano intellectually disabled as a matter of law and commute

his sentence. At a minimum, however, he should be remanded to the trial court to

address the impact of Hall on his Atkins claim or, in the alternative, this Court

should determine whether Hall constitutes new law.

                                   CONCLUSION
      In light of Hall and the overwhelming evidence of intellectual disability

present in this case, Mr. Lizcano urges the Court to disregard the trial court’s

proposed findings of fact and conclusions of law and instead find that Mr. Lizcano

is intellectually disabled and therefore ineligible for the death penalty. At a

minimum, Mr. Lizcano respectfully request that this Court remand his case to the

trial court for consideration of the impact of Hall on his Atkins claim, or, in the

alternative, make a determination as to whether Hall constitutes new law.




                                          26
Respectfully submitted,


/s/ Debbie McComas
Debbie McComas
State Bar No. 00794261
Stephanie Sivinski
State Bar No. 24075080
HAYNES & BOONE, LLP
2323 Victory Ave. Suite 700
Dallas, Texas 75219
Telephone: 214-651-5000
Telecopier: 214-651-5940

Alma Lagarda
State Bar No. 24755810
TEXAS DEFENDER SERVICE
510 S. Congress, Suite 304
Austin, TX 78704
Telephone: 512-320-8300
Telecopier: 512-477-2153

ATTORNEYS FOR APPLICANT




  27
                         CERTIFICATE OF SERVICE
      I hereby certify that a true and correct copy of the foregoing has been served
on the following attorneys in the manner indicated on the 16th day of January,
2015.

Jaclyn O’Connor                         Via hand delivery and Email
Assistant District Attorney             (Jaclyn.OConnor@dallascounty.org)
Frank Crowley Courts Building
133 N. Industrial Blvd., LB19
Dallas, Texas 75207-4399




                                       /s/ Debbie McComas
                                       Debbie McComas




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