Gallo, Tomas Raul

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-77,940-01

EX PARTE TOMAS RAUL GALLO

ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE

NO. 940093 IN THE 182 nd JUDICIAL DISTRICT COURT

HARRIS COUNTY

Per Curiam. P RICE , J., filed a concurring statement in which J OHNSON , J.,

joined.

O R D E R

This is an application for writ of habeas corpus filed pursuant to the provisions of

Article 11.071 of the Texas Code of Criminal Procedure.

Applicant was convicted of the offense of capital murder in February 2004. The

jury answered the special issues submitted under Article 37.071 of the Texas Code of

Criminal Procedure, and the trial court, accordingly, set punishment at death. The

conviction was affirmed on direct appeal. Gallo v. State, 239 S.W.3d 757 (Tex. Crim.

App. 2007).

Applicant presents thirty-eight allegations in his application in which he challenges

the validity of his conviction and resulting sentence. The trial court adopted the State's

proposed findings of fact and conclusions of law recommending that the relief sought be

denied.

A jury determined the issue of mental retardation at Applicant's trial in 2004. Dr.

George Carl Denkowski testified as an expert witness for the State on the issue of mental

retardation. In his first habeas allegation, Applicant asserts that Denkowski "could not

conclude that Applicant was not mentally retarded without rejecting the accepted clinical

mental health definitions of mental retardation and the accepted techniques used to

classify under those clinical mental health definitions of mental retardation." Applicant

asserts that, as a result, he "was denied a fair trial, as well as being denied his rights under

the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution."

On direct appeal, we rejected Applicant's challenge to the sufficiency of the evidence to

support the jury's answer to the mental retardation special issue. See Ex parte Acosta,

672 S.W.2d 470, 472 (Tex. Crim. App. 1984)(holding that we need not address habeas

claims that were raised and rejected on direct appeal); see also Ex parte Reynoso, 257

S.W.3d 715, 723 (Tex. Crim. App. 2008).

In April 2011, subsequent to the filing of the instant habeas application,

Denkowski entered into a Settlement Agreement with the Texas State Board of

Examiners of Psychologists, in which his license was "reprimanded." Pursuant to this

Settlement Agreement, Denkowski agreed to not accept any engagement to perform

forensic psychological services in the evaluation of subjects for mental retardation or

intellectual disability in criminal proceedings. The trial court, in its findings and

conclusions, has evaluated the merits of Applicant's first habeas allegation in light of the

Denkowski Settlement Agreement. (1) We have reviewed the record and the trial court's

findings of fact and conclusions of law. Based upon the trial court's findings and

conclusions (with the exception of findings #51 and #53) and our own review, we deny

relief on Applicant's first habeas allegation.

This Court has reviewed the record with respect to the remaining allegations made

by Applicant. We adopt the trial judge's findings and conclusions pertaining to

Applicant's remaining allegations, except for finding #136. Based upon the trial court's

findings and conclusions and our own review, we deny relief on the remaining

allegations.

IT IS SO ORDERED THIS THE 9 TH DAY OF JANUARY , 2013.

Do Not Publish

1. Applicant has filed a "Suggestion to Remand Cause for Trial Court to Render Initial

Findings,"

asking this Court to remand this cause to the trial court to reconsider its findings and

conclusions in light of the Denkowski Settlement Agreement. However, the trial court has sua

sponte taken the Denkowski Settlement Agreement into account in its review of Applicant's

claim. Thus, we decline Applicant's suggestion to remand this cause to the trial court.