Thomas, Kenneth Dewayne

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-77,047

KENNETH WAYNE THOMAS, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL FROM CAUSE NO. F86-85539-M

IN THE 194 TH DISTRICT COURT

DALLAS COUNTY

R ICHARDSON, J., delivered the opinion of the Court in which H ERVEY, A LCALA,

N EWELL, and W ALKER, JJ., joined. K ELLER, P.J., filed a dissenting opinion in which

K EASLER, Y EARY, and K EEL, JJ., joined. Y EARY, J., filed a dissenting opinion in which

K ELLER, P.J., and K EASLER and K EEL, JJ., joined.

1 OPINION

In 1987, Appellant Kenneth Wayne Thomas1 was convicted of capital murder. Based

upon the jury’s answers to the special issues presented in the jury charge, Thomas was

1

In proceedings concerning Thomas’s initial direct appeal and habeas application, Thomas’s

name appeared as “Kenneth Dewayne Thomas.” See Thomas v. State, No. AP-69,938 (Tex. Crim.

App. June 8, 1994) (not designated for publication); Ex parte Thomas, No. AP-73,251 (Tex. Crim.

App. Oct. 20, 1999) (not designated for publication). Beginning with proceedings concerning

Thomas’s second habeas application, Thomas’s name has appeared as “Kenneth Wayne Thomas.”

See, e.g., Ex parte Thomas, No. AP-76,405 (Tex. Crim. App. Aug. 25, 2010) (not designated for

publication). We adopt Thomas’s name as it appears in the current record and pleadings.

Thomas — 2

sentenced to death.2 Direct appeal to this Court was automatic,3 and this Court affirmed the

conviction and sentence.4 In 2010, we granted habeas corpus relief as to punishment only.5

The trial court held a new punishment hearing in 2014, and Thomas again received a death

sentence. The punishment portion of the case is once again before this Court on direct

appeal.6

During the punishment phase of Thomas’s 2014 trial, he raised a claim of intellectual

disability. In this direct appeal, Thomas claims that the jury, in deciding whether he is a

2

See T EX. P ENAL C ODE § 19.03(a).

3

T EX. C ODE C RIM. P RO. art. 37.0711 § 3(j). Unless otherwise indicated, all references to

Articles refer to the Texas Code of Criminal Procedure.

4

Thomas, No. AP-69,938.

5

Ex parte Thomas, No. AP-76,405. In our August 25, 2010 opinion, we noted that the habeas

court recommended that this Court vacate the punishment portion of the trial court’s judgment and

remand the case for a new punishment hearing because “the former statutory special issues did not

provide [Thomas’s] jury with an adequate mechanism for exercising its reasoned moral judgment

concerning whether [Thomas’s] mitigating evidence of low intelligence, brain damage, and mental

illness warranted the imposition of a life sentence rather than the penalty of death.” Id. at *4-5.

“Based on the habeas court’s findings and conclusions and our own review, and because the mitigating

evidence presented at [Thomas’s] trial is the type of evidence for which he was entitled to a separate

vehicle for consideration,” we granted Thomas relief in the form of a new punishment hearing. Id. at

*5.

Our decision in Ex parte Smith, 309 S.W.3d 53 (Tex. Crim. App. 2010) was what prompted

this Court to reconsider the initial decision to deny relief. See Ex parte Thomas, No. WR-16,556-05

(Tex. Crim. App. March 31, 2010). In light of Smith, we remanded the application to the habeas court

for consideration of the merits of Thomas’s claim that he was entitled to relief from his death sentence

because he presented significant mitigating evidence related to his moral culpability and the

appropriateness of a death sentence. See Penry v. Johnson (“Penry I”), 492 U.S. 302 (1989).

6

See Lopez v. State, 18 S.W.3d 637, 639 (Tex. Crim. App. 2000) (When an appellate court

remands a case on punishment only, it effectively affirms the conviction on guilt/innocence and

reverses the conviction on punishment, thereby limiting the trial court’s jurisdiction to punishment

issues); see also Patterson v. State, 101 S.W.3d 150, 152 (Tex. App.—Fort Worth 2003, pet. ref’d)

(holding that a point on appeal from a punishment retrial that concerns matters from the

guilt/innocence phase presents nothing for review).

Thomas — 3

person with an intellectual disability, (formerly referred to as “mental retardation”)7 was

guided by evidence pertaining to standards that have since been rejected by the Supreme

Court.8 Based upon our review of the record, we hold that, because the jury was not

presented with the proper diagnostic framework regarding Thomas’s claim of intellectual

disability, then as a matter of due process, Thomas is entitled to a new punishment hearing.

We vacate Thomas’s death sentence, and remand this cause for a new punishment

proceeding.

FACTUAL BACKGROUND

On the night of March 16, 1986, Thomas entered the home of Mildred and Fred Finch

after removing an air conditioning unit and screen from a window. He murdered Mildred

Finch, breaking her bones and stabbing her over eighty times. Mildred’s body was found

near the bedroom door. Thomas also murdered Fred, breaking his ribs and stabbing him over

twenty times. Fred’s body was found face-down on the bedroom floor. His legs were bent

underneath him so that he was in a kneeling position with his buttocks in the air and his head

resting on the floor. His pajama pants were pushed down around his knees.

After killing the Finches, Thomas, whose street name was “Clean” because he liked

to dress well, stole Fred’s suits, shirts, hats, shoes, briefcase, and Rolex watch. He also took

a metal “strong box.” Thomas stacked other property near the front door, apparently

7

The term “mental retardation” was used in Thomas’s 2014 punishment hearing; however, that

term has been replaced with the term “intellectual disability.” Ex parte Moore, 548 S.W.3d 552, 557

n.14 (Tex. Crim. App. 2018) (citing Ex parte Cathey, 451 S.W.3d 1, 11 n.23 (Tex. Crim. App. 2014)

(noting change from “mental retardation” to “intellectual disability”)).

8

Moore v. Texas, 137 S.Ct. 1039, 1044 (2017).

Thomas — 4

intending to return for it. He left a bloody rag in the kitchen near the refrigerator. A pattern

in blood on a newspaper lying on the kitchen table was consistent with Thomas having wiped

a bloody knife blade on the newspaper.

Following the offense, Thomas’s brother’s girlfriend, Delores, awoke when Thomas

entered their house around four o’clock in the morning. She asked Thomas about the blood

on his hands. He stated that he had “just stabbed a dog.” When Thomas noticed Delores

looking at the property he was carrying into the house, he told her that “a rich white girl

named Sheila” had given it to him. After Thomas passed through the bedroom on his way

to the bathroom, his brother Lonnie observed a bloody hunting knife lying in the bedroom.

Lonnie also saw a bloody shirt in the bathroom after Thomas had washed up and changed

clothes.9

Later, Delores and Thomas’s mother saw a television news report about the murders

and asked Thomas if he had committed them. Thomas confirmed that he had “killed them

folks on TV,” adding, “dead folks can’t talk.” He stated that he “wasn’t through [killing]

yet.” He left the house when he saw Delores calling 9-1-1. Thomas then telephoned several

times to say that he was going to kill everyone in the house.

9

See Garcia v. State, 126 S.W.3d 921, 925 (Tex. Crim. App. 2004) (characterizing a capital

defendant’s nonchalant attitude shortly after committing the offense as evidence of his lack of

conscience and remorse).

Thomas — 5

THOMAS’S CLAIM OF INTELLECTUAL DISABILITY

The decision regarding whether an individual is intellectually disabled for purposes

of the Eighth Amendment10 rests with the trier of fact. Thus, in the punishment phase of a

capital murder jury trial, the question of whether a capital defendant is intellectually disabled

is a factual one, and as such, it is the function of the jury, as the factfinder, to determine the

weight that should be accorded to expert testimony pertaining to that issue. The jury must

assess the totality of the evidence as well as the credibility of the witnesses.

In his thirty-first point of error, Thomas asserts that the jury assessed whether he was

“a person with mental retardation”11 under a standard that, according to Moore v. Texas,12 is

no longer recognized. Moreover, argues Thomas, had the jury been presented with the

legally correct diagnostic framework for assessing intellectual disability, the jury would have

concluded that Thomas is too intellectually disabled to be executed.

Moore v. Texas and Ex Parte Moore

At the time of Thomas’s 2014 punishment hearing, the Supreme Court had just

recently handed down its decision in Hall v. Florida.13 In Hall, the Supreme Court held that

10

Executing an intellectually disabled individual is prohibited by the Eighth Amendment

because it constitutes cruel and unusual punishment. Atkins v. Virginia, 536 U.S. 304, 321 (2002).

11

See supra n.7, recognizing the change in terms from “mental retardation” to “intellectual

disability.”

12

137 S.Ct. at 1044.

13

134 S.Ct. 1986 (2014).

Thomas — 6

a State cannot refuse to entertain other evidence of intellectual disability when a defendant

has an IQ score close to, but above, 70.14 Furthermore, according to Hall, the determination

of intellectual disability must be “informed by the medical community’s diagnostic

framework.”15 Three years later, in 2017, the Supreme Court decided Moore,16 wherein it

vacated this Court’s 2015 decision in Ex parte Moore17 and remanded the case to this Court

to reassess Bobby Moore’s claim of intellectual disability.18 In Moore, the Supreme Court

criticized this Court’s application of Hall to the issue of whether death row inmate Bobby

Moore was intellectually disabled:

The CCA’s conclusion [in Ex parte Moore] that Moore’s IQ scores established

that he is not intellectually disabled is irreconcilable with Hall. Hall instructs

that, where an IQ score is close to, but above, 70, courts must account for the

test’s “standard error of measurement.” See Id., at 134 S.Ct. at 1995, 2001.

See also Brumfield v. Cain, . . . 135 S.Ct. 2269, 2278, 192 L.Ed.2d 356

(2015)(relying on Hall to find unreasonable a state court’s conclusion that a

score of 75 precluded an intellectual-disability finding). As we explained in

Hall, the standard error of measurement is “a statistical fact, a reflection of the

inherent imprecision of the test itself.” . . . 134 S.Ct. at 1995. “For purposes

of most IQ tests,” this imprecision in the testing instrument “means that an

individual’s score is best understood as a range of scores on either side of the

recorded score . . . within which one may say an individual’s true IQ score

14

See Moore, 137 S.Ct. at 1048 (citing Hall, 134 S.Ct. at 2000-01).

15

Id. (citing Hall, 134 S.Ct. at 2000).

16

Id. at 1039

17

Ex Parte Moore, 470 S.W.3d 481 (Tex. Crim. App. 2015), vacated by Moore v. Texas, 137

S.Ct. 1039 (2017).

18

See Moore, 137 S.Ct. at 1053.

Thomas — 7

lies.” . . . 134 S.Ct. at 1995. A test’s standard error of measurement “reflects

the reality that an individual’s intellectual functioning cannot be reduced to a

single numerical score.” Ibid. See also . . . 134 S.Ct. at 1995 . . . 19

According to the Supreme Court, Bobby Moore’s IQ score of 74, adjusted for the standard

error of measurement, yielded a range of 69 to 79, and so, because the lower end of Moore’s

score range fell at or below 70, this Court had to move on to consider Moore’s adaptive

functioning.20 But, the Supreme Court criticized our analysis in Ex parte Moore regarding

Bobby Moore’s adaptive functioning.21

In sum, the Supreme Court’s opinion in Moore: (1) instructs that, where a defendant’s

IQ score is close to, but above 70, courts must account for the IQ test’s standard error of

measurement; (2) rejects the imposition of a requirement that a defendant show that his

adaptive deficits are not related to a personality disorder; and (3) rejects the use of the factors

this Court set out in Ex parte Briseno 22 to evaluate a defendant’s adaptive functioning.23 The

19

Id. at 1049.

20

Id.

21

Id. at 1050.

22

See 135 S.W.3d 1 (Tex. Crim. App. 2004); Moore, 137 S.Ct. at 1051 (“The CCA’s

attachment to the seven Briseno evidentiary factors further impeded its assessment of Moore’s adaptive

functioning.”). In Briseno, we held that adaptive behavior criteria are exceedingly subjective, but that

factfinders could focus upon the following evidentiary factors 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 that time,

and, if so, act in accordance with that determination?

Thomas — 8

Supreme Court concluded in Moore that the application of the Briseno factors 24 departs from

current medical standards and clinical practice, which creates an unacceptable risk that

persons with intellectual disability will be executed.25 Ex parte Moore was remanded to us

for further consideration in accordance with Moore.

On June 6, 2018, we issued our revised opinion in Ex parte Moore wherein we

reevaluated the appropriate framework for assessing a capital defendant’s claims of

intellectual disability. With guidance from the Supreme Court, we abandoned reliance on

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 8-9.

23

Moore, 137 S. Ct. at 1049-51.

24

See supra n.22.

25

Moore, 137 S. Ct. at 1044.

Thomas — 9

the Briseno factors26 in determining whether Bobby Moore was intellectually disabled, and

we adopted the framework set forth in the DSM-527 because, as noted by the Supreme Court,

“the DSM-5 embodies ‘current medical diagnostic standards’ for determining intellectual

disability.” 28

The Diagnostic and Statistical Manual of Mental Disorders–Fifth Edition (“DSM-5")

The DSM-5 defines “intellectual disability” (also referred to as intellectual

developmental disorder) as:

a disorder with onset during the developmental period that includes both

intellectual and adaptive functioning deficits in conceptual, social, and

practical domains. The following three criteria must be met:

A. Deficits in intellectual functions, such as reasoning, problem solving,

planning, abstract thinking, judgment, academic learning, and learning

from experience, confirmed by both clinical assessment and

individualized, standardized intelligence testing (“Criterion A”).

B. Deficits in adaptive functioning that result in failure to meet

developmental and sociocultural standards for personal independence

and social responsibility. Without ongoing support, the adaptive

deficits limit functioning in one or more activities of daily life, such as

communication, social participation, and independent living, across

multiple environments, such as home, school, work, and community

(“Criterion B”).

26

See supra n.22.

27

Ex parte Moore, 548 S.W.3d at 555 (citing American Psychiatric Association, D IAGNOSTIC

AND S TATISTICAL M ANUAL OF D ISORDERS, 5th ed. (2013)(“DSM-5").

28

Id. at 559 (citing Moore, 137 S. Ct. at 1045, 1048, 1053).

Thomas — 1 0

C. Onset of intellectual and adaptive deficits during the developmental

period (“Criterion C”).29

Intellectual disability can vary in severity. “The various levels of severity[—mild,

moderate, severe, and profound —]are defined on the basis of adaptive functioning, not IQ

scores, because it is adaptive functioning that determines the level of support required.” 30

According to the DSM-5, “IQ measures are less valid in the lower end of the IQ range.” 31

“The diagnosis of intellectual disability is based on both clinical assessment and

standardized testing of intellectual and adaptive functions.”32 The DSM-5 further explains

the three criteria in more detail:

Criterion A refers to intellectual functions that involve reasoning, problem

solving, planning, abstract thinking, judgment, learning from instruction and

experience, and practical understanding. Critical components include verbal

comprehension, working memory, perceptual reasoning, quantitative

reasoning, abstract thought, and cognitive efficacy. Intellectual functioning is

typically measured with individually administered and psychometrically valid,

comprehensive, culturally appropriate, psychometrically sound tests of

intelligence. Individuals with intellectual disability have scores of

approximately two standard deviations or more below the population mean,

including a margin for measurement error (generally +5 points). On tests with

a standard deviation of 15 and a mean of 100, this involves a score of 65-75

(70 ±5). Clinical training and judgment are required to interpret test results and

assess intellectual performance.

29

DSM-5 at 33.

30

Id.

31

Id.

32

Id. at 37.

Thomas — 1 1

Factors that may affect test scores include practice effects and the “Flynn

Effect” (i.e., overly high scores due to out-of-date test norms). Invalid scores

may result from the use of brief intelligence screening tests or group tests;

highly discrepant individual subtest scores may make an overall IQ score

invalid. Instruments must be normed for the individual’s sociocultural

background and native language.

***

Deficits in adaptive functioning (Criterion B) refer to how well a person meets

community standards of personal independence and social responsibility, in

comparison to others of similar age and sociocultural background. Adaptive

functioning involves adaptive reasoning in three domains: conceptual, social,

and practical. The conceptual (academic) domain involves competence in

memory, language, reading, writing, math reasoning, acquisition of practical

knowledge, problem solving, and judgment in novel situations, among others.

The social domain involves awareness of others’ thoughts, feelings, and

experiences; empathy; interpersonal communication skills; friendship abilities,

and social judgment, among others. The practical domain involves learning

and self-management across life settings, including personal care, job

responsibilities, money management, recreation, self-management of behavior,

and school and work task organization, among others. Intellectual capacity,

education, motivation, socialization, personality features, vocational

opportunity, cultural experience, and coexisting general medical conditions or

mental disorders influence adaptive functioning.

Adaptive functioning is assessed using both clinical evaluation and

individualized, culturally appropriate, psychometrically sound measures.

Standardized measures are used with knowledgeable informants (e.g., parent

or other family member; teacher; counselor; care provider) and the individual

to the extent possible. Additional sources of information include educational,

developmental, medical, and mental health evaluations. Scores from

standardized measures and interview sources must be interpreted using clinical

judgment. When standardized testing is difficult or impossible, because of a

variety of factors (e.g., sensory impairment, severe problem behavior), the

individual may be diagnosed with unspecified intellectual disability. Adaptive

functioning may be difficult to assess in a controlled setting (e.g., prisons,

detention centers); if possible, corroborative information reflecting functioning

outside those settings should be obtained.

Thomas — 1 2

Criterion B is met when at least one domain of adaptive

functioning—conceptual, social, or practical—is sufficiently impaired that

ongoing support is needed in order for the person to perform adequately in one

or more life settings at school, at work, at home, or in the community. To meet

diagnostic criteria for intellectual disability, the deficits in adaptive functioning

must be directly related to the intellectual impairments described in Criterion

A. Criterion C, onset during the developmental period, refers to recognition

that intellectual and adaptive deficits are present during childhood or

adolescence.33

According to the DSM-5, “Associated Features” that support a diagnosis of intellectual

disability include the following:

[A]ssessment of risk; self-management of behavior, emotions, or interpersonal

relationships; or motivation in school or work environments. Lack of

communication skills may predispose to disruptive and aggressive behaviors.

Gullibility is often a feature, involving naiveté in social situations and a

tendency for being easily led by others. Gullibility and lack of awareness of

risk may result in exploitation by others and possible victimization, fraud,

unintentional criminal involvement, false confessions, and risk for physical

and sexual abuse. These associated features can be important in criminal

cases, including Atkins-type hearings involving the death penalty.34

We noted in our decision in Ex parte Moore that, with regard to the conceptual

domain, “for school-age children and adults with mild intellectual disability, ‘there are

difficulties in learning academic skills involving reading, writing, arithmetic, time, or money,

with support needed in one or more areas to meet age-related expectations.’” 35 Furthermore,

“[i]n adults with mild intellectual disability, ‘abstract thinking, executive function (i.e.,

33

DSM-5 at 37-38.

34

DSM-5 at 38.

35

Ex Parte Moore, 548 S.W.3d at 561 (citing DSM-5 at 24).

Thomas — 1 3

planning, strategizing, priority setting, and cognitive flexibility) and short-term memory, as

well as functional use of academic skills (e.g., reading, money management), are

impaired.’”36 With regard to the social domain, “[i]ndividuals with mild intellectual

disability may have difficulty perceiving peers’ social cues, tend to use more concrete or

immature language in communicating, and are at risk of being manipulated by others.” 37

ANALYSIS OF THOMAS’S POINT OF ERROR NO. 31

At Thomas’s 2014 punishment retrial, because the issue of Thomas’s intellectual

disability was raised, the following Special Issue No. 1 was given in the jury charge:

Do you find by a preponderance of the evidence that the Defendant, Kenneth

Wayne Thomas, is a person with mental retardation? 38

The following instructions, in pertinent part, were given to aid the jury

in answering Special Issue No. 1:

In deliberating on your answer to Special Issue No. 1, you are instructed that

the Defendant, Kenneth Wayne Thomas, has the burden of proving by a

preponderance of the evidence that Special Issue No. 1 should be answered

“Yes.”

“Preponderance of the evidence” means the greater weight of the credible

evidence.

“Mental retardation” is a disability characterized by: (1) significantly sub-

average general intellectual functioning; (2) accompanied by related

36

Id.

37

Id.

38

See supra n.7.

Thomas — 1 4

limitations in adaptive functioning; (3) the onset of which occurs prior to the

age of 18.

“Significantly sub-average general intellectual functioning” refers to measured

intelligence on standardized psychometric instruments of approximately two

or more standard deviations below the group mean for the tests used.

Significantly sub-average intellectual functioning is evidenced by an IQ score

of approximately 70 or below. An IQ score is not considered to be a fixed

number. Instead, a score represents a range or an approximation of a person’s

IQ.

“Adaptive behavior” is defined 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.

The jury answered Special Issue No. 1, “no,” finding that Thomas was not a person with

mental retardation.39

With regard to Thomas’s thirty-first point of error, the issue we must address is

whether the evidence presented to the jurors provided them with the proper diagnostic

framework used by the medical community to assess intellectual disability. Because we find

that it did not, then as a matter of due process, we hold that Thomas is entitled to a new

punishment hearing.

Evidence Presented to the Jury Regarding Intellectual Disability

Defense Expert—Jim Hom, Ph.D

Dr. Jim Hom, a neuropsychologist, examined Thomas in April of 1987 to determine

whether he had brain impairment that would be consistent with head injury or cranial cerebral

39

See supra n.7.

Thomas — 1 5

trauma. Dr. Hom explained that testing for brain injury is different (“worlds apart”) than

testing for IQ:

IQ is a concept of ability or ability to structure in certain ways. It’s only one

aspect of what we do. It’s one aspect of brain functioning, to a certain extent.

Neuropsychological testing – the type that we did is much more broad and

pervasive, extensive. When we measure an individual, intelligence is just one

component. And when it comes to brain function, it’s not the best, most

sensitive, measure of how the brain is actually working. On the whole,

intelligence is a measure, as we use it, in terms of testing that we use, tells us

about the person’s genetics, what they bring into the situation, what they’ve

learned and the like. It’s not the best measures, in terms of how the brain is

actually working.

When asked whether he was able to draw a conclusion from administering this battery of

tests to Thomas, Dr. Hom replied that the test results were “clearly consistent with someone

who had a head injury,” and that he found brain impairment. Specifically, in terms of

Thomas’s ability to function, Dr. Hom testified that

. . . [H]is intelligence is in the low—borderline range of intelligence: The low

70 range. That kind of sets the kind of marker about what’s going on. His

academic abilities were in the third and fourth grade, at best. His reading

clearly was only in the fourth grade. So his academic skills were quite lacking.

But that’s just, you know, again, kind of a baseline.

The tests themselves tell me that, as a result of his head injury, this man has

significant problems in reasoning and thinking, putting things together. Two

and two, hopefully, equals four. In his case, two and two may not equal four,

in terms of problem-solving skills, understanding the environment and what

it actually means and the like. He has poor reasoning abilities. That’s number

one.

He showed problems with sequencing: Carrying more than one – doing more

than one thing at a time. So, like, for instance, hopefully most individuals can

listen to what I’m saying and write down things that they needed to write

Thomas — 1 6

down. Notes. He had some problems with that. Carrying two things going at

the same time is an area of limitation for him.

His ability to attend and concentrate: Stay on task. If you’re talking and doing

something, does he stay there? Does he understand completely? You have to

be able to attend to information and the like before it gets in, so you can

incorporate. He has problems in doing that. So information coming in is

somewhat limited, at times.

. . . He clearly demonstrates problems in language function. Understanding

simple language. If I say something to him, does he understand or

comprehend what’s being spoken to him? And then, if you don’t understand

what’s being spoken, then your processing of that information is going to –

may be complicated. So these are just simple findings of the different types

of functions.

He also demonstrate [sic] problems in verbal memory. Memory can be

roughly broken down to types of things that you remember, by language or

what’s presented to you or what’s read. Verbal abilities.

Then there’s other types of memory, which are more visual/spacial, hand-eye

coordination. I put this down on the table, walk out of the room, I’ll remember

it was on this table. That’s kind of a visual memory. You put down your

paper or you write something down, can you remember that?

In terms of verbal memory, it would be considered moderate to severe in

nature, on the short term, and then on the delay and then even what he retains.

So, for instance, I say something. What can he tell me in the next ten minutes?

It was moderately to severely impaired.

. . . Then, when I asked him 30 minutes later, did he lose – that’s kind of a

representation of loss or forgetfulness, to a certain level. He lost a good deal

of that information in the moderate to severe range.

And then, when you get presented information, the biological system, the brain

itself, learns. I’m talking to you right now. Hopefully, you’re learning

something. At least you learned my name, if nothing else. Okay? That’s part

Thomas — 1 7

memory abilities. His ability to retain what’s told him was moderate – mild to

moderate to severe. About 50 percent.

So that’s just verbal language abilities. When it came to putting things down,

finding where it is later on, putting up your clothes in the house or finding

where your keys are, things like that, he again has problems with that. Or at

least had problems with that. But it was not as bad as his verbal. His verbal

language stuff is clearly worse off than his hand-eye coordination stuff.

***

So he demonstrated not only higher-level types of things: Reasoning, thinking,

attention, concentration, memory, he also demonstrated language difficulties,

visual/spacial difficulties, but he also demonstrated some mild motor and

sensory difficulties.

This pattern results – at least, the degree and what’s actually being involved

– is very consistent with those who have traumatic brain injury residual

pattern.

When asked to address Thomas’s reasoning, judgment, and ability to reason things out, Dr.

Hom testified as follows:

It was in the severe range. His ability to reason and understand is clearly

indicative of individuals who have significant brain impairment, a neurological

disorder. . . . The degree of impairment that he had, in terms of reasoning and

thinking, basically putting two and two together, is problematic. I’m not just

talking about math. . . . Just basically understanding, you know, cause and

effect to a certain level.

Dr. Hom was next asked about what role IQ had in his testing. He replied:

IQ is an important factor. No question. That gives me some background

information of an individual. What you brought in, what your genetics are and

the like. What you learned. Basically, where you are. Okay? IQ is kind of

a mile marker, in so many words. It gives us some understanding of whether

the person’s able to develop fairly decently or not and where is he ending up,

Thomas — 1 8

in so many words.

So, yeah, it’s important. It gives us some background information. But it just

does not tell us about how a person actually functions, from a brain standpoint.

And if you believe that the organ of behavior is the brain, then it’s just one

small part of it. We spent so much time talking about intelligence, but when

you look at the brain and how it actually works, you find intelligence is just a

minuscule part of actually what happens in the brain.

Dr. Hom was then asked whether the testing revealed to him Thomas’s academic abilities.

Dr. Hom explained that “[t]hey weren’t too good. . . . Reading was at the beginning of the

fourth-grade level. Spelling was below third-grade level. And math was below third-grade

level.”

On cross examination, the prosecution questioned Dr. Hom about the “WAIS” test

(“Wechsler Adult Intelligence Test”) that was given to Thomas. The questioning was clearly

an effort to show that Thomas’s IQ was higher than someone’s IQ who was intellectually

disabled:

Q. Okay. So when you gave this test, the WAIS test, to Mr. Thomas back

in 1987, the results that you get on a WAIS test like that is, you have a

verbal IQ result and you have a performance IQ result and those things

together give you what you call a “full-scale IQ result.” Is that correct?

A. It’s calculated. It’s not directly – you don’t just add the two together or

divide by. It’s calculated.

***

Q. And when you gave that test to Mr. Thomas, he completed the test for

you, didn’t he?

Thomas — 1 9

A. That’s correct.

Q. He completed all the portions of the test; is that right?

A. That’s right.

Q. And you got a verbal IQ score on Mr. Thomas of 73; is that correct?

A. That’s correct.

Q. And you got a performance IQ from Mr. Thomas of 85; is that right?

A. That’s right.

Q. And the full-scale IQ that you got was 77?

A. Seventy seven. That’s correct.

Q. Okay. And that was the test you administered to him.

On redirect, the defense questioned Dr. Hom about the differences in testing

techniques over the years and how the version of the “WAIS” IQ test given to Thomas was

much different in 1987. Dr. Hom confirmed that it was “possible” that the WAIS tests given

back in 1987 could produce results that would be “seven to eight points” higher than results

from current testing procedures. Ultimately, however, Dr. Hom stated that he was not there

to testify about Thomas’s IQ, but rather the state of his mind and his brain function.

Defense Expert—Antoinette McGarrahan, Ph.D.

The next expert witness to testify for the defense was Dr. Antoinette McGarrahan.

She is a psychologist specializing in forensic psychology and neuropsychology. Dr.

Thomas — 2 0

McGarrahan stated that she “was asked by the Defense team in early 2012 to perform a

neuropsychological evaluation of Mr. Thomas.” She explained that she spent about seven

hours with Thomas for the evaluation, and “then spent about five years since then talking

with him about additional factors.” (I checked the record and verified that this typo was not

in original.). She stated that she reviewed “approximately 50 sources of information,

documents, and records.” She also reviewed Dr. Hom’s report from 1987. Dr. McGarrahan

was then asked what she did in order to reach a diagnosis of Thomas. She testified as

follows:

The neuropsychological evaluation involves a clinical interview, which is

basically a social-history gathering part of the evaluation, where I ask lots of

questions about where the individual grew up, how far they went in school,

what kind of work they’ve done, their medical and psychiatric history, drug

and alcohol abuse history. Gathering lots of social information about the

individual. It also involves a mental status examination, which is basically

making observations of the individual and asking specific questions to elicit

whether they have any psychiatric condition that might be diagnosable.

So I’m looking at how they interact, how they walk and how they talk, how

they relate to others; whether they have symptoms of depression or anxiety or

maybe hearing voices. And that’s the mental status examination. And then the

neuropsychological testing, as you heard Dr. Hom testify yesterday, takes

about six to eight hours, face-to-face, one-on-one, paper and pencil.

Sometimes computerized tests.

Dr. McGarrahan described Thomas’s social history: That Thomas had grown up in

the projects; in a poor family; his mother had to work several jobs to be able to support the

Thomas — 2 1

family; he had difficulty in school; he had few jobs; a history of drug and alcohol abuse; and

that he had a significant head injury at age 15.

When asked what her opinions and diagnosis were of Thomas, Dr. McGarrahan

testified as follows, in pertinent part:

Well, his intellectual functioning was – his full-scale IQ was 71, which is in

the – what we used to call “mildly mentally retarded” range to borderline

intellectual functioning, along those lines.

He had significant deficits in his academic skills. He basically could

pronounce a word at the sixth-grade level, but really only understand

information at the fifth-grade level. His spelling, I believe, was at the third-

grade level. His math was even below that. So he had significant academic

problems.

He had primary difficulties, as Dr. Hom mentioned yesterday, in the front part

of his brain that controls abstract reasoning, problem solving, thinking skills,

planning and organization.

I mean, that was the primary area that I discovered was impaired, with respect

to Mr. Thomas. He did have some memory impairment in the mild to

moderate range.

Thomas’s primary deficits were focused in the front part of his brain.

When asked whether, in her opinion, Thomas was intellectually disabled, Dr. McGarrahan

testified that,

According to our new category statistic, which is in the Diagnostic Manual of

the Mental Disorders, the Fifth Edition, he would qualify for intellectual

disability disorder, which we used to call “mental retardation.”

He has significantly reduced intellectual abilities. He’s approximately two

standard deviations below the mean, which means he’s significantly below

Thomas — 2 2

expectation.

He has deficits in his adaptive skills, which include his academic functioning,

his ability to socialize and be in the community and live independently and

take care of himself. That’s another criteria for intellectual disability disorder.

And these problems have to occur during the developmental period. Typically,

we think of that as prior to the age of 18.

There’s information in the records, from family members who were with him

and saw him grow up, that he has significant difficulties functioning on his

own, prior to the age of 18.

. . . [E]ssentially, he didn’t learn to drive. He had problems in school being

able to read and write and perform math. He had problems making change,

such that others would take advantage of him. Because, when he would go to

the store, he wouldn’t know the amount of change to get back.

During those days, there were rotary telephones. He had difficulty looking up

phone numbers in the phone book, which we don’t have to do anymore. But

looking that up and making phone calls, he had to have assistance doing that

type of thing.

. . . He had significant problems in his social functioning. The information we

have in the records and in talking to his mother, he really didn’t have any

friends. He didn’t know how to get along with others. People described him

as “a loner.” Those that he may have hung out with, they weren’t really peers.

And he had problems in school getting along with other individuals.

Dr. McGarrahan was then questioned about Thomas’s IQ:

Q. Now, let’s talk about the IQ that you’ve testified about. You said he

tested at 71?

A. Yes.

Q. Do we look at that number as a solid representation? How do we look

at that?

Thomas — 2 3

A. Well, that’s his tested IQ. But we know there’s error in all the tests that

we do. So we have intervals or competency intervals where it’s

essentially plus or minus five points, where his true score likely falls.

The idea is that if we were to give him the test on another day, he’s not

going to score a 71. In fact, we have other scores where he’s within a

certain range, where he’s scoring on the IQ test.

So we have intervals, where he could score slightly lower, he could

score slightly higher.

Q. Is that why, when you’re making the diagnosis, you say an IQ might be

about a certain level: About a 70? It’s a range, really, is what you’re

trying to say?

A. It’s a range. I can tell you what – his scored IQ is at 71, but that may

not be his true score. His true score may be some variation from, you

know, three or four points lower from that to three or four, five points

higher than that. That’s a range.

Q. So if somebody scores a 75, what does that mean?

A. It means that their true score can fall between approximately 70 to 80.

Q. 76.

A. Yes.

Q. Or even lower.

A. Yes.

Q. Seventy-one, he could be a 66?

A. Could be.

Q. Nowadays, is IQ the main component of intellectual disability?

Thomas — 2 4

A. It’s still a main component. But really the categorization system we

have moved from, from the fourth edition to the fifth edition and how

– not only mental health professionals communicate with each other,

but medical professionals communicate with each other about mental

disorders.

It’s really moved away from – mild moderate retardation is from 55 to

70 and moderate is this range to that range. It’s really moved away

from the score to more about how the person functions in the

community. More about those adaptive behavior deficits. But it’s still

a main component.

Defense Expert—Jaye Douglas Crowder, M.D.

The defense then called Dr. Jaye Douglas Crowder as an expert witness. Dr. Crowder

is a psychiatrist who was asked by the defense to examine Thomas. He testified that he did

several “mental status examinations” and background interviews to assess whether Thomas

suffered a traumatic brain injury. He stated that Dr. Hom’s testing of Thomas was

“consistent” with his hypothesis – that there was “central nervous system damage,” which

included the brain and the spinal cord, and that damage to his brain occurred at age 15 as a

result of the traumatic head injury. Specifically, Dr. Crowder testified about his conclusions

and about how Thomas’s brain injury has affected his day-to-day living and adaptive

functioning:

I saw him on January 24, 2013, and then on July 3, 2014. . . . I did some

interview – basic psychiatric interview to assess symptoms, to get some

background or history. And I also did a mental status examination at that time,

as well as what we call a “Montreal Cognitive Assessment” or a MOCA,

which is a screening test to identify when people have some kind of

physiological interference with brain functioning, like dementia. That’s when

Thomas — 2 5

it’s most frequently used. But it can be used with head injuries or other

situations, as in this case.

. . . [T]here were still symptoms that would show that there were some

impairment of central nervous system brain function.

. . . It’s harder to know what someone is asking of you. Let’s say, if your

employer or a prospective employer is asking of you – wanting you to do

something, it’s harder to follow through with things because concentration and

memory aren’t as good. It’s harder not to get distracted. It’s harder to

understand maybe the principle of what you’re doing, as opposed to, “here, do

this one particular thing.”

A person who might employ you, for instance, might want you to understand

what the whole business is about, where we’re going with this. So a person

could understand, “Here, do this one thing.” He could understand that. But

it would be harder to understand what the overall intent was.

Some mistakes would be made, that would occur to most people, like, “Wait

a second. Even though this is my one task, we’ve got a bigger principle and

bigger purpose here. I need to modify it.” That kind of flexibility is also

affected, when someone suffers central nervous system damage.

When asked what his diagnosis was of Thomas, Dr. Crowder replied that “[t]he

diagnosis would be major general cognitive disorder due to traumatic brain damage and

intellectual disability.” Dr. Crowder also agreed that, in his opinion, Thomas suffers from

an intellectual disability disorder, as well as a major neuro-cognitive disorder.

The State’s Expert Witness—Randy Price, Ph.D.

The State hired its own expert to testify that Thomas does not meet the criteria for a

diagnosis of intellectual disability. The State first questioned Dr. Price about Thomas’s IQ

Thomas — 2 6

scores. In Dr. Price’s opinion, the numbers attributable to Thomas’s IQ score is a range of

68 to 75, and that his “full scale” IQ is 71. Dr. Price explained as follows:

Well, the condition is called “borderline intellectual functioning.” And in the

Diagnostic and Statistical Manual of Mental and Personality Disorders, it has

criteria for any kind of diagnosis we are to give.

And while borderline intellectual functioning is not considered a mental

disorder, it is in the book. It’s in the manual, in a section. And it’s described

in there as IQ’s –as a person who has an IQ falling between 71 and 84.

And that range of IQ values falls in between on the border of mental

retardation and low average – the average range of functioning.

So if a person has an IQ of at least 85, that’s in the average range. And then,

if a person’s IQ is 70 or less, that’s traditionally been thought of as being the

cut-off score for mental retardation, as is referred to now “intellectual

disability.”

Now, there’s a whole issue of these scores do not represent a bright line,

because there’s error involved in any tests, whether it’s a test you take at your

primary care provider. There’s error in any tests, and there is in IQ testing as

well.

But that range, from 71 to 84, is an average. But it’s not thought of being – as

being clearly in the middle, or worse: Mental retardation range.

With regard to Thomas’s adaptive deficits, Dr. Price opined that “[t]here is [sic] no

significant adaptive behavior limitations.” According to Dr. Price, “we all have some kind

of adaptive behavior problem, from time to time.” But Dr. Price did not see “a pattern of

significant adaptive behavior deficits related to [Thomas’s] level of intelligence.” Dr. Price

based this opinion on interviews of people who knew Thomas “at a fairly early age,” and

Thomas — 2 7

“some that had contact with him in 1979.” Dr. Price also reviewed reports written by other

doctors who had examined Thomas, and he reviewed Thomas’s school records and medical

records. The prosecutor questioned Dr. Price about his opinion pertaining to Thomas’s

adaptive deficits:

Q. Okay. And that’s why these folks are considering Special Issue Number

One. They will be considering whether it’s approximately two standard

deviations below the norm, correct?

A. Yes.

Q. And the bright-line rule that – I think you used the word “traditional.”

Is it true that within the DSM-4 to the DSM-5, the most recent

statistical manual that there is: The Diagnostical Statistical Manual, that

the emphasis has become on adaptive functioning?

A. Absolutely.

Q. And adaptive function is the person’s ability to live in or function in

whatever society that they find themselves.

A. Right. It is the skills that they’ve learned to get by, to function, in

whatever life context they find themselves in.

***

Q. Okay. All right. And the adaptive functioning, in your field, this is the

most important part basically – if I’m understanding what you’re saying

correctly, the most important part of determining whether or not

somebody is mentally retarded, as it’s defined; is that right?

A. It is now.

Q. Yes. Okay. Adaptive functioning: Ability of the person to function and

survive in their environment, correct?

Thomas — 2 8

A. Yes.

Q. And I think, is it fair to say – or do you have an opinion, based on all

the environment that he has lived in, whether he’s been able to function

in those environments throughout the course of his life?

A. I do have an opinion.

Q. Can you tell us what that is.

A. I do not see significant adaptive behavior limitations or evidence of

those, whether he’s been in the free world or incarcerated; not that he’s

been highly successful in the little time he’s spent as an adult in the free

world. But ability to cope, able to deal with the demand in the context

of his life and certainly in prison, especially more recently, he’s been

able to – and that secure, highly-structured environment – adapt to that.

Q. Now, you heard Dr. Crowder and Dr. McGarrahan, when I was asking

them about their opinions regarding this adaptive functioning. Do you

recall that?

A. I do.

Q. And I think, basically, the three pillars that Dr. Crowder talked about

was work, school and then social environment; is that right?

A. Those are the three areas. There are ten general areas that we look at

to evaluate adaptive functioning, that now have also been studied using

what we refer to as “factor analysis.” It’s been sort of reduced to three

areas. But those ten are still there.

And we look at those academics, work, social functioning, community

functioning, health and safety. Can they take care of themselves, et

cetera? And there are ten of those.

Dr. Crowder opined that Mr. Thomas had significant limitations in

academic functioning, social functioning and the work area.

Thomas — 2 9

***

A. . . . People may fail in different areas of life or have adaptive behavior

problems for a wide variety of reasons. But to be considered in the

diagnosis of mental retardation or intellectual disability, those deficits

must be related to low intelligence.

Q. All right. And you don’t see that in this case?

A. I do not.

***

Q. You know and understand that regarding this problem-solving ability,

there’s also a pretty famous case that came out called Briseno; is that

right?

A. Yes.

Q. And that gives some guidance about what people can take into

consideration, when they’re deciding that special issue; is that right?

A. Yes. In Texas, yes.

Q. All right. And one of the factors is whether or not the person was

treated as mentally retarded by those that knew him when he was

younger. Do you recall that?

A. I do.

***

Q. And is it true that not everybody who came into contact with him

treated him as MR when he was younger?

A. That’s correct.

***

Thomas — 3 0

Q. . . . [H]e’s able to formulate [a] plan and carry it through; is that right?

A. There’s evidence that he’s been able to do that.

Q. All right. Everything from desiring clothes that another man wore or

desiring a watch, carrying out that crime that we’re here for, right? All

the way up to when he’s in TDC and he has health problems, being able

to formulate a plan in order to go see a doctor, go see a nurse,

something like that.

A. He can effectively do that. He’s shown that he’s been able to look after

[himself]. And the way they have it to look after in prison, [sic] when

he needs to see the doctor, he can successfully do that. He’s been able

to do that.

Q. All right. He has the ability – I think one of the other things – and you

might have heard me ask Dr. McGarrahan about that – is whether,

under the Briseno factors these folks can consider, whether they have

the ability to hide and lie in order to avoid criminal responsibility.

That’s one of the factors; is that right?

A. Right. Or any lie effectively, in their own interest.

Q. In their own interest. Very good. So that is a factor that can be

considered by these folks, right?

A. It is.

Q. Have you seen a pattern of lying or speaking in his own interest in order

to avoid criminal responsibility, in your review of this case?

A. I have.

Q. Can you please tell us where that might have started.

A. Well, in the records, it appears to have started with the 1979 aggravated

assault on Marvin Lindwood.

Thomas — 3 1

When he comes up with excuses, self-defense argument, denies that he

committed this offense in the way in which the evidence was presented

to the jury, telling the investigator one thing and also telling her at the

same time to not put that in the record.

. . . He testified. He was cross examined. He responded to the questions

in a responsive fashion, on point. He understood the questions. He had

an answer that was in his own self-interest, whether or not it was

accurate or not.

It also showed a denial of responsibility for the act and a memorization

of the conduct. But he was able to, if you will, hold his own on the

witness stand under cross examination. Something that can be difficult

to do.

Q. Certainly, might be inconsistent with a person who is truly mentally

retarded, as that’s defined.

A. I think it was very inconsistent with a person with mental retardation,

to be able to testify like he did in that trial.

. . . When it comes to verbal abilities, the ability to communicate, the

ability to understand both the receptive language and the expressive

language, that would be brain function. And to be able to logically

analyze the question and come up with an answer that might or you

hope that would benefit him – at least, it had that reasoning behind it –

is important.

Dr. Price was then asked about his impressions of Thomas’s records generated by the

University of Texas Medical Branch pertaining to the mental status behavior assessments

done in TDC from 2002 until 2010:

A. Well, there are several areas that they checked on, everything from his

appearance, hygiene, speech, thought processes, any abnormalities, his

estimated level of intelligence, whether or not he was having emotional

problems with anxiety, depression, if he was intact mentally. If he was

Thomas — 3 2

– they were looking to see if someone was beginning to deteriorate

mentally.

And with very, very few exceptions, his mental status examines [sic]

for those eight years – approximately, eight years – were entirely

normal. I believe I found two days that they said his dress was careless.

Other than that, hygiene, dress, appearance, emotions, thinking,

everything was within normal limits or average.

They found no problems except, like I said, on a couple of

occasions his dress was careless. But that’s in eight years. They

were essentially normal.

Q. No hallucinations.

A. Right. No psychotic, out-of-touch-with-reality processes.

Q. No voices.

A. Right.

Q. No bipolar or schizophrenia that was indicated.

A. Right.

Q. He never received any mental health medications at any point; is that

right?

A. That’s correct.

Q. Normal speech, normal thought content, according to that – to those 24

or 25 evaluations; is that right?

A. That’s correct.

Q. There was no complaints or any symptoms of unusual behaviors. (typo

not in original)

Thomas — 3 3

A. No complaints.

***

Q. Okay. And no indications of sub-average intelligence throughout those

entire records.

A. Right.

Q. All right. Never complained of headaches either, did he?

A. Not in those evaluations, no.

Dr. Price listed off other “skills” possessed by Thomas, measured by something called

the “Street Skills Survival Quotient.” The prosecutor indicated that these “practical skills”

should be looked at “when we’re deciding whether or not somebody fits into that definition

of Special Issue Number One, mental retardation or not. Some of the indicators of Thomas’s

adaptive skills were books that were found in Thomas’s cell that were seventh grade reading

level, Thomas’s ability to use money, and his ability to read a clock, a thermometer, a

calendar, etc.

Dr. Price concluded that Thomas has traits and features consistent with an anti-social

personality, but that Thomas “does not meet the definition of mental retardation, as outlined

in that Special Issue Number One.”

The defense attorney then had the opportunity to cross-examine Dr. Price. During

cross examination, Dr. Price testified as follows:

Q. Do you have a problem with the testing that Dr. McGarrahan did, as far

Thomas — 3 4

as IQ is concerned?

A. Absolutely not.

Q. So when she was on the stand and told the jury that he met the – her

testing of him resulted in an IQ of 71, you have no reason to contest

that, correct?

A. None, whatsoever.

Q. And that puts him in the range of mildly mentally retarded, doesn’t it?

A. To the borderline.

Q. Doesn’t it put him in the range?

A. Well, it could, if that confidence interval includes a level that could be

considered upper limits of mild mental retardation on an IQ test, up to

the area of borderline intellectual functioning. All of which is

significantly though, I think, sub-average.

Q. In your opinion, he does meet the first prong of mental retardation?

A. Yes.

Q. And you were asked about the Briseno factors. Are you also familiar

with the Hall case that just came down from the Supreme Court in the

last month and-a-half?

A. I am familiar with it.

Q. And, in that Opinion, the juries are allowed to consider a range as an

IQ, is that correct?

A. Yes. As it should be.

Q. From 65 to 75.

Thomas — 3 5

A. Approximately. You know, you take into consideration the confidence

interval of the IQ score obtained and it includes, in this case, a score

that should be considered significantly sub-average.

Q. Just so the jury is clear, you do believe that he meets that prong, if you

say they’re prongs anymore. That he meets that prong of the mental

retardation analysis, right?

A. Yes, that’s correct.

The Jury Was Not Provided With Evidence Setting Out the Proper Diagnostic

Framework Used by the Medical Community for Measuring Intellectual Disability

As detailed above, the jury was presented with extensive expert testimony from the

State and from the defense pertaining to the issue of Thomas’s intellectual disability. After

closing arguments in the punishment hearing, the trial court read the jury charge on

punishment, which included special issues with instructions pertaining to the issue of

intellectual disability (then called “mental retardation”).

Specifically, the jury was instructed that “mental retardation” is a disability

characterized by:

(1) significantly sub-average general intellectual functioning;

(2) accompanied by related limitations in adaptive functioning;

(3) the onset of which occurs prior to the age of 18.

These three requirements are essentially the equivalent of the features listed in the definition

of “intellectual disability” in the DSM-5.40

40

See supra at 9; DSM-5 at 34.

Thomas — 3 6

Sub-Average Intelligence

All four expert witnesses agreed that, based on Thomas’s IQ scores, he met the

requirement of being of sub-average intellectual functioning. In this case, the jury was

instructed that, in order to find that Thomas was “mentally retarded,” they must first

determine that he has “significantly sub-average general intellectual functioning,” evidenced

by an IQ score of “approximately” 70 or below. The “approximately” was, essentially, boiled

down by the experts as a range which is roughly from 65 to 75. Therefore, we conclude that

the jury was given the proper diagnostic framework in order to assess whether Thomas has

sub-average intelligence.

The Onset Occurring Before Age 18

Only the State’s expert questioned whether there was any evidence of sub-average

intellectual functioning prior to age 18. Nevertheless, the jury was instructed that the onset

of sub-average intelligence must occur before the age of 18, which is one of the current

criteria required under the DSM-5. Therefore, the framework for measuring these two

criteria was properly provided through the evidence presented to the jury under the current

standards set out in the DSM-5.

Impairment in Everyday Adaptive Functioning

The defense experts testified that the standard for measuring intellectual disability is

found in the DSM-5. They all agreed that Thomas’s adaptive deficits were related to his sub-

Thomas — 3 7

average intelligence such that they would classify him as intellectually disabled. None of the

defense experts discussed the Briseno factors.41 Therefore, although Moore had not yet been

decided at the time of Thomas’s 2014 punishment retrial, the defense experts nevertheless

presented the jury with evidence of Thomas’s intellectual disability that could be assessed

under the current DSM-5 standard for assessing impairment in adaptive functioning.

The State’s expert, however, conflated the old and the current standard. Although Dr.

Price testified that academics, work, and social functioning are the three areas to be examined

when assessing adaptive functioning (which indeed is the current standard under the DSM-

5), in addressing whether Thomas met any of those criteria, Dr. Price’s testimony indicated

that his opinion was guided by the Briseno factors.42 In turn, therefore, Dr. Price testified

that the Briseno factors give “some guidance” about what the jury could consider when

deciding the special issue related to mental retardation. In questioning Dr. Price, the

prosecution sought examples of adaptive abilities which fell within the Briseno factors:

1. Dr. Price agreed that “not everybody who came into contact with [Thomas] treated

him as MR when he was younger.” [This is the first Briseno factor—Did those who

knew the person best during the developmental stage–his family, friends, teachers,

employers, authorities–think he was mentally retarded at that time, and, if so, act in

accordance with that determination? 43 ]

2. Dr. Price agreed that Thomas “was able . . . to formulate a plan to behave in a certain

41

See supra n.22.

42

Id.

43

Briseno, 135 S.W.3d at 8-9.

Thomas — 3 8

way, to get the effect or to achieve the consequence that he was after.” [This is the

second Briseno factor—Has the person formulated plans and carried them through or

is his conduct impulsive? 44 ]

3. Dr. Price also agreed that Thomas was not “gullible,” and “not easily led by others.”

[This is the third Briseno factor—Does his conduct show leadership or does it show

that he is led around by others? 45 ]

4. Dr. Price agreed that Thomas had no hallucinations, no psychotic, out-of-touch-with-

reality processes, no hearing of voices, no bipolar or schizophrenia, normal speech,

normal thought content, no unusual behaviors, no complaints, no headaches. [This

seems to be somewhat responsive to the fourth Briseno factor—Is his conduct in

response to external stimuli rational and appropriate, regardless of whether it is

socially acceptable? 46 ]

5. Dr. Price testified that, in another trial where Thomas was being tried for aggravated

assault, when Thomas testified, he “responded to the questions in a responsive

fashion, on point.” [This is the fifth Briseno factor—Does he respond coherently,

rationally, and on point to oral or written questions or do his responses wander from

subject to subject? 47 ]

6. Dr. Price agreed that Thomas has the ability to “lie effectively, in [his] own interest.”

[This is the sixth Briseno factor—Can the person hide facts or lie effectively in his

own or others’ interests? 48 ]

7. Dr. Price agreed that the planning of this particular crime “was a factor for the jury

to consider” when assessing mental retardation. [This is the seventh Briseno

factor—Putting aside any heinousness or gruesomeness surrounding the capital

offense, did the commission of that offense require forethought, planning, and

44

Id.

45

Id.

46

Id.

47

Id.

48

Id.

Thomas — 3 9

complex execution of purpose? 49 ]

It is true that some of the testimony given by Dr. Price was tied to the current DSM-5

criteria for properly assessing adaptive functioning. It is also true that Dr. Price’s testimony

regarding Thomas’s adaptive abilities could be viewed as evidence offered to rebut the

defense experts’ opinions regarding adaptive deficits. Nevertheless, we find that Dr. Price’s

testimony improperly “overemphasized” Thomas’s “perceived adaptive strengths,” rather

than focusing on adaptive deficits.50 Moreover, we cannot ignore Dr. Price’s obvious

adherence to the Briseno factors in forming the basis for his opinions that he presented to the

jury.

The Supreme Court’s directive was clear—the Briseno factors “may not be used” to

assess intellectual disability.51 Thus, we find that the “attachment to the seven Briseno

evidentiary factors . . . impeded [Dr. Price’s] assessment of [Thomas’s] adaptive

functioning.”52 Moreover, Dr. Price supported the State’s position that Thomas’s adaptive

49

Id.

50

Moore, 137 S.Ct. at 1050 ([T]he medical community focuses the adaptive-functioning

inquiry on adaptive deficits.”) (emphasis in original).

51

Id. at 1044 (“[T]he several factors Briseno set out as indicators of intellectual disability are

an invention of the CCA untied to any acknowledged source. Not aligned with the medical

community’s information, and drawing no strength from our precedent, the Briseno factors ‘creat[e]

an unacceptable risk that persons with intellectual disability will be executed.” [Hall, 134 S.Ct. at

1990] Accordingly, they may not be used . . . to restrict qualification of an individual as intellectually

disabled.’”)

52

Id. at 1051.

Thomas — 4 0

behaviors stemmed from a personality disorder rather than intellectual disability. This

position, according to the Supreme Court, deviates “from prevailing clinical standards.” 53

Therefore, because Dr. Price’s testimony incorporated the Briseno factors, his expert

testimony did not provide the jury with the proper and current diagnostic standards used by

the medical community.

With regard to this issue, the jury was instructed that there must be evidence of

limitations in adaptive functioning that are related to his sub-average intelligence.

“Adaptive behavior” was defined in the jury charge “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.” While this definition does incorporate the

basic requirement as noted in the DSM-5, it does not incorporate a full explanation of the

three domains—conceptual, social, and practical—included within the DSM-5's concept of

adaptive functioning:

• Problems with memory, language, reading, writing, math reasoning, acquisition of

practical knowledge, problem solving, and judgment in novel situations. This

includes learning academic skills involving reading, writing, arithmetic, time or

money.

• Lack of awareness of others’ thoughts, feelings, and experiences; empathy;

interpersonal communication skills; friendship abilities, and social judgment. This

includes difficulty perceiving peers’ social cues, use of immature language in

communicating, and risk of being manipulated by others.

53

See Id. (holding that this Court departed from clinical practice by requiring the defendant to

show that his adaptive deficits were not related to a personality disorder).

Thomas — 4 1

• Difficulty in learning and self-management across life settings, including personal

care, job responsibilities, money management, recreation, self-management of

behavior, and school and work task organization. This includes impairment in

planning, strategizing, priority setting, cognitive flexibility, and/or short-term

memory, as well as functional use of academic skills (e.g., reading, money

management).54

Moreover, under the current and proper standards set out in the DSM-5, adaptive

deficits reflecting intellectual disability exist if at least one of the three domains is met.

However, the instruction did not include language telling the jury that, in order to find that

Thomas was intellectually disabled, they only needed to find that he was deficient in one of

these three domains.

Thus, a person is considered “intellectually disabled” under the DSM-5 standard of

measurement if ongoing support is needed in order for the person to meet age-related

expectations in at least one of these three areas.55 The scope of these three areas, and the

requirement that there be a deficit in only one of the three areas, were not fully conveyed to

the jury—not by the evidence presented nor by the trial court’s definitional instructions.

As instructed in Hall, “adjudication of intellectual disability should be ‘informed by

the views of medical experts.’”56 Even if the views of medical experts do not dictate the

jury’s intellectual-disability determination, the jury’s determination must still be “informed

54

DSM-5 at 37.

55

Id. at 38.

56

Id. at 1044 (citing Hall, 134 S.Ct. at 2000 (2014)).

Thomas — 4 2

by the medical community’s diagnostic framework.”57 Thus, it would be a violation of

Thomas’s due process rights if the jury’s determination of intellectual disability was based

on misleading expert testimony.

Since Moore v. Texas was decided in 2017, we have remanded at least six Article

11.07158 post-conviction habeas applications alleging claims of intellectual disability because

further fact-finding was needed by the trial courts.59 Given our recent approach to handling

57

Id. at 1048.

58

T EX. C ODE C RIM. P ROC. art. 11.071.

59

In Ex parte James Lee Henderson, No. WR-37,658-03, 2018 WL 4762755 (Tex. Crim. App.

October 3, 2018), we exercised our authority to reconsider this capital writ on our own initiative in

light of Moore. We remanded the case to the habeas court to consider all of the evidence in light of

the Moore opinion and make a new recommendation to this Court on the issue of intellectual disability.

See also Ex parte Juan Ramon Meza Segundo, No. WR-70,963-02, 2018 WL 4856580, at *1 (Tex.

Crim. App. October 5, 2018) (“In light of the Moore decision and the facts presented in applicant’s

application, we have determined that applicant’s execution should be stayed pending further order of

this Court.”); Ex parte Long, No. WR-76,324-02, 2018 WL 3217506, at *1 (Tex. Crim. App. June

27, 2018) (“[A]pplicant has satisfied the requirements of Article 11.071 § 5, and we remand his

application to the convicting court for a live hearing to further develop evidence and make a new

recommendation to this Court on the issue of intellectual disability.”); Ex parte Lizcano, No. WR-

68,348-03, 2018 WL 2717035, at *1 (Tex. Crim. App. June 6, 2018) (“In light of the United States

Supreme Court’s recent opinion in Moore v. Texas, we exercise our authority to reconsider this case

on our own initiative. This cause is remanded to the habeas court to allow it the opportunity to develop

evidence, make new or additional findings of fact and conclusions of law, and make a new

recommendation to this Court on the issue of intellectual disability. . . . The court should consider all

of the evidence in light of the Moore v. Texas opinion.”); Ex parte Guevara, No. WR-63,926-03, 2018

WL 2717041, at *2 (Tex. Crim. App. June 6, 2018) (“In order for this Court to determine whether

applicant is intellectually disabled and exempt from the death penalty under Atkins, further fact-finding

is necessary. Therefore, we remand the application to the habeas court for a live hearing to develop

evidence, enter findings of fact and conclusions of law, and make a new recommendation to this Court

on the issue of intellectual disability.”); Ex parte Williams, No. WR-71,296-03, 2018 WL 2717039,

at *1 (Tex. Crim. App. June 5, 2018) (“In light of the Moore decision and the facts presented in

applicant’s application, we . . . remand [this] application to the convicting court for a live hearing to

Thomas — 4 3

post-Moore habeas claims based on intellectual disability, we see no reason to approach this

same claim any differently even though it is presented in a direct appeal. Thus, in light of

Moore v. Texas and Ex parte Moore, and based upon our review of the trial record in this

case, we hold that, as a matter of due process, Thomas is entitled to a new punishment

hearing. We sustain point of error thirty-one.

THOMAS’S REMAINING POINTS OF ERROR

In point of error fifty-five, Thomas asserts that the evidence of his guilt is insufficient.

This claim is not properly before the Court.60 Point of error fifty-five is overruled.

In point of error forty-nine, Thomas asserts that the evidence is legally insufficient to

support an affirmative answer to the future dangerousness special issue. Specifically, he

states that the defense team established that he had spent twenty-seven years on death row

without any violent incidents. Thomas notes that defense experts testified that he has had

relatively few and minor disciplinary offenses and that he is a low risk for future

further develop evidence and make a new recommendation to this Court on the issue of intellectual

disability.”); Ex parte Davis, No. WR-40,339-09, 2017 WL 6031852, at *1 (Tex. Crim. App.

December 6, 2017) (“[I]n order for this Court to determine . . . whether applicant is intellectually

disabled and except from the death penalty under Atkins, further fact-finding is necessary. Therefore,

we remand the application to the habeas court to develop evidence and make a recommendation to this

Court. . .”).

60

See, e.g., Lopez v. State, 18 S.W.3d 637, 639 (Tex. Crim. App. 2000) (observing that, when

an appellate court remands a case on punishment only, it effectively affirms the conviction on

guilt/innocence and reverses the conviction on punishment, thereby limiting the trial court’s

jurisdiction to punishment issues); see also Patterson v. State, 101 S.W.3d 150, 152 (Tex. App.—Fort

Worth 2003, pet. ref’d) (holding that a point on appeal from a punishment retrial that concerns matters

from the guilt/innocence phase presents nothing for review).

Thomas — 4 4

dangerousness. Thomas further asserts that officials who interacted with him at the Dallas

County Jail over the course of four years while he awaited the punishment retrial testified

that he was quiet, respectful, and well-behaved.

Thomas contends that the State’s future dangerousness evidence did not overcome the

defense’s evidence of his peaceful, non-violent history during his twenty-seven years in

prison, where, he asserts, he will spend the rest of his natural life if he receives a life

sentence.61 Thomas also complains that the State’s future dangerousness case relied on an

impermissible “comparative worth” argument that focused on whether Thomas deserved to

live after he deprived the victims’ family members of their loved ones.

When reviewing the legal sufficiency of the evidence to support the jury’s answer to

the future dangerousness special issue, we view the evidence in the light most favorable to

the verdict.62 We determine whether any rational trier of fact could have believed beyond a

reasonable doubt that there is a probability that the defendant would commit criminal acts

of violence that would constitute a continuing threat to society.63 A jury may consider a

61

Because Thomas committed the instant offense in 1986, Thomas would potentially be

eligible for parole if sentenced to life. See Art. 42.18 § 8(b) (1986), 42.12 § 3g(a)(1) (1986)

(specifying the amount of time that a “capital life” inmate must serve before he becomes eligible for

release on parole). However, because parole eligibility is not properly considered by the jury or in a

sufficiency analysis, we will not further discuss it. See Williams v. State, 273 S.W.3d 200, 234-35

(Tex. Crim. App. 2008).

62

Daniel v. State, 485 S.W.3d 24, 31 (Tex. Crim. App. 2016).

63

Id.

Thomas — 4 5

variety of factors when determining whether a defendant will pose a continuing threat to

society.64 The facts of the offense alone may be sufficient to sustain the jury’s finding of

future dangerousness.65

In this case, the facts and circumstances of the offense alone were sufficient to

establish Thomas’s future dangerousness.66 He murdered Mildred Finch, breaking her bones

and stabbing her over eighty times.67 Thomas also displayed a lack of remorse.68 Evidence

of Thomas’s other bad acts also demonstrated that he was a future danger. For example, the

day after he threatened to kill everyone in the house, Thomas asked his brother Billy for

money. When Billy told Thomas that he did not have any money, Thomas held an unloaded

gun to Billy’s head and pulled the trigger six times. Following his arrest for the instant

offense, Thomas flooded his cell, threatened an officer, assaulted an officer, fought with

inmates, and possessed razor blades.

When Thomas committed the instant offense, he was on parole from a ten-year

64

Buntion v. State, 482 S.W.3d 58, 66 (Tex. Crim. App. 2016); Keeton v. State, 724 S.W.2d

58, 61 (Tex. Crim. App. 1987).

65

Fuller v. State, 253 S.W.3d 220, 231-32 (Tex. Crim. App. 2008).

66

See Bunion, 482 S.W.3d at 66.

67

See King v. State, 953 S.W.2d 266, 272 (Tex. Crim. App. 1997) (“Murder by its very nature

is brutal, but we have recognized that a stabbing death is particularly brutal.”); Dinkins v. State, 894

S.W.2d 330, 360 (Tex. Crim. App. 1995) (“[Thomas’s] infliction of multiple wounds at close range

indicates a wanton and callous disregard for human life[.]”).

68

See Daniel, 485 S.W.3d at 32.

Thomas — 4 6

sentence for an aggravated assault with a deadly weapon committed in 1979.69 In that

offense, Thomas used a screwdriver to stab a man in the temple after the man intervened to

stop Thomas’s assault on a young woman. The screwdriver penetrated the man’s brain,

causing permanent brain damage and disfigurement. Thomas later acknowledged to a police

detective that he had been trying to kill the man.

On the same day that Thomas committed that aggravated assault, he cut Billy’s

forehead during an argument and he broke a window in their house. This incident was not

the first time that Thomas had cut Billy with a sharp object. Thomas then ran outside and

called to his neighbor, knocking on her front door and demanding that she let him into her

house. She did not let him in because she had overheard him yelling at Billy. Although she

told him that she would not let him in, Thomas continued knocking on her door. He hit it so

hard that he broke a glass pane in the top part of the door.

While in jail following his arrest for the aggravated assault, Thomas raped at least one

detainee. He demanded sex and money from others, and he fought with them if they did not

comply. Two seventeen-year-old detainees were moved away from Thomas for their safety.

A detention officer who interacted with Thomas in 1983 regarded him as a predator. Further,

while in prison for the aggravated assault, Thomas assaulted inmates and guards.

When Thomas was released from prison in 1984, he violated multiple parole

69

See Solomon v. State, 49 S.W.3d 356, 363-64 (Tex. Crim. App. 2001) (stating that

committing an offense while on parole has some tendency to show future dangerousness).

Thomas — 4 7

conditions. He also violated his parole by attempting to stab his mother. At the ensuing

parole violation hearing, he was ordered to stay in a halfway house for 180 days. However,

Thomas absconded from the halfway house within seven days of arriving. He was still an

absconder when he committed the instant offense.

Thomas’s argument that the State was required to establish that he would be

dangerous in prison because that is where he will spend the rest of his natural life lacks

merit.70 Further, good behavior in prison does not preclude a finding of future

dangerousness. 71

Thomas’s assertion that the State engaged in an impermissible “comparative worth”

argument is not relevant to the question of the sufficiency of the future dangerousness

evidence. This part of Thomas’s argument raises a distinct claim based on a different legal

theory, which renders this point of error multifarious and inadequately briefed.72 We decline

to consider this portion of Thomas’s claim.

Viewed in the light most favorable to the verdict, the future dangerousness evidence

was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that there was

70

See Lucio v. State, 351 S.W.3d 878, 903 (Tex. Crim. App. 2011) (stating that the future

dangerousness issue asks a jury to determine whether a capital defendant would be dangerous “whether

in or out of prison,” without regard to the time he would actually spend in prison if sentenced to life).

71

See Hunter v. State, 243 S.W.3d 664, 673 (Tex. Crim. App. 2007); Bible v. State, 162

S.W.3d 234, 245 (Tex. Crim. App. 2005).

72

See Mays v. State, 318 S.W.3d 368, 390 n.82 (Tex. Crim. App. 2010).

Thomas — 4 8

a probability that Thomas would commit criminal acts of violence that would constitute a

continuing threat to society.73 Point of error forty-nine is overruled.

Points of error thirty-two through thirty-four and fifty concern the prosecutor’s

statements during jury voir dire that arguably endorsed a “cutoff” IQ of 70 or relied on

aspects of Briseno that the Supreme Court and our Court have since rejected. If we were to

resolve these claims in Thomas’s favor, Thomas would be entitled to a new punishment

hearing, which is the same relief that he will receive through our disposition of point of error

thirty-one.74 Therefore, we need not address these points of error separately.

In points of error forty-seven and forty-eight, Thomas asserts that the evidence was

sufficient to show that he is intellectually disabled and that the jury’s negative answer to the

intellectual disability special issue was so against the great weight and preponderance of the

evidence as to be unjust.75 To the extent that Thomas may be attempting to challenge the

legal sufficiency of the evidence supporting the jury’s finding that he is not intellectually

73

See Hunter, 243 S.W.3d at 673; see also McGinn v. State, 961 S.W.2d 161, 168-69 (Tex.

Crim. App. 1998) (stating that once the rationality of the future-dangerousness prediction is

established, it is impossible to determine whether the prediction is nevertheless wrong or unjust

because of countervailing evidence).

74

See Davis v. State, 313 S.W.3d 317, 343 n.85 (Tex. Crim. App. 2010) (“In capital cases, jury

selection claims that revolve around punishment issues are errors relating to punishment only.”).

75

See Butcher v. State, 454 S.W.3d 13, 20 (Tex. Crim. App.2015) (“Affirmative defenses may

be evaluated for legal and factual sufficiency, even after this Court handed down its opinion in Brooks

v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010), which abolished factual-sufficiency review as it

applies to criminal convictions.”).

Thomas — 4 9

disabled, we find that he has wholly failed to adequately brief the facts or law involved in

such a challenge.76 Nonetheless, we have reviewed the record and find that the jury’s

negative answer to the special issue regarding intellectual disability was supported by “more

than a mere scintilla” of evidence.77 In any event, we need not address the merits of

Thomas’s challenge to the sufficiency of the evidence because, even if we resolved it in

Thomas’s favor, he would be entitled to the same relief that he will receive through our

resolution of point of error thirty-one.78 Therefore, we will not discuss this point of error

further. Thomas’s remaining points of error are rendered moot.

We reverse the judgment of the trial court as to punishment and remand this cause for

a new punishment proceeding.

DELIVERED: December 5, 2018

DO NOT PUBLISH

76

See T EX. R. A PP. P. 38.1.

77

See Matlock v. State, 392 S.W.3d 662, 669 (Tex. Crim. App. 2013).

78

See Neal v. State, 256 S.W.3d 264, 273 (Tex. Crim. App. 2008) (“In reviewing the

sufficiency of the evidence to support a finding on mental retardation, we examine whether the finding

is ‘so against the great weight and preponderance of the evidence so as to be manifestly unjust.’”);

Hunter, 243 S.W.3d at 667 (clarifying that the factual-sufficiency standard of appellate review applies

to a jury’s determination that a defendant is not intellectually disabled); Meraz v. State, 785 S.W.2d

146, 156 (Tex. Crim. App. 1990) (citing Tibbs v. Florida, 457 U.S. 31, 4244 (1982)) (explaining that

the Double Jeopardy Clause does not prohibit a retrial if the reversal is based on the “weight of the

evidence” rather than “[legally] insufficient evidence”).