# Ex Parte Blue > Court of Criminal Appeals of Texas · March 7, 2007 · 230 S.W.3d 151 URL: https://www.frixlaw.com/law-library/cases/9618115 ## Case - **Full name:** Ex Parte Carl Henry BLUE, Applicant - **Court:** Court of Criminal Appeals of Texas - **Decided:** March 7, 2007 - **Citations:** 230 S.W.3d 151; 2007 Tex. Crim. App. LEXIS 318; 2007 WL 676194 - **Precedential status:** Published - **Opinion:** Concurrence by Johnson - **Judges:** Cochran, Heryey, Holcomb, Johnson, Keasler, Keller, Meyers, Price, Womack - **Cited by:** 112 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9618115 ## How later opinions describe it (automated extraction) - explaining that because the standard of proof under § 5(a)(3) is clear-and-convincing evidence, “[a] threshold showing that would allow the finder of fact to conclude no more than that the evidence preponderates in favor of a finding of mental retardation will obviously not su… - holding that constitutional prohibition against executing mentally retarded person does not mean that such claim can be made "at any time;" the Legislature may exercise its "regulatory authority to impose limitations on successive and abusive state post-conviction writs" - stating that where the defendant suggests adjusting a “partial” score, above 70, to below 70, “we will simply regard the record as . . . devoid of any reliable IQ score” ## Opinion text JOHNSON, J., concurring. The United States Supreme Court has, unfortunately, inserted into the legal lexicon the phrase “actual innocence of the death penalty.” The meaning of the *171 phrase is more properly expressed as “ineligibility for the death penalty” because it has nothing whatsoever to do with a claim of actual innocence, that is, that the claimant did not commit the charged offense. In Atkins v. Virginia, 536 U.S. 304 , 122 S.Ct. 2242 , 153 L.Ed.2d 335 (2002), the Supreme Court held that it violates the United States Constitution to execute mentally retarded persons, saying that “the mentally retarded should be categorically excluded from execution.” Atkins at 318, 122 S.Ct. 2242 . Translated from the English, “categorically excluded” means “cannot be sentenced to,” which means “is ineligible for.” The violation addressed in Atkins was based on the Eighth Amendment prohibition against cruel and unusual punishment, specifically, “that death is not a suitable punishment for a mentally retarded criminal. ... Construing and applying the Eighth Amendment in the light of our ‘evolving standards of decency,’ we therefore conclude that such punishment is excessive and that the Constitution ‘places a substantive restriction of the State’s power to take the life’ of a mentally retarded offender.” Id. at 521, 122 S.Ct. 2242 . A violation occurs when a death sentence is assessed against a mentally retarded defendant or, perhaps even earlier, when the state chooses to seek such a death sentence. Determination of a defendant’s mental abilities are easily ascertained before trial, just as we have done for decades in regard to mental illness and competence to stand trial. If a defendant is, in fact, mentally retarded, Atkins removes the death penalty from the universe of possible punishments. If death is not a possible punishment, the special issues will never be submitted to the jury, just as they are not submitted when the state chooses not to seek a death sentence for capital murder. If the issues are not submitted, “no rational jurors would have answered in the state’s favor one or more of the special issues....” If the jury does not answer the special issues in the state’s favor, the only option is a mandatory life sentence, a result which the Supreme Court did not in any way forbid or limit. I do not believe that Atkins should, or even can, be read to say that the state may sentence mentally retarded persons to death but is prohibited from carrying out that sentence. If we apply that logic outside of the context of capital punishment, the state would be permitted to sentence a retarded defendant to prison but could not incarcerate him. If we were considering such a case under Boykin, 1 we would un-doubtably find that such a reading “would lead to absurd consequences that the Legislature could not possibly have intended.... ” Boykin at 785 (emphasis in original). If the state may sentence a defendant to death, but may not execute him, then the sentence of death has been commuted, by operation of law, to life in prison. If the only possible punishment is a life sentence, the cause ceases to be a capital case, 2 and death row is not an option. Let us then be forthright and honest about the actual sentence and call it what it is — life in prison— a sentence served in the general population. I join the opinion of the Court. . Boykin v. State, 818 S.W.2d 782 (Tex.Crim.App.1991). . See, Sisk v. State, 131 S.W.3d 492, 497 (Tex.Crim.App.2004)(“We hold that the term ‘a capital case'... means a case in which a convicted person was sentenced to death.”). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9618115. Public record. Not legal advice.