explaining that the exclusion of an expert’s opinion on the ground that he is not licensed in the State of Texas under Tex. Health & Safety Code § 531.003(16) is of no “legal significance in *798 deciding whether [an] applicant is mentally retarded for purposes of eligibility for the death penalty under Atkins v. Virginia or Ex parte Briseno.”
How later courts described this case
- explaining that the exclusion of an expert’s opinion on the ground that he is not licensed in the State of Texas under Tex. Health & Safety Code § 531.003(16) is of no “legal significance in *798 deciding whether [an] applicant is mentally retarded for purposes of eligibility for the death penalty under Atkins v. Virginia or Ex parte Briseno.”
- joining the majority in declining to adopt the trial court's fact findings based on TEX. HEALTH & SAFETY CODE § 591.003(16) and explaining that whether a physician or psychologist is licensed in Texas is of no "legal significance in deciding whether [an] applicant is mentally retarded for purposes of eligibility for the death penalty under Atkins v. Virginia or Ex parte Briseno"
- "[W]hile there is significant expert opinion testimony, documentary materials, and lay testimony in this record that might support a finding of mental retardation, there is also sufficient evidence, including expert and lay opinion testimony, as well as written records, to support the trial court's finding that applicant failed to prove that he is mentally retarded. In such a situation, I defer to the trial court's credibility determinations and . . . adopt its ultimate findings of fact. Based on those findings and my independent review, I agree with the Court's decision to deny relief."
- trial judge ultimately chose to place greater reliance upon state’s expert than defense expert in concluding that the habeas applicant was not mentally retarded
Written by the judges who cited it.
The opinion
ORDER
PER CURIAM.
This is an application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure article 11.071.
In April 1987, a jury convicted applicant of the offense of capital murder. The jury answered the special issues submitted pursuant to Code of Criminal Procedure article 37.071, and the trial court, accordingly, set punishment at death. Because some of the reporter’s notes from the trial were lost, this Court reversed the conviction. Lewis v. State, 844 S.W.2d 750 (Tex.Crim.App.1993). On retrial in June 1993, applicant pleaded guilty to the offense of capital murder. A second jury answered the special issues, and the trial court, accordingly, set punishment at death. This Court affirmed. Lewis v. State, 911 S.W.2d 1 (Tex.Crim.App.1995).
Applicant presented two allegations in his application. In his first claim, applicant asserted that his execution would violate the United States Supreme Court’s opinion in Atkins v. Virginia, 536 U.S. 304 , 122 S.Ct. 2242 , 153 L.Ed.2d 335 (2002), holding that the Eighth Amendment prohibits the execution of the mentally retarded. In his second claim, applicant asserted that the death sentence violated his Sixth Amendment rights because the question of mental retardation was not decided by the jury. By written order dated October 15, 2003, applicant’s second claim was dismissed and his first claim was remanded to the trial court for consideration. By written order dated December 8, 2004, this Court instructed the trial court to hold a live hearing on the issue.
On remand, the trial court conducted a live hearing, after which it entered find *374 ings of fact and conclusions of law recommending that relief be denied on applicant’s claim. This Court has reviewed the record. We adopt the trial judge’s findings and conclusions, except for findings eight and fifteen, which we reject. Based upon the trial court’s findings and conclusions and our own review, the relief sought is denied.
COCHRAN, J., filed a statement concurring in the denial of relief, in which PRICE and HERVEY, JJ., joined.
WOMACK, J., filed a dissenting statement in which JOHNSON and HOLCOMB, JJ., joined.