stating that the best source of retrospective information concerning adaptive behavior during the developmental period is usually school records because they provide an objective, unbiased documentation of a person’s abilities at the most pertinent time
How later courts described this case
- stating that the best source of retrospective information concerning adaptive behavior during the developmental period is usually school records because they provide an objective, unbiased documentation of a person’s abilities at the most pertinent time
- stating that factfinders should “consider all possible data that sheds light on a person’s adaptive functioning, including his conduct in a prison society, school setting, or ‘free world’ community”
- stating that “If applicant has failed to prove that he is intellectually disabled, he clearly did not prove that he was intellectually disabled before the age of approximately eighteen.”
- stating that we must apply our own judgment on the appropriate ways to enforce the ultimately legal prohibition on executing intellectually disabled offenders
Written by the judges who cited it.
The opinion
CONCURRING OPINION
PRICE, J.,
filed a concurring opinion.
I join Parts I and IIA of the Court’s opinion today and otherwise concur in the result. I do not join Part IIB. For present purposes, suffice it to say that I continue to disagree with the Court’s decidedly non-diagnostic approach to evaluating the adaptive-deficits prong of the standard for determining intellectual disability vel non. 1 Particularly after the recent opinion of the United States Supreme Court in Hall v. Florida, 2 1 should think that the writing is on the wall for the future viability of Ex parte Briseno, 3
. See Peggy M. Tobolowsky, Different Path Taken: Texas Capital Offenders' Post-Atkins Claims of Mental Retardation, 39 Hastings Const. L.Q. 1 , 123-25, 163-66 (Fall 2011) (discussing and quoting extensively from my unpublished dissenting opinion in Lizcano v. State, No. AP-75,879, 2010 WL 1817772 (Tex.Crim.App. delivered May 5, 2010) (not designated for publication)).
. - U.S. -, 134 S.Ct. 1986 , 188 L.Ed.2d 1007 (2014). Hall found Florida's approach to determining the first prong of the standard for intellectual disability, the significantly-subaverage-general-intellectual-functioning prong, to be unconstitutionally narrow. In my view, Texas’s approach to determining the second prong, the adaptive-deficits prong, is unconstitutionally over-inclusive — insufficiently tied to the clinical diagnostic criteria and all too open to non-scientific, impressionistic considerations to withstand Eighth Amendment scrutiny. Tobolowsky, 39 Hast. Const. L.Q. at 163-66 (citing and quoting from Lizcano v. State, 2010 WL 1817772 , at *32-40 (Price, J., dissenting)).
. 135 S.W.3d 1 (Tex.Crim.App.2004). See Tobolowsky, 39 Hast. Const. L.Q. at 173 ("[T]he Briseno factors remain a leading candidate for [Supreme] Court scrutiny.”).