Opinion

Cathey, Eric Dewayne

  • 451 S.W.3d 1
  • 2014 Tex. Crim. App. LEXIS 1762
  • 2014 WL 5639162
Court
Court of Criminal Appeals of Texas
Filed
Nov 5, 2014
Status
Published
Author
Price
On the bench
Cochran, Keller, Meyers, Womack, Johnson, Keasler, Hervey, Alcala, Price, Iia
Cited by
32 cases
Authority
More cited than 11.8%

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 L.Q. 1 , 123-25, 163-66 (Fall 2011) (discussing and quoting extensively from my unpublished dissenting opinion in Lizcano v. State, No. AP-75,879, 2010 WL 1817772 (Tex.Crim.App.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.”).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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