# Cathey, Eric Dewayne

> Court of Criminal Appeals of Texas · November 5, 2014 · 451 S.W.3d 1

URL: https://www.frixlaw.com/law-library/cases/9812335

## Case

- **Full name:** EX PARTE Eric Dewayne CATHEY, Applicant
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** November 5, 2014
- **Citations:** 451 S.W.3d 1; 2014 Tex. Crim. App. LEXIS 1762; 2014 WL 5639162
- **Precedential status:** Published
- **Opinion:** Concurrence by Price
- **Judges:** Cochran, Keller, Meyers, Womack, Johnson, Keasler, Hervey, Alcala, Price, Iia
- **Cited by:** 32 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/9812335

## How later opinions describe it (automated extraction)

- 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
- explaining, “Although psychology and psychologists inform the factual decision, they do not determine whether an inmate is exempt from execution under Atkins. We must apply our own judgment. . . .”

## Opinion text

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.”).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9812335. Public record. Not legal advice.