Gallo, Tomas Raul

In the Court of Criminal

Appeals of Texas

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No. WR-77,940-03

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EX PARTE TOMAS RAUL GALLO,

Applicant

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On Application for Writ of Habeas Corpus

In Cause No. 940093-C

In the 182nd Criminal District Court

Harris County

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YEARY, J., filed a dissenting opinion in which KELLER, P.J., joined.

Once again, in a subsequent post-conviction application for the

writ of habeas corpus raising a claim based on Atkins v. Virginia, 536

U.S. 304 (2002), the Court grants relief to a death-sentenced

defendant—by unilaterally reforming his death sentence to a life

sentence—without taking adequate account of the continually evolving

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standards for diagnosing intellectual disability (hereafter “ID,” formerly

called “mental retardation”) or the history and current procedural

posture of the case. The Court does this based on its own independent

determination that Applicant suffers from ID. And, since Applicant

committed his capital crime before the advent of life without parole, the

Court reforms his death sentence to a sentence of life with parole.

Once again, I am compelled to observe that the Court’s approach

to this and similar cases is problematic. In making the determination

that Applicant suffers from ID, the Court only applies the most recent

diagnostic manual, the American Psychiatric Association: Diagnostic

and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision

(2022) (hereinafter, DSM-5-TR), without even questioning whether the

criteria announced there actually defines the true threshold for

immunity from the death penalty under the Eighth Amendment of the

United States Constitution. Also, it measures Applicant’s evidence only

by the very forgiving preponderance of the evidence standard, without

any recognition of how anomalous it is to unilaterally grant relief on

such a low threshold of proof given the history and procedural posture

of this case.

Once again, therefore, I am obliged to register my dissent.

I. HISTORY AND PROCEDURAL POSTURE

The United States Supreme Court decided Atkins in 2002, in

which it prohibited the states from executing capital offenders who were

(under the then-current terminology) mentally retarded at the time they

committed their offenses. In doing so, the Supreme Court referenced the

diagnostic criteria for mental retardation contained in the version of the

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DSM that was current at that time: the DSM-IV-TR. American

Psychiatric Association: Diagnostic and Statistical Manual of Mental

Disorders, Fourth Edition, Text Revision (2000). 536 U.S. at 308 n.3. 1

Applicant was tried for this capital offense in 2004, nearly two years

after Atkins was decided, but while the DSM-IV-TR was still the current

diagnostic manual. And indeed, Applicant litigated the issue of his

mental retardation during his 2004 trial. The jury found that he was not

mentally retarded and, in the face of Applicant’s claim that the jury’s

finding was against the great weight and preponderance of the evidence,

this Court upheld that finding on direct appeal, in September of 2007.

Gallo v. State, 239 S.W.3d 757, 769−75 (Tex. Crim. App. 2007).

While the direct appeal was pending, Applicant filed his initial

post-conviction application for writ of habeas corpus, in March of 2007.

In his initial writ application, Applicant did not attempt to relitigate the

merits of his claim of ID. The most that he can be said to have done to

challenge the determination that he is not ID is that he may have once

again challenged the jury’s verdict against him at trial with regard to

that question as having been against the great weight and

preponderance of the trial evidence. 2 To the extent that he might have

1 In describing the diagnostic criteria for mental retardation then

extant, in footnote 3 of Atkins, the Supreme Court seemed to identify the

manual as the DSM-IV, rather than the DSM-IV-TR. But at the same time, in

his opinion for the Court, Justice Stevens gave the copyright date for the

manual as 2000, which corresponds to the DSM-IV-TR. It makes sense that

Justice Stevens would invoke the version of the manual most recent in time to

his opinion in 2002. The DSM-IV copyright date, by contrast, is 1994.

2 In a concurring statement, Judge Price took the position that

Applicant was not really challenging the jury’s finding on that basis. See Ex

parte Gallo, No. WR-77,940-01, 2013 WL 105277, at *3 (Tex. Crim. App. Jan.

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been reiterating that claim from his direct appeal, this Court rejected it

because it had already been raised and rejected on direct appeal. Ex

parte Gallo, No. WR-77,940-01, 2013 WL 105277, at *1 (Tex. Crim. App.

Jan. 9, 2013) (per curiam order, not designated for publication).

Shortly after the Court’s per curiam order denying Applicant

relief on his initial post-conviction writ application, his state-appointed

initial writ counsel attempted to file a subsequent writ application on

his behalf. Ex parte Gallo, No. WR-77,940-02, 2013 WL 3251436 (Tex.

Crim. App. June 26, 2013) (not designated for publication). Counsel

argued in that pleading that the trial testimony of Dr. George

Denkowski relating to the issue of Applicant’s ID was false. However,

concluding that initial state-appointed counsel had not obtained

Applicant’s permission to file that first subsequent writ, the Court

dismissed the application. Ex parte Gallo, 448 S.W.3d 1, 6 (Tex. Crim.

App. 2014).

9, 2013) (Price, J., concurring) (not designated for publication) (“I agree that

the applicant is not entitled to relief on his first claim, but not because it

amounts to a renewed sufficiency of the evidence claim.”). Instead, Judge Price

believed that what Applicant was really challenging in his first claim was the

admissibility of Dr. George Denkowski’s trial testimony—as a predicate for

alleging, in his second and third claims, that his trial and appellate counsel

had been constitutionally ineffective in failing to likewise challenge the

admissibility of Denkowski’s trial testimony. Id. In any event, my point is that

neither the Court nor Judge Price construed Applicant’s initial writ application

to raise a naked claim of ID, as he does now in his present—but subsequent—

post-conviction writ application. Interestingly, Applicant does plainly raise the

sufficiency issue now, in the second claim of his current subsequent writ

application. This Court did not permit the lower court to proceed to a merits

determination of the second claim, however—presumably because the claim

was raised and rejected on direct appeal. See TEX. CODE CRIM. PROC. art.

11.071 § 5(c); Ex parte Gallo, No. WR-77,940-03, 2017 WL 562724 (Tex. Crim.

App. Feb. 8, 2017) (not designated for publication).

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Then, in November of 2016, the present subsequent application

was submitted, this time with Applicant’s permission. Now, in his first

claim, and for the first time since his trial, Applicant brings a free-

standing claim of ID. Also, in his third claim, he once again challenges

the trial testimony of Dr. Denkowski, contending that it constituted

false evidence. He argues that he may raise this third claim for the first

time in this subsequent writ application based on a new legal

development, occurring since he filed his initial writ application in 2007.

Specifically, in Ex parte Chabot, this Court recognized—for the first

time—that the State’s unknowing use of false or misleading evidence

may constitute a due process violation. 300 S.W.3d 768 (Tex. Crim. App.

2009); see also TEX. CODE CRIM. PROC. art. 11.071 § 5(a)(1) (permitting

courts to address the merits of claims raised for the first time in a

subsequent writ application if the legal basis for the claim was

previously unavailable).

We remanded this subsequent writ application in February of

2017 to allow Applicant to litigate the merits of these two claims. 3 Ex

parte Gallo, No. WR-77,940-03, 2017 WL 562724 (Tex. Crim. App. Feb.

8, 2017) (not designated for publication). At the behest of the parties,

the convicting court has now entered findings of fact and conclusions of

law, recommending that we grant relief on both claims. The convicting

court would have us conclude that Applicant has established the

3 When a convicting court receives a subsequent application for writ of

habeas corpus in a capital case, it must immediately forward it to this Court,

and it may not “take any further action” on that application unless and until

this Court “issues an order finding that the requirements [for proceeding to the

merits of the claims contained therein] have been satisfied.” TEX. CODE CRIM.

PROC. art. 11.071 §§ 5(b), (c).

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diagnostic criteria for ID, under the most recent manual, the DSM-5-TR

(which did not yet exist at the time Applicant filed this subsequent writ

application, in 2016), by a preponderance of the evidence.

Today, the Court uncritically accepts the convicting court’s

recommendation that we conclude—de novo—that Applicant has

established ID, under “the current, medically accepted diagnostic

criteria” and “by a preponderance of the evidence[.]” Majority Opinion

at 3. Based on that conclusion, the Court declares Applicant’s third,

Chabot-based claim, that Dr. Denkowski’s testimony was false, to be

moot. For the following reasons, I dissent to this disposition.

II. WHY DE NOVO REVIEW UNDER ART. 11.071 § 5(a)(1)?

The Court remanded this subsequent writ application to the

convicting court to consider both: (1) Applicant’s false evidence claim,

based upon Denkowski’s trial testimony, and (2) his substantive ID

claim. I joined that order. But in retrospect, it is not clear to me why we

permitted consideration of the ID claim under Section 5(a)(1) of Article

11.071, which requires an applicant to allege a new factual or legal basis

for the claim. 4

I concede that Applicant alleged new facts relevant to his claim

that false evidence may have led to his death sentence. These new facts

include certain developments since Applicant filed his initial writ

4 Section 5(a)(1) of Article 11.071 prohibits courts from even considering

the merits of a claim unless the subsequent writ application “contains

sufficient specific facts” to show that the claim could not have been raised in a

previous writ application “because the factual or legal basis for the claim was

unavailable” at the time the previous application was filed. TEX. CODE CRIM

PROC. art. 11.071 § 5(a)(1).

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application, in 2007, that seriously impugned Denkowski’s methodology

for assessing ID. Indeed, in 2011, Denkowski entered into an agreement

with the relevant professional board “to not accept any engagement to

perform forensic psychological services in the evaluation of subjects for

mental retardation or intellectual disability in criminal proceedings.” Ex

parte Gallo, 2017 WL 562724, at *1; Ex parte Gallo, No. WR-77,940-01,

2013 WL 105277, at *1 (Tex. Crim. App. Jan. 9, 2013).

Applicant also alleged new law relevant to that same claim of

false evidence. The new legal basis that Applicant alleged to satisfy

Section 5(a)(1) of Article 11.071, was the issuance, in 2009, of this

Court’s opinion in Chabot, 300 S.W.3d at 771, which established the

State’s inadvertent use of false testimony as a viable due process claim. 5

So, I understand how the new facts alleged by Applicant might entitle

him to a determination of his false evidence claim in a subsequent writ

application, consistent with Section 5(a)(1), under the new law as

explicated in Chabot.

But Applicant has alleged neither new facts nor new law that

5 See Ex parte Chavez, 371 S.W.3d 200, 205 (Tex. Crim. App. 2012)

(observing that “Chabot was the first case in which we explicitly recognized an

unknowing-use due-process claim; therefore, that legal basis was unavailable

at the time applicant filed his previous application”). In his concurring

statement following the Court’s denial of relief in Applicant’s initial writ

application, Judge Price practically invited Applicant to raise a false evidence

claim in a subsequent writ application. Ex parte Gallo, 2017 WL 562724, at *3.

But Judge Price said nothing about the possibility that Applicant could re-raise

the substantive question of whether he was in fact intellectually disabled at

the time of the offense, or whether the new facts showing Denkowski’s false

testimony somehow authorize this Court to embark upon a de novo

determination of the issue of Applicant’s ID in a subsequent post-conviction

habeas corpus proceeding.

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demonstrate the truth of his free-standing claim of ID. The Court should

not allow itself to simply gloss over the distinction between a showing

that a witness might have testified falsely about an issue and a showing

that the correct resolution of the issue has been definitively

demonstrated, one way or the other. It is at least unclear to me that the

new facts impugning Denkowski’s trial testimony should, by themselves,

authorize us, under Section 5(a)(1), to conduct a de novo review of

whether Applicant was ID at the time of his offense. And Applicant does

not allege any other new facts that would justify re-addressing that issue

even though it has already been determined by the jury at his trial.6

Moreover, Chabot does not provide new law with respect to the

substantive question whether Applicant was ID at the time he

committed his offense. Therefore, the new-law exception to the

prohibition against our addressing a claim that was or should have been

raised previously does not apply to that substantive issue—at least not

6 The exception to the general prohibition against subsequent writ

applications that is embodied in Section 5(a)(1) is, after all, a claim-specific

exception. See TEX. CODE CRIM. PROC. art. 11.071 § 5(a)(1) (requiring an

applicant to show that “the current claims and issues have not been and could

not have been presented previously” because “the factual or legal basis for the

claim” was previously unavailable) (emphasis added). That an applicant can

demonstrate new facts and/or new law relevant to one specific claim—for

example, the unknowing use of false evidence, under Chabot—does not entitle

him to also raise other claims that involve different legal questions and/or for

which his new facts do not make out a prima facie case for relief. See Ex parte

Oranday-Garcia, 410 S.W.3d 865, 868 (Tex. Crim. App. 2013) (recognizing

that, under Section 5(a)(1) of Article 11.071, “a subsequent writ applicant must

allege facts sufficient to make out at least a prima facie case for relief under

whatever new law he is attempting to invoke”).

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based on Chabot. 7

I now regret having joined the Court’s 2017 order to the extent

that it authorized the convicting court to address the merits of

Applicant’s first claim. Ex parte Gallo, 2017 WL 562724, at *1. 8

III. WHY A PREPONDERANCE STANDARD?

I presume that because the Court believes Applicant is properly

proceeding on his free-standing ID claim under Section 5(a)(1), it

measures the merits of that claim by a preponderance-of-the-evidence

standard. 9 But because I now disagree that Applicant has alleged any

relevant new law with respect to that claim, nor has he alleged new facts

7 Because they were decided after Applicant filed this subsequent writ

application in 2016, Applicant could not have invoked the subsequent United

States Supreme Court decisions in Moore v. Texas, 581 U.S. 1 (2017), or Moore

v. Texas, 586 U.S. ___, 139 S. Ct. 666 (2019). And while Hall v. Florida, 572

U.S. 701 (2014), had been decided, Applicant does not explicitly identify it as a

new legal basis to conduct a de novo review of the issue of his ID, under Section

5(a)(1) of Article 11.071. Perhaps he may raise the issue in yet another

subsequent writ application, but he has alleged no new legal basis for a de novo

determination of ID in the present pleading.

8 The Court has said that, even after it has remanded a subsequent writ

application under Article 11.071, Section 5(c), for the convicting court to

develop the facts, see note 3, ante, we remain at liberty to revisit the propriety

of the remand once the case returns to us. See Ex parte Hood, 211 S.W.3d 767,

773 (Tex. Crim. App. 2007) (“If we determine that [the requirements of Section

5(a) of Article 11.071] are not met, we must dismiss the [subsequent]

application, even if we had previously remanded the claim on the basis of an

initial determination [under Section 5(c)] that the requirements had in fact

been met.”).

9 After all, a subsequent capital habeas applicant who can show that his

claim is predicated on new law or new facts that he could not have raised in an

earlier writ application should not be bound to produce proof any greater than

an initial habeas applicant ordinarily would, typically, a preponderance of the

evidence. E.g., Ex parte Torres, 483 S.W.3d 35, 43 (Tex. Crim. App. 2016).

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that would necessarily authorize us to conduct a de novo review of

anything more than the Chabot-based false-evidence claim, I am

convinced that applying a preponderance standard is inappropriate.

Although Applicant raised ID at trial, he failed to raise it again

as a substantive issue in his initial writ application. Without new law or

compelling new facts to authorize Applicant to raise the issue in a

subsequent writ, having failed to raise it in his initial writ application

when he could have, it would seem that Applicant should have to satisfy

Section 5(a)(3) of Article 11.071. 10 This Court has construed that

provision to require a showing, by clear and convincing evidence, that

“no rational jury would fail to find” an applicant to be ID. Ex parte Blue,

230 S.W.3d 151, 162 (Tex. Crim. App. 2007). It seems to me that, if the

Court is going to entertain the merits of the free-standing ID claim at

all, it should apply the Blue standard. And I am far from sure I believe

Applicant has satisfied that standard, under any view of the case.

IV. WHY THE DSM-5-TR?

The diagnostic manual with reference to which the United States

Supreme Court first determined that execution of the mentally retarded

violates the Eighth Amendment, in Atkins, was the DSM-IV-TR, which

issued in 2000. That was still the current manual at the time of

Applicant’s trial, when the issue of his ID was first litigated. The DSM-

10 Under Section 5(a)(3) of Article 11.071, in order to raise a claim in a

subsequent writ application, an applicant must allege “sufficient specific facts”

to show, “by clear and convincing evidence, [that,] but for a violation of the

United States Constitution[,] no rational jury would have answered in the

state’s favor one or more of the special issues that were submitted to the jury”

under the relevant statute governing capital punishment proceedings. TEX.

CODE CRIM. PROC. art. 11.071 § 5(a)(3).

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IV-TR was still the manual in effect when we determined that the

evidence was factually sufficient to support the jury’s ID verdict on

direct appeal, in 2007. By the time Applicant filed this subsequent

application, in 2016, however, the applicable diagnostic manual was the

DSM-5, from 2013.

Today this Court determines that Applicant is intellectually

disabled according to the diagnostic criteria from an even more recent

manual, the DSM-5-TR, copyright date 2020. But as I have elsewhere

argued:

changes in the manuals should not be thought to

automatically translate into a national consensus about

the tolerance of the death penalty under the Eighth

Amendment. Just because the professional consensus

defining intellectual disability (if that is even what the

manuals reflect[11]) has evolved, that does not necessarily

mean that society’s standard of decency pertaining to the

propriety of the death penalty has evolved to the same

extent. It seems to me that whether society’s standard has

also evolved remains to be determined, either by this Court

or by the United States Supreme Court.

11 The successive manuals may not even accurately reflect the

consensus of the psychiatric profession itself, much less the consensus of

society. It has recently been observed that “[e]ven seemingly small changes to

the [DSM] manual ([e.g.], to symptomatology of previously included disorders)

can have a substantial impact on increasing the number of people who would

receive a diagnosis[,]” and thus “lead to overdiagnosis[.]” Lauren C. Davis, et

al., Undisclosed Financial Conflicts of Interest in DSM-5-TR: Cross Sectional

Analysis 384 BMJ 5 (2024), https://dx.doi.org/10.1136/bmj-2023-076902. For

this Court to uncritically adopt the latest expression of the apparent consensus

of the psychiatric community as to the appropriate diagnostic criteria for ID,

overinclusive though that expression may be, constitutes an abdication of the

Court’s judicial role, as required by the United States Supreme Court, to

determine the consensus of American society with respect to who may and may

not be executed for a capital crime consistent with the Eighth Amendment.

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Ex parte Long, 670 S.W.3d 685, 686 (Tex. Crim. App. 2023) (Yeary, J.,

dissenting) (citing Ex parte Segundo, 663 S.W.3d 705, 712−15 (Tex.

Crim. App. 2022) (Yeary, J., dissenting)). 12 It is not at all clear to me

that a diagnosis of ID under the most recent manual necessarily means

that the death penalty is constitutionally unacceptable.

V. WHY NOT RESOLVE THE FALSE EVIDENCE CLAIM?

This Court has occasionally conducted a de novo resolution of the

issue of ID in post-Atkins cases in which the issue was first resolved by

a jury at the trial level. I have long urged the Court to explicitly

determine whether the proper disposition of such post-Atkins-tried

habeas cases ought to be “to remand the case to the convicting court for,

12 Moreover, at a certain point, this endless revisiting of the same issue

becomes simply intolerable. Suppose a capital defendant were to raise ID at

trial, and that all of the expert testimony at trial with respect to ID was

predicated on the then-current version of the DSM—let’s say, the DSM-IV-TR.

Suppose that the jury rejected the defendant’s ID claim. Suppose, then, that

on appeal the defendant argued that the jury’s rejection of his ID claim was

against the great weight and preponderance of the evidence. Suppose, also,

that during the interim between trial and appeal, a new diagnostic manual

issued—the DSM-5. Which diagnostic manual should this Court then rely on

in making the appellate determination whether the jury verdict was against

the great weight and preponderance of the evidence?

Suppose, finally, that the defendant were to bring a claim in his initial

post-conviction writ application, asking this Court to re-determine the

question of his ID de novo, and that by this time the DSM-5-TR has come out:

Should the Court even entertain such a claim, and if so, must we apply the

DSM-5-TR? Will we have to once again re-examine the ID issue, de novo, in a

subsequent writ application whenever the DSM-6 comes out? And then again

when the DSM-6-TR issues? When will it end? As I observed in Segundo, “it

violates at least the spirit, if not the letter, of Article 11.071’s abuse-of-the-writ

principle to permit this kind of serial litigation—rehashing the same issue,

over and over—before the State may carry out its otherwise legitimately

obtained judgment.” 663 S.W.3d at 716 (Yeary, J., dissenting).

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if not an altogether new punishment hearing before a jury, at least

another jury determination of the ID issue[.]” Ex parte Lizcano, 607

S.W.3d 339, 341 (Tex. Crim. App. 2020) (Yeary, J., dissenting). See also

Segundo, 663 S.W.3d at 711−12 (Yeary, J. dissenting); Long, 670 S.W.3d

at 686 (Yeary, J. dissenting). The Court continues to avoid addressing

this question.

Were the Court today to limit its consideration to the merits of

Applicant’s third claim—the Chabot-based false evidence claim—and

then go on to grant relief on that basis, I presume this would be exactly

the way it would dispose of the case: to send it back to the trial court for

a new punishment hearing (or at least a new hearing to resolve the ID

claim) in the trial court, 13 unpolluted by the alleged false evidence. Ex

parte Ghahremani, 332 S.W.3d 470, 483 (Tex. Crim. App. 2011). In my

view, the Court should limit its review of this subsequent writ

application to Applicant’s third claim and, in the event that it should

13 In Lizcano I observed:

The procedures governing the determination of the ID issue at

trial remain wholly court fashioned. Despite our most earnest

entreaties, the Texas Legislature has yet to produce any

legislative guidance. See In re Allen, 462 S.W.3d 74, 53−54 (Tex.

Crim. App. 2015) (“In terms of issues surrounding intellectual

disability, we still find ourselves in the same ‘interregnum’ that

existed in 2004. * * * We now make explicit what we before

expressed only tacitly: Legislation is required.”) In the absence

of legislative guidance, perhaps this Court would be free to

remand the cause, not for an entirely new punishment

proceeding under [TEX. CODE CRIM. PROC. Article] 44.29(c), but

for a new jury determination of the ID issue.

607 S.W.3d at 341 n.7.

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determine that claim to have merit, remand to the trial court for further

proceedings.

VI. CONCLUSION

In brief, the Court mistakenly addresses the merits of Applicant’s

free-standing ID claim and employs the wrong standard, as well as the

wrong diagnostic manual, to resolve that claim. What it should do

instead is to simply address Applicant’s Chabot-based false evidence

claim and, if it should find merit there, remand his case for a new ID

hearing in the trial court. Otherwise, the Court should deny relief.

Because the Court instead—once again—simply grants relief, without

taking adequate account of the continually evolving standards for

diagnosing intellectual disability or paying heed to the history and

procedural posture of the case, I respectfully dissent.

FILED: April 17, 2024

PUBLISH