Petition for Writ of Certiorari — David Wood, Petitioner v. Texas

Supreme Court briefMay 10, 2019

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No. __________

In The

Supreme Court of the United States

____________________________

DAVID LEONARD WOOD,

Petitioner,

THE STATE OF TEXAS,

Respondent.

____________________________

APPENDICES

TO PETITION FOR WRIT OF CERTIORARI

TO THE TEXAS COURT OF CRIMINAL APPEALS

____________________________

THIS IS A CAPITAL CASE.

____________________________

GREGORY W. WIERCIOCH

Member, Supreme Court Bar

WISCONSIN INNOCENCE PROJECT

FRANK J. REMINGTON CENTER

UNIVERSITY OF WISCONSIN LAW SCHOOL

975 BASCOM MALL

MADISON, WISCONSIN 53706

(608) 263-1388

GREGORY.WIERCIOCH@WISC.EDU

APPENDICES

APP. A

Ex parte Wood, 568 S.W.3d 678

(Tex. Crim. App. 2018).

APP. B

Ex parte Wood, WR-45,746-02

(Tex. Crim. App. Nov. 26, 2014).

APP. C

Habeas Court’s Findings of Fact and

Conclusions of Law, Ex parte Wood,

No. 58,486-171 (171 Dist. Ct. ct. 1,

2013).

Ex parte Wood, 568 S.W.3d 678 (2018)

2018 WL 6521581

intellectual disability, which would have

precluded imposition of death penalty, where low

end of error range for his comprehensive IQ test

was above 70 and there was evidence of

malingering.

568 S.W.3d 678

Court of Criminal Appeals of Texas.

EX PARTE David WOOD, Applicant

NO. WR-45,746-02

Delivered: December 12, 2018

Cases that cite this headnote

Synopsis

Background: Petitioner, who had been sentenced to death,

filed subsequent application for writ of habeas corpus. The

Court of Criminal Appeals remanded case. The 171st

District Court, El Paso County, No. 58486-171-2, denied

relief. The Court of Criminal Appeals again denied relief.

Petitioner filed suggestion of reconsideration.

Holdings: On grant of reconsideration, the Court of

Criminal Appeals, Keller, P.J., held that:

[1]

petitioner did not meet test for intellectual disability, and

[2]

remand was not warranted for petitioner to put on new

evidence or for additional findings of fact.

[2]

Habeas Corpus

Sentence and punishment

Remand was not warranted for habeas petitioner,

who had been sentenced to death, to put on new

evidence or for additional findings of fact after

legal analysis for reviewing intellectual-disability

claims had changed; petitioner’s defense team

failed to offer expert testimony at habeas hearing,

evidence relating to intellectual disability was

already in record, and there was no reasonable

likelihood that habeas court’s recommendation to

deny relief would change.

Cases that cite this headnote

Relief denied.

Newell, J., filed concurring opinion in which Keller, P.J.,

and Hervey and Keel JJ., joined.

Alcala, J., filed dissenting opinion.

Attorneys and Law Firms

Walker, J., dissented.

Procedural Posture(s):

Conviction Review.

Appellate

Review;

Post-

West Headnotes (2)

[1]

*679 ON APPLICATION FOR A WRIT OF HABEAS

CORPUS, IN CAUSE NO. 58486-171-2 IN THE 171ST

DISTRICT COURT, EL PASO COUNTY

Gregory W. Wiercioch, Texas Bar No. 00791925,

University of Wisconsin Law School, 975 Bascom Mall,

Madison, Wisconsin 53706, for Applicant.

Tina J. Miranda, Assistant District Attorney/Assistant

Attorney General, State Bar No. 24026139, P.O. Box

12548, Capitol Station, Austin, Texas 78711-2548, Stacey

Soule, State’s Attorney, Austin, for the State.

Sentencing and Punishment

Persons with psychiatric disabilities

Opinion

Capital murder defendant did not meet test for

Keller, P.J., delivered the opinion of the Court in which

APPENDIX A

Ex parte Wood, 568 S.W.3d 678 (2018)

2018 WL 6521581

Keasler, Hervey, Yeary, Newell and Keel, JJ., joined.

**1 Applicant filed a subsequent application claiming that

he was exempt from the death penalty due to intellectual

disability1 and that due process required that he be given

tools and a hearing to more fully establish his intellectualdisability claim. We remanded the case for the habeas court

to consider these claims.2 Upon receiving the case back

from the habeas court, we considered Applicant’s

allegations and denied relief upon the habeas court’s

findings and our own review.3 After the Supreme Court’s

decision in

Moore v. Texas,4 Applicant filed a

suggestion that we reconsider his application on our own

initiative. Having reviewed the record in this case in light

Moore v. Texas and our own subsequent decision of

Ex parte Moore,5 we conclude that no further record

*680 development or fact findings are needed and that

Applicant is not entitled to relief.

The habeas court’s findings of fact were extensive. Some

of those findings, 280 through 322, discussed the

Briseno6 factors and possible alternate causes of any

adaptive deficits and are no longer viable after the Moore

cases.7 Nevertheless, the habeas court’s denial of relief

remains amply supported by findings 1 through 279. We

further explain our reasoning below.

Malingering

**2 Moreover, the habeas court believed Dr. Allen’s

testimony that the validity of Applicant’s score of 75 was

in question due to strong evidence that Applicant exerted

poor effort during the tests.11 This belief was supported by

the results of two tests for malingering—results that were

not even close to what would be expected to show adequate

effort on the tests. This poor effort could affect IQ scores

by as much as a standard deviation (fifteen points) or

more.12 Applicant’s writing and vocabulary in various

letters also appeared to be at odds with his low test scores.13

The habeas court found that Applicant was malingering

during the test conducted by Dr. Allen and that the IQ score

of 75 under-reports Applicant’s true intelligence.14

Because the only test with any validity yielded an IQ score

that, even accounting for standard measurement error, is

not *681 within the range for intellectually disabled

persons and because even that score appears to understate

Applicant’s intelligence due to the strong evidence of

malingering, Applicant has failed the first prong of the

intellectual-disability framework, and there is no need to

conduct an adaptive-deficits inquiry.15 But even if we were

required to engage in such an inquiry, the habeas court’s

findings make clear that Applicant also fails to show the

requisite adaptive deficits.

Adaptive Deficits

IQ Tests

[1]

In findings 1 through 73, the habeas court discussed

Applicant’s IQ tests. His IQ scores ranged from 64 to 111.

However, the only test that the habeas court could conclude

was comprehensive and conducted properly was the one

conducted by Dr. Thomas Allen in 2011. This test yielded

a full scale IQ score of 75,8 with a measurement error range

of 71 to 80 (-4, +5).9 Because the low end of the error range

is above 70, Applicant’s score does not meet the first prong

of the DSM-5 test for intellectual disability (deficits in

general mental abilities).10

In findings 102 through 279,16 the habeas court

comprehensively

discussed

Applicant’s

adaptive

functioning. The habeas court concluded that the record

fails to support the existence of adaptive deficits in the

areas of functional academics,17 communication,18 selfcare,19 home living and money management,20 social and

interpersonal skills,21 use of community resources,22 selfdirection,23 work,24 leisure activities,25 and health and

safety.26 The habeas court also explained specifically why

the testimony of Applicant’s witnesses—a fourth grade

teacher, a childhood friend, and Applicant’s sister—failed

to support a conclusion that Applicant suffered from

adaptive deficits.27 On this record and under the habeas

court’s findings, Applicant has failed to show adaptive

deficits indicative of intellectual disability.

Ex parte Wood, 568 S.W.3d 678 (2018)

2018 WL 6521581

Remand for a New Hearing or Findings

[2]

Sometimes we allow an applicant to put on new evidence

on remand when there was no reason or opportunity to put

on the relevant evidence earlier. There is no reason to allow

Applicant to put on new evidence. The Moore decisions

changed the legal analysis for reviewing intellectualdisability claims in Texas, but Applicant’s evidence

relating to intellectual disability is already in the record.

Applicant had plenty of incentive during the proceedings

associated with his second habeas application to present all

available witnesses to support his intellectual-disability

claim. As the habeas court pointed out, Applicant’s defense

team was given funds to hire an expert witness but failed

to offer expert testimony at the habeas hearing.28 Even now,

in his suggestion that the Court grant *682 rehearing on its

own initiative, Applicant does not contend that he should

be given the opportunity to submit new evidence. A

remand to allow the opportunity to further develop the

evidence is simply unwarranted.

**3 Nor is a remand warranted for additional findings of

fact. Striking findings 280 through 322 would bring the

habeas court’s findings in compliance with the Moore

decisions, and given the extensive nature of the fact finding

contained in findings 1 through 279, there is no reasonable

likelihood that the habeas court’s recommendation to deny

relief would change, nor would there be any support for

such a change in light of those findings.

Newell, J., filed a concurring opinion in which Keller, P.J.,

Hervey and Keel JJ., joined.

In deciding that intellectually disabled individuals are

categorically exempt from the death penalty, the United

States Supreme Court effectively held that a clinical

determination of intellectual disability lessens the moral

culpability of a defendant. In

Atkins v. Virginia, for

example, the Court explained that the only disagreement

about the execution of intellectually disabled offenders was

determining who is, in fact, intellectually disabled.1 The

Court acknowledged that “[n]ot all people who claim to be

[intellectually disabled] will be so impaired as to fall within

the range of [intellectually disabled] offenders about whom

there is a national consensus.”2 Later, in

Hall v.

Florida, the Court observed that defining “intellectual

disability” is necessary to implement the principles and

holding of

Atkins, including the principle that “[t]he

diminished capacity of the intellectually disabled lessens

moral culpability.”3 In short, the Court believes that

deficiencies attendant to intellectual disability do not

warrant exemption from criminal sanctions; they simply

diminish the personal culpability of the intellectually

disabled.4 But a clinical diagnosis has nothing to do with

determining moral culpability. This case is a prime

example of why “clinicians, not judges, should determine

clinical standards; and judges, not clinicians, should

determine the content of the Eighth Amendment.”5

Conclusion

We grant reconsideration on our own initiative to consider

Applicant’s case in light of

Moore v. Texas and

parte Moore.29 We adopt findings 1 through 279, reject

findings 280 through 322, and deny relief.

Newell, J., filed a concurring opinion in which Keller, P.J.,

and Hervey and Keel, JJ., joined. Alcala, J., filed a

dissenting opinion. Walker, J., dissented. Richardson, J.,

did not participate.

Atkins v. Virginia, the Court relied upon the

“consistency of the direction of change” by state

legislatures regarding the execution of intellectually

disabled offenders to conclude that the only “serious

disagreement” on the issue centered *683 around how to

determine whether a capital-murder defendant is

intellectually disabled.6 Then, the Court gave two reasons

why intellectually disabled offenders should be

categorically excluded from execution. First, the Court

explained that executing a defendant who has been

clinically diagnosed as intellectually disabled does not

Ex parte Wood, 568 S.W.3d 678 (2018)

2018 WL 6521581

further the goal of “retribution” normally used to justify

imposing the death penalty.7 This argument assumes the

lessened moral culpability of someone who is intellectually

disabled.8

**4 The second justification offered by the Court was that

executing a defendant diagnosed as a intellectually

disabled would not further the goal of “deterrence.”9 The

Court gave the following explanation:

Exempting the [intellectually disabled] from that

punishment will not affect the “cold calculus that

precedes the decision” of other potential murderers.

Indeed, that sort of calculus is at the opposite end of the

spectrum from behavior of [intellectually disabled]

offenders. The theory of deterrence in capital sentencing

is predicated upon the notion that the increased severity

of the punishment will inhibit criminal actors from

carrying out murderous conduct. Yet it is the same

cognitive and behavioral impairments that make these

defendants less morally culpable—for example, the

diminished ability to understand and process

information, to learn from experience, to engage in

logical reasoning, or to control impulses—that also

make it less likely that they can process the information

of the possibility of execution as a penalty and, as a

result, control their conduct based upon that

information.10

The Court also pointed to the danger that intellectually

disabled defendants could face wrongful execution.

According to the Court, “[Intellectually disabled]

defendants may be less able to give meaningful assistance

to their counsel and are typically poor witnesses, and their

demeanor may create an unwarranted impression of lack of

remorse for their crimes.”11

II.

But the methodical way in which Applicant, by himself,

carried out his crimes paints the exact opposite picture.

Applicant raped and murdered six women between

September 4, 1987 and March 14, 1988.12 All of the

victims’ bodies were found buried in shallow graves in the

same desert area northeast of El Paso. They were all

approximately 30 to 40 yards from one of the dirt roadways

in the desert. Four of the bodies were found in various *684

states of undress, indicating that the killer had sexually

abused them. Five of the victims were seen by witnesses

on the day of their disappearance accepting a ride from a

man with either a red Harley-Davidson motorcycle or a

beige pickup truck. Applicant owned two vehicles

matching those descriptions. Witnesses identified

Applicant as the last person seen with four of the victims.

Applicant also kept a burnt orange blanket and some

shovels in the back of his pickup truck. Orange fibers found

on one of the victim’s clothing matched orange fibers taken

from a vacuum cleaner bag that Applicant and his thengirlfriend left in their old apartment.

**5 But a seventh victim survived. Judith Kelly, a

prostitute and heroin addict, testified that in July 1987 she

had been walking outside a convenience store in the

northeast part of El Paso when Applicant asked her if she

needed a ride. Kelly got in Applicant’s truck, but Applicant

did not drive her home. Instead, he stopped at an apartment

complex and went inside while she stayed in the truck.

When he returned, she noticed a piece of rope hanging from

one of his pockets. Applicant drove towards the desert, and,

after driving around awhile, stopped the truck, got out, and

ordered Kelly out as well.

Kelly saw Applicant get a “brownish red” blanket and

shovel out of the back of his truck. Applicant then tied

Kelly to the front of his truck while he proceeded to dig a

hole behind some bushes. This took ten to fifteen minutes.

Applicant then returned with the blanket and forced Kelly

to the ground, ripping her clothes. However, Applicant

stopped when he heard voices. He ordered Kelly back into

the truck and drove to a different location in the desert.

Applicant stopped his truck again, ordered Kelly out,

spread the blanket on the ground, and forced Kelly to

remove her clothes. He then gagged her, tied her to a bush,

and raped her. Immediately afterwards, Applicant stated he

heard voices again. He threw his belongings back into the

truck and drove away. He left Kelly naked in the desert.

His last words to her were “[A]lways remember, I’m free.”

Applicant told his cellmate, Randy Wells, about the

murders. Applicant described the victims as topless

dancers or prostitutes and detailed how he would lure each

girl into his pickup truck by offering her drugs. Then,

according to Applicant, he would drive out into the desert,

tie the victim to his truck, and dig her grave. Then, he

would tie her to a tree and rape her. James Carl Sweeney,

Jr., another cellmate, testified that Applicant had kept news

clippings about the murders. Applicant confessed to

Sweeney, Jr., that he had committed those murders.

Ex parte Wood, 568 S.W.3d 678 (2018)

2018 WL 6521581

III.

And yet, Applicant argues that he is categorically exempt

from the death penalty because, under clinical diagnostic

criteria, he is intellectually disabled. As the habeas court

noted, Applicant’s IQ scores range between 64 to 111. The

Supreme Court has recently explained that we are not

allowed to look at “sources of imprecision in administering

the test to a particular individual” to narrow the testspecific standard-error range.13 The Court made this

observation to reject the argument that courts can consider

factors “unique” to the test-taker when evaluating multiple

IQ tests.14

Here, the habeas court relied primarily upon the test

administered by Dr. Thomas *685 Allen resulting in an IQ

score of 75 because it was the only test that was

comprehensive and conducted properly. The habeas

court’s observations in this regard seem to place weight on

the score of 75 not because of factors “unique” to the testtaker, but because the methodology for that test was the

most scientifically reliable. But Dr. Allen also questioned

whether that test undersold Applicant’s actual IQ because

of the possibility that Applicant was malingering. This

would seem to rely upon the type of factors “unique” to the

test-taker that the Supreme Court believes we should not

consider. So would placing less weight on the other tests

for similar reasons.

With regard to the evidence of adaptive deficits, the habeas

court thoroughly details the evidence related to adaptive

deficits in the areas of functional academics,

communication, self-care, home-living and money

management, social and interpersonal skills, use of

community resources, self-direction, work, leisure

activities, and health and safety. Certainly this evidence

shows how Applicant has many adaptive strengths. But the

Supreme Court, in rejecting our reliance upon the infamous

“ Briseno factors,” noted that we are supposed to avoid

lay perceptions and stereotypes regarding intellectual

disability.15 Further, we are required to focus upon adaptive

deficits without placing “undue emphasis” upon adaptive

strengths.16

evidence showing Applicant’s adaptive strengths, but a

dearth of evidence demonstrating adaptive deficits. If we

completely ignore the existence of evidence demonstrating

adaptive strengths, then this aspect of the inquiry becomes

nothing more than a legal choice to credit only mitigation

evidence that provides “a basis for a sentence less than

death”17 regardless of the strength of evidence

demonstrating a defendant’s moral blameworthiness. It

would seem to contradict the Supreme Court’s requirement

that the definition of intellectual disability be calibrated to

only include those whose degree of intellectual disability

falls within a national consensus regarding moral

blameworthiness.18 On the other hand, we cannot rely

solely upon the testimony of “a fourth grade teacher, a

childhood friend, and Applicant’s sister”19 to determine

adaptive deficits because that approach is built upon lay

stereotypes of the intellectually disabled.20 Ultimately,

Moore does not prohibit courts from considering adaptive

strengths; it only prohibits placing “undue” emphasis upon

them.21 I do not believe that the habeas court, or this Court,

has placed undue emphasis on Applicant’s adaptive

strengths in this case.

IV.

In the end, I join this Court’s opinion because I do not

believe Applicant has *686 proven that the categorical

exemption from the death penalty applies to him. The

Court rejects Applicant’s intellectual disability claim by

applying current diagnostic standards. But to the extent that

Applicant can build a claim of intellectual disability upon

the shifting sands of clinical psychological standards

detailed in Moore, this case demonstrates that the

determination of intellectual disability has become

untethered from the original rationale for the exception to

the imposition of the death penalty announced in

Atkins. Applicant is not intellectually disabled. He is a

serial killer.

With these thoughts, I join the Court.

**6 Here, the habeas court noted a great amount of

Ex parte Wood, 568 S.W.3d 678 (2018)

2018 WL 6521581

DISSENTING OPINION

than him.

Alcala, J., filed a dissenting opinion.

Unlike this Court’s majority opinion that declines to

reconsider the -02 habeas application filed by David Wood,

applicant, I would instead reopen the application on our

own motion and remand it to the habeas court for further

proceedings. I conclude that applicant’s intellectual

disability claim that was rejected by this Court in 2014

must be reconsidered in light of the Supreme Court’s recent

decision in

Moore v. Texas, ––– U.S. ––––, 137 S.Ct.

1039, 197 L.Ed.2d 416 (2017). Because I would order the

habeas court to address applicant’s instant claim that the

prior assessment of his intellectual disability failed to

conform with the diagnostic framework endorsed by the

Supreme Court in

Moore, I respectfully dissent.1 I

explain my conclusion by reviewing applicant’s arguments

and why I find the majority opinion’s analysis

unpersuasive.

I. Applicant’s Arguments

Applicant asserts that he has significantly subaverage

general intellectual functioning and adaptive deficits such

that his execution would violate the Eighth and Fourteenth

Amendments. Applicant presented evidence at the 2011

Atkins2 hearing before the convicting court showing that

he had IQ scores of 64, 71, and 75, obtained from the

administration of WAIS instruments.3 These low IQ test

results are consistent with his performance as a young

student. He failed the first, third, and ninth grades, he

attended special education classes, and he eventually

dropped out of school in the ninth grade at the age of

seventeen, at which time he was three years behind his

peers in school. He could not read a clock or tell time, even

as a teenager. His fourth grade teacher testified that in her

thirty-five years of teaching approximately 900 students,

applicant was the sole person whom she had required to sit

next to her desk because he needed her to personally

explain things to him repeatedly. Applicant’s problems in

school included the absence of close friends and his

association with children who were several years younger

II. Analysis

**7 In declining to remand this claim to the habeas court

for further consideration, this *687 Court’s majority

opinion employs the same type of incorrect intellectual

disability analysis that it has been conducting mistakenly

for over a decade since issuing its opinion in

Ex parte

Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004). The instant

majority opinion continues to selectively focus on only the

IQ scores and adaptive strengths that would support a

determination that applicant is not intellectually disabled,

despite current medical standards suggesting that this is an

inappropriate

approach

intellectual-disability

determinations.

This Court’s majority opinion cherry picks certain IQ

scores and treats those scores as dispositive evidence of a

lack of intellectual disability. This Court’s majority

opinion acknowledges that applicant’s IQ scores range

from 64 to 111, but it dismisses low IQ scores that would

indicate subaverage general intellectual functioning as the

product of malingering. It uncritically assumes the validity

of applicant’s higher IQ scores without addressing whether

the methods used to obtain those scores would still comport

with current medical diagnostic criteria. And perhaps more

importantly, this Court’s cherry-picked IQ score of 75

provides a worst-case scenario IQ score of 71 based on the

“measurement error range.” This score is only one point

above the cutoff score that would place someone in the

range of intellectually disability, when the low end of the

IQ score error range is 70 or below. Under the current

medical diagnostic framework, it is inappropriate to decide

that someone is not intellectually disabled by using a strict

cutoff score taken from a cherry picked IQ test.

I agree with applicant that

Hall recognized that an IQ

score is imprecise and should not be read as a single, fixed,

infallible number but rather as a range determined by a

standard error of measurement. See

Hall v. Florida,

572 U.S. 701, 712, 134 S.Ct. 1986, 188 L.Ed.2d 1007

(2014). I also agree that

Hall instructed courts to

consider the professional consensus of the medical

community in evaluating intellectual disability and that the

Ex parte Wood, 568 S.W.3d 678 (2018)

2018 WL 6521581

medical community would not find that applicant is not

intellectually disabled merely because his low-end result

on one IQ test placed him one point above the range for a

diagnosis of intellectual disability. Rather, looking at the

range of scores, I conclude that it is necessary to consider

whether there is also evidence of adaptive deficits before it

could be ultimately determined whether applicant is

intellectually disabled.

Id.

Furthermore, the habeas court’s fact findings regarding

adaptive deficits are inadequate even if this Court

disregards those findings that directly discuss

Briseno.

This Court’s majority opinion acknowledges that the

habeas court’s fact findings and conclusions took into

account diagnostic standards that are no longer accepted by

the medical community, as well as considered the nonmedical

Briseno factors that the Supreme Court

expressly rejected in

Moore. See

137 S.Ct. at 1051.

The majority opinion suggests that there is enough

information in the fact findings numbered one through 279

that it adopts in this case and that it suggests are not based

on the

Briseno factors. I respectfully disagree because,

despite the majority opinion’s suggestion, these findings

adopted by this Court’s majority opinion improperly focus

on applicant’s adaptive strengths and his abilities in a

controlled prison setting. For example, the habeas court

found that someone with intellectual disability would not

be able to “write coherent, correct sentences with decent

punctuation,” use sophisticated “words like ‘specialist,’ ”

or communicate lucid *688 thoughts in written letters.4

However, clinical experts have counseled against viewing

the presence of adaptive strengths as evidence of the

absence of adaptive weaknesses. Further, they caution

against considering adaptive strengths arising in controlled

settings like a prison. Additionally, the habeas court found

that applicant’s troubles in school could be due to factors

other than intellectual disability, such as “dyslexia or

trouble reading, a poor home life, or being held back a

grade.”5 The Supreme Court in

Moore expressly

recognized that other mental or physical impairments are

common comorbidities in intellectually disabled persons

and are “not evidence that a person does not also have

intellectual disability.”

Moore, 137 S.Ct. at 1051.

Because the convicting court’s fact findings and

conclusions fail to comport with the current medical

diagnostic framework, this Court’s majority opinion

should not adopt them, and it should instead remand this

case for further evidentiary development and factual

findings under the proper standard.

III. Conclusion

**8 Because the Court declines to remand this case to the

convicting court for fact findings and conclusions of law

that comport with the current medical diagnostic

framework, I respectfully dissent.

All Citations

568 S.W.3d 678, 2018 WL 6521581

Footnotes

See

Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

Ex parte Wood, No. WR-45,746-02, 2009 WL 10690712, 2009 Tex. Crim. App. Unpub. LEXIS 841 (Tex. Crim. App. August 19, 2009)

(not designated for publication).

Ex parte Wood, No. WR-45,746-02, 2014 Tex. Crim. App. Unpub. LEXIS 1055 (Tex. Crim. App. November 26, 2009) (not designated

for publication).

––– U.S. ––––, 137 S.Ct. 1039, 197 L.Ed.2d 416 (2017).

548 S.W.3d 552 (Tex. Crim. App. 2018).

Ex parte Wood, 568 S.W.3d 678 (2018)

2018 WL 6521581

Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004).

Findings 280-322 may well contain some observations that are relevant to the issue of intellectual disability, but we need not

address whether any portion of them may be salvaged because the habeas court’s denial of relief remains amply supported even

without all of them.

The verbal comprehension score was 80 and the perceptual reasoning score was 86.

See Finding 35. Dr. Allen testified that the standard measurement error is not automatically plus or minus five. He explained that

the standard measurement error is “calculated for you in the manual” and depends on statistics.

See

Moore, 548 S.W.3d at 560 (“A score is indicative of intellectual disability if it is ‘approximately two standard deviations or

more below the population mean, including a margin for measurement error (generally +5 points).’ When the standard deviation

of the test is 15 and the mean is 100, a score that is two standard deviations below the mean will be “a score of 65–75 (70 ±5).”)

(emphasis added). See also Finding 35.

See Findings 40-60.

See Finding 37. Dr. Allen testified that it would be inappropriate to add 15 points to an IQ score to account for lack of effort in the

testing, but he considered this lack of effort and its possible effect to be a legitimate concern regarding the validity of Applicant’s

score of 75. We likewise decline to add points to an IQ score due to lack of effort but consider it as undermining the validity of the

score as an indicator of intellectual disability.

See Findings 61-68.

See Finding 70.

Cf.

Moore, 548 S.W.3d at 562 (“Because the score of 74 is within the test’s standard error of measurement for intellectual

disability (being within five points of 70), we must assess adaptive functioning before arriving at a conclusion regarding whether

Applicant is intellectually disabled.”).

Findings 74 through 101 discussed and rejected application of the “Flynn effect,” both as a general matter and—even assuming its

general validity—as applied to Applicant’s case.

Findings 153-68.

Findings 169-89.

Findings 190-95.

Findings 196-207.

Findings 208-26.

Findings 227-29.

Ex parte Wood, 568 S.W.3d 678 (2018)

2018 WL 6521581

Findings 230-42.

Findings 243-64.

Findings 265-72.

Findings 273-79.

Findings 105-52.

Finding 5 (“Additionally, although Applicant was provided with funds for an expert, and actually used those funds, he did not call

his own expert. Instead, Applicant attempted to impeach the State’s expert, Dr. Allen, and develop his claim thorough Allen’s

examination of Applicant. Dr. Allen agreed with very little, if any of Applicant’s assertions.”).

See supra at nn.4-5.

Atkins v. Virginia, 536 U.S. 304, 317, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

Id.

Hall v. Florida, 572 U.S. 701, 709, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014).

Atkins, 536 U.S. at 318, 122 S.Ct. 2242.

Moore v. Texas, ––– U.S. ––––, 137 S.Ct. 1039, 1054, 197 L.Ed.2d 416 (2017) (Roberts, C.J., dissenting).

Atkins, at 315-17, 122 S.Ct. 2242.

Id. at 319, 122 S.Ct. 2242.

Id. (“If the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the

lesser culpability of the [intellectually disabled] offender surely does not merit that form of retribution.”).

Id. (“With respect to deterrence—the interest in preventing capital crimes by prospective offenders—‘it seems likely that

“capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation.” ’ ”).

Id. at 319-20, 122 S.Ct. 2242 (internal citations omitted). In this regard, the Court appears to have justified its categorical

exemption upon the same type of lay perceptions of intellectual disability that should have “spark[ed] skepticism.” See

137 S.Ct. at 1051-52.

Moore,

Atkins, 536 U.S. at 320-21, 122 S.Ct. 2242.

Wood v. Quarterman, 503 F.3d 408, 410 (5th Cir. 2007), cert. denied, 552 U.S. 1314, 128 S.Ct. 1874, 170 L.Ed.2d 752 (2008).

Ex parte Wood, 568 S.W.3d 678 (2018)

2018 WL 6521581

Moore, 137 S.Ct. at 1049.

Id.

Id. at 1051-52.

Id. at 1052 n.9.

See

Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (quoting

Lockett v. Ohio, 438 U.S. 586, 607,

98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) ) (effectively defining what constitutes mitigating evidence by holding that the Eighth and

Fourteenth Amendments require that a jury not be precluded from considering mitigating evidence).

Atkins, 536 U.S. at 317, 122 S.Ct. 2242.

Majority op. at 681.

Moore, 137 S.Ct. at 1051-52 (rejecting

Briseno’s reliance upon lay perceptions of intellectual disability because the medical

profession has endeavored to counter lay stereotypes of the intellectually disabled).

See

id. at 1052 n.9.

It may be suggested that the facts of this offense are so extenuating and horrific that this Court should be permitted to ignore

Supreme Court precedent to ensure that bad people are punished regardless of their possible intellectual disability. The

determining factor for intellectual disability is not the type of crime or horrific nature of it. Rather, the issue is whether the

defendant is intellectually disabled under the appropriate legal framework pursuant to current medical diagnostic criteria. The

proper way to handle this case is to remand it to the habeas court so that the court that heard the facts can analyze it under the

proper legal framework as set out by the Supreme Court.

Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

Other testing placed applicant’s IQ at 111, 101, and 67.

Findings 62-66.

Findings 113-115.

End of Document

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

WR-45,746-02

EX PARTE DAVID LEONARD WOOD

ON APPLICATION FOR WRIT OF HABEAS CORPUS

CAUSE NO. 58486-171-2 IN THE 171 ST JUDICIAL DISTRICT COURT

EL PASO COUNTY

Per curiam.

ORDER

This is a subsequent application for writ of habeas corpus filed pursuant to the

provisions of Texas Code of Criminal Procedure Article 11.071, § 5.

In November 1992, Applicant was convicted of the offense of capital murder. The

jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure

Article 37.071, and the trial court, accordingly, set punishment at death. This Court

affirmed Applicant’s conviction and sentence on direct appeal. Wood v. State, No. AP-

APPENDIX B

Wood - 2

71,594 (Tex. Crim. App. Dec. 13, 1995)(not designated for publication). This Court

denied relief on Applicant’s initial post-conviction application for writ of habeas corpus.

Ex parte Wood, No. WR-45,746-01 (Tex. Crim. App. Sept. 19, 2001)(not designated for

publication).

Applicant presents two allegations in his application. First, he asserts that he is

mentally retarded and his execution would violate the United States Supreme Court’s

opinion in Atkins v. Virginia, 536 U.S. 304 (2002). Second, he asserts that due process

requires that he be given tools and a hearing to more fully establish his mental retardation

claim. These claims, which satisfy the requirements of Article 11.071, § 5, were

remanded to the trial court for consideration of those issues. The trial court held a

hearing and made findings of fact and conclusions of law recommending that this

application be denied because Applicant has failed to show that he is mentally retarded.

This Court has reviewed the record with respect to Applicant’s allegations. Based

upon the trial court’s findings and conclusions and our own review, we deny relief.

IT IS SO ORDERED THIS THE 26TH DAY OF November , 2014.

Do Not Publish

NO. 58486-171

EXPARTE

IN TH:E 1.llSTRJCT COURT

DA Vr'D LEONARD WOOD,

171sT Jl'CICIAL DIST.RlCT

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EL PASO COUNTY.11·'.XAS

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ORIGINAL

APPENDIX C

NO. 58486·171

EXPARTE

IN THE DISTRICT COURT

DAVID LEONARD WOOD,

171 5T JUDICIAL DISTRICT

Applicant

EL PASO COUNTY, TEXAS

INDEX

HISTORY OF THE CASE .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .. . . . . . . . . . . . . . .. . . . . ..

FINDINGS OF FACT ..................................................................

IQ Tests Administered From 1977 to 2011 . . . . . .. .. . . . . . . . . . . . . . . . . . . . . . . . . .

Burden of Proof and Standard of Review . . . . . .. . . . . . . . . . . .. . . . . . . . . . . .. . ..

Intellectual Functioning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Applicant's Evidence . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . .. . . .. . . . .. . . . . ...

State's Evidence........................................................

Dr. Richard Walker .. . . . . . . .. . . . . .. . .. .. . . . . . . . . . . . . . . ... . . . ...

Dr. Tom Allen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .. . . . . . . . . . . . . . . . . .

WAIS-IV and WRAT-4 Results...............................

Malingering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..

Applicant's Results on the WMT.. .. .... .. ............... .. . . ..

Applicant's Results on the TOMM ..............................

Other Evidence of Malingering . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . .

Dr. Allen's Conclusions About Applicant's IQ ..... .. . ... ......

The Flynn Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . .

Rules 201 and 702: Judicial Notice and Expen Testimony Analysis..

Rule 702 Ex pen Testimony Admissibility . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . .

Rule 20 I Judicial Notice .. . . . .. .. . . . . . . . . . . . . . . . .. . . . . .. . . . .. .. .. . . .. .. . . .. . . .

Judicial Notice Combined With Ex pen Testimony ...................... .

Appellate Decisions on Flynn . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . .

Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Even if the Flynn Effect is Found to be Valid, There Are Factual

Distinctions between Applicant & Cathey . . . . . . . . .. . . . . . . . . . . .....

Adaptive Deficits . . . . . . . .. . . .. . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...

Applicant's Evidence .. ... .. .... .. . . . . .. . ... .. . ...... ... .. ... . .. . ... ... . . ... . ..

Coletta DeArman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Keith Springer . . .. .. . .. .. .. .. .. . . .. . . . . . .. . .. . . .. . . . . . . ... . . . .. .. . . .. . .

Debbie Galvan . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

State's Evidence . . . . . .. . .. .. . . . . . .. . . . . . . . .. . . . . . . . . . . . . . .. . . . . . . .. . . .. . . . . . .. ..

DSM-IV Factors . . .. .. . . . . .. .. . .. . . .. . . .. . .. .... .. . .. . . . . . .. .. . . . . . .. ..

Functional Academics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Communication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Self-care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Home Living and Money Management . . .. . . . . .. .. . . .. . . . . . . . . . . .

Social and Interpersonal Skills . . . . . . . . . . . . . . . . .. .. . . . . . . . . . . . . . . . .

The Capital Murder Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . .

Use of Community Resources .. .. .. .. .. . .. . . .. . . . . .. .. .. .. . .. . .. . . . . . . . . . ..

Self-direction . . . . . . . . . . . . . . .. . . . . . . . .. . .. . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . .. . . . . .

Work..........................................................................

Leisure Activities . . . . . . . . . . . . . . .. . . . . . . . . . . .. . . . . .. . .. . . . . . . . . . . . . . . . . . . . .. . .

Health and Safety . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Did people around Applicant treat him as though he was mentally

retarded? . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Has Applicant formulated plans and carried them through, or is his

conduct impulsive?.....................................................................

Can Applicant exercise leadership or is he a follower? . . . . .. . . . .. . . .. . . ..

Is Applicant's conduct in response to external stimuli rational and

appropriate regardless of whether it is socially acceptable? ....

Can Applicant respond coherently, rationally, and on point to

oral or written questions? ......................................... .

Can Applicant hide facts or lie effectively in his own or others'

interests? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .

Whether the commission of the offense required forethought,

planning, and complex execution of purpose? . . .. . . . . . . . . . . .. . .

Alternate Causation . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .. . . . . . . . . . . .. . . . . .. . . . . . . . .

CONCLUSIONS OF LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . ...

ORDER........................................................................................

NO. 58486-171

EX PARTE

IN THE DISTRICT COURT

DAVID LEONARD WOOD,

171ST JUDICIAL DISTRICT

Applicant

EL PASO COUNTY, TEXAS

FINDINGS OF FACT,

CONCLUSIONS OF LAW,

RECOMMENDATIONS, AND ORDER

Applicant, David Leonard Wood, through his attorney, Greg Wiercioch, has filed a

subsequent application for post-conviction writ of habeas corpus pursuant to Article 11.071 of the

Texas Code of Criminal Procedure, collaterally attacking his conviction and sentence of death in

Cause No. 58486-171. TEX. CODE CRIM. PROC. art. 11.071 (West Supp. 2012).

Applicant contends he is mentally retarded, and thus his death sentence constitutes cruel

and unusual punishment. Atkins v. Virginia, 536 U.S. 304 (2002). Applicant asks this Court to find

that he is mentally retarded, which would result in the commutation of his death sentence into a life

sentence.

Having considered the testimony elicited during the live evidentiary hearing, all motions

and exhibits filed by the parties (and obtained by the Court), official court documents, and all state

Court records (including the original capital murder trial transcript), and the Court’s experience and

knowledge, this Court concludes that Applicant is not mentally retarded, and therefore

Applicant should not be granted the requested relief.

HISTORY OF THE CASE

Prior to rendering any findings of fact and conclusions of law on this matter a chronological

review of the case history will be helpful to the Court of Criminal Appeals (“CCA”).

Applicant

David Leonard Wood was indicted by an El Paso Grand Jury for the offense of Capital Murder

(multiple murders). The case was transferred to Dallas County on a change of venue and Applicant

was convicted of Capital Murder, and the death penalty was assessed in Dallas County in November

of 1992. Judge Peter Peca of the 171st District Court presided over that trial. In August of 2009

Applicant received a stay of execution just days before the scheduled execution.

The CCA

remanded the case back to the 171st District Court (Judge Bonnie Rangel, Presiding) after relief

from all prior writs and appeals had been previously denied. The stay Applicant obtained was based

solely on an Atkins claim raised in late 2009 by Applicant through the Texas Defender Service

(hereinafter referred to as “TDS,” represented by Greg Wiercioch).

Other than an Atkins hearing,

the District Court was not ordered to conduct any other hearings on any claims Applicant had

previously raised.

The State was represented by the AG’s Office due to a conflict that existed between the

District Attorney Elect (Jaime Esparza) and Applicant. Esparza was a Deputy Public Defender at

the time of Applicant’s indictment and during the preliminary stages of his capital case; however,

Applicant objected to that continued representation because Esparza had previously worked as an

Assistant District Attorney for El Paso County during the time several of the murders took place

that Applicant was alleged to have committed. As a result, Esparza withdrew from the case and was

replaced with another lawyer. Esparza subsequently became the District Attorney Elect for El Paso

County in 1993 and has remained in that position since that time. Applicant was subsequently

convicted of capital murder and sentenced to death in November of 1992. The election of Esparza

created yet another conflict, now for the State on appeal. As a result, the CCA appointed Jim

Vollers as the attorney pro tem to represent the State on appeal and post-conviction review.

The CCA affirmed Applicant’s conviction and sentence on direct appeal. Applicant v. State,

No. 71,594 (Tex. Crim. App. Dec. 13, 1995) (unpublished). No petition for writ of certiorari was

filed.

Applicant filed his first application for state post-conviction relief on December 19, 1997.

The CCA denied the application in 2001. Ex parte Applicant, No. 45,746-01 (Tex. Crim. App.

Sept. 9, 2001) (unpublished). On May 6, 2002, Applicant filed a federal habeas petition in the

United States District Court for the Northern District of Texas. The district court denied the petition

in 2006. Applicant v. Dretke, No. 3:01-2103 (N.D. Tex. June 2, 2006). Applicant sought a

certificate of appealability from the United States Court of Appeals for the Fifth Circuit. On

October 5, 2007, the Fifth Circuit denied the certificate. Applicant v. Quarterman, 503 F.3d 408

(5th Cir. 2007). On April 14, 2008, the Supreme Court denied Applicant’s petition for writ of

certiorari. Applicant v. Quarterman, No. 07-8610 (2008).

On August 18, 2009, Applicant filed a subsequent habeas application in the 171st District

Court in El Paso County, Texas, asserting that it would violate the Eighth and Fourteenth

Amendments to the United States Constitution to execute him because he is mentally retarded. See

Application for Post-conviction Writ of Habeas Corpus, Ex parte Applicant, Cause No. 58486-171.

On August 19, 2009, the CCA issued an order finding that the ground of Applicant’s

subsequent application asserting that he is a person with mental retardation, and therefore ineligible

for execution, satisfied the requirements of Section 5 of Article 11.071 of the Texas Code of

Criminal Procedure. COURT’S ATTACHMENT #1 Ex parte Applicant, No. 45,7406-02 (Tex.

Crim. App. Aug. 19, 2009) (unpublished). The CCA remanded Applicant’s Atkins claim to this

Court for a “live hearing.” Id. at 2.1

When the case was remanded for an Atkins hearing in 2009, Vollers was semi-retired and

did not have the resources to conduct an Atkins inquiry, so Erich Dryden, an Assistant Attorney

General for the State of Texas, took over that position.

After successfully obtaining a stay of execution in August of 2009, on remand to the trial

court, TDS attempted to withdraw from the case due to the limited resources and staff of their

office. Judge Rangel denied that request and indicated on the record that TDS would be provided

with all of the resources necessary to conduct an Atkins investigation and hearing.2

Following that hearing in September of 2009, TDS filed a motion to recuse Judge Rangel.

At the time she declined to voluntarily recuse herself; however, shortly after that denial, Judge

Rangel was involved in a car accident, and thus due to health complications she voluntarily

withdrew from the case. Judge Ables, Presiding Judge of the 6th Administrative Region, then

assigned the writ to Senior Judge Peter Peca of El Paso. From 1986 to 1998 Judge Peca was the

elected Judge of the 171st District Court and presided over the capital murder trial of Applicant in

1992. As a Senior Judge, Judge Peca was assigned to the case in late 2009. Following his

assignment, but prior to conducting any substantive hearings on the Atkins issues ordered by the

CCA, several significant matters took place that are not clearly reflected in the record. These

1 On October 6, 2011, Applicant filed a motion for post conviction DNA testing pursuant to Chapter 64. On December

7, 2011, this Court appointed its own expert to examine the tangible evidence in the possession of the El Paso Police

Department and determine whether it can be subjected to DNA testing. Because the examination of the evidence is

ongoing, the request for DNA testing is still pending at this time.

2 This was consistent with the remand order issued by the CCA from August, 2009, that the defense would “be given

tools and a hearing to more fully establish his mental retardation claim.” See Order attached to findings COURT’S

ATTACHMENT #1.

matters can be gleaned from a variety of motions and orders in the court’s file, in addition to the

information provided to Judge Bert Richardson upon assignment to the case in January of 2011.

First, based on the motion to withdraw filed by TDS at the onset of the case, Judge Peca

erroneously assumed that the TDS had no desire to be involved in the case, so he removed TDS

from the case and appointed the El Paso County Public Defender’s Office (EPPDO) without

notifying the TDS. Judge Peca’s rationale behind this decision was well founded. Applicant spent

most of his life in El Paso, and any evidence related to his Atkins claim would most likely be

discovered through friends, family, doctors, teachers and school districts in the El Paso area, in

addition to police and presentence reports, and juvenile records (given his criminal history in the El

Paso area). TDS is a 501(c)(3) organization that is supported by individual donations, grants from

foundations, and attorney’s fees. TDS is based out of the Austin area, and at the time they had no

fact investigators on staff. Their ability to conduct an in-depth investigation into any Atkins claims

in the El Paso area in 2009 was severely limited by their lack of resources and staff. The fact that

Applicant had already been on death row for 17 years and most of his school records dated back to

the late 60’s and early 70’s compounded TDS’s problems. The El Paso County Public Defender’s

Office (EPPDO) was in a much better position to investigate those claims given their staff and

proximity to all of that information.

In a subsequent hearing, given the fact that months had passed since the original denial of

their motion to withdraw, TDS and Applicant objected to the removal order, because they had

established a meaningful attorney client relationship. However, TDS maintained that it was still in

need of funds and local assistance in developing the Atkins claim. As a result, Judge Peca suggested

that the (EPPDO) remain on the case as local counsel and provide all of the assistance necessary to

develop the Atkins claim. Both parties agreed to that arrangement.

During 2010 the EPPDO began their local investigation of matters that might assist

Applicant. At some point during 2010 the AG’s Office and the defense, without a hearing, agreed

to have DNA testing conducted on evidence from items of evidence that had been maintained over

the years. Judge Peca signed that order which is contained in the court’s file, but it is clear from the

record and conversations Judge Richardson had with the parties that the hearing required under

Article 64 was circumvented.

It was also during the latter part of 2010 that the working

relationship between the AG’s Office and EPPDO began to erode. As a result, the EPPDO filed a

motion to withdraw from the case in late 2010. In an ex parte hearing, TDS did not object to that

motion being granted.

However, before the motion to withdraw could be heard, Judge Peca

withdrew from the case, and Judge Richardson was assigned in January of 2011.

During the same time period, once the AG’s Office agreed to the DNA testing, TDS made

multiple requests to Judge Peca and Judge Richardson to delay the Atkins proceeding until the DNA

results were returned. Those requests were denied.

One of the first matters resolved after Judge Richardson was assigned the case was to grant

the EPPDO’s motion to withdraw during an ex parte hearing.

After that motion was granted, TDS

was solely responsible for Applicant’s representation and investigating the Atkins claims. This is

significant, because this required a variety of ex parte motions to be filed by the defense and ruled

on by the court related to necessary funds for the Atkins investigation.3 The conflict with the

EPPDO, the court’s ruling to allow the EPPDO to withdraw, and the TDS’s request for more time

and funds (because they were then operating without any outside assistance) further delayed

conducting the Atkins hearing. In fact, subsequent deadlines were either missed or ignored, which

3See Sealed Exhibits marked as Items # 247 and 249 titled “SEALED EX PARTE MOTION TO SHOW CAUSE” file

stamped January 14, 2011 and “EX PARTE MOTION FOR PREPAYMENT OF FUNDS FOR

CONSTITUTIONALLY ADEQUATE ATKINS INVESTIGATION” file stamped February 24, 2011.

required the court to admonish the defense about the consequences of missing any future deadlines

during a hearing on August 9, 2011.4

By time the August hearing was conducted the initial DNA results had been completed. It

was during that hearing that the results of the “agreed” DNA testing were presented to the court.

The court’s conclusion denied any relief to the defense and no appeal was taken from that decision.

Following the August hearing all deadlines were met and the Atkins hearing took place on

October 11, 12, 13, and 14, 2011, and December 6 and 7, 2011.5

During the months leading up to the hearing it is important for the Court to note that the

defense filed several sealed ex parte motions related to assistance necessary to conduct the Atkins

investigation. All of the financial relief sought for in developing the Atkins claim was granted by

the Court and County consistent with the order from CCA. This fact will be reiterated throughout

these findings. Some requests beyond the scope of the CCA’s remand order on Atkins grounds were

also granted, as well as denied. That should be reflected in the sealed orders signed by this Court.6

This Court has ordered the District Clerk to forward all of the sealed motions to the CCA.

As with any other claim for habeas relief, Applicant bears the burden of proving he is

mentally retarded. I n t h i s c a s e, Applicant relied on the testimony of the following three lay

witnesses and no experts: Coletta DeArman, Applicant’s 86 year old 4th grade teacher from 1968-

4 Part of the difficulty in getting the parties to court was due to the fact that Mr. Weircioch resided in San Francisco, the

AG’s representatives were from Austin, and Judge Richardson was from San Antonio. Getting everybody to El Paso for

any hearing required significant travel arrangements to be made.

5 Following the conclusion of the hearing the court reporter experienced some serious health problems and upon

recovering, was subsequently hired by a newly appointed federal district judge in El Paso further delaying the record.

6 See the following Sealed Exhibits marked as items #245, 247, 250, 256, 276, 285, 315, 339 and 340 file stamped from

June 15, 2010 until August 18, 2011.

69; Keith Springer, Applicant’s childhood friend; and Debbie Galvan, Applicant’s older sister.

Although provided with funds for an expert, the defense elected not to call one on behalf of

Applicant. This fact will be reiterated throughout these findings.

The State presented live testimony from correctional officers Cheryl Whitesel, Shaun

Munson, and Herbert Wilbanks; Applicant’s former parole officer, John Mullaney; and expert Dr.

Thomas G. Allen, a PhD and psychologist.

Both parties submitted to the Court their proposed findings of fact and conclusions of law.

The Court has adopted and incorporated some of those proposed findings from each side into its

own findings and conclusions.7 However, given the nature of the case, a significant portion of this

Court’s findings and conclusions are original in nature. 8

7 Applicant also requested the court to take judicial notice of Findings of Fact and Conclusions of Law in an Atkins

hearing from Harris County ordered before the CCA. COURT’S ATTACHMENT #3 Ex parte Cathey, Cause No.

713189-B (176th Harris Co. Ct. Dec. 31, 2012) (unpublished).

8 “D” refers to the defense exhibits, or applicant’s exhibits, admitted during the mental-retardation hearing, followed by

exhibit number(s) and page number(s) where applicable.

“R” refers to the respondent’s exhibits admitted during

the hearing, followed by exhibit number(s) and page number(s) where applicable. “RR” refers to the reporter’s record of

the mental-retardation hearing, preceded by volume number(s) and followed by page number(s). “TRR” refers to the

reporter’s record of Applicant’s trial, preceded by volume number(s) and followed by page number(s). “CR” refers to

the clerk’s record of pleadings and documents filed with the court during Applicant’s trial, followed by page

number(s).

FINDINGS OF FACT

IQ Tests Administered From 1977 to 2011

Part of the difficulty in determining Applicant’s IQ was due to the fact that six IQ scores

were obtained from Applicant from 1977 until 2011. Those scores ranged from 64 to 111 with

limited information available on how some of the testing was conducted. The parties introduced the

following IQ scores for Applicant:

The 1977 Score. On May 12, 1977, when Applicant entered prison for the first time,

the Texas Department of Corrections (“TDC”) listed his IQ as 111. R. 20 at 4. The record

contains no information about the kind of intelligence test that TDC administered.

The May 1980 Testing. On May 23, 1980, Dr. Dale T. Johnson, a psychologist in El

Paso, administered the Wechsler Adult Intelligence Scale (“WAIS”) to Applicant as part of a

court-ordered evaluation to determine his competency to stand trial on two counts of sexual

assault. Applicant obtained a verbal IQ of 67, a performance IQ of 64, and a full scale IQ of

64. D. 1.

The June 1980 Testing. On June 13, 1980, a second court-appointed psychologist,

Dr. Richard W. Walker, Jr., administered a short-form WAIS to Applicant. Based on six

subtests, Applicant obtained a prorated verbal IQ of 75, a performance IQ of 69, and a full

scale IQ of 71. R. 6 at 184-85.

The August 1980 Score. On August 21, 1980, when Applicant entered TDC for the

second time, his IQ was listed as 101. R. 23 at 4. The record contains no information about

the kind of intelligence test that TDC administered.

The 1988 Score. On June 27, 1988, when Applicant entered prison for the third time,

TDC listed his IQ as 67. R. 27 at 2. The record contains no information about the kind of

intelligence test that TDC administered.

The 2011 Testing. On September 1, 2011, Dr. Allen administered the WAIS-IV to

Applicant. Applicant obtained a verbal comprehension IQ score of 80, a perceptual reasoning IQ

score of 86, and a full scale IQ score of 75. R. 81 at 6.

Applicant’s six IQ scores are summarized in the chart below:

Year

1977

5/1980

6/1980

8/1980

1988

2011

Age

Test

N/A

WAIS

N/A

WAIS-IV

FSIQ

111

101

Burden of Proof and Standard of Review

The Court finds that the task of developing appropriate ways to enforce the Eighth

Amendment’s restriction against executing the retarded belongs to the states. Atkins, 536

U.S. at 317.

The Court finds that the Texas Legislature has yet to enact provisions implementing the

Atkins holding, but the Texas Court of Criminal Appeals has adopted “temporary guidelines to

be used during the legislative interregnum.” Hall v. State, 160 S.W.3d 24, 36 (Tex. Crim.

App. 2004) (citing Ex parte Briseño, 135 S.W.3d 1 (Tex. Crim. App. 2004)); Neal v. State, 256

S.W.3d 264 (Tex. Crim. App. 2008).

Again the Court notes that the State does not have the burden of disproving Applicant’s

retardation claim. As with any other claim for habeas relief, Applicant bears the burden of

proving he is mentally retarded. Ex parte Chappell, 959 S.W.2d 627, 628 (Tex. Crim.

App. 1998) (habeas applicant bears burden of proving facts entitling him to habeas relief). To

satisfy that burden, Applicant must demonstrate by a preponderance of the evidence that he

possesses (1) “significantly subaverage general intellectual functioning” (an IQ of about 70

or below) and (2) “related limitations in adaptive functioning” (3) commencing before the

age of eighteen. Hall, 160 S.W.3d at 36; Briseño, 135 S.W.3d at 7-8, 12; see also Tex. Health &

Safety Code § 591.003(13) (defining mental retardation). Neal v. State, 256 S.W.3d 264 (Tex.

Crim. App. 2008)

The Court finds that the term “intellectual disability” is used by an advocacy

organization

known

AAIDD

(American

Association

on Intellectual

and

Developmental Disabilities) as part of its efforts to minimize stigmatization, whereas the

term “mental retardation” is a separate legal term utilizing a different definition, used by

Texas courts in the application of Atkins v. Virginia to capital proceedings. 5 RR 107-121; 6

RR 31, 86-88; D13; R87. To date, the appellate courts of this State have not changed the term

“mental retardation” to “intellectual disability” in cases involving an Atkins analysis, as

requested by Applicant.

Intellectual Functioning

Applicant’s Evidence

The Court finds that in order to demonstrate significantly sub-average intellectual

functioning, Applicant relies on the intelligence test conducted in 1980 in connection with courtordered evaluations for competency and sanity stemming from charges for two counts of

sexual assault. Additionally, although Applicant was provided with funds for an expert, and

actually used those funds, he did not call his own expert. Instead, Applicant attempted to

impeach the State’s expert, Dr. Allen, and develop his claim through Allen’s examination of

Applicant. Dr. Allen agreed with very little, if any of Applicant’s assertions.

The Court finds that on May 8, 1980, a psychiatrist, Dr. Salvador F. Aguirre-Hauchbaum,

evaluated Applicant and found him competent to stand trial and not insane. Dr. AguirreHauchbaum opined that Applicant had a character disorder “with immature, inadequate, and

disocial traits with poor impulse control.” In order to rule out the possibility of mental

retardation, Dr. Aguirre-Hauchbaum referred Applicant for intelligence testing. D2.

The Court finds that on May 23, 1980, Dr. Dale T. Johnson, a psychologist, evaluated

Applicant. Dr. Johnson administered two tests to Applicant: the Wechsler Adult Intelligence

Scale (WAIS) and the Bender- Gestalt. D1.

The Court finds that the Bender-Gestalt has no bearing on Applicant’s intelligence.

The Court finds that on the WAIS, Applicant obtained a verbal IQ of 67, a performance IQ of

64, and a full scale IQ of 64. Dr. Johnson determined that Applicant’s potential maximum IQ

was 80. D1.

10.

The Court finds that Dr. Johnson concluded: “[Applicant’s] obtained IQ scores place him at the

high end of the range of mental retardation. There was no WAIS evidence of any organic brain

syndrome. It would seem doubtful that this individual is fully capable of participating in his

own defense, and may not fully understand the charges being brought against him.” D1.

11.

The Court finds that Dr. Johnson’s report is not credible because: (1) Dr. Johnson’s report

is self-contradicting—if Applicant is capable of achieving an IQ score of 80, then he cannot

possibly be mentally retarded, regardless of his obtained IQ scores; (2) Applicant has failed to

supply the court with either the tests or the raw data forming the bases of Dr. Johnson’s

conclusions; (3) the report mentions that Applicant was administered subtests but does not

specify which ones he completed; (4) there is no indication that Dr. Johnson conducted any

effort testing to determine if Applicant was malingering unlike Dr. Allen’s testing; (5) Dr.

Johnson is no longer living and, thus, was not able to testify about the specific testing

conducted; (6) Dr. Johnson’s statement that Applicant was capable of a maximum score of 80

indicates that Applicant was not giving his best effort; (7) Applicant’s obtained IQ scores

conflict with others in the record demonstrating his IQ is not in the mentally-retarded range; (8)

Dr. Johnson opined that Applicant might not be either competent or sane, whereas Dr. AguirreHauchbaum determined the opposite just fifteen days prior; and (9) there is no indication Dr.

Johnson was asked to render an opinion regarding Applicant’s competency and sanity, nor any

reason to believe Dr. Johnson was qualified to make that assessment. D1; 2 RR

12.

The Court finds that it is not possible to examine the reliability of Applicant’s IQ scores

given the dearth of information and data in the report, nor is it possible to determine Dr.

Johnson’s qualifications to form his conclusions.

13.

The Court finds that this deficiency of underlying information, combined with the report’s

inconsistencies and lack of effort testing, renders Applicant’s IQ score of 64 not credible. 4

RR 60-62.

14.

The Court also finds that Applicant bears the burden of proving his mental retardation

claim. He was provided the funds and opportunity to call an expert but elected not to do so in

this matter.

State’s Evidence

15.

The Court finds that when Applicant first entered TDCJ at the age of 19, a screening device

that estimates general intelligence determined his IQ to be 111. R20 at 4; 4 RR 64. This score is

in the normal range and is four points away from “bright normal.” 4 RR 66.

16.

The Court finds that when Applicant re-entered TDCJ at the age of 23, the screening device

estimated his IQ to be 101, which is in the average range. A s n o t e d i n D r . A l l e n ’ s

t e s t i m o n y w h e n a s k e d , “ We've already talked about it being possible and even

easy to fake dumb on an intelligence test. [F]ake smart on an intelligence test? Dr. Allen

replied “No. I wish.” R23 at 4; 4 RR 68-69. The Court finds that when Applicant re-entered

TDCJ for a third time at the age of 31, the screening device estimated his IQ to be 67. R27 at 2.

17.

The Court finds that, other than the scores themselves, there is no information

regarding the type of IQ tests administered to Applicant, nor any underlying data that would

explain how the scores were obtained. However, these scores do not indicate that Applicant has

significantly sub-average general intellectual functioning.

18.

The Court finds that, although TDCJ screening devices have a greater range of error than

the WAIS, it is highly unlikely that a person with a true IQ of 64 could get a 111 on a

screening test. The “wobble” in error measurement is not so large that a person’s IQ could

range from mild mental retardation to bright normal intelligence because even a screening device

taps forms of intelligence. 4 RR 67-68.

Dr. Richard Walker

19.

The Court finds that on June 13, 1980, a few weeks after the tests conducted by Dr.

Johnson, Dr. Richard Walker tested Applicant again. Dr. Walker administered a short form

version of the WAIS, the Wide Range Achievement Test (WRAT), the Bender-Gestalt, and the

Rorschach. See Exhibit D attached to Applicant’s Successive State Habeas Petition (hereafter

Exhibit D).

20.

The Court finds

that

the

Rorschach provides no

Applicant’s intelligence.

useful

information regarding

21.

The Court finds that on the WAIS, Applicant obtained a prorated IQ of 71, with a verbal IQ of

75 and a performance IQ of 69. The prorated IQ is in the borderline classification of intelligence.

Dr. Walker determined that this score was more consistent with the estimated potential IQ of

80, as noted by Dr. Johnson, than the full scale IQ of 64 that Dr. Johnson obtained.

Exhibit D.

22.

The Court finds that on the WRAT, Applicant obtained an achievement level, or grade level,

of 7.0 in word recognition and 4.1 in arithmetic. Exhibit D.

23.

The Court finds that Dr. Walker noted twice that the applicant’s motivation was less

than optimal. Dr. Walker described Applicant as follows: “He sat stiffly, looked straight ahead,

and gave delayed responses.” Exhibit D.

24.

The Court finds that Dr. Walker, like Dr. Aguirre-Hauchbaum, concluded that Applicant was

able to distinguish right from wrong and could participate in his own defense. Exhibit D.

25.

The Court finds that the overall reliability of Dr. Walker’s testing is suspect due to

practice effects, no effort testing, reports of sub-optimal effort, and inconsistency with the

scores obtained by TDCJ. 4 RR 87, 89. Nonetheless, the testing does not indicate that

Applicant has significantly sub-average general intellectual functioning.

Dr. Tom Allen

26.

The Court finds that the only expert who testified was the State’s expert, Dr. Tom

Allen, who has a bachelor’s degree in psychology from Western New Mexico University, a

master’s degree in psychology from Texas A&M University, and a Ph.D. in psychology

from East Texas State University (Texas A&M at Commerce). He had a year of pre-doctorate

internship at the Forensic Psychiatric Unit at Rusk State Hospital and one year of post-doctorate

internship through University Park Hospital in Tyler. He was licensed to practice in 1984,

worked at Rusk State Hospital for a total of seven years, and has been in private practice since

1985. 3 RR 182; R80.

27.

The Court finds that Dr. Allen is a forensic psychologist, and his field involves the

application of behavioral science within the legal system. 3 RR 183.

28.

The Court finds that Dr. Allen has testified many times for the State and defense in both

state and federal court. He has conducted well over 500 evaluations for the purposes of

criminal and civil court hearings, including evaluations for competency, sanity, and mental

retardation. 3 RR 181; R80.

29.

The Court finds Dr. Allen to be credible, unbiased, and professional.

30.

The Court finds that on September 1, 2011, Dr. Allen interviewed Applicant at the

Polunsky Unit, TDCJ, to ascertain whether or not Applicant is mentally retarded. Dr. Allen

administered the following tests to Applicant: the Wechsler Adult Intelligence Scale-IV (WAISIV); the Wide Range Achievement Test-IV (WRAT-IV); the Green’s Word Memory Test

(WMT); and the Test of Memory Malingering (TOMM). Dr. Allen also conducted an adaptive

behavior interview and mental status exam on Applicant. 3 RR 197, 207-10, 220; R81.

WAIS-IV and WRAT-4 Results

31.

The Court finds that the WAIS-IV renders a score that reflects general intelligence and is

the most widely used IQ test. The WRAT is the most widely used screening device or test of

achievement, reading level, sentence comprehension, and math skills. 3 RR 208.

32.

Even taking into consideration the points made during cross-examination, the Court finds that

Dr. Allen conducted a reliable evaluation of Applicant, and that Dr. Allen’s results and

conclusions are credible. 5 RR 23-24, 37-39, 56-57; 6 RR 92-93.

33.

The Court finds that any scoring errors by Dr. Allen in other evaluations or cases are not

relevant to the reliability or accuracy of his testing in this case, in part because Applicant fails to

show any systematic pattern of similar errors in this case.

34.

The Court finds that any distractions or physical conditions that would negatively affect

Applicant’s scores in the testing by Dr. Allen would work to Applicant’s benefit, not detriment,

as they would further lower his scores and over-represent any impairment of capacity or

ability. Nonetheless the Court also finds that the record is consistent with greater ability than is

represented in the test results obtained by Dr. Allen, and as a result any distractions, illness etc.

did not affect the results to Applicant’s detriment. 5 RR 37-40; 6 RR 98-99.

35.

The Court finds that on the WAIS-IV, Applicant obtained a verbal comprehension score

of 80, a perceptual reasoning score of 86, and a full scale score of 75. There was substantial

scatter in the subtest scores. The full scale score is relevant to Atkins, and the range of error was

71 to 80. These scores place Applicant in the 5th percentile of intellectual functioning and

likely reflect poor effort. The full scale score of 75 does not meet the first prong of the diagnostic

criteria for mental retardation. 4 RR 53-56; 5 RR 76-77; R81-82.

36.

The Court finds that Applicant’s verbal comprehension scores of 80 and 86 are more closely

tied to Applicant’s working IQ. These scores are well above the second percentile, which is

necessary for a diagnosis of mental retardation. 4 RR 70-71.

37.

The Court finds Dr. Allen’s testimony regarding the relationship between effort and IQ scores,

specifically that empirical evidence indicates the poor level of effort exerted by Applicant could

affect IQ scores by as much as a standard deviation (fifteen points) or more, to be particularly

persuasive. 5 RR 91-93.

38.

The Court finds that on the WRAT-4, Applicant obtained a grade equivalent of 9.8 in

word reading, 10.7 in sentence comprehension, 7.9 in spelling, and 4.3 in math computation.

These scores reflect low academic achievement and learning problems, but they are also a

product of poor effort. Nonetheless, the scores indicate academic functioning well above

the second percentile, most are above the sixth-grade level, and they do not reflect mental

retardation. R81-82, 89-90; 6 RR 94-98.

39.

The Court finds that Applicant has failed to meet his burden of demonstrating

significantly sub-average intellectual functioning.

Malingering

40.

The Court finds that effort testing is necessary in the Atkins context because (1) capital

defendants have an external incentive to perform poorly on IQ tests; (2) it is not difficult to

malinger on an IQ test; (3) as effort declines, so do IQ scores; and (4) clinical judgment is

not accurate in assessing effort because many factors can influence judgment. 3 RR 205, 21519; 4 RR 15-16.

41.

The Court finds that malingering is diagnosed based on three factors: (1) the presence of

external incentives to malinger; (2) negative response bias on effort tests; and (3) clear

indication that the failure on effort tests cannot be attributed to mental illness, neurological

disorder, or developmental disorder. 4 RR 12-15.

Applicant’s Results on the WMT

42.

The Court finds that Dr. Allen administered to Applicant the Green’s Word Memory Test,

or WMT, in order to assess whether or not Applicant was exerting full effort during the

testing. 3 RR 210.

43.

The Court finds that the WMT is the gold standard in testing for cognitive malingering and

has been more widely studied than any other effort test. The WMT has a 95% sensitivity rating in

distinguishing a malingerer from a non-malingerer, and the WMT scores close to 100% in

specificity, meaning that if a person is not a malingerer the likelihood is close to 100% that the

test will identify him as not malingering. 3 RR 211-13.

44.

The Court finds that Applicant did not persuade the Court that it should not rely on his

WMT results, nor did Applicant persuade the Court of the credibility of the Shandera study

critique of the WMT when used with mental-retardation tests. 5 RR 151-158; 6 RR 122-126.

45.

The Court finds that the WMT established norms for malingerers v. non- malingerers, and

the test-makers studied different patient groups that included children, medical patients,

the elderly, schizophrenics, the mentally retarded, skilled volunteers instructed to malinger,

and people with depression. 3 RR 213-14.

46.

The Court finds that the first two portions of the test are immediate recall and delayed recall,

which test effort. 4 RR 18-20.

47.

The Court finds that Applicant’s immediate recall score was 55, well below the cutoff for

failure that begins at 82.5. Applicant was performing at close to chance levels. On the

delayed recall, Applicant scored a 50, which represents chance responding. Applicant’s

consistency score (how much consistency there was between immediate and delayed recall)

was 70, which is also a failing score. 4 RR 18-21; 5 RR 25; R81; R82 at 46.

48.

The Court finds that the next three portions of the test, which test memory, consist of

multiple choice, paired associates, and free recall. These tests are harder and tap into the

possibility of genuine memory problems. 4 RR 22-24.

49.

The Court finds that Applicant scored a 50 on multiple choice, a 40 on paired associates, and

a 35 on free recall. Applicant’s scores of 50 and 40 were accompanied by the label “warning,”

which indicates that Applicant was exhibiting poor effort even on the memory portion. 4 RR 2425; R82 at 46.

50.

The Court finds that Applicant’s effort scores were worse than those in numerous comparison

groups.

On the effort portion of the test, Applicant scored much worse than: (1) elderly

patients with advanced dementia; (2) geriatric patients with mental illness but not dementia

or memory problems; (3) neurological patients with verified memory impairments; (4)

children with mild mental retardation; (5) children with a reading level less than third grade;

(6) children with developmental disorders, such as ADHD and fetal alcohol syndrome; (7)

seven to nine year old children; (8) children with a second grade reading level; (9)

learning disabled children with an average age of twelve; (10) mentally retarded fourteen-yearold adolescents with verbal IQs of 63; (11) children with autism and IQs of 63; (12) chronic pain

syndrome patients who had lawsuits pending and thus an external incentive; and (13)

juvenile sex offenders with verbal IQs of 82. Most of these groups easily passed the effort

portion of the WMT, but even those who did not scored much higher than Applicant. 4 RR 2633; R81 at 10; R82 at 46-56.

51.

The Court finds that Applicant’s scores most closely matched the scores of a group of twenty

patients who were asked to fake impairment and a group of sophisticated volunteers—medical

doctors and Ph.Ds—also asked to fake impairment. Nonetheless, Applicant’s effort scores were

even lower than those in the malingering groups. 4 RR 40; R81 at 10; R82 at 46, 56.

52.

The Court finds that in order to rule out whether Applicant’s scores reflected genuine

cognitive impairments, Dr. Allen calculated the easy/hard mean difference. The mean of the

easy items or effort portion of the test (immediate and delayed recall) was compared to the mean

of the hard items or memory portion (multiple choice, paired associates, free recall). A

difference of 30 or greater suggests that the patient suffers from genuine cognitive dysfunction.

Applicant’s score was 16.67, far below the cutoff. His score clearly indicates that the WMT

was measuring poor effort and not a genuine cognitive or memory impairment. 4 RR 41-42; R81

at 10; R82 at 57.

53.

The Court finds that Applicant’s results on the WMT highly suggest that Applicant was

malingering on the WAIS-IV and that, consequently, his IQ score of 75 is lower than his true

intelligence. 6 RR 106-121; R92.

54.

The Court finds that the WMT results undermine Applicant’s claim that he is mentally

retarded.

Applicant’s Results on the TOMM

55.

The Court finds that Dr. Allen administered to Applicant a second effort test called the

Test of Memory Malingering, or TOMM. Having considered Applicant’s points during crossexamination, the Court finds nonetheless that the TOMM was an appropriate testing choice in

this case, in part because the more-credible Simon study approves of the use of the TOMM to

assess effort in test subjects who might have mental retardation. 5 RR 131-135.

56.

The TOMM test is non-verbal and involves the presentation of 50 simple images. It

consists of two trials and a retention trial. Although it is less sensitive than the WMT, it has

been well-validated and researched. 3 RR 220; R81 at 10; R82 at 42-45.

57.

The Court finds that Applicant scored a 36 on trial 1 of the TOMM and a 34 on trial 2.

Scores less than 45 are considered failures. Research demonstrates that Applicant scored

worse on the TOMM than persons with mild mental retardation. 3 RR 51; 5 RR 24; R81 at 10.

58.

The Court finds that Applicant did not persuade the Court that it should apply a modified

cutting score to interpret his TOMM results, nor did Applicant persuade the Court of the

credibility of the Graue or Shandera studies. 5 RR 138-148; 6 RR 122-135; 7 RR 29-37, 4243; R93.

59.

The Court finds that Applicant’s results on the TOMM provide further evidence that he was

malingering throughout all the testing and that his WAIS-IV score of 75 is lower than his true

intelligence.

60.

The Court finds that the TOMM results undermine Applicant’s claim that he is mentally

retarded.

Other Evidence of Malingering

61.

The Court finds that there are other indications in Applicant’s records demonstrating that he

has attempted to be deceitful about his intellectual capacity. 4 RR 42.

62.

The Court finds that upon reviewing one of Applicant’s letters to a friend in Holland, Dr.

Allen noticed Applicant had the ability to write coherent, correct sentences with decent

punctuation. Applicant also used words like “specialist,” and Dr. Allen would not expect

someone with mental retardation to understand more sophisticated concepts such as seeing a

medical specialist. The Court finds that a person who truly suffers from mental retardation

would not use such vocabulary properly. 4 RR 44; R49 at 156.

63.

The Court finds that Dr. Allen read in court a portion of the letter referenced above and

quoted it as follows:

We hear that they’re making copies of everybody’s mail.

Everybody is in quotes, comma, but I know for sure, in quotes, that they

there are doing mine. The reason they’re doing it, because the State

wants to know what I’m talking about in case they can use something

against me at the hearing I have coming up. . . for them, it’s called

being desperate.

And is that consistent with the expression in the thought process of

someone with an IQ of around 64?

I don’t believe so.

4 RR 45; R49 at 157.

64.

The Court finds that this letter is not consistent with the thought processes of someone who is

mentally retarded. According to Dr. Allen, the letter reflects a fairly high level of cognitive

and conceptual functioning. 4 RR 45. This awareness and strategic thinking is inconsistent

with even mild mental retardation.

65.

The Court finds that Applicant, in the same letter, asked his friend to get him a few books,

and he capitalized the titles: “Joys of Painting” and “The Best of Joys of Painting.” Dr. Allen

testified that he would not expect to see that type of performance in someone who is mentally

retarded. The books also demonstrate Applicant’s interests as well as a desire to improve his

technique, instead of just painting without thought, and it reflects Applicant’s ability to ask

for what he wants and how to get it through another person. 4 RR 45-46; R49 at 157.

66.

The Court finds that Dr. Allen testified the following about specific words Applicant used in

letters to friends:

Discipline. Ponder. Not think, but ponder. Tantrum. Flabbergasted.

Swooned. Frenzy. Resentment. Shunned. Flaunt. Vindictive. Leniency.

Brandishing. I found brandishing to be really interesting. Limousine.

Contemplating. Saluting. Chastised. Spitfire. Witty, not funny, but witty.

Correspondence. Coincidentally. Propaganda. Strife. 4 RR 49

67.

To Dr. Allen’s recollection, these words were used in the appropriate context, not

simply in a random fashion as a person with mental retardation might attempt in order to

project a veil of competence. 4 RR 49. The court agrees with Dr. Allen, finding that this

vocabulary and use of concepts is inconsistent with mild mental retardation.

68.

The Court finds that, according to Dr. Allen, Applicant’s working memory score on the

WAIS-IV, which was in the third percentile, does not make sense given Applicant’s letters in

which he mentions writing others “weeks ago” and his ability to work with complex tools,

which requires learning and retaining new information for a longer period of time, and

perceptual reasoning. 4 RR 71-73.

69.

The Court finds that Applicant has an external incentive to malinger, that Applicant failed

to pass both effort tests, and that his apparent poor effort is not actually due to cognitive

impairments.

70.

The Court finds that Applicant was malingering during the WAIS-IV testing and,

consequently, his score of 75 under-reports his true intelligence.

Dr. Allen’s Conclusions About Applicant’s IQ

71.

The Court agrees with Dr. Allen that Applicant’s WAIS-IV score of 75 is probably not valid

and that the scores in the 100 range, or low to normal functioning, are probably closer to

Applicant’s true score because they reflect more accurately Applicant’s conceptual, practical,

and social functioning. 4 RR 94-95.

72.

The Court agrees with Dr. Allen that the forty-seven point disparity between Applicant’s

recorded high and low IQ scores is too great to conclude that Applicant’s IQ is 64.

Although some variation will occur, Applicant should have received a score in the range of

60-70 on a screening device if his IQ is 64, but certainly nothing approaching 111, which is

what Applicant is capable of achieving. If a person is capable of a 111, then scores of 64 or

75 grossly underestimate that person’s intelligence. 4 RR 94-96.

73.

The Court agrees with the following conclusions of Dr. Allen when asked if he believes

Applicant is mentally retarded:

If you look at my testing, I don't think his IQ meets the criteria, and

his IQ actually reflects poor effort. He probably would score

significantly higher. Secondly, I think there is -- in the records, there are

inconsistencies in his IQ performance that have to be taken into account.

I think that the obtained IQ I got, and at least one other IQ test

that’s out there, doesn’t make sense when you look at his level of

adaptive behaviors in the absence of adaptive behavior deficits.

4 RR 52.

The Flynn Effect

74.

Applicant has requested this Court in his proposed findings and conclusions to take judicial

notice of Findings of Fact and Conclusions of Law from the Cathey case in the 176th District

Court of Harris County. COURT’S ATTACHMENT #3 Ex parte Cathey, Cause No. 713189-B

(176th Harris Co. Ct. Dec. 31, 2012) (unpublished). Prior to making any findings or conclusions

regarding the Flynn Effect, some background information on the Flynn Effect and the Cathey

case will be useful. Additionally, in order to properly grant, or deny this request, an analysis of

Rules 201 and 702 of the Texas Rules of Evidence, in addition to supporting case law is

required.

75.

“The Flynn Effect is an adjustment used in interpreting standardized tests to account for the

fact that IQ scores have been increasing from one generation to the next and calls for a reduction

of approximately 0.33 points per year for each year between the time the test was administered

and the test was normed.”

Harris v. Thaler, 464 Fed.Appx. 301, 2012 WL 795698

(C.A.5(Tex)). For example, if a subject obtained a full scale IQ score of 100 and the test

administered was 10 years old, the correct score according to Flynn would be reduced by 1/3 of

a point per year for a total reduction of approximately 3 points. That “Flynn” factored score

would be 97.

The Flynn Effect refers to studies by Dr. James R. Flynn that IQ scores have

increased from one generation to the next in the general population for a variety of reasons that

are not completely agreed upon by experts.

AAIDD Manual at 37. Information on the Flynn

Effect is readily available from many resources including several internet sites and scholarly

publications. It is important to note that the definition of the Flynn Effect and the method of

calculating an IQ consistent with that theory are not in dispute in this case; however, whether the

theory itself is scientifically valid and accepted in the legal community is in dispute between the

parties (as well as in the Cathey case).

76.

Furthermore, whether that theory even applies to a person in Applicant’s position given his

lengthy incarceration for this offense and prior offenses is unclear for two reasons: First,

Applicant has spent most of his natural life incarcerated (prior adult and juvenile incarcerations)

and was not exposed to the general public or environmental stimuli like most individuals that are

part of the Flynn Theory. (COURT’S ATTACHMENT #6a).

Second and more importantly,

Applicant failed to present any evidence to support the fact that the Flynn Theory applies to him

other than by the cross-examination of the State’s expert.

77. The Texas Court of Criminal Appeals has declined to apply the Flynn Effect to mental

retardation claims, referring to it as “an unexamined scientific concept that does not provide a

reliable basis for concluding that an appellant had significant[ly] subaverage general intellectual

functioning.” Harris, citing Neal v. State, 256 S.W.3d 264, 273 (Tex.Crim.App.2008); Ex parte

Blue, 230 S.W.3d 151, 166 (Tex.Crim.App.2007). Because the Supreme Court in Atkins left to

the States the task of defining mental retardation, the Texas court's approach to this aspect of the

definition of mental retardation is not contrary to, or an unreasonable application of, clearly

established federal law. In addition, this circuit does not recognize the Flynn Effect as a valid

scientific theory. In re Mathis, 483 F.3d 395, 398, n. 1 (5th Cir.2007). “No clearly established

federal law requires that a state or federal court only accept IQ scores adjusted by the Flynn

Effect or the Standard Error of Measurement.” Harris v. Thaler, 464 Fed.Appx. 301, 2012 WL

795698 (C.A.5(Tex))); In re Salazar, 443 F.3d 430, 433 n.1 (5th Cir. 2006); In re Mathis, 483

F.3d 395 (5th Cir.2007).

78.

Applicant failed to attach and file the Cathey Findings to his Proposed Findings with the El

Paso County District Clerk; however, this Court will take judicial notice that the Findings of

Fact and Conclusions of Law in Cathey have been signed and filed in Harris County. They are

attached to this Court’s findings and conclusions as COURT’S ATTACHMENT #3. 9 Because

the Texas Court of Criminal Appeals has not ruled yet on the recommendations made in the

Cathey case, this Court will also take judicial notice that the Respondent’s/State’s Proposed

Findings of Fact and Conclusions of Law in the Cathey case, in addition to the State’s

Objections to the Trial Court’s Findings of Fact and Conclusions of Law, have also been filed in

Harris County. COURT’S ATTACHMENT # 4 & 5.

79.

The Cathey Findings are related to Eric DeWayne Cathey who is currently on death row as a

result of a capital murder conviction in Harris County in 1997.

On November 18, 2008, the

Court of Criminal Appeals remanded the Cathey case to a 176th District Court in Harris County

9 There is no need to attach and take judicial notice of Cathey’s Proposed Findings because they are identical to the

Findings signed by the judge of that court.

for a hearing on Cathey’s Atkin’s claim in his Application for Post-Conviction Writ of Habeas

Corpus.

80.

In Cathey, the TCCA ordered the 176th District Court to address the following four issues

related to the Flynn Effect:

(1) the scientific validity and reliability of the “Flynn Effect;”

(2) whether clinical practitioners who are ordinarily called upon to diagnose mental

retardation for purposes outside of the criminal justice system use and apply the

“Flynn Effect” to I.Q. test results when making their particularized diagnoses of

mental retardation;

(3) whether the application of the “Flynn Effect” to individual test results is generally

accepted scientific procedure in the pertinent professional community outside of the

criminal justice system; and

(4) the known or potential “error rate” of the “Flynn Effect” as it applies to a specific

I.Q. test result.

Ex Parte Cathey, 2008 Tex. Crim. App. Unpub. LEXIS 850 (Tex. Crim. App. Nov. 18, 2008)

(per curiam) (unpublished). COURT’S ATTACHMENT #2

81.

Pursuant to the November, 2008, Order the 176th District Court held an evidentiary hearing

in January of 2010 to determine whether Mr. Cathey was a person of mental retardation and

also for evaluating evidence concerning the four issues previously mentioned and ordered by the

Texas Court of Criminal Appeals. Cathey’s Proposed Findings were submitted to the 176th

District Court on February 21, 2011. COURT’S ATTACHMENT #3 . The State’s Proposed

Findings were also submitted on the same date. COURT’S ATTACHMENT #4 . By November

of 2012, even though the Atkins Hearing had taken place almost three years earlier and the

proposed findings had been submitted almost two years earlier, the 176th Court still had not

signed, filed, or submitted any findings to the TCCA. In the same month, the District Judge of

the 176th Court was defeated in the November, 2012, General Elections of Harris County. On

December 31, 2012, which was her last day in office, the judge of the 176th signed what

appears to be Cathey’s unaltered proposed findings and conclusions (submitted by Cathey’s

attorneys). That observation is based on the fact that the “Findings” she signed are still titled

“APPLICANT ERIC DEWAYNE CATHEY’S PROPOSED FINDINGS OF FACT AND

CONCLUSIONS OF LAW.”

Specifically,the trial judge in Cathey made the following

conclusions:

“211. The Flynn Effect is a scientifically valid and reliable phenomenon applied to

correct for norm obsolescence. 212. The Flynn Effect is used by clinical practitioners

in the diagnosis of mental retardation and is used by practitioners outside the criminal

justice system to correct for norm obsolescence. 213. The Flynn Effect should be

applied to individual test results to correct for norm obsolescence when a test with

aging norms is used, and it is a generally accepted scientific procedure.” (Id. at 7576.).

COURT’S ATTACHMENT #3

82.

As of this date (September 30, 2013), the Texas Court of Criminal Appeals has not issued an

opinion on the Cathey findings. Nevertheless, Applicant is asking this Court to take judicial

notice and accept the Findings of Fact and Conclusions of Law regarding the Flynn Effect that

were issued in Ex parte Cathey, Cause No. 713189-B (176th Harris Co. Ct. Dec. 31, 2012)

(unpublished).

Rules 201 and 702: Judicial Notice and Expert Testimony Analysis

83. Quotes from several cases are helpful and dispositive of Applicant’s request to take judicial

notice and consider expert testimony from an unrelated case (Cathey) to the instant case in

analyzing this request.

Rule 702 Expert Testimony Admissibility

84.

To be considered reliable, evidence derived from a scientific theory must satisfy three

criteria: (1) the underlying scientific theory must be valid; (2) the technique applying the theory

must be valid; and (3) the technique must have been properly applied on the occasion in

question. Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App.1992). This three-criteria test is

not limited to novel scientific evidence; it applies to all scientific evidence. Hartman v. State,

946 S.W.2d 60, 63 (Tex.Crim.App.1997). The proponent of the scientific evidence has the

burden to prove its reliability by clear and convincing evidence. Kelly, 824 S.W.2d at 573;

Holmes v. State, 135 S.W.3d 178 (Tex.App.—Waco 2004, no pet.).

85.

In this case, no such evidence was presented, or developed on the Flynn Effect other than

the cross examination of the State’s expert who repeatedly opined that the Flynn Effect did not

apply in this case due to the defendant’s prior IQ scores and significant signs of malingering in

the tests administered by Dr. Allen. 4 RR 97-98; 5 RR 84, 6 RR 99-134; 7 RR 38. Again the

Court notes that Applicant was provided with funds for an expert to develop his claims, but

elected not to call any such expert to either establish Applicant’s mental retardation status, or the

validity of the Flynn Effect and if it would even have an application in this case.

Rule 201 Judicial Notice

86.

Being mindful that taking judicial notice of findings that have been filed is not the same as

accepting those findings as accurate, truthful, or consistent with the current state of the law.

This Court will take judicial notice of the following items:

a. The order issued by the CCA in this case to conduct an Atkins hearing (COURT’S

ATTACHMENT #1);

b. The order issued by the CCA in Cathey to conduct an Atkins hearing (COURT’S

ATTACHMENT #2);

c. The Findings and Conclusions in the Cathey case (COURT’S ATTACHMENT #3);

The

State’s

Proposed

Finding

and

Conclusions

Cathey

(COURT’S

ATTACHMENT #4;

e. The State’s Objections to the Court’s Proposed Finding and Conclusions (COURT’S

ATTACHMENT #5);

f. The Official TDC records of Cathey and Applicant obtained by the trial court

(COURT’S ATTACHMENT #6a and #6b).10

87.

Texas Rule of Evidence 201 sets forth the procedure for the trial court to take judicial notice

of adjudicative facts. TEX.R. EVID. 201. Section (b) describes the kinds of facts that may be

judicially noticed: “A judicially noticed fact must be one not subject to reasonable dispute in

that it is either (1) generally known within the territorial jurisdiction of the trial court or (2)

capable of accurate and ready determination by resort to sources whose accuracy cannot

reasonably be questioned.” TEX.R. EVID. 201(b). A court has the discretion to take judicial

notice, whether requested or not. TEX.R. EVID. 201(c). “While a court may judicially notice

the existence of an affidavit in its file, the court may not take judicial notice of the truth of the

10 This Court may take judicial notice of certain documents and evidence whether requested or not. TEX.R. EVID.

201(c). Although not admitted during the hearings, for the benefit of the CCA, this Court on its own motion has

obtained the official TDC records, with an attached business record affidavit, of Cathey and Applicant describing the

nature of each capital conviction. This is necessary because all parties (Cathey and Applicant) have made references to

the underlying facts to support their claims for relief or denial of relief under an Atkins analysis. Although Applicant’s

trial record is part of this record, the Cathey record was not provided to this Court even though the judge of the 176th

relied on the facts of that case in support of granting relief to Cathey. These records are unredacted, contain more than

the requested information, and contain the names of complainants (and personal information) from unrelated cases.

However, the business records affidavit specifically states the number of pages sent by TDC is 125. In its findings, this

Court will only consider those portions of the packet relevant to the Atkins claim and listed as COURT’S

ATTACHMENT #6a . The entire packet will be placed in a sealed envelope and only made available to the parties

upon proper request and will be listed as Sealed COURT’S ATTACHMENT #6b

factual contents contained in such an affidavit because those facts are not the kinds of facts that

a court may judicially notice.” Jackson v. State 139 S.W.3d 7, 20 -21 (Tex.App.–Fort Worth

2004, pet. ref’d.). See also Tex. Dep't of Public Safety v. Claudio, 133 S.W.3d 630, 632–33

(Tex.App.-Corpus Christi 2002, no pet.)(op. on reh'g) (holding in a civil case that, under rule

201, a court's “taking notice of the contents of the file does not elevate [averments in appellant's

pleadings] into proof”); Tschirhart v. Tschirhart, 876 S.W.2d 507, 508 (Tex.App.-Austin 1994,

no writ) (Under rule 201, “a court may take judicial notice that a pleading has been filed in the

cause,” but it “may not ... take judicial notice of the truth of allegations in its records”).

88.

“In order to be judicially noticed, a fact must be a matter of common knowledge, verifiable

without the necessity of an assessment of the truth and veracity of an interested witness in a

particular case.” First National Bank of Amarillo v. Jarnigan, 794 S.W.2d 54, 61 (Tex.App.Amarillo 1990, writ denied).

89.

Testimony adduced during a criminal trial cannot be “generally known within the territorial

jurisdiction of the trial court” and therefore the testimony would necessarily have to be “capable

of accurate and ready determination by resort to sources whose accuracy cannot reasonably be

questioned” under subsection (2). TEX.R. EVID. 201(b); Garza v. State, 996 S.W.2d 276, 279

(Tex.App.-Dallas 1999, pet. denied). Assertions made by an individual, even under oath, are

generally not the type of facts capable of accurate and ready determination by a source whose

accuracy cannot reasonably be questioned. Id. at 279–80.

“While a court may take judicial

notice of the existence of the testimony in a co-defendant's trial, as the trial court did in this

case, a court may not take judicial notice of the truth of the factual content of that testimony

because its accuracy can reasonably be questioned.” Resendez v. State, 256 S.W.3d 315, 324

(Tex.App.-Houston [14th Dist.], rev’d on other grounds, 306 S.W.3d 308 (Tex.Crim.App.

2010). “Further, while a court may judicially notice the existence of an affidavit in its file, it

may not take judicial notice of the truth of the factual contents contained therein.” Jackson v.

State, 139 S.W.3d 7, 21 (Tex.App.-Fort Worth 2004, pet. ref'd). Accordingly, in order for

testimony at a prior hearing or trial to be considered at a subsequent proceeding, the transcript

of such testimony must be properly authenticated and entered into evidence. FH1 Fin., 2007

WL 2325652 at *2, 2007 Tex.App. LEXIS 6502 at *4; Briones, 769 S.W.2d at 319; Ex parte

Turner, 478 S.W.2d 256, 258 (Tex.Civ.App.-Houston [1st Dist.] 1972, orig. proceeding).

David v. State, 293 S.W.3d 794 (Tex.App. – Waco 2009, no pet.).

90.

In this case, the Cathey transcript was not offered as evidence, thereby depriving the State of

any opportunity to challenge those assertions. As a result, Applicant did not meet his burden.

(The proponent of the scientific evidence has the burden to prove its reliability by clear and

convincing evidence. Kelly, 824 S.W.2d at 573.)

Judicial Notice Combined With Expert Testimony

91.

In Holmes v. State, 135 S.W.3d 178 (Tex.App.—Waco 2004, no pet.), the Waco Court of

Appeals noted that “Presiding Judge Keller has provided us with a more definitive approach to

determining when we can take judicial notice of the reliability of a scientific theory or

technique. Hernandez v. State, 116 S.W.3d 26, 32–42 (Tex.Crim.App.2003)(Keller, P.J.,

concurring). Under the alternative analysis, the reliability of a scientific theory or technique can

be judicially noticed in three ways: (1) when it is a matter of common knowledge, (2) when

widely available court decisions show that reliability has been litigated elsewhere in fact-finding

forums to a degree sufficient for the appellate court to conclude that reliability is well-

established, and (3) when a prior determination of reliability has been made by an appellate

court whose pronouncements are binding in the jurisdiction. Id. at 32.

(Keller, P.J.,

concurring).” Holmes, 135 S.W.3d at 188.

1) Common Knowledge

Some scientific theories and techniques are so well known that they are matters of common

knowledge, and judicial notice may be taken without a fact finding hearing and without

consulting any scientific literature. Holmes, 135 S.W.3d at 189; Hernandez, 116 S.W.3d at 34.

2) Consideration in other Courts

Under the second manner which judicial notice may be taken, if the trial court in the case

under consideration on appeal did not conduct an extensive evidentiary hearing, that trial

court or an appellate court reviewing the case can use the decisions of other appellate courts

that had the benefit of an extensive reliability hearing held at trial. Holmes, 135 S.W.3d at

190; Hernandez, 116 S.W.3d at 35-36.

3) Prior Determination of Reliability

“Under the third alternative manner by which we may take judicial notice of a scientific

theory or technique's validity or reliability, when it has been shown so convincingly before a

fact-finder that an appellate court can conclude the matter should be judicially noticed, the

appellate court can decree that the matter will henceforth be the subject of judicial notice. …

In such instances, judicial notice of the reliability of the scientific theory or technique can

then be taken by trial and appellate courts within the decreeing court's jurisdiction in future

cases in which the issue arises.” Holmes, 135 S.W.3d at 195; Hernandez, 116 S.W.3d at 37.

92.

In Applicant’s case, none of these alternative theories apply. First the Flynn Effect is not a

matter of common knowledge within the legal community of this State at this time. Second and

third, no appellate court in this State has accepted the Flynn Effect as scientifically valid or

reliable as of this date.

Appellate Decisions On Flynn

93.

The Texas Court of Criminal Appeals and the 5th Circuit Court of Appeals have addressed

this issue several times, as recently as 2008. The Texas Court of Criminal Appeals has declined

to apply the Flynn Effect to mental retardation claims, referring to it as “an unexamined

scientific concept that does not provide a reliable basis for concluding that an appellant had

significant[ly] subaverage general intellectual functioning.” Neal v. State, 256 S.W.3d 264, 273

(Tex.Crim.App.2008); Ex parte Blue, 230 S.W.3d 151, 166 (Tex.Crim.App.2007).

94.

“Because the Supreme Court in Atkins left to the states the task of defining mental

retardation, the Texas court's approach to this aspect of the definition of mental retardation is not

contrary to, or an unreasonable application of, clearly established federal law. In addition, this

circuit does not recognize the Flynn Effect as a valid scientific theory. In re Mathis, 483 F.3d

395, 398, n. 1 (5th Cir.2007). No clearly established federal law requires that a state or federal

court only accept IQ scores adjusted by the Flynn Effect or the Standard Error of Measurement.”

Cullen v. Pinholster, ____ U.S.____, 131 S.Ct. 1388, 1398–99, 179 L.Ed.2d 557 (2011). Harris

v. Thaler, 464 Fed.Appx. 301, 307-308, 2012 WL 795698, 5 (C.A.5 (Tex. (C.A.5 (Tex.)(2012).

Conclusions

95.

As a result, there currently exist several Federal and State appellate court opinions on this

matter that do not recognize the Flynn Effect. At this stage it would be unprecedented without

any evidence before this Court to take judicial notice of, and give credence to, findings from

another District Court (from another jurisdiction) that has not stood the test of an appellate court

review. Furthermore, there is no evidence before this Court to warrant even taking such a

position, because, unlike the Cathey case, Applicant failed to provide any evidence to support

the claim that the Flynn Effect applies in this case.

Even if the Flynn Effect is Found to be Valid, There Are Factual Distinctions between Applicant &

Cathey

96.

Even if the Flynn Effect is found to be scientifically reliable, this Court finds that Applicant

is still not mentally retarded applying the Flynn Effect to an Atkins analysis. If the Flynn Effect

is found to be a valid scientific theory, there are significant differences between Cathey and

Applicant that support this Court’s decision that Applicant is not mentally retarded and that

Applicant and Cathey are factually distinguishable.

97.

The Court finds that the Flynn Effect is only relevant in an Atkins hearing when it is

undisputed that the full scale IQ of a defendant would make him borderline mentally retarded;

otherwise, the required downward departure of the “Flynn” score would be meaningless in an

Atkins analysis. As noted in the prior example, if a subject obtained a full scale IQ of 100 and

the test administered was 10 years old, the correct score according to Flynn would be reduced

by 1/3 of a point per year for a total reduction of 3 points that would make the “Flynn” factored

score 97. That score would be meaningless in an Atkins Hearing, because it would have no

relevance in a mental retardation claim.

98.

In Applicant’s case, because of the malingering evidence, additional IQ scores and all other

evidence considered under the Briseno factors, Dr. Allen never agreed with Applicant’s theory

that Applicant was and is mentally retarded. There was no evidence presented to this court by

Applicant that would assist it in determining how Flynn applies to Applicant, in light of Dr.

Allen’s testimony that he found significant signs of malingering and that he was not classified

as mentally retarded under any of the prongs required under Atkins, nor was there any evidence

presented by the defense that would explain the impact of Applicant spending most of his adult

years and even younger years incarcerated and how that would tend to increase his IQ under the

Flynn Theory . COURT’S ATTACHMENT #5

99.

An analysis of both cases reveals significant factual distinctions between the Cathey case

and Applicant’s case. In Cathey the Court heard testimony from Dr. Flynn himself and two

other Ph.D’s, in addition to testimony by affidavit from one other Ph.D and six lay witnesses.

COURT’S ATTACHMENT #3. Again, in Applicant’s case, not a single expert was called by

Applicant. In Cathey, based on Applicant’s proposed factual findings, the judge accepted

Cathey’s “TDC Intake IQ Scores” as valid IQ scores (in the low 70’s), whereas Applicant’s two

highest IQ scores were “TDC Intake IQ Scores” of 101 and 111. Unlike Cathey’s Findings,

Applicant is asking that the TDCJ Intake scores be ignored. (Applicant’s Proposed Findings).

In Cathey the judge accepted the proposed findings by noting that “the capital offense did not

demonstrate forethought, planning, or complex execution of purpose on his part.

To the

contrary, the facts indicate and provide evidence of Mr. Cathey’s deficits and gullibility.”

COURT’S ATTACHMENT #3

This Court finds that in Applicant’s case, not only did the

Court hear evidence of prior criminal acts that were the opposite of this premise, but Applicant

was convicted of capital murder that involved multiple, well thought out and planned murders

that took place over a significant period of time. The murders were all committed by Applicant

himself. In other words, this was not a case involving the law of parties or a single impulsive

act, lacking forethought or planning, like the Cathey case.

100.

Accordingly, this Court concludes that Applicant’s case and the Cathey case are both

factually and legally distinguishable. Even if the Flynn Effect is found to be valid science, and

Cathey is entitled to relief in Harris County, this Court finds and concludes that the Flynn Effect

does not provide Applicant with the relief sought, based on the evidence (and lack of evidence)

presented to this Court.

101.

Therefore, this Court makes the following findings regarding the Flynn Effect:

a. The Court finds that the Flynn effect is a theory that a population’s IQ test scores increase

over time, therefore test scores on dated tests should be adjusted upwards.

b. The Court finds that the Flynn effect does not apply in this case because: (1) it violates

the testing rules and breaches the standardization of the test; (2) it is an application not of

behavioral science but advocacy; (3) the WAIS- IV is harder than the WAIS-III, so WAIS

IV scores are slightly lower now; (4) the Flynn effect represents temporary fluctuations

in which IQ scores seem to be going up over time, but IQ scores eventually regress

toward the mean; (5) Flynn himself did not recommend applying an adjustment to an

individual score but was simply reporting a group statistical phenomenon; (6)

Applicant failed to put on any evidence to show the Flynn Effect applies in this case,

except the cross-examination of Dr. Allen. 4 RR 98-99; 6 RR 100-104; R88.

c. The Court finds that even if this theory applied, Applicant’s IQ would still not be in the

range of mental retardation due to the high scores on malingering and other evidence

that fails to satisfy the requirements under Briseno.

d. The Court finds that Applicant cannot demonstrate significantly sub-average general

intellectual functioning. R81 at 11.

Adaptive Deficits

102.

In Neal this Court reiterated and reaffirmed the original factors required in determining

mental retardation under a Briseno analysis. “For the purposes of an Atkins claim, we have

defined mental retardation as 1) significant sub-average general intellectual functioning, usually

evidenced by an IQ score below 70, that is accompanied by, 2) related limitations in adaptive

functioning, 3) the onset of which occurs prior to the age of 18.” Neal, 256 S.W. 3d 264.

103.

“Factors relevant to evaluating the three prongs include: 1) Did those who knew the person

best during the developmental stage—his family, friends, teachers, employers, authorities—

think he was mentally retarded at that time, and, if so, act in accordance with that

determination? 2) Has the person formulated plans and carried them through or is his conduct

impulsive? 3) Does his conduct show leadership or does it show that he is led around by others?

4) Is his conduct in response to external stimuli rational and appropriate, regardless of whether

it is socially acceptable? 4) Does he respond coherently, rationally, and on point to oral or

written questions or do his responses wander from subject to subject? 5) Can the person hide

facts or lie effectively in his own or others' interests? 6) Putting aside any heinousness or

gruesomeness surrounding the capital offense, did the commission of that offense require

forethought, planning, and complex execution of purpose?” Gallo, 239 S.W.3d at 769–70

(quoting Briseño, 135 S.W.3d at 8–9).

104.

“When an affirmative defense of mental retardation is asserted at trial, the defendant bears

the burden to prove by a preponderance of the evidence that he is mentally retarded. In

reviewing the sufficiency of the evidence to support a finding on mental retardation, we

examine whether the finding is so against the great weight and preponderance of the evidence

so as to be manifestly unjust. We give ‘great deference’ to the findings below, as the fact finder

is in the best position to assess witnesses' credibility and resolve any conflicts in the evidence.”

Gallo, 239 S.W.3d at 770; FN26. Id. (quoting Meraz v. State, 785 S.W.2d 146, 155

(Tex.Crim.App.1990)); Hall v. State, 160 S.W.3d 24, 40 (Tex.Crim.App.2004).

Applicant’s Evidence

105.

To demonstrate that he has adaptive deficits, Applicant presented testimony from three

persons: (1) Coletta DeArman, Applicant’s fourth grade teacher; (2) Keith Springer, Applicant’s

childhood friend; and (3) Debbie Galvan, Applicant’s sister.

Coletta DeArman

106.

The Court finds that Coletta DeArman taught school for thirty-five years and was Applicant’s

teacher from 1968-69 at Dolphin Terrace Elementary School. Her memory has clearly

faded over the years as she could not answer several questions due to her lack of memory. 2 RR

24, 33-36, 51.

107.

The Court finds that Mrs. DeArman made Applicant sit right by her desk so that she could

give him the attention she believed he needed and did not receive from other teachers. She

would explain things to Applicant personally, and if he failed to understand, she would give

him individual attention until he completed his work. 2 RR 25-29, 53-54.

108.

The Court finds that Mrs. DeArman would read instructions to Applicant and tell him

what he needed to do, especially with regard to math. She would then have him write the

answers down on paper or the blackboard, unlike other students. Applicant followed her

instructions “very good.” 2 RR 30-32.

109.

The Court finds that Mrs. DeArman could not recall visiting with Applicant’s parents,

except when she met his mother one time at an open house, and she never met Applicant’s father.

Except for one occasion, she did not recall Applicant misbehaving in class. 2 RR 33-35.

110.

The Court finds that Mrs. DeArman could not recall Applicant interacting with other

kids in class because he was always up by her desk. She did not know if Applicant interacted with

other children outside during P.E. because she was inside the classroom. In terms of his selfesteem, she thought Applicant “liked himself”; “He was always doing things for himself and

being right at the desk. And he - - and he was interacting with me with the subject matters.”

2 RR 35-36. 41-42.

111.

The Court finds that Mrs. DeArman believed that Applicant’s grades improved when she

taught him because she worked with him. Applicant’s grades probably would have been

lower than C’s had she not given him extra attention. At the time, the school district did not

have special education programs. If it had, she would have referred Applicant for the

program because he needed the individual help. Applicant was comparable to other kids she

eventually did refer to the special education program. 2 RR 37-39.

112.

The Court finds that Applicant passed Mrs. DeArman’s classes because she gave him special

attention; that she gave Applicant a 3 or 4 out of 5 on personal qualities, such as “effort,”

“energy,” and “self-expression”; that she gave applicant a 4 on “social adjustment” but that he

could have done better; and that Applicant was able to sufficiently communicate with her. 2 RR

43-46.

113.

The Court finds that Mrs. DeArman agreed that Applicant’s troubles in school could be due to

factors other than intelligence, including dyslexia or trouble reading, a poor home life, or being held

back a grade. Leo Wood, Applicant’s father, confirmed that Applicant suffered from learning

disabilities and, as a result, was in special education classes. 2 RR 47-50; 4 RR 116-117. The

Court finds that, after being visited twice by his defense team, Mr. and Mrs. DeArman wrote to

Applicant, telling him that they “loved him” and would pray for him, R71 at 2128. The Court

finds that Applicant wrote back to Mrs. DeArman thanking her for helping him. R72 at 23062307. Although she did not recall exactly what he said, she referred to his writing as “very nice.”

2 RR 51.

114.

The Court finds that Mrs. DeArman never stated that she believed Applicant was mentally

retarded, nor did she indicate that his problems in school had anything to do with mental

retardation or a low IQ. In fact, she agreed that some of his problems in school might have

nothing to do with intelligence.” 2 RR 47-48.

115.

The Court finds that Mrs. DeArman’s testimony fails to illustrate adaptive deficits related to

mental retardation. 2 RR 30, 36, 44-46. And repeatedly stated she could not remember much.

Keith Springer

116.

The Court finds that Keith Springer lived next door to Applicant when they were children.

Applicant was 10 or 11 years old when his family moved next door to Springer, and Applicant is

a few years older than Springer. 2 RR 57-58, 82.

117.

The Court finds that Springer and Applicant were pretty close friends. Specifically, Springer

testified, “We just hung out on a daily basis. We played basketball in each other’s yards, sat

around and listened to music at his house, just normal childhood things. You know, sit around and

hang out with the neighborhood kids.” They went to the same school but Applicant was a few

grades ahead. 2 RR 58-59.

118.

The Court finds that Springer testified Applicant very rarely interacted with other children in

the neighborhood. He never knew Applicant to bring home friends from outside the

neighborhood, and Applicant was withdrawn and not very social. Also, Applicant was not able

to make friends with people on his own and usually spent time with kids 3 or 4 years

younger than him. 2 RR 59-62.

119.

The Court finds that Springer said Applicant could not read a clock and tell time; that his

ability to communicate was not up to his age level, and that Applicant was immature. Applicant

did not interact with people who were older or do things kids his age were doing. Applicant was

also physically uncoordinated. 2 RR 63-64, 79.

120.

The Court finds that Springer stated Applicant’s mind would wander when conversing and

that it was difficult to keep his attention. But because Springer spent a lot of time with

Applicant, he did not have trouble talking to him and he did not think Applicant’s abilities

were abnormal. 2 RR 65-66.

121.

The Court finds that Springer testified that other kids in the neighborhood would call

Applicant names, threaten him, spit on him, kick him, and chase him. However, he would take

the hurt and continue hanging out with these children if it meant he was accepted. Also,

Applicant was a follower and would do things he knew would get him in trouble with his father

as long as other children accepted him. 2 RR 68-73.

122.

The Court finds that Springer believed Applicant was not a good speller, had trouble

with all school subjects, had trouble counting change, and could not read a tape measure. 2 RR

76-78.

123.

The Court finds that Springer testified Applicant’s father once beat him, that Applicant’s

mother was mean, and that Applicant received the blame for the majority of the problems in

Applicant’s house. 2 RR 79-81.

124.

The Court finds that Springer said he lost touch with Applicant after Applicant went to jail.

After jail, Applicant started spending time with people in a church group who were his age.

Springer conceded that Applicant may have interacted with them pretty reasonably. Springer also

conceded that he did not say Applicant never interacted with children his own age, only that

the majority were younger. 2 RR 59, 86-87. The Court finds that Springer acknowledged

they lived in a close neighborhood of children and that they all did what normal children

do: draw, listen to music, play basketball, hang out in the desert. Springer said: “It was just

normal kids’ activities.” 2 RR 88-90.

125.

The Court finds that Springer conceded that he does not know how Applicant interacted

with his fellow students in school because they were in different grades. Further, he was not

aware that Applicant was expelled from school for fighting. He also agreed that children can

get awkward going through puberty, which might explain why Applicant was not very

coordinated when they spent time together. 2 RR 92-93.

126.

The Court finds that Springer admitted that other children bullied Applicant because of

problems associated with his mother’s behavior. 2 RR 88, 95.

127.

The Court finds that Springer could not say he believes Applicant is mentally retarded,

only that he felt Applicant was slow and behind his age group. 2 RR 98.

128.

The Court finds that Springer’s testimony demonstrates that Applicant’s childhood

difficulties were primarily the result of family dysfunction and that his behavior was

otherwise normal.

129.

The Court finds that Springer’s testimony that Applicant could not read a clock or tape measure

is not credible.

130.

The Court finds that Springer’s testimony fails to illustrate adaptive deficits related to

mental retardation.

Debbie Galvan

131.

The Court finds that Mrs. Galvan is Applicant’s older sister and that Applicant also has a

younger sister and brother as well. Mrs. Galvan left home when she was 18 years old and saw

Applicant on a daily basis before that time. 2 RR 105-06.

132.

The Court finds that Mrs. Galvan testified that the children had daily chores and that

Applicant was supposed to take out the trash; however, he did not do this daily and often had to be

reminded. On other tasks and “big cleaning” days, Applicant had to be reminded to stay on task

or he would do something else. 2 RR 108-11.

133.

The Court finds that Mrs. Galvan stated that Applicant got spanked more than the other

children for not completing tasks or following rules and that he would sometimes get in

trouble for not coming to dinner on time. And of all the children in the house, Applicant got

in the most trouble and appeared not to learn from his experiences. 2 RR 112-13, 117, 139, 146.

134.

The Court finds that Mrs. Galvan said Applicant was held back in school twice and

would get in trouble at school. Math was a hard subject for Applicant, and she never saw him

read a book. 2 RR 117-19.

135.

The Court finds that Mrs. Galvan stated Applicant would not spend money wisely and

would borrow money from her to play games in the store, which seemed immature to her. 2 RR

120-22.

136.

The Court finds that Mrs. Galvan testified that Applicant seemed to fit in fine with the kids

who were his friends. When Applicant tried to hang around her friends, he was treated as Mrs.

Galvan’s “goofy younger brother.” Applicant tried to fit in by being a clown and doing things

that would get him attention, which were sometimes inappropriate. 2 RR 124-26.

137.

The Court finds that Mrs. Galvan stated that Applicant did not get picked on per se by

other boys, but she recalled a few incidents where other boys “messed” with him. Applicant did

not mind if the person who picked on him wanted to be friends the next day. 2 RR 126-30.

138.

The Court finds that Mrs. Galvan said Applicant liked to live on the edge and would often

take risks resulting in physical injury. But he would “dust himself off” and continue to do them.

2 RR 130-31.

139.

The Court finds that Mrs. Galvan testified their parents had a very unstable relationship

and eventually divorced. Their mother, who died in 2004, was not physically or emotionally

healthy. She was diagnosed with Alzheimer’s at a very young age and had anxiety, depression,

and multiple sclerosis in her early 40’s.

Their mother took medication for anxiety and

depression and went to the state mental hospital when the children were young. Mrs. Galvan and

Applicant were sent to foster care at the time, and Applicant went to foster care another time

when he was 14 years old. Their mother’s physical and emotional issues worsened and she could

no longer care for her children, so Mrs. Galvan took the responsibility for doing housework,

cooking, making lunches, and getting the children up for school. Because of her issues, the

mother wanted the house quiet like a hospital environment. 2 RR 132-38.

140.

The Court finds that Mrs. Galvan testified that their father had high expectations and that

all the children, not just Applicant, failed to meet those expectations. Mrs. Galvan believes that

Applicant was punished too severely, and although their mother once sought out help for

Applicant with regard to his school work, their father stopped him from getting the help. 2

RR 139-42, 148.

141.

The Court finds that Mrs. Galvan said the children rarely received positive attention from

either parent and that Applicant once ran away from home. 2 RR 150-51.

142.

The Court finds that Mrs. Galvan said that although Applicant would get in a lot of trouble,

“he was just a boy.” And despite the fact that she did not believe Applicant had much common

sense or maturity when he was growing up, she did not think he was mentally retarded. 2 RR

142-43.

143.

The Court finds that Mrs. Galvan testified at Applicant’s capital murder trial that

Applicant was no different than other boys. 2 RR 152-53.

144.

The Court finds that Mrs. Galvan testified that Applicant is extremely talented with his

hands, and taught himself to play both the guitar and drums. 2 RR 153, 156.

145.

The Court finds that Mrs. Galvan testified that she receives lots of mail from Applicant and

that the mail shows he is aware of current events, for example economic conditions in the United

States and criminal activity in Mexico. Applicant has also read the “Twilight” book series and has

figured out ways to get his family to send him magazines that he is not supposed to receive in

prison. 2 RR 158-63.

146.

The Court finds that Mrs. Galvan conceded that Applicant has asked her to help him find

his trial transcripts and that Applicant sent her explicit instructions about why he wanted his

trial transcript, namely to read Sweeney’s and Wells’ testimony and the testimony from the

experts regarding the fiber. Also, Mrs. Galvan was going to send him transcripts and mark it

“legal mail” in the hope that it would not get copied by prison officials, but Applicant warned her

against doing that. 2 RR 168-72.

147.

The Court finds that the troubles Applicant faced growing up are not indicative of mental

retardation but are primarily due to family dysfunction and a chaotic household.

148.

The Court finds, based on Mrs. Galvan’s testimony, that Applicant behaved as a normal

boy when growing up.

149.

The Court finds that Applicant’s sister did not believe Applicant was mentally retarded. 2

RR 142.

150.

The Court finds that Mrs. Galvan’s testimony fails to illustrate adaptive deficits related to

mental retardation.

151.

The Court finds that Mrs. Galvan’s testimony fails to support, and in fact undermines,

Applicant’s mental-retardation claim.

State’s Evidence

DSM-IV Factors

152.

The Court finds that Dr. Allen had adequate sources of information to consider for his

adaptive behavior analysis of Applicant, and that Dr. Allen’s conclusions and opinions are

reliable and credible.

Functional Academics

153.

The Court finds that Dr. Allen reviewed Applicant’s school records and compared them with

a typed-out copy prepared by the attorneys for the State and found the typed-out copy to be an

accurate transcription except for an address in error. The Court concurs. 5 RR 189-191, R1-A,

1-B.

154.

The Court finds that the credible evidence indicates Applicant suffered from emotional

problems, hyperactivity, an unstable home life, and frequent absences from school which

likely impaired his opportunity for education and contributed to his poor academic

performance.

D4; D5; (testimony of Coletta DeArman, Keith Springer and Debbie

Galvan.)

155.

The Court finds that Mrs. DeArman’s testimony confirms that Applicant had a learning

disability as a child, not mental retardation. For instance, Mrs. DeArman had to place Applicant

by her desk to control him. She had to repeat information to Applicant, which is consistent with

Applicant having ADHD. Moreover, her accounts of seeing Applicant playing alone in the

sand pile indicate that the school did not know how to properly handle Applicant, which led

to gaps in his learning and, consequently, made it difficult for Applicant to advance to the next

level. 4 RR 107-10.

156.

The Court finds that Applicant’s school records indicate learning problems; Applicant’s

grades were generally in the low passing range, and the records do not suggest he was in the

second percentile. Mrs. DeArman’s personal quality marks show that Applicant was in the

mean. However Applicant’s records also note his problem behavior. One teacher stated:

“[Applicant] is severely disturbed, paranoid, pathological liar, steals or destroys anything,

extremely insecure.” Again, this remark is indicative of a conduct disorder which would

impair his educational progress. 4 RR 117-32; R1-C; D3.

157.

The Court finds that Applicant’s letters to the trial judge in the Christi LeClaire case were

reasonably well-written, anticipated a likely concern of the judge in a relatively sophisticated and

insightful manner, attempted to manipulate/persuade that judge, and are not consistent with

the functional academics expected of a mildly retarded individual. D6 at 187-88. Likewise

Applicant’s letter requesting parole in 1986 is inconsistent with the functional academics

expected of someone with mild mental retardation. R67 at 50-51.

158.

The Court finds that Applicant checked out a quantity of books while incarcerated and that

this pattern is inconsistent with the functional academics of someone with mild mental

retardation. R16 at 1-2; R60 at 1290 (reading Tom Clancy novels).

159.

The Court finds that Applicant’s letters reveal awareness and understanding of current

events that are inconsistent with the functional academics of someone with mild mental

retardation. For example, Applicant discussed global warming as a result of pollution, the

British Petroleum oil spill and greed as motive, etc. R58 at 985; R59 at 1154; R 85-86 at 2397; 6

RR 145.

160.

The Court finds that Applicant performs sufficient arithmetic, writes orders to publishers for

books, and works out puzzles such as “Crostics,” which is inconsistent with the functional

academics expected of someone with mild mental retardation. R59 at 1258-1259, 1261. The

Court is not persuaded by Applicant’s argument that mildly mentally retarded people can

perform up to a sixth grade level, in part because he so consistently performs beyond that

level when it is to his benefit.

161.

The Court finds that Applicant understands concepts of identity theft and not being liable for

expenditures by someone else, R71 at 2083, and, as

analyzes his case in

shown

his

correspondence,

a manner inconsistent with the functional academics expected of

someone with mild mental retardation. R60 at 1277; R62 at 1570, 1588.

162.

The Court finds that Applicant took the GED in prison and passed all sections but for one.

This is inconsistent with the functional academic ability of someone with mild retardation.

R32 at 57; 6 RR 26; 34 RR 142; R81 at 7.

163.

The Court finds that Applicant’s vocabulary and spelling clearly exceed the functional

academic skills of someone with mild mental retardation. See Finding 67, supra.

164.

The Court finds that Applicant’s request for a Scrabble dictionary indicates functional

academic skills exceeding those of a person with mild mental retardation. R57 at 854.

165.

The Court finds that there are numerous reasons Applicant could have been retained to repeat a

grade, including emotional problems, a learning disorder, conduct disorder, and ADHD. The

fact that Applicant was retained does not indicate a functional academic deficit due to mental

retardation. 5 RR 195; 6 RR 22-23.

166.

The Court finds that Applicant’s mechanical and conceptual abilities with maintaining

automobiles while working in the bus barn indicate functional academic skills that exceed

those expected of a mentally retarded person, specifically his conceptual understanding of the

operation of complex tools, his diagnostic skills, and his ability to correctly repair the tools with

the appropriate parts. R69 at 1; R84 at 3.

167.

The Court finds that on the WRAT-4, Applicant’s lowest score was in math computation,

but his scores placed him well above the second percentile. Most scores were at high school

level. It is also likely that Applicant’s scores on the WRAT-4 reflect poor effort. 4 RR 138; R81

at 7.

168.

The Court finds that Applicant does not persuade the Court that he has a significant deficit in

the adaptive behavior area of functional academics.

Communication

169.

The Court finds that, based on Dr. Allen’s assessment, Applicant does not have a deficit

in language skills.

understood

Dr.

Allen’s instructions and conversation

throughout the interview. Applicant receives and responds to large amounts of mail in a manner

indicating he understands what he reads. He understands orders from correctional officers, and

expresses his needs, wants and desires in both oral and written form, as demonstrated by his

TDCJ records. He shows adequate capacity to concentrate when someone is speaking to him

and can follow instructions. He has good articulation and an adequate vocabulary, he uses

words in proper context, and he speaks in full sentences. R81 at 6-7.

170.

The court notes that Applicant drafted the following letters and documents

which

indicate no significant deficit in the area of communication:

Well, a little news, I think. It looks like I have a really good chance to

get a stay. I don’t know if I already told you about it, but I have some

conflicting feelings about it, but at this point, we’ll see where it [goes].

My new attorney is wanting to raise the Atkins issue, which is the

retardation issue. Well, we all know that that is not going to work, but

he wants the time to raise other issues. And what he wants overall is to get

me life. 4 RR 144; R15 at L-7. [Emphasis added.]

We got my Feb. hearing set off until June 20th, my birthday, by the way.

And then I get a call from my lawyer who’s helping me, and the

attorneys from El Paso are wanting to quit, because they say the attorney

from San Francisco is doing too much work.

And they say they can’t

trust him. Well translated, that means that he’s trying to help me, and they

don’t like him. He’s making them do too much work, and so they’ve been

butting heads for a while. Well, it turns out that they’re going to make my

bench warrant back down there again in the next two or three weeks.

Damn. We got the State to approve new DNA test, so we’re waiting for the

result of that stuff, but who knows what it will be? It could be soon or

months, who knows. But the bottom line is El Paso wants me killed. They

want this case to disappear, so people will quit butting their noses into it,

and that’s what they don’t want. There are too many people getting

interested in my case, now, and, boy, they do not like that. Anyway, I do

not feel like making that trip right now, and if I do it, it looks like it will screw

up a special visit with me and a girlfriend from Canada once again, and this

will make three years in a row. Take my word for it, she will not be happy. 4

RR 145-46; R63 at 1661.

Cellmark, the company that’s going to do the DNA testing, has found a

skin sample, but not the two stains from the other clothing. But the county

clerk in El Paso said that they have the box of stuff from the case, so at this

point, Greg will let me know his plans later, but right now Cellmark is

supposed to do the testing on the skin that they said was from under the

fingernail. Greg said, Yeah, they just happened to have skin, but not the two

spots from the other clothing. He said, you know, I’m getting the

impression that these people aren’t trusted to do the right thing. It’s like,

Well, duh, dude, you’re talking about the most documented corrupt city in

Texas. Get used to it. 4 RR 147-48; R63 at 1667.

The case is totally false and was given in retaliation. The inmate in

question was the second shift population, Porter, on said day, 19th, the inmate

had been slamming the large metal doors into the walls excessively hard all

through the shift. The inmate and I got into a heated argument, all the

while the inmate is coming up to two rows to sweep. He continued to use

racial slurs and was cursing to which Officer Beard allowed inmate to do

so. Officer Beard also let the inmate come up to two row unescorted and

did not tell inmate to stop with the cursing and racial slurs, and did not

stop inmate from creating a hostile situation. While Officer Ferguson was

standing near the rail, said inmate made a racial remark and leaned over into

my door and made a kissing gesture. The inmate, he then responded by

leaning into my door and spitting on me. About seven to ten minutes

later, Officer Ferguson came to my cell and asked if I was all right. I said

that I was and that I wanted someone to clean the spittle off my door, and

then I wanted a reigning officer to document what happened. 4 RR 15051; R34 at 39.

I saw Matthew last week, not really any new news, but right now, he’s

pursuing the retardation issue, and boy, don’t think I haven’t heard the last of

the jokes of that crap here. These guys are raging on my butt good. But I

also found out they have been making copies of my incoming and outgoing

mail for sometime, a long time could be. He had copies of letters that I

wrote to you even last year talking about this issue that he got from the A.G.’s

office, and the D.A. I’m sure. But I also learned that that is a common

practice if you’re a suspect in unsolved cases, which El Paso sure says so. 4

RR 153-54; R48 at 123.

I am actually swamped at the moment. Hard to believe that in prison you

would be swamped, but I have a ton of writing to do. Then I’m trying to

finish up three paintings for people. If my typing sucks, then go with it, but

I’ve been hitting these buttons for about three hours now and they’re all

starting to look alike. At the moment, your shit is not that serious, but

enough serious to really change your life, and for worse, wake up, man. First

thing you need to do is talk to a lawyer and try to get your troubles worked out

with whatever it is you need to do. If you start the ball, they pretty much try

and give you a break. If they have to go after you, then you [lose], man.

Get your bills worked out and then work on a driver’s license. You need to

talk to a public defender. Those guys who work for the city help you

when you can’t—cannot afford an attorney. Tell them the situation and

that you want to make things right and work out something with the courts.

That’s first, you have to talk to some kind of lawyer first. Get your tickets

taken care of first, then work on your license. If everything works out

okay, then you worry about the other stuff later. 4 RR 155-56; R54 at 549.

I’m trying to do positive criticism here, to you, so I’m going to tell you

something that could literally change your life. Are you listening? Listen

to those who have the wisdom to offer knowledgeable and positive criticism

to you. I’m not talking about you Joe Blow Drinking Buddy, or whatever, I’m

talking about you, Deb, dad or even me. Let me tell you something, if I had

only listened to what people were trying to tell me instead of taking it

like, Oh, quit telling me what to do, I'm fine, I would not be here today.

And that, little brother, two can believe that’s the truth. Does it sound like

all I’m doing is preaching? Well, maybe I am. I don’t intend to, but it

comes out that way. I’m angry, you know, really, really pissed off that I don’t

get a life. The things that you get to do every day, I would love to be able to

do, but can’t. I can’t even get to eat real food, sleep in a real bed or even piss

on the grass. I haven’t felt grass in 20-something years. And am I pissed

that you’re not taking advantage of the life that you have? You better

damn believe it -- damn well believe it. 4 RR 159-60; R56 at 771.

Dear [National Geographic], When I received your renewal notice on my

subscription, it really made me angry enough to write this letter. In the both

times that I had a subscription to National Geographic, I received (2) two

issues on each subscription, and NO others. After receiving two issues, I did

not get another one. I had expected better from your magazine. The

one time that I wrote to find out what the problem was, I [received] no

reply. Thank you, but until I can get better service, and [receive] what I paid

for, please do not send me another renewal notice. R15 at L-6.

Okay, a little on what[’s] happening with the case. I just got a package of

stuff from Greg, several motions, and the [S]tate[’s] response to some

of those motions. Greg is trying to get another [extension], and the [S]tate

is [aggressively] refusing it, but [t]hat is up to the judge. ‘I’ strongly

urged Greg to [keep] looking for more evidence that they might have had, and

did not use, and when he did he found four more [fingernails] from

(illegible due to stamp) skin sample that is at [C]ellmark right now. But I

knew about that stuff since trial, and the [S]tate said that that[’s] all they

were was just the nails, and no trace [evidence], well Greg wants those

[tested] too, now get this, the [S]tate at first agreed, but then came back and

said, ‘Uh no! We will only agree to the testing if you cease trying to get

[extensions] on the [A]tkins claim’! can you [believe] that crap? Here they

are trying to [bargain] in a death penalty case. We’ll give you this, but you

hav[e] to stop doing what he’s ‘supposed’ to be doing! Anyway he said hell

no, so they have a hearing on the 15th, for a status update. They [were]

going to take me back, but the judge said no, they didn’t need me. Greg said

that they are trying to move fast on this, because they want to set another

date this year.The judge seems like he’s not trying to hear it and wants

things settled pretty quick. Greg checked with [C]ellmark, and they

still have not done anything with the stuff, but he said that they have

priority of stuff before us, that[’s] how they work, you just have to wait

your turn. R65 at 1958-59.

171.

The Court finds that, according to Dr. Allen, these letters reflect normal ability to

conceptualize, understand, think, plan and anticipate the future. Applicant is able to communicate

in writing how he feels and discuss relationships with attorneys. He is aware of concepts like

DNA testing, and he understands the legal case against him, as well as the implications of Atkins.

Applicant utilizes sophisticated adjectives and vocabulary words not indicative of a person with

mental retardation. He can advise others on personal issues, and has the capacity to put

together coherent points in an argument in an effort to persuade someone. And he clearly

understands how the system works and how it can be manipulated. 4 RR 144-60.

172.

The Court finds that Applicant utilizes the grievance procedure to effectively

communicate his objections to mailroom actions and disciplinaries he received, in a

manner

inconsistent with the communications abilities expected of a person with mild mental

retardation. R16 at 34, 40; R34 at 39-40; R35 at 77-78.

173.

The Court finds that Applicant does not persuade the Court that his decision to send

privileged letters from his attorney to his sister indicates that Applicant fails to see the

subtleties or nuances of a complex or novel situation, that he fails to understand the

implications of his mail being copied for review by the State, or that he is mentally retarded. 6

RR 35-36.

174.

The Court finds that, prior to his capital murder trial, Applicant drafted a handwritten

motion to have Jaime Esparza dismissed as his attorney, claiming that Mr. Esparza lacked

experience in capital murder cases. Applicant requested that Tom Hughes be appointed to assist

his lead attorney, Adolfo Quijano. He later filed another motion to have counsel withdrawn,

and then moved to have that motion withdrawn. Following trial, Applicant drafted a

handwritten motion to the court requesting that his trial attorneys be dismissed and that new

counsel for his appeal be appointed. The court granted that motion. CR 5-7, 213-17, 306-07, 313.

These actions are inconsistent with the communication abilities of someone with mild mental

retardation.

175.

The Court finds that Cheryl Whitesel is a TDCJ employee who has known Applicant for about

six years.

She currently works as a death row major secretary, and has had frequent

interactions with Applicant in managing death row property. 3 RR 72-73.

176.

The Court finds that Ms. Whitesel said when she converses with Applicant, he

understands what he needs to do, pays attention to what she’s saying, has no problems

talking to her, and will speak in long sentences. Applicant does not have trouble expressing

himself, and he conveys his needs in a normal fashion. The interactions she has with Applicant

are no different than those with any other inmate. 3 RR 75-76.

177.

The Court finds that Ms. Whitesel stated that Applicant can be manipulative, in that he

behaves in a very polite manner when he wants something out of the ordinary but then gets

very upset if his request is rejected. 3 RR 76-77.

178.

The Court finds that Ms. Whitesel testified that she considers Applicant to be of

average intelligence compared to other inmates on the Polunsky Unit and that he converses

with other inmates in a normal fashion. 3 RR 77-79.

179.

The Court finds that Ms. Whitesel said Applicant has no problem writing or filling out

forms to designate who should receive his property, although she has had problems with other

inmates failing to understand this task. And with regard to these forms, she does not do

anything for him that she does not do for other inmates. 3 RR 78, 100-01.

180.

The Court finds that TDCJ escort officer Shaun Munson testified that he has conversed with

Applicant on several occasions and considers Applicant to be of average intellectual ability and

has typical interactions with other inmates. 3 RR 106.

181.

The Court finds that Shaun Munson said that he testified at the hearing for Johnny Paul

Penry, whom Munson considered to be “slow,” even though Penry was found to not be

mentally retarded. In comparison, Munson does not consider Applicant to be “slow.” In fact,

Applicant once expressed an interest in the Penry case. 3 RR 110-11.

182.

The Court finds that Shaun Munson stated he once had interactions with an inmate named

Doyle Lange, but he could not carry on a conversation with Lange because Lange was “slow”

or mentally retarded. Munson has never had that problem with Applicant. 3 RR 116-17.

183.

The Court finds that Shaun Munson does not consider Applicant to be mentally retarded.

3 RR 111.

184.

The Court finds that Herbert Wilbanks currently works as the transportation and

maintenance supervisor for TDCJ mechanical at the Michael’s Unit. In 1985 and 1986, he was

employed at the Beto Unit II, where he supervised the mechanical department at the bus barn,

which refurbishes school buses. It was during that time that he met Applicant, who was

working in the tool room, which is a secured area with sensitive tools, such as hydraulic and

pneumatic welding tools. 3 RR 121-23.

185.

The Court finds that Herbert Wilbanks never had any difficulty conversing with Applicant. 3

RR 132. The Court finds that John Mulaney was Applicant’s parole officer in El Paso in 1987.

3 RR 151.

186.

The Court finds that John Mulaney testified Applicant was on intensive supervision, which

required more visits. During these visits, Applicant was never a problem for Mulaney; he was

polite, he did not argue, and he was easy to supervise. 3 RR 154-55.

187.

The Court finds that John Mulaney had conversations with Applicant and never recalled

having to “dumb down” the conversation so that Applicant could understand him. 3 RR 156.

188.

The Court finds that Applicant’s parole was eventually revoked because he violated a

condition of parole.

When John Mulaney visited Applicant in jail, he took a copy of

the PSV-48, the rights of releasee in revocation process, and read it to Applicant. Applicant

indicated by his signature that he understood his rights. 3 RR 164-65; R67 at 79.

189.

Given this abundant evidence, the Court finds that Applicant does not have a significant

deficit in the adaptive behavior area of communication.

Self-care

190.

The Court finds that Dr. Allen did not see any evidence or hear testimony indicating that

A pplicant has deficits in self-care.

Applicant routinely dresses and grooms himself,

shaves, brushes his teeth, showers, and gets haircuts when needed, and handles the common

activities of daily living adequately. His TDCJ records reflect his ability to discuss dental and

medical care.

He regularly purchases hygiene items.

And there is nothing in the record

showing that he needed self-care assistance during the developmental years. 4 RR 161; R81 at 8-

9; R59 at 1172; R60 at 129; R53 at 499.

191.

The Court finds that the following evidence demonstrates that Applicant does not

have a deficit in self-care: (1) he filed a grievance claiming that he submitted four sick call

requests to see a doctor for an infected foot but was turned down and, consequently, was being

refused proper medical attention, R16 at 38; (2) he filed numerous other grievances regarding the

same issue and the need for new eyeglasses, R35; (3) his commissary records reflect that he

is consistently buying deodorant, shower shoes, soap, and other self-care items, R38; and (4) in

a letter to a friend, he stated that he was worn out from playing basketball, was getting in bad shape,

and needed to start exercising more. R55 at 697.

192.

The Court finds that Ms. Whitesel described Applicant as having good hygiene. 3 RR 82-83.

193.

The Court finds that Shaun Munson stated that Applicant takes care of himself in terms of

personal hygiene. 3 RR 109.

194.

The Court finds that John Mulaney remembered during his free-world visits with

Applicant that Applicant did not wear dirty clothes or have poor hygiene. 3 RR 162.

195.

The Court finds that Applicant does not have a significant deficit in the area of self-care.

Home Living and Money Management

196.

The Court finds that Dr. Allen reported that Applicant acknowledged the ability to prepare

food and take care of himself as a child and adult.

197.

Applicant had to do chores as a child because his father was strict about such matters.

Because Applicant has been incarcerated much of his life, typical markers for assessing home

living are absent, but he keeps his cell clean and orders what he wants and needs from the

commissary. R81 at 9.

198.

The Court finds that Applicant knows how to count money, make change, complete a

money order and instruct people how to get one, use a thermometer and thermostat, use a

checking account, shop for groceries, use measuring devices, purchase vehicles and furniture,

own or rent a home, tell time, order from menus, apply for a job, and calculate the cost of

commissary purchases. 4 RR 137-39; R81 at 7. Applicant did not need a caregiver during his

life in the free world.

199.

The Court finds that several letters indicate no deficits in home living or money

management. In fact, according to Dr. Allen, the following letters show that Applicant can

engage in con games to receive money:

200.

Also, I wanted to thank you for the money you sent. I really needed it. I’ve

had to start over on a lot of stuff since I got the stay. Dad and Deb have

both sent money, too, but I used some of what you sent to pay my lawyer

back. While I was in El Paso, he put money in my -- on my account. He

said that I didn’t have to do it, but I will probably be going back down there

next year, and I will need him to do it again, so this way it looks like I’m

trying to do the right thing instead of expecting him to just give me

money, you see what I mean?

4 RR 164; R51 at 355.

Okay. Also you’ll notice that I told them to send you the refunds from

now on, and I'll explain later. But, just fill out the money orders like you

used to in your name. Again, I'll explain later, but it's not working out, and

I don’t seem to be getting my refunds, if you know what I mean. 4 RR 16970; 6 RR 151-152.

The Court finds that Applicant once engaged in an attempt to defraud an insurance company

of money. He filed a complaint claiming that his motorcycle had been stolen. Dr. Allen

read the following from a subsequent police report:

The ignition wires were pulled off from under the switch, but appeared not to

have been pulled out far enough to hot-wire the motorcycle. The

motorcycle was supposed to have been stolen on August 14, 1987, and then

recovered on September 7, 1987, 23 days later. The vehicle was found

abandoned in an alley and nothing was taken from the vehicle. After

complete review of the case and subsequent recovery of the vehicle,

undersigned believes the circumstances to be suspicious enough to declare

this case unfounded and not a true theft. The motorcycle was recovered a

day after the complainant had been paid off by the insurance company. 4

RR 162-63; R14 at 9.

201.

The Court finds that, according to Dr. Allen, when Applicant was borrowing money from

his sister to play games, he was actually conning her out of money and not paying her back.

This is not uncommon for persons with antisocial personality disorder. 4 RR 165.

202.

The Court finds that Applicant is very aware of his finances and does not get taken

advantage of by magazine publishers who send unwanted materials; he refuses to pay those

bills and knows about filing complaints with the Better Business Bureau, which is inconsistent

with the skills expected of a person with mental retardation. 6 RR 150-153; R85-86 at 23522353.

203.

The Court finds that on at least two occasions, Applicant asked pen pals for money

because his family was having financial difficulties and could not send him any. R48 at 74;

R50 at 267.

204.

The Court finds that Dr. Allen’s review of interviews and e-mails pertaining to

Joanne Blaich, Applicant’s former girlfriend, reveal no deficits in home living or money

management. Applicant could pay for meals, do housework, wash vehicles, and perform

maintenance on vehicles. Ms. Blaich never gave any indication that Applicant was slow, let alone

mentally retarded. 4 RR 172.

205.

The Court finds that Applicant and Joanne Blaich moved in together at one point, although

it was for a short period. Applicant has also been married several times. 63 TRR 6626; R16 at

44; R26 at 7; R67 at 178.

This text is long and has been trimmed here. Open the source document for the complete record.

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.