Opinion
WR-70 963-02
05-25-2022
EX PARTE JUAN RAMON MEZA SEGUNDO, Applicant
ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE NO. C-3-W011370-0974988-B IN CRIMINAL DISTRICT COURT NUMBER THREE TARRANT COUNTY
OPINION
PER CURIAM.
We have before us a postconviction application for a writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure Article 11.071, Section 5.
Unless otherwise indicated, all references to Articles are to the Texas Code of Criminal Procedure.
Petetan v. State, 622 S.W.3d 321, 332 (Tex. Crim. App. 2021) ("At its core, [Atkins v. Virginia] seems to rest its justification for a death-penalty exemption on the assumption that intellectual disability is a character trait that lessens moral culpability and so the retributive value of punishment. But the clinical criteria for diagnosing someone with intellectual development disorder seems to look forward to how the diagnosis can better assist the individual function in society without regard to any consideration of moral blameworthiness.").
Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996).
By 2006, the 10th edition of the AAMR had come out. But the AAIDD-11th ed. did not come out until 2010, and the DSM-5 did not come out until 2013.
In December 2006, a jury convicted Applicant of capital murder for murdering a person in the course of committing or attempting to commit aggravated sexual assault or burglary of a habitation. Tex. Penal Code § 19.03(a)(2). The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.0711 and the trial court, accordingly, set punishment at death. This Court affirmed Applicant's conviction and sentence on direct appeal. Segundo v. State, 270 S.W.3d 79 (Tex. Crim. App. 2008).
On October 17, 2008, Applicant timely filed in the habeas court his initial postconviction application for a writ of habeas corpus. Applicant raised thirteen claims, including a claim that he is intellectually disabled and thus exempt from execution. See Atkins v. Virginia, 536 U.S. 304 (2002). This Court denied relief on all of Applicant's claims, including his claim of intellectual disability. Ex parte Segundo, No. WR-70, 963-01 (Tex. Crim. App. Dec. 8, 2010) (not designated for publication).
On September 25, 2018, Applicant filed in the habeas court his first subsequent habeas application. Invoking the United States Supreme Court's decision in Moore v. Texas, 137 S.Ct. 1039, 1044 (2017), as a previously unavailable legal basis, Applicant argued that his prior claim of intellectual disability had been analyzed under an unconstitutional standard. He sought another opportunity to show that, under current clinical diagnostic standards, he is a person with intellectual disability. This Court determined that, in light of the Moore decision and the facts presented in Applicant's subsequent habeas application, the application satisfied the requirements of Article 11.071, Section 5. We remanded the application to the habeas court for resolution of the intellectual disability issue. Ex parte Segundo, No. WR-70, 963-02 (Tex. Crim. App. Oct. 31, 2018) (not designated for publication).
On July 7, 2021, the habeas court signed findings of fact and conclusions of law, in which the habeas court concluded that Applicant had "met his burden to prove by a preponderance of the evidence that he satisfied the medical criteria for a diagnosis of intellectual disability." Having reviewed the record in this case, we agree with the habeas court that Applicant has met his burden to establish by a preponderance of the evidence that he is a person with intellectual disability. We adopt the habeas court's findings of fact and conclusions of law.
Relief is granted. Atkins, 536 U.S. at 321. Applicant's death sentence is reformed to a sentence of life imprisonment.
At the time of Applicant's offense, in August 1986, other than death, the only alternative punishment for capital murder was life imprisonment with the possibility of parole. Life imprisonment without the possibility of parole as a possible sentence for capital murder did not exist until September 1, 2005, and it did not apply to offenses alleged to have been committed before that date. Acts 2005, 79th Leg., ch. 787, §§ 1, 17-18, eff. Sept. 1, 2005.
See, eg, Ex parte Wood, 568 S.W.3d 678, 686 (Tex Crim App 2018) (Newell, J, concurring) ("But to the extent that Applicant can build a claim of intellectual disability upon the shifting sands of clinical psychological standards detailed in [Moore v. Texas], 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 v. Virginia].").
Atkins v. Virginia, 536 U.S. 304 (2002).
See DSM-IV-TR at 41 ("The essential feature of Mental Retardation is significantly subaverage general intellectual functioning . . . that is accompanied by significant limitations in adaptive functioning . . . [and] onset must occur before age 18 years[.]").
Newell, J., filed a concurring opinion in which Hervey and Keel, JJ., joined.
We have already recognized that the United States Supreme Court's death-penalty test for determining intellectual disability does not answer whether an intellectually disabled capital murderer fits into that category of offenders whose moral blameworthiness is lessened by their intellectual disability.1 The test, or at least the floor for the diagnostic criteria, has become untethered from the rationale for that test set out in Atkins v. Virginia.2 This defendant, a serial killer who brutally raped and murdered eleven-year-old Vanessa Villa (as well as two other women while the Villa murder remained unsolved), could not provide a clearer example of the Supreme Court's intellectual failure. Segundo does not fit the mold that the Supreme Court used to justify the intellectual disability exemption from the death penalty.
Atkins v. Virginia, 536 U.S. 304, 318 (2002) ("[Intellectually disabled] persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group setting they are followers rather than leaders. Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.").
But prevailing on an ineffective assistance claim while relying upon a change in the law would seem problematic. See Hathorn v. State, 848 S.W.2d 101, 126 (Tex. Crim. App. 1992) ("[I]t does not amount to a deficiency in performance of counsel to fail to object to a point when such objection would have conflicted with what at the time of trial was taken to be settled law and would therefore be futile.").
Under the last manual, the DSM-IV-TR, at 41, in order to find significant limitations in adaptive functioning, a diagnostician would have to find deficits in at least two of the following eleven domains: "communications, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety." The DSM-5 has altered this scheme so that it is now necessary to find deficits in at least one of three domains: "conceptual (academic)," "social," and "practical." DSM-5 at 37-38.
Nevertheless, the United States Supreme Court has held that the execution of intellectually disabled defendants violates the Eighth Amendment prohibition against cruel and unusual punishment. When we decide cases involving the United States Constitution, we are bound by United States Supreme Court case law interpreting it. If we disagree with the Court's holding, too bad. It is up to the United States Supreme Court to fix it, not us.
Atkins, 536 U.S. at 321.
But a false testimony claim seems unlikely to prevail if the alleged falsity is based on a change in clinical standards. See Ex parte Robbins, 360 S.W.3d 446, 461 (Tex. Crim. App. 2011) (an expert witness's change of mind does not by itself make her prior testimony false).
It is true that, in Moore, the Supreme Court observed:
"[E]ven within Texas' criminal-justice system, the State requires the intellectual disability diagnosis of juveniles to be based on 'the latest edition of the DSM.' 37 Tex. Admin. Code § 380.8751(e)(3) (2016). Texas cannot satisfactorily explain why it applies current medical standards for diagnosing intellectual disability in other contexts, but clings to superseded standards when an individual's life is at stake."137 S.Ct. at 1052. The suggestion seems to be that the statutory scheme itself automatically adopts the latest professional assessment of what it means to be ID, and that the "objective indicia" of society's attitude about executing intellectually disabled offenders evolves right along with the professional assessment adopted under that flexible statutory scheme. Id. But this argument completely removes the "objective" from "objective indicia." Such a statutory scheme is wholly predictive; it no longer necessarily describes the attitude of society, but prospectively prescribes it. I fail to understand how such a scheme any longer reflects the current consensus of society.
See State v. Guzman, 959 S.W.2d 631, 633 (Tex. Crim. App. 1998); see also United States Const. Art. VI, cl. 2; see also Marbury v. Madison, 5 U.S. 137, 146 (1803) ("This is the supreme court, and by reason of its supremacy must have the superintendence of the inferior tribunals and offices whether judicial or ministerial.").
See Ex parte Drake, 883 S.W.2d 213, 214 (Tex. Crim. App. 1994) (Claims that were raised on direct appeal can be revisited on habeas if "we have decided to apply relief retroactively after a subsequent change in the law."). This is an exception to the general rule that record based claims cannot be raised on habeas. See Ex parte Beck, 541 S.W.3d 846, 852 (Tex. Crim. App. 2017). Of course, this exception would apply only if the habeas applicant had raised the issue on direct appeal, and here Applicant did not.
Dr. Thorne did not ignore the standard error of measurement in assessing Applicant's IQ scores or refuse, based on his IQ scores, to go on to consider whether he had adaptive deficits. Moore, 137 S.Ct. at 1049. While he may not have had the benefit of all of the current evidence of adaptive deficits, Dr. Thorne did not overemphasize Applicant's perceived strengths to the detriment of considering his manifest deficits; nor did Dr. Thorne discount any deficits he perceived in Applicant's adaptive functionality because Applicant was imprisoned. Id. at 1050. He did not overtly misidentify certain risk factors for ID as reasons, instead, to conclude that Applicant's adaptive deficits were not "related" to his subaverage intelligence. Id. at 1051. Nor did he conclude that Applicant failed to show that any deficits were unrelated to some other co-existing condition or co-morbidity, such as a personality disorder. Id. He made no mention of the disowned Briseno factors. See id. at 1051-52 (rejecting the factors identified by this Court in Ex parte Briseno, 135 S.W.3d 1, 8 (Tex. Crim. App. 2004), as "an outlier").
In this case, Applicant presented some evidence of his intellectual disability during his trial, but he was denied a specific jury instruction on the issue. In his first habeas application, Applicant raised a claim regarding intellectual disability. The trial court made findings and conclusions regarding Applicant's claims based in part upon the criteria we set out in Ex parte Briseno. We deferred to those findings and denied relief. The United States Supreme Court subsequently made clear in Moore v. Texas that we cannot rely upon the test set out in Briseno because it violates the federal constitution. Applicant filed a subsequent writ application based upon Moore, and we remanded the case for the habeas court to resolve Applicant's claim of intellectual disability.
See Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004), abrogated by Moore v. Texas, 137 S.Ct. 1039, 1044 (2017).
The issue of intellectual disability is in the nature of a defensive matter at punishment. Neal v. State, 256 S.W.3d 264, 273 (Tex. Crim. App. 2008). I have in the past suggested that an appellate court could conduct a sufficiency review of an unsubmitted defense if the evidence at trial established the defense as a matter of law. Wright v. State, 981 S.W.2d 197, 203-04 (Tex. Crim. App. 1998) (Keller, J., dissenting). Of course, if the Applicant is relying upon a change in the law, a court would have to consider whether the State might have been able to introduce evidence to refute the applicant's contentions if it had known about the change.
Ex parte Segundo, No. WR-70, 963-01, 2010 WL 4978402 (Tex. Crim. App. Dec. 8, 2010) (not designated for publication).
State v. Wilson, 324 S.W.3d 595, 598 (Tex. Crim. App. 2010).
Moore v. Texas, 137 S.Ct. 1039, 1044 (2017) (holding that the Briseno factors may not be used to restrict the qualification of an individual as intellectually disabled).
Id.
Ex parte Segundo, No. WR-70, 963-02 (Tex. Crim. App. Oct. 31, 2018) (not designated for publication).
Schlup v. Delo, 513 U.S. 298, 313-14 (1995).
Applying the standard set out in Moore, the habeas court resolved Applicant's claim in his favor. The habeas court made factual findings to support its conclusion that Applicant is intellectually disabled under Moore. Those findings are supported by the record. The State does not contest those findings and agrees that it cannot execute Applicant due to his intellectual disability. Applicant is entitled to relief under Supreme Court precedent, and the Court correctly grants it. We've already seen what happens when we ignore the Supreme Court on this issue.
Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008) (noting that we defer to and accept a trial judge's findings of fact and conclusions of law in post-conviction habeas review when those findings and conclusions are supported by the record).
See Sawyer v. Whitley, 505 U.S. 333, 338-41 (1992).
Moore, 137 S.Ct. at 1044 (Moore I); Moore v. Texas, 139 S.Ct. 666, 672 (2019) (Moore II).
Compare Elizondo, 947 S.W.2d at 209 ("by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence") with Sawyer, 505 U.S. at 336 ("by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law"). See also Tex. Code Crim. Proc. art. 11.071, § 5(a)(3) (language similar to Sawyer).
With these thoughts, I join the Court's order.
Keller, P.J., filed a dissenting opinion.
The habeas court and this Court conclude that Applicant "has met his burden to prove by a preponderance of the evidence" that he is a person with intellectual disability under the current clinical diagnostic framework. I would hold that this is the wrong standard, because Applicant presented the intellectual disability issue to the trial court at trial and could have raised it on appeal. Instead, we should employ an Elizondo-type1 standard and ask whether it has been shown by clear and convincing evidence that no reasonable juror could find against Applicant on his intellectual disability claim.
Applicant was convicted in 2006-four years after the Supreme Court decided the Atkins case2 that exempted intellectually disabled persons from the death penalty. At trial, Applicant requested the submission of an intellectual-disability instruction, which the trial court refused. Applicant could have complained about the trial court's refusal on direct appeal, but he did not.
Because intellectual disability was litigated at trial, we should treat the issue on habeas the same as we treat any other issue on habeas that has been litigated at trial. We should not be deciding the issue of intellectual disability as if it had first been litigated here. But deciding whether Applicant is intellectually disabled by a preponderance of the evidence does just that.
There are several ways that a claim that was litigated at trial might be raised on habeas. To complain about a trial court's refusal to submit a requested intellectual-disability instruction, an applicant could claim that counsel was ineffective for failing to present evidence that would have supported an instruction.3 Or he could claim that false evidence was presented that influenced the trial court to refuse the instruction.4 An applicant might be able to raise a claim that the trial court erred in refusing to submit the requested instruction if he can also show that the issue was decided adversely on appeal and that a retroactive change in the law requires a different outcome.5 An applicant might be able to advance a "no evidence" claim that the evidence at trial conclusively established his intellectual disability.6 But Applicant has advanced none of these claims, nor does his current claim resemble any of these claims. He is not claiming that the trial was tainted by the malfeasance of one of the trial participants (judge, counsel, or witness), or that the trial record, by itself, shows that he is intellectually disabled. Rather, he is claiming that all of the evidence before us now-both at trial and on habeas-shows that he is intellectually disabled.
Applicant makes this claim after an adverse determination of his intellectual disability claim at trial. That procedural fact makes his claim most resemble a claim of actual innocence. While, in Texas, the term "actual innocence" is reserved for situations in which the defendant is not guilty of the charged offense or any lesser-included offense, we have recognized analogous situations.7 An analysis similar to that for actual innocence can occur when the issue is whether the defendant is ineligible for the punishment assessed.8 And although the procedural "innocence" exception to the subsequent writ bar in federal court differs from the substantive doctrine of actual innocence as a freestanding claim, 9 federal courts recognize a parallel procedural "innocence of the death penalty" exception to the federal subsequent writ bar.10
A comparison of the various freestanding and procedural "innocence" standards in the caselaw supports the conclusion that a "clear and convincing . . . no reasonable juror" standard is the appropriate one to apply in this case. The Elizondo freestanding innocence standard and the Sawyer procedural "innocence of the death penalty" standard both employ "clear and convincing . . . no reasonable juror" language.11 The Schlup procedural innocence standard employs the less onerous "preponderance . . . no reasonable juror" standard. We can see two things from comparing these standards. First, a freestanding innocence claim is more difficult to prove than a procedural innocence claim. Second, a procedural "innocence of the death penalty" claim is more difficult to prove than a procedural innocence claim. Because a claim like Applicant's is freestanding and alleges what amounts to "innocence of the death penalty," it would seem that it should require at least the same standard of proof as do those two circumstances standing alone. It certainly should not be the easiest claim to prove, but under the Court's opinion, it is just that: the Court must find the defendant exempt from the death penalty by a preponderance of the evidence-an easier standard than even the Schlup procedural innocence standard, which requires proof by a preponderance of the evidence, but ties it to showing that "no reasonable juror" would find against the defendant.
When the issue of intellectual disability is considered for the first time on habeas, it is appropriate to decide the issue from scratch by a preponderance of the evidence, as we do with other claims for relief that are raised for the first time on habeas. And for such a case, it might be appropriate to continue applying that standard in a later habeas proceeding that reconsiders the issue after a change in clinical standards. But when the issue of intellectual disability is considered and decided at trial, considerations of finality should dictate that reconsideration of the issue on habeas be more deferential. The trial is always the "main event" and not a "tryout on the road." When an applicant wishes to have a court reconsider an issue of intellectual disability that was previously considered at trial, he should have to carry a burden of proof commensurate with a freestanding "innocence of the death penalty claim"-a burden to show (at least) "clear and convincing evidence that no reasonable juror would impose the death penalty."
State v. Mendoza, 365 S.W.3d 666, 669 (Tex. Crim. App. 2012).
While a jury did not deliberate on the issue of intellectual disability, the trial court did make a determination-that the evidence did not even raise the issue. Having failed to challenge that determination, Applicant ought now to be required to meet a freestanding innocence-type standard-to show by clear and convincing evidence that no reasonable juror could reject his intellectual disability claim. I do not think Applicant has made that showing. If the Court is in doubt on the issue, it could remand to the habeas court for findings on whether the "clear and convincing . . . no reasonable juror" standard has been met.
I respectfully dissent.
Yeary, J., filed a dissenting opinion.
In this case, Applicant has filed a subsequent application for writ of habeas corpus seeking relief from a judgment in a capital murder case in which the death penalty was imposed. Tex. Code Crim. Proc. art. 11.071 § 1. Because it is a subsequent application, it is brought under Article 11.071, Section 5(a)(1), of the Texas Code of Criminal Procedure, and it is predicated on an argument that the legal basis for his current claim was unavailable on the date the applicant filed his initial application. Tex. Code Crim. Proc. art. 11.071 § 5(a)(1).
Today the Court excuses Applicant from execution on the basis that he is intellectually disabled. The United States Supreme Court has said that the Eighth Amendment to the United States Constitution places a substantive restriction on the State's power to take the life of a person with intellectual disability (née mental retardation; hereafter, "ID"), no matter how heinous his offense may be. Atkins v. Virginia, 536 U.S. 304 (2002). There are several reasons I find myself compelled to dissent to the Court's order, a few of which I will catalogue here.
I. Background
Applicant was tried, convicted, and sentenced to death in December of 2006, some four and a half years after Atkins was decided. At the guilt phase of his trial, evidence was adduced showing that, in 1986, Applicant broke into a small home in northwest Fort Worth, where he raped and then strangled to death an 11-year-old girl named Vanessa Villa. He was not immediately caught. Instead, Vanessa's rape and murder remained unsolved until 2005, when a routine database check revealed that Applicant's DNA profile "matched" the profile of semen found inside Vanessa's vagina after her death. Additional evidence at both the guilt and punishment phases of trial revealed that, before he was apprehended, Applicant had similarly raped and killed two women, in 1994 and 1995; that he sexually assaulted and choked two other women in 1987 and 1990; and that he molested his girlfriend's five-year-old daughter "in the late 1980's." Segundo v. State, 270 S.W.3d 79, 83- 84 (Tex. Crim. App. 2008).
Applicant's previous attempts to raise ID have not met with success. His trial lawyers' own experts seem to have concluded that he did not meet the diagnostic criteria for ID. But they nevertheless asked for an Atkins instruction at the conclusion of the punishment phase of his trial. When the trial court denied this request, Applicant did not even challenge that ruling on direct appeal to this Court. Segundo v. State, 270 S.W.3d 79 (Tex. Crim. App. 2008).
Applicant did renew his ID claim in his initial post-conviction application for writ of habeas corpus, which was filed under Article 11.071 of the Code of Criminal Procedure, in 2008. But this Court denied that claim in 2010, after he was afforded a full and fair opportunity to air it. Once again, Applicant's own expert concluded that he was not intellectually disabled under the then-relevant diagnostic criteria. Ex parte Segundo, No. WR-70, 963-01, 2010 WL 4978402 (Tex. Crim. App. Dec. 8, 2010) (not designated for publication).
Now, for a third time, Applicant is given a chance to present his ID claim, in a subsequent post-conviction application for writ of habeas corpus. Ex parte Segundo, No. WR-70, 963-02 (Tex. Crim. App. Oct. 31, 2018) (not designated for publication) (remanding subsequent writ application under Article 11.071, Section 5, in light of the opinion of the United States Supreme Court in Moore v. Texas, 137 S.Ct. 1039 (2017), to allow him once again to pursue his ID claim). This Court stayed an execution date to allow him to pursue this claim. See Ex parte Segundo, No. WR-70, 963-02, 2018 WL 4856580 (Tex. Crim. App. Oct. 5, 2018) (not designated for publication) (ordering stay); Ex parte Segundo, No. WR- 70, 963-02 (Tex. Crim. App. Oct. 31, 2018) (not designated for publication) (remanding subsequent writ application under Article 11.071, Section 5, in light of the opinion of the United States Supreme Court in Moore v. Texas, 137 S.Ct. 1039 (2017), to allow him once again to pursue his ID claim). I guess the third time is a charm: The Court concludes that Applicant has finally managed to prove his ID claim, and it vacates his death sentence and consigns him to a sentence of life in the penitentiary (in Applicant's case, with the possibility of parole, since his offense occurred so long ago-it predates the imposition of mandatory life without parole as the only alternative to the death penalty for capital offenders not sentenced to death).
II. Proper Forum for ID Determination?
First of all, given the procedural history, I am not at all certain that this Court should be the one-if any-to make the determination whether Applicant fits the diagnostic criteria for ID in the first instance. The claim has already been fully litigated in the trial court, albeit unsuccessfully. If there is some reason to question the legitimacy of the trial-level resolution of Applicant's ID claim, then it is at least arguable that the case should be returned to the trial court for another determination of whether he is intellectually disabled, in that forum, subject only to this Court's deferential review on appeal.
As I have recently argued in similar contexts, this Court should not exercise its role of "ultimate fact-finder" to grant relief in post-conviction habeas proceedings without first deciding the propriety of doing so. See Ex parte Lizcano, 607 S.W.3d 339, 340-41 (Tex. Crim. App. 2020) (Yeary, J., dissenting) (because the issue of intellectual disability was initially litigated in the trial court, asking: "May this Court simply re-visit the ID issue sua sponte and make a merits determination de novo? Or is the proper disposition, instead, to remand the case to the convicting court for, if not an altogether new punishment hearing before a jury, at least another jury determination of the ID issue?"); Ex parte Williams, No. WR-71, 296-03, 2020 WL 7234532 (Tex. Crim. App. Dec. 9, 2020) (Yeary, J., dissenting) (not designated for publication) (same). Because the Court continues to grant relief on these claims of ID while skirting this issue, I once again respectfully dissent.
III. Evolved Professional Diagnostic Standards Not Shown to Reflect Society's Standards
There is a second, more fundamental reason I disagree with the Court's summary disposition in this case. On this third go-round, all of the mental health experts-including Applicant's expert from his initial writ application-for the first time rely upon only the most recent diagnostic manuals for ascertaining ID: (1) the APA, Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (hereinafter, "DSM-5"), and (2) the American Association on Intellectual and Developmental Disabilities (11th ed. 2010) (hereinafter, "AAIDD-11"). Neither of these current manuals represents the precise state of the diagnostic criteria for ID as it existed in 2002, when Atkins was decided. See Atkins, 536 U.S. at 308 n.3 (describing "mental retardation" consistent with the diagnostic criteria contained in the American Association of Mental Retardation's manual, Mental Retardation: Definition, Classification, and Systems of Support (9th ed. 1992) (hereinafter, "AAMR-9th ed."); and the text revision of the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000) (hereinafter "DSM-IV-TR")). Nor do they represent the diagnostic criteria that were in place when Applicant was evaluated for ID for purposes of his trial, in 2006, and again for purposes of his initial writ application, in 2009.1In fact, Applicant's expert during the initial habeas proceedings- forensic psychologist Dr. Stephen A. Thorne-has only changed his mind now because of the shift in diagnostic criteria in the newest manuals, having previously concluded, based upon their predecessors, that Applicant was not intellectually disabled.
But, as Justice Alito has observed, "[u]nder our modern Eighth Amendment cases, what counts are our society's standards-which is to say, the standards of the American people-not the standards of professional associations, which at best represent the views of a small professional elite." Hall v. Florida, 572 U.S. 701, 731 (2014) (Alito, J., dissenting). As Chief Justice Roberts has similarly remarked, "this Court's precedents . . . establish[] that the determination of what is cruel and unusual rests on a judicial judgment about societal standards of decency, not a medical assessment of clinical practice." Moore v. Texas, 137 S.Ct. 1039, 1057-58 (2017) (Roberts, C.J., dissenting). Indeed, in determining the extent to which Eighth Amendment "standards of decency" may have "evolved," the Supreme Court has consistently "looked not to our own conceptions of decency, but to those of modern American society as a whole." Stanford v. Kentucky, 492 U.S. 361, 369 (1989). At most, Atkins may be said to have prohibited the death penalty for those who were "mentally retarded" based upon a national consensus about what society believed that meant in 2002. To the extent that the mental health community has evolved its definition of ID since that time, we have no assurances that society's standards of decency have also evolved to the same extent.
At the hearing on Applicant's initial writ application, conducted in 2009, Dr. Thorne testified that Applicant met none of the three prongs to establish ID under the DSM-IV-TR, which was the diagnostic manual in effect at that time: (1) significant subaverage general intellectual functioning, (2) significant adaptive deficits, and (3) onset before age eighteen.2 With respect to the first criteria, Dr. Thorne observed that Applicant had been administered the Wechsler Adult Intelligence Scale-Third Edition (WAIS-III) in 2006, by an expert for Applicant's trial attorneys named Dr. Kelly Goodness. Applicant achieved a composite IQ score of 75 at that time. Dr. Thorne also noted, however, that there was a "significant difference" between Applicant's verbal IQ sub-score (70) and his performance IQ sub-score (85) on the WAIS-III, and that "in some ways that 85, given [Applicant's] background, is probably a more accurate reflection of his true intellectual ability."
Dr. Thorne himself administered the Wechsler Adult Intelligence Scale-Fourth Edition (WAIS-IV) in 2009, obtaining a composite IQ score for Applicant of 72. Although he explained that the WAIS-IV "doesn't actually break down the score into verbal and non-verbal anymore like the WAIS-III did[, ]" he noted that Applicant still scored significantly lower on the verbal subtests, "where his lowest scores [on the WAIS-IV] came from." Dr. Thorne suspected that the higher performance scores on both the WAIS-III and WAIS-IV more accurately reflected Applicant's true level of general intellectual functioning. This impression was reinforced by the fact that, from records and his clinical evaluation of Applicant, Dr. Thorne saw no adaptive deficits, much less onset before 18.
The DSM-IV-TR, which was the manual in circulation at the time of Dr. Thorne's 2009 evaluation of Applicant, contains the following statement about "scatter in subtest scores":
When there is significant scatter in the subtest scores, the profile of strengths and weaknesses, rather than the mathematically derived full-scale IQ, will more accurately reflect the person's learning abilities. When there is a marked discrepancy across verbal and performance scores, averaging to obtain a full-scale IQ score can be misleading.DSM-IV-TR at 42. Without going into the same level of detail, the DSM-5 also nevertheless makes the consistent observation that "highly discrepant individual subtest scores may make an overall IQ score invalid." DSM-5 at 37. These precatory observations-particularly from the DSM-IV-TR-would seem to support Dr. Thorne's conclusion, during the initial writ proceedings in 2009, that Applicant did not, in fact, suffer from ID.
Nevertheless, in his affidavit in support of Applicant's current subsequent writ application, Dr. Thorne has explained why, in view of the current manuals, he has now changed his mind about (what would now be called, in the DSM-5, at 37) Applicant's "deficits in general mental abilities":
While it remains my opinion that the observed discrepancy (across IQ measures) in verbal and non-verbal abilities is relevant for consideration, it should also be emphasized that guidelines (published after this examiner's 2009 evaluation of [Applicant]) set forth in the AAIDD Manual (2010) do explicitly state that essential to the application of the definition of Intellectual Disability is an assumption that "within an individual, limitations often coexist with strengths". Such definitional guidance, when combined with relevant DSM-5 criteria deemphasizing the role of IQ scores in the assessment/diagnosis of intellectual disability (DSM-5 criteria does not, in fact, reference a specific IQ benchmark, nor does it include the aforementioned language about "scatter" among subtest scores or verbal/non-verbal discrepancies), has contributed to clinicians placing greater emphasis on an individual's "global" IQ score (as opposed to focusing on strengths that may be reflected in the aforementioned discrepancy between an individual's verbal and non-verbal abilities).
Without going into the same level of detail, Dr. Thorne has also now said that the current diagnostic framework for assessing "impairment in everyday adaptive functioning" (DSM-5 at 37) has led him to "no longer [be] confident" in his previous conclusion that Applicant does not suffer from adaptive deficits under of the second prong of the standard for ID.
With respect to adaptive deficits, the State's current expert, neuropsychologist Dr. Matthew A. Clem, has concluded-again, under the current diagnostic criteria as reflected in the latest manuals-that Applicant satisfies the second prong of the standard for ID, in that he has shown adaptive limitations at least in the "conceptual" domain, if not the other two.3 Dr. Clem makes it clear, however, that he would not likely have concluded the same under the old diagnostic regime:
It is currently my opinion that the presence of significant deficits in the conceptual domain is supported. While [Applicant's] deficits in this area previously may not have been considered as rising to the significant level, this has changed in light of the current state of the diagnostic nomenclature, research, and case law pertaining to intellectual disability. * * * Taken in total, his functional academic abilities would have been previously viewed as representing a deficit, but not at the significant level. This is due in part to consideration of his low level of education (he left school in the 8th grade). In other words, his deficits in functional academics would have been viewed as at least partially attributable to his lack of education rather than being fully explained by intellectual deficiency, with the expectation that his functional academic abilities would have been better had he benefitted from a more typical education. In the current conceptualization of intellectual disability, however, a lack of education is not viewed as a differential consideration regarding intellectual disability, but rather as one of many potential risk factors for such. In other words, Mr. Segundo's lack of education is currently conceptualized as having placed him at increased risk for intellectual disability rather than being viewed as a potential alternate explanation for his deficits.
Thus, by all appearances, the latest expert assessment that Applicant indeed suffers from ID is almost wholly contingent on diagnostic criteria that were not previously accepted-at least not definitively-by the relevant mental health community. The presumption that underlies the Court's summary grant of relief today seems to be that what constitutes ID is a static thing; that the current manuals identify threshold criteria for ID and comprise the substantive benchmark for determining the scope of Atkins's Eighth Amendment prohibition. Moreover, the presumption continues, any new developments in the diagnostic criteria merely signal a new way to describe a condition that society already agrees insulates its sufferer from capital punishment.4 But when the diagnostic criteria outlined in the manuals are revised so drastically and pervasively that what it even means to be intellectually disabled has substantively changed, that only means that the mental health experts' understanding of the condition has evolved. It provides us no assurance that the broader society's tolerance for the death penalty-the nation's consensus-has evolved concomitantly. The burden on a post-conviction habeas applicant to present "objective indicia" of society's intolerance is a "heavy" one. Stanford v. Kentucky, 492 U.S. at 373. Applicant has not satisfied it here.
IV. Serial Litigation of ID?
The Court has also authorized Applicant to proceed under Section 11.071, Subsection 5(a)(1), which prohibits granting relief in a subsequent writ application unless the applicant can show, among other things, that a new legal basis for relief has become available since he filed his initial writ application. Tex. Code Crim. Proc. art. 11.071, § 5(a)(1). The new law Applicant relied upon was the Supreme Court's 2017 opinion in Moore. But, as far as I can tell, when Dr. Thorne concluded in 2009, for purposes of Applicant's initial writ proceedings, that Applicant was not intellectually disabled, he made none of the mistakes that the Supreme Court faulted this Court for making in Moore.5
Dr. Thorne has since changed his diagnosis only because, during the interim between Applicant's initial writ proceeding and this one, the manuals have changed. Are we going to re-evaluate and relitigate every capital case involving a claim of ID whenever-typically at ten- or twelve-year intervals-a revised edition of the DSM or AAIDD manual is published? Surely it violates at least the spirit, if not the letter, of Article 11.071, Section 5's abuse-of-the-writ principle to permit this kind of serial litigation-rehashing the same issue, over and over-before the State may carry out its otherwise legitimately obtained judgment.
V. Conclusion
I respectfully dissent.