Ex parte Moore No. WR-13,374-05

Case Summary written by Pedro Leyva, Staff Member.

JUDGE JOHNSON delivered the opinion of the court, in which PRESIDING JUDGEs KELLER, MEYERS, KEASLER, HERVEY and RICHARDSON joined. JUDGE NEWELL did not participate.

In 1980, applicant was convicted of capital murder and sentenced to death for fatally shooting a seventy-year-old grocery clerk, in Houston, while committing or attempting to commit robbery. The Court of Criminal Appeals affirmed the conviction and sentence in the same year. Federal habeas corpus relief was granted and the trial court held a new punishment hearing in February 2001. Once again, appellant received a death sentence. On direct appeal, the Court of Criminal Appeals, once again, affirmed the trial court’s judgment.

The applicant, in his initial writ application challenging his 2001 punishment retrial and death sentence, raised forty-eight claims for relief. In January 2014, the habeas judge held a two-day evidentiary hearing on applicant’s first claim for relief, where appellant alleged that he was intellectually disabled and therefore exempt from execution under the Supreme Court’s holding in Atkins v. Virginia, 536 U.S. 304, 321 (2002). Following the evidentiary hearing, the habeas court signed the applicant’s proposed Addendum Findings, which applied the definition of intellectual disability presently used by the American Association on Intellectual and Developmental Disabilities (AAIDD), concluded that appellant was intellectually disabled under that definition, and recommended that the Court of Criminal Appeals grant relief on his Atkins claim. The Addendum Findings also concluded that the appellant had established by a preponderance of the evidence that he was intellectually disabled as prescribed under the fourth and fifth editions of the American Psychiatric Association’s (APA’s) Diagnostic and Statistical Manual of Mental Disorders (DSM), i.e., the DSM-IV and DSM-V.

The SCOTUS decision in Atkins determined that the death penalty cannot be given to intellectually disabled individuals because it violates the Eighth Amendment, but the court left it to the states to develop appropriate ways to enforce the constitutional restriction. In 2009, in the absence of state legislation, the Court of Criminal Appeals adopted the definition of intellectual disability stated in the ninth edition of the American Association of Mental Retardation (AAMR) manual published in 1992, and the similar definition of intellectual disability contained in § 591.003(13) of the Texas Health and Safety Code.

The habeas judge applied a different standard. The habeas judge concluded that since the AAIDD’s and APA’s positions regarding diagnosis of intellectual disability have changed, then the most current position should be used. The Court of Criminal Appeals held that the habeas judge erred by disregarding the Court of Criminal Appeal’s case law and employing the definition of intellectual disability presently used by the AAIDD, a definition which notably omits the requirement that an individual’s adaptive behavior deficits, if any, must be “related to” significantly sub-average general intellectual functioning.

Since there is still no legislation regarding this matter, the court continued using the previously adopted rule. Thus, to demonstrate that he is intellectually disabled for Eighth Amendment purposes, and therefore exempt from execution, an applicant must prove by a preponderance of the evidence that:

  1. he suffers from significantly sub-average general intellectual functioning, generally shown by an intelligence quotient (IQ) of 70 or less;
  2. his significantly sub-average general intellectual functioning is accompanied by related and significant limitations in adaptive functioning; and
  3. the onset of the above two characteristics occurred before the age of eighteen.

When determining the first element, the Court of Criminal Appeals stated that it is not sufficient for an applicant to establish by a preponderance of the evidence that he has significantly sub-average general intellectual functioning and significant limitations in adaptive functioning. The applicant must also demonstrate by a preponderance of the evidence that his adaptive behavior deficits are related to significantly sub-average general intellectual functioning rather than some other cause. In making the relatedness determination, the factfinder may consider the seven evidentiary factors developed in Briseno:

  • Did those who knew the person best during the developmental stage—his family, friends, teachers, employers, authorities—think he was [intellectually disabled] at that time, and, if so, act in accordance with that determination?
  • Has the person formulated plans and carried them through or is his conduct impulsive?
  • Does his conduct show leadership or does it show that he is led around by others?
  • Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable?
  • Does he respond coherently, rationally, and on point to oral or written questions or do his responses wander from subject to subject?
  • Can the person hide facts or lie effectively in his own or others’ interests?
  • Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?

Between the time of his first trial and applicant’s initial writ application, several family members testified that the applicant was beaten as a child by his father, had a difficult time learning in school, was kicked out of his house as a teenager, and that he was a changed person having spent so much time on death row. Family members also testified that as a child, applicant worked small jobs in order to help feed his family. Conflicting evidence was introduced about the applicant’s IQ. The court found the applicant to have an IQ ranging from 73-83, which meant that he was not intellectually disabled. The applicant also wrote several motions while incarcerated asking to represent himself pro se at times and pointing out his lawyers’ mistakes on previous matters.

Ultimately, the Court of Criminal Appeals looked at the Briseno factors and held that the evidence did not weigh in the applicant’s favor. The Court of Criminal Appeals found that people who knew him as a child did not seem to think he was intellectually disabled; the applicant was capable of forming and carrying out plans; applicant had demonstrated leadership while in prison; during applicant’s testimony at various points, he responded coherently, rationally, and on point to oral and written questions; the record showed that he had lied during his first trial demonstrating that he can hide facts or lie effectively to protect his own interest; and the offense required forethought, planning, and moderately complex execution.

The Court of Criminal Appeals denied relief on applicant’s first claim and the second and third claims as well. In his second claim, applicant contended that he was denied due process because Texas’s death penalty statue does not prohibit the execution of an intellectually disabled individual. In his third claim, applicant argued that his death sentence violated the Sixth Amendment because the jury’s verdict did not include that he is not intellectually disabled. The Court of Criminal Appeals held that his second claim was inadequate because applicant failed to plead and prove facts that would entitle him to relief, and the third claim was previously rejected by the court. As to the applicant’s remaining claims, the court found that the record supported the habeas court’s findings of fact, conclusions of law, and recommendation, which were denied by the habeas judge.

JUDGE ALCALA, dissenting.

The dissent argued that the application of the Briseno standard does not conform to the requirements of the federal Constitution. The dissent called for the court, in the absence of the action by the legislature, to develop a new standard taking into account the consensus of the medical community regarding what constitutes intellectual disability. Judge Alcala would have remanded the case to the habeas court after creating the new standard.