Ex parte Moore

• Decision Date: 06 June 2018
• Docket Number: NO. WR–13,374–05,WR–13,374–05
• Citation: 548 S.W.3d 552
• Parties: EX PARTE Bobby James MOORE, Applicant
• Court: Texas Court of Criminal Appeals

548 S.W.3d 552

EX PARTE Bobby James MOORE, Applicant

NO. WR–13,374–05

Court of Criminal Appeals of Texas.

Delivered: June 6, 2018

Clifford M. Sloan, Pro Hac Vice, Skadden, Arps, Slate, Meagher & Flom LLP, 1440 New York Avenue Nw, Washington, DC 20005, Patrick F. McCann, The Law Offices of Patrick F. Mccann, 700 Louisiana Street, Suite 3950, Anne M. Rodgers, Jessica Farley, Warren S. Huang, Layne E. Kruse, Norton Rose Fulbright US LLP, Fulbright Tower, 1301 McKinney Street, Suite 5100, Houston, TX 77010, Attorneys for Applicant.

Tom Berg, First Assistant District Attorney, Harris County District Attorney, 1201 Franklin Street, Houston, TX 77002, Stacey Soule, State's Attorney, Austin, TX, Attorneys for The State.

Keller, P.J., delivered the opinion of the Court in which Keasler, Hervey, Yeary, and Keel, JJ., joined.

In a punishment retrial that was held before the Supreme Court decided that intellectual disability exempted offenders from the death penalty,¹ Applicant claimed that he was not intellectually disabled and that any adaptive difficulties he had were due to the abusive environment in which he grew up, emotional issues resulting therefrom, and his lack of opportunities to learn. In this habeas proceeding, Applicant now seeks to be exempted from the death penalty on the ground that he is intellectually disabled. The habeas court agreed with Applicant, citing what it considered to be the contemporary standards for an intellectual disability diagnosis. We disagreed with the habeas court for a variety of reasons falling within two overarching categories: (1) because the habeas court failed to follow standards set out in our caselaw,² and (2) because the habeas court failed to consider, or unreasonably disregarded, "a vast array of evidence in this lengthy record that cannot rationally be squared with a finding of intellectual disability."³ The Supreme Court vacated our decision, concluding that some of the standards in our caselaw did not comport with the Eighth Amendment's requirements regarding an intellectual disability determination.⁴

Having received guidance from the Supreme Court on the appropriate framework for assessing claims of intellectual disability, we now adopt the framework set forth in the DSM–5.⁵ Although the Supreme Court has vindicated some of the habeas court's analysis with respect to the proper framework to apply to intellectual disability claims, it remains true under our newly adopted framework that a vast array of evidence in this record is inconsistent with a finding of intellectual disability. Reviewing Applicant's claims under the DSM–5 framework, we conclude that he has failed to demonstrate adaptive deficits sufficient to support a diagnosis of intellectual disability. Consequently, we disagree with the habeas court's conclusion that Applicant has demonstrated intellectual disability, and we deny relief.⁶

A. The Murder

On April 25, 1980, Applicant and his companions, Ricky Koonce and Everett Pradia, were driving around Houston, looking for a place to commit their third robbery in two weeks. They chose the Birdsall Super Market after seeing that it was manned by two elderly people and a pregnant woman. Jim McCarble and Edna Scott were working in the courtesy booth. Koonce entered the booth and told McCarble and Scott that they were being robbed and demanded money. Applicant stood outside the booth, pointing a shotgun through the courtesy booth window. When Scott shouted out that they were being robbed and dropped to the floor, Applicant pointed the shotgun at McCarble, looked down the barrel at him, and shot his head off.

B. Standard for Assessing Intellectual Disability

1. From Atkins to Briseno

In Atkins v. Virginia , the Supreme Court found that a national consensus had developed against the practice of executing mentally retarded offenders, with the only serious disagreement about the issue being determining which offenders were in fact retarded.⁷ While holding that the Eighth Amendment prohibited the execution of mentally retarded offenders, the Court acknowledged that not all people claiming to be mentally retarded would "fall within the range of mentally retarded offenders about whom there is a national consensus."⁸ The Court left to the States the task of developing appropriate ways to enforce this constitutional restriction.⁹ In the absence of legislative direction, we set out what we considered to be interim guidelines in Ex parte Briseno .¹⁰

Briseno adopted the then-existing framework for determining mental retardation set out by the American Association on Mental Retardation (AAMR).¹¹ Under that framework, an individual was mentally retarded if a three-pronged test was satisfied: (1) significantly subaverage general intellectual functioning (an IQ of approximately 70 or below, which is approximately two standard deviations below the mean), (2) accompanied by related limitations in adaptive functioning, (3) the onset of which occurred prior to age 18.¹² To help courts assess adaptive functioning, and determine whether adaptive deficits were due to mental retardation

or a personality disorder, we suggested a list of non-exclusive evidentiary factors:

• 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?

• 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?¹³

2. The Habeas Court's Approach

Changes have occurred since our decision in Briseno . What used to be referred to as "mental retardation" is now labeled "intellectual disability," and the AAMR has renamed itself the American Association on Intellectual and Developmental Disabilities (AAIDD).¹⁴ The habeas court in this case reasoned that more has changed than names and labels and that, in assessing whether a person is intellectually disabled, courts should use the most current standards of psychological diagnosis.¹⁵ The habeas court further concluded that, under the current standards, use of the Briseno factors was discretionary, and, because it perceived no evidence that Applicant had a personality disorder, unnecessary in this case.¹⁶

3. Our Prior Opinion

In our prior opinion reviewing the present habeas application, we adhered to the framework for determining intellectual disability that was set out in Briseno .¹⁷ We said that, absent legislative action, the decision to modify the legal standard for intellectual disability "rests with this Court," and we believed that the legal test we established in Briseno remained adequately informed by the medical community's diagnostic framework.¹⁸ We concluded that we should continue to adhere to the AAMR definition of intellectual disability that existed when Briseno was decided, even if the positions of the American Psychiatric Association (APA) and the AAIDD had changed since then.¹⁹

Regarding the subaverage-intellectual-functioning prong of the Briseno inquiry, we disagreed with Applicant's reliance upon all the various tests he had taken with scores ranging from 57 to 78.²⁰ We held that only two of the tests resulted in scores that were relevant and reliable enough to warrant consideration: a WISC test taken in 1973 at age 13 with a score of 78 and a WAIS–R test taken in 1989 at age 30 with score of 74.²¹ Taking into account the standard error of measurement of five points for each test resulted in IQ score ranges of 73–83 and 69–79 respectively.²²

We criticized the habeas court for subtracting points from IQ scores based on the so-called "Flynn Effect" (the concept that IQ tests become outmoded with the passage of time, causing purported IQ scores on the test to rise).²³ Rather, we held that the outmoded nature of the test is simply something that might be considered in determining whether a person's actual IQ likely fell in the lower end of the standard error range for the test in question.²⁴ We also suggested that factors that tend to depress an IQ score—family violence, an impoverished background, drug use, and depression—would tend to place a person's actual IQ within the higher portion of the standard error range.²⁵ Considering these factors, we concluded that we had no reason to doubt that Applicant's IQ scores on both tests were accurate reflections of his actual IQ, and because both were above 70, that would place Applicant in the range of borderline intelligence rather than intellectual disability.²⁶ We concluded that Applicant had failed to prove significantly subaverage general intellectual functioning and therefore failed to meet the first prong of the three-pronged test.²⁷

Nevertheless, we also assessed the second prong of the test, regarding adaptive deficits.²⁸ We criticized the habeas court for relying upon a definition of intellectual disability presently used by the AAIDD that omits a requirement that an individual's adaptive deficits be related to significantly subaverage intellectual functioning.²⁹ We also held that the Briseno evidentiary factors remained relevant to assessing adaptive deficits, and we held that we must look to all of the person's functional abilities, including those that show strength as well as those that show weakness.³⁰ We concluded that the Briseno factors weighed heavily against a finding that any adaptive deficits were related to significantly...