Ex parte Wood, WR-45,746-02

568 S.W.3d 678

EX PARTE David WOOD, Applicant

NO. WR-45,746-02

Court of Criminal Appeals of Texas.

Delivered: December 12, 2018

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.

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

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 intellectual-disability 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 of Moore v. Texas and our own subsequent decision of Ex parte Moore ,⁵ we conclude that no further record 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.

IQ Tests

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

Malingering

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 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

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 self-care,¹⁹ home living and money management,²⁰ social and interpersonal skills,²¹ use of community resources,²² self-direction,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.

Remand for a New Hearing or Findings

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 intellectual-disability 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 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.

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.

Conclusion

We grant reconsideration on our own initiative to consider Applicant's case in light of Moore v. Texas and Ex 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.

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

I.

In 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 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 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

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, "...