Moore v. Texas , 2019 U.S. LEXIS 821 ( 2019 )

Cite as: 586 U. S. ____ (2019) 1
Per Curiam
SUPREME COURT OF THE UNITED STATES
BOBBY JAMES MOORE v. TEXAS
ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS OF TEXAS
No. 18–443. Decided February 19, 2019
PER CURIAM.
In 2015, the Texas Court of Criminal Appeals held that
petitioner, Bobby James Moore, did not have intellectual
disability and consequently was eligible for the death
penalty. Ex parte Moore, 470 S.W.3d 481, 527–528
(Ex parte Moore I). We previously considered the lawful-
ness of that determination, vacated the appeals court’s
decision, and remanded the case for further consideration
of the issue. Moore v. Texas, 581 U. S. ___, ___ (2017) (slip
op., at 18). The appeals court subsequently reconsidered
the matter but reached the same conclusion. Ex parte
Moore, 548 S.W.3d 552, 573 (Tex. Crim. App. 2018)
(Ex parte Moore II). We again review its decision, and we
reverse its determination.
I
When we first heard this case, in Moore, we noted that
the state trial court (a state habeas court) “received affi-
davits and heard testimony from Moore’s family members,
former counsel, and a number of court-appointed mental-
health experts.” 581 U. S., at ___ (slip op., at 3). We
described the evidence as “reveal[ing]” the following:
“Moore had significant mental and social difficulties
beginning at an early age. At 13, Moore lacked basic
understanding of the days of the week, the months of
the year, and the seasons; he could scarcely tell time
or comprehend the standards of measure or the basic
principle that subtraction is the reverse of addition.
At school, because of his limited ability to read and
2 MOORE v. TEXAS
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write, Moore could not keep up with lessons. Often,
he was separated from the rest of the class and told to
draw pictures. Moore’s father, teachers, and peers
called him ‘stupid’ for his slow reading and speech.
After failing every subject in the ninth grade, Moore
dropped out of high school. Cast out of his home, he
survived on the streets, eating from trash cans, even
after two bouts of food poisoning.” Ibid. (citations
omitted).
On the basis of this and other evidence, the trial court
found that Moore had intellectual disability and thus was
ineligible for the death penalty under Atkins v. Virginia,
536 U.S. 304 (2002). App. to Pet. for Cert. 310a–311a.
The Texas Court of Criminal Appeals reversed that de-
termination, Ex parte Moore I, 470 S.W.3d 481, and we
reviewed its decision, Moore, 581 U. S. ___.
At the outset of our opinion, we recognized as valid the
three underlying legal criteria that both the trial court
and appeals court had applied. Id., at ___–___ (slip op., at
3–4) (citing American Association on Intellectual and
Developmental Disabilities, Intellectual Disability: Defini-
tion, Classification, and Systems of Supports (11th ed.
2010) (AAIDD–11); American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders
(5th ed. 2013) (DSM–5)). To make a finding of intellectual
disability, a court must see: (1) deficits in intellectual
functioning—primarily a test-related criterion, see DSM–
5, at 37; (2) adaptive deficits, “assessed using both clinical
evaluation and individualized . . . measures,” ibid.; and (3)
the onset of these deficits while the defendant was still a
minor, id., at 38. With respect to the first criterion, we
wrote that Moore’s intellectual testing indicated his was a
borderline case, but that he had demonstrated sufficient
intellectual-functioning deficits to require consideration of
the second criterion—adaptive functioning. Moore, 581
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U. S., at ___–___ (slip op., at 10–12). With respect to the
third criterion, we found general agreement that any onset
took place when Moore was a minor. Id., at ___, n. 3 (slip
op., at 4, n. 3).
But there was significant disagreement between the
state courts about whether Moore had the adaptive defi-
cits needed for intellectual disability. “In determining the
significance of adaptive deficits, clinicians look to whether
an individual’s adaptive performance falls two or more
standard deviations below the mean in any of the three
adaptive skill sets (conceptual, social, and practical).” Id.,
at ___ (slip op., at 4) (citing AAIDD–11, at 43). Based on
the evidence before it, the trial court found that “Moore’s
performance fell roughly two standard deviations below
the mean in all three skill categories.” 581 U. S., at ___
(slip op., at 4); see App. to Pet. for Cert. 309a. Reversing
that decision, the appeals court held that Moore had “not
proven by a preponderance of the evidence” that he pos-
sessed the requisite adaptive deficits, and thus was eligi-
ble for the death penalty. Ex parte Moore I, 470 S.W.3d,
at 520. We disagreed with the appeals court’s adaptive-
functioning analysis, however, and identified at least five
errors.
First, the Texas Court of Criminal Appeals “overempha-
sized Moore’s perceived adaptive strengths.” Moore, 581
U. S., at ___ (slip op., at 12). “But the medical community,”
we said, “focuses the adaptive-functioning inquiry on
adaptive deficits.” Ibid.
Second, the appeals court “stressed Moore’s improved
behavior in prison.” Id., at ___ (slip op., at 13). But
“[c]linicians . . . caution against reliance on adaptive
strengths developed ‘in a controlled setting,’ as a prison
surely is.” Ibid. (quoting DSM–5, at 38).
Third, the appeals court “concluded that Moore’s record
of academic failure, . . . childhood abuse[,] and suffer-
ing . . . detracted from a determination that his intellectual
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and adaptive deficits were related.” 581 U. S., at ___ (slip
op., at 13). But “in the medical community,” those “trau-
matic experiences” are considered “ ‘risk factors’ for intel-
lectual disability.” Ibid. (quoting AAIDD–11, at 59–60).
Fourth, the Texas Court of Criminal Appeals required
“Moore to show that his adaptive deficits were not related
to ‘a personality disorder.’ ” 581 U. S., at ___ (slip op., at
14) (quoting Ex parte Moore I, 470 S.W.3d, at 488). But
clinicians recognize that the “existence of a personality
disorder or mental-health issue . . . is ‘not evidence that a
person does not also have intellectual disability.’ ” 581
U. S., at ___ (slip op., at 14) (quoting Brief for American
Psychological Association et al. as Amici Curiae in Moore
v. Texas, O. T. 2016, No. 15–797, p. 19).
Fifth, the appeals court directed state courts, when
examining adaptive deficits, to rely upon certain factors
set forth in a Texas case called Ex parte Briseno, 135 S.W.
3d 1 (Tex. Crim. App. 2004). Ex parte Moore I, 470 S.W.
3d, at 486, 489. The Briseno factors were: whether “those
who knew the person best during the developmental
stage” thought of him as “mentally retarded”; whether he
could “formulat[e] plans” and “car[ry] them through”;
whether his conduct showed “leadership”; whether he
showed a “rational and appropriate” “response to external
stimuli”; whether he could answer questions “coherently”
and “rationally”; whether he could “hide facts or lie effec-
tively”; and whether the commission of his offense re-
quired “forethought, planning, and complex execution of
purpose.” 135 S.W. 3d, at 8–9.
We criticized the use of these factors both because they
had no grounding in prevailing medical practice, and
because they invited “lay perceptions of intellectual dis-
ability” and “lay stereotypes” to guide assessment of intel-
lectual disability. Moore, 581 U. S., at ___ (slip op., at 15).
Emphasizing the Briseno factors over clinical factors, we
said, “ ‘creat[es] an unacceptable risk that persons with
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intellectual disability will be executed.’ ” 581 U. S., at ___
(slip op., at 14) (quoting Hall v. Florida, 572 U.S. 701, 704
(2014)). While our decisions in “Atkins and Hall left to the
States ‘the task of developing appropriate ways to enforce’
the restriction on executing the intellectually disabled,”
581 U. S., at ___ (slip op., at 9) (quoting Hall, 572 U.S., at
719), a court’s intellectual disability determination “must
be ‘informed by the medical community’s diagnostic
framework,’ ” 581 U. S., at ___ (slip op., at 9) (quoting Hall,
572 U.S., at 721).
Three Members of this Court dissented from the major-
ity’s treatment of Moore’s intellectual functioning and with
aspects of its adaptive-functioning analysis, but all agreed
about the impropriety of the Briseno factors. As THE
CHIEF JUSTICE wrote in his dissenting opinion, the Briseno
factors were “an unacceptable method of enforcing the
guarantee of Atkins” and the Texas Court of Criminal
Appeals “therefore erred in using them to analyze adap-
tive deficits.” Moore, 581 U. S., at ___ (opinion of
ROBERTS, C. J.) (slip op., at 1).
For the reasons we have described, the Court set aside
the judgment of the appeals court and remanded the case
“for further proceedings not inconsistent with this opin-
ion.” Id., at ___ (slip op., at 18).
II
On remand the Texas Court of Criminal Appeals recon-
sidered the appeal and reached the same basic conclusion,
namely, that Moore had not demonstrated intellectual
disability. Ex parte Moore II, 548 S.W.3d, at 555. The
court again noted the three basic criteria: intellectual-
functioning deficits, adaptive deficits, and early onset. Id.,
at 560–562. But this time it focused almost exclusively on
the second criterion, adaptive deficits. The court said
that, in doing so, it would “abandon reliance on the
Briseno evidentiary factors.” Id., at 560. It would instead
6 MOORE v. TEXAS
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use “ ‘current medical diagnostic standards’ ” set forth in
the American Psychiatric Association’s DSM–5. Id., at
559–560. In applying those standards to the trial court
record, it found the State’s expert witness, Dr. Kristi
Compton, “ ‘far more credible and reliable’ ” than the other
experts considered by the trial court. Id., at 562. (As in
our last opinion, we neither second nor second-guess that
judgment.) And, as we have said, it reached the same
conclusion it had before.
Moore has now filed a petition for certiorari in which he
argues that the trial court record demonstrates his intel-
lectual disability. He asks us to reverse the appeals
court’s contrary holding. Pet. for Cert. 2. The prosecutor,
the district attorney of Harris County, “agrees with the
petitioner that he is intellectually disabled and cannot be
executed.” Brief in Opposition 9. The American Psycho-
logical Association (APA), American Bar Association
(ABA), and various individuals have also filed amicus
curiae briefs supporting the position of Moore and the
prosecutor. Brief for APA et al. as Amici Curiae; Brief for
ABA as Amicus Curiae; Brief for Donald B. Ayer et al. as
Amici Curiae. The Attorney General of Texas, however,
has filed a motion for leave to intervene, and asks us to
deny Moore’s petition. Motion for Leave to Intervene as a
Respondent.
III
After reviewing the trial court record and the court of
appeals’ opinion, we agree with Moore that the appeals
court’s determination is inconsistent with our opinion in
Moore. We have found in its opinion too many instances
in which, with small variations, it repeats the analysis we
previously found wanting, and these same parts are criti-
cal to its ultimate conclusion.
For one thing, the court of appeals again relied less
upon the adaptive deficits to which the trial court had
Cite as: 586 U. S. ____ (2019) 7
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referred than upon Moore’s apparent adaptive strengths.
See Moore, 581 U. S., at ___ (slip op., at 12) (criticizing the
appeals court’s “overemphas[is]” upon Moore’s “perceived
adaptive strengths”); supra, at 3. The appeals court’s
discussion of Moore’s “[c]ommunication [s]kills” does not
discuss the evidence relied upon by the trial court.
Ex parte Moore II, 548 S.W.3d, at 563–565. That evi-
dence includes the young Moore’s inability to understand
and answer family members, even a failure on occasion to
respond to his own name. App. to Pet. for Cert. 289a–
290a. Its review of Moore’s “[r]eading and [w]riting” refers
to deficits only in observing that “in prison, [Moore] pro-
gressed from being illiterate to being able to write at a
seventh-grade level.” Ex parte Moore II, 548 S.W.3d, at
565. But the trial court heard, among other things, evi-
dence that in school Moore was made to draw pictures
when other children were reading, and that by sixth grade
Moore struggled to read at a second-grade level. App. to
Pet. for Cert. 290a, 295a.
Instead, the appeals court emphasized Moore’s capacity
to communicate, read, and write based in part on pro se
papers Moore filed in court. Ex parte Moore II, 548 S.W.
3d, at 565–566. That evidence is relevant, but it lacks
convincing strength without a determination about
whether Moore wrote the papers on his own, a finding that
the court of appeals declined to make. Rather, the court
dismissed the possibility of outside help: Even if other
inmates “composed” these papers, it said, Moore’s “ability
to copy such documents by hand” was “within the realm of
only a few intellectually disabled people.” Id., at 565.
Similarly, the court of appeals stressed Moore’s “coherent”
testimony in various proceedings, but acknowledged that
Moore had “a lawyer to coach him” in all but one. Id., at
564, and n. 95. As for that pro se hearing, the court ob-
served that Moore read letters into the record “without
any apparent difficulty.” Ibid.
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For another thing, the court of appeals relied heavily
upon adaptive improvements made in prison. See Moore,
581 U. S., at ___ (slip op., at 13) (“caution[ing] against
reliance on adaptive strengths developed” in “prison”);
supra, at 3. It concluded that Moore has command of
elementary math, but its examples concern trips to the
prison commissary, commissary purchases, and the like.
Ex parte Moore II, 548 S.W. 3d, at 566–569. It deter-
mined that Moore had shown leadership ability in prison
by refusing, on occasion, “to mop up some spilled oat-
meal,” shave, get a haircut, or sit down. Id., at 570–571,
and n. 149. And as we have said, it stressed correspond-
ence written in prison. Id., at 565. The length and detail
of the court’s discussion on these points is difficult to
square with our caution against relying on prison-based
development.
Further, the court of appeals concluded that Moore
failed to show that the “cause of [his] deficient social be-
havior was related to any deficits in general mental abili-
ties” rather than “emotional problems.” Id., at 570. But in
our last review, we said that the court of appeals had
“departed from clinical practice” when it required Moore to
prove that his “problems in kindergarten” stemmed from
his intellectual disability, rather than “ ‘emotional prob-
lems.’ ” Moore, 581 U. S., at ___ (slip op., at 14) (quoting
Ex parte Moore I, 470 S.W.3d, at 488, 526)). And we
pointed to an amicus brief in which the APA explained
that a personality disorder or mental-health issue is “not
evidence that a person does not also have intellectual
disability.” 581 U. S., at ___ (slip op., at 14) (quoting Brief
for APA et al. as Amici Curiae in No. 15–797, at 19).
Finally, despite the court of appeals’ statement that it
would “abandon reliance on the Briseno evidentiary fac-
tors,” Ex parte Moore II, 548 S.W. 3d, at 560, it seems to
have used many of those factors in reaching its conclusion.
See supra, at 4 (detailing those factors). Thus, Briseno
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asked whether the “offense require[d] forethought, plan-
ning, and complex execution of purpose.” 135 S.W. 3d, at
9. The court of appeals wrote that Moore’s crime required
“a level of planning and forethought.” Ex parte Moore II,
548 S.W. 3d, at 572, 603 (observing that Moore “w[ore] a
wig, conceal[ed] the weapon, and fle[d]” after the crime).
Briseno asked whether the defendant could “respond
coherently, rationally, and on point to oral and written
questions.” 135 S.W. 3d, at 8. The court of appeals found
that Moore “responded rationally and coherently to ques-
tions.” Ex parte Moore II, 548 S.W. 3d, at 564.
And Briseno asked whether the defendant’s “conduct
show[s] leadership or . . . that he is led around by others.”
135 S.W. 3d, at 8. The court of appeals wrote that
Moore’s “refus[al] to mop up some spilled oatmeal” (and
other such behavior) showed that he “influences others
and stands up to authority.” Ex parte Moore II, 548 S.W.
3d, at 570–571.
Of course, clinicians also ask questions to which the
court of appeals’ statements might be relevant. See
AAIDD–11, at 44 (noting that how a person “follows rules”
and “obeys laws” can bear on assessment of her social
skills). But the similarity of language and content be-
tween Briseno’s factors and the court of appeals’ state-
ments suggests that Briseno continues to “pervasively
infec[t] the [the appeals courts’] analysis.” Moore, 581
U. S., at ___ (slip op., at 18).
To be sure, the court of appeals opinion is not identical
to the opinion we considered in Moore. There are sentences
here and there suggesting other modes of analysis con-
sistent with what we said. But there are also sentences
here and there suggesting reliance upon what we earlier
called “lay stereotypes of the intellectually disabled.” Id.,
at ___ (slip op., at 15). Compare Ex parte Moore II, 548 S.
W. 3d, at 570–571 (finding evidence that Moore “had a
girlfriend” and a job as tending to show he lacks intellec-
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tual disability), with AAIDD–11, at 151 (criticizing the
“incorrect stereotypes” that persons with intellectual
disability “never have friends, jobs, spouses, or children”),
and Brief for APA et al. as Amici Curiae 8 (“[I]t is estimated
that between nine and forty percent of persons with in-
tellectual disability have some form of paid employment”).
We conclude that the appeals court’s opinion, when
taken as a whole and when read in the light both of our
prior opinion and the trial court record, rests upon analy-
sis too much of which too closely resembles what we previ-
ously found improper. And extricating that analysis from
the opinion leaves too little that might warrant reaching a
different conclusion than did the trial court. We conse-
quently agree with Moore and the prosecutor that, on the
basis of the trial court record, Moore has shown he is a
person with intellectual disability.
* * *
The petition for certiorari is granted. The Attorney
General of Texas’ motion to intervene is denied; we have
considered that filing as an amicus brief. The judgment of
the Texas Court of Criminal Appeals is reversed, and the
case is remanded for further proceedings not inconsistent
with this opinion.
It is so ordered.
Cite as: 586 U. S. ____ (2019) 1
ROBERTS, C. J., concurring
SUPREME COURT OF THE UNITED STATES
BOBBY JAMES MOORE v. TEXAS
ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS OF TEXAS
No. 18–443. Decided February 19, 2019
CHIEF JUSTICE ROBERTS, concurring.
When this case was before us two years ago, I wrote in
dissent that the majority’s articulation of how courts
should enforce the requirements of Atkins v. Virginia, 536
U.S. 304 (2002), lacked clarity. Moore v. Texas, 581 U. S.
___, ___–___ (2017) (slip op., at 10–11). It still does. But
putting aside the difficulties of applying Moore in other
cases, it is easy to see that the Texas Court of Criminal
Appeals misapplied it here. On remand, the court re-
peated the same errors that this Court previously con-
demned—if not quite in haec verba, certainly in substance.
The court repeated its improper reliance on the factors
articulated in Ex parte Briseno, 135 S.W. 3d 1, 8 (Tex.
Crim. App. 2004), and again emphasized Moore’s adaptive
strengths rather than his deficits. That did not pass
muster under this Court’s analysis last time. It still
doesn’t. For those reasons, I join the Court’s opinion
reversing the judgment below.
Cite as: 586 U. S. ____ (2019) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
BOBBY JAMES MOORE v. TEXAS
ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS OF TEXAS
No. 18–443. Decided February 19, 2019
JUSTICE ALITO, with whom JUSTICE THOMAS and
JUSTICE GORSUCH join, dissenting.
Two years ago, this Court vacated a judgment of the
Texas Court of Criminal Appeals holding that Bobby
James Moore was not intellectually disabled and was
therefore eligible for the death penalty. Moore v. Texas,
581 U. S. ___ (2017). While the Court divided on the
appropriate disposition, both the majority and the dissent
agreed that the Court of Criminal Appeals should have
assessed Moore’s claim of intellectual disability under
contemporary standards rather than applying the outdated
evidentiary factors laid out in Ex parte Briseno, 135 S.W.
3d 1, 8 (Tex. Crim. App. 2004). Moore, 581 U. S., at ___
(slip op., at 2); id., at ___ (ROBERTS, C. J., dissenting) (slip
op., at 1). On remand, the Court of Criminal Appeals
adopted the leading contemporary clinical standards for
assessing intellectual disability, applied those standards
to the record, and once again determined that Moore is
eligible for the death penalty. Ex parte Moore, 548 S.W.
3d 552, 555 (2018).
Today, the Court reverses that most recent decision,
holding that the Court of Criminal Appeals failed to follow
our decision in Moore. Such a failure would be under-
standable given the “lack of guidance [Moore] offers to
States seeking to enforce the holding of Atkins.” Moore,
581 U. S., at ___ (ROBERTS, C. J., dissenting) (slip op., at
10). Indeed, each of the errors that the majority ascribes
to the state court’s decision is traceable to Moore’s failure
to provide a clear rule. For example, the majority faults
2 MOORE v. TEXAS
ALITO, J., dissenting
the Court of Criminal Appeals for “rel[ying] less upon the
adaptive deficits . . . than upon Moore’s apparent adaptive
strengths,” ante, at 6–7, and for “rel[ying] heavily upon
adaptive improvements made in prison,” ante, at 8. But in
Moore, we said only that a court ought not “overempha-
siz[e]” adaptive strengths or place too much “stres[s]” on
improved behavior in prison. This left “the line between
the permissible—consideration, maybe even emphasis—
and the forbidden—‘overemphasis’—. . . not only thin, but
totally undefined . . . .” Moore, 581 U. S., at ___
(ROBERTS, C. J., dissenting) (slip op., at 11). The major-
ity’s belief that the state court failed to follow Moore on
remand merely proves that “[n]either the Court’s articula-
tion of this standard [in Moore] nor its application sheds
any light on what it means.” Id., at ___ (ROBERTS, C. J.,
dissenting) (slip op., at 10).
Having concluded that the Court of Criminal Appeals
failed to apply the standard allegedly set out in Moore, the
Court today takes it upon itself to correct these factual
findings and reverse the judgment.* This is not our role.
“We do not grant a certiorari to review evidence and dis-
cuss specific facts.” United States v. Johnston, 268 U.S.
220, 227 (1925); see also Salazar-Limon v. Houston, 581
U. S. ___, ___ (2017) (ALITO, J., concurring in denial of
certiorari) (slip op., at 2) (“[W]e rarely grant review where
the thrust of the claim is that a lower court simply erred
in applying a settled rule of law to the facts of a particular
case”). If the Court is convinced that the Court of Crimi-
nal Appeals made a legal error, it should vacate the judg-
——————
* The Court excuses its usurpation of the factfinding role by con-
trasting the conclusions of “the trial court,” ante, at 6–7, 10, with the
views of “the court of appeals,” ante, at 7–9. But in Texas habeas
proceedings, the Texas Court of Criminal Appeals is “the ultimate
factfinder” and has authority to accept, alter, or reject the “recommen-
dation” of the habeas court. Ex parte Reed, 271 S.W.3d 698, 727
(2008).
Cite as: 586 U. S. ____ (2019) 3
ALITO, J., dissenting
ment below, pronounce the standard that we failed to
provide in Moore, and remand for the state court to apply
that standard. The Court’s decision, instead, to issue a
summary reversal belies our role as “a court of review, not
of first view.” Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7
(2005).
The Court’s foray into factfinding is an unsound depar-
ture from our usual practice. The error in this litigation
was not the state court’s decision on remand but our own
failure to provide a coherent rule of decision in Moore. I
would deny the petition for a writ of certiorari. I certainly
would not summarily reverse and make our own finding of
fact without even giving the State the opportunity to brief
and argue the question. I therefore respectfully dissent.