Petetan, US Carnell Jr. A/K/A Carnell Petetan, Jr. ( 2021 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-77,038
US CARNELL PETETAN, JR., Appellant
v.
THE STATE OF TEXAS
ON REHEARING UPON COURT’S OWN MOTION
FROM CAUSE NO. 2012-2331-C1 IN THE 19TH DISTRICT COURT
McLENNAN COUNTY
NEWELL, J. filed an opinion in which HERVEY, RICHARDSON,
WALKER and MCCLURE, JJ., joined. KELLER, P.J., filed a dissenting
opinion in which YEARY, KEEL and SLAUGHTER, JJ., joined.
Appellant was convicted of the capital murder of his wife, Kimberly
Petetan. The jury rejected, in a special issue, Appellant's claim that he
is intellectually disabled and therefore categorically ineligible for the death
Petetan Opinion On Rehearing — 2
penalty.1 And the jury answered the statutory special issues in such a
manner that Appellant was sentenced to death. Appeal to this court is
automatic. We affirmed.2 Among the points of error we rejected were
three relating to Appellant’s claim that he is intellectually disabled: that
the jury’s answer to the intellectual disability special issue was against
the great weight and preponderance of the evidence (claim 10); that he
is ineligible for the death penalty due to intellectual disability (claim 11);
and that he was entitled to a pre-trial determination of his intellectual
disability (claim 27).
At the time of our decision, Texas’s standard for evaluating claims
of intellectual disability was being reviewed by the United States Supreme
Court in the case of another Texas capital offender, Bobby James Moore.
In 2015, we had held that Moore was not intellectually disabled and
1
The United States Supreme Court first used the term “mentally retarded” and its
variants when it first recognized the Eight Amendment limitation on executing criminal
defendants diagnosed with intellectual disability disorder. Atkins v. Virginia, 536 U.S. 304, 306
(2002). The Court later announced that it would use the term “intellectual disability” to replace
the term “mental retardation” because that was the terminology used in the Diagnostic and
Statistical Manual of Mental Disorders. Hall v. Florida, 572 U.S. 701, 704 (2014). The fifth
edition of the Diagnostic and Statistical Manual on Mental Disorders recognizes that this
terminology is interchangeable with the more precise term for the disorder, “intellectual
developmental disorder.” American Psychiatric Ass’n, Diagnostic and Statistical Manual of
Mental Disorders at 33 (5th ed. 2013) (“DSM–5"). This opinion refers to the phrase
“intellectual disability” and its variants even when referring to precedent using the phrase
“mental retardation” and its variants for the sake of consistency.
2
Petetan v. State, ___ S.W.3d ___, 2017 WL 915530 (Tex. Crim. App. Mar. 8, 2017).
Petetan Opinion On Rehearing — 3
consequently was eligible for the death penalty.3 The question before the
Supreme Court was whether Texas’s legal standard for determining
intellectual disability violated the Eighth Amendment’s prohibition against
the execution of intellectually disabled people.4 Before we issued our
mandate in the instant case, the Supreme Court decided that it did.5
We granted rehearing in this case on our own motion to consider
Appellant’s tenth, eleventh, and twenty-seventh claims in light of Moore.
We substitute this opinion on rehearing for our resolution of those three
issues, but leave the resolution of the other issues in the original opinion
intact. Here, we again reject the claim that Appellant was entitled to a
pre-trial determination of his intellectual disability. Concerning the
sufficiency of the evidence regarding the jury’s rejection of his intellectual
disability claims, we apply contemporary clinical standards—the
framework set forth in the DSM–56—for assessing intellectual disability.
We hold that, although legally sufficient, the evidence was factually
3
Ex parte Moore, 470 S.W.3d 481, 527–28 (Tex. Crim. App. 2015) (“Ex parte Moore
I”).
4
Moore v. Texas, 137 S. Ct. 1039, 1044 (2017) (“Moore I”).
5
Id.6
American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders (5th
ed. 2013).
Petetan Opinion On Rehearing — 4
insufficient to support the jury’s rejection of the intellectual disability
special issue. Appellant is therefore entitled to a new punishment hearing.
Accordingly, we vacate Appellant’s death sentence and remand this cause
for a new punishment hearing.
Background
The United State Supreme Court has held that executing a
defendant diagnosed with intellectual developmental disorder violates the
Eighth Amendment. When the State seeks the death penalty, a criminal
defendant wanting to raise this issue must prove, by a preponderance of
the evidence, that he is intellectually disabled.7 He must prove that he
has subaverage intellectual functioning, and significant limitations in
adaptive skills such as communication, self-care, and self-direction—both
manifest before age eighteen.8
Relevant to these criteria, the jury heard evidence at the
7
Franklin v. State, 579 S.W.3d 382, 386 (Tex. Crim. App. 2019) (the issue of intellectual
disability is like an affirmative defense; the defendant has the burden to prove it by a
preponderance of the evidence, whether the issue is raised at trial or on habeas).
8
Hall, 572 U.S. at 710 (“the medical community defines intellectual disability according
to three criteria: significantly subaverage intellectual functioning, deficits in adaptive
functioning (the inability to learn basic skills and adjust behavior to changing circumstances),
and onset of these deficits during the developmental period”); Atkins, 536 U.S. at 318 (“clinical
definitions of [intellectual disability] require not only subaverage intellectual functioning, but
also significant limitations in adaptive skills such as communication, self-care, and self-direction
that became manifest before age 18”).
Petetan Opinion On Rehearing — 5
punishment phase of Appellant’s trial that all of Appellant’s IQ scores,
adjusted for the standard error of measurement, fell in the “significantly
subaverage intellectual functioning” category, and that several experts
had diagnosed Appellant with intellectual disability. First, the Texas
Juvenile Justice Commission records showed that, in February of 1991,
at age fifteen, Appellant was administered a child IQ test. The test yielded
a full-scale IQ score of 61. It also yielded a verbal IQ score of 67 and a
performance IQ score of 61.
Second, in November 1991, psychiatrist Dr. Harold Scott examined
Appellant as he entered a juvenile justice facility. As a result of the
examination and previous test scores, Dr. Scott diagnosed Appellant as
having “mild [intellectual disability] versus borderline intellectual
functioning.” The phrase “versus borderline intellectual functioning” was
a hedge on the intellectual diagnosis because Appellant’s
passive-aggressive nature and his stubbornness undermined the
usefulness of the clinical interview as a measure of intellectual ability. Dr.
Scott also diagnosed Appellant as having conduct disorder.
Third, psychologist Dr. Ray Coxe administered intelligence and
achievement tests to Appellant at age sixteen in April 1992. This testing
was for the Jefferson County Juvenile Probation Office. The intelligence
Petetan Opinion On Rehearing — 6
tests for both children and adults were qualified for sixteen-year-olds, and
Appellant took both tests. Appellant’s full-scale IQ score on the child test
was 64 and on the adult test was 74. Dr. Coxe testified that the first
test—where he had doubts about whether Appellant was putting forth his
full effort—was the child test, which yielded the lower IQ score. Dr. Coxe
felt that the second test, the adult test that yielded an IQ score of 74,
was a reliable indicator of Appellant’s functioning. Nevertheless, Dr. Coxe
testified that his “overall impression,” based on the results of testing and
on observations during interviews, was that Appellant “was mildly
[intellectually disabled].” He also diagnosed him with “undersocialized
aggressive conduct disorder.”
Fourth, an IQ test was given to Appellant when he entered the adult
prison system. Travis Turner, the Vice Chairman of Classification in the
Texas Department of Criminal Justice, testified that an offender is given
an initial IQ test upon entry. If the offender scores below a certain cutoff,
then a “secondary test”—involving adaptive behavior screening—is given
to determine whether the offender should be assigned to the
“developmentally disabled” program in the Hodge Unit. Appellant’s score
on the IQ test was 69, so he was given the secondary test. There was no
evidence of the results of that test. But Appellant was not assigned to
Petetan Opinion On Rehearing — 7
the program; he was assigned to the prison’s regular facilities.
Fifth, in 2012, IQ testing was done as part of a Social Security
disability assessment. Appellant, by then age thirty-six, was
administered the WAIS–III IQ test, which yielded a full-scale IQ score of
55. The psychologist who conducted the test, Dr. Mark Correia, did not
testify at trial, but his report was admitted into evidence. Dr. Correia
diagnosed Appellant as having mild intellectual disability and antisocial
personality disorder. The “mild [intellectual disability]” diagnosis was
provisional “due to lack of supportive documentation from the
developmental period.”
Sixth, neuropsychologist Dr. Joan Mayfield conducted IQ tests and
other testing at the request of the defense. She administered the
WAIS–IV IQ test and obtained a full scale IQ of 52. In light of all her
testing, Dr. Mayfield concluded that Appellant “presents with global
delays, global delays in intellectual ability and academic and attention and
executive functioning and problem solving, memory, language, motor,
and visual perception. There was global delays across all domains.”
And seventh, psychologist Dr. Ellis Craig conducted an evaluation
at the request of the defense to determine whether Appellant had
adaptive deficits. He used the Adaptive Behavior Assessment System II
Petetan Opinion On Rehearing — 8
(ABAS–II), which uses people who know the subject (called “informants”)
to assess the subject’s adaptive behavior in a number of areas. Dr. Craig
conducted a “retrospective” screening, using reporting from family
members. Dr. Craig concluded that the adaptive assessment scores fell
within the range for moderate intellectual disability.
As defense counsel pointed out to the jury in closing, the State did
not put on an opposing expert to say that Appellant was not intellectually
disabled. The jury considered all the evidence related to Appellant’s claim
of intellectual disability and rejected it. The jury also found against
Appellant on the mitigation special issue.
I. The Evolution of the Legal Framework for Determining
Intellectual Disability
A. Atkins
In Atkins v. Virginia, the Supreme Court held that the Eighth
Amendment bars the execution of intellectually disabled offenders.9 The
Court stated that those intellectually disabled persons “who meet the
law’s requirements for criminal responsibility should be tried and punished
when they commit crimes.”10 But a death sentence is not a suitable
9
Atkins v. Virginia, 536 U.S. 304 (2002).
10
Id. at 306.
Petetan Opinion On Rehearing — 9
punishment for an intellectually disabled criminal because the diminished
capacity of the intellectually disabled criminal lessens his moral
culpability.11
The Court noted that clinical definitions of intellectual disability
“require not only subaverage intellectual functioning, but also significant
limitations in adaptive skills such as communication, self-care, and
self-direction that became manifest before age 18.”12 But the Court
recognized 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” regarding
diminished moral culpability.13 It otherwise left to the States the task of
developing appropriate ways to enforce this constitutional restriction.14
B. Hall
Later, in Hall v. Florida, the Court established rules, based on clinical
standards, for interpreting IQ scores.15 Clinical definitions for intellectual
11
Id.12
Id. at 318.
13
Id. at 317.
14
Id.15
Hall v. Florida, 572 U.S. 701 (2014).
Petetan Opinion On Rehearing — 10
disability, by their express terms, reject a strict IQ test score cutoff at 70
and include the standard error of measurement (“SEM”).16 The SEM is
“a statistical fact, a reflection of the inherent imprecision of the test
itself.”17 For purposes of most IQ tests, this imprecision in the testing
instrument means that an individual’s score is best understood as a range
of scores on either side of the recorded score within which one may say
an individual’s true IQ score lies.18
Florida, however, had a law that, as interpreted, defined intellectual
disability to require an IQ test score of 70 or less and failed to take into
account the SEM.19 The Court held that Florida’s 70-point threshold
disregarded established medical practice in two interrelated ways: (1) it
took an IQ score as final and conclusive evidence of a defendant’s
intellectual capacity, when experts would consider other evidence; and
(2) it relied on a purportedly scientific measurement of a defendant’s
abilities, his IQ score, while refusing to recognize that measurement’s
16
Id. at 712–13, 719.
17
Id. at 713.
18
Id.19
Id. at 711–12.
Petetan Opinion On Rehearing — 11
inherent imprecision.20 The Court held that Florida’s strict IQ cutoff was
unconstitutional because it created an unacceptable risk that persons with
intellectual disability will be executed.21
After Hall, a State cannot refuse to consider other evidence of
intellectual disability when a defendant’s IQ score is close to, but above,
70.22 Though Hall reiterated that the legal determination of intellectual
disability is distinct from a medical diagnosis, it also emphasized that the
legal determination is informed by the medical community’s diagnostic
framework.23
C. Ex parte Moore I and Ex parte Moore II
The following year, in Ex parte Moore I, we held that Moore’s IQ
scores of 78 and 74 failed to establish by a preponderance of the
evidence that he had significantly sub-average general intellectual
functioning.24 Even though Moore had not established that criterion for
20
Id. at 712.
21
Id. at 704.
22
Id. at 723 (“[W]hen a defendant’s IQ test score falls within the test’s acknowledged
and inherent margin of error, the defendant must be able to present additional evidence of
intellectual disability, including testimony regarding adaptive deficits.”).
23
Id. at 721.
24
Ex Parte Moore I, 470 S.W.3d at 514.
Petetan Opinion On Rehearing — 12
intellectual disability, we went on to consider adaptive functioning.25 We
held that Moore had not proven by a preponderance of the evidence that
he had significant and related limitations in adaptive functioning.26 We
noted some of Moore’s adaptive strengths, such as the fact that he
survived on the streets, mowed lawns, and played pool for money.27 We
further stated that the record showed that Moore’s academic difficulties
were caused by a variety of factors—including trauma from the
emotionally and physically abusive atmosphere in which he was raised
and undiagnosed learning disorders—rather than by significantly
sub-average general intellectual functioning.28 We concluded that Moore
had not shown that his adaptive deficits were related to significantly sub-
average general intellectual functioning.”29
But we also relied upon our own case, Ex parte Briseno,30 to support
this conclusion.31 We said that the Briseno factors weighed heavily
25
Id. at 520.
26
Id.
27
Id. at 522.
28
Id. at 488, 526.
29
Id. at 488, 526.
30
Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004).
31
Ex parte Moore I, 470 S.W.3d at 526–27.
Petetan Opinion On Rehearing — 13
against a finding that Moore’s adaptive deficits were related to
significantly sub-average general intellectual functioning.32 We then
rejected Moore’s claim of intellectual disability.33
The Supreme Court granted certiorari. The Supreme Court held in
part that our conclusion regarding Moore’s IQ scores was irreconcilable
with Hall.34 The Court stated that our consideration of factors unique to
Moore in disregarding the lower end of the SEM was contrary to clinical
standards.35 According to clinicians, the presence of other sources of
imprecision in administering the test to a particular individual cannot
narrow the test-specific standard-error range.36 Because the lower end
of Moore’s score range fell at or below 70, we had to move on to consider
Moore’s adaptive functioning.37
The Court also found fault with our adaptive-deficit conclusion.38
First, the Court held that our reliance on Moore’s perceived adaptive
32
Id.
33
Id. at 527–28.
34
Moore I, 137 S. Ct. at 1049.
35
Id. at 1049–50.
36
Id. at 1049.
37
Id.38
Id. at 1050.
Petetan Opinion On Rehearing — 14
strengths was erroneous.39 The proper inquiry, according to clinicians,
should be on Moore’s deficits, like his lack of a basic understanding of
time, seasons, the standards of measure, basic math, and his limited
ability to read and write.40 The Court also chastised our reliance on
Moore’s behavior in prison to support a finding of adaptive strengths.41
According to the Court, this was inappropriate because clinicians caution
against reliance on adaptive strengths developed in a controlled setting,
like a prison.42
Suspect, too, was our finding of record support that Moore’s
academic difficulties were caused by a variety of factors rather than
significantly sub-average general intellectual functioning.43 According to
the Supreme Court, clinicians rely on such traumatic experiences as cause
to explore the prospect of intellectual disability further, rather than to
counter the case for a disability determination.44
The Court also said that we departed from clinical practice by
39
Id.40
Id.41
Id.42
Id.43
Id. at 1051.
44
Id.Petetan Opinion On Rehearing — 15
requiring Moore to show that his adaptive deficits were not related to “a
personality disorder.”45 Again, according to clinicians, the existence of a
personality disorder or mental-health issue is “‘not evidence that a person
does not also have intellectual disability’”; many intellectually disabled
people also have other mental or physical impairments.46
Finally, the Court held that our attachment to the seven Briseno
evidentiary factors “further impeded” our assessment of Moore’s adaptive
functioning.47 The Court criticized the use of these factors both because
they had no grounding in prevailing medical practice and because they
invited “lay perceptions of intellectual disability” and “lay stereotypes” to
guide assessment of intellectual disability.48 Emphasizing the Briseno
factors over clinical factors, the Court said, creates an unacceptable risk
that persons with intellectual disability will be executed.49 To sum up, the
Court held that we, contrary to clinical practice: overemphasized Moore’s
perceived adaptive strengths; stressed Moore’s improved behavior in
45
Id.46
Id. (quoting Brief for American Psychological Association, APA, et al. as Amici Curiae
19).
47
Id.48
Id. at 1052.
49
Id. at 1051.
Petetan Opinion On Rehearing — 16
prison; concluded that Moore’s record of traumatic experiences detracted
from a determination that his intellectual and adaptive deficits were
related; required Moore to show that his adaptive deficits were not
related to a personality disorder; and considered the Briseno factors. The
Court vacated our judgment and remanded the case for further
proceedings not inconsistent with the opinion.50
On remand, we adopted the contemporary clinical standards set
forth in the DSM–5 for assessing intellectual disability.51 We applied
those standards and once again determined that Moore was not
intellectually disabled.52 Given that determination, we held that Moore
was eligible for the death penalty.53
The Supreme Court granted certiorari and summarily reversed.54
The Supreme Court emphasized that, while Atkins and Hall left to the
States the task of developing appropriate ways to enforce the restriction
on executing intellectually disabled people, a court’s intellectual disability
50
Id. at 1053.
51
Ex parte Moore, 548 S.W.3d 552, 560 (Tex. Crim. App. 2018) (“Ex parte Moore II”).
52
Id. at 573.
53
Id.54
Moore v. Texas, 139 S. Ct. 666 (2019) (per curiam) (“Moore II”).
Petetan Opinion On Rehearing — 17
determination must be informed by the medical community’s diagnostic
framework.55 According to the Court, we had again run afoul of the
medical community’s diagnostic framework. This Court had: “relied less
upon the adaptive deficits to which the trial court had referred than upon
Moore’s apparent adaptive strengths”; “relied heavily upon adaptive
improvements made in prison”; “concluded that Moore failed to show that
the ‘cause of [his] deficient social behavior was related to any deficits in
general mental abilities’ rather than ‘emotional problems’”; and “used
many of [the Briseno] factors in reaching its conclusion.”56 The Court
concluded that our opinion rested upon analysis too much of which too
closely resembled what it had previously found improper.57 Given that,
the Court held that Moore had shown he is a person with intellectual
disability.58
D. The DSM–5, AAIDD-11, and “Relatedness”
55
Id. at 669.
56
Id. at 670–71.
57
Id. at 672.
58
Id. at 672. The Supreme Court reversed and remanded. And we reformed Moore’s
sentence to life. Ex parte Moore, 587 S.W.3d 787, 788–89 (Tex. Crim. App. 2019) (“Having
concluded that Applicant is a person with intellectual disability that is exempt from the death
penalty, the Supreme Court has resolved Applicant’s claim in his favor. There is nothing left for
us to do but to implement the Supreme Court’s holding. Accordingly, we reform Applicant’s
sentence of death to a sentence of life imprisonment.”).
Petetan Opinion On Rehearing — 18
The Supreme Court’s evolving jurisprudence after Atkins leaves one
small question open; must a defendant show that adaptive deficits are
“related” to sub-average intellectual functioning? In Atkins, the United
States Supreme Court mentioned two sources for determining intellectual
disability, one from the American Psychiatric Association (APA) and the
other from the American Association on Mental Retardation (now the
AAIDD).59 Both pointed to the same three accepted diagnostic criteria
(sub-average intellectual functioning, adaptive deficits, and onset prior to
age eighteen), and both added the requirement that adaptive deficits
must be related to sub-average intellectual functioning. But the AAIDD
has since dropped that requirement, while the APA has not.60
The APA and the AAIDD seem to approach their respective manuals
from slightly different perspectives. The APA has designed the DSM-5
primarily as an aid to clinicians; the drafters sought a common
59
Atkins, 526 U.S. at 308 n.3. At the time, the APA derived its definition and diagnostic
criteria for intellectual disability from the fourth edition of the Diagnostic and Statistical Manual
of Mental Disorders. The definition and diagnostic criteria has not changed from the fourth to
the fifth edition. Compare DSM-4 at 42–43 with DSM-5 at 37–38. The American Association
on Mental Retardation derived its definition and diagnostic criteria for intellectual disability from
the ninth edition of its diagnostic manual, “Mental Retardation: Definition, Classification, and
Systems of Supports 5.” After Atkins, The American Association on Mental Retardation changed
its name to the American Association on Intellectual and Developmental Disabilities (AAIDD).
AAIDD currently derives its definition and diagnostic criteria for intellectual disability from the
eleventh edition of that diagnostic manual. The current edition of the AAIDD diagnostic manual
omits the “relatedness” requirement.
60
See note 59.
Petetan Opinion On Rehearing — 19
terminology that would apply to a wide range of disciplines, including the
law.61 The DSM recognizes that its diagnostic criteria are guidelines for
use by clinicians, and acknowledges the need for caution when using
them in forensic settings. It specifically notes the risk of misuse
attendant to relying upon the DSM-5's categories, criteria, and textual
descriptions in a forensic setting.62 Nevertheless, this caution underlies
that the manual has been drafted with the understanding that it will be
used as a reference for courts and attorneys as well as clinicians.63
In contrast, the AAIDD takes a more forward-looking view.
According to the AAIDD-11, “the concept of intellectual disability (ID)
belongs within the general construct of disability that has evolved over
the last 3 decades to emphasize an ecological perspective that focuses on
the interaction of the person with his or her environment and the
recognition that the systemic application of individualized supports can
61
DSM-5 at xii (“Although this edition of DSM was designed first and foremost to be a
useful guide in clinical practice, as an official nomenclature it must be applicable to a wide
diversity of context.”).
62
DSM-5 at 25 (“When DSM-5 categories, criteria, and textual descriptions are employed
for forensic purposes, there is a risk that diagnostic information will be misused or
misunderstood.”).
63
Id. (“Although the DSM-5 diagnostic criteria and text are primarily designed to assist
clinicians in conducting clinical assessment, case formulation, and treatment planning, DSM-5
is also used as a reference for the courts and attorneys in assessing the forensic consequences
of mental disorders.”).
Petetan Opinion On Rehearing — 20
enhance human functioning.”64 Further, the AAIDD does not regard
intellectual disability as a character trait.65 Instead, it sees intellectual
disability as exemplifying the interaction between the person and his or
her environment. The focus is on the role that individualized supports
can play in enhancing human functioning and allowing for the pursuit and
understanding of the principles inherent within the disability movement.66
According to the AAIDD-11, “an important purpose of describing
limitations is to develop a profile of needed supports.”67
The approach taken in each manual highlights the inherent tension
between the clinical perspective attendant to a diagnosis of intellectual
development disorder and the legal determination of moral
blameworthiness.68 At its core, Atkins 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
64
AAIDD at xiii.
65
Id.
66
Id.
67
Id. at 1.
68
See, e.g., Kansas v. Crane, 534 U.S. 407, 413 (2002) (noting that “the science of
psychiatry, which informs but does not control ultimate legal determinations, is an
ever-advancing science, whose distinctions do not seek precisely to mirror those of the law”);
Hall, 572 U.S. at 721 (“It is the Court's duty to interpret the Constitution, but it need not do so
in isolation. The legal determination of intellectual disability is distinct from a medical diagnosis,
but it is informed by the medical community's diagnostic framework.”).
Petetan Opinion On Rehearing — 21
value of the 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. And, as in the
case with the AAIDD-11, there is an affirmative rejection of any
character-based assessment.
Nevertheless, the Supreme Court held that states are to focus on
whether a capital murder defendant falls within that category of
intellectual developmental disorder that limits his moral
blameworthiness—the original justification for the categorical
exemption.69 To the extent that the clinical diagnosis of intellectual
developmental disorder can be harmonized with a reviewing court’s legal
inquiry under Atkins and its progeny, the approach taken by the DSM-5
hews closer to the original justification set out by the Supreme Court than
the AAIDD-11. And that is the approach we take.
This is not to suggest that a court or jury should reject an expert’s
testimony simply because the expert’s diagnosis was informed by the
69
Atkins, 536 U.S. at 306 (“Those [intellectually disabled] persons who meet the law's
requirements for criminal responsibility should be tried and punished when they commit crimes.
Because of their disabilities in areas of reasoning, judgment, and control of their impulses,
however, they do not act with the level of moral culpability that characterizes the most serious
adult criminal conduct.”).
Petetan Opinion On Rehearing — 22
AAIDD-11. Such an approach would be antithetical to the caution urged
by the drafters of the DSM-5 when considering the use of the manual in
a forensic setting. As mentioned above, the criteria for diagnosing an
individual with intellectual developmental disorder are largely the same
in both diagnostic manuals. Nothing in this opinion should be construed
as prohibiting consideration of or reliance upon the AAIDD-11. We only
recognize that there must be a showing that adaptive deficits are related
to subaverage intellectual functioning to satisfy the Atkins exception to
the imposition of the death penalty.
Neither do we suggest that this “relatedness” inquiry is unlimited.
The Supreme Court did clarify in Moore I that relatedness cannot be a
backdoor for reliance upon lay stereotypes or evidence of adaptive
strengths to undermine an otherwise clinical diagnosis.70 Similarly, the
Supreme Court faulted this Court for requiring proof that adaptive deficits
are not related to “a personality disorder” because many intellectually
disabled people have other mental or physical impairments.71 So while
the relational requirement found in the DSM-5 is currently a necessary
legal requirement under Atkins, it is not a vehicle to undermine an
70
Moore I, 137 at 1051.
71
Id.Petetan Opinion On Rehearing — 23
otherwise clinical diagnosis through consideration of lay stereotypes,
adaptive strengths, and alternative disorders.
Under the DSM–5, the following three criteria must be met for a
person to be considered intellectually disabled: (A) deficits in intellectual
functions; (B) deficits in adaptive functioning that are directly related to
the intellectual impairments; and (C) the onset of these intellectual and
adaptive deficits during childhood or adolescence.72 We will address
criterion one and criterion two in turn. We do not address criterion three
because it is not in dispute. With that background in mind, and now with
the benefit of both Moore decisions, we revisit our resolution of
Appellant’s intellectual disability claims in this case.
II. The Constitution Does Not Require a Pre-trial Determination
of Intellectual Disability
On original submission, Appellant argued that the trial court erred
in denying his motion for a pretrial determination of intellectual disability.
At that time, the Legislature had not enacted legislation on this topic.
This remains the case today.73 We concluded that “the issue of
72
DSM-5 at 33; see AAIDD–11. As Chief Justice Roberts noted in his dissent in Moore,
“Keeping the relatedness requirement would be inconsistent with the AAIDD’s current guidance;
dropping it would be out of step with the newest version of the DSM.” Moore, 137 S. Ct. at
1055 (Roberts, C.J., dissenting).
73
See Tex. HB 1139, 86th Leg., R.S. (2019). The bill, filed by State Rep. Senfronia
Thompson, D-Houston, would have provided, among other things, that in the face of evidence
Petetan Opinion On Rehearing — 24
[intellectual disability] may not be litigated pretrial.”74 We reasoned that:
At any pretrial determination of [intellectual disability], the
State would have to marshal “all of its evidence” of the
defendant’s guilt of the offense and his role in the offense in
order for the factfinder to be able to assess how that evidence
might weigh into resolving the issue. That has to occur
because the defendant’s conduct in connection with the
offense is relevant to determining whether he is [intellectually
disabled]. Moreover, nearly all of the State’s punishment
evidence would be relevant as well. For example, extraneous
offenses not explored at the guilt phase could shed as much
light on a defendant’s mental abilities as the offense for which
he is on trial. [Intellectual disability] “is a sentencing issue,”
and litigating such an issue before a finding of guilt “puts the
cart before the horse and results in an advisory opinion.”75
On rehearing, Appellant argues that Moore undercuts our conclusion on
from a credible source indicating that a capital defendant is a person with an intellectual
disability and a timely request, “the judge shall hold a hearing to determine the issue not later
than the 120th day before the date the trial is scheduled to begin.” As was reported in the
Texas Tribune on May 26, 2019:
As the bill moved through the Senate, however, it was largely gutted, instead
only stating that a defendant who has an intellectual disability can’t receive the
death penalty and such determinations must be made using current medical
standards. That language would have codified existing U.S. Supreme Court
rulings but offered no direction on how to follow them.
Earlier this week, when the bill came back from the Senate amended, Thompson
requested a conference committee in which members from both chambers could
iron out the differences between the two versions. The committees had until
midnight Sunday to file a report with a compromise version. The deadline passed
without a report.
Elizabeth Byrne and Jolie Mccullough, Despite bipartisan support, Texas bill tackling intellectual
disability in death penalty cases fails, Texas Tribune, May 26, 2019,
https://www.texastribune.org/2019/05/26/Texas-death-penalty-intellectual-disability-fails/.
74
Petetan, 2017 WL 915530, at *46.
75
Id., at *45.
Petetan Opinion On Rehearing — 25
original submission.76 We disagree.
Atkins and its progeny did not hold that an intellectual-disability
determination was something other than a sentencing issue, and they do
not require a pretrial determination. Nor do the cases (in spite of the
Court’s rejection of the Briseno factors)77 say details of the offense can’t
be considered at all; rather, the cases just state that the focus should be
on adaptive deficits and that adaptive strengths should not be
overemphasized.78 And, given the relational requirement under the
DSM–5, consideration of the details of the offense (and extraneous
offenses) may be necessary when evaluating the strength and reliability
of an expert’s opinion regarding intellectual disability. This is true even
if the details do not provide an independent basis for determining the
76
Appellant’s Br. 52.
77
Briseno, 135 S.W.3d, at 8–9 (“Putting aside any heinousness or gruesomeness
surrounding the capital offense, did the commission of that offense require forethought,
planning, and complex execution of purpose?”). See Brief for AAIDD et al. as Amici Curiae 14–
15, and n.23 (“AAIDD has specifically disapproved of using the facts of the crime in the
diagnostic process.” AAIDD, Manual 2010, supra note 3, at 102; American Association on
Intellectual and Developmental Disabilities, User’s Guide: To Accompany the 11th Edition of
Intellectual Disability: Definition, Classification, and Systems of Supports 20 (2012) (“Do not
use past criminal behavior or verbal behavior to infer level of adaptive behavior. . . . The
diagnosis of ID is not based on the person’s ‘street smarts,’ behavior in jail or prison, or
‘criminal adaptive functioning.’”)). But again, the jury is not diagnosing intellectual disability.
It is determining whether Appellant fits in the class of “less morally culpable.” Ex parte Butler,
416 S.W.3d 863, 870–71, 875 & n.51 (Tex. Crim. App. 2012) (per curiam) (“while clinicians
might not use such behaviors in their diagnostic analysis, factfinders in the judicial system are
not precluded from doing so”) (Cochran, J., concurring).
78
See, e.g., Moore I, 137 S. Ct. at 1059.
Petetan Opinion On Rehearing — 26
existence of an intellectual disability.79 Therefore, under existing
Supreme Court case law, and in light of the lack of state legislation, we
re-affirm our holding that intellectual disability is a sentencing issue. And
sentencing issues are generally not ripe for review before a finding of
guilt.
Indeed, Texas courts are not empowered to give advisory
opinions—a prohibition that extends to cases that are not ripe for
review.80 An issue is ripe when “the facts are sufficiently developed ‘so
that an injury has occurred or is likely to occur, rather than being
contingent or remote.’ . . . Thus, the ripeness analysis focuses on whether
a case involves uncertain or contingent future events that may not occur
as anticipated or may not occur at all.”81
For example, in State ex rel. Watkins v. Creuzot, the defendant filed
79
DSM-5 at 38 (“To meet diagnostic criteria for intellectual disability, the deficits in
adaptive functioning must be directly related to the intellectual impairments described in
Criterion A.”).
80
Patterson v. Planned Parenthood of Hous. and Se. Tex., Inc., 971 S.W.2d 439, 443
(Tex. 1998).
81
Patel v. Tex. Dep’t of Licensing and Regulation, 469 S.W.3d 69, 78 (Tex. 2015)
(quoting Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851–52 (Tex. 2000)); see In re
Allen, 462 S.W.3d 47, 67 (Tex. Crim. App. 2015) (Newell, J., dissenting) (“‘At the time a lawsuit
is filed, ripeness asks whether the facts have developed sufficiently so that an injury has
occurred or is likely to occur, rather than being contingent or remote.’”) (quoting Patterson, 971
S.W.2d at 442).
Petetan Opinion On Rehearing — 27
a motion to preclude the death penalty in his retrial.82 He argued that the
lengthy delay in obtaining post-conviction relief had rendered certain
mitigation evidence unavailable.83 After several evidentiary hearings, the
trial judge granted the motion.84 The State filed a petition for a writ of
mandamus and prohibition to require the trial judge to vacate this
order.85 We concluded that the trial judge did not have the legal
authority to preclude the State from seeking the death penalty and
therefore conditionally granted mandamus relief.86
In support of that conclusion, we stated that the adequacy of the
defendant’s mitigation case was not yet ripe for review.87 We explained:
We do not put the cart before the horse: “a defendant has no
claim of wrongful conviction or wrongful sentencing before he
has even gone to trial.” The adequacy and efficacy of [the
defendant’s] mitigation case cannot be judged unless he has
actually been convicted of capital murder and sentenced to
death. Any pretrial determination of that mitigation case is
necessarily hypothetical and unlikely to fairly reflect reality as
82
State ex rel. Watkins v. Creuzot, 352 S.W.3d 493, 494–95 (Tex. Crim. App. 2011).
83
Id. at 498.
84
Id.85
Id. at 494.
86
Id. at 506.
87
Id. at 504.
Petetan Opinion On Rehearing — 28
it plays out in an actual trial.88
That reasoning in Creuzot applies equally here. The injury Appellant
complains about is imposing a death sentence on an intellectually
disabled defendant in violation of the Eighth Amendment. But pretrial,
that injury involves “uncertain or contingent future events that . . . may
not occur at all.”89 Imposing a death sentence first requires a finding of
guilt—something that, before trial, is “uncertain.” Holding a hearing on
intellectual disability prior to a finding of guilt puts the cart before the
horse and results in an advisory opinion. More simply, a claim of
intellectual disability is not yet ripe for review.
Appellant argues that we should look at other states’ practices when
determining this issue. Appellant asserts that, out of the states that have
capital punishment, a majority of them either provide for or mandate a
pretrial determination.90 While that may be true, Atkins and its progeny
do not require it. Neither does Texas law.
Appellant also argues that an intellectual-disability determination is
a threshold question that must be determined apart from the merits of
88
Id. at 505.
89
Patel, 469 S.W.3d at 78.
90
Appellant’s Br. 58.
Petetan Opinion On Rehearing — 29
the case itself.91 In support of that argument, Appellant likens an
intellectual-disability determination to determinations of a defendant’s
incompetency or juvenile status—both of which are determined pretrial.92
Regarding incompetency, he relies on Ex parte Hagans, in which we
stated: “[W]here there is evidence to support a finding of incompetency
to stand trial, a jury shall be impaneled, separate from the jury selected
to determine guilt or innocence of the defendant, to determine the
defendant’s competency to stand trial.”93 This requirement ensures that
“an accused’s competency can be made ‘uncluttered by evidence of the
offense itself.’”94
Appellant, however, overlooks the right protected by that
requirement: “The conviction of an accused while he is legally
incompetent to assist in his own defense violates fundamental interests
of due process.”95 It is the conviction itself that violates an incompetent
defendant’s constitutional rights. This makes a pretrial incompetency
91
Id. at 60–61.
92
Id. at 63–67.
93
Ex parte Hagans, 558 S.W.2d 457, 461 (Tex. Crim. App. 1977).
94
Id.95
Id. (emphasis added).
Petetan Opinion On Rehearing — 30
determination ripe for review. But with intellectual disability, it is not the
conviction we are concerned with—it is the punishment.96 And we do not
reach the issue of punishment without a conviction. Therefore, the
rationale for requiring incompetency determinations pretrial is not
applicable to intellectual-disability determinations.
Finally, Appellant likens the categorical exemption from the death
penalty for people with intellectual disability to the categorical exception
from the death penalty for juveniles. According to Appellant, “the
constitutional underpinnings of the categorical exemption for persons with
intellectual disability are exactly the same as the categorical exemption
for juveniles.”97 Therefore, in Appellant’s view, “the procedure for
determining intellectual disability should be ‘no different from conducting
a pretrial determination of whether the defendant was a juvenile at the
time of the offense.’”98 Though we agree that the categorical exemption
from the death penalty for juveniles developed from the categorical
exemption for intellectually disabled individuals, we disagree that there
96
Cf. Atkins, 536 U.S. at 306 (“Those [intellectually disabled] persons who meet the
law’s requirements for criminal responsibility should be tried and punished when they commit
crimes.”).
97
Appellant’s Br. 63.
98
Id. (quoting In re Allen, 462 S.W.3d at 54 (Meyers, J., concurring)).
Petetan Opinion On Rehearing — 31
is no difference in the procedures for juvenile offenders and adult
offenders.
For a juvenile to be tried as an adult for capital murder, the juvenile
must first be transferred from the juvenile system to the district court.99
For the juvenile system to have jurisdiction to transfer the case, the
defendant must have been a juvenile (under the age of 17) when the
offense was committed.100 Therefore, the defendant’s age must
necessarily be determined at that time, making it ripe for review. And,
unlike intellectual-disability determinations, the defendant’s age is usually
readily ascertainable and not subject to reasonable dispute and does not
depend on the facts of the offense or other evidence relating to
punishment such as the defendant’s dangerousness and moral culpability.
Thus, the rationale for requiring juvenile-status determinations prior to
trial is not applicable to intellectual-disability determinations.
Lastly, Appellant asserts that a pretrial determination “is plainly in
the interest of judicial economy.”101 This may well be true. But
“[p]ublic-policy arguments quickly pile up on both sides of the debate on
99
Moon v. State, 451 S.W.3d 28, 37–38 (Tex. Crim. App. 2014).
100
See TEX. FAM. CODE § 51.04.
101
Appellant’s Br. 67.
Petetan Opinion On Rehearing — 32
when and by whom intellectual-disability determinations should be made;
. . . [T]hey find utility only in the Legislature and should be directed
there.”102 And our Legislature punted on that issue (again) when it last
considered it.
We therefore conclude that Atkins and its progeny do not require a
pre-trial determination of intellectual disability as a matter of federal
constitutional law. Because the pre-trial determination was neither
constitutionally nor statutorily required, the trial court did not err in
refusing to hold a pre-trial hearing on the issue of intellectual disability.
III. The Evidence Was Legally Sufficient To Support The Jury’s
Adverse Finding on Intellectual Disability
A. Standard of Review
Intellectual disability is a punishment-mitigation issue that is in the
nature of an affirmative defense. The defendant shoulders the burden of
proof to show intellectual disability by a preponderance of the evidence.103
Affirmative defenses may be evaluated for legal and factual sufficiency.104
In a legal-sufficiency review of an affirmative defense, reviewing
102
In re Allen, 462 S.W.3d at 53.
103
Neal v. State, 256 S.W.3d 264, 273 (Tex. Crim. App. 2008).
104
Matlock v. State, 392 S.W.3d 662, 669–70 (Tex. Crim. App. 2013).
Petetan Opinion On Rehearing — 33
courts should first assay the record for a scintilla of evidence favorable to
the factfinder’s finding and disregard all evidence to the contrary unless
a reasonable factfinder could not.105 The finding of the factfinder rejecting
a defendant’s affirmative defense should be overturned for lack of legal
sufficiency only if the appealing party establishes that the evidence
conclusively proves his affirmative defense, and no reasonable factfinder
was free to think otherwise.106
We are, as was noted in the original majority opinion, evaluating the
jury’s determination rather than independently considering whether
Appellant is intellectually disabled.107 Unlike in the habeas context, we
are not the ultimate factfinder on direct appeal.108 The issue of
intellectual disability was litigated at trial before a jury, and on direct
appeal from that trial, we exercise appellate-style deference to the
determination made by the jury.109 In the face of a record of historical
105
Butcher v. State, 454 S.W.3d 13, 20 (Tex. Crim. App. 2015) (citing Matlock, 392
S.W.3d at 669–70).
106
Id. (citing Matlock, 392 S.W.3d at 670).
107
Petetan, 2017 WL 915530, at *6.
108
See Ex parte Owens, 515 S.W.3d 891, 895 (Tex. Crim. App. 2017) (on habeas
review, although the trial court is the “original” factfinder, the Court is the “ultimate fact-
finder”).
109
Neal, 256 S.W.3d at 273.
Petetan Opinion On Rehearing — 34
facts that supports conflicting inferences, a reviewing court must
presume—even if it does not affirmatively appear in the record—that the
trier of fact resolved any such conflicts in favor of the verdict, and must
defer to that resolution.110
B. Analysis
1. Criterion A: Intellectual Deficits
Criterion A—deficits in intellectual functioning—“refers to intellectual
functions that involve reasoning, problem solving, planning, abstract
thinking, judgment, learning from instruction and experience, and
practical understanding. Critical components include verbal
comprehension, working memory, perceptual reasoning, quantitative
reasoning, abstract thought, and cognitive efficacy.”111 These functions
are typically measured through individually administered tests of
intelligence.112 A score “approximately two standard deviations or more
below the population mean, including a margin for measurement error
(generally +5 points)” indicates intellectual disability.113 For tests with a
110
See Jackson v. Virginia, 443 U.S. 307, 326 (1979).
111
DSM–5 at 37.
112
Id. The tests must be psychometrically valid, comprehensive, culturally appropriate,
and psychometrically sound. Id.113
Id.; AAIDD–11 at 35.
Petetan Opinion On Rehearing — 35
mean of 100 and standard deviation of 15, this would be a score of 65 to
75 (70 ± 5).114 Practice effects and the “Flynn effect,”115 however, may
affect test scores.116
Here, Appellant produced the following IQ test scores:
Psychologist Year Score
Texas Juvenile 1991 61 (Full scale)
Justice Commission 67 (Verbal)
61 (Performance)
Dr. Ray Coxe 1992 Child
64 (Full scale)
Adult
74 (Full scale)
Texas Department 1993 69 (Unclear)
of Criminal Justice
Dr. Mark Correia 2012 55 (Full scale)
Dr. Joan Mayfield 2013 52 (Full scale)
54 (Verbal)
56 (Perceptual reasoning)
71 (Working memory)
52 (Processing speed)
Dr. Coxe testified that the 1992 IQ test for adults that he
administered to Appellant—resulting in a score of 74—had a standard
114
DSM–5 at 37.
115
The Flynn effect involves “overly high scores due to out-of-date test norms.” Id.116
Id.Petetan Opinion On Rehearing — 36
error measurement of three points, which could yield an IQ score as high
as 77 or as low as 71. This means that one of the five test scores placed
Appellant outside the range of someone with intellectual deficits. This
alone, however, is insufficient to reject Appellant’s intellectual-disability
claim.117 Four scores placed Appellant within the range of intellectual
disability. And Moore requires courts to “continue the inquiry and
consider other evidence of intellectual disability where an individual’s IQ
score, adjusted for the test’s standard error, falls within the clinically
established range for intellectual-functioning deficits.”118
There was also some evidence that Appellant may have been
malingering on some of the tests.119 But this alone is also insufficient to
reject Appellant’s intellectual-disability claim. Under Moore, “the
117
Moore I, 137 S. Ct. at 1048 (“In Hall v. Florida, we held that a State cannot refuse
to entertain other evidence of intellectual disability when a defendant has an IQ score above
70.”).
118
Moore I, 137 S. Ct. at 1050.
119
Dr. Coxe testified that he had to administer both the child IQ test and the adult IQ
test to Appellant because Appellant’s attitude suggested that he was not putting forth his best
efforts. Dr. Coxe further testified that, on some items and tests, Appellant “gave up very
quickly without making too much of an effort” and had “a little bit of an attitude about the
testing.” Dr. Correia testified that Appellant “had little interest in the exam, requesting
repeatedly to be allowed to leave to smoke a cigarette, use the restroom and take cell phone
calls.” Dr. Correia stated that Appellant seemed to “put forth an effort to cooperate minimally
and superficially only.” Dr. Mayfield testified that she administered both the Test of Memory
Malingering (“TOMM”) and the Rey 15 test to Appellant. The TOMM test placed Appellant in the
category of “inadequate effort strongly suspected.” Appellant was also below the cutoff for
adequate effort on the Rey test. Dr. Mayfield, however, discounted these scores based on other
research. She concluded that Appellant exerted good efforts on all the tests.
Petetan Opinion On Rehearing — 37
presence of other sources of imprecision in administering the test to a
particular individual . . . cannot narrow the test-specific standard-error
range.”120 Therefore, we abandon our conclusion in the original opinion
that the jury could have resolved Appellant’s intellectual disability claim
against him based solely upon his failure to show sub-average
intelligence. We next turn to the evidence regarding adaptive deficits.
2. Criterion B: Adaptive Deficits
Criterion B—deficits in adaptive functioning—requires an evaluation
of the individual’s ability to function across a variety of dimensions.121
More specifically, it refers “to how well a person meets community
standards of personal independence and social responsibility, in
comparison to others of similar age and sociocultural background.”122
This involves three domains of adaptive reasoning: conceptual, social,
and practical.123
Criterion B is satisfied when at least one of those domains “is
sufficiently impaired that ongoing support is needed in order for the
120
Moore I, 137 S. Ct. at 1049.
121
Brumfield v. Cain, 135 S. Ct. 2269, 2279 (2015).
122
DSM–5 at 37.
123
Id.Petetan Opinion On Rehearing — 38
person to perform adequately in one or more life settings at school, at
work, at home, or in the community.”124 Adaptive deficits are measured
through clinical evaluations and testing, which must be culturally
appropriate and psychometrically sound.125 The tests should use
standardized measures “with knowledgeable informants (e.g., parent or
other family member; teacher; counselor; care provider) and the
individual to the extent possible.”126 Additional informational sources
“include educational, developmental, medical, and mental heath
evaluations.”127 All of this information “must be interpreted using clinical
judgment.”128
a. Evidence Overview
i. Dr. Craig
At the defense’s request, psychologist Dr. Ellis Craig evaluated
Appellant to determine whether he had adaptive deficits. Dr. Craig used
the ABAS-II. He performed a retrospective assessment because
124
Id. at 38.
125
Id. at 37.
126
Id.
127
Id.
128
Id.
Petetan Opinion On Rehearing — 39
Appellant was incarcerated at the time129 and because no one had
previously conducted a standardized adaptive behavior scale on
Appellant.
Dr. Craig stated that the ABAS-II was not normed for retrospective
assessment, elaborating that “[r]etrospective assessments are a
specialized subset that I don’t think any tests are normed to do.” On
cross-examination, the prosecutor went through the ABAS–II
questionnaire and pointed to items that could be inappropriate for a 14
to 16 year old and for which Appellant was given the score of 1 (out of 0
to 3).130 Dr. Craig was also asked what percentage of the population
129
More specifically, Dr. Craig stated: “In this context, where it really becomes important
is that you really have to do a retrospective assessment of adaptive behavior for somebody who
is incarcerated. You simply cannot do an adaptive behavior assessment in a jail or prison
setting.”
130
These items included:
• Calls to find out if a repair or order is ready.
• Calls a repair person if, for instance, the air conditioner or heater
is not working.
• Takes people on trips to nearby places; for example, takes a child
or family member to a park.
• Asks a store clerk for product information before buying an item.
• Reads and follows instruction to assemble new purchases.
• Makes reminder notes or lists.
• Completes forms for business or services; for example, obtains a
lease.
Petetan Opinion On Rehearing — 40
aged 30 to 39 (for which the particular ABAS–II was normed) had been
incarcerated for 20 years of their life. Dr. Craig responded, “I would say
zero,” and he acknowledged that he could only work with the data he was
given from the “informants.”
The ABAS–II requires “informants,” who are people that give
information about the subject being assessed. Dr. Craig stated that an
“informant” is “somebody who knows the individual well, has seen them
in a variety of situations and for a fairly extended period of time. For that
reason, it’s typically family members.” Dr. Craig also testified that it is
important to find informants that don’t “have a vested interest in giving
you incorrect information.”
For Appellant’s assessment, Dr. Craig used Appellant, his mother,
an older brother, an older sister, and an uncle as “informants.” The
scores from highest to lowest were: brother, 53; uncle, 47; sister, 47;
Appellant, 42; mother, 40. The norm for the population on the ABAS–II
• Reads important documents; for example, credit card applications
or rental agreements.
• Balances a checkbook.
• Follows the maintenance schedule for home or car.
• Reserves tickets in advance for activities such as concerts or sports
events.
Petetan Opinion On Rehearing — 41
is between 85 to 115, and the lowest possible score is 40.
Dr. Craig did not rely on Appellant’s score “because there are some
problems with self-reports.” For example, Dr. Craig stated that studies
show that intellectually disabled people “will try to . . . ‘pass as normal,’
and they will present themselves as more competent than they really are
because they don’t want to be put into that class.” Dr. Craig also
discounted the mother’s assessment because she “was inconsistent in her
responses.”
All informants, except for the uncle, ranked Appellant’s social skills
the highest, his conceptual skills second, and his practical skills the
lowest. Dr. Craig noted that the pattern of the uncle’s responses was
“very different” compared to the pattern of the other informants’
responses. Dr. Craig “thought [the uncle] was a good informant and
. . . had a very realistic picture of [Appellant],” but he opined that the
pattern was different because the uncle “actually was not around
[Appellant] that much” and had a different set of standards. Dr. Craig
thought that the brother’s and sister’s “assessments were probably the
most accurate and most reflective of what [Appellant’s] actual day-to-day
functional skills really are.”
Dr. Craig stated that Appellant’s “adaptive limitations far outweigh
Petetan Opinion On Rehearing — 42
his minimal skills.” Dr. Craig testified, “[A]ppellant does have skill areas.
There is no question,” and stated, “What caused all this . . . is hard to
say, but one likely explanation is that there were many missed
opportunities to learn these skills.”131 Based on his ABAS-II and the
scores he had “seen on intelligence,” Dr. Craig found Appellant “actually
has—he would fall into the moderately [intellectually disabled] range.”
ii. Other Witnesses and Evidence
Three school officials, Dorothy Stamps, Morris Lee, and Eddie
Fowler, testified generally about Appellant’s behavior in school and his
motivation. Appellant’s mother, Ophelia Ortiz, also testified and
described Appellant overall as “slow,” and said she had to give him more
attention than her other children when he was growing up. Other
witnesses included Appellant’s sister, Sabrina Mouton; Appellant’s aunt,
Cathy Gauthier; Appellant’s cousin, Caston Gauthier; Appellant’s Cousin,
Kimberly Jackson; and Appellant’s uncle, Thomas Kemper. Overall, they
characterized Appellant as slower than others.
Appellant’s education records from kindergarten through ninth grade
were introduced into evidence at trial. Multiple letters from Appellant to
131
Regarding “missed opportunities,” Dr. Craig referenced the fact that Appellant spent
the majority of his life incarcerated and, even when home, he did not receive adequate parental
supervision.
Petetan Opinion On Rehearing — 43
Kimberly were also introduced at trial. Appellant testified at the guilt
stage of trial. This testimony is set out in our original opinion. Appellant
gave a somewhat incredible exculpatory account of the incidents that
occurred on September 13 and 23, 2012. But his story was coherent,
and he stuck with it consistently, even under attack by the prosecutor.
b. Conceptual Domain
i. Appellant’s Education Records–Conceptual Domain
The trial record includes most of Appellant’s academic records for
kindergarten through ninth grade. For kindergarten through second
grade, Appellant did not receive numerical grades. Instead, he received
grades based on above average, average, below average, and level
function. The record does not make clear what “level function” means.
His grades, number of absences, and number of days present were as
follows:
K 1st 2nd
Reading level
below below
function
Arithmetic average below below
Other Language Arts average average average
Social Studies average average average
Science average average average
Petetan Opinion On Rehearing — 44
Effort average average average
Citizenship average below below
# of Absences 7 18 10
# of Days Present 136 154 165
From third through fifth grade, Appellant received both numerical
grades and letter grades of “S,” “N,” and “U.” Although the record does
not make this clear, the designations “S,” “N,” and “U” appear to mean,
respectively, “satisfactory,” “needs improvement,” and “unsatisfactory.”
Appellant was “retained” in third grade, meaning he was required to
repeat that grade. The following are Appellant’s grades, number of
absences, and number of days present from both times he went through
third grade, along with fourth and fifth grade:
3rd 3rd 4th 5th
Reading 54 63 72 75
Language 45 43 64 76
Spelling 40 53 62 76
Handwriting 71 S S S
Math 37 63 74 75
Social Studies 78 60 70 75
Science 80 51 72 75
Health 79 N S S
Petetan Opinion On Rehearing — 45
Art 79 S S+ S
Music / Band 74 N N N
P.E. 85 N N S
Personal Growth U U N N
# of Absences 29 7 30 8
# of Days Present 146 168 145 167
The records also include the scores from multiple standardized tests
that he took between third and fifth grade. During his first time in third
grade, Appellant took the Texas Assessment of Basic Skills (“TABS”) on
math, reading, and writing. Overall, Appellant passed only five of the
twenty-three objectives.132 Six months into the school year, he took the
California Achievement Test (“CAT”) on reading, language, and math. He
scored lower than 90% of the other students and tested at the level of a
student four months into second grade.
During his second time in third grade, Appellant took the Texas
Educational Assessment of Minimum Skills (“TEAMS”) in math, reading,
and writing. He passed the reading section but not the math and writing
sections. Six months into the school year, he took the CAT. He scored
lower than 81% of the other students and tested at the level of a student
132
The writing section had five objectives of which Appellant passed one and failed four.
The reading section had eight objectives of which Appellant passed three and failed five. The
math section had ten objectives of which Appellant passed one and failed nine.
Petetan Opinion On Rehearing — 46
seven months into second grade. Appellant was “socially promoted” to
the fourth grade even though his grades were failing.
Six months into fourth grade, Appellant took another CAT. He
scored lower than 91% of the other students and tested at the level of a
student seven months into second grade. In fifth grade, Appellant took
a TEAMS test, where he passed the reading section but not the math and
writing sections. He also took a CAT. He scored lower than 92% of the
other students and tested at the level of a student three months into third
grade.
In sixth grade, Appellant’s grades were as follows: 55 in Social
Studies, 53 in “Read Imp,” 62 in Science, 52 in English, 53 in Math, and
61 in P.E. He also took a CAT. He scored lower than 99% of the other
students and tested at the level of a student one month into second
grade. Appellant was retained in the sixth grade.
At this point, the records become somewhat unclear. The records
do not include any grades from the year he was supposed to repeat sixth
grade or from seventh and eighth grade. The records, however, show
that he attended ninth grade the year he would be in seventh grade (if he
repeated sixth grade). The records indicate that he was retained in the
ninth grade. The grades for both his years in ninth grade were numerical
Petetan Opinion On Rehearing — 47
grades split between two semesters. The grades were as follows:
9th 9th
English 50 50 41 50
Math 50 50 62; 72 50
Science 50 50 57 50
Social Studies 55 50 61 50
P.E. 50 60 72 56; 55
Health N/A N/A 53 N/A
During his second time in ninth grade, Appellant received a special
education exemption from the Texas Assessment of Academic Skills
(“TAAS test”). The records do not include TAAS test information from his
first time in ninth grade. Appellant then dropped out of school.
ii. School Officials’ Testimony–Conceptual Domain
Dorothy Stamps, Appellant’s first grade teacher, testified that
Appellant was capable of doing the school work and, if he would have
applied himself, he could have done the work. Morris Lee, an assistant
principal at Appellant’s elementary school, also testified. He was asked:
“[Appellant] chose not to apply himself, even as a young man. Is that
right?” Lee responded, “Not in appropriate directions.”
Eddie Fowler, a principal at Appellant’s middle school, testified that
Appellant was placed into a special education program called “the self-
Petetan Opinion On Rehearing — 48
management program.” Fowler said that this placement was “not
necessarily because [Appellant] was so far behind, but because he was
a discipline problem.” When asked “[s]o [Appellant] wasn’t in Special
Education because of any mental defect or because he was [intellectually
disabled], was he,” Fowler responded, “No.” Fowler agreed that, after
reviewing Appellant’s school records, Appellant was “pretty average.”
Fowler also agreed that, if Appellant applied himself, he could have been
successful.
iii. Dr. Craig’s Testimony—Conceptual Domain
Regarding Appellant’s strengths in the conceptual domain, Dr. Craig
testified:
When you just hear him talk, when he does talk—although he
tends to be somewhat quiet—I mean, he speaks in complete
sentences, and so he could, in that sense, quote, “pass for
normal.” He can write pretty good. I mean, he can write his
own address, including the zip code and so on. He had pretty
good self-direction. He could go around in the community, go
out alone, and he did often. In fact, he would tend to wander
away from any kind of group going on, and he at least
appears to listen when people are talking to him. You don’t
know whether or not he’s really paying attention, but he does
appear to listen.
Regarding his limitations in the conceptual domain, Dr. Craig testified:
Very limited conversational skills. It’s really hard to engage
in a conversation with him. He just won’t follow the
conversation. You can’t get a response to what you’re saying.
Petetan Opinion On Rehearing — 49
In terms of getting along in the world, it was routinely noted
that he was unable to read menus. I mean, he would have to
order things—if he went out to, you know, a fast food
restaurant or something, he would have to order by the
picture, just saying what he knew it was. He could not
calculate the correct change. And you really couldn’t depend
on him time-wise. He was irresponsible regarding time
commitments.
iv. Appellant’s Testimony—Conceptual Domain
Appellant testified about becoming a pen pal with Kimberly and
stated that they wrote three or four letters a week to each other.
Appellant testified that the letters were in his handwriting. Appellant
stated that he had help from different people when writing the letters.
When asked what he meant by that, Appellant responded: “Like spell and,
you know, I write down what I want to say, and then they will put it into
sentences and stuff for me.” Appellant also testified that he wrote letters
to Kimberly’s daughter, A.W.
Appellant agreed he had printed out the maps for the trip to Waco,
where the crime took place, and paid for everything on the trip.
Appellant was asked about documents found by law enforcement in his
Suburban. One of the documents, the “Cartel Boxing Promotions
Business Plan Prepared By Petetan,” had a biography section, which was
read aloud to the jury. It read:
Petetan Opinion On Rehearing — 50
Born in Port Arthur, Texas, Carnell Petetan, Jr. has his share
of ups-and-downs. The tough street of his hometown groomed
him into the dynamo he is today, and now, armed with a
wealth of resources, skills and abilities, he is set to launch the
long anticipated CARTEL BOXING PROMOTIONS.
Co-Founder of Tripple Gold Records, along with brother and
business partner, Herbert Mouton, Carnell Petetan has
emerged with a vision so ambitious, success is eminent.
The key feature and strength behind Cartel rests in the fact
that for eighteen years of his life, he survived in Texas
prisons; some of the deadliest in the nation. This is where he
honed his leadership abilities and educated himself.
Now this wise and intelligent young man is ready to take on
the world. Surrounded by a support team of experts, his
Cartel Boxing Promotions will quickly become an industry
great in the years to come.
You’ve seen the rest, now prepare for the best.
Carnell enjoys reading, video games, and brainstorming. The
author of over 800 songs, Carnell is also the respected and
rising rap star, “Don Cartel”. Look for the documentary,
“unshackled”, coming soon. With success looming over him,
Carnell promises to stay grounded and Always put God First.
Appellant denied he wrote it. He also denied writing a 40-page
autobiography that was found in the Suburban.
v. Appellant’s Mother’s Testimony—Conceptual
Domain
Ophelia Ortiz, Appellant’s mother, testified that Appellant had a hard
time reading and writing. When asked “[w]ould it surprise you to know
Petetan Opinion On Rehearing — 51
that he’s a self-admitted writer of over 800 musical songs,” Ophelia
laughed and responded, “That’s funny. No, he’s not.” Ophelia agreed
that it would be difficult for Appellant to write a simple letter to someone
and stated, “Somebody would have to help him.”
Ophelia said that although the family lived “right by the school”
when Appellant was younger, Appellant would forget where to go and
“would go another direction.” Someone would have to walk him.
Sometimes “I would say he was missing, because he was gone, like,
sometimes three days and I didn’t see him, so the police put a missing
person, and they would find him.” Appellant could not drive from Port
Arthur to Houston. When asked “[w]ould he have trouble with, what, the
signs or the roads or what,” Ophelia responded, “His remembering,
mentally.” Ophelia also stated that the only time when they sent
Appellant to the store alone, “he went and put the money on the counter
and walked out and forgot what I sent him in there to get.” Ophelia
further testified that Appellant could not make change.
vi. Appellant’s Sister’s Testimony—Conceptual Domain
Sabrina Mouton, Appellant’s sister, testified that Appellant did not
walk until he was three years old and could not talk, in a manner they
could understand, until he was four or five. Up until that time, “if my
Petetan Opinion On Rehearing — 52
mother asked him something, he wouldn’t answer, or if she tried to get
him to talk, we didn’t understand what he was saying, so he just don’t
say nothing.” When asked about Appellant learning something new,
Sabrina said: “He gets frustrated or just like he loses interest in it or he
just—like his mind just go blank, like he looking off like he don’t care to
hear it, you know, when he don’t understand something.”
Sabrina said that Appellant wrote her letters from prison, but his
letters were difficult to understand unless he had someone help him.
When asked why she would think someone wrote a letter for him, she
said that Appellant’s writing “looked like something a preschooler or
kindergartner” would write; but if someone wrote the letter for him, then
the letter would be in good handwriting. Sabrina said his writing had
improved “a little bit.” The prosecutor asked Sabrina about one of his
letters to Kimberly. “I’m going to show you what I’ve admitted into
evidence as State’s Exhibit 126, and I’m going to do the Carnell Petetan
letter grab bag. Go ahead and pick a letter, any letter.” Sabrina drew out
of the bag a letter postmarked January 24, 2011. The letter read, in
part:
I Hope and Pray when this letter reaches you it finds you in
the best of health as well as spirits in God’s Care and
Protection as well as your love ones. Kim I want you to know
Petetan Opinion On Rehearing — 53
I was Glad to hear about your School progress and them
welcoming you to Join they organization.
Sabrina acknowledged that the letter was in Appellant’s handwriting. She
further stated that “those letters look clearer than my letters, and Carnell
writes up and down, up and down, and out of the margin and not clear at
all.” When confronted with the fact that the letter to Kimberly that the
prosecutor had Sabrina read did not conform to her “up and down”
description, Sabrina stated, “His looks neater on hers than it does on
ours.”
vii. Appellant’s Uncle’s Testimony—Conceptual Domain
Thomas Kemper, Appellant’s uncle, testified that when Appellant
was younger, he was placed in special education because “he couldn’t
comprehend like any other kid.”
viii. Appellant’s Letters—Conceptual Domain
Appellant’s letters to his pen pal and then wife, Kimberly, were
published to the jury and portions were read out loud by the prosecutor.
Portions of some of the letters in the State’s exhibit are relevant to the
conceptual domain. In one, Appellant stated: “Kim I Just wanna Show
you Just in Houston Alone 20,000 CDS Pressed up for $10.00 a pop =
$200,000. See im Not even haveing to leave houston to get rid of 20,000
Petetan Opinion On Rehearing — 54
records[.] . . . Say i Put 3 records out a year, and make 2000,000 x 3
thats $600,000[.]” In another, he suggested the raffling of a watch,
telling her that if she sold 100 tickets at $25.00, “that’s $2,500.” In
another, Appellant stated: “I’ve wrote over 75 Albums Books and
universal Records[.]” In another letter, Appellant included a response
that he received from a recording company, Amerecord, stating “that of
the numerous poems and songs sent to Amerecord over the past few
months, a very select few have been chosen for a pre-production
recording session.”
ix. Analysis—Conceptual Domain
At trial, there was conflicting evidence regarding Appellant’s deficits
in the conceptual domain. The jury could have inferred from Appellant’s
academic record that he was impaired in the conceptual domain. Of
Appellant’s 57 numerical grades included in the academic records, 39 of
those grades were failing (or, below 70). Of the 20 grades Appellant
received based on whether he was above average, average, or below
average, he was “below average” for 6. Of the 19 grades he received
based on satisfactory, needs improvement, and unsatisfactory, he
received needs improvement for eight and unsatisfactory for two.
Further, he performed poorly on standardized tests and was placed in
Petetan Opinion On Rehearing — 55
special education at some point.
But there was also evidence that cut against a jury’s inference of
deficits in the conceptual domain. Appellant received 18 passing (or, 70
and above) numerical grades, 14 “averages,” 8 “satisfactories,” and 1
“satisfactory plus.” The academic records also show that Appellant often
had absences in the double digits. And three school officials testified that
Appellant failed to appropriately apply himself in school. One of those
officials also testified that Appellant was not in special education because
of a low IQ but instead because of his behavior problems.
Looking at the conceptual domain on a more discrete level, there
was conflicting evidence on Appellant’s ability in math reasoning. There
was evidence from which the jury could have inferred that Appellant was
impaired in it. This evidence included his grades for “Arithmetic” in first
through third grade and for “math” in both sixth and ninth grades, along
with his scores on the CAT, TABS, and TEAMS tests. This evidence also
included testimony from Sabrina that Appellant “never knew how to count
[money]” and testimony from both Dr. Craig and Ophelia that Appellant
could not calculate change. But on the other hand, Appellant received
passing grades for math-related subjects in kindergarten, fourth, and fifth
grades. Moreover, Appellant testified that he paid for the trip to Waco
Petetan Opinion On Rehearing — 56
and some of Appellant’s letters contained correct calculations.
There was also conflicting evidence on Appellant’s writing ability.
There was evidence from which the jury could have inferred that
Appellant’s writing ability was impaired. This evidence included
Appellant’s scores on the TABS, along with his grades for “Spelling” in
third through fifth grade and his grades for “English” in both sixth and
ninth grade. It also included Ophelia’s testimony that Appellant had a
hard time writing and would need help, Sabrina’s testimony that
Appellant’s letters were difficult to understand unless he had help, and
Appellant’s testimony that he received help from other inmates when
writing letters.
Conversely, Appellant received passing grades in “handwriting” in
third through fifth grade. Dr. Craig, who evaluated Appellant prior to
trial, testified that Appellant can write pretty well. And the jury itself was
able to read several letters from Appellant to Kimberly—letters that
Appellant admitted were in his own handwriting. Appellant had also
written songs and poems well enough to be chosen for “a pre-production
recording session.”
Further, there was conflicting evidence on Appellant’s reading
ability. Evidence from which the jury could have inferred that Appellant’s
Petetan Opinion On Rehearing — 57
reading ability was impaired included: Appellant’s grades in first, second,
third, and sixth grade; his scores on the TABS, CAT, and TEAMS tests; Dr.
Craig’s testimony that Appellant was unable to read menus; and Ophelia’s
testimony that Appellant had a hard time reading. But on the other hand,
Appellant received passing grades for “Reading” in both fourth and fifth
grade and passed the reading section on both of his TEAMS tests.
There was also conflicting evidence on Appellant’s language ability.
There was evidence from which the jury could have inferred that
Appellant’s language ability was impaired. This evidence included his
grades in third grade and fourth grade; his scores on the CATs; and
Sabrina’s testimony that Appellant was delayed in learning how to talk
and that they were not able to understand what he was saying until he
was about four or five years old. On the other hand, in kindergarten
through second grade, he was “average” in “Other Language Arts” and he
received a passing grade in “Language” in fifth grade. Further, Dr. Craig
testified that Appellant speaks in complete sentences. And during
Appellant’s own testimony, the jury was able to hear for itself Appellant’s
ability to speak.
Lastly, there was conflicting evidence that Appellant’s memory was
impaired. There was evidence from which the jury could have inferred
Petetan Opinion On Rehearing — 58
that Appellant’s memory was impaired. This evidence included Ophelia’s
testimony that Appellant would often get lost, had trouble driving because
of his memory, and forgot what he was supposed to buy when he got to
the store. But during Appellant’s testimony at trial, the jury was able to
gauge for itself Appellant’s ability to consistently remember various
historical details on both direct examination and cross examination.
For each piece of evidence supporting a finding that Appellant was
impaired in the conceptual domain, there was evidence that cut against
it. Therefore, the issue came down to resolving those conflicts and
inconsistencies based on credibility and weight determinations. That’s the
jury’s duty, and we defer to the jury’s determinations.
c. Social Domain
The second domain—social—“involves awareness of others’
thoughts, feelings, and experiences; empathy; interpersonal
communication skills; friendship abilities; and social judgment, among
others.” This was Appellant’s strongest domain. The informants thought
he had good social skills. He “could get along with people and he could
kind of blend in.”
i. Dr. Craig’s testimony—Social Domain
Dr. Craig’s conclusions were as follows:
Petetan Opinion On Rehearing — 59
A. Areas of strength for him was that he has friends. He
had good relations with his family. He was actually able
to interpret others’ emotions. He could tell when
somebody was upset, and he even showed some ability
with leisure skills. He likes to listen to music.
Q. By “skills --”
A. Those are strengths for him.
Q. Strengths. Okay. And his limitations?
A. He doesn’t understand jokes. I mean, it’s too complex.
Q. How do you determine that? If you’re talking about a
self-evaluation, for example, do you tell him a joke and
see if he gets it or do you ask him? How do you
determine that?
A. You know, I asked him, you know, “Do people tell you
things that make you laugh,” and he said, “No.”
Q. And then other people that are just general informants,
you can say, “Does he understand jokes?”
A. Yeah. I mean, “Can you joke around with him, and does
he get the jokes?”
Q. Okay.
A. And they repeatedly noted that he was easily led by
other people, that the basic social skills of being polite
and offering to help people, he simply doesn’t do it. He
doesn’t say thank you. He doesn’t give gifts. He doesn’t
offer assistance to people. And this was a uniform
finding too. He didn’t engage in games. The only games
we ever heard that he played were with a cousin who
played Hide and Seek with him, and this was when he
was older, too. But he simply didn’t understand any kind
Petetan Opinion On Rehearing — 60
of simple kind of games that, you know, kids play. He
showed no interest in most—what a lot of people use for
leisure, which is TV. I mean, he has consistently over
the years never shown the least bit of interest in TV.
ii. Analysis—Social Domain
There was conflicting evidence regarding Appellant’s deficits in the
social domain. The jury could have inferred from Appellant’s relationship
with Kimberly that Appellant was not impaired in the social domain.
While in prison, Appellant was not only able to become pen pals with
Kimberly, a person Appellant did not know before she was encouraged by
Appellant’s brother to contact him, but to develop their friendship into a
serious romantic relationship resulting in marriage—a clear indication of
his “friendship abilities.” Further, Appellant remained married to Kimberly
from 2010 through the spring of 2012, when Appellant was released from
prison. And although Kimberly considered divorcing Appellant shortly
after he moved in with her, the two reconciled. After a falling out a few
months later, the two again reconciled. Thus, the jury could have
reasonably concluded that Appellant possessed at least some meaningful
“awareness of others’ thoughts, feelings, and experiences” because
Appellant was able to successfully reconcile with his wife on more than
one occasion.
Petetan Opinion On Rehearing — 61
By his own words, Appellant was also helpful to other prisoners,
encouraging them to be polite. He related in his letters that he was a
mentor to other inmates—“nice as can be” young males who did not
belong behind bars. He told them how to act when they get out: “help
little ole ladies across the street, and lend your neighbor a cup of sugar
in advance.” His letters are replete with offers to help Kimberly and her
daughter and appreciation for their own letters and love.
Finally, the jury could credit Appellant’s own statements made in his
letters to Kimberly, which, as is detailed later in this opinion, indicated a
history of playing baseball, bowling, boxing, working out with weights,
and watching sports on television. As a result, the jurors did not have to
rely on lay stereotypes about the intellectually disabled to reject Dr.
Craig’s testimony, or that of Appellant’s own family. They could reject his
testimony as unreliable because it was based on interviews with vested
witnesses and inconsistent with much of the record evidence.
d. Practical Domain
The third domain—practical—“involves learning and self-
management across life settings, including personal care, job
responsibilities, money management, recreation, self-management of
Petetan Opinion On Rehearing — 62
behavior, and school and work task organization, among others.”133
i. Dr. Craig’s Testimony —Practical Domain
Dr. Craig, based on his assessment, concluded that Appellant “had
a lack of practical skills to get through the day.” He stated that all four
of his “informants”—Appellant himself and Appellant’s mom, sister, and
uncle—represented that “his practical skills, doing things on a day-to-day
basis like taking care of himself, feeding, cooking something to eat, he
had simply not developed those skills.” Dr. Craig gave the following
specifics on the practical domain:
Q. What about his skills and limitations on the practical
portion of the test?
A. He was able to walk to familiar locations. Again, in his
neighborhood he could get along just fine. I mean, he
knew how to find places. He couldn’t necessarily tell you
street names, but he knew where things were
geographically. He could make simple meals for himself,
and this was kind of like a little idiosyncratic thing about
him. He never learned to use a fork. I mean, he would
sometimes use a spoon, but every bit of food that you
gave him, he would wrap up in bread. That’s how he ate.
I mean, he made a sandwich out of everything. So in
terms of the typical kinds of table skills, eating skills, he
simply, either by choice or just lack of ability, he didn’t
do. It’s fairly common for people, even with mild
[intellectual disability], to have difficulties cutting their
food into bite-size portions. Somebody may have to do
133
DSM–5 at 37.
Petetan Opinion On Rehearing — 63
that for them. I’m not sure if that was the case with
him, because he didn’t use a knife. He just used a
spoon. He was able to take medications. He was able to
swallow them. He didn’t resist that. And he could dress
himself. He didn’t necessarily dress himself well, but he
could do the physical act.
Q. And his limitations?
A. Even though he could get around the community, he
was unable to use a map. He relied on the ability
to—either people tell him familiar locations or whatever,
and he got lost fairly easily. He did not do
housekeeping. He was described as a terrible
housekeeper and never made his own bed, was unable
to learn how to operate most common appliances, broke
microwaves because he didn’t know how to use them,
put the wrong things in them, had no conception about
how to use a washer or a dryer. And even in the area of
first aid, I mean, when asked what he would do if he cut
his finger, he said he would sop it up. “Sop the blood
up,” that was his response. So he didn’t—he just wasn’t
worried that way where he would know to put a
Band-Aid and some Bactine or something on it.
Dr. Craig said that, for clinical purposes of a finding of significant
limitations in adaptive functioning, the reason that the adaptive skills
were not learned does not matter. Practical skills “don’t necessarily even
go along with intelligence. I mean, in some ways the adaptive skills are
very sensitive to what kind of training the person has received.” Practical
skills can be limited “because their family was overprotective and did
everything for them and weren’t good enough trainers or they weren’t
Petetan Opinion On Rehearing — 64
patient enough to allow them to learn how to do it on their own, and so
they just never learned how to do it and they just came to expect their
family to take care of it.” Speaking specifically about Appellant, Dr. Craig
said:
What caused all this, you know, is hard to say, but one likely
explanation is that there were many missed opportunities to
learn these skills. He has spent the majority of his life
incarcerated, and he simply hasn’t had the opportunity to be
around—I mean to learn those kind of skills on a consistent
basis. And I think in his home environment, even when he
was living there, the parental supervision was not such that he
was expected to do it or, you know, the training was given to
him, so he simply didn’t learn those skills. And being locked
up most of his life, he has adjusted to prison routine, I guess.
But in terms of adaptive skills, he is very limited.
ii. Appellant’s Mother’s Testimony —Practical Domain
Appellant’s mother, Ophelia, testified that Appellant was a bed-
wetter and she did not “know if he has stopped yet. All his life he been
peeing on himself.” She testified that, as a child, Appellant could not tie
his shoes, dress himself, take a bath, brush his teeth, or follow directions.
He did not have any interests as a child; he did not play with toys, watch
television, or play video games. He would “just sit there” or walk out and
leave, and family members would not know where he went.
When Appellant left prison, he could not keep his apartment clean,
so his sister would come over and clean it. Appellant did not wash
Petetan Opinion On Rehearing — 65
dishes, did not put food away, and left clothes strewn across the floor.
He could not use a washing machine or a dryer. He still did not watch
television, and he could not operate a cell phone. Appellant also could
not be trusted with money because he could not make change. He could
not drive.
When cross-examined about Appellant’s alleged various “business
plans,” Ophelia testified she did not pay them any mind because “I know
he [doesn’t] know what he’s talking about.” Ophelia acknowledged that
Appellant worked with his uncle cutting yards when he was on parole,
that he had tried baseball but did not have the patience for it, and that
she had bought him the Suburban.
iii. Appellant’s Sister’s Testimony —Practical Domain
Appellant’s sister, Sabrina, testified that Appellant wet himself even
when he was older. She also said that “Carnell never played sports or
nothing with us. He would always just [wander] around.” Appellant had
no special interests—“Not even television. We all would watch television.
He wouldn’t watch it. Games, he didn’t want to play any games, nothing.”
Appellant could not ride a bicycle; “He would try, but he couldn’t.”
Sabrina testified that, when Appellant was released from prison,
she helped set up and furnish an apartment for him. She tried to teach
Petetan Opinion On Rehearing — 66
him how to use a cell phone and microwave, but he could not figure
either out. Sabrina said she would go over to the apartment twice a day
to make sure Appellant had enough to eat and to clean up because
Appellant would not clean up after himself. There would be “[f]ood laying
around, candles lit for no reason. Very tacky, nasty towels, his
underwear and stuff.” Appellant did not know how to count money; he
always asked his siblings “how much something is, how much this is.”
Sabrina said that Appellant had unrealistic expectations about what he
could do, “Like he would tell me he want to be rich or he’s going to do
music or he’s going to have a business, and I’m, like, ‘Carnell, it takes
money, and you’ve got to get a job’ or ‘Carnell, you left here with a
school ID. You’ve got to get a driver’s license to do anything,’ you know.”
Sabrina agreed that Appellant showed some interest in
extracurricular activities as he got older, and that he “likes his music. He
does music . . . he records music.” Sabrina also acknowledged that
Appellant had been in prison since the early 1990s and had never lived
on his own before he was released from prison. And she admitted that
Appellant had tried to better himself in prison and that he was able to
formulate business plans “[f]rom books that he got out of the library.”
iv. Appellant’s Uncle’s Testimony —Practical Domain
Petetan Opinion On Rehearing — 67
Thomas Kemper, Appellant’s uncle, testified that Appellant was
“really slow” and “had problems making decisions on his own.” According
to Thomas, “Little kids would make him do things that they didn’t want
to do, that they wouldn’t do, and they would use Carnell, because he was
real slow.” Thomas also said that Appellant would crawl up under a train
even though other children would beg him not to. When he was twelve
years old, Appellant had to be told not to open the door when someone
knocked without first asking who it is. “He wouldn’t comb his hair . . . .
[H]e wouldn’t take a bath, [and] he wouldn’t put on a belt.”
When Appellant was released from prison, he wanted to be a
businessman, but Thomas testified that Appellant “couldn’t understand
how to go from [Point] A to Point Z.” Thomas said that Appellant had
“great big dreams,” but
[b]eing locked up all these years and knowing the first thing
that you start a business and, you know, you say something
simple to him like, “Carnell, first you need to get a DBA.”
“What is a DBA?” You know, “Carnell, you need to open up
your checking account.” “A checking account with what and
how?” Everything that you say, you had to explain it to him,
because he didn’t—and even if you explained it to him, he still
did not understand.
Thomas said that he never saw Appellant deal with money and that
Kimberly handled the social security income Appellant received.
Petetan Opinion On Rehearing — 68
v. The Gauthiers—Practical Domain
Appellant came to live with the Gauthier family when he was
thirteen or fourteen years old. Cathy Gauthier was Appellant’s aunt, and
she had two children, Caston Gauthier and Kimberly Jackson. Cathy
testified that Appellant was a little bit slower than her own kids, but she
never had to discipline him. Appellant was just a little different, “real
quiet all the time.” Appellant “always had big dreams” of being a
bondsman or a rapper. Cathy explained to Appellant that he could not be
a bondsman because he had a felony conviction, but Appellant did not
seem to understand that.
Caston likewise described Appellant as being mentally slow. While
visiting Appellant in prison, Caston knew he could not talk to him about
anything dealing with his profession “because he probably wouldn’t have
caught on to anything that I was talking about.”
Kimberly Jackson was fourteen years old when Appellant came to
live with them. She described Appellant as “a little different” and “not on
the same level, mind-wise,” being “slower.” Appellant was her age, but
she said that he could not do the same things she could. Her family had
to “stay on” Appellant about his hygiene.
vi. Adrian Miller—Practical Domain
Petetan Opinion On Rehearing — 69
Miller testified that Appellant used his phone on the trip to Waco,
but he wasn’t good at it.
Q. Carnell couldn’t use his phone?
A. Not to get it to just go to the phone and do the things
that he probably would have wanted to do. The only
thing, from my understanding, how he knew how to do
was maybe text a little bit, use the little thing to record
things or whatever, but once Kerrie deleted—turned the
phone off, he didn’t know how to use it. So when we got
to the Bryan police station and they put each one of us
in the interrogation rooms, he had to send the phone to
Kerrie because he couldn’t even turn it back on.
vii. Appellant’s Letters—Practical Domain
Several letters in State’s Exhibit 126 are relevant to the practical
domain. Regarding nutrition, he encouraged Kimberly to take Omega3
fish oil as well as vitamins. He said they would eat healthy when he got
out and told her he was only eating “fish and chicken.” He also talked
about being on a salad diet. When he didn’t like what they were serving
on his unit—pork meatballs which were “never fixed right”—he made tuna
and rice.
Some letters indicate interests. Appellant spoke of getting boxing
gloves and weights for Christmas—“his first Christmas present.” Though
he’d lost interest in baseball, “my love for boxing never died.” He asked
Kimberly to “go online and look up Local Boxing Gold Gloves Tournaments
Petetan Opinion On Rehearing — 70
Local Reginal & National . . . down load all the info form me.” Several
times he talked about his schedule, and it always included lifting weights.
His letters indicated he watched TV. “Every Friday on ESPN2 they
air Friday night fights.” He also referred to watching a documentary on
the Tyson/Seldon fight and an NFL game. He told Kimberly that he
wanted them to go to Vegas to watch “a big fight” as their first vacation
once he got out of prison. He also asked about boxing gyms in Waco.
Appellant referenced a radio program he listened to called “Damage
Control” and that “they play a lot of underground music it comes on at
11:00 til 2:00.” He complained about his station “97.9 the Box” not
playing Sweet James Jones—the solo album by Pimp C. He told Kimberly
that he took part in a show in prison—one that included “like 16 Different
Acts”—and that he had worked on his music for it for three months. He
said there was “all kinds of talent inside this Place.”
Appellant knew that his social security check was around $3,000;
in a letter to Kimberly, Appellant told her the steps to take to get her own
social security check for a “mental disability.” He told her to “go to the
Social Security office in Waco, get a form and fill it out” under mental
disability. He told her what to say to the case worker and doctor to
become eligible. “You will get 1200” a month. In another letter, he
Petetan Opinion On Rehearing — 71
talked about how to make money grow, telling her it made more sense
to invest a large sum of money rather than spend a good hunk on it on
an expensive car, and how “you can’t loose with real estate.” He knew
the approximate cost of a used Bentley, $175,000; and the approximate
cost to rent a car, $25 or $28 a day.
He also wrote about: imposing a sliding scale membership to a
facility he wanted to start to keep kids off the streets—a fee of three
dollars a month for low income kids and $25 for the others; giving
Kimberly $250 to help her pay for her education; and how, after his
parents divorced, his Dad gave his Mom $500 a month that he never saw.
These letters contained numerous excerpts and references to books
Appellant read—many of them self-help books. He told Kimberly that he
reads “books in my cell and these books have become my best friends.”
He shared quotes with Kim, one saying, “Anything that you’re not grateful
for is Baggage—Anything you are thankful for is fuel.” He asked if she
agreed with the quote and asked her to answer the question: “what
Baggage do you need to get rid of and what steps will you take to rid
yourself of this Baggage?”
In one letter, he advised Kimberly to not let A.W. play outside
unsupervised. Another expressed an intent to join the “Three Five Seven
Petetan Opinion On Rehearing — 72
Graveyard Crip set.” Still, others set out various grandiose (and not so
grandiose) money making ideas. All the letters contained misspellings,
and punctuation errors. Appellant comes across as sometimes sweet,
sometimes controlling.
viii. Analysis—Practical Domain
At trial, there was conflicting evidence regarding Appellant’s deficits
in the practical domain. The jury could have inferred from Appellant’s
family member witnesses and Dr. Craig’s conclusions that he was
impaired in the practical domain. Appellant received a score of 1 (out of
3) on almost every home living task, including folding clean clothes,
taking out the trash, clearing the table after a meal, making the bed,
making minor repairs, putting things in their proper place, sweeping the
floor, cleaning his room, cleaning the bathroom, mixing and cooking fairly
complex foods, and dusting the furniture. And there is scant evidence
that he did any of these day-to-day household chores.
But Dr. Craig was not the fact-finder in this case. The jury could
have doubted the efficacy of the ABAS-II given Dr. Craig’s circumscribed
pool of “informants.” Dr. Craig testified that he assumes the informants
give him the correct information. But the family members responding to
the ABAS-II were aware of the implications of their responses. Although
Petetan Opinion On Rehearing — 73
Dr. Craig was not eager to admit it, all of the family members had an
obvious vested interest in the outcome of their interviews with Dr. Craig:
saving Appellant from a possible death penalty.134 “Indeed, individuals
who have a close bond with the defendant/appellant have an identifiable,
external incentive, to create the impression that the individual is impaired
enough to meet the diagnostic criteria for [intellectual disability].”135
Looking at the practical domain on a more discrete level, there was
conflicting evidence on Appellant’s ability to use money. Appellant’s mom
and sister testified that he could not be trusted with it because he could
not make change, couldn’t count it, and couldn’t figure out how much
things cost. His uncle testified that Appellant was not the spouse who
dealt with money; Kimberly was. This was evidence from which the jury
could have inferred that Appellant was impaired in a very basic and
critical practical skill—the use of money.
But jurors had Appellant’s own statements and the testimony of
others indicating otherwise. Appellant repeatedly testified that he went
134
See Bridget M. Doane, Karen L. Salekin, Susceptibility of Current Adaptive Behavior
Measures to Feigned Deficits, 33 LAW & HUM. BEHAV. 329, 331 (2009) (“Perhaps the most
important caveat to keep in mind when using any measure of adaptive behavior is that the
information obtained is limited by many factors including, but not limited to, the knowledge
base of the rater, the extent of contact between the rater and the person of interest in one or
more settings, and the candor of the rater.”).
135
Id.
Petetan Opinion On Rehearing — 74
to Waco to get a $300 deposit from his cousin to give to his wife. He
acknowledged he paid for the gas, room, food, beer, and cigarettes. He
was aware of the approximate cost or value of things: a social security
check, a used luxury car, a rental car, and alimony. He demonstrated an
awareness of the concept of the sliding scale.
And Appellant’s representations in this regard were corroborated by
others. Adrian Miller testified that when they were driving to Waco, he
pumped the gas and Appellant paid $70 cash for it from his wallet. Miller
also testified that, when it came to renting the room, Appellant gave a
man money to rent it for him. He also gave a woman an appropriate
amount for a ride. After the murder, Appellant gave Miller $60 to fill up
the Suburban.
Inmate Azikin Daniels testified that Appellant told him about owning
“Cartel Records,” showed him how to file a DBA form, and explained to
Daniels that an artist receives only a percentage of money from each
record sale. All of this testimony about Appellant’s use and
understanding of money could have provided a basis for a rational jury
to discount Appellant’s family members’ assertions that Appellant could
not handle money.
There also was conflicting evidence on whether another of
Petetan Opinion On Rehearing — 75
Appellant’s alleged deficits—the inability to use a modern cell phone (“a
pervasive and insistent part of daily life”)—was real.136 Sabrina indicated
that Appellant could not use a cell phone and that he could not learn to
use one. But the jury could have credited evidence showing that
Appellant did in fact know how to use a cell phone. Appellant testified
that he and Kimberly both had cell phones. He testified about several
phone calls he made or received. He said that when he went to
Kimberly’s apartment, “Kim opened the door. She backed up. She said,
‘Why you ain’t texted or called me.’” In his exculpatory account of
September 23rd, Appellant testified that he had a cell phone and was
going to use it to call “9-1-1” but stopped when Miller pointed the gun at
him and took his phone away. Though the jury did not believe
Appellant’s testimony, they were free to believe he had a cell phone.
Kimberly’s adult daughter, Kristin Warmack, testified that her mom and
Appellant had cell phones that were in Appellant’s name, and she was
able to communicate with her mom until Appellant cut off service.
Adrian Miller testified that Appellant used his cell phone in
compromising situations before the Waco trip, which Miller theorized was
136
Riley v. California, 573 U.S. 373, 385 (2014) (modern cell phones “are now such a
pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude
they were an important feature of human anatomy”).
Petetan Opinion On Rehearing — 76
an effort to create evidence. “He even passed by the neighborhood one
day holding his cell phone out the window . . . He was driving down the
street like he was taunting me. He was already plotting it.” “I think one
day he even called Kimberly and he told me, ‘I’m going to give you this
piece of dope. I want you to cuss this lady out.’ I cussed her out, but
then he grabbed the phone, and he would do, like, ‘Oh, man, stop doing
that. Man, this is my wife,’ this and that, but to try to make me—try to
make it seem like I’m doing it. He was the one doing it.” At one point,
Appellant dangled “a nickel piece of crack rock” to get Miller to repeat
things while recording him.
Similarly, there was conflicting evidence on whether Appellant’s
family members lacked candor in attesting to Appellant having no interest
in recreation. Ophelia and Sabrina both testified that Appellant had no
special interests—he did not play games or watch TV. But the jury could
credit Appellant’s own statements made in his letters to Kimberly, which
indicated a history of playing baseball, bowling, boxing, and working out
with weights. And the jury had before it letters indicating he watched
sports on television. Appellant also expressed a past and current interest
in music, specifically, rapping, and listening to the radio.
Nothing in the record “rules out” Appellant having significant
Petetan Opinion On Rehearing — 77
limitations in the realm of practical skills. But Appellant’s evidence of
adaptive deficits was subject to a credibility assessment. Under a legal
sufficiency analysis, a rational jury could have rejected Appellant’s claims
that he possessed adaptive deficits suggesting intellectual disability in
light of all the evidence before it.
e. Conclusion — Legal Sufficiency
Dr. Craig himself acknowledged many of the shortcomings in his
testing: the ABAS–II is not normed for retrospective assessments; the
pool of “informants” used to rate Appellant’s adaptive behavior was
identified by the defense; every single person in that pool was related to
Appellant; Dr. Craig conducted the interview only once per informant; and
the interviews (except for Appellant’s) were conducted by telephone
instead of in person. Appellant’s evidence of adaptive deficits was subject
to a credibility assessment and was evidence that a jury could—in light
of all the evidence before it—reasonably reject.
The evidence is legally sufficient to support the jury’s adverse
finding on the intellectual disability issue. As discussed above, the jury
could simply reject the testimony that Appellant had adaptive
deficits—one of the three elements of an intellectual-disability diagnostic
definition. “The finding of the factfinder rejecting a defendant’s
Petetan Opinion On Rehearing — 78
affirmative defense should be overturned for lack of legal sufficiency only
if the appealing party establishes that the evidence conclusively proves
his affirmative defense, and “no reasonable factfinder was free to think
otherwise.”137 Given that Appellant had one IQ score that was over 70,
and, as set out above, there were record-based reasons to discount the
results of the ABAS–II, we cannot say that the evidence supporting the
negative finding was legally insufficient.
IV. The Evidence Was Factually Insufficient To Support The
Jury’s Adverse Finding On Intellectual Disability.
A. Standard of Review
Holding that the evidence is legally sufficient is the starting point for
a factual sufficiency review. While evidence may be legally sufficient to
support a jury’s determination, it may nevertheless be factually
insufficient to reject an affirmative defense. When examining whether an
appellant established his factual-sufficiency claim, the appellate court
views the entirety of the evidence in a neutral light, rather than the light
most favorable to the verdict.138 But the appellate court may not usurp
the function of the jury by substituting its judgment in place of the jury’s
137
Butcher, 454 S.W.3d at 20.
138
Matlock, 392 S.W.3d at 671; Neal, 256 S.W.3d at 275.
Petetan Opinion On Rehearing — 79
assessment of the weight and credibility of the witnesses’ testimony.139
An appellate court may sustain a factual sufficiency challenge on appeal
only if, after setting out the relevant evidence and explaining precisely
how the contrary evidence greatly outweighs the evidence supporting the
verdict, the court clearly states why the verdict is so much against the
great weight of the evidence as to be manifestly unjust,
conscience-shocking, or clearly biased.140 If an appellate court conducting
a factual-sufficiency review finds that the evidence supporting the
affirmative defense so greatly outweighs the State’s contrary evidence
that the verdict is manifestly unjust, then the appellate court may reverse
the trial court’s judgment and remand the case for a new trial.141 The
remedy in both civil and criminal cases for an appellate reversal based
upon a factual-sufficiency claim that the jury’s verdict is against the great
weight of the evidence is a new trial, not an acquittal.142
As discussed above, the Supreme Court has set out certain
constitutional minimums in any assessment of intellectual disability.
139
Matlock, 392 S.W.3d at 671.
140
Id.
141
Id. at 672.
142
Id.
Petetan Opinion On Rehearing — 80
First, the analysis must be informed by the current medical diagnostic
framework for assessing intellectual disability.143 Specifically, courts
cannot focus upon one aspect of diagnostic criteria when clinicians would
consider other aspects to reach an overall conclusion regarding
intellectual ability.144 In both Hall and Moore I, the Supreme Court
rejected the use of IQ scores to foreclose inquiry into adaptive deficits
because it created too great a risk that someone with an intellectual
disability would be executed.145
Second, courts may not place undue emphasis upon adaptive
strengths when rejecting an intellectual disability claim.146 In Moore I, the
Supreme Court overturned this Court’s reliance upon lay evidence of
adaptive strengths to overcome the clinical evidence of adaptive
deficits.147 In Moore II, the Supreme Court summarily reversed this
143
See Hall, 572 U.S. at 721; Moore I, 137 S. Ct. at 1048 (explaining that it clarified in
Hall that a court’s intellectual-disability determination “must be informed by the medical
community’s diagnostic framework” and stating that it relied on the most recent versions of the
leading diagnostic manuals).
144
See Hall, 572 U.S. at 723 (Florida’s IQ test rule takes an IQ score as final and
conclusive evidence of a defendant’s intellectual capacity when experts in the field would
consider other evidence; therefore, defendants must be able to present additional evidence of
intellectual disability, including testimony regarding adaptive deficits).
145
Id. at 704; Moore I, 137 S. Ct. at 1051.
146
See Moore I, 137 S. Ct. at 1050.
147
Id. at 1051–52.
Petetan Opinion On Rehearing — 81
Court’s reliance upon evidence of adaptive strengths when that evidence
was used to undermine the credibility of a clinician’s diagnosis.148
Most importantly, the Supreme Court has been willing to overturn
this Court’s rejection of intellectual disability even when that rejection
was based upon the rational resolution of factual conflicts by a factfinder.
In Moore II, the Supreme Court went beyond making a legal ruling and
corrected this Court’s “factual findings.”149 It did so over a dissent that
criticized the Court for usurping this Court’s role as factfinder on a writ of
habeas corpus.150
In this case, viewing the evidence in a neutral light, the rational
resolution of evidentiary conflicts surrounding the adaptive deficits
testimony fails to fully account for the great weight and preponderance
of diagnostic evidence establishing subaverage intelligence. Though the
jury could rationally reject evidence showing adaptive deficits in isolation,
failing to consider that evidence in conjunction with the evidence of
148
Moore II, 139 S. Ct. at 670.
149
See id. at 670–73 (contrasting conclusions of “the trial court” with the view of
“the court of appeals”).
150
Id. at 673 n.1 (Roberts, J., dissenting).
Petetan Opinion On Rehearing — 82
subaverage intelligence runs afoul of Hall.151 Under a proper diagnostic
framework, intellectual disability is determined by considering all three
diagnostic criteria together rather than each one in isolation.152 Allowing
the rejection of one diagnostic criterium when clinicians would consider
criteria together creates an unconstitutional risk that an individual with
an intellectual disability will be executed.
Second, emphasizing Appellant’s adaptive strengths to undermine
reliance upon an expert diagnosis repeats the problem identified by the
Supreme Court in Moore I and Moore II. Though clinicians may rely upon
evidence of adaptive strengths when making an intellectual disability
diagnosis,153 allowing the jury to reject such a diagnosis by
overemphasizing that evidence places the focus upon adaptive strengths
151
Hall, 572 U.S. at 727 (“In the context of a formal assessment, the existence of
concurrent deficits in intellectual and adaptive functioning has long been the defining
characteristic of intellectual disability.”) (internal quotation omitted).
152
See id. at 723 (“It is not sound to view a single factor as dispositive of a conjunctive
and interrelated assessment.”); Atkins, 536 U.S. at 318 (“[C]linical definitions of [intellectual
disability] require not only subaverage intellectual functioning, but also significant limitations
in adaptive skills such as communication, self-care, and self-direction that became manifest
before age 18.”).
153
Moore I, 137 S. Ct. at 1050 n.8 (“The dissent suggests that disagreement exists
about the precise role of adaptive strengths in the adaptive-functioning inquiry. But even if
clinicians would consider adaptive strengths alongside adaptive weaknesses within the same
adaptive-skill domain, neither Texas nor the dissent identifies any clinical authority permitting
the arbitrary offsetting of deficits against unconnected strengths in which the CCA engaged.”).
Petetan Opinion On Rehearing — 83
rather than adaptive deficits.154 Further, it encourages the jury to rely
upon lay stereotypes regarding intellectual disabilities to reject a clinical
diagnosis.155
Expert after expert diagnosed Appellant with mild intellectual
disability: Dr. Harold Scott (“mild [intellectually disability] versus
borderline intellectual functioning”); Dr. Coxe (“mildly [intellectually
disabled]”; Dr. Correia (“mild intellectual disability”); Dr. Mayfield,
(“global delays across all domains”); Dr. Craig (adaptive assessment
scores fell within the range for moderate intellectual disability).
Appellant consistently scored within the range for intellectual
disability on intelligence testing administered across decades. Mild
intellectual disability is typically used to describe people with an IQ level
of 50–55 to approximately 70.156 Evidence of six full-scale IQ scores
since 1991 were admitted. All but one on its face put Appellant within the
clinically-accepted range of intellectual disability:
61 on the Wechsler Intelligence Scale for Children - Revised
154
See Moore I, 137 S. Ct. at 1050 (deeming this Court’s reliance on Moore’s perceived
adaptative strengths as an overemphasis because the medical community focuses the
adaptive-functioning inquiry on adaptive deficits).
155
See id. at 1052 (explaining that “the medical profession has endeavored to counter
lay stereotypes of the intellectually disabled”).
156
Atkins, 536 U.S. at 309 n.3 (citing DSM–4 at 42–43).
Petetan Opinion On Rehearing — 84
(WISC-R), administered in 1991 (age 15);
64 on the WISC-R, administered in 1992 (age 16);
74 on the Wechsler Adult Intelligence Scale-Revised
(WAIS-R), administered in 1992 (age 16);
69 on an unknown intelligence instrument, administered in
1993 (age 17);
55 on the WAIS-III, administered in 2012 (age 36); and
52 on the WAIS-IV, administered before trial (age 37).
In our original opinion we discounted all but the score of 74, and
noted that, even when the three-point margin of error was considered,
“the score at the low end of the margin-of-error range would be 71—still
above the general ceiling for [intellectual disability], albeit barely.”157 We
concluded, “[t]his was some evidence that appellant’s general intellectual
functioning fell above the range for [intellectual disability].”158 Of course,
“[i]t is not sound to view a single factor as dispositive of a conjunctive
and interrelated assessment.”159 According to the DSM-5, a
comprehensive evaluation includes an assessment of intellectual capacity
and adaptive functioning; identification of genetic and nongenetic
157
Petetan, 2017 WL 915530, at *24.
158
Id.159
Id. at 723.
Petetan Opinion On Rehearing — 85
etiologies; evaluation for associated medical conditions (e.g., cerebral
palsy, seizure disorder); and evaluation for co-occurring mental,
emotional, and behavioral disorders.160 As the Supreme Court observed
in Hall, IQ scores are an approximation of conceptual functioning but
may be insufficient to assess reasoning in real-life situations and mastery
of practical tasks.161 This is why clinical judgement is needed in
interpreting the results of IQ tests.162 And, unlike many Atkins cases,
where the IQ scores start out high and get lower once the incentive to
score low arises, Appellant’s scores started out low and stayed there.
We have said that jurors are free to reject expert testimony if the
testimony fails to comport with the jurors’ concepts of sound logic.163 In
choosing to disregard expert testimony, the jury is constrained only by
the requirement that any action taken must be pursued in a nonarbitrary
manner.164 We said this in a case addressing sanity. And, like insanity,
160
DSM-5 at 39.
161
Hall 572 U.S. at 722 (quoting the DSM-5 at 37).
162
DSM-5 at 37.
163
Graham v. State, 566 S.W.2d 941, 951 (Tex. Crim. App. 1978).
164
Id. at 950–51 (recognizing that a defendant is not entitled to a judgment of acquittal
simply because he offers expert testimony on the issue of insanity and the government
attempts to rebut it without any expert witnesses; “While a jury may not arbitrarily disregard
expert testimony, it also may not give conclusive effect to the opinion of an expert merely
because that opinion is not challenged by some other expert”) (internal quotation marks
omitted).
Petetan Opinion On Rehearing — 86
intellectually disability is expressed in terms of a mental diagnosis, but
the issue is not strictly a medical one. What we have said about insanity
is true here too:
The issue is not strictly medical, and expert witnesses,
although capable of giving testimony that may aid the jury in
its determination of the ultimate issue, are not capable of
dictating determination of that issue. Only the jury can join
the non-medical components that must also be considered in
deciding the ultimate issue. That ultimate issue of criminal
responsibility is beyond the province of expert witnesses.
Were it otherwise, the issue would be tried in hospitals rather
than the courts.165
The ultimate issue in this case is not criminal responsibility—it is
whether Appellant has an intellectual disability that diminishes his
personal moral culpability. But that issue, like the insanity issue, is
ultimately for the factfinder, not the expert.166 So, the “legal
determination of intellectual disability is distinct from a medical diagnosis,
but it is informed by the medical community’s diagnostic framework.”167
In this case, the medical community was of one mind. We cannot
hold the evidence supporting the adverse finding factually sufficient
165
Graham, 566 S.W.2d at 949.
166
See id. at 952.
167
Hall, 572 U.S. at 721.
Petetan Opinion On Rehearing — 87
because there was no competing medical evidence.168 Had there been,
we might be assured that the jury’s rejection of the evidence of
intellectual disability did not run afoul of Supreme Court precedent. After
Moore I and Moore II, a factfinder cannot substitute its opinion for that
of all of the examining doctors. We therefore conclude that the jury’s
rejection of Appellant’s intellectual disability claim was clearly wrong and
manifestly unjust. Having determined the evidence was factually
insufficient, Appellant is entitled to a new punishment hearing.169
Conclusion
Appellant was not and is not constitutionally entitled to a pre-trial
168
Petetan, 2017 WL 915530, at *26 (“No psychological expert testified
definitively—during appellant’s capital murder trial—that appellant was not [intellectually
disabled].”).
169
See Matlock, 392 S.W.3d at 672 (explaining that reversal based upon factual-
sufficiency claim is a new trial, not an acquittal); Brownlow v. State, No. AP-77,068, 2020 WL
718026, at *23 (Tex. Crim. App. Feb. 12, 2020) (not designated for publication) (remedy for
a meritorious factual-sufficiency claim is a new punishment hearing, not reformation of the
sentence). After Moore II, this Court has granted relief on several Applicants’ intellectual
disability claims. See the following unpublished opinions: Ex parte Williams, WR-71,296-03,
2020 WL 7234532, at *1 (Tex. Crim. App. Dec. 9, 2020); Ex parte Gutierrez, WR-70,152-03,
2020 WL 6930823, at *1 (Tex. Crim. App. Nov. 25, 2020) Ex parte Guevara, WR-63,926-03,
2020 WL 5649445, at *3 (Tex. Crim. App. Sept. 23, 2020); Ex parte Lizcano, No. WR-68,348-
03, 2020 WL 5540165, at *1 (Tex. Crim. App. Sept. 16, 2020); Ex parte Escobedo,
WR-56,818-03, 2020 WL 3469044, at *1 (Tex. Crim. App. June 24, 2020); Ex parte Henderson,
2020 Tex. Crim. App. Unpub. LEXIS 171, at *2 (Tex. Crim. App. Apr. 15, 2020). Other
Applicants’ cases have been remanded to the habeas court for considerations on the merits.
Again, see the following unpublished opinions: Ex parte Lewis, WR-86,572-01, 2020 WL
5540550, at *1 (Tex. Crim. App. Sept. 16, 2020); Ex parte Butler, WR-41,121-03, 2019 WL
4464270, at *2 (Tex. Crim. App. Sept. 18, 2019). Though these cases are not authority, our
factual-sufficiency determination, as well as our decision to remand for a new punishment
hearing, in the present case are consistent with these cases.
Petetan Opinion On Rehearing — 88
determination of his intellectual disability. The evidence in this case is
legally sufficient for the jury to reject Appellant’s intellectual disability
claim. As such, and based on the record before us, Appellant has not
been shown to be categorically ineligible for the imposition of the death
penalty. However, the jury’s rejection of Appellant’s affirmative defense
of intellectual disability was against the great weight and preponderance
of the evidence. Accordingly, we vacate Appellant’s death sentence and
remand this cause for a new punishment hearing.
Filed: May 12, 2021
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