Lewis, David Lee ( 2006 )

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS  

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WR-38,355-03

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Ex parte DAVID LEE LEWIS, Applicant

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On Application for a Writ of Habeas Corpus

from Angelina County

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Womack, J., filed a dissenting statement, in which Johnson and Holcomb, JJ, joined.

I believe that all Members of the Court agree that the convicting court has made two problematic findings. In Finding 08, the convicting court found "pursuant to Tex. Health & Safety Code § 591.003[(16)], that a 'person with mental retardation' means a person determined by a physician or psychologist licensed in this state or certified by the department to met the stated definition of mental retardation.'"

In Finding 15, the convicting court found "that Dr. Richard Garnett [the applicant's expert witness] is not licensed as a psychologist in the State of Texas, but is a licensed professional counselor; that he is not licensed to diagnose mental retardation; that he is not certified by the Texas Department of Mental Health and Mental Retardation to make a diagnosis of subaverage general intellectual functioning."

The problem is that the definition of "person with mental retardation" in Section 591.003(16), which requires a determination by a physician or psychologist licensed or certified, is not part of the definition of mental retardation that is relevant for the Eighth Amendment issue that was before the convicting court. As the convicting court correctly said in Finding 07, we have held that the issue is to be determined by the definition of "mental retardation" in Section 591.003(13) or in the similar definition of the American Association on Mental Retardation. Neither of these relevant definitions requires "a determination by a physician or psychologist, licensed or certified" etc.

This Court deals with the problem by "reject[ing]" the problematic findings. Order, ante, at 2. But where does that get us? Neither of the findings is false, but neither of them should be the basis of the decision in this case. If the convicting court's conclusions were based on a mistaken belief that they required a certain expert's determination, then the severance of the findings that refer to such experts would not cure the mistake. (All the conclusions are based on "§ 591.003," which contains both the relevant and the irrelevant definitions.)

I should prefer to remand the matter for the convicting court to revise its findings and conclusions to state specifically which standard it is using.

Filed December 6, 2006.

Publish.