I concur in the Court's dismissal of applicant's subsequent writ of habeas corpus based upon an Atkins ⁽¹⁾ mental retardation claim. I agree with remanding subsequent Atkins habeas applications to the trial court for further development when the applicant sets out sufficient facts to raise a bona fide claim of mental retardation under Atkins, but the present applicant has not set out sufficient facts.

Applicant was convicted of capital murder and sentenced to death on November 21, 1997. This Court affirmed that conviction on direct appeal on May 12, 1999 and denied applicant's original writ of habeas corpus on February 9, 2000. Applicant then filed a habeas corpus writ application in federal district court and, on September 27, 2001, it was denied.

The Supreme Court delivered its opinion in Atkins on June 20, 2002. On September 18, 2002, the trial court set applicant's execution date for February 25, 2003, more than five months in the future. In his Motion for Stay of Execution, filed on February 14, 2003, applicant offers no explanation for his delay in filing an Atkins claim or for his eleventh-hour stay request. ⁽²⁾

I agree with much of what Judge Price states in his dissenting opinion. But he fails to take into account how our case law has interpreted the plain language of our habeas writ statute. Article 11.071, Section 5(a) states that:

a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that ... the current claims and issues have not been and could not have been presented previously ... because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application.

The legal basis for an Atkins mental retardation claim was not available until June 20, 2002. Thus, an applicant making an Atkins claim may be entitled to have the merits of a subsequent writ application considered if his first application had been filed before the Atkins decision was announced.

However, under our case law, there is a second prerequisite under Section 5 before the merits of a subsequent writ can be considered. A second or subsequent writ must contain "sufficient specific facts" to support an applicant's Atkins claim. A writ application which makes the naked assertion, "I am mentally retarded," obviously does not suffice to leap over this second hurdle. If it did, every inmate on death row would be equally entitled to file a subsequent writ in the hope that something, somewhere might turn up to support this bare assertion. The mere assertion of a valid legal claim, unsupported by sufficient specific factual allegations which, if true, would entitle the applicant to relief, is not enough to overcome a Section 5 bar. ⁽³⁾

On the other hand, an applicant need not include every jot and tittle of evidence which would prove his mental retardation by a preponderance of the evidence within his writ application either.

The Legislature steered a middle course in Section 5 in the plain language that it chose: an applicant must provide "sufficient specific facts" to support his entitlement to bring a claim under newly-established law within that writ application. He must provide evidence of a prima facie case, sufficient evidence to withstand a directed verdict or a "no evidence" summary judgment motion ⁽⁴⁾

that he has a factual basis for his claim under newly-established law. In my opinion, an applicant must, at a bare minimum, provide evidence of at least one I.Q. test (preferably taken before the age of 18) from which a reasonable trier of fact could conclude that the person is mentally retarded under Atkins. Better yet is evidence of several such I.Q. tests, coupled with supporting school and medical records, and record evidence or affidavits from qualified experts (or laymen with sufficient personal knowledge of specific conduct) that at least raise an issue concerning applicant's lack of adaptive skills and the onset of mental retardation before age 18.

In the present case, I conclude that applicant has failed to meet that threshold factual burden. The evidence he has submitted shows:

• When applicant was in the first grade, his Slosson I.Q. tested at 93. In 1981, his verbal I.Q. tested at 65, his performance I.Q. at 85, and his full score I.Q. at 72. In 1982, applicant's I.Q. score (WISC-R) increased to Verbal 68; Performance 96; Full Scale 80. The assessment at that time, when applicant was in the 6^th grade, was "intellectual functioning in the low average range. Significant discrepancy in development of his nonverbal intelligence. Characterized as a visual learner. Academic achievement (esp. in reading) below intellectual functioning."

• When applicant was 14, every teacher noted poor or very poor attendance. One stated that he "has the ability to learn but needs much individualized personal instruction and attention." Another stated that "when in attendance [he] was making a passing grade ... If Richard would stay in attendance he would average a C or B for a nine weeks period." It was also noted that applicant had "poor peer relationships," "defies authority," and "leaves home but never arrives at school."

• In 1984, when applicant was 15 and charged with burglary of a coin-operated machine, he was given a psychological assessment. The examiner stated: "Richard [applicant] is functioning in the borderline range of intellectual ability as assessed by the Peabody Picture Vocabulary Test on which he obtained an IQ of 72."



• At that time, applicant was in regular 8^th grade classes but was expelled for fighting. The examiner stated that applicant's poor performance in reading and spelling "show a lack of ability to use phonetics, i.e. to sound out words. Consequently he reads entirely by sight and his sight vocabulary is very small." The examiner also stated that "[p]rojective tests and clinical impressions indicate that [applicant] is an immature boy who wants and needs positive relationships with others." Applicant also felt "overcontrolled or caged in by his parents" and "seems to perceive his mother as negatively controlling and withdrawn." In the "Conclusions" section of his report, the examiner does not mention any mental deficiencies, but rather focuses on the fact that applicant's needs were not being met at home and thus outside placement was recommended to provide "support and consistent limits which are enforced in a non-reactive, calm fashion."



• In 1985, the Texas Youth Commission retested applicant and he again obtained a 72 Peabody "full score I.Q." It was noted that applicant made "minimal effort" during the testing.



• When applicant attended Crockett State School under the control of the Texas Youth Commission, his school work improved dramatically: he made A's in Math, B's in Survival Skills, English/Language Arts and P.E., and C's in Social Studies and Health. He tested in the 53^rd percentile on the TONI test of Non-Verbal Intelligence.



• In 1985, applicant was placed in Vocational Education for the Handicapped classes at Wheatley High School, where he received mainly A's and B's and his teacher reported applicant had a "generally positive and serious approach to schoolwork" and that "a lot of good things are waiting for [applicant's] positive influence out there." Despite these improvements, applicant dropped out of school three months later.



• According to a defense psychologist expert who testified at applicant's capital murder trial, applicant suffered from developmental delay, a learning disability (dyslexia) and impaired motor function. By the time of his capital murder trial, he also had some possible brain dysfunction. ⁽⁵⁾

This evidence certainly supports a conclusion that applicant has dyslexia- a learning disability- which has adversely affected his reading abilities, as well as his ability to score well on the verbal component of an I.Q. test. But dyslexia is not mental retardation. Applicant's factual allegations and writ materials also support a conclusion that applicant is not well-educated, has poor motor skills, some possible brain dysfunction, and has not shown much interest in education during his youth (except for a short period during and after his stay at TYC when he improved dramatically), but none of this constitutes "sufficient specific facts" to support a claim of mental retardation under Atkins. ⁽⁶⁾

Thus, while Judge Price's analysis concerning applicant's legal basis is correct, there is an insufficient factual basis to support a stay of execution or a remand to the trial court under Atkins. I must agree, therefore, that the Court correctly dismisses applicant's subsequent writ application as an abuse of the writ under Article 11.071, Section 5(a).

Cochran, J.

Filed: February 26, 2003

Do Not Publish

1. Atkins v. Virginia, 536 U.S. 304 (2002).

2. In his writ application, applicant does note that he had appealed the federal district court's denial of his writ to both the Fifth Circuit and U.S. Supreme Court, but those appeals would not prevent applicant from filing a subsequent state writ based on an Atkins claim.

3. See, e.g., Ex parte Maldonado, 688 S.W.2d 114, 116 (Tex. Crim. App. 1985) (in a post-conviction collateral attack, burden is on applicant to allege and prove facts which, if true, entitle him to relief); see also Ex parte McPherson, 32 S.W.3d 860, 861 (Tex. Crim. App. 2000)(Womack, J., dissenting).

4. See Tex. R. Civ. P. 166a(i) & 1997 comment; see also Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000); see also Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.-Houston [1st Dist.] 1999, no pet.); see generally Judge David Hittner & Lynne Liberato, Summary Judgments in Texas, 34 Hous. L. Rev. 1303, 1356 (1998).

5. At least one defense expert at applicant's trial explicitly declined to say that applicant was mentally retarded. In its Motion to Dismiss Applicant's Subsequent Application for Writ of Habeas Corpus, the State quotes a portion of its cross-examination of Ms. Dee Dee Halpin, a defense expert whose report is attached to Applicant's current writ application:

Q: Did you teach children who are mentally retarded?

A: Yes.

Q: You've told this jury that this defendant has an average IQ: is that correct?

A: I have to qualify that. He has an average nonverbal IQ, but below average verbal IQ.

Q: Are you saying that he's mentally retarded on that nonverbal IQ?

A: No.

Applicant does not point to any materials in which any mental health expert (or lay person with personal knowledge) has affirmatively concluded that applicant is, in fact, mentally retarded, as that term is used in Atkins.

6. Although the Supreme Court did not define "mental retardation" for purposes of an Eighth Amendment bar upon capital punishment, it did quote two generally accepted mental health definitions:

The American Association of Mental Retardation (AAMR) defines mental retardation as follows: "Mental retardation refers to substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18." Mental Retardation: Definition, Classification, and Systems of Supports 5 (9th ed. 1992).

The American Psychiatric Association's definition is similar: "The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system." American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed. 2000). "Mild" mental retardation is typically used to describe people with an IQ level of 50-55 to approximately 70. Id., at 42-43.

Atkins, 536 U.S. at 342, n. 3. In the absence of more specific guidance from the Texas Legislature, these criteria, developed by the mental health field, provide appropriate guidance.