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Click here for the full text of this decision FACTS:The applicant was convicted of capital murder and sentenced to death for the 1991 robbery-murder of Dimmitt County Sheriff Ben Murray. After the U.S. Supreme Court’s decision in Atkins v. Virginia, 536 U.S. 304 (2002), applicant filed a subsequent writ of habeas corpus application alleging that he was mentally retarded and therefore exempt from execution. Based upon applicant’s prima facie showing, this court remanded his writ application to the convicting court for further proceedings. The trial court conducted a lengthy evidentiary hearing and made findings of fact that the applicant failed to prove, by a preponderance of the evidence, that he is mentally retarded. HOLDING:Denied. The court acts during this legislative interregnum to provide the bench and bar with temporary judicial guidelines in addressing Atkins claims. The court sets out the following judicial standards for courts considering those claims under Article 11.071. In this case because the applicant, the state, and the trial court all used the American Association on Mental Retardation definition. Until the Texas Legislature provides an alternate statutory definition of “mental retardation” for use in capital sentencing, the court follows the AAMR or Texas Health and Safety Code �591.003(13) criteria in addressing Atkins mental retardation claims. Other evidentiary factors which factfinders in the criminal trial context also might focus upon in weighing evidence as indicative of mental retardation or of a personality disorder: Did those who knew the person best during the developmental stage-his family, friends, teachers, employers, authorities-think he was mentally retarded at that time, and, if so, act in accordance with that determination? Has the person formulated plans and carried them through or is his conduct impulsive? Does his conduct show leadership or does it show that he is led around by others? Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable? Does he respond coherently, rationally, and on point to oral or written questions or do his responses wander from subject to subject? Can the person hide facts or lie effectively in his own or others’ interests? Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning and complex execution of purpose? Although experts may offer insightful opinions on the question of whether a particular person meets the psychological diagnostic criteria for mental retardation, the ultimate issue of whether this person is, in fact, mentally retarded for purposes of the Eighth Amendment ban on excessive punishment is one for the finder of fact, based upon all the evidence and determinations of credibility. Applicant requested that a jury be empaneled to decide the factual issue of his claim of mental retardation. The court concludes that there is no mechanism set out in the applicable habeas statute, Texas Code of Criminal Procedure Article 11.071, that provides for a jury trial of an issue first raised in a post-conviction habeas corpus proceeding. The court holds that, when an inmate sentenced to death files a habeas corpus application raising a cognizable Atkins claim, the factual merit of that claim should be determined by the judge of the convicting court. His findings of fact and conclusions of law are reviewed by this court in accordance with article 11.071, �11. The issue of mental retardation is similar to affirmative defenses such as insanity, incompetency to stand trial or incompetency to be executed, for which the Texas Legislature has allocated the burden of proof upon a defendant to establish by a preponderance of the evidence. The court adopts that allocation of the burden and standard of proof, at least in the context of determining mental retardation in the habeas corpus setting where the inmate traditionally bears the burden of proof. The court’s review of a trial court’s findings of fact and conclusions of law concerning a claim of mental retardation remains the same as it has always been on habeas corpus applications. The court defers to the trial court’s factual findings underlying his recommendation when they are supported by the record. The court affords almost total deference to a trial judge’s determination of the historical facts supported by the record, especially when those fact findings are based on an evaluation of credibility and demeanor. However, if the trial court’s ruling is not supported by the record, this court may reject the findings. The court concludes that, while there is expert opinion testimony in this record that would support a finding of mental retardation, there is also ample evidence, including expert and lay opinion testimony, as well as written records, to support the trial court’s finding that applicant failed to prove that he is mentally retarded. The court defers to the trial court’s credibility determinations, adopts the trial court’s ultimate findings of fact and denies relief. OPINION:Cochran, J., delivered the order of the court, joined by Keller, P.J., Meyers, Price, Womack, Johnson, Keasler and Hervey, JJ. DISSENT:Holcomb, J., filed a dissenting opinion. “I dissent from the majority’s opinion regarding both the resolution of this case and the judicial guidelines pronounced therein, particularly that the judge of the convicting court shall determine the factual merit of an Atkins claim raised on habeas corpus.”

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