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Click here for the full text of this decision FACTS:The court reconsiders this case in light of Atkins v. Virginia, 536 U.S. 304 (2002). In January 2000, appellant’s trial for capital murder began. At trial, both parties introduced evidence regarding whether appellant was mentally retarded. This evidence was introduced primarily in the punishment phase in connection with a determination of the mitigation special issue. At no point did appellant request that the trial judge or the jury make a specific fact-finding as to whether appellant was in fact mentally retarded. Appellant was subsequently convicted of capital murder and sentenced to death. This court affirmed his conviction and sentence. In a habeas action, the trial court designated the issue of whether appellant was mentally retarded as a previously unresolved fact issue and ordered a hearing by way of affidavits. The U.S. Supreme Court vacated this court’s judgment on direct appeal and remanded the case for reconsideration in light of Atkins. After reviewing the trial record and the affidavits submitted by the parties, and relying upon personal recollection of the events occurring at trial, the habeas trial court adopted the state’s proposed findings of facts and conclusions of law, concluding that appellant is not, in fact, mentally retarded. On Feb. 26, 2003, this court denied relief on the habeas application in an order adopting the trial court’s findings. HOLDING:The judgment of the trial court is affirmed. The court is faced in a direct appeal with an issue that has already been presented to the court on habeas corpus. The court addresses appellant’s mental retardation in light of both the direct appeal and the habeas records. The court rejects any notion that the direct appeal record in this case must be viewed in isolation. The additional habeas evidence is before the court; taking it into account is necessary for a complete and accurate view of appellant’s intellectual capabilities. That standards for evaluating a claim sometimes differ from appeal to habeas is of no concern here. While direct appeal standards may apply to a claim on direct appeal even though the claim is supported by evidence obtained in judicially noticed habeas corpus proceedings, if a substantive component of a particular type of claim already contains a standard that equals or exceeds the applicable standard on habeas corpus, then the inquiry collapses to analyzing the claim by its components. In the present case, the court decides that mental retardation is comparable to an affirmative defense, and thus, the burden is always upon the defendant to prove that condition by a preponderance of the evidence. So, the standards for proving mental retardation at trial and on habeas are the same, and the resulting standard of review of a trial court’s findings against the defendant are also the same in both contexts. Given the same burden, the standard of deference will also be the same, whether the court conducts a sufficiency review of a mental retardation claim decided at trial or a legal review of a trial court’s recommendation on habeas corpus. Appellant’s claim has already been addressed on habeas corpus and found to be without merit. The trial court considered the entire trial record and the additional evidence presented in the habeas proceedings. The trial court made its findings after Atkins was decided and after the U.S. Supreme Court had remanded the direct appeal in this case. The trial court’s consideration of the mental retardation claim and the court’s review in the habeas proceedings satisfied the mandate of Atkins, and the court believes that taking judicial notice of the habeas proceeding and its outcome satisfies the Supreme Court’s remand order in the present case. Because the burden of proof and the standard of review are the same on this issue on direct appeal and in habeas proceedings and because the court can properly notice the habeas evidence on direct appeal, the court’s conclusion on direct appeal is necessarily the same as its conclusion in the habeas proceedings. Out of caution, the court re-reviews the evidence and decides that its conclusion is not changed. OPINION:Keller, P.J.; Meyers, Price, Womack, Keasler, Hervey and Cochran, JJ., join. CONCURRENCE: Price, J.; Cochran, J., joins. “I agree with the majority that we may consider the habeas record in deciding this direct appeal on remand from the United States Supreme Court. I also agree that the record in this case supports the trial court’s conclusion in habeas proceedings that the appellant is not mentally retarded. I write separately to point out that, generally, for the review of a contested Atkins v. Virginia claim, the trial court will need to hold a live hearing and not base its decision solely on affidavits submitted by the parties.” DISSENT: Johnson, J.; Holcomb, J., joins. “It may very well be that a full hearing on appellant’s claim of mental retardation, with the opportunity to cross-examine witnesses and argue the significance of their testimony, would establish that appellant is not retarded. However, we will never know unless we order that full hearing and have before us both the tested testimony of persons who are knowledgeable in the mental-health field and relevant lay testimony about his adaptive behavior.” DISSENT: Holcomb, J. “I do not dispute that, in general, this Court can properly take judicial notice on direct appeal of a habeas proceeding, consider the evidence developed at a hearing on habeas, and afford almost total deference to a trial judge’s determination of the historical facts supported by the record. However, in this case, determining appellant’s claim of mental retardation by considering the evidence developed on habeas in addition to that adduced at trial does not provide appellant with a constitutionally sufficient opportunity and process to resolve his claim. Also, based on the deficiencies in the habeas proceeding, we should not, in this case, afford the trial court’s finding on habeas almost total deference.”

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