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Click here for the full text of this decision FACTS:In this subsequent writ application, filed pursuant to Article 11.071, 5, of the Texas Code of Criminal Procedure, the applicant presents a claim of mental retardation under Atkins v. Virginia, 536 U.S. 304 (2002). After this court remanded the application, the trial court conducted an evidentiary hearing and considered a wealth of documentary information. The trial judge then signed findings of fact and conclusions of law and recommended that relief be denied. HOLDING:The court denies relief. OPINION: Per Curiam. Hervey, J., did not participate. Holcomb, J., dissents. Cochran, J., filed a statement concurring in the denial of relief in which Price, J., joined. CONCURRENCE:Cochran, J.; Price, J., joins. “It seems to me that, with its decision in Atkins, the Supreme Court is moving back toward the pre-Furman days of wholly subjective criteria in determining whether a particular person is or is not subject to the death penalty. As experts on both sides in this case testified, there are no objectively verifiable standards by which to gauge whether a specific person does or does not suffer the kind of significant “adaptive deficits” that a diagnosis of mental retardation requires. Nor are there any scientifically verifiable standards by which one might measure whether a person’s academic, social, or functional deficits are related to innate mental deficiencies, bad upbringing, impoverished environment, bad moral character, emotional problems, poor habits, lack of motivation, drug or alcohol dependence, or other factors. “In Atkins, the Supreme Court may have intended to create a”bright-line’ rule that those who are mentally retarded are, because of their lesser moral culpability, exempt from the death penalty. But I fear that there is no such bright line. There is, on the contrary, broad agreement among mental health experts that determining whether a person suffers from the type and level of”adaptive deficits’ that qualifies for a mental retardation diagnosis is highly subjective and largely a matter of individual judgment. Under Atkins, the ostensible issue for the factfinder in a death penalty case is,”Is this person mentally retarded?’ As we see in this case, there may be no clear-cut answer to that question. Absent the possibility of a rigorous, scientifically reliable and verifiable”yes-or-no’ determination, the relevant question perhaps ought to be,”Do you believe that the defendant is sufficiently mentally responsible for his conduct such that the death penalty is an appropriate punishment?’ This is analogous to the Texas statutory mitigation question which, at bottom, asks”Do you believe that the defendant is sufficiently morally responsible for his conduct such that the death penalty is an appropriate punishment?’ “In any event, the”evolving standards of decency’ of the Eighth Amendment depends upon the collective judgment of the twelve ordinary citizens who sit in judgment of the case before them. Their assessment is the best determinant of fairness in assessing both mental and moral responsibility in cases of capital crimes committed by those whose mental capacity and competency is in doubt. Thomas Jefferson had it right:”I know of no safe depository of the ultimate powers of the society but the people themselves, and if we think them not enlightened enough to exercise that control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion.’ Expert testimony and various mental retardation criteria may inform the factfinder’s discretion. But it is nonetheless the factfinder who must ultimately decide whether a particular person”who claim[s] to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus’ that the death penalty is an inappropriate punishment. “Based upon the evidence in the record, I agree that the trial court did not err in concluding that applicant failed to prove, by a preponderance of the evidence, that he is mentally retarded. Therefore, I join the Court in denying applicant relief on his mental retardation claim.”

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