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Click here for the full text of this decision FACTS:This is a subsequent application for writ of habeas corpus in a capital case, in which the applicant claims that he cannot be subjected to the death penalty, consistent with the U.S. Supreme Court’s 2002 decision in Atkins v. Virginia, because he is mentally retarded. The CCA found that the application satisfied the requirements for a subsequent writ under Texas Code of Criminal Procedure Article 11.071 �5 and remanded the cause to the convicting court for further proceedings. The convicting court held an evidentiary hearing in late August 2005, after which it made recommended findings of fact and conclusions of law, recommending that the applicant’s sentence be reduced to life imprisonment, because he is mentally retarded and therefore cannot be executed consonant with the Eighth Amendment’s ban on cruel and unusual punishment. The applicant has had his IQ tested via various psychometric instruments at least six times between 1989 and 2003. Each time he scored in the range of mild mental retardation. Unlike the question of the applicant’s IQ, the question of whether he manifests adaptive deficits was hotly contested. The applicant relied primarily upon an affidavit and report from Dr. Richard Garnett. Garnett conducted a three-hour clinical interview with the applicant, from which he concluded that the applicant’s thinking is highly concrete and his ability to reason abstractly is impaired. Garnett also evaluated the applicant according to the nondiagnostic criteria the CCA identified in 2004 in Ex Parte Briseno. The convicting court made extensive findings with respect to these criteria: 1. the applicant’s participation in the offense for which he is on death row was spontaneous, rather than planned; 2. his conduct in general is impulsive; 3. he is uniformly reported to be gullible and a follower rather than a leader; and 4. he was unable to lie or hide facts in his own interest. The convicting court addressed a television interview given by the applicant. The convicting court allowed the parties to file additional affidavits from their experts in which they assessed the significance of the applicant’s performance in the recorded interview and explained how they thought it supported their respective positions with regard to whether the applicant is mentally retarded. None of the experts purported to be able to determine, based upon viewing the television interview alone, whether the applicant is mentally retarded. The convicting court regarded the interview as relevant specifically in the context of one of the Briseno factors, viz: Does the applicant respond coherently, rationally and on point to oral or written questions, or do his responses wander from subject to subject? Unable firmly to resolve its ambivalence with respect to this particular Briseno factor, the convicting court ultimately relied upon the totality of the evidence as it bore upon all of the other relevant criteria to conclude that the applicant had demonstrated adaptive deficits to the requisite level of confidence. HOLDING:Relief is granted, and the applicant’s sentence is reformed to a term of life imprisonment. The CCA viewed the interview videotape. “To our untrained eye, it conclusively demonstrates neither that the applicant is mentally retarded, nor that he is not. Under the circumstances, the convicting court was justified in relying upon the expert assessment of Dr. Garnett, who has thirty-five years of professional experience as a diagnostician in the field of mental retardation.” Garnett opined that the 37-minute media interview corroborated his conclusion. The state’s expert drew a different conclusion and thought that the media interview corroborated his own, contrary view. Therefore, the record would also support a reasonable jurist’s conclusion that the applicant has not established mental retardation by a preponderance of the evidence. On this record, the court defers to the recommended findings and conclusions of the convicting court, that the evidence preponderates in favor of a finding that the applicant is mentally retarded. OPINION:Per curiam. DISSENT:Keller, P.J.; Keasler and Hervey, JJ., join. The dissent argues, citing the CCA’s 2000 decision in Carmouche v. State, that it was appropriate to decline to give almost total deference to the trial court’s findings, because the videotape evidence did not pivot on an evaluation of credibility and demeanor. “Although applicant proffered low IQ scores, experts who opined that applicant was mentally retarded (despite the video), and other testimony suggesting adaptive deficits, the video recording starkly contradicts the picture painted by applicant’s evidence. . . .” “Moreover, substantial evidence apart from the video recording supports the State’s contention that applicant is not mentally retarded, including expert testimony and a prior determination within the prison system. Even giving ‘almost total deference to the trial court’s findings,’ I cannot conclude that the evidence is sufficient to show that applicant is impaired to the degree necessary to exempt him from execution under Atkins v. Virginia.”

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