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A man seeking to overturn his death sentence for the 1991 robbery and murder of a South Texas lawman failed to prove that he’s mentally retarded, the Court of Criminal Appeals held on Feb. 11 in a case that sets standards for courts considering mental retardation claims. The CCA’s 8-1 decision in Ex Parte Briseno comes eight months after the Texas Legislature ended its regular session in June 2003 without enacting legislation to carry out a U.S. Supreme Court mandate barring execution of the mentally retarded. In 2002, the Supreme Court banned the execution of mentally retarded defendants in Atkins v. Virginia but left it up to individual states to decide how to implement that decision. In April 2003, the Texas House of Representatives passed H.B. 614 by Rep. Terry Keel, R-Austin, to address the Atkins decision, but the bill stalled in the Senate. “Recognizing that ‘justice delayed is justice denied’ to the inmate, to the victims and their families, and to society at large, we must act during this legislative interregnum to provide the bench and bar with temporary judicial guidelines in addressing Atkins claims,” Judge Cathy Cochran wrote for the CCA majority. “I think the court is clearly inviting the Legislature to set up its own procedure,” says Jordan Steiker, a University of Texas School of Law professor and capital punishment expert. Keel, an Austin solo, predicts the Legislature will consider the substance of H.B. 614 again. But Keel says his bill would have enabled a defendant in a capital case in which the state seeks the death penalty to raise mental retardation as a special issue to be determined by the jury during the punishment phase of the trial, while the CCA’s decision addresses post-conviction claims of mental retardation raised during habeas corpus proceedings. “The court hit it right on target on what I would say the Legislature would tend to do on those,” he adds. State Prosecuting Attorney Matthew Paul says the ruling in Briseno sets up the whole process for determining post-conviction Atkins claims and indicates that the CCA will defer to the trial court’s findings when the findings are supported by the record. “The bottom line is they really placed the decision in the trial court’s hands,” Paul says. In its majority opinion, the CCA addressed the definition of mental retardation, whether an individual has a right to have a jury decide the mental retardation issue in a post-conviction proceeding and who bears the burden of proof in such cases. Until the Legislature provides an alternative statutory definition of mental retardation for use in capital sentencing, the CCA will follow the definition used by the American Association on Mental Retardation or the definition contained in Texas Health and Safety Code �591.003(13), Cochran said in the opinion. Under either definition, mental retardation means having an IQ of about 70 or below concurrent with deficits in adaptive behavior that originated during the developmental period. Although the CCA focused on post-conviction Atkins claims in Briseno, the court’s majority opinion listed evidentiary factors that fact-finders might consider at trial when weighing evidence of mental retardation or a personality disorder. Those include whether the commission of the offense required forethought, planning and complex execution of purpose. That is important, Paul says, because the court is saying that the way a defendant committed a capital crime is relevant in determining whether that defendant is mentally retarded. THE RING DECISION Jose Garcia Briseno’s 1992 trial for the murder of Dimmitt County Sheriff Ben Murray was transferred to Laredo’s 49th District Court on a motion for change of venue. The CCA unanimously affirmed his conviction and sentence on direct appeal in 1994′s Briseno v. State and denied his original habeas corpus writ application in 1996. Briseno filed a subsequent writ application on July 10, 2002 — the date he was scheduled to be executed — and claimed that Atkins barred his execution because he is mentally retarded. Richard Burr, Briseno’s habeas attorney, criticizes the way the CCA handled the case. “I’m shocked they would do something this major without having oral arguments,” says Burr, a shareholder in Houston’s Burr & Welch. “It doesn’t make sense to conduct judicial business this way.” In his writ application, Briseno argued that the Supreme Court’s 2002 decision in Ring v. Arizona combined with Atkins entitled him to a jury determination on the mental retardation issue. The CCA said the Ring decision, requiring a jury determination of every fact that increases the maximum statutory penalty, is not retroactively applicable to cases on post-conviction habeas corpus review. When an inmate sentenced to death files a habeas corpus application raising an Atkins claim, the judge of the convicting court should determine the factual merit of the claim, the court held. Steiker says the CCA’s opinion tracks where most of the courts have gone on the Ring question. But Judge Charles Holcomb, the lone dissenter in Briseno, wrote that U.S. Supreme Court decisions and Texas legal tradition require a jury determination on the issue of mental retardation if an applicant for a habeas corpus writ is able to make a prima facie showing sufficient to raise the issue. Holcomb said in his dissenting opinion that the CCA has the authority and responsibility to recognize the courts’ ability to hold such a hearing if the Sixth and Eighth Amendments to the U.S. Constitution so require. “I find that they do,” he wrote. Richard Little, the Maverick County assistant district attorney handling the Briseno case, says that in old cases, a jury has already looked at the issue. “I can’t think of another process where you have two juries involved in the case,” Little says. The CCA also held in Briseno that a habeas writ applicant who raises an Atkins claim bears the burden of proof to establish, by a preponderance of the evidence, that he is mentally retarded. That standard is used by 12 of the 19 states with statutes prohibiting execution of the mentally retarded and is the standard that the Texas Legislature has set for affirmative defenses such as insanity, incompetency to stand trial or incompetency to be executed, Cochran wrote.

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